09-000121 Department Of Business And Professional Regulation, Construction Industry Licensing Board vs. Fred Bowyer, D/B/A Proteam And Associates, Inc. Status: Closed Recommended Order on Wednesday, May 6, 2009.

Summary: Petitioner proved that Respondent was the primary qualifying agent for ProTeam. Respondent abandoned one project and failed to properly supervise a second project. Recommend 4 years probation, administrative fine, costs and restitution.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

CONSTRUCTION INDUSTRY LICENSING )

BOARD, )

)

Petitioner, )

)

vs. ) Case No. 09-0121

)

FRED BOWYER, d/b/a PROTEAM AND ASSOCIATES, INC., )

)

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held before

Daniel M. Kilbride, Administrative Law Judge of the Division of

Administrative Hearings (DOAH), by video teleconference in the

above-styled case on March 18, 2009, between Tallahassee,

Florida, and Tampa, Florida.

APPEARANCES

For Petitioner: Kyle Christopher, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399

Latoyia Adams

Qualified Representative

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399

For Respondent: (No appearance)

STATEMENT OF THE ISSUE

Whether disciplinary action should be taken against

Respondent’s licenses to practice contracting, license numbers

CGC057941, CGC1509240 and QB37866, based on alleged violations

of Section 489.1425, and Subsections 489.129(1)(g)1.,

m),

and 489.129(1)(o), Florida Statutes (2007), 1 as charged in the

Administrative Complaint filed against Respondent in this

proceeding.

PRELIMINARY STATEMENT

On July 11, 2008, Petitioner filed a nine-count

Administrative Complaint alleging that Respondent had violated

laws regulating 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 DOAH to conduct a hearing pursuant

to Section 120.57, Florida Statutes. The Initial Order and

subsequent notices and discovery requests were sent to the last

known address provided by Respondent. The formal hearing in

this matter was subsequently set for video teleconference

between Tallahassee and Tampa. The live witnesses appeared at

the Tampa location. Diligent search and inquiry was made to

determine the whereabouts of Respondent, but he could not be

located. After waiting a reasonable period of time, the hearing

was conducted.

At the hearing, Petitioner offered the testimony of three

witnesses: Ms. Kelly Berry (Berry), Mr. Rune Lero (Lero) and

Ms. Cecile Van Winkle (Van Winkle). Petitioner introduced 11

exhibits designated 1 through 11, all of which were entered into

evidence. The Transcript of the hearing was filed on March 30,

2009. Petitioner filed its Proposed Recommended Order on

April 9, 2009. Respondent has not filed post-hearing submittals

as of the date of the 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 found.

1. Respondent is and has been, at all times material

hereto, a certified general contractor in the State of Florida,

having been issued license numbers CGC057941 and CGC1509240.

2. At all times material hereto, Respondent was the

primary qualifying agent for ProTeam and Associates, Inc.

(ProTeam), which has a certificate of authority, QB number

37866.

3. Respondent alleged in his request for a formal hearing

that he sold ProTeam on August 11, 2005, and removed his name as

qualifying agent on the same date. However, no proof of such

sale and withdrawal was offered in evidence. In addition,

Respondent claimed to have placed his two contractors’ licenses

on inactive status in April 2007. The records of Petitioner

show that the licensure status of Respondent’s Certified General

Contractor license numbers CGC057941 and CGC1504240 is

“Delinquent Inactive.” These licenses expired on September 30,

2008, and became delinquent on October 1, 2008, upon failure to

renew by the date of expiration.

Facts Pertaining to Counts I – IV

Petitioner’s Case No. 2007-022091

4. On or about November 8, 2006, Van Winkle entered into a

contract with ProTeam to repair water damage to Van Winkle’s

residence located at 3620 Ironwood Circle, Building O, Unit 402,

Bradenton, Florida.

5. The contracted price for the construction, including

change orders, was $18,358.50, of which amount ProTeam accepted

approximately $15,604.71.

6. The contract did not contain a statement explaining the

consumer’s rights under the Florida Homeowners’ Construction

Recovery Fund.

7. Construction commenced on or about November 15, 2006,

and continued until ProTeam abandoned the project.

8. At the time ProTeam abandoned the project, the

percentage of completion was less than the percentage of the

total contract price paid by Van Winkle.

9. Van Winkle had paid monies in the amount of $15,604.71,

an amount sufficient to cover the first three draws of the

contract, which should have included all aspects of the project

except for the cabinet installation and punchlist. Respondent

received draws to complete the painting and to order and deliver

cabinets and vanities, but failed to do so. Respondent accepted

85 percent of the contract price for Van Winkle’s restoration

project and provided only demolition and preparation work,

carpet and an unfinished paint job. There is no evidence in the

record to suggest that Respondent provided Van Winkle with any

refund within 30 days after the job was abandoned, and, given

that the paint was unfinished and the vanities and cabinets were

not provided there is no evidence that Respondent was entitled

to keep the amount of funds received under the terms of the

contract. The excess amounted to $6,425.47

10. On or about January 25, 2007, a lien was filed against

Van Winkle’s property by Carpet Corner, Inc. for unpaid services

in the amount of $1,745.09. The valid lien was recorded against

Van Winkle’s property for carpeting ordered by Respondent for

Van Winkle’s job.

11. Respondent received funds from Van Winkle to pay for

the carpet, but Respondent failed to apply those funds towards

full payment of the carpet subcontractor. The lien was filed on

January 29, 2007, and was not released until Van Winkle paid

$1,745.09 to the carpet subcontractor on August 23, 2007, a

period greater than 75 days.

12. Van Winkle’s testimony seems, at times, to confuse the

amount of the lien and the amount paid to release it with the

amount paid by Respondent to the carpet subcontractor. However,

her testimony also indicates that Respondent only paid $1,000.00

to the carpet subcontractor out of a $2,745.09 total contract.

It is clear that the amount of the lien, and the amount paid by

Van Winkle to release the lien, was $1,745.09, as indicated in

the records of the Manatee County Clerk of Circuit Court.

13. The total investigative costs to Petitioner, excluding

costs associated with an attorney’s time, for Petitioner’s case

number 2007-022091, was $253.42.

Facts Pertaining to Counts VI – IX

Petitioner’s Case No. 2007-039332

14. On or about August 29, 2006, Berry entered into a

contract with ProTeam to repair water damage to Berry’s

residence located at 4152 Whittner Drive, Land O’Lakes, Florida.

15. The contracted price for the construction, including

change orders, was $17,921.33.

16. ProTeam accepted approximately $18,908.74 from Berry

for the project.

17. The contract did not contain a statement explaining

the consumer’s rights under the Florida Homeowners’ Construction

Recovery Fund.

18. No permit was obtained for the project. However, the

job was completed. A permit was required for Berry’s project

due to the fact that the contract called for the replacement of

a shower pan and removal of a structural element. A thorough

search of Pasco County records indicated that Respondent did not

obtain a permit for this project.

19. The new stucco did not match the old stucco and needed

to be redone, and Berry had to pay an additional $988.40 to have

the stucco repaired and repainted.

20. The total investigative costs to Petitioner, excluding

costs associated with an attorney’s time, for Petitioner’s case

number 2007-039332, was $285.51.

CONCLUSIONS OF LAW

21. The DOAH has jurisdiction over the parties and subject

matter of this proceeding, pursuant to Section 120.57, Florida

Statutes.

22. Petitioner is the state agency charged with regulating

the practice of contracting pursuant to Section 20.165 and

Chapters 455 and 489, Florida Statutes.

23. Pursuant to Section 489.129, Florida Statutes, the

Board 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.

24. Petitioner has the burden of proving by clear and

convincing evidence the allegations against Respondent.

§ 120.57(1)(j), Fla. Stat.; Ferris v. Turlington , 510 So. 2d 292

(Fla. 1987); Department of Banking and Finance v. Osborne Stern

and Co. , 670 So. 2d 932 (Fla. 1996).

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

Consumer Services , 550 So. 2d 112, 116, 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).

26. The Administrative Complaint alleges that Respondent

is guilty of having violated Section 489.1425, Florida Statutes,

which provides, in pertinent part, as follows:

(1) Any agreement or contract for repair,

restoration, improvement, or construction to

residential real property must contain a

statement explaining the consumer’s rights

under the recovery fund, except where the

value of all labor and materials does not

exceed $2,500.00.

27. Subsections 489.129(1)(g)1., 2., and 3.; (j); (m)

and (o), Florida Statutes, 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 authenticity,

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:

1. Valid liens have been recorded against

the property of a contractor’s customer for

supplies or services 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;

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 at 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; or

3. The contractor’s job has been completed,

and it is shown that the customer has had to

pay more for the contracted job than the

original contract price . . .

* * *

(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.

* * *

(o) Proceeding on any job without obtaining

applicable local building department permits

and inspections;

28. Petitioner has proven by clear and convincing evidence

that Respondent violated Section 489.1425, Florida Statutes,

Counts One and Six of the Administrative Complaint, by failing

to include a statement explaining the consumer’s rights under

the recovery fund in a contract for repair, restoration,

improvement, or construction to residential real property. Both

contracts pertained to residential property and were in excess

of $2,500.00, and Respondent did not include the recovery fund

statement, as set forth in Subsection 489.1425(1), Florida

Statutes, in either the Van Winkle contract or the Berry

contract.

29. Petitioner has proven by clear and convincing evidence

that Respondent violated Subsection 489.129(1)(g)1., Florida

Statutes, Count Two of the Administrative Complaint, by

committing mismanagement or misconduct (valid liens filed) in

the practice of contracting that causes financial harm to a

customer.

30. Petitioner has proven by clear and convincing evidence

that Respondent violated Subsection 489.129(1)(g)2., Florida

Statutes, Count Three of the Administrative Complaint, by

committing mismanagement or misconduct in the practice of

contracting that causes financial harm to a customer, and

Respondent abandoned Van Winkle’s job.

31. Petitioner has proven by clear and convincing evidence

that Respondent violated Subsection 489.129(1)(j), Florida

Statutes, Count Four of the Administrative Complaint, by

abandoning a construction project in which the contractor is

engaged or under contract as a contractor. Respondent ceased

work and abandoned Van Winkle’s job after completing only

preparation and cosmetic work. To date, Respondent has not

returned to complete the project, and, given that Respondent

received payments for all aspects of the project except cabinet

installation and punchlist items, there is no evidence in the

record that Respondent had just cause to cease work on the

project.

32. Petitioner has proven by clear and convincing evidence

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

Statutes, Count Five of the Administrative Complaint,

by committing misconduct or incompetency in the practice

of contracting. Florida Administrative Code Rule

61G4-17.001(1)(m)2. provides that misconduct or incompetency in

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

to, violation of any provision of Florida Administrative Code

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

33. Petitioner has proven by clear and convincing evidence

that Respondent violated Subsection 489.129(1)(g)3., Florida

Statutes, Count Seven of the Administrative Complaint, by

committing mismanagement or misconduct in the practice of

contracting that causes financial harm to a customer. Berry’s

project was completed with the exception of a section of stucco

which was not the correct color. This is a cosmetic preference

and/or workmanship defect which does not indicate that

Respondent failed to complete the project. Berry’s total

contract price was $17,921.33, but Berry paid Respondent

$18,908.74. Respondent presented no evidence to indicate that

the additional payment was the result of change orders,

circumstances beyond Respondent’s control, circumstances caused

by Berry or was otherwise permitted by the terms of the

contract.

34. Petitioner has proven by clear and convincing evidence

that Respondent violated Subsection 489.129(1)(o), Florida

Statutes, Count Eight of the Administrative Complaint, by

proceeding on a job without obtaining applicable local building

department permits and inspections.

35. Respondent is subject to disciplinary action by the

Board pursuant to Section 489.129, Florida Statutes. The

disciplinary action under this statute includes, but is not

limited to, 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,

requiring continuing education and assessing costs associated

with investigation and prosecution.

36. Subsection 455.2273(5), Florida Statutes, states that

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 the

recommended penalty is based.

37. 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 to be 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 upon the

licensee’s livelihood.

(9) Any efforts at rehabilitation

(10) Any other mitigating or aggravating

circumstances.

38. Florida Administrative Code Rule 61G4-17.001, as

amended January 24, 2005, provides, in pertinent part, the

following guidelines that are applicable to case number

2007-0022091 for violations under Section 489.129, Florida

Statutes:

(1) The following guidelines shall be used

in disciplinary cases, absent aggravating or

mitigating circumstances and subject to

other provisions of this chapter.

* * *

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

Mismanagement or misconduct causing

financial harm to the customer. First

violation, $1,500 to $2,500 fine,

restitution and/or probation.

* * *

(i) Section 489.129(1)(i), F.S.: Failing

in any material respect to comply with the

provisions of Part I of Chapter 489, Florida

Statutes.

* * *

4. Section 489.1425, F.S.: Failure to

notify residential property owner of

recovery fund. First violation, $250 to

$2,000 fine . . .

* * *

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

Abandonment. First violation, $5,000 to

$1,000 fine and/or probation . . .

* * *

(m) Misconduct or incompetence 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.

* * *

4. The following guidelines shall apply to

cases involving misconduct or incompetency

in the practice of contracting, absent

aggravating or mitigating circumstances:

* * *

b. Violation of any provision

of Chapter 61G4, F.A.C., or Chapter 489,

Part I, F.S. First violation, $1,000 to

$2,500 fine . . .

39. Florida Administrative Code Rule 61G4-17.001, as

amended November 2, 2006, provides, in pertinent part, the

following guidelines that are applicable to case number 2007-

039332 for violations under Section 489.129, Florida Statutes:

(1) The following guidelines shall be used

in disciplinary cases, absent aggravating or

mitigating circumstances and subject to

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 fine and/or probation or

suspension to $5,000 fine, and/or probation

or suspension.

* * *

(i) Section 489.129(1)(i), F.S.: Failing

in any material respect to comply with the

provisions of Part I of Chapter 489, Florida

Statutes.

4. Section 489.1425, F.S.: Failure to

notify residential property owner of

recovery fund. First offense, $250 to $500

fine . . .

* * *

(m) Misconduct or incompetence 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 violation, $1,000 fine and/or

probation or suspension to $2,500 fine

and/or probation or suspension.

* * *

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

Proceeding on any job without obtaining

applicable local building department permits

and/or inspections.

* * *

3. Job finished without a permit having

been pulled, or no permit until caught after

job, or late permit during the job resulting

in missed inspection or inspections. First

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

probation . . .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that an order be rendered as follows:

1. Finding Respondent guilty of having violated Section

489.1425, Florida Statutes, Count One of the Administrative

Complaint, and imposing as a penalty an administrative fine of

$2,000.00.

2. Finding Respondent guilty of having violated Subsection

489.129(1)(g)1., Florida Statutes, Count Two of the

Administrative Complaint; imposing as a penalty an

administrative fine of $2,500.00 and restitution in the amount

of $1,745.09; 2 and placing Respondent’s licenses (License Nos.

CGC057941, GCG1509240, and QB37866) on probation for a period of

four years.

3. Finding Respondent guilty of having violated

Three of the Administrative Complaint, and imposing as a penalty

an administrative fine of $2,500.00 and restitution in the

amount of $6,425.47. 3

4. Finding Respondent guilty of having violated Subsection

489.129(1)(j), Florida Statutes, Count Four of the

Administrative Complaint, and imposing as a penalty an

administrative fine of $5,000.00

5. Finding Respondent guilty of having violated Subsection

489.129(1)(m), Florida Statutes, Count Five of the

Administrative Complaint, and imposing as a penalty an

administrative fine of $2,500.00.

6. Finding Respondent guilty of having violated Section

489.1425, Florida Statutes, Count Six of the Administrative

Complaint, and imposing as a penalty an administrative fine of

$500.00.

7. Finding Respondent guilty of having violated Subsection

489.129(1)(g)3., Florida Statutes, Count Seven of the

Administrative Complaint, and imposing as a penalty an

administrative fine of $5,000.00 and restitution in the amount

of $1,975.81. 4

8. Requiring Respondent to pay Petitioner’s costs of

investigation and prosecution, excluding costs associated with

an attorney’s time, in the amount of $511.93.

DONE AND ENTERED this 6th day of May, 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 6th day of May, 2009.

ENDNOTES

1/ All references to Florida Statutes are to Florida

Statutes (2007), unless otherwise indicated.

2/ Amount paid to remove lien filed by Carpet Corner, Inc.

3/ Amount of third draw, for which no work was performed.

4/ Amount paid in excess of contract price plus amounts paid to

correct stucco and painting.

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

Kyle Christopher, Esquire

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

Fred Bowyer

73673 Shangrila Beach Road, R.R. No. 2

Zurich, Ontario, Canada M0N 2TO

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.