STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 81-2192

)

DAVID J. HOLDEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on February 10, 1982, in Fort Myers, Florida. A transcript of the proceedings was received on February 19, 1982, and was used by me in preparation of this Recommended Order.

APPEARANCES

For Petitioner: Xavier J. Fernandez, Esquire

Post Office Box 729

Fort Myers, Florida 33902 For Respondent: No appearance 1/

ISSUE

The issue posed for decision herein is whether or not disciplinary action should be taken against Respondent, or his license to practice contracting based on the Complaint allegations filed herein which allege that he has diverted funds from a construction project in violation of Chapter 489.129(1)(h), and has violated Chapter 489.129(1)(i), Florida Statutes (1979), based on a suspension of his Certificate of Competency by the Collier County (Florida) Contractors' Licensing Board.

FINDINGS OF FACT

Based upon my observations of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found.

1. By its Administrative Complaint filed herein on or about April, 1981, the Petitioner, Department of Professional Regulation, herein sometimes referred to as the Department or Petitioner, seeks to take disciplinary action against the Respondent as licensee and against his license as a registered General Contractor based on conduct which will be set forth hereinafter in detail.

2. Respondent is a Registered General Contractor who has been issued License No. RG0014840. According to Petitioner's records, Respondent's last known address is Route 2, Box 1017, Bonita Springs, Florida. However, evidence in the pleadings file revealed that the Respondent's present mailing address is Route 2, Box 231, Hannibal, New York.

   
   

3. Respondent was first licensed as a Registered General Contractor in November of 1973 as an individual. His license is now delinquent as he did not renew it on the date of its expiration, June 30, 1979. 2/

   
   

4. During March of 1980, Respondent requested Claudia Blanche Klug of Dolphin Air Conditioning and Supplies (Dolphin) to rough-in air conditioning duct work in a home which Respondent had contracted to construct for Mr. Ray J. Hill or Naples, Florida. The rough-in services were provided by Dolphin which services were paid for by a check dated May 1, 1980, in the amount of $901.20. The check was returned for insufficient funds. (Petitioner's Exhibit No. 4.)

   
   

5. Ray J. Hill, as stated, is a resident of Naples who entered a contract with Respondent for the construction of a residential home. To pay for the construction of the residence, Mr. Hill established a draw schedule to pay Respondent as construction progressed from proceeds from a construction loan obtained from Naples Federal Savings and Loan Association. According to Hill, Dolphin was to be paid by Respondent from monies obtained (by Respondent) from the construction loan. Respondent made the last construction draw from Naples Federal on or about April 15, 1980, whereas Dolphin completed its rough-in- work during March of 1980.

   
   

6. Mr. Hill filed a complaint with the Collier County Contractors' Licensing Board which resulted in a suspension of Respondent's Collier County Certificate of Competency based on a violation (by Respondent) of five (5) local ordinances. (See Petitioner's Exhibit No. 2.) Petitioner has reviewed the action taken by Collier County respecting its suspension of Respondent's Certificate of Competency.

   
   

7. Respondent did not appear nor was a representative on his behalf present at the hearing herein to either offer evidence or rebut the allegations contained in the Administrative Complaint.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Chapter 120.57(1), Florida Statutes.

   
   

9. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

10. The authority of the Petitioner, Construction Industry Licensing Board, is derived from Chapter 489.129, Florida Statutes (1979).

    
    

11. Respondent, as a Registered General Contractor, is subject to the licensing provisions of Chapter 489, Florida Statutes.

    
    

12. Competent and substantial evidence was offered to establish that the Respondent, based on this contracting activities in the construction of a residence for Ray Hill, received construction monies from Naples Federal Savings

    and Loan Association to pay Dolphin Air Conditioning for roughing in the air conditioning at the Hill residence. In this regard, the evidence revealed that Dolphin performed the rough-in air conditioning work at the Hill residence during March of 1980, at which time Respondent was authorized to make draws up through April of 1980. In fact, evidence reveals that Respondent last made a draw from the construction loan from Naples Federal on April 15, 1980.

    Respondent paid Dolphin Air Conditioning $901.20 in the form of a check which was returned for insufficient funds. Based thereon, it is concluded as a matter of law that the Respondent diverted funds received for completion of a construction project in violation of Chapter 489.129(1)(h), Florida Statutes 1979.

    
    

13. Competent and substantial evidence was offered to establish that the Respondent's Certificate of Competency was suspended by the Collier County Contractors' Licensing Board. Having reviewed the disciplinary action taken by Collier County against Respondent, it is concluded that Respondent violated Chapter 489.129(1)(i), Florida Statutes (1979).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED:

That the Petitioner suspend Respondent's license to practice as a Registered General Contractor (License No. RG0014840) for a period of two (2) years.

RECOMMENDED this 5th day of March, 1982, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 1982.

ENDNOTES

1/ Although properly noticed of the hearing date, Respondent, or a representative, did not appear on his behalf.

2/ The fact that Respondent's license is delinquent was considered not to be a bar to the Petitioner proceeding herein, inasmuch as Respondent will be able to renew his registration upon the payment of a delinquent fee as set forth and provided in Chapter 489.109(2), Florida Statutes (1979).

COPIES FURNISHED:

Xavier J. Fernandez, Esquire Post Office Box 729

Fort Myers, Florida 33902

David J. Holden Route 2, Box 231 Hannibal, New York

Docket for Case No: 81-002192

Orders for Case No: 81-002192