STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) PROFESSIONAL REGULATION, ) FLORIDA CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1941

)

FRANK DANIELE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, but its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on March 20, 1900, in Fort Myers, Florida.

APPEARANCES

For Petitioner: Barry S. Sinoff, Esquire

2400 Independent Square One Independent Drive

Jacksonville, Florida 32202

For Respondent: Frank Daniele, Appearing Pro Se

3326 North Key Drive, Apartment D-5 North Fort Myers, Florida 33903

By its Administrative Complaint filed herein on July 6, 1979, the Florida Construction Industry Licensing Board (herein sometimes referred to as the Petitioner or the Board) seeks to revoke the Respondent's registered general contractor's license, based on conduct which will he set forth hereinafter in specific detail. The Board also moves to refuse to reissue Respondent's license until Respondent furnishes the Board evidence that he is in compliance with the Lee County Construction Board; has furnished restitution to the consumer who is set forth in the Administrative Complaint filed herein and seeks to impose an administrative fine in the amount of $500.00.

ISSUE

The issue posed for decision herein is whether or not the Respondent has engaged in conduct which warrants the Board to take disciplinary action as set forth in its Administrative Complaint.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, arguments of the parties and the entire record compiled herein, the

following relevant facts are found. The pertinent complaint allegations are that:

1. Respondent willfully and deliberately disregarded and violated the building codes or laws of this state or its cities, counties or municipalities.

   
   

2. Acted as a contractor under a name different from his registered certification.

   
   

3. Abandoned a construction project.

   
   

4. Materially failed to comply with the provisions of Chapter 468, Florida statutes. 1/

1. Frank Daniele, Respondent, is a registered General Contractor who holds license No. RG 0009465, which is currently active. On October 24, 1977, Respondent entered into a contract with Mr. and Mrs. Howard Heil to construct a residence for the sum of $75,000.09 in Lee County, Florida. (Petitioner's Exhibit 2.) On December 27, 1977, Respondent, through the entity of D & D Construction Company, applied for and obtained a building permit to construct the Heils' residence. Respondent has qualified D & D Construction Company with the local Lee County Board. The events which are the subject of this complaint occurred in Lee County. (Testimony of John Viking, Petitioner's investigator assigned to investigate the complaint filed by the Heils.)

   
   

2. On November 11, 1977, Mrs.. Theresa Heil paid Respondent a fee of

   $5,000.00 to commence construction of their residence. The Heils paid Respondent two additional payments in the amount of $10,500.00 each on January 30, and March 13, 1978.

   
   

3. When Respondent and the Heils entered into the agreement for the construction of their residence the Heils advised Respondent that they wanted parts of two models which the Respondent had plans for, the Amhurst and the Victoria. Respondent attempted to comply with the Heils' request and, in so doing, prepared a set of drawing plans which were submitted to the Heils at their permanent residence in Dumont, New Jersey. According to the plans and specifications submitted to the Heils, the total square footage of the living area was approximately 3,172 plus an additional 520 square feet for the unheated area. (Petitioner's Exhibit 5) The Heils visited the construction site after Respondent had completed the framing chase of the construction. The Heils inspected the Respondent's progress to that point and were pleased with the construction. However, they wanted the entrance area (foyer) enlarged. Respondent explained the difficulty he would encounter in removing various partitions and wall plates after they had been erected. Respondent reluctantly agreed to go along with the Heils' desire to enlarge their home on an "at-cost" basis. The Heils disagreed and Respondent counter-offered to do the enlargement if the Heils would defray one-half of his cost for the enlargement. According to Respondent's undisputed testimony, the Heils requested an enlargement which would bring the total square footage of the house to approximately 5,400 square feet. The parties were unable to independently resolve their differences and the Heils engaged the services of James Humphrey, a local attorney in Fort Myers. Attorney Humphrey was called upon to act as trustee for the disbursement of the remaining monies due Respondent for the completion of the Heils' residence. During approximately July of 1979, Respondent and Attorney Humphrey disagreed with the progress of construction and the disbursement of funds. All

   work ceased on the project by Respondent after Attorney Humphrey had disbursed approximately $17,500.00.

   
   

4. Respondent does not dispute the amount of money paid him by the Heils and their trustee, Attorney James Humphrey. He credibly testified that he endeavored to construct the residence for the Heils within the limits of the funds disbursed him; however, Attorney Humphrey was "very slow in disbursing funds as construction was completed". He (Respondent) also emphasized the fact that he was operating with limited funds and further weakened his financial wherewithal by attempting to enlarge the Heils' residence over and above that which he originally agreed to in an effort to satisfy the Heils.

   
   

5. After reviewing the entire testimony and the documents compiled herein relating to the Heils' complaint, the undersigned is of the opinion that the Respondent's version of the events surrounding the Heils' complaint is more credible than the version attested to by Mrs. Heil. For example, Mrs. Heil testified on direct examination that there were no change orders in the project; however, Respondent's undisputed testimony is that the Heils requested and he reluctantly agreed to enlarge the foyer of their residence after the framing phase of the construction was complete. Respondent also testified that the total square footage of the Heils' residence as agreed upon in the contract was approximately 3,483 square feet, 2/ whereas subsequent to the modifications and changes requested by the Heils, the total square footage of the residence was increased to approximately 5,400 square feet. (Testimony of Heil and Petitioner's Exhibit 5.) Finally, Mrs. Heil made much of the fact that she had to pay an additional $1,500.00 for the purchase of a central vacuum system, whereas a review of the contract entered into between the parties revealed that that was one of the items to be purchased "by owners at contractor's cost, if desired". (Petitioner's Exhibit 2, paragraph 23.) Respondent made known to the Heils his inability to complete their residence, as enlarged, without an adjustment in the contract price. When the Heils refused, Respondent had just cause for refusing to complete their residence with the modifications without an adjustment in his contract price. For all these reasons, it is concluded that the Respondent is not guilty of abandonment of a construction project as set forth and defined in Section 468.112(2)(h), Florida Statutes. 3/ I shall so recommend.

   
   

6. Maxine Allred, an employee of the Lee County Code Enforcement Licensing Complaint section, appeared and testified at the hearing. Based on Ms. Allred's review of the pertinent inspection documents respecting the Heils' residence, Respondent's work was satisfactory and at each inspection stage the work passed inspection. During 1977 through December 30, 1978, Respondent held a local Lee County registration with D & D Construction Company listed as the qualifying entity. There is no record that the Respondent was suspended by the Lee County Board of Construction as alleged. To the contrary, the Lee County Board advised the Heils by letter dated May 20, 1978, that Respondent's work was satisfactory and in compliance with Code specifications. (Testimony of Ms. Maxine Allred.) Although Ms. Allred testified that in order for Respondent to renew his license, in view of the hiatus between the date that his license expired, i.e., December 30, 1979, and the present time, it would be necessary for Respondent to take a "block exam" and prove his proficiency before the Board, there was nothing in that testimony which would tend to indicate that this requirement was occasioned by anything other than the mere lapse of time since the expiration date of his license. In this regard, Respondent testified that he had in fact passed the required block exam; however, he had not applied for licensure inasmuch as he was merely completing on-going Projects which were commenced during a period in which he was licensed by the local Lee County Board.

7. Finally, Respondent closed by asserting that he would have completed the Heils' house even with the enlargements had payments been timely made as construction progressed. The soaring costs of construction both in terms of labor and materials forced Respondent to halt activity on this project for nonpayment.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.

   
   

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

   
   

10. The authority of the Petitioner is derived from Chapter 468, Florida Statutes, and Rule 21E, Florida Administrative Code.

    
    

11. Based on the foregoing Findings of Fact and Conclusions, insufficient evidence was offered to establish that the Respondent engaged in any conduct violative of Chapter 468, Florida Statutes, or Rule 21E, Florida Administrative Code, as alleged.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED:

The Administrative Complaint filed herein be DISMISSED IN ITS ENTIRETY. ENTERED this 30th day of April, 1980, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1980.

ENDNOTES

1/ Chapter 468, Florida Statutes, is now codified as Chapter489, Florida Statutes.

2/ It was noted that by Respondent's testimony the square footage was slightly less than that indicated on the documents introduced. (Petitioner's Exhibit 5.)

3/ Chapter 460, Florida Statutes, is now codified as Chapter 409, Florida Statutes.

COPIES FURNISHED:

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

Jacksonville, Florida 32202

Frank Daniele

3326 North Key Drive, Apartment D-5 North Fort Myers, Florida 33903

J. J. Linnan, Executive Director Florida Construction Industry

Licensing Board Post Office Box 8621

Jacksonville, Florida 32211

Docket for Case No: 79-001941

Orders for Case No: 79-001941