The Issue The Petitioner charges Respondent with contracting to do commercial contracting work for which he was not registered. The Respondent asserts that he was in a partnership with Otis Allen who was qualified to do commercial work and who pulled the permit for the work in question. The issue is whether Respondent violated Section 489.117, Florida Statutes; if he and Allen did the Mosser job as partners. Both parties have submitted posthearing 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 At all times relevant hereto, Respondent, Marvin L. Gill, held a registered residential contractor's license, number RR 0053369, issued by the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board. (Tr. 18, 59; Petitioner's Exhibit 1) At all times relevant hereto, the Respondent was not a registered commercial contractor. At all times material hereto, Marvin L. Gill was qualifying agent for Gill Built Homes. (Tr. 18, Petitioner's Exhibit 1) At all times relevant hereto, Otis Allen, a registered commercial contractor, was not a partner or member of the corporation known as Gill Built Homes. (Tr. 68-69, 101-102) On or about August 8, 1984, Marvin L. Gill, entered into a contract with Walter Mosser to construct a storeroom at the Sunset Lounge, which was a cocktail lounge. (Tr. 18, 69, 99-100; Petitioner's Exhibit 2) Said contract designated Marvin L. Gill, d/b/a Gill Built Homes, as the contractor for the project and Walter Mosser as the owner of Sunset Lounge. (Petitioner's Exhibit 2) The duties of Marvin L. Gill, as contractor, were to provide all labor and material, in accordance with the plans and specifications, to construct a room addition to the lounge owned by Mr. Mosser. (Tr. 99+, Petitioner's Exhibit 2) (Ultimate fact) The Sunset Lounge is a commercial structure and the room addition project did not fall within the realm of residential construction. (Tr. 141+) The contract price was $17,500. Said price was to be paid pursuant to a draw schedule listed in the construction contract and these progress payments were to be given to the contractor, Marvin L. Gill. (Tr. 105, 106; Petitioner's Exhibit 2) A check in the amount of $1,750 was made out to Marvin L. Gill on August 8, 1984. A check in the amount of $1,800 was made out to Marvin Gill Co. on August 27, 1984. A check in the amount of $3,500 was made out to Marvin Gill and Otis Allen on September 6, 1984. A check in the amount of $5,250 was made out to Marvin Gill and Otis Allen on September 27, 1984. All these checks were payments for work done on the lounge addition by Mosser or at his direction. See Exhibit 5A-D. The contract provides that the contract shall begin immediately after the contractor has secured the necessary permits which he shall use his best efforts to obtain. (See paragraph 4, Contract; Petitioner's Exhibit 2) The contract designates the contractor, Marvin L. Gill, as the individual solely responsible for all construction under the contract. Further, Marvin L. Gill was responsible for supervision and direction of the work to be done as well as "provide and pay for all labor, materials and equipment, including tools, construction equipment/machinery and all other facilities and services necessary for the proper completion of work on the project in accordance with the plans and specifications." (See paragraph 5, Contract, Petitioner's Exhibit 2) The addition was begun and work was done in a workmanlike fashion. The project was stopped for good cause by Respondent when Mosser refused to make further payments. The addition was approximately 75% finished when work ceased; however, the Respondent and Allen had received only $7,000. The construction contract does not state that the contractor, Marvin L. Gill, was working as a partnership or joint venture for the Sunset Lounge project. The contract does permit assignment of the contract. (Tr. 67-68; Petitioner's Exhibit 2) Otis Allen pulled the building permit on the Mosser job. Allen and Gill had discussed a partnership in which they would work together and share profits and responsibilities. Checks were made out to Gill and Allen. Allen and Gill worked together on this project as though they were in a partnership. Gill testified they had a partnership. They did not register their partnership.
Recommendation Based upon the foregoing, it is recommended that Respondent be fined three hundred dollars ($300.00). DONE AND ORDERED this 16th day of May 1986 in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of May 1986. COPIES FURNISHED: Mr. Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Nancy M. Snurkowski, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Marvin L. Gill 2501 N. 20th Street Zephyrhills, Florida 33599 APPENDIX The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985) on the proposed findings of fact submitted by the parties. Rulings on Proposed Findings of Fact Submitted by Petitioner 1-11. Adopted. Rejected as duplication finding of fact 5. Adopted with some reorganization of sentences. Rejected as conclusion of law; factual assertion included in paragraph 1. Adopted with some reorganization of sentences. Rejected as conclusion of law. Rulings on Proposed Findings of Fact Submitted by Respondent The majority of this pleading is a recitation of testimony, not a finding of fact. These are the major "facts" stated or suggested in Respondents pleadings: Allen and Gill had a partnership. Allen was a commercial contractor. Allen and Gill shared responsibilities for the job. Mosser received an addition 75% complete for approximately $7,000. Allen pulled permits on the job and worked on the job. The project was abandoned because of non-payment by the owner. The work was done in a workmanlike fashion.
Findings Of Fact On September 29, 1975 Respondent, R. J. Hunt Construction Company, through its President and qualifying general contractor, Richard J. Hunt, entered into a contract with Richard McCarty to construct two Second Story Additions to Palm Ocean Villas, Pompano Beach, Florida for a price of $53,700. The contract provided that the contractor would complete the building within 8 weeks of the issuance of a building permit and, if not completed, a 5 percent penalty would be deducted until December 10, 1975 and thereafter, if not complete, an additional 5 percent of the contract price would be deducted each week until complete. Building permits were issued on October 3 and 6, 1975 and work proceeded satisfactorily until the end of the 8 weeks contract period on December 1, 1975 when the project was 90 percent to 95 percent complete. At this time the contractor stopped work on the project and transferred his employees to another job. One of the contract provisions not completed was the application of waterproofing on a deck. Despite Hunt's assurances that he would get a subcontractor to complete this waterproofing, it still had not been completed by Christmas and McCarty employed a contractor to apply the waterproofing material in early January for which he paid $1,000 allowed by the contract. Subsequent thereto McCarty received notice of liens filed against his property from 4 subcontractors. These were American Metal Products Company, J. P. Electric Company, Ole Eds Construction, and Margate Plumbing. In order to get a certificate of occupancy it was necessary for McCarty to pay some of these subcontractors. American Metal Products installed an aluminum railing around the balcony for which they filed a notice of lien for $1,200 and subsequently filed a petition in bankruptcy. The present status of this lien was not ascertained. J. P. Electric Company had split their draw into three parts and they were paid by Hunt $700 for the initial work. When they refused to allow final inspection Hunt asked McCarty to pay them and take it off his last draw. McCarty paid $2,000 to J. P. Electric, leaving a balance owed of $781.92. Hunt also asked McCarty to pay Margate Plumbing and take this payment off the draw. Margate had been paid $1,000 upon completion of the rough work. In order to get occupancy McCarty paid Margate $1,800 which satisfied the lien of Margate. Ole Ed installed the septic tank and drain field for which they have filed a lien for $2,500 which is unpaid to date. Numerous miscellaneous items included in the contract for which McCarty advanced funds to keep work progressing amounted to $671.54. Hunt also requested McCarty to order the appliances which were included in the contract price since he (McCarty) could get them at contractor's price. For these appliances (stoves, air conditioners and refrigerators) McCarty expended $2,373.28. Total expenditures made by McCarty are as follows: McCarty paid to Hunt in draws $48,400.00 McCarty paid to J. P. Electric 2,000.00 McCarty paid to Margate Plumbing 1,800.00 McCarty paid for waterproofing deck 1,000.00 Misc. items paid for by McCarty 671.54 Appliances for which McCarty paid 2,373.28 Total paid by McCarty under contract $56,244.82 Balance owed to subcontractors. American Metals Corporation $ 1,200.00 J. P. Electric 781.92 Ole Ed's Construction 2,500.00 Total cost of project $61,736.74 At the time licensee stopped work on the project the railing around the balcony had not been installed, top decking had not been approved by building inspectors and waterproofing of deck had not been done. Extra costs not included in the contract price which were agreed to by McCarty included $300 to $500 extra for larger electric wire and $400 to $500 for larger septic tank than contract called for. These costs totaled approximately $800 which would bring the total contract price to $54,500. The working foreman on the job for the first three or four weeks of the contract, who testified on behalf of Respondent, was unfamiliar with all terms of the contract or with the finances of Hunt. When the existing roof was removed for the second floor addition to be added, conduits had to be replaced and some 2 x 12 joists had to be replaced. This work unexpectedly increased the cost of the contract to the contractor. The septic tank could not be placed where originally intended, and as a result, about 100 fee of sidewalk had to be torn up and replaced. Further, a larger septic tank than originally planned had to be installed. This latter increase was agreed to and paid for by McCarty. One character witness testified that Richard J. Hunt enjoys a good reputation in the construction industry.
The Issue May Respondent's contracting license be revoked, suspended or otherwise disciplined? EVIDENCE AND PROCEDURE Petitioner presented the testimony of the following witnesses: Randall F. Patterson; Bob R. Pope; Roberta Ballenger; Joel A. Dean; and Victor F. Boucher. Petitioner's exhibits number one through fourteen were admitted into evidence. Respondent was not present, put on no evidence, and submitted no after- filed proposals. Petitioner filed the transcript of proceedings on October 17, 1985, and filed proposed findings of fact and conclusions of law styled "Petitioner's Proposed Recommended Order" on November 8, 1985. Although additional time for filing proposals was neither applied-for nor granted, these proposals have been considered, and are ruled on within the Appendix to this Recommended Order.
Findings Of Fact Respondent is, and at all times material to the Administrative Complaint, was a registered residential contractor in the State of Florida having been issued license number RR 0032683. On August 7, 1982 Respondent d/b/a Future Homes of America Construction Company, Inc. contracted with Victor Boucher for the construction of a single family residence at 822 Fairview Avenue, Altamonte Springs, Florida. Section 14.5 of the Fixed Price Construction Agreement provided: The owner will, as agreed to by the contractor, request the contractor to obtain payment and performance bonds, issued by a surety and in amounts acceptable to owner, guaranteeing the full performance of contractor's payment and performance obligations hereunder. (Pet. Exh. 1, Pet. Exh. 9). Article 14.5 of the construction contract required Respondent to obtain a payment and performance bond. Respondent failed to obtain a payment and performance bond. During the construction of the home, Boucher asked Respondent whether a payment and performance bond had been obtained. Boucher wanted to see the bond because he was concerned about Respondent actually finishing the project. In response to Boucher's request, Respondent indicated a bond had not been obtained; however, Respondent assured Boucher that a payment and performance bond would be obtained. On April 7, 1953 Respondent and Boucher obtained a construction loan in the amount of $54,400.00 from the American Savings and Loan Association of Florida, Winter Park, Florida. The construction loan was secured by a mortgage on the property located at 522 Fairview Avenue, Altamonte Springs, Florida. The proceeds of the construction loan were paid out in draws. American Savings and Loan Association of Florida paid the contract draws directly to Respondent. On August 29, 1953 Respondent executed an affidavit in support of final construction draw. American Savings and Loan Association of Florida required the affidavit as a precondition to making final disbursement to Respondent of the $4,338.50 remaining on the construction loan. The affidavit provided in pertinent part: 4. The undersigned swears that construction of the improvements to the PROPERTY has been fully completed in accordance with the plans and specifications therefore,...that all persons furnishing labor or materials, engaged as subcontractors or contracting directly with the owner of the PROPERTY in connection with said improvements, except the following, identified by name, address and amount due: [none known] have been paid in full and no person, firm or corporation has or holds any claim or lien against the PROPERTY for labor or material in connection with said improvements. Boucher was also required to sign the affidavit referred-to in Paragraph 5, above, in support of the final construction draw. Boucher's signature was required in support of the affidavit for final construction draw because Boucher had previously contacted the savings and loan association with regard to freezing the disbursement of construction funds. His request to freeze disbursements was made because Boucher was under the impression Respondent had moved to Miami and Boucher's attempts to contact Respondent had proven unsuccessful. Prior to executing the affidavit, Respondent told Boucher that certain subcontractors had not been paid. Nonetheless, Boucher, contrary to advice of legal counsel signed the affidavit knowing that certain subcontractors had not been paid and therefore knowing he was making a false affidavit. Respondent convinced Boucher that the final draw would be utilized to satisfy the remaining subcontractors and materialmen. Respondent's Answer pleads accord and satisfaction as an affirmative defense that Boucher agreed to pay off all bills of Overhead Door Co., Future Plumbing, Quality Fiberglass, and Patterson Well Drilling but Boucher's testimony that he, Boucher, insisted Respondent meet him to pay off all subcontractors out of the final draw and Respondent did not do so, overcomes any burden of proof problems raised by this affirmative defense. (See "Conclusions of Law.") On November 29, 1983 Patterson Well Drilling Company filed a claim of lien against Boucher's property. The claim of lien represented materials and labor furnished to Respondent in connection with the construction of the Boucher residence. The claim of lien was in the amount of $1,510.00. Although the claim of lien under oath of President Randall F. Patterson states that the services were provided between September 9 and September 12, 1983, Boucher testified that Patterson's services were actually provided prior to the August 29, 1983 execution of the affidavit in support of final construction draw. Randall F. Patterson's testimony tends to support this timeframe set out by Boucher, and although the difference in dates between Mr. Patterson's affidavit within the claim of lien and his oral testimony at formal hearing might otherwise present a credibility issue, his explanation at hearing coupled with Boucher's explanation of how he relates the dates persuade the undersigned that Patterson Well Drilling Company installed the well prior to August 29, 1983. Respondent failed to pay Patterson prior to executing the bank affidavit. Respondent also failed to pay Patterson from the funds received in the final construction draw. Boucher paid Patterson Well Drilling Company for the services represented by the claim of lien. A check substantiates that Boucher actually paid Patterson the amount of $1,562.40. Respondent contracted with Quality Fiberglass Industries to provide materials and services in connection with the construction of the Boucher residence. Respondent failed to fully reimburse Quality Fiberglass for the services and materials provided. On August 19, 1953 Quality Fiberglass Industries filed a claim of lien against the Boucher property for $219.00. Mr. Pope, Quality's representative, testified he was actually owed $325.00 and he has never been paid. Boucher testified he was required to pay the Quality Fiberglass lien prior to the closing on the home. There is no documentary evidence to reconcile this issue and in the absence of clear evidence that Boucher paid the fee, payment of the lien or the difference in amount is not proved. Overhead Door Company provided services to Respondent d/b/a Future Homes of America, Inc. in connection with the construction of the Boucher residence. On July 11, 1983 Overhead Door Company installed a garage door. Although contacted on several occasions, Respondent failed to pay Overhead Door Company $356.00 for the services provided. Overhead Door Company has not otherwise been reimbursed for the services provided. The construction plans for the Boucher home indicated a tar and gravel roof would be constructed over the patio. However, with the acquiescence of Mr. Boucher, Respondent placed rolled roofing rather than tar and gravel roofing on the patio. The construction plans were submitted in conjunction with the building permit application. According to Joel A. Dean, the county building department currently relies upon the construction plans in issuing the building permit. A contractor currently is required to notify the building department of any change or deviation from the submitted plans. This requirement enables the building department to control the type of building construction, the occupancy and use of the building, and ensures the buildings are constructed safe and watertight. Respondent did not notify the building department concerning the agreed roofing change as would be required by current requirements and requirements at the pertinent times under Section 114 of the Standard Building Code.
Recommendation That the Florida Construction Industry Licensing Board enter a final order suspending Respondent's contracting license for a period of two (2) years and imposing an administrative fine in the amount of $1,000.00, provided, however, if Respondent submits to the Board competent and substantial evidence of payment to Overhead Doors Co. of $356.00 and payment to Quality Fiberglass of $219.00, the period of suspension shall be reduced to one (1) year. DONE and ORDERED this 31st day of December, 1985, in Tallahassee, Florida. ELLA JANE P. DAVIS 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 31st day of December, 1985. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-3835 Rulings on Petitioner's Proposed Findings of Fact According To the Paragraph Number assigned by Petitioner. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected as not supported by the credible competent substantial evidence in the record as a whole as set out more fully in Finding of Fact Paragraph 9. Accepted. Accepted. Accepted. COPIES FURNISHED: W. Douglas Beason, Esquire Fred M. Roche, Secretary Department of Professional Department of Professional Regulation Regulation 130 North Monroe Street 130 North Monroe Street Tallahassee, Florida 32301 Tallahassee, Florida 32301 Michael Anguelo James Linnan 1415 West 28th Street Executive Director Apartment 4 Construction Industry Hialeah, Florida 33010 Licensing Board Post Office Box 2 Jacksonville, Florida 32202
The Issue Whether Respondent, a registered general contractor, (1) unlawfully and willfully committed fraud and theft, violated the Fictitious Name Statute, and violated Municipal and County Contractor Licensing Ordinances, and (2) violated other provisions of the Construction Industry Licensing Law relating to the name under which a qualifying agent may engage in business.
Findings Of Fact At all times material hereto, Respondent was the holder of Registered General Contractors License No. RG0013533 issued by the Board to Respondent, d/b/a Deltec Construction Co. (Stipulation of counsel). Respondent is a fifty-five year old general contractor who has worked in construction for thirty-seven years, and has never been disciplined for misconduct associated with construction activities. (Testimony of Respondent) Respondent, at all times material hereto, did not qualify or license with the Board Trendway Construction Co., Trendway Construction Inc., or Trend- Tech Construction Co. (Testimony of Respondent, P.E. 1, 2, 3) Respondent's Business Activities in Daytona Beach, Florida On May 24, 1978, Respondent, d/b/a Deltec Construction Co., contracted with Darcy A. Vernier to assist him in the formation and operation of a corporation to be known as Trendway Construction Inc. In exchange for $8,500.00, Respondent agreed to provide a broad range of business assistance, expertise, training, and equipment to Trendway Construction, Inc. Vernier was designated General Manager and President of the new Company, and agreed to be individually responsible for its overall management. Although the long-term goal of the new Company was to perform general contracting, Vernier and Respondent envisioned that the Company would first gain necessary knowledge and experience by limiting its construction work to masonry and flat concrete construction projects. Profits were to be equally divided between Respondent (Deltec) and Vernier (Trendway), and, as subsequently amended, the Corporation was to be wholly owned by Vernier. (Testimony of Vernier, Respondent, P.E. 4) Prior to executing the contract, Vernier met with Respondent and discussed their proposed business venture on three separate occasions during a ten-day period. Vernier had his attorney review the contract prior to his signing, and fully understood its provisions. The proposed contract was modified, at Vernier's request, to ensure that Vernier would be the sole owner of the Corporation. (Testimony of Vernier) Prior to executing the contract, Respondent took Vernier to observe a masonry or flat concrete construction job in Ormond Beach, which he had recently completed d/b/a Deltec Construction Co. (Testimony of Vernier, Respondent) On July 6, 1978, pursuant to his contractual obligation, Respondent paid $250.00 for and obtained a Masonry Sub-Contractor's License, in Vernier's name, from the Building Department of the City of Daytona Beach. (Testimony of Respondent, Holmes, Vernier) Conflicting evidence was presented on whether, in order to do sub- contracting, masonry and flat concrete work within the City of Daytona Beach, a sub-contractor must also secure a certificate of competency or license from Volusia County under Ordinance 69-3. By stipulation, the testimony of Fred Holmes, Building Official with the City of Daytona Beach, was subsequently taken by deposition and submitted to determine this question. However, the testimony of Holmes is inconclusive, conflicting and unclear. (Testimony of Respondent, Vernier, Holmes, P.E. 7) Respondent did not represent to Vernier that Deltec Construction Co.'s licenses could be used by Vernier d/b/a Trendway Construction, Inc., and that no further licenses would be necessary. Vernier testified that Respondent made such representation, and Respondent denied it. Vernier's testimony is inconsistent with the express contractual provision which required Respondent to affirmatively secure "initial licensing" for Trendway Construction, Inc. Furthermore, Vernier's demeanor as a witness reflected a level of bitterness and hostility toward Respondent which may have influenced his recollection. (Since his construction company failed, Vernier had demanded Respondent return his money and filed a civil suit for such purpose.) In contrast, Respondent's unequivocal testimony on this question is buttressed by his consistent actions in securing an additional license for the Company from the City of Daytona Beach), and his subsequent action in attempting to secure a local license for another company under a contract markedly similar to the one between Vernier and Respondent, post. (Testimony of Respondent, Vernier, Garr, Fortner) Respondent was aware, however, that the Company would eventually have to acquire a license from Volusia County; he concluded, though, that his contractual obligations to secure "initial licensing" encompassed only the license required by the City of Daytona Beach. (Testimony of Respondent) Trendway Construction, Inc., was never organized as a corporation as envisioned by the contract between Respondent and Vernier. Soon after the contract was signed, serious business disagreements arose between Respondent and Vernier. Vernier, then, unilaterally moved the business, including its equipment, furnishings, office forms, and principal employee from Daytona Beach and relocated in another community. From the execution of the contract to Vernier's ultimate closing of the business, Respondent never received any profits from its operation, and his non-participation in the business operations was acknowledged by Vernier. During September or October, 1978, Vernier changed the name of the Company to Pelican Construction Co. During its existence, Trendway Construction was not registered as a fictitious name with the Clerk of the Circuit Court of Volusia County. (Testimony of Respondent, Vernier) Respondent's Business Activities in Ocala, Florida During September and October, 1978), Respondent operated a duly licensed masonry and flat concrete construction business known as Deltec Construction Co., in Ocala, Florida. (Testimony of Garr, Fortner, Respondent) On October 5, 1978, Respondent d/b/a Deltec Construction Co. contracted with Albert W. Latham to assist in the formation and operation of a corporation to be known as Trendway Construction, Inc. (In the Daytona Beach transaction, Trendway Construction Co. had never been incorporated by Vernier, and he had subsequently changed the Company's name, infra.) In exchange for $8,500.00, Respondent agreed to provide business assistance, expertise, training and equipment to Trendway Construction, Inc. Albert Latham was designated as General Manager and President of the newly formed Company, and agreed to be individually responsible for its general overall management. Although general construction was the Company's long-term objective, the parties invisioned that necessary knowledge and experience would be acquired by limiting their initial work to sub-contracting masonry and flat concrete construction projects. Profits were to be equally divided between Respondent and Latham, and 60 percent of the capital stock of the corporation was to be owned by Latham--the remaining 40 percent, by Respondent. (Testimony of Respondent, P.E. 13) On October 23, 1978, Trendway Construction, Inc., was officially organized and formed pursuant to the contract between Respondent and Latham. (P.E. 9) Under the contract between Respondent and Latham, Respondent was obligated to secure initial licensing for the new Company, Trendway Construction, Inc. Because Trendway Construction, Inc., was going to initially engage only in masonry and flat concrete sub-contracting work, the only license required was a certification of competency from the City of Ocala. Respondent made reasonable, diligent and earnest efforts to obtain the required certification from the City. First, he tried to apply for the license on behalf of Trendway Construction, Inc. But, since Latham owned a controlling interest in the Company, and was apparently considered its owner, City Building Department officials insisted that Latham must apply for the license on behalf of the Company. Respondent then obtained and delivered to Latham the necessary application forms and character reference letters, set up appointments for Latham at the Building Department, and repeatedly reminded him of the need to secure the local certification. Despite Respondent's efforts, Latham procrastinated, and failed to obtain from the City of Ocala the required license for Trendway Construction, Inc. It is probable that if proper application had been made for the license, it would have been issued to Latham d/b/a Trendway Construction, Inc., upon payment of the application fee and proof of insurance. (Testimony of Respondent, Garr, Fortner, P.E. 13) After formation of the Corporation, Respondent continued to provide assistance to Latham and Trendway Construction, Inc., but he did not dictate what construction work would be done or whore it would be undertaken. Latham directed two construction work crews and made those decisions. Nevertheless, Respondent warned Latham that no construction work should be undertaken within Ocala until the necessary City certification was obtained. (Testimony of Respondent) On October 24, 1978, Trendway Construction, Inc., poured a driveway slab for Herbert Adams at 2332 East Silver Spring Boulevard, Ocala, Florida, for $668.72. Adams dealt only with Jack Cook, an employee of Trendway, and neither knew nor had any dealings with Respondent. (Testimony of Adams, Garr) The name of "Trendway Construction, Inc.," has not been registered with the Clerk of the Circuit Court of Marion County, Florida. (Testimony of Respondent) Respondent did not attempt to mislead Latham by representing that Trendway Construction, Inc., could operate under Deltec's local or state licenses. (Testimony of Respondent) There was no evidence that Respondent mislead or misrepresented any material fact to Latham or failed to diligently carry out his obligations under their contract; neither was any evidence presented to show Latham was dissatisfied, in any manner, with Respondent's contractual performance. Respondent's Business Activities in Gainesville, Florida Respondent sold a construction business to Valentine Webber of Gainesville, Florida, for $8,500.00. (Testimony of Respondent)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Board find Respondent Not Guilty of the charges contained in its Administrative Complaint, and that the Complaint be DISMISSED. DONE and ENTERED this 11th day of June, 1980, in Tallahassee, Florida. R. L. CALEEN JR., Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 904/488-9675
