STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 84-1536

)

GEORGE W. BROWN, )

)

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 case on September 5, 1984, at Tampa, Florida.

APPEARANCES

For Petitioner: James H. Gillis, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: George W. Brown, pro se

11222 Russell Drive

Seffner, Florida 33584

By Administrative Complaint filed August 10, 1983, the Department of Professional Regulation, Petitioner, seeks to revoke, suspend, or otherwise discipline the license of George W. Brown as a registered general contractor, registered building contractor, and as a registered Class A air conditioning contractor. As grounds therefor it is alleged that in connection with a contract to build an addition to a residence, Daryle Hoffman as B & B Constructors, Inc., contracted with Vernon Swanger to construct the addition for

$9,150 and paid Swanger $3,000 on his contract; that Respondent pulled the permit for this job as general contractor because B & B Constructors, Inc., or Hoffman had no contractor's license; that in so doing Respondent aided and abetted an unlicensed contractor to use Respondent's license to get the building permit; that Respondent acted under a name other than on his license and failed to qualify that company (B & B Constructors, Inc.); that the $3,000 given to Hoffman upon the signing of the contract was diverted to other projects and because of the diversion the contractor was unable to complete the contract; and that Respondent was disciplined by the City of Tampa for misconduct in connection with the Swanger job.

The parties presented a prehearing stipulation and thereafter Petitioner called three witnesses, including the Respondent, and 24 exhibits were admitted into evidence. The numerical sequence of the exhibits goes from 1 to 25, but there is no Exhibit 9.

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

FINDINGS OF FACT

1. At all times relevant hereto, Respondent was licensed as a registered building contractor and as a registered general contractor.

   
   

2. On or about August 4, 1982, Hoffman, representing B & B Constructors, Inc., contracted with Vernon Swanger to build an addition to the Swanger residence at 4412 West Lelia Avenue, Tampa, Florida.

   
   

3. The contract price for the addition to the Swanger residence was

   $9,150.

   
   

4. On August 4, 1982, Swanger made the initial payment to Hoffman of

   $3,000 by check on this contract.

   
   

5. Prior to the signing of this contract, Hoffman had contacted Respondent, who agreed to pull the permit for this project and who signed a blank proposal which was subsequently completed, executed by Swanger and Hoffman on 4 August 1982, and became Exhibit 2 in these proceedings.

   
   

6. On or about August 16, 1982, Respondent obtained a permit for the addition to the Swanger residence from the City of Tampa Building Department showing Respondent as the licensed contractor for the job.

   
   

7. Although Respondent signed the stipulation of facts that "All or the greater part of the $3,000.00 which was the first or initial payment on the contract for the Swanger addition was diverted from the construction work," Hoffman testified in Exhibit 25 that he used the $3,000 to buy materials for the project and to pay his (Hoffman's) salary for his work on the project. Under the facts here presented, Hoffman was the only one who knew for what this $3,000 had been used. In his deposition Hoffman testified that an excessive number of rainy days resulted in cost overruns resulting in insufficient money to complete the project.

   
   

8. At no time relevant hereto was Hoffman of B & B Constructors, Inc., licensed as a contractor by the State of Florida.

   
   

9. Respondent visited the Swanger residence once or twice while the work was in process, but all materials were ordered by Hoffman, all subcontractors were hired by Hoffman or Swanger, Hoffman was the one supervising the project, and Respondent's participation and supervision was, at best, pro forma.

   
   

10. At no time was Respondent the qualifying agent for B & B Constructors, Inc., although Respondent briefly considered acquiring B & B Constructors, Inc., at or about the time the contract with Swanger was negotiated.

11. The City of Tampa, Florida, is the local government with jurisdiction of the area, which is part of Hillsborough County, where Respondent is qualified as a licensed contractor.

    
    

12. On or about January 11, 1983, as the result of a complaint filed by Swanger, Respondent's license to practice contracting in Tampa was revoked by the City of Tampa Unified Construction Trades Board.

    
    

13. Respondent testified that he paid for the permit pulled for the Swanger project out of his own pocket and was never reimbursed by Hoffman. However, in Exhibit 25, Hoffman testified that he gave Respondent $100 in cash with which to pull the permit and his agreement with Respondent was to pay Respondent 3 percent of the contract price to pull the permit as licensed contractor.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

15. Section 489.129(1), Florida Statutes, provides the board may revoke, suspend, or deny the issuance or renewal of the registration of the contractor, or impose an administrative fine not to exceed $5,000, or reprimand or censure a contractor if the contractor is found guilty of:

    
    

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

    2. 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.

    3. Acting in the capacity of a contractor under any certificate or registration issued hereunder except in the name of the certificate holder or registrant as set forth on the issued certificate or registration, or in accordance with the personnel of the certificate holder or registrant as set forth in the application for the certificate or registration, or as later changed as provided in this act.

    4. 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.

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

    6. Failure in any material respect to comply with the provisions of this act.

       
       

16. 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). Revocation of license proceedings are penal in nature. State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973).

    
    

17. Whether the burden of proof is by a preponderance of the evidence or by clear and convincing evidence depends upon the nature of the sanctions sought. Petitioner here seeks 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.

    
    

18. The Supreme Court of the United States holds that the standard of proof is a constitutional due process requirement. In Robinson v. Department of Professional Regulation, Board of Dentistry, 447 So.2d 930 (Fla. 3rd DCA 1984), the Third District Court of Appeal held procedural due process goes to evidentiary standards of proof in license revocation proceedings. This corresponds to the United States Supreme Court's holding in Santowski v. Kramer, 102 S.Ct. 1333, 1396 (1981) that:

    
    

    This court has mandated an intermediate standard of proof--"clear and convincing evidence"--when the individual interests in a state proceeding are "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 in the truth finding process as applied to the generality of cases, nor the rare exceptions." Matthew v. Eldridge, 96 S.Ct. at 907.

    
    

19. Certainly loss of a valuable license to engage in business as a contractor is more than a "mere money judgment"; accordingly, the findings here made are predicated upon a showing of clear and convincing evidence.

    
    

20. From the evidence presented, it is clear that Respondent aided and abetted an unlicensed contractor by pulling the permit for the Swanger addition; that Respondent's signature as licensed contractor was on the contract entered into by B & B Constructors, Inc., and Respondent never qualified B & B Constructors, Inc.,; and that Respondent's license was revoked by the City of Tampa Unified Construction Trades Board for pulling the permit for an unlicensed contractor to carry out a construction project. The evidence will not support a finding that the $3,000 paid upon the execution of the contract was diverted to other projects than the one for which it was paid. Although the stipulation signed by Respondent admitted the $3,000 was diverted, Respondent was not

represented by an attorney, and no evidence was presented regarding the disposition of these funds other than the deposition of Hoffman (Exhibit 25). Hoffman bought all of the materials, hired and paid subcontractors, and no evidence was submitted that Respondent knew for what the $3,000 paid to Hoffman was used. Hoffman denied diverting any of this money to other projects and Hoffman was the only one in a position to know what happened to the monies he received from Swanger to carry out this contract. Accordingly, the evidence presented will not support a finding that Respondent diverted funds received from Swanger, or that any of these funds were actually diverted. Hoffman's testimony that an excessive number of rainy days during the time the project was to be completed caused cost overruns and resulted in no money left to complete the project, is more believable than the stipulation signed by Respondent that this initial $3,000 was diverted.

RECOMMENDATION

From the foregoing it is concluded that Respondent is guilty of all charges alleged except violation of Section 489.129(1)(h), Florida Statutes, involving diversion of funds. In view of Respondent's voluntary inactivation of his license since June 1983 it is recommended that Respondent's license be suspended for six (6) months from the date the Construction Industry Licensing Board enters its final order in this case.

DONE AND ENTERED this 19th day of October 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 19th day of October 1984.

COPIES FURNISHED:

James H. Gillis, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

George W. Brown 11222 Russell Drive

Seffner, Florida 33584

Fred M. Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

James Linnan, Executive Director

Board of Construction Industry Licensing Board Department of Professional Regulation

Post Office Box 2 Jacksonville, Florida 32202

Docket for Case No: 84-001536

Orders for Case No: 84-001536