STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1739

) JAMES A BYRINGTON d/b/a TREND ) CORPORATION OF FLORIDA, INC., )

)

Respondent. )

)

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, K. H. Ayers, held a public hearing in the above- styled case on November 21, 1977, at Bronson, Florida.

APPEARANCES

For Petitioner: Barry A. Sinoff, Esquire

1010 Blackstone Building

Jacksonville, Florida 32202

For Respondent: James A. Bryington

1324 Gunn Highway, Route 2

Odessa, Florida 33556 RECOMMENDED ORDER

By Administrative Complaint filed September 6, 1977, the Florida Construction Industry Licensing Board (FCILB) seeks to revoke the certified general contractor's licenses CG COO 1353 and CG CA 01353 and the registered pool contractor's license No. RP 0021854 of James A. Bryington d/b/a Trend Corporation of Florida, Inc. (Trend). As grounds therefore it is alleged that Bryington used his general contractor's license to qualify Trend as a licensed general contractor without having active participation in the management, operation or control of Trend in violation of Section 468.112(2)(c), F.S. A second count alleged that Trend diverted funds or property received for prosecuting the work on the residence contracted for construction with Mr. and Mrs. Gill and as a result was unable to pay the subcontractor's and/or material men resulting in liens being filed against the property.

Seven witnesses, including Respondent were called by Petitioner and nine exhibits were admitted into evidence. When called, Respondent was advised of his testimonial rights by the Hearing Officer and he elected to testify.

FINDINGS OF FACT

1. James A. Bryington is duly licensed by the FCILB as a general contractor aid as a registered pool contractor holding licenses c 00 1353 and RP 0021851 respectively.

2. In late 1974 or early 1975 he was approached by officers of Trend to qualify their corporation as a duly licensed contractor. At the time Trend was bidding on school projects arid offered Bryington control of one of the schools if their bid was successful plus a small percentage ownership of Trend.

   
   

3. On March 4, 1975, Bryington submitted Request for Change of Status (Exhibit 9) to FCILB with the necessary attachments to qualify Trend as a licensed corporate contractor in Florida and Trend was duly certified.

   
   

4. Part ownership of Trend was never given to Bryington and no evidence was presented what, if any, other consideration was received by Bryington for his role in qualifying Trend as a licensed general contractor.

   
   

5. The school bid was not obtained by Trend and at no time thereafter was Bryington involved in any operations or supervision of the construction projects undertaken by Trend.

   
   

6. By contract dated March 31, 1976, Hal H. and Carolyn S. Gill entered into a contract with Trend to construct a residence for them. The contract was executed by Edwin Porter, the president of Trend, on behalf of the contractor. Bryington was unaware of this contract, or of several other construction contracts entered into by Trend, until after the complaint filed herein had been received.

   
   

7. Following routine delays in completion of the residence, it was finally completed; and, prior to making the final draw, Porter executed an affidavit of no lien (Exhibit 4) which, when presented to Gill and the bank loaning the money, resulted in the final payment being made. A few days thereafter the Gills learned that at least one contractor and one material man had not been paid in full.

   
   

8. Claim of liens (Exhibits 5 and 6) were subsequently filed against Gill's property.

   
   

9. Porter was initially contacted by Bryington after the latter became aware of the problem and told Porter to take care of the liens. A few days later Porter advised Bryington that the liens had been taken care of.

   
   

10. The subcontractor and the material man made several efforts to collect from Porter the sums owed them for work and materials but without success.

    
    

11. Porter has been unavailable and his whereabouts unknown for several months to all persons who testified at these proceedings.

    
    

12. No evidence was presented that the draws collected to complete the Gill contract were used on another project or diverted to any other purpose. The only evidence offered was that upon completion of the dwelling and collection of the final draw subcontractors and material men were unpaid.

    
    

13. Evidence was presented that Trend failed to satisfy a subcontractor on another residence constructed for Norman Scoggins and Scoggins had to pay the subcontractor to keep from having a lien filed against his property. Since no reference was made to this transaction in the Administrative Complaint this evidence is irrelevant to these proceedings and is disregarded.

    CONCLUSIONS OF LAW

    
    

14. Section 468.112, F.S., provides in pertinent part that the Board may revoke or suspend the registration of a licensed contractor upon a finding that the contractor has been guilty of:

    
    

    "(2)(c) Knowingly combining or conspiring with an uncertified or unregistered person by allowing one's certificate or registration to be used by any uncertified person within intent to evade the provisions of this part. When a certificate holder or registrant allows his certificate or registration to be used by one or more companies without having any active participation in the operations, manage- ment or control of said companies, this act constitutes prima face evidence of an intent to evade the provisions of this part.

    
    

    (e) Diversion of funds or property received for prosecution of completion of a specified con- struction project or operation where as result of the diversion the contractor is or will be unable to fulfill the terms of his obligation of contract."

    
    

15. Here the evidence was unrebutted that Bryington used his general contractor's license to qualify Trend as a corporate contractor and thereafter took no active participation in the operations, management or control of Trend Corporation. In fact the evidence as presented by Brington would indicate that he participated in none of Trend's activities and was unaware of the construction contracts entered into by Trend.

    
    

16. No evidence was presented that Trend or Bryington committed any violations of the above quoted statutory provisions with respect to Bryington's swimming pool contractor's license. No evidence or argument was presented that the pool license merged with the general contractor's license held by Bryington. Since the complaint alleges that Bryington holds both licenses and this was not contested at the hearing it must be presumed that these licenses did not and do not merge but remain separate and distinct licenses held by Bryington.

    
    

17. As noted above no evidence of misconduct involving the swimming pool license was presented. Absent violations of the statute involving the swimming pool license and without merger of this license into the general contractor's license, no action against the swimming pool license can be taken.

From the foregoing it is concluded that James A. Bryington violated Section 468.112(2)(c), F.S., in conspiring with Trend to allow his license to be used by Trend; that there is insufficient evidence to sustain a findings that Trend diverted funds in violation of Section 468.112(2)(e), F.S.; and that no evidence was presented from which disciplinary action against Bryington's swimming pool contractor's license can be taken. It is therefore

Recommended that James A. Bryington, and Trend Corporation of Florida, Inc. be found guilty of violation of Section 468.112(2)(c), F.S., and that they be found not guilty of all other charges. It is further

Recommended that the general contractor's licenses of James A. Bryington and Trend Corporation of Florida, Inc. No. CG COO 1353 and CG CAO 1353 be revoked.

DONE and ENTERED this 30th day of November, 1977, in Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Barry A. Sinoff, Esquire 1010 Blackstone Building

Jacksonville, Florida 32202

James A. Bryington 1324 Gunn Highway

Route 2

Odessa, Florida 33556

Docket for Case No: 77-001739

Orders for Case No: 77-001739