STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, FLORIDA CONSTRUCTION ) INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 79-2061

)

FRED M. STRICKLAND, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice an administrative hearing was held before the undersigned Hearing Officer on September 17, 1980 at 11:00 a.m. in Marianna, Florida.

APPEARANCES

For Petitioner: Barry S. Sinoff, Esquire

2400 Independent Square One Independent Drive

Jacksonville, Florida 32202

For Respondent: Fred M. Strickland, pro se

1008 East Highway 90

Chipley, Florida 32428

ISSUE

Whether Respondent Fred M. Strickland's general contractor's license #RG 0024700 should be revoked or Respondent otherwise disciplined for alleged violation of Section 489.129(1)(h) and (k), Florida Statutes (1979). 1/

PRELIMINARY STATEMENT

An Administrative Complaint dated September 26, 1979 was filed by Petitioner Florida Construction Industry Licensing Board against Respondent licensee Fred M. Strickland who holds general contractor's license #RG 0024700, alleging that Strickland had diverted construction funds and had abandoned a construction project after completing approximately forty-three percent (43 percent) of the construction and receiving $19,179.23 or sixty-seven percent (67 percent) of the building contract price of $29,675.00. In its complaint the Board seeks to revoke Respondent's license, have him make restitution to the consumer and impose a fine of $500.00.

Strickland requested an administrative hearing which was scheduled to be heard December 19, 1979. Thereafter the Board moved to continue the hearing so that it could conduct further investigation, basing the motion on a letter from

the Respondent in which he had indicated that the subject matter of the hearing had been resolved at the local level. The motion was granted, and there was no further action until July 24, 1980 when in response to an Order to Show Cause as to why the matter should not be dismissed Petitioner requested that the hearing be rescheduled.

Immediately prior to commencement of the hearing in the presence of the Hearing Officer Counsel for the Board explained the administrative procedure to Respondent who represented himself. Petitioner called Roger Ramsey and Wiley Whitaker as witnesses and offered five (5) exhibits which were entered as evidence. An affidavit by Aaron Lee Mitchell dated September 19, 1980 was received after the hearing and placed in the record as stipulated at the hearing. Petitioner submitted a Proposed Recommended Order which contained proposed findings which are herein ruled on explicitly.

FINDINGS OF FACT

1. Respondent Fred M. Strickland holds currently active general contractor's license #RG 0024700.

   
   

2. On April 24, 1976 Wiley D. Whitaker and Respondent Fred M. Strickland entered into an agreement whereby Respondent was to furnish materials and labor to construct a dwelling for Whitaker for the sum of $29,675.00. (Petitioner's Exhibit V - Transcript, pages 28 and 29)

   
   

3. Construction commenced and funds were paid in the amount of $19,172.23 to Strickland by three (3) checks: Check dated May 14, 1976 in the amount of

   $7,500.00; check dated May 27, 1976 in the amount of $8,821.00; and check dated June 24, 1976 in the amount of $2,851.23. (Transcript, pages 29, 30, 31 and 32)

   
   

4. Respondent Strickland did not return to the construction of the Whitaker house after the third check was paid to him on June 24, 1976. (Testimony of Whitaker - Transcript, page 32; Testimony of Strickland - Transcript, page 65)

   
   

5. Respondent Strickland had another house under construction at the time he had the Whitaker house under construction. (Testimony of Strickland - Transcript, page 42)

   
   

6. At the time Strickland requested the third "draw" or payment on June 24, 1976 a dispute arose between Whitaker and Strickland. Whitaker said that he thought (1) that he had paid in more money than had been used for labor and materials in the house but regardless made the third payment to Strickland, and

   (2) that he asked Strickland to go back to work and complete the house. (Testimony of Whitaker - Transcript, page 31) Respondent stated (1) that he was paid for the job and no more; and (2) that he did not walk off the job but they (the Whitakers) had been hard to please, that Mrs. Whitaker had more than once made his work crew leave the job, and that he was willing to finish the job but they insisted that he leave. (Testimony of Strickland - Transcript, pages 44,

   45 and 65)

   
   

7. The testimony of Witness Whitaker and Respondent Strickland is in conflict as to whether Respondent was asked to remain and finish the construction job or whether he was asked by the owner to leave. Considering the circumstances of the case, the evidence produced and the demeanor of the parties testifying it is found that the testimony of Witness Whitaker is credible and the testimony of Respondent Strickland is not worthy of belief. It is therefore

   found that Respondent Strickland abandoned the Whitaker construction project without notice of his intention to quit the job after requesting a third draw and receiving the payment on June 24, 1976. It is further found that the disagreements, if any, with the wife of Whitaker over subject construction project are not sufficient grounds to justify a breach of the construction contract between the owner and Respondent contractor.

   
   

8. On or about December 9, 1976 the Jackson County Building Official of the Jackson County Board of Commissioners and Construction Industry Licensing Board, James W. Grant, made a personal inspection of the subject property. He estimated the construction to be forty-three percent (43 percent) complete and that the total estimated value of the completed contractor work was $12,470.00. (Petitioner's Composite Exhibits II and III) No testimony or evidence to refute the estimate of construction completed or the value thereof was offered by Respondent except his statement that he was paid for the work and materials that he had put into the job and no more. (Testimony of Strickland - Transcript page 65)

   
   

9. It is found that Respondent had completed forty-three percent (43 percent) of the construction for Whitaker before he abandoned the project and that the value of the completed contract work was $12,470.00. Based upon this finding Respondent would have been entitled to $12,470.00 at the time he stopped work on the dwelling but had received from Whitaker the sum of $19,172.23. Therefore, it is found that Respondent was paid $6,702.23 more than was due to him under the contract.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction of the proceeding and the parties thereto pursuant to Section 120.57(1), Florida Statutes (1979).

    
    

11. Petitioner predicates one count of its proposed disciplinary action against Respondent on alleged violations of Subsection 489.129(1)(h), Florida Statutes (1979) [formerly codified substantively as Subsection 468.112(2)(e), Florida Statutes (1977), and as Subsection 468.112(2)(e), Florida Statutes (1975), and which in pertinent part provides:

    
    

    489.129 Disciplinary proceedings.--

    (1) The board may revoke, suspend, or deny the issuance or renewal of the certificate or registration of a contractor or impose an administrative fine not to exceed $1,000, place the contractor on probation, reprimand

    or censure, a contractor if the contractor is found guilty of any of the following acts:

    * * *

    (h) Diversion of funds or property received for prosecution or completion of a specified construction project or operation when as a result of the diver- sion the contractor is or will be unable to fulfill the terms of his obligation or contract.

    
    

12. As to the allegation that Respondent diverted funds or property received for prosecution or completion of a specified construction project,

    Petitioner has failed to establish that Respondent did in fact divert funds. The admission of Respondent that he had another house under construction at the same time he was constructing the Whitaker dwelling is insufficient to show

    diversion of funds. No testimony or other evidence was received to substantiate the allegation that Respondent was unable to fulfill the terms of his contract if he had so desired. Accordingly, it is concluded that Petitioner has failed to show by competent substantial evidence that Respondent violated Subsection

    489.129 (1)(h), Florida Statutes, which before reenactment in 1979 was codified as Subsection 468.112(2)(e), Florida Statutes (1977), and as Subsection 468.112(2)(e), Florida Statutes (1975),

    
    

13. Petitioner predicates a second count of its proposed disciplinary action against Respondent on alleged violations of Subsection 489.129(1)(k), Florida Statutes (1979) [formerly codified substantively as Subsection 468.112(2)(h) Florida Statutes (1977)), and which provides:

    
    

    1. The board may revoke, suspend, or deny the issuance or renewal of the certificate or registration of a contractor or impose

       an administrative fine not to exceed $1,000, place the contractor on probation, reprimand or censure, a contractor if the contractor

       is found guilty of any of the following acts:

       * * *

       (k) Abandonment of a construction project in which the contractor is engaged or under contract as a contractor. A project is to be considered abandoned after 90 days if the contractor terminates said project without notification to the

       prospective owner and without just cause.

       
       

14. At the time of the subject building project in 1976 there was no statutory prohibition against abandonment.

    
    

15. The substantive rights of Respondent Strickland are involved in this case, and it is well established as to substantive rights that the statute as of the date of the alleged violation (1976) controls. Inasmuch as there was no statutory prohibition against abandonment in the 1975 statute, Respondent, although shown by the evidence to be guilty of abandoning the construction in violation of the 1977 and 1979 laws, cannot be held to be in violation of a statute enacted subsequent to his act. Subterranean Circus v. Lewis, Fla. App.,

319 So.2d 600; Sullivan v. Mayo, 121 So.2d 424; Summerlin v. Tramill, 290 So.2d 53; Myers v. Carr Const. Co., 387 So.2d 417. "The question whether a statute operates retrospectively, or prospectively only, is one of legislative intent. In determining such intent, courts observe a strict rule of construction against a retrospective operation, and indulge in the presumption that the legislature intended statutes, or amendments thereof, enacted by it, to operate prospectively only, and not retroactively. . . . It is especially true that a statute or amendment will be regarded as operating prospectively only . . . where the effect of giving it a retroactive operation would be to interfere with an existing contract, destroy a vested right, or create a new liability in connection with a past transaction . . . ." and "the rule that laws are not to be construed as applying to cases arising before their passage is applicable when to disregard it would impose an unexpected liability that, if known, might have caused those concerned to avoid it." 73 Am.Jur.2d Section 350.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the Administrative Complaint filed against Respondent Fred M. Strickland be dismissed.

DONE and ORDERED this 18th day of June, 1981, in Tallahassee, Leon County, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of June, 1981.

ENDNOTE

1/ Formerly codified verbatim as Section 468.112(2)(e) and (h), Florida Statutes (1977).

COPIES FURNISHED:

Barry S. Sinoff, Esquire 2400 Independent Square One Independent Drive

Jacksonville, Florida 32202

Mr. Fred M. Strickland 1008 East Highway 90

Chipley, Florida 32428

Nancy Kelley Wittenberg, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 79-002061

Orders for Case No: 79-002061