STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 88-3448

)

DONALD L. GECKLER, )

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, held a formal hearing in the above-styled case on March 28, 1989, in Naples, Florida.

APPEARANCES

For Petitioner: Elizabeth R. Alsobrook, Esquire

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0729

For Respondent: Donald L. Geckler, Pro se

2596 - 47th Street, S.W. Naples, Florida 33999

STATEMENT OF THE ISSUES

Whether the Respondent failed to perform the contracting job alleged in the Administrative Complaint in a reasonably timely manner, or abandoned the job, in violation of Section 489.129(1)(m), (k), Florida Statutes.

Whether the Respondent failed to properly pay subcontractors or suppliers during his term as the qualifying contractor, in violation of Section 489.129(1)(h) and (m), Florida Statutes.

PRELIMINARY STATEMENT

The Department of Professional Regulation (hereinafter the Department) filed an Administrative Complaint before the Construction Industry Licensing Board (hereinafter the Board) alleging that the Respondent, Donald L. Geckler (hereinafter Geckler) had violated state law in his capacity as a licensed contractor. The Department seeks to have disciplinary sanctions imposed on the license of the Respondent Geckler.

In an Election of Rights Form signed June 10, 1988, the Respondent Geckler disputed the allegations of fact contained in the Administrative complaint and requested a formal hearing.

Prior to hearing on the Administrative Complaint, the Department filed a Notice of Intent to Offer Evidence of Aggravating Facts, pursuant to Rule 21E- 17.006, Florida Administrative Code.

During the hearing, the Petitioner presented three witnesses and identified ten exhibits. All of the exhibits offered were admitted into evidence. The Respondent called one witness, testified in his own behalf, and submitted six exhibits, which were admitted into evidence.

A transcript of the proceedings was filed with the Division of Administrative Hearings on April 21, 1989. The Respondent waived his opportunity to submit proposed findings of fact to the Hearing Officer. A Motion for Extension of Time in which to file a proposed recommended order was timely filed by the Petitioner, and was granted by the Hearing Officer. Rulings on the proposed findings of fact are in the Appendix to the Recommended Order.

FINDINGS OF FACT

1. At all times material to these proceedings, the Respondent, Donald Lewis Geckler was licensed as a certified general contractor in Florida, and held license lumber CG C025824. The Respondent was the qualifying contractor for Monarch Construction, Inc. (hereinafter Monarch).

   
   

2. On November 28, 1986, Monarch entered into a contract with Elliot Zaleznik and Joyce Zaleznik (hereinafter Owners) to construct a residence at 164 Edgemere Way South, Naples, Collier County, Florida. A copy of the contract is Petitioner's Exhibit 1. During this time period, the Respondent held stock in Monarch and was the Vice-President of the corporation.

   
   

3. Under the terms of the construction contract, Monarch agreed to construct a residence according to the plans and specifications for $489,000.00. The contract contained a draw schedule which identified the amount of monies to be paid and the stages of construction which had to be completed before the draws would issue.

   
   

4. The schedule contained five draw opportunities before the final draw, which could be obtained by Monarch when the house was ready for occupancy.

   
   

5. Construction on the Zaleznik project began during the end of December 1986 or early January 1987.

   
   

6. The contract required written and signed change orders before the work could be altered, increased or decreased. In such event, the Owners were required to pay Monarch the cost of the change prior to the change taking place. Evidence of two change order requests were presented at hearing as Petitioner's Exhibit 2 and Exhibit 3. The first change order created an additional charge of

   $30,000.00, to be paid when the additional work was installed. The second change order cost was $30,620.55. An immediate payment of $15,310.27 was required in March of 1987, and $15,310.28 was due when the additional work was installed. With these change orders, the new contract price became $54,620.55.

   
   

7. During the course of construction, the Owners made the following disbursements, according to Petitioner's Exhibit 4.

   
   

   2/18/87 $ 77,000.00

   3/24/87 15,310.27

   3/25/87	108,300.00
   4/9/87	99,300.00
   	$ 299,910.27

   
   

8. The amounts paid by the Owners do not correlate with the draw schedule. The Owners paid the $15,310.27, and the other three draw requests were made upon the lender, Sun Bank, who paid them in derogation of the draw schedule. It is unknown if the bank made inspections prior to disbursement. All work was completed on schedule from December 1986 through most of April 1987. The lender was authorized by the Owners to release the monies requested by Monarch.

   
   

9. The Respondent's wife was in a very serious car accident on March 2, 1987, which resulted in multiple injuries that required surgery and hospitalization. The Respondent spent as much time as possible with his wife, and balanced his schedule accordingly. During this time period, Mr. Monarchino, Jr., purchased all of the Respondent's stock in Monarch. Mr. Monarchino, Jr., became the sole shareholder of all issued stock in the corporation. The purpose of the stock transfer was to give the Respondent funds in order to meet his wife's hospital expenses.

   
   

10. During the period of time that the Respondent was a shareholder in Monarch, Mr. Monarchino, Jr., was responsible for the financial end of the company, including financial disbursements on the Zaleznik project. The Respondent was only responsible for the estimating, the bid letting, and construction supervision.

    
    

11. In early April of 1987, before the Respondent's wife was scheduled for surgery, the couple took a vacation with Mr. and Mrs. Monarchino, Jr. During this vacation, the Respondent reviewed the financial disbursement sheets on the Zaleznik project and other pending projects. The financial accounting showed that there were some outstanding costs on the Zaleznik project. However, the Respondent believed that enough money was coming in from different jobs that were closing, to offset the deficit.

    
    

12. On April 21, 1987, the Respondent received a paycheck from Monarch. He accompanied his wife to St. P-etersburg, Florida, for specialized surgery on April 30, 1987.

    
    

13. During his stay in St. Petersburg, the Respondent was told by Mr. Monarchino, Jr., to return to work. The Respondent refused to do so immediately, but confirmed he would return as soon as practicable.

    
    

14. In the latter part of April or early May 1987, while the Respondent was in St. Petersburg, Mr. William "Bill" Monarchino, Jr., President of Monarch, advised the Owners that there were financial difficulties on the job. The Owners did not request an accounting. Monarch was allowed to proceed with construction. It is unknown if the bank was made aware of the financial problems. However, Mr. Monarchino, Jr., represented that Monarch would make up the shortfall by obtaining a $60,000.00 mortgage on the Respondent Geckler's home. Construction on the project began to slow down after the Owners were advised of financial problems.

    
    

15. The Respondent was unaware of the conversation between the Owners and Mr. Monarchino, Jr. Upon his return to the corporation on May 7, 1987, the Respondent learned that he had been locked out of the business, and that his name had been removed from all of the business accounts.

16. The Respondent attempted to discover the problem between himself and Mr. Monarchino, Jr. in order to reconcile and continue in business together. The Respondent was made aware that Monarch would have to make up the shortfall on the Zaleznik project. The Respondent and his wife agreed to place a

    $60,000.00 mortgage on their home for this purpose. A note and mortgage was signed on May 21, 1987. However, when the Respondent asked Mr. Monarchino, Jr. for financial records to verify that a shortfall had occurred and the amount of the shortfall, he was unable to obtain these records.

    
    

17. The Respondent became suspicious of Mr. Monarchino Jr.'s motives as the mortgage was placed in Mr. Monarchino Jr.'s name. When the Respondent was not given the opportunity to review the Zaleznik project records, the note and mortgage, Respondent's Exhibit 6, were cancelled.

    
    

18. When it became apparent to the Respondent that he was unable to reconcile with Mr. Monarchino, Jr. or obtain the financial records of the company, he decided to withdraw as the qualifying contractor. His last paycheck from Monarch was the one received on April 21, 1987.

    
    

19. Prior to the Respondent's withdrawal as qualifying contractor for Monarch, the Owners received Notices to Owners and Notices of Liens from unpaid contractors and materialmen on this construction project. These liens have not been satisfied by Monarch, the Owners, the bank, or the Respondent.

    
    

20. On June 22, 1987, the Respondent Geckler notified the Petitioner, Department of Professional Regulation, Construction Industry Licensing Board (hereinafter the Department) of his withdrawal as qualifying contractor for Monarch in Respondent's Exhibit 2.

    
    

21. According to Petitioner's Exhibit 5, liens which had been perfected before the Respondent left the project were: Robert Hunt corp., $22,075.70; Rite Electric, Inc., $8,045.00; Headly Construction, $5,392.30; and CES Industries, Inc., $1,318.57. These have not been paid and are currently outstanding.

    
    

22. When the Respondent Geckler withdrew as Monarch's qualifying contractor, he did not notify the Owners, and he did not require an accounting and reconciliation by Monarch of the contract price paid and the percentage of project completed on the Zaleznik residence.

    
    

23. Monarch continued with construction on the Zaleznik residence until mid-August 1987, when the Owners were informed that Monarch would not complete the project.

    
    

24. The Owners are currently in litigation with Monarch regarding the construction contract. The Hearing Officer was not informed of what type of litigation is pending, or the effect of the pending litigation on the liens which had been perfected prior to the Respondent Geckler's withdrawal as qualifying contractor for Monarch.

    
    

25. In the Respondent's opinion, the estimate for the Zaleznik job was a good estimate for the costs of construction. The estimate was not a reason for the problems on this project.

    CONCLUSIONS OF LAW

    
    

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

    
    

27. Section 489.129, Florida Statutes, empowers the Florida Construction Industry Licensing Board to revoke, suspend, or otherwise discipline the license of the Respondent if he is found guilty of any of the acts enumerated in Section 489.129, Florida Statutes.

    
    

28. A proceeding to discipline a license is penal in nature. Bach v. Florida Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1980). In such contests, the Petitioner has the burden to prove by clear and convincing evidence that the Respondent committed the violations set forth in the administrative complaint. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

29. Paragraph five of the administrative complaint alleges that the Respondent failed to perform in a reasonably timely manner, or in the alternative, abandoned the Zaleznik project, in violation of Section 489.129(1)(m) and (k), Florida Statutes. The testimony at hearing revealed that construction proceeded in a timely manner during the time period that the Respondent Geckler was supervising the project, and was given access to funds to proceed with the scheduling of subcontractors. A slowdown in construction occurred after the Respondent Geckler was "locked out", and funds were no longer being disbursed by the bank to Monarch. Under the circumstances, the Respondent is not guilty of failing to perform in a reasonably timely manner.

    
    

30. Section 489.129(1)(k), Florida Statutes, requires ninety days to pass before a contractor's termination of a project without notification to the owner will be considered. In this case abandonment did not occur by Monarch on the project until mid-August 1987. As the Respondent Geckler had withdrawn as qualifying contractor for Monarch on June 22, 1987, the statutory criteria which would hold the qualifying contractor responsible has not been met. The Respondent is not guilty of the alleged abandonment.

    
    

31. The second charge is set forth in paragraph six of the administrative complaint. It is alleged that the Respondent failed to properly pay Respondent's subcontractors or suppliers on the job. The evidence adduced at hearing demonstrates that the Respondent was the qualifying contractor during the time period that $36,831.57 in perfected liens from subcontractors and suppliers were filed against the Zaleznik property. However, the evidence also reveals that the Respondent did not have the authority to disburse funds to subcontractors or suppliers on the job.

    
    

32. The lien which was perfected on the Zaleznik project before the Respondent's "lock out" by Mr. Monarchino, Jr., occurred after the Respondent's stock transfer. The owner of Monarch, Mr. Monarchino, Jr., had complete control over the finances during the Zaleznik project. When the Respondent reviewed the records in April 1987, Monarch appeared solvent and capable of making up the deficit on the project. Even after the Respondent and his wife signed a note and mortgage on their home to make up the shortfall on this project, Mr. Monarchino, Jr. would not reveal the amount of money currently owed to subcontractors and suppliers on this project. Under these circumstances, the Respondent is not guilty of the alleged failure to pay subcontractors or suppliers.

RECOMMENDATION

Based upon the foregoing it is

RECOMMENDED that all violations charged against the Respondent, Donald L. Geckler, as set forth in the Administrative Complaint, Case No. 88-3448, should be dismissed.

DONE and ENTERED this 26th day of June, 1989, in Tallahassee, Leon County, Florida.

VERONICA E. DONNELLY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 1989.

APPENDIX TO RECOMMENDED ORDER CASE NO. 88-3448

Petitioner's proposed findings of fact are addressed as follows:

1. Accepted. See HO #1.

2. Accepted. See Preliminary Matters.

3. Reject the conclusion "entered" a contract. The rest of paragraph 3 is accepted. See HO #1 and HO #2.

4. Rejected. Irrelevant.

5. Accepted. See HO #5.

6. Accepted. See HO #14.

7. Reject conclusion. Accept three draws occurred. See HO #7 and HO #8.

8. Accepted. See HO #14.

9. Accepted. See HO #14 and HO #23.

10. Accepted. See HO #19 and HO #20.

11. Accepted. See HO #23.

12. Accepted.

13. Rejected. There was no evidence to demonstrate that the house was finished from the same plans and specifications.

14. Accepted. See HO #19 and HO #24.

15. Accepted. See HO #14.

16. Rejected. Irrelevant.

17. Rejected. Legal conclusion.

18. Rejected. Legal conclusion.

19. Rejected. Improper foundation, based on facts not in evidence.

20. Accepted.

21. Rejected. Lack of knowledge. Improper summary. See HO #11.

22. Accepted.

23. Accepted. See HO #25.

24. Accepted. See HO #16.

COPIES FURNISHED:

Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0729

Donald L. Geckler

2596 - 47th Street, S.W. Naples, Florida 33999

Kenneth E. Easley, Esquire General Counsel

Department of Professional Regulation 1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0729

Fred Seely, Executive Director Florida Construction Industry

Licensing Board

111 East Coastline Drive Post Office Box 2 Jacksonville, Florida 32202

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs CASE NO.: 0089622

DOAH CASE NO.: 88-3448

DONALD L. GECKLER, LICENSE NO.: CG-C025824,

Respondent.

/

FINAL ORDER

THIS MATTER came before the Construction Industry Licensing Board pursuant to Section 120.57(1)(b)(9), Florida Statutes, on August 10, 1989, in Tampa, for consideration of the Recommended Order (a copy of which is attached hereto and

incorporated herein by reference) issued by the hearing officer in the above styled case. The Petitioner was represented by Ray Shope. The Respondent was neither present nor represented by counsel.

Upon consideration of the hearing officer's Recommended Order, including the exceptions filed and the arguments of the parties and after a review of the complete record in this matter, the Board makes the following findings:

FINDINGS OF FACT

1. The hearing officer's findings of fact are hereby approved and adopted, except where they are contradicted by Petitioner's Exceptions to Hearing Officer's Recommended Order which findings are hereby approved and fully incorporated herein by reference.

   
   

2. There is competent, substantial evidence to support the Board's findings of fact.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to the provisions of Section 120.57(1), and Chapter 489, Florida Statutes.

   
   

2. The hearing officer's conclusions of law, are hereby approved and adopted except where they are contradicted by Petitioner's Exceptions to Hearing Officer's Recommended Order which conclusions are hereby approved and adopted and incorporated herein by reference.

   
   

3. There is competent substantial evidence to support the Board's findings and conclusions.

   
   

4. The Hearing Officer's recommended disposition of this cause is rejected as inconsistent with the Boards findings and conclusions.

WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:

Respondent shall pay an administrative fine in the amount of one thousand dollars ($1,000.00) to the Florida Construction Industry Licensing Board. Said fine shall be paid within thirty (30) days.

Respondent shall be on probation from the date of the Final Action herein, through September, 1991. Respondent shall make probation appearances before the Board in the month(s) of April 1990, January 1991, and September 1991. At said appearance Respondent shall stand for questions from the Board as to his firm's operations and finances, and shall supply the Board with such financial reports and other papers as the Board may require.

To assure payment of the fine, it is further ordered that all of Respondent's licensure to practice contracting shall be suspended with the imposition of the suspension being stayed for thirty (30) days. If the ordered fine is paid within that thirty (30) day period, the suspension imposed shall not take effect. Upon payment of the fine after the thirty (30) days, the suspension imposed shall be lifted. If the licensee does not pay the fine within said period, then immediately upon expiration of the stay, he shall surrender his licensure to the investigator of the Department of Professional Regulation or shall mail it to the Board offices.

Pursuant to Section 120.59, Florida Statutes, the Parties are hereby notified that they may appeal this Order by filing one copy of a Notice of Appeal with the Clerk of the Department of Professional Regulation, Northwood Centre, 1940 N. Monroe Street, Tallahassee, Florida 32301, and by filing the filing fee and one copy of the Notice of Appeal with the District Court of Appeal within thirty (30) days of the effective date of this Order.

This Order shall become effective upon filing with the Clerk of the Department of Professional Regulation.

DONE AND ORDERED this 22nd day of September, 1989.

MIKE BLANKENSHIP, CHAIRMAN

Construction Industry Licensing Board

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been provided by U.S. Mail to

Donald L. Geckler 2596 47 St. S.W.

Naples, Florida 33999

and by hand delivery/United States Mail to the Board Clerk, Department of Professional Regulation and its Counsel, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 32399-0792, on or before 5:00 p.m., this 5th day of October 1989.

F I L E D

Department of Professional Regulation Florida Construction Industry Licensing Board

Board Clerk

Clerk Date: October 5, 1989

Docket for Case No: 88-003448

Orders for Case No: 88-003448