STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-2614

)

CLAUDE R. WEBB, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing before the Division of Administrative Hearings and its duly appointed Bearing Officer, R. T. Carpenter. The parties were represented by:

For Petitioner: John O. Williams, Esquire

547 North Monroe Street, Suite 204 Tallahassee, Florida 32301

For Respondent: James H. Thompson, Esquire

620 Madison Street, Suite 2-C Tampa, Florida 33602

This case arose on Petitioner's Administrative Complaint charging Respondent with diverting funds received from a construction project in violation of Subsection 489.129(1)(h), Florida Statutes (1979). The parties submitted proposed findings of fact which are incorporated herein to the extent they are relevant and consistent with the evidence

FINDINGS OF FACT

1. Respondent is a certified building contractor having been issued license No. CE C014020. Be was so licensed and was the qualifier for ARC Construction, Inc. at all times material to this proceeding.

   
   

2. On July 25, 1980, Respondent, on behalf of ARC Construction, Inc., contracted with Mr. and Mrs. Richard Doyle to remodel a residence in St. Petersburg. The contract price was $43,180, plus extras of $1,525.

   
   

3. Respondent was paid $1,500 initially and received draw payments of

   $4,318 on August 11, 1980, $8,636 on August 19, 1980, and $10,795 on September 3, 1980. These payments totaled $25,249, or about 58 percent of the basic contract amount and 56 percent of the contract price with add-ons.

   
   

4. Respondent was obligated to pay suppliers and acknowledged this responsibility to the complainant, Mr. Richard Doyle, but advised him that he was having cash flow difficulties. Respondent's checks to Scotty's, dated

   August 10, 1980, for $2,518.28, and August 22, 1980, for $738.99, were dishonored by the bank. His check for approximately $5,000 to Florida Forest Products was likewise returned. Respondent failed to settle these accounts and the complainant was eventually obliged to do so in order to remove the liens on his property.

   
   

5. Respondent ceased work on the project in mid-October, 1980, and was terminated by the complainant in January, 1981. At the time Respondent ceased work the project was 50 percent to 80 percent complete.

   
   

   CONCLUSIONS OF LAW

   
   

6. Section 489.129, Florida Statutes (1979) provides in part:

   
   

   1. The board may revoke, suspend, or deny the issuance or renewal of the certificate or registration of a contractor or impose an

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

      (h) Diversion of funds or property received for prosecution or comoletion of a specified construction project or operation when as a result of the diversion the contractor is or will be unable to fulfill the terms of his obligation or contract.

      
      

7. Petitioner's evidence established that Respondent was at fault in failing to complete this project. It was also shown that he was responsible for the payment of suppliers and that he attempted to do so and failed. However, it was not proven that this failure resulted from the diversion of funds received for the project. Rather, Respondent's financial difficulties may have resulted from underbidding the project or from ineffective use of the funds he received.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That Petitioner enter a Final Order dismissing the Administrative Complaint.

DONE and ORDERED this 29th day of April, 1983, in Tallahassee, Florida.

R. T. CARPENTER, 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 29th day of April, 1983.

COPIES FURNISHED:

John O. Williams, Esquire

547 North Monroe Street Suite 204

Tallahassee, Florida 32301

James H. Thompson, Esquire 620 Madison Street

Suite 2-C

Tampa, Florida 33602

James Linnan, Executive Director Construction Industry Licensing Board

Department of Professional Regulation

Post Office Box 2 Jacksonville, Florida 32202

Frederick Roche, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-002614

Orders for Case No: 82-002614