STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) DOCKET NO. 77-147

)

PELLE J. LINDQUIST, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Daytona Beach, Florida, on March 22, 1977, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II. Petitioner and respondent appeared through their respective counsel, as follows:

APPEARANCES

For Petitioner: Mr. Barry Sinoff, Esquire

1010 Blackstone Building

Jacksonville, Florida 32202

For Respondent: Mr. Thomas L. West, Esquire

Post Office Box 1857 1030 Volusia Avenue

Daytona Beach, Florida 32015

By amended administrative complaint, the Florida Construction Industry Licensing Board charged respondent Pelle J. Lindquist with diverting funds he received for constructing houses (a) for Mr. Patrick G. Yeager and (b) for Mr. and Mrs. Horace N. Smith, Jr., so as to "be unable to fulfill the terms of his obligation(s) or contract(s)." Section 468.112(2)(e), Florida Statutes (1975). The amended administrative complaint also alleged that respondent Lindquist failed to renew his certification license in June of 1975, but continued as a contractor thereafter, in violation of Section 468.108(1), Florida Statutes (1975); that he failed to notify the Board of a change of address, in violation of Section 468.110(2), Florida Statutes (1975); and that he pulled a building permit from the City of Holly Hill, without having a current state license, in violation of Section 468.112(2)(a), Florida Statutes(1975). At the hearing, petitioner called seven witnesses and rested. On respondent's motion, the hearing officer expressed the view that the diversion of funds allegations had not been proven. Respondent then took the stand in his own behalf, limiting his testimony to the other allegations. Respondent called no other witnesses.

FINDINGS OF FACT

1. On February 27, 1974, Pelle J. Lindquist contracted with Patrick G. Yeager to build a house on Concord Road in Ormond Beach, Florida. This contract

   was admitted in evidence as petitioner's Exhibit No. 1. The contract called for work to begin on March 1, 1974, and to be completed within 90 days. Work did not begin on March 1, 1974, but did begin in the latter half of March, 1974.

   Frequent rain in March, 1974, caused the roof to warp, so that it had to be replaced. After considerable delay in undertaking the repair, actually replacing the roof took only about a week. Replacing the roof added significantly to respondent's costs in performing under the contract. Eleven months after construction began, Mr. Yeager moved in. Because the kitchen and both bathrooms lacked wallpaper, and because the gravel yard was partly unfinished, respondent Lindquist paid Mr. Yeager $300.00, in exchange for which Mr. Yeager released Mr. Lindquist from all liability in connection with the house. The release was admitted in evidence as respondent's Exhibit No. 1.

   
   

2. In the course of construction, Haven Vaughn, a sub- contracting carpenter, filed a notice of intent to lien on behalf of himself and his partner, Cal Fisher. As long as Mr. Lindquist was allowed draws on the construction loan, Messrs. Vaughn and Fisher were paid regularly. For reasons which were not developed in the evidence, the lender withheld part of the loan proceeds from respondent. When the draws stopped, the carpenters were not paid, and they stopped work on the Yeager house. The lender ultimately paid the carpenters in full.

   
   

3. At the time Mr. Yeager contracted with Mr. Lindquist for the house, Mr. Lindquist entered into a separate agreement with Mr. Cameron, a real estate broker who introduced Mr. Lindquist to Mr. Yeager. Under the latter agreement, Mr. Lindquist was to pay Cameron Realty Company a brokerage fee upon "obtaining last draw from lending firm." The brokerage fee has not been paid and is currently the subject of civil litigation.

   
   

4. On February 15, 1974, Mr. and Mrs. Horace N. Smith, Jr., contracted with respondent for the construction of a house on another lot on Concord Road in Ormond Beach, Florida. This contract was admitted in evidence as petitioner's Exhibit No. 2. The contract called for completion of the Smith house on or about June 15, 1974. After the contract was signed, the Smiths returned to New Jersey, entrusting oversight of the project to Mr. Cameron, a real estate broker who introduced Mr. Lindquist to the Smiths. As construction progressed, Mr. Cameron kept Mrs. Smith advised, and she mailed installment payments on the strength of Mr. Cameron's representations. In this fashion, Mr. Lindquist was paid 75 percent of the total contract price of $27,600.00. For reasons which were not developed in the evidence, the Smiths stopped payments under the contract, presumably at Mr. Cameron's suggestion. When the payments stopped, work on the house also stopped, and, during the ensuing hiatus in construction, vandals broke a glass door, scrawled obscenities on the walls, scraped the walls, damaged the outside doors, and ruined the wooden trim.

   
   

5. Work had fallen far behind schedule when, in April of 1975, a lawyer retained by Mr. and Mrs. Smith wrote Mr. Lindquist to the effect that the Smiths would take over the project unless it was finished within a week. When the week had passed, the Smiths began dealing directly with the sub-contractors, the house was eventually completed at a total cost to the Smiths of $29,100.00, or

   $1,500.00 more than the Smiths had agreed to pay Mr. Lindquist for the job. As completed, the house lacked an electric garage door opener and a sprinkler system which Mrs. Smith guessed would cost $1,000.00, but no competent evidence as to the cost or value of either the door opener or the sprinkler system was adduced.

6. Vandalism added significantly to the cost of the Smith house. Mr. Lindquist replaced a glass door broken by vandals. On account of the vandalism, the Smiths paid the carpenters an additional $300.00 for their labor. The front doors, the trim, and all bays had to be replaced; the cost of replacement materials was not established.

   
   

7. At the time Mr. and Mrs. Smith contracted with Mr. Lindquist for the house, Mr. Lindquist entered into a separate agreement with Mr. Cameron. Under the latter agreement, Mr. Lindquist was to pay Cameron Realty Company a brokerage fee. The brokerage fee has not been paid and is currently the subject of civil litigation.

   
   

8. Certified general contractors' licenses are renewable annually in June, pursuant to Section 468.108, Florida Statutes (1975). Mr. Lindquist had such a license for 1974-75. In June of 1975, he desired to renew his license, but in a fashion which would authorize him to contract on behalf of a corporation, rather than as an individual. He telephoned the Jacksonville office of the Florida Construction Industry Licensing Board and explained his situation. That office mailed him forms which he filled out and mailed back in June of 1975. In March of 1976, some nine months later, the completed forms were mailed back to respondent, but no license was issued.

   
   

9. On March 22, 1976, Mr. Clyde Pirtle, an investigator employed in the Jacksonville office of the Florida construction Industry Licensing Board, filled out and mailed to respondent a Notice of Violation," notifying respondent that he had failed to renew his certificate during June of 1975. The same "Notice of Violation" advised respondent of his putative failure to notify the Florida Construction Industry Licensing Board of his new address, although his application papers for the 1975-76 license had been returned to the new address. On the Monday after the Friday on which respondent received the "Notice of Violation," he telephoned Mr. Pirtle's office and was told that Mr. Pirtle would contact him. On or about June 3, 1976, Mr. Pirtle did contact respondent and meet with him. At this meeting, respondent showed Mr. Pirtle the papers he had mailed to the Board in June of 1975, and which were returned to him unprocessed in March of 1976. Mr. Pirtle told respondent that the papers had been returned because the application forms were for a registered, and not for a certified, contractor's license, and furnished respondent another set of forms. Respondent filled out the new set of forms and mailed them to the Board in June of 1976. A month and a half before the hearing in this cause, respondent received 1976-1977 certified general contractor's license No. CGC007702, which is currently in force. No contractor's license for 1975-76 was ever issued to respondent.

   
   

10. On May 3, 1976, respondent applied for and was issued a building permit to erect a new residence at 1623 Anniston Avenue in the City of Holly Hill. At that time, respondent had no current contractor's license and presented to the authorities a license which had expired.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction of this matter.

    
    

12. Respondent pulled a building permit without having a valid license, in violation of Section 468.108, Florida Statutes (1975).

    
    

13. The allegation that respondent diverted funds from the construction of the Yeager house was not proven. Petitioner did prove a cost overrun, but the

    evidence supports the inference that replacing the damaged roof caused the additional expense.

    
    

14. The allegation that respondent diverted funds from the construction of the Smith house was not proven. Petitioner did prove a cost overrun, but the evidence supports the inference that repairs necessitated by vandalism caused the additional expense.

    
    

15. Petitioner failed to prove that respondent did not advise the Board of a change of address.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED that disciplinary action against Respondent, if any, be limited to a reprimand.

DONE and ENTERED this 6th day of April, 1977, in Tallahassee, Florida.

ROBERT T. BENTON

Hearing Officer

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

COPIES FURNISHED:

Mr. Barry Sinoff, Esquire 1010 Blackstone Building

Jacksonville, Florida 32202

Mr. Thomas L. West, Esquire Post Office Box 1857

1030 Volusia Avenue

Daytona Beach, Florida 32015

J. K. Linnan, Executive Director Florida Construction Industry

Licensing Board Post Office Box 8621

Jacksonville, Florida 32211

Docket for Case No: 77-000147

Orders for Case No: 77-000147