days after filing of the transcript was allowed. The transcript was received by the Division of Administrative Hearings on January 23, 1983. Petitioner's proposed findings were submitted by counsel for Petitioner on February 7, 1983. 1/ The parties waived the thirty-day time requirement that the undersigned Hearing Officer enter a Recommended Order within thirty (30) days following the close of the hearing.
For Petitioner: John O. Williams, Esquire
For Respondent: Ronald L. Pritts, Esquire Palmer: 4440 PGA Boulevard, Suite 409
For Respondent Timothy E. Zook, pro se Zook: 6868 Southeast 138th Street
For Respondent Richard J. Mueller, pro se Mueller: 9918 Old Annapolis Road
By an Administrative Complaint filed December 17, 1981, the Department of Professional Regulation, Construction Industry Licensing Board, (Petitioner) charged Respondents Timothy E. Zook, Jack W. Palmer, and Richard J. Mueller with violations of Section 468.112(2)(h) , Florida Statutes (Supp. 1978) ,now Section 489.129(1)() , Florida Statutes (1981) , based on an alleged abandonment of a construction project.
The Petitioner also charged Respondents with violation of Section 468.112(2)(e), Florida Statutes (Supp. 1978) , now Section 489.129(1)(h), Florida Statutes (1981), based on an allegation that they diverted funds received for the completion of a construction project and as a result thereof, were unable to fulfill the terms of their obligations.
Additionally, Petitioner charged Respondent Jack W. Palmer with violation of Section 489.129(1)(c) , to wit: Section 455.227(1)(a) , Florida Statutes (1979), in that he made a misleading, deceptive, untrue or fraudulent misrepresentation in the practice of contracting.
Petitioner presented the testimony of Wayne Trammell, James R. Smith, Richard Wensing, Ruth Ann Zook, Robert Currie, Robert Kehr, and Wright Britton. Petitioner also introduced 22 exhibits which were admitted into evidence.
Respondents testified on their own behalf, and introduced one (1)exhibit.
Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and posthearing memoranda, the following relevant facts are found:
Based on the evidence adduced and the stipulation by the Petitioner and Respondents, the following facts are found.
At all times material hereto, Respondent Jack W. Palmer, a licensed certified residential contractor, was the qualifier for Master Construction Services, Inc. , herein sometimes referred to as Master. (Petitioner's Exhibit #1)
At all times material hereto, Respondent Richard J. Mueller, a licensed certified building contractor, was a qualifier for Master Construction Services, Inc. (Petitioner's Exhibit #2)
At all times material hereto, Respondent Timothy E. Zook, a licensed certified general contractor, was a qualifier for Master . Construction Services, Inc. (Petitioner's Exhibit #3)
During February, 1979, James Foster, a sales representative for Master Construction Services, Inc., submitted a proposal to one Wright Britton through an insurance adjuster for Crawford and Company, Wayne Trammell, to repair Mr. Britton's residence located at 213 S.E. 7th Ave., Delray Beach, Florida. The amount of the proposal as originally submitted was $37,709.30. (Petitioner's Exhibit #4)
During March of 1979, Wayne Trammell, representative for Crawford and Company, effectuated a reduction in the bid proposal from James Foster of Master to $30,000 for the repairs to the Britton residence. (Petitioner's Exhibit #4)
On or about May 7, 1979, Wright Britton accepted the proposal from Master. (Petitioner's Exhibits #4 and #11)
Mr. Britton received a settlement check from the insurance company in the amount of $31,185. Mr. Britton in turn paid Master the sum of $20,000 as a deposit to commence construction to his residence. (Petitioner's Exhibit #7 and TR, pages 40, 80-85)
Master commenced construction during early June, 1979 and abandoned construction during the latter part of September, 1979.
At the time Master abandoned repairs to the Britton residence, several subcontractors, including the following, had furnished labor and materials to Master (for the Britton home) which were not paid:
| $ 480.00
988.26 |
c. Hallenruff Electric (Petitioner's |
|
Exhibits #16 and #17) | 2,960.00 |
d. Ghale Insulation (Petitioner's |
|
Exhibit #18) | 765.00 |
e. Russell Jennings (air conditioning work) |
| (Petitioner's Exhibit #15) | 1,500.00 |
f. | Joe Mansfield (drywall) (Petitioner's |
|
| Exhibit #14) | 255.00 |
Pecht-Wensing, Architects & Planners (Petitioner's Exhibit #6)
Dixie Glass (Petitioner's Exhibit #5)
During January, 1980, Respondent Palmer submitted a document to the Department of Professional Regulation's Investigator, Robert Kehr. The document was entitled "Items Completed by Master Construction Services, Inc., as to Proposal No. 550 for Mr. Wright Britton." The document contained items which were not, in fact, completed by Master as reported. As example, the document indicates that the drywalls had been completed; there were doors in the kitchen; there were jalousie doors and windows which were clean whereas in fact these items, as evidenced by other documentary evidence, consisting of photographic evidence and Petitioner's Exhibit #12, reflect that these items were not, in fact, completed by. Master. Additionally, without reciting all of the
discrepancies, in haec verba, it suffices to say that items 49, 50, 52, 57, 58,
62, 63, 71, 130, 131, 161, 163 on the above referred document and the air conditioning were not items completed by Master.
Respondent, Jack Wetzel Palmer, appeared and testified on his own behalf during the subject proceeding. Respondent Palmer specializes in insurance repair work and has been involved in such work in this State for approximately ten (10) years. Respondent Palmer was a salesman with Master and had no control or other authority over Master Construction Services' checking or other fiscal policies. Palmer drew a commission and placed his license with Master such that it (Master) could obtain roofing permits. Respondent Palmer indicates that he had no idea that a drywall contractor, other than Master, had completed the drywall work for the Britton residence. Respondent Palmer offered that First American Bank took over all accounts, payable and receivable, of Master Construction Service prior to the conclusion of the Britton project and that that bank made the decision not to complete the Britton project.
Respondent Timothy E. Zook also appeared and testified on his behalf during the subject proceeding. Respondent Zook did not compute, nor was he involved in the items referred to on Petitioner's Exhibit #10. Respondent Zook also offered that the decision not to complete the Britton residence was made by First American Bank. Respondent Palmer obtained the building permit for the Britton residence.
Respondent Richard E. Mueller also appeared and testified on his behalf reference the subject dispute. According to Mueller, Master obtained some "bad" estimates and when the money for the various projects ran short, the bank refused to extend further monies and therefore the subject project was not completed.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1) , Florida Statutes.
The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.
The authority of the Petitioner is derived from Chapter 489, Florida Statutes.
Respondent Palmer, a licensed certified residential contractor, and qualifier for Master Construction Services, Inc., is subject to the disciplinary guides of Section 489.129, Florida Statutes.
Respondent Mueller, a licensed certified building contractor and qualifier for Master Construction Services, Inc., is subject to the disciplinary guides of Section 489.129, Florida Statutes.
Respondent Zook, a licensed certified general contractor and qualifier for Master Construction Services, Inc., is subject to the disciplinary guides of Section 489.129, Florida Statutes.
Respondents Mueller, Palmer and Zook, all qualified and licensed contractors for Master Construction Services, Inc., during the time period from the inception of the bid proposal from Master Construction Services, Inc. in
February of 1979 to the abandonment of that project in September of 1979, were responsible for the construction activities for Master Construction Services, Inc. The evidence herein reveals, in summary form, that respecting the diversion of funds, the lack of funds for completion of the Britton project was due to business problems which Master Construction Services, Inc. was experiencing with regard to a loan from First American Bank. Those financial problems were, in no wise, related to the completion of the Britton project. In fact, Mr. Britton paid in advance for the construction which Master Construction Services, Inc. had performed to that point. In this instance, since the Respondents were qualifiers for the company and were therefore equally responsible for its actions, each Respondent is guilty of violating Section 489.129(1)(h) Florida Statutes (1981). Evidence further reveals that in this regard, even assuming the most favorable picture for Master Construction Services, Inc., only approximately $13,000 could be attributed to it (Master) for work done to the Britton residence. Therefore, Mr. Britton, by paying in advance at least
$20,000 did not receive that to which he was entitled. These funds were therefore diverted by Master Construction Services, Inc. and the Respondents, as qualifiers, are thereby guilty of such diversion within the meaning of Section 489.129(1)(h) , Florida Statutes (1981)
By abandoning the Britton project during late September, 1979, without notification or just cause, Respondents Timothy E. Zook, Jack W. Palmer and Richard J. Mueller engaged in conduct proscribed by Section 489.129(1)(k) , Florida Statutes (1981)
Insufficient evidence was offered to establish that Respondent Palmer submitted a statement to Petitioner violative of Section 455.227(1)(a) , Florida Statutes, as alleged. Evidence reveals that while the statements contained in the subject document were not in fact true, there was no showing herein that that statement was submitted by Respondent Palmer to deceive, mislead or defraud others in the practice of his profession within the meaning of Section 455.227(1)(a) , Florida Statutes.
