STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL REGULATION, ) FLORIDA CONSTRUCTION INDUSTRY )

)

Petitioner, )

)

vs. ) CASE NO. 82-3268

)

DAVID H. TINIUS )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on March 22, 1983, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Michael J. Cohen, Esquire

2715 East Oakland Park Boulevard Suite 101

Fort Lauderdale, Florida 33306 For Respondent: No appearance

ISSUE

The issue presented for decision herein is whether or not the Respondent, David H. Tinius, unlawfully abandoned a construction project; diverted funds received for completion of a construction project and thereby failed to fulfill his contractual obligations.

FINDINGS OF FACT

1. Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found.

   
   

2. By its administrative complaint filed herein signed October 6, 1982, the Petitioner, Construction Industry Licensing Board, seeks to suspend, revoke or take other disciplinary action against the Respondent's registered building contractor's license.

   
   

3. During times material herein, Respondent was a registered building contractor and has been issued license No. RB0024083.

   
   

4. On approximately April 20, 1978, Respondent entered into a contract with Jess Marks to build a residence in Tamarac, Florida, for the sum of

   $46,551.

5. Respondent commenced construction of the Mark's residence but left the site when it was approximately forty percent complete. At that time, Respondent had received approximately $44,000 of the contract sum.

   
   

6. Jess Marks completed the construction of his residence by hiring another contractor to complete the project and expended approximately $50,000 over and above the contract price as agreed upon by the Respondent to complete his residence. Respondent never returned any of the monies received from the Marks for completion of the residence.

   
   

7. On approximately April 24, 1978, Respondent entered into a contract with Abe Abrahams to construct a residence in Tamarac, Florida, for the sum of

   $30,473.

   
   

8. Respondent left the Abrahams' project after he had received $6,000 and had completed approximately ten percent of the work on the Abrahams' residence. Respondent did not return to the site nor did he return any of the monies received from the Abrahams for the construction of their residence (See Petitioner's Composite Exhibit No. 5).

   
   

9. The Abrahams had to pay for supplies and material bought for the project by the Respondent and which reportedly had been paid, according to Respondent.

   
   

   THE RESPONDENT'S POSITION

   
   

   As noted hereinabove, the Respondent did not appear to contest or otherwise refute the allegations contained in the administrative complaint filed herein. However, Respondent, through counsel, filed an answer which admitted the complaint allegations filed herein.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Chapter 120.57(1), Florida Statutes.

    
    

11. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

    
    

12. The authority of the Petitioner is derived from Chapter 489, Florida Statutes.

    
    

13. The Respondent, a registered building contractor, is subject to the disciplinary guides of Chapter 489, Florida Statutes.

    
    

14. The Respondent, by abandoning the residence he contracted to build for Jess Marks amounted to a violation of Section 489.129(1)(k), Florida Statutes (1981)

    
    

15. Respondent, by receiving monies in the approximate amount of $40,000 for the completion of the Mark's residence while completing approximately ten percent of the construction work he agreed to perform, and failing to return the remaining funds, amounts to a diversion of funds received for the completion of a construction project in violation of Section 489.129(1)(h), Florida Statutes (1981).

16. Respondent, by receiving approximately $6,000 to commence construction of the Abrahams' residence after having completed only approximately ten percent of the agreed upon construction work he promised to perform, and by failing to return to the Abrahams' construction project, amounts to an abandonment of the construction project within the meaning of Section 489.129(1)(k) Florida Statutes (1981). Based thereon, and due to the Respondent's failure to return to the Abrahams project and/or otherwise fulfill his contractual obligations, amounts to a diversion of funds within the meaning of Section 489.129(1)(h), Florida Statutes (1981).

RECOMMENDATION

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

RECOMMENDED that the Respondent's registered building contractor's license No. RB0024083 be REVOKED.

DONE and RECOMMENDED this 29th day of August, 1983 in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1983

COPIES FURNISHED:

Michael J. Cohen, Esquire

2715 East Oakland Park Boulevard Suite 101

Fort Lauderdale, Florida 33306

David H. Tinius

4420 Northwest 36th Court Lauderdale Lakes, Florida 33309

David H. Tinius

Post Office Box 6338 Charlotte Amalil

St. Thomas, U.S.V.I. 00801

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

Jacksonville, Florida 32202

Fred M. Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-003268

Orders for Case No: 82-003268