04-004040 Department Of Business And Professional Regulation, Construction Industry Licensing Board vs. Michael A. Crane, D/B/A Accent Builders Of Florida, Inc. Status: Closed Recommended Order on Wednesday, May 25, 2005.

Summary: Petitioner failed to prove by clear and convincing evidence that Respondent contractor violated Section 489.129(1)(g)1 or (1)(m), Florida Statutes. Recommend that the charges against Respondent be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

CONSTRUCTION INDUSTRY LICENSING )

BOARD, )

)

Petitioner, )

)

vs. ) Case No. 04 - 4040

)

MICHAEL A. CRANE, d/b/a ACCENT )

BUILDERS OF FLORIDA, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for formal hearing before Robert S.

Cohen, Administrative Law Judge with the Division of

Administrative Hearings, on March 1 through 3, 2005 , in New

Smyrna Beach, Florida.

APPEARANCES

For Petitioner: Charles J. Pellegrini, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

For Respondent : Daniel J. Webster, Esquire

Daniel J. Webster, P.A.

149 South Ridgewood Avenue, Suite 500

Daytona Beach, Florida 32114 - 4365

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent has violated

Section 489.129(1)(g )1., Florida Statutes, by committing

mismanagement or misconduct in the practice of contracting that

causes financial harm to a customer; and whether Respondent has

violated Section 489.129(1)(m), Florida Statutes, by committing

incompetency or misconduct in the practice of contracting.

PRELIMINARY STATEMENT

Petitioner, Department of Business and Professional

Regulation, Construction Industry Licensing Board, issued an

Administrative Complaint against Respondent, Michael A. Crane

d/b/a Accent Builders of Florida, Inc., on May 18, 2004. The

Administrative Complaint alleges that Respondent entered into a

contractual agreement with Mr. Rick Moses on or about July 12,

2001, for the construction of an addition to the Moses residence

at 839 East 23rd Avenue, Ne w Smyrna Beach, Florida.

On March 21, 2003, Mr. Moses filed a consumer complaint

with Petitioner against Respondent. The complaint raised three

issues: that Respondent violated Section 489.129(1)(m), Florida

Statutes, by committing incompetency or misco nduct in the

practice of contracting that caused financial harm to a

customer; that Respondent violated Section 489.129(1)(g)1.,

Florida Statutes, by committing mismanagement or misconduct in

the practice of contracting that caused financial harm to a

cust omer when valid liens have been recorded against the

property of a contractor's customer, but had not been removed or

satisfied in compliance with the law; and that Respondent

violated Section 489.129(1)(i), Florida Statutes, by failing to

comply with the law or a rule of the Board by failing to obtain

a Certificate of Authority for Accent Builders of Florida, Inc.

Respondent disputed the allegations of the Administrative

Complaint and requested a formal administrative hearing. The

case was referred to th e Division of Administrative Hearings and

a formal hearing was held on March 1 through 3, 2005.

At the hearing, Petitioner presented the testimony of

Terry Bachi, Michael Brinsley, Mark R. Stroup, David Baxter,

Tom Bennett, who was accepted as an expert in building structure

and water intrusion analyses, Shawn Ferris, who was accepted as

an expert in water intrusion analyses, Peter J. Coltune, who was

accepted as an expert in general contracting, Jeff Kabool,

Rick Moses, and Scott Sherill; and offered E xhibit

Nos. 1 through 4A, 7, 9 through 13, 15 through 17, 19 through

21, 22A through G, 23 through 25A, and 27 through 34 into

evidence. Respondent presented the testimony of John Bailes,

who was accepted as an expert in professional engineerin g,

Michael Crane, and Allen Green, who was accepted as an expert in

general contracting and roofing contracting with expertise in

water defects; and offered Exhibit Nos. 2 through 13, 28 and 29,

33 and 34, 37, 40, 43, 46 through 48, 50, 62, 66 through 70, 73

and 74, 77 and 78, and 85 and 86 into evidence.

A Transcript was filed on March 31, 2005. Petitioner filed

Proposed Findings of Fact and Conclusions of Law on April 15,

2005. Respondent filed Proposed Findings of Fact and

Conclusions of Law, as well as a Written Closing Argument on

April 20, 2005, along with a Motion for Enlargement of Time to

make his post - hearing submittals. That motion was granted and

both Petitioner's and Respondent's submittals have been

considered.

References are to Florida S tatutes (2004), unless otherwise

noted.

FINDINGS OF FACT

1. Petitioner is the state agency charged with regulating

the practice of contracting pursuant to Section 20.165, and

Chapters 455 and 489.

2. Respondent is, and at all times material to these

proceedings, has been a Certified General Contractor, in the

State of Florida, having been issued License No. CG C8644.

3. Respondent is the Qualifying Agent for Accent Builders

of Florida, Inc.

4. On July 12, 2001, Accent Builders of Florida, Inc.

("A ccent"), contracted with Rick and Barbara Moses to construct

an addition at their home located at 839 East 23rd Avenue, New

Smyrna Beach, Florida, for a base contract price of $131,286.

5. On September 26, 2001, the City of New Smyrna Beach

issued Accent Permit No. 37516 for construction at the Moses

home.

6. On February 14, 2003, the City of New Smyrna Beach

issued a Certificate of Occupancy for the Moses home.

7. Accent Builders of Florida, Inc., obtained a

Certificate of Authority in September, 200 4. Prior to that time

it had no Certificate of Authority even though it had been in

business since 1974.

8. During and after construction, Mr. Moses complained to

Respondent regarding construction items he believed had been

performed improperly, most no tably Respondent's failure to

repair leaks; failure to install the deck tower in accordance

with the manufacturer's instructions; failure to properly

install a steam room; and failure to address punch list items.

Respondent took repeated measures to attem pt to repair the items

complained about by Mr. Moses.

9. Mr. and Mrs. Moses paid Respondent a total of

$149,432.52.

10. Twice during the period of June 13 through 30, 2002,

the Moses observed water intrusion in the second floor master

bedroom near the sliding glass doors, as well as in the

southwest corner of the garage below, and in the southeast

corner of the first floor spare bedroom. At this time, the

drywall and ceilings were not yet in place, but the addition was

no longer open to the outside ex cept for the fact that the

garage doors had not yet been installed.

11. On June 15, 2002, the Moses observed a hole in the

plywood sheathing beneath the roof through which water was

intruding. Respondent patched the hole with wood blocks, but

the Moses observed that water continued to intrude at that

location on June 30, 2002.

12. In early August 2002, Mr. Moses observed intruded

water again in the first floor spare bedroom and in the garage.

Although the garage doors had still not been installed, the

water intrusion was at the southwest corner, well away from the

garage door opening. After being informed by the Moses about

this problem, Respondent engaged the services of a roofing

contractor, Wayne Williams, to make leak repairs in

mid - Aug ust 2002. Mr. Moses noticed shortly thereafter, on

August 20, 2002, that water continued to intrude at the same

areas.

13. On August 27, 2002, Respondent installed the drywall,

and on September 4, 2002, Mr. Moses observed water running down

the wall i n the first floor spare bedroom.

14. In October 2002, Mr. Moses again observed intruded

water in the garage and the first floor spare bedroom and

informed Respondent.

15. In December 2002, Mr. Moses observed water intrusion

at the same sites and inform ed Respondent. At this time, the

garage doors had been installed and the addition was fully

closed to the outside.

16. On January 1, 2003, Mr. Moses observed water

accumulating in the ceiling fan light fixture, on the window

sill, on the southeast floor corner beneath the carpet, and

showing in the ceiling in the first floor bedroom. Mr. Moses

called Respondent, who brought a worker named Hal Copeland to

see what Mr. Moses had observed. No work was done that day, but

Respondent returned with Mr. Copela nd a few days later to seal a

joint above between a post and the siding on the deck level,

which Respondent believed to be the most likely cause of the

leakage.

17. On January 13, 2003, Mr. Moses presented Respondent

with a Preliminary Punch List and on January 22, 2003, a

Continuation of Punch List. Mr. Moses also provided Respondent

with the USPL Carefree Exteriors Decking Systems HDPE

Installation & Layout Guidelines with the Preliminary Punch

List.

18. After receipt of the Punch Lists, Respondent p erformed

work at the Moses home on the major areas that are relevant to

these proceedings, namely, the garage leaks, the spare bedroom

leaks, the steam shower, scuttle hole leak, and the second - floor

decking.

19. On February 1, 2003, Mr. Moses noticed t hat neither

Respondent nor any of his subcontractors had been on the job for

a few days. Mr. Moses counted off 21 days from February 1 when

no one appeared at the jobsite to work, then sent a default

letter to Respondent, believing Respondent had abandone d the job

in violation of the construction contract. Mr. Moses sent the

default letter to Respondent on February 25, 2003, believing

that Respondent had 10 days to rectify any outstanding issues

raised in the default letter.

20. On February 26, 2003, pr ior to his receipt of the

default letter, Respondent called Mr. Moses to tell him that the

soap dish was going to be installed in the steam shower on

February 27, 2003. That task was performed as scheduled.

21. Also on February 26, 2003, Respondent arra nged a

meeting with Mr. Moses for March 12, 2003, to go over

outstanding items from the punch lists.

22. On March 12, 2003, Respondent, along with Les Ogram,

the electrical contractor, and Jim Kamerzel, the tile man, met

with Mr. Moses in the master bed room. Mr. Moses believed that

meeting was to go over punch list items.

23. At the March 12 meeting, Mr. Moses expressed his

displeasure with the state of the construction, especially with

the placing of a vent in the steam shower and some electrical

pro blems. Mr. Moses was not satisfied with Respondent's

responses at the meeting and ordered him from the property.

24. On the same day, March 12, 2003, G & W plumbing showed

up at the Moses home to move the steam vents from 12 inches to

18 inches off the floor, but Mr. Moses would not let the plumber

perform any work that day.

25. On April 8, 2003, G & W Plumbing filed a claim for

lien against the Moses property for an unpaid bill in the amount

of $7,361.20. Mr. Moses satisfied the lien through eight

pa yments between April 5 and November 5, 2003, totaling

$7,955.20 which reflects the amount due G & W plus attorney's

fees.

26. On June 6, 2003, Respondent filed a Contractor's Final

Affidavit stating that it had been paid for all work completed,

with th e exception of the liens by G & W Plumbing in the amount

of $7,361.20, Electrical Construction, Inc., in the amount of

$2,101.96, and CED Tile, Inc., in the amount of $1,000.00. On

that same date, Accent filed a Claim of Lien against the Moses

property in the amount of $21,890.47.

27. Once he became aware of the leaks and other

construction issues, Mr. Moses engaged the services of several

leak detection specialists and contractors in an attempt to

remediate the problems.

28. EGF Homes Inspection Serv ice inspected the house

addition and provided a report dated August 1, 2002, listing

many concerns with the construction and possible damage from

moisture and leaking that was occurring. This report was not

provided to Respondent, however, while he was st ill permitted by

the Moses to remain on the job.

29. Mr. Moses hired Michael Brinsley of Guardian Home

Inspections to try and pinpoint the cause and location of the

leaks. Upon a visit to the Moses residence on February 28,

2003, Mr. Brinsley noted seve ral areas that could be the source

of the leaks, most notably metal flashing on the roof that had

split, deck trim that was "popping loose and hanging off with

improper fasteners," a garage door header beam, and a hole below

the stairway at the top of the exterior that was not sealed

properly. Additionally, Mr. Brinsley found that a portion of

the new deck railing was not secured properly, and that the vent

fan in the steam shower was improperly installed.

30. On March 28, 2003, Mr. Moses hired Terry Bac hi of

American Leak Detection of Daytona to determine where the leaks

were occurring. On July 17, 2003, Mr. Bachi found three sources

of the leaks: one behind the north stringer at the top step just

before the rolled roofing; one at the southeast corner o f the

second floor where the wall meets the roof; and one at the top

of the sloped roof on the east side. Mr. Moses then engaged the

services of Rabbit & Sons Construction Co., to make repairs

based upon Mr. Bachi's findings.

31. Following the work perf ormed by Rabbit & Sons,

Mr. Bachi returned to the Moses home on August 21, 2003, to find

two remaining leaks: one at the east end of the second floor

deck between the siding and the rake mold; and one at the end of

the roof flashing on the east side o f the master bedroom.

32. Mr. Bachi returned yet again to the Moses home on

February 7, 2004, to still find two sources of leaks: one behind

the north stringer at the top step, which he had previously

found on his first visit; and one on the east side o f the master

bedroom, which he had previously found on his second visit.

33. On August 8, 2003, Mr. Moses hired Mark Stroup, a

certified mold remediator, of Five Star Hospitality Services to

determine whether mold growth had occurred in his home as a

res ult of moisture intrusion. Mr. Stroup is not a certified

indoor environmentalist, as is Respondent, certified to perform

mold testing, or a scientist with a background in environmental

sciences. Mr. Stroup performs his mold detection services under

the a uthority of his license as a general contractor.

Mr. Stroup collected samples of the air and moisture in the

master bedroom and bath. Mr. Stroup then sent these samples to

the Aerotech laboratory in Arizona for a report as to the mold

content. No representative of Aerotech testified as to the

testing of the samples or any findings based upon the samples

gathered by Mr. Stroup. Moreover, Mr. Stroup was not listed as

an expert by Petitioner. After Mr. Stroup was not permitted to

offer expert opini on testimony, Petitioner proffered

Mr. Stroup's opinion testimony on the results of the mold

testing.

34. On February 2, 2004, Mr. Moses hired Thomas Bennett of

Rimkus Consulting Group, Inc., to perform additional leak

detection services at the Moses residence. Mr. Bennett is a

registered professional engineer in Florida and other states.

His company is engaged in forensic engineering. On February 11,

2004, Mr. Bennett and his technician discovered leaks at four

locations: south of the garage attic hatch with water intruding

from the northeast middle deck perimeter; the ledger where the

flashing was not fully reflective which allowed water to intrude

below by wicking; the window in the south wall of the first

floor spare bedroom with water int ruding from the interface

above the 6x6 post - and - concrete masonry unit wall onto the floor

and into the garage; and the backside of the lintel across the

garage door opening.

35. Mr. Bennett returned to the Moses home on March 8,

2004, with David Baxter of Emergency Services & Reconstruction

to determine what temporary repairs could be made to mitigate

damage to the structure. Mr. Baxter prepared a temporary

repairs/waterproofing proposal, then engaged IGC Roofing, Inc.,

to carry it out. This work subst antially reduced the water

intrusion.

36. Rimkus Consulting Group, Inc. ("Rimkus"), engaged

Slocum Platts Architect ("Slocum") to devise a permanent remedy.

Slocum first engaged Williamson & Associates, Inc.

("Williamson"), to develop a "remedy concept." On April 22,

2004, Shawn Ferris, an expert in water intrusion analysis and an

employee of Williamson prepared conceptual details for Slocum of

a proposed solution to the water intrusion problems. Slocum

then prepared waterproofing sketches for Rimkus re fining the

Williamson details.

37. On February 11, 2005, Peter Coltune, a Florida

certified general contractor for 32 years, performed an

inspection of the Moses deck system to determine whether it met

manufacturer specifications. Mr. Coltune identifie d five issues

with respect to the decking system: (1) the railing posts were

not secured in accordance with the USPL Carefree Xteriors HPDE

Installation Instructions and Layout Guidelines ("USPL

Instructions"); (2) the railing length exceeded the maximum s pan

of six feet as set forth in the USPL Instructions; (3) the rail

was not installed using the proper blocks and the required

spacing of the blocks of 24" was not followed on the four - or

six - foot sections; (4) none of the railing was installed with

the r equired brackets, screw sizes, and quantities, which has

caused several sections of the railing to fall and remain in an

unsafe condition; and 5) the trim was installed with

nonstainless or galvanized screws or bolts, resulting in rust

stains, delamination , and even components falling. In

Mr. Coltune's opinion, the decking system was unsound and

unsafe.

38. While Mr. Coltune used the 2003 version of the USPL

Instructions for his analysis of the Moses decking system, and

Respondent used the 2002 ve rsion, the installation requirements

are substantially similar.

39. Respondent installed a Steamist steam bath in the

Moses's master bedroom. Respondent installed a ceiling vent in

the steam room, even though the Moses did not want one, and the

vent in stalled was not the appropriate vent for a steam room.

40. At the March 12, 2003, meeting between Respondent and

Mr. Moses, Respondent was prepared to have the plumber remove

the ceiling vent.

41. Respondent installed the steam inlet valve 12 inches

above the floor in the steam room despite the manufacturer's

instruction to place it 18 inches above the floor. Jeff Kabool,

a manufacturer's representative of the Steamist company, issued

a report in which he found that the steam head was 12, not 18,

in ches off the floor; the Steamist TC - 135 control (temperature

control unit) was installed outside the steam room rather than

inside as designed; and that a vent was installed inside the

steam room even though the installation guideline states that

one shoul d not be installed.

42. Mr. Kabool testified that he commonly sees the steam

head installed 12 inches off the floor and that the unit

operates properly when so installed. The unit on display at the

Home Depot Expo in Orlando had the steam head located 1 2 inches

off the floor. The temperature control unit must be inside the

steam room since the thermometer that is attached to the

thermostat must measure the temperature, which it cannot do from

outside the unit. An older version thermostat could be locat ed

outside the steam room, but not the TC - 135. The vent that was

installed in the steam room is not appropriate for the Steamist

unit.

43. On July 29, 2004, Mr. Moses hired a pest control

service to eradicate an infestation of carpenter ants.

Mr . Moses understands that carpenter ants are attracted by

excessive moisture.

44. Mr. Moses documented out - of - pocket expenses of at

least $23,051.86 in pursuing remediation of the water intrusion

problem with the eight companies involved in the testing an d

remediation of the water intrusion problem.

45. Petitioner's costs related to the investigation and

prosecution of this matter, excluding any amounts for attorney

fees, are $930.96.

46. During and after the construction period (which

effectively ende d March 12, 2003, when Mr. Moses ordered

Respondent off the job) Mr. Moses complained to Respondent

regarding the items he believed had been constructed improperly.

47. Respondent took what appeared to be reasonable action

under the circumstances in resp onse to Mr. Moses's complaints

until he had been ordered off the job, at which time he was not

permitted by Mr. Moses to re - enter the property to correct any

problems.

48. The professional reports concerning water intrusion,

failure to build the deck acc ording to USPL specifications, and

the improper installation of the steam room, were not provided

to Respondent prior to March 12, 2003, when he was ordered off

the Moses job. These reports were provided to Respondent in the

course of these proceedings as well as an ongoing civil lawsuit

between Mr. and Mrs. Moses and Accent Builders of Florida, Inc.

49. Respondent was not permitted to address any of the

deficiencies raised in the reports from the Moses's contractors

in order to mitigate any further dama ges that might result from

not addressing the identified construction deficiencies.

50. Respondent called John Bailes to testify at hearing as

a former employee of Rimkus Consulting Group, Inc., who was

present for a site inspection of the Moses home in

February 2004. Mr. Bailes, an expert in professional

engineering, observed two areas leaking during the site visit.

Thereafter, Mr. Bailes worked with Slocum in formulating the

design of the corrective action for the Moses residence.

51. Mr. Ba iles did not observe any leaks at the post

penetration during his site visits to the Moses residence.

52. Mr. Bailes recommended that the water intrusion could

be eliminated without the removal and reattachment of the upper

deck. This recommendation was accepted by the architects at

Slocum.

53. Mr. Bailes recommended that no large portions of the

decking needed to be removed to make the repairs. The repairs

could be performed after removing small portions to address

flashing and sealing issues.

54. The Moses residence suffered no structural failures as

a result of the water intrusion.

55. Walter Allen Green, an expert in general contracting,

roofing contracting and water penetration and construction

defects, testified that all of the areas of wate r intrusion at

the Moses residence could be repaired by replacing the flashing

where necessary, reattaching boards where necessary, and using a

high grade commercial sealant. None of the areas of drywall

inspected by Mr. Green would require replacement. The drywall

could be treated and left in place. None of these repairs would

take more than a few hours at a relatively small cost.

56. Mr. Green also inspected the deck railing and

testified that this could be fixed relatively easily with

stainless stee l clips. Further, the areas of the railing that

had supports greater than six feet apart were only off by an

inch or so. Even adding new posts, if necessary, is a job that

would take no more than a day to complete.

57. Respondent, Michael Crane, has be en a certified

general contractor for more than 30 years. Twenty - five of those

years were spent working in Volusia County, Florida.

58. Respondent was personally involved in the Moses

project from its planning and permitting stages through

March 12, 2003, when he was ordered off the job by Mr. Moses.

He returned to the job site once in October 2004, as part of a

site review by representatives of Petitioner.

59. Respondent addressed many of the items from the punch

lists prior to February 26, 2003, when he arranged with

Mr. Moses to meet on March 12, 2003. When this meeting was

arranged, Mr. Moses never mentioned that he had sent a default

letter the previous day to Respondent. When Respondent arrived

at the Moses residence on March 12, 200 3, he was prepared to

perform repairs to the steam room consisting of moving the steam

head from 12 to 18 inches from the floor; to remove the ceiling

fan in the steam room; and to replace some electrical outlets

that were non - functioning. Respondent was told by Mr. Moses

that his lawyer instructed him not to allow Respondent to

perform any work that day. Mr. Moses told him (using strong

language) to leave and not come back.

60. Respondent came back to the house on March 12, 2003,

to speak with Mr. Mose s. He told Mr. Moses that he deserved the

opportunity to make good on all the repairs, and that he would

find the remaining leaks and repair them. Mr. Moses did not

allow Respondent to perform any additional work from that day

forward.

61. Respondent c alled Mr. Moses again on March 21, 2003.

Mr. Moses told him at that time that no one would be allowed to

work on his house until after the State investigated his

complaint. Further, Mr. Moses told Respondent that he would be

hiring another contractor to finish the job.

62. Respondent was aware of leaks at the Moses residence

in August 2002, after the heavy rains of June and July.

Respondent had the original roofer return to the job to repair

the leaks, but that roofer's efforts were unsuccessful.

63. Respondent next hired Wayne Williams, a "roofer's

roofer," to address the issue of the penetration of the 6x6

post. Respondent paid Mr. Williams $500 to remove the shingles,

strip the roof down, then re - flash and put roof cement around

the penetrating po st. Respondent heard nothing more from the

Moses about the penetrating post leaking after Mr. Williams'

repairs prior to the litigation.

64. Respondent learned of leaks into the bedroom on the

first floor in September 2002. He had the painter return to

seal around the bedroom window and adjacent areas that might be

involved, such as the light fixtures over the garage door.

Respondent believed at that time that he had addressed the

remaining water leak issues.

65. Respondent next learned of water intr usion issues on

January 1, 2003, when Mr. Moses called him about more water

leaking into the first floor bedroom. After measuring the

amount of moisture on the drywall, Respondent promised to come

back to address the issue.

66. Respondent returned two o r three days later with a fan

to dry the wet area in the first floor bedroom. Shortly

thereafter, Respondent met with Hal Copeland, the carpenter and

a qualified window installer, to address the issue. They found

what they believed to be the area where t he water was intruding

as a vertical joint between the 6x6 post and the siding. They

put a backer rod and a urethane sealant to fill the gap

completely. After this repair, Respondent received no complaint

from Mr. Moses about this leak until the litigati on.

67. Respondent holds the designation of a certified indoor

environmentalist which qualifies him to conduct mold tests.

Respondent was never given a copy of the report from Five Star

Hospitality Services, dated February 12, 2003, when he was still

on the job. He was provided this report during the litigation

arising from the Moses job.

68. Respondent was not provided with a copy of the

August 1, 2002, report from EGF Home Inspection Services prior

to the litigation.

69. During the construction period, Respondent was never

provided a copy of the Carefree Exteriors HDP installation

instruction and layout guide or the Legacy Report dated

December 1, 2003, concerning the decking materials, by Mr. Moses

or anyone else. Tom Galloway, a manufacture r's representative

from Carefree Exteriors came to the Moses job site on three or

four occasions to speak with the carpenters about installation

of the decks. Mr. Galloway never informed Respondent or his

subcontractors that they were not properly instal ling the

decking materials.

70. On November 18, 2004, Respondent sent a certified

letter to Mr. and Mrs. Moses informing them that they were in

default of the construction contract, due to their refusal to

allow Accent to complete the job, in the amount of $21,890.47.

Respondent received no reply or further contact from Mr. or

Mrs. Moses.

71. By choosing to remove the deck area and the water

intrusion remediation they selected, Mr. and Mrs. Moses have

expended $23,051.86 with the companies they engag ed for

remediation.

CONCLUSIONS OF LAW

72. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

73. In the Administrative Complaint, the Departmen t has

requested that the Board impose, among other penalties, the

revocation or suspension of Mr. Crane's general contractor's

certificate. Therefore, the Department has the burden of

proving the allegations in the Administrative Complaint by clear

and co nvincing evidence. See Department of Banking and Finance,

Division of Securities and Investor Protection v. Osborne Stern

and Co. , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510

So. 2d 292 (Fla. 1987); and McKinney v. Castor , 667 So. 2d 387

(Fla. 1 st DCA 1995).

74. "Clear and convincing evidence" has been defined as

evidence which:

[R]equires that the evidence must be found

to be credible; the facts to which the

witnesses testify must be distinctly

remembered; the testimony must be precise

and expl icit 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 a firm belief or conviction, without

hesitancy, as to the truth of the

allegations sought t o be established.

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

75. The grounds proven in support of the Department's

assertion that Mr. Crane's certificate should be revoked or

suspended must be those specifically alleged in the

Adminis trative Complaint. See , e.g. , Cottrill v. Department of

Insurance , 685 So. 2d 1371 (Fla. 1st DCA 1996); Kinney v.

Department of State , 501 So. 2d 129 (Fla. 5th DCA 1987); and

Hunter v. Department of Professional Regulation , 458 So. 2d 842

(Fla. 2nd DCA 19 84).

76. The Board is authorized to discipline a general

contractor's certificate pursuant to Section 489.129(1), Florida

Statutes. Section 489.129(1) provides that the Board may take

disciplinary action, including revocation, suspension,

probation, req uiring restitution, imposition of an

administrative fine not to exceed $5,000.00 per violation, and

imposition of costs against a certificate if "the contractor,

financially responsible officer, or business organization for

which the contractor is a primar y qualifying agent" is found

guilty of any of a number of specified acts.

77. In this case, the Department has charged Mr. Crane

with having committed the acts specified in Section

489.129(1)(g)1., (i), and (m), with regard to the events

surrounding the Moses home addition.

78. The acts prohibited by Section 489.129(1)(g)1., (i),

and (m), are as follows:

(g) Committing mismanagement or misconduct

in the practice of contracting that causes

financial harm to a customer. Financial

mismanagement or miscon duct occurs when:

1. Valid liens have been recorded against

the property of a contractor's customer for

supplies or services ordered by the

contractor for the customer's job; the

contractor has received funds from the

customer to pay for the supplies or

services; and the contractor has not had the

liens removed from the property, by payment

or by bond, within 75 days after the date of

such liens; . . . .

* * *

(m) Committing incompetency or misconduct

in the practice of contracting.

79. Respondent ar gues that Petitioner has not proven a

violation of Section 489.129(1)(g)1., since it did not

demonstrate that multiple, valid liens were placed on the Moses

property and that these liens were not removed within 75 days

either by payment or by bond. Respon dent's point is that the

statute, being penal in nature, must be strictly construed

". . . and no conduct is to be regarded as included within it

that is not reasonably proscribed by it. Furthermore, if there

are any ambiguities included such must be construed in favor of

the . . . licensee." Lester v. Department of Professional and

Occupational Regulations , 348 So. 2d 923, 925 (Fla. 1st DCA

1977); see also Whitaker v. Department of Insurance and

Treasurer , 680 So. 2d 528, 531 (Fla. 1st DCA 199 6). The only

lien that was put into evidence at hearing was the G & W

Plumbing lien in the amount of $7,361.20. The documents

produced by Petitioner establish this as a valid lien, and the

testimony of Mr. Moses, along with proof of payment of the lien,

demonstrate that Respondent did not have the lien removed from

the property within 75 days of the lien's being placed on the

Moses property. While vague reference was made at hearing to

other liens on the property, the only evidence of those liens is

cont ained in Respondent's post - hearing submittal in which he

admits as true that paragraph 19 of the Administrative

Complaint, which states that "[o]n or about June 6, 2003,

Respondent filed a Contractor's Final Affidavit stating that all

work had been paid fo r, with the exception of lienors G & W

Plumbing, in the amount of $7,361.20, Electrical Construction

Inc., in the amount of $2,101.96, and CED Tile, Inc., in the

amount of $1,000.00." While this evidence is not as complete as

that concerning the G & W P lumbing lien, it is clearly an

admission against Respondent's interest with respect to the

existence of liens on the Moses property.

80. The issue of whether Respondent violated Section

489.129(1)(g)1., thus turns on whether "the contractor has

received funds from the customer to pay for the supplies or

services." What is clear is that Respondent's work remained

unpaid in the amount of $21,890.47 when he was ordered off the

job on March 12, 2003. Petitioner did not establish that the

liens filed by G & W Plumbing, Electrical Construction, Inc., or

CED Tile, Inc. (which total less than the amount outstanding to

Respondent), were for amounts that had already been received by

the contractor. By not establishing this essential fact,

Petitioner has not prove n by clear and convincing evidence that

Respondent is subject to discipline for violating this statutory

provision.

81. Petitioner also alleges a violation by Respondent of

Section 489.129(1)(m), in that Respondent demonstrated

incompetency or misconduct in the practice of contracting.

Neither the statute nor Petitioner's rules provide a definition

of either "incompetency" or "misconduct" in the practice of

contracting. Florida Administrative Code Rule 61G4 -

17.001(1)(m), however, states that "misconduct or incompetency

in the practice of contracting, shall include, but is not

limited to:

1. Failure to honor a warranty.

2. Violation of any provision of Chapter

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

3. Failure to abide by the terms of a

mediation agreement."

82. Respondent did not fail to honor a warranty. The

evidence strongly supports the notion that Respondent would have

continued to address the water intrusion, steam shower, and

decking issues at the Moses residence had he not been ordered

off the job on March 12, 2003. It appears likely that, given

enough opportunity, Respondent would have identified the

problems and corrected them to the customers' satisfaction.

83. Respondent did not fail to abide by the terms of a

mediation agreeme nt. There was no evidence presented at hearing

that the Moses and Respondent had mediated the issues at hearing

and entered into any agreement disposing of any or all of the

issues remaining between the parties to the construction

contract.

84. Finally, Respondent did not violate any other

provisions of Section 489.129, or Florida Administrative Code

Rule 61G4. While Respondent's failure to address the water

intrusion, decking and steam room issues to the customer's

satisfaction over a period of nine mo nths can in no way be

deemed an example of exemplary practice of contracting,

Respondent's shortcomings on this job do not rise to the level

of gross or repeated negligence as contemplated by Section

489.129(1)(n), or Florida Administrative Code Rule 61G4 -

17.001(m). By ordering Respondent off the job on March 12,

2003, the Moses did not give him the opportunity to complete the

construction to their satisfaction and in accordance with the

terms of the construction contract. Rather, the Moses

contracted wit h numerous companies and individuals to support

their view of the construction defects and selected an expensive

solution to problems that could have been corrected, although

too slowly to satisfy the Moses (and probably most customers in

a similar situati on), for a minimal amount of cost.

85. Petitioner attempted to demonstrate that the Moses

addition was rendered uninhabitable due to the presence of toxic

mold resulting from water intrusion. In order to prove the

existence of mold, Petitioner called Ma rk Stroup, a certified

mold remediator, to testify. Since Mr. Stroup was not listed as

an expert on Petitioner's witness list, and since he is also not

a certified indoor environmentalist (one who is certified to

perform mold testing), he was not qualifie d to offer opinion

testimony on the presence and effect of any mold that might have

occurred in the Moses residence. Further, the burden is on

Petitioner "to prove the general acceptance of both the

underlying scientific principle and the testing procedur es used

to apply that principle to the facts of the case at hand. The

trial judge has the sole responsibility to determine this

question. The general acceptance under the Frye test must be

established by a preponderance of the evidence." Centex - Rooney

C onstruction Co., Inc. v. Martin County , 706 So. 2d 20, 26 (Fla.

4th DCA 1997); citing Frye v. U.S. , 293 F.2d 1013 (D.C. Cir.

1923). See also Ramirez v. State , 651 So. 2d 1164, 1166 - 67 (Fla.

1995). In this case, the witness was not listed as an expert;

his qualifications to testify in a relatively new area of

science were not established based upon his education, training,

or experience; and he attempted to rely upon a report of tests

that were performed by Aerotech, a laboratory located in

Arizona, for whi ch the witness neither worked directly nor could

establish the chain - of - custody of the samples collected at the

Moses residence and relied upon for the report. Moreover, the

report from Aerotech is hearsay and not, as argued by

Petitioner, a record of reg ularly conducted business subject to

the exception to the hearsay rule contained under Section

90.803(6). The report is a highly specialized document

containing findings that were not verified as to the chain - of -

custody of the samples collected or as to w ho prepared the

report, and whether that person was qualified through education,

training, or experience to testify as to the contents and

validity of the report. Accordingly, the report from Aerotech

and any testimony proffered by Petitioner from Mr. Str oup is

excluded from consideration in this proceeding.

86. "Incompetency" is defined in Black's Law Dictionary as

"lack of ability, knowledge, legal qualification, or fitness to

discharge the required duty or professional obligation."

"Misconduct" is d efined in Black's Law Dictionary as "a

dereliction of duty, willful in character."

87. Respondent did not display incompetence in his

performance on the Moses addition. Respondent has over 30 years

of experience as a general contractor, possesses the ap propriate

certification to do the work, and has the ability, knowledge,

and fitness to perform the work. Respondent was slow in finding

and repairing the leaks at the Moses residence and otherwise

made some errors in his work, all of which are easily

corr ectible, had he been given the opportunity by the Moses.

Further, Respondent did not exhibit misconduct in his work on

the Moses addition. Petitioner presented no evidence that

Respondent willfully made errors or failed to properly construct

the addition to their home. Respondent, in apparent good faith,

continually tried to make good on his construction errors, even

coming to the Moses's home on New Year's Day, when a leak was

discovered. Respondent appeared ready, willing, and able to

remedy any probl ems at the job site, given sufficient

opportunity. Therefore, Respondent is not guilty of

incompetency or misconduct in the practice of contracting

pursuant to Section 489.129(1)(m).

88. Since Petitioner failed to prove by clear and

convincing evidence , that Respondent violated Sections

489.129(1)(g)1. or 489.129(1)(m), as charged by Petitioner,

there is no need to discuss the nature and amount of any

disciplinary measures or penalties to be imposed.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law,

it is

RECOMMENDED that a final order be entered by the Board:

1. Dismissing Petitioner's charge of a violation by

Respondent of Section 489.129(1)(g)1., Florida Statutes; and

2. Dismissing Petitioner's charge of a violation by

Re spondent of Section 489.129(1)(m), Florida Statutes.

DONE AND ENTERED this 25th day of May, 2005, in

Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

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 25th day of May, 2005.

COPIES FURNISHED :

Charles J. Pellegrin i, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Daniel J. Webster, Esquire

Daniel J. Webster, P.A.

149 South Ridgewood Avenue, Suite 500

Daytona Beach, Florida 32114 - 4365

Leon Bie galski, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Tim Vaccaro, Director

Construction Industry Licensing Board

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

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.