STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 84-3859

)

JERRY A. JENNINGS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on March 29, 1985, in Orlando, Florida.

APPEARANCES

For Petitioner: W. Douglas Beason, Esquire

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Jerry A. Jennings, pro se

420 Copperstone Circle Casselberry, Florida 32707

BACKGROUND

By administrative complaint filed on October 8, 1984, petitioner, Department of Professional Regulation, Florida Construction Industry Licensing Board, has charged that respondent, Jerry A. Jennings, a certified general contractor and residential contractor, had violated a Department rule and various provisions within Chapter 489, Florida Statutes. Generally, petitioner has alleged that respondent failed to properly qualify a company under which he was doing business; that he did business under a name other than on his license; that he failed to notify the Department of an address change; and that he diverted funds received for a specific construction project. All of the foregoing violations are related to a construction job undertaken by respondent in Fort Pierce, Florida in July, 1982. Petitioner alleges this conduct constitutes a violation of Subsections 489.119(2) and (3), 489.129(1)(g), (h),

1. and (2), Florida Statutes, and Rule 21E-15.07, Florida Administrative Code.

   
   

   Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes. The matter was referred to the Division of Administrative Hearings by petitioner on November 5, 1984 with a request that a Hearing Officer be assigned to conduct a formal hearing. By notice of hearing dated December 7, 1984, the final hearing was scheduled for March 29, 1985, in Orlando, Florida.

   At the final hearing petitioner presented the testimony of Kenneth John Price, Sloan Davant, Andrew Clayton Rigdon and Paul White and offered petitioner's exhibits 1-12; all were received in evidence. Respondent testified on his own behalf and presented the testimony of Frank H. Matthews. He also offered respondent's exhibits 1-7; all were received in evidence.

   
   

   The transcript of hearing was filed on April 9, 1985. Proposed findings of fact and conclusions of law were filed by petitioner on April 25, 1985. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial or unnecessary.

   
   

   At issue herein is whether respondent's licenses as a certified general contractor and certified residential contractor should be disciplined for the alleged violations set forth in the administrative complaint.

   
   

   FINDINGS OF FACT

   
   

   1. At all times relevant hereto, respondent, Jerry A. Jennings, held certified general contractor license number CG C020766 and certified residential contractor license number CR CO2OO84 issued by petitioner, Department of Professional Regulation, Florida Construction Industry Licensing Board. He has held the licenses since June, 1981 and February, 1982, respectively. Then the relevant events herein occurred, Jennings was operating a construction business under the name of Quality Control Construction in Port St. Lucie, Florida. He now resides in Casselberry, Florida and is no longer active in the construction business.

      
      

   2. Respondent formed Quality Control Construction (QCC) in January, 1981 and operated under that name as a subcontractor doing interior trim work on condominium projects in the Port St. Lucie, Florida area. Respondent did not qualify QCC with the State. In May, 1982, Jennings met with the project manager for Riverside Associates, Limited (Riverside), a development firm in Fort Pierce, Florida, and agreed to serve as general contractor and construction coordinator on a Riverside project in Fort Pierce. The job involved the renovating of an old three-story structure known as the Fort Pierce Hotel into an office building. The agreement was entered into by Riverside and respondent doing business as Quality Control Construction. Jennings applied for and obtained all applicable building permits on the job using his state contractor's license. Under the terms of the agreement Riverside agreed to make payments to QCC which in turn was responsible for insuring payment to the subcontractors and materialmen on the job.

      
      

   3. The work on the project was done in phases. The first phase was completed in January, 1983 when a partial certificate of occupancy was issued by the City of Fort Pierce. Because of a cash flow problem on the part of the developer, work on the next phase did not commence until June, 1983. At that time, QCC and Jennings agreed to finish the job and Jennings obtained all applicable permits. Although Jennings claims it did not include any electrical work, it is found that the last phase included a subcontract agreement by Jennings and White Electric Company (White) for White to do all remaining electrical work for a cost of $2,994. This is evidenced by the fact that Jennings obtained a permit on July 18, 1983 to do additional structural, electrical and air conditioning work on the project, and corrobarative testimony by a representative of White.

   4. On August 9, 1983, White submitted a bill to QCC for $2,994 representing the work performed by that subcontractor. Jennings forwarded the bill to Riverside, and on August 22, 1983, Riverside cut a check in that amount payable to QCC. The check contained the notation "For Payment to White Electric." The check was deposited by QCC into its bank account the following day. When White did not receive payment from QCC it contacted Riverside to obtain payment. A representative of Riverside attempted to locate Jennings but learned he had moved and his telephone was disconnected. After some investigation, Riverside determined that respondent had moved to Pinellas County. A certified letter was sent by Riverside to Jennings in October, 1983 requesting payment of the money due White but he did not reply. In November, 1983 a Riverside representative talked by telephone with Jennings who advised Riverside that he had financial problems and used the money due White to relocate to the west coast. Respondent did not timely notify petitioner of his change in address from Fort Pierce to Pinellas County.

      
      

   5. Riverside eventually set up a payment schedule and finally fully reimbursed White in April, 1984. To date, Jennings has not repaid Riverside. Jennings now resides in Central Florida, is in the process of filing a bankruptcy petition, and does not use his contracting licenses.

      
      

   6. Jennings claimed at hearing that Riverside never fully paid him for his services and therefore he was justified in retaining the $2,994 intended for White. However, he did not file a lien on the job, made no formal demands for the money allegedly due, and presented no documentation to support the claim.

      
      

      CONCLUSIONS OF LAW

      
      

   7. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

      
      

   8. Jennings is charged with (a) failing to comply in a material respect with Chapter 489, namely, failing to qualify a company under which he was doing business (Subsection 489.119(2), (3), Florida Statutes), and acting as a contractor in a name other than on his license (Subsection 489.129(1)(g), Florida Statutes) (Count I), (b) failing to notify petitioner within thirty days of a change in address in violation of Rule 21E- 15.07, Florida Administrative Code, and in turn with violating a Department rule in contravention of Subsection 489.129(2), Florida Statutes, (Count II), and (c) diverting funds from a specific construction project in violation of Subsection 489.129(1)(h), Florida Statutes (Count III).

      
      

   9. The evidence discloses that respondent did indeed fail to qualify Quality Control Construction with the State, and by so doing, has violated Subsections 489.129(1)(j), 489.119(2) and (3), and 489.129(1)(g) as charged in Count I of the complaint. The evidence also reflects that respondent did not notify petitioner of his change in address from Fort Pierce to Pinellas County in October, 1983, and that he has accordingly violated Rule 21E-15.07, Florida Administrative Code, and Subsection 489.129(2), Florida Statutes. Finally, the agreement between Riverside and Jennings called for Jennings to assume the responsibility of paying all subcontractors. By diverting the moneys due White Electric Company, Jennings was unable to "fulfill the terms of his obligation or contract" as required by Subsection 489.129(1)(h), Florida Statutes. Therefore, the charge in Count III has been sustained.

   10. Through counsel, petitioner suggests that respondent's two licenses be suspended for one year and that he have a $1000 fee imposed. However, it suggests that if he makes $2,994 restitution to Riverside, the suspension period be reduced. This penalty is appropriate under the circumstances.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as charged in Counts I, II and

III of the administrative complaint and that he pay a $1,000 administrative fine. It is further recommended that his two contracting licenses be suspended for one year, but if full restitution is made to Riverside, the suspension period be reduced to thirty days.

DONE and ORDERED this 2nd day of May, 1985, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 2nd day of May, 1985.

COPIES FURNISHED:

W. Douglas Beason, Esquire

130 North Monroe St. Tallahassee, Florida 32301

Jerry A. Jennings

420 Copperstone Circle Casselberry, Florida 32707

Docket for Case No: 84-003859

Orders for Case No: 84-003859