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

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

CONSTRUCTION INDUSTRY LICENSING )

BOARD, )

)

Petitioner, )

)

vs. ) Case No. 09-0174

)

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

)

)

Respondent. )

)

RECOMMENDED ORDER

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

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

Harrell, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Kyle Christopher, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

For Respondent: No appearance.

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent violated

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

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

PRELIMINARY STATEMENT

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

Professional Regulation (Department), filed a two-count

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

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

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

Florida Statutes, in the construction of an addition to a

residential structure located in Belleair, Florida. Respondent

requested an administrative hearing.

The case was forwarded to the Division of Administrative

Hearings on January 13, 2009, for assignment to an

administrative law judge to conduct the final hearing. The case

was originally assigned to Administrative Law Judge R. Bruce

McKibben, but was transferred to Administrative Law Judge Susan

B. Harrell to conduct the final hearing.

Respondent was provided notice of the final hearing

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

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

appeared for the final hearing nor had any representative of

Respondent appeared. The commencement of the final hearing was

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

appear, but neither Respondent nor a representative of

Respondent appeared for the final hearing.

At the final hearing, the Department presented the

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

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

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

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

proposed recommended orders. The Department filed Petitioner’s

Proposed Recommended Order on March 27, 2009. Respondent did

not file a proposed recommended order. Petitioner’s Proposed

Recommended Order has been given due consideration in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Page Wurts is a Florida State Certified Residential

Contractor, whose license number is CRC 1327279. His initial

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

on August 31, 2010.

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

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

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

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

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

Page Home Builders, Inc.

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

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

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

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

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

include the installation of a swimming pool and the renovation

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

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

2005, Ms. Capone and Page Home Builders, Inc., agreed to a

change order for additional windows, increasing the contract

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

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

contract to include the installation of an air conditioning

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

be supported by columns. This amendment increased the contract

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

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

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

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

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

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

several existing trusses without supporting the ceiling below

and without approval of the architect, causing the ceiling of

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

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

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

trapped in her house for approximately 30 minutes until she

could be extricated.

5. The hardwood floors were improperly installed. There

were numerous gaps between butt and side joints with some in

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

finished surfaces. Thresholds and reducers were missing. There

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

aligned instead of being randomly staggered. Additional

floating of the floors should have been done prior to the

installation of the wood flooring, especially at the arched

opening between the living room and hallway. The flooring color

is mismatched where it transitions from the living room to the

existing hall and bedrooms.

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

credible opinion that due to the poor workmanship on the project

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

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

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

resulted from a lack of supervision of the subcontractors by the

contractor. Mr. Bosley’s testimony is credited.

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

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

2008, Page Wurts acknowledged that Ms. Capone was entitled to a

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

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

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

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

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

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

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

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

the shoddy work is $33,645.50.

8. The Department incurred investigative costs in this

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

amount of $477.52.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

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

10. The Department has the burden to establish the

allegations in the Administrative Complaint by clear and

convincing evidence. Department of Banking and Finance v.

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

Department has alleged that Respondent violated Subsections

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

provide:

(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, 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:

* * *

(m) Committing incompetency or misconduct

in the practice of contracting.

(n) Committing gross negligence, repeated

negligence, or negligence resulting in a

significant danger to life or property.

11. The Department alleged in the Administrative Complaint

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

489.129(1)(n), Florida Statutes, by cutting several existing

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

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

a result of Respondent’s failure to supervise the subcontractors

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

12. Although Page Wurts did not personally cut the trusses

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

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

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

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

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

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

625 (Fla. 5th DCA 1982).

13. In Alles , the court reasoned that:

The obvious purpose of [Chapter 489, Part I,

Florida Statutes] allowing a company to act

as a contractor through a licensing

contractor is to insure that projects

undertaken by a company are to be supervised

by one certified and licensed by the board.

To allow a contractor to be the “qualifying

agent” for a company without placing any

requirement on the contractor to exercise any

supervision over the company’s work done

under his license would permit the contractor

to loan or rent his license to the company.

This would completely circumvent the

legislative intent that an individual,

certified as competent, be professionally

responsible for supervising construction work

on jobs requiring a licensed contractor.

Id.

14. The Department has established the allegations in the

Administrative Complaint by clear and convincing evidence.

Respondent was responsible for the negligent cutting of several

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

installing the hardwood floors. Respondent violated Subsections

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

15. There were many other examples of negligence in the

performance of the work at the Capone residence and of

incompetency in the work that was performed. However, those

instances were not alleged in the Administrative Complaint and

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

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

3rd DCA 2000); Ghani v. Department of Health , 714 So. 2d 1113

(Fla. 1st DCA 1998).

16. Florida Administrative Code Rule 61G4-17.001 sets

forth the disciplinary guidelines for the Construction Industry

Licensing Board. The penalty range for a violation of

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

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

or suspension. The penalty range, absent aggravating or

mitigating circumstances, for a violation of Subsection

489.129(1)(n), Florida Statutes, ranges from a $1,000 fine to a

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

17. Florida Administrative Code Rule 61G4-17.002 sets

forth aggravating and mitigating circumstances to be considered

in determining an appropriate disciplinary action and provides:

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

18. There are aggravating factors in the instant case.

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

of the negligence of Respondent. The ceiling of her home

collapsed, rendering her home uninhabitable. It will cost over

$50,000 to correct the poor work.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

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

489.129(1)(n), Florida Statutes, imposing a $10,000 fine,

revoking Respondent’s certification (License Nos. CRC 1327279

and QB 32526), requiring Respondent to pay restitution to

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

to pay investigative costs of 477.52.

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

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

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 April, 2009.

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2006 version.

COPIES FURNISHED :

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

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Kyle Christopher, Esquire

Department of Business &

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

Page Wurts

Page Home Builders, Inc.

5400 First Avenue North

St. Petersburg, Florida 33710

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.