05-001774PL Department Of Business And Professional Regulation vs. Stephen Wesley Williams Status: Closed Recommended Order on Thursday, August 11, 2005.

Summary: Respondent`s failure to complete the work as specified in the contract constituted misconduct. Recommend that Respondent be fined.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

CONSTRUCTION INDUSTRY )

LICENSING BOARD, )

)

Petitioner, )

)

vs. ) Case No. 05 - 1774PL

)

STEPHEN WESLEY WILLI AMS, )

)

Respondent. )

_________________ _______________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held on July 19,

2005, by video teleconference in Tallahassee and Jacksonville,

Florida, before the Division of Admini strative Hearings by its

designated Administrative Law Judge, Barbara J. Staros.

APPEARANCES

For Petitioner: Brian Elzweig, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Stre et

Tallahassee, Florida 32399 - 2202

For Respondent: Stephen Wesley Williams, pro se

3146 Brachenbury Lane

Jacksonville, Florida 32225

STATEMENT OF THE ISSUE

At issue is whether Respondent committed the offenses set

forth in the Amended Administrative Complaint and, if so, what

penalty should be imposed.

PRELIMINARY STATEMENT

Petitioner, Department of Business and Professional

Regulation, Construction Indu stry Licensing Board

(Department), filed an Amended Administrative Complaint on

December 29, 2004, which contained five counts of professional

violations against Respondent, Stephen Wesley Williams.

Specifically, the Department charged Respondent with

vio lations of Subsections 489.129(1)(j), (i) and (m), Florida

Statutes, by abandoning a construction project in which the

contractor is engaged or under contract as a contractor; by

failing to put the registration or certification number of

each contractor on each offer of service, business proposal,

bid, contract or advertisement used by that contractor in

violation of Section 489.119(6)(b), Florida Statutes; by

failing to include in a contract a written statement

explaining the consumer's rights under the Co nstruction

Industries Recovery Fund as required by Section 489.1425,

Florida Statutes; by failing to apply for a certificate of

authority for Superior Design Construction Company, Inc., as a

qualified business organization as required by Section

489.119(2) , Florida Statutes; and by committing incompetency

or misconduct in the practice of contracting.

Respondent disputed the allegations of the Amended

Administrative Complaint and requested an administrative

hearing. The case was referred to the Division o f

Administrative Hearings on or about May 17, 2005. A formal

hearing was set for July 19, 2005.

At hearing, Petitioner presented the testimony of Thomas

Shinn. Petitioner's Exhibits numbered 1 through 12 were

admitted into evidence.

Respondent testif ied on his own behalf and did not offer

any exhibits.

A Transcript, consisting of one volume, was filed on

July 25, 2005. On August 3, 2005, the Department timely filed

a Proposed Recommended Order, which has been considered in the

preparation of t his Recommended Order. Respondent did not

file any post - hearing submission. All citations are to

Florida Statutes (2004) unless otherwise indicated.

FINDINGS OF FACT

1. Petitioner, the Department, is the state agency

charged with the duty and respons ibility of regulating the

practice of contracting pursuant to Chapters 20, 455 and 489.

2. At all times material to the allegations of the

Amended Administrative Complaint, Stephen Wesley Williams,

d/b/a Superior Design Construction, Co. Inc., was license d as

a Florida State Certified Building Contractor and a Florida

State Certified Pool/Spa Contractor, having been issued

license numbers CRC 045849 and CPC 56443 respectively. His

licensure status for the Residential Contractor license is

designated as "C urrent, Active." His licensure status for the

Pool/Spa Contractor license is designated as "Delinquent,

Active."

3. On or about December 19, 2001, Respondent, doing

business as Superior Design Construction Company, Inc.,

entered into a contract with Thom as and Denise Shinn (the

Shinns) for construction of a residential swimming pool and

pool enclosure to be located at 4050 Retford Drive,

Jacksonville, Florida. The contract price was $40,000.00.

4. Respondent obtained a building permit for the job in

que stion as "Superior Design Const Co."

5. The contract does not contain a written statement

explaining the consumer's rights under the Construction

Industries Recovery Fund.

6. The Department's records establish that Respondent's

Certificate of Authority f or Superior Design and Construction

as a Contractor Qualified Business was issued on May 9, 1997,

but has been null and void since August 31, 1999.

7. Construction on the project began around January

2002. Work on the project ceased in or around March 20 02.

8. The construction was substantially completed when

work ceased on the pool. Mr. Shinn described it as "98

percent of it was finished except for the heater." Other than

the heater not being installed, Mr. Shinn considered the few

other items that w ere not completed as minor.

9. The contract specified the installation of a heat

pump called an Ice Breaker. This type of pump was specified

because it can both heat and cool a pool, which is what the

Shinns wanted.

10. Mr. Shinn paid Respondent a tot al of $38,050 for the

job. According to Mr. Shinn, he withheld the final payment of

$1,950 because the Ice Breaker heat pump was not installed.

According to Respondent, he did not put in the heat pump

because he had not been paid the remaining $1,950.

11 . The portion of the contract entitled Contract Price

& Payment Schedule requires a payment of $1,000 at contract

execution and four subsequent payments:

Payment #1 - 35% due at Excavation;

Payment #2 - 30% due at Gunite;

Payment #3 - 30% due at Deck;

Pa yment #4 - 5% due at Plaster.

The amount listed for payment number 4 is $1,950.

12. Included in the General Terms and Conditions portion

of the contract is the following:

PAYMENTS & COLLECTIONS. Contractor

reserves the right to stop work at any time

past due payment occurs. Owner hereby

expressly agrees to such work stoppage and

any such work stoppage shall not constitute

a breach of contract by contractor. If

collection is required of any amounts due

under the terms of this contract, or any

subsequ ent approved schedule, owner

expressly agrees that he shall be

responsible for 18% interest and reasonable

attorney's fees for trial, appeal and all

costs.

13. Mr. Shinn contacted Respondent several times

regarding completion of the contract. While Respondent did

not answer many of Mr. Shinn's calls, he did come to the

Shinn's home at one point to resolve the situation. However,

the heat pump issue remained unresolved.

14. Out of frustration, Mr. Shinn contacted an attorney

who wrote a demand lette r to Respondent. On or about October

31, 2002, the City of Jacksonville, Department of Public

Works, Building Inspection Division, sent a letter to Mr.

Shinn notifying him that Respondent had not obtained any

inspections for 180 days and that state law co uld consider

this project abandoned. The letter suggested that he contact

Respondent immediately to attempt to rectify this situation.

Mr. Shinn continued to attempt to contact Respondent but was

unsuccessful.

15. Respondent did not notify the Shinns in writing that

he was canceling the contract. He did not go to the city to

cancel the permit.

16. One work item that was not completed when Respondent

ceased working on the job was an unfinished electrical socket

near the pool. Mr. Shinn hired Thompson Electric to complete

this electrical work that was contemplated by the contract.

As a result, Mr. Shinn paid $207.50 to Thompson Electric to

have this work completed.

17. In January of 2004, Mr. Shinn contracted with Pinch -

A - Penny to install a heater i n the pool as one had never been

installed. He paid Pinch - A - Penny $3,777.09 to install a pool

heater. Mr. Shinn chose to install only a pool heater and not

the heating and cooling system specifically referenced in the

contract (Ice Breaker) because the I ce Breaker would have cost

him $5,500 from Pinch - a - Penny.

18. The amount needed to complete the job as contracted

totaled was $5,707.50, which includes $207.50 for Thompson

Electric and $5,500.00 for the Ice Breaker heat pump, which is

what Pinch - a - Penny charges. Subtracting the $1,950 that the

Shinns never paid Respondent leaves a balance of $3,757.50

that the Shinns paid or would have to pay to get the completed

pool as contemplated by the contract.

19. As of June 2, 2005, the Department's costs of

inv estigation and prosecution, excluding legal costs, totaled

$614.77.

20. Respondent's construction company went out of

business on a date that is not clear from the record although

Respondent described this job as "about the last pool I

built." Clearly, h e was no longer in the construction

business on the date of the hearing.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case.

§§ 120.569, 120.57(1), and 120.60(5), Fla. Sta t. (2002)

22. Petitioner has the burden of proving by clear and

convincing evidence the specific allegations of the Amended

Administrative Complaint. See Ferris v. Turlington , 510 So.

2d 292 (Fla. 1987); Department of Banking and Finance v.

Osborne Ste rn & Co. , 670 So. 2d 932 (Fla. 1996).

23. Section 489.129(1) reads in pertinent part as

follows:

(1) The board may take any of the

following actions against any

certificateholder or registrant: place on

probation or reprimand the licensee,

revoke, suspen d, 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

$5,000 per violation, require continuing

education, or assess costs associated with

investigation and prosecution, if the

contractor, financially responsible

officer, or business organization for which

the contractor is a primary qualifying

agent , a financially responsible officer,

or a secondary qualifying agent responsible

under s. 489.1195 is found guilty of any of

the following acts:

* * *

(i) Failing in any material respect to

c omply with the provisions of this part

or violating a rule or lawful order of

the board.

(j) Abandoning a construction project in

which the contractor is engaged or under

contract as a contractor. A project may be

presumed to be 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.

* * *

(m ) Committing incompetency or misconduct

in the practice of contracting.

24. Section 489.119 reads in pertinent part as follows:

489.119 Business organizations; qualifying

agents. --

* * *

(2) If th e applicant proposes to engage in

contracting as a business organization,

including any partnership, corporation,

business trust, or other legal entity, or

in any name other than the applicant's

legal name or a fictitious name where the

applicant is doing business as a sole

proprietorship, the business organization

must apply for a certificate of authority

through a qualifying agent and under the

fictitious name, if any.

* * *

(6)(b) The registration or certification

number of each contractor or certif icate of

authority number for each business

organization shall appear in each offer of

services, business proposal, bid, contract,

or advertisement, regardless of medium, as

defined by board rule, used by that

contractor or business organization in the

pra ctice of contracting.

* * *

(6)(e) The board shall issue a notice of

noncompliance for the first offense, and

may assess a fine or issue a citation for

failure to correct the offense within 30

days or for any subsequent offense, t o any

contractor or business organization that

fails to include the certification,

registration, or certificate of authority

number as required by this part when

submitting an advertisement for

publication, broadcast, or printing or

fails to display the ce rtification,

registration, or certificate of authority

number as required by this part.

25. Section 489.1425 reads in pertinent part as follows:

489.1425 Duty of contractor to notify

residential property owner of recovery

fund. --

(1) Any agreement or contract for repair,

restoration, improvement, or construction

to residential real property must contain a

written statement explaining the consumer's

rights under the [Construction Indust ries

Recovery Fund], except where the value of

all labor and materials does not exceed

$2,500. . . .

* * *

(2)(a) Upon findings a first violation of

subsection (1), the board may fine the

co ntractor up to $500, and the moneys must

be deposited into the recovery fund.

26. The Amended Administrative Complaint charges

Respondent with violating Section 489.129(1)(j), Florida

Statutes, by abandoning a construction project in which the

contra ctor is engaged or under contract. While Respondent

takes the position that the Shinns were in default by not

paying the final payment of $1,950, the project was abandoned

by operation of law. § 489.129(1)(j), Fla. Stat.

Accordingly, the Departmen t has met its burden of proof

regarding this allegation.

27. The Amended Administrative Complaint charges

Respondent with violating Section 489.129(1)(i), Florida

Statutes, by failing in any material respect to comply with

the applicable statutes and rules by doing business as

Superior Design Construction Company, Inc., but not having a

valid certificate of authority for Superior Design

Construction Company, Inc., as a qualified business

organization as required by Section 489.119(2)(b), Florida

Statutes. As Respondent's certificate of authority has been

null and void since August 1999, Respondent was not in

compliance with Section 489.119(2)(b), Florida Statutes, and

the Department met its burden regarding this allegation.

28. The Amended Administrative C omplaint charges

Respondent with violating Section 489.129(1)(i), Florida

Statutes, by failing to include Respondent's registration or

certification number on the contract as required by Section

489.119(6)(b), Florida Statutes. As the contract does not

co ntain Respondent's license certificate number, the

Department has met its burden in proving that allegation.

29. The Amended Administrative Complaint charges

Respondent with violating Section 489.129(1)(i), Florida

Statutes, by failing in any material res pect to comply with

applicable statutes and rules by failing to include in the

contract with the Shinns a written statement explaining the

consumer's rights under the Construction Industries Recovery

Fund as required by Section 489.1425, Florida Statutes.

Respondent did not include any such written statement in the

contract with the Shinns. Accordingly, Petitioner has met its

burden that Respondent violated this provision.

30. The Amended Administrative Complaint charges

Respondent with violating Sectio n 489.129(1)(m), Florida

Statutes, by committing incompetency or misconduct in the

practice of contracting. The Department takes the position

that Respondent's abandonment of the job; failure to have a

valid certificate of authority for Superior Design

Co nstruction Company, Inc., as a qualified business

organization; failure to put his license certification numbers

on the contract; and failure to include notice of the

Construction Industries Recovery Fund in the contract,

constitute misconduct. The Depart ment has met its burden

regarding this allegation.

31. Regarding Respondent's failure to include a

registration or certification number of the contractor or

certificate of authority of the business organization, Section

489.119(6), Florida Statutes, speci fies that the Board shall

issue a notice of noncompliance for the first offense, and may

assess a fine or issue a citation for failure to correct the

offense within 30 days. Accordingly, this appearing from the

record to be Respondent's first offense, the only appropriate

penalty is the issuance of a notice of noncompliance by the

Construction Industry Licensing Board.

32. The Department, pursuant to Florida Administrative

Code Rule 61G4 - 17.001 (2003), seeks imposition of fines in the

total amount of $2 ,600.00, restitution, and a requirement that

Respondent obtain a valid certificate of authority within 30

days of the Final Order. The fines sought by the Department

are as follows: $1,500 for abandonment of the job (from a

range of $500 to $2,000); $700 for misconduct (from a range of

$500 to $1,000); $100 for failure to put license number in the

contract; and $300 for failure to inform the consumer of the

Construction Industry Recovery Fund (from a range of $100 to

$500).

33. Florida Administrative C ode Rule 61G4 - 17.001, sets

forth guidelines referenced above, for the imposition of

fines, absent aggravating or mitigating circumstances.

Florida Administrative Code Rule 61G4 - 17.002 sets forth

circumstances which may be considered for the purpose of

mit igation or aggravation of penalty. Included are: danger to

the public; the number of complaints filed against the

licensee; the effect of the penalty on the licensee's

livelihood; and any other mitigating or aggravating

circumstances. Respondent is out o f the construction

business. He presents no danger to the public. There is no

evidence of any prior complaints filed against Respondent.

Any penalty will cause a hardship on Respondent as he has gone

out of business. And, while Respondent abandoned the job

through operation of law, it is equally clear that the amount

of the contract was not paid in full by the Shinns. The final

payment of $1,950 was required under the contract to be paid

at time of plaster. Obviously, this did not happen.

Accordingly , lesser fines are more appropriate here.

34. As to restitution, the evidence supports restitution

in the amount of $3,757.50, to reimburse the Shinns for moneys

paid and will have to be paid to receive the products and

services specified in the contract.

35. As to requiring Respondent to apply for a new

certificate of authority within 30 days of the Final Order,

Respondent's company is out of business. Thus, requiring him

to obtain a new certificate of authority is unnecessary and

not appropriate under this circumstance.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law set forth herein, it is

RECOMMENDED:

That the Construction Industry Licensing Board enter a

final order imposing a $100.00 fine to be deposited in th e

Construction Industries Recovery Fund for a violation of

Section 489.1425; issue a notice of noncompliance pursuant to

Section 489.119(6)(e); impose fines in the amount of $500 for

abandonment of a construction job; $500 for misconduct; and

$100 for fail ure to put his license number on the contract;

pay $3,757.50 in restitution; and require Respondent to pay

$614.77 in costs of investigation and prosecution.

DONE AND ENTERED this 11th day of August, 2005, in

Tallahassee, Leon County, Florida.

S

___________________________________

BARBARA J. STAROS

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) 92 1 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of August, 2005.

COPIES FURNISHED:

Brian Elzweig, Esquire

Department of Bu siness and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Stephen Wesley Williams

3146 Brachenbury Lane

Jacksonville, Florida 32225

Tim Vaccaro, Executive Director

Construction Industry Licensing Board

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Leon Biegalski, General Counsel

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

w ill issue the final order in this case.