The Issue The issue presented for decision herein is whether or not the Respondent, David H. Tinius, unlawfully abandoned a construction project; diverted funds received for completion of a construction project and thereby failed to fulfill his contractual obligations.
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. By its administrative complaint filed herein signed October 6, 1982, the Petitioner, Construction Industry Licensing Board, seeks to suspend, revoke or take other disciplinary action against the Respondent's registered building contractor's license. During times material herein, Respondent was a registered building contractor and has been issued license No. RB0024083. On approximately April 20, 1978, Respondent entered into a contract with Jess Marks to build a residence in Tamarac, Florida, for the sum of $46,551. Respondent commenced construction of the Mark's residence but left the site when it was approximately forty percent complete. At that time, Respondent had received approximately $44,000 of the contract sum. Jess Marks completed the construction of his residence by hiring another contractor to complete the project and expended approximately $50,000 over and above the contract price as agreed upon by the Respondent to complete his residence. Respondent never returned any of the monies received from the Marks for completion of the residence. On approximately April 24, 1978, Respondent entered into a contract with Abe Abrahams to construct a residence in Tamarac, Florida, for the sum of $30,473. Respondent left the Abrahams' project after he had received $6,000 and had completed approximately ten percent of the work on the Abrahams' residence. Respondent did not return to the site nor did he return any of the monies received from the Abrahams for the construction of their residence (See Petitioner's Composite Exhibit No. 5). The Abrahams had to pay for supplies and material bought for the project by the Respondent and which reportedly had been paid, according to Respondent. THE RESPONDENT'S POSITION As noted hereinabove, the Respondent did not appear to contest or otherwise refute the allegations contained in the administrative complaint filed herein. However, Respondent, through counsel, filed an answer which admitted the complaint allegations filed herein.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, hereby RECOMMENDED that the Respondent's registered building contractor's license No. RB0024083 be REVOKED. DONE and RECOMMENDED this 29th day of August, 1983 in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1983 COPIES FURNISHED: Michael J. Cohen, Esquire 2715 East Oakland Park Boulevard Suite 101 Fort Lauderdale, Florida 33306 David H. Tinius 4420 Northwest 36th Court Lauderdale Lakes, Florida 33309 David H. Tinius Post Office Box 6338 Charlotte Amalil St. Thomas, U.S.V.I. 00801 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issues in the case are as follows: Whether Florida Administrative Code Rule 61G4-12.017 is an invalid exercise of delegated legislative authority; and Whether the committee procedure used by the Construction Industry Licensing Board to review applications for licensure is invalid as an unadopted rule.
Findings Of Fact The Petitioner is an applicant for licensure as a general contractor by the Respondent. By operation of Subsection 489.107(4), Florida Statutes (2006),1 the Construction Industry Licensing Board (CILB) is divided into two Divisions. Division I has jurisdiction over the regulation of general contractors, building contractors, and residential contractors. Division II has jurisdiction over the regulation of all other contractors. Subsection 489.107(5), Florida Statutes, provides as follows: Five members of Division I constitute a quorum, and five members of Division II constitute a quorum. The combined divisions shall meet together at such times as the board deems necessary, but neither division, nor any committee thereof, shall take action on any matter under the jurisdiction of the other division. However, if either division is unable to obtain a quorum for the purpose of conducting disciplinary proceedings, it may request members of the other division, who are otherwise qualified to serve on the division unable to obtain a quorum, to join in its deliberations. Such additional members shall vote and count toward a quorum only during those disciplinary proceedings. (emphasis supplied) After the Petitioner's application was deemed complete, the application was referred to an "application committee" appointed by the CILB chairperson and assigned the responsibility of reviewing pending applications. There is no specific reference in either statute or rule codifying the application committee process. The application committee generally meets one day prior to the regularly scheduled meeting of the full CILB. Application materials are provided to members of the application committee. An applicant receives a letter signed by an employee of the CILB providing notice of the application review committee meeting at which the pending application will be considered. The notice includes the following statement: Statute or rule does not require attendance; however, it is in your best interest to attend so those questions that may arise during the committee's review can be answered. Failure to attend may result in denial of your application as a result of unanswered questions. Applications are commonly referred to the Board for review when an applicant or the business has a criminal history, liens or judgments on their credit report, bankruptcies, complaints or unlicensed activity cases against them. If you are unsure why your application has been referred to the board please contact me at the number listed below. (emphasis in letter) The letter clearly indicates that not all applications are reviewed by the full CILB, and accordingly, it is reasonable to presume that there are applications being approved without review by the full CILB. The Petitioner's application was reviewed by an application committee on two occasions. The parties stipulated that the application committee that considered the Petitioner's application was not composed of either five Division I or five Division II Board members. At the committee meeting of July 13, 2006, the Petitioner was granted a continuance apparently to obtain additional information for CILB consideration. The Order of Continuance issued by the CILB and dated August 7, 2006, stated that the Petitioner "agreed to waive the statutory 90 day requirement and appear before the Board in August, 2006." On August 10, 2006, the application committee made a recommendation to the full CILB that the Petitioner's application be denied. On August 11, 2006, the CILB unanimously voted to approve the committee recommendation. The parties stipulated that the full CILB (composed of at least five Division I and five Division II Board members) voted on August 11, 2006. The extent to which the application was reviewed by the full CILB prior to the vote is unclear, as is whether all application materials were provided to the full CILB prior to consideration of the Petitioner's application. Although the Petitioner has sought to obtain a transcript of the meeting, it has not been made available by the CILB. By Notice of Intent to Deny, dated August 30, 2006, the Petitioner set forth the grounds for the denial as follows: Applicant failed to provide proof of restitution associated with a prior order, which constitutes a basis for denial under Section 489.129(7) F.S. The prior order being referenced in the August 30 letter is a Final Order of the Hillsborough County Building Board of Adjustment dated June 21, 1997, wherein the Petitioner was directed to make restitution to a former client.
