Judges: JAMES E. BRADWELL
Agency: Department of Business and Professional Regulation
Latest Update: Nov. 09, 1977
Summary: There is no proof that Respondent diverted or failed to qualify the corporation.
77-0672.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA CONSTRUCTION INDUSTRY ) LICENSING BOARD, )
)
Petitioner, )
)
vs. ) CASE NO. 77-672
)
EDWARD D'ALESIO, 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 May 17, 1977, in Ft. Lauderdale, Florida.
APPEARANCES
For Petitioner: Barry Sinoff, Esquire
1010 Blackstone Building
Jacksonville, Florida 32202
For Respondent: Mr. Edward D'Alesio, Jr., Appearing PRO SE 3760 North 55th Avenue
Hollywood, Florida 33010
By administrative complaint filed March 7, 1977, the Florida Construction Industry Licensing Board (hereinafter sometimes referred to as the Board or the Petitioner), seeks to revoke the building contractor's license of Edward D'Alesio, Jr., (hereinafter sometimes referred to as the Respondent). As grounds therefor, it is alleged that Edward D'Alesio, Jr., pulled building permits under his individual license for the use of the D.R.G. Builders, Inc., which he nor any other contractor qualified and that Respondent entered into a contract with Robert Edward Wernley to construct a home and diverted funds received from the Wernley's to other projects. By these acts, violations of 468.107(3)(c) and 468.112(2)(e), Florida Statutes, are alleged. Based upon my observation of the witnesses and their demeanor while testifying, I make the following:
FINDINGS OF FACT
Edward D'Alesio, Jr., is a registered general contractor with the Board and holds license no. RG00A3370.
Pursuant to an agreement signed on January 26, 1976, between Respondent and Mr. Wernley, Respondent agreed to construct a home for Mr. Wernley for a price of $39,500.00. On April 21, 1975, Mr. Wernley gave Respondent a check for
$2,000 made payable to "D.R.G. Builders Trust Fund Account" which was deposited in the account of D.R.G. Builders. According to the terms of the agreement
entered into by Mr. Wernley and Respondent, construction of the home was to be completed within 120 days. Evidence reveals that substantial progress was made toward construction of the Wernley home during August and September, 1975, however, little if any progress was made during late 1975. Mr. Wernley registered complaints to Respondent about the progress of construction Inasmuch as he (Wernley) had secured permanent financing at a favorable Interest rate which was due to expire during January or February, 1976. On March 11, 1976, Mr. Wernley demanded the return of his $2,000 security deposit which Respondent advised, by letter dated March 23, that he was unable to return due to financial difficulties. (See Petitioner's Exhibit #5) However, Respondent advised Mr.
Wernley that he "would like to offer [him] the model home which was similar ... at the purchase price we had agreed upon." Respondent also agreed to assist in securing a competitive mortgage. Mr. Wernley was allowed five days to signify his acceptance of the model home which he (Mr. Wernley) rejected.
Mr. Crass, Secretary-Treasurer for D.R.G. Builders, Inc., testified that the deposit monies used as mortgage commitments were issued and that at no time were monies diverted from one project to complete construction for other projects.
Evidence reveals that during November, 1976, the Board through its investigator, Mr. Wallace Norman, issued a warning to Respondent for his failure to qualify D.R.G. Builders, however, Respondent took no action to correct this because at this juncture, the corporation had been dissolved by the State of Florida.
Respondent also testified that the project was abandoned inasmuch as he was unable to secure additional financing from Southeast Mortgage Company. He testified that he had approximately 13 houses under construction and Southeast Mortgage Company shut off funds and demanded full payment of a $420,000 construction loan obligation. He testified that he needed approximately $60,000 to complete the houses under construction but was unable to secure additional financing. He testified further that the Wernley home was completed except the trim work during January of 1976. He advised Mr. Wernley during January, 1976, of the firm's cash flow problems and in an effort to amicably settle their differences, offered the model home which, according to his testimony, was equal or better, in all respects, than the home he contracted to build for the Wernleys. Respondent testified that he recently filed bankruptcy which should be final on June 20, 1977. Respondent takes the position that since he converted none of the money deposited by the Wernleys, it is D.R.G. Builders, Inc. that owes the Wernleys $2,000. However, it was noted under the bankruptcy proceeding liability list, that Wernley was a possible business obligation.
Respondent testified further that he was advised by the Board's predecessor investigator that it was permissible to pull permits as an owner- builder and that Cooper City, the locality which issued the permits, through its building department, advised that the procedure which D.R.G. had utilized for at least 18 months was proper and acceptable.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action.
The authority of the Board is derived from Chapter 468, Florida Statutes.
The parties were properly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.
Insufficient evidence was offered to establish that the Respondent diverted funds from the Wernley project to other projects within the meaning of Chapter 468.112, Florida Statutes. Subsection 468.112(2), F.S., provides grounds for the Board to revoke or suspend a certificate of registration based on diversion. It suffices to say that two conditions must occur to revoke or suspend a registration certificate pursuant to this statutory provision. First, It must be shown that the funds were diverted and secondly, as a result thereof the contractor would be unable to fulfill the terms of the contract. There was no evidence of any proof of any diversion of funds and therefore there can be no violation herein of the above quoted statute. I therefore recommend that this allegation of he complaint be dismissed.
Insufficient evidence was offered to establish that the Respondent engaged in conduct violative of Chapter 468.107(3)(a), Florida Statutes, as alleged. Chapter 468.107, Florida Statutes, outlines the duties and obligations of persons electing to operate as a contractor. Subsection 468.107(2), F.S., provides in pertinent part that "if the applicant proposing to engage in contracting is a partnership, business, business trust or other legal entity, the application shall state the name of the ... corporation and of its officers and directors. The registration or certification, when issued upon application of a business organization, shall be in the name of such business organization and the name of the qualifying individual or individuals shall be noted thereon." Respondent's testimony reveals that he made no attempt to qualify
D.R.G. Builders inasmuch as when he was advised of his failure to comply with the registration provisions of Chapter 468, F.S., the corporation had already bean dissolved. Moreover, there was no evidence offered to establish that Respondent was obligated in any manner to qualify D.R.G. Builders with the Board within the meaning of 468.107(2), F.S. In these circumstances, I shall therefore recommend that the administrative complaint filed herein be dismissed in its entirety.
RECOMMENDATION
Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the administrative complaint filed herein be dismissed in its entirety.
RECOMMENDED this 30th day of June, 1977, in Tallahassee, Florida.
JAMES E. BRADWELL
Hearing Officer
Division of Administrative Hearings
530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
COPIES FURNISHED:
Barry Sinoff, Esquire 1010 Blackstone Building
Jacksonville, Florida 32202
F. F. Mallard, Chief Investigator Florida Construction Industry Licensing
Board
Post Office Box 8621 Jacksonville, Florida 32211
Mr. Edward D'Alesio, Jr. 3760 North 55th Avenue Hollywood, Florida 33010
================================================================= AGENCY FINAL ORDER
================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD
FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD,
Petitioner,
DIVISION OF ADMINISTRATIVE
vs. HEARINGS, DOCKET NO. 77-672
EDWARD D'ALESIO, JR., RG 00A3370
3760 North 55th Avenue Hollywood, Florida 33010,
Respondent.
/
FINAL ORDER OF
FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD
This cause came before the FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD at its regular meeting on October 7, 1977.
Respondent was sent the Hearing Officer's findings and recommendations and was given at least 10 days to submit written exceptions to the recommended order. Each Board member was provided a complete transcript of the proceedings of the administrative hearing prior to the meeting. Respondent was notified of the meeting so that respondent or counsel might appear before the Board.
Respondent did not appear.
The FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD on October 7, 1977 by
motion duly made and seconded voted to revoke the registered general contractor's license of Edward D'Alesio, Jr. It is therefore,
ORDERED that the registration of respondent EDWARD D'ALESIO, JR., Number RG 00A3370 be and is hereby revoked.
Respondent is hereby notified that he has 30 days after the date of this final order to appeal pursuant to Chapter 120, Florida Statutes, and the Florida Appellate Rules.
Dated this 18th day of October, 1977
FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD
BY:
JOHN HENRY JONES, President
Docket for Case No: 77-000672
Orders for Case No: 77-000672
