STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1011

)

MILLARD P. HILL, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated hearing officer, James E. Bradwell, held a public hearing in the above styled cause on July 22, 1976, at Ft. Lauderdale, Florida.

APPEARANCES

For Petitioner: David Linn, Esquire

Post Office Box 1386 Tallahassee, Florida 32302

For Respondent: Robert T. Adams, Jr., Esquire

1040 Bayview Drive

Ft. Lauderdale, Florida 33304

By an amended administrative complaint filed June 30, 1976, the Florida Construction Industry Licensing Board (FCILB) Petitioner herein, seeks to revoke the registered pool contractor's license of Millard P. Hill, Jr., whose license number is RP 0018262. As grounds therefor, it is alleged that Millard P. Hill, Jr., entered into contracts after he qualified H. B. Patten, Inc. as the name under which his pool contracting would be done since on or about June 10, 1975 1/. It is alleged that after Respondent qualified H. B. Patten, Inc., d/b/a Patten Pools, he entered into contracts with Manuel and Anna Bueno, Howard and Sheila Siclari, Orlando Gonzalez and Edward W. Eskie for the construction of swimming pools and diverted funds received for work on those projects to other projects. By these acts, Petitioner seeks to revoke or suspend the registration of Millard P. Hill, Jr., or to impose an administrative penalty based on the above specified allegations which constitute a violation of Sextion 468.112(2)(e), F.S., viz: diversion of funds or property received for prosecution or completion of a specified construction project or operation or as a result of the diversion the contractor is or will be unable to fulfill the terms of his obligation or contract.

During the course of the hearing, the parties were afforded the right to be represented by counsel, to present oral argument and other documented evidence and to cross examine opposing witnesses. Ten exhibits were received into evidence in addition to the amended administrative complaint. At the outset, the Petitioner deleted allegation "E" of the administrative complaint.

Based on my observation of the witnesses and their demeanor while testifying, I make the following:

FINDINGS OF FACT

1. The parties stipulated that Petitioner's Exhibit number 1, which is the Florida Construction Industry Licensing Board official records as they relate to Millard P. Hill, Jr., should be received into evidence. The parties noted further that there is little dispute as to facts, however, the Respondent contends that there is no diversion of funds based on the facts of this case.

   
   

2. On June 10, Respondent advised Petitioner that he wished to qualify Master Pools, a corporation which he had applied to Petitioner to qualify as the name under which his pool contracting would be done to reflect the name H. B. Patten, Inc. as the name under which said contracting would be done. Petitioner changed its records to show this change. On July 12, Respondent entered into a contract with Manuel and Anna Bueno for a pool to be built at 6960 Northwest 4th Place, Margate, Florida, for a sum of $5,665. See Petitioner's Exhibit number 2 received into evidence and made a part hereof by reference. Anna Bueno testified that a hole was dug and tar paper and steel bars were erected in the hole and the work was abandoned thereafter. Prior to abandonment, the Bueno's paid approximately $4,100 to Patten Pools. To complete the construction, the Bueno's used Hallmark Pools to finish the pool which required an additional sum of approximately $5,000. As can be seen, this is approximately $3,300 over and above the contract price. The evidence also reveals that Patten Pools, Inc., through Millard P. Hill, applied for and obtained a permit for the construction of the pool for the Bueno's on August 5. See Petitioner's Exhibit number 3, received into evidence and made a part hereof by reference.

   
   

3. On April 24, Mr. and Mrs. Edward Eskie entered a contract with Respondent for the erection of a swimming pool on their property located at 1525 Southeast 14th Court, Deerfield Beach, Florida for $6,786.00. See Petitioner's Exhibit number 4 received in evidence and made a part hereof by reference. Mr. Eskie testified that the excavation for the pool began on May 20, and on June 2 gunite services were complete. On July 9, he received a letter from Crockett- Bradley, Inc. a gunite subcontractor, indicating that it was filing a lien for

   $1,312 against the Eskie's property for services performed. The building permit for the Eskie project was obtained by Respondent on June 10. See Petitioner's Exhibit number 7 incorporated herein by reference. Edward Eskie paid Respondent approximately $4,778 and $1,312 was paid to Crockett-Bradley, Inc. to satisfy the lien which was placed against their property. The Eskie's completed their pool by payment of an amount in excess of $4,000 to another pool contracting firm. Prior to completing the pool and after the Respondent abandoned the project, Edward Eskie made numerous attempts to contract Respondent by phone to no avail.

   
   

4. On June 27, Respondent entered a contract with Orlando Gonzalez for a pool to be built at his residence located at 353 Northwest 22nd Street, Boca Raton, Florida for $9,000.00. See Petitioner's Exhibit number 8 which was received and made a part hereof by reference. Orlando Gonzalez paid Respondent

   $3,600 through his bank toward the contract price. For that payment, Respondent dug a hole and the project was abandoned. After work was abandoned, Gonzalez made repeated attempts to contact Respondent to no avail. To complete the project, he paid another contractor approximately $6,000.

5. On April 18, Respondent entered into a contract with Howard and Sheila Siclari for a pool to be built at their home located at 7812 Northwest 67th Avenue, Tamarac, Florida, for the sum of $4,280. To commence the construction, Respondent obtained a building permit on June 18, 1975. See Petitioner's Exhibits number 9 and number 10 received in evidence and made a part hereof by reference. The Siclari's paid Respondent $3,456.75. Thereafter they completed the work which cost them an additional $2,500 and they did most of the work themselves.

   
   

6. James T. Anglen, a pool salesman for Patten Pools testified that he was initially employed by Master Pools until June, 1975. A reference to Petitioner's Exhibit number 1 indicates that Master Pools registered as Brian Sales Corporation as the first entity that Respondent registered with Petitioner on January 1, 1974. He was a superintendent of Patten Pools in June, 1975 when he commenced employment with Patten. He acknowledged that he received money from the Bueno's which was transmitted to Patten Pools. He also acknowledged that the Bueno's were probably hurt most of all the complaining parties in this case. Respondent discovered that its cash flow was short approximately $40,000 to $50,000 and that that amount in checks were floating with insufficient funds to cover them. He commenced efforts to try to straighten out the firms cash flow and that for a while the bank worked along with him. Anglen also acknowledged the abandonment of the Gonzalez project. He further acknowledged that monies received from projects were used to cover deficiencies on other projects to continue Respondent's operations.

   
   

   CONCLUSIONS OF LAW

   
   

7. The parties to this proceeding were notice according to Chapters 120 and 468, F.S.

   
   

8. The authority of the Petitioner is derived from Chapter 468, F.S.

   
   

9. During times material, Respondent was the holder of registered pool contractor's license RP 0018262.

   
   

10. Subsection 468.112(2), F.S., sets forth the grounds for revocation of or suspension of a certificate of registration including:

    
    

    (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 contract."

    
    

    (G) "Failure in any respect to comply with the provisions of this part."

    
    

11. To revoke or suspend a registration pursuant to this provision first funds must be diverted and secondly as a result thereof the contractor must be unable to fulfill the terms of the contract. In this case, it is clear as the testimony of Anglen reveals, that Respondent utilized the funds received for the various projects to cover for checks which were drawn on other projects and for which insufficient monies were placed in its checking account. It is also clear that Respondent abandoned the projects once construction was commenced and after very little work was done despite the fact that substantial sums were paid toward the contract price.

12. From the foregoing Findings of Fact and Conclusions of Law, it is concluded that substantial competent evidence of a diversion of funds was presented to prove Respondent guilty of a violation of Sections 468.112(2)(3),

F.S. It is therefore, recommended that the registration of Millard P. Hill, Jr., be revoked.

DONE and ENTERED this 8th day of October, 1976, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

ENDNOTE

1/ Unless otherwise noted, all dates are in 1975.

COPIES FURNISHED:

David Linn, Esquire Post Office Box 1386

Tallahassee, Florida 32302

Robert T. Adams, Jr., Esquire 1040 Bayview Drive

Ft. Lauderdale, Florida 33304

Docket for Case No: 76-001011

Orders for Case No: 76-001011