STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY CONSTRUCTION ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) Case No. 00-1110

)

DARYL R. GILBERT, )

)

Respondent. )

)

RECOMMENDED ORDER

On July 25, 2000, a formal hearing was held in this case in Largo, Florida, before Lawrence P. Stevenson, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: William J. Owens, Executive Director

Pinellas County Construction Licensing Board

11701 Belcher Road

Largo, Florida 34643-5116 For Respondent: No appearance

STATEMENT OF THE ISSUES

Whether Respondent committed the offenses alleged in the Administrative Complaint and, if so, what penalty should be imposed against his glass and glazing specialty contractor's license.

PRELIMINARY STATEMENT

On or about March 3, 2000, Petitioner, Pinellas County Construction Licensing Board, filed an Administrative Complaint against Respondent, Daryl R. Gilbert, alleging in three counts that he violated Section 24(2)(d),(h),(i),(j), and (m), Chapter 89-504, Laws of Florida.

Count One alleges that Respondent contracted with the owner of a house to provide and install doors, accepting a deposit therefor. The owner called within three days to cancel the order, but Respondent refused to refund the deposit or complete the job. Count Two alleges that Respondent contracted with the owner of a house to install two door systems. Respondent attempted to install the doors and found they did not fit.

Respondent then abandoned the project and refused to refund the down payment he had received from the owner. Count Three alleges that Respondent contracted with a house owner to replace a sliding glass door with a set of French doors, performed the work, and was paid in full. The French doors began to rot in less than nine months, and Respondent refused to remedy the defects. Petitioner alleges that each count establishes a violation of Section 24(2)(h), Chapter 89-504, Laws of Florida, and that the violations cumulatively establish violations of the other provisions listed above.

Respondent denied the allegations contained in the Administrative Complaint and requested a formal hearing. By

letter dated March 8, 2000, the matter was referred to the Division of Administrative Hearings to conduct a formal proceeding. The case was originally assigned to Administrative Law Judge J. Lawrence Johnston, but was transferred to the undersigned prior to hearing.

At the hearing, Petitioner presented the testimony of Bill Freer. Petitioner's Exhibits A through C were offered and received into evidence. Respondent did not appear at the hearing. By order dated July 28, 2000, the undersigned allowed Respondent ten days to make any filing or response in his own defense that he deemed appropriate. Respondent filed nothing.

The hearing was recorded but not transcribed. Neither party submitted a proposed recommended order.

FINDINGS OF FACT

1. At all times pertinent to these proceedings, Respondent was a certified glass and glazing specialty contractor, having been issued License No. C-7715. Respondent was the qualifying contractor for Windows 2000 Insulated Replacement Windows and Doors in Pinellas Park, Florida.

2. On or about August 28, 1999, Respondent entered into an agreement with Bill Freer for two sets of French doors and accepted a deposit of $1,498. Within three days, Mr. Freer called Respondent's business to cancel the order and request a refund of his deposit.

3. Respondent refused Mr. Freer's request, citing the fact that he had a signed contract for the doors and that he had already paid a commission to the salesperson. Mr. Freer pointed out to Respondent that the contract expressly allowed him to cancel within three business days of its execution, but Respondent still refused to refund the deposit.

4. Mr. Freer spent several fruitless weeks being handed back and forth between Respondent and his salesperson in his efforts to obtain the refund of his deposit. Mr. Freer ultimately filed a complaint with the Pinellas County Department of Consumer Protection, which referred the matter to Petitioner.

5. In summary, Respondent refused to refund the deposit, but also took no steps to complete the contract, abandoning the job and pocketing the $1,498 deposit.

6. On or about August 30, 1999, Respondent contracted with Kim Derks, a state licensed contractor, to furnish and install two sets of French doors in a house being built by Mr. Derks' company. Mr. Derks gave Respondent a down payment of $856.40 on a contract price of $2,212.80.

7. On September 29, 1999, Respondent's company went to the house to install the French door units. The doors were the wrong size.

8. Respondent then abandoned the work, despite repeated efforts by Mr. Derks to allow Respondent to make good on the contract.

9. In summary, Respondent abandoned the job and refused to refund the down payment he received.

10. On or about February 15, 1999, Respondent contracted with John Butler to replace a sliding glass door in Mr. Butler's house with a set of French doors. The contract price was $540, and Mr. Butler paid it in full at the time the contract was executed.

11. Respondent completed the work in February 1999. Some time in September 1999, Mr. Butler noticed that the wood on the exterior of the doors was beginning to rot. Mr. Butler and his wife repeatedly phoned Respondent's business, but received a constant runaround, compounded by the fact that Respondent moved the business and changed its name during this period.

12. After more than a month, Respondent finally went to Mr. Butler's house to look at the doors. Respondent told Mr.

    Butler that the doors were never finished, but that there was no warranty on the doors. Respondent told Mr. Butler that he was no longer the owner of the business, and would have to check with the new owner to see if there was anything that could be done.

    Respondent never contacted Mr. Butler again.

    
    

13. In summary, Respondent performed substandard work in installing the French doors, and refused to remedy the defects thereof or otherwise make good on his contract with the house owner.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding pursuant to Sections 120.57(1) and 120.68(8), Florida Statutes.

15. Petitioner, Pinellas County Construction Licensing Board, is statutorily empowered to discipline the licenses of roofing and general contractors based upon any of the grounds enumerated in Section 24, Chapter 89-504, Laws of Florida.

16. Respondent, as a licensed glass and glazing specialty contractor, is subject to disciplinary guidelines of Section 24, Chapter 89-504, Laws of Florida.

17. Petitioner has the burden to establish the misconduct of the Respondent by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris vs. Turlington, 510 So. 2d 292 (Fla. 1987).

18. Petitioner alleges that Respondent is guilty of violating the following provisions of Section 24(2), Chapter 89- 504, Laws of Florida:

    (d) Willfully or deliberately disregarding and violating the applicable building codes or laws of the state, this board, or of any municipality or county of this state;

    
    

    * * *

    
    

    (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 to 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.

    * * *

    
    

    1. Being disciplined by any municipality or county for an act or violation of this part, which discipline shall be reviewed by the board before the board takes any disciplinary action of its own.

       
       

    2. Failing in any material respect to comply with the provisions of this part.

    
    

    * * *

    
    

    (m) Being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.

    
    

19. Petitioner established by clear and convincing evidence the allegations contained in Counts One, Two, and Three of the Administrative Complaint. Respondent's conduct constitutes a violation of Section 24(2)(d),(h),(j), and (m), Chapter 89-504, Laws of Florida, as alleged in the Administrative Complaint. Petitioner offered no evidence of prior discipline by a municipality or county, and thus did not establish that

    Respondent violated Section 24(2)(i), Chapter 89-504, Laws of Florida.

20. Petitioner is authorized to suspend certificate holders from all operations as contractors; suspend or revoke certificates; impose administrative fines not to exceed

$1,000.00; require restitution; and impose reasonable investigative and legal costs. Chapter 89-504, Section 24, Laws of Florida, and Chapter 93-387, Section 24, Laws of Florida.

RECOMMENDATION

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

RECOMMENDED that the Pinellas County Construction Licensing Board enter a final order finding Respondent, Daryl R. Gilbert, guilty of violating Section 24(2)(d),(h),(j), and (m), Chapter 89-504, Laws of Florida; imposing an administrative fine of

$1,000; and suspending Respondent from all operations as a contractor until such time as he makes full restitution to Bill Freer in the amount of $1,498, to Kim Derks in the amount of

$2,212.80, and to John Butler in the amount of $540.

DONE AND ENTERED this 11th day of August, 2000, in Tallahassee, Leon County, Florida.

LAWRENCE P. STEVENSON

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 11th day of August, 2000.

COPIES FURNISHED:

William J. Owens, Executive Director Pinellas County Construction

Licensing Board 11701 Belcher Road

Largo, Florida 34643-5116

Daryl R. Gilbert 990 Donegan Road

Largo, Florida 33771

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: 00-001110

Orders for Case No: 00-001110