STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 76-574

)

WILLIAM W. LAMBERT, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Tallahassee, Florida, on April 15, 1977, before the Division of Administrative Hearings, by its duly designated hearing officer, Robert T. Benton, II. Petitioner and respondent appeared through their respective counsel, as follows:

APPEARANCES

For Petitioner: Mr. Barry Sinoff, Esquire

Blackstone Building, Suite 1010 Jacksonville, Florida 32202

For Respondent: Mr. Daniel J. Wiser, Esquire

Post Office Box 10137 Tallahassee, Florida 32302

By administrative complaint, petitioner alleged that respondent signed a petition for voluntary bankruptcy on behalf of Lambert Enterprises, Inc., thereby violating Section 468.112(7), Florida Statutes (1975).

FINDINGS OF FACT

1. Until December of 1974, respondent William W. Lambert did business as a general contractor under the corporate name of Lambert Enterprises, Inc. As qualifying agent for the corporation, he built homes, poured concrete, laid sod, and did other general contracting. During 1974, respondent was in the process of acquiring a sod farm, as well as being engaged in the general contracting business.

   
   

2. Lambert Enterprises, Inc. dealt largely with other contractors. When The Commonwealth Corporation went bankrupt, other contractors, notably the Collins brothers, also ended up in bankruptcy, and unable to make good on outstanding obligations to Lambert Enterprises, Inc. Respondent caused a voluntary petition in bankruptcy to be filed on behalf of Lambert Enterprises, Inc., on November 22, 1974. At that time he held all the stock in Lambert Enterprises, Inc., and served both as president and as a member of the board of directors of the corporation. Respondent Lambert has never been interested in

   any other corporation that has been declared bankrupt, and has never gone into bankruptcy personally.

   
   

3. Mr. William E. Wingate, an investigator for the Florida Construction Industry Licensing Board, checks bankruptcy records twice monthly. By looking through bankruptcy records, he has learned of ten to twelve bankruptcies, in the Northern District of Florida, involving contractors in the last two years. He may have missed some, but every time he finds out about a contractor's bankruptcy, he reports it to the Board's Jacksonville office. On July 31, 1975, he first learned of respondent's corporation's bankruptcy. He obtained certified copies of pertinent papers which he then forwarded to other Board staff in Jacksonville.

   
   

4. After Lambert Enterprises, Inc. failed, respondent obtained a general contractor's license as an individual, which is currently in force. Since December of 1975, respondent has been employed by Century Construction, first in Tallahassee, then in Jacksonville, where he is now a project manager for the company. Permits for work performed by Century Corporation are not pulled on respondent's license. Respondent's financial condition is now stable, and he is financially sound.

   
   

   CONCLUSIONS OF LAW

   
   

5. In closing argument, respondent's counsel took the position that Section 468.112(7), Florida Statutes (1975), is unconstitutional. Section 468.112(7), Florida Statutes (1975) provides that:

   
   

   The filing of a petition for bankruptcy, either voluntarily, or involuntarily, or the making

   of a composition of creditors or the appointment of a receiver for the business of the registrant or certificate holder may be considered by the Board as just cause for suspension of a certif- icate or registration.

   
   

   Respondent argues that this subsection is unconstitutional in that merely exercising a federal statutory right, without more, subjects a licensee to the possibility of sanctions by an agency of state government. No motion to dismiss was addressed to the hearing officer, however, and the validity of Section 468.112(7), Florida Statutes (1975), must be assumed for present purposes.

   
   

6. Although no model of clarity, Section 468.112(7), Florida Statutes (1975), does authorize disciplinary action where, as here, a contracting corporation's qualifying agent and sole stockholder files a voluntary petition for bankruptcy on behalf of the corporation.

   
   

7. Respondent took the position that the Board has acted arbitrarily in instituting these proceedings, inasmuch as some contractors' bankruptcies go undetected and do not result in proceedings before the Board, for that reason. This position is not well taken; petitioner has not acted arbitrarily in this matter.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED: That respondent be reprimanded.

DONE and ENTERED this 25th day of April, 1977, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida

COPIES FURNISHED:

Barry S. Sinoff, Esquire Blackstone Building, Suite 1010 Jacksonville, Florida 32202

Daniel J. Wiser, Esquire Post Office Box 10137 Tallahassee, Florida 32302

Mr. J. K. Linnan Executive Director

Florida Construction Industry Licensing Board

1010 Blackstone Building

Jacksonville, Florida 32202

Docket for Case No: 76-000574

Orders for Case No: 76-000574