STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) Case No. 85-1321

)

VINCENT A. CONRAD, )

)

Respondent. )

)

RECOMMENDATION

Pursuant to a notice, a formal hearing was held in the above-styled case before the Division of Administrative Hearings by its duly designated Hearing Officer, Stephen F. Dean, on October 15, 1985 in New Port Richey, Florida.

This case was presented upon a three count administrative complaint which alleges that the Respondent failed to qualify a company before engaging in contracting; that Respondent has acted in a name other than that set forth on his license; that the Respondent was convicted and found guilty of a crime, in any jurisdiction, which directly relates to the practice of contracting; that the Respondent made misleading, fraudulent, untrue, or deceptive representations in the practice of contracting; and that the Respondent diverted funds received for the completion of a specified construction project. The following allegations were proven: that the Respondent has acted in a name other than that set forth on his license; that Respondent failed to properly qualify a company under which he was doing business; and that Respondent was found guilty of a criminal offense related to the practice of contracting. The other allegations were not proven or, if the facts were proven, it was determined that the acts did not violate the statute.

APPEARANCES

For Petitioner: Nancy M. Snurkowski

Department of Business Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Vincent A. Conrad, Pro Se

700 Seabreeze Drive

Port Richey, Florida 33568

The transcript of the hearing was filed on October 28, 1985. Proposed findings of fact and conclusions of law were filed by Petitioner on November 4, 1985. The Petitioner has submitted post-hearing Proposed Findings of Fact. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent, Vincent A. Conrad, held a registered building contract's license, issued in August 1973 by the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board. (Petitioner's Exhibit 1) Respondent qualified CNC Enterprises, Inc. under his registered building contractor's license, number RB 0014098. (Petitioner's Exhibit

   1) He admitted that he did not qualify Gulfport Homes, Inc., although he did business under that name.

   
   

2. On July 9, 1981, Vincent A. Conrad, d/b/a Gulfport Homes, Inc., contracted with Joseph and Josephine Scovazzo to build a single story house on Lot 2, Unit 6 of the Westport Subdivision; 611 Seabreeze Drive, Port Richey, Florida. The contract price of $87,100.00 included the price of the lot and the construction of the single story "Windjammer" house. Construction was to begin on or about August 15, 1981. The contract required a $10,000 earnest money down payment and a subsequent $22,000 payment to start construction. (Petitioner's Exhibit 7)

   
   

3. A total of $32,000 was given to Vincent A. Conrad by the Scovazzos pursuant to the July 9, 1981, contract. The Scovazzos paid Respondent $100.00 when they signed the contract on July 9, 1981, and gave Respondent three checks totaling

   $31,900.00.

   
   

4. A building permit, number 13422, was granted to CNC Enterprises, Inc., on or about September 3, 1981, from the Pasco County Building Department for construction at Lot 2, Unit 6 of Westport Subdivision. The application, dated August 25, 1981, for permit number 13422, indicates that the type of residence to

   be built was the "Beachcomber," not the "Windjammer" (as listed in the contract). (Petitioner's Exhibit 13) Improvements were made to the lot to include construction of a seawall.

   
   

5. A 2-page addendum titled "A" was duly executed by the buyers, Joseph and Josephine Scovazzo, and the seller, Vincent

   A. Conrad, and made part of the contract. The addendum provided the home was to be elevated to a level of ten feet. (Petitioner's Exhibit 7)

   
   

6. Conflicting testimony was received concerning what occurred next. However the house could not be built at the ten foot elevation and the Scovazzos would not accept the house at a lower elevation. The parties mutually decided to terminate the contract on approximately October 19, 1981.

   
   

7. On October 19, 1981, Vincent A. Conrad told the Scovazzos on the telephone that he would return their money in a week. On October 19, 1981, Respondent drafted and sent a letter to the Scovazzos referencing their recent conversation. The Respondent specifically represented to the Scovazzos that he would return the $32,000 in approximately three (3) weeks from the day he received their cancellation letter. (Petitioner's Exhibit 10, Transcript page 65)

   
   

8. The Scovazzos did not send a letter of cancellation. Respondent received a letter dated October 22, 1981, from the Scovazzo's attorney. Attached thereto was the document executed by the Scovazzos which delineated conditions for cancellation of the July 9, 1981, contract. Under the Scovazzo's terms, the contract would not be canceled unless the $32,000 was received by the Scovazzos before October 29, 1981. (Respondent's Exhibit 1, Transcript page 65)

   
   

9. Both parties established conflicting conditions for terminating the contract. The Scovazzos did not send a letter canceling the contract and Vincent A. Conrad did not send the Scovazzos $32,000.

   
   

10. When Mr. Scovazzo pressed for the money, Respondent advised that Respondent could not pay him because Respondent's money was tied up in land and improvements. Scovazzos wanted some security and Respondent deeded to the Scovazzos, on or about November 10, 1981, the lot designated in the July 9, 1981, contract. Respondent was building a house on this lot. The Scovazzos admitted the lot was worth at least $32,000. The registered the deed and attempted to obtain title insurance.

    
    

11. On or about March 11, 1982, the Scovazzos received a letter (Petitioner's Exhibit 11b) from Title Insurance Company of Minnesota, stating that a title insurance policy could not be issued due to "possible problems which may result from the Lis Pendens (see paragraph 15 below) as recorded in Official Record Book 1155, pages 1933 through 1952 of the Public Records of Pasco County." The Scovazzos did not know about the Lis Pendens.

    
    

12. Ultimately, title insurance was obtained through the services of the Respondent's attorney in March of 1982. (Petitioner's Exhibit 11c, Transcript page 77)

    
    

13. Vincent A. Conrad obtained several building permits for lots near the Scovazzos lot prior to the effective date of Ordinance 81-16 which set minimum elevations for homes built after October 31, 1981. The Respondent avoided the extra cost of complying with the new standards established by Ordinance 81-

1. The additional permits were obtained between October 1, 1981, and October 21, 1981. (Petitioner's Exhibit 13, Transcript pages 124-125, and 132)

   
   

   1. On December 11, 1981,. Respondent was found guilty in the United States District Court in Tampa, Florida, in case number 80-00083-CR-T-K for negligently discharging pollutants into the navigable waters of the United States. Respondent's actions were in violation of Title 33, United States Code, Section 1311. The conviction arose as a result of Respondent's dredging activities in the construction of the Westport Subdivision. Respondent was fined $2,500.00 and placed on six

      (6) months probation. (Petitioner's Exhibit 4, Transcript pages 14-15, and 35-37)

      
      

   2. At the time the Respondent contracted with the Scovazzos to build their house, his company was being sued by the United States Government which filed a Lis Pendens in Lot 2, Unit 6, Westport Subdivision in October 1981. (Petitioner's Exhibit 6) Respondent asserted the position that the lot in question was not properly involved in the suit. The court found the lot was not involved.

      
      

   3. Vincent A. Conrad is an officer/director of both Gulfport Homes, Inc. and CNC Enterprises, Inc. (Petitioner's Exhibit 2)

   4. On or about November 15, 1982, the Scovazzos were finally able to sell the lot deeded to them by Vincent A. Conrad for more than $32,000.

      
      

      CONCLUSIONS OF LAW

      
      

   5. The Division of Administrative Hearings has jurisdiction of the subject matter and the partied thereto, pursuant to Section 120.57(1), Florida Statutes.

      
      

   6. Section 489.129(1), Florida Statutes, authorizes the Construction Industry Licensing Board to revoke or suspend the registration or certificate of a contractor and impose an administrative fine, place a contractor on probation, or reprimand or censure a contractor if the contractor is found guilty of committing any of the acts enumerated in that section.

      
      

   7. The Administrative Complaint contains three counts charging the Respondent with violating sections of Chapter 489, Florida Statutes.

      
      

   8. Count I alleges Vincent A. Conrad failed to properly qualify a company under which he was doing business contrary to Section 489.119(2) and (3), Florida Statutes, and acted in a name other than the name set forth in his license contrary to Chapter 489.(1)(g), Florida Statutes. Vincent A. Conrad admitted during his formal hearing that he did not qualify Gulfport Homes, Inc. even though he was doing business under that company name. This was simultaneously a violation of both statutes as alleged above. The uncontroverted evidence corroborates and confirms Vincent A. Conrad's admission. The Respondent violated Section 489.129(1)(j) and Section 489.120(1)(g), Florida Statutes, by contracting with the Scovazzos in the name of Gulfport Homes, Inc.

      
      

   9. Count II alleges Vincent A. Conrad made misleading, fraudulent, untrue, or deceptive representations in the practice of contracting, contrary to Section 455.227(1)(a), Florida Statutes, which is a violation of Section 489.129(1)(c), Florida Statutes. Respondent's allegations are based upon the fact that he failed to advise the Scovazzos that a civil suit potentially influenced the use of Lot 2, Unit 6 of the Westport Subdivision which was the subject of the contract between the Respondent and the Scovazzos. A Lis Pendens (a notice of litigation involving property) was filed after the Respondent entered into the contract with the Scovazzos. Petitioner cites no basis for an obligation by Respondent to advise the Scovazzos of the civil

      suit. There is conflicting evidence whether the Respondent failed to disclose the civil suit. However, Respondent took the position in the suit that the lot in question was not subject to the suit, a position ultimately upheld by the court in the suit. Respondent did not violate Section 455.227(1)(a), Florida Statutes, because no obligation existed to advise the buyers of the suit and factually the lot was not involved in the suit.

      
      

   10. Count III alleges Vincent A. Conrad made misleading, fraudulent, untrue or deceptive representations in the practice of contracting, contrary to Section 455.227(1)(a), Florida Statutes, which is, as stated above, a violation of Section 489.129(1)(c), Florida Statutes, and diverted funds from a construction project contrary to Section 489.129(1)(h), Florida Statutes.

       
       

   11. Although the rules of administrative pleading are very lax, charges of misrepresentation and fraud must be stated with sufficient definitiveness to provide a Respondent with notice of the charge to which the Respondent has to respond. This is a minimum due process requirement. In its posthearing brief the Petitioner points to various statements attributed to the Respondent and asserts these were false. However, these statements were not alleged to be a violations of statutes by the administrative complaint. Therefore, these facts will not be considered probative of "unalleged" violations. The only representation attributed to Respondent in the Administrative Complaint is that he told them he would return their deposit within a week. See Administrative Complaint, paragraph 14.

       
       

   12. The facts reveal Respondent did tell the Scovazzos on the telephone he would return their money; however, in a letter to the Scovazzos contemporaneously with the call, Respondent stated he would return their money if they would write a letter canceling the contract. The Respondent never gave them their money back.1

   13. It is concluded that the written communication of October 18, 1981, was the operative statement of the conditions for termination because of desirability, if not necessity, to have real estate transactions reduced to writing. Respondent sought a written rescission of their written contract as a condition precedent to payment. There is no evidence of the Scovazzos ever complying with the conditions.2 Therefore, the

       
       

       1

       2

       Respondent did not make the alleged misrepresentation and did not violate Section 455.228 (1)(a), Florida Statutes.

       
       

   14. Regarding the diversion of funds contrary to Section 489.129(1)(h), Florida Statutes, the facts reveal that the Scovazzos paid Respondent $32,000 for a construction project; that Respondent had purchased a lot valued at $32,000; had made improvements to the lot by constructing a sea wall; and the Respondent deeded to the Scovazzos the lot. There was no diversion of funds. Violation of Section 489.129(1)(h), Florida Statutes, is not proven.

RECOMMENDATION

Based upon the simultaneous violation of Sections 489.112(2) and (3) and 489.129(1)(g), Florida Statutes, by Respondent contracting without being properly qualified, it is recommended that Respondent be suspended for six (6) months and pay civil penalty of One Thousand Dollars ($1,000).

DONE AND ENTERED this 3rd day of December, 1985, in Tallahassee, Florida.

STEPHEN F. DEAN

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 3rd day of December, 1985.

ENDNOTES

1/ Eventually, the Respondent gave the Scovazzos a lot which, it is agreed, was worth $32,000.

2/ To the contrary, they wrote (or caused to be written) a letter which stated that their condition for a letter canceling the contract payment of the $32,000. The parties had established mutually exclusive conditions.

COPIES FURNISHED:

Mr. James Linnan Executive Director

Department of Business Regulation Construction Industry Licensing Board

P.O. Box 2 Jacksonville, Fl 32202

Mr. Fred Roche Secretary

Department of Business Regulation

130 North Monroe Street Tallahassee, Fl 32301

Mr. Salvatore A. Capino General Counsel

Department of Business Regulation

130 North Monroe Street Tallahassee, Fl 32301

Ms. Nancy M. Snurkowski Department of Business Regulation

130 North Monroe Street Tallahassee, Fl 32301

Mr. Vincent A. Conrad 700 Seabreeze Drive Port Richey, Fl 33568

APPENDIX

The proposed findings of fact of the Petitioner were read and considered with the following results:

Petitioner's Recommended

Proposed Findings Order

Paragraph 1 Paragraph 1

Paragraph 2,3,4 Paragraph 2

Paragraph 5,6 Paragraph 5

Paragraph 7 Irrelevant

Paragraph 8 Paragraph 3

as contrary to fact

Paragraph 21 Paragraph 10

Paragraph 22 Contrary to fact

Paragraph 23 Paragraph 11

Paragraph 24 Paragraph 12

Paragraphs 25,26,27,28 Part Paragraph 13; part irrelevant Paragraph 29 Rejected as contrary

to fact, see paragraph 4

Paragraph 30 Paragraph 14

Paragraphs 31,32,33,34 Part Paragraph 15; part irrelevant Paragraph 35 Paragraph 16

Paragraph 36 Paragraph 17

Paragraph 37 Rejected as irrelevant. They bargained and got the deed

as settlement.

Docket for Case No: 85-001321

Orders for Case No: 85-001321