FREDERIC T. FORRER, )
vs. ) CASE NO. 88-1150
Respondent. )
Before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.
For Petitioner: Frederic T. Forrer, of Tampa, pro se For Respondent: Stephen M. Christian, Esquire, of Tampa
A formal administrative hearing was held in this case in Tampa on April 22, 1988, on the application of the Petitioner, Frederic T. Forrer, for a home improvement salesman's license. The Respondent ordered the preparation of a transcript of the final hearing, making proposed recommended orders due ten days after the filing of the transcript. The transcript was filed on May 9, 1988, making proposed recommended orders due on May 19, 1988. Explicit rulings on the Respondent's proposed findings of fact (the Petitioner not having filed any) may be found in the attached Appendix To Recommended Order, Case No. 88-1150.
On or about October 29, 1987, the Petitioner, Frederic T. Forrer, filed an application for a home improvement salesman's license. On February 1, 1988, the Respondent, the Department of Banking and Finance, Division of Finance (Department), entered an Amended Order Denying Home Improvement Salesman's License. The denial is based on: (1) nolo contendere pleas to two charges of criminal misapplication of funds in violation of Section 713.34(3), Florida Statutes; (2) revocation of Forrer's general contractor's license by the Construction Industry Licensing Board; (3) Forrer's insolvency; and (4) probation violations.
Forrer's difficulties started with two construction jobs Forrer performed as a general contractor-the Mazzocco job and the Elliot job.
On the Mazzocco job, Forrer entered into an arrangement under which John Mazzocco, husband of the owner of the home being renovated, would do some of the work and sub out some of the work. A dispute arose as to who was responsible for paying for over $1,000 of materials and labor and subcontracts Mazzocco ordered. Forrer claimed they were beyond the terms of the contract.
On the Elliot job, which called for putting a second floor on Elliot's duplex, Forrer claimed that faulty engineering plans were responsible for a
$6000 cost overrun within his first week on the project. Later, with the project about 90 percent complete, a dispute arose about responsibility for that and other cost overruns which Forrer and Elliot could not resolve. Forrer did not finish the job, and Elliot had another contractor finish it. Elliot claimed Forrer owed him about $8,000.
In early 1987, John Mazzocco and Elliot both filed criminal charges against Forrer for violating Section 713.34(3), Florida Statutes (1985), for misapplication of monies paid to him for purposes of the Mazzocco and Elliot jobs. Forrer retained legal counsel and was advised to plead nolo contendere. On March 27, 1987, Forrer pled nolo contendere to the charges and was sentenced to five years probation conditioned on, among other things, payment of $237.50 court costs, $100 costs of prosecution, $250 to the court improvement fund, and restitution in an unspecified amount. Forrer's attorney did not advise him of any consequences of a nolo contendere plea on his contractor's license (or any other state license for which he might later apply) and estimated that the restitution probably would approximate $6000, the approximate attorney's fees for going to trial.
Forrer agreed with his probation officer to pay $500 per month on his debts until they were paid and went to give the probation officer a money order for $500 on April 27, 1987. By this meeting, Forrer's local contractor's registration had been revoked, and he was expecting his state license to be revoked, too. At the meeting, Forrer was told the restitution would be approximately $31,000 to Mazzocco and $8,000 to Elliot.
Forrer did not pay the $500 and called his attorney to withdraw his plea and go to trial.
On May 8, 1987, Forrer's probation officer filed charges that Forrer had violated probation by not paying the $500.
At the end of May, 1987, the judge denied Forrer's request to withdraw his plea and scheduled a hearing to set the amount of restitution. The probation violation charge remained pending.
By this time, Forrer had become dissatisfied with his attorney and applied to the court for appointment of a public defender. In connection with his application, Forrer filed an affidavit on June 16, 1987, swearing that he was insolvent. The court granted the application and set the restitution hearing for mid-July, 1987.
Meanwhile, Forrer began working for a roofing contractor, earning enough money to meet his living expenses and make reasonable payments on his probation obligations.
After the July hearing, the judge set the restitution at approximately
$39,000--$31,000 on the Mazzocco charge and $8,000 on the Elliot charge. A few days later, on July 17, 1987, Forrer went to his probation officer, who demanded an initial payment of $2711, apparently including payments due retroactively from April. Forrer denied ability to make the payment, and the probation officer told Forrer that he would file something to get the matter resolved-- namely, another probation violation charge.
The probation violation charge was not heard until November, 1987. During this time, Forrer only made one $20 payment towards the cost of prosecution obligation and one $20 payment towards the court improvement fund obligation. At the hearing, the judge set monthly payments at $160 on the restitution to Mazzocco, $40 on the restitution to Elliot and $73 a month on the other items, for a total of $273 per month, which Forrer has been paying.
In December, 1987, the Construction Industry Licensing Board revoked Forrer's license as a general contractor based on the convictions in the Mazzocco and Elliot matters and for diversion of funds received for a construction job, causing inability to fulfill contractual obligations, for failing to pay all subcontractors and suppliers, and for failing to properly supervise the projects. Forrer did not contest the charges, believing that it would be futile for him to do so.
When Forrer lost his license, he also lost his job with the roofing company. He began to work in December, 1987, selling encyclopedias but quit because he was not making enough money to pay his living expenses and probation obligations. (He also supports a 16 year old son who Forrer says is hoping to go to college in a few years.)
Forrer has lost his condominium (by foreclosure), the car he previously owned, his business and his wife. He remains insolvent and believes he is being denied the ability to earn a living. He says the roofing company for which he worked from June to December, 1987, would hire him back if he is granted the pending license application.
Forrer still is on probation.
CONCLUSIONS OF LAW
Section 520.66(3), Florida Statutes (1987), provides in pertinent part:
In addition to the acts specified in subsection (1), the following are grounds for denial of a license under this part, or for revocation, suspension, or restriction of a license previously granted:
* * *
Having a license, registration or the equivalent, to practice any profession or occupation denied, suspended, revoked, or otherwise acted against by a licensing authority in any jurisdiction for fraud, dishonest dealing, or any act or moral turpitude;
Having been convicted or found guilty of a crime involving fraud, dishonest dealing, or any act or moral turpitude; or
Being insolvent or having a demonstrated lack of honesty or financial responsibility.
The Petitioner has pled nolo contendere to two counts of violating Section 713.34(3), Florida Statutes (1985). Section 713.34(3), Florida Statutes (1985), provides:
(3) Any person, firm, corporation or agent, officer or employee thereof who, with intent to defraud, shall use the proceeds of any payment made to him on
account of improving certain real property, for any other purpose than to pay for labor or services performed on or materials furnished for this specific improvement, while any amount for which he may be or become liable for such labor, services, or materials remains unpaid shall be guilty of embezzlement and shall be prosecuted and, upon conviction, punished in accordance with the provisions of the laws of this state, provided, however, that failure to pay for such labor, services or materials furnished for this specific improvement after receipt of such proceeds shall constitute prima facie evidence of intent to defraud.
Embezzlement is a crime involving dishonest dealing under Section 520.66(3)(c), Florida Statutes (1987).
The Petitioner also had his Florida general contractor license revoked because of the 713.34(3) conviction, and for diverting funds received for a construction job, causing inability to fulfill contractual obligations, also dishonest dealing under Section 520.66(3)(b), Florida Statutes (1987).
The Petitioner also is insolvent and has been insolvent since at least June, 1987, a ground for denial under Section 520.66(3)(d), Florida Statutes (1987).
The Petitioner still is on probation and has almost four years of a five-year probation term remaining to be served.
Despite the evidence of the facts underlying the Petitioner's criminal conviction and license revocation, there was insufficient evidence of passage of time and other circumstances to establish that the Petitioner has rehabilitated himself, financially and otherwise, to fitness for home improvement salesman licensure at this time.
Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Department of Banking and Finance, Division of Finance, enter a final order denying the application of the Petitioner, Frederic T. Forrer, for a home improvement salesman's license.
RECOMMENDED this 20th day of June, 1988 , in Tallahassee, Florida.
J. LAWRENCE JOHNSTON Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1150
To comply with Section 120.59(2), Florida Statutes (1987), the following explicit rulings are made on the Respondent's proposed findings of fact:
1.-2. Accepted and incorporated.
3. Subordinate and unnecessary. 4.-6. Accepted and incorporated.
Frederic T. Forrer Post Office Box 24663 Tampa, Florida 33623
Stephen M. Christian, Esquire Office of the Comptroller 1313 North Tampa Street
Charles L. Stutts, Esquire General Counsel
