09-002123 Department Of Business And Professional Regulation, Construction Industry Licensing Board vs. John William Barker, Jr., D/B/A Epic Building And Development Corp. Status: Closed Recommended Order on Tuesday, July 21, 2009.

Summary: Petitioner proved, by clear and convincing evidence that Respondent committed mismanagement and abandoned the job while constructing the house. Recommend a fine, restitution; suspension.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

CONSTRUCTION INDUSTRY LICENSING )

BOARD, )

)

Petitioner, )

)

vs. ) Case No. 09-2123

)

JOHN WILLIAM BARKER, JR., d/b/a EPIC BUILDING AND DEVELOPMENT )

CORP., )

)

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held before

Daniel M. Kilbride, a duly-designated Administrative Law Judge

of the Division of Administrative Hearings, on May 28, 2009, in

Fort Myers, Florida.

APPEARANCES

For Petitioner: Sorin Ardelean, Esquire

Assistant General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399

For Respondent: John William Barker, Jr., pro se

7400 Nalle Grade Road

North Fort Myers, Florida 33917

STATEMENT OF THE ISSUES

Whether disciplinary action should be taken against

Respondent’s license to practice contracting, license number

CGC 060878, based on violations of Subsection 489.129(1),

Florida Statutes (2005) 1 , as charged in the three-count

Administrative Complaint filed against Respondent in this

proceeding.

Whether Respondent violated Subsection 489.129(1)(g)2.,

Florida Statutes (Count I) by committing mismanagement or

misconduct in the practice of contracting that causes financial

harm to a customer; Subsection 489.129(1)(j), Florida Statutes

(Count II) by abandoning a construction project in which the

contractor is engaged or under contract as a contractor, and

Subsection 489.129(1)(m), Florida Statutes (Count III) by

committing incompetency or misconduct in the practice of

contracting.

And, if so, what discipline should be imposed, pursuant to

Section 489.129, Florida Statutes, and Florida Administrative

Code Rule 61G4-17.002.

PRELIMINARY STATEMENT

On September 11, 2008, Petitioner filed an Administrative

Complaint alleging Respondent violated the laws regulating his

professional activities as a certified contractor in the State

of Florida. Respondent disputed the allegations contained in

the Administrative Complaint and elected to have a formal

administrative hearing. Consequently, the case was referred to

the Division of Administrative Hearings (DOAH), to conduct a

hearing pursuant to Section 120.569 and Subsection 120.57(1),

Florida Statutes, and discovery followed.

At the hearing, Petitioner offered the testimony of two

witnesses: Edward Dueboay and Respondent, John W. Barker.

Petitioner introduced 13 exhibits numbered 1 through 13, all of

which were entered into evidence. Respondent testified in his

individual capacity, and offered the testimony of two additional

witnesses, Ralph A. Santillo and Phillip Pavliscac. Respondent

introduced one exhibit, which was entered into evidence.

The Transcript of the hearing was filed on June 15, 2009.

Petitioner filed its Proposed Recommended Order on June 25,

2009. On June 24, 2009, Respondent filed a letter indicating

that ordering a transcript would be cost prohibitive. However,

Respondent has not filed proposals as of the date of this

Recommended Order.

FINDINGS OF FACT

Based on the evidence and testimony of the witnesses

presented and the entire record in this proceeding, the

following facts are determined:

1. At all times material, Respondent was a certified

general contractor, having been issued license number CGC 060878

by the Florida Construction Industry Licensing Board (CILB).

2. At all times material, Respondent was the qualifier of

Epic Building and Development Corporation, a Florida

Corporation, with its principal place of business in the Fort

Myers area.

3. On February 22, 2005, Respondent entered into a

contract with Edward Dueboay to rebuild a house owned by Dueboay

and his wife, located at 22299 Laramorre Avenue, Port Charlotte,

Florida, which had been distroyed some months earlier by

Hurricane Charlie. The price of the contract was $150,000.00.

4. On or about March 24, 2005, Dueboay gave Respondent a

check in the amount of $3,500 payable to Contractors Marketing

America, Inc. (CMA, Inc.), for the engineering plans.

5. On May 6, 2005, Dueboay paid Respondent $5,000, as an

advance on the contract.

6. Respondent did not obtain the building permit from the

Charlotte County Building Department until December 12, 2005,

and work on the project did not start until January 2006.

7. Because of the enormous damage caused by the hurricane,

contractors in the area were flooded with jobs, and significant

shortages in building materials also occurred.

8. On January 13, 2006, Respondent billed Dueboay

$11,000.00 for land clearing and filling, $750.00 for permit

fees, and $3,200.00 for a temporary electric pole. The bill

gave credit for the $5,000.00 Dueboay paid on May 6, 2005, and

showed a balance due of $10,000.00.

9. On January 20, 2006, Dueboay paid the above-mentioned

invoice, by check to Respondent, in the amount of $10,000.00.

10. Respondent paid $4,600.00 to the sub-contractor who

performed the lot clearing and filling, but billed Dueboay

$11,000.00.

11. However, the contract provided for a $2,500.00

allowance for clearing and filling, and a $750.00 allowance for

permit fees. Section 11.c of the contract also provided that

Respondent shall provide and pay for all materials and utilities

and all other facilities and services necessary for the proper

completion of the work on the project in accordance with the

contract documents.

12. To pay for the remainder of the contract, Dueboay

negotiated and obtained a loan in the total amount of

$153,000.00 from Suncoast Schools Federal Credit Union (Credit

Union). On March 21, 2006, Dueboay and the Credit Union signed

the construction loan agreement.

13. On March 21, 2006, Respondent was paid $18,235.00 by

the Credit Union for the pre-cast walls used in the erection of

the structure.

14. On May 11, 2006, Respondent finished Phase I of the

project. On May 15, 2006, Respondent received $11,350.00 as the

first draw by the Credit Union.

15. On June 20, 2006, Respondent finished Phase II of the

project.

16. On June 20, 2006, Respondent was paid $26,335.00 as

the second draw by the Credit Union.

17. From June 2006 to November 2006, Respondent performed

no work on the house under the Dueboay contract.

18. Because the roof was not completed, mold appeared on

and in the house. On August 21, 2006, Dueboay paid $109.95 to

America’s Best Cleaning and Restoration, Inc., for mold removal.

19. On or before September 13, 2006, Dueboay hired an

attorney to clarify billing charges related to lot filling,

permit fees and the temporary electric pole, and to prompt

Respondent to resume work abandoned since June 2006.

20. Under the Credit Union Loan Agreement, after several

extensions, the completion of the Dueboay home should have taken

place on or before October 17, 2006. On October 18, 2006, the

Loan Agreement extension expired, and Dueboay was required to

pay mortgage and interest on the loan, even though construction

of the house was not completed.

21. On November 10, 2006, Dueboay’s attorney sent

Respondent a third letter advising him that the project was

stagnating; that after eighteen months since the signing of the

contract, the roof of the house was not yet completed; and that,

under the contract, Respondent was obligated to substantially

complete all work in a reasonable time after construction had

started.

22. On or about December 1, 2006, the building permit

expired and had to be renewed.

23. At some point after November 10, 2006, Respondent

resumed work and finished Phase III on March 8, 2007, with the

exception that some doors were not installed, including the

garage door.

24. Respondent submitted a sworn Contractor’s Affidavit

stating that all subcontractors had been paid, and that there

are no liens against Dueboay’s property.

25. However, Dueboay had to pay Charlotte County Utilities

$224.93 on October 29, 2007, and $240.00 to Pest Bear, Inc., on

May 7, 2008, to avoid two liens being recorded against his

property.

26. From March 8, 2007, until July 2007, Respondent

performed no work under the contract.

27. David Allgood, another general contractor, was hired

by Respondent to complete some of Respondent’s projects in the

Port Charlotte area, including the Dueboay house. However,

Dueboay was not informed of this arrangement. There was no

contract directly between Dueboay and Allgood.

28. On September 4, 2007, relying on advice from his

attorney, Dueboay changed the locks to the house, with the

intent to keep Respondent and his employees off his property.

29. Shortly thereafter, employees of general contractor

David Allgood broke the front lock and entered the property in

September 2007, without Dueboay’s permission.

30. Dueboay, again, following advice from this attorney,

called law enforcement to eject Allgood’s employees from his

property.

31. Allgood attempted to invoice Dueboay for installing

some doors on the house that Respondent had previously paid for,

and which Respondent should have installed. However, following

advice from his attorney, Dueboay resisted Allgood’s request to

pay him for the doors.

32. Respondent was paid a total of $122,246.03 for the

Dueboay project, before the contract was cancelled.

33. Respondent did not complete work from Phases IV and V,

with the following exceptions: he did some work on the

driveway, painted the interior, did some cabinet work, exterior

trim and soffit, siding, stucco, and some interior trim.

34. Therefore, Respondent completed, at best, three out of

seven operations from Phase IV (interior and exterior paint,

interior trim and doors, and exterior trim and soffits) and

worked on, but did not complete, stucco and some cabinets.

35. From Phase V, Respondent only worked on the driveway

and sidewalks, which had to subsequently be repaired.

36. Dueboay hired Storybook Homes, Inc. (Storybook), to

complete work abandoned by Respondent from Phases IV and V.

Storybook was hired to complete work as follows: install

cabinets and vanities, install ceramic tiles, repair stucco,

install custom tub, all electrical and plumbing per code,

complete exterior paint, install hardware, sinks and faucets in

the baths and showers, complete floors, install all appliances,

complete air conditioning and heat, and obtain the certificate

of occupancy.

37. The amount of $122,246.03 paid to Respondent at the

time when Respondent abandoned the Dueboay project represents

81 percent of the total contract price of $150,000.00.

38. Respondent completed, at best, 75 percent of the job

by completing only three out of seven operations of Phase IV and

working on some additional operations that needed to be redone,

like the driveway, sidewalks and stucco.

39. Due to Respondent’s failure to perform work on time,

Dueboay incurred $5,116.42 in additional expenses, as follows:

$109.95 on August 21, 2006 (mold removal), $360.00 on

November 23, 2006 (legal fees), $175.00 on June 4, 2007 (legal

fees), $375.00 on September 4, 2007 (legal fees), $224.93 on

October 29, 2007 (to satisfy lien), $668.34 on November 3, 2007

(legal fees), $200.00 on April 4, 2008 (legal fees), $1,151.05

on May 7, 2008 (to correct work performed deficiently by

Respondent), $390.00 on May 7, 2008 (to repair driveway),

$240.00 on May 7, 2008 (to avoid lien), and $412.00 on May 12,

2008 (to install safe room door that Respondent failed to

install).

40. The total investigative costs of this case to

Petitioner, excluding costs associated with any attorney’s time,

for Petitioner’s case no. 2005-028129 was $276.18.

CONCLUSIONS OF LAW

41. DOAH has jurisdiction over the parties and subject

matter of this proceeding pursuant to Section 120.569 and

Subsection 120.57(1), Florida Statutes.

42. Petitioner is the state agency charged with regulating

the practice of contracting pursuant to Section 20.165 and

Chapters 455 and 489, Florida Statutes.

43. Pursuant to Section 489.129, Florida Statutes, the

CILB is empowered to revoke, suspend or otherwise discipline the

license of a contractor who is found guilty of any of the

grounds enumerated in Subsection 489.129(1), Florida Statutes.

44. Petitioner has the burden of proving by clear and

convincing evidence the allegations against Respondent.

§ 120.57(1)(j), Fla. Stat.; Department of Banking and Finance v.

Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996); and Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987).

45. Evans Packing Co. v. Department of Agriculture and

Consumer Services , 550 So. 2d 112, 115, fn 5 (Fla. 1st DCA 1989)

provides the following guidance regarding the clear and

convincing evidence standard:

That standard has been described as follows:

[C]lear 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).

46. The three-count Administrative Complaint alleges that

Respondent is guilty of violating Subsections 489.129(1)(g)2.,

(j), and (m), Florida Statutes, which provide, in pertinent

part, as follows:

(1) The board may take any of the following

actions against any certificate holder 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 $10,000

per violation, require continuing education,

or assess costs associated with investigation

and prosecution, if the contractor . . . or

business organization for which the contractor

is a primary qualifying agent . . . is found

guilty of any of the following acts:

* * *

(g) Committing mismanagement or misconduct

in the practice of contracting that causes

financial harm to a customer. Financial

mismanagement or misconduct occurs when:

* * *

2. The contractor has abandoned a

customer’s job and the percentage of

completion is less than the percentage of

the total contract price paid to the

contractor as of the time of abandonment,

unless the contractor is entitled to retain

such funds under the terms of the contract

or refunds the excess funds within 30 days

after the date the job is abandoned:

* * *

(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 reason for termination,

or fails to perform work without just cause

for 90 consecutive days.

* * *

(m) Committing incompetency or misconduct

in the practice of contracting.

47. Petitioner has proven by clear and convincing evidence

that Respondent (Count I of the Administrative Complaint),

violated Subsection 489.129(1)(g)2., Florida Statutes, by

committing mismanagement or misconduct in the practice of

contracting that causes financial harm to a customer.

Respondent abandoned the Dueboay contract when the percentage of

completion of the job (approximately 75 percent or less) was

less than the total contract price paid to him (more than 81

percent).

48. Petitioner has proven by clear and convincing evidence

that Respondent (Count II of the Administrative Complaint),

violated Subsection 489.129(1)(j), Florida Statutes, by

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.

49. Respondent failed twice to perform any work under the

contract for periods of time exceeding 90 days. First,

Respondent did not perform any work between June 20, 2006, and

some point in time after November 10, 2006. Second, Respondent

failed to perform any work between March 8, 2007, and July 2007.

In neither case did Respondent provide any notification to

Dueboay that the work had stopped. Indeed, Respondent failed to

provide any explanation at the hearing as to any excusable

reasons for his failure to perform work for more than 90 days.

50. From approximately September 2006 to November 2006,

Respondent failed to respond to Dueboay’s attorney’s requests to

resume work on the project, or to provide an accounting of the

work that he had completed.

51. At no time between June 2006 and November 2006, as

well as between March 2007 and July 2007, did Dueboay prevent

Respondent from resuming work on the project, and at no point in

time did Respondent have just cause to not resume work on the

project.

52. Respondent did call law enforcement in September 2007,

to eject workers employed by a sub-contractor hired by

Respondent, who broke locks and entered his property without

permission. However, he did so only after more than two years

had elapsed from the signing of the contract, while the job was

still far from completed. Respondent was forced to pay mortgage

and interest for almost a year on a home that was not completed

and go through the inconvenience and expense of having to hire

three attorneys to prompt Respondent to resume work and complete

the house.

53. Petitioner has proven by clear and convincing evidence

that Respondent (Count III of the Administrative Complaint),

violated Subsection 489.129(1)(m), Florida Statutes. Florida

Administrative Code Rule 61G4-17.001(m)2. provides that

misconduct or incompetency in the practice of contracting, shall

include violation of any provision of Florida Administrative

Code Chapter 61G4, or Chapter 489, Part I, Florida Statutes.

Respondent violated Subsection 489.129(1)(m), Florida Statutes,

by violating Subsections 489.129(1)(g)2. and (j), Florida

Statutes, as provided in paragraphs 47 and 58 above.

54. Respondent is subject to disciplinary action by the

Board pursuant to Sections 455.227 and 489.129, Florida

Statutes. The disciplinary action under these statutes includes

placing the license on probation, reprimanding the licensee,

revoking, suspending, denying the issuance or renewal of the

certificate or registration, requiring financial restitution to

the consumer, imposing an administrative fine not to exceed

$10,000 per violation, requiring continuing education and

assessing costs associated with investigation and prosecution.

55. Subsection 455.2273(5), Florida Statutes, states the

administrative law judge, in recommending penalties in any

recommended order, must follow the penalty guidelines

established by the board or department and must state in writing

the mitigating or aggravating circumstances upon which

recommended penalty is based.

56. Florida Administrative Code Rule 61G4-17.002 provides

in pertinent part, the following:

Circumstances which may be considered for

the purposes of mitigation or aggravation of

penalty shall include, but are not limited

to, the following:

(1) Monetary or other damage to the

licensee’s customer, in any way associated

with the violation, which damage the

licensee has not relieved, as of the time

the penalty is assessed. (This provision

shall not be given effect to the extent it

would contravene federal bankruptcy law.)

(2) Actual job-site violations of building

codes, or conditions exhibiting gross

negligence, incompetence, or misconduct by

the licensee, which have not been corrected

as of the time the penalty is being

assessed.

(3) The danger to the public.

(4) The number of complaints filed against

the licensee.

(5) The length of time the licensee has

practiced.

(6) The actual damage, physical or

otherwise, to the licensee’s customer.

(7) The deterrent effect of the penalty

imposed.

(8) The effect of the penalty of the

licensee’s livelihood.

(9) Any efforts at rehabilitation.

(10) Any other mitigating or aggravating

circumstances.

57. Florida Administrative Code Rule 61G4-17.001 provides

the following guidelines that are pertinent to this proceeding:

(1) The following guidelines shall be used

in disciplinary cases, absent aggravating or

mitigating circumstances and subject to the

other provisions of this Chapter.

* * *

(g) Section 489.129(1)(g), F.S.:

Mismanagement or misconduct causing

financial harm to the customer. First

offense, $1,500 to $5,000 fine, and/or

probation or suspension . . .

* * *

(j) Section 489.129(1)(j), F.S.:

Abandonment. First offense, $2,500

to $7,500 fine, and/or probation or

suspension . . .

* * *

(m) Misconduct or incompetency in the

practice of contracting, shall include, but

is not limited to:

* * *

2. Violation of any provision of Chapter

61G4, F.A.C., or Chapter 489, Part I, F.S.

First offense, $1,000 to $2,500 fine, and/or

probation or suspension . . .

* * *

58. There is no evidence that Respondent has been

previously disciplined for violations under Chapter 489 or 455,

Florida Statutes. However, Respondent has offered no

circumstances which would entitle Respondent to mitigation of

the recommended penalty.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is recommended that the Board render a Final Order as

follows:

1. Finding Respondent guilty of having violated Subsection

489.129(1)(g)2., Florida Statutes, as alleged in Count I of the

Administrative Complaint, and imposing as a penalty an

administrative fine in the amount of $1,500.

2. Finding Respondent guilty of having violated Subsection

489.129(1)(j), Florida Statutes, as alleged in Count II of the

Administrative Complaint, and imposing as a penalty an

administrative fine in the amount of $2,500.

3. Finding Respondent guilty of having violated Subsection

489.129(1)(m), Florida Statutes, as alleged in Count III of the

Administrative Complaint, and imposing as a penalty an

administrative fine in the amount of $1,500.

4. Respondent’s license to practice contracting

(CGC 060878) be suspended for a period of three months, followed

by a period of probation for two years, upon such conditions as

the Board may impose, including the payment of costs and

restitution.

5. Requiring Respondent to pay financial restitution to

the consumer, Edward Dueboay, in the amount of $5,116.42 for

consumer harm suffered due to payment of additional expenses.

6. Requiring Respondent to pay Petitioner’s costs of

investigation and prosecution, excluding costs associated with

an attorney’s time, in the amount of $276.18.

DONE AND ENTERED this 21st day of July, 2009, in

Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of July, 2009.

ENDNOTE

1/ All references to Florida Statutes are to Florida Statutes

(2005), unless otherwise indicated.

COPIES FURNISHED :

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

G. W. Harrell, Executive Director

Construction Industry Licensing Board

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Sorin Ardelean, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399

John William Barker, Jr.

7400 Nalle Grade Road

North Fort Myers, Florida 33917

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.