10-000096 Pinellas County Construction Licensing Board vs. Paul W. Bourdon Status: Closed Recommended Order on Tuesday, April 27, 2010.

Summary: Judgment for subcontractor for fees and costs is reasonably related to contracting, and licensee must satisfy judgment against his company.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY CONSTRUCTION )

LICENSING BOARD, )

)

Petitioner, )

)

vs. ) Case No. 10-0096

)

PAUL W. BOURDON, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

final hearing of this case for the Division of Administrative

Hearings (DOAH) on April 6, 2010, by video teleconference in

Tallahassee and St. Petersburg, Florida.

APPEARANCES

For Petitioner: Jason Ester, Esquire

Pinellas County Attorney’s Office

315 Court Street, Sixth Floor

Clearwater, Florida 33756-5165

For Respondent: J. Scott Taylor, Esquire

2909 West Bay to Bay Boulevard, Suite 405

Tampa, Florida 33629-8177

STATEMENT OF THE ISSUE

The issue is whether Respondent violated Subsection

489.129(1)(q), Florida Statutes (2008), 1 by allegedly failing to

satisfy within a reasonable time the terms of a civil judgment

relating to the practice of the licensee's profession.

PRELIMINARY STATEMENT

Petitioner issued an Administrative Complaint against

Respondent on October 15, 2009. Respondent requested an

administrative hearing, and Petitioner referred the matter to

DOAH to conduct the hearing.

At the hearing, Petitioner presented the testimony of one

witness and submitted six exhibits for admission into evidence.

Respondent cross-examined Petitioner's witness, did not testify,

presented the testimony of no other witnesses, and submitted no

exhibits for admission into evidence.

The identity of the witnesses and exhibits, and any

attendant rulings, are reported in the record of the hearing.

The parties did not request a transcript of the hearing.

Respondent timely filed his Proposed Recommended Order (PRO) on

April 8, 2010. Petitioner timely filed its PRO on April 16,

2010.

FINDINGS OF FACT

1. Petitioner is the agency charged with regulating

building contractors in Pinellas County, Florida. Respondent is

a building contractor, pursuant to license number C-6811

(RB0042337). 2

2. Respondent is the primary qualifying agent for

Timberlore Construction, Inc. (Timberlore). The business

address of Timberlore is 2142 B Palm Harbor Boulevard, Palm

Harbor, Florida 34683.

3. On February 14, 2002, Timberlore contracted with Cox

Air Conditioning and Heating, Inc. (Cox), for the installation

of an air-conditioning system at a construction site at

19636 Gulf Boulevard, Indian Shores, Florida 33785. A dispute

arose between Timberlore, as the general contractor, and Cox, as

the subcontractor.

4. As a result of the dispute, Timberlore sued Cox for

breach of contract and negligence and for attorney’s fees and

costs. After a non-jury trial, the court entered two final

judgments.

5. The first final judgment, entered on December 4, 2008,

was a determination of liability. The court found that Cox was

not liable for the failure of the air-conditioning unit that Cox

had installed. Rather, the court found that excessive humidity

caused the failure of the air-conditioning unit and damage to

the premises and that the condition was aggravated by

Timberlore. The court found that Cox was the prevailing party

entitled to attorney’s fees and costs from Timberlore.

6. The second final judgment against Timberlore determined

the amount of attorney’s fees and costs. The court ordered

Timberlore to pay attorney’s fees of $80,775.00 and costs of

$30,423.79 plus annual interest of eight percent.

7. Timberlore repaired the damaged air-conditioning system

at the construction site. There is no harm to the consumer.

8. Respondent disputes whether attorney’s fees and costs

awarded by a court in a dispute between a contractor and a

subcontractor relate to the practice of the licensee's

profession within the meaning of Subsection 489.129(1)(q). The

only evidence relevant to this issue was the testimony of

Petitioner's witness. 3

9. The fact-finder finds the testimony of Petitioner's

witness after cross-examination to be credible and persuasive

and agrees that the judgment for attorney’s fees and costs,

under the facts and circumstances in this case, relates to the

practice of the licensee's profession. Respondent has failed to

satisfy a civil judgment obtained against the business

organization qualified by the licensee within a reasonable time

in violation of Subsection 489.129(1)(q).

CONCLUSIONS OF LAW

10. DOAH has jurisdiction over the parties and subject

120.57, Fla. Stat. (2009). DOAH provided the parties with

adequate notice of the final hearing.

11. Petitioner has the burden of proof. Petitioner must

show by clear and convincing evidence that Respondent committed

the acts alleged in the Administrative Complaint and the

reasonableness of any proposed penalty. Department of Banking

and Finance v. Osborne Stern and Co. , 670 So. 2d 932 (Fla.

1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

12. For the reasons stated in the Findings of Fact,

Petitioner satisfied its burden of proof. A contractor is

subject to license discipline under Subsection 489.129(1)(q),

when the contractor fails to satisfy a civil judgment arising

from litigation between the contractor and a subcontractor, and

the judgment includes attorney’s fees and costs. See Jonas v.

Florida Department of Business and Professional Regulation ,

746 So. 2d 1261 (Fla. 3d DCA 2000)(involving judgment by

subcontractor against general contractor for $17,585.66 plus

interest, costs, and attorney’s fees).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Pinellas County Construction Licensing

Board enter a final order finding Paul W. Bourdon guilty of

violating Subsection 489.129(1)(q) and suspending Paul W.

Bourdon's license until the judgment is satisfied.

DONE AND ENTERED this 27th day of April, 2010, in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 27th day of April, 2010.

ENDNOTES

1/ References to subsections, sections, and chapters are to

Florida Statutes (2008), unless otherwise stated.

2/ License number RB0042337 is the state registration number for

Respondent. Petitioner includes state registration information

in the record of local license discipline proceedings in order

to comply with the reporting requirements in Subsection

489.117(4)(a). However, this administrative proceeding is

limited to local license number C-6811 and does not reach the

state registration certificate.

3/ The witness is executive director of the Pinellas County

Construction Licensing Board. He has been a licensed contractor

in Florida since 1968 and has extensive practical experience in

the industry.

COPIES FURNISHED :

Jason Ester, Esquire

Pinellas County Attorney’s Office

315 Court Street, Sixth Floor

Clearwater, Florida 33756-5165

J. Scott Taylor, Esquire

2909 West Bay to Bay Boulevard, Suite 405

Tampa, Florida 33629-8177

Rodney S. Fischer, Executive Director

Pinellas County Construction

Licensing Board

12600 Belcher Road, Suite 102

Largo, Florida 33773

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.