STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, ) CONSTRUCTION INDUSTRY LICENSING ) BOARD, )

)

Petitioner, )

)

vs. ) Case No. 98-1922

)

WILLIAM LEETE STONE, IV, )

)

Respondent. )

)

RECOMMENDED ORDER

An administrative hearing was conducted in this proceeding on July 8, 1998, in Orlando, Florida, before Daniel Manry, Administrative Law Judge, Division of Administrative Hearings. The witnesses and court reporter attended the hearing in Orlando.

Counsel for Petitioner and the undersigned participated by video conference from Tallahassee, Florida.

APPEARANCES

For Petitioner: Paul F. Kirsch, Senior Attorney

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: No Appearance

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent violated Section 489.129(1), Florida Statutes (1997) (hereinafter, "Florida Statutes"), by committing mismanagement or misconduct in the practice of contracting, causing financial harm to a

customer, abandoning a construction project, and failing to satisfy a judgment against him.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent on May 21, 1997, and an Amended Administrative Complaint on December 19, 1997. Respondent timely requested an administrative hearing.

At the hearing, Petitioner presented the testimony of one witness and submitted six exhibits for admission in evidence. Respondent did not appear and did not submit any evidence.

The identity of the witness and exhibits, and any rulings regarding each, are set forth in the transcript filed on July 20, 1998. Petitioner timely filed its proposed recommended order ("PRO") on July 28, 1998. Respondent did not file a PRO.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for regulating the practice of contracting. Respondent is licensed as a contractor pursuant to license number CB C019811.

2. At all relevant times, Respondent was the qualifying agent for Gulf and Bay Sunrooms, Inc. ("Gulf"). As the qualifying agent, Respondent was responsible for all of Gulf's contracting activities in accordance with Section 489.1195, Florida Statutes.

3. On August 23, 1995, Respondent and Gulf entered into a contract with Mr. H. Edward Dowling ("Dowling") to install a Four

   Seasons System 330 Sunroom in Dowling's residence at 3016 West 38th Street, Orlando, Florida. The contract price was $31,340.

4. Dowling paid the first draw of $9,402 to Respondent and Gulf by check number 45016644. On October 27, 1995, Gulf deposited the check to its account.

5. Respondent and Gulf never commenced work on the sunroom. Respondent and Gulf did not return the first draw to Dowling. Respondent and Gulf abandoned the project without just cause and without notice to Dowling.

6. On June 19, 1997, the County Court of the Ninth Judicial Circuit entered a Default Final Judgment in Case No. CO97-3800. The default judgment was entered in the amount of $9,402 plus costs of $145. Neither Respondent nor Gulf have satisfied the judgment.

7. Respondent has a discipline history in two other cases. In Petitioner's Case No. 96-7123, Respondent failed to pay a supplier for windows. In DOAH Case No. 96-5914, Respondent contracted to build a sunroom in a residence, accepted payment of

   $1,540.44 toward the contract price of $4,668.00, never commenced construction, and abandoned the project.

8. In the first case, Respondent was found guilty of failing to satisfy a civil judgment, was fined, and was ordered to pay restitution. In the second case, Respondent was found guilty of abandonment, incompetency or misconduct, was fined, and was ordered to pay restitution, and his license was suspended until Respondent complied with the penalty imposed.

   CONCLUSIONS OF LAW

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

10. 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 penalty to be imposed. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

11. Petitioner satisfied its burden of proof. Petitioner showed that Respondent violated Section 489.129(1), Florida Statutes, by committing mismanagement or misconduct in the practice of contracting, causing financial harm to a customer, abandoning a construction project, and failing to satisfy a judgment against him. The Florida Construction Industry Licensing Board (the "Board") is authorized to revoke or suspend Respondent's license or to impose any other reasonable penalty.

12. For a repeated offense of abandonment of a project, Florida Administrative Code Rule 61G4-17.001 authorizes the Board to impose a fine of $5,000.00. For a repeated offense of incompetency or misconduct, Rule 61G4-17.001 authorizes the Board to impose a fine up to $5,000.00 and to revoke Respondent's license. For a repeated offense of failure to satisfy a civil judgment, Rule 61G4-17.001 authorizes the Board to impose a fine up to $5,000.00 and to revoke Respondent's license.

13. Aggravating factors that are properly considered in

determining the appropriate penalty include financial harm to the customer. The acts committed by Respondent caused substantial financial harm to the customer.

RECOMMENDATION

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

RECOMMENDED that the Board enter a Final Order finding Respondent guilty of violating Section 489.129(1), Florida Statutes, imposing administrative fines in the aggregate amount of $15,000.00, and revoking Respondent's license.

DONE AND ENTERED this 10th day of August, 1998, in Tallahassee, Leon County, Florida.

DANIEL MANRY

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

Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 1998.

COPIES FURNISHED:

Rodney Hurst, Executive Director Department of Business and

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

Jacksonville, Florida 32211-7467

Lynda L. Goodgame, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Paul F. Kirsch, Senior Attorney Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

William Leete Stone, IV, pro se 3386 Poinsettia Avenue

Naples, Florida 34104

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: 98-001922

Orders for Case No: 98-001922