STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 84-2920

)

RONALD D. NUTT, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Melbourne, Florida on March 27, 1985, before the Division of Administrative Hearings and its duly appointed Hearing Officer R. T. Carpenter. The parties were represented by:

APPEARANCES

For Petitioner: H. Reynolds Sampson, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: David H. Simmons, Esquire, and

T. Kevin Knight, Esquire

DRAGE, DeBEAUBIEN, MILBRATH and SIMMONS

Post Office Box 87 Orlando, Florida 32802

This case arose on Petitioner's Administrative Complaint charging Respondent with disregarding an applicable building code, abandoning a construction project, making misleading and false representations, and engaging in fraud, deceit, gross negligence and misconduct in the practice of contracting, all in violation of Section 489.129(1), Florida Statutes (1981) (F.S.). At hearing, Petitioner voluntarily dismissed count four of the five count complaint.

Respondent submitted proposed findings of fact pursuant to Subsection 120.57(1)(b)4., F.S. A ruling on each proposed finding of fact has been made either directly or indirectly herein, except where such proposed findings have been rejected as subordinate, cumulative, immaterial, or unnecessary.

FINDINGS OF FACT

1. Respondent is a licensed general contractor in Florida, and was the qualifying contractor for Hallmark Builders, Inc. at all times relevant to this proceeding.

2. In November, 1982, Hallmark Builders contracted with Mr. and Mrs. Carl Mayer to, construct a residence in Melbourne Florida.

   
   

3. Mr. Mayer, who is not an architect or builder, prepared his own plans. Since there was no third party lender, Mayer determined when Respondent would be paid according to the draw schedule.

   
   

4. There were numerous difficulties presented to Respondent in his efforts to construct this residence. Mayer was uncooperative and often difficult to locate since he was a part- time resident of Florida, moved frequently, and had no telephone.

   
   

5. The principal disagreement concerned the roof design, which Respondent contends was improper. Mayer initially refused to agree to modifications suggested by Respondent and would not retain an architect to clarify his intended design.

   
   

6. Other disagreements led to Mayer's withholding of scheduled draw payments. Mayer refused to pay the first draw on completion of the foundation, even though it had been approved by the Melbourne Building Department.

   
   

7. By August, 1983 Respondent's firm had completed work to the approximate point of the third draw, but had still received no draw payments. By this time Mayer had retained an attorney, and several unproductive meetings had been held regarding difficulties in completing the project.

   
   

8. Mayer subsequently contacted the Melbourne Building Department to complain that the roof was being constructed according to plans not filed with the Building Department. This complaint was verified and a stop work order was placed on the project on August 10, 1983.

   
   

9. The evidence adduced at the hearing established that Respondent had changed Mayer's roof design to one he believed was correct, but had failed to obtain Mayer's approval or file the change with the Building Department.

   
   

10. The change made by Respondent was, according to his testimony, necessary to correct Mayer's design deficiency. Mayer's testimony to the contrary is rejected. Mayer refused to retain an architect as suggested by Respondent, and demonstrated no expertise in building design. Respondent's testimony on this point is, therefore, accepted.

    
    

11. Further efforts to resolve disputes were unsuccessful. On February 1, 1984, Hallmark Builders, Inc. filed a claim of lien on the Mayer property for

    $28,559. Mayer counter-claimed, and the suits were ultimately settled through payment of $21,000 by Mayer to Hallmark Builders, Inc.

    
    

12. The second matter at issue in these proceedings involved a contract between a Mr. and Mrs. Morgan and Hallmark Builders, Inc. Respondent was not involved in this transaction which was cancelled prior to the start of construction.

    
    

13. Mr. and Mrs. Morgan made a $1,000 deposit on their contract but, in the view of Hallmark Builders, Inc., did not make a good faith effort to secure a mortgage loan. Hallmark therefore sued to retain the $1,000 deposit. The dispute was settled through negotiations whereby Hallmark received $500 of the

    $1,000 deposit. There was no showing of impropriety in this transaction by either Hallmark Builders, Inc. or Respondent.

    CONCLUSIONS OF LAW

    
    

14. Respondent is charged with violating Section 455.227, F.S., which provides in part:

    
    

    1. The board shall have the power to revoke, suspend, or deny the renewal of the license, or to reprimand, censure, or otherwise discipline a licensee, if the board finds that:

       1. The licensee has made misleading, deceptive, untrue, or fraudulent representations in the practice of his profession. . . .

          
          

15. There was no evidence that Respondent made any of the representations condemned by the above provisions and this charge should be dismissed.

    
    

16. Respondent is further charged with violating Section 489.129, F.S., which 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 administrative 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.

       * * *

       (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.

       * * *

       (m) Upon proof and continued evidence that the licensee is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.

       
       

17. Respondent is guilty of violating a local building code by failing to file his change in plans prior to commencing construction under the change. He acknowledged this, but believed it was sufficient compliance to file such plans before the next inspection.

    
    

18. This violation is not a serious one, and no disciplinary action was taken by local authorities other than the stop work order. Therefore, the charge under Subsection 489.129(1)(d), F.S., should be dismissed.

19. Respondent did not violate the abandonment provisions contained in Subsection 489.129(1)(k), F.S. Having failed to receive any of the draw payments to which he was entitled, the Respondent demonstrated ample cause for discontinuing work on the Mayer project.

    
    

20. Respondent is likewise not guilty of violating the misconduct provisions of Subsection 489.129(1)(m), F.S. In both transactions, the customers were substantially, if not solely, responsible for their own difficulties. These charges should therefore be dismissed.

RECOMMENDATION

From the foregoing, it is

RECOMMENDED that Petitioner enter a Final Order dismissing the Administrative Complaint.

DONE and ENTERED this 13th day of June, 1985 in Tallahassee, Florida.

R. T. CARPENTER Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

FILED with the Clerk of the Division of Administrative Hearings this 13th day of June, 1985.

COPIES FURNISHED:

H. Reynolds Sampson, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

David H. Simmons, Esquire and

T. Kevin Knight, Esquire

DRAGE, DeBEAUBIEN, MILBRATH and SIMMONS

Post Office Box 87 Orlando, Florida 32802

James Linnan, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2

Jacksonville, Florida 32202

Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 84-002920

Orders for Case No: 84-002920