Judges: STEPHEN F. DEAN
Agency: Department of Business and Professional Regulation
Latest Update: Dec. 04, 1990
Summary: Respondent was guilty of violating of Dade County code, but under circumstances violations not willful or deliberate as required by statute.
82-1460STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL )
REGULATION, CONSTRUCTION )
INDUSTRY LICENSING BOARD, )
)
Petitioner, )
)
vs. ) CASE NO. 82-1460
)
MERWYNN A. MERKLE, )
)
Respondent. )
)
RECOMMENDED ORDER
This cause was heard pursuant to notice on December 2, 1982, in Miami, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This matter arose upon an Administrative Complaint, subsequently amended, filed by Petitioner against Respondent, charging him with alleged violation of Section 10-22(g), Dade County Building Code, by failing to pay for concrete used on construction projects, and thereby violating Section 489.129(1)(d), Florida Statutes.
APPEARANCES
For Petitioner: Michael J. Cohen, Esquire
Kristin Building, Suite 101
2715 East Oakland Park Boulevard Fort Lauderdale, Florida 33306
For Respondent: Robert C. Eber, Esquire
9595 North Kendall Drive, Suite 102
Miami, Florida 33176
Respondent admitted all the allegations of the Amended Administrative Complaint except the allegation that he is guilty of violating Section 10-22(g), Dade County Building Code, and thereby Section 489.129(1)(d), Florida Statutes. Respondent asserts the affirmative defense that the owners were obligated to pay for the concrete, not he; and that even if he were obligated, his failure to pay was not willful or deliberate.
The parties submitted posthearing proposed findings of fact in the form of a proposed recommended order. To the extent the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.
FINDINGS OF FACT
Respondent is a registered residential contractor having been issued license number RR 0008633, and is the qualifier for Merkle Custom Homes Inc. Respondent's last known address is 877 SW 124th Street, Miami, Florida 33176.
Sunshine Ready Mix Concrete Company ("Sunshine") provided Respondent with the materials to be used on construction jobs located at 9600 SW 103rd Street and 8715 SW 129th Terrace, both in Miami, Florida.
Respondent did not pay in full for such materials.
Sunshine sued Merkle Custom Homes and obtained a judgment against that Florida corporation in the amount of $4,379.24 for money owed by the corporation on various jobs, to include the two projects referred to in paragraph 2 of this order.
Said judgment has not been satisfied.
One of the subject construction projects was undertaken for Dr. Robert Boyett and-his wife. This project was at 8715 SW 129th Terrace, and was the Boyett home. The other project at 9600 SW 103rd Street was an investment for Henry Arman and Errol Eisinger, a general partnership known as Ski Investors. This project was known as the "Ski Job."
The contract between Boyett and Respondent was a standard contract, and the contractor would be responsible to make disbursements to subcontractors and materialmen. After the commencement of construction on the Boyett job, a disagreement arose between Boyett and Respondent. Boyett had the checks from the lending institution cut to him and Respondent, and did not pass all of the draw to Respondent. Boyett assumed responsibility for paying the subcontractors and materialmen.
Prior to the Boyett and Ski Job projects, the Respondent applied for and established an open account for Merkle Custom Homes with Sunshine. The concrete for the Boyett job was charged to the Merkle Custom Homes account. Respondent's uncontroverted testimony was that he phoned Mr. Iglesias of Sunshine and advised him that Boyett was responsible for the concrete.
The situation between Boyett and the Respondent worsened, and they eventually severed their contract. Boyett owed Respondent substantial sums of money at that time from draws paid to Boyett by the lender. In settlement of their dispute, Respondent waived any claims on the money Boyett held in return for Boyett's promise to assume all financial responsibility to the subcontractors and materialmen.
Boyett did pay some $1500 to Sunshine on this debt but refused to pay all of the Sunshine bills, even though Respondent urged Boyett to honor his commitment. As a result, the Respondent received a partial satisfaction of judgment. Boyett and the contractor who took over from Respondent and assumed responsibility for the project both executed documents indicating that all materialmen had been paid.
Sunshine failed to file and perfect a materialman's lien on the Boyett
job.
On the Ski Job, Respondent never had any control over the distribution of funds. Although the first checks were made out to the partners and the Respondent, control over payments to subcontractors and materialmen was exercised by the financial institution and Arman and Eisinger, the two individuals in the partnership for whom the project was done. The money was controlled by the partnership, who paid subcontractors directly.
Respondent told Mr. Iglesias by phone that the partners were responsible for payment of the materialmen.
Sunshine delivered to the Ski Job and billed to Merkle Custom Homes 40 yards of concrete at $27.75 per yard, for a total (including tax) of $1,154.40. Sunshine was paid for this concrete, and Respondent obtained a release from Sunshine for this amount. Sunshine delivered an additional 39 yards of concrete to the Ski Job after the date of the release at $34 per yard for a total (including tax) of $1,409.04.
There is no evidence that the partners ever received a bill for the remainder of the concrete from Sunshine or the Respondent. No request for payment was made to the savings and loan for money to pay Sunshine for concrete.
Merkle Custom Homes was replaced as the contractor, on this project, and the new contractor and owners agreed to assume responsibility for money owed to any subcontractors or materialmen.
Sunshine did not file or perfect a materialman's lien on the Ski Job.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction to hear this cause and enter this Recommended Order pursuant to Section 120.57(1), Florida Statutes. The Construction Industry Licensing Board is charged with regulating construction contractors pursuant to Chapter 489, Florida Statutes.
The Board charges Respondent with violation of Section 10-22(g), Dade County Building Code, and thereby with violation of Section 489.129(1)(d), Florida Statutes, Section 10-22(g) provides as follows:
It shall be unlawful for any contractor, as defined by this chapter,
operating anywhere within the county, or any partner, officer, director or quali- fying agent of such a contractor, to commit any one or more of the following acts or omissions:
(g) Failing to fulfill contractual obligations in connection with any con- tract or construction project arising out of the business for which he has been issued a certificate of competency by this board, including, but not limited to, payment for material furnished or work or services performed; provided, however, that no person found guilty of failure to pay creditors by a court of competent jurisdiction may be imprisoned,
any other provision of this Code notwith- standing.
In order for the Respondent to be in violation of this section, the Board must show some contractual obligation which Respondent has not honored.
With regard to the judgment obtained by Sunshine, the failure of Respondent to satisfy that judgment is not a violation of Section 10-22(g), Dade County Building Code. The judgment is not a contractual obligation.
For there to be a violation of Section 10-22 (g), Dade County Building Code, there must be a contractual obligation between the Respondent and Sunshine. There was no written contract introduced; therefore, whether there was a contract is dependent upon the course of conduct of the parties, the custom of the trade and the construction placed upon certain written documents, and whether the acts of Respondent in notifying Mr. Iglesias were sufficient to alter the prior course of dealings between the Respondent and Sunshine.
The record shows that Merkle Custom Homes established an open account with Sunshine to which concrete for various jobs was charged. This was the way in which Merkle Custom Homes and Sunshine conducted business and is consistent with trade practices. The concrete for the Boyett and Ski Job projects was charged to the Merkle Custom Homes account. Invoices reflect the charges to the Respondent's account of concrete delivered to these jobs, and some bills were paid. A contractual obligation existed for Merkle Custom Homes to pay for the concrete in the absence of any special circumstances. Even though Respondent notified Mr. Iglesias of Sunshine that the owners were responsible for the payment for the concrete on these jobs, Merkle Custom Homes did not controvert the charges to its account, did not write Sunshine raising the error, and did not notify Sunshine in writing that the owners were responsible. In both cases, after billing Merkle Custom Homes, Sunshine received payments.
It is concluded that a contractual obligation existed between Merkle Custom Homes and Sunshine, and that the Respondent's acts were insufficient to alter that obligation. Therefore, Merkle Custom Homes remained obligated to pay for the concrete on the Boyett and Ski Job projects. Respondent violated Section 10-22(g), Dade County Building Code.
However, given the circumstances, this does not prove a violation of Section 489.129(1)(d), Florida Statutes, which provides as follows:
The board may revoke, suspend, or deny the issuance or renewal of the cer- tificate or registration of a contractor or impose an administrative fine not to exceed $1,000, place the contractor on probation, reprimand or censure, a con- tractor if the contractor is found guilty of any of the following acts:
(d) Willful or deliberate disregard and violation of the applicable building codes or laws of the state or of any municipalities or counties thereof. (Emphasis supplied.)
This section requires a "willful or deliberate" violation of the Dade County Building Code. Whether there was a contractual obligation between Merkle Custom
Homes and Sunshine is fairly clear cut. The issue of whether Merkle Custom Homes' failure to honor that was deliberate or willful is not clear cut.
Respondent's intent is dependent upon the motivation of the Respondent. Respondent's motivation may be adduced by the steps he took to ensure that the materialmen were paid when he left the jobs. The facts show that:
Respondent did notify Sunshine of the change, but without sufficient formality;
Respondent made agreements with the owners and contractors to pay the materialmen; and
Respondent waived financial claims he had to make certain the materialmen were paid.
Sunshine would have been paid had the owners met their obligations. The record reflects that all of Respondent's acts were intended to ensure Sunshine's payment. Respondent's violation of Section 10-22(g), Dade County Building Code, was not a willful or deliberate violation of Section 489.129(1)(d), Florida Statutes.
RECOMMENDATION
Having found Respondent not guilty of violating Section 489.129(1)(d), Florida Statutes, it is recommended that the Amended Administrative Complaint filed against Respondent be dismissed.
DONE and RECOMMENDED this 24th day of February, 1983, in Tallahassee, Leon County, Florida.
STEPHEN F. DEAN, 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 24th day of February, 1983.
COPIES FURNISHED:
Michael J. Cohen, Esquire Kristin Building, Suite 101
2715 East Oakland Park Boulevard Fort Lauderdale, Florida 33306
Robert C. Eber, Esquire 9595 North Kendall Drive,
Suite 102
Miami, Florida 33176
Frederick Roche, Secretary Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
J. K. Linnan, Executive Director Construction Industry Licensing
Board
Post Office Box 2 Jacksonville, Florida 32201
Docket for Case No: 82-001460
Orders for Case No: 82-001460
| Issue Date |
Document |
Summary |
|
Jul. 18, 1983 |
Agency Final Order
|
|
|
Feb. 24, 1983 |
Recommended Order
|
Respondent was guilty of violating of Dade County code, but under circumstances violations not willful or deliberate as required by statute.
|
