Judges: D. R. ALEXANDER
Agency: Department of Business and Professional Regulation
Latest Update: Jun. 07, 1983
Summary: Contractor abandoned job and thus violated state.
82-1590STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL )
REGULATION, CONSTRUCTION )
INDUSTRY LICENSING BOARD, )
)
Petitioner, )
)
vs. ) CASE NO. 82-1590
)
JOSPEH GRAF, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, DONALD R. ALEXANDER, on October 20, 1982, in Fort Myers, Florida.
APPEARANCES
For Petitioner: Xavier J. Fernandez, Esquire
Post Office Box 729
Fort Myers, Florida 33902
For Respondent: Michael H. Merrill, Esquire
2502 Second Street, Suite 10 Fort Myers, Florida 33901
BACKGROUND
In this proceeding Petitioner, Department of Professional Regulation, Florida Construction Industry Licensing Board, seeks to take disciplinary action against Respondent, Joseph Graf, for allegedly violating Chapter 489, Florida Statutes. Specifically, it is alleged that Respondent, while acting in his capacity as a certified general contractor, entered into a contract to construct a residence in Fort Myers, Florida in March, 1979; that he later abandoned the project in September, 1979 when the residence was approximately two-thirds completed; and that Respondent has accordingly violated Subsection 489.129(1)(k), Florida Statutes. 1/
Respondent disputed the allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes, to contest the charges. The matter was forwarded by Petitioner to the Division of Administrative Hearings on June 11, 1982 with a request that a Hearing Officer be assigned to conduct a hearing. By notice of hearing dated August 4, 1982, the matter was scheduled for final hearing on October 20, 1982, Fort Myers, Florida.
At the final hearing Petitioner presented the testimony of Eddie E. Lundquist and Fred M. Manna and offered Petitioner's Exhibits 1-4; all were
received in evidence. Respondent presented the testimony of Lorraine B. Zimmer and offered Respondent's Exhibits 1-9; all were received in evidence.
The transcript of hearing was filed on November 12, 1982. The parties were given the opportunity to file proposed findings of fact and conclusions of law; however, none were timely filed.
The issue herein is whether Respondent abandoned a construction project within the meaning of Subsection 489.129(1)(k), Florida Statutes, thereby warranting disciplinary action against his general contractor's license.
Based upon all the evidence, the following findings of fact are determined: FINDINGS OF FACT
At all times relevant hereto, Respondent, Joseph G. Graf, held certified general contractor license number CG C011245 issued by Petitioner, Department of Professional Regulation, Florida Construction Industry Licensing Board.
In March, 1979, Respondent was employed by Imperial Homes of Lee County, Inc. (Imperial) as its qualifying contractor. He also held the position of secretary-treasurer.
On or about March 29, 1979, Imperial, through its vice-president, Fred
M. Manna, executed a construction agreement with Eddie E. and Blanche J. Lundquist to construct a residence at Lot 5, Block 7, Cypress Village in Lee County, Florida for $53,770.
Respondent commenced the construction of the Lundquist residence approximately two months after the construction agreement was executed. Work on the project continued on a sporadic basis until September, 1979. At that time, the completed work included the concrete slab, plumbing, walls, roof, dry wall and painting. Mr. Lundquist described the house as being two-thirds completed at that point. No work was done on he project after that date by Respondent and he gave no notice to the Lundquists of his intention to quit the job. Although Imperial promised the Lundquists as late as December that the job would be completed, the Lundquists were forced to hire another contractor in the spring of 1980 to finish the house. Imperial did not qualify another contractor after Respondent terminated his association the firm. The corporation was dissolved at an undisclosed date in 1979 or 1980.
The Lundquists completed the house and construction of a swimming pool for approximately $27,200. They had previously paid Imperial approximately
$20,000 in construction draws through September, 1979. The Lundquists' total outlay for their home was around $47,200, which was less than the $53,770 they had originally contracted to pay under the agreement. Therefore, they suffered no pecuniary harm although they were inconvenienced by the abandonment of the project by Respondent and Imperial.
On September 11, 1979 Respondent formally notified Imperial that he was withdrawing as qualifying contractor for the firm. He also resigned as an officer and director. On September 24, 1979, Fred Manna wrote the Board to advise that Graf was no longer affiliated with the corporation.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.
Subsection 489.129(1)(k) , Florida Statutes, provides that disciplinary action may be taken against a licensee for "(a)bandonment of a construction project in which the contractor is engaged or under contract as a contractor."
The issue herein is whether a contractor remains liable for completion of a project after he terminates employment with the party that executed the construction agreement.
In order to establish that a statutory violation has occurred, Petitioner must show that Respondent was "engaged" in a construction project or "under contract as a contractor". The evidence discloses that Respondent, although not a party to the construction agreement, was indeed "engaged" in the Lundquist job as its certified general contractor. He also abandoned the job prior to its completion. While he may have had valid reasons for terminating his relationship with Imperial, who signed the construction agreement, nonetheless the present law imposes an obligation on a contractor to finish the job unless appropriate notice is given and good cause shown. There being a lack of notice to the owners, and no showing of good cause by Respondent, it is concluded he is guilty of violating subsection 489.129(1)(k), supra.
In determining an appropriate penalty, it is noted that the Lundquists suffered no monetary loss by Respondent's actions, and indeed completed their home for less than they originally agreed to pay. Further, there is no evidence that Graf has been subjected to other disciplinary action. Accordingly, a public reprimand and a $1000 civil fine is appropriate under the circumstances.
RECOMMENDATION
Based on the foregoing findings of facts and conclusions of law, it is RECOMMENDED that Respondent be found guilty of violating Subsection
489.129(1)(k), Florida Statutes, and that he be given a public reprimand and fined $1,000.
DONE and ORDERED this 30th day of November, 1982, in Tallahassee, Florida.
DONALD R. ALEXANDER
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 30th day of November, 1982.
COPIES FURNISHED:
Xavier J. Fernandez, Esquire
P. O. Box 729
Fort Myers, Florida 33902
Michael H. Merrill, Esquire Suite 10 - 2502 Second Street Fort Myers, Florida 33901
Samuel R. Shorstein, Secretary Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Docket for Case No: 82-001590
Orders for Case No: 82-001590
