STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 85-0671

)

ALBERT J. RUOCCO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing in this case was conducted in Titusville, Florida on September 11, 1985, before Mary Clark, Hearing Officer of the Division of Administrative Hearings. Appearances for the parties were as follows:

For Petitioner: W. Douglas Beason, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Albert J. Ruccco

604 Citrus Court

Melbourne, Florida 32951 ISSUES AND PROCEDURAL MATTERS

By its Administrative Complaint filed on January 15, 1985, the Department of Professional Regulation charged Respondent with violations of Section 489.129(1)(h)(k) and (m) Florida Statutes, relating to diversion of funds, abandonment of a construction project and gross negligence, incompetency or misconduct. The issue in this proceeding is whether any violation occurred and, if so, what disciplinary action should be taken. The Respondent generally denies the charges.

At the hearing, the Petitioner presented two witnesses: Don Riordan, the home-owner; and Stephen Douglas Gates, an employee of Brooks Glass Company who did an estimate of cost of completion for the project. Four Petitioner's exhibits were admitted without objection: a check for payment by Don Riordan to A1 Ruocco, the

Brooks Glass estimate, letter from William Bambach to A1 Ruocco and letter from Bob Bambach to Donald Riordan. A fifth exhibit was withdrawn. The Respondent testified on his own behalf and presented no other witnesses. His eight exhibits included the contract and a series of letters between himself and Robert Bambach.

At the outset of the hearing, Petitioner moved for leave to file the testimony of Robert Bambach at a later date, due to unsuccessful attempts to serve a subpoena. The Respondent objected and the motion was denied. Petitioner waited until two days before the hearing to attempt to serve the prospective witness even though the hearing had been scheduled since June and the location of the hearing had been established for two weeks.

Petitioner filed its Proposed Recommended Order on November 1, 1985; none was filed by Respondent. The proposed findings of fact have been primarily adopted herein but are addressed more specifically in Appendix A, attached to this order.

FINDINGS OF FACT

The facts in this case are virtually uncontroverted, with the exception of the months and sequences of some events.

1. At all times material to the Administrative Complaint, Respondent was a registered building contractor holding license number RB0030112, which license qualified River's Edge Construction Company, Inc., Melbourne, Florida.

   
   

2. On March 11, 1983 a contract was entered between Albert Ruocco, President, River's Edge Construction Co., Inc. ("Ruocco") and Don Riordan, Jr., ("Riordan") to enclose a balcony with bronze awning windows and bronze tinted glass at Riordan's townhouse residence in Melbourne Beach, Florida. Ruocco and Riordan knew each other socially as Ruocco was a neighbor of Riordan's parents. Ruocco was recommended for the job by Riordan's parents. On March 31, 1983, Riorden paid Ruocco $1300.00 or the $1853.00 contract price. Riordan testified that Ruocco was doing him a favor because it was repair work and the principal amount of money was being paid up front to avoid a cash-flow problem on materials. (T-18). The idea was to get the work done as soon as possible. (T-16).

   
   

3. Sometime around May or June 1983, the construction started with removal of existing screening and the installation of an aluminum kick plate and posts to hold the awning window frames. Sometime later the windows were put in for the first time. The actual work on the project was done by a Mr. Bambach, rather than Ruocco.

4. What followed the first installation was a series of misadventures culminating in a lawsuit by Riordan and an $800.00 civil judgment against Ruocco. The work was never completed.

   
   

5. The first windows installed were clear glass rather than tinted bronze. Riordan complained to Ruocco and the windows were removed within twenty-four hours. The windows were installed again, this time with film rather than tinted glass and Riordan called Ruocco the next day. Again the windows were removed immediately. Some time passed (by now it was early August) and bronze-tinted windows were installed. However, after a rain storm it became apparent that the installation was faulty, as the structure leaked. The metal strips had been damaged from the several removals. Riordan complained the third time and the windows were removed a third time. They were never replaced.

   
   

6. Throughout this period Riordan was dealing with Ruocco, with whom he had the contract and Ruocco was dealing with Bambach, to whom he had given $800.00 as partial payment for the work. Relations between the individuals deteriorated as months passed and the windows were still not finally installed. Riordan called Ruocco about getting the work done and was told that Ruacco was having trouble with his worker. By the end of 1983 Riordan's attorney called Ruocco and said that the money had to be refunded.

   
   

7. In the meantime, a stand-off had developed between Ruocco and Bambach, with Ruocco insisting that the work be completed prior to final payment and Bambach insisting that he be paid prior to re- installation of the windows. Bambach had taken the windows to a glass company to be fixed. Bambach alleged in his correspondence that Ruocco did not have the money to pay him, while Ruocco alleged that he tried to meet Bambach to give him the money but Bambach didn't show up. Ruocco testified that he possibly could have installed the windows himself but was trying to get Bambach to complete the job. (T-57). He further testified that he had two other persons look at the job but they wouldn't touch someone else's work. (T-58).

   
   

8. Sometime in early 1984 Ruocco was made to understand that Riordan was not interested in waiting any longer for the project to be finished and wanted his money back.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. "Contractor" is defined as

    ". . . the person who is qualified for and responsible for the entire project contracted for and means, except as exempted in this act, the person who, for compensation, undertakes to, submit a bid to, or does himself or by others construct, repair, alter, remodel, add to, subtract from, or improve any building or structure, including related improvements to real estate, for others or for resale to others. . . ." Subsection 489.105(3) Florida Statutes.

    
    

    The contractor for the Riordan project was Ruocco, the Respondent.

    
    

11. Ruocco was charged with violations of Subsection 489.129(1)(h)(k) and (m) Florida Statutes, which provide in pertinent part as follows:

    489.129 Disciplinary proceedings.-

    
    

    1. The board may revoke, suspend or deny the issuance or renewal of the certificate or registration of a contractor and impose an administrative fine not to exceed $5,000.00, place a contractor on probation, or reprimand or censure a contractor if the contractor . . is found guilty of any of the following acts:

    
    

    (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.

    
    

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

    . . .

    
    

    (m) Upon proof that the licensee is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.

    
    

    As to the charge of violation of Subsection 489.129(1)(m) Florida Statutes, it should be noted that Petitioner's counsel, in his opening statement, clarified that the Department was proceeding under "misconduct" rather than "gross negligence" or "incompetence". (T. 12-13).

    
    

12. Petitioner failed to prove diversion of funds by Respondent. Of the $1300.00 paid by Riordan to Ruocco, $800.00 went directly to Bambach, Ruocco's subcontractor, for work on the project. No testimony was presented as to who (Ruocco or Bambach?) was responsible for purchase of materials, and no competent evidence was submitted to show that Ruocco was unable to fulfill the terms of his contract with Riordan.

    
    

13. Ruocco is not guilty of abandonment. Riordan and Ruocco both testified that as soon as Riordan called with problems on the windows, they were removed and replaced, except for the third time when they were only removed. It was never clearly established how much time actually lapsed between the final removal and Ruocco's

    knowledge that the windows had been repaired at Brooks Glass Company and were ready to be reinstalled. However, during the interim and afterward, Ruocco was persisting in his misguided attempts to get Bambach to finish the job. This does not constitute abandonment.

    
    

14. The record establishes a clear case of misconduct. Through his intransigence and bickering with Bambach, Ruocco failed to perform his contract with Riordan. At least nine months elapsed between the date on the contract and Riordan's demand, through his attorney, that the money be refunded. The delay by Ruocco is unjustified. It should have become apparent immediately after the third removal that Ruocco needed to assume himself the task of repairing and installing the windows.

    
    

15. The lack of evidence of prior violations by Respondent and the special circumstances of the prior relationships of the individuals in this case, suggest that action less severe than the fine and suspension proposed by the Petitioner is warranted.

RECOMMENDATION

On the basis of the foregoing, I recommend that the Respondent be found guilty of misconduct as provided in Subsection 439.129(1)(m) Florida Statutes, and be reprimanded in accordance with Subsection 489.129(1) Florida Statutes.

DONE and ORDERED this 12th day of November, 1985, in Tallahassee, Florida.

MARY CLARK, 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 12th day of November, 1985.

APPENDIX

In accordance with Section 120.59(2) Florida Statutes, the following are recommended rulings on proposed findings of facts submitted by Petitioner in this case. The numbered paragraphs below conform to the paragraphs proposed by Petitioner.

1. These findings are incorporated in Recommended Order, paragraph 1.

2. These findings are incorporated in Recommended Order, paragraphs 2 and 6.

3. These finding are incorporated in Recommended Order, paragraph 3.

4. These findings are incorporated in Recommended Order, paragraph 5.

5. These findings are incorporated in Recommended Order, paragraph 5.

6. These findings are incorporated in Recommended Order, paragraph 5.

7. These findings are incorporated in Recommended Order, paragraph 7.

8. The findings related to the estimate of Brooks Glass Company are irrelevant. The estimate was done approximately one and a half years after the contract was entered between Riordan and Ruocco. The witness from Brooks Glass who testified about the estimate could not relate the quality of Brooks' windows to those intended by Ruocco for the project. (T. 41-43). To the extent that these findings are proposed to show the extent to which the project was left uncompleted, the fact that the windows were never re- installed was admitted by Ruocco and is reflected in Recommended Order paragraphs 4 and 5.

9. These findings are incorporated in Recommended Order paragraphs 7 and 8.

COPIES FURNISHED:

Fred Roche, Seeretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Douglas Beason, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Albert J. Ruocco

604 Citrus Court

Melbourne, Florida 32951

Docket for Case No: 85-000671

Orders for Case No: 85-000671