DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, ) CONSTRUCTION INDUSTRY LICENSING ) BOARD, )
vs. )
Respondent. )
Case No. 05-1496PL
Pursuant to notice, a final hearing was conducted on June 30, 2005, at Miami, Florida, before Administrative Law Judge Claude B. Arrington of the Division of Administrative Hearings (DOAH).
For Petitioner: Theodore R. Gay, Esquire
Whether Respondent, a licensed general contractor, committed the violations alleged in the three-count
Administrative Complaint filed by Petitioner and the penalties, if any, that should be imposed.
Petitioner’s Administrative Complaint alleged certain facts as to Respondent’s dealings with a homeowner, her mother, and an unlicensed contractor named Willie Muse, Jr. Based on those facts, Petitioner charged Respondent with the following Counts. Count I: violating Section 489.129(1)(d), Florida Statutes (2000),1 by assisting Mr. Muse engage in the unlicensed practice of contracting. Count II: Violating Section 489.127(4), Florida Statutes, by allowing an unlicensed contractor to use his license and applying for a building permit for which he had no contract. Count III: Violating Section 489.129(1)(j), Florida Statutes, by abandoning a project without justification.2
At the final hearing, Petitioner presented the testimony of Gloria McKinney (the homeowner) and Abdel Cedeno (an investigator employed by Petitioner). Petitioner presented 27 sequentially-numbered Exhibits, each of which was admitted into evidence. Respondent cross-examined Petitioner’s witnesses, but he offered no additional testimony and no exhibits. Respondent made a closing statement at the conclusion of the evidentiary portion of the final hearing.
The Transcript of the proceedings was filed July 11, 2005.
duly-considered by the undersigned in the preparation of this Recommended Order. Respondent did not file a Proposed
Recommended Order.
Respondent is the agency of the State of Florida with the responsibility to regulate building contracting.
At all times relevant to this proceeding, Respondent has been licensed as a certified general contractor, having been issued license number CG C058340 in 1996.
At all times relevant to this proceeding, Ms. McKinney owned and resided in a house (the House) in Opa Locka, Florida. Ms. McKinney’s mother, Mattie P. Mathis, also lived in the House.
In 2001, Ms. McKinney solicited bids for an addition she wanted to put on the House. Ms. McKinney and her mother, Ms. Mathis, planned to pay for the addition with life insurance proceeds on the life of Ms. Mathis’s deceased daughter
(Ms. McKinney’s sister).
On the recommendation of a colleague at her work, Ms.
McKinney asked Willie Muse, Jr., to bid on the work.
Based on the bids she received, Ms. McKinney hired Mr. Muse to construct the addition to the House. Ms. McKinney told Mr. Muse that she wanted all work to comply with all applicable permitting requirements and laws. Mr. Muse
represented to Ms. McKinney that he would get the necessary building permits and that the work would comply with all applicable laws.
On July 18, 2001, Ms. McKinney and Ms. Mathis entered into a written contract with Mr. Muse whereby Mr. Muse agreed to construct the addition for the sum of $45,000.00.
Mr. Muse has never been licensed as a general contractor in Florida. Ms. McKinney thought Mr. Muse was a licensed contractor and would not have entered into a contract with him if she had known that he was not licensed.
Pursuant to the contract, Ms. McKinney and Ms. Mathis paid Mr. Muse the following amounts on the following dates:
$6,000.00 on July 20, 2001; $7,500.00 on October 10, 2001; and
$13,500.00 on November 2, 2001; for a total of $27,000.00.
On or about August 21, 2001, Mr. Muse brought to
Ms. McKinney a building permit application form for her to sign. The application form had been filled out before Mr. Muse presented it to Ms. McKinney. Respondent was not present when Mr. Muse presented the form to Ms. McKinney. Respondent’s name, signature, and contractor’s license number appeared on the application form when Mr. Muse presented the form to
Ms. McKinney. Ms. McKinney signed the form on August 21, 2001.
Ms. McKinney saw Respondent’s name for the first time when she read the building permit application form. Prior to
that time, Ms. McKinney and Ms. Mathis had never known or heard of Respondent.
At all times relevant to this proceeding, Respondent knew that Mr. Muse was not a licensed contractor.
Mr. Muse submitted the building permit application form to the Miami-Dade County Building Department (Building Department), which issued a building permit for the work on the House on October 5, 2001.
Mr. Muse commenced working on the House in October 2001, but he never finished. After he received the payment in November 2001, Mr. Muse stopped working on the House for an extended period of time. During that time, Ms. McKinney attempted on several occasions to persuade Mr. Muse to resume work on the House.
Prior to stopping work on the House, Mr. Muse removed a portion of the roof of the existing structure, which exposed the interior of the House to the elements. That exposure resulted in extensive damages to the House, including the collapse of the kitchen ceiling from water intrusion.
By letter dated April 15, 2002, the Building Department advised Ms. McKinney that her building permit would expire in approximately 30 days.
That letter prompted Ms. McKinney to contact the Building Department, where she was told that Respondent was her
contractor, not Mr. Muse. Ms. McKinney secured information (from the face of the building permit) that enabled her to contact Respondent’s mother.3 That contact resulted in two meetings between Ms. McKinney and Respondent towards the end of April 2002.
During the first meeting, Ms. McKinney related to Respondent the history of the project, including the amounts that had been paid to Mr. Muse. She also showed him the work that had been done and the damages that had occurred.
During the second meeting, Mr. Muse was in attendance.
Ms. McKinney, Ms. Mathis, and Respondent reached a verbal understanding that was not reduced to writing. They agreed that Respondent would finish the work on the House for the unpaid balance of the contract price $45,000.00 less $27,000.00 paid to Mr. Muse, which equals $18,000.00.4 The parties agreed that Respondent would pay for labor and that Ms. McKinney and
Ms. Mathis would pay material suppliers directly and receive credit toward the contract price for such payments. The parties contemplated that Mr. Muse would perform most of the labor because of the monies he had already received.
On the basis of the verbal contract, Respondent resumed the work on the House.
On June 12, 2002, Respondent presented a draw request for $3,500.00 for electrical, plumbing, and roofing work that
had been performed. Ms. Mathis wrote Respondent a check in the amount of $3,500.00 for that work. Ms. McKinney was opposed to paying Respondent the sum of $3,500.00 because she believed he had not completed the work for which he was billing. Ms. Mathis paid that sum despite Ms. McKinney’s opposition.
At some undetermined time following June 12, 2002, Ms. McKinney told Respondent that she did not want Mr. Muse working on the House.
Respondent then asked to be paid in advance for work to be done on the House because he would have to pay his laborers. Ms. McKinney and Ms. Mathis would not agree to payment in advance.
In July 2002, the project was not complete and Respondent’s progress on the work on the House became unsatisfactory to Ms. McKinney. On October 14, 2002, Ms. McKinney filed a complaint against Respondent with
Petitioner, claiming, among other things, that Respondent had abandoned the project. Her complaint alleged that work ended on the project in July 2002.
At some undetermined time between June and October 2002, Ms. McKinney filed a criminal complaint against Mr. Muse, which resulted in criminal misdemeanor charges being filed against him in Miami-Dade County Court.
After she filed the criminal complaint against
Mr. Muse, Ms. McKinney told Respondent that she wanted to wait to proceed with the project until she knew what was going to happen with her criminal complaint.
In the criminal proceeding, the Court ordered Mr. Muse on April 11, 2003, to pay restitution to Ms. McKinney in the amount of $16,008.04, payable in monthly installments of
$300.00. On March 2, 2004, the Court reduced the amount of restitution to $4,000.00, payable in monthly installments of
$50.00 beginning April 1, 2004. As of the date of the final hearing in this proceeding, Mr. Muse had paid Ms. McKinney restitution in the total amount of $750.00.
As part of the criminal proceeding, Respondent was asked to give his opinion as to the value of the work completed by Mr. Muse and his estimated cost of completing the work. Respondent valued the work completed by Mr. Muse at $14,073.75 (labor and materials). Respondent estimated that it would cost
$22,200.00 to complete the project. Both estimates were dated March 23, 2003.
On October 1, 2003, Theodore R. Gay, Assistant General Counsel for Petitioner wrote Ms. McKinney the following letter pertaining to the complaint she had filed in October 2002:
The Legal Department has evaluated your complaint against the above named contractor [Respondent]. After reviewing the evidence
gathered during the investigation of the referenced matter, we have determined that in accordance with the rules and policies of the Construction Industry Licensing Board, this case is appropriately closed with the issuance of a Letter of Caution to the contractor.
Because this case has been dismissed without a finding of probable cause, the file will remain confidential and exempt from the public records.
On January 6, 2004, Ms. McKinney wrote Mr. Gay a letter that provided, in part, as follows:
This letter is a request to re-open the case [against Respondent] because as prior conversation (sic) when I spoke to you in late August 2003 or early September 2003, I informed you that Mr. Jones told me that he would help me as much as possible to complete the construction on my property.
Since your letter that stated you didn’t find any error on Mr. Jones’ behalf, I have not heard or seen him since October 2003, nor has any work been performed on my property. . . .
Respondent came back to the House after October 2003 and talked to Ms. McKinney about the work. Ms. McKinney told him that she would pay up to a total of $45,000.00 for the work, but that she would not pay above that figure. Because of the estimate Respondent provided in the criminal proceeding dated March 23, 2003, Ms. McKinney believed that Respondent wanted
$22,0000.00 to complete the work. However, Respondent never told her that he would not complete the work for a sum equal to
$45,000.00 less the sums that had already been paid.
Ms. McKinney would not pay Respondent for work until after the work was completed.
After Mr. Gay’s letter dismissing the complaint that Ms. McKinney had filed, Respondent did no further work on the House, but he did have further conversations about the project. Ms. McKinney and Respondent could not agree on payment terms for Respondent to complete the project.
Ms. McKinney testified that she did not fire Respondent. However, it is clear that she would not let Mr. Muse do further work on her house and she would not pay Respondent until after the work had been done. Ms. McKinney changed the terms of her verbal contract with Respondent by prohibiting Mr. Muse from working on the project.
In November 2003, Ms. McKinney and Ms. Mathis had an argument over the money that had been spent on the house.
Ms. McKinney talked to Respondent about his helping her obtain a mortgage on the house to pay for the balance of the work on the House. Ms. McKinney told Respondent that she did not want Respondent to ask her mother for any more money.
Ms. McKinney told Respondent that she would use him as the contractor to complete the work if she obtained the financing. Ms. McKinney was unable to get the financing due to the condition of the House.
The permits obtained by Respondent are still valid.
Ms. McKinney has hired various workers on her own in an effort to complete the work on the House. As of the final hearing, the work on the House had not been completed.
As of May 19, 2005, Petitioner’s costs of investigation and prosecution of this case, excluding costs associated with attorney time, totaled $920.29.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this case pursuant to Sections 120.569 and 120.57(1), Florida Statutes.
Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing
Co. v. Department of Agriculture and Consumer Services, 550 So. 2d 112 (Fla. 1st DCA 1989); and Inquiry Concerning a Judge, 645 So. 2d 398 (Fla. 1994). The following statement has been repeatedly cited in discussions of the clear and convincing evidence standard:
Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of
(sic) conviction, without hesitancy, as to the truth of the allegations sought to be established. Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).
Count I, and III of the Administrative Complaint alleges that Respondent violated the provisions of Section 489.129(1)(d) and (j), Florida Statutes, respectively, which provide as follows:
The board may take any of the following actions against any certificateholder or registrant: place on probation or reprimand the licensee, revoke, suspend, or deny the issuance or renewal of the certificate, registration, or certificate of authority, require financial restitution to a consumer for financial harm directly related to a violation of a provision of this part, impose an administrative fine not to exceed $5,000 per violation, require continuing education, or assess costs associated with investigation and prosecution, if the contractor, financially responsible officer, or business organization for which the contractor is a primary qualifying agent, a financially responsible officer, or a secondary qualifying agent responsible under
s. 489.1195 is found guilty of any of the following acts:
* * *
(d) Performing any act which assists a person or entity in engaging in the prohibited uncertified and unregistered practice of contracting, if the certificateholder or registrant knows or has reasonable grounds to know that the person or entity was uncertified and unregistered.
* * *
(j) Abandoning a construction project in which the contractor is engaged or under contract as a contractor. A project may be presumed abandoned after 90 days if the contractor terminates the project without just cause or without proper notification to the owner, including the reason for termination, or fails to perform work without just cause for 90 consecutive days.
Count II alleges a violation of Section 489.127(4), Florida Statutes, which provides as follows:
(4)(a) A certified or registered contractor, or contractor authorized by a local construction regulation board to do contracting, may not enter into an agreement, oral or written, whereby his or her certification number or registration number is used, or to be used, by a person who is not certified or registered as provided for in this chapter, or used, or to be used, by a business organization that is not duly qualified as provided for in this chapter to engage in the business, or act in the capacity, of a contractor.
A certified or registered contractor, or contractor authorized by a local construction regulation board to do contracting, may not knowingly allow his or her certification number or registration number to be used by a person who is not certified or registered as provided for in this chapter, or used by a business organization that is not qualified as provided for in this chapter to engage in the business, or act in the capacity of, a contractor.
A certified or registered contractor, or contractor authorized by a local construction regulation board to do contracting, may not apply for or obtain a building permit for construction work unless the certified or registered contractor, or contractor authorized by a local construction regulation board to do
contracting, or business organization duly qualified by said contractor, has entered into a contract to make improvements to, or perform the contracting at, the real property specified in the application or permit. This paragraph does not prohibit a contractor from applying for or obtaining a building permit to allow the contractor to perform work for another person without compensation or to perform work on property that is owned by the contractor. . . .
Petitioner established by clear and convincing evidence that Respondent violated the provisions of Section 489.129(1)(d), Florida Statutes, as alleged in Count I of the Administrative Complaint, by proving that Respondent signed a building permit at the behest of Mr. Muse. That signed application enabled Mr. Muse to obtain a building permit and to begin the work on the House.
The facts that established the violation of Count I also established the violation of Count II, the violation of Section 489.127(4), Florida Statutes. As Petitioner recognized in its Proposed Recommended Order, no separate penalty should be imposed for the violations found in Counts I and II.
Petitioner did not establish the violation of Section 489.125(1)(j), Florida Statutes (abandonment), alleged in
Count III of the Administrative Complaint. Although the work on the House is undoubtedly incomplete, it is concluded that the following actions by Ms. McKinney justified Respondent’s decision to stop work on the House. Ms. McKinney changed the
verbal contract between herself and Respondent by prohibiting Mr. Muse to work on the project. Ms. McKinney would not pay Respondent until after his work was completed. Ms. McKinney told Respondent to hold off on the work until after the criminal proceeding against Mr. Muse was resolved and thereafter filed a complaint against Respondent with Petitioner, alleging that he had abandoned the job. Ms. McKinney told Respondent not to ask her mother for money and that she would obtain a mortgage, which she was unable to do.
Florida Administrative Code Rule 61G4-17.001 sets forth the following disciplinary guidelines pertinent to this proceeding:
The following guidelines shall be used in disciplinary cases, absent aggravating or mitigating circumstances and subject to other provisions of this Chapter.
* * *
(d) Section 489.129(1)(d), F.S.:
Assisting unlicensed person to evade provision of Chapter 489, F.S. First violation $500 to $2,5000 fine . . .
* * *
(j) 489.129(1)(j), F.S.: Abandonment. First violation, $500 to $2,000 fine . . .
* * *
For any violation occurring after October 1, 1989, the board may assess the costs of investigation and prosecution. The assessment of such costs may be made in addition to the penalties provided by these
guidelines without demonstration of aggravating factors set forth in Rule 61G4- 17.002, F.A.C.
For any violation occurring after October 1, 1989, the board shall order the contractor to make restitution in the amount of financial loss suffered by the consumer. Such restitution shall be ordered in addition to the penalties provided by these guidelines upon demonstration of aggravating factors set forth in subsection 61G4- 17.002(1), F.A.C., and to the extent that such order does not contravene federal bankruptcy law.
The absence of any violation from this Chapter shall be viewed as an oversight, and shall not be construed as an indication that no penalty is to be assessed. The Guideline penalty for the offense most closely resembling the omitted violation shall apply.
Section 455.227, Florida Statutes, provides, in pertinent part, as follows:
When the board, or the department when there is no board, finds any person guilty of the grounds set forth in subsection (1) or of any grounds set forth in the applicable practice act, including conduct constituting a substantial violation of subsection (1) or a violation of the applicable practice act which occurred prior to obtaining a license, it may enter an order imposing one or more of the following penalties:
Refusal to certify, or to certify with restrictions, an application for a license.
Suspension or permanent revocation of a license.
Restriction of practice.
Imposition of an administrative fine not to exceed $5,000 for each count or separate offense.
Issuance of a reprimand.
Placement of the licensee on probation for a period of time and subject to such conditions as the board, or the department when there is no board, may specify. Those conditions may include, but are not limited to, requiring the licensee to undergo treatment, attend continuing education courses, submit to be reexamined, work under the supervision of another licensee, or satisfy any terms which are reasonably tailored to the violations found.
Corrective action.
(3)(a) In addition to any other discipline imposed pursuant to this section or discipline imposed for a violation of any practice act, the board, or the department when there is no board, may assess costs related to the investigation and prosecution of the case excluding costs associated with an attorney's time. . . .
The undersigned finds that Ms. McKinney and Ms. Mathis have suffered monetary damages caused by the actions of Mr. Muse for which they have not received restitution. Mr. Muse would not have been able to take advantage of Ms. McKinney and
Ms. Mathis had it not been for Respondent’s violations set forth in Counts I and II. A court of competent jurisdiction has set those damages in the amount of $4,000.00, and has ordered
Mr. Muse to pay restitution in that amount.5 Because Respondent’s misconduct made Mr. Muse’s misconduct possible, Respondent should be made jointly and severally liable with Mr. Muse for the damages Mr. Muse caused, less the amount already paid by Mr. Muse.
Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order that adopts the Findings of Facts and Conclusions of Law set forth in this Recommended Order. It is further recommended that the Final Order:
DONE AND ENTERED this 10th day of August, 2005, in Tallahassee, Leon County, Florida.
CLAUDE B. ARRINGTON
Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 2005.
1/ Unless otherwise indicated, all statutory references are to Florida Statutes (2001), but there have been no applicable statutory changes between 2001 and the date of this Recommended Order. All rule references are to the version of the rule printed in the Florida Administrative Code as of the date of this Recommended Order.
2/ The foregoing is intended to be a brief summary of the Administrative Complaint. Any question concerning the Administrative Complaint should be resolved by reading that pleading in its entirety.
3/ Respondent was residing in his mother’s house and used that address as his business address. Ms. McKinney went to that address and asked his mother to have Respondent get in touch with her. Respondent thereafter promptly contacted Ms.
McKinney.
4/ On April 25, 2002, Respondent executed a Partial Release of Lien which released any claim he might have on the $27,000.00 that had been paid to Mr. Muse.
5/ The undersigned has rejected Petitioner’s calculation of the amount of restitution because of the Court’s determination that
$4,000.00 is the appropriate amount of restitution from Mr. Muse.
Leroy Jones, Jr.
Theodore R. Gay, Esquire Department of Business and
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.
