STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 80-383

)

DAVID H. TRUMP, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on April 9, 1980, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Barry S. Sinoff, Esquire

2400 Independent Square

Jacksonville, Florida 32204

For Respondent: Gregory William Johnson, Esquire

437 East Monroe Jacksonville, Florida 32202

ISSUE

The issue posed for decision herein is whether or not the Respondent/Licensee, David H. Trump d/b/a Swain Builders, Inc., has engaged in conduct which will be set forth hereinafter which warrants the Florida Construction Industry Licensing Board to discipline the Licensee and to impose an administrative fine.

FINDINGS OF FACT

1. Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and the entire record compiled herein, the following relevant facts are found. By its Administrative Complaint mailed December 3, 1979, the Florida Construction Industry Licensing Board (herein referred to as the Board or Petitioner) seeks to revoke Respondent's contractor's license; to impose an administrative fine in the amount of

   $1,000.00 and to deny reissuance of Respondent's license until sufficient proof of restitution has been provided the Board. 1/

2. David H. Trump (herein sometimes referred to as Licensee or Respondent) d/b/a Swain Builders, Inc., is a registered General Contractor who holds license No. RGS 003574, which is current and active.

   
   

3. The remaining material allegations of the Administrative Complaint are that from June 8, 1979, Respondent contracted with F. O. Parman to construct an addition to an existing structure for $70,500.00. It is alleged that Respondent, after having received $50,000.00 of the contracted price, came under scrutiny when owner Parman determined that contractors and suppliers were not being paid. As a result, Respondent allegedly made a sworn statement to the effect that "all subcontractors and suppliers had been paid, when in fact they had not been paid". It is also alleged that Respondent subcontracted a heating and air conditioning installation to Air Systems, Inc., for $9,610.00 and Respondent failed to pay for this installation even though he received money from the owner, Dean Waters,

   
   

4. It was also alleged in the Administrative Complaint that Respondent was charged with perjury by the State Attorney's office for issuing false statements under oath and that he pleaded nolo contendere to the charges, adjudication of guilt was withheld and Respondent was placed on two years probation to allow him an opportunity to reimburse the victim. 2/

   
   

5. On June 8, 1979, Respondent entered into a contract with F. O. Parman to construct an addition to an existing structure, Big Chief Tire Company, situated at 5444 Normandy Boulevard, Jacksonville, Florida, for the sum or

   $70,500.00 plus an additional $1,000.00 for a bathroom (Petitioner's Exhibit 1). 3/ To complete this project, Respondent purchased concrete from Silcox Concrete Company during approximately August of 1978 which resulted in an outstanding obligation of $2,067.30. This obligation remained unpaid as of December 2, 1978. Ralph Silcox, the President of Silcox Concrete Company contacted the owner of Big Chief Tire Company, Mr. F. Parman, who agreed to pay approximately

   80 percent of the invoiced amount, i.e. , $1,724.20. As a result of this agreement Mr. Parman was not obligated to honor additional claims from Silcox Concrete Company. 4/

   
   

6. Mr. Richard Q. Parman, President of Big Chief Tire Company, appeared at the hearing and related that after having released approximately $50,000.00 to Respondent, further disbursements were withheld based on complaints of various subcontractors including a Mr. Felder, the subcontractor for the heating and air conditioning system for the Big Chief Tire project. At that juncture, Mr. Parman had escrowed approximately $20,000.00 due Respondent for the completion of the project. Mr. Parman insisted that Respondent prepare a list of subcontractors and materialmen who had supplied materials for this project. According to that list, Respondent owed subcontractors and materialmen approximately $24,000.00. Mr. Parman and his son prepared the statement, which was signed, notarized and witnessed (Petitioner's Exhibit 2). The Parmans later discovered that Respondent failed to list Fab-All Metals, the entity which had supplied the steel and miscellaneous metals for completion of the Big Chief Tire project. The Parmans paid Richard G. Hornsbrook, the President of Fab-All Metals, approximately $2,500.00 which represented 80 percent of the amount due Mr. Hornsbrook for metals and steel furnished for the Big Chief Tire project. Thereafter, on January 12, 1979, Mr. Hornsbrook received $300.00 from Respondent based on a settlement agreement Respondent and Mr. Hornsbrook entered to pay the remaining balance due of approximately $623.84. (Petitioner's Exhibit 3)

   
   

7. John S. Felder, the President of Air Systems of Florida, Inc., supplied two air conditioning and heating systems for the Big Chief Tire project. Mr.

   Felder received approximately 80 percent of the amount due him from Mr. Parman, the owner of Big Chief Tire Company. Respondent advised Mr. Felder that the money due him would be paid when the building was completed.

   
   

8. Respondent is a registered General Contractor who has been in the contracting business for approximately twenty-two (22) years. Swain Builders, Inc., the entity through which the Respondent was conducting his contracting business, has been defunct since December of 1978. Since that time, Respondent has been self employed primarily doing odd jobs trying to repay cost overruns from another project, the Dean Waters job, which was for a total contracted price of $90,000.00. Respondent incurred cost overruns of approximately

   $22,000.00 on the Dean Waters project. Respondent did not receive any draws for the Air Systems work on the Dean Waters project. Monies for that work was withheld by the owner, Dean Waters.

   
   

9. Respondent failed to recognize that Fab-All Metals was left from the list of contractors provided to Mr. Parman. Mr. Parman prepared the statements which appear on the list of contractors provided by Respondent. Respondent is paying Parman restitution for payments he made to Fab-All Metals.

   
   

10. An examination of the list of contractors and materialmen indicates that the list is headed by the words, "Bills Unpaid at Big Chief Tire Co." which is followed by a list of contractors and an amount represented as being de and owing of approximately $23,678.26. Thereafter, there is an affirmation which provides in pertinent part:

    
    

    " the above listed company's(sic) and the amounts designated. is a complete list of all the companies who have extended credit to Swain Builders, Inc. for building materials and labor for the construction of the building. location of Bib(sic) Chief Tire Co.

    Inc. and have not been paid in full." (Emphasis supplied)

    
    

11. The material allegation of the Administrative Complaint is set forth in paragraph 1(f):

    
    

    "That David H. Trump made a sworn statement to the effect that all subcontractors

    and suppliers had. been paid when in fact they had not been paid".

    
    

12. At the outset, it should be noted that Respondent acknowledged that he failed to recognize that Fab-All Metals was left off the list of contractors prepared for Mr. Parman. Respondent acknowledges the fact that an amount is due and owing Fab-All Metals, which amount he is presently making restitution to Mr. Parman. However, the sworn statement does not indicate that all subcontractors and suppliers had been paid when in fact they had not, but rather, is a list of bills unpaid. That language which was prepared by Mr. Parman is set forth at the beginning of the paragraph and is again cited in the last sentence which provides, ". and have not been paid in full".

    
    

    CONCLUSIONS OF LAW

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

    
    

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

    
    

15. The authority of the Petitioner is derived from Section 468.112, Florida Statutes, and Rule 21E-5, Florida Administrative Code (presently Chapter 489, Florida Statutes (1979)).

    
    

16. Insufficient evidence was offered to establish that the Respondent engaged in conduct amounting to a willful or deliberate disregard and violation of the applicable building codes or laws of the state or any municipality, etc. as provided in Section 468.112 (2)(a), Florida Statutes (1977) [409.129(1)(d), Florida Statutes (1979)].

    
    

17. Insufficient evidence was offered to establish that the Respondent engaged in a diversion of funds or property received for prosecution or completion of a specified construction project or operation where as a result of the diversion the contractor is or will be unable to fulfill the terms of his obligation or contract.

    
    

18. Based on the finding that the Respondent compiled a list of contractors representing that the list was a "completed' list of the companies who have extended credit and had not been paid in full, which list was in fact incomplete, it is found that such conduct falls within the guides of "signing a statement with respect to a project. . falsely indicating that payment has been made for all subcontracted work, labor and materials which results in a financial loss to the owner.... as provided in Section 489.129(1)(1), Florida Statutes." (Emphasis added.)

RECOMMENDATION

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

RECOMMENDED:

That the Respondent pay an administrative fine of Five Hundred Dollars ($500.00).

RECOMMENDED this 20th day of May, 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 20th day of May, 1980.

ENDNOTES

1/ Paragraphs 1(b) and 1(c) were withdrawn at the hearing.

2/ During the hearing, Respondent's counsel made an ore tenus motion to strike paragraphs 2(h) and (i) of the Complaint, which deals with the allegation that Respondent was charged with perjury by the State Attorney's office for issuing false statements under oath, to which Respondent pleaded nolo contendere and adjudication of guilt was withheld. The authority for this allegation appears to rest with Section 468.112(2)(a), Florida Statutes, presently codified in Section 489.129(1)(d), Florida Statutes (1979). An examination of the relevant statement and the charges failed to establish a violation of Section 468.112(2)(a), Florida Statutes, inasmuch as there was no evidence to establish a violation of the laws of this state as is required to justify a finding of a violation under Section 468.112(2)(a), Florida Statutes (1977) or 489.129(1)(d), Florida Statutes (1979). Accordingly, Respondent's motion to strike paragraphs 2(h) and (i) is granted.

3/ Although the Administrative Complaint alleges that the contract was entered between Respondent and Mr. Parman on June (3, 1979, the actual date is in 1978 (Petitioner's Exhibit 1).

4/ Respondent's counsel's motion to strike that portion of Mr. Silcox's testimony respecting alleged outstanding obligations and other matters not contained in the Administrative Complaint is granted.

5/ Inasmuch as Respondent acknowledged that the list is not a complete list since Fab-All Metals was not included and was a bill which remained outstanding at the time the list was prepared, amounts to negligence or a mistake on the Respondent's part. I shall so recommend.

COPIES FURNISHED:

Barry S. Sinoff, Esquire Nancy Kelley Wittenberg

2400 Independent Square Secretary

Jacksonville, Florida 32204 Department of Professional

Regulation

Gregory William Johnson, Esquire 2009 Apalachee Park

437 East Monroe Tallahassee, Florida 32301 Jacksonville, Florida 32202

J. K. Linnan, Executive Director Florida Construction Industry

Licensing Board Post Office Box 2

Jacksonville, Florida, 32201

Docket for Case No: 80-000383

Orders for Case No: 80-000383