The Issue 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.
Findings Of Fact 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.
Recommendation 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: Find Respondent guilty of the violation alleged in Count I of the Administrative Complaint and impose against him an administrative fine in the amount of $2,500.00; Find Respondent guilty of the violation alleged in Count II of the Administrative Complaint, but impose no additional administrative fine for that violation; Find Respondent not guilty of the violation alleged in Count III of the Administrative Complaint; Order that Respondent be jointly and severally liable to Ms. McKinney and Ms. Mathis with Mr. Muse for restitution in the amount of $4,000.00, minus $750.00 paid by Mr. Muse; and Order Respondent to pay costs of investigation and prosecution of this matter in the amount of $920.29. DONE AND ENTERED this 10th day of August, 2005, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 10th day of August, 2005.
