STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, FLORIDA CONSTRUCTION ) INDUSTRY LICENSING BOARD, )

)

Petitioner )

)

vs. ) CASE NO. 84-2857

)

PATTON N. ROBERTS, )

)

Respondent )

)

RECOMMENDED ORDER

Upon due notice this cause came on for formal hearing before Ella Jane Davis, the duly assigned Hearing 0fficer of the Division of Administrative Hearings on October 8, 1985 in Palatka, Florida.

APPEARANCES

For Petitioner: Charles Tunnicliff, Esquire

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: None

PROCEDURAL BACKGROUND

This case was continued a number of times with the acquiescence of Chester

1. Trow, Esquire, who has written a letter in the file on behalf of Respondent. In the informal nature of proceedings under Section 120.5(1), Florida Statutes, his letter has been deemed by the undersigned to be a pleading and, thus, appearance of counsel. Upon receiving the July 31, 1985 Notice of Hearing for October 8, 1985, Mr. Trow disclaimed any representation of Respondent and despite an order and even a letter by the undersigned setting out the rule to be complied with for withdrawal of counsel, Mr. Trow did not comply with Rule 22I- 6.07(3) Florida Administrative Code by serving a motion to withdraw upon Respondent at his last known address. In an overabundance of caution, the undersigned inquired of the telephone company for a telephone number of Respondent at his last known address and was told there was no listing there for Respondent, nor elsewhere in the Hollywood, Florida area. Nonetheless, the undersigned additionally timely reserved the original Notice of Hearing upon Respondent at his last known address. At hearing, Petitioner's counsel stated that its investigator's inquiries indicated the telephone listing for that address is for another party and that party does not know who Respondent is. However, the Notice of Hearing which was previously reserved at that address was not returned by the U.S. Mail to the Division of Administrative Hearings and the presumptions exist that (1) Notice to Respondent's counsel is notice to Respondent and (2) Notice not returned from Respondent's last known address has been received by Respondent.

   Since Respondent, as a licensee under a statewide license, has a continuing duty to keep the Petitioner advised of his address and the party requesting formal administrative proceedings has a duty to keep the Division of Administrative Hearings advised of his address and has not done either, all notice requirements of Chapter 120, Florida Statutes and Chapters 22I-6 and 28- 5, Florida Administrative Code have been met by the foregoing procedure.

   
   

   ISSUE

   
   

   Whether Respondent's license as a certified general contractor should be suspended or revoked or the licensee otherwise disciplined for alleged violations of Chapter 489, Florida Statutes as set out in the January 18, 1984 Administrative Complaint.

   
   

   Petitioner presented the oral testimony of Louis P. Gilner, Peter Max Christianson, Jr., Catherine M. Edwards, John Owen Thompson, Jack W. Rainford, and Annie Gilner and had admitted in evidence Petitioner's exhibits 1, 3, 4, 5, 6, 7, 7A, 7B, 8, 9, 10, 11, 12 and 13. Exhibit 2 is clearly hearsay and inadmissible but has be considered as a stipulation of counsel and is discussed under the Conclusions of Law as a jurisdictional argument of counsel.

   
   

   Neither Respondent nor Chester A. Trow, Esquire appeared for formal hearing.

   
   

   Petitioner filed transcript of the proceedings November 14, 1985 and proposed findings of Fact and Conclusions of Law on November 18, 1985, and waived time for entry of this recommended Order. These proposals have been considered in this recommended Order and are ruled upon in the Appendix hereto.

   
   

   FINDINGS OF FACT

   
   

   1. Respondent, Patton N. Roberts, is a certified general contractor, license number CG C015023 and qualifying agent for Roberts Construction and Development, Inc. Although Respondent failed to renew his license in June, 1985, and his license is now on inactive status, it can be renewed at any time before June 1988 by payment of late renewal fee.

      
      

   2. In June 1982, Respondent entered into a contract for $68,242.00 with Louis Gilner to construct home in Putnam County, Florida. The charges against Respondent arise out of the use of the funds associated with construction of this home pursuant to contract.

      
      

   3. On June 30, 1982, Respondent obtained Putnam County building permit #6107 for the construction.

      
      

   4. Respondent commenced construction and completed the home to the dry-in stage by approximately early August 1982.

      
      

   5. Mr. Gilner paid Respondent a $50.00 deposit and two "draw" payments of

      $20,472.00 each, making total payments to Respondent of $40,995.00. These "draws" against the total amount of $62,242.00 which was contracted-for were paid on July 20, 1982 and August 5, 1982, respectively.

   6. Approximately July 15, 1982, Respondent ordered trusses for the Gilner residence from Landmark Truss, Inc. The trusses were delivered on July 23, 1982. Respondent failed to pay for the trusses, although he had received the draw payment for the trusses. Landmark Trusses, Inc. filed a lien on the Gilner residence for $2,490.00.

      
      

   7. On July 9, 1982, Respondent ordered 16 loads of fill dirt for the Gilner residence from Chesser & Strickland Sand Co., Inc. The Respondent's failure to pay $950.00 for the dirt and the labor in spreading it resulted in a lien being filed against the Gilner property for that amount.

      
      

   8. Mr. Jack Rainford testified that Respondent subcontracted the heating and air conditioning work to A-1 Air and A-1 plumbing for $5,806.00 ($3,550 plumbing and $2,556 air conditioning); that Respondent paid A-1 Air and A-1 Plumbing the first draw on the plumbing in the amount of $1,128.00 on August 17, 1982; that the Gilners had, on January 3, 1983, paid A-1 Air and A-1 Plumbing

      $1,128.00 on the air and $1,183.34 on the plumbing, and that Respondent has failed to pay $1,183.34 on the plumbing and $1,128.00 on the air conditioning.

      
      

   9. No matter how these figures are worked, they do not fairly support Mr. Rainford's conclusion that Respondent only owes A-1 $1,183.34 plus $1,12800. It is more mathematically logical that the original total owed was $6,106.00; the Respondent paid $1,128.00 on August 17, 1982 reducing the remaining amount to

      $5,806.00; thereafter Mr. and Mrs. Gilner, on January 3, 1983, paid A-1

      $1,128.00 for the air conditioning work and $1,183.34 for the plumbing package and that Respondent actually owes the Gilners $2,311.34 for their having to pay twice, and owes A-1 $3,464.66; which is the balance of A-1's bill after all payments the Respondent and the Gilners have been deducted. However, the undersigned will accept Mr. Rainford's unrefuted testimony that Respondent owes A-1 only $1,128.00 plus $1,183.34 for a total of only $2,311.34.

      
      

   10. On or about September 6, 1982, Gilner terminated Respondent for lack of progress toward completion. At that date of termination the Respondent and his crew had been absent from the premises for five to six weeks. At the time of the Respondent's termination, the project was, by Mr. Gilner's estimation, only 40 percent completed. Although the predicate for Mr. Gilner's knowledge in this regard is less than might normally be characterized as "expert" testimony, it is still credible and based on Mr. Gilner's testimony concerning his usual employment as an installer of traffic controls involving other construction projects, and in conjunction with the testimony of Mrs. Gilner, his estimation that the extent of the household construction total led only 40 percent is accepted for purposes of this finding of fact. At this stage, based on the draws paid. 60 percent of the construction should have been completed by Respondent.

       
       

   11. The Gilners both testified that they completed the home after Respondent's termination at a total cost of $82,000, or $14,000 over the contract price. There is no evidence to support the actual amount paid or what it was paid for, nor is there any evidence to establish what relationship there may have been between Respondent's behavior and the increased cost. Although Mrs. Gilner testified that there was some misinstallation of the trusswork and that rain had damaged the roof prior to Respondent's final termination, this information, without more, will not support the $14,000 figure.

       
       

   12. Approximately August 25, 1982, in a conversation with Catherine Edwards, an employee of Landmark Truss, Respondent had explained that the reason he had not paid the Landmark Truss bill was because he had elected to use the

       draws he had received from the Gilners to buy some lots upon which to build ""spec" (speculation) Respondent stated to Ms. Edwards that he originally intended to get the lots "subordinated" but due to the early death of an elderly man up north, he had had to use the (5) Gilner draws to buy his lots and was awaiting profit from the speculation homes to pay landmark Trusses bill.

       Because this conversation occurred after Landmark Trusses had served its Notice of Claim on Mrs. Gilner, the undersigned construes this conversation to be an admission against interest by Respondent and draws the inference there from that failure of Respondent to pay the other necessary owed costs from the draws received from the Gilners resulted from the same misapplication of draw funds as Respondent described to Ms. Edwards.

       
       

       CONCLUSIONS OF LAW

       
       

   13. Although the undersigned declined to accept as evidence (P-2 proffered) an uncertified computer printout of license non renewal from the Department of professional Regulation. P-1 (licensing packet) is in evidence. The representations of Petitioner's counsel concerning jurisdiction have been regarded as a stipulation of fact and as legal argument. Petitioner's proposals stipulate as fact that although Respondent failed to renew his license in June 1985, and his license is now on inactive status, it can be renewed at any time before June 1988 by paying a late renewal fee and the proposals argue that jurisdiction therefore remains with the Division. The undersigned accepts this argument and concludes that the Division of Administrative Hearings has jurisdiction over the parties and subject matter of these proceedings.

       
       

   14. Petitioner seeks to take disciplinary action against Respondent under Subsection 489.129(1)(h), Florida Statutes, which authorizes such action for:

       
       

       (h) Diversion of 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.

       
       

   15. License disciplinary proceedings require clear and convincing proof of the facts alleged.

       
       

   16. Thus, in order to prove the Respondent violated Section 489.129(1)(h), Florida Statutes, the petitioner must show (1) that the Respondent diverted funds he received from a specified project and (2) that as a result of this diversion Respondent is or will be unable to fulfil the terms of his contract.

       
       

   17. Herein, Respondent received two "draws" totalling 60 percent of the contract price. This amount was payment for all materials and labor up to the dry-in stage of construction. The Respondent, although having received payment for the dry-in stage, failed to pay Landmark Trusses, Inc. $2,490.00, Chesser & Strickland Sand Co. $950.00, and A-1 Air and A-1 Plumbing $2,311.34. The Gilners, having already paid the draws to Respondent to cover these amounts additionally paid $2,311.34 to A-1 Air and A-1 Plumbing. This did not fully satisfy A-1's entire $5,806.00 bill.

       
       

   18. As a result of the diversion of funds and his five week abandonment of the project, the Respondent was unable to fulfill his contractual obligations. This, and not termination by the Gilners, caused the breach. Petitioner has established by clear and convincing evidence the diversion of funds. The

Petitioner has presented clear and convincing evidence to establish outstanding liens of Landmark Trusses for $2,490.00 and of Chesser & Strickland Sand Co. for

$950.00; that $2,311.34 is still owed to A-1 Air Conditioning and A-1 Plumbing and that a duplicate payment of $2,311.34 was paid by the Gilners. There is no clear and convincing evidence of record that the Gilners were necessitated in spending $14,000 more than the contract price to complete their residence due to Respondent's diversion of funds.

Upon the foregoing findings of fact and conclusions of law, it is recommended:

RECOMMENDATION

That the Construction Industry Licensing Board enter a final order providing that Respondent's certified general contractor's license shall be suspended for a five year period with the provision that the suspension shall be lifted after one year upon the Respondent providing proof to the Construction Industry Licensing Board that he has made restitution of $2,311.34 to the Gilners, $2,490.00 to Landmark Trusses, Inc., $950.00 to Chesser & Strickland Sand Co., and $2,311.34 to A-1 Air and A-1 Plumbing.

DONE and ORDERED this 20th day of December 1985 in Tallahassee Florida.

ELLA JANE P. DAVIS

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 20th day of December, 1985.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-2857

Petitioner's Proposed Findings of Fact:

1. Accepted.

2. Accepted

3. Accepted.

4. Accepted.

5. Accepted.

6. Accepted.

7. Accepted

8. Accepted.

9. Accepted.

10. Accepted.

11. Accepted but expanded to conform to the evidence as a whole.

12. Accepted but expanded to conform to the evidence as a whole.

13. Rejected as not supported by the competent substantial evidence in the record as a whole.

14. Accepted but rephrased to reflect the competent substantal evidence in the record as a whole.

COPIES FURNISHED:

Mr. James Linnan Executive Director

Construction Industry Licensing Board

P. O. Box 2

Jacksonville, Florida 32202

Mr. Fred Roche, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Salvatore A. Carpino General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Charles F. Tunnicliff, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Chester A. Trow, Esquire

P. O. Box 1450 Ocala, Florida 32678

Patton N. Roberts 2442 Jackson Street

Hollywood, Florida 33202

Docket for Case No: 84-002857

Orders for Case No: 84-002857