STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 78-103

)

MARTIN R. MCANDREW, )

)

Respondent. )

)

RECOMMENDED ORDER

This hearing was held pursuant to notice in Pensacola, Florida, on May 17, 1978. This hearing was originally scheduled for 9 a.m. on May 17, 1978, but because of travel connections was continued until 10 a.m. Counsel for the petitioner was present at the site of the hearing from 9 a.m. until the commencement of the hearing. Due to weather conditions delaying the Hearing Officer's flight, the hearing did not commence until 11 a.m. However, the respondent was not present and the counsel for the Florida Construction Industry Licensing Board represented that the respondent had not been present at any time.

The petitioner presented its case based upon the administrative complaint previously served on the respondent, Martin R. McAndrew. That administrative complaint alleged that the respondent had violated Section 468.112(2)(a)(e) and

1. by wilfully disregarding building codes, diverting funds received for a specific construction project, and abandoning a construction project. The petitioner presented evidence in support of the allegations in its administrative complaint. The respondent was not present.

   
   

   APPEARANCES

   
   

   For Petitioner: Michael E. Egan, Esquire

   Attorney at Law

   217 South Adams Tallahassee, Florida

   
   

   For Respondent: Was not present nor represented by counsel.

   
   

   FINDINGS OF FACT

   
   

   1. Martin R. McAndrew is a licensed general contractor and licensed pool contractor holding general contractor's license number RG 0020560 and pool contractor's license number RP 0024861.

      
      

   2. Martin R. McAndrew was provided notice in accordance with the applicable rules and statutes of the formal hearing to consider the allegations of the administrative complaint filed against him by the Florida Construction Industry Licensing Board.

   3. Ray Dowell identified a notice of violation served on McAndrew by the Florida Construction Industry Licensing Board which was received into evidence as Exhibit 1. This notice of violation related to the construction undertaken by McAndrew for Lynn McMillan.

      
      

   4. Melvin C. Huebschman entered into a contract with McAndrew for the construction of a pool. The contract price for the pool was $5,000.00. Huebschman paid McAndrew $2,000 in two payments. The first payment was in the amount of $300.00 to cover the cost of transportation of the pool materials to Pensacola, Florida. The second payment in the amount of $1,700.00 was for the first phrase of construction on the pool. Subsequent to receiving payment McAndrew provided no materials or labor pursuant to the contract. Huebschman talked with McAndrew concerning completion of the work pursuant to the contract and McAndrew failed to perform under the contract throughout the spring and summer of 1977. In August, 1977, Huebschman wrote McAndrew advising him that it had been over ninety days since they entered into the contract and McAndrew had not performed any services pursuant to the contract. Huebschman gave McAndrew thirty days within which to commence work. McAndrew did not respond to this notice. McAndrew did not return any portion of the $2,000.00 paid to him by Huebschman.

      
      

   5. Lynn McMillan entered into a contract, identified as a portion of Exhibit 4, with McAndrew. This contract called for the construction of a pool for a contract price of $5,800.00. Pursuant to that contract, McMillan paid to McAndrew $4,350.00. Subsequent to payment of the third draw, McAndrew failed to complete the job. The last work performed by McAndrew on this construction project was on May 17, 1977. Prior to May 17, 1977, all materials for completing the pool were on the site and installed. Before abandoning the project, McAndrew removed from the building site all portions of the pool construction except the poured concrete and vinyl lining. McMillan subsequently entered into a contract with Surf Side Pools for the completion of the pool.

The contract price was $1275.00, which included $800.00 for equipment and materials necessary to complete the pool. In addition, McMillan found it necessary to pay $230.00 to O'Brian Enterprises to remove stumps and spoil left on the construction project by McAndrew. McMillan also paid $200.00 to Warrick Electric Company to satisfy a claim by Warrick for materials and labor provided by Warrick to McAndrew. Finally, American Ready Mix Concrete filed a claim of lien in the amount of $436.80 against the property of Lynn McMillan for labor and materials provided under the contract with McAndrew which McAndrew did not pay. On May 27, 1977, McAndrew wrote a letter to McMillan advising that he would like the opportunity to finish the pool and was invited to do so.

However, McAndrew did not return to the construction site or provide any further labor or materials pursuant to the contract.

1. Sarah White Witt entered into a contract with McAndrew for the construction of a pool at a contract price of $4,500.00. Witt paid McAndrew

   $500.00; however McAndrew did not finish the pool construction. Subsequently, Witt was advised by the materialmen and labors of various liens against her property totalling $2,200.00.

   
   

2. Daryl Jernigan, electrical and pool inspector for Escambia County, inspected the work done by McAndrew on the McMillan pool. He found that the pool had been filled with water but that the equipment necessary to recirculate and chlorinate the water had been removed from the pool, thereby permitting the water to stagnate. This inspection was conducted in June, 1977. Prior to that time, Jernigan had found it necessary to order work on a pool begun by McAndrew

   halted because McAndrew had failed to acquire a building permit prior to commencing construction.

   
   

   CONCLUSIONS OF LAW

   
   

3. Martin R. McAndrew is charged with violation of Section 468.112(2)(a)(e) and (h) of the Florida Statutes. The evidence presented at hearing shows that McAndrew wilfully or deliberately disregarded the applicable building codes of the City of Pensacola. The evidence further shows that McAndrew abandoned construction on two projects and diverted funds paid to him for the prosecution or completion of three construction projects and did not fulfil his contractual obligations. This constitutes violation of the cited statute.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that Florida Construction Industry Licensing Board revoke the licenses of Martin R. McAndrew as a general contractor and as a pool contractor, and further fined a sum of $500.00.

DONE and ORDERED this 24th day of May, 1978, in Tallahassee, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

J. K. Linnan Executive Director

Florida Construction Industry Licensing Board

P. O. Box 8621

Jacksonville, Florida 32211

Michael E. Egan, Esquire Attorney at Law

217 South Adams Tallahassee, Florida

Martin R. McAndrew 3313 N. 17th Avenue

Pensacola, Florida 32502

Docket for Case No: 78-000103

Orders for Case No: 78-000103