STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 80-069

)

ROBERT L. ROGERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, R. L. Caleen, Jr., held a formal hearing in this cause on May 14, 1980, in Miami, Florida.

APPEARANCES

For Petitioner: Barry S. Sinoff, Esquire

2400 Independent Square One Independent Drive

Jacksonville, Florida 32202

For Respondent: Abraham L. Bassie, Esquire

1951 N 17th Avenue

Post Office Drawer 520337 Miami, Florida 33152

ISSUE

Whether Respondent, a certified general contractor, violated the construction industry licensing law, by: (1) willfully or deliberately disregarding and violating the applicable building codes or laws of the State or any municipalities, cities or counties thereof; (2) diverting construction funds resulting in his unwillingness or inability to perform pursuant to a construction contract; and (3) abandoning a construction project; and if the Respondent is guilty of such violations, the appropriate disciplinary penalty which should be imposed by the Construction Industry Licensing Board.

CONCLUSIONS OF LAW

Respondent violated the Dade County Code by failing to pay subcontractors for services and supplies furnished in connection with the subject construction project. Respondent did not otherwise violate the Code, and is not guilty of the charges that he failed to supervise the project, abandoned it, or unlawfully diverted funds received for its completion.

RECOMMENDATION

That Respondent's certified general contractor's license No. CGC005174 be suspended until such time as Respondent furnishes the Board satisfactory evidence of having made restitution to Simon H. and Alexandra U. Ramos in the amount of $2,515 for monies expended by them to pay for lumber, electric and plumbing charges arising out of their construction contract.

BACKGROUND

By Administrative Complaint dated December 3, 1979, the Construction Industry Licensing Board ("Board") charged Respondent Robert L. Rogers ("Rogers") with violating Sections 468.112(2)(a), (e) and (h), Florida Statutes, by: (1) willfully or deliberately disregarding and violating the applicable building codes or laws of the State or any municipalities, cities or counties thereof; (2) diverting construction funds resulting in his unwillingness or inability to perform pursuant to a construction contract; and (3) abandoning a construction project.

Rogers disputed the factual allegations contained in the Board's complaint and requested a formal hearing pursuant to Section 120.57, Florida Statutes. On January 9, 1980, the Board forwarded his request to the Division of Administrative Hearings and asked that a Hearing Officer be assigned to conduct such a hearing.

By Notice of Hearing dated January 31, 1980, the final hearing was set for March 24, 1980. On March 13, 1980, counsel for the Respondent moved for a continuance based upon his having been recently retained and not having had sufficient time to properly prepare for the hearing. Without Petitioner either agreeing or objecting to a continuance, and with good cause having been shown, the motion was granted, and the hearing was reset for May 5, 1980. Due to a conflict in the Hearing Officer's schedule, by Order dated March 24, 1980, the hearing was reset for May 14, 1980.

At hearing, the Board called Paul Keefe, Jr. and Simon H. Ramos as its witnesses and offered Petitioner's Exhibits 1-12, each of which was received into evidence. Rogers testified on his own behalf, called William H. Sagan as an additional witness, and offered Respondent's Exhibits 1-7, each of which was received into evidence. The parties submitted post-hearing proposed findings of fact and conclusions of law by August 24, 1980, and agreed that the thirty-day period for submission of the Recommended Order in this case would begin at that time.

Based on the evidence presented, the following facts are determined: FINDINGS OF FACT

1. Respondent Robert L. Rogers ("Rogers") holds currently active certified general contractor's license no. CG C005174. He owns a construction firm known as Hagans and Rogers, Inc., and, by virtue of his license, is authorized to apply for building permits required by the firm. (Testimony of Rogers, Sagan.)

   
   

   [THE CONTRACT]

   
   

2. On November 9, 1978, Hagan and Rogers, Inc. contracted with Simon H. and Alexandra U. Ramos to construct an addition to the Ramos' residence located at 11201 NW 59th Court, Hialeah, Florida. During the contract negotiations,

   William Sagan initially quoted Ramos a contract price of $8,000. At the urging of Ramos, he subsequently reduced the contract price to $6,000. The parties dispute the purpose and effect of that reduction. Ramos testified that Hagan agreed to further reduce the $6,000 price by the value of any construction work actually performed by Ramos. Hagan testified that the price was reduced to

   $6,000 in exchange for Ramos' offer to perform part of the work, including lot clearing, painting and carpentry. (Testimony of Hagan, Ramos; Petitioner's Exhibits 3 and 4.)

   
   

3. Under the written contract, Hagan and Rogers, Inc. agreed to construct the residential addition for $6,000, in accordance with specifically referenced plans and drawings. The contractor was to be paid in six increments, with the last payment of $2,000 due after completion of the project. (Testimony of Hagan, Ramos; Petitioner's Exhibits 3 and 4.)

   
   

   [AS TO ROGER'S SUPERVISION AND CONTROL OF RAMOS' CONSTRUCTION PROJECT]

   
   

4. Although the direct contract negotiations for the Ramos construction project were conducted by Hagan and Ramos, Rogers helped draw up the contract, prepared pre-construction price estimates, and applied for the necessary Metropolitan Dade County building permit. Although Hagan provided daily on-the- job supervision of the construction project, all critical decisions were discussed and made jointly with Rogers. They discussed the status of the project daily, and Rogers visited the construction site on an average of one and one-half times a month. Although Ramos testified that he never saw Rogers visit the site during the course of the project, his testimony has little probative value, since Ramos was normally absent from the site during the day, and he admitted that he had no independent knowledge as to when and if Rogers visited the site. (Testimony of Hagan, Rogers, Ramos; Petitioner's Exhibit 1.)

   
   

   [AS TO PAYMENT OF SUB-CONTRACTORS AND MATERIAL SUPPLIERS]

   
   

5. Ramos paid Hagan and Rogers, Inc. $4,000 of the $6,000 due under the contract. Disagreements and misunderstandings arose between Ramos and Hagan and Rogers, Inc. concerning various change orders, purchases of materials and work performance. Ramos, then, completed the project to his satisfaction and paid bills for services and materials in the amount of $4,000. Those bills were for lighting fixtures ($60), medicine cabinets ($60), inside door ($30), electrical work ($490), roofing work ($400), final plumbing work ($400), windows including screens and glass door ($823), lumber ($1,377.84), roof painting ($100), and a nominal fee for construction work performed by Ramos. Each of these expenditures is disputed by Rogers and Sagan as not covered or authorized by the contract, except for the following payments: (1) lumber - $1,235, (2) electric

   - $880, and (3) plumbing - $400. (Testimony of Ramos, Hagan; Petitioner's Exhibits 9, 10 and 11.)

   
   

6. As a result of change orders placed by Ramos during the construction, Hagan and Rogers incurred additional costs for labor and materials as follows:

   (1) windows (labor) - $280, (2) columns (labor) - $384, (3) hip roof (labor and materials) - $895, and (4) insulation (labor) - $168. Hagan and Rogers paid approximately $5,761.18 to subcontractors and materialmen in connection with construction of the residential addition. (Testimony of Ramos, Hagan; Respondent's Exhibit 4.)

   
   

   [AS TO ABANDONMENT OF CONSTRUCTION PROJECT]

7. The project was 90 percent complete, and Hagan and Rogers performed virtually no work on the project after May of 1979. The only work that remained was to do some painting, install an outside step, put a lock on a closet door, and change the electrical service to accommodate a steamer. Ramos refused to allow their electrician to change the service, and notified Hagan and Rogers that he would arrange for an electrician to change the service. Ramos also indicated that he would complete the remaining items. On December 3, 1979, Ramos applied for a building permit under his own name, in order to complete the electrical work and obtain final inspection of the project. He never notified Sagan and Rogers that he was terminating their contract due to their failure to complete the several remaining items of the project. (Testimony of Ramos, Hagan, Rogers.)

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Florida Statutes (1979).

   
   

9. Section 468.112 1/ Florida Statutes (1978), authorizes the Board to suspend or revoke a contractor's license upon finding the contractor guilty of, among other things, the following actions:

   
   

   1. Willful or deliberate disregard and violation of the applicable building codes or laws of the State or any municipalities, cities or counties thereof...

      (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 contrac- tor is, or will be, unable to fulfill the terms of his obligation or contract...

      (h) Abandonment of a construction project in which the contractor is engaged or under contract as a contractor. A project is to be considered abandoned after ninety days if the contractor terminates said project without notification to the prospective owner and with- out just cause.

      
      

10. Section 10-22 of the Dade County Code provides that it is unlawful for a contractor:

    
    

    (g) Failing [sic] to fulfill his contrac- tual obligations, including but not limited to the payment of all creditors for material fur- nished or work or services performed.

    (j) To fail to supervise, direct, inspect and control all work on any construction pro- ject or operation on which the qualifying agent is engaged.

    
    

11. In disciplinary proceedings against a licensee, it is incumbent upon the Board to support its charges with competent evidence, direct or circumstantial. See Fitzpatrick v. City of Miami Beach, 320 So.2d 578 (3rd DCA 1976).

    1. The Board established by competent evidence that Rogers violated Section 10-22(g) of the Dade County Code by failing to pay the following amounts to sub-contractors and creditors for materials furnished pursuant to the contract: (1) $1,235 - lumber, (2) $880 - electric, and (3) $400 - plumbing. Rogers does not dispute that these amounts were due and owed under the contract. All other expenditures and bills which the parties dispute require the construction and interpretation of their construction contract, as subsequently amended, and the rights and duties of parties thereto. The Board lacks jurisdiction to interpret contracts and adjudicate disputes between signatories such power is judicial in nature and rests solely in the courts. See Peek Plaza Condominium v. Division of Florida Land Sales, et al., 371 So.2d 152, 154 (Fla. 1st DCA 1979).

       
       

    2. The Board failed to establish by a preponderance of competent evidence that Rogers failed to supervise, direct and control the Ramos construction project. It must be concluded, therefore, that Rogers is not guilty of the charge that he violated Section 10-22(j), Dade County Code.

       
       

    3. The Board failed to show by a preponderance of competent evidence that Rogers abandoned the construction project in violation of Section 468.112(2)(h), Florida Statutes (1978). The 10 percent of the project which remained to be done was voluntarily undertaken by Ramos. Rogers is, therefore, not guilty of the charge.

       
       

    4. Insufficient evidence was submitted to support the charge that Rogers unlawfully diverted funds received for completion of the project in violation of Section 468.112(2)(3), Florida Statutes (1978). Rogers is, therefore, not guilty of the charge.

    
    

12. The proposed findings of fact and conclusions of law submitted by the parties have been incorporated herein only to the extent they are relevant, supported by the evidence, and consistent with the law. To the extent any proposed finding is not so incorporated, it is rejected.

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

That Respondent's certified general contractor's license no. CG C005174 be SUSPENDED, until such time as Respondent furnishes the Board with satisfactory evidence of having made restitution to Simon H. and Alexandra U. Ramos in the amount of $2,515, for monies expended by them to pay for lumber, electric and plumbing charges arising out of the construction contract.

DONE and ORDERED this 16th day of September, 1980, in Tallahassee, Leon County, Florida.

R. L. CALEEN, JR. Hearing Officer

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

(904) 488-9675

ENDNOTE

1/ Renumbered Section 489.129(d), (h) and (k), Florida Statutes (1979).

COPIES FURNISHED:

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

Jacksonville, Florida 32202

Abraham L. Bassie, Esquire 1951 NW 17th Avenue

Post Office Box 520337 Miami, Florida 33152

Docket for Case No: 80-000069

Orders for Case No: 80-000069