STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 80-484

) ROBERT L. HUFFMAN, d/b/a MCCOY ) DEVELOPMENT, INC., )

)

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 September 5, 1980, in Naples, Florida.

APPEARANCES

For Petitioner: Barry S. Sinoff, Esquire

2400 Independent Square

Jacksonville, Florida 32202

For Respondent: G. Holdt Carver, Esquire

1167 3rd Street South, Suite 109

Naples, Florida 33940 ISSUE

The issue presented for decision herein is whether Robert L. Huffman (Respondent) is guilty of committing the violations of law alleged in Petitioner's (Florida Construction Industry Licensing Board) Administrative Complaint dated February 21, 1980, and if so, the appropriate penalty or disciplinary action.

FINDINGS OF FACT

1. Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found.

   
   

2. By its Administrative Complaint filed February 21, 1980, the Florida Construction Industry Licensing Board (herein sometimes referred to as the Board), seeks to indefinitely suspend the Certified General Contractor License No. CGC007304 held by Robert L. Huffman (herein sometimes referred to as the Licensee or Respondent) and requests that his license not be reissued until Respondent provides to Petitioner proof of compliance with the Collier County Industry Licensing Board. Additionally, Petitioner seeks to impose an administrative fine of five hundred dollars ($500.00) against Respondent.

3. Specifically, Petitioner alleges that Respondent abandoned a construction project without legal excuse in violation of Collier County Ordinance 78-2, 4.1.3 and thereby violated Section 468.112(2)(h), Florida Statutes. Based thereon, Petitioner alleges that Respondent willfully and deliberately disregarded and violated the local applicable building codes and laws in violation of Section 468.112(2)(a), Florida Statutes.

   
   

4. Respondent, Robert L. Huffman, entered into a contract with Mack and Lois Trent of Columbus, Ohio, for the construction of a residence in Collier County on February 10, 1978, for a cost of $41,950.00. (Petitioner's Exhibit 1.) Pursuant to the terms of the contract entered into between the parties, Respondent agreed to use his best efforts to deliver the completed residence within one hundred fifty days (150) from the start of construction. The evidence reveals that construction commenced on June 1, 1978. (Respondent's Exhibit 1.)

   
   

5. The Trents became dissatisfied at the pace that the Respondent constructed their residence and filed a claim with the local Collier County Construction Board. The Trents did not release the final 10 percent of the contract price to Respondent since, according to the Trents, the house was not completed as scheduled.

   
   

6. As a result of the complaint filed by the Trents with the local building officials, Raymond Dulaney, Jr., Building Administrator for the Collier County Building Administration, visited the Trent property on July 23, 1979, and issued a check list of incomplete items to Respondent which was memorialized by letter dated July 23, 1979. (Petitioner's Exhibit 2.) That list contained approximately nineteen (19) items which remained incomplete at the time of Mr. Dulaney's visit to the Trents' residence. When the Trents withheld the construction monies, there was approximately seven thousand dollars ($7,000.00) remaining in the construction loan to be used by Respondent to complete construction of tie Trents' residence.

   
   

7. During May of 1979, Respondent and the Trents had a discussion with regard to the rate of progress on their residence. The Trents then advised Respondent that they had planned to utilize the home for rental purposes to offset the mortgage payments. According to the Trents, they sustained a loss of approximately five thousand eight hundred twenty-four dollars and ninety-eight cents ($5,824.98) which amount reflects a rental loss beginning approximately March 1, 1979, until the home was completed during November of 1979, plus travel and other incidental expenses. The Trents rented the home during December of 1979.

   
   

8. On October 10, 1979, Respondent and the Trents entered into an agreement respecting the problems connected with the Respondent's construction of the Trents' residence. Based on the agreement, Respondent was released from the building contract and likewise, the Trents were also released from any and all further obligations that they had under the building contract dated February 10, 1978. (See Petitioner's Composite Exhibit 2.) Additionally, Respondent installed a sprinkler system for the Trents at no additional cost.

   
   

9. Raymond Dulaney, Jr., related the circumstances surrounding Collier County's investigation and determination of a complaint filed by the Trents against Respondent. Mr. Dulaney confirmed that he forwarded to Respondent a letter dated July 23, 1979, advising of the incomplete items remaining for the final inspection for the Trent residence. The results of the charges filed by

   the Trents against Respondent resulted in an action by the Collier County Board preventing Respondents from "pulling" building permits. (Petitioner's Exhibits 4, 5, 6, 7, 10 and 11.) A certificate of occupancy was issued for the Trent

   residence on October 29, 1979.

   
   

   RESPONDENT'S DEFENSE

   
   

10. Respondent denied that there was any abandonment of the Trent residence. Instead, Respondent maintains that when the construction funds were withheld by the Trents, there was a delay in construction which Respondent argues cannot be regarded as an abandonment. Respondent acknowledged that there were some problems in getting the subcontractors to complete their phase of the construction which was aggravated by the Trents withholding of construction monies. Finally, Respondent points out that the parties entered into an agreement which resulted in a release of obligations and claims by both parties (Trents and Respondent). That release gave the Trents the right to retain the remaining monies, which amount was more than sufficient to complete their house.

    
    

11. Respondent noted that the parties entered into the agreement for the construction of their residence on February 10, 1978, and that a notice of commencement could not be issued until June because the Trents had not completed their arrangements for financing. Respondent acknowledged that when the owners withheld construction monies that were due, he was unable to complete the construction of their residence with his own money, resulting in the usual problems with subcontractors in situations where monies were unavailable. Respondent also points out that the house was approximately 90 percent complete when the funds were withheld and that even given the nature of the problems respecting the withholding of construction monies, construction progressed at a normal rate. In support of that statement, Respondent pointed out that in Collier County during the period in question, two hundred twenty to two hundred thirty (220 to 230) days was the average period required for completion of a residence.

    
    

12. Respondent met with the Trents' attorney, a Mr. McMahon, on October 9, 1978, at which time he (Respondent) provided attorney McMahon a list of all contractors who were owed monies and a release was signed the following day at Naples Federal Savings and Loan Association. To satisfy the Respondent's agreement to reimburse the Trents at the rate of four hundred dollars ($400.00) per month for every month that their residence was not completed, Respondent gave the Trents a sprinkler system plus a final release of all claims for monies due him as part of the settlement.

    
    

13. Respondent has not applied for any permits in Collier County since approximately February of 1979. When Respondent and the Trents entered into their settlement, the terms of the release agreement encompassed a discussion and made provision for rents and all other items due the Trents.

    
    

14. Richard McDole, Administrative Director of Code Enforcement for Lee County, Florida, is in charge of taking action on citizens' and other complaints filed against builders in Lee County, Florida. Director McDole was familiar with Respondent's work and had encountered no problems relative thereto in Lee County, Florida.

    
    

    CONCLUSIONS OF LAW

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

    
    

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

    
    

17. The authority of the Petitioner is derived from Chapter 468, Part II, Florida Statutes, and Rule 21E-5, Florida Administrative Code.

    
    

18. Insufficient evidence was offered to establish that the Respondent abandoned construction of the Trent residence without legal excuse within the meaning of Section 468.112(2)(h), Florida Statutes. Nor was there any credible evidence that the Respondent engaged in conduct which may be construed as abandonment without legal excuse within the meaning of Collier County Ordinance 78-02, 4.1.3. In this regard, the evidence reveals that Respondent was unable to complete construction of the Trent residence only when subcontractors refused to work without pay, which was occasioned by the Trents withholding construction monies which were due Respondent. Moreover, evidence reveals that Respondent and the Trents entered into a release which was executed by both parties, relieving both from any obligations which were due under the parties' agreement which was entered herein. 1/ Based thereon, no basis was offered to establish that Respondent violated Section 468.112(2)(a), Florida Statutes, as alleged.

RECOMMENDATION.

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

RECOMMENDED:

That the Administrative Complaint filed herein be DISMISSED IN ITS ENTIRETY.

RECOMMENDED this 2nd day of October, 1980, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

ENDNOTE

1/ The Trents' testimony to the effect that they had a change of heart after they entered into the release agreement was considered. After considering all of the evidence herein, the undersigned saw no basis to look beyond the terms of the release entered by and between the parties in the absence of any fraud, collusion or duress. Noteworthy also, is the fact that the Trents were able to complete their residence with the monies available which obviously were due Respondent. The Trents received a free sprinkler system from Respondent.

COPIES FURNISHED:

Barry S. Sinoff, Esquire 2400 Independent Square

Jacksonville, Florida 32202

G. Holdt Carver, Esquire 1167 3rd Street South Suite 109

Naples, Florida 33940

Nancy Kelley Wittenberg, Secretary Department of Professional Regulation 2009 Apalachee Parkway

Tallahassee, Florida 32301

Docket for Case No: 80-000484

Orders for Case No: 80-000484