STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1966

)

WILLIAM B. ROBITZCH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, DONALD R. ALEXANDER, held a formal hearing in this case in Jacksonville, Florida, on February 11, 1981.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Lacy Mahon, Jr., Esquire and

Joseph S. Farley, Jr., Esquire

350 East Adams Street Jacksonville, Florida 32202

BACKGROUND

On October 14, 1980, the Petitioner, Department of Professional Regulation, issued its Administrative Complaint against Respondent, William B. Robitzsch, alleging Respondent's residential contractor's license number CR C012627 should be revoked or suspended. As grounds therefor, Petitioner contended Respondent

1. violated Section 489.129(1)(d), Florida Statutes, by willfully disregarding and violating a law of the State, to wit, Section 713.34, Florida Statutes, (2) violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project without notice or just cause, and (3) violated Section 489.129(1)(l), Florida Statutes, by making a false statement that payment had been made for all subcontracted work, labor and materials on the construction of a house which resulted in a financial loss to the owners. Robitzsch disputed the factual allegations in the Department's complaint and requested a formal hearing pursuant. to Section 120.57(1), Florida Statutes. On October 17, 1980, the Department 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 16, 1981, the final hearing was set for February 11, 1981.

   
   

   Petitioner called Lula and Waverly Chesson, Ollavan Stilwell, W. J. Sapp, Jr., Thomas Curlin, and Guy Miller as its witnesses and offered Exhibits 1-3,

   which were received into evidence. The transcript of hearing was filed on March 6, 1981. By agreement of the parties, the time in which to file proposed findings of fact and conclusions of law was extended to and including April 8, 1981. Proposed findings of fact and conclusions of law were timely filed by the Respondent and have been considered by the Hearing Officer in the preparation of this order. Findings of fact not included in this Recommended Order were not considered relevant to the issues, were not supported by competent and substantial evidence, or were considered immaterial to the results reached.

   
   

   The parties have waived the requirements of Rule 28-5.402, Florida Administrative Code, that a recommended order be rendered within 30 days after the filing of the transcript.

   
   

   At issue herein is whether Respondent's contractor's license should be revoked or suspended or whether he should be otherwise disciplined for violation of Sections 489.129(1)(d), 489.129(1)(k) and 489.129(1)(l), Florida Statutes.

   
   

   Based upon the evidence, the following facts are determined:

   
   

   FINDINGS OF FACT

   
   

   1. At all times relevant hereto, Respondent, William B. Robitzsch, was a licensed certified residential contractor holding license number CR C012627 authorizing him to perform residential contracting within the State of Florida.

      
      

   2. In the fall of 1979, Respondent entered into a contract with Waverly and Lula Chesson to construct a home at 4955 Empire Avenue, Jacksonville, Florida. The parties agreed upon a price of $75,000 to be paid by the owners to the contractor.

      
      

   3. On or about March 10, 1980, the Chessons took possession of the home and found a number of items uncompleted by the contractor. These included: (a) a door not hung in the den, (b) interior hardware missing from three doors, (c) an uncompleted patio, and (d) trash and other debris remaining in the yard and patio areas.

      
      

   4. In an effort to get Respondent to complete the job after moving onto the premises, the Chessons on "numerous occasions" attempted to contact Respondent by telephone and by personal visits to his office. Except for one occasion, Respondent failed to respond to any calls or visits. None of the uncompleted items were ever finished by Respondent nor were the Chessons advised by him of any reason why the job could not be completed. The Chessons finally hired other persons to finish the project.

      
      

   5. On March 6, 1980, the Respondent signed a contractor's affidavit at a Jacksonville savings and loan institution attesting that all subcontractors and material supply houses on the Chesson job had been paid (Exhibit 3). However, a bill from R. D. Smith Company in Green Cove Springs, Florida, in the amount of

      $604.80 for services rendered on the Chesson job still remained unpaid. This was first brought to the Chessons' attention by a Notice to Owner mailed to them on April 1, 1980 (Exhibit 1). Although the Chessons stated that additional bills from subcontractors were received and paid for after they took possession, none were specifically identified by testimony or documentation.

      CONCLUSIONS OF LAW

      
      

   6. The Division of Administrative Hearings has jurisdiction of the cause and the parties thereto pursuant to Section 120.57(1), Florida Statutes.

      
      

   7. Section 489.129(1), Florida Statutes, sets forth a number of acts which constitute cause for disciplinary action against registered contractors. Upon finding a contractor guilty of, among other things, the following actions, the Board may impose an administrative fine not to exceed $1,000, or may suspend or revoke a contractor's license:

      
      

      (d) Willful or deliberate disregard and violation of the applicable building codes or laws of the state or of any municipalities or counties thereof.

      1. 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 90 days if the contractor ter- minates said project without notifi- cation to the prospective owner and without just cause.

      2. Signing a statement with respect to a project or contract... falsely indicating that payment has been made for all sub- contracted work, labor, and materials which results in a financial loss to the owner, purchaser, or contractor;

      
      

      In summary form, it is contended that Respondent willfully violated a State law, namely, Section 713.34, Florida Statutes, by taking the proceeds of a construction loan made to him for the purpose of improving real property and failing to pay for labor, services or material related to that improvement. In its second charge, the Department alleges Respondent violated subsection (k) by abandoning the Chesson project without notification or just cause being given to the owners. Lastly it is alleged that Respondent violated subsection (1) by falsely signing an affidavit indicating that all bills relating to the project had been paid, when in fact there remained outstanding bills from various subcontractors and materialmen which resulted in financial loss to the owners.

      
      

   8. In disciplinary proceedings against a licensee, it is incumbent upon the Department to support its charges with competent evidence, either direct or circumstantial. See, e.g., Fitzpatrick v. City of Miami Beach, 328 So.2d 578 (Fla. 3d DCA 1976). Here the Department has established by competent evidence that Robitzsch violated Subsections 489.129(1)(k) and (l); however, there is insufficient evidence to support a finding of guilt as to the violation of Subsection 489.129(1)(d). The bases for reaching this conclusion are discussed below: Violation of Section 489.129(1)(d).

      
      

   9. Section 489.129(1)(d), Florida Statutes, authorizes the Department to suspend or revoke a contractor's license when the licensee has willfully or deliberately disregarded and violated a law of this State. Here it is alleged that Respondent violated Subsection 713.34(3), Florida Statutes, which provides in pertinent part that:

      
      

      Any person...who, with intent to defraud,

      shall use the proceeds of any payment

      made to him on account of improving certain real property, for any other purpose than to pay for labor or services performed on or materials furnished for this specific improvement, while any amount for which

      he may be or become liable for such labor, services, or materials remains unpaid,

      shall be guilty of embezzlement...; provided, however, that failure to pay for such labor, services or materials furnished for this specific improvement after receipt of such proceeds shall constitute prima facie evidence of intent to defraud.

      
      

      The evidence discloses that on March 6, 1980, Respondent received the final disbursement of proceeds on a loan for the construction of the Chessons' house. However, there was no evidence by the Department to show that Respondent used those proceeds for any purpose other than the Chesson project, or that he intended to misapply those funds. Neither is there sufficient substantial evidence to show that outstanding bills were actually tendered to Respondent for payment, and that he refused to thereafter make payment on same. Bowling v.

      Department of Insurance, 394 So.2d 156, 172 (Fla. 1st DCA 1981). The Board has charged a willful and deliberate violation of the aforesaid statute, and absent a showing of such conduct, the charge should be dismissed. Violation of Section 489.129(1)(k)

      
      

   10. The second violation involves the Respondent's alleged failure to fully complete the Chesson project thereby abandoning a construction project within the meaning of Section 489.129(1)(k), Florida Statutes. The job in question was begun in the fall of 1979 and was purportedly completed on March 6, 1980, when the closing was held. After moving into the house, the Chessons found the following items uncompleted: (a) a door not hung in the den, (b) interior hardware missing from three doors, (c) an uncompleted patio, and (d) trash and other debris remaining in the yard and patio areas. This was undisputed. A project is considered to be abandoned "after 90 days if the contractor terminates said project without notification to the prospective owner and without just cause."

       
       

   11. Respondent contends by way of written argument that (1) the house was substantially completed, subject only to "minor details", and (2) there was no evidence to show that the work allegedly uncompleted was within the scope of the contract.

       
       

   12. The underlying elements that must be proven by the Department in order to show abandonment are the termination of a project (a) without notification to the prospective owners, and (b) without just cause. The project was indeed terminated by Respondent in early March, 1980, when the Chessons took possession of the home. They discovered the home to be unfinished in a number of respects.

       
       

   13. Despite numerous telephone calls and attempted visits to Respondent by the Chessons, except on one occasion Robitzsch never again spoke to the Chessons or visited the premises after March 6, 1980. Neither did he offer any explanation or justification for such conduct, or why the project was never completed.

   14. The statute in question makes no distinction between a house that is partially completed and one that is substantially completed. Either may be abandoned by a contractor. Further, an owner may reasonably expect to find a newly constructed home with the doors hung, interior hardware installed, the patio finished, and trash and debris removed from the yard. These items are not so minor that the owner is required to excuse a contractor from any further obligation to complete them. Likewise, in the absence of any evidence to the contrary, it may be fairly assumed that items of this nature are normally considered to be a part of the construction of a home. Therefore, it must be concluded that Respondent has violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project without giving notification or just cause to the owners. Violation of Section 489.129(1)(L)

       
       

   15. The final allegation is the charge that Respondent signed a statement with respect to the project which falsely indicated that payment had been made for all subcontracted work. On March 6, 1980, Respondent signed the following affidavit:

"[s]aid building has been fully completed and... that all lienors or other persons contracting directly or indirectly with, or directly or indirectly employed by the undersigned (Robitzsch), or in connection with said building, and under all in connection with said contract, have been paid in full, and the undersigned has not received, nor does he have knowledge of the service of any 'notice on the owner' as contemplated by Section 713.06(2)(a),

Florida Statutes, from any laborer, material- man, subcontractor, or any other firm or corporation who might have or could have a lien against the above described real property..." (Exhibit 3).

Despite this representation by Respondent, the Chessons received a Notice to Owner for lumber and related materials on April 1, 1980, from Holmes Lumber Company, a supplier in Green Cove Springs, Florida (Exhibit 1). This bill was subsequently paid by the Chessons. Claims of other bills being received and paid for by the owners were not substantiated. Nonetheless, there being a statement signed by Respondent on the Chesson project falsely indicating that all payments for subcontracted work had been made, and the owners subsequently incurring a financial loss, it must be concluded that Respondent has violated Section 489.129(1)(1), Florida Statutes.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent William B. Robitzsch, be found guilty of

violating Sections 489.129(1)(k) and (l) Florida Statutes, as set forth in the Administrative Complaint. It is further

RECOMMENDED that the charge that Respondent violated Section 489.129(1)(d), Florida Statutes, be dismissed. It is further

RECOMMENDED that the contractor's license held by Respondent be suspended for a period of nine months from date of the Final Order entered in this proceeding.

DONE and ENTERED this 22nd day of April, 1981, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 22nd day of April, 1981.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire

130 North Monroe Street Tallahassee, Florida 32301

Lacy Mahon, Jr., Esquire and Joseph S. Farley, Jr., Esquire

350 East Adams Street Jacksonville, Florida 32202

Docket for Case No: 80-001966

Orders for Case No: 80-001966