STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 77-646

) LICENSE NO. RR 0000896 PAUL SLIVYAK, d/b/a ALL CRAFT )

CONSTRUCTION COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard in Room 565, Orange County Courthouse, 65 East Central Boulevard, Orlando, Florida, at 8:30 A.M. on June 15, 1977, before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This matter was heard on an Administrative Complaint filed by the Florida Construction Industry Licensing Board against Paul Slivyak alleging that Slivyak had diverted funds of property received for the prosecution or completion of a specified construction project or operation where as a result of the diversion Slivyak is or will be unable to fill the terms of his obligation or contract contrary to the provisions of Section 468.112(2)(e), Florida Statutes.

APPEARANCES

For Petitioner: Barry Sinoff, Esquire

1010 Blackstone Building

Jacksonville, Florida 32202

For Respondent: Paul Slivyak did not appear and was not represented by counsel.

FINDINGS OF FACT

1. Notice in this case was given as required on May 2, 1977.

   
   

2. Paul Slivyak holds registered residential contractor's license RR 0000896 issued by the Florida Construction Industry Licensing Board.

   
   

3. Slivyak is the qualifying licensee for Allcraft Construction Company, Inc., a Florida corporation solely owned by Paul Slivyak.

   
   

4. Gussie Hailey identified a contract between Allcraft Construction Company, Inc., to her husband, Willie Hailey, for repairs to the interior of their residence caused by fire. See Exhibit 1. She also identified a cancelled check payable to Allcraft Construction Company signed by her in the amount of

   $1,700 as the initial payment to Allcraft Construction Company, Inc., under the terms of the contract. The only work performed by Allcraft Construction Company, Inc., on the Hailey residence pursuant to the contract was the removal

   of a portion of the burned interior of the Hailey hone. Gussie Hailey identified a photograph of the material removed from the hone as it was left in her back yard by the workmen. The total work performed by Allcraft Construction Company, Inc., on the contract was performed by two young men who worked one half day. The photograph and check identified by Mrs. Hailey were received as composite Exhibit 2. After the failure of Allcraft Construction Company, Inc. to complete the work called for under the contract, the Haileys had to additionally pay approximately $4,000 to complete the job in addition to the

   $1,700 paid to Allcraft Construction Company, Inc.

   
   

5. Marjorie Kneski, the wife of Mr. Joseph Kneski, identified a contract between Allcraft Construction Company, Inc., and she and her husband for the construction of an addition to their home. See Exhibit 3. She also identified a cancelled check payable to Allcraft Construction Company in the amount of

   $700, initial payment to Allcraft Construction Company pursuant to the contract for the construction work to be performed. After waiting two or three weeks for Allcraft Construction Company to begin work, the Kneskis became concerned and contacted the Better Business Bureau. The Better Business Bureau contacted the Florida Construction Industry Licensing Board investigator in the area. The Better Business Bureau also informed Mr. Kneski that the business reputation of Allcraft Construction Company, Inc. , was of such a nature that care should be exercised in dealing with the company. Mr. Kneski contacted Allcraft Construction Company, Inc., and advised them that he wanted his money back in that they had not started work under the contract. The Kneskis never received any of their money back from Allcraft Construction Company. The investigator for the Florida Construction Industry Licensing Board contacted Slivyak regarding the Kneski's complaint. Slivyak told the investigator that he had used the money received from the Kneskis to pay a portion of his income taxes and no longer had the money. Kneski also identified a letter received by him from Jack A. Nants, Attorney at Law, representing Allcraft Construction Company, Inc. This letter (Exhibit 5) recognizes and ratifies the contract entered into in behalf of Allcraft Construction Company, Inc., by Doug Fioto, but indicates the intention of Allcraft Construction Company, Inc. , to retain the initial

   $700 received from the Kneskis as liquidated damage if Allcraft Construction Company, Inc., was not allowed to perform under the contract. The contract does not contain a liquidated damage provision.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Florida Construction Industry Licensing Board has jurisdiction to consider disciplinary action against Paul Slivyak pursuant to the Administrative Complaint filed in this case.

   
   

7. Paul Slivyak was charged with the violation of Section 468.112(2)(e), Florida Statutes, which provides as follows:

   
   

   "(2) The following acts constitute cause for disciplinary action:

   (e) Diversion 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."

   
   

8. Allcraft Construction Company, Inc., failed to perform under its contract with the Haileys. In the absence of a clear liquidated damage

provision, or a showing of a specific financial loss, Paul Slivyak, President and qualifying licensee for Allcraft Construction Company was responsible for return of Kneski's money if Allcraft was not going to Perform under its contract with the Kneskis. Allcraft Construction Company, Inc., refused to return the initial payment made by the Kneskis, contrary to the reason stated in the letter from the attorney representing Allcraft Construction Company, Inc., to the Kneskis. Slivyak stated to the Board's investigator that the Kneski's money had been used to pay taxes. The evidence in this cause shows that Allcraft Construction Company, Inc., has received monies pursuant to construction contracts and has failed to prosecute or complete the construction projects or to return the monies. The record further indicates that these monies or a portion of these monies were used to pay Slivyak's taxes. This constitutes diversion of funds received for the prosecution or completion of a specified construction project or operation, and Allcraft Construction Company, Inc., failed to perform under the contracts. Paul Slivyak, as qualifying agent for Allcraft Construction Company, Inc., is responsible for the company's failure in this regard, which constitutes a violation of Section 468.112(2)(e), Florida Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Florida Construction Industry Licensing Board revoke the registered residential contractor's license of Paul Slivyak, No. RR 0000896.

DONE and ORDERED this 19th day of July, 1977, in Tallahassee, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

COPIES FURNISHED:

Barry Sinoff, Esquire 1010 Blackstone Building

Jacksonville, Florida 32202

Mr. Paul Slivyak

502 South Lake Formosa Drive Orlando, Florida 32803

Mr. J. K. Linnan Executive Director

Florida Construction Industry Licensing Board

Post Office Box 8621 Jacksonville, Florida 32211

Docket for Case No: 77-000646

Orders for Case No: 77-000646