STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION ) INDUSTRY AND LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2843

)

DOUGLAS R. MCINTEE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its designated Hearing Officer, Michael Pearce Dodson, held the final hearing in this case on September 9, 1983, in Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Michael Egan, Esquire

ROBERTS EGAN & ROUTA, P.A.

217 South Adams Street Post Office Box 1386

Tallahassee, Florida 32302 For Respondent: No appearance

BACKGROUND

These proceedings began on August 26, 1982 when the Secretary of the Department of Professional Regulation signed an Administrative Complaint against Respondent. By an Election of Rights executed on October 5, 1982 Respondent requested a formal proceeding thereon. On October 20, 1982 the case was forwarded to the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a final hearing. Initially the final hearing was scheduled for January 19, 1983 but was continued at the request of Petitioner. The case was thereafter rescheduled for hearing on September 9, 1983 at 9:00 a.m.

At the final hearing Petitioner presented testimony of witnesses and offered exhibits 1-16 which were received into evidence. Respondent did not appear and therefore offered neither testimony nor exhibits. Subsequent to the final hearing Petitioner has filed a Proposed Recommended Order containing proposed findings of fact which have been given careful consideration here. To the extent that the proposed findings are not reflected in this Order, they are specifically rejected as being either not supported by the weight of admissible evidence, or as being irrelevant to the issues determined here. 1/

FINDINGS OF FACT

1. These proceedings were set for final hearing by a Notice of Hearing dated July 8, 1983 addressed to the parties, including Respondent at 488 Esther Lane, Altamonte Springs, Florida, 33596. 2/ The Notice of Hearing was not returned to the Division of Administrative Hearings as undelivered. At the time and place noticed for the final hearing the Hearing Officer waited until 9:16 a.m., to commence the proceedings, which concluded at 11:08 a.m. At no time has the Respondent contacted the Hearing Officer concerning a continuance or explained his failure to appear as noticed.

   
   

2. At all times material to this proceeding Mr. McIntee has been licensed as a certified building contractor under license number CB C015923. He was also the qualifying agent pursuant to Section 489.119, Florida Statutes, for Delco, Incorporated. At no time has he ever attempted to qualify or otherwise notify the Construction Industry Licensing Board that he intended to affiliate with or do business as Earth Shelter Corporation of Florida, Inc.

   
   

3. On July 30, 1980 Earth Shelter Corporation of Florida, Inc. (Earth Shelter) entered into a contract with Mr. and Mrs. William Sweet to construct an earth shelter single family residence in Lake County, Florida. The estimated cost of the project was to be $57,000 and was guaranteed not to exceed $60,000. The contract was negotiated by Respondent acting as president of Earth Shelter. Mr. McIntee was the contractor who pulled the building permit on behalf of Earth Shelter. The project was financed by First Family Federal Savings and Loan Association of Eustis, Florida. In order to obtain payments from the Association, Respondent periodically executed affidavits which stated in part:

   
   

   Affiant says further that all the subcon- tractors, materialmen or any other persons performing labor and furnishing materials used in the construction of the building, or improvements to the premises or appur- tenances thereof, have been fully paid in- cluding all extras.

   
   

   As the result of executing these affidavits Respondent received draws totaling

   $49,079.26 on the dates of September 30, 1980, October 31, 1980, December 3,

   1980, February 4, 1981 and July 10, 1981. These affidavits were false. At the time the affidavits were executed all the subcontractors had not been paid by Respondent.

   
   

4. As an example, Frank Wagner Excavating, Inc. performed subcontracting services at the Sweet project on June 4 and 5, 1981 at a cost of $1,451. This was billed to Respondent on June 6, 1981. He sent Wagner Excavating a check dated June 6, 1981, in the amount of the invoice, but the check was returned to Wagner for lack of sufficient funds at Respondent's bank. Before Respondent's check bounced, but subsequent to invoicing the work done on June 4 and 5, 1981, Mr. Wagner performed additional earth moving work at the Sweet project on July 3, 8, 9 and 10, 1981. That work was invoiced on July 10, 1981 for $1,378.75. No attempt was made by Respondent to pay for the second invoice. Eventually Wagner Excavating was paid by Mr. Sweet personally and by an additional payment directly to Wagner Excavating by First Family Federal Savings and Loan Association in order to satisfy Wagner's lien. In order to protect himself, Wagner had filed a lien against the Sweet property on August 17, 1981.

5. Because of structural defects in the construction of Mr. Sweet's home performed by Respondent, Mr. Sweet filed a complaint with the Lake County Board of Examiners against Respondent. Notice of that complaint was given to Respondent on August 18, 1981. He was informed that on September 1, 1981 the Lake County Board of Building Examiners would take testimony concerning the allegations contained in the complaint. Respondent was urged to attend the meeting and to be represented by counsel if he so desired. Mr. McIntee did appear at that meeting. An investigation of the complaint followed. Respondent was subsequently noticed for a second meeting of the Board of Examiners to be held on October 6, 1981 concerning the Sweet complaint, but he failed to appear. At that time the results of the investigation were reviewed and the Lake County Board of Examiners revoked Respondent's license as a contractor in Lake County for abandonment and code violations related to his work on Mr. Sweet's residence.

   
   

6. On September 19, 1980 Earth Shelter through Respondent entered into a contract with James V. Migliorato to construct a residence in Seminole County, Florida. The contract price was $48,500. During the course of the work performed by Mr. McIntee, liens in the amount of approximately $9,500 were filed by third parties who provided materials and services under subcontract to Earth Shelter in the construction of Mr. Migliorato's residence.

   
   

7. By March of 1981 Respondent had abandoned the project without cause. Mr. Migliorato later met with him at which time Respondent explained that he had run out of money and was not going to finish the job. In August of 1981 Mr. Migliorato and his counsel met with Respondent and his counsel. During their discussions Respondent stated that the money which he had been paid for work on the Migliorato home had been diverted by him for use on the Sweet residence mentioned above. The liens outstanding against Mr. Migliorato's property were never satisfied by Respondent and had to be paid by the homeowner. An example of the outstanding liens was that filed by Superior Distributors, Inc. which supplied and installed a kitchen and bathroom cabinet at the Migliorato residence. The work was completed on June 30, 1981 and invoiced on the same date for $2,128. This invoice has never been paid by Respondent.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Sections 120.57(1) and 455.225(4), Florida Statutes.

   
   

9. The Administrative Complaint charges Respondent with violations of Section 489.129(1)(h), (i), (j), (k), (l) and (m), Florida Statutes (1981). Those provisions provide in part:

   
   

   1. The board may revoke, suspend, or deny the issuance or renewal of the certi- ficate or registration of a contractor or impose an administrative fine not to ex- ceed $1,000, place the contractor on pro- bation, reprimand or censure, a contractor if the contractor is found guilty of any of the following acts:

      1. Diversion of funds or property received for prosecution or completion of a specified construction project or opera- tion when as a result of the diversion

         the contractor is or will be unable to fulfill the terms of his obligation or contract.

      2. Disciplinary action by any muni- cipality or county, which action shall be reviewed by the state board before the state board takes any disciplinary action of its own.

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

      4. Abandonment of a construction pro- ject in which the contractor is engaged

         or under contract as a contractor. A pro- ject is to be considered abandoned after

         90 days if the contractor terminates said project without notification to the pro- spective owner and without just cause.

      5. Signing a statement with respect

         to a project or contract falsely indicating that the work is bonded, falsely indicating that payment has been made for all subcon- tracted work, labor, and materials which results in a financial loss to the owner, purchaser, or contractor; or falsely indi- cating that workers' compensation and public liability insurance are provided.

      6. Upon proof and continued evidence that the licensee is guilty of fraud or deceit or of gross negligence, incompetency,

      or misconduct in the practice of contracting.

      
      

10. Respondent has violated subparagraph (h) by diverting funds he received for the construction of the Migliorato residence in order to work on the Sweet project. As a result of this diversion he was unable to complete Mr. Migliorato's home.

    
    

11. Respondent is subject to discipline under subparagraph (i) due to his contractor's license having been revoked in Lake County, Florida. That revocation proceeding afforded him adequate notice and due process of law.

    
    

12. Because Mr. McIntee while being the qualifying agent for Delco, Incorporated was acting as the president and contractor for Earth Shelter Corporation of Florida, Inc., without having informed the Department in writing that he proposed to engage in contracting in affiliation with another business organization, he is in violation of subparagraph (j) by virtue of having violated Section 489.119(3)(b), Florida Statutes (1981).

    
    

13. Mr. McIntee's announced refusal to complete Mr. Migliorato's home without just cause is a violation of subparagraph (k).

    
    

14. When Mr. McIntee executed affidavits which he submitted to First Family Federal Savings and Loan Association of Eustis, in order to secure construction draws when he knew that all subcontractors and materialmen had not been paid and when his action resulted in a financial loss to Mr. and Mrs. Sweet, he violated the terms of subparagraphs (l) and (m) above.

15. No evidence appears from the record that Mr. McIntee has ever been disciplined for misconduct as a contractor; however, no evidence has been presented in this case to mitigate the penalty which is appropriate for the violations proven here.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Construction Industry Licensing Board enter a Final Order revoking Respondent's license as a certified building contractor in the State of Florida.

DONE and RECOMMENDED this 14th day of October, 1983, in Tallahassee, Florida.

MICHAEL P. DODSON

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 14th day of October, 1983.

ENDNOTES

1/ Sonny's Italian Restaurant v. Department of Business Regulation, 414 So.2d 1156, 1157 (Fla. 3d DCA 1982); Sierra Club v. Orlando Utilities Commission, So.2d 8 FLW 2077, 2079 (Fla. 5th DCA August 18, 1983).

2/ This zip code is not Respondent's. On December 17, 1982 Petitioner filed a Motion for Continuance, but instead of serving it on Respondent, served it on another person whose zip code is 33596. On December 29, 1982 Petitioner corrected its error by serving a new copy of the Motion on Respondent but the new copy showed Mr. McIntee's zip code as 33596. This error has been repeated in all subsequent pleadings and notices in this case and was not discovered until the drafting of this Order.

COPIES FURNISHED:

Michael Egan, Esquire ROBERTS EGAN & ROUTA, P.A.

217 South Adams Street Post Office Box 1386 Tallahassee, Florida 32302

Douglas R. McIntee

488 Esther Lane

Altamonte Springs, Florida 32701

James Linnan, Executive Director Construction Industry Licensing Board Post Office Drawer 2

Jacksonville, Florida 32202

Frederick Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-002843

Orders for Case No: 82-002843