STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, ELECTRICAL ) CONTRACTORS' LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2788

)

ALFRED TRUJILLO, )

)

Respondent. )

)

RECOMMENDED ORDER

This Department of Professional Regulation disciplinary case was brought by the Electrical Contractors' Licensing Board against Alfred Trujillo, the Respondent, to revoke his license as a registered electrical contractor. The Board charges that the Respondent gave a contractor, for whom Respondent was a subcontractor, a fraudulent or false affidavit to obtain payment of a draw on a contract, and that the Respondent diverted money paid to him for the completion of the project and thereby was unable to complete the project.

A formal hearing on this matter was held on January 27, 1984, in Tampa, Florida, before Stephen F. Dean, the assigned Hearing Officer of the Division of Administrative Hearings. The issues were whether the Respondent violated the provisions of Chapter 489, Florida Statutes, as alleged. The facts presented proved the first allegation that the Respondent gave his contractor a false affidavit, but the facts did not prove the allegations that the Respondent diverted money and therefore could not complete the project.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Allen F. Gonzales, Esquire

4105 North Himes Avenue Tampa, Florida 33607

Although the parties were afforded the opportunity to file proposed findings, neither party has filed proposed findings or briefs in this case.

FINDINGS OF FACT

1. The Respondent, Alfred Trujillo, is a registered electrical contractor holding license number ER 0005738.

2. The Respondent contracted with Duncan & Sons, Inc., general contractors, to do the electrical work on the City of Tampa Museum. The total amount of this contract, to include labor and materials, was $9,900.

   
   

3. The Respondent performed 85 to 90 percent of the work on the job and was paid for his work less a retainage of 10 percent.

   
   

4. In order to receive partial payments on the contract, the Respondent executed notarized affidavits that he had paid for all materials utilized on the job except those materials which had come from the Respondent's inventory.

   
   

5. Subsequently, Duncan & Sons was advised by Consolidated-Pasco Electric, Supply, Inc., that a bill in the amount of $4,118.92 for materials used by the Respondent on the job was outstanding. The Respondent was confronted by R. J. Duncan concerning the bill for the outstanding materials, and the Respondent was advised that Duncan would pay the Respondent no further money on the contract until the Consolidated bill was paid. At this point, the Respondent left the job.

   
   

6. At the time the Respondent left the job, there remained $3,600 to be paid on the contract between Duncan & Sons and the Respondent.

   
   

7. Duncan engaged another contractor, Randy's Electric, Inc., to finish the job. Bob Seville of Randy's Electric found that the job was between 80 and

   90 percent complete and that the majority of the materials required to finish the job were at the job site. Randy's Electric only had to provide minor amounts of material to finish the job. On a labor and materials basis, Randy's Electric was paid $1,900 to finish the job.

   
   

8. Duncan & Sons eventually paid Consolidated $4,118.92. Duncan & Sons paid this money to Consolidated in order to have Consolidated drop a pending legal action initiated by Consolidated and in order to obtain a final waiver of lien from Consolidated. (See Petitioner's Exhibit 9, letter from Duncan to Donald White.)

   
   

   CONCLUSIONS OF LAW

   
   

9. The Electrical Contractors' Licensing Board has the authority to discipline its registered electrical contractors pursuant to the provisions of Chapter 489, Florida Statutes. This Recommended Order is entered pursuant to the provisions of Section 120.57(1), Florida Statutes.

   
   

10. The Respondent is charged in Count One of the Administrative Complaint with violation of Section 409.533(1)(a) and (g), Florida Statutes, which provides as follows:

    
    

    1. The following acts constitute grounds for which the disciplinary actions in subsection (2) may be taken:

       1. Violation of any provision of s. 489.531 or chapter 455;

          (g) Violation of chapter 455;

          
          

          Section 455.227(1)(a), Florida Statutes, incorporated by the reference above, provides that:

          1. The board shall have the power to revoke, suspend, or deny the

             renewal of the license, or to reprimand, censure, or otherwise discipline a licensee, if the board finds that:

             1. The licensee has made misleading, deceptive, untrue, or fraudulent representations in the practice of his profession;

          
          

11. In Count Two of the Administrative Complaint, the Respondent is charged with violation of Section 489.533(1)(f) and (m), Florida Statutes, which provides as follows:

    
    

    1. . . . grounds for which . . . disciplinary actions . . . may be taken:

       * * *

       (f) Upon proof that the

       licensee is guilty of fraud or deceit, or of negligence, incompetency, or misconduct in the practice of electrical contracting;

       * * *

       (m) Diverting funds or property

       received for prosecution or completion 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;

       
       

12. Regarding the allegations that the Respondent's notarized affidavits were false, the record reflects no evidence to support the accuracy of these affidavits. Substantial evidence was received that Consolidated was owed

    $4,118.92 by the Respondent for materials utilized by him on the City of Tampa Museum job. The allegations that the Respondent violated Section 489.533 (1)(a) and (g), Florida Statutes, by violating Section 455.227(1)(a), and also violated Section 489.533(1)(f), Florida Statutes, are proven; however, where the same act constitutes a violation of two statutory provisions, only one penalty should be imposed.

    
    

13. Regarding the allegations that the Respondent diverted funds and therefore was unable to fulfill the terms of his contract, the evidence introduced at hearing does not support a finding that the Respondent violated Section 489.533(1)(m), Florida Statutes. The evidence reflects that the Respondent left the project when Duncan advised him that he must pay the Consolidated bill of $4,118.92 in order to obtain the $3,600 remaining to be paid on the contract. At that time, according to the subcontractor who finished the job, the job was 80 to 90 percent complete, the materials to complete the job (except for a few minor small materials) were present on the job site, and the contractor was able to complete the job for less than the amount due on the contract to the Respondent. Clearly, the Respondent could have finished the job by himself, obtained the entire $3,600 with which to pay Consolidated, and completed the project. The fact that there was a shortfall of $500 on the contract does not support a finding that there was a diversion of funds. An error in estimating the cost of the contract or increases in material or labor costs could easily result in a shortfall of this amount. The Board has failed to show that there was a diversion of funds or, equally pertinent, that the

alleged diversion kept the Respondent from completing the job as he had contracted to do. Therefore, the allegations that the Respondent violated Section 489.533(1)(m), Florida Statutes, are not proven.

RECOMMENDATION

Having found the Respondent guilty of violating Section 489.533(1)(a) and (g), and thereby having violated Section 455.227 (1)(a) and Section 489.533(1)(f), Florida Statutes, it is recommended that the Respondent's license be suspended for a period of one year. Having found that the allegations were not proven that the Respondent violated Section 489.533(1)(m), Florida Statutes, it is recommended that this charge be dismissed.

DONE and RECOMMENDED this 10th day of April, 1984, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, 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 10th day of April, 1984.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Allen F. Gonzales, Esquire 4105 North Himes Avenue Tampa, Florida 33607

Frederick Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Allen R. Smith, Jr., Executive Director

Electrical Contractors' Licensing Board

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 83-002788

Orders for Case No: 83-002788