STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY CONSTRUCTION ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) Case No. 98-3897

)

GARY L. WALTERS, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Largo, Florida, on December 1, 1998, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: William J. Owens

Executive Director

Pinellas County Construction Licensing Board

11701 Belcher Road

Suite 102

Largo, Florida 33773-5116

For Respondent: Was not present and was not

represented.

STATEMENT OF THE ISSUE

The issue for consideration in this case is whether Respondent’s certification as a residential contractor should be disciplined because of the matters alleged in the Administrative Complaint filed herein.

PRELIMINARY MATTERS

On August 11, 1998, William J. Owens, Executive Director of the Pinellas County Construction Licensing Board (Board), filed an Administrative Complaint in this case against the Respondent, Gary L. Walters, alleging that Mr. Walters had taken payment for construction work to be performed for a customer and thereafter abandoned the job before it was completed. This misconduct is alleged to have caused the owner to pay again to the supplier for material which was to have been paid for out of the funds paid to Respondent. If proven, these allegations constitute fraud, deceit, gross negligence, incompetence, or misconduct in the practice of contracting, and are a violation of Sections 489.129(1)(d),(h),(j),(k), and (m), Chapter 75-489, Laws of Florida. Respondent denied the allegations against him and requested a formal hearing. This hearing ensued.

Respondent did not appear at the hearing. Mr. Owens, qualified representative for the Board, indicated that on the morning of the hearing, prior to the time to convene, Respondent delivered a written statement regarding his participation in this matter, and indicated he would not appear at the hearing.

Consequently, the hearing was convened and conducted without his being present.

Petitioner presented the testimony of Kimberly Ann Burgman Solano, the owner of the property in issue, and introduced Petitioner’s Exhibits 1 through 6. No evidence was presented by or on behalf of the Respondent, except the written statement he

delivered the morning of the hearing, which Mr. Owens introduced as Petitioner’s Exhibit 1.

No transcript of the proceedings was provided, and neither party submitted any matters after hearing.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, Respondent, Gary L. Walters, was certified as a residential contractor in Pinellas County, Florida, and operated under license C-5600, (RR0065537).

2. On October 78, 1997, Respondent submitted a proposal to Kimberly Solano to construct a 1,048 square foot second story addition to her residence located at 552 180th Avenue in Redington Shores, Florida. The proposal specifically described the work to be done by Respondent, and indicated a contract price of $46,840.

3. Construction began under the terms of the contract, and over the course of the time Respondent worked on this job,

   Ms. Solano paid him a total of $44,600 for labor, materials, and other expenses. The amount paid constitutes approximately 95.5 percent of the contract price for the entire project.

4. Included in the $44,600 that Ms. Solano paid to Respondent was $5,000 for trusses purchased by him from Florida Forest Products. However, on February 11, 1998, Ms. Solano was served with a Notice To Owner by the supplier indicating that the trusses ordered by Mr. Walters for the Solano property had not

   been paid for, and that if the amount due was not paid in full, a lien could be filed against her property. As a result, on

   April 17, 1998, Ms. Solano paid Florida Forest Products $1,000, and on May 4, 1998, paid the company the balance due of

   $1,429.80.

   
   

5. Respondent stopped working on this project in January 1998. Ms. Solano called him repeatedly thereafter, but he consistently refused to resume work on her project. Finally, toward the end of February 1998, Respondent demanded more money to continue working on the project. At that point, Ms. Solano was unable to pay any more.

6. Ms. Solano had borrowed $50,000 to pay for the project, and was initially prepared to pay up to that amount, pursuant to the contract. She was not prepared to pay more than that. However, Respondent’s failure to complete the work for which he contracted resulted in damage to the existing structure, and to keep that from continuing, Ms. Solano was forced to raise additional funds to get the construction completed, albeit in a piecemeal fashion. The project, as of the date of final hearing, was still not completed, and Pinellas county building authorities have not issued a certificate of occupancy for it. Nonetheless, in addition to the $44,600 paid to Respondent, and the $2,429.80 paid to Florida Forest Products, Ms. Solano had paid an additional $24,841.53 for labor, supplies, and other services

   necessary to the completion of the project.

   
   

7. Ms. Solano filed a complaint against Respondent with the Board. In his response to the complaint, which he filed on

   July 16, 1998, Respondent contended that the engineer who designed the project changed the size and dimensions of the beams used in the floor framing after the contract price was set.

   Respondent contends he advised Ms. Solano that this change would add between $7,000 and $10,000 to the cost of the project. He claims that the money which should have gone to pay for the trusses was eaten up by the increased costs of the beams, and his only misconduct was in continuing to work on the project without final drawings.

8. In his written statement submitted the day of the hearing, Respondent contends that the actual agreed cost of the project was much higher than that noted in the contract. The lower figure was stated therein only to circumvent the 50 percent rule of the Federal Emergency Management Agency, and that

   Ms. Solano knew it. In fact, Respondent claims, there was an oral agreement for an additional $25,000 to $30,000 to be paid to him. Ms. Solano categorically denies this and that claim is rejected.

9. Taken as a whole, the evidence clearly demonstrates that Respondent entered a contract for a sum certain and was paid in excess of ninety-five percent of the contract price. He abandoned the project before it was completed, and when far less

   than 95 percent of the project had been accomplished. His abandonment of the project caused financial harm to the owner of the property and constitutes misconduct in the practice of contracting.

10. Petitioner seeks to suspend Respondent’s certificate as a residential contractor for ten years. Under the circumstances of this case, that would appear to be an appropriate action.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

12. In a three-count Administrative Complaint, the Pinellas County Construction Licensing Board seeks to discipline Respondent’s certification as a residential contractor alleging that by accepting money from Ms. Solano in payment for an addition to her home; and thereafter abandoning the project before it was completed, Respondent improperly abandoned a project before completion, forced a homeowner to again pay for materials for which she had paid Respondent, and was guilty of fraud, deceit, gross negligence, incompetency, or misconduct in the practice of contracting, in violation of Sections 24(2)(d),(h),(j), and (m), Chapter 75-498, Laws of Florida.

13. That provision has been incorporated in Section 489.129(h),(k),(m), or (n) Florida Statutes, which permits discipline of the license of a contractor who commits mismanagement or misconduct in the practice of contracting which causes financial harm to a customer, (h); abandons a project in which the contractor is engaged without just cause, (k); committing fraud or deceit in the practice of contracting, (m); or committing incompetency or misconduct in the practice of contracting, (n).

14. Petitioner bears the burden to establish Respondent’s

    guilt of the misconduct alleged by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). The evidence presented by the PCCLB is both clear and convincing that Respondent abandoned Ms. Solano’s project without just cause and before it was completed, and that such abandonment resulted in financial harm to her. As such, Respondent’s conduct constituted misconduct in the practice of contracting, and constitutes several violations of the cited statute.

15. Petitioner seeks to suspend Respondent’s certification for ten years. This is a permissible penalty for the offenses committed, and is provided for in Section 489.129(1), Florida Statutes.

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 suspending Respondent, Gary L. Walter’s, certification as a residential contractor in Pinellas County for a period of ten years.

DONE AND ENTERED this 31st day of December, 1998, in Tallahassee, Leon County, Florida.

_ ARNOLD H. POLLOCK

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) 921-6947

www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1998.

COPIES FURNISHED:

William J. Owens Executive Director

Pinellas County Construction Licensing Board

11701 Belcher Road

Suite 102

Largo, Florida 33773-5116

Gary L. Walters

7163 121st Way North Seminole, Florida 33772

Carl Brody, Esquire

Office of the County Attorney Pinellas County

315 Court Street Clearwater, Florida 34616

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: 98-003897

Orders for Case No: 98-003897