Judges: D. R. ALEXANDER
Agency: Department of Business and Professional Regulation
Latest Update: Jul. 22, 1983
Summary: Evidence supported finding that licensee abandoned a project.
83-0268.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL )
REGULATION, CONSTRUCTION )
INDUSTRY LICENSING BOARD, )
)
Petitioner, )
)
vs. ) CASE NO. 83-268
)
JAMES EVERETT VOSE, III, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, DONALD R. ALEXANDER, on April 7, 1983 in Vero Beach, Florida.
APPEARANCES
For Petitioner: John O. Williams, Esquire
547 North Monroe Street, Suite 204 Tallahassee, Florida 32301
For Respondent: James E. Vose, III, pro se
16308 Gulf Boulevard, No. 408 Redington Beach, Florida 33708
BACKGROUND
In this proceeding, Petitioner, Department of Professional Regulation, Construction Industry Licensing Board, seeks to take disciplinary action against the certified general contractor license of Respondent, James Everett Vose, 111, Esquire. In an administrative complaint filed on July 13, 1982, Petitioner has alleged that Respondent (1) abandoned a construction project in violation of Subsection 489.129(1)(k) , Florida Statutes, (2) diverted funds which caused him to be unable to fulfill his obligations in contravention of Subsection 489.129(1)(h) , Florida Statutes, and (3) failed to supervise a construction project as required by Subsection 489.105(3) and 489.119(2), Florida Statutes.
Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1) , Florida Statutes. The request was forwarded by Petitioner to the Division of Administrative Bearings on January 26, 1983.
By notice of hearing dated February 17, 1983 a final hearing was scheduled for April 7, 1983 in Vero Beach, Florida. At the final hearing Petitioner presented the testimony of Oliver J. Fisher, Bonnie Porter, Karl Lachnitt, Pat White, Alene Pence, Thomas Griffith and James W. McGuirt and offered Petitioner's Exhibits 1-9; all were received in evidence. Respondent testified on his own behalf and presented the testimony of Charles R. McKinnon.
The transcript of hearing was filed on April 18, 1983. Proposed findings of fact and conclusions of law were filed by Petitioner on April 28, 1983 and have been considered by the undersigned in the preparation of this order.
Findings of fact not included in this order were considered irrelevant to the issues, immaterial to the results reached, or were not supported by competent and substantial evidence.
The issue herein is whether Respondent's certified general contractor's license should be disciplined.
Based upon all of the evidence, the following Findings of Fact are determined:
FINDINGS OF FACT
At all times relevant hereto, Respondent, James Everett Vose, III, held certified general contractor license number CG CA05417 issued by Respondent, Department of Professional Regulation, Construction Industry Licensing Board.
He currently resides at 16308 Gulf Boulevard, No. 408, Redington Beach, Florida.
In 1981 Respondent was the qualifying agent for Griffith and Vose, Inc., a construction firm doing business on the east coast of Florida. Respondent was owner and sole stockholder of the corporation. Thomas Griffith was employed by Respondent as field superintendent.
On or about February 6, 1981 Griffith signed a contract on behalf of Griffith and Vose, Inc. with Oliver J. Fisher to construct a new home at 9945 Nicole Drive, Sebastion, Florida. The contract called for a total price of
$39,500. The parties orally agreed that the house would be completed by September, 1981. Griffith and Fisher were acquainted with each other since Griffith had sold Fisher the lot on which the house was to be built.
Fisher requested that the garage on the house be constructed initially because he could not pay all the draws immediately, and because he wished to store some personal be longings in the garage while the house was being built. Construction was begun around May, 1981 and continued until the house was approximately three-quarters completed in July, 1981. At that point the employees could not cash their paychecks drawn on the account of Griffith and Vose, Inc. Griffith called the local bank and was advised the firm's checking account had been closed. Griffith also began receiving telephone calls from local subcontractors and materialmen who complained of not being paid. Griffith attempted to contact Vose but was unsuccessful at first. When he did reach Vose, an apparent disagreement arose between the two, and Griffith was fired from his position with the firm.
By this time Fisher had paid approximately $18,500 in draws to Griffith and Vose, Inc. He remitted an additional payment of $10,000 to Griffith on August 5, 1981 made payable to the firm. Griffith refused to turn it over to Vose and instead placed it in an escrow account with his attorney. Griffith then used the $10,000 to complete the house even though he was no longer employed by the firm. During this same period Vose had hired an attorney in an effort to get the $10,000 draw and certain other corporate assets that Griffith had taken from the firm. Be was unsuccessful in his efforts.
The house was ultimately completed to Fisher's satisfaction. Fisher paid only what the contract called for, and was not required to expend any additional funds.
Three materialmen provided materials and services on the project and were never paid. These included Lonestar Florida, Inc. ($870.48), Bobo Industries, Inc. ($1,622.40) and Ponce South Brevard Sewer and Septic Tank, Inc. ($916.48). To date they have not received their money. A fourth party (White Drywall) accepted a $1,000 settlement on a $1,649 bill for services rendered.
Vose visited the job site a number of times while the house was under construction. He was actively involved in the supervision of the project. This was true even though he also worked as a sales representative at the same time.
Respondent acknowledged that the Fisher house was never completed. He attributed his inability to finish the house to demands placed upon him by several other projects underway at the same time, a poor economic climate, and his unsuccesful effort to receive the last draw from Griffith. Because he knew Griffith was finishing up the job, he hoped "it would work itself out" without any further effort on his part.
Respondent did hire two attorneys in an effort to sort out the mess, and to get the Fisher draw and other corporate assets which Griffith retained. He expressed a willingness to reimburse any parties who were unpaid, and regretted the unfortunate results of his dilemma.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.
Respondent is charged with (a) abandoning the Fisher project [s. 489.129(1)(k)], (b) diverting funds from the project which precluded him from fulfilling his contractual obligation [s. 489.129(1)(h)], and (c) failing to supervise the project [s. 489.129(1)(j)].
The evidence discloses that Vose did indeed abandon the Fisher project. He readily acknowledged that because of the demands of other jobs, he was forced to abandon it hoping that "it would take care of itself." Therefore, it is concluded that the allegations in Count I have been proven, and a violation of Subsection 489.129(1)(k) has occurred.
Vose also admitted that the funds from the Fisher project were co- mingled with other construction funds, and were diverted in part to other projects. The evidence disclosed that three materialmen have still not been paid, and the contractual obligation has never been fulfilled. Accordingly, it is concluded that a violation of Subsection 489.129(1)(h) has occurred.
Finally, the last count must fail, for it was not shown that Vose failed to supervise the Fisher project. Indeed, the uncontroverted evidence demonstrates that Vose periodically visited the job site and oversaw the project. Therefore, Count III should be dismissed.
In determining an appropriate penalty, it is noted that Vose was straightforward and candid, and readily acknowledged the various problems he encountered in 1981. It is also noted that the homeowner's house was satisfactorily completed by Griffith at no additional cost. By the same token, three materialmen still remain unpaid, and two statutory violations have occurred. Under these circumstances, a six month suspension of Respondent's
license is appropriate with reinstatement conditioned only upon repayment of' all moneys due and owing the materialmen
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty as charged in Counts I and II
of the administrative complaint; Count III should be DISMISSED. It is further
RECOMMENDED that Respondent's certified general contractor license be suspended for six months and that reinstatement of said license be conditioned upon repayment of all moneys due and owing the three materialmen still unpaid.
DONE and RECOMMENDED this 2nd day of May, 1983 in Tallahassee, Florida.
DONALD R. ALEXANDER
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 2nd day of May, 1983.
COPIES FURNISHED:
John O. Williams, Esquire
547 North Monroe Street Suite 204
Tallahassee, Florida 32301
James E. Vose, III
16308 Gulf Boulevard, No. 408 Redington Beach, Florida 33708
James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2
Jacksonville, Florida 32202
Frederick M. Roche, Secretary Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Docket for Case No: 83-000268
Orders for Case No: 83-000268
