STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 84-4450

)

VINCENT A. DeMARIA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on September 18, 1985, in Fort Lauderdale, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

For Petitioner: Charles F. Tunnicliff, Esquire

Senior Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Mr. Vincent A. DeMaria, pro se

4451 Northeast 16th Avenue

Fort Lauderdale, Florida 33334 INTRODUCTION

At the conclusion of the hearing the Hearing Officer allowed the parties twenty days from the date of the filing of the transcript of the proceeding within which to file their proposed findings of fact and conclusions of law.

The transcript was filed with the Division of Administrative Hearings on October 3, 1985, and by letter dated October 4, 1985, the parties were advised that their proposed findings of fact and conclusions of law were required to be filed by no later than October 23, 1985. On October 16, 1985, the petitioner filed a timely Proposed Recommended Order containing proposed findings of fact and conclusions of law. On October 25, 1985, the Respondent filed a two-page letter dated October 22, 1985, in which the Respondent includes certain arguments and contentions about several factual and legal issues.

Careful consideration has been given to the Petitioner's Proposed Recommended Order and to the Respondent's letter of October 22, 1985, in the preparation of this Recommended Order. The findings of fact which follow in this Recommended Order include the substance of all of the proposed findings of fact submitted by the Petitioner with certain minor modifications and additions in the interest of clarity and accuracy. The factual issues raised by the Respondent's letter of October 22, 1985, are specifically addressed in the appendix attached to and incorporated in this Recommended Order.

ISSUES

The basic issue in this case is whether the Respondent's license as a certified general contractor should be revoked or suspended, or some other discipline imposed, for the reasons alleged in a multi-count Administrative Complaint. The essential allegations of the Administrative Complaint may be summarized as follows: Count One--failure to properly qualify a company under which Respondent was doing business and acting in a name other than that on his license; Count Two--abandoning a construction project without just cause and willful or deliberate disregard and violation of applicable local building codes; Count Three-- diverting funds received for the completion of a specified construction project when as a result of the diversion the contractor is unable to fulfill the terms of his contract.

FINDINGS OF FACT

Based on the admissions and stipulations of the parties, on the exhibits received in evidence, on the testimony of the witnesses at the hearing, and on matters officially recognized, I make the following findings of fact:

Admitted and stipulated facts

1. The Respondent is a certified general contractor, having been issued license number CG C007067. The Respondent's last known address is DeMaria & Sons Construction Company, Inc., 4451 N.E. 16th Avenue Fort Lauderdale, Florida 33334.

   
   

2. On July 14, 1982, Respondent, doing business as Big D Construction, contracted with Jolly Libo-on of 312 S.E. 22nd Street, Fort Lauderdale, Florida, to build an addition to Libo- on's house for a contract price of $17,500.00.

   
   

3. At all times material herein, Respondent qualified DeMaria & Sons Construction Company, Inc. At no time did Respondent properly qualify, nor did any licensed contractor properly qualify, Big D Construction.

   
   

4. The Respondent began work on Libo-on's house on August 23, 1982, and continued construction until at least the last week of September of 1982.

   
   

5. Libo-on has paid the Respondent $13,500.00 as called for by their contract.

   
   

6. The following subcontractors or suppliers filed claims of lien against Libo-on's property because of Respondent's failure to pay them for services or supplies:

property, but the liens were later satisfied by Libo- on.

Other relevant facts established by the evidence of record

1. After September 27, 1982, the only work performed by or on behalf of the Respondent at the Libo-on residence was by employee Shawn Brannigan on November 16, 1982, and by employee Bob Walters on November 21, 1982. The work performed by Brannigan and Walters in November was de minimis in nature and did not significantly advance the completion of the contract.

   
   

2. From September 27 through November 25, 1982, Libo-on called the Respondent by telephone on a daily basis to inquire about why no work was being done on the project. The Respondent would promise that someone would come the next day, but with the exception of the de minimis efforts on November 16 and 21, no work was done on the project after September 27, 1982, by or on behalf of the Respondent. Libo-on quit trying to make telephone calls to the Respondent after the Respondent told Libo-on on the telephone that he had reached a wrong number.

   
   

3. The Respondent's services were terminated on December 7, 1982, via letter from Libo-on's attorney, Linn Brett. At no time prior to the termination of his services did the Respondent inform the Libo-ons that he could not do any more work nor did the Libo-ons dismiss him from the work at any earlier date.

   
   

4. At the time Respondent's services were terminated, the addition was approximately 75 per cent completed.

   
   

5. In addition to the subcontractors and suppliers listed in paragraph 6 above, the Respondent also failed to pay the sum of $2,393.00 which was due to International Drywall Systems, a subcontractor who provided services and supplies on the Libo-on project.

   
   

6. Abandonment of a construction project constitutes a violation of Broward County Ordinance 78-9, Section 9-14(b)(8).

   
   

7. Libo-on paid the lienors $3,441.00 in satisfaction of the liens.

   
   

8. Libo-on contracted with Robert Hobart to finish the construction, at an additional cost of $4,000.00.

   
   

9. Libo-on paid $2,200.00 for lawyers fees, $3,441.00 for liens, and

   $4,000.00 to Mr. Hobart. These costs minus the $4,000.00 remaining under the Respondent's contract resulted in Libo-on expending $5,641.00 above the original contract price.

   
   

10. Of the $13,500.00 which was paid to him by Libo-on, the Respondent can establish that he spent only approximately $9,000.00 on the project. The Respondent was unable to complete the project because he did not have on hand the money to pay the subcontractors and suppliers.

    
    

    CONCLUSIONS OF LAW

    
    

    Based on the foregoing findings of fact and on the applicable legal principles, I make the following conclusions of law:

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.57(1), Fla. Stat.

12. The Respondent, by his own admission, violated Section 489.129(g), Florida Statutes, when he contracted with Libo-on under the name Big D Construction. He also violated Section 489.129(1)(j), Florida Statutes, by failing to qualify Big D Construction with the Construction Board as required by Section 489.119(2) and (3), Florida Statutes.

    
    

13. While a prima facia case of abandonment is shown by a contractor's failure to perform any work for 90 days without notification or just cause, other facts can evidence an intent to abandon a project. In the instant case, the performance of only token construction from September 27 through December 7, 1982, coupled with the Respondent's deliberate attempt to avoid the Libo-ons' telephone calls evidences an intent to violate Section 489.129(1)(k), Florida Statutes, by abandoning a construction project.

    
    

14. Respondent violated Section 489.129(1)(d), Florida Statutes, by violating the local building codes when he abandoned without legal excuse a construction project or operation in which he was engaged or under contract to complete, as provided by Section 9-14(b)(8) of the Broward County Building Code as adopted in Broward County Ordinance 78-9.

    
    

15. Of the $13,500.00 received from Libo-on toward the completion of the construction, Respondent, by his own admission, can show only $9,000.00 spent on the project. Respondent, therefore, violated Section 489.129(1)(h), Florida Statutes, by diverting funds received for the completion of a specified construction project, when as a result of the diversion, the Respondent was unable to fulfill the terms of his contract.

RECOMMENDATION

On the basis of all of the foregoing, it is recommended that the Construction Industry Licensing Board issue a Final Order suspending the Respondent's license for a period of five years and providing further that the suspension will be reduced to one year upon the Respondent's demonstrating to the Board that he has made restitution to Libo-on in the amount of $5,641.00.

DONE AND ORDERED this 30th day of October, 1985, at Tallahassee, Florida.

MICHAEL M. PARRISH

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 30th day of October, 1985.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-4450

The following are my specific rulings on the proposed findings of fact submitted by both parties to this case.

Rulings on proposed findings of fact submitted by the Petitioner: The findings of fact included in this Recommended Order include the substance of all of the proposed findings of fact submitted by the Petitioner with certain minor modifications and additions in the interest of clarity and accuracy.

Rulings on proposed findings of fact submitted by the Respondent: The unnumbered paragraphs of the Respondent's letter of October 22, 1985, have comments, arguments, legal conclusions, and factual assertions all interspersed. Nothing in the letter constitutes a proposed finding of fact per se. Were it not for the fact that the Respondent is unrepresented by counsel, I would decline to attempt to address the issues raised in the Respondent's letter of October 22, 1985, due to both its tardiness and its failure to separately state proposed findings and proposed conclusions. Nevertheless, giving the Respondent more process than is perhaps his due, I have specifically ruled on each of the contentions which relates to factual matters and have also attempted to address his legal contentions. In the rulings below I have referred to the unnumbered paragraphs in the order in which they appear on each page of the letter.

Page one, first paragraph: No ruling required. Page one, second paragraph: No ruling required.

Page one, third paragraph: Respondent's version of the facts on this issue is rejected for several reasons, including the following: (1) competent substantial evidence supports the finding that from September 27 until December 7, 1982, only "token" or "de minimis" work was performed on the Libo-on project, and (2) the Respondent did not offer into evidence the documentation mentioned in this paragraph.

Page one, fourth paragraph: There is competent substantial evidence for the Petitioner's version of the finding addressed by this paragraph. The Libo- on testimony on this subject is not hearsay.

Page one, fifth paragraph: To the extent that in this paragraph the Respondent attempts to dispute the fact that he abandoned the Libo-on project, such a finding is rejected because the persuasive competent substantial evidence compels an opposite finding.

Page one, sixth paragraph: With regard to the issue of the percentage of completion of the project at the time the Respondent abandoned it, there is conflicting evidence. The more persuasive evidence is that the project was approximately 75 percent completed.

Page one, seventh paragraph (which also continues at top of page two):

This paragraph contains a mixture of legal and factual contentions. With regard to the factual contentions it is sufficient to note that the greater weight of the evidence supports a finding that the amount paid to Hobart to finish the work on the Libo-on project was a reasonable amount because, in fact, it was exactly the same amount that remained to be paid to the Respondent on his unfinished contract. No one is trying to charge the Respondent for additional work that was not in his contract. The amount to which the Libo-ons are entitled in restitution is the sum of their expenses incurred for legal fees and for obtaining satisfaction of liens placed against their property because of the Respondent's failure to pay subcontractors and suppliers.

Page two, first full paragraph: The Respondent's contentions in this paragraph are contrary to the persuasive competent substantial evidence. These contentions are also contrary to Respondent's admission at hearing that he could account for only approximately $9,000.00 of the $13,500.00 he was paid by the Libo-ons.

Page two, second full paragraph: This paragraph requires no comment other than to note that there is a significant difference between imposing a fine and providing for a reduced suspension in the event of restitution.

Page two, third full paragraph: Contrary to the Respondent's assertion, there is persuasive competent substantial evidence to establish the amount of the financial injury suffered by the Libo-ons as a result of the Respondent's misconduct.

Page two, last paragraph: No ruling required.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Senior Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Vincent A. DeMaria 4451 N.E. 16th Avenue

Fort Lauderdale, Florida 33334

James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32202

Salvatore A. Carpino General Counsel

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

Docket for Case No: 84-004450

Orders for Case No: 84-004450