STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-1849

)

WALTER C. DAVIS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on July 18, 1983, in Crystal River, Florida. The issue for determination at the hearing was whether respondent's license as a certified general contractor should be revoked, suspended or otherwise disciplined for the reasons set forth in the Administrative Complaint, as amended:

APPEARANCES

For Petitioner: Stephanie A. Daniel

130 North Tharpe Street Tallahassee, Florida 32301

For Respondent: Walter C. Davis, Pro Se

Post Office Box 1172

Homosassa Springs, Florida 32647 INTRODUCTION

By an Administrative Complaint, as amended, respondent is charged in Counts One and Two with denying the existence of unpaid bills, debts, liens and judgments against him at the time he made application to the petitioner for a Certification Change of Status, thereby violating Sections 455.227(1)(a), 489.129(1)(a) and 489.129(1)(c), Florida Statutes. Count Three of the Complaint charges that respondent violated Section 489.129(1)(i) Florida Statutes, in that the Citrus County Building Department acted against his license. Count Four charges respondent with a violation of Section 439.129(1)(h), Florida Statutes, in that respondent was paid the entire contract price for a boathouse, completed the structure, failed to pay $490.00 for materials and services provided by Overhead Door Company, and said Company filed a Notice of Lien against the owner's property.

In support of the charges alleged, petitioner presented the testimony of John Maher, the Regional Manager of Cox Lumber Company; William Hausmann, the Comptroller of Carroll Contracting; Jack White, the Chairman of the Citrus County Board of Examiners; James A. Brooks, the Building Official for the Citrus

County Building Department; Wesley Gilbert; Don Shields, the owner of Overhead Door Company; Boyd T. Peeler; Herman Cherry, an investigator with the Department of Professional Regulation; and, by way of deposition, Steven L. St. Jean, the Credit Manager of Kirby Building Systems. Petitioner's Exhibits 1 through 23, 25, 26, and 28 were received into evidence. Respondent testified on his own behalf.

Subsequent to the hearing, the petitioner submitted proposed findings of fact and proposed conclusions of law. To the extent that the petitioner's proposed findings of fact are not included in this Recommended Order, they are rejected as being either not supported by competent substantial evidence adduced at the hearing, irrelevant or immaterial to the issues in dispute or as constituting conclusions of law as opposed to findings of fact.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. Respondent, Walter C. Davis, became licensed in Florida as a certified general contractor in March of 1973, holding license number CG C007063. Respondent was away from the State of Florida from late 1976 until 1979. During the 1977-79 and 1979-81 license periods, respondent renewed his license number CG C007063 on an inactive basis.

   
   

2. On or about September 4, 1980, respondent submitted to the petitioner a "certification change of status application" to change his licensing status from inactive to active status. Among the questions asked on the application were 1) are there now any unpaid past-due bills or claims for labor, materials, or services as a result of the applicant's construction operations?, and 2) are there now any suits, or judgments of record or pending as a result of the applicant's construction operations? To both these questions, respondent answered "no". By affidavit attached to the "certification change of status application", respondent vouched for the truth and accuracy of all statements and answers contained in the application. Respondent's license was placed on an active status and he currently holds such license number CG C007063.

   
   

3. As a result of respondent's failure to pay for trusses used by respondent in the construction of a peach barn, Cox Lumber Company of Brooksville filed a lawsuit against respondent's construction company seeking the amount of $2,481.03. The original and amended complaints were served on respondent on September 1, 1976 and December 28, 1976. A Final Judgment, by default, was entered against the respondent on February 23 1977. This judgment remained outstanding as of September 4, 1980.

   
   

4. Respondent failed to pay for certain prefabricated steel buildings provided by Kirby Building Systems. Suit was brought by Kirby against the respondent, the respondent was served with the complaint on April 13, 1977, and, on July 12, 1977, the Circuit Court for Sarasota County entered a Final Judgment, by default, against respondent in the amount of $5,713.11. This judgment remains outstanding.

   
   

5. As of April 30, 1976, respondent owed $435.62 to Carroll Contracting Company for ready mix concrete used by the respondent on a construction project. This amount was past due on September 4, 1980.

6. As a result of a complaint, the Citrus County Board of Examiners voted on June 22 1976, to suspend respondent's permit-pulling privileges in Citrus County. This action was to remain in effect until the respondent made restitution or satisfied the complainant's concerns. Citrus County Ordinance No. 72-3 requires the holding of a public hearing after notice to the holder of a Certificate of Competency prior to suspension or revocation of a Certificate. No such public hearing was held by the Citrus County Board of Examiners.

   
   

7. On or about December 7, 1981, respondent entered into a contract with Boyd T. Peeler to construct a boathouse and shop for $6,200.00. Mr. Peeler paid respondent the entire contract price. The structure was completed and passed final inspection on August 18, 1982. Respondent failed to pay $490.00 to Overhead Door Company of Ocala for the labor and materials used to install two rolling doors for the Peeler boathouse. As of the date of the hearing, the bill remained unpaid by the respondent

   
   

   CONCLUSIONS OF LAW

   
   

8. The petitioner in this case seeks to take disciplinary action against the respondent's license as a general contractor on the grounds that he has violated four provisions of Section 489.129(1), Florida Statutes. It is alleged that in denying that he had any unpaid bills or judgments against him at the time he submitted his application to change his status from inactive to active, respondent violated Sections 489.129(1)(a) and (c), and 455.227(1)(a), Florida Statutes. These sections authorize the Construction Industry Licensing Board to take disciplinary action against a licensee upon proof that a certificate of registration has been obtained by fraud or misrepresentation [489.129(1)(a)] and when the licensee has made misleading, deceptive, untrue or fraudulent representations in the practice of his profession [455.227(1)(a)].

   
   

9. The evidence demonstrates that respondent had unpaid bills and judgments against him as of September 4, 1980, when he applied for a change of status in his registration. Even if respondent did not have actual knowledge of the rendition of final judgments against him, he had knowledge of the filing of the actual complaints against him by Cox Lumber Company and Kirby Building Systems. He apparently left the State of Florida with lawsuits pending against him. In such an event, he had every reason to believe that, in his absence, a judgment, by default, would be obtained. He also had knowledge from the Citrus County Board of Examiners' proceedings that there were claims for labor, materials or services as a result of his construction operations. To answer "no" to the questions on his change of status application regarding the existence of past-due bills or claims or judgments of record or pending constituted a misleading, deceptive, untrue or fraudulent representation in the practice of his profession, in violation of Section 455.227(1)(a), and also Section 489.129(1)(c) Florida Statutes. Inasmuch as the petitioner presented no evidence that a license would have been denied respondent had the responses in the application been accurate, it cannot be concluded that respondent obtained his certificate or registration by fraud or misrepresentation in violation of Section 489.129(1)(a), Florida Statutes.

   
   

10. A licensee may be disciplined by the petitioner if the licensee has been the subject of

    
    

    "Disciplinary action by any municipality or county, which action shall be reviewed by the state board before the state board

    takes any disciplinary action of its own." Section 489.129(1)(i), Florida Statutes.

    
    

    The evidence in this case reveals that the Citrus County Examining Board, without a public hearing as required by its own Ordinance, voted to suspend respondent's Certificate pending tee satisfaction of a complaint. It appearing that the action taken by the local board did not comport with the Ordinance provisions, no further action by the petitioner should be based upon that local board action alone. The evidence presented at this hearing from the complainant at the local level was not sufficient to otherwise legitimize or substantiate the grounds for the disciplinary action taken by the local board

11. Grounds for discipline exist when a licensee is found guilty of "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 terns of

his obligation or contract." Section 489.129 (1)(h), Florida Statutes.

Here, there is competent substantial evidence to support the facts that respondent was paid the full contract price for the Feeler project and then failed to pay one of the subcontractors, Overhead Door Company, $490.00 owing for materials and labor on that job. That amount remains unpaid and the owner, Mr. Feeler, consequently faces the threat of a lien against his property. As such, it is concluded that respondent diverted funds paid him by the owner and has been unable to fulfill the terms of his contract with Mr. Peeler.

Respondent has thereby violated Section 489.129(1)(h), Florida Statutes.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it

is

RECOMMENDED

That respondent be found guilty of violating Sections 489.129(1)(c) and (h)

and 455227(1)(a), Florida Statutes, and that his certified general contractor's license be suspended for a period of five (5) years. It is further

RECOMMENDED

That should respondent provide sufficient evidence to the petitioner that he has paid all monies due to Overhead Door Company, Kirby Building Systems, Cox Lumber Company and Carroll Contracting Company, his license be reinstated and respondent be placed on probation for the remainder of the five year period.

Respectfully submitted and entered this 23rd day of September, 1983, in Tallahassee, Florida.

DIANE D. TREMOR, 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 23rd day of September, 1983.

COPIES FURNISHED:

Stephanie A. Daniel Department of Professional

Regulation

130 N. Monroe Street Tallahassee, Florida 32301

Walter C. Davis

Post Office Box 1172

Homosassa Springs, Florida 32647

Secretary Fred Roche Department of Professional

Regulation

130 N. Monroe Street Tallahassee, Florida 32301

J. K. Linnan, Executive Director Construction Industry Licensing Board

111 Coast Line Drive East, Suite 504 Jacksonville, Florida 32201

Docket for Case No: 82-001849

Orders for Case No: 82-001849