STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-1536

)

WILLIAM F. DAWSON, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter after due notice, at Brooksville, Florida, on September 8, 1982, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioner: Michael Egan, Esquire

217 South Adams Street Tallahassee, Florida 32301

For Respondent: E. C. Watkins, Jr., Esquire

707 East Kennedy Boulevard Tampa, Florida 33602

This proceeding commenced upon the filing of an Administrative Complaint by Petitioner seeking to discipline Respondent's license as a certified general contractor pursuant to subsection 489.129(1)(i), Florida Statutes, based on the suspension of his "permit pulling privileges" by the Construction Board of Examiners for Hernando County. Respondent requested an administrative hearing and the case was referred to this Division for the appointment of a hearing officer.

Petitioner presented the testimony of one witness and submitted four exhibits in evidence. Respondent testified in his own behalf. The parties requested and were authorized to submit late-filed exhibits after the hearing. Petitioner submitted certain documents that are received in evidence as Petitioner's Exhibit 5. No exhibits were filed by Respondent.

FINDINGS OF FACT

1. Respondent William F. Dawson is licensed by Petitioner Construction Industry Licensing Board as a certified general contractor. He holds an individual license, number CG C006243 which was issued in an active status in 1976 with address 3805B Cortez Place, Tampa, Florida 33614. In September, 1976, the license was changed from an individual status to qualify Dawson Builders, Inc. at the same address. In July, 1981, the license was changed

   again to an individual status, with address Post Office Box 2176 Riverview, Florida 33569. Respondent acquired a different license, number CC CA06243 in 1977 to qualify Superior Construction and Erecting Company, Inc., with address shown as 7202 Lanchashire Circle, Apartment 121, Tampa, Florida, 33614. The license has been in a delinquent status since July 1, 1981, but was active until that date. Respondent was a vice president of Superior Construction and Erecting Company, Inc. (Testimony of Respondent, Latoria, Petitioner's Exhibits 4-5)

   
   

2. The Hernando County Construction Code, County Ordinance No. 78-2 requires that any entity entering into a contract for construction within the county must have a valid occupational license and a county certificate of competency issued after examination of the firm's designated individual. Section 304.9 of the ordinance provides for revocation or suspension of a certificate of competency of any building contractor on various grounds, including in subsection 1(f) thereof "The filing of a petition in voluntary bankruptcy with intention of defrauding an owner, or avoiding payment for materials furnished or labor performed, or the doing of any other act for the purpose of perpetrating a fraud." Section 304.9 provides for such disciplinary actions to be handled by the County Board of Construction Examiners after

   investigation of complaints, and notice of not less than ten or more than thirty days for a hearing on any charges. The alleged violator has the right to appear, be represented by counsel, produce evidence, and cross examine witnesses. (Testimony of Latoria, Petitioner's Exhibit 1)

   
   

3. A letter, dated April 11, 1980, from the building official of Hernando County to Respondent at the address shown on his state license, 7202 Lanchashire Circle, Apartment 121, Tampa, Florida 33614, advised that Respondent's presence was required before the Construction Board of Examiners on May 6, 1980, concerning a charge that he had violated Section 304.9-1(f) of County Ordinance No. 78-2. The letter stated that Respondent could be represented by counsel if he desired and that failure to appear could be just cause for revocation or suspension of his license. The certified letter was returned by postal authorities marked "addressee unknown." The building official thereafter, by letter of April 16, 1980, informed Asa B. Mather of the board meeting and enclosed a copy of the letter to Respondent. Mather was President of Superior Construction and Erecting Company, Inc. At the May 6 board meeting, the minutes reflect that Asa Mather appeared on behalf of Superior and that Respondent did not appear. The minutes further, show that Mather stated that Superior had filed voluntary bankruptcy proceedings under Chapter 11 of the Federal Bankruptcy Act to settle the debts of the firm. The board thereupon took action in the matter suspending Superior's "permit pulling privileges" in Hernando County for ninety days, and requiring the firm to furnish the board a financial report within thirty days. The county building official advised Respondent of the board's action by letter of May 8, 1980, addressed to him at 2515 Greenmore Place, Tampa, Florida 33618. It further advised him that his agent had agreed to bring documentation into the office regarding the bankruptcy proceedings, and that he had a right to appeal the decision and request "a rehearing within ten days from the date of the meeting. Although this letter was apparently not sent by certified mail, no evidence was presented that it was returned by postal authorities to the county building department. (Petitioner's Exhibit 2 and Composite Exhibit 3)

   
   

4. At a meeting of the board on June 2, 1980, the minutes reflect that since Superior Construction had not brought in the necessary papers regarding the bankruptcy proceedings, it was determined that Superior be requested to appear before the board at the next meeting with such papers. A letter to this

   effect was sent to Respondent at the Greenmore Place address on June 17, 1980, and a receipt for certified mail shows that Mrs. Joseph Dawson received the letter on June 19, 1980. The minutes of the board's meeting on July 1, 1980, reflect that neither Mather nor Respondent appeared before the board with a financial statement, nor had such records been received by the board.

   Accordingly, the board proceeded to suspend "their license." A letter dated July 9, 1980, to Respondent at the Greenmore Place address advised him of the fact that the board had suspended his license indefinitely for failure to appear and present his financial statement to the board. (Petitioner's Exhibits 2-3)

   
   

5. Respondent testified at the hearing that he had left Superior Construction in June of 1978, and had informed Mather that he would not be renewing his certification as qualifying agent of the firm in the future. His stated reason for leaving was because he had not received compensation for supervising construction projects. He further testified that he did not renew his state license in 1978 or 1979, but did not notify either the county building official or the Petitioner Construction Industry Licensing Board of his change in status or of his various address changes over the years. It was for the latter reason that he did not receive the April 11, 1980, letter of the county building official. Mrs. Joseph Dawson is his mother and he had used her address for state board matters, but she did not inform him of her receipt of the April 16, 1980 letter from the county building official. Respondent stated that, therefore, he was unaware of the proceedings in Hernando County until he received the Administrative Complaint in this proceeding. (Testimony of Respondent)

   
   

   CONCLUSIONS OF LAW

   
   

6. At the commencement of the hearing, Petitioner withdrew Paragraph 3 of its Administrative Complaint, and therefore the only matter for determination is whether Respondent should be disciplined under Section 489.129(1)(i), Florida Statutes, based on the suspension of Respondent's local license by the Hernando County Construction Board of Examiners for his failure to appear and present a financial statement to the board.

   
   

7. Subsection 489.121(1)(i), Florida Statutes, provides that disciplinary action may be taken against a certificate holder on the following ground:

   
   

   1. Disciplinary action by any municipality or county, which action shall be reviewed by the state board before the state board takes any disciplinary action of its own.

      
      

8. The evidence indicates that any failure by the Respondent to receive notice of the various meetings of the County Construction Board of Examiners was due to his negligence in not keeping the board advised of his current address. The County proceedings were known to the President of the corporation that Respondent had qualified. As far as county and state officials knew, Respondent was still acting as the firm's qualifying agent by reason of his failure to notify such agencies that he had ceased to be affiliated with the business organization. In addition, at least one of the letters was received at an address he acknowledged using for business matters. It is therefore concluded that he had constructive notice of the proceedings.

   
   

9. The disciplinary action taken by the County Board ostensibly suspended his license for failure to provide the board with a copy of his financial statement which, in itself, is not a ground for discipline under the county

   ordinance. However, such action can be viewed in the nature of a default against the Respondent for failure to appear and defend against the charge of fraud arising out of bankruptcy proceedings. Nevertheless, the fact that the minutes of the board's meetings fail to reflect any evidence that fraud was actually practiced by Respondent leads to the conclusion that, in fairness, the county disciplinary action should not be used as a sole basis for disciplinary action against Respondent's state certification.

   
   

10. A Proposed Recommended Order filed by Petitioner has been fully considered, and those portions thereof not adopted herein are considered to be either unnecessary, irrelevant, or unsupported in law or fact.

RECOMMENDATION

That the Administrative Complaint be dismissed.

DONE and ORDERED this 14th day of October, 1982, in Tallahassee, Florida.

THOMAS C. OLDHAM

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 14th day of October, 1982.

COPIES FURNISHED:

Michael Egan, Esquire

217 South Adams Street Tallahassee, Florida 32301

E. C. Watkins, Jr., Esquire 707 East Kennedy Boulevard Tampa, Florida 33602

Mr. James Linnan Executive Director

Florida Construction Industry Licensing Board

Post Office Box 2 Jacksonville, Florida 32302

Samuel R. Shorstein, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-001536

Orders for Case No: 82-001536