STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 82-3237

)

MELVIN A. GROSZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on February 21, 1953, in Tampa, Florida. The issue for determination at the hearing was whether respondent's license as a registered residential contractor should be suspended, revoked or otherwise disciplined for the reasons set forth in the Administrative Complaint filed on June 25, 1952.

APPEARANCES

For Petitioner: John O. Williams

547 North Monroe Street, Suite 204 Tallahassee, Florida 32301

For Respondent: Melvin A. Grosz

2511 Marlin Avenue

Tampa, Florida 33611 INTRODUCTION

By a five-count Administrative Complaint filed on June 25, 1952, respondent is charged with abandoning three construction projects and, in each instance, diverting monies received for completion of the project resulting in him being unable to fulfill his obligations (Counts I, II and III) having been convicted of a crime directly related to the practice of contracting (Count IV) and having received disciplinary action by a local government (Count V). It is alleged that such acts constitute violations of Section 459.129(1), subsections (b) , (h)(i) and (k), Florida Statutes (1979).

In support of the allegations of the Complaint, petitioner presented the testimony of David E. Anderson, a building official for the City of Tampa; James

1. M. Stewart, named in Count III of the Complaint; and Walter J. Murphy, named in Count I of the Complaint. Petitioner's Exhibits 1 through 5 were received into evidence.

   Respondent testified in his own behalf and stipulated to all the factual allegations of the Complaint, with the exception of Count IV (having been convicted of grand theft in the second degree).

   
   

   Subsequent to the hearing, the petitioner submitted a proposed recommended order. To the extent that the petitioner's proposed findings of fact are not included herein, they are rejected as being either not supported by competent substantial evidence adduced at the hearing, irrelevant or immaterial to the issues in dispute or as constituting conclusions of law as opposed to findings of fact.

   
   

   FINDINGS OF FACT

   
   

   Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the factual stipulations of the parties, the following relevant facts are found:

   
   

   1. Respondent Melvin A. Grosz is a registered residential contractor, having been issued license number RR 006311. He has been licensed since the 1960s.

      
      

      COUNT I

      
      

   2. In November of 1950, respondent entered into a contract with W. J. Murphy to install windows and do other renovation work on Mr. Murphy's residence located at 3312 N. San Miguel, Tampa, Florida. Respondent received from the Murphys an advancement in the amount of $1,250 for the work to be performed. While respondent did do some cleaning work, he failed to do any further work or supply any labor in performance of the contract.

      
      

   3. In February of 1951, respondent executed a "Stipulation of Settlement and Promissory Note" with the Murphys, agreeing that he failed to perform any work or supply any labor, acknowledging that he owed the Murphys $1,250 and agreeing to pay the Murphys $250 per month for five consecutive months beginning on March 10, 1951. As of the date of the hearing in this matter, respondent had made no payments to the Murphys.

      
      

      COUNT II

      
      

   4. On or about October 9, 1980, respondent entered into a contract with Vera Reid for the sum of $3,245 to do certain remodeling on her residence at 203 North Tampania Street, Tampa, Florida.

      
      

   5. After having completed about 40 percent of the construction work and after having received $3,100 of the contract amount, respondent abandoned the Reid construction project during December of 1950.

      
      

      COUNT III

      
      

   6. On or about December 19, 1980, respondent entered into a contract with James F. and Mary L. Stewart to construct a residence in Lutz, Florida, on a sliding total price basis not to exceed $25,000. Respondent was to be the general building contractor and as to coordinate and supervise all subcontractors and perform other duties.

      
      

   7. Pursuant to his contract with the Stewarts, respondent did obtain the first subcontractor and did some preliminary work. Respondent received $1,300

      from the Stewarts, but performed only minimal work, valued at approximately

      $300, prior to abandoning the Stewart project. Respondent's promises to repay the Stewarts were never fulfilled.

      
      

      COUNT IV

      
      

   8. In June of 1981, a direct information was filed against the respondent charging that, on March 21, 1981, he unlawfully obtained or used windows belonging to another, the value of said windows being in excess of $100. On March 2, 1952, respondent entered a plea of nolo contendere to a charge of grand theft in the second degree. The Circuit Court of Hillsborough County entered an Order on March 2, 1952, withholding adjudication of guilt, and placing respondent on probation for a period of two years. As a condition of probation, respondent was to make restitution in the amount of $423.92, with probation to terminate automatically upon the payment of such restitution.

      
      

   9. The respondent did subsequently make the required restitution payment.

      
      

      COUNT V

      
      

   10. On or about September 1, 1951, the City of Tampa revoked respondent's Certificate of Competency due to his violation of Tampa Code, Chapter 45, Article III, Division 4, Section 45-75(c). This action was based upon his abandonment of the Reid project discussed in Findings of Fact (4) and (5) of this Recommended Order.

       
       

       MITIGATION

       
       

   11. Respondent admits the factual allegations and charges set forth above. He states that during the times involved in these charges, he was experiencing numerous family and financial problems, was taking antidepressant medication and was unable to function properly, and his daughter was involved in a serious accident. He no longer takes medication and feels that he is now capable of working. Respondent desires to pay the Murphys, Stewarts and Ms. Reid the monies he owes them and feels that he would be able to do so within 90 to 120 days if given the opportunity to work as a registered residential contractor.

       
       

       CONCLUSIONS OF LAW

       
       

   12. The Construction Industry Licensing Board is authorized to take disciplinary action against a contractor who is found guilty of any of the violations set forth in Section 489.129(1), Florida Statutes. Such disciplinary action may take thee form of revocation or suspension of a certificate of registration, the imposition of an administrative fine not to exceed $1,000, probation, reprimand or censure. Among the acts for which disciplinary action may be taken pursuant to Section 489.129(1) are those with which respondent has been charged in this proceeding. Paraphrasing, these include:

       
       

       (b) Being convicted or found guilty, regardless of adjudication, of a crime directly related to the practice or the ability to practice contracting;

       1. Diversion of funds received for a project when as a result of the diversion the contractor will be unable to fulfill the terms of his obligation or contract;

       2. Disciplinary action by any municipality; and

       (k) Abandonment of a construction project without notification and without just cause.

       
       

   13. In this proceeding, the facts set forth in the Administrative Complaint are unrefuted and establish a basis for finding respondent guilty of violating the four subsections of Section 489.129(1) set forth above. It has been sufficiently demonstrated that respondent did abandon, without just cause, the projects for which he had contracts with the Murphys, Stewarts and Ms. Reid and that he diverted funds paid him for those projects. The City of Tampa revoked his Certificate of Competency because of the Reid transaction and this constitutes disciplinary action by a municipality. Respondent was convicted in Hillsborough County of stealing from another items which are used in the business of residential contracting.

       
       

   14. Consideration should be given to the facts that respondent has been licensed as a contractor for at least 13 years, that the activities which form the basis for the charges occurred over a relatively short period of time when respondent was experiencing personal difficulties, that respondent did make restitution for the stolen windows and that respondent desires to reimburse the three families whose funds were diverted. Since the respondent has made an offer to make restitution, the penalty should be structured to afford him that opportunity.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that respondent be found guilty of violating Section 459.129(1)(b),(h),(i) and

Florida Statutes (1979), that an administrative fine in the amount of $500 be imposed against him and that respondent be placed on probation for a period of six (6) months. If, at the end of six (6) months respondent has not made restitution to the Murphys, the Stewarts and Ms. Reid, respondent's certificate of registration as a contractor should be revoked.

Respectfully submitted and entered this 12th day of May, 1983, in Tallahassee, Florida.

DIANE D. TREMOR, 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 12th day of May, 1983.

COPIES FURNISHED:

John O. Williams, Esquire Mr. James Linnan

547 North Monroe Street (Suite 204) Executive Director Tallahassee, Florida 32301 Construction Industry

Licensing Board

Melvin A. Grosz Post Office Box 2

2511 Marlin Avenue Jacksonville, Florida 32202

Tampa, Florida 33611

Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-003237

Orders for Case No: 82-003237