STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-2414

)

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 herein on February 22, 1983, in Vero Beach, Florida. The parties waived the thirty day time requirement that a Recommended Order be entered herein within thirty days following the conclusion of the hearing. The parties were afforded leave through March 23, 1983, to submit proposed memoranda supportive of their respective positions. The Petitioner, by and through its counsel, has submitted a proposed recommended order which was considered by me in preparation of this Recommended Order. 1/

APPEARANCES

For Petitioner: John O. Williams, Esquire

547 North Monroe Street, Suite 204 Tallahassee, Florida 32301

For Respondent: John B. Roberts, pro se

286 23 Avenue

Vero Beach, Florida 32960 ISSUES

The issues presented herein are whether or not the Respondent has engaged in a diversion of funds received in the practice of contracting in violation of Section 489.129(1)(h), Florida Statutes; whether Respondent has engaged in acts and/or conduct evincing evidence of fraud, deceit or misconduct in the practice of contracting and has made false, misleading or deceptive statement sin the practice of contracting within the meaning of Section 489.129(1)(c), and derivatively in violation of Sections 455.227(1)(a) and 489.129(1)(1), Florida Statutes.

BACKGROUND

By its Administrative Complaint filed July 14, 1982, the Petitioner seeks to discipline the Respondent, and his license to practice contracting based on its three-count Administrative Complaint.

At hearing, the Petitioner presented the testimony of Albert Chaloux, Albert Haid, Pat White, Henry Fischer and Albert J. Colkitt. In addition, Petitioner introduced twelve (12) exhibits which were admitted into evidence.

Respondent testified on his own behalf and introduced two (2) exhibits which were admitted into evidence and certain late filed unidentified checks and invoices.

Based upon my observation of the witnesses and their demeanor while testifying, I hereby make the following:

FINDINGS OF FACT

1. Respondent is a certified building contractor having been issued license number CB CA03134.

   
   

2. At times material herein, the Respondent was the qualifier for and conducted his contracting business through the entity doing business as A-1 Builders, Inc.

   
   

3. On June 29, 1981, A-1 Builders, Inc., entered into a contract with Albert E. and Helen E. Chaloux to construct a residence in Sebastian, Florida, for the sum of $53,158.00 (Petitioner's Exhibit 5). The Chalouxs paid the Respondent a $4,000.00 deposit to commence construction (Petitioner's Exhibit 6 and TR pages 8-9). Respondent did not commence construction of the Chaloux residence nor did he return any portion of the tendered $4,000.00 deposit.

   
   

4. On February 24, 1981, A-1 Builders, Inc., entered into a contract with Jeffrey and Linda Ferris to construct a residence in Sebastian, Florida, for the sum of $32,849.00 (Petitioner's Exhibit 1). Respondent completed the Ferris residence during July 1981 and A-1 Builders, Inc., through the person of the Respondent, received full payment at the closing (Petitioner's Exhibit 2). At closing, Respondent transmitted a warranty deed to the Ferrises stating that the property was being delivered to them without any encumbrances (Petitioner's Exhibit 3).

   
   

5. At the time of closing, Respondent, through the qualifying entity A-1 Builders, Inc., owed several suppliers and contractors monies for material and services which were furnished for the completion of the Ferris residence and remained unpaid. Specifically, Respondent owed the following suppliers and subcontractors monies: Colkitt Sheet Metal and Air Conditioning, Inc. -

   $1,500.00 (Petitioner's Exhibits 10-11); Russell Concrete, Inc. - $421.20; and White Drywall - $1,634.00 (Petitioner's Exhibit 7).

   
   

   RESPONDENT'S POSITION

   
   

6. Respondent acknowledged that he received a $4,000.00 deposit from the Chalouxs and that he did not commence construction as agreed. However, Respondent urges that A-1 Builders underwent financial difficulties based upon unwarranted newspaper accounts and malicious prosecution by the local State Attorney's office and the Petitioner's investigator which forced him near bankruptcy. Respondent did spend some money toward the initial phases of commencing construction for the Chalouxs which consisted primarily of he payment of monies toward the filing of an application fee for the Chalouxs to obtain financing, the preparation of plans and drawings and some unspecified costs respecting the site preparation for the Chaloux residence.

7. Respecting the allegation that Respondent falsely indicated that there were no encumbrances on the Ferris residence, Respondent's only position is that he was forced to foreclose on certain homes and that the various liens and claims of liens which have been filed by the above-referenced suppliers and subcontractors are being paid as monies are received from the foreclosures.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Chapter 120.57(1), Florida Statutes.

   
   

9. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

10. The authority of the Petitioner is derived from Chapter 489, Florida Statutes. Respondent, a certified building contractor and the qualifier for A-1 Builders, Inc., is subject to the disciplinary guides of Chapter 489, Florida Statutes.

    
    

11. Respondent, as qualifier for A-1 Builders, Inc., is responsible for the actions of A-1 Builders, Inc. Lash, Inc. v. Department of Business Regulations, 411 So.2d 276 (Fla. 3rd DCA 1982).

    
    

12. Respondent, by diverting a $4,000.00 deposit received to commence construction of the Chaloux residence, engaged in an act proscribed by Section 489.129(1)(h), Florida Statutes (1979). 2/ Based thereon, the Respondent's actions evince proof of continued evidence of misconduct in the practice of contracting within the meaning of Section 489.129(1)(m), Florida Statutes (1979). It is so concluded.

    
    

13. Respondent, by executing a warranty deed at the time of the closing of the Ferris residence indicating that the property was being conveyed free of all encumbrances when he knew that there were three separate subcontractors (specified herein above) who were not paid substantial sums of money with regard to material and labor they furnished for the construction of the Ferris residence, amounts to conduct violative of Sections 489.129(1)(1), Florida Statutes, and a derivative violation of Section 455.227(1)(a), Florida Statutes.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is hereby, RECOMMENDED that the Respondent's certified building contractors' license number CB CA03134 be REVOKED.

DONE AND ENTERED this 12th day of April 1984 in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of April 1984.

ENDNOTES

1/ To the extent that the Petitioner's proposed findings, etc. are not incorporated in this Recommended Order, said proposed findings, etc. were deemed either irrelevant, immaterial or not otherwise supported by record evidence.

2/ Presently codified at Section 489.129(1)(h), Florida Statutes (1983).

COPIES FURNISHED:

John O. Williams, Esquire

547 North Monroe Street, Suite 204 Tallahassee, Florida 32301

John B. Roberts

286 23 Avenue

Vero Beach, Florida

Fred M. Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-002414

Orders for Case No: 82-002414