The Issue Whether the Agency for Persons with Disabilities (“APD”) should approve the application for licensure sought for the group home facility Catalina Group Home, owned and operated by Caring Angels, Inc. (“Caring Angels”).
Findings Of Fact APD is the state agency charged with regulating the licensing and operation of foster care facilities, group home facilities, residential habitation centers, and comprehensive transitional education programs pursuant to sections 20.197 and 393.067, Florida Statutes. Respondent is an applicant for licensure of a group home facility. Caring Angels’ corporate officer, Ravi Kumar, submitted the completed application to APD on or about February 9, 2018. At all times material, Ravi Kumar was the sole corporate officer of Florida corporations Sweet Home Manor, Inc., and Comfort Manor, Inc. On or about September 7, 2005, the Agency for Health Care Administration (“AHCA”) took agency action against the license of Sweet Home Manor, Inc. On December 23, 2005, AHCA entered a final order that required Sweet Home Manor, Inc., to pay a $500 fine and a $209 survey fee. On or about April 1, 2007, AHCA filed a three-count administrative complaint that sought to discipline the license held by Comfort Manor, Inc. The parties resolved this case via settlement agreement, signed by Ravi Kumar, wherein Comfort Manor, Inc., agreed to pay costs and a $500 fine. As part of that agreement, Comfort Manor, Inc., admitted to the allegations contained in the administrative complaint. A Final Order that adopted the settlement agreement was entered on September 7, 2007. Between June 7, 2017, and June 9, 2017, Mr. Kumar’s facility, Comfort Manor Assisted Living Facility, Inc., was investigated by the Department of Children and Families (“DCF”). The complaint that initiated the investigation alleged that the conditions of Mr. Kumar’s facility were hazardous, in part, due to slippery floors. It was alleged that the slippery floors had caused one resident, R.B., to fall and consequently require hospitalization. The floors were so slippery that, upon entry into the facility, the DCF investigator, Mr. Pearson, immediately slipped and almost fell. After completing a thorough investigation of the facility, Mr. Pearson closed his investigation with verified findings of abuse, neglect, or exploitation against Ravi Kumar. APD’s application for licensure contains a section titled “Affidavit.” Question one of the affidavit states, “Have you . . . been the party responsible for a licensed facility receiving an administrative fine?” Mr. Kumar answered “no.” Mr. Kumar’s answer was false and not accurate. Question two of the affidavit states, “Have you . . . ever been identified as responsible for . . . the abuse, neglect, or exploitation of a vulnerable adult?” Mr. Kumar answered “no.” Mr. Kumar’s answer was false and not accurate. Mr. Kumar testified that the answers were simply “mistakes.” Mr. Kumar compared his mistake to mistakes made by APD’s counsel, who used the wrong date in a discovery request made to Caring Angels, and other persons, including Mr. Pearson, who made a typographical error or two in the spelling of a subject’s name in his investigative report. However, these other noted “mistakes” were not made under oath, as was the signed and notarized affidavit by Mr. Kumar as part of his licensure application. Additionally, Mr. Kumar has known about his alleged mistake, since he received the APD’s March 29, 2018, denial letter. There is nothing in the record to demonstrate that Mr. Kumar made any attempt to fix the alleged error prior to the hearing. With respect to the DCF investigation, Mr. Kumar stated that he was not aware of the verified findings. Mr. Kumar also stated that the cleaning of the facility floor did not cause his resident to fall, but rather the resident’s infirmity and brain damage actually caused the fall. To his credit, however, Mr. Kumar at least knew that he was being investigated by DCF. Investigator Pearson spoke to Mr. Kumar on the telephone. At the time of the investigation, Mr. Kumar, refusing to come to the facility, simply told Mr. Pearson that there was nothing wrong with the floor. Additionally, while Mr. Pearson’s investigation was precipitated by the fall of a resident, his personal observation of (and loss of balance on) the slippery floor confirmed for him the verified finding of a dangerous condition leading to the resident’s fall. Mr. Kumar misrepresented material facts when responding to questions one and two in the affidavit section of his application for licensure. Based upon the fall of a resident that led to a verified finding of abuse or neglect by DCF, Mr. Kumar was responsible for the abuse, neglect, or exploitation of a vulnerable adult.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order denying Caring Angels, Inc.’s, application for licensure. DONE AND ENTERED this 17th day of July, 2018, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 2018. COPIES FURNISHED: Ravi Kumar Caring Angels, Inc. 5685-91st Avenue North Pinellas Park, Florida 33782 (eServed) Trevor S. Suter, Esquire Agency for Persons with Disabilities Suite 380 4030 Esplanade Way Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Gypsy Bailey, Agency Clerk Agency for Persons with Disabilities Suite 335E 4030 Esplanade Way Tallahassee, Florida 32399-0950 (eServed)
Findings Of Fact On September 13, 1991, Respondent was operating two commercial vehicles in Hillsborough County, Florida, when they were stopped by the Petitioner and weighed. The first vehicle was a 1988 Freightliner which weighed 75,360 pounds or 40,360 pounds above a 35,000 pound weight limit. The second vehicle a 1989 White/GMC weighed 76,040 pounds or 41,040 pounds over a 35,000 pound weight limit. Respondent did not contest the weights assigned in the inspections that took place on September 13, 1991, nor the calculation of the amount of fine associated with the vehicles for being over weight. The trucks were not registered in Florida and did not have evidence of an apportioned registration from some other state. Neither did the commercial vehicles have a single trip permit. As a consequence a 5 cents per pound penalty was assessed for weight above the 35,000 pound limit. In the instance of the Freightliner that penalty was $2,018.00 and the penalty for the White/GMC was $2,052.00. The vehicles were from the state of Ohio, a state which was participating in the International Registration Plan on the date in question; however, the Ohio registration for the vehicles did not indicate apportionment for Florida. Terry Whittington the President for Whittington Produce, testified that Ohio had recently become a state which participated in the reciprocity related to the International Registration Plan. He identified that the business of the Respondent is hauling, in this instance hauling poultry; and that his company suffered a 3 percent financial loss on this trip in which the industry standards call for delivery of all but a quarter to a half percent of the product. This loss was associated with having to gain compliance with the registration requirements on the date in question and the time necessary to accomplish that task. The customer has not asked the Respondent to haul its poultry following the loss. Whittington referred to the possibility that Ohio was remiss in getting information to them about apportionment for registration by not meeting deadlines on licensing and getting information to the Respondent when Respondent received the registration plates for the commercial vehicles in question. Whittington refers to the fact that it was after June 30, 1991 or July 1, 1991, when Respondent began to get information from the state of Ohio to deal with the participation in reciprocity associated with the International Registration Plan and by then Respondent had already "filed" about every place that it was going to "file." Whittington believes that his company got caught short on paperwork. Whittington also referred to the belief that he held on September 13, 1991, to the effect that Ohio was a reciprocity state and the operation of the commercial vehicles in Florida was in compliance with all requirements, especially given a 300 percent increase in 1991 related to the Ohio licensing costs. In the submission of the letter in argument Respondent attaches what is referred to as a supplemental application to the State of Ohio, Bureau of Motor Vehicles, International Registration Plan which adds the State of Florida to its apportionment in the registration for the two vehicles in question, among others. The letter in argument continues to refer to May, 1991 as the date upon which Ohio began to participate in the International Registration Plan and the belief that the rules and laws were different than they were before with the advent of this participation by Ohio. The argument continues to assert that the Respondent believed that it was in compliance when it entered the State of Florida and that when the Respondent found out that it was not it did arrange for apportionment with Florida, which the exhibits attached to the letter in argument refer to. This is the after the fact or supplemental application to add Florida as an apportioned state for the Ohio registration pertaining to the subject vehicles in question. In summary Respondent believes that the fines are exorbitant and not in keeping with the purchase of a license to operate in Florida and Respondent asks that the fines be lowered.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which assesses penalties in the amount of $2,018.00 and $2,052.00 respectively thus denying the request for refund. DONE and ENTERED this 25th day of June, 1992, in Tallahassee, Florida. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation CHARLES C. ADAMS, 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 25th day of June, 1992. Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 Terry E. Whittington Post Office Box 33 Hollansburg, OH 45332 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458
Findings Of Fact Mr. Richard Hughes, investigator for the Department, received approximately twelve complaints from various citizens in the Broward County area based on alleged faulty workmanship by the Petitioner. (See State's Composite Exhibit No. 2.) Customer invoice receipts reveal that Petitioner used State Registration No. 2739 on all customer invoice receipts. Evidence reveals further that Petitioner was at one time, the President of King Television, Inc., which was assigned State Registration No. 2739, but that registration expired some time during 1974. William C. Kimberl, Jr. the Division's Director, by sworn affidavit dated December 7, 1976, stated that he, as custodian of the records for the Bureau of Electronic Repair Dealer Registrations, made a search of such records and found no record that Petitioner's business, which is located at 1107 N.W. 15th Place in Ft. Lauderdale, Florida, was registered. See State's Exhibit No. 1. During August of 1976, Petitioner was charged with operating a business without a registration and for obtaining property in return for worthless checks and that he pleaded nolo contendre to the charge of operating a business without a registration and adjudication was withheld on the charges of obtaining property in return for worthless checks. Petitioner was placed on probation for eleven months. Additionally, the court required that Petitioner check all TV sets involving the complaints which had been received by the state agent (Mr. Hughes) and repair them to the customers' satisfaction. Thereafter and subsequent to repair, Petitioner was to receive a signed invoice from all disgruntled customers stating in essence that they were satisfied with the TV set as repaired. As to those complainants who refused to sign such an invoice, Petitioner was required to contact Mr. Hughes who would in turn independently check the set to determine whether or not it was operating properly and that, if such was the case, Petitioner would not be required to make further repairs to the set. With the exception of approximately two complainants, it suffices to say that Petitioner complied with the court's ruling regarding the repair of the TV sets. One complainant, Mrs. George Pollack of Hallendale, testified that she had made repeated calls to Petitioner in an effort to obtain her remote control selector to no avail. Petitioner testified credibly that he had ordered the part to repair the remote control selector from the manufacturer and that as soon as such parts were received, he would repair and return the selector to Mrs. Pollack. Shirley Herbstman of Hollywood, contacted Petitioner during April, 1976, to have her set repaired. She paid approximately $102.00 to have tubes, transformer, and a remote control repaired, and when the set was returned, she contends that the same problem existed. Thereafter she called Ace TV and a yoke was replaced at her home for a cost of approximately $75.00. See Respondent's Exhibits No. 3 and No. 4. The Petitioner's Defense. Petitioner testified that he received assurances from investigator Hughes that it was proper for him to operate under his old registration number i.e., No. 2739 until such time as he obtained his new registration. According to the evidence, it appears that this assurance was given during late 1975 at which time Hughes furnished Petitioner with an application form and instructed him to immediately file it with the Division. Evidence also reveals that Petitioner did not submit his application to the Department until August 9, 1976. By letter dated August 10, 1976, the Bureau Chief of Electronic Repair Dealer Registration advised Petitioner that his application for registration was being returned because of certain omissions on his application including his failure to tender the $30 application fee, the sales tax permit number or a receipt for such payment and a certification from the Secretary of State's office that the corporation was in good standing. Thereafter by letter dated October 15, 1976, Petitioner was further advised that after a review of all available facts known to the Division, his registration was not being validated pursuant to Chapter 468.155 and 468.159(1)(a), Florida Statutes. Petitioner testified further that he had not operated as a TV repairman other than to repairs sets per the terms of a court order and that subsequent to August, 1976, he had not, in any manner, held himself out as a registered repairman. He testified that once his license was rejected, he had all phones disconnected and that he was led to believe that his son would take over the business. As events developed, however, his son left the state.
Recommendation Based on the above findings of fact and conclusions of law I recommend that the allegation that the Petitioner violated his probationary status by operating without being registered be dismissed. Based on the remaining violations as found above, I recommend that the Respondent's action in denying Petitioner his registration certificate as an electronic service dealer be sustained. DONE and ENTERED this 18th day of February, 1977, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Lawrence D. Winson, Esquire Staff Attorney Department of Business Regulations Division of General Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32304 Gerald H. Birnesser, Esquire 2119 Hollywood Boulevard Hollywood, Florida 33020
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing Files and Relinquishing Jurisdiction by Linzie F. Bogan an Administrative Law Judge of the Division of Administrative Hearings, and the parties’ Agreement, copies of which are attached and incorporated by reference in this order. Accordingly, it is hereby ORDERED that this case is DISMISSED. DONE AND ORDERED this Ma day of June, 2014, in Tallahassee, Leon County, : © Florida. Caberr Filed in the official records of the Division of Julie Baker, Chief Motorist Services this day of June, Bureau of Issuance Oversight 2014. Division of Motorist Services Department of Highway Safety and Mobs Ds: le Motor Vehicles DMlabn Viragh Neil Kirkman Building, Room A338 Nalini Vinayak, Dealer License Administrator Tallahassee, Florida 32399 Filed June 19, 2014 7:40 AM Division of Administrative Hearings Copies furnished to: Ronald Larkin Larkin Motorworks, LLC 3029 Dr. Martin Luther King, Jr. St. North St. Petersburg, Florida 33704 Nalini Vinayak Dealer License Section Brett Moorer Parallel Intelligent Transportation, Inc. 6950 Central Highway Pennsauken, New Jersey 08109 Michele R. Stanley Tropical Scooters, LLC 11610 Seminole Boulevard Largo, Florida 33778 Linzie F. Bogan Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure.
Findings Of Fact Respondent William F. Dawson is licensed by Petitioner Construction Industry Licensing Board as a certified general contractor. He holds an individual license, number CG C006243 which was issued in an active status in 1976 with address 3805B Cortez Place, Tampa, Florida 33614. In September, 1976, the license was changed from an individual status to qualify Dawson Builders, Inc. at the same address. In July, 1981, the license was changed again to an individual status, with address Post Office Box 2176 Riverview, Florida 33569. Respondent acquired a different license, number CC CA06243 in 1977 to qualify Superior Construction and Erecting Company, Inc., with address shown as 7202 Lanchashire Circle, Apartment 121, Tampa, Florida, 33614. The license has been in a delinquent status since July 1, 1981, but was active until that date. Respondent was a vice president of Superior Construction and Erecting Company, Inc. (Testimony of Respondent, Latoria, Petitioner's Exhibits 4-5) The Hernando County Construction Code, County Ordinance No. 78-2 requires that any entity entering into a contract for construction within the county must have a valid occupational license and a county certificate of competency issued after examination of the firm's designated individual. Section 304.9 of the ordinance provides for revocation or suspension of a certificate of competency of any building contractor on various grounds, including in subsection 1(f) thereof "The filing of a petition in voluntary bankruptcy with intention of defrauding an owner, or avoiding payment for materials furnished or labor performed, or the doing of any other act for the purpose of perpetrating a fraud." Section 304.9 provides for such disciplinary actions to be handled by the County Board of Construction Examiners after investigation of complaints, and notice of not less than ten or more than thirty days for a hearing on any charges. The alleged violator has the right to appear, be represented by counsel, produce evidence, and cross examine witnesses. (Testimony of Latoria, Petitioner's Exhibit 1) A letter, dated April 11, 1980, from the building official of Hernando County to Respondent at the address shown on his state license, 7202 Lanchashire Circle, Apartment 121, Tampa, Florida 33614, advised that Respondent's presence was required before the Construction Board of Examiners on May 6, 1980, concerning a charge that he had violated Section 304.9-1(f) of County Ordinance No. 78-2. The letter stated that Respondent could be represented by counsel if he desired and that failure to appear could be just cause for revocation or suspension of his license. The certified letter was returned by postal authorities marked "addressee unknown." The building official thereafter, by letter of April 16, 1980, informed Asa B. Mather of the board meeting and enclosed a copy of the letter to Respondent. Mather was President of Superior Construction and Erecting Company, Inc. At the May 6 board meeting, the minutes reflect that Asa Mather appeared on behalf of Superior and that Respondent did not appear. The minutes further, show that Mather stated that Superior had filed voluntary bankruptcy proceedings under Chapter 11 of the Federal Bankruptcy Act to settle the debts of the firm. The board thereupon took action in the matter suspending Superior's "permit pulling privileges" in Hernando County for ninety days, and requiring the firm to furnish the board a financial report within thirty days. The county building official advised Respondent of the board's action by letter of May 8, 1980, addressed to him at 2515 Greenmore Place, Tampa, Florida 33618. It further advised him that his agent had agreed to bring documentation into the office regarding the bankruptcy proceedings, and that he had a right to appeal the decision and request "a rehearing within ten days from the date of the meeting. Although this letter was apparently not sent by certified mail, no evidence was presented that it was returned by postal authorities to the county building department. (Petitioner's Exhibit 2 and Composite Exhibit 3) At a meeting of the board on June 2, 1980, the minutes reflect that since Superior Construction had not brought in the necessary papers regarding the bankruptcy proceedings, it was determined that Superior be requested to appear before the board at the next meeting with such papers. A letter to this effect was sent to Respondent at the Greenmore Place address on June 17, 1980, and a receipt for certified mail shows that Mrs. Joseph Dawson received the letter on June 19, 1980. The minutes of the board's meeting on July 1, 1980, reflect that neither Mather nor Respondent appeared before the board with a financial statement, nor had such records been received by the board. Accordingly, the board proceeded to suspend "their license." A letter dated July 9, 1980, to Respondent at the Greenmore Place address advised him of the fact that the board had suspended his license indefinitely for failure to appear and present his financial statement to the board. (Petitioner's Exhibits 2-3) Respondent testified at the hearing that he had left Superior Construction in June of 1978, and had informed Mather that he would not be renewing his certification as qualifying agent of the firm in the future. His stated reason for leaving was because he had not received compensation for supervising construction projects. He further testified that he did not renew his state license in 1978 or 1979, but did not notify either the county building official or the Petitioner Construction Industry Licensing Board of his change in status or of his various address changes over the years. It was for the latter reason that he did not receive the April 11, 1980, letter of the county building official. Mrs. Joseph Dawson is his mother and he had used her address for state board matters, but she did not inform him of her receipt of the April 16, 1980 letter from the county building official. Respondent stated that, therefore, he was unaware of the proceedings in Hernando County until he received the Administrative Complaint in this proceeding. (Testimony of Respondent)
Recommendation That the Administrative Complaint be dismissed. DONE and ORDERED this 14th day of October, 1982, in Tallahassee, Florida. THOMAS C. OLDHAM 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 14th day of October, 1982. COPIES FURNISHED: Michael Egan, Esquire 217 South Adams Street Tallahassee, Florida 32301 E. C. Watkins, Jr., Esquire 707 East Kennedy Boulevard Tampa, Florida 33602 Mr. James Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32302 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact The Respondent, Richard M. Woodley has two inactive contracting licenses numbered CB CA 17970 and CB CO 17970, and was so licensed in 1986. The Respondent's license CB CA 17970 qualified "Woodley Builders, Inc." with the Florida Construction Industry Licensing Board. At the time of the hearing, the Respondent was no longer in the construction contracting business as a licensed contractor. With respect to case number 87-2809, on December 15, 1985, the Respondent, on behalf of Woodley Builders, Inc., entered into a contract with Catherine M. Richardson and Jonathan P. Richardson to build a residence in or near Orlando, Florida. The contract price was $90,000, with $20,000 attributable to the land. The contract specified that payments would be made to Woodley Builders, Inc. "in accordance with the disbursement schedule set forth by the construction lender." P. Ex. 1, paragraph 7. Woodley Builders, Inc. also agreed in the contract to furnish to the Richardsons lien waivers as required by the construction lender for disbursements. The construction lender disbursed the following amounts on the indicated dates: $10,200 March 17, 1986 $10,200 March 19, 1986 $17,000 March 27, 1986 $17,000 April 24, 1986 To induce these disbursements, a total of $54,400, the Respondent signed lien waivers stating that all bills for labor and materials used had been paid in full. P. Ex. 5. At the time of signing, the Respondent told the construction lender that he had paid all bills due to that time, but had not paid bills not yet presented. T. 89. Thus, the lien waivers were intended to be a certification of the partial completion and payment for the work billed to the date of the waiver, and a promise to pay other bills for work already completed as such bills were presented. Six claims of liens were filed by subcontractors. The Richardsons hired a lawyer, and the lawyer was able to defend against two of the liens for failure to properly comply with procedures for mechanic's liens. Four liens for the following amounts and for work beginning on the dates indicated ultimately had to be satisfied by the Richardsons: $ 2,851.45 March 19, 1986 $13,462.34 March 7, 1986 $ 1,944.57 April 8, 1986 $ 785.01 April 9, 1986 These liens were for work commenced before the last lien waiver was signed on April 24, 1986. Thus, the Respondent failed to comply with the oral representations he made at the time of signing the lien waivers. The Richardsons were forced to execute a second mortgage in excess of $17,000 to pay off the unpaid liens. The Richardsons terminated the contract with Woodley Builders, Inc. when subcontractors quit working for lack of payment by Woodley Builders, Inc. Some money was obtained from family loans. It cost the Richardsons about $30,000 to have the house finished, which has added about $325 per month to their mortgage obligations. The Respondent and Woodley Builders, Inc. have not paid anything on these liens. Woodley Builders, Inc. filed bankruptcy. The Richardsons sued the Respondent as trustee for Woodley Builders, Inc. and obtained a default judgment for $149,839, which was a judgment of $32,380 in compensatory damages, trebled, plus costs, interest, and attorney's fees. With respect to case number 87-2810, on June 11, 1986, Woodley Builders, Inc. entered into a contract with Tom Jamieson to construct an addition to his residence in Orlando, Florida. The price of the work was $18,500. The contract specified that the price was a cash price, and that draws were to be made according to a schedule stated in the contract. Mr. Jamieson paid to Woodley Builders, Inc. about $11,700 of the contract price. At some time before completion of the addition, the owner, Mr. Jamieson, evidently became dissatisfied with the Respondent's work. Mr. Jamieson was given the Respondent's copy of the contract and refused to return it to the Respondent. Mr. Jamieson then owed the Respondent a draw of $3500, but refused to give it to him, and refused to have it put in escrow for the payment of subcontractors. The date that this occurred is not in evidence. T. 35-36, 39. Since Mr. Jamieson had taken back the contract, the Respondent thought that he (the Respondent) no longer had any legal proof of the contract (either scope of work or amount due), and thus had no contract to complete the work. He also did not receive the draw that was due. The Respondent thus ceased work on the addition for fear that he would not be paid without a copy of his contract. T. 36-37. The Respondent offered to complete the work. T. 51. The drywall contractor, Rick's Drywall, Inc., filed a lien for $465 for work done from August 12, 1986 and August 20, 1986. The Respondent would have paid this lien had Mr. Jamieson not terminated the contract and refused to give the Respondent a draw still due of $3500. T. 49-50. There may be a claim for unpaid electrical work in July, 1986, see P. Ex. 15, but it is impossible to tell if this occurred before or after Mr. Jamieson terminated the contract, or whether the Respondent had received draw money that should have paid this claim. The only evidence is that the Respondent had an agreement with the electrical subcontractor to pay that subcontractor at the time of the final draw, a draw never received as discussed above. T. 53. P. Ex. 11 is insufficient evidence that there were unpaid claims for roof trusses. Moreover, it cannot be determined whether the Respondent received a draw before contract termination which should have been used to pay for roof trusses. The Respondent had been a contractor for eight years before he began to have financial difficulties resulting in the problems with the Richardson's residence. There is no evidence of any prior discipline.
Recommendation It is recommended that the Construction Industry Licensing Board enter its final order finding in case number 87-2809 that the Respondent, Richard M. Woodley, violated sections 489.129(1)(m), 489.129(1)(j), and 489.119, Fla. Stat. (1986), misconduct in contracting by diversion of funds, and failure to supervise as a qualifying agent, and in case number 87-2810, dismissing the administrative complaint for failure of proof by clear and convincing evidence. It is further recommended for the violation set forth above that the license of the Respondent be suspended for one year. DONE and ENTERED this 22nd day of July, 1988. WILLIAM C. SHERRILL, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1988. COPIES FURNISHED: Richard M. Woodley 2521 Tuscaloosa Trail Maitland, Florida 32751 David Bryant, Esquire 1107 East Jackson, Suite 104 Tampa, Florida 33602 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Nonroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
