STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 84-3836

)

DAVID R. KNIGHT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a public hearing in the above- styled case on November 15, 1985, in Pensacola, Florida.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Senior Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: No Appearance

By Administrative Complaint filed November 4, 1984, Petitioner seeks to revoke suspend or otherwise discipline the delinquent license of Respondent, David R. Knight as a registered general contractor in the State of Florida. As grounds therefor, it is alleged that: (1) Respondent abandoned a construction project in violation of Section 489.129(1)(k), Florida Statutes (1981); (2) Respondent diverted funds received for completion of a specified construction project in violation of Section 489.129(1)(h), Florida Statutes (1981); (3) Respondent contracted beyond the scope of his license in violation of Section 489.117(2); Florida Statutes (1981); (4) Respondent violated local building codes or ordinances by failing to obtain the required building permits before commencing construction in violation of Section 489.129(1)(d), Florida Statutes (1981); (5) Respondent failed to comply with Section 489.119(2)(3), Florida Statutes (1981) by failing to qualify a company and thereby violating Section 489.129(1)(j) Florida Statutes (1981); and (6) Respondent acted in a name other than set forth in his license in violation of Section 489.129(1)(g), Florida Statutes (1981).

In support of the charges, Petitioner presented the testimony of Pearlie Rutledge, Charles B. Humphreys and Joseph Cobb. Petitioner's Exhibits 1-12 were received into evidence. Certified copies of Petitioner's Exhibits 7-9 were later filed.

Respondent, David R. Knight failed to appear at the hearing although a Notice of Hearing had been mailed to him at 1215 East Hayes Street, Pensacola, Florida 32503, the address on the Election of Rights Form filed by the Respondent in this case and on Respondent's response to my order of December 3, 1984. The Respondent had failed to notify the undersigned if there had been a change of address.

The Petitioner submitted posthearing Proposed Findings of Fact. A ruling on each proposed finding of fact has been made as reflected in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material to these proceedings, the Respondent, David R. Knight, held a registered general contractor's license numbered RG 007907 issued by the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board initially in July, 1968. Respondent's license is presently in an inactive status for failure to renew but renewal can be accomplished by Respondent paying the required renewal fee only.

   
   

2. On May 13, 1983, Respondent contracted with Joseph Cobb to remodel a house in Milton, Florida. The contract price was $23,800.00.

   
   

3. The Respondent began the remodeling and when the project was approximately 50 percent completed, left the site. Joseph Cobb, on numerous occasions, offered to work with the Respondent in any way to finish the project, but the Respondent failed to return.

   
   

4. Joseph Cobb paid Respondent $19,100.00 from May 14, 1983 through June 23, 1983. In addition, although the contract required Respondent to pay for all supplies and materials, Cobb paid $2,300.98 for supplies and material used in the remodeling.

   
   

5. Respondent failed to pay Gary Rich Plumbing for the plumbing work done on the Cobb residence. Joseph Cobb was forced to pay Gary Rich $1,200.00 in order to avoid a lien being filed on his home.

   
   

6. Respondent was not licensed to contract in Milton, Santa Rosa County, Florida, when he contracted with Joseph Cobb to perform remodeling.

   
   

7. In June, 1982, Respondent contracted with Pearlie Rutledge to remodel a house at 608 North D Street, Pensacola, Florida, Escambia County. The contract price was $17,000.00.

   
   

8. The Respondent began the construction without obtaining a building permit which is in violation of Section 106 Standard Building Code as adopted by the City of Pensacola Ordinance 81-83. Respondent deliberately and in a hurry left the site of construction when the building inspector appeared on the job.

   
   

9. The Respondent was not licensed in Escambia County or the City of Pensacola to practice contracting.

   
   

10. Pearlie Rutledge paid Respondent $5,000.00 which the Respondent failed to return when the remodeling was stopped by Charles Humphreys, Housing Inspector for the City of Pensacola.

11. Pearlie Rutledge obtained a Final Judgement against the Respondent for

    $4,557.00 which has not been paid by the Respondent.

    
    

12. Respondent's "81-82' and "82-83", Okaloosa County Occupational License was issued to David Knight doing business as "Your Way Construction." However, there was no evidence presented at the hearing that Respondent ever contracted in the name of "Your Way Construction." In fact there is evidence that during the year 1983 he contracted with Cobb as David Knight, General Contractor and not as David Knight, General Contractor, d/b/a Your Way Construction. (See Petitioner's Exhibit No. 1.)

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. Section 120.57(1) Florida Statutes (1983).

    
    

14. Section 489.129, Florida Statutes (1983), empowers the Florida Construction Industry Licensing Board (Board) to revoke, suspend or otherwise discipline the license of Respondent if he is found guilty of any one of those enumerated acts listed in Section 489.129, Florida Statutes.

    
    

15. Count I of the Administrative Complaint charges Respondent with abandoning a construction project in violation of Section 489.129(1)(k), Florida Statutes, which provides:

    
    

    (k) Abandonment of a construction project in which the contractor is engaged or under contract as a contractor. A project is considered abandoned after 90 days if the contractor terminates said project without notification to the prospective owner and without just cause.

    
    

16. The record is clear that Respondent has not only terminated the project for a period of over 90 days but that it was Respondent's intent when he left the project not to return and complete the project.

    
    

17. Count II of the Administrative Complaint charges Respondent with diverting funds received for completion of a specific construction project in violation of Section 489.129(1)(b), Florida Statutes, which provides:

    
    

    (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 his obligation or contract.

    
    

18. The evidence presented shows that Respondent received funds from both Cobb and Rutledge in amount that exceeded the percentage of completion of either project. However, there was no evidence that the reason for the projects not being completed was a direct result of funds being diverted or that the funds had in fact been diverted.

19. Count III of the Administrative Complaint charges Respondent with violation of Section 489.117(2), Florida Statutes by contracting beyond the scope of his license and thereby violating Section 4890.129(1)(j) Florida Statutes which provides:

    
    

    (j) Failure in any respect to comply with the provision of this act.

    
    

    Section 489.117(2), Florida Statutes provides:

    
    

    (2) Registration allows the registrant to engage in contracting only in the counties, municipalities or developing districts where he has complied with all local

    licensing requirements and only for the type of work covered by the registration.

    
    

    There is substantial competent evidence to show that Respondent contracted in both Escambia and Santa Rosa Counties when he was licensed only in Okaloosa County.

    
    

20. Count IV of the Administrative Complaint charges Respondent with violating local building codes or ordinances by failing to obtain the required building permits prior to commencing construction thereby violating Section 489.129(1)(d), Florida Statutes which provides:

    
    

    (d) Willful or deliberate disregard and violation of the applicable building codes or laws of the state or of any municipalities or counties there of.

    
    

    There is substantial competent evidence that the Respondent failed to obtain a permit before commencing the Rutledge job in Pensacola Florida which City has adopted the Standard Building Code which requires contractors to obtain a building permit before starting construction. Respondent, as a contractor is held to the knowledge that a permit is required before construction begins and additionally, his action when a building inspector appeared on the job site is evidence of willful or deliberate disregard of the City Code.

    
    

21. Count V of the Administrative Complaint charges Respondent with a violation of Section 489.119(2)(3), Florida Statutes by failing to qualify a company and thereby violating Section 489.129(1)(j) Florida Statutes. There was no substantial competent evidence that Respondent engaged in contracting as "Your Way Construction."

    
    

22. Count VI of the Administrative Complaint charges Respondent with acting in a name other than set forth on his license in violation of Section 489.129(1)(9), Florida Statutes which provides:

    
    

    (g) Acting in the capacity of a contractor under any certificate or registration issued here under except in the name of the certified holder or registration as set forth on the issued certificate or registration; . . .

23. Thus a contractor is required to conduct all his contracting activities in the name that appears on his license. If the licensee desires to practice contracting under a business name, Chapter 489, Florida Statutes has a further requirement in Section 489.119(2), Florida Statutes, which states:

    
    

    (2) If the applicant proposes to engage in contracting as a partnerships corporation, business trust; or other legal entity, the applicant shall apply through a qualifying agent; the application shall state the name of the partnership and its partners, the name of the corporation and of its officers and directors, the name of the business trust and its trustees, or the name of such other legal entity and its members; and the applicant shall furnish evidence of statutory compliance if a fictitious name is used....

    
    

24. In the instant case, the Respondent obtained his Okaloosa County Occupational license as "Your Way Construction" issued on February 22, 1982 and reissued on October 7, 1982 to expire on October 1, 1983. The evidence clearly shows that Respondent's registered general contractor's license was issued to David R. Knight and that Respondent had not qualified "Your Way Construction" in accordance with Section 489.119(2), Florida Statutes. However, the evidence was insufficient to prove that Respondent had ever contracted in the name "Your Way Construction".

    
    

25. Petitioner has met its burden to show that Respondent is guilty of the violations charged in Count I, Count III, and Count IV of the Administrative Complaint but has failed to meet its burden to show that Respondent is guilty of the violation charged in Count II, Count V and Count VI of the Administrative Complaint.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Board enter a final order Dismissing Counts II, V and VI of the Administrative Complaint filed against the Respondent. It is further RECOMMENDED that the Board enter a final order finding Respondents guilty of the violation charged in Counts I, III and IV of the Administrative Complaint filed against the Respondent and for such violation it is RECOMMENDED that the Board revoke the Respondent's registered general contractor's license numbered RG 0007907, to practice contracting in the State of Florida

Respectfully submitted and entered this 9th day of January, 1986, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

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 9th day of January, 1986.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 84-3836

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the Petitioner to this case.

Rulings on Proposed Findings of Fact Submitted by the Petitioner

1. Adopted in Finding of Fact 1.

   Exhibit	1).
   3. Adopted	in	Finding	of	Fact	3.
   4. Adopted	in	Finding	of	Fact	4.
   5. Adopted	in	Finding	of	Fact	5.
   6. Adopted	in	Finding	of	Fact	6.
   7. Adopted	in	Finding	of	Fact	7.
   8. Adopted	in	Finding	of	Fact	8.
   9. Adopted	in	Finding	of	Fact	9.
   10. Adopted	in	Finding	of	Fact	10.
   11. Adopted	in	Finding	of	Fact	11.
   12. Adopted	in	Finding	of	Fact	12.

2. Adopted in Finding of Fact 2 except for contract amount which should have been $23,800. (See Petitioner's

Respondent Did Not Submit Any Proposed Findings of Fact COPIES FURNISHED:

James Linnan, Executive Director Department of Professional Regulation Construction Industry Licensing

Post Office Box 2 Jacksonville, Florida 32202

Charles F. Tunnicliff, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee Florida 32301

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino, General Counsel Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. David R. Knight 1215 East Hayes Street

Pensacola, Florida 32503

Docket for Case No: 84-003836

Orders for Case No: 84-003836