STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 77-474

)

NORMAN RIVERS, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard on August 30, 1977 in the County Commission Conference Room in Alachua County Courthouse, Gainesville, Florida, before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case was presented upon the Administrative Complaint of the Florida Construction Industry Licensing Board against Norman Rivers which alleges that Rivers violated Section 468.112(1)(a) by commencing construction without a building permit thereby willfully violating the applicable building codes, and violated 468.112(1)(e) by diverting funds received to complete jobs and thereby being unable to fulfill his contractual obligations.

The Florida Construction Industry Licensing Board presented evidence that Rivers had begun construction on two pools without obtaining required building permits and had executed affidavits that he had paid all bills for labor and material when he had not paid the bills and did not have the money to pay the bills although he received full payment for the construction. Rivers testified in his defense that commencement of pools without a permit is not unusual because of the problem of determining the actual location until excavation was complete. Further, that in one instance he did not know he was building in a county requiring a permit. Rivers admitted signing the affidavits and failing to pay the materialmen. Rivers said he intended to pay but financial reverses and increases in materials presented him from doing so. He paid the lien in one instance and repaid the property owner who had paid the debt off in the other instance in June, 1977.

ISSUE

The basic allegations of the complaint having been proven or admitted, the sole question at hearing was one of mitigation.

APPEARANCES

For Petitioner: Michael Egam

Florida Construction Industry Licensing Board

Post Office Box 8621 Jacksonville, Florida 32211

For Respondent: Mr. Norman Rivers, in pro se

1710 South East 19th Street Ocala, Florida 32670

FINDINGS OF FACT

1. Rivers is a licensed general and a licensed pool contractor. All the complaints against Rivers arose in relationship to his pool contracting activities.

   
   

2. Rivers did begin construction of two pools in Levy County without first obtaining a building permit as required by the Levy County Building Code, a certified copy of which was identified by the Levy County Building official. Rivers paid a late fee in both instances. Although in one instance all inspections were made, in the second instance no inspections were possible because construction was essentially complete when the construction was discovered by the Levy County Building official.

   
   

3. Rivers did fail to pay materialmen on two pools although he received payment in full for the jobs. His failure resulted in materialmen's liens being placed on the property, although Rivers provided each owner a written statement that all bills had been paid. Rivers admitted that he had not paid the materialmen because he lacked funds to do so. His contract with both parties for construction of a specified pool contained a provision stating that he would provide them an affidavit that all labor and material had been paid prior to receipt of final payment on the contract.

   
   

   CONCLUSIONS OF LAW

   
   

4. Section 468.112(2)(a), Florida Statutes, provides that willful and deliberate disregard of the applicable building codes is grounds for discipline. Both acts of commencing construction without obtaining a building permit occurred in Levy County, the building code of which requires a permit be obtained prior to beginning construction. While it is conceivable that Rivers might have been unaware of the newly adopted building code requirement for a permit in the first instance, he had knowledge the second time. His testimony that he did not know that the property was in Levy County is not a defense because a builder can easily learn from an owner in what county the property is located, and it is the contractor's responsibility to comply with all code requirements necessary to construction. Rivers' testimony that he thought the permit had been obtained by his building superintendent or foreman is also no defense because he is ultimately responsible. The nature of this violation in the first instance was technical and did not prevent the necessary inspections; however, in the second instance the failure prevented necessary inspections by the building official. This cannot be considered a technical violation because the owner and public have been denied the protection the code was intended to provide.

   
   

5. Section 468.112(2)(e) provides for disciplinary action for diversion of funds received for completion of the pools which results if the contractor is unable to fulfill the terms of his obligation of contract. Rivers received full payment but did not pay materialmen. Rivers failed to meet his obligations under his contract by providing the owners with a pool at the contract price, and also failed to provide then with a valid affidavit of payment. The result was extremely serious in that liens were placed on the property of both parties. This is a serious violation of Rivers' obligations under the contracts and of his obligations as a pool contractor. The only mitigating factor is that Rivers

did subsequently repay one owner and pay the materialmen in the other instance. Rivers asserted that the escalation in the cost of construction at approximately the time this occurred was a factor in his inability to pay the materialmen. It is possible that construction could have cost more than the contract price; however, Rivers did not introduce any evidence that this occurred on these jobs and in the absence of such evidence, the fact that payment was not made constitutes a prima facie showing that Rivers diverted funds.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Residential Pool Contractor's License and General Contractor's License of Norman Rivers be suspended for a minimum of ninety (90) days and that thereafter be reinstated upon his satisfying the Board of his ability to meet his financial obligations.

DONE and ORDERED this 15th day of September, 1977, in Tallahassee, Florida.

STEPHEN F. DEAN

Hearing Officer

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

(904) 488 9675

COPIES FURNISHED:

Mr. J.K. Linnan Executive Director

Florida Construction Industry Licensing Board

Post Office Box 8621 Jacksonville, Florida 32211

Mr. Norman Rivers

1710 South East 19th Street Ocala, Florida 32670

Docket for Case No: 77-000474

Orders for Case No: 77-000474