STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 81-384

)

RUBIN WILSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, hearing was held in Pensacola, Florida, May 22, 1981, before the Division of Administrative Hearings and its duly appointed Hearing Officer R. T. Carpenter. The parties were represented by:

For Petitioner: Charles F. Tunnicliff, Esquire

Assistant General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: R. M. McDavid, Esquire

103 North DeVilliers Street Pensacola, Florida 32501

This matter arose on Petitioner's Administrative Complaint which alleges that Respondent abandoned a construction project in violation of Subsection 468.112(2)(h) Florida Statutes (1978 Supp.).

FINDINGS OF FACT

1. Respondent Rubin Wilson holds General Contractor's License No. RG 0019093. He is employed full time at the Pensacola Naval Base, and works evenings and weekends as a building contractor.

   
   

2. Amos and Julia Smith entered an oral contract with Respondent in September, 1977, for construction of a house on their property at the northwest corner of Bobe and 16th Avenue in Pensacola. The Smith paid Wilson $4,000 as a down payment on a total agreed price $20,000.

   
   

3. The parties disagree as to how the remaining $16,000 was to be paid. The Smiths understood that on completion of the house they would make a further

   $1,000 payment and obtain $15,000 in financing from Mutual Federal Savings and Loan. Wilson contends the Smiths were to pay the remaining $1,000 personal payment during the pendency of construction and secure financing whereby Wilson could receive "draws" as he progressed on the project.

4. Respondent obtained a building permit in November, 1977. He requested a foundation inspection in May, 1978, and a slab inspection in November, 1978. He did some framing work in January, 1979, and had some materials delivered to the site in March, 1979. Thereafter, Wilson did no further work on the project which was about ten percent complete.

   
   

5. In April, 1979, the Smiths sought to obtain a written contract from Respondent but were unsuccessful. They brought suit against Wilson in May, 1979, to terminate the oral contract and recover their down payment. Wilson counterclaimed for $6,600 and the suit was dismissed with prejudice by agreement of the parties. The house was eventually completed by a second contractor at a substantially higher cost to the Smiths.

   
   

   CONCLUSIONS OF LAW

   
   

6. Subsection 468.112(2)(h), Florida Statutes (1978 Supp.), provides that the Petitioner may take disciplinary action against a contractor who is found guilty of

   
   

   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 terminates said project without notification to the prospective owner and without just cause.

   
   

7. Wilson's meager accomplishments on the project in a year and one half amount to virtual termination. However, Respondent contends that he was entitled to receive the additional $1,000 and draw provisions before he was required to proceed further. He argues that after the early months, all work was done at his own expense and as a favor to the Smiths who were his friends.

   
   

8. The Smiths have conflicting recollections of their discussions with Wilson. However, their testimony did not establish the terms of the oral contract or that Respondent was willing, as they claim, to carry the cost of materials and labor during construction. Petitioner has the burden of proof in this proceeding. See Section 28-6.09(4), Florida Administrative Code and Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981). Therefore) it cannot be concluded that Respondent terminated the project without just cause.

   
   

9. Respondent submitted proposed findings of fact. To the extent these proposed findings have not been adopted or are inconsistent with the findings herein, they have been specifically rejected as not material to the result reached or not supported by the evidence.

RECOMMENDATION

From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found not guilty of violating Subsection

468.112(2)(h) Florida Statutes (1978 Supp.). It is further

RECOMMENDED that the Administrative Complaint be dismissed.

DONE AND ENTERED this 16th day of June, 1981 in Tallahassee, Leon County, Florida.

R. T. CARPENTER 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 16th day of June, 1981.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Assistant General Counsel Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

R. M. McDavid, Esquire

103 North DeVilliers Street Pensacola, Florida 32501

Docket for Case No: 81-000384

Orders for Case No: 81-000384