STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 79-2175

)

THURSTON L. BATES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, conducted a formal hearing in this matter on January 31, 1980, in Cocoa Beach, Florida. The following appearances were entered: Barry S. Sinoff, Jacksonville, Florida, appeared on behalf of the Petitioner, Florida Construction Industry Licensing Board; and Richard A. Whittington, Melbourne, Florida, appeared on behalf of the Respondent, Thurston L. Bates.

The Respondent was duly notified of the hearing, but did not appear other than through counsel.

On or about September 26, 1979, the Florida Construction Industry Licensing Board issued an Administrative Complaint against its licensee, the Respondent, Thurston L. Bates. The Respondent requested a formal hearing, and the matter was for warded to the office of the Division of Administrative Hearings for assignment of a Hearing Officer and scheduling of a hearing in accordance with the provisions of Section 120.57(1)(b)3, Florida Statutes. The final hearing was scheduled by notice dated November 9, 1979. The Respondent moved for a continuance of the final hearing on the day before it was scheduled to be conducted. In the absence of the undersigned, the motion was denied by another Hearing Officer of the Division. The motion was repeated on the record at the final hearing, and was again denied.

At the final hearing, the Board called the following witnesses: Arthur L. Hjort, the building official for the City of Satellite Beach, Florida; N. M. Jordan, a real estate broker; and Emily D. Wohanka, an individual who contracted with the Respondent. Petitioner's Exhibits 1 through 9 were received into evidence. The Respondent called no additional witnesses.

Subsequent to the hearing, the parties entered into lengthy settlement negotiations. The negotiations were ultimately unsuccessful, and by letter dated January 7, 1981, the parties were invited to submit post-hearing legal memoranda. A letter which serves that purpose was received from the Petitioner.

The issue in this proceeding is whether the Respondent has been guilty of violations of provisions of law governing licensed contractors.

FINDINGS OF FACT

1. At all times relevant to this proceeding, the Respondent was licensed as a contractor by the Florida Construction Industry Licensing Board. His license for the 1979-1981 license period had not been renewed at the time that the hearing was conducted, and he was therefore delinquent. [This finding is determined from Petitioner's Exhibit 1.]

   
   

2. During June, 1977, the Respondent entered Into a contract with Emily D. Wohanka and Ruby Sue Dennard. Ms. Wohanka and Ms. Dennard, who are sisters, agreed to purchase a lot in Satellite Beach, Florida, and the Respondent agreed to construct a single-family dwelling on the lot. The parties agreed to an addendum to the contract during July or August, 1977. The addendum included some specifics with respect to construction and provided:

   
   

   Home will be complete and ready for occupancy within a reasonable period

   of time--normally three to five months.

   
   

   [This finding is determined from Petitioner's Exhibits 8 and 9, and the testimony of Wohanka and Jordan.)

   
   

3. The lot which Ms. Wohanka and Ms. Dennard purchased was not cleared until December, 1977. No progress on construction was made during January or February, 1980. The Respondent obtained a building permit from the City of Satellite Beach, Florida, on February 20, 1978. Construction work commenced in either March or April, 1978. By June, 1978, Ms. Wohanka became concerned that work was commencing too slowly. She told the Respondent that she needed to move in by the end of July. Respondent told her that it was probable that construction would not be completed until mid-August. By September, the project was still not completed. Ms. Wohanka tried to reach Respondent by telephone, but he would not return her calls. She tried to locate him at home, but no one would answer the door. She complained to the building official in the City of Satellite Beach, but the building official had similar problems reaching the Respondent. Ms. Wohanka also complained to N. M. Jordan, the real estate agent who had negotiated the contract. Ms. Jordan was able to locate the Respondent, and the Respondent told Ms. Jordan that he could not complete the project because he was losing money. In late September or early October, Ms. Wohanka and her sister located the Respondent at his home. The Respondent was just walking out of the front door when they arrived. The Respondent told them that he could not discuss the matter, that he had turned it over to Ms. Jordan, and that he was not a part of it anymore. [This finding is determined from Petitioner's Exhibits 2 and 3; and from the testimony of Wobanka, Hijort, and Jordan.]

   
   

4. When Ms. Wohanka contacted the Respondent in late September or early October, no work had been done on the project for at least a month, and the house was not completed. Light fixtures, appliances, and air conditioning had not been installed. Cabinets and other fixtures were stored in a bathroom. Inside doors had not been installed. Flooring was not completed. No sidewalks or concrete driveway had been constructed. There had been no landscaping or sodding, and the sprinkler system had not been installed. The plumbing was not operational. Ms. Wohanka contracted with a new builder to complete the project. She was able to move into the residence on December 28, 1978, but work was not finally completed until late January, 1979. Additional expenses beyond those agreed to by the Respondent were incurred by Ms. Wohanka. The Respondent had drawn on a construction loan; but, there is no evidence in the record that the

   Respondent used these funds for any purposes other than the construction of the dwelling. [This finding is determined from the testimony of Wohanka.]

   
   

5. During July, 1977, the Respondent entered into a contract with James and Eleanor A. Lawrence. The Lawrences agreed to purchase a lot in Satellite Beach, Florida, and the Respondent agreed to construct a duplex dwelling on the lot. The Respondent obtained a building permit from the City of Satellite Beach on February 22, 1978. Unknown problems developed, and the project was not being completed. The Satellite Beach building official had difficulty locating the Respondent, but he was ultimately assured by the Respondent that the project would be completed. The Respondent told the realtor who negotiated the contract, Ms. Jordan, that he could not complete the 3 reject because he was losing money. The Lawrences did not testify at the hearing, and specifics regarding their relationship with the Respondent are not known. It is not known whether the Respondent abandoned the project uncompleted without notifying the Lawrences, or whether some agreement was made between them regarding completion of the project. There is no evidenced that the Respondent diverted any funds from the project. [This finding is determined from the testimony of Hjort and Jordan.]

   
   

6. No building codes from the City of Satellite Beach were received into evidence. There is no evidence in the record from which it could be concluded that the Respondent violated any provisions of the building codes in either the Wohanka or Lawrence transactions.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.57(1), 120.60, Florida Statutes.

   
   

8. The Respondent was charged in the Administrative Complaint with violations of Florida Statutes in effect at the time the acts complained of were committed, and at the time of the filing of the Complaint. Specifically, he was charged with violations of Sections 468.112(2)(a), (e), and (h), Florida Statutes (1977). The first two of those paragraphs provide that licensees can be disciplined for the following acts:

   
   

   1. Willful or deliberate disregard in violation of the applicable building codes or laws of the state or any municipality, city, or county thereof.

      
      

      (e) 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.

      
      

      The evidence presented in this proceeding would not support a conclusion that the Respondent violated either of these paragraphs. No applicable building codes were offered into evidence, and no evidence respecting specific violations of any codes was presented. Neither was any evidence presented to establish that the Respondent diverted any funds from either the Wohanka or Lawrence projects to any purpose other than those projects.

9. Section 468.112(2)(h), Florida Statutes (1977), provides that a licensee can be disciplined for:

   
   

   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 the project without notification to the prospective owner and without just cause.

   
   

   Statutory provisions relating to the licensing of contractors have recently been revised and recodified. This provision has been retained, and is now set out at Section 489.129(1)(k), Florida Statutes (1979). The Respondent violated the provisions of the Section in connection with the Wohanka transaction. His refusal to communicate with Ms. Wohanka and his statement to her that he no longer had anything to do with the project constitute an abandonment. The Respondent argues that he cannot be found guilty of violating the provision because the evidence does not establish that he abandoned the project for a period of ninety days. This contention is without merit. The ninety-day provision relates to circumstances in which a contractor does not notify an owner of termination of a contract. In this instance, the Respondent, through his communications to Ms. Jordan and Ms. Wohanka, expressly abandoned the project without authorization or justification.

   
   

10. The evidence does not establish that the Respondent committed a violation of Section 468.112(2)(h), Florida Statutes (1977), with respect to the Lawrence transaction. The evidence does establish that there were problems in completing the project, but there is no evidence to establish that the Respondent either expressly terminated his contract with the Lawrences, or that he did so by implication.

RECOMMENDED ORDER

Based upon the foregoing findings of fact and conclusions of law, it is, hereby,

RECOMMENDED:

1. That a final order be entered by the Florida Construction Industry Licensing Board finding the Respondent guilty of a violation of Section 468.112(2)(h), Florida Statutes (1977), in connection with the Wohanka transaction; suspending the Respondent's contractor's license for a period of one year, the Respondent not thereafter being licensed until he has made satisfactory restitution to Ms. Wohanka and Ms. Dennard; and fining the Respondent five hundred dollars.

   
   

2. That the Complaint against the Respondent be dismissed in all other respects.

RECOMMENDED this 3rd day of February, 1981, in Tallahassee, Florida.

G. STEVEN PFEIFFER Hearing Officer

Division of Administrative Hearings Department of Administration

2009 Apalachee Parkway, Oakland Bldg.

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1981.

COPIES FURNISHED:

Barry S. Sinoff, Esquire Sinoff and Alford

2400 Independent Square One Independent Drive

Jacksonville, Florida 32202

Richard A. Whittington, Esquire Whittington, Adkins & Beck, P. A.

494 North Harbor City Boulevard Melbourne, Florida 32935

Ms. Nancy Kelley Wittenberg, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 79-002175

Orders for Case No: 79-002175