The contracted work included: completely remodeling the kitchen and living room; the installation of central air conditioning and heating; the construction of a swimming pool; and the construction of a covered patio. The Reyes provided Respondent with a check in the amount of $4,227.40, representing a twenty percent down payment on the contract price of $24,237.00. Although signed by Mr. Reyes, who did not testify, Mr. Reyes' signature was identified by Mrs. Reyes on the contract and on the September 20, 1983 check. She was present at the execution of the contract and tendering of the check on the Reyes' joint bank account to Respondent Reyes on September 20, 1983. Existence of this contract and its terms is not disputed by Respondent. Subsequently, approximately $3,100.00 was deducted from the total contract price by way of a change order. This amount represented the cost of installing a roof over the patio and brought the new contract price to $21,137.00. (P-3 and P-6) A change order, prepared by Respondent, and signed by Mrs. Reyes, was agreed to approximately October 18, 1983, for installation of more expensive bronze-tone sliding glass doors in the family room and $250.00 was paid additionally by the Reyes.
From September through November, 1983, Respondent performed construction work at the Reyes' residence. Under the terms of the contract, the Reyes provided Respondent with the following amounts, mostly by checks drawn on their joint account and issued over Mrs. Reyes' signature.
DATES AMOUNTS
September 20, 1983 $ 4,227.40 (20 percent down payment)
October 5, 1983 $ 1,056.85 (installation of kitchen
cabinets)
October | 13, | 1983 | $ 3,170.55 | (pool framing inspection) |
October | 24, | 1983 | $ 250.00 | (change order--glass |
doors)
October 25, 1983 $ 2,137.00 (air conditioning
equipment) October 28, 1983 $ 2,137.00 (pool gunnited)
November 3, | 1983 | $ 1,056.85 | (kitchen remodeling) |
November 4, | 1983 | $ 1,056.85 | (plumbing payment) |
November 21, 1983 | $ 2,000.00 | (kitchen and den) |
November 23, 1983 | $ 1,000.00 | (kitchen and den) |
November 28, 1983 | $ 982.00 |
|
December 6, 1983 | $ 2,137.00 | (pool decking) |
$21,211.50 TOTAL (P-6)
All of these checks were cashed by Respondent.
During October and November, 1983, work was localized in the kitchen. Mrs. Reyes recalled not being able to use her kitchen for Thanksgiving, 1983. Except for recurring problems of improperly installed tiles, cabinets and appliances, related infra., Respondent completed the bulk of the kitchen remodeling in early December, 1983.
Also in early December, 1983, the swimming pool was dug and gunnite was sprayed for the pool. Gunnite is a base of a spray used for installing the concrete bottom of a swimming pool prior to installing further marble-type finishing material, tile, and accouterments. In this same time period, the overhang above the anticipated patio was torn off the existing house by Respondent with the apparent goal of tying the existing roof beams into the new roof.
After December 6, 1983, Respondent failed to perform any actual construction at the Reyes' residence until May, 1984. 2/ His crew only worked there one day in December of 1983.
Approximately December 20, renegotiation of pool costs and kitchen tile costs were indulged-in by the the participants. The final result was that the Reyes would pay $80.00 more for kitchen tiles and $106.00 more for pool tiles and would be permitted by Respondent to deduct $246.00 from the total owed on the contract to him. Mrs. Reyes purchased the pool materials and paid cash for them rather than turning over any monies to Respondent but she stored them on her property so that the work could go forward.
Respondent testified that shortly before that point in time, he realized that he had underestimated the cost of doing the Reyes' job by
$6,000.00 to $7,000.00 and attempted to explain to them that having received approximately 90 percent of the contract price, but having not completed that
much of the work contracted-for, he would have to do the work as he was able between other jobs in order to stay afloat financially. Respondent's proposal was not initially acceptable to the Reyes and they hired a lawyer who thereafter prohibited Respondent making direct contact with the Reyes.
At that time, the following items remained to be completed at the Reyes' residence. The pool tile had not been installed; the pool equipment had not been purchased or installed; the living room windows had not been installed; and the patio roof had not been completed. There were also numerous problems with the quality of the workmanship of the completed items. The kitchen cabinets and the dishwasher were both initially improperly installed.
As a result of the Reyes complaining to the Metropolitan Dade County Building and Zoning Department, one of that agency's code enforcement officers, John Delaney, inspected the Reyes' home on April 20, 1984. At that time, Mr. Delaney noted all of the items listed in Paragraph 8 as needing completion and also noted that the patio roof overhang was still exposed to the elements and that the air conditioning unit was only balanced on a concrete slab. Mr. Delaney estimated that at that time the contract work was approximately 55 percent to 60 percent complete. Upon investigation and a record search, Mr. Delaney determined that Respondent had obtained an approved building permit for the construction of the swimming pool and the open beamed porch. (P-13) The building permit did not specify installation of the pool's piping. Likewise the building permit did not specify that Respondent might perform the interior remodeling work. This permit which Respondent did obtain lists, and Respondent's signature acknowledges, that Respondent knew that "unless specifically covered by this permit" separate permits must also be obtained for electrical, plumbing, roofing, and paving and pool, among other items. Upon concluding his investigation, Mr. Delaney felt sufficient evidence existed to charge Respondent with violation of Section 10-22 of the Metropolitan Dade County Code and forwarded his investigative report to the official for the appropriate unincorporated municipality. This report indicates that Respondent also pulled permits for mechanical air conditioning and heating and an electrical permit for the swimming pool. To Mr. Delaney's knowledge, no charges were ever filed by that official against Respondent. 3/
Mr. Delaney conceded that a state certified general contractor such as Respondent can legitimately do pool piping and that the only failure of Respondent was in not pulling the county permit. He indicated that the kitchen work in the Reyes' home would require a special permit because there is electrical and plumbing work in replacing old appliances with new. However, as to the kitchen cabinets he felt it would be permissible for either the general contractor to pull a general permit or for a subcontractor to pull a specialty cabinet permit.
By questions on cross-examination of Mr. Delaney, Respondent asserted that no electrical work was done, no switches were moved and his only work was replacement of kitchen cabinets, floor, and acoustical tile but this is in the form of his questions and not sworn testimony.
Respondent eventually came back to the Reyes job. He finished the pool in July, 1984. He finished the open beamed roof in October 1984. Respondent's carpenters or subcontracting cabinetmakers Carlos and Hector eventually fixed a kitchen door drawer Mrs. Reyes had complained about. (It was never established what these workers' status was/is.)
Despite her general dissatisfaction with the tiles in her kitchen, despite a chipped sink, and despite personally having to explain to the plumber (again the tile setter and plumber's contract or employment relationship with Respondent is unclear) how to install the dishwasher, Mrs. Reyes currently feels
95 percent of the contract work has been completed by Respondent. 4/ She acknowledged that Respondent has provided additional bronze fixtures in her family room by way of mitigation.
As to Counts IV--VII:
In March, 1982, June Mildred Cooper contracted with one Steve Karlan for the construction of a bathroom addition on a residence located at 4835 Westwood Lakes Drive, Miami, Florida. The contract price was $6,700.00. Steve Karlan is not registered, certified, or otherwise licensed by the Florida Construction Industry Licensing Board. See supra.
All oral representations made by Karlan to Mrs. Cooper are total hearsay and excludable, but it is clear that Respondent was never mentioned or otherwise identified during the contract negotiation of Cooper and Karlan.
Cooper submitted contract payments directly to Karlan and never paid anything to Respondent. Cooper found Respondent on the job one day and thinks he said something to her like, "I'm the boss," but her memory of the exact language, if any, is vague. Cooper was admittedly not on the premises most of the time the construction was in progress because she repeatedly visited her other residence in Indianapolis for several months at a time.
Respondent admits he was approached by Steve Karlan to give an estimate for the bathroom job and they thereafter agreed that Respondent should do the work. Respondent admits Karlan later gave him a piece of paper, probably a tax assessment, showing June Cooper's name as the owner, which Respondent used as the basis for filling out the building permit application which he applied for and received covering the portion of the construction work he did at her Florida residence. At the conclusion of his job, Respondent also executed a waiver-of- mechanic-lien affidavit which did not specify any owner and gave it to Karlan.
Gomez never inquired into the relationship between Karlan and Cooper and just assumed Karlan was a relative, probably a son, living at the same address, and initially assumed Karlan had authority to authorize the work because Karlan opened the door to him the first time Respondent came to do the requested estimate. At the time Karlan opened the door to Respondent, some construction was already in progress in the house. Respondent represents that this scenario of obtaining a construction job is so customary in the trade that he never questioned Karlan's statement until Mrs. Cooper ultimately complained about the construction after completion. He recalls meeting her at the house twice during construction, but does not think he told her he was the boss.
In mitigation, he represents that he made good on Mrs. Cooper's complaints.
Respondent admits he later entered a contract with Steve Karlan as a "salesman" after satisfying Mrs. Cooper but that contract had nothing to do with the Cooper job.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding pursuant to Section 120.57(1), Florida Statutes.
By Count I of the Administrative Complaint, Respondent is charged with violating the provisions of Section 489.129(1)(k), Florida Statutes (1981), by abandoning a construction project.
The board may revoke, suspend, or deny the issuance or renewal of the certificate or registration of a contractor or impose an administrative fine not to exceed $1,000, place the contractor on probation, reprimand or censure, a contractor if the contractor is found guilty of any of the following acts:
(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 con- tractor terminates said project without noti- fication to the prospective owner and without just cause.
Between December 1983 and May 1984, Respondent failed to undertake any type of construction activity at the Reyes' residence. Respondent's sole reason for this abandonment was that he had underestimated his cost in contracting the project; this is not just cause for termination and his behavior constitutes nothing short of abandonment. This, in addition to being a violation of the cited statute, is a violation of Section 10-22(b), Metropolitan Dade Building Code and his eventual return to work may mitigate, but does not nullify his abandonment. Further, his preparation of the contract and most change orders mean these must be construed against him.
By Count II of the Administrative Complaint, Petitioner charges that Respondent violated the provisions of Section 489.129(1)(h), Florida Statutes (1981), by diverting funds received for the completion of the Reyes' project. Section 489.129(1)(h), Florida Statutes, provides:
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.
Respondent had received approximately 95 percent of the contract price when he abandoned the Reyes' project in December, 1983. As of April, 1984, only
55 to 60 percent had been completed. By date of hearing he had completed approximately 95 percent of the work, but it was severely flawed. Even though Respondent offered no evidence to substantiate his assertion that the contract monies paid him were all expended in December and he was merely a victim of his own underestimation, still Petitioner fell short of its burden of proof to clearly and convincingly establish a diversion to unauthorized uses of a substantial portion of payments received by the Respondent from the Reyes.
Petitioner charges by Count III of the Administrative Complaint that Respondent violated the provisions of Section 489.129(1)(d), Florida Statutes (1981), by willfully and deliberately violating the provisions of the Metropolitan Dade County Building Code and the South Florida Building Code. Section 489.129(1)(d) provides:
Willful or deliberate disregard and violation of the applicable building codes or laws of the state or of any municipalities or counties thereof.
Petitioner attempted to prove-up this charge by the testimony of Code Enforcement Officer Delaney but fell short of proving any willful and deliberate violation.
Although much of Officer Delaney's testimony constitutes inadmissible, unfounded conclusions of law, and attempts to invade the province of the finder of fact, even he admits that no local charges were filed against Respondent. He admits that the South Florida Building Code is subject to at least two interpretations including the interpretation made by Respondent i.e., that because Respondent was a licensed general contractor the general permit (P-13) he pulled would cover the cabinet work. He also admitted that as a licensed general contractor Respondent was qualified to do the pool piping but he failed only in the ministerial function of paying for and pulling the specialized Dade County Building Permit for such work, but his actual report indicates an electrical permit for the pool was pulled by Respondent. He maintained Respondent was in violation of the South Florida Building Code if he exchanged old for new electrical appliances which use plumbing, such as the dishwasher. However, without any clear evidence that the cabinet work and plumbing were done by employees of Respondent and were not done by independent subcontractors who may have independently pulled permits, all of Mr. Delaney's analysis is so much conjecture.
Moreover, although Section 301.1(a) and (d) of the South Florida Building Code are in evidence, (d) incorporates Part XI, which is not in evidence and was not provided for judicial notice or official recognition. Upon the evidence presented, a violation with regard to Section 301.1(d) [sanitary plumbing] is not proven. The listing of the open beam porch on the permit that Respondent pulled appears to comply with Section 301.01(a) and no violation to
(a) is proven. Also no violation with regard to Section 10-22 Metropolitan Dade County Building Code was proven. Accordingly, Count II of the Administrative Complaint has not been proven by clear and convincing evidence.
With regard to events at the Cooper residence/project, Respondent is charged in Counts IV--VII with violating provisions of Section 489.129(1)(e), aiding and abetting an unlicensed person in the evasion of Chapter 489, Florida Statutes; Section 489.129(1)(f), knowingly combining and conspiring with an unlicensed person to evade the provisions of Chapter 489, Florida Statutes; Section 489.129(1)(g), acting as a contractor in a name other than as licensed; Section 489.129(j), failing in any respect to comply with Chapter 489 Florida Statues; Section 489.119(2) and (3), acting under a name other than the name set forth on his license and failing to qualify the entity through which he engaged in contracting. There was simply insufficient direct credible evidence to establish any of these charges against Respondent.
There is considerable evidence of work in mitigation of the offenses established.
