Findings Of Fact Petitioner Albert Heisler is a residential air conditioning contractor licensed by Respondent Department of Professional Regulation, Construction Industry Licensing Board, an agency of the State of Florida. Petitioner is the qualifying agent for Residential Air Conditioning Corporation, which had fewer than 25 full-time employees and a net worth of less than two million dollars when charges were brought against Petitioner by Respondent. Further, at the time charges were brought, Petitioner's principal and only office was in Miami, Dade County, Florida, and his net worth was less than two million dollars. Petitioner had no employees who were not employees of the corporation. On July 24, 1986, Respondent filed an Administrative Complaint against Petitioner, seeking to take disciplinary action against Petitioner and his certified air conditioning contractor's license for alleged statutory violations arising from air conditioning work performed for June Davidson. On November 10, 1986, the Administrative Complaint was forwarded by Respondent to the Division of Administrative Hearings, pursuant to Petitioner's request for a formal hearing. The Administrative Complaint was assigned DOAH Case No. 86-4431. In compliance with the parties' request for hearing dates, on January 21, 1987, that case was scheduled for final hearing on February 16, 1987. On February 11, 1987, Petitioner filed with the Division of Administrative Hearings its Notice of Voluntary Dismissal Without Prejudice. On August 25, 1987, Respondent issued what it called an Amended Administrative Complaint against the Petitioner based upon the same facts related to the job performed for June Davidson. Although the Amended Administrative Complaint alleged additional statutory violations based upon the same set of facts, the Amended Administrative Complaint is the same "cause of action" as the Administrative Complaint previously dismissed by Respondent. The Amended Administrative Complaint was forwarded by Respondent to the Division of Administrative Hearings on October 9, 1987, and was assigned DOAH Case No. 87- 4452. The formal hearing on the Amended Administrative Complaint was conducted by the' undersigned on January 14, 1988, and a Recommended Order was issued by the undersigned on March 10, 1988. The Recommended Order entered in DOAH Case No. 87-4452 recommended dismissal of the Amended Administrative Complaint for three distinct reasons. First, the Construction Industry Licensing Board failed to determine probable cause prior to the filing of the Amended Administrative Complaint in accordance with the mandates of Kibler v. Department of Professional Regulation, 418 So.2d 1081 (Fla. 1982). Second, the Department of Professional Regulation failed to prove that the person signing the Amended Administrative Complaint had been delegated the authority to do so by the agency head who was statutorily authorized to do so. Third, the allegations contained within the Amended Administrative Complaint were not well-founded and were not proven. Thirty-three days later, on April 13, 1988, the Department filed Exceptions to that Recommended Order. On May 12, 1988, the Construction Industry Licensing Board met and adopted the Recommended Order entered in DOAH Case No. 87-4452. The Board failed to enter a Final Order at that time. On July 8, 1988, Petitioner Albert Heisler filed with the Division of Administrative Hearings his Application for Award of Attorneys Fees and Costs. That Application was filed pursuant to the Florida Equal Access to Justice Act and contained the allegations required by that statute. The Application also alleged that the Board had failed to enter a Final Order within 90 days of the entry of the Recommended Order as required by Section 120.59, Florida Statutes. Thirty-eight days later, the undersigned entered an Order holding that the time by which the Department of Professional Regulation, Construction Industry Licensing Board, was required to respond in order to dispute the allegations contained in the Application as mandated by Rule 22I-6.035, Florida Administrative Code, had passed and, therefore, the allegations contained within the Application and its supporting documentation were deemed uncontroverted. That Order further noted that no final order had yet been filed. That Order further permitted Petitioner Albert Heisler 60 days in which to file a copy of the final order in order to complete the record in this cause. Ten days later, on August 25, 1988, Respondent Department of Professional Regulation, Construction Industry Licensing Board, filed a Motion for Reconsideration and/or Motion to Dismiss alleging that Petitioner Albert Heisler was not yet a "prevailing party" since no final order had yet been issued by the Construction Industry Licensing Board and no final order was attached to the Application for Award of Attorneys Fees and Costs. The Motion further alleged that the final order resulting from the Board's meeting of May 12, 1988, was incorrect on some matter and was rescinded by the Board. This allegation appears to have been false. On September 13, 1988, the Motion for Reconsideration and/or Motion to Dismiss was denied. Despite the efforts of Petitioner's attorneys and Respondent's attorneys in this cause to obtain a copy of the final order, their efforts were thwarted by the fact that the Construction Industry Licensing Board failed to enter a Final Order in DOAH Case No. 87-4452 until October 26, 1988. Petitioner Albert Heisler filed a copy of that Final Order in this cause on November 1, 1988. The Final Order entered by the Board on October 26, 1988, does not purport to be an amended final order nor does it represent that a previous final order was entered and vacated. Rather, the Final Order adopted the Findings of Fact contained in the Recommended Order, adopted the Conclusions of Law contained within the Recommended Order except where they were in contradiction with the Exceptions filed by the Department of Professional Regulation, adopted in toto the Exceptions filed by the Department, and dismissed the Administrative Complaint filed against Albert Heisler. The Exceptions state that the Department of Professional Regulation did not take exception to the recommendation that the case against Albert Heisler be dismissed, but that the Department was objecting to certain findings and conclusions of facts and law "as a matter of principle." The Recommended Order concluded, in accordance with general rules of statutory construction (an area in which the Construction Industry Licensing' Board has no special expertise), failure to prove a violation of a specific provision precludes finding a violation of a general provision for conduct prohibited by the specific provision. The Exceptions argue that a violation of a specific provision can also be a violation of a general provision, an argument which is legally correct, but irrelevant to the Recommended Order. Second, the Exceptions objected to the findings and conclusions in the Recommended Order that the probable cause proceedings were deficient and that the person signing the Amended Administrative Complaint had no authority to execute that document. While the Exceptions clothed those deficiencies as technical niceties, those deficiencies are jurisdictional, and the law related to them is not within the special expertise of the Construction Industry Licensing Board. The Prehearing Stipulation filed in DOAH Case No. 87-4452 raised as an issue the failure of the Construction Industry Licensing Board to determine probable cause before it filed the Amended Administrative Complaint in that cause. At the final hearing, the transcript of the probable cause panel was introduced in evidence by Albert Heisler. The Recommended Order contained findings of fact that the probable cause panel "rubber-stamped" the prosecutor's recommendation and failed to consider the presence or absence of probable cause. The Recommended Order further found that the Department of Professional Regulation failed to offer any evidence to controvert Heisler's evidence that the probable cause proceeding was of no legal effect. Based upon those findings of fact, the Recommended Order concluded that case law required dismissal of the Amended Administrative Complaint. Similarly, the Recommended Order contained factual findings that the Amended Administrative Complaint was signed by someone other than the agency head. Although that issue was set forth in the prehearing stipulation, the Department which has the burden of proof in any disciplinary proceeding, failed to offer any evidence indicating that authority to issue administrative complaints had been delegated by the Secretary of the Department of Professional Regulation to anyone else. The Exceptions which were legally incorrect were incorporated in the Final Order entered in DOAH Case No. 87-4452. Yet, the Final Order adopted the Findings of Fact contained in the Recommended Order without reservation, and none were modified to form a basis for approving the Exceptions. After the Final Order entered in DOAH Case No. 87-4452 was filed in this cause by Petitioner Albert Heisler on November 1, 1988, the undersigned requested a telephonic prehearing conference to address the status of this cause and the course of future proceedings in this cause. That telephonic conference call was conducted on November 18, 1988. Pursuant to the agreements and arguments of the parties during that telephonic conference, an Order was entered on November 21, 1988, establishing a deadline of December 9 for the submittal of proposed final orders in this cause. Both Petitioner and Respondent filed proposed final orders in this cause on December 9, 1988. On December 15, 1988, Attorney Stockwell on behalf of Petitioner Heisler filed correspondence with the Division of Administrative Hearings which reads, substantially, as follows: This office has received a copy of Respondent's Proposed Final Order in the above-referenced matter. Respondent raises therein for the first time an objection to the manner in which proof was adduced on the value of services rendered. Even during our phone conference on the future proceedings desired by the parties, Respondent did not raise any objection to the proof on the amount of attorney fees or request a hearing on the award. Nevertheless, Petitioner is agreeable to presenting live testimony directed to the value of the legal representation, if you wish to allow Respondent this opportunity. Accordingly, by Notice of Hearing dated January 9, 1989, this cause was scheduled for formal hearing on March 20, 1989, on the sole issue of the reasonableness of attorney's fees and costs sought by Petitioner Albert Heisler. At the final hearing, Petitioner Heisler appeared with documentary evidence and witnesses to testify as to the reasonableness of an award of attorney's fees and costs in this matter. The Department of Professional Regulation appeared with no witnesses and no evidence to offer. Rather, the Department stipulated that the services rendered and itemized in Petitioner's Exhibit numbered 1 in this cause were necessary and reasonable, that Heisler's attorneys' hourly rates are reasonable, that the fees were incurred by Heisler and Heisler is responsible for payment of those fees, and that the costs sought to be reimbursed by Heisler were reasonably and necessarily incurred. Petitioner Albert Heisler's arrangement with his attorneys calls for Heisler to pay his attorneys based upon an hourly rate, as a minimum, but further provides that his attorneys would be paid any amount awarded to them as a reasonable attorney's fee. No evidence of any appeal from the Final Order entered in DOAH Case No. 87-4452 has been submitted, and the time for appeal has expired. There is no circumstance which would make the award sought herein unjust. The disciplinary actions of the Department of Professional Regulation and the Construction Industry Licensing Board initiated and prosecuted against Petitioner were substantially unjustified. Petitioner Albert Heisler is a prevailing small business party. According to the itemized affidavit of Petitioner's attorneys which reveals the nature and extent of the services rendered as well as the costs incurred, Attorney Turner has expended 58.75 hours for which Petitioner Heisler has agreed to pay him $150 per hour. Forty-three and one-half of those hours were for services performed after August 25, 1987. Attorney Stockwell has expended 70.05 hours on behalf of Petitioner Heisler for which he has agreed to pay to her the sum of $100 per hour. Of the 70.05 hours, 61.3 hours were for services performed after August 25, 1987. Although 74.05 total hours were claimed on behalf of Attorney Stockwell, an examination of the itemized breakdown of services rendered shows that four of those hours for services performed after August 25, 1987, are not reimbursable, since 1.5 hours of Stockwell's time was clearly related to a different matter involving Petitioner Heisler and since 2.5 hours reflect the initials of persons other than Attorneys Turner and Stockwell, and no evidence was presented to indicate that DKM or CAB are attorneys who rendered legal services. A computation of the number of hours of legal services subsequent to August 25, 1987, times the hourly rate produces the sum of $12,655. Additionally, Petitioner's Exhibit numbered 1 reveals costs in the amount of $686.90 as of May of 1988, and costs in the additional amount of $122.90 as of the time of the final hearing in this cause. No evidence was offered in support of the criteria established by case law and embodied in Rule 4-1.5(B), Rules Regulating the Florida Bar, for establishing an award of reasonable attorney's fees. Accordingly, a reasonable amount for attorney's fees and costs in this matter is $13,464.80, which is based upon the hourly rate for services rendered after August 25, 1987, plus the total of the costs incurred.
The Issue Respondent was charged in a November 19, 1998, Administrative Complaint, filed December 7, 1998, with ten counts of professional violations. The statutory violations alleged are: Count I: Section 489.129(1)(a), Florida Statutes (1995), obtaining a certificate or registration as a Certified Roofing Contractor by fraud or misrepresentation; Count II: Section 489.129(1)(h)2, Florida Statutes (1995), by committing mismanagement or misconduct in the practice of contracting that caused financial harm to a customer; Count III: Section 489.129(1)(k), Florida Statutes (1995), by abandoning a construction project in which the contractor is engaged or under contract as a contractor; Count IV: Section 489.129(1)(m), Florida Statutes (1995), by committing fraud or deceit in the practice of contracting; Count V: Section 489.129(1)(n), Florida Statutes (1995), by committing incompetency or misconduct in the practice of contracting; Count VI: Section 489.129(1)(p), Florida Statutes (1995), by proceeding on a job without obtaining the applicable local building department plumbing permits and inspection; Count VII: Section 489.129(1)(p), Florida Statutes (1995), by proceeding on a job without obtaining the applicable local building department electrical permits and inspection; Count VIII: Section 489.129(1)(p), Florida Statutes (1995), by proceeding on a job without obtaining the applicable local building department framing, insulation, and/or final inspections; Count IX: Section 489.129(1)(o), Florida Statutes (1995), by committing gross negligence, repeated negligence, or negligence resulting in a significant danger to life or property; and Count X: Section 389.129(1)(c), Florida Statutes (1995), by violating any provision of Chapter 455, to wit, Section 455.227(1)(o), practicing beyond the scope permitted by law and performing professional responsibilities the licensee knows, or has reason to know, he is not competent to perform.
Findings Of Fact At all times material to the allegations of the Administrative Complaint, Respondent was a Certified Residential Contractor, having been issued license number CR C057235, by the Florida Construction Industry Licensing Board. At the time of hearing, Respondent's license had been suspended. Since January 27, 1998, Respondent also has been a Certified Roofing Contractor, having been issued license number CC C057649, by the Florida Construction Industry Licensing Board. At no time material was Respondent licensed, registered, or certified to perform electrical work. At no time material was Respondent licensed, registered, or certified to perform plumbing work. On or about February 27, 1997, Respondent entered into a $39,050.40, contract with Reuben M. Adams to restore and repair the Adamses' home at 7037 Mark Street in Jacksonville, Florida, which had been destroyed by fire on February 1, 1997. The work contracted-for included complete restoration of the living room, kitchen, two hallways, two bathrooms, four bedrooms, a laundry room, and a dining room; restoration of heat and air conditioning; and a virtually new roof. Among the electrical and plumbing restoration involved, Respondent specifically agreed to install a ceiling fan and a light kit in the living room; install a sink and faucet for the sink and a ceiling light fixture and vented range hood in the kitchen; install a ceiling light fixture in a hallway; remove floor mounted with tank commode and reinstall a floor mounted with tank commode; replace commode sink, remove and reinstall sink, install new faucet for the sink, install shower head and faucet set for bathtub, install bathroom exhaust fan and light kit for ceiling fan in the bathroom; install ceiling fan and light kit in bedrooms; replace faucet for sink and provide a shower head, faucet set and install a ceiling light fixture in the second bathroom; install a ceiling fan and light kit in the third and fourth bedrooms and dining room and hallway; install 960 square foot electrical and provide temporary utilities for dimensions of 40 feet by 24 feet by eight feet. These types of activities require electrical and plumbing licensure. On or about April 15, 1997, Respondent received and endorsed the first draw check of $22,245.23 from the Adamses. In May 1997, Respondent's site supervisor, Aaron Mitchell, requested that Mr. Adams give him $1500.00, cash to buy materials because Respondent was out of town and Mitchell could not perform the work without the materials. Mr. Adams paid this amount in cash to Mr. Mitchell but was never reimbursed by either Mr. Mitchell or Respondent. In early June 1997, the Adamses became concerned because little work had been completed on the restoration of their home. The house had been cleaned out and gutted and the slab for the room addition had been poured. Mr. Adams contacted Respondent several times about the lack of work being performed on the home. Between mid-June and early July 1997, Respondent completed the framing and installed the roof. On or about July 24, 1997, the Adamses released the second draw of $11,122.62 to Respondent, and Respondent deposited the money into his bank account. In approximately August 1997, Respondent ran electrical wire in the roof, installed electrical outlets in the walls, and completed the electrical work, including installing electrical outlets in the walls. Mr. Adams personally observed Respondent and his workers performing electrical wiring. The electrical work performed by Respondent required licensure as an electrical contractor, that a permit be obtained prior to the electrical work being performed, and that inspections of the electrical work be made before the walls were sealed up over the electrical work. Respondent failed to obtain a permit or to have an electrical inspection performed. Respondent completed the electrical work and covered up the electrical work with the walls without an inspection being performed. Respondent performed plumbing work on the Adamses' home, although he held no plumbing license. Respondent failed to pull a permit for the plumbing work and failed to call for the required inspections. Ultimately, he covered up the plumbing work with the walls without an inspection having been performed. The City of Jacksonville "red-tagged" the home for this reason. The effect of "red-tagging" was to prevent occupancy until compliance with the building code was assured. Such assurance required inspection, which in turn, ultimately required that at least the interior walls be taken down. Respondent also never obtained a framing, insulation or final inspection on the project. In October 1997, the Adamses filed complaints against the Respondent with the State Attorney's Office and the Department of Business and Professional Regulation (Case No. 97-18544). On or about October 31, 1997, Respondent signed a Letter of Intent with Mr. and Mrs. Adams agreeing to have their home ready for occupancy no later than December 1, 1997, and promising that Respondent would be responsible for all permits and inspections necessary for the project to be considered complete. At that time, Respondent apologized for all of the delays, the decline in their relationship, and the stress he had caused. Respondent and Mrs. Adams prayed together, and Respondent promised that from that day forward, the Adamses would see progress on their home every day until it was finished. Respondent did not abide by the requirements set forth in the Letter of Intent. Specifically, he never obtained the required permits and inspections. Mr. Adams confronted Respondent about the permits and the inspections, and the Respondent indicated that he had the permits at his office. He assured Mr. Adams that he was taking care of the electrical permit. In December 1997, Respondent requested that Mr. and Mrs. Adams drop their complaint with Petitioner Department of Business and Professional Regulation because he had applied for his roofing license and the complaint was holding up that roofing license being granted. Respondent told the Adamses that if they would drop their complaint, he could obtain his roofing license, which would allow him to generate money to complete their project. Around mid-January 1998, Respondent requested that the Adamses release the final construction draw and drop their complaints with Petitioner and the State Attorney. Respondent stated that if they paid him the final draw of $5,682.55, he would work every day on their project and have it ready for them to move in no later than February 4, 1998. The Adamses paid Respondent the remaining construction draw of $5,682.55, and withdrew their complaint with Petitioner. Respondent accepted the final draw on or about January 27, 1998. Respondent obtained his roofing license after the Adamses withdrew their complaint with Petitioner. After receiving the final construction draw, Respondent did minimal work on the project in January. On or about February 23, 1998, the Adamses reinstated their complaint with Petitioner against Respondent, resulting in the instant case. Respondent has not returned to work on the Adamses' project since March 1998. As of March 1998, Respondent had been paid the full contract price, but the home remained uninhabitable. The workmanship was substandard and the project was less than 100 percent complete. As a result of Respondent's unlicensed electrical and plumbing work on the Adamses' home and his covering-up his work with the walls, the Adamses were unable to obtain an inspection without the walls being taken down. This in turn, required that the walls be rebuilt. In addition to the money paid to Respondent for work improperly done or not done at all, the Adamses had to pay another builder $14,900.00, to remove the walls, re-install the electrical wiring and plumbing which had been completed or partially completed by the Respondent, and complete the renovation. Testimony of Roy Brand, Raymond Smith, and Douglas Arnold supports a finding that Respondent committed repeated negligence and created a dangerous condition when he performed electrical and plumbing work which he was not licensed to do and which he did not have the knowledge to perform. Particularly upon the testimony of Mr. Brand, it is clear that three types of very serious electrical installation errors or omissions had been performed once or more than once by Respondent. At least one of these would have been sufficient, under certain circumstances, to burn down the entire house. By installing electrical universal polyethylene boxes and using them as junction boxes, a purpose for which they were not designed, Respondent created what Mr. Brand described as "short of a 'Molotov Cocktail' that would burn your house down just about as quick." Likewise, one serious error occurred in the type of glue Respondent used on plumbing pipe throughout the home. Mr. Brand gave credible expert evidence that the construction undertaken by Respondent was undertaken for a reasonable amount of $39,050.40, and that a reasonable time to construct the entire contract would have been two and one half to three months after permitting. In addition to the money Mr. and Mrs. Adams paid to Respondent and the substitute contractor, Douglas Arnold, they incurred additional expenses and spent additional time out of their home as a result of Respondent's shoddy workmanship and unlicensed electrical and plumbing work. The Adamses also had to take out a second mortgage of $18,800.00 at 16.3 percent interest for 15 years in order to finance the repairs necessitated by Respondent's substandard and incompetent work, so that they could move back into their home. Mr. and Mrs. Adams and their child had to live somewhere during construction. Their insurance company paid them $750.00, for each of three months. However, they were unable to move back into their home from August 1997 until November 1998, as a direct result of Respondent's incompetence and misconduct.3 During this fifteen-month period, the Adamses paid $300.00 rent per month to Mrs. Adams' mother, plus an additional $100.00 per month for water and utilities, and storage fees of $119.00 per month to a storage facility for keeping their items which had not been destroyed by the fire The Adamses also incurred an additional expense of $1,500.00, for an air conditioning unit which Respondent was to have purchased under their contract with him.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board enter a final order that: Finds Respondent guilty of one violation of each of the following: Sections 489.129(1)(h)(2); (1)(k); (1)(m); (1)(n); (1)(p); (1)(o); and (1)(c), Florida Statutes (1995); Revokes Respondent's General Contractor's and Roofing Contractor's licenses; Imposes a total fine for all violations, in the amount of $30,000.00; and Requires Respondent to pay restitution to Mr. and Mrs. Adams in the amount of $49,835.00. DONE AND ENTERED this 1st day of May, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 1st day of May, 2000.
The Issue Whether Respondent's license as a certified general contractor should be suspended or revoked or the licensee otherwise disciplined for alleged violations of Chapter 489, Florida Statutes as set out in the January 18, 1984 Administrative Complaint. Petitioner presented the oral testimony of Louis P. Gilner, Peter Max Christianson, Jr., Catherine M. Edwards, John Owen Thompson, Jack W. Rainford, and Annie Gilner and had admitted in evidence Petitioner's exhibits 1, 3, 4, 5, 6, 7, 7A, 7B, 8, 9, 10, 11, 12 and 13. Exhibit 2 is clearly hearsay and inadmissible but has be considered as a stipulation of counsel and is discussed under the Conclusions of Law as a jurisdictional argument of counsel. Neither Respondent nor Chester A. Trow, Esquire appeared for formal hearing. Petitioner filed transcript of the proceedings November 14, 1985 and proposed findings of Fact and Conclusions of Law on November 18, 1985, and waived time for entry of this recommended Order. These proposals have been considered in this recommended Order and are ruled upon in the Appendix hereto.
Findings Of Fact Respondent, Patton N. Roberts, is a certified general contractor, license number CG C015023 and qualifying agent for Roberts Construction and Development, Inc. Although Respondent failed to renew his license in June, 1985, and his license is now on inactive status, it can be renewed at any time before June 1988 by payment of late renewal fee. In June 1982, Respondent entered into a contract for $68,242.00 with Louis Gilner to construct home in Putnam County, Florida. The charges against Respondent arise out of the use of the funds associated with construction of this home pursuant to contract. On June 30, 1982, Respondent obtained Putnam County building permit #6107 for the construction. Respondent commenced construction and completed the home to the dry-in stage by approximately early August 1982. Mr. Gilner paid Respondent a $50.00 deposit and two "draw" payments of $20,472.00 each, making total payments to Respondent of $40,995.00. These "draws" against the total amount of $62,242.00 which was contracted-for were paid on July 20, 1982 and August 5, 1982, respectively. Approximately July 15, 1982, Respondent ordered trusses for the Gilner residence from Landmark Truss, Inc. The trusses were delivered on July 23, 1982. Respondent failed to pay for the trusses, although he had received the draw payment for the trusses. Landmark Trusses, Inc. filed a lien on the Gilner residence for $2,490.00. On July 9, 1982, Respondent ordered 16 loads of fill dirt for the Gilner residence from Chesser & Strickland Sand Co., Inc. The Respondent's failure to pay $950.00 for the dirt and the labor in spreading it resulted in a lien being filed against the Gilner property for that amount. Mr. Jack Rainford testified that Respondent subcontracted the heating and air conditioning work to A-1 Air and A-1 plumbing for $5,806.00 ($3,550 plumbing and $2,556 air conditioning); that Respondent paid A-1 Air and A-1 Plumbing the first draw on the plumbing in the amount of $1,128.00 on August 17, 1982; that the Gilners had, on January 3, 1983, paid A-1 Air and A-1 Plumbing $1,128.00 on the air and $1,183.34 on the plumbing, and that Respondent has failed to pay $1,183.34 on the plumbing and $1,128.00 on the air conditioning. No matter how these figures are worked, they do not fairly support Mr. Rainford's conclusion that Respondent only owes A-1 $1,183.34 plus $1,12800. It is more mathematically logical that the original total owed was $6,106.00; the Respondent paid $1,128.00 on August 17, 1982 reducing the remaining amount to $5,806.00; thereafter Mr. and Mrs. Gilner, on January 3, 1983, paid A-1 $1,128.00 for the air conditioning work and $1,183.34 for the plumbing package and that Respondent actually owes the Gilners $2,311.34 for their having to pay twice, and owes A-1 $3,464.66; which is the balance of A-1's bill after all payments the Respondent and the Gilners have been deducted. However, the undersigned will accept Mr. Rainford's unrefuted testimony that Respondent owes A-1 only $1,128.00 plus $1,183.34 for a total of only $2,311.34. On or about September 6, 1982, Gilner terminated Respondent for lack of progress toward completion. At that date of termination the Respondent and his crew had been absent from the premises for five to six weeks. At the time of the Respondent's termination, the project was, by Mr. Gilner's estimation, only 40 percent completed. Although the predicate for Mr. Gilner's knowledge in this regard is less than might normally be characterized as "expert" testimony, it is still credible and based on Mr. Gilner's testimony concerning his usual employment as an installer of traffic controls involving other construction projects, and in conjunction with the testimony of Mrs. Gilner, his estimation that the extent of the household construction total led only 40 percent is accepted for purposes of this finding of fact. At this stage, based on the draws paid. 60 percent of the construction should have been completed by Respondent. The Gilners both testified that they completed the home after Respondent's termination at a total cost of $82,000, or $14,000 over the contract price. There is no evidence to support the actual amount paid or what it was paid for, nor is there any evidence to establish what relationship there may have been between Respondent's behavior and the increased cost. Although Mrs. Gilner testified that there was some misinstallation of the trusswork and that rain had damaged the roof prior to Respondent's final termination, this information, without more, will not support the $14,000 figure. Approximately August 25, 1982, in a conversation with Catherine Edwards, an employee of Landmark Truss, Respondent had explained that the reason he had not paid the Landmark Truss bill was because he had elected to use the draws he had received from the Gilners to buy some lots upon which to build ""spec" (speculation) Respondent stated to Ms. Edwards that he originally intended to get the lots "subordinated" but due to the early death of an elderly man up north, he had had to use the (5) Gilner draws to buy his lots and was awaiting profit from the speculation homes to pay landmark Trusses bill. Because this conversation occurred after Landmark Trusses had served its Notice of Claim on Mrs. Gilner, the undersigned construes this conversation to be an admission against interest by Respondent and draws the inference there from that failure of Respondent to pay the other necessary owed costs from the draws received from the Gilners resulted from the same misapplication of draw funds as Respondent described to Ms. Edwards.
Recommendation That the Construction Industry Licensing Board enter a final order providing that Respondent's certified general contractor's license shall be suspended for a five year period with the provision that the suspension shall be lifted after one year upon the Respondent providing proof to the Construction Industry Licensing Board that he has made restitution of $2,311.34 to the Gilners, $2,490.00 to Landmark Trusses, Inc., $950.00 to Chesser & Strickland Sand Co., and $2,311.34 to A-1 Air and A-1 Plumbing. DONE and ORDERED this 20th day of December 1985 in Tallahassee Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1985. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-2857 Petitioner's Proposed Findings of Fact: Accepted. Accepted Accepted. Accepted. Accepted. Accepted. Accepted Accepted. Accepted. Accepted. Accepted but expanded to conform to the evidence as a whole. Accepted but expanded to conform to the evidence as a whole. Rejected as not supported by the competent substantial evidence in the record as a whole. Accepted but rephrased to reflect the competent substantal evidence in the record as a whole. COPIES FURNISHED: Mr. James Linnan Executive Director Construction Industry Licensing Board P. O. Box 2 Jacksonville, Florida 32202 Mr. Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Salvatore A. Carpino General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Chester A. Trow, Esquire P. O. Box 1450 Ocala, Florida 32678 Patton N. Roberts 2442 Jackson Street Hollywood, Florida 33202
