09-000174 Department Of Business And Professional Regulation, Construction Industry Licensing Board vs. Page Wurts, D/B/A Page Home Builders, Inc.
 Status: Closed
Recommended Order on Monday, April 6, 2009.


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Summary: Contractor failed to properly supervise resulting in the collapse of homeowner`s ceiling.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF BUSINESS AND )

13PROFESSIONAL REGULATION, )

16CONSTRUCTION INDUSTRY LICENSING )

20BOARD, )

22)

23Petitioner, )

25)

26vs. ) Case No. 09-0174

31)

32PAGE WURTS, d/b/a PAGE HOME BUILDERS, INC., )

40)

41)

42Respondent. )

44)

45RECOMMENDED ORDER

47Pursuant to notice, a final hearing was held in this case

58on March 11, 2009, in St. Petersburg, Florida, before Susan B.

69Harrell, a designated Administrative Law Judge of the Division

78of Administrative Hearings.

81APPEARANCES

82For Petitioner: Kyle Christopher, Esquire

87Department of Business and

91Professional Regulation

931940 North Monroe Street, Suite 42

99Tallahassee, Florida 32399-2202

102For Respondent: No appearance.

106STATEMENT OF THE ISSUES

110The issues in this case are whether Respondent violated

119Subsections 489.129(1)(n) and 489.129(1)(m), Florida Statutes

125(2005), 1 and if so, what discipline should be imposed.

135PRELIMINARY STATEMENT

137On December 3, 2008, Petitioner, Department of Business and

146Professional Regulation (Department), filed a two-count

152Administrative Complaint against Respondent, Page Wurts, d/b/a

159Page Home Builders, Inc. (Respondent), alleging that Respondent

167had violated Subsections 489.129(1)(n) and 489.129(1)(m),

173Florida Statutes, in the construction of an addition to a

183residential structure located in Belleair, Florida. Respondent

190requested an administrative hearing.

194The case was forwarded to the Division of Administrative

203Hearings on January 13, 2009, for assignment to an

212administrative law judge to conduct the final hearing. The case

222was originally assigned to Administrative Law Judge R. Bruce

231McKibben, but was transferred to Administrative Law Judge Susan

240B. Harrell to conduct the final hearing.

247Respondent was provided notice of the final hearing

255scheduled to commence at 9:30 a.m. on March 11, 2009, in

266St. Petersburg, Florida. At 9:30 a.m., Respondent had not

275appeared for the final hearing nor had any representative of

285Respondent appeared. The commencement of the final hearing was

294delayed until 10:00 a.m. to give Respondent an opportunity to

304appear, but neither Respondent nor a representative of

312Respondent appeared for the final hearing.

318At the final hearing, the Department presented the

326following witnesses: Trudy Capone, Fred Hawes, and John Bosley.

335Petitioner’s Exhibits A through I were admitted in evidence.

344The Transcript was filed on March 16, 2009. The parties

354were given ten days after the filing of the Transcript to file

366proposed recommended orders. The Department filed Petitioner’s

373Proposed Recommended Order on March 27, 2009. Respondent did

382not file a proposed recommended order. Petitioner’s Proposed

390Recommended Order has been given due consideration in the

399preparation of this Recommended Order.

404FINDINGS OF FACT

4071. Page Wurts is a Florida State Certified Residential

416Contractor, whose license number is CRC 1327279. His initial

425date of licensure was July 12, 2004, and his licensure expires

436on August 31, 2010.

4402. Page Home Builders, Inc. has a Certificate of Authority

450as a Contractor Qualified Business in the State of Florida. The

461license number is QB 32526. The initial date of licensure was

472July 12, 2004, and the certificate of authority expires on

482August 31, 2009. Page Wurts is the primary qualifying agent for

493Page Home Builders, Inc.

4973. On September 9, 2005, Page Home Builders, Inc., entered

507into a contract with Trudy Capone for $112,000.00 to build,

518among other things, an addition to her home located at 1005

529Verona Street, Belleair, Florida. On September 24, 2005,

537Ms. Capone and Page Home Builders, Inc. amended the contract to

548include the installation of a swimming pool and the renovation

558of a bathroom, including the replacement of the tub. The

568contract amount was increased by $37,700.00. On December 13,

5782005, Ms. Capone and Page Home Builders, Inc., agreed to a

589change order for additional windows, increasing the contract

597amount by $3,200.00. On January 5, 2006, Ms. Capone and Page

609Home Builders, Inc., entered into a second amendment to the

619contract to include the installation of an air conditioning

628system, and the extension of the truss system over the patio, to

640be supported by columns. This amendment increased the contract

649amount by $19,485.00, bringing the total contract amount to

659$169,185.00. Page Home Builders, Inc. accepted approximately

667$153,265.00 on the contract. Ms. Capone agreed to credit Page

678Home Builders, Inc., with $1,084.50.00 for half the cost of a

690claw foot tub, which Page Home Builders, Inc., purchased.

6994. Subcontractors hired by Page Home Builders, Inc., cut

708several existing trusses without supporting the ceiling below

716and without approval of the architect, causing the ceiling of

726Ms. Capone’s home to collapse, damaging the floor, furniture,

735and other property of Ms. Capone. The collapsed ceiling nearly

745stuck Ms. Capone. As a result of the collapse, Ms. Capone was

757trapped in her house for approximately 30 minutes until she

767could be extricated.

7705. The hardwood floors were improperly installed. There

778were numerous gaps between butt and side joints with some in

789excess of 1/8 of an inch. There was glue smeared over the

801finished surfaces. Thresholds and reducers were missing. There

809is an area in the family room where butt joints are nearly

821aligned instead of being randomly staggered. Additional

828floating of the floors should have been done prior to the

839installation of the wood flooring, especially at the arched

848opening between the living room and hallway. The flooring color

858is mismatched where it transitions from the living room to the

869existing hall and bedrooms.

8736. John Bosley, an expert in construction, is of the

883credible opinion that due to the poor workmanship on the project

894Ms. Capone’s house was destroyed and made unlivable. The fit

904and finish of the work was some of the worst work that he has

918ever seen. Mr. Bosley is of the opinion that the poor work

930resulted from a lack of supervision of the subcontractors by the

941contractor. Mr. Bosley’s testimony is credited.

9477. It will cost over $50,000 to correct the poor

958workmanship. In a letter to the Department dated April 24,

9682008, Page Wurts acknowledged that Ms. Capone was entitled to a

979credit of $650.00 for stucco and damage to plants and trellis.

990The difference between the credit to Ms. Capone for stucco and

1001plant damage and the amount owed to Page Home Builders, Inc.,

1012for the tub is $434.50, bringing the total contract amount to

1023$169,619.50. Ms. Capone made contract payments of $153,265.00,

1033leaving $16,354.50 remaining unpaid on the contract. By

1042subtracting the remaining contract amount from $50,000.00, which

1051is the cost of repair, the amount owed to Ms. Capone to remedy

1064the shoddy work is $33,645.50.

10708. The Department incurred investigative costs in this

1078case, excluding costs associated with attorney’s time, in the

1087amount of $477.52.

1090CONCLUSIONS OF LAW

10939. The Division of Administrative Hearings has

1100jurisdiction over the parties to and the subject matter of this

1111proceeding. §§ 120.569 and 120.57, Fla. Stat. (2008).

111910. The Department has the burden to establish the

1128allegations in the Administrative Complaint by clear and

1136convincing evidence. Department of Banking and Finance v.

1144Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996). The

1155Department has alleged that Respondent violated Subsections

1162489.129(1)(m) and 489.129(1)(n), Florida Statutes, which

1168provide:

1169(1) The board may take any of the following

1178actions against any certificate holder or

1184registrant: place on probation or reprimand

1190the licensee, revoke, suspend, or deny the

1197issuance or renewal of the certificate,

1203registration, or certificate of authority,

1208require financial restitution to a consumer

1214for financial harm directly related to a

1221violation of a provision of this part,

1228impose an administrative fine not to exceed

1235$10,000 per violation, require continuing

1241education, or assess costs associated with

1247investigation and prosecution, if the

1252contractor, financially responsible officer,

1256or business organization for which the

1262contractor is a primary qualifying agent, a

1269financially responsible officer, or a

1274secondary qualifying agent responsible under

1279s. 489.1195 is found guilty of any of the

1288following acts:

1290* * *

1293(m) Committing incompetency or misconduct

1298in the practice of contracting.

1303(n) Committing gross negligence, repeated

1308negligence, or negligence resulting in a

1314significant danger to life or property.

132011. The Department alleged in the Administrative Complaint

1328that Respondent violated Subsections 489.129(1)(m) and

1334489.129(1)(n), Florida Statutes, by cutting several existing

1341trusses, causing damage to Ms. Capone’s property and by

1350improperly installing hardwood floors in Ms. Capone’s home. As

1359a result of Respondent’s failure to supervise the subcontractors

1368on the job, Ms. Capone’s home was rendered unlivable.

137712. Although Page Wurts did not personally cut the trusses

1387or install the hardwood floors, he is the qualifying agent for

1398Page Home Builders, Inc., and has a statutory duty to supervise

1409projects entered into under his license. Gatwood v. McGee , 475

1419So. 2d 720, 723 (Fla. 1st DCA 1985); Hunt v. Department of

1431Professional Regulation , 444 So. 2d 997, 999 (Fla. 1st DCA 1983);

1442Alles v. Department of Professional Regulation , 423 So. 2d 624,

1452625 (Fla. 5th DCA 1982).

145713. In Alles , the court reasoned that:

1464The obvious purpose of [Chapter 489, Part I,

1472Florida Statutes] allowing a company to act

1479as a contractor through a licensing

1485contractor is to insure that projects

1491undertaken by a company are to be supervised

1499by one certified and licensed by the board.

1507To allow a contractor to be the “qualifying

1515agent” for a company without placing any

1522requirement on the contractor to exercise any

1529supervision over the company’s work done

1535under his license would permit the contractor

1542to loan or rent his license to the company.

1551This would completely circumvent the

1556legislative intent that an individual,

1561certified as competent, be professionally

1566responsible for supervising construction work

1571on jobs requiring a licensed contractor.

1577Id.

157814. The Department has established the allegations in the

1587Administrative Complaint by clear and convincing evidence.

1594Respondent was responsible for the negligent cutting of several

1603trusses, which damaged Ms. Capone’s property, and improperly

1611installing the hardwood floors. Respondent violated Subsections

1618489.129(1)(m) and 489.129(1)(n), Florida Statutes.

162315. There were many other examples of negligence in the

1633performance of the work at the Capone residence and of

1643incompetency in the work that was performed. However, those

1652instances were not alleged in the Administrative Complaint and

1661cannot form a basis for discipline. See Marcelin v. Department

1671of Business and Professional Regulation , 753 So. 2d 745 (Fla.

16813rd DCA 2000); Ghani v. Department of Health , 714 So. 2d 1113

1693(Fla. 1st DCA 1998).

169716. Florida Administrative Code Rule 61G4-17.001 sets

1704forth the disciplinary guidelines for the Construction Industry

1712Licensing Board. The penalty range for a violation of

1721Subsection 489.129(1)(m), Florida Statutes, ranges from a $1,000

1730fine and probation or suspension to a $5,000 fine and probation

1742or suspension. The penalty range, absent aggravating or

1750mitigating circumstances, for a violation of Subsection

1757489.129(1)(n), Florida Statutes, ranges from a $1,000 fine to a

1768$3,000 fine and probation, suspension, or revocation.

177617. Florida Administrative Code Rule 61G4-17.002 sets

1783forth aggravating and mitigating circumstances to be considered

1791in determining an appropriate disciplinary action and provides:

1799Circumstances which may be considered for

1805the purposes of mitigation or aggravation of

1812penalty shall include, but are not limited

1819to, the following:

1822(1) Monetary or other damage to the

1829licensee’s customer, in any way associated

1835with the violation, which damage the

1841licensee has not relieved, as of the time

1849the penalty is to be assessed. (This

1856provision shall not be given effect to the

1864extent it would contravene federal

1869bankruptcy law.)

1871(2) Actual job-site violations of

1876building codes, or conditions exhibiting

1881gross negligence, incompetence, or

1885misconduct by the licensee, which have not

1892been corrected as of the time the penalty is

1901being assessed.

1903(3) The danger to the public.

1909(4) The number of complaints filed

1915against the licensee.

1918(5) The length of time the licensee has

1926practiced.

1927(6) The actual damage, physical or

1933otherwise, to the licensee’s customer.

1938(7) The deterrent effect of the penalty

1945imposed.

1946(8) The effect of the penalty upon the

1954licensee’s livelihood.

1956(9) Any efforts at rehabilitation.

1961(10) Any other mitigating or aggravating

1967circumstances

196818. There are aggravating factors in the instant case.

1977Ms. Capone suffered physical damage to her property as a result

1988of the negligence of Respondent. The ceiling of her home

1998collapsed, rendering her home uninhabitable. It will cost over

2007$50,000 to correct the poor work.

2014RECOMMENDATION

2015Based on the foregoing Findings of Fact and Conclusions of

2025Law, it is RECOMMENDED that a final order be entered finding

2036that Respondent violated Subsections 489.129(1)(m) and

2042489.129(1)(n), Florida Statutes, imposing a $10,000 fine,

2050revoking Respondent’s certification (License Nos. CRC 1327279

2057and QB 32526), requiring Respondent to pay restitution to

2066Ms. Capone in the amount of $33,645.50, and requiring Respondent

2077to pay investigative costs of 477.52.

2083DONE AND ENTERED this 6th day of April, 2009, in

2093Tallahassee, Leon County, Florida.

2097S

2098SUSAN B. HARRELL

2101Administrative Law Judge

2104Division of Administrative Hearings

2108The DeSoto Building

21111230 Apalachee Parkway

2114Tallahassee, Florida 32399-3060

2117(850) 488-9675

2119Fax Filing (850) 921-6847

2123www.doah.state.fl.us

2124Filed with the Clerk of the

2130Division of Administrative Hearings

2134this 6th day of April, 2009.

2140ENDNOTE

21411/ Unless otherwise indicated, all references to the Florida

2150Statutes are to the 2006 version.

2156COPIES FURNISHED :

2159G. W. Harrell, Executive Director

2164Construction Industry Licensing Board

2168Department of Business and

2172Professional Regulation

2174Northwood Centre

21761940 North Monroe Street

2180Tallahassee, Florida 32399-0792

2183Ned Luczynski, General Counsel

2187Department of Business and

2191Professional Regulation

2193Northwood Centre

21951940 North Monroe Street

2199Tallahassee, Florida 32399-0792

2202Kyle Christopher, Esquire

2205Department of Business &

2209Professional Regulation

22111940 North Monroe Street, Suite 42

2217Tallahassee, Florida 32399-2202

2220Page Wurts

2222Page Home Builders, Inc.

22265400 First Avenue North

2230St. Petersburg, Florida 33710

2234NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2240All parties have the right to submit written exceptions within

225015 days from the date of this Recommended Order. Any exceptions

2261to this Recommended Order should be filed with the agency that

2272will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 04/06/2009
Proceedings: Recommended Order
PDF:
Date: 04/06/2009
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 04/06/2009
Proceedings: Recommended Order (hearing held March 11, 2009). CASE CLOSED.
PDF:
Date: 03/27/2009
Proceedings: Petitioner`s Proposed Recommended Order filed.
Date: 03/18/2009
Proceedings: Transcript of Proceedings filed.
Date: 03/11/2009
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 03/06/2009
Proceedings: Notice of Transfer.
PDF:
Date: 02/26/2009
Proceedings: Petitioner`s List of Exhibits filed.
PDF:
Date: 01/21/2009
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 01/21/2009
Proceedings: Notice of Hearing (hearing set for March 11, 2009; 9:30 a.m.; St. Petersburg, FL).
PDF:
Date: 01/14/2009
Proceedings: Unilateral Response to Initial Order filed.
PDF:
Date: 01/13/2009
Proceedings: Initial Order.
PDF:
Date: 01/13/2009
Proceedings: Election of Rights filed.
PDF:
Date: 01/13/2009
Proceedings: Administrative Complaint filed.
PDF:
Date: 01/13/2009
Proceedings: Agency referral filed.

Case Information

Judge:
SUSAN BELYEU KIRKLAND
Date Filed:
01/13/2009
Date Assignment:
03/06/2009
Last Docket Entry:
04/06/2009
Location:
St. Petersburg, Florida
District:
Middle
Agency:
Department of Business and Professional Regulation
 

Counsels

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