09-003646 Department Of Business And Professional Regulation vs. Ronald R. Marra, D/B/A Pro Tech Building Systems, Llc Status: Closed Recommended Order on Wednesday, March 31, 2010.

Summary: Petitioner proved by clear and convincing evidence that Respondent committed mismanagement that caused financial harm, incompetency and abandonment of the job. Respondent's defense was not persuasive. Recommend suspension and probation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) Case No. 09-3646

)

RONALD R. MARRA, d/b/a PRO TECH BUILDING SYSTEMS, LLC, )

)

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held before

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

Administrative Hearings, in the above-styled case on

November 19, 2009, in Fort Myers, Florida.

APPEARANCES

For Petitioner: Sorin Ardelean, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399

For Respondent: Ronald R. Marra

Pro Tech Building Systems, LLC

11332 Pond Cypress

Fort Myers, Florida 33913

STATEMENT OF THE ISSUE

Whether disciplinary action should be taken against

Respondent’s license to practice contracting, license number

CGC1507637, based on the violations alleged as follows:

a) By committing mismanagement or misconduct in the

practice of contracting that causes financial harm to a customer

in violation of Subsection 489.129(1)(g)2., Florida Statutes

(2006) 1 ;

b) By abandoning a construction project in which the

contractor is engaged or under contract as a contractor, in

violation of Subsection 489.129(1)(j), Florida Statutes; and

c) By committing incompetency or misconduct in the

practice of contracting, in violation of Subsection

489.129(1)(m), Florida Statutes, and, if so, what penalty should

be imposed.

PRELIMINARY STATEMENT

On May 12, 2008, Petitioner, Department of Business and

Professional Regulation, filed an Administrative Complaint

alleging that Respondent, Ronald Mara, violated the laws

regulating his professional activities as a certified contractor

in the State of Florida. Respondent disputed the allegations

contained in the Administrative Complaint and elected to have a

formal administrative hearing. Subsequently, the case was

transferred to the Division of Administrative Hearings (DOAH) to

conduct a hearing pursuant to Section 120.57, Florida Statutes.

At the hearing, Petitioner offered the testimony of four

witnesses: Investigator Larry Chatfield, Michael Dalla Costa,

Alvin Coiner and Harley Carter. Petitioner introduced 12

exhibits, which were entered into evidence.

Respondent testified in his individual capacity, and

introduced four exhibits which were entered into evidence.

Petitioner moved that the record remain open in order to

permit Petitioner to take the deposition testimony of Scott

White, the successor contractor on the project in question.

Petitioner was granted permission to take the deposition within

a reasonable period of time. As of the date of this Recommended

Order, the deposition testimony of Scott White has not been

taken or filed. The Transcript of the hearing was filed on

December 4, 2009. Petitioner filed its Proposed Recommended

Order on December 14, 2009. Respondent has not filed his

proposal as of the date of this Recommended Order.

FINDINGS OF FACT

Based on the evidence, the following facts are found:

1. At all times material, Respondent was a certified

general contractor, having been issued license number CGC1507637

by the Florida Construction Industry Licensing Board (CILB).

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

Pro-Tech Building Systems, LLC.

3. On September 14, 2006, Respondent entered into a

contract with the owner, Alvin Coiner, to erect the walls of

the residence that Coiner was building on a lot he owned in

St. James City, Florida.

4. The price of the contract with Respondent was

$38,253.00. It called for the erection of reinforced concrete

walls, using insulated concrete Integra-Spec ® forms produced by

the Canadian manufacturer Phil-Insul Corporation.

5. Initially, Coiner planned to build the house using

concrete blocks for the outer walls, and engineering plans were

submitted to the County building department, which were

approved.

6. At some time before September 14, 2006, Respondent,

Michael Dalla Costa and Coiner met at Respondent’s office and

agreed to construct the walls using the Integra-Spec ® Insulated

Concrete forms (ICF) system instead of regular concrete blocks.

7. All parties agreed that the transitioning from concrete

blocks to Integra-Spec ® ICF should not present any issues if the

slab was code-compliant.

8. Integra-Spec ® insulated concrete forms are a technology

used to build steel-reinforced concrete walls. It uses

Styrofoam Lego ® -like interlocking inner and outer panels, locked

together with a web of plastic ties, between which the rebar is

installed inside, vertically and horizontally. After the forms

are installed and the rebar is put in place, raw concrete is

then pumped in the space between the panels, thus forming the

concrete insulated walls after the concrete cures.

9. Coiner discussed with a representative of the Phil-

Insul Corporation the requirements to build a home using the

Integra-Spec ® forms. To do so required a trained professional.

10. Respondent assured Coiner that he was fully trained to

install Phil-Insul products and that he had completed several

jobs in the Ft. Myers area. Respondent claimed that he was very

experienced with both Integra-Spec ® forms and with Greenblock

concrete forms, and he was also very knowledgeable as to the

building code requirements for insulated concrete forms in Lee

and Collier Counties.

11. The Integra-Spec ® walls were to be constructed in

compliance with all local building codes and requirements and

were to be certified by the design engineer.

12. Coiner hired Gary Harvey Engineering of Ft. Myers as

the engineer of record.

13. Michael Dalla Costa supervised and coordinated the

work on behalf of Coiner during Coiner’s absence from the area.

14. In the fall of 2006, Respondent submitted to Dalla

Costa some plans that were not approved by Harvey Engineering.

Through an error, the plans were submitted to the Lee County

Building Department. The building department denied the plans,

as they were not approved by the engineer of record, Harvey

Engineering.

15. On November 20, 2006, and January 30, 2007, Harvey

Engineering submitted revised plans that were approved by the

building department.

16. The revised plans by Harvey Engineering were the

official documentation to show how the job should proceed.

17. Between October and December 2006, the relationship

deteriorated between Respondent, and the building inspector,

Dalla Costa and Coiner. Respondent repeatedly argued with the

others over whether an additional quantity of rebar, required by

the building department, had to be installed.

18. The building inspector did not approve work done by

Respondent. Based on his inspection and determination that

rebar was missing, the building inspector advised the owner

that, in the inspector’s opinion, Respondent did not do a proper

job in preparing the walls for the pouring of the concrete into

the walls.

19. Respondent installed the Integra-Spec ® ICF forms and

the additional rebar, and then stopped work at some point in the

beginning of December 2006.

20. Dalla Costa had paid Respondent a total of $34,955.00

up to this point.

21. Respondent sent a proposed change order and asked

Coiner to pay him an additional $9,239.44, in addition to the

agreed contract price. He threatened to completely stop work

and leave the job. Coiner did not agree to the proposed change

order or to pay additional money over the original contract

price.

22. According to Respondent the slab was not level, which

created additional work for Respondent to properly install the

Integra-Spec ® forms. However, there is no dispute that the slab

was code-compliant and passed inspection. The contract between

parties does not provide for contract price adjustments based on

additional work incurred due to slabs that are out of level.

23. According to the Integra-Spec ® installation manual,

there are two methods of adjustment when the slabs are out of

level, including provision for tolerances in excess of one inch.

The manual recommends that when the slab is in excess of one

inch out of level, shaving the bottom course of the form units

at highest point of slab.

24. Respondent testified that he was familiar with the

adjustment methods when the slab is out of level.

25. Due to lack of work on the construction site between

the second half of December 2006, and the end of March 2007,

Coiner hired an attorney to help him deal with Respondent.

Coiner’s attorney contacted Respondent in writing on April 2 and

April 13, 2007, requesting that Respondent resume work. He did

not return to the job.

26. Based on advice from the attorney, Coiner hired

contractor Scott White as a consultant to oversee the project

and advise Coiner as to how to proceed on the project.

27. As the project situation deteriorated further due to

Respondent ceasing work completely, failing inspections and

Integra-Spec ® forms falling down, Coiner hired White to finish

the job for the price of $17,250.00. White erected the walls

and finished the job in a professional manner, which passed

inspection.

28. According to testimonies by Coiner and Respondent

himself, Respondent completed between 75% to 90% of the job.

However, due to Respondent’s abandoning the job site for months,

the Integra-Spec ® forms had been blown down by winds and had to

be re-installed or re-aligned by White.

29. The concrete pre-pour inspection was never completed.

Respondent never poured the concrete and he never finished the

walls.

30. Due to Respondent’s abandonment of the job, Coiner

incurred additional expenses of $26,550.00 as follows: an

additional six months of construction loan interest at $200.00

per month, $6,500.00 in legal fees, $1,500.00 for consulting

fees, about $100.00 for failed inspections fees, and $17,250.00

paid to White to finish Respondent’s job.

31. The total investigative costs of this case to

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

were $351.47.

32. Respondent’s reasons for abandoning the job are not

persuasive.

CONCLUSIONS OF LAW

33. DOAH has jurisdiction over the parties to and the

subject matter of this proceeding pursuant to Section 120.569

and Subsection 120.57(1), Florida Statutes (2009).

34. Petitioner is the state agency charged with regulating

the practice of contracting, pursuant to Section 20.165 and

Chapters 455 and 489, Florida Statutes.

35. Pursuant to Section 489.129, Florida Statutes, the

CILB is empowered to revoke, suspend or otherwise discipline the

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

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

36. Petitioner has the burden of proving by clear and

convincing evidence the allegations filed against Respondent in

the Administrative Complaint. § 120.57(1)(j), Fla. Stat.;

Department of Banking and Finance v. Osborne Stern and Co. , 670

So. 2d 932 (Fla. 1996), and Ferris v. Turlington , 510 So. 2d 292

(Fla. 1987).

37. 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).

38. The Administrative Complaint alleges that Respondent

Florida Statutes, which provide, in pertinent part:

(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 or

registration, require financial restitution to

a consumer, 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 occurs when:

* * *

2. The contractor has abandoned a

customer’s job and the percentage of

completion is less than the percentage of

the total contract price paid to the

contractor as of the time of abandonment,

unless the contractor is entitled to retain

such funds under the terms of the contract

or refunds the excess funds within 30 days

after the date the job is abandoned;

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, as adjusted for

subsequent change orders, unless such

increase in cost was the result of

circumstances beyond the control of the

contractor, was the result of circumstances

caused by the customer, or was otherwise

permitted by the terms of the contract

between the contractor and the customer.

* * *

(j) Abandoning a construction project in

which the contractor is engaged or under

contract as a contractor. A project may be

presumed abandoned after 90 days if the

contractor terminated the project without

just cause or without proper notification to

the owner, including reason for termination,

or fails to perform work without just cause

for 90 consecutive days.

* * *

(m) Committing incompetency or misconduct

in the practice of contracting.

39. Petitioner has proven by clear and convincing evidence

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

Statutes, Count I of the Administrative Complaint, by committing

mismanagement or misconduct in the practice of contracting that

causes financial harm to a customer.

40. Respondent abandoned the Coiner contract when the

percentage of completion of the job (more than 75% but less than

90%) was less than the total contract price paid to him (90%).

Respondent testified that he completed 90% of the job, however

the evidence is clear that parts of the work completed by

Respondent had to be redone by the second contractor; that

Respondent never completed the pre-pour inspection (when second

draw was due to him, according to contract); and that he never

poured the concrete, which would have cost in his own estimate

$3,500.00 (more than 10% of the contract price). Therefore, the

evidence clearly and convincingly shows that Respondent did not

complete 90% of the job at the time when he abandoned the Coiner

project.

41. Petitioner has proven by clear and convincing evidence

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

Statutes, Count II of the Administrative Complaint, by

abandoning a construction project in which the contractor is

engaged or under contract as a contractor. A project may be

presumed abandoned after 90 days if the contractor terminates

the project without just cause or without proper notification to

the owner, including reason for termination, or fails to perform

work without just cause for 90 consecutive days.

42. The evidence established that Respondent failed to

perform any meaningful work under the Coiner contract for a

period of time exceeding 90 days. Respondent did not perform

work between the second half of December 2006 to April 2007.

Although Respondent may have occasionally been present on the

site or met with other people involved in the project, the

evidence does not show that any identifiable work was done by

Respondent during this period. However, Respondent effectively

abandoned the project by requesting additional payment not

justified under the contract and threatening to abandon the job

if he was not paid, then completely stopping any work after

Coiner refused to pay above and beyond the contract price.

43. Respondent asked Coiner to pay in excess of $9,000.00

in addition to the agreed contract price, as a “change order.”

However, there is no evidence that the scope of work of the

contract changed so that a change order would be necessary.

Although Respondent had to deal with issues that (despite his

familiarity with ICF construction and the building code

requirements in Lee County) he apparently did not foresee when

he proposed the contract to Coiner. Nothing changed as far as

the scope of work of the contract is concerned. Respondent was

under contract to build ICF walls for Coiner’s residence, and

that did not change after the slab was poured, or after the

building department requested enough rebar in the walls to meet

order upon Coiner were due to his initial inaccurate estimates

as to what it would cost Respondent to build the walls, and not

to an unforeseeable change in the circumstances.

44. According to Respondent’s own testimony, he was

thoroughly familiar with both ICF building techniques and the

building code requirements in Lee County. Thus, due to his

experience with ICF construction, Respondent cannot reasonably

argue that, when he contracted with Coiner, he did not foresee

the possibility that the slab would be out of level sufficiently

to require adjustments. Even the Integra-Spec ® installation

manual recognized that adjustments might become necessary.

45. Respondent cannot persuasively claim that it was

beyond his reasonable expectation that the Lee County Building

Department would require additional rebar in order to meet the

local building code. Respondent stated he was very familiar

with the building department requirements. If he was familiar

with the building requirements, as he contends, not only should

Respondent have foreseen at the time of the contract how much

rebar the inspector would require, but also he should have

expected that the inspector will require in fact that specific

quantity of rebar.

46. Respondent argues that when non-level slabs are

involved on a project, the necessary adjustments should not be

done for free by the contractor, and Petitioner agrees.

However, if Respondent contemplated to be paid for additional

work he had to do due to the out of level slab, he should have

provided for a higher contract price, or for price adjustment in

the contract, not add such charges later, above and beyond the

agreed contract price. In fact, Subsection 489.129(1)(g)3.,

Florida Statutes, specifically prohibits contracting practices

in which the customer ends up paying above the contract price,

except where the customer agrees to a change order, or where

circumstances beyond the control of the contractor exist, or

where such additional charges are provided for by the contract.

In this case, there was no agreed change order, no extenuating

unforeseeable circumstances, and the contract does not provide

for a price adjustment based on slab deficiencies. Moreover,

the slab was code compliant, and passed final inspection, which

clearly indicates that it was ready to be built upon.

47. Respondent failed to provide any explanation at the

hearing as to any excusable reasons for his failure to complete

the project, other than he completed 90% and he “left” after

being paid 90% of the contract price. Even if we assume that he

indeed performed 90% of his contract, Respondent still abandoned

the contract without a reasonable justification.

48. Petitioner has proven by clear and convincing evidence

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

Statutes, Count III of the Administrative Complaint. Respondent

violated Subsections 489.129(1)(j) and (g)2., Florida Statutes.

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

misconduct or incompetency in the practice of contracting, shall

include violating any provision of Florida Administrative Code

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

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

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

Statutes, as provided in paragraphs 6 through 11 above.

49. Respondent is subject to disciplinary action by the

CILB pursuant to Sections 455.227 and 489.129, Florida Statutes.

The disciplinary action under these statutes includes placing

the license on probation, reprimanding the licensee, revoking

suspending, denying the issuance or renewal of the certificate

or registration, requiring financial restitution to the

consumer, imposing an administrative fine not to exceed

$10,000.00 per violation, requiring continuing education and

assessing costs associated with the investigation and

prosecution.

50. 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 CILB or department and must state in writing

the mitigating or aggravating circumstances upon which

recommended penalty is based.

51. Florida Administrative Code Rule 61G4-17.002 provides,

in pertinent part, the following:

Circumstances which may be considered for

the purpose 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 being 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.

52. Florida Administrative Code Rule 61G4-17.001 (2006)

provides the following guidelines that are pertinent to this

proceeding:

(1) The following guidelines shall be used

in disciplinary cases, absent aggravating or

mitigating circumstances and subject to the

other provisions of this Chapter.

* * *

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

Mismanagement or misconduct causing

financial harm to the customer. First

violation, $1,500.00 to $5,000.00 fine,

and/or probation or suspension.

* * *

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

Abandonment. First violation, $2,500.00 to

$7,500.00 fine and/or probation or

suspension.

* * *

(m) Misconduct or incompetency in the

practice of contracting, shall include, but

is not limited to:

* * *

(2) Violation of any provision of Chapter

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

* * *

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, $1,000.00 to $2,500.00

53. There is no evidence that Respondent has been

previously disciplined for violations under Chapter 489 or 455,

Florida Statutes; therefore, the penalty guidelines that should

be used are for a first violation.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of

law, it is recommended that a final order be rendered by the

CILB as follows:

1. Finding Respondent guilty of having violated Subsection

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

Administrative Complaint, and imposing as a penalty an

administrative fine in the amount of $2,500.00;

2. Finding Respondent guilty of having violated Subsection

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

Administrative Complaint, and imposing as a penalty an

administrative fine in the amount of $1,000.00;

3. Finding Respondent guilty of having violated Subsection

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

Administrative Complaint, and imposing as a penalty an

administrative fine in the amount of $1,000.00;

4. Suspending Respondent’s license to practice contracting

(CGC1507637) for three months, followed by probation for two

years;

5. Requiring Respondent to pay financial restitution to

the consumer, Alvin Coiner, in the amount of $13,952.00 for

consumer harm suffered due to payment of additional money to

complete the job abandoned by Respondent. The consumer damages

are calculated by adding the total payments to Respondent

($34,955.00) to the payment for the completion of the contract

to Scott White ($17,250.00), and then subtracting the contract

price ($38,253.00);

6. Requiring Respondent to pay Petitioner’s costs of

investigation and prosecution, excluding costs associated with

an attorney’s time, in the amount of $351.47; and

7. Requiring Respondent to complete continuing education

hours and to meet such other conditions the CILB may require.

DONE AND ENTERED this 31st day of March, 2010, 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 31st day of March, 2010.

ENDNOTE

1/ All statutory references are to Florida Statutes (2006),

unless otherwise noted.

COPIES FURNISHED :

Sorin Ardelean, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399

Ronald R. Marra

Pro Tech Building Systems, LLC

11332 Pond Cypress

Fort Myers, Florida 33913

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

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.