STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1597

) 83-3988

WILLIAM W. CARLSON )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled cases on May 8, 1984, at New Port Richey, Florida.

APPEARANCES

For Petitioner: Stephanie A. Daniel, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Daniel P. Rock, Esquire

117 North Boulevard

New Port Richey, Florida 33552

By Administrative Complaints filed June 23, 1982, and December 2, 1983, the Department of Professional Regulation, Petitioner, seeks to revoke, suspend, or otherwise discipline the license of William W. Carlson as a certified building contractor. As grounds there for it is alleged that Respondent pulled permits to allow an unlicensed builder to construct a filling station in Spring Hill and a commercial building in New Port Richey; that he conspired with others to allow an unlicensed contractor to perform contracting work; that his permit pulling privileges were suspended by Hernando County; that he abandoned the New Port Richey structure while a contractor on the project; that he diverted funds on the New Port Richey project and as a result was not able to complete construction; that he willfully violated building codes; and that he pleaded nolo contendere to a charge of using property of another with intent to appropriate it to his own use.

At the hearing Petitioner called ten witnesses; Respondent called five witnesses, including Respondent; and twenty-six exhibits were admitted into evidence.

Proposed findings submitted by the parties, to the extent they are included herein, are adopted; otherwise, they are rejected as not supported by the evidence, immaterial, or unnecessary to the conclusions reached.

FINDINGS OF FACT

1. William W. Carlton, Respondent, is licensed in Florida as a building contractor, holds license No. CB CO 10455, and was so licensed at all times here relevant (Exhibit 1)

   
   

2. In February, 1980, Hays and Sons Construction Company (Hays) entered into a contract with Ken and Ethel Moore to construct a metal building to serve as a filling station and car repair facility in Spring Hill. Hays is not licensed as a building contractor in Florida and Respondent held no office in Hays, had no authority to make management decisions on behalf of Hays, contract on behalf of Hays, or hire subcontractors for Hays.

   
   

3. The building permit for the construction of the Spring Hill filling station was pulled by Respondent and listed Respondent as builder (Exhibit 9). Respondent did interior woodwork in the building, room layouts, etc., while Hays hired all of his subcontractors and did the overall supervision of the work. Respondent testified that he visited the site frequently, usually after working hours, to see that the project was progressing properly. Dan Hays, principal in Hays and Sons Construction Company, is a capable builder of metal buildings and, although not licensed in Florida, has erected such buildings at numerous places in the United States. Hays hired and paid the subcontractors on this project.

   
   

4. By letter dated November 11, 1980, Moore filed a complaint with the Hernando County Building Department alleging that his building had not `been completed according to plans and specifications, some subcontractors had not been paid, that Hays was not licensed and the permit was pulled by Carlson, and that Carlson denies responsibility for the completion of the work. A hearing was scheduled by the Construction Board of Examiners on this complaint and Respondent was notified of the time and place of hearing and advised to be present.

   
   

5. Before the scheduled date of the hearing, the issues raised in the complaint had been settled and the complaint withdrawn by the complainant. Respondent called the Building Department respecting the necessity of him attending the scheduled hearing and was advised the complaint had been withdrawn and that he need not attend. At the scheduled hearing, the Board expected Respondent to give an explanation and, when Respondent did not show, the Board suspended his privilege of pulling permits until he appeared before the Board at its next scheduled meeting. Respondent appeared at the next scheduled meeting of the Board and his permit pulling authority was reinstated.

   
   

6. On April 29, 1981, Hays entered into a contract to construct a steel building for Harold and Evelyn Walkowz in New Port Richey, Florida, at a price of $119,000. The building permit for this job was pulled July 28, 1981, by William Carlson as contractor (Exhibit 10). After construction commenced, the contract was assigned to Respondent (Exhibit 12) Walkowz initially made payments in accordance with the draw schedule but as the contract progressed disputes between the owner and the builder developed and payments were not made on schedule. Walkowz' brother-in-law, John Smith, put up most of the money for the building and arrived on the scene when the project was about half finished. His arrival coincided with the disputes regarding the work being done, with the subcontractors and with the Respondent. Several of the subcontractors' due payment were not paid by Respondent because the payment due from the owners was not received by Respondent. Some of these subcontractors left the job, other threatened to leave and were assured by the owners that they would be paid,

   while another group of subcontractors were paid by the owners to keep them from leaving. Prior to paying these three subcontractors (Exhibit 15) , Walkowz' attorney prepared Exhibit 13, which Respondent signed in order to get these subcontractors paid.

   
   

7. After Walkowz had paid some $93,000 to Respondent (and Hays), further payments were stopped. At this time, sub- contractors were owed approximately

   $16,000 and the building was not completed. Respondent offered to complete the building if the balance of the contract price owed was placed in escrow (Exhibit 20). Walkowz refused to place the money in escrow, did not pay the subcontractors he had promised would be paid, used the funds still owed on the contract to complete the building, charged Respondent with wrongfully appropriating his money, and complained to the building department.

   
   

8. Criminal charges of grand theft were brought against Respondent. At a hearing on these charges, Respondent pleaded nolo contendere, adjudication was withheld, and Respondent was placed on probation for five years. After a hearing on restitution, the court directed no restitution be paid by Respondent to Walkowz.

   
   

9. Respondent maintained only one operating account into which he intermingled funds received on building contracts concurrently in progress. No evidence was submitted that Respondent diverted funds received from Walkowz to any other specific project. Testimony of one witness that Respondent said he diverted funds received from Walkowz to other projects was denied by Respondent. Further, no evidence was presented that because of the diversion of funds Respondent was unable to complete the Walkowz project.

   
   

10. In installing the main air conditioner, the unit was located at a place slightly different than shown on the approved plan. Similarly, a wall was moved a few inches to cover an error made in the installation of plumbing lines. These changes were made with the knowledge and consent of the owner and while inspections of the work were being conducted by officials of the Pasco County Building Department.

    
    

11. The contract provided for laying 1,350 cubic yards of black top one inch thick over a four-inch limerock base. Building codes and zoning requirements would not authorize the paving of an area this size on the property and, to comply with the code prescribed allowable impervious area requirements, less black top was used. Similarly, the contract provided for the slab on which the building was erected to be 3,000 psi. concrete. The concrete was routinely tested, with the results received after the building was erected. The test showed the concrete to be 2,500 psi. strength. This information was made known to the owner and, in lieu of tearing down the building and repouring the slab, allowances were made for other changes in the contract requested by the owner

    
    

12. For a short period of time a company called Carobu appeared on a sign in front of the Walkowz construction site. This was the trio comprised of Carlton, Roth and Burns, who intended to contract under that name, with Carlson as qualifying officer. The company was never incorporated nor did it ever contract to do any construction work.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

14. Section 489.129, Florida Statutes, provides in pertinent part:

    
    

    1. The board may revoke, suspend impose an administrative fine....place the contractor on probation, or reprimand or censure the contractor if the contractor is found guilty of any of the following acts:

       (b) Seen convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice

       of contracting or the ability to practice contracting.

       * * *

       1. Willful or deliberate disregard and violation of the applicable building codes

          or laws of the state or of any municipalities or counties thereof.

       2. Aiding or abetting any uncertified or unregistered person to evade any provision of this act.

       3. Knowingly combining or conspiring with an uncertified or unregistered person by

       allowing one's certificate or registration to be used by any uncertified or unregistered person with intent to evade the provisions of this

       act. When a certificate holder or registrant allows his certificate or registration to be used by one or more companies without having any active participation in the operations, management, or control of such companies, such

       act constitutes prima facie evidence of an intent to evade the provisions of this act.

       * * *

       1. 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.

       2. Disciplinary action by any municipality

       or county, which action shall be reviewed by the state beard before the state board takes any disciplinary action of its own.

       * * *

       (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 contractor terminates the project without notification to the prospective owner and without just cause.

       
       

15. Here the burden of proof is on the Petitioner. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977) . Whether that burden is by a preponderance of the evidence or by clear and convincing evidence depends upon the nature of the sanctions sought. Here Petitioner is seeking to revoke, suspend, or otherwise discipline the license of

    Respondent. Under these circumstances Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981) requires the evidence weigh as substantially on a scale suitable for evidence as the penalty does on the scale of penalties.

    
    

16. The Supreme Court of the United States holds the standard of proof is a constitutional due process requirement. As stated in Santowsky v. Kramer, 102 S.Ct. at 1383, 1396 (1981):

    
    

    This court has mandated an intermediate standard of proof--"clear and convincing evidence"--when the individual interests in a state proceeding are both "particularly important" and "more substantial than mere loss of money," Addington v. Texas, 441 U.S. 424, 99 S.Ct. 1808. * * * Standards of proof, like other "procedural due process rules [,] are shaped by the risk of error inherent in the truth-finding process as applied to the generality of cases not the rare exceptions. Matthew v. Eldridge, 96 S.Ct. at 907.

    
    

17. Certainly loss of a valuable license is more than a mere money judgment, accordingly the findings here made are predicated upon a showing of clear and convincing evidence.

    
    

18. By his plea of nolo contendere and the entry thereafter of the punishment of five years' probation, the court found Respondent guilty of grand theft in connection with his contractual dealings with Walkowz. When the plea of nolo contendere was entered, the trial court had the choice to: (1) accept the plea and enter judgment and sentence thereon or (2) reject the plea, enter a plea of not guilty for the defendant after which defendant would have a choice of entering a plea of guilty or not guilty and then proceeding with trial. Vinson v. State, 345 So.2d 711 (Fla. 1977)

    
    

19. The significance of this guilty finding pales somewhat in the light of the court's action in dismissing any requirement for restitution by Respondent to Walkowz following a restitution hearing. That finding indicates the dispute between Respondent and Walkowz to be a civil matter properly belonging in civil courts rather than in criminal courts. No civil action was brought by Walkowz against Respondent.

    
    

20. Willful or deliberate disregard of building codes implies a specific intent to violate these codes and such proof was not here presented. The most that can be said of the evidence in this regard is that Respondent made some changes in the plans, that the plans and specifications contained discrepancies between them, that these changes were made with the knowledge and consent of the owner, and the changes were made with no effort or intent to conceal the changes from the building inspector.

    
    

21. Pulling the building permits for Hays and Sons Construction Company, while Hays remained the contractor, constitutes a violation of Section 489.129(1)(e) and (f) as alleged. The fact that Hays did not give Respondent a fixed fee for pulling the permits that Hays was not qualified to pull by reason of not being licensed in this state, does not militate against a finding of guilty of these charges. The prima facie case established by the evidence that Respondent had no say in the operations, management or control of Hays was not rebutted by Respondent's testimony that he visited the site frequently and

    therefore "supervised" the construction. In the contract to erect the filling station in Spring Hill, the owner, subcontractors, and everyone else recognized Hays as the one in charge of construction even through Respondent's name appeared on the building permit.

    
    

22. The evidence here presented will not sustain a finding that Respondent diverted funds from the Walkowz project and as a result was unable to finish the project. No evidence of such diversion was presented and, other than the admission of Respondent which he denied making, the mere fact that a project was not finished does not carry with it any presumption that funds ran out because they were diverted to other projects.

    
    

23. The action taken by the Hernando County Construction Board of Examiners resulted from a lack of communication between the Board, the staff of the building department, and Respondent. The action taken by the Board in suspending Respondent's permit pulling authority was taken to require Respondent to appear before the Board. Once he appeared and explained his position, his privileges were restored. Under these circumstances, there is no basis for action against Respondent in these proceedings based solely upon the fact the Board of Hernando County suspended his permit pulling privileges for five weeks. If that action was taken because Respondent had pulled a permit for an unqualified person, that offense is included in the charges here being considered and duplicates those charges. The same acts for which the Board ostensibly suspended Respondent's permit pulling privileges were charged in this Administrative Complaint and he should be punished only once for that act if found guilty.

    
    

24. Finally, Respondent has been charged with abandoning the project without just cause. On the witness stand Walkowz acknowledged that the had "probably" told several of the subcontractors that he was not paying Respondent any more money to complete the project although the contract provided these additional payments be made. The evidence was unrebutted that Walkowz did not pay any more money to Respondent after October 28, 1981, although Respondent worked on the project subsequent to that date. Failure to get paid in accordance with the terms of the contract constitutes good cause for stopping work on a project. Accordingly, Respondent must be found not guilty for this charge.

    
    

25. From the foregoing, it is concluded that Respondent pulled building permits to allow an unlicensed contractor to complete a construction contract and thereby violated Sections 428.129(1)(a) and (f), Florida Statutes; that his plea of nolo contendere and sentence of five years' probation constitutes being found guilty of a crime which is related to the construction of the building for Walkowz; and that he is not guilty of all other charges. A review of the suspension of privileges of pulling permits by the Hernando County Building Department indicates that action was taken because Respondent did not attend the Board meeting; and one, if not the sole, complaint against Respondent in both proceedings was that he pulled a building permit for Hays and Sons. Since a finding of guilt of that offense has been made in these proceedings, Respondent may not be twice punished in these proceedings for the same act. It is

RECOMMENDED that William W. Carlson's license as a building contractor be suspended for a period of ninety (90) days, that he be assessed a fine of

$1,000, and that he be placed on probation for five (5) years to run concurrently with the circuit court probation period.

ENTERED this 8th day of June, 1984, at Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1984.

COPIES FURNISHED:

Stephanie A. Daniel, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Daniel P. Rock, Esquire

117 North Boulevard

New Port Richey, Florida 33552

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

Jacksonville, Florida 32202

Fred M. Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. CASE NO. 10762, 14780

DOAH NO. 83-1597 & 83-3988

WILLIAM W. CARLSON,

License No. CB C010455

Respondent.

/

FINAL ORDER

THIS MATTER came before the Construction Industry Licensing Board pursuant to Section 120.57(1)(b)9., Florida Statutes, on January 10, 1985, in Tampa, Florida for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference) issued by the hearing officer in the case of Department of Professional Regulation vs. William W. Carlson, Case No. 83-1597 and 83-3988. The Petitioner was represented by Stephanie A. Daniel. The Respondent was present and represented by Counsel.

Upon consideration of the hearing officer's Recommended Order, and the arguments of the parties and after a review of the complete record in this matter, the Board makes the following findings:

FINDINGS OF FACT

1. The hearing officer's findings of fact are hereby approved and adopted.

   
   

2. There is competent, substantial evidence to support the hearing officer's findings of fact.

   
   

   CONCLUSIONS OF LAW

   
   

3. The Board has jurisdiction of this matter pursuant to the provisions of Section 120.57(1), and Chapter 489, Florida Statutes.

   
   

4. The hearing officer's conclusions of law, are hereby approved and adopted in toto.

   
   

5. The hearing officer's recommended penalty is hereby rejected in part and the penalty imposed by the Board is as follows.

   
   

6. There is competent substantial evidence to support the Board's findings and conclusions.

WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:

The Respondent shall pay a fine of $1,000.00 within 30 days of the date of this order.

The Respondent's license is hereby SUSPENDED effective 30 days from the date of this order. If the Respondent makes payment as stated above within the required time the suspension will not be imposed. If he does not make payment timely he shall immediately mail his license to the Board Office at Post Office Box 2, Jacksonville, Florida 32201 or shall surrender the license to an investigator of the Department of Professional Regulation. If imposed, the suspension will be lifted upon payment.

Pursuant to Section 120.59, Florida Statutes, the parties are hereby notified that they may appeal this final order by filing one (1) copy of a notice of appeal with the clerk of the agency and by filing the filing fee and one (1) copy of a notice of appeal with the District Court of Appeal within thirty (30) days of the date of this order is filed.

DONE AND ORDERED this 4th day of February, 1985.

DONALD W. STOBS, Chairman Construction Industry Licensing Board

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been provided by certified mail to William Carlson, 10527 Pinto Drive, Hudson, Florida 33568, Daniel Rock, Esquire, 117 North blvd., New Port Richey, Florida 33552 and by hand delivery/United States mail to the Board Clerk, Department of Professional Regulation and its Counsel, 130 North Monroe Street, Tallahassee, Florida 32301, by 5:00 p.m., this 14th day of February, 1984

Docket for Case No: 83-001597

Orders for Case No: 83-001597