vs. ) CASE NO. 80-665
WILLIAM O. BOYD, d/b/a )
Respondent. )
Pursuant to notice the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on 11 January 1980 at Kissimmee, Florida.
For Petitioner: Barry S. Sinoff, Esquire
For Respondent: William O. Boyd
By Administrative Complaint mailed 24 March 1980, the Florida Construetion Industry Licensing Board, Petitioner, seeks to revoke the general contractor's license of William O. Boyd and the imposition of an administrative fine of $500. As grounds there for it is alleged that Respondent as qualifying contractor of B & J Harris, Inc. is guilty of willful disregard of applicable building codes or laws of the State, diversion of funds and filing a petition in bankruptcy in violation of Section 468.112(2)(a)(e) and (7), Florida Statutes. Five witnesses were called by Petitioner, three witnesses, including Respondent, testified on behalf of Respondent and 15 exhibits were admitted into evidence. The facts here involved were not disputed.
William O. Boyd is licensed as a general contractor with the Construction Industry Licensing Board and was so registered at all times here relevant as the qualifying licensee for B & J Harris, Inc.
In 1978 Respondent, as trustee of Kings Point Subdivision in Kissimmee, Florida, was looking for someone to do construction in the subdivision and was approached by Harris, who was not licensed.
B & J Harris, Inc. was formed, with apparently little capitalization, and with Harris, his wife and son as officers of the corporation.
In his application for 1978/1979 Competency/Registration Card (Exhibit
1) dated 9/7/78 Respondent showed he was employed with Empire Builders, Inc., the same firm with which he was affiliated for the previous 12-15 years.
Fidelity Bond dated 3-17-78 (Exhibit 2) issued to B & J Harris, Inc. shows Respondent as qualifying general contractor for B & J Harris, Inc.
B & J Harris, Inc. entered into a contract with Charles and Connie Arnold (Exhibit 4) to construct a residence on Lot 128, Kings Point Subdivision, obtained Building Permits (Exhibit 3) and commenced construction.
Financing for the construction was arranged by Harris and Respondent did not participate in this project in any manner.
B & J Harris, Inc. was paid the full contract price by the lending institution and the Arnolds (Exhibits 5 and 15) prior to the scheduled March 7, 1979 closing date.
When advised on 7 March 1978 that closing was scheduled that day, Respondent called Mrs. Arnold to advise her that the closing could not proceed as scheduled because B & J Harris, Inc. could not convey clear title to Lot 128 as Harris had not paid Respondent for this lot.
Respondent was advised by the lending agency that no other liens existed and Respondent, in consideration of a note secured by a mortgage on Harris' residence, conveyed title to Lot 128 to Harris.
The closing took place on 7 March 1978 with the lending institution holding the funds and deed in escrow pending the clearance of the title.
Harris executed a Certificate of No Lien on 7 March 1978 (Exhibit 7) and presented a Waiver of Lien form (Exhibit 15) executed by numerous subcontractors.
At least two of the signatures on this Waiver of Lien form were denied by the persons whose signature they purported to be.
Several subcontractors filed mechanics liens against the property on Lot 128 after the closing, and others filed affidavits and presented testimony that they had not been paid. (Exhibit 10-12).
On 23 March 1979 B & J Harris, Inc. filed Petition for Voluntary Bankruptcy (Exhibit 14).
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.
During the period here involved, the statutory violations with which Respondent is charged are Sections 468.112(2) and (7), Florida Statutes, (1977) which provide in part:
(2)(a) Willful or deliberate disregard and violation of the applicable building codes or laws of the state or any munici- pality, city, or county 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 contractor is, or will be, unable to fulfill the terms of his obli- gation or contract.
(7) The filing of a petition in bankruptcy, either voluntarily or involuntarily . . . may be considered by the board as just cause for suspension of a certificate or registration.
No evidence was presented that any funds received by Respondent or Harris were diverted to any other project. Accordingly, no finding that Respondent violated Section 468.112(e) can be made.
No evidence was presented that Respondent or Harris violated any building code. In fact, no evidence respecting the provisions of city or county building codes was presented and official notice of such codes will not be taken sua sponte. No willful or deliberate disregard of any specific state, municipality, city or county law was alleged and no evidence was presented regarding any such violation.
With respect to the allegation that Respondent violated Section 468.112(7), when B & J Harris, Inc. filed bankruptcy, not only does such an allegation raise serious constitutional supremacy clause questions, but also no evidence was presented that Respondent was an officer, shareholder, or served in any capacity in the management or operation of B & J Harris, Inc. The mere fact that B & J Harris, Inc. filed bankruptcy (which they have a federal statutory right to do) in no wise indicates that Respondent, as a licensed contractor, in any manner constitutes a danger to the general public so that his license should he suspended until he can show financial responsibility. The filing for bankruptcy by B & J Harris, Inc. does not impute financial instability to Respondent.
In this regard it is noted that under Section 489.129, Florida Statutes, (1979) which became effective 1 July 1979, the filing of a petition in bankruptcy no longer constitutes a basis for considering disciplinary action against a contractor.
It does appear that Respondent violated Section 468.112(2)(c), Florida Statutes; however, he was not charged with allowing his certificate of registration to be used by B & J Harris, Inc. without having any active participation in the operations, management, or control of this company.
Finding Respondent guilty of an offense of which he was not charged would deny him due process of law. Cf. White v. Florida Real Estate Commission, 371 So.2d
568 (Fla. 4th DCA 1979).
From the foregoing it is concluded that Respondent is not guilty of the violations alleged. It is therefore
RECOMMENDED that the administrative complaint be dismissed and this case closed.
Entered this 2nd day of July, 1980.
K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
Barry S. Sinoff, Esquire 2400 Independent Square
William O. Boyd
