STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, FLORIDA CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 82-660

)

JOHN B. ROBERTS, )

)

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 March 8, 1983, in West Palm Beach, Florida. The parties requested leave to submit proposed findings of fact 1/ following receipt of the transcript which was allowed. 2/

APPEARANCES

For Petitioner: John O. Williams, Esquire

547 North Monroe Street, Suite 204 Tallahassee, Florida 32301

For Respondent: John B. Roberts, pro se

286 23rd Avenue

Vero Beach, Florida 323960 ISSUE

By its Administrative Complaint filed herein, Petitioner charges Respondent with violating Sections 489.129(1)(d), (h), (k) and (m), Florida Statutes, in that he abandoned a construction project; engaged in continued evidence of misconduct in the practice of contracting and diverted funds where, as a result of the diversion, he was unable to fulfill his contractual obligations.

INTRODUCTION

Petitioner presented the testimony of Stephen Silverstein, Anita McCarron,

H. Dean Ellis, Joseph Lepore, Mike O'Brien, Ed Siewek, Robert Preston, Alexander DeLano, Barry Siegel, Earl Hieroimus, Henry Dworkin and introduced twenty-seven

1. exhibits which were admitted into evidence.

   
   

   Respondent testified on his own behalf and presented the testimony of Grant John Bartels. Respondent introduced ten (10) exhibits into evidence.

   FINDINGS OF FACT

   
   

   Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings.

   
   

   1. Respondent is a certified general contractor and has been issued license number CG CA03134.

      
      

   2. During November of 1978, Respondent, doing business through the entity of Creative Home Design, Inc., entered into a contract with Dr. Stephen Silverstein to construct a residence in Boca Raton, Florida, for the sum of

      $180,000.

      
      

   3. Respondent received from Dr. Silverstein a total of $140,500 for the construction he performed on the Silverstein residence. (Stipulation by the parties)

      
      

   4. Additionally, Dr. Silvertstein paid certain liens which were filed with regard to the construction performed by Respondent on his residence, to wit:

      
      

      P.N.A. Drywall:	$5,260.00
      (Petitioner's Exhibit	2)
      Pentagon Diversified:	$3,801.34
      (Petitioner's Exhibit	3)
      American Lumber:	$8,217.50
      (Petitioner's Exhibit	4)
      Lone Star Industries, (Petitioner's Exhibits 7 and 8)	Inc. $1,293.50
      Mack Industries:	$4,604.29
      (Petitioner's Exhibits	9 and 10)

      
      

      Smith and DeShield: $ 600.00 (Petitioner's Exhibit 11)

      
      

   5. Certain contractors furnishing labor and materials for the Silverstein

      residence based on contracts entered into by wit:	Respondent also filed liens, to
      A. A. Marini Septic Tanks, Inc.: (Petitioner's Exhibit 21)	$1,700.00
      Delano Pools, Inc.: (Petitioner's Exhibit 20)	$4,539.00
      William D. Adeimy, Inc.: 3/ (Petitioner's Exhibit 16)	$3,183.75
      Climate Control Services: (Petitioner's Exhibit 17)	$1,882.50

      Ballavia Construction (Petitioner's Exhibit	Company: 24)	$5,446.00
      Temperature Control: (Petitioner's Exhibit	18)	$ 678.00
      J. Griffin Painting: (Petitioner's Exhibit	23)	$3,795.00

      
      

      Central Systems, Inc.: $1,018.80 (Petitioner's Exhibit 19)

      
      

   6. Dr. Silverstein also entered into another contract for the sale of the residence being built by the Respondent whereby Dr. Silverstein agreed to sell the residence to Respondent's son, Joseph Roberts, for the sum of $210,000. (TR pages 5-6)

      
      

   7. On February 15, 1980, a notice of code violation was issued by the building official for Palm Beach County, Florida stating that the pool which was installed at the Silverstein residence was not completely enclosed by a fence or dense hedge as required by Section 500.14F of the Palm Beach Zoning Code. Respondent has failed to correct that violation.

      
      

   8. Respondent completed the Silverstein residence to a degree of completion where it could be occupied and he could move into the residence with his family. Thereafter, Dr. Silverstein eventually filed suit and was awarded a judgment evicting Respondent from the residence. (Petitioner's Exhibit 12) Respondent's son, Joseph, failed to consummate the agreement to purchase the residence.

      
      

   9. Respondent and his family vacated the Silverstein residence and, in the process, removed certain fixtures attached to the residence including carpeting, appliances, door knobs, air conditioning and air handlers, the sprinkler system, light fixtures, vanities, a whirlpool tub, washer, dryer, air conditioning vents, bidet, sprinkling pump timer, and a drop-in range. (TR pages 23-28, 128- 130, and 98-100)

      
      

   10. Dr. Silverstein filed a claim of loss with his insurance company and was paid a settlement for the loss, which included the certain charges for reinstallation and the reconnection of the various fixtures which had been removed for a total sum of $24,252.02. (Petitioner's Exhibit 13, TR 25-28)

       
       

       The Respondent's Position

       
       

   11. Respondent contended that he was authorized to occupy the Silverstein residence and this contention is not really in dispute herein. However, it later became necessary for Dr. Silverstein to evict the Respondent and his family from the residence when it became apparent that his son, Joseph Roberts, would not consummate the agreement to purchase the residence of Dr. Silverstein. Respondent admits to taking the fixtures and other items referred to hereinabove. Respondent was without authority to do so.

       
       

   12. Respondent contends that the various liens which were referred to hereinabove were not valid inasmuch as more than one year had elapsed during the time the work was performed and no claim of lien had been filed within that one- year period. Thus, Respondent contends the claims of lien were defective. Respondent offered no proof of payment of the various claims of lien.

       Additionally, Respondent states that several of the contractors did not perform work and therefore there were no amounts due and owing those companies.

       Specifically, Respondent contends that Marini Septic Tank did not install the septic tank but a former affiliate did and that there was an attempt to bill him twice. Additionally, Respondent contends that he paid Ballavia Construction Company for the amount claimed in cash, however he had no receipts or other documentary evidence to substantiate that transaction.

       
       

   13. As relates to the claim of Griffin Painting, Respondent contends that he paid all amounts due and owing them save $660.00. Respondent failed to introduce evidence to corroborate his claim in that regard and it is therefore rejected.

       
       

   14. Finally, Respondent furnished releases of liens and an invoice of the claim referred to hereinabove from Climate Control Services, Inc. indicating that they were paid in full. Documentary evidence received and testimony introduced herein substantiates Respondent's position and it is found that he, in fact, paid Climate Control Services, Inc. in full for the services they rendered. (Respondent's Exhibits, 4, 6, and 10) As noted hereinabove, it is found that the Respondent paid the amount due and owing William D. Adeimy, Inc., and a release of lien from that entity was received herein. (Respondent's Exhibit 3)

       
       

       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 489, Florida Statutes.

       
       

   18. Respondent, a certified general contractor, is subject to the disciplinary guides of Section 489, Florida Statutes.

       
       

   19. Competent and substantial evidence was offered herein to establish that the Respondent failed to account for an amount of funds in excess of

       $25,000 which was received for completion of the Silverstein residence. Respondent failed to account for these funds and thereby diverted them in violation of Section 489.129 (1)(h), Florida Statutes.

       
       

   20. Respondent failed to fully enclose the pool with a fence or dense hedge as is required by Palm Beach County Zoning Ordinance, Section 500.14F, as alleged by the notice of violation introduced herein. Based thereon, it is hereby found that the Respondent violated a local building and zoning ordinance in violation of Section 489.129(1)(d), Florida Statutes.

       
       

   21. Evidence Introduced herein reveals that Respondent, without permission, removed fixtures from a residence in which he was in the process of constructing and thereby engaged in misconduct in violation of Section 489.129(1)(h), Florida Statutes.

   22. Insufficient evidence was offered herein to establish that the Respondent abandoned the Silverstein residence and it is hereby concluded that that allegation be dismissed as not proven.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is hereby

RECOMMENDED that the Respondent's certified general contractor's license number CG CA03134 be revoked.

RECOMMENDED this 24th day of May, 1985, in Tallahassee, Florida.

JAMES E. BRADWELL

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 24th day of May, 1985.

ENDNOTES

1/ The Petitioner has submitted posthearing proposed findings of fact pursuant to Section 120.57(1)(b)4, Florida Statutes. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial or unnecessary. The parties waived the time requirement that a Recommended Order he is sued within thirty days following the conclusion of the hearing.

2/ A transcript of this proceeding was received October 31, 1984.

3/ Evidence introduced, and Petitioner's counsel concedes, that Respondent has paid the amount claimed by William D. Adeimy, Inc., and therefore the amount claimed for that entity is no longer at issue herein.

COPIES FURNISHED:

John O. Williams, Esquire

547 N. Monroe St., Suite 204 Tallahassee, FL 32301

John B. Roberts

286 23rd Avenue

Vero Beach, FL 32960

James Linnan Executive Director Construction Industry

Licensing Board

P.O. Box 2 Jacksonville, FL 32202

Docket for Case No: 82-000660

Orders for Case No: 82-000660