STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 78-2103

)

ROBERT J. NALI, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a hearing was held on February 16, 1979, in the Grand Jury Room on the second floor of the Lake County Courthouse, Taveres, Florida, at 1:00 o'clock p.m. before Delphene C. Strickland, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Michael Egan, Esquire

217 South Adams Street Post Office Box 1386

Tallahassee, Florida 32301

For Respondent: Joan L. Wollin, Esquire

Post Office Box 236 Leesburg, Florida 32748

ISSUES

Whether the certified general contractor's licenses and the registered roofing contractor's licenses held by Petitioner Robert J. Nali should be revoked.

FINDINGS OF FACT

1. The certified General Contractor's License number CG-C007395 and CG- CB07395, and the Registered Roofing Contractor's License number RC0028067, issued to Robert J. Nali are active and current.

   
   

2. Respondent entered into a contract with Mr. Charles Rapp on June 1, 1977, to have a house constructed for the contract price of $29,500. The home was financed through the First Federal Savings and Loan Association of Leesburg for the sum of $27,730. Disbursed directly to Respondent Nali in five different draws was $16,638. These disbursements left a total of $11,092 in the bank account for completion of the home. Two bills remain unpaid, one for $500 and one for $560.92. Cost of the home was approximately $2,035.87 above the contract price.

3. Two liens were filed against Mr. Rapp's property which were satisfied out of construction funds from the bank, one by Adobe Building Center, Inc., in the amount of $1,315 and one by Branch Garage Door Sales in the amount of

   $171.38.

   
   

4. Respondent Nali admitted that the Kennedy Company supplied air conditioning duct work for the home, and that Yale Ogron Builders provided labor as a subcontractor; that he was paid for the supplies provided by the Kennedy Company on the second drawing, and for the labor provided by Yale Ogron Builders on the fourth draw. Respondent Nali admitted he did not pay these concerns although he did receive the funds for the material and labor supplied.

   
   

5. Mr. Rapp fired Mr. Nali and completed the home himself.

   
   

6. There was no date of completion in the contract, but Respondent did not actively pursue the completion.

   
   

7. Respondent Nali entered into a contract with Mr. Charles Fosmoen in June of 1977, for the purpose of constructing a home. The contract price was

   $28,150. The home was financed through the First Federal Savings and Loan Association of Leesburg for the sum of $26,471. Disbursed to Nali under the contract was $19,845.75. The disbursement left a total of $6,625.25 to complete the house. Expended to complete construction of the home in accordance with the contract was $9,351.08, an excess of $2,725.83 of the contract price.

   
   

8. A claim of lien was filed against the Fosmoen home by Lake Pre-Hung Door Manufacturing Company, Inc.

   
   

9. Mr. Nali was fired from the job and, although no time was designated in the contract for completion, Respondent Nali did not actively pursue the construction of the home.

   
   

10. A contract was entered into with Mrs. Ellen Haffey on November 16, 1977, to construct the shell of a home for the contract price of $17,600.

    
    

11. Mrs. Haffey paid the sum of $10,000 directly to Respondent and expended a sum of $6,625.93 to complete the house as contracted. She has bills remaining unpaid in the amount of $3,620.50. Spent by Mrs. Haffey above the contract price was $2,648.43.

    
    

12. Mrs. Haffey, a contractor, dismissed Mr. Nali, and the house is not yet completed.

    
    

13. A claim of lien was filed against Mrs. Haffey's property on behalf of Leesburg Building Materials, Inc., in the amount of $4,384.47. The lien was for materials which had been delivered to the project site and should have been paid for out of the sum previously paid to Respondent. Mrs. Haffey paid $4,000 for the third draw instead of $6,000, as called for by the contract, a fact that prevented Respondent from timely payment of bills.

    
    

14. A lien was filed on Mrs. Haffey's property by Keeman Brick of Central Florida, Inc., in the amount of $1,238.03.

    
    

15. Respondent admitted he was charged with a criminal violation of misapplication of funds but pled nole contendere, and adjudication was withheld. A document entitled "Stipulation on Motion for Clarification and Modification" was received into evidence. The document constitutes an admission of Respondent

    that restitution was due from him to the complainants, Mr. and Mrs. Charles Rapp, Mrs. and Mrs. Charles Fosmoen, and Mrs. Ellen Haffey.

    
    

16. Petitioner contends that Respondent diverted funds he had received to pay two subcontractors for the Rapp home; that although he may Waive underbid the Rapp and Fosmoen he later also underbid the Haffey contract, which caused these consumers inconvenience and loss and violated a contractor's position of trust.

    
    

17. Respondent contends that he could have finished each of the houses within the contract terms, since time was not of the essence. He contended that increased building material costs contributed to the delay of the housing construction, and that he could have finished the houses were he not fired from each of the construction projects. Respondent denied that he had diverted any funds from construction projects.

    
    

18. The Hearing Officer further finds:

    
    

    1. Both Mr. and Mrs. Rapp and Mr. and Mrs. Fosmoen gave Respondent Nali notice that they were dissatisfied because Mr. Nali was not actively finishing the construction of their respective homes. Both gave him notice and

       an opportunity to recommence active construction, which he did not resume;

    2. The dates of completion of homes were

       not specified in the contracts, but oral promises were given that the homes would be completed within a reasonable time. The delay caused each complainant much inconvenience;

    3. Liens were filed against these homes for nonpayment of bills. Respondent did not pay the liens;

    4. Each of the three homes cost more than the contracted price before said homes were completed by the parties contracting with Mr. Nali. Mr. Nali received money from Mr. Rapp for work and supplies provided by the Kennedy Company and Yale Ogron Builders, yet Respondent did not pay for these materials or work; and

    5. The complainants were justified in dismissing Respondent.

       
       

       CONCLUSIONS OF LAW

       
       

19. Section 468.112 Revocation or suspension of certificate or registration.-- provides in part:

    
    

    (2) The following acts constitute cause for disciplinary action:

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

20. The evidence shows that there were many unpaid bills by the contractor, which bills had been and must be paid by the homeowners.

    
    

21. Money was received for materials and labor on the Rapp home to pay subcontractors, but these subcontractors were not paid, in violation of the foregoing statute. The diversion of funds caused the contractor to be unable to fulfill the terms of his contract.

    
    

22. Respondent requested this administrative hearing, although no complaint was forwarded to the local hoard and no objection was made at the hearing. The Petitioner and this Hearing Officer has subject matter jurisdiction to prosecute the case and to hear it.

RECOMMENDATION

Suspend the license of Respondent Robert J. Nali for a period of six months.

DONE and ORDERED this 13th day of April, 1979, in Tallahassee, Leon County, Florida.

COPIES FURNISHED:

Michael Egan, Esquire

217 South Adams Street Post Office Box 1386

Tallahassee, Florida 32302

Joan L. Wollin, Esquire Post Office Box 236 Leesburg, Florida 32748

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32301

(904) 488-9675

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

================================================================= FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD,

Petitioner,

vs. DIVISION OF ADMINISTRATIVE

HEARINGS, DOCKET NO. 78-2103

ROBERT J. NALI,

Respondent.

/

FINAL ORDER OF

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

This cause came before the FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD at its regular meeting on June 22, 1979.

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. Respondent was notified of the meeting so that respondent or counsel might appear before the Board. Respondent did appear and was represented by counsel, Mr. Gary Peacock.

The FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD on June 22, 1979, after

having reviewed the record compiled in the administrative hearing, including a complete transcript thereof, adopted the findings of fact and conclusions of law set forth in the recommended order dated April 13, 1979, but rejected the recommendation of the Hearing Officer, which was to suspend respondent's license for a period of six months. By motion duly made and seconded, the FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD voted to revoke all three of respondent's licenses with no reinstatement for two years and then only when full restitution has' been made and to assess an administrative fine of $500.00. It is therefore,

ORDERED that the certified general contractor's licenses, number CG-C007395 and number CG-CB07395, and the registered roofing contractor's license, number RC 0020067, all issued to respondent, ROBERT J. NALI, be and are hereby revoked, with the provision that they are not be be reinstated for a period of two years and then only when full restitution has been made in the amounts specified and to the individuals specified in petitioner's Exhibit 15, "Stipulation on Motion for Clarification and/or Modification" an exhibit duly entered into the record of this administrative proceeding. It is further ordered that respondent, ROBERT J. NALI, pay an administrative fine of $500.00.

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.

THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

BY John Henry Jones, President

DATED this 9th day of July, 1979.

Docket for Case No: 78-002103

Orders for Case No: 78-002103