STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 84-1804

)

DEAN ARTURO DURAN, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Ocala, Florida, on October 3, 1984 before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The appearances were as follows:

For Petitioner: James H. Gillis, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Mr. Dean Arturo Duran

11680 Northwest 15th Lane Ocala, Florida 32675

This matter arose on Petitioner's Administrative Complaint charging Respondent, a licensed contractor, with failure to comply with local building ordinances, diverting funds received for a construction project and abandoning a construction project, all in violation of Section 489.129, Florida Statutes (1981)(F.S.). Petitioner submitted proposed findings of fact and conclusions of law. To the extent these proposed findings have not been adopted or otherwise incorporated herein, they are found to be subordinate, cumulative, immaterial, unnecessary or not supported by the evidence.

FINDINGS OF FACT

1. At all times relevant, Respondent was licensed as a certified building contractor holding license number CB CO24185.

   
   

2. On or about March 14, 1983, Respondent, doing business as Duran Construction Co., contracted with Mr. and Mrs. Thomas Butler of San Mateo, Florida, to construct a room addition and freestanding carport at their residence for $6,825. Subsequently, Respondent constructed an aluminum "roof- over" by rate contract for an additional $2,000.

   
   

3. Respondent completed the freestanding carport and aluminum roof-over projects without apparent difficulty. However, he began the room addition without obtaining the required building permit from Putnam County. 1/ He

   obtained an after-the-fact permit about April 21, 1983, but was issued a "correction notice" by the Putnam County Building and Zoning Department on April 22, 1983, ordering all work to cease until the cited deficiencies were corrected. 2/

   
   

4. The chief building inspector arranged to meet Respondent on April 214, 1983, at the construction site. The purpose of the meeting was to discuss the corrective measures required on the partially completed room addition. Respondent did not attend this meeting and did no further work on the project. His failure to attend the meeting or continue work was not explained to either the building officials or the property owner.

   
   

5. At the time Respondent discontinued work, he had been paid $4,550 on a written contract which covered the finished carport as well as the incomplete room addition. He had also been paid $2,000 for the finished roof-over project which was the subject of an oral contract. Respondent would have been entitled to an additional $2,275 on the written contract had he completed the room addition.

   
   

6. By letter of May 6, 1983, the Butlers' attorney advised Respondent that he would initiate legal action against him unless the project was completed by May 13, 1983. However, Mr. Butler had already applied to the Putnam County Building and Zoning Department for reissuance of the permit to himself in place of Respondent. The permit was reissued to Butler on May 6, 1983 and the project was completed without Respondent's further involvement.

   
   

   CONCLUSIONS OF LAW

   
   

7. Section 489.129, F.S. provides in part:

   
   

   1. The board may revoke, suspend, or deny the issuance or renewal of the certificate or registration of a contractor or impose an adminis- trative 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:

      * * *

      (d) Willful or deliberate disregard and violation of the applicable building codes or laws of the state or of any municipalities or counties thereof.

      * * *

      (h) Diversion of funds or property received for prosecution or comple- tion of a specified construction project or operation when as a result of the diversion the con- tractor is or will be unable to fulfill the terms of his obligation or contract.

      * * *

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

      
      

8. The evidence established that Respondent was required by the Putnam County Building Code to obtain a building permit prior to commencing construction. As a licensed contractor, Respondent was necessarily aware of this rudimentary requirement and must be held to have deliberately ignored it in starting the room addition without a permit, in violation of Subsection 489.129(1)(d), F.S.

   
   

9. The evidence did not establish that deficiencies in the partially completed room addition were the product of "willful or deliberate disregard. .

   . of applicable building codes. . ," but may have resulted from Respondent's lack of technical skill or expertise. However, the floor and roof framing building code violations became "willful" upon Respondent's demonstrated unwillingness to discuss or correct the cited deficiencies at the time they were discovered.

   
   

10. The evidence did not establish that Respondent diverted any funds received for a specified purpose or that such diversion, if any did occur, was the cause of his failure to complete the project. Both conditions are required for a finding of guilt under Subsection 489.129(1)(h), F.S., and neither was evident here.

    
    

11. Respondent must likewise be found not guilty of abandoning a construction project in violation of Subsection 489.129(1)(k), F.S. The appearance of project abandonment began when Respondent failed to attend his agreed meeting with the chief building inspector on April 214, and continued thereafter when he failed to return to the project. However, by May 3, 1984, only about ten days after Respondent's last work, the owner initiated action to remove Respondent as the authorized builder, and did not even allow him the completion period specified by his own attorney.

    
    

12. It must be concluded that the property owner, having lost confidence in Respondent, discharged him, thus preempting any finding that Respondent abandoned the project. Under the applicable provision, quoted above, Respondent could be found to have abandoned the project after 90 days. Here, the period of the unexplained work stoppage was about two weeks, after which Respondent was without authority to continue.

RECOMMENDATION

From the foregoing, it is

RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Subsection 489.129(1)(d), F.S., and suspending his contractors license for a period of four months.

DONE and ENTERED this 16th day of November, 1984 in Tallahassee, Florida.

R. T. CARPENTER Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 323301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 1984.

1/ A building permit must be obtained prior to construction. Section 106.1(a), Putnam County Building Code (PCBC). The PCBC is the Southern Standard Building Code adopted by Putnam County Ordinance 83-2.

2/ See Section 103.2, PCBC. The cited deficiencies included insufficient girder support for floor joists and inadequate roof framing with respect to rafters and beam construction.

COPIES FURNISHED:

James H. Gillis, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Dean Arturo Duran 11680 N.W. 15th Lane

Ocala, Florida 32675

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

Docket for Case No: 84-001804

Orders for Case No: 84-001804