STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 84-3099

)

HERSCHELL WILEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated hearing officer, K.N. Ayers, held a public hearing in the above- styled case on January 25, 1985, at Inverness, Florida.

APPEARANCES

For Petitioner: James H. Gillis, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Herschell S. Wiley, pro se

7330 East Azalea Drive Floral City, Florida 32626

By Amended Administrative Complaint filed January 23, 1984, the Department of Professional Regulation, Construction Industry Licensing Board, Petitioner, seeks to revoke, suspend, or otherwise discipline the license of Herschell Wiley, as a residential contractor. As grounds therefor, it is alleged that in connection with a contract between Respondent and J. F. Demers to construct a residence for Demers, Respondent falsely presented Demers with an affidavit that all materials purchased for the job had been paid for, that he diverted funds received from Demers for completing this project, and that Respondent was found guilty of a crime directly relating to the practice of contracting. Respondent, after receiving full explanation of his rights to object, consented to the Amended Administrative Complaint.

At the hearing, Petitioner called three witnesses, including Respondent. Respondent testified in his own behalf, and called one additional witness, and eleven exhibits were admitted into evidence. Proposed findings submitted by Petitioner, to the extent incorporated herein, are adopted; otherwise, they are rejected as cumulative, unsupported by the evidence or immaterial to the conclusions reached.

FINDINGS OF FACT

1. At all times material hereto, Respondent was licensed as a residential contractor.

   
   

2. Respondent entered into a contract (Exhibit 1) to do the masonry and plumbing work on a residence constructed for J.F. Demers at Citrus Springs, Florida, for a price of $7310. This final price was changed slightly due to additions to and deletions from the work to be done by Respondent. There is no dispute regarding these contract changes, and no issue is thereby raised.

   
   

3. Demers paid Respondent as the work progressed, and made a final payment of $3740 on May 31, 1983. At the time this payment was made, Respondent provided Demers with a Waiver of Lien (Exhibit 3) releasing the property from all liens for labor and materials. At this time Respondent owed Carroll Contracting and Ready Mix, Inc. approximately $5000, some of which represented materials delivered to the Demers project. On August 26, 1983, Carroll Contracting filed a Claim of Lien (Exhibit 4) against Demers' property. At the time this lien was filed, Demers was out of state. When he returned, he talked to William Hausman, Secretary-Treasury of Carroll Contracting and presented to Hausman the Waiver of Lien he had received from Respondent. Upon advice of attorney, Carroll Contracting released the lien filed against Demers' property on September 21, 1983 (Exhibit 6).

   
   

4. By check dated July 20, 1983 (Exhibit 7) Respondent paid Carroll Contracting $2054.58. Writing on the face of this check indicated balance due of $3600. The exact amount was not disclosed, but a substantial amount of the balance due was for materials purchased for jobs done by Respondent other than the Demers job.

   
   

5. Respondent had purchased materials from Carroll Contracting for many years, and had paid his bills promptly before 1983. Prior to delivering the first concrete to the Demers project, Carroll Contracting required Respondent to pay $1000 on his account.

   
   

6. When Respondent learned Carroll Contracting had filed a lien against Demers' property, he called Hausman to offer to pay part of his indebtedness if Carroll Contracting would release the lien. Hausman refused and he and Respondent exchanged angry words over the telephone.

   
   

7. A consumer complaint was filed against Respondent and an Information was filed against Respondent charging him with diverting funds received from Demers to another purpose (Exhibit 9). Respondent pleaded nolo contendere to petit theft of this charge, was adjudicated guilty, and was sentenced to pay a fine of $1000 with probation for one year or until the fine is paid (Exhibit 11). Exhibit 10 indicates Respondent pleaded guilty to petit theft and was sentenced as shown in Exhibit 11. Respondent denies pleading guilty and the inconsistency between Exhibits 10 and 11 support his testimony.

   
   

8. Respondent has paid all of the monies owed to Carroll Contracting, and is paying off his fine at the rate of $100 per month.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

10. Section 489.129(1), Florida Statutes, provides in pertinent part:

    
    

    The Board may revoke, suspend . . . impose

    an administrative fine . . . place a contractor on probation, or reprimand or censure a contractor if the contractor . . . is found guilty of any of the following acts:

    1. Being convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice of contract- ing or the ability to practice contracting.

    2. Violations of Chapter 455.

       (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 the contract.

       (l) Signing a statement with respect to a project or contract falsely indicating that payment has been made for all subcontractors work, labor and materials which result in a financial loss to the owner, purchaser, or contractor; or falsely indicating that workers' compensation and public liability insurance

       are provided.

       
       

11. Section 455.227(1), Florida Statutes, authorizes the board to take disciplinary action against a licensee if it finds that:

    
    

    (a) The licensee has made misleading, decep- tive, untrue, or fraudulent representations in the practice of his profession.

    
    

12. It is significant that two of the charges preferred against Respondent arose out of the identical transaction and are based upon the same factual situation, viz., the giving of the waiver of lien to Demers falsely representing that payment had been made for all materials used. This violates Section 455.227(1)(a), but, because no financial loss resulted to Demers, and full payment has been made to Carrol Contracting, no violation of s. 489.129(1)(l) has been shown.

    
    

13. Similarly, the charges that funds were diverted in violation of Section 489.129(1)(h) requires a showing that, as a result of the diversion, the contractor is or will be unable to fulfill the terms of his obligation or contract. The contract with Demers was completed by Respondent; accordingly, this charge has not ,been proved.

    
    

14. In Case 84-106-CF, the Circuit Court adjudicated Respondent guilty of diversion of funds (as alleged in the Information), and sentenced him to one year probation and a $1,000 fine. This is a conviction of a crime related to the business of contracting and constitutes prima facie evidence of a violation of Section 489.129(1)(b) as alleged. This prima facie evidence was not rebutted.

15. From the foregoing, it is concluded that Respondent made false representations in violation of Section 455.227(1)(a), that he has been convicted of a crime related to the practice of contracting in violation of Section 489.129(1)(b), F.S.; and that he is not guilty of all other charges. It is

RECOMMENDED that a final order be entered finding Respondent guilty of violating Sections 455.227(1)(a) and 489.129(1)(b), F.S., and suspending his license as a residential contractor for a period of six months.

ENTERED this 19th day of February, 1985, in Tallahassee, Florida.

K.N. AYERS 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 19th day of February, 1985.

COPIES FURNISHED:

James H. Gillis, Esquire James Linnan, Executive Director Department of Professional Construction Industry Licensing

Regulation Board

130 N. Monroe Street Post Office Box 2 Tallahassee, Florida 32301 Jacksonville, Florida 32202

Herschell S. Wiley Salvatore A. Carpino, Esquire 7330 East Azalea Drive General Counsel

Floral City, Florida 32626 Department of Professional

Regulation

Fred Roche, Secretary 130 North Monroe Street Department of Professional Tallahassee, Florida 32301

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 84-003099

Orders for Case No: 84-003099