STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION ) INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 87-5325

)

GEORGE PLOMARITIS, )

)

Respondent. )

)

RECOMMENDED ORDER

David L. Swanson, Esquire, of Tallahassee, for Petitioner. Banks Vest, of Tampa, qualified representative for Respondent.

In this case, the Petitioner, Department of Professional Regulation (DPR), charged the Respondent, George Plomaritis, with construction licensing violations arising out of: (1) willfully violating local ordinances by failure to obtain required building permits and inspections, in violation of Section 489.129(1)(d), Florida Statutes (1987); (2) falsely representing to an owner that all materials and labor on the job had been paid, in violation of both Section 489.129(1)(m) and (l), Florida Statutes (1987); and (3) failing to include his license number in Yellow Pages advertising, in violation of Sections 489.129(1)(j) and 489.119(5)(b), Florida Statutes (1987). The Respondent answered 1/ that: (1) the violation of local law was not willful but resulted from simple oversight; (2) the representation concerning payment for materials and labor resulted from a misunderstanding or disagreement between the Respondent and the owner; and (3) he admits the violation but was ignorant of the law requiring the inclusion of his license number in advertising. Final hearing on the remaining issues was held in Tampa on February 17, 1988.

FINDINGS OF FACT 2/

1. The Respondent, George Plomaritis, is and, at all pertinent times, has been a licensed general contractor, holding license number CG C006397. In 1986, he was doing business in Hillsborough County as Decor Improvements. His business is mostly remodeling.

   
   

   1. The Anderson Job.

      
      

2. On February 4, 1986, the Respondent entered into a contract with Robert and Donna Anderson to remodel a bathroom in their home at 1304 Anglers Lane, Lutz, Hillsborough County, Florida.

   
   

3. The contract originally was for $9686, $3200 down, $3200 after rough- in, and balance payable on completion. Later, $210 was added to the contract for additional tile work on the vanity top and for china lavatories. On March

   31, 1986, the contract was further modified: $1000 was added for a tile shower with glass enclosure, linen closet with wood door and bone colored toilet, provided that the Andersons were to pay glass cost over $150; and the draw schedule was altered to make the second payment $3500.

   
   

4. The Respondent began work promptly, and the work proceeded in a timely fashion. However, the Respondent knowingly failed to apply for or obtain a building permit, post it, or have the work inspected as required by the Hillsborough County Code Sections 104.1, 104.5(c) and 108.2. When this violation was brought to his attention in February, 1987, he then went to the Hillsborough County building inspector's office and was allowed to apply for an after-the-fact building-permit on payment of the standard fee. He was not required to have the various required inspections done after-the-fact.

   
   

5. Capital Glass Specialties, Inc., furnished and installed two mirrors and a glass shower enclosure for the Respondent as part of the work he performed under the Anderson contract. On June 12, 1986, Capital Glass invoiced the Respondent $100 for one mirror, $120 for the other mirror (over the tub), and

   $450 for the glass shower enclosure, plus tax. Not long after, the Respondent received and disputed the invoice, saying that Anderson was responsible for it. The Respondent claimed that, during the work, Mrs. Anderson ordered the $120 mirror as an extra above the written contract amount and that, under the March 31, 1986, amendment to the contract, the Andersons were responsible for $300 of the $450 shower enclosure cost. It was not clear from the evidence whether the Respondent disputed the invoice before or after June 21, 1986.

   
   

6. On June 21, 1986, after completing the work, the Respondent met with Mr. Anderson to settle their accounts. Anderson already had paid $7400 of the

   $10,896 total, and the Respondent did not install the additional tile on the vanity top (although he did install the china lavatories, the other part of the

   $210 added charge.) The Respondent gave Anderson a balance due of $3286, and Anderson paid it. Anderson also obtained from the Respondent a waiver of lien and a sworn statement that all suppliers of materials and labor had been paid. There was no discussion of the Capital Glass bill.

   
   

7. On July 3, 1986, Mr. Anderson received a copy of the Capital Glass invoice, which Capital Glass had forwarded in response to the Respondent's dispute of it, along with a request for payment. Armed with his final payment, waiver of liens and sworn statement that all suppliers of materials and labor had been paid, Anderson refused to pay.

   
   

8. On July 17, 1986, Capital Glass filed a Claim Of Lien on the Anderson home for $705.18 (including tax). Meanwhile, Capital Glass reported back to the Respondent, who explained his version of the contract and the parties' mutual obligations. Finally, Capital Glass relayed the Respondent's position to the Andersons. At this point, Mr. Anderson conceded that he was responsible for

   $300 of the bill (the overage on the glass shower enclosure) but continued to dispute the $120 for the mirror over the tub. The Andersons argued that the mirror over the tub was provided in the original contract. The Respondent claimed that the second time "mirror" was noted in the original contract was a mistake and that the mirror over the tub was another item added by Mrs. Anderson over the contract price.

   
   

9. On September 16, 1986, the Respondent paid the $100 he conceded he owed on the Capital Glass bill. In October, 1986, the Andersons paid the balance when they refinanced their home.

   1. The Yellow Pages Advertisement.

      
      

10. In 1986, the Respondent placed an advertisement in the Yellow Pages of the Tampa telephone directory that omitted his contractor license number. The Respondent was unaware at the time that there was a requirement that he include it.

    
    

    1. Aggravating and Mitigating Circumstances.

    
    

11. In 1982, the Respondent was fined $250 for refusing to perform work he had undertaken and for unreasonably delaying the return of the owner's $500 deposit. The Respondent claims he had a defense (namely, that an alleged agent's undertaking on his behalf was not binding) which he waived to take advantage of the opportunity to dispose of the matter by payment of the fine.

    
    

12. The Respondent has been in the construction business all of his working life and has been licensed in Florida since 1958. The 1982 discipline (paragraph 11., above) and the pending matter are the only disciplinary proceedings to which the Respondent has been subjected.

    
    

    CONCLUSIONS OF LAW

    
    

13. Section 489.121(1), Florida Statutes (1987), provides in pertinent part:

    
    

    (1) The board may revoke, suspend, or deny the issuance or renewal of the

    certificate or registration of a contractor and impose an administrative fine not to exceed $5,000, place a contractor on probation, or reprimand or censure a contractor if the contractor, or if the business entity or any general partner, officer, director, trustee, or member of a business entity for which the contractor is a qualifying agent, is found guilty of any of the following acts:

    * * *

    (d) Willful or deliberate disregard and violation of the applicable building codes or laws of the state or of any municipalities or counties thereof.

    * * *

    (j) Failure in any material respect to comply with the provisions of this act.

    * * *

    1. Signing a statement with respect to a project or contract falsely indicating that the work is bonded; falsely indicating that payment has been made for all subcontracted work, labor, and

       materials which results in a financial loss to the owner, purchaser, or contractor; or falsely indicating that workers' compensation and public liability insurance are provided.

    2. Upon proof that the licensee is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.

    
    

14. The evidence proved that the Respondent violated Section 489.129(1)(d) by willful or deliberate disregard of the Hillsborough County Code requirements for obtaining and posting a building permit and calling for required inspections. As qualifying agent for Decor Improvements, it was the Respondent's responsibility to assure compliance.

    
    

15. The evidence also proved that the Respondent signed a statement falsely indicating that payment had been made for all subcontracted work, labor, and materials on the Anderson job, a violation of Section 489.129(1)(l) and (m). Although there was a valid reason for the Respondent to believe that the statement should not have been construed to cover the $300 overage on the shower enclosure glass, there was no reasonable basis for the Respondent to believe that the balance of the $670 bill from Capital Glass Specialities was not covered by the signed statement.

    
    

16. Section 489.119(5)(b), Florida Statutes (1987), provides that phone directory advertisements for a licensee must include the contractor's certificate number. As a result of the Respondent's ignorance of the legal requirement, the Respondent's Yellow Pages advertisement violated this statute.

    
    

17. Rule 21E-17.001, Florida Administrative Code, provides in pertinent part:

    
    

    Normal Penalty Ranges. The following guidelines shall be used in disciplinary cases, absent aggravating or mitigating circumstances and subject to the other provisions of this Chapter.

    * * *

    1. 489.129(1)(d): Permit violations.

       1. Late permits. Contractor pulls permit after starting job but prior to completion of same and does not miss any inspections. First violation, letter of guidance; repeat violation, $500 fine.

       2. Job finished without a permit having been pulled, or no permit until caught after job, or late permit during the job resulting in missed inspection or inspections. First violation, $250 to $750 fine; repeat violation, $1000 to $2000 fine.

    2. 489.119: License number not appearing in advertisement. First violation, letter of guidance; repeat violation, $150 to $350 fine.

    * * *

    1. 489.129(1)(d): Failure to call for inspections. First violation, letter of guidance; repeat violation, $250 to $750 fine.

    2. 489.129(1)(l): False payment statements.

       1. False payment statement, liens were filed or customer otherwise injured. First violation, $250 to $750 fine; repeat violation, 1 year suspension and $1000 to

    $3000 fine.

    * * *

    (18) 455.227(1)(a): Fraud, deceit, misleading, or untrue representations. First violation, $500 to $1500 fine; repeat violation, revocation.

    1. 489.129(1)(m): Gross negligence, incompetence, and/or misconduct, fraud or deceit.

       1. Causing no monetary or other harm to licensee's customer, and no physical harm to any person. First violation, $250 to

          $750 fine; repeat violation, $1000 to $1500 fine and 3 to 9 month suspension.

       2. Causing monetary or other harm to licensee's customer, or physical harm to any person. First violation, $500 to $1500 fine; repeat violation, $1000 to $5000 fine and suspension or revocation.

    2. 489.129(1)(d): Violation of state or local laws. First violation, $250 to

    $750 fine. Repeat violation, $1000 to

    $3000 fine.

    
    

18. Rule 21E-17.003, Florida Administrative Code, provides:

    
    

    1. As used in this rule, a repeat violation is any violation on which disciplinary action is being taken where the same licensee had previously had disciplinary action taken against him or received a letter of guidance in a prior case; and said definition is to apply (i) regardless of the chronological relationship of the acts underlying the various disciplinary actions, and (ii) regardless of whether the violations in the present and prior disciplinary actions are of the same or different subsections of the disciplinary statutes.

    2. The penalty given in the above list for repeat violations is intended to apply only to situations where the repeat violation is of a difference subsection of Chapter 489 than the first violation. Where, on the other hand, the repeat violation is the very same type of violation as the first violation, the penalty set out above will generally be increased over what is otherwise shown for repeat violations in the above list.

19. Rule 21E-17.005, Florida Administrative Code, provides:

    
    

    Penalties Cumulative and Consecutive.

    Where several of the above violations shall occur in one or several cases being considered together, the penalties shall normally be cumulative and consecutive.

20. Rule 21E-17.007, Florida Administrative Code, provides: 21E-17.007 Probation. Probation may also

be assessed in any case where, in the board's opinion, it is advisable for the public welfare, in order to assure that the licensee operates properly and within the law in the future, to require the licensee to report to the Board periodically, or to otherwise serve a probationary period.

RECOMMENDATION

Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Construction Industry Licensing Board enter a final order holding the Respondent guilty as charged, impose a fine in the amount of $2000 and suspend the Respondent's license for one year.

DONE AND ORDERED this 17th day of March, 1988, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 17th day of March, 1988.

ENDNOTES

1/ The Respondent's written answer never was filed, for reasons unknown, and did not contain all of the admissions set out here. However, at final hearing the Respondent and his qualified representative elaborated on the Respondent's position in response to the Administrative Complaint, as set out here.

2/ Explicit rulings on the Petitioner's proposed findings of fact may be found in the attached Appendix To Recommended Order, Case No. 87-5325. (The Respondent did not file any.)

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5325

To comply with Section 120.59(2), Florida Statutes (1987), the following rulings are made on the Petitioner's proposed findings of fact:

1.-10. Accepted and incorporated.

11. Accepted but subordinate.

12.-14. Accepted and incorporated to the extent necessary.

COPIES FURNISHED:

David L. Swanson, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Banks Vest

1220 East Paris Street Tampa, Florida 33604

George Plomaritis

503 South Willow Tampa, Florida 33601

Fred Seely Executive Director

Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32201

William O'Neil General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-005325

Orders for Case No: 87-005325