STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 88-5818

)

GLENN H. CARPENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Don W. Davis, on April 14, 1989 in Tampa, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Jack Larkin, Esquire

806 Jackson Street

Tampa, Florida 33602

For Respondent: W.R. Durrance, Esquire

Post Office Drawer 6839 Lakeland, Florida 33807

BACKGROUND

This matter began when Petitioner filed an administrative complaint charging Respondent with various violations of Section 489.129, Florida Statutes, and seeking to impose disciplinary sanctions against Respondent's contractor license. The gravamen of Petitioner's complaint is that Respondent abandoned or failed to timely perform a contracting job; and exhibited financial mismanagement or misconduct, or diverted funds related to the job. Respondent requested a formal administrative hearing and this proceeding ensued. At the final hearing, Petitioner presented the testimony of three witnesses and eight evidentiary exhibits. Respondent presented the testimony of five witnesses and four evidentiary exhibits. Proposed findings of fact submitted by the parties are addressed in the appendix to this recommended order.

Based upon all of the evidence, including the demeanor and candor of the witnesses who testified, the following findings of fact are determined:

FINDINGS OF FACT

1. Respondent is Glenn H. Carpenter, a certified general contractor licensed by Petitioner and holding license CG-C027848 at all times pertinent to these proceedings. His address of record is Lakeland, Florida.

2. On June 3, 1986, G & H Construction, Inc., by and through Respondent submitted a document entitled "proposal" to Nestor Bardales with regard to proposed construction of a new home for Bardales. The document provided for a total construction price of $85,000 commencing with a $2,000 deposit and the balance of payment to be made to the construction company in accordance with bank draw provisions. Respondent received and deposited the $2,000 deposit in the construction company's corporate bank account.

   
   

3. Bardales' construction lender, Anchor Mortgage Services, Inc., required the execution of a new contract between the construction company and Bardales. On July 23, 1986, a new contract was executed by Bardales and Respondent, on behalf of the construction company. That contract provided for construction at a price of $85,000 and a refund of the $2,000 deposit "upon receiving the fifth draw minus any additional expenses incurred at the owner's request not covered by plans or specifications."

   
   

4. At the time of execution of both agreements, Respondent was a vice- president and the qualifier for the construction company. While there was a co- qualifier, David Hewlett, who provided Bardales the initial construction plans, Hewlett's license was in an inactive status. Hewlett, Respondent, and other company personnel were unaware that Hewlett's license as a co-qualifier had not been withdrawn. Bardales was unaware of contractor regulations and was not aware that the construction company had to comply with any requirements with regard to qualifying agents.

   
   

5. Under terms of the agreement required between the parties by Anchor Mortgage Services, Inc., construction was to commence within 25 days of the recordation of a "notice of commencement" and conclude within six months. Recordation of the commencement notice could not occur under the agreement's terms until the construction lender's mortgage was recorded. The loan was closed on August 13, 1986. Respondent applied for the construction permit on August 26, 1986, on behalf of the construction company. The permit was issued on September 15, 1986. Thereafter, the company commenced construction under direction and supervision of Respondent.

   
   

6. Disputes arose between the construction company and Respondent. On or about December 16, 1986, Respondent was fired as an employee by the company. The president of the construction company subsequently contacted Bardales and informed Bardales of the firing. The company president assured Bardales that the company would complete construction of Bardales' home in a timely manner.

   This was agreeable to Bardales. Bardales' construction lender had already paid the company $34,000 in addition to the company's receipt of Bardales' deposit of

   $2,000. After concluding the discussion with Bardales, the construction company president informed Respondent of the substance of that conversation.

   
   

7. On December 17, 1986, an independent accountant, who also has the construction company for a client, typed and mailed letters from Respondent to Bardales' construction lender and the Hillsborough County Building Department. The letter to the construction lender stated that Respondent was no longer associated with the construction company and that any further communication in regard to the Bardales project should be directed to the construction company's president. Respondent stated in the letter to the building department that he was no longer the qualifier for the construction company and requested immediate removal of his name from the permit issued for the Bardales' project. No letter was sent to Bardales. The proof fails to establish any direct personal

   communication between Bardales and Respondent regarding his firing or termination of his services with regard to the Bardales project.

   
   

8. Sometime after the beginning of 1987, Respondent learned that construction on the Bardales' project was continuing under the permit pulled by Respondent. Upon inquiry by Respondent, he determined that no record of his December 17, 1986 letter regarding termination of his employment and removal of his name as the company qualifier existed in the Hillsborough County Building Department records. Respondent went to the building department and executed a note in his own handwriting, dated February 20, 1987, informing appropriate building permitting officials that he was no longer a qualifier for the construction company and requesting cancellation of the permit for the Bardales project. Bardales was not contacted by Respondent, nor did Bardales give Respondent authorization to take this action.

   
   

9. Respondent remained as a qualifier for the construction company until February, 1987, according to official records of the Department of Professional Regulation. Thereafter, David Hewlett's license was reactivated and he became the company's qualifier. On April 15, 1987, Hewlett pulled a second permit for the Bardales project.

   
   

10. While the construction company continued work on the Bardales project after termination of Respondent's employment, disputes arose between the company and the homeowner, Bardales. There were some periods of time when no work was done. At one point, the construction company president even approached Respondent during April of 1987 about the possibility of Respondent resuming the Bardales project. Respondent refused. As a result of the difficulties between the construction company and Bardales, the construction company did not complete the project.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to Section 120.57(1), Florida Statutes.

    
    

12. Petitioner bears the burden to establish to by clear and convincing evidence that Respondent is guilty of the offenses charged in the administrative complaint. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

13. The administrative complaint alleges that Respondent failed to perform in a reasonably timely manner or abandoned the Bardales project thereby violating Section 489.129(1)(k), Florida Statutes. Such violation is further alleged in the complaint to constitute misconduct in violation of Section 489.129(1)(m), Florida Statutes.

    
    

14. Notably, Section 489.129(1)(k), Florida Statutes, provides that one is guilty of abandonment 90 days after termination of a project without notice to the prospective owner and without just cause for such termination.

    
    

15. Respondent was fired in the middle of December, 1986. Bardales and the construction company agreed to continue the project. Work on the project by the company continued, albeit sporadically at times, for several months before impasse between the company and Bardales occurred. Therefore, termination of the project by action of Respondent cannot be deemed to have occurred under the facts established in this case. Further, the resultant charge of misconduct in

    violation of Section 489.129(1)(m), Florida Statutes, is not proven in the absence of proof of the abandonment charge.

    
    

16. The administrative complaint also charges Respondent with financial mismanagement, misconduct or diversion of funds in violation of Section 489.129(1)(h) and (m), Florida Statutes. There is no clear and convincing evidence that Respondent financially mismanaged or diverted funds with regard to any project. In the absence of proof of such wrongdoing, the charge of misconduct against Respondent is not established.

    
    

17. The evidence fails to clearly and convincingly establish that Respondent's conduct constituted the prohibited action addressed by the charges in the administrative complaint in this case.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered dismissing the administrative

complaint in this case.

DONE AND ENTERED this 15th day of May, 1989, in Tallahassee, Leon County, Florida.

DON W. DAVIS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 1989.

APPENDIX

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner's Proposed Findings 1.-4. Addressed.

5. The agreement with the construction lender prohibited construction

prior to a certain event, then required completion within 6 months. See finding

5 above. Accepted in part, rejected in part as not supported by weight of the evidence.

6.-7. Addressed in part, remainder rejected as unnecessary.

1. Notes of the hearing officer reflect that Billy Hood initiated communication with Bardales. Otherwise, this proposed finding is addressed.

2. Rejected, cumulative.

10.-11. Incorporated by this reference.

12.-20. Rejected on basis of relevancy to charges.

22.-24. Addressed.

25. Rejected, not relevant to charges. 26.-28. Addressed.

Respondent's Proposed Findings 1.-11. Addressed.

COPIES FURNISHED:

Jack Larkin, Esquire 806 Jackson Street

Tampa, Florida 33602

W.R. Durrance, Esquire Post Office Drawer 6839 Lakeland, Florida 33807

Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2

Jacksonville, Florida 32201

Docket for Case No: 88-005818

Orders for Case No: 88-005818