STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 83-528

)

BERNARD HANUS, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing 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: Mr. Bernard Hanus

3225 Lakeview Boulevard Delray Beach, Florida 33445

This case arose on Petitioner's Administrative Complaint charging Respondent with diverting funds received from a construction project and abandoning a construction project without just cause, in violation of Sections 499.129(1)(h) and (k), Florida Statutes (1979). The parties submitted proposed findings of fact and conclusions of law which are incorporated herein to the extent they are relevant and consistent with the evidence. Those proposed findings not adopted herein are considered to be either subordinate, cumulative, immaterial, unnecessary or not supported by the evidence.

FINDINGS OF FACT

1. Respondent is a certified general contractor, having been issued license number CG C012236. Respondent qualifies Ber-Pat Industries, Inc.

   
   

2. On January 23, 1980, the Respondent, doing business through Ber-Pat Industries, Inc., contracted with Mrs. Benjamin Davis to construct an addition to the residence owned by Mr. and Mrs. Davis at 614 South Swinton Avenue, Delray Beach, Florida 33444.

   
   

3. The contract between Mr. and Mrs. Davis and Ber-Pat Industries, Inc., was not for a fixed amount, but rather was a "cost-plus" contract. However, Respondent orally estimated to Mrs. Davis that the cost would he $21,500.00.

4. Respondent commenced construction and received six draw payments totaling $29,184.78.

   
   

5. Respondent's method of obtaining the draw payments was to invoice Mr. and Mrs. Davis, which he did on each of the six draws. The last invoice included $1,307.00 for the plumbing work which had been done by Priest Plumbing Company.

   
   

6. Respondent did not pay the plumbing bill with the $1,307.00 given to him for this purpose. Rather, he used these funds to pay for ceramic tile which Mrs. Davis ordered on the date she paid Respondent for the plumbing work. Respondent did not inform the Davises of this diversion.

   
   

7. Respondent thereafter sought a further draw for the ceramic tile costs. However, the project was then about 75 percent complete and costs were already

   $7,684.78 above the total project cost estimate. In view of this, the Davises believed Respondent had violated their agreement, and refused to make further payments.

   
   

8. Because of their refusal to pay his costs, Respondent discontinued construction in late July, 1980.

   
   

   CONCLUSIONS OF LAW

   
   

9. 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

      administrative fine net 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:

      (h) Diversion of funds or property received for prosecution or completion of a specified construction project or operation when as a result of the diversion the contractor is or will be unable to fulfill the terms of his obligation or contract.

      (k) Abandonment of a construction project in which the contractor is engaged or under contract as a contractor. A project is to be

      considered abandoned after 90 days if the con- tractor terminates said project without notification to the prospective owner and without just cause.

      
      

10. The evidence established that Respondent diverted funds within a specified construction project. Such internal diversion is not condemned by the above provisions and was not shown to be the cause of Respondent's inability to complete the remodeling project for which he contracted.

    
    

11. Respondent's costs, although substantially above his oral estimate, were not demonstrated to have been improper under the cost-plus contract. Therefore, Respondent was justified in abandoning the project when the Davises refused further draw payments.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That Petitioner enter a Final Order dismissing the Administrative Complaint.

DONE and ORDERED this 15th day of August, 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 August, 1983.

COPIES FURNISHED:

John O. Williams, Esquire

547 North Monroe Street Suite 204

Tallahassee, Florida 32301

Mr. Bernard Hanus

3225 Lakeview Boulevard Delray Beach, Florida 33445

James Linnan, Executive Director Construction Industry Licensing Department of Professional Regulation

Post Office Box 2 Jacksonville, Florida 32202

Fred M. Roche, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 83-000528

Orders for Case No: 83-000528