STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-1535

)

GEORGE N. SULLIVAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on August 18, 1982, in Vero Beach, Florida.

Petitioner Department of Professional Regulation, Construction Industry Licensing Board, was represented by John O. Williams, Esquire, Tallahassee, Florida. The Respondent George N. Sullivan appeared on his own behalf.

Petitioner filed an Administrative Complaint seeking to suspend, revoke or take other disciplinary action against the Respondent as licensee and against his license as a registered general contractor under the laws of the State of Florida. The Respondent timely requested a formal hearing on the allegations contained within that Administrative Complaint. Therefore, the issues for determination are whether Respondent is guilty of the charges contained in that Administrative Complaint and, if so, what disciplinary action should be taken, if any.

Petitioner presented the testimony of Steven Mohler, Trichka Shaver and Bruce Dixon. Additionally, Petitioner's Exhibits numbered 1 through 6 were admitted in evidence.

Respondent George N. Sullivan testified on his own behalf and presented the testimony of Joseph Campbell. Additionally, Respondent's Exhibits numbered 1 and 2 were admitted in evidence.

Petitioner has submitted posthearing findings of fact in the form of a proposed recommended order. To the extent that any proposed findings of fact have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law.

The parties stipulated that the record in this case would remain open until the filing of the transcript of proceedings in order that Respondent would have an opportunity to file copies of certain business records reflecting payment of

monies owed to subcontractors and reflecting additional items ordered by the purchaser of a home constructed by Respondent. To date, Respondent has not submitted his late-filed exhibits.

FINDINGS OF FACT

1. Respondent is a registered general contractor having been issued license number RG 0009255.

   
   

2. On September 5, 1980, Respondent, who was then doing business as George

   N. Sullivan, Inc., entered into a contract to remodel a residence owned by Mr. and Mrs. James L. Cain located at 2075 DeLeon Avenue, Vero Beach, Florida, for the sum of $46,900.

   
   

3. On September 8, 1980, George N. Sullivan, Inc., was paid $4,690 by the Cains as a down payment for the above-referenced construction project.

   
   

4. Respondent performed no work with reference to that construction project.

   
   

5. On December 7, 1979, the Respondent, doing business as George N. Sullivan, Inc., entered into a contract with Vero Fore, Inc., to construct a residence located at Lot 27, Unit 3, The Moorings of Vero Beach, for the sum of

   $155,628. The difference between the sum of the contract, $155,628, and the sum alleged in the Administrative Complaint of $171,688 constitutes agreed-upon extra items.

   
   

6. Respondent discontinued construction on the Vero Fore project on or about September 22, 1980, after having received $153,547 of the contract amount.

   
   

7. At the time that Respondent discontinued construction on the Vero Fore project, there remained $66,199.60 in unpaid bills for labor and materials furnished to Respondent for that residence; yet, the owners of the residence only owed to Respondent $18,141 of the final contract price.

   
   

8. On July 6, 1981, Respondent was convicted of five counts of passing worthless checks. These checks represented payments to materialmen and subcontractors with regard to the residence being built for Vero Fore, Inc. The convictions resulted in a judgment dated July 6, 1981, which was entered in the County Court, Indian River County, in cases styled State of Florida v. George N. Sullivan, Case Nos. 81-57 and 81-589, in which the Respondent was placed on probation for 18 months with condition of restitution.

   
   

9. At no time material herein did Respondent properly qualify George N. Sullivan, Inc.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto. Section 120.57(1), Florida Statutes.

    
    

11. The Construction Industry Licensing Board is charged with carrying out the provisions of Chapter 489, Florida Statutes, which chapter sets the standards for licensure in the field of construction contracting and provides for disciplinary proceedings when the prescribed standards have been violated. Pursuant to Section 489.129, Florida Statutes (1979), the Board is authorized to revoke or suspend the certificate or registration of a contractor, to impose an

    administrative fine not to exceed $1,000, to place a contractor on probation, or to reprimand or censor a contractor who is found guilty of any of the following acts:

    
    

    (1)(b) Being convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice of contracting or the ability to practice contracting.

    
    

    1. Acting in the capacity of a contractor under any certificate or registration issued hereunder except in the name of the certificate holder or registrant as set forth on the issued certificate or registration, or in accordance with the personnel of the certificate holder or registrant as set forth in the application for the certi- ficate or registration, or as later changed as provided in this act.

       
       

    2. 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.

       
       

       1. Failure in any material respect to comply with the provisions of this act.

          
          

       2. Abandonment of a construction project in which the contractor is engaged or under contract as a contrac- tor. A project is to be considered abandoned after 90 days if the contrac- tor terminates said project without notification to the prospective owner and without just cause.

       
       

12. Count One of the Administrative Complaint alleges that Respondent diverted $4,690 which he received from the Cains to remodel a residence. Respondent has admitted receiving the money from the Cains and has admitted that no work was performed with reference to that construction project. Respondent's defense is that he was forced to go into bankruptcy. Petitioner has proven that Respondent received the money from the Cains for a specific construction project, that he did not fulfill the terms of his obligation, and that he did not return the money. Respondent has, therefore, violated Section 489.129(1)(h), Florida Statutes (1979), in that he diverted funds and as a result of that diversion could not fulfill his obligation.

    
    

13. Count Two of the Administrative Complaint alleges that Respondent entered into a contract with Vero Fore, Inc., to construct a residence for the sum of $171,688 and that Respondent abandoned that construction project after having received $153,547 of the contract amount. Although Respondent testified

    that he was experiencing severe cash flow problems at the time that he discontinued work on the Vero Fore project, that he unsuccessfully sought a partner for his construction business, and that he subsequently was forced to declare bankruptcy because of his cash flow problems, Respondent offered no explanation as to why he ceased construction pursuant to his contract with Vero Fore. Cessation of construction was, therefore, without just cause.

    Accordingly, Petitioner has proven that Respondent abandoned a construction project in violation of Section 489.129(1)(k), Florida Statutes (1979).

    
    

14. Count Three of the Administrative Complaint charges Respondent with diverting approximately $48,000 on the Vero Fore project. Respondent admits that he was paid $153,547 in construction draws out of the 171,688 final contract price and, therefore, there remained only $18,141 due and owing to Respondent pursuant to that contract. Petitioner has proven that at the time that Respondent discontinued work on the Vero Fore project, he left behind unpaid bills in the amount of $66,199.60. Respondent has offered no explanation as to the disposition of the $48,000 difference. Accordingly, Petitioner has proven that Respondent diverted funds from the Vero Fore project and, as a result of that diversion, could not fulfill his obligation or contract, which conduct is in violation of Section 489.129(1)(h), Florida Statutes (1979).

    
    

15. Count Four of the Administrative Complaint alleges-- and Respondent has admitted--that Respondent was convicted of five counts of passing worthless checks. The conviction was directly related to the Respondent's business in that the checks were written as payment to various materialmen and subcontractors on the Vero Fore, Inc., construction project. Respondent has, therefore, violated Section 489.129(1)(b), Florida Statutes (1979), in that he has been found guilty of a crime directly related to the practice of contracting.

    
    

16. Count Five of the Administrative Complaint alleges--

    and Respondent has admitted--that Respondent did not properly qualify George N. Sullivan, Inc. Accordingly, Respondent has violated Section 489.129(1)(g), Florida Statutes (1979), in that he acted in the capacity of a contractor in a name other than as registered. Respondent has also violated Section 489.129(1)(j), Florida Statutes (1979), in that he failed to properly qualify the corporation under which he was doing business as required by Section 489.119(2) and (3), Florida Statutes (1979).

    
    

17. In its proposed recommended order, Petitioner has recommended that Respondent's license be revoked with the provision that he be allowed to have his license reinstated after a two-year period if he furnishes to the Board clear and convincing evidence that he has made restitution to Mr. and Mrs. Cain, Vero Fore, Inc., Superior Kitchens, Bruce Dixon and the five material suppliers to which he was convicted of passing worthless instruments. The recommendation of revocation with the provision that reinstatement become available after a two-year period upon restitution to Mr. and Mrs. Cain and the five material suppliers to which he was convicted of passing worthless checks is appropriate. No evidence was introduced to show the identity of the five material suppliers; rather, the evidence indicates that Superior Kitchens and Bruce Dixon may have been among those suppliers. Additionally, there appears to have been some form of settlement made between Vero Fore and Superior Kitchens and Bruce Dixon. Since the evidence is unclear as to the extent of any unpaid bills to Superior Kitchens and to Bruce Dixon, it is not appropriate that payment to them be a condition for reinstatement. As to Vero Fore, Inc., Petitioner introduced evidence to show that Vero Fore paid the sum of $60,000 to complete construction on the residence after Respondent discontinued work. The evidence, however,

indicates that the $60,000 included a "pain and suffering" payment to a purchaser of that residence from Vero Fore, and also included extensive attorney's fees (for unidentified work) and "costs of administration." Since the evidence is not clear as to sums of money necessarily incurred by Vero Fore, it is not appropriate to condition reinstatement of licensure on restitution by Respondent to Vero Fore.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the

allegations contained within the Administrative Complaint and revoking Respondent's registered general contractor's license number RG 0009255 with the provision that Respondent be allowed to have his license reinstated after a two- year period if he furnishes to the Construction Industry Licensing Board clear and convincing evidence that he has made restitution to Mr. and Mrs. Cain and the five material suppliers to which he was convicted of passing worthless checks.

DONE and RECOMMENDED this 3rd day of December, 1982, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT, 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 3rd day of December, 1982.

COPIES FURNISHED:

JOHN O. WILLIAMS, ESQUIRE

547 NORTH MONROE STREET, SUITE 204

TALLAHASSEE, FLORIDA 32301

MR. GEORGE N. SULLIVAN

22 EAST SPRUCE STREET ORLANDO, FLORIDA 32804

SAMUEL R. SHORSTEIN, 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

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. CASE NO. 0014375

0009520

GEORGE N. SULLIVAN RG 0009255 DOAH CASE NO. 82-1535

22 East Spruce Street Orlando, Florida 32804,

Respondent.

/

FINAL ORDER

This case came for final action by the Construction Industry Licensing Board on March 10, 1983, in Jacksonville, Florida. An administrative hearing held pursuant to 120.57(1), F.S., resulted in the issuance of a Recommended Order (attached hereto as Exhibit A) which was reviewed by the Board. Upon consideration, it is ORDERED:

1. The findings of fact in the Recommended Order are approved and adopted and incorporated herein by reference.

   
   

2. The conclusions of law in the Recommended Order are approved and adopted and incorporated herein by reference.

   
   

3. The recommendation in the Recommended Order is rejected.

THEREFORE, it is ordered and adjudged that the registered general contractor's license of the Respondent be and the same is hereby suspended for a period of 10 years, provided, however, that said license may be reinstated after a period of three years if the Respondent furnishes to the Construction Industry Licensing Board clear and convincing evidence that he has made restitution to Mr. and Mrs. Cain and the five material suppliers to which he was convicted of passing worthless checks.

DONE and ORDERED this 29th day of March, 1983.

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

John Henry Jones, Chairman

Docket for Case No: 82-001535

Orders for Case No: 82-001535