vs. ) CASE NO. 77-613
JAMES W. GEARY d/b/a ) FIRST TRIANGLE CORPORATION, )
Respondent. )
Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, at 11:30
work nor refunded the money.
Additionally, it is alleged that the Chief Building Official of the City of Tamarac, Mr. Robert B. Jahn, informed respondent on November 20, 1976, that no further building permits would be issued to First Triangle Builders with respondent as their qualifier because of numerous complaints and unfinished projects.
Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:
Respondent James W. Geary presently holds certified general contractor's license number CG C005775.
Respondent Geary apparently entered into a contract with Phillip Smith to add a screened porch to the Smith residence. Neither the contract nor the testimony of Mr. Smith were made available to the undersigned Hearing Officer. Respondent had difficulty obtaining a roofer and completion of the project was therefore delayed. During the interim, the interior of the Smith's living room suffered water damage. After receiving a complaint from the Smiths, Mr. Robert Jahn, Chief Building Official for the City of Tamarac, personally inspected the Smith project. He found that the water damage was caused by the uncompleted work of respondent and certain violations of the Southern Florida Building Code. Jahn did not know how long the project had not been worked on, but Smith told him he had tried for about one month to get respondent to return to correct the situation. Respondent testified that when he sent a man to the Smith residence to install the roof columns, Smith chased the man off the job.
Upon the delivery of certain supplies for his projects, respondent Geary, d/b/a First Triangle Corporation, wrote two checks in the total amount of
$391.41 payable to Rinker Materials. (Exhibit 1) These checks were offered for payment by Rinker, and were returned due to insufficient funds. The former credit manager of Rinker Materials did not know whether anyone from Rinker had contacted respondent about the checks. Respondent testified that no one from Rinker had informed him that the checks were dishonored. However, respondent did receive notice from his bank that the checks had been returned. He was changing banks about the same time and felt that the bank had made mistakes in the past. He felt that the checks were good when issued and he therefore did not put much reliance upon the notices received from the bank. Respondent testified that he is ready, willing and able to honor the checks written to Rinker Materials.
Respondent Geary apparently entered into a contract with Richard Decker for the addition of a five by eleven foot bathroom to the Decker's residence. Neither the contract, the plans or specifications nor the testimony of Mr. Decker were offered into evidence at the Hearing. Respondent felt there were no deviations between the finished product and the job specifications, and that, even if there had been, there was no way he could put a five foot vanity into the project without violating the applicable building code. The field
investigator for petitioner's District No. 10 found deviations from the plans with regard to the size of the vanity, the bathroom door and the illumination. He found that the Deckers had not indicated their approval of such deviations by placing their initials on the plans or specification.
The South Florida Building Code (302.2(b)) provides that when the cost of a job is over $5,000.00, the permit applicant must present plans signed and sealed by a registered architect or engineer. A larger permit fee is also required for jobs costing over $5,000.00. On or about April 9, 1976, respondent Geary applied to the City of Tamarac for two building permits. (Exhibit 2). While blueprints were submitted, no plans signed and sealed by a registered architect Or engineer were submitted. From the square footages contained on the right hand column of the application, Chief Building Official Jahn determined that the value of the two projects were $7,300.00 and $6,620.00. The contract prices for these projects were approximately $8,000.00 and $10,000.00. There was no conclusive testimony as to who supplied the footage information on these applications, It was respondent's opinion that the actual costs of these projects did not exceed $5,000.00.
Respondent apparently entered into a contract with Daniel Salzman for some project, and then entered into a second contract for the construction and installation of a fence and a trellis. For this second project, respondent received a deposit of $825.00. The first job was never completed by respondent and respondent never began work on the fence and trellis project. Respondent admitted that some $500.00 was due Mr. Salzman as a refund for the second project. He testified that he instructed Mr. Salzman to have the work on the first project completed by someone else and then to send respondent the bill for the same. Respondent has not heard from Salzman regarding this matter.
By letter dated November 20, 1976, Chief Building Official Jahn notified respondent that "No further building permits [would] be issued to First Triangle Builders with you as their qualifier because of numerous complaints and unfinished projects."
As indicated in the Introduction, petitioner filed an administrative complaint against respondent seeking to revoke his license for violations of certain ordinances and Florida Statutes S468.112(2). The cause was referred to the Division of Administrative Hearings for the appointment of a Hearing Officer, and the undersigned was designated to conduct the hearing.
CONCLUSIONS OF LAW
Laws of Florida, Special Acts of 1961, Chapter 61-1959, as amended by Chapter 63-1184, Section 10 provides for the revocation of certificates by a local examining board for certain acts and omissions. Section 10(c) prohibits the diversion of funds or property received for execution or completion of a specific construction project to any other use whatsoever. The facts as outlined above with respect to the Salzman project clearly constitutes a violation of Section 10 (c). Respondent entered into contracts with Mr. Salzman for the execution and completion of two construction projects. One was never completed and one was never started. In neither instance did respondent refund the monies to Salzman. While there was no evidence as to the amount of money received or expended upon the first project, there was an admission that money had been received for the fence and trellis project and that said project was never started by respondent. This constitutes a diversion of funds within the meaning of Section 10(c).
As to the Smith project, there is insufficient evidence to prove a diversion of funds as contemplated by Section 10(c). No evidence was offered as to the amount of money paid respondent or respondent's actual costs for the work he did complete on the project. Respondent was not charged with a violation of 10(b) which makes it a violation to abandon a construction project without legal excuse. He was charged with a diversion of funds. Petitioner has failed to illustrate this with regard to the Smith project.
With regard to the Decker bathroom addition project, respondent is charged with a violation of Section 10(d) of Chapter 61-1959, as amended. That section makes it a violation to depart from or disregard in any material respect the plans or specifications without the consent of the owner. It appears from the testimony of Mr. Norman that there were certain deviations from the job specifications or plans and that the owner's consent was not shown by initials on said plans. Respondent admitted that the vanity was not the length called for in the contract or plans. If indeed it was impossible for respondent to comply with the plans without violating the applicable building code, he should have obtained the written consent of the owner. It is concluded that petitioner has illustrated a violation of Section 10(d).
In connection with the bad checks issued to Rinker Materials, Respondent is charged with a violation of Section 10(g) which prohibits a failure to fulfill a contractual obligation through inability to pay creditors for material. A violation of this provision was not established by the petitioner. The testimony illustrated that the materials were delivered to respondent at the time respondent issued the checks. There was no evidence that the fact that respondent's checks to Rinker were returned for insufficient funds resulted in respondent's failure to fulfill any contractual obligations.
The evidence as to the costs of projects for which permits were sought by respondent is inconclusive and insufficient to establish a violation of the applicable building code or ordinance. The manner in which the footages of the projects were inserted on the permit applications was not established, nor were such footages verified by any documentary evidence adduced at the hearing. Mr. Jahn's estimated costs of the projects were apparently based upon these footage amounts. It is concluded that petitioner has failed to illustrate that the costs of the two projects were in excess of $5,000.00.
Florida Statutes Section 468.112 authorizes petitioner to take appropriate disciplinary action if a contractor is found guilty of certain acts or omissions set forth in subsection (2) thereof. Respondent has been charged with violations of 468.112(2)(a),(e) and (f). Willful or deliberate disregard and violation of the , applicable building codes or laws of the state, municipalities, cities or counties constitutes cause for disciplinary action under 468.112(2)(a). Here, as set forth above, petitioner has clearly illustrated violations by respondent of Section 10, Chapter 61-1959, Laws of Florida, Special Acts, as amended with regard to the Salzman and Decker projects. This constitutes grounds for disciplinary action by petitioner.
Section 468.112(e) prohibits a "[d]iversion of funds or property received
for prosecution or completion of a specified construction project or operation where as a result of the diversion the contractor is or will be unable to fulfill the terms of his obligation or contract."
As concluded above, the petitioner illustrated a diversion of funds within the meaning of the local ordinance with regard to the Salzman contract for the fence and trellis. That act merely requires a showing of a diversion of funds to any other use whatsoever. The State statute requires a showing that the result of the diversion is to render the contractor unable to fulfill the terms of the contract. While there was a showing herein that respondent did not fulfill the terms of the contract with Salzman, there was no evidence that he was unable to do so because of a diversion of funds.
Finally, respondent is charged under 468.112(f), which states that a cause for disciplinary action is "disciplinary action by any municipality, city, or county, which action shall be reviewed by the State Board before the State Board takes any disciplinary action of its own." Petitioner has sustained its burden of proof in this regard. The Chief Building Official of the City of Tamarac, after receiving complaints and making some independent investigations, ordered that no further building permits be issued to respondent as of November 20, 1976. This constitutes disciplinary action by a city and it appears the petitioner reviewed such action and the grounds therefor prior to filing the administrative complaint in this proceeding.
Summarizing, the petitioner has clearly illustrated violations by respondent of Chapter 61-1959, Laws of Florida, Special Acts, as amended, Sections 10(c) and 10(d), as well as Florida Statutes Section 468.112(2)(a) and (f). For such offenses the Board is authorized to revoke or suspend respondent's certificate or to impose an administrative fine or penalty not exceeding $500.00. Florida Statutes Section 468.112(3).
Based upon the findings of fact and conclusions of law recited above, as well as the seriousness of the offenses of which respondent has been found guilty, It Is recommended that respondent's certified general contractor's license number CG C005775 be revoked.
Respectfully submitted and entered this 18th day of July, 1977, in Tallahassee, Florida.
DIANE D. TREMOR
Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304
Mr. James W. Geary
Ft. Lauderdale, Florida 33301
J. K. Linnan, Executive Director Construction Industry Licensing Board Post Office Box 8621
