STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2417

)

LARRY C. GRIGGS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, WILLIAM B. THOMAS, held a formal hearing in this case on November 30, 1982, in Coral Gables, Florida. The transcript was filed on December 15, 1982, and the parties were allowed 15 days thereafter to submit proposed findings of fact and conclusions of law. By stipulation, the time for issuance of this Recommended Order was extended to January 31, 1983.

The proposed findings and conclusions filed by the Petitioner have been considered, and these have been largely adopted. Nothing has been received from the Respondent.

APPEARANCES

For Petitioner: Michael J. Cohen, Esquire

Suite 101 Kristin Building 2715 East Oakland Park Blvd.

Fort Lauderdale, Florida 33306

For Respondent: James L. Wall, Jr., Esquire

407 Lincoln Road

Miami Beach, Florida 33139

By Administrative Complaint issued on July 12, 1982, the Respondent, Larry

1. Griggs, was charged with violations of Section 489.129(1)(c), (d), (g) and (j), Florida Statutes. Count I of the Complaint charges the Respondent with acting as a contractor under the name Kramer Homes, Inc., a name which was not on his license and a company which he failed to qualify. Count II charges the Respondent with violation of Section 10-22(g), Code of Metropolitan Dade County, in that he failed to pay creditors for services or materials in connection with a building project. Count III charges that the Respondent issued a worthless check to a creditor.

   
   

   In support of the Administrative Complaint, the Petitioner presented the testimony of three witnesses, the Respondent, the accounts manager for Dixie Clamp and Scaffold, Inc., and the president of World Tile Corporation. Nine

   exhibits were offered and received in evidence. The Respondent also testified in his own behalf.

   
   

   Based upon the testimony and exhibits in evidence, and the observed candor and demeanor of the witnesses, the following are found as facts.

   
   

   FINDINGS OF FACT

   
   

   1. The Respondent, Larry C. Griggs, is licensed as a certified general contractor, holding license number CG C001910.

      
      

   2. During the years 1979, 1980 and 1981 the Respondent was president of Kramer Homes, Inc., and in this capacity he acted as contractor for the construction of a project in Dade County known as Woods Landing.

      
      

   3. Kramer Homes, Inc., entered into subcontracts in connection with the Woods Landing project, and listed itself as contractor on these subcontracts. Kramer Homes, Inc., also caused the notice of commencement to be published, and it obtained the construction loan and paid some of the bills incurred.

      
      

   4. The Respondent, however, failed to qualify Kramer Homes, Inc., with the Construction Industry Licensing Board.

      
      

   5. The Respondent admitted the above facts, but explained that he had no intent to violate the construction industry licensing law. He asserts that he was confused as to the proper practice because he owned and operated both Kramer Homes, Inc., and his other corporation, Larry C. Griggs, Inc., which he did qualify.

      
      

   6. During the course of the Woods Landing project, funding problems developed which resulted in the failure of the Respondent to pay 16 creditors for materials furnished or services performed at Woods Landing when payment was due. Subsequently however, the Respondent has caused payment to be made, or has made arrangements for payment, to all such creditors except for five. The creditors remaining unpaid are Miami Comfort Air, Style Light, Inc., Gem Cabinet Company of Miami, Inc., World Tile Company, and Dixie Clamp and Scaffold, Inc.

      
      

   7. On approximately September 11, 1981, the Respondent issued a check on a Woods Landing account, payable to Miami Comfort Air, in the amount of $5,000. Previously, on July 31, 1981, the Respondent had acknowledged the debt due Miami Comfort Air, and had made arrangements to pay $8,000 by September 1, 1981. The check for $5,000 was in partial payment of the total debt.

      
      

   8. The check for $5,000 issued by the Respondent on September 11, 1981, to Miami Comfort Air was returned unpaid by the bank marked not sufficient funds.

      
      

   9. When the Respondent learned that this check had not been paid, he failed to make it good or to make suitable arrangements for payment of the amount due Miami Comfort Air.

      
      

   10. The Respondent contends that be believed that there were sufficient funds in his account when he issued the $5,000 check to Miami Comfort Air. He explained that his bank, County National Bank of South Florida, became insecure with the financial aspects connected with the Woods Landing project, and withdrew interest from his account without advising the Respondent, at or about the time he issued the check to Miami Comfort Air. He asserts that it is his

       intention to pay all of the creditors of this project, and he established his payment record of the creditors who had been paid as of the date of the hearing.

       
       

   11. Miami Comfort Air has reduced its claim against the Respondent to judgment which the Respondent has not paid, but has elected to appeal, although he did not appear in court to defend the claim when suit was filed.

       
       

       CONCLUSIONS OF LAW

       
       

   12. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

       
       

   13. The Construction Industry Licensing Board is empowered to take disciplinary action against a contractor who is found guilty of any of the acts specified in Section 489.129(1)(c), (d), (g) and (j), Florida Statutes. These subsections provide:

       
       

       489.129(1)(c)

       Violation of Section 455.227(1)(a).

       The licensee has made misleading, deceptive, untrue, or fraudulent representations in the practice of his profession.

       
       

       489.129(1)(d):

       Willful or deliberate disregard and violation of the applicable building codes

       or laws of the state or of any municipalities or counties thereof.

       
       

       489.129(1)(g)

       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 certificate or registration, or as later changed as provided in this act.

       
       

       489.129(1)(j)

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

       
       

   14. With regard to Count I, the Respondent admitted the factual allegations in support thereof, and the Petitioner adduced sufficient evidence to demonstrate violations of the subsections charged therein, Section 489.129(1)(g) and (j), Florida Statutes. However, this is a technical violation which the Respondent, in mitigation, explained was unintentionally caused in part by confusion between two corporate entities which he solely owned and operated, Larry C. Griggs, Inc., and Kramer Homes, Inc.

       
       

   15. As to Count II, the Petitioner has failed to present sufficient evidence to show that the Respondent willfully or deliberately disregarded the

       Metropolitan Dade County Building Code by failing to pay creditors, with the exception of Miami Comfort Air, which will be discussed in conjunction with Count III.

       
       

   16. With respect to Count III, the Petitioner presented sufficient evidence to demonstrate violations of Section 489.129(1)(c) and (d), Florida Statutes. It is not disputed that the Respondent represented to Miami Comfort Air that it would be paid. However, the Respondent's check for only a partial payment was not honored by his bank. Upon discovery of this, the Respondent ignored his responsibility to this creditor, willfully and deliberately refusing to take the check good or to make any payment arrangements. When suit was brought, a judgment was awarded to Miami Comfort Air on the Respondent's default, and in this proceeding there was presented no evidence to demonstrate that the Respondent has any defense to the claim of this creditor. The judgment remains unpaid.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Larry C. Griggs, be found guilty of

violating Sections 489.129(1)(d), (g), (j) and Section 489.129(1)(c) to wit Section 455.227(1)(a), Florida Statutes, and that he be assessed an administrative fine of $250 on Count 1, $100 on Count 11 and $1,000 on Count 111, for a total fine of $1,350.

THIS RECOMMENDED ORDER entered on this the 24th day of January, 1983.

WILLIAM B. THOMAS, 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 January, 1983.

COPIES FURNISHED:

Michael J. Cohen, Esquire Suite 101 Kristin Building 2715 East Oakland Park Blvd. Fort Lauderdale, Florida 33306

James L. Wall, Jr., Esquire

407 Lincoln Road

Miami Beach, Florida 33139

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

James Linnan, Executive Director Construction Industry Licensing

Board

Post Office Box 2 Jacksonville, Florida 32202

Docket for Case No: 82-002417

Orders for Case No: 82-002417