STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, ) CONSTRUCTION INDUSTRY LICENSING ) BOARD, )

)

Petitioner, )

)

vs. ) Case Nos. 01-3479PL

) 01-3480PL

FRED T. GARRETT, III, ) 01-3481PL

)

Respondent. )

)

RECOMMENDED ORDER

The parties having been provided proper notice, Administrative Law Judge John G. Van Laningham of the Division of Administrative Hearings convened and completed a formal hearing of this matter in Fort Lauderdale, Florida, on December 18, 2001.

APPEARANCES

For Petitioner: Patrick L. Butler,

Assistant General Counsel Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

For Respondent: No Appearance

STATEMENT OF THE ISSUES

The issues are whether Respondent committed the several violations of Sections 489.129(1)(h)2.,(h)3.,(j),(k), and (n), Florida Statutes (1997), for the reasons stated in the respective Administrative Complaints and, if so, what, if any, penalties should be imposed. (All chapter and section

references are to Florida Statutes (1997) unless otherwise stated.)

PRELIMINARY STATEMENT

On January 10, June 13, and September 20, 2000, respectively, Petitioner filed three Administrative Complaints against Respondent, initiating DPBR Case Nos. 99-05380 (“the St. Cyr case”), 98-23085 (“the Forney case”), and 99-02187 (“the Kong case”). Respondent timely requested an administrative hearing as to all three complaints, and the matters were duly transmitted to the Division of Administrative Hearings (“DOAH”). At DOAH, the individual cases were consolidated for final hearing.

At the hearing, Petitioner presented the testimony of three witnesses: Warren Forney, Shek Kong, and Douglas Frankow. In addition, Petitioner successfully moved 32 exhibits into evidence. Despite having received notice, Respondent did not appear at the final hearing.1

A final hearing transcript was filed on January 7, 2002.

Petitioner timely filed its proposed recommended order on January 8, 2002. The undersigned carefully considered, and was assisted by, Petitioner’s thorough proposed recommended order.

Respondent did not file any post-hearing papers, despite being notified of his right to do so by Order of Post-Hearing Instructions dated December 20, 2001.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for regulating the practice of contracting. Respondent is licensed as a certified general contractor pursuant to license number CG C059414.

2. At all relevant times, Respondent was the qualifying agent for Fred T. Garrett Construction, Inc. ("FTG"). As the qualifying agent, Respondent was responsible for all of FTG's contracting activities in accordance with Section 489.1195, Florida Statutes.

3. Respondent failed to obtain a certificate of authority for Fred T. Garrett Construction, Inc., as required by Section 489.119(2), Florida Statutes.

   The St. Cyr Case

4. On or about August 21, 1998, Respondent entered into a contract with Louis L. St. Cyr to construct an addition to the residence located at 201 South Bel Air Drive, Plantation, Florida. The contract price was $50,000.

5. Although Mr. St. Cyr paid $2,500 to Respondent, Respondent failed to commence work and canceled the project, thereby abandoning it without just cause and without proper notification to Mr. St. Cyr.

6. The contract did not permit Respondent to keep the

   $2,500 paid by Mr. St. Cyr, and Respondent failed to refund the payment within 30 days after abandonment. Out of the

   $2,500 he received from Mr. St. Cyr, however, Respondent paid

   $1,600.00 to the architect before abandoning the project. Thus, the net amount that Respondent owes to Mr. St. Cyr is

   $900.

7. Petitioner incurred a total of $1,092.28 in investigative costs relating to the St. Cyr case.

   The Forney Case

8. On May 22, 1998, Respondent, who was doing business as FTG, entered into a contract with Mr. Warren Forney for the construction of a two-bedroom, one-bath addition to the residence located at 1698 Northeast 33rd Street, Oakland Park, Florida. The contract price was $32,500.

9. The contract with Mr. Forney did not contain a written statement explaining the customer’s rights under the Construction Industries Recovery Fund, as required by Section 489.1425(1), Florida Statutes.

10. On July 7, 1998, Respondent obtained permit number 98-050297 from the Oakland Park Building Department.

11. Construction commenced on or about July 7, 1998, and continued sporadically until October 29, 1998, when Mr. Forney dismissed Respondent for failure to timely complete the project.

12. The Oakland Park Building Department issued notices of violation against the project on August 3, September 11, and October 14, 1998, for various building code violations.

13. Mr. Forney was forced to obtain a homeowner’s permit and subsequently hired a subcontractor to complete the work.

14. Mr. Forney paid Respondent approximately $29,250 before relieving Respondent of his duties. To complete the project, Mr. Forney paid a total of $48,746.52, which was

    $15,396.52 over and above the original contract price.

15. Petitioner incurred a total of $2,190.78 in investigative costs relating to the Forney case.

    The Kong Case

16. In or around January 1998, a contractor named Lakeview Concepts hired Respondent to perform demolition work for the Kong dry cleaning store project on the property located at 5171 South University Drive, Davie, Florida.

17. On or about June 17, 1998, permit 98-00002349 was issued to Respondent to perform alterations on commercial property located at 5171 South University Drive, Davie, Florida. Respondent, however, did not yet have a contract with the owner for this work.

18. The next month, on or about July 30, 1998, Respondent, who was doing business as FTG, entered into a contract with Shek Kong to complete the dry cleaning store project at 5171 South University Drive, Davie, Florida, for the contract price of $22,300.

19. Shek Kong made payments to Respondent totaling

    $16,000. Respondent’s work was of poor quality, however, and on or about November 6, 1998, he ceased work, though the project had not been completed.

20. On or about November 14, 1998, Douglas Frankow, license number CB C052960, gave Mr. Kong an estimate of

    $20,562 to complete the project. Thereafter, on or about June 30, 1999, Mr. Kong contracted with George Settergren, another licensed contractor, to complete the project for a contract price of $27,956.

21. On December 9, 1999, in Case No. 98-020065 08, the Circuit Court, Seventeenth Judicial Circuit, Broward County, Florida, rendered a Final Judgment against Respondent and in favor of Mr. Kong. This judgment awarded Mr. Kong the total amount of $28,693.30, plus 10 percent interest per annum.

22. Petitioner incurred a total of $2,502.78 in investigative costs relating to the Kong case.

    CONCLUSIONS OF LAW

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

24. 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). Petitioner satisfied its burden of proof.

25. In all three cases, Petitioner demonstrated that Respondent is subject to discipline under Section 489.129(1)(j), Florida Statutes, for violating a provision of

    Chapter 489, Part I, namely, Section 489.119(2), Florida Statutes. Specifically, Respondent failed to obtain a certificate of authority, also known as a qualified business license, for Fred T. Garrett Construction, Inc.

26. In the St. Cyr case, Petitioner proved that Respondent violated both Section 489.129(1)(k), Florida Statutes (abandoning a construction project), and Section 489.129(1)(h)3., Florida Statutes (mismanagement causing financial harm to costumer). Respondent committed these offenses by performing no work on the St. Cyr project and by failing to refund to Mr. St. Cyr the monies not applied towards expenditures required for the project, i.e. the sum of

    $900.

27. In the Forney case, Petitioner showed Respondent to be guilty of mismanagement in the practice of contracting causing financial harm to a customer, in violation of Section 489.129(1)(h)3., Florida Statutes. Specifically, due to unreasonable delays, Respondent was discharged, and Mr. Forney was compelled to pay $15,396.52 in excess of the contract price to complete the project. Further, Respondent failed, in the construction contract, to notify the customer of the Construction Industries Recovery Fund, a violation of Section 489.1425(1), Florida Statutes, that is disciplinable under Section 489.129(1)(j), Florida Statutes. Finally, Respondent committed misconduct or incompetency in the practice of

    contracting due to the various building code violations occurring during his work on the Forney project.

28. In the Kong case, Petitioner showed that Respondent violated Section 489.127(4)(c), Florida Statutes, by obtaining a permit for a project prior to having entered into a construction contract for that project; this makes him subject to discipline under Section 489.129(1)(j), Florida Statutes. Further, Respondent abandoned the project, in violation of Section 489.129(1)(k), Florida Statutes, by ceasing all work and failing to perform any work for at least 90 days——indeed, no work at all after the time of abandonment. Finally, Respondent committed misconduct or incompetency in the practice of contracting, in violation of Section 489.129(1)(n), Florida Statutes, due to the poor quality of the work.

29. The Florida Construction Industry Licensing Board

    (the "Board") is authorized to place Respondent's license on probation and to impose fines, investigative costs, and restitution as discipline against Respondent.

30. For a first offense of mismanagement causing financial harm, Rule 61G4-17.001(8), Florida Administrative Code, authorizes the Board to impose a fine of $750 to $1,500 and/or to place Respondent's license on probation. For a first offense regarding failure to obtain a certificate of authority (qualified business license), Rule 61G4- 17.001(10)(i) recommends that no fine or penalty be imposed.

    For a first offense of failing to notify customers of the Construction Industries Recovery Fund, Rule 61G4-17.001(10)(j) authorizes the Board to impose a fine of $100 to $500. For a first offense of abandonment, Rule 61G4-17.001(11) authorizes the Board to impose a fine of $500 to $2,000. For a first offense of misconduct or incompetency, Rule 61G4- 17.001(14)(d)3. authorizes the Board to impose a fine of $250 to $1,000 and/or probation.

31. Altogether, for the violations for which fines can be imposed, there are: two violations of Section 489.129(1)(h), mismanagement causing financial harm; two violations of Section 489.129(1)(j) related to the Construction Industries Recovery Fund notice; one additional violation of Section 489.129(1)(j), due to obtaining a permit before having a contract; two violations of Section 489.129(1)(k), due to abandonment; and two violations of Section 489.129(1)(n), misconduct.

32. Pursuant to Section 489.129(1), Florida Statutes, and Rule 61G4-17.001(21), Florida Administrative Code, the Board may require Respondent to pay restitution in the amounts of financial loss suffered by the customers.

33. Finally, in addition to all of the above, the Board may assess investigative costs pursuant to Section 489.129(1), Florida Statutes, and Rule 61G4-17.001(20), Florida Administrative Code.

34. Aggravating factors that are properly considered in determining the appropriate penalty include financial harm to the customers, see Rule 61G4-17.002(1), Florida Administrative Code, and the number of complaints filed against the licensee, in this case, three, see Rule 61G4-17.002(6).

RECOMMENDATION

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

RECOMMENDED that the Florida Construction Industry Licensing Board enter a Final Order finding Respondent guilty of violating Sections 489.129(1)(h)2., (h)3., (j), (k), and (n), Florida Statutes, imposing administrative fines in the aggregate amount of $3,700, assessing investigative costs in the aggregate amount of $5,785.84, placing Respondent's license on probation for a period of four years from the date the Final Order is entered by the Board, and awarding payment of restitution to each customer as follows: (1) to Warren Forney, the amount of $15,396.52; (2) to Shek Kong, satisfaction of the unpaid civil judgment in the amount

$28,693.30, plus 10 percent interest accrued thereon; and (3) to Louis L. St. Cyr, the amount of $900.

DONE AND ENTERED this 15th day of February, 2002, in Tallahassee, Leon County, Florida.

_________________________________ JOHN G. VAN LANINGHAM

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 15th day of February, 2002.

ENDNOTE

1/ During the preparation of this Recommended Order, it was discovered that Mr. Garrett’s mailing address is 617 South Rainbow Drive, Hollywood, Florida 33021. Mr. Garrett’s address of record in these consolidated cases omitted the word “South,” and hence all previous notices and orders were sent to Mr. Garrett at 617 Rainbow Drive, Hollywood, Florida 33021.

The file, however, reflects that none of the papers sent to Mr. Garrett was returned as undeliverable. Further, by letter to Judge Sartin dated October 31, 2002, Mr. Garrett requested a continuance of the final hearing from its originally scheduled date of November 5, 2001, until December 18, 2001, which request was granted. This suggests that Mr. Garrett in fact had been receiving papers in these cases. Finally, on the day of the final hearing, telephone messages were left for Mr. Garrett at his phone number of record. The undersigned is not aware that Mr. Garrett ever responded to these messages.

In sum, it appears that Mr. Garrett had actual notice of the final hearing. If, however, this is not the case, Mr. Garrett should promptly bring the issue to the agency’s attention.

COPIES FURNISHED:

Suzanne Lee, Executive Director Construction Industry Licensing Board Department of Business and

Professional Regulation 1940 North Monroe Street Northwood Centre

Tallahassee, Florida 32399-0792

Hardy L. Roberts, III, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Patrick L. Butler, Assistant General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Fred T. Garrett, III 617 South Rainbow Drive

Hollywood, Florida 33021

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: 01-003480PL

Orders for Case No: 01-003480PL