STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, FLORIDA CONSTRUCTION ) INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1349

)

RICHARD TURNER, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Altamonte Springs, Florida, on September

28 and September 29, 1982, and in Orlando, Florida, on November 17, 1982, before the Division of Administrative Hearings and its duly appointed Hearing Officer,

R. T. Carpenter. The parties were represented by:

For Petitioner: John O. Williams, Esquire

547 North Monroe Street, Suite 204 Tallahassee, Florida 32301

For Respondent: Kenneth M. Meer, Esquire

Post Office Drawer 30 Winter Park, Florida 32790

This matter arose on Petitioner's Amended Administrative Complaint charging Respondent with contracting without a license and making false statements in his application for a contractor's license and in falsely certifying that all bills were paid on various construction projects. The parties submitted proposed findings which have been incorporated herein to the extent they are relevant and consistent with the evidence.

FINDINGS OF FACT

1. Respondent holds certified residential contractor's license number CR C018843, which was issued to him in February, 1981. He was not licensed before that time.

   
   

2. In 1979 and 1980, prior to his licensure, Respondent operated as a building contractor in one or more businesses known as Associated Building Contractors, Associated Building Contractors of Altamonte Springs, Inc., and Associated Building Contractors Sales, Inc. Neither Respondent nor any other individual was registered as a qualifying agent with Petitioner on behalf of any of these companies. However, a licensed general contractor, Robert Evans, was affiliated with Respondent from approximately February to October, 1979, and believed he qualified Associated Building Contractors during that period.

3. Respondent's contracting activities in 1979 and 1980 included the contracting for and construction of a residential house in Seminole County for Robert K. and Debra A. Good. This home is located on Lot 273 in the Barclay Woods Subdivision. Respondent signed the contract with the Goods on November 27, 1979, as seller.

   
   

4. On May 20, 1980, Respondent signed an affidavit as president of Associated Building Contractors of Altamonte Springs, Inc., certifying there were no unpaid bills or security interests in the Good property. Respondent signed this affidavit in order to obtain disbursement of funds from the lender.

   
   

5. Respondent's affidavit was false, there being outstanding unpaid bills to subcontractors and materialmen as of May 20, 1980. These debts included over

   $2,000 due on the Good project to a carpet business owned by John Polk (Carpet Service Unlimited and its successor, Design Flooring, Inc.). This debt has never been paid and is currently an unsatisfied judgment against Respondent or his company. The law suit was instituted by Polk's complaint filed in the Seminole County Court, apparently on September 22, 1980. See Petitioner's Exhibit 16.

   
   

6. Respondent, or his company, also owed Overhead Door Company of Orlando, Inc., $612 for services on the Good house as of Nay 20, 1980. The Overhead Door bill was settled in October, 1980.

   
   

7. Additionally, Respondent, or his company, owed Schilke Enterprises, Inc., a window and door business, $1,558 which was billed to the Good project and was the subject of a law suit filed December 2, 1981. Respondent, or his company, owed Castle Custom Cabinets $1,777 for work on the Good house as of April, 1980. This bill was finally settled in June, 1981.

   
   

8. Respondent applied for a contractor's license in December, 1980. Petitioner's application form included the question:

   
   

   Are there now any unpaid past-due bills

   or claims for labor, materials, or services, as a result of the construction operations of [the applicant] or any organization in which any such person was a member of the personnel?

   
   

   Respondent answered "No" to this question, when in fact he and/or his organizations owed several past due bills relating to the construction operations discussed above.

   
   

9. The application form contained a similar question regarding liens, judgments or pending law suits, to which Respondent also answered "No." However, with the possible exception of the Polk suit, the evidence did not establish that any pending law suits, liens or judgments were in effect at the time Respondent answered this question.

   
   

   A further question on Petitioner's license application form asked:

   
   

   Has [the applicant] ever been convicted of

   any offense . . . other than traffic violations?

   
   

   Respondent answered "No" to this question. There was no evidence that this answer was improper, although on January 5, 1979, Respondent was placed on five

   years probation, adjudication of guilt withheld, by the Circuit Court of Orange County. The charge was second degree grand theft, a felony, to which Respondent had entered a plea of nolo contendere.

   
   

   CONCLUSIONS OF LAW

   
   

10. Section 489.129, Florida Statutes (1979), provides in part:

    
    

    1. The board may revoke, suspend, or deny the issuance or renewal of the certificate or registration of a contractor or impose an ad- ministrative fine not to exceed $1,000, place the contractor on probation, reprimand or censure, a contractor if the contractor is found guilty of any of the following acts:

       (a) Upon proof that a certificate or registration has been obtained by fraud or misrepresentation.

       (1) Signing a statement with respect

       to a project or contract falsely indicating that the work is bonded; falsely indicating that payment has been made for all subcon- tracted work, labor, and materials which results in a financial loss to the owner, purchaser, or contractor; or falsely indi- cating that workmen's compensation and public liability insurance are provided.

       
       

11. Respondent obtained his license by misrepresentation as charged in the Amended Administrative Complaint. The question regarding bills or claims required an affirmative answer. Respondent's argument that he did not owe these debts in a personal capacity is rejected, as the question refers to both personal and organizational obligations.

    
    

12. Respondent argues that Petitioner's application form represents an unpromulgated rule which he now seeks to challenge under various provisions of Chapter 120, Florida Statutes. The attempted enlargement of these proceedings is not supported by the authority cited or the evidence adduced at the Final Hearing and is hereby rejected. Respondent's probable cause challenge is likewise rejected in the absence of any evidence to indicate that Petitioner failed to make this determination in compliance with Subsection 455.225(3), Florida Statutes (1981).

    
    

13. Respondent falsely attested that all subcontractors had been paid in the affidavit signed on May 20, 1980. However, this act occurred prior to Respondent's licensure. Further, there was no evidence of loss to the purchaser as a result of this misrepresentation as contemplated by the above-quoted provision.

    
    

14. Petitioner's remaining charges against Respondent (not otherwise discussed herein) should be dismissed since these resulted from activities which took place prior to his licensure as a contractor. Further, it appears that at least some of the contracting at issue was undertaken while a licensed contractor (Evans) was affiliated with Respondent or his companies. This determination renders moot Respondent's remaining legal objections to the Amended Administrative Complaint.

RECOMMENDATION

From the foregoing, it is RECOMMENDED:

That Petitioner enter a Final Order finding Respondent guilty of violating Subsection 489.129(1)(a), Florida Statutes (1979) , and revoke his license as a certified residential contractor.

DONE and ENTERED this 15th day of April, 1983, in Tallahassee, 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 15th day of April, 1983.

COPIES FURNISHED:

John O. Williams, Esquire

547 North Monroe Street, Suite 204 Tallahassee, Florida 32301

Kenneth M. Meer, Esquire Post Office Drawer 30 Winter Park, Florida 32790

James Linnan, Executive Director

Florida Construction Industry Licensing Board Department of Professional Regulation

Post Office Box 2 Jacksonville, Florida 32202

Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-001349

Orders for Case No: 82-001349