STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 78-328

)

MAX E. DUNAWAY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice an administrative hearing was held in the above styled cause beginning at 11:00 a.m. on March 29, 1979, before Delphene C. Strickland, Hearing Officer of the Division of Administrative Hearings, in the Volusia County Courthouse in Deland, Florida.

At the conclusion of the hearing, the Hearing Officer was requested by both parties to withhold issuance of the Recommended Order pending submission of a stipulation and settlement to the Petitioner Board. No written information has been submitted by the Petitioner subsequent to such negotiation, but Petitioner through its Counsel orally informed the Hearing Officer that no settlement was reached.

APPEARANCES

For Petitioner: Barry S. Sinoff, Esquire

2400 Independent Square One Independent Drive

Jacksonville, Florida 32202

For Respondent: Max E. Dunaway, pro se

601 Merrimac Street

Deltona, Florida 32725

ISSUE

Whether the general contractor's license #CG C005245 of Respondent Dunaway should be revoked, and whether a fine of $500.00 should be levied.

FINDINGS OF FACT

1. On or about September 16, 1977, an administrative complaint was served on Respondent Dunaway, advising him that the Petitioner Board would not renew Respondent's delinquent license for a period of two (2) years, that it sought to revoke said license, and that it would levy a fine of $500.00 against him. Respondent requested an administrative hearing.

   (The certified general contractor's license of Respondent, issued by Petitioner Board, expired in 1975, but was renewed by Respondent prior to the hearing.)

   
   

2. On January 31, 1977, Carl A. Posey entered into a contract with Carl Bowen, Jr., an unlicensed builder, to construct a room addition for a contract price of $6,578.00. Subsequent to the commencement of the construction, Posey paid Bowen approximately $4,800.00, some of it ahead of the payment schedule. During the course of construction, there were problems with the plumbing and roof and damage to the lawn in the front yard, and a lien was filed against the Posey property in the amount of $1,282.45. On or about April 1, 1977, Bowen abandoned the project.

   
   

3. Subsequently, on or about April 20, 1977, Respondent Dunaway contacted Posey and stated that he would complete the work on the contract if Posey would pay the balance due on the contract. Posey, not knowing that Respondent had an interest in the project, and having had unsatisfactory transactions with the Respondent in a past construction job, declined to employ him to work on the room addition.

   
   

4. Posey was later informed that the permit to build had been issued to Respondent, and in fact notice was posted at the construction site, although in a place out of view to Posey and unnoticed by Posey or his wife. Posey testified that he would have immediately cancelled the contract had he known Bowen was unlicensed and Respondent had secured the permit. Posy found the permit only after cleaning up construction debris after April 20, 1977.

   
   

5. Respondent Dunaway's general contractor's license was delinquent at the time Respondent secured a permit to build the Posey addition in January of 1977. Thereafter, on October 9, 1978, the Volusia Building Trades Board suspended Respondent's right to pull a permit until after an administrative hearing.

   
   

6. Respondent secured from Bowen approximately $75.00 for the permit to construct the Posey room addition to be built by the uncertified and unregistered contractor, Bowen. No monies were paid by Posey to Respondent for the construction, nor were any of the funds paid to Bowen by Posey shared with Respondent for work on the project. No work was done by Respondent.

   
   

7. No memorandum of law or proposed recommended order was submitted by Petitioner Board. Respondent Dunaway submitted a memorandum of law, and this instrument was considered in the writing of this Order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this Order they have boon specifically rejected as being irrelevant or not having been supported by the evidence.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction of this cause pursuant to Section 120.57, Florida Statutes.

   
   

9. Section 468.112 Revocation or suspension of certificate or registration.-- provides:

   
   

   1. On its own motion or the verified written complaint of any person, the board may investigate the action of any contractor certified or registered under this part;

      however, when any complaint involved a contractor certified or registered under this part for acts or omissions occurring in any area of the state which has a local board, the board shall forward the complaint to the municipality, city, or county where the alleged violation occurred for its action.

      Where no local board exists, the board shall take jurisdiction. The board may take appropriate disciplinary action if the contractor is found to be guilty of or has committed any one or more of the acts or omissions constituting cause or disciplinary action set out herein or adopted as rules or regulations by the board.

   2. The following acts constitute cause for disciplinary action: . . .

      1. Aiding or abetting any uncertified or unregistered person to evade any provision of this part.

   3. The board is authorized to take the following disciplinary action:

      1. Revoke a certificate or registration.

      2. Impose an administrative fine or penalty not to exceed $500, which shall be recoverable by the board only in an action at law . . .

         
         

10. Respondent Dunaway has violated the foregoing statute by securing a permit in his name for the use and benefit of an uncertified and unregistered contractor.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Petitioner Board revoke the general contractor's license of Respondent and impose a fine not exceeding $500.00.

DONE and ORDERED this 30th day of August, 1979, in Tallahassee, Leon County, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Barry S. Sinoff, Esquire 2400 Independent Square One Independent Drive

Jacksonville, Florida 32202

Mr. Max E. Dunaway 601 Merrimac Street

Deltona, Florida 32725

================================================================= AGENCY FINAL ORDER

=================================================================

December 26, 1979 Honorable Delphene C. Strickland

Hearing Of ficer

Division of Administrative Hearings Room 101-Collins Building Tallahassee, Florida 32301

Re: Florida Construction Industry Licensing Board vs. Max E. Dunaway - Case No. 78-328

Dear Mrs. Strickland:

In connection with the above referenced case, I am enclosing the following items:

1. Copy of page 3 of the FCILB minutes of the regular meeting of November 16, 1979 at which time final action was taken dismissing the charges against Mr. Dunaway. The minutes of this meeting were approved at the December, 1979 meeting.

   
   

2. Copy of letter dated December 13, 1979 from John Henry Jones, President, to Max E. Dunaway notifying him of the Board's action. THIS LETTER SERVES AS WRITTEN

DOCUMENTATION OF THE BOARD'S FINAL ORDER IN THIS MATTER.

At the board meeting on November 16, 1979, Mr. Dunaway's attorney presented a transcript of a sworn statement given by the complaining witness, Carl Posey, and it is my feeling that the board members were very favorably impressed by the fact that Mr. Dunaway had finally made full restitution to Mr. Posey. I have enclosed a copy of that transcript for your file.

You are hereby requested to close your file on this matter with the continued appreciation of the Board and the Department of Professional Regulation.

With kind personal regards, I am

Very truly yours,

BARRY S. SINOFF

enclosures

cc: Fred Wilsen, Esquire

C. J. Hoskinson, Jr.

Docket for Case No: 78-000328

Orders for Case No: 78-000328