STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL )
REGULATION, CONSTRUCTION )
INDUSTRY LICENSING BOARD, )
)
Petitioner, )
)
vs. ) CASE NO. 84-0440
)
JAMES A. GREEN, )
)
Respondent. )
)
RECOMMENDED ORDER
For Petitioner: Stephanie A. Daniel, Esquire For Respondent: James A. Green, pro se
A final hearing was held in this case in Palmetto, Florida on June 28, 1984. The issue is whether respondent's registered building contractor's license should be revoked, suspended or otherwise disciplined, based on allegations that he violated:
Section 489.129 (1)(d) , Florida Statutes (1981) in that he willfully or deliberately violated Section 114.4(6), Sarasota County Ordinance No. 80-90, which prohibits dishonest practices in the trade, misrepresentations of any sort, or financial irresponsibility;
Section 489.129(1)(c), Florida Statutes (1981), when he made misleading, deceptive, untrue or fraudulent representations in the practice of his profession;
Section 489.129(1)(h), Florida Statutes (1981), in that he diverted funds received for prosecution or completion of a specified construction project or operation and as a result of the diversion is or will be unable to fulfill the terms of his obligation or contract; or
Section 489.129(1)(k) , Florida Statutes (1981), in that he abandoned a construction project in which he was engaged or under contract.
FINDINGS OF FACT
At all times material hereto, respondent was licensed as a registered building contractor having been issued license number RB 00034797 by the State of Florida (see Petitioner's Exhibit 1).
On or about January 11, 1982, respondent entered into a contract with Emil and Agnes Gerlt to construct a residence to be located at Singletary Road in Sarasota, Florida. The contract price was $57,420. The home construction agreement was to be part of a trade agreement between the contractor, the
respondent, and the Gerlts. Under the terms of the trade agreement, respondent was to receive the Gerlts' existing home, located at 3376 South Seclusion Drive, Sarasota, Florida, in trade for constructing the Gerlts' home. The home was to be completed within one hundred fifty (150) days (see petitioner's Exhibit 6 and Transcript, page 105).
By an addendum to the Home Construction Agreement executed by respondent and the Gerlts, the parties to the agreement further agreed that the contract price, $57,420.00, was to be paid as follows:
$ 5,742.00 or 10 percent as a down payment
$ 5,742.00 or 10 percent when slab is poured
$ 8,613.00 or 15 percent when walls are up
$14,355.00 or 25 percent when sub roof is on
$14,355.00 or 25 percent when drywall is completed
$ 8,613.00 or 15 percent when building is completed (see petitioner's Exhibit 6).
Emil and Agnes Gerlt had contacted the respondent about construction of a new home through a newspaper ad placed in the Sarasota Herald Tribune. In the ad, respondent had offered to build residences in exchange for the purchaser's existing home. At the time, the Gerlts had been attempting to sell their existing home for some time without success. Mr. Gerlt's health required the relocation from the Gerlts' existing home, a multilevel home, to a single story home. After the Gerlts discussed their requirements with the respondent, a contract was drawn up by the respondent. The Gerlts submitted the contract to their attorney, Robert Johnson, and upon obtaining Johnson's approval, signed the Home Construction Agreement noted above. (See Transcript, pages 28-29).
In or about February, 1982, Emil and Agnes Gerlt entered into a trade agreement with respondent to transfer the Gerlts' Seclusion Drive residence to Green. The agreement was subject to the construction, by respondent, of the Gerlts' new home on Singletary Road, in Sarasota County, Florida. As part of the agreement, respondent was to actively seek to sell the Seclusion Drive property. The first $70,000 received from the sale of that property was to go to the Gerlts. Respondent was to receive a 6 percent commission. Any amounts remaining were to go to the Gerlts. If respondent was unable to sell the Seclusion Drive property prior to June 30, 1982, or the date of occupancy for the Singletary Road residence, whichever occurred first, the Seclusion Drive property was to be the sole property of respondent subject to payment in the amount of $70,000 to the Gerlts. (See respondent's Exhibit 1).
After the Gerlts and respondent signed the above described agreement,
M. Daniel Poling, Nancy Poling and Ethel E. Weathers (Mrs. Poling's mother), came by the Seclusion Drive property, without an appointment, and asked if they could see the residence. Mrs. Gerlt showed the Polings and Weathers the home and then referred them to respondent as the person handling the sale of the home. (See Transcript, pages 37-38).
After the Polings and Weathers contacted respondent, respondent drew up a Contract for Sale of Real Estate, dated February 4, 1982, whereby Ethel Weathers was to sell her residence to the Gerlts for the sum of $54,000. At this point a three-way trade was anticipated between the parties. The Gerlts would obtain Weathers' property as well as an additional cash payment in exchange for their own property which would be transferred to the Polings and Weathers. Then the Polings and Weathers' residence, located at Bouganvillea
Street, in Sarasota, Florida, would take the place of the Seclusion Drive property in the transaction for construction of a new home between the Gerlts and respondent. The Contract for Sale of Real Estate, dated February 4, 1982, was never fully executed, because Robert Johnson, the Gerlts' attorney, did not approve the agreement. (See petitioner's Exhibit 10 and Transcript pages 109- 110).
Subsequent to the time the February 4, 1982 Contract for Sale of Real Estate was prepared, Robert Johnson, as the Gerlts' attorney, prepared another Contract for Sale of Real Estate which was fully executed by the parties. The contract provided that the Gerlts would sell their Seclusion Drive property to the Polings and Weathers for the sum of $84,000. As a special condition of the contract the Polings and Weathers were to execute a Mortgage and Promissory Note in the sum of $42,000, at 15 percent per annum, on Weathers' residence located on Bougainvillea Street, Sarasota, Florida, in favor of the respondent and the Gerlts. In the event that the Mortgage and Promissory Note was not paid off by April 17, 1982, the Polings and Weathers would deed their Bougainvillea property to Green and the Gerlts as a $42,000 credit on the contract. (See petitioner's Exhibit 8).
The contract described immediately above further provided that the closing should-occur on the entire transaction on April 17, 1982. However, the Polings and Weathers would remain in the Bougainvillea residence, and the Gerlts would remain in the Seclusion Drive residence until ten days after the respondent obtained a certificate of occupancy for the construction being performed on the Gerlts' Singletary Road residence. Upon completion of the Singletary Road residence the Gerlts were to either assign their interest in the mortgage or quit claim their interest in the Bougainvillea residence to James A. Green. (See petitioner's Exhibit 8).
As compensation for his services in the transfer, Green received a transfer fee in the amount of $5,000. (See petitioner's Exhibit 9).
On or about March 22, 1982, respondent applied for and obtained a building permit from the Sarasota County, Florida Building and Construction Department for the construction of the Gerlts' new residence at 16700 Singletary Road, in Sarasota County, Florida. (See petitioner's Exhibit 5).
In April, 1982, respondent began to perform work on the Gerlts' new home. (See Transcript, page 47).
On May 21, 1982, the Gerlts executed an Adjustable Mortgage Loan Note in the amount of $42,000 plus interest, at the rate of 15.75 percent per annum, in favor of Amerifirst Federal Savings and Loan Association. The mortgage was secured by the property located at 2304 Bougainvillea Street. The proceeds of the loan were to be used to pay for the construction of the Gerlts' new home. Under the terms of the original agreement between respondent and the Gerlts, dated February 1982, respondent was to pay all costs related to the financing of construction and he was to hold the Gerlts harmless from said construction mortgage and payments due thereon until the contract was fully completed. (See petitioner's Exhibits 4 and 8, respondent's Exhibit 1 and Transcript pages 48 and testimony of Robert Johnson).
Although respondent made one payment of $1,669.02, on October 22, 1982, that check was dishonored and respondent made no further payments on the mortgage for the Bougainvillea property held by Amerifirst Savings and Loan Association. Under the terms of the Adjustable Mortgage Loan Note executed by the Gerlts, mortgage payments were to be made in monthly payments of $556.34 each. (See petitioner's Exhibit 4).
Between approximately June 4, 1982 and December, 1982, respondent received the following payments from the Gerlts totaling $33,912:
DATE | AMOUNT |
June 4, 1982 | $11,484 |
June 22, 1982 | $ 8,613 |
June 23, 1982 | $14,355 |
Unknown | $14,355 |
(see petitioner's Exhibit 13 and Exhibit 12 and testimony of Johnson)
In addition to the amounts noted above, respondent received payment for the following changes or "extras" in construction of the Gerlts' home:
DATE | AMOUNT WORK | PERFORMED | |
June 4, | 1982 | $ 250.00 | Rough-in shower in workroom |
June 4, | 1982 | $2,250.00 | Complete Porch |
Sept.3, | 1982 | $ 98.75 | Change kitchen window |
from awning to slider | |||
Sept.3, | 1982 | $ 35.00 | Change present kitchen |
window | |||
TOTAL |
| ||
$2,633.75 |
In addition to the changes or "extras" in construction noted above, respondent was to perform the following changes or "extras" in construction of the Gerlts home:
The front porch area was removed making the front of the house straight across at no extra cost.
The cabinets in the kitchen were changed. One set of cabinets and a countertop was changed to eighteen inches and another set was changed to twenty-four inches. There was also a change in the placement of the refrigerator. The Gerlts were to pay for this change.
Completion of the shower in the workroom, at owner's expense.
The family room was enlarged by two feet six inches resulting in two additional sheets of paneling, at owner's cost.
There was an increased amount of tile in the guest bath area resulting in an additional cost of $18.00.
The owners selected a more expensive tile for the master bathroom than specified in the contract specifications. The Gerlts were to pay Green $30-$40 to install the more expensive tile.
The contractor was no longer obligated to
furnish or install the floor covering or carpet. Therefore, the owner was to receive a $3,450 credit on the contract price.
(See petitioner's Exhibit 26 and Transcript, pages 59 and 95-98).
In approximately August 1982, a dispute arose between the Gerlts and respondent over the extras on the Gerlts new residence. The disputed items included the cost of renting an electric generator for one month, at a cost of
$366.30. The Gerlts did not want to pay the rental fee because they had intended to furnish a generator for the project. At the time, Mr. Gerlt worked for a person who owned a distributorship and could easily have obtained a generator for the project. (See Transcript, page 92 and petitioner's Exhibit 21).
Respondent asserted that there was a change in the fireplace which resulted in an increased cost on the Gerlts' project. From the beginning, both the Gerlts and the respondent had agreed that the fireplace was supposed to be placed directly on the slab. On March 18, 1982, the Gerlts sent respondent a letter confirming this fact. The respondent constructed the fireplace on a raised hearth and then attempted to charge the Gerlts for the cost of returning the hearth to its original position. (See Transcript, pages 61 and 98).
On or about August 10, 1982, Overhead Door Company of Sarasota furnished two garage doors which were used in construction of the Gerlts' Singletary Road residence. The doors were furnished pursuant to an agreement with the respondent. Under the terms of his agreement with Overhead Door Company of Sarasota, respondent was to pay for the doors within thirty days of the invoice date. Inasmuch as respondent failed to timely pay for the doors, Overhead Door Company of Sarasota filed a Claim of Lien in the amount of $514.50 against the Gerlts' property. (See petitioner's Exhibits 17, 13, and 19, and Transcript, pages 76-82 and 132)
The dispute between the Gerlts and Green brought work to almost a completed halt. After the receipt of the $14,355 payment due upon completion of the drywall, respondent did little work on the project. Eventually, Green hired an attorney, Frank Calabrese, to represent him in the dispute. On September 2, 1982, the parties and their attorneys met at the job site in an attempt to resolve the dispute. As a result of that meeting, the parties verbally agreed to the items which were changes or extras. The only items designated as changes resulting in an additional cost, to be borne by the Gerlts, were the shower in the workroom, cabinet changes, the additional paneling in the family room, and the changes in amount and quality of tile used in both the guest and master bathrooms. (See petitioner's Exhibit 26 and testimony of Johnson).
Nothing was done on the project, despite the agreements of the Gerlts and respondent made on September 2, 1902. Although respondent had agreed to make certain corrections in the home, he did not do so. Finally, at this time the Gerlts discovered that respondent had made no payments on the Amerifirst Savings and Loan mortgage. Therefore, Robert Johnson wrote a letter to respondent's attorney, Calabrese, in attempt to obtain some satisfaction of the problems aforementioned. (See Transcript pages 116-117, 122 and petitioner's Exhibit Number 23).
On September 20, 1982, the respondent wrote a letter to Robert Johnson wherein he stated that it was impossible to complete the Gerlts' home until two problems were resolved. Specifically, respondent wanted some written resolution of the amounts to be paid by the Gerlts for extra tile and the extra kitchen cabinets. Respondent further stated, falsely, that Interior Installation, from whom the original cabinets had been ordered, refused to build the cabinets because Mrs. Gerlt had threatened to sue the owner of Interior Installation. Respondent also asserted that the contract between the Gerlts and respondent was breached when the Gerlts refused to pay for the generator on the job. Finally, respondent said that the owners had requested additional outlets which had been installed, but for which the electrician had not been paid. (See petitioners Exhibit 24).
In response to this letter from Green, Johnson drafted a letter to Calabrese, on October 4, 1982, on behalf of the Gerlts. By the letter, Johnson agreed to hold the extra amount owing because of changes in amount and quality of tile used on the Gerlts' home until completion of the job, at which time respondent would receive payment. Johnson denied categorically respondent's statements about Interior Installations. Interior Installations agreed to do the work if payment was made in advance. The Gerlts agreed to pay Interior Installations the cost of the cabinet changes. Finally, Johnson indicated that the generator problem could be dealt with in the final resolution of the contract. (See petitioner's Exhibit 25).
At this time, respondent already had one other project where respondent had failed to pay Interior Installations for work performed. At the time, he was sixty days late in payment for that project. Inasmuch as Interior Installations was also aware of the conflict between the owners and contractor, they requested full payment prior to beginning the work. They did not receive payment and, therefore, did not do the work. There was no evidence that the Gerlts had threatened to sue the company. Subsequent to this time, a judgment was obtained against respondent for the full amount owing on the other project. (See Transcript, pages 84).
On October 14, 1982, respondent talked with Robert Johnson and told him that respondent would order the cabinet work on October 14, 1982, and that the work would be done within two weeks. Respondent told Johnson that he would deliver the Gerlts' house for occupancy by November 4, 1982. Respondent also agreed to attend to the deficit with the Amerifirst Federal Savings and Loan Association Mortgage by October 15, 1982. (See petitioner's Exhibit 27 and Transcript, page 22).
Despite his assurances, respondent did not complete those items which he told Johnson he would complete. Respondent did make one payment, by check dated October 18, 1982, to Amerifirst Savings and Loan Association of $1,669.02. However, the check was returned marked "insufficient funds". (See petitioner's Exhibit 4 and Transcript, pages 122-123).
On October 28, 1982, Johnson again talked with the respondent. The respondent told Johnson that the paneling in the family room was supposed to be done that day. Respondent also told Johnson that the tile person was supposed to be at the job site that day. Respondent said that Amerifirst Federal Savings and Loan would be paid $1,660. Respondent further stated that he had hired R & M Cabinets to do the cabinetry work on the Gerlts' home. (See Transcript, page 124).
Again respondent's promises were not fulfilled. Furthermore, when Johnson called R & M. Cabinets about the cabinetry work on the Gerlts' home, the company requested payment in advance before the work was performed. (See Transcript, page 124).
On November 1, 1982, Johnson again spoke to Green about the construction of the Gerlts' residence. Respondent told Johnson that he would have to hire another bricklayer immediately and that the job would be finished by the following Wednesday. (See Transcript, page 124).
Again the respondent did not do what he told Johnson he would do on the Gerlts' home. (See Transcript, page 124).
On November 24, 1982, the Pollings and Weathers served an eviction notice on the Gerlts, who still resided in their Seclusion Drive residence. Although the Polings and Weathers had agreed to stay in their Bougainvillea residence until 10 days after a certificate of occupancy was issued on the Gerlts' new home, and to allow the Gerlts to remain in their Seclusion Drive residence until the same date, this was with the understanding that the Gerlts' new home would be finished by July, 1982. (See Transcript, page 125 and testimony of Mrs. Gerlt).
After the Gerlts received the eviction notice, they contacted Robert Johnson who, in turn, contacted the respondent. According to respondent, the bathroom and the kitchen cabinets were ordered and would be installed by December 8, 1982. By December 10, 1982, the plumbing, air conditioning and cabinetry would be finished. Finally, respondent told Johnson that a certificate of occupancy would be issued by December 15, 1982 for the Gerlts' home. (See Transcript, page 126).
On December 8, 1982, respondent told Johnson that the cabinetry in the Gerlts' home would be done by the following Wednesday. Again, however, the respondent failed to perform as promised. (See Transcript, page 127).
Although attempts were made to delay eviction, the Gerlts were evicted from their home on December 16, 1982. (See testimony of Mrs. Gerlt).
On December 17, 1982, Johnson wrote respondent a letter telling him to finish the Gerlts' home or to be prepared to deliver a cashiers' check. (See Transcript, page 127).
On or about December 17, 1982, Generation Electric, Inc., filed a "Claim of Lien" against the Gerlts' Singletary Road property for electrical wiring performed on that residence between June 16, 1982 and December 14, 1982, pursuant to an agreement with the respondent. The Claim of Lien was for the sum of $852.50. (See petitioner's Exhibit 16).
Respondent performed no further work on the Gerlts' home. Respondent furnished no notice to the Gerlts or their attorney of his intent to stop work on the Gerlts' home. (See testimony of the Gerlts and Johnson). The Gerlts assumed the completion of the construction project on or about January 14, 1983.
At the time respondent ceased work on the Gerlts' home, the construction was only a little over 50 percent completed. The kitchen was not begun; the bathrooms were not begun, with the exception of one bathtub in one bathroom; there was no septic tank; and there was no heat or air conditioning installed in the Gerlts' home. (See Transcript, pages 23-24, 55 and 102).
It cost the Gerlts approximately $10,611.60 in labor and materials to complete their home. Mr. Gerlt performed most of the actual work himself. (See Transcript, pages 63-64).
At the time respondent ceased work on the Gerlts' property, the mortgage on the Bougainvillea property was in default. Respondent had made no payments on that mortgage even though payments were past due. The Gerlts had to satisfy the mortgage on the Bougainvillea property. (See petitioner's Exhibit 4 and testimony of Mrs. Gerlt).
CONCLUSIONS OF LAW
The Construction Industry Licensing Board is empowered to revoke, suspend or otherwise discipline the registration or certificate of a contractor if he is found guilty of violating any of the following provisions of Section 489.129(1), Florida Statutes (1981):
Violation of Chapter 455;
Willful or deliberate disregard and violation of the applicable building codes or laws of the state or any municipalities or counties thereof:
* * * *
(h) Diversion of funds or property received for prosecution or completion of a specified construction project or opera- tion when as a result of the diversion
the contractor is or will be unable to fulfill the terms of his obligation or contract; and
* * * *
(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.
License revocation proceedings are penal in nature. The prosecution agency is required to prove its charges by competent, substantial evidence. See Florida Real Estate Commission v. Webb, 367 So.2d 201 (Fla. 1978); Brewer v. Insurance Commissioner, 392 So.2d 593 (Fla. 1st DCA 1981); and City of Lake Wales v. PERC, 402 So.2d 1224 (Fla. 2nd DCA 1981).
As to Section 489.129 (1)(d), Florida Statutes (1981), the question is whether respondent willfully or deliberately violated Sarasota County Ordinance No. 80-90, Section 114.4(6). Section 114.4(6), Sarasota County Ordinance No.
80-90, provides that a contractor licensed by Sarasota County, Florida, may be disciplined for, among other violations, dishonest practices in the trade, misrepresentations of any sort or financial irresponsibility.
Uncontroverted evidence was presented to establish that respondent, by the terms of the trade agreement signed by the Gerlts and respondent, represented that he would pay all costs pertaining to the financing of contruction of the Gerlts' new home. By the same agreement, respondent agreed to hold harmless the Gerlts from the construction mortgage and payments due thereon until all payments due on the contract had been made. This trade-in agreement was incorporated into the contract for Sale of Real Estate executed by Weathers, the Polings, the Gerlts and respondent. Furthermore, on numerous occasions, respondent verbally represented that he would make the payments on the Amerifirst Federal Savings and Loan mortgage on the Bougainvillea property and keep payment current. It is equally evident that respondent did not make any payments on that mortgage. The Gerlts were forced to make the payments in order to avoid foreclosure.
In an action to prove that a representation is misleading, deceptive or untrue, or a misrepresentation, where the representation is one of future intention, one must show not only that the representation of future intention is misleading, deceptive or untrue, but also that the statement, at the time it was made, was made with knowledge of its falsity. See, Bred v. Jernigan, 188 So.2d
575 (Fla. 2nd DC 1966); and Travelodge Intern., Inc., v. Eastern Inns, 382 So.2d 789 (Fla. 1st DCA 1980).
In the present case, respondent made a statement of his intention to make payments on the construction mortgage which was to be obtained at a later date and was, in fact, ultimately obtained on the Bougainvillea property. Respondent later made continual misrepresentations about the payment of the construction mortgage obtained through Amerifirst Federal Savings and Loan Association. State of mind may be inferred from one's actions, and intent may be established by the facts and circumstances of a case. See, Edwards v. State,
302 So.2d 479 (Fla. 3rd DCA 1974). Respondent's actions evidence an intent to misrepresent certain facts to the Gerlts. His misrepresentations also fall into the category of dishonest dealing. Finally, his actions are characterized by financial irresponsibility. Therefore, respondent violated Section 114.4(5), Sarasota County Code of Ordinances.
The next issue is whether the violations were willful or deliberate, as required by Section 489.129(1)-(d), Florida Statutes (1981). There has been no judicial determination of the words "willful" and "deliberate" as they appear in Chapter 468, Florida Statutes, which is now Chapter 489, Florida Statutes.
In Webster's New Collegiate Dictionary, "willful" is defined as "obstinately and often perversely self willed; done deliberately; INTENTIONAL. . ." and "deliberate" has been defined as "characterized by or resulting from careful and thorough consideration, characterized by awareness of the consequences." In the criminal sphere, willfulness has often been equated with acting with knowledge. See Brown v. State, 334 So.2d 597 (1976); and People v. Blair, 579 P.2d 1133
(1978).
In County Canvassing Board of Primary Elections of Hillsborough County
v. Lester, 118 So.201, at 202 (Fla. 1928), the court stated that "the word
`willful' like many other words in our language is elastic, and is of somewhat varied signification according to the context in which it is found and the nature of the subject matter to which it refers." In Hodgson v. Hyatt, 318 F. Supp. 390 at 392-393 (N.D. Fla. 1970), the term "willful" was applied to ". .
.violations which were intentional, knowing or voluntary as distinguished from accidental and was used to characterize conduct marked by a careless disregard whether or not one has the right so to act." (emphasis supplied)
Several federal cases have construed the terms "willful" and "deliberate" in the context of license revocation under the federal APA. In license revocation proceedings under the Gun Control Act of 1968, federal courts have stated that:
"The Bureau of (Alcohol, Tobacco and Firearms) must prove that Petitioner knew of his legal obligation and purposefully disregarded or was plainly indifferent to the...requirements
...There is no requirement of bad purpose as might be imposed with a court faced with determining the definition of willfulness in a criminal prosecution."
Shyda v. Director, Bureau of Alcohol, Tobacco and Firearms, 448 F. Supp. 409 at
415 (M.D.P.A. 1977); accord Lewin v. Blumenthal, 590 F. 2d 268, at 269 (8th Cir 1979); Perri v. Department of Treasury, 637 F. 2d 1332, at 1336 (9th Cir 1981); Stein's Inc. v. Blumenthal, 649 F. 2d 463, at 467 (7th Cir 1980).
It is clear that the respondent's actions in violating the provisions of Section 114.4(6), Sarasota County Ordinance No. 80-90, were deliberate as opposed to accidental. He therefore violated Section 489.129(1)(d).
As to Section 489.129(1)(c), Florida Statutes (1981), the issue is whether respondent violated Section 455.227(1)(a), Florida Statutes (1981). Section 455.227(1)(a) Florida Statutes (1981), empowers a board to revoke, suspend otherwise discipline a licensee if the board finds that the licensee has made misleading, deceptive, untrue or fraudulent representations in the practice of his profession.
In the instant case, competent, substantial evidence established that the respondent did in fact make the representations described above. Furthermore, those representations were untrue, misleading and deceptive, if not fraudulent in character. Respondent's violations of Section 489.129(1)(d), Florida Statutes (1981), in the manner described above, establishes that respondent also violated Section 455.227(1)(a), Florida Statutes (1981) and thereby Section 489.129(1)(c), Florida Statutes (1981). (5)
As to Section 489.129(1)(h), Florida Statutes (1981), the issue is whether respondent diverted funds received for the prosecution of the Gerlts' project.
At the time respondent ceased work on the Gerlts' home, the home was only a little over percent completed, based on the inspections performed by the Sarasota County Building and Construction Department. Therefore, excluding extras, respondent should have received slightly more than 50 percent of the contract price, or a little more than $28,710. However, respondent received a total of $48,807 or 85 percent of the contract price. Respondent received approximately $20,097 more than he should have received on the project. In addition, respondent failed to pay Overhead Door Company of Sarasota, Generation Electric, Inc., and Diamond Lumber Company.
It is clear that the respondent was unable to complete the Gerlt project. It is likely that respondent diverted some of the $20,097. However, petitioner did not prove that those sums were spent on something other than the
Gerlts' home. It is possible that respondent underbid the project, paid too much for what he did on the Gerlts' home, and was so inefficient and inept that he could not complete more than 50 percent of the job with 85 percent of the contract price. Therefore, petitioner did not prove that respondent diverted these funds received for the Gerlts' project and was thereby unable to complete the project. The alleged violation of Section 489.129(1)(h), Florida Statutes (1981), was not proved.
As to Section 489.129(1)(k), Florida Statutes (1981), the issue is whether respondent abandoned the construction of the Gerlts' new residence without notifying the Gerlts of his intent to cease work on the project and without just cause. Respondent ceased work on the project for a period in excess of 90 days and forced the owners to complete the home by performing the work themselves. Therefore, respondent violated Section 489.129(1)(k), Florida Statutes (1981). See also Recommended Order, Department of Professional Regulation v. George M. Moerler, DOAH Case No. 83-2808, entered June 28, 1984.
Based on the foregoing findings of Fact and Conclusions of Law, it is recommended that respondent's registered building contractor's license be suspended for a period of three (3) years.
RECOMMENDED this 31st day of August, 1984 in Tallahassee, Florida.
J. LAWRENCE JOHNSTON 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 31st day of August, 1984
COPIES FURNISHED:
Stephanie A. Daniel, Esquire Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Mr. James A. Green 624 47th Street West
Palmetto, Florida 33561
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
| Issue Date | Proceedings |
|---|---|
| Jan. 10, 1985 | Final Order filed. |
| Aug. 31, 1984 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 26, 1984 | Agency Final Order | |
| Aug. 31, 1984 | Recommended Order | Three-year suspension of license for deliberately breaking the local code, dishonesty and abandonment. |
