STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1441

)

ROY G. RUNKEN, )

)

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 this case on December 28, 1977, in Coral Gables, Florida.

APPEARANCES

For Petitioner: Barry Sinoff, Esquire

1010 Blackstone Building

Jacksonville, Florida 32202

For Respondent: Roy G. Runken

Appearing in proper person c/o Triple "R" Construction 1242 Everette Road

Edgewood Arsenal Edgewood, Maryland 21010

ISSUE

The Florida Construction Industry Licensing Board, Petitioner herein, seeks to revoke the general contractor's license of Roy G. Runken, Respondent herein, based on allegations set forth in specific detail hereinafter, that he (Respondent) engaged in acts and/or conduct violative of the Code of Metropolitan Dade County, Chapter 10, Sections 10-22(a)(g), which amount to specific violations of Chapter 468.112(2)(a) and (e).

Based on the entire record compiled herein including the demeanor of the witnesses while testifying, I make the following:

FINDINGS OF FACT

1. Roy G. Runken (Respondent) holds certified general contractor's license no. CGC002558 which is presently current and inactive. On September 21, 1973, Respondent, d/b/a Triple "R" Construction entered into a contract with Mrs. Lydia E. Walker to build a funeral home at 11000 SW 216th Street, Goulds, Florida. Mrs. Walker applied for and secured a construction mortgage loan from the First National Bank of Homestead, Florida, in the amount of $105,000. She

   additionally deposited $7,000 of her funds into the construction draw account of which approximately $103,701.55 was withdrawn either by Respondent or by the bank to satisfy bills which were paid directly to suppliers by the bank. When construction was completed, the entire funds available in the construction draw account were exhausted plus an additional $600. which was paid by the owner (Mrs. Walker). (Testimony of Shirley Pluto, Vice President and senior loan officer of First National Bank of Homestead)

   
   

2. Mrs. Walker testified and indicated that she met Respondent through one of his former employees who had served as a building code inspector. She testified that she entered the construction agreement with Respondent because she was desirous of obtaining quality construction work and Respondent enjoyed a good reputation in the community as a quality builder. The proposal submitted to the bank by Respondent and Mrs. Walker contained an agreed upon contract price of $114,500. A later executed agreement contained an amount of $72,980. (See Petitioner's Exhibits 4 and 5).

   
   

3. Sometime during May, 1974, Respondent advised Mrs. Walker that his National Guard company was being reactivated and that he was leaving the area. Fred Runken, Respondent's son, took over the project and Respondent advised Mrs. Walker that his son (Fred) was as qualified as he. (Testimony of Mrs. Walker). She learned approximately one year later that Respondent's son was not "qualified". During the course of the construction, Mrs. Walker voiced numerous complaints concerning the quality and progress of the construction. (See Petitioner's Composite Exhibit 7). As an aside, it was noted that Mrs. Walker received a judgement from Respondent in the amount of $25,000 plus costs. (See Petitioner's Exhibit 8).

   
   

4. During April, 1974, Respondent was issued a permit to construct the funeral home for Mrs. Walker. On May 6, 1974, the foundation was poured without incident. During July, 1974, the Dade County Area encountered a steel strike which created a problem for Respondent in obtaining "bar joists". During the construction of the funeral home, Respondent's son served as job foreman under the supervision of two licensed certified general contractors (Messrs. Benton and Habday [phonetic]). The evidence reveals that the plan as submitted by Mrs. Walker had to be modified in several aspects including joist beams, store front plans, all of which had to be revised by an architect. Respondent expressed difficulties with Mrs. Walker respecting allowances and selections and that when selections were made by Mrs. Walker, she failed to diligently pursue which in some instances resulted in price increases. He further testified to changes in brick work, cabinetry and the air conditioning systems. Additionally, the evidence reveals that all liens and/or notice of intent to file liens were satisfied. As best a can be determined by the record herein, it appears that Mrs. Walker only paid an additional $600 over and above the agreed upon price which in terms of the changes submitted to Respondent, would appear to be minimal. Moreover, it is uncontroverted that the contractor was forced from the building before construction was completed and that all draws were made per agreement with Mrs. Walker and the bank. Finally, there was no testimony or evidence of any municipal code violations. 1/ Based on the foregoing, I shall conclude and recommend that insufficient evidence was offered to establish that the Respondent engaged in any acts and/or conduct violative of Chapter 10 of the Code of Metropolitan Dade County or Chapter 468, Florida Statutes, as alleged.

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Chapter 120.57, Florida Statutes.

   
   

6. The parties were noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

7. The authority of the Petitioner (Florida Construction Industry Licensing Board) is derived from Chapter 468, Florida Statutes.

   
   

8. Insufficient evidence was offered to establish that the Respondent engaged in acts and/or conduct violative of Chapter 10, Sections 10-22(b) and

   (g) of the Code of Metropolitan Dade County. Rather it appears that the Respondent endeavored to fulfill his contractual obligations despite his emergency call into the armed services and all testimony respecting the abandonment allegation supports the contention advanced by the Respondent that his agent was forced from the building site.

   
   

9. Insufficient evidence was offered to establish that the Respondent engaged in acts and/or conduct violative of Chapter 468.112(2)(a) and (b) , Florida Statutes, as alleged.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the complaint filed herein be dismissed in its entirety.

RECOMMENDED this 10th day of February, 1978, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

ENDNOTE

1/ In this regard, judicial (administrative) notice was taken of Chapter 10 of the Code of Metropolitan Dade County and Chapter 468, Florida Statutes.

COPIES FURNISHED:

Barry Sinoff, Esquire 1010 Blackstone Building

Jacksonville, Florida 32202

C. J. Hoskinson, Jr.

Chief Investigator

Florida Construction Industry Licensing Board

Post Office Box 8621 Jacksonville, Florida 32211

Roy G. Runken

c/o Triple "R" Construction 1242 Everette Road

Edgewood Arsenal Edgewood, Maryland 21010

J. K. Linnan Executive Director

Florida Construction Industry Licensing Board

Post Office Box 8621 Jacksonville, Florida 32211

Docket for Case No: 77-001441

Orders for Case No: 77-001441