STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 83-1013

)

ROBERT W. THOMAS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, on September 6, 1983, in Ocala, Florida. The issue involved was whether Respondent's licenses as a registered general contractor, a registered air conditioning contractor, a registered roofing contractor, and a registered mechanical contractor in Florida should be disciplined because of the alleged misconduct and violations of Florida Statutes as outlined in Administrative Complaint.

APPEARANCES

For Petitioner: Edward C. Hill, Jr., Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Mr. Robert W. Thomas, pro se

2505 North Magnolia

Ocala, Florida 32670 PRELIMINARY STATEMENT

By Administrative Complaint dated February 21, 1983, Petitioner alleged that Respondent improperly abandoned a construction project he had contracted for and received partial payment for and diverted the funds he had been paid, in violation of Sections 489.129(1)(h) and (k), Florida Statutes (1981); made a false, misleading, and deceptive statement in the practice of contracting, in violation of Section 489.129(1)(e), Florida Statutes (1981); and failed to qualify AA Custom Builders, Inc., in whose name he practiced general contracting, in violation of Section 489.129(1)(g), Florida Statutes (1981).

Respondent submitted an Election of Rights on March 9, 1983, disputing the allegations of fact and requesting a formal hearing. The hearing was originally set for July 21, 1983, but, upon motion of Petitioner, was continued to September 6, 1983.

At the hearing, petitioner presented the testimony of Mr. Jack Hicks and Mr. Ed Secor, and Petitioner's Exhibits 1 through 7. Respondent testified in his own behalf.

FINDINGS OF FACT

1. Respondent, Robert W. Thomas, in August 1982 operated as a contractor under the trade name AA Custom Builders, Inc., at 2505 North Magnolia, Ocala, Florida.

   
   

2. Respondent's Florida license as a registered general contractor expired on January 31, 1982. His license as a registered air conditioning contractor expired on June 30, 1976. His license as a registered roofing contractor expired on January 31, 1982, and his license as a registered mechanical contractor expired on January 31, 1982. All above dates are prior to the date of the offenses alleged in the Administrative Complaint.

   
   

3. In late July or early August 1982, Mr. John J. Hicks, a resident of Belleview, Florida, answered Respondent's advertisement in the Marion Shopper. Respondent came to the home of Mr. Hicks and on August 3, 1982, acting under the name AA Custom Builders, Inc., submitted a proposal to Mr. Hicks, wherein he agreed to build an extra bedroom on the Hicks' home for a total of $3,700. Of this amount, $1,000 was to be paid when the material for construction was delivered, and the balance of $2,700 to be paid on September 5, 1982. Mr. Hicks accepted the proposal by affixing his signature the same date.

   
   

4. Certain materials were delivered by Ferguson Lumber Company on August 9, 1982, and on that same date Mr. Hicks gave to Respondent a check in the amount of $1,000, payable to Robert Thomas, which was subsequently endorsed by Robert Thomas, d/b/a AA Custom Builders, and deposited to that account at Respondent's bank.

   
   

5. Thereafter, Respondent prepared the foundation, laid the blocks, put down plywood flooring, and erected the walls up to the lineal height. No work was thereafter done for several days, during which it rained, after which Respondent one day advised Mr. Hicks he would not finish the job and that Mr. Hicks would have to pay the bill for materials. Just about that time, the lumber company, at the request of Mr. Secor, Respondent's partner/employee, to whose personal account at the lumber company the supplies for this project had been billed, came out and collected all unused materials. Thereafter, Ferguson Lumber Company sent Mr. Hicks a bill for the balance owing of $603.

   
   

6. When Mr. Hicks received his bill, he called Respondent, who told him that he, Hicks, would have to pay it. Respondent came out to the Hicks' home on August 19, 1982, and asked Mr. Hicks for the original proposal they had signed. Hicks gave it to Respondent, who in return gave him a letter stating Respondent would not complete the project and including a breakdown of the expenditures of the $1,000 Hicks had previously showed.

   
   

7. This breakdown reflects $132.37 paid for materials, $316.63 to Paul Cook, and $250 to Ed Secor. In his testimony at the hearing, Respondent indicated he had paid Cook $316, Secor $350, $113 for some materials, $400 to another laborer, and $1,002.90 for materials for the Hicks job. This last figure was to have been paid by check, but the cancelled check was not available, and there was no showing that the bill to Ferguson Lumber had been paid other than by Mr. Hicks and Mr. Secor, who Hicks called in to finish the job and with whom Hicks split the bill for $603.

8. The total on the breakdown left with Hicks by the Respondent on August 19, 1982, was exactly $1,000--the amount of the deposit. However, the payments testified to by Respondent at the hearing come to far more than the amount paid, and there is substantial evidence that both sets of figures are in error. For example, Secor states that of the money he received from Respondent, only $100 was for the work on the Hicks property. Further, Mr. Hicks was present when Cook was paid with $200 in case--not the $316 or $317 Respondent said he paid. In light of the above, it is clear that Respondent does not know where the

   $1,000 he was paid by Hicks was spent, but that much of it was diverted to pay expenses for material and labor for other jobs. It was because Secor, to whose account the material for this construction was billed, pulled out of the relationship with Respondent and caused the unused materials to be repossessed by Ferguson Lumber Company, that Respondent was unable to continue with the construction. Though his inability to continue may not have been motivated by any improper motive, he did nonetheless abandon the contract without excuse or justification, and his conduct caused a loss to the innocent consumer, Mr.

   Hicks.

   
   

9. AA Custom Builders, Inc., under which name Respondent contracted with Mr. Hicks, wasn't properly qualified with the licensing authorities of the State of Florida by Respondent or anyone acting in his behalf.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of the proceedings. Even though the Respondent's licenses had expired, they were eligible for renewal, and jurisdiction is thereby maintained.

    
    

11. In Count One, Respondent is alleged to have diverted funds received for prosecution of a specified project and thereby made himself incapable of completing it in violation of Section 489.129(1)(h), Florida Statutes (1981), which states:

    
    

    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 not 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.

       
       

12. The evidence here clearly shows that Respondent received $1,000 from Mr. Hicks as down payment on an agreement to add a bedroom to the Hicks house. The evidence also shows that Respondent spent that money on items many of which were not related to the project for which he received the advance and, as a result of his diversion and other factors as well, was unable to continue with the project. Taken together, a clear violation of the stated statutory provision has been shown.

13. The statement of account furnished by Respondent to Mr. Hicks on August 19, 1982, has been shown by the testimony of Hicks, Secor, and Respondent, himself, to have been inaccurate, false, and deceptive in may particulars and constitutes a violation of Section 455.227(1)(a), which, in turn, is a violation of Section 489.129(1)(c), Florida Statutes (1981), as alleged in Count Two.

    
    

14. As to Count Three, the evidence shows that Respondent, whose lapsed licenses were issued in his own name, contracted with Mr. Hicks for a construction project in the name AA Custom Builders, Inc., a name which he had neither registered nor qualified with state authorities. This constitutes a violation of both Sections 489.129(1)(g) and 489.119(2) and (3), which thereby constitutes a violation of Section 489.129(1)(j), Florida Statutes (1981).

    
    

15. The Respondent has submitted a memorandum which includes proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law above, they have been otherwise rejected as contrary to the better weight of the evidence, not supported by the evidence, irrelevant to the issues, or legally erroneous.

RECOMMENDATION

Based on the foregoing, it is, therefore, RECOMMENDED:

That Respondent, Robert W. Thomas, be reprimanded and that he be assessed an administrative fine of $1,000. However, it is further recommended that the administrative fine be reduced by whatever amount the Respondent pays in restitution to Mr. Hicks for the loss he occasioned up to the amount of $693 plus accrued interest.

DONE AND ENTERED this 14th day of October 1983 in Tallahassee, Florida.

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings Department of Administration

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of October 1983.

COPIES FURNISHED:

Edward C. Hill, Jr., Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Robert W. Thomas 2505 North Magnolia

Ocala, Florida 32670

Mr. Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. James Linnan, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2

Jacksonville, Florida 32202

Docket for Case No: 83-001013

Orders for Case No: 83-001013