STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1084

)

PAUL K. SCAPECCHI, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William B. Thomas, held a formal hearing in this case on July 19, 1983, in Pensacola, Florida. The transcript was received on August 8, 1983, and the parties requested 15 days thereafter to submit proposed findings of fact and conclusions of law. These were filed by counsel on behalf of the Petitioner and have been largely adopted. To date nothing has been received from or on behalf of the Respondent.

APPEARANCES

For Petitioner: Douglas A. Shropshire, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Paul K. Scapecchi, in pro per

133F 25th Court, Northwest Birmingham, Alabama 35215

By Administrative Complaint issued on February 21, 1983, the Respondent was charged with violations of Sections 489.129(1)(e), (f), (h), (j) and (k), Florida Statutes; and Sections 489.119(2) and (3), and Section 489.105(3), Florida Statutes. Specifically, the Complaint alleges that the Respondent abandoned a construction project without just cause, that he diverted funds to his own use, that he aided or abetted an uncertified or unregistered person to evade the provisions of Chapter 459, Part I, Florida Statutes, that he knowingly combined or conspired with an uncertified or unregistered person by allowing his certificate to be used to violate Chapter 49, Part I, Florida Statutes, and that he failed to be responsible for a project contracted for and to supervise construction for a company which he qualified.

Thus, the issue presented is whether the allegations in the Administrative Complaint warrant discipline of the Respondent's license pursuant to Section 489.129(1), Florida Statutes.

In support of the Complaint, the Petitioner presented two witnesses, who are investigators of the State of Florida, and 12 exhibits which were received in evidence. Two other exhibits were offered, but were not received. The Respondent testified in his own behalf.

FINDINGS OF FACT

1. The Respondent, Paul K. Scapecchi, is a registered general contractor in the State of Florida, holding license number RG 0015926, and a registered roofing contractor, holding license number RC 0031048. The Respondent is the qualifier for Paul's Construction Company, which is the Respondent's firm.

   
   

2. Edwin Schmid is a resident of West Germany who vacations in North Florida, and who testified by deposition which was received in evidence as Exhibit 1. He owns six parcels of real estate, or lots adjacent to each other, including Lot 19, Bon Bay Estates, in Santa Rosa County, Florida, which he purchased in approximately February, 1980. Edwin Schmid intended to have a home constructed on Lot 19 to be used as rental property.

   
   

3. Subsequently, Edwin Schmid was introduced to the Respondent and the Respondent's father, Walter Scapecchi, by Lee and Carolyn Swigger. The Swiggers had become friendly with Edwin Schmid because Carolyn Swigger speaks German.

   
   

4. Thereafter, Edwin Schmid contracted with the Respondent and Walter Scapecchi to have his home built on Lot 19 in Bon Bay Estates. This contract was in written form and dated March 21, 1981. Although Walter Scapecchi signed this contract "doing business as Paul's Construction Company," as contractor, the Respondent admitted that the contract was with himself, and that his father was merely an employee of the firm. The initial contract with Edwin Schmid in which the price was set at $36,000 was participated in by both the Respondent and his father.

   
   

5. Edwin Schmid dealt with the Respondent directly on several occasions, but the business card he had been given showed Walter Scapecchi's name written in by hand over the Respondent's name. The deposit check written by Edwin Schmid was made payable to Walter Scapecchi in the amount of $8,000.

   
   

6. Walter Scapecchi is not licensed to engage in the business of general contracting, but was so engaged, aided and assisted by his son, the Respondent.

   
   

7. The deposit check for $8,000 was to be used to cover the digging of the foundation, the necessary fill, the pouring of the concrete foundation, a culvert for the driveway, and electrical service, which was to have been completed by April 10, 1981, pursuant to the contract.

   
   

8. A second payment of $10,000 was to have been made on April 10, 1981. On April 10, 1981, however, no work had yet been done, and none was done until March of 1982, nearly one year later. The work done in March 1982 consisted only of placing foundation markers.

   
   

9. The Respondent admitted that the work of placing foundation markers did not cost anything near the $8,000 paid, and that he did not request the second payment of $10,000 because the work done did not exhaust the initial payment.

   
   

10. Nevertheless, no part of the $8,000 initial payment was refunded to Edwin Schmid.

11. Throughout the period of time after the contract was executed in March of 1981, Edwin Schmid wanted the Respondent to complete the construction pursuant to the contract. At one point after the first year had elapsed without any substantial work being done, Edwin Schmid attempted to effect a new contract with the Respondent that required the initial work for which he had already paid

    $8,000 to be completed. The Respondent agreed to this, but did not perform any more work at the construction site.

    
    

12. The Respondent admits that he has not performed as required by the contract. He contends this was due to personal financial problems. Other excuses for the Respondent's nonperformance included his underestimation of the amount of fill required, heavy rains which caused delays, and State of Florida requirements. Nevertheless, work was not begun for nearly one year after the contract, contrary to the agreement, and only a minimal amount of work was done as of the date of the hearing.

    
    

13. The Respondent moved out of the State of Florida in February of 1982, without notifying Edwin Schmid.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction of the partied to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

    
    

15. The Construction Industry Licensing Board is charged with carrying out the provisions of Chapter 489, Florida Statutes. Part I of this Act sets the standards for licensure in the field of construction contracting, and provides for disciplinary proceedings when the prescribed standards have been violated. Pursuant to Section 489.129(1)(f), Florida Statutes, the Board is authorized to revoke or suspend the certificate or registration of a contractor, or to impose an administrative fine not exceeding $1,000, or other sanctions, if a contractor is found guilty of knowingly combining or conspiring with an uncertified or unregistered person by allowing his certificate or registration to be used by any uncertified or unregistered person with intent to evade the provisions of this Act.

    
    

16. Section 489.129(1)(e), Florida Statutes, authorizes the above penalties if a contractor is found guilty of aiding or abetting an unlicensed person to evade the provisions of the contracting license law.

    
    

17. Section 489.129(1)(k), Florida Statutes, authorizes the above penalties if a contractor is found guilty of abandonment of a construction project without notification to the owner without just cause.

    
    

18. Section 489.129(1)(h), Florida Statutes, authorizes the above penalties if a contractor is found guilty of diversion of funds received for the completion of a specific construction project or operation when, as a result, the contractor is unable to fulfill his obligation.

    
    

19. Section 489.129(1)(j), Florida Statutes, authorizes the above penalties if a contractor is found guilty of failure in any material respect to comply with the provisions of Chapter 489, Part I, Florida Statutes.

    
    

20. The evidence presented by the Petitioner supports a finding that the Respondent is guilty of violating Sections 489.129(1)(e), (f), (h), (j) and (k), Florida Statutes.

21. The Respondent participated in the negotiations with Edwin Schmid leading to the contract dated March 21, 1981, but the contract was actually executed by the Respondent's father, Walter Scapecchi. Walter Scapecchi is not licensed as a contractor, and the Respondent left the State of Florida before any construction began. The Respondent, therefore, aided and abetted his unlicensed father to engage in contracting in violation of Section 489.129(1)(e), Florida Statutes; and the Respondent knowingly combined with his unlicensed father by allowing his certificate to be used by an uncertified person with intent to evade the provisions of Section 489, Part I, Florida Statutes, in violation of Section 489.129(1)(f), Florida Statutes.

    
    

22. The Respondent did not complete the work on the Schmid house which he contracted to perform, and he departed the State of Florida before any construction was commenced, without notice to Edwin Schmid and without just cause, in violation of Section 489.129(1)(k), Florida Statutes.

    
    

23. The Respondent diverted the greater part of the $8,000 he received from Edwin Schmid; he received the funds pursuant to a contract, whereby he agreed to perform specified construction work, but he did not deliver the services contracted for, or return the funds advanced. Thus, he has violated Section 489.129(1)(h), Florida Statutes.

    
    

24. Failure to supervise the work being performed by the company for which the Respondent was the qualifier is a violation of Section 489.129(1)(j), Florida Statutes. The Respondent's departure from the State of Florida preceded the work done on the Schmid property by the company. Thus, the Respondent performed none of the required supervision, in violation of Section 489.129(1)(j), Florida Statutes.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent, Paul K. Scapecchi be found guilty of

violating Sections 489.129(1)(e), (f), (h), (j) and (k), Florida Statutes, and that licenses numbered RG 0015926 and RC 0031048 held by Paul K. Scapecchi be REVOKED.

THIS RECOMMENDED ORDER entered this 27th day of September, 1983.

WILLIAM B. THOMAS

Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1983.

COPIES FURNISHED:

Douglas A. Shropshire, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Paul K. Scapecchi 133F 25th Court, N.W.

Birmingham, Alabama 35215

Frederick Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32202

Docket for Case No: 83-001084

Orders for Case No: 83-001084