vs. ) CASE NO. 84-2529
GEORGE J. SOLER, )
Respondent. )
Pursuant to notice; the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a public hearing in the above- styled case on November 13, 1985 in Miami, Florida.
For Petitioner: W. Douglas Beason, Esquire
For Respondent: George J. Soler, Pro Se
3315 S.W. 96th Avenue Miami, Florida 33165
By an Administrative Complaint dated June 13, 1984 but filed with the Division of Administrative Hearings on July 12, 1984 and amended by order on July 22, 1985 on Petitioner's Motion For Leave To File An Amended Administrative Complaint; Petitioner seeks to revoked suspend or otherwise discipline the license of Respondent George J. Soler as a registered building contractor in the State of Florida. As grounds therefor, it is alleged that: (1) Respondent commenced construction without first obtaining a building permit from the City of Coral Gables, Florida pursuant to the City's building code in violation of Section 489.129 (1)(d); Florida Statutes (1981); (2) Respondent assigned all funds due and owing pursuant to a contract for remodeling and additions of the Myron M. Gold and Roberta Fox residence to Domingo Alonzo (Alonzo), an unlicensed individual and thereafter permitted Alonzo to continue construction of project without Respondent's supervision thereby violating Section 489.129(1)(e)(f)(k); Florida Statutes (1981); and (3) that as a result of Respondent's abandonment of the project and the assignment of the funds to Alonzo who also abandoned the project; a claim of lien was filed by a material supplier for payment for supplies furnished to the project thereby violating Section 489.129(1)(h)(j)(m); Florida Statutes (1981) by diverting funds which resulted in the Respondent being unable to fulfill the terms of the contract; in failing to comply with Section 489.105(4), Florida Statutes (1981) by not adequately supervising the construction; and being guilty of fraud or deceit or of gross negligence incompetency or misconduct in the practices of contracting.
In support of the charges Petitioner presented the testimony of Edward Borysiewicz, Roberta Fox and Myron Gold. Petitioner's Exhibits Nos. 1-15, 17- 19; and 21-25 were received into evidence. Petitioner's Exhibit 16 was marked for identification but not received and Exhibit 20 was received but withdrawn. Respondent did not offer any testimony from witnesses and did not testify on his own behalf. Respondent did not offer any exhibits into evidence.
The Petitioner submitted posthearing Proposed Findings of Facts. A ruling has been made on each proposed finding of fact as reflected in the Appendix to this Recommended Order. The Respondent did not submit any posthearing Proposed Finding of Fact.
9. On January 19, 1983 Respondent using his building contractors license applied for building permit to cover the work anticipated under the contract and on the same day was issued building permit, No. 28214. Under the contract the Homeowners were to pay for the building permit and the bond required by the city.
On January 26, 1983 the Homeowners paid Respondent and Alonzo jointly
$3,000.00 which along with a payment on January 27, 1983 of $500.00 and January 31, 1983 of $544.60 represented a draw on Schedule I - Item 2 for $405.00, Item 5 for $1,260.00, Item 6 for $1,547.10 and Item 13 for $832.50.
All payments from December 6, 1982 through January 31, 1983 under the contract by the Homeowners totaled $9,366.50 and were paid jointly to Respondent and Alonzo.
On February 4, 1983 Respondent and Alonzo entered into an agreement, prepared by Myron Gold in the law office of Gold and Fox, whereby the Homeowners were to pay the balance of the funds remaining under the contract to Alonzo individually. After this date all payments were made to Alonzo.
It was the Homeowners understanding after the February 3, 1983 agreement that Respondent would still be responsible for the supervision of the construction although they never saw Respondent again until October 1983. Edward Borysiewicz testified that he dealt with Respondent during March 1983 when he made the floor slab inspection on March 3, 1983 and the columns inspection on March 14, 1983. The record is clear that shortly after the
agreement on February 3, 1983 Respondent no longer came to the construction site and supervised the work of Alonzo.
On February 8, 1983 the Homeowners paid Alonzo $3,060.00 which represented a draw on Schedule I - Item 1 for $810.00, Item 5 for $1,417.50 and Item 13 for $832.50.
On February 28, 1983 the Homeowners paid Alonzo $3,155.40 which represented a draw on Schedule I - Item 4 for $1,705.50 and $729.90 for extras apparently not covered by the contract but whether the balance of check No. 1161 (Pet. Ex. 13) of $720.00 was for payment under the contract or for extras is not shown in Petitioner's Exhibit No. 15.
On March 18, 1983 the Homeowners paid Alonzo $1,000 which represented a draw on Schedule I - Item 9 for $819.00. Again whether the balance of check No. 1206 (Petitioner's Exhibit No. 13) of $181.00 is for payment under the contract or for extras is not shown in Petitioner's Exhibit No. 15.
On March 21, 1983, the Homeowners paid Alonzo $6,400.00 which represented a draw on Schedule I - Items 10, 11, 12, 14 and 15.
On March 21, 1983 the Homeowners paid Alonzo $2,166.90 but Petitioner's Exhibit No. 15 does not list check No. 1210 as being a payment under the contract or for extras.
On March 31, 1983 the Homeowners paid Alonzo $4,230.00 which represents a draw under Schedule I - Item 7 for $2,520.00 and a payment for extras not covered under the contract in the amount of $1,710.00.
On April 21, 1983 the Homeowners paid Alonzo $5,207.40 which represented a draw Schedule I - Items 1, 5, 6, 9 and 14.
On June 24, 1983 the Homeowners paid Alonzo $5,788.00 which represented a draw on Schedule I - Item 12 for $667.00, Item 14 for $3,024.00 and payment for extras not under contract for $2,097.00.
After March 14, 1983 Respondent was not seen on the job site and there was no longer any apparent supervision of Alonzo by Respondent. After Respondent left the job site there was no licensed building contractor involved in the construction.
After Respondent left the construction site the Homeowners soon realized that Alonzo did not know how to proceed with the work and experienced problems with the pace and manner in which the work was being accomplished. On July, 1983, Alonzo stopped working altogether.
Although the Homeowners were aware of the problems that Alonzo was having with the construction and that Respondent was not on the job, the record does not reflect that they ever attempted to contact Respondent after the meeting on February 3, 1983. On August 1, 1983 the Homeowners notified Respondent and Alonzo that the contract had been terminated.
The Homeowners paid Respondent and Alonzo $42,174.20 total under the contract (pages 1-5, Petitioner's Exhibit No. 15) and paid Alonzo $10,766.37 for extras (Pages 6- 10, Petitioner's Exhibit No. 15).
On August 31, 1983 the Homeowners paid Edward Bryant, plastering contractor the sum of $3,100.00 for plastering performed by Edward Bryant. This was for work under the contract that had not been completed or work necessary to correct problems that were already completed. Roberta Fox testified that there were no extras on plaster, however, page 7, line 11 and page 9, line 21 of Petitioner's Exhibit 15 indicates that there was extra plastering.
On August 29, 1983 and September 29, 1983 the Homeowners paid Southwest Plumbing Services, Inc. the total amount of $4,875.00 for work contemplated under the contract that had not been completed or needed correction. Homeowners had paid Alonzo $3,591.00 for plumbing under the contract. Both Alonzo and Southwest Plumbing, Inc. were paid for extra plumbing not covered by the contract in the amount of $567.00 and $391.50, respectively by the Homeowners.
From September 13, 1983 through June 13, 1984 the Homeowners paid Charles Brueg, Jim Brueg, Charles Buffington and Dan, Inc. the total amount of
$4,192.91 for electrical work contemplated under the contract that was not completed or required correction after Alonzo left the construction site. Page
6 lines 6 and 11 of Petitioner's Exhibit No. 15 indicate that there were extras not covered by the contract. The total amount for electricity contemplated by the contract was $3,649.00. Alonzo was paid $2,627.10 under the contract and
$1,710.00 for extras.
The Homeowners were required to obtain the services of an air conditioning contractor to complete the work contemplated under the contract after Alonzo left the job site and as a result were required to pay Cameron, Inc., the air conditioning contract the amount of $5,181.60 between August 16, 1983 and January 24, 1984. The total amount contemplated under the contract was
$3,600.00 of which $1,134.00 had been paid to Alonzo.
Debris was dumped in the swimming pool requiring the Homeowners to pay
$7,000 to refurbish the swimming pool. This amount included the repair contemplated under the contract and the extra work caused by Alonzo. The contract contemplated $2,300.00 for repairs of which none had been paid to Respondent or Alonzo.
The Homeowners paid $1,150.00 to a painting contractor to finish the painting contemplated under the contract. Alonzo had been paid $1,125.00 for painting. (Petitioner's Exhibit No. 15) The contract provided $2,500.00 for all painting required under the contract.
Respondent failed to notify the building department that he was no longer responsible for the construction.
After the Homeowners terminated the contract due to Respondent's and Alonzo's nonperformance, the Homeowners had to expend a substantial amount of extra money to complete the construction. The evidence is insufficient to determine an exact or approximate amount.
Roberta Fox's testimony was conflicting with regard to her understanding as to whether or not the Respondent would continue to supervise the construction after the meeting in the Homeowners' law office on February 3, 1983 when Respondent and Alonzo entered into this agreement. Myron Gold testified that it was his understanding that Respondent would continue to supervise Alonzo after the agreement. However, the Homeowners action in this regard subsequent to February 3, 1983, in making no effort to bring the matter to a "head" and requiring Respondent to supervise the work or terminate the contract and in continuing to deal with Alonzo although Homeowners were aware shortly after February 3, 1983 that Alonzo could not perform without Respondent's supervision and that they knew Respondent was not on the job, tends to show that they were aware or should have been aware that Respondent was no longer involved in the day to day supervision of the construction.
Alonzo installed a fireplace pursuant to the contract that the building department determined to be a fire hazard and recommended against its use.
The Homeowners applied for and were granted a "owner/builder" permit on September 1, 1983 and requested cancellation of the building permit issued to Respondent which was cancelled on September 6, 1983.
They have not received a certificate of occupancy because the building department has not performed the following inspection: electrical final; plumbing final; air conditioning final; roofing final and public works final.
The building department would have issued a "stop-work order" had it been aware that Respondent was not supervising the construction and would have required the Homeowners to obtain another licensed building contractor or proceed as a owner/builder.
The plans prepared by Frese-Camner Associates that were made a part of the contract by reference were not introduced into evidence with the contract and thus the record is insufficient to determine what was required to meet the specifications of the plans and thereby determine if the specifications had been met.
There was a permit issued for the septic tank and drain field which work was started in December, 1982. The construction of the house itself was started in January 1983. The first inspection (foundation) on the house was made by the building department of January 21, 1983.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. Section 120.57(1) Florida Statutes (Supp. 1984).
Section 489.129(1) Florida Statutes (1981), provides in pertinent part:
The board may revoked suspend, or deny the issuance or renewal of the
certificate or registration of a contractor and impose an administrative fine not to exceed $1,000, place a contractor on probation, or reprimand or censure a contractor if the contractor, if found guilty of any of the following acts:
* * *
Willful or deliberate disregard
and violation of the applicable building codes or laws of the state or of any municipalities or counties thereof.
Aiding or abetting any uncertified or unregistered person to evade any provision of this act.
Knowingly combining or conspiring
with an uncertified or unregistered person by allowing one's certificate or registration to be used by an uncertified or unregistered person with intent to evade the provisions of this act.
* * *
Diversion of funds or property
received for prosecution or completion of a specified construction project or operation when as a result of the diversion the contractor is or will be unable to fulfill the terms of his obligation or contract.
* * *
Failure in any material respect to comply with the provisions of this act.
(k) Abandonment of a construction
project in which the contractor is engaged or under contract as a contractor. A project is to be considered abandoned after
90 days if the contractor terminates the project without notification to the prospective owner and without just cause.
* * *
(m) Upon proof that the licensee is guilty of fraud or deceit or of gross
negligence, incompetency, or misconduct in the practice of contracting.
Section 489.105(3), Florida Statutes (1981) provides in pertinent part:
(3) "Contractor" means the person who is qualified for and responsible for the entire project contracted for and means, except as exempted in this act; the person who, for compensation, undertakes to, submits a bid to, or does himself or by others construct,
repair, alters remodel, add to, subtract from or improve any building or structure, including related improvements to real estate, for others or for resale to others
. . .
And Section 489.105(3)(a), Florida Statutes (1981) includes a "building contractor" under the definition of a "Contractor".
The evidence is insufficient to show a violation of Section 489.(1)(d), Florida Statutes (1981). Apparently the permit to install a septic tank and drain field was drawn by someone other than Respondent and the first work done by Respondent was the foundation which was started sometime in January, 1983 and was inspected on January 21, 1983 two (2) days after the permit was issued.
Section 489.113(2), Florida Statutes (1981) provides that "no person who is not a licensee shall engage in the business of contracting in this state" and any unlicensed contractor found guilty of engaging in the business or acting in the capacity of a contractor is guilty of a misdemeanor in the first degree as provided for in Section 489.127(1)(f)(2), Florida Statutes (1981).
The record is clear that Alonzo was not licensed in any capacity under Chapter 489, Florida Statutes (1981) and if Respondent's intent was to aid or abet or conspire with Alonzo to evade the provisions of Chapter 489, Florida Statutes (1981) when Respondent contracted with the Homeowners or when he assigned the payments under the contract to Alonzo on February 3, 1983 or by his failing to supervise the construction after March 14, 1983 then Respondent would be guilty of violating Section 489.129(1)(e)(f), Florida Statutes (1981). However, a review of the record shows that there is insufficient evidence to prove there was an intent on Respondent's part to aid or abet Alonzo or to conspire with Alonzo to evade the provisions of Chapter 489, Florida Statutes (1981).
Under the agreement with Alonzo Respondent lost control of the funds payable under the contract and as a result Alonzo received payment for completion of items under the contract which were not completed or for materials and supplies used in the construction which were not paid for requiring the Homeowners to expend additional funds to complete the construction and to satisfy liens against their property. Respondent's action of entering into the agreement with Alonzo and his subsequent inaction as to supervising the construction allowed Alonzo to divert funds from this construction resulting in the Respondent being unable to fulfill the terms of the contract. No matter what Respondent thought or the Homeowners' thought or Alonzo thought, entering into the agreement with Alonzo did not relieve the Respondent of his obligation under the terms of the contract. Therefore, Petitioner has proven that Respondent violated Section 489.129,(1)(h); Florida Statutes (1981).
The evidence is clear that by assigning the funds to Alonzo and subsequently "washing his hands" of the construction project, Respondent abandoned the project and thereby violated Section 489.129(1)(k), Florida Statutes (1981).
The Respondent's violations of Section 489.129 (h)(k), Florida Statutes (1981) having been proven and it being obvious that they were not mere violations or inadvertent violations which could be excused as one isolated mistake or simple negligence, it becomes clear that the Respondent has violated
Section 489.129(1)(m), Florida Statutes by being guilty of misconduct in the practice of contracting. The evidence is insufficient to prove Respondent guilty of fraud or deceit or of gross negligence or incompetency.
Chapter 83-160, Section 7 (489.129(1), Laws of Florida amended Section 489.129(1), Florida Statutes(1981) to increase the administrative fine from
$1,000.00 to $5,000.00 and was effective October 1, 1983. Respondent's conduct for which he has been charged was prior to October 1, 1983. Therefore, the maximum administrative fine that could be imposed is $1,000.00. See Department of Transportation v. James, 403 So2d 1066 (4 DCA Fla. 1981).
Based on the findings of fact and conclusions of law recited herein, it is Recommended that the Board enter a final order finding Respondent guilty of violating Section 489.129(1)(h)(k)(m), Florida Statutes (1981) and for such violations it is Recommended that the Board assess the Respondent with an administrative fine of $500.00 and suspend the Respondent's contracting license for a period of three (3) years, provided, however, that if Respondent submits to the Board competent and substantial evidence of restitution to Myron Gold and Roberta Fox within one (1) year from the date of the final order herein, then the suspension shall be stayed and Respondent placed on probation for the balance of the suspension.
Respectfully submitted and entered this 6th day of February, 1986, in Tallahassee, Florida.
WILLIAM R. CAVE
Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1986.
APPENDIX TO RECOMMENDED ORDER IN CASE NO. 84-2529
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties to this case.
Adopted in Finding of Fact 1.
Adopted in Finding of Fact 2.
Adopted in Finding of Fact 3 but clarified.
Adopted in Findings of Fact 4 and 5.
Adopted in Finding of Fact 4.
Adopted in Finding of Fact 6.
Adopted in Finding of Fact 5.
Adopted in Finding of Fact 9.
Adopted in Finding of Fact 9.
Adopted in Finding of Fact 9.
Adopted in Finding of Fact 9.
Adopted in Finding of Fact 10.
Adopted in Finding of Fact 11.
Adopted in Finding of Fact 12 except clarified as to the last date on construction site.
Adopted in Finding of Fact 13.
Adopted in Finding of Fact 14 but clarified.
Adopted in Finding of Fact 15 but clarified.
Adopted in Finding of Fact 16.
Adopted in Finding of Fact 17 but clarified.
Adopted in Finding of Fact 15 but clarified.
Adopted in Finding of Fact 19.
Adopted in Finding of Fact 20 but clarified.
Adopted in Finding of Fact 21.
Adopted in Finding of Fact 11.
Adopted in Finding of Fact 21.
Adopted in Finding of Fact 22.
Adopted in Findings of Fact 22 and 23.
Adopted in Finding of Fact24 but clarified to show correct amount paid under contract as indicated by Petitioner's Exhibit 15.
Adopted in Finding of Fact 25 but clarified to show that extra plastering not under contract was required.
Adopted in Finding of Fact 26.
Adopted in Finding of Fact 26.
Adopted in Finding of Fact 26.
Adopted in Finding of Fact 27.
Adopted in Finding of Fact 27.
Adopted in Finding of Fact 27.
Adopted in Finding of Fact 27.
Adopted in Finding of Fact 27.
Adopted in Finding of Fact 27.
Adopted in Finding of Fact 28.
Adopted in Finding of Fact 28.
Adopted in Finding of Fact 28.
Adopted in Finding of Fact 28.
Adopted in Finding of Fact 29 but clarified.
Adopted in Finding of Fact 30 but clarified.
Rejected as immaterial.
Rejected as not supported by competent substantial evidence.
Rejected as not supported by substantial competent evidence.
Adopted in Finding of Fact 31.
Rejected as immaterial.
Adopted in Finding of Fact 32 but clarified to show that the record does not support a figure that approximate
$32,000.00.
Rejected as not supported by substantial competent evidence even though the Homeowners' testimony supported this fact because the Homeowners' actions with regard to Respondent after February 3, 1983, was to the contrary.
Adopted in Finding of Fact 33.
Adopted in Finding of Fact 34.
Adopted in Finding of Fact 34.
Adopted in Finding of Fact 34.
Adopted in Finding of Fact 35.
Adopted in Finding of Fact 36.
Adopted in Finding of Fact 36.
No Findings of Fact was submitted by the Respondent.
Salvatore A. Carpino, General Counsel Department of Professional
W. Douglas Beason Esquire Department of Professional
Mr. George J. Soler, Pro Se 3315 S.W. 96th Avenue Miami, Florida 33165
