STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2859

)

DONALD BARTLETT RICHARDS, )

)

Respondent. )

)

RECOMMENDED ORDER

This is a disciplinary case by Petitioner Department of Professional Regulation, Construction Industry Licensing Board, against Respondent Donald B. Richards, a contractor. This case arose on an Administrative Complaint filed by Petitioner seeking to discipline Respondent for violating Sections 489.129(1)(j) and 489.127(1)(d), Florida Statutes (1979), by giving false information on his application.

This case was originally filed in October 1982; however, Respondent withdrew his request for a formal hearing and requested an informal hearing before the Board. In that informal proceeding, it was determined that a dispute existed over the material facts, and the matter was referred back to the Division of Administrative Hearings to conduct a hearing pursuant to Section 120.57(1), Florida Statutes.

The formal hearing in this matter was held on March 1, 1984, in Lakeland, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. Subsequently, Petitioner moved to extend the time in which to file its proposed recommended order, and said motion was granted and the time for filing proposed recommended orders extended until May 4, 1984.

However, no proposed recommended orders were filed, and therefore, the parties having had ample opportunity, this order is entered.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Donald B. Richards, pro se

630 Candyce Avenue

Lakeland, Florida 33801

ISSUE

The factual issue in this case is whether Respondent failed to disclose certain information, of which he had knowledge, which would have adversely impacted the consideration by the Board of his financial responsibility. The legal issue raised by the Administrative Complaint is whether the failure to disclose such information constitutes a violation of Section 489.127(1)(d) , and thereby a violation of Section 489.129(1)(j), Florida Statutes (1979). However, neither allegation alleges fraud on an application. The case should be dismissed.

FINDINGS OF FACT

1. On or about March 26, 1980, the Respondent filed for a change of status as a certified general contractor from a company to operating as an individual.

   
   

2. On his application, Respondent answered in the negative the following questions:

   
   

   1. Question 16 (b): Are there now any unpaid past-due bills or claims for labor, materials, or services, as a result of a construction operation of any person named in `(i) below' or any organizations in which any such person was a member of the personnel?

      
      

   2. Question 16(c): "Are there now any liens, suits, or judgments of record or pending as a result of a construction operation of any person named in

      `(i) below' or any organiation in which any such person was a member of the personnel?'

      
      

   3. Question 16(d): Are there now any liens of record by the U.S. Internal Revenue Service or the State of Florida Corporate Tax Division against any person named in `(i) below' or any organization in which any person was a member of the personnel?

      
      

3. Evidence was received that a number of judgments and liens had been obtained against t Donald B. Richards personally or as a member or qualifier of a registered or certified company, specifically Acme Aluminum Sales and Service. There is no credible or substantial evidence that the judgment of Nu-Vue Industries, Inc. (Petitioner's Exhibit 7), arose from contracting operations in which Respondent was involved. There is no substantial and competent evidence that the notes upon which the judgment of Commercial National Bank (Petitioner's Exhibit 7) was obtained related to contracting operations. (Tr. 17, 19.)

   
   

4. Tax liens for nonpayment of unemployment compensation were introduced. These liens were mailed to 2120 West Parker Street, Lakeland, Florida. Question 16(d) on the subject application limits tax liens to those of the U.S. Internal Revenue Service and the Corporate Tax Division of the State of Florida. See Petitioner's Exhibit 9 (Composite).]

   
   

5. The custodian of the records for Florida Industries, Inc., could not recall what Respondent purchased from that company or why Respondent purchased it. The records custodian could only say that the items were probably building materials, and could not way whether the company's judgment had been satisfied. (See Deposition of Saul Rachelson; pages 5, 7.) The records of the judgment reflect that it was sent to 446 North Wabash, Lakeland, Florida. (See Petitioner's Exhibit 10.) The records of the Board do not reflect that Respondent ever resided or worked at 446 North Wabash, Lakeland, Florida. Said

   address is also listed within the judgment as the address of John Stinson, who was Respondent's business partner at the time. There is no substantial evidence that this judgment was related to contracting, that Respondent was aware of this judgment, or that the judgment was outstanding at the time Respondent made his application on March 26, 1980.

   
   

6. The judgment obtained by Wells Carmel Aluminum, Inc., on May 4, 1977, was a default judgment. The attorney for Wells Carmel Aluminum did not know whether the items purchased, from which the default judgment arose, were construction materials and did not know why Respondent had purchased them. (Tr. 28.) There is no substantial and competent evidence that these materials were related to contracting.

   
   

7. The judgment obtained by State Farm Fire and Casualty Company dated June 4, 1978, was related to Respondent's business. The business of Acme Aluminum Sales and Service was contracting. However, the judgment reflects on its face that it was sent to 2120 West Park Street, Lakeland, Florida 33001, on or about the date that it was entered. By said time, the business was no longer operating at that address, and said property had returned to the possession of the original owner, Arley Propes. The evidence indicates that Respondent had no knowledge of State Farm's judgment.

   
   

8. The judgment obtained by the Pope Shopper Shopping News, Inc., on February 7, 1970, was related to Respondent's contracting business. A copy of the judgment was sent to Respondent's home address at 630 Candyce Avenue, Lakeland, Florida 33801. The Respondent had knowledge of this judgment and that it was related to his contracting activities.

   
   

9. On November 3, 1977, Richard Allen obtained a judgment against Respondent arising from Respondent's failure to correct certain conditions on a contracting job which he had done for Allen. A copy of this judgment was sent to 2120 West Parker Street, Lakeland, Florida 33801. By that time, Respondent was no longer doing business at that address. The evidence indicates that Respondent had no knowledge of the judgment obtained by Allen.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction to enter this order pursuant to the provisions of Section 120.57(1), Florida Statutes. The Construction Industry Licensing Board licenses contractors pursuant to the provisions of Chapter 489, Florida Statutes, which empowers the Board to discipline contractors for violations of the statutes.

    
    

11. Petitioner has charged Respondent with violation of Section 489.127(1)(d), Florida Statutes (1979), and thereby violation of Section 489.129(1)(j), Florida Statutes (1979). Section 489.127(1)(d), supra, provides as follows:

    
    

    (1) No person shall:

    * * *

    (d) Give false or forged evidence to the board or a member

    thereof for the purpose of obtaining a certificate or registration;....

12. Section 489.129(1)(j), supra, provides as follows:

    
    

    (1) The board may revoke, suspend, or deny the issuance or renewal of the certificate or registration of a contractor or impose an adminis- trative fine not to exceed $1,000, place the contractor of probation, reprimand or censure, a contractor if the contractor is found guilty of any of the following acts:

    * * *

    (j) Failure in any material respect to comply with the provi- sions of this act.

    
    

13. First, there is no proof that Respondent provided the Board with false evidence. The allegation is that Respondent did not report certain information to the Hoard. Second, there is a difference between providing the Board with false evidence, as alleged by the Administrative Complaint, and the failure of an applicant to provide all the information requested. However, if one concedes that the concealment of a judgment equates with providing the Board with false evidence on an application, the alleged violation is dependent upon Respondent's actual knowledge of the information and, naturally, whether the Board requested the information on its application. The Board introduced evidence of several tax liens obtained by the Department of Labor and Employment for unemployment taxes which the Respondent had not paid. However, Question 16(d) only requests information about tax liens by the U.S. Internal Revenue Service and the Florida Corporate Tax Division. The Respondent cannot be penalized for failing to provide information which the Board did not request.

    
    

14. Concerning the issue of Respondent's knowledge, the Respondent only had knowledge of one debt which was demonstrated to have arisen from contracting operations. This debt as the one owed to Polk Shopper Shopping News, Inc. Considering the nature of this debt and the period of time between when it was incurred and when the Respondent made application to the Board, the failure to report this judgment appears to be a matter of memory, not of fraud. As recognized by Mr. Linnan in his deposition, wherein he stated that had the Respondent reported these matters they would not have been a basis for denying him a license, these matters were not key in obtaining a license.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board take no action against Respondent.

DONE and RECOMMENDED this 3rd day of August, 1984, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1984.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Donald B. Richards 630 Candyce Avenue

Lakeland, Florida 33801

Frederick 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: 82-002859

Orders for Case No: 82-002859