STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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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 cause on February 25, 1976, at Ft. Lauderdale, Florida.

APPEARANCES

Barry Sinoff, Esquire, Blackstone Building, Suite 1010, Jacksonville, Florida 32202, representing the Construction Industry Licensing Board.

Henry Botwinick was not present.

By Administrative Complaint filed December 11, 1975, the Florida Construction Industry Licensing Board (hereinafter referred to as Board) seeks to revoke the contractor's license of Henry Botwinick on the grounds that he signed an agreement to build an addition to the home of Mrs. Kane, that she paid a substantial portion of the contract price of $7,700.00 in advance, that these funds were diverted to another project, and that as a result of the diversion of the funds Botwinick was not able to complete the contract. Two witnesses testified on behalf of the Board and ten exhibits were admitted into evidence.

Exhibits 1 and 2 showed certified mail receipt of the administrative complaint and election of rights in which Botwinick requested a hearing. Notice of the hearing was submitted by the Division of Administrative Hearings on February 5, 1976, by regular mail to the last known address of Botwinick.

FINDINGS OF FACT

1. On December 17, 1973, Henry Botwinick acknowledged having received from Mrs. Kane $4,000 on account for addition on the house at Northeast 11th Place, North Miami, Florida (Exhibit 8). Exhibit 3 is an application for building permit and building permit issued by the City of North Miami for the construction at the Kane residence. Attached thereto are the plans for the construction. Exhibits 4, 5, and 6 show pollution control authority for the construction, the plumbing permit, and electrical inspection permit. Subsequent thereto construction was commenced on this project. Mrs. Kane was advised that the project would be completed in 4 to 6 weeks, however, the contract was never completed. In April Mr. Botwinick came to Mrs. Kane and asked for an additional

   $500 to get the electrical work started and the cement foundation poured. Approximately two weeks later he again obtained from Mrs. Kane $1500 with which to pay the roofer. He advised Mrs. Kane that he had used the money, previously advanced by her for materials, on another job. Exhibit 8 indicates that

   payments of $500 were made on April 1, another $500 was made on April 12, and

   $1,500 was made on April 25, 1974.

   
   

2. Subsequent inaction by the contractor on this project resulted in a letter (Exhibit 7) dated May 6, 1975 from Bertil Lindblad, a building official for the City of North Miami, in which he advised Mr. Botwinick that the building permit issued to him had expired for lack of progress or abandonment of the work for a period exceeding ninety days.

   
   

3. Mrs. Kane last saw work performed by Botwinick on February 25, 1975. She made numerous telephone calls, but was unable to contact him. Subsequent to the payments made to Botwinick, Mrs. Kane has had to pay nearly $3,000 to another contractor to perform work and the project is still not completed. As of the date of hearing she requires approximately $3,000 additional work to complete this project.

   
   

   CONCLUSIONS OF LAW

   
   

4. Section 468.112, Florida Statutes, provides that the Board may take disciplinary action consisting of revocation or suspension of the certificate of a licensee if the Board finds that the certificate holder has committed the following act which constitutes cause for disciplinary action:

   
   

   (2)(e) Diversion of funds or property received for prosecution or completion of a specified construction project or operation, where as a result of the diversion the contractor is, or will be, unable to fulfill the terms of his obligations or contract.

   
   

5. Here the contractor acknowledged to Mrs. Kane that he had diverted these funds which she had provided for materials to another project. As a result of this diversion he was unable to complete the work for which he had contracted with Mrs. Kane and she has suffered considerable damages as a result of his actions.

   
   

6. From the foregoing, it is concluded that Henry Botwinick is guilty of diversion of funds as alleged in the Notice of Complaint. It is therefore,

RECOMMENDATION

RECOMMENDED that Building Contractor's License #CBC001839 issued to Henry Botwinick, 11321 Rexmere Boulevard, Ft. Lauderdale, Florida, be revoked.

DONE AND ENTERED this 18th day of March 1976 in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida

Docket for Case No: 76-000006

Orders for Case No: 76-000006