STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 78-2102

) VERNON KEITH BRADSHAW d/b/a ) BUD FRIDAY, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a hearing was held in the Grand Jury Room on the second floor of the Lake County Courthouse, Tavares, Florida, at 9:00 o'clock a.m. on February 16, 1979, before Delphene C. Strickland, assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Michael Egan, Esquire

217 South Adams Street Tallahassee, Florida 32301

For Respondent: James T. Reich, Esquire

Post Office Box 1132 Tavares, Florida 32778

ISSUES

Whether the Registered Building Contractor's License No. RB0026535 and the Registered Roofing Contractor's License No. RC0028413 issued to Respondent Bradshaw should be revoked.

FINDINGS OF FACT

1. Respondent holds Registered Building Contractor's License No. RB0026535 and Registered Roofing Contractor's License No. RC00284I3.

   
   

2. On March 17, 1977, Respondent Bradshaw entered into a contract with Mr. and Mrs. Dennis Gergely to build a home in Fruitland Park, Florida, for a contract price of $33,400. Changes in the contract were agreed upon by Bradshaw and the Gergelys in addition to contract price. The home had not been completed in November of 1977.

   
   

3. The Gergelys filed a complaint with the Lake County Board of Building Examiners in October, 1977. Thereafter, in November of 1977, Mr. and Mrs. Gergely dismissed Respondent Bradshaw as a contractor. After the dismissal of

   Respondent, Mr. and Mrs. Gergely were left with $6,974.71 undistributed funds, insufficient to complete their home in accordance with the contract.

   
   

4. In June and August of 1977, the Gergely home was inspected by the building inspectors of the Lake County Building Department and, although they reported no problems, the Lake County Board of Building Examiners inspected the construction site on February 7, 1978, and reported numerous violations.

   
   

5. The Lake County Board of Examiners held a public hearing on April 4, 1978, and revoked Respondent's Lake County certification. On June 21, 1978, Respondent Bradshaw filed a voluntary petition for bankruptcy in the United States District Court for the Middle District of Florida.

   
   

6. On October 26, 1978, Petitioner filed an administrative complaint against Respondent. Respondent requested an administrative hearing on November 3, 1978.

   
   

7. Liens in the amount of $4,564.32 were filed against the Gergely property for Respondent's failure to pay labor and material bills. Some of said amount may have been amounts owed by Respondent for other construction sites.

   
   

8. Respondent admitted that materials were supplied by the Green-Harris Building Supply Company, Inc., prior to a second draw, and that he did not pay Green-Harris for material supplied previously. The lien filed against the Gergely home by Green-Harris Building Supply Company, Inc., was in the amount of

   $3,171.97. Supplies were sent to the Gergely home in June and July of 1977, and the second draw was in August of 1977. The contractor's affidavit, signed by Respondent, stated that all materials and labor had been paid, although the Green-Harris Company had not been paid.

   
   

9. The Hearing Officer further finds:

   
   

   1. That the Gergelys had anticipated the home was to be completed within three or four months after the contract was let;

   2. That the long delay caused them great expense and inconvenience;

   3. That Respondent did not actively pursue the building of the home or the paying of bills in a business-like manner; and

   4. That the Gergelys had just cause to dismiss Respondent and proceed to finish the construction of their home.

      
      

10. Petitioner contends that the licenses of the Respondent should be revoked and a fine paid, for the reasons that Respondent filed a voluntary petition in bankruptcy; that his Lake County building license was revoked; that he diverted funds he received in payment for supplies which he did not pay for, and for which he executed an affidavit stating that said supplies had in fact been paid; and that Respondent's disagreement with the Lake County Board could have been pursued at the time of that Board's revocation.

    
    

11. Respondent contends that he was discharged from the job by the Gergelys and was not allowed to come back and finish the job; that the Board of Building Examiners had agreed to allow Respondent thirty (30) days to correct the Gergely complaints, but Gergely would not allow the corrections; that it was impossible for members of the Board of Building Examiners to attribute any of

    the alleged deficiency to Respondent, inasmuch as three months had elapsed between the last work of Bradshaw and the citing of code violations by the committee; and that the filing of bankruptcy by Bradshaw is only a technical violation of Section 468.122(7), Florida Statutes.

    
    

    CONCLUSIONS OF LAW

    
    

12. Section 468.112 Revocation or suspension of certificate or registration.-- provides in part:

    
    

    1. On its own motion or the verified written complaint of any person, the board may investigate the action of any contractor certified or registered under this part; however, when any complaint involves a contractor certified or registered under this part for acts or omissions occurring in any area of the state which has a local board, the board shall forward the complaint to the municipality, city, or county where the alleged violation occurred for its action. Where no local board exists, the board shall take jurisdiction. The board may take appropriate disciplinary action if the contractor is found to be guilty of or has committed any one or more of the acts or omissions constituting cause for disciplinary action set out herein or adopted as rules or regulations by the board.

       
       

    2. The following acts constitute cause for disciplinary action:

       1. Diversion of funds or property received for prosecution or completion of a specified construction project or operation when, as a result of the diversion, the contractor is, or will be, unable to fulfill the terms of his obligation or contract.

       2. 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.

          
          

    3. The board is authorized to take the following disciplinary action:

    (c) Impose an administrative fine or penalty not to exceed $500, which shall be recoverable by the board only in an action of law.

    
    

    (7) The filing of a petition in 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 certificate or registration.

    
    

13. The Petitioner Board has investigated the action taken by the Lake County Board.

    
    

14. Respondent diverted and used funds paid to him for payment for supplies furnished to build the Gergely home and was therefore unable to fulfill the terms of the contract.

    
    

15. Respondent filed a petition in bankruptcy while still indebted to the Gergelys, and said filing is just cause for suspension of Respondent's certificate or registration.

RECOMMENDATION

Suspend the building contractor's license and the roofing contractor's license held by Respondent Vernon Keith Bradshaw and assess a penalty of $500.

DONE and ORDERED this 13th day of April, 1979, in Tallahassee, Loon County, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

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

(904) 488-9675

COPIES FURNISHED:

Michael Egan, Esquire

217 South Adams Street Post Office Box i386

Tallahassee, Florida 32302

James T. Reich, Esquire Post Office Box 1132 Tavares, Florida 32778

Docket for Case No: 78-002102

Orders for Case No: 78-002102