STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 79-2404

)

DAVID E. EVERINGHAM, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Sharyn L. Smith, held a formal hearing in this case on June 25, 1981, in Clearwater, Florida. The following appearance was entered:

APPEARANCES

For Petitioner: Barry Sinoff, Esquire

2400 Independent Square One Independent Drive

Jacksonville, Florida 32202 For Respondent: No appearance

By Administrative Complaint filed July 6, 1979, the Respondent, David E. Everingham, was alleged to have:

1. ...entered into a contract with Mollie Cooper on April 15, 1978, to construct an addition to her residence for $11,340.00.

   
   

2. ...received $5,670.00 as initial payment under the contract.

   
   

3. completed approximately

$1,500.00 worth of work, cut away por- tions of the roof overhang and has failed to return to the job site.

As a result of such alleged actions, the Respondent was charged by the Petitioner, Florida Construction Industry Licensing Board with abandonment of a construction project pursuant to Section 468.112(2)(h), Florida Statutes.

FINDINGS OF FACT

1. On December 3, 1979, the petitioner forwarded to the Division of Administrative Hearings a request for a formal hearing in the instant case. On January 7, 1980, the hearing was scheduled for February 28, 1980 in Bradenton, Florida.

   
   

2. The Notice of Hearing which was mailed to the Respondent at the address furnished the Petitioner was returned undelivered with no forwarding address.

   
   

3. Attempts to locate the Respondent proved unsuccessful until June 5, 1981, at which time an investigator from the Board located the Respondent working as a foreman on a construction site in Clearwater, Florida, and served him with a copy of the Notice of Hearing.

   
   

4. On April 15, 1978, the Respondent entered into a contract with Mollie Cooper to construct a 12' x 31' room addition including a family room, bedroom and bath, onto an existing residence. The contract price was $11,340.00. An initial payment of $5,670.00 was made on April 17, 1978 by Ms. Cooper to the Respondent's construction company, Southern Cross.

   
   

5. In the contract, the Respondent agreed to complete the working drawings for the addition and to obtain building permits. The Respondent obtained a building permit for the project from the City of Bradenton, Department of Planning and Development on May 17, 1978.

   
   

6. The Respondent began working on the addition in May of 1978. On May 30, 1978 workmen poured the slab for the addition. When Ms. Cooper awoke on June 4, 1978, she discovered approximately four inches of water in her house which was caused by the slab being poured at the wrong angle.

   
   

7. Later that day, a workman arrived at Ms. Cooper's home and removed the ends of the roof including fascia and guttering. Nothing further occurred until June 29, 1978 when the Respondent delivered concrete blocks to Ms. Cooper's home. Ms. Cooper never spoke to the Respondent after June 29, 1978, but her lawyer did contact the Respondent's attorney regarding problems which she was having with the Respondent's work.

   
   

8. The job was never finished by the Respondent and Ms. Cooper was required to spend approximately $1,500.00 to repair her home.

   
   

9. The Respondent holds active registered contractors license No. RR 0012951.

   
   

10. The City of Bradenton has no local licensing board.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

12. Pursuant to Section 468.112(2)(h), Florida Statutes, abandonment of a construction project constitutes grounds for disciplinary action by the Board. A project is considered abandoned

    ...after 90 days if the contractor terminates said project without noti- fication to the prospective owner and without just cause.

    
    

13. In the instant case, the conduct of the Respondent demonstrates a factual abandonment. Although Ms. Cooper contacted an attorney prior to the expiration of the ninety day period, such action was warranted in light of the deteriorating condition of her home. The testimony and documentary evidence demonstrates that it would have been futile for Ms. Cooper to continue attempting to require the Respondent to satisfactorily complete the addition. Under such circumstances, the Respondent's actions were tantamount to an abandonment in fact without just cause.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Respondent's license as a registered residential contractor be revoked and an administrative fine of $500.00 be imposed.

DONE and ORDERED this 21st day of September, 1981, in Tallahassee, Florida.

SHARYN L. SMITH

Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1981.

COPIES FURNISHED:

Barry Sinoff, Esquire 2400 Independent Square One Independent Drive

Jacksonville, Florida 32202

Docket for Case No: 79-002404

Orders for Case No: 79-002404