Judges: JAMES E. BRADWELL
Agency: Department of Business and Professional Regulation
Latest Update: Jan. 19, 1989
Summary: Whether Respondent's license should be disciplined for reasons stated in the Administrative Complaint filed herein dated November 30, 1987.Whether respondent failed to obtain required permits and engaged in other unlawful acts as a contractor which warrants discipline.
88-3343.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL )
REGULATION, CONSTRUCTION )
INDUSTRY LICENSING BOARD, )
)
Petitioner, )
)
vs. ) CASE NO. 88-3343
)
GEORGE WALTON, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this matter on October 25, 1988, in Fort Lauderdale, Florida. The parties were allowed through November 22, 1988, to submit Proposed Recommended Orders.
Proposed Findings which were not incorporated herein are the subject of specific rulings in an Appendix attached hereto.
APPEARANCES
For Petitioner: Elizabeth Rene' Alsobrook, Esquire
Construction Industry Licensing Board Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399
For Respondent: James Lee Kershaw, Esquire
2641 North Andrews Avenue Wilton Manors, Florida 33311
ISSUE PRESENTED
Whether Respondent's license should be disciplined for reasons stated in the Administrative Complaint filed herein dated November 30, 1987.
FINDINGS OF FACT
Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings:
Petitioner, Department of Professional Regulation, Construction Industry Licensing Board, is the State agency charged with regulating the construction industry and is responsible for prosecuting administrative complaints issued pursuant to Chapters 489 and 455, Florida Statutes and rules and regulations promulgated pursuant thereto.
At times material hereto, Respondent, George Walton, was licensed as a Certified General Contractor in Florida and holds License No. CG C031400. (Petitioner's exhibit E.)
At all times material hereto, Respondent was the sole qualifying agent for AMI Improvements Incorporated (AMI).
On March 10, 1987, David Lee entered into a contract with AMI to remodel his bathrooms. The scope of the job entailed tearing out interior walls to accommodate a new bathroom, remove a closet to fit a newly installed tub, installation of a marble tub with pad and step, installation of a vanity and tile floors, mirroring the walls, installation of lights over the sink and tub, installation of new faucets and tape and finish the walls. (Petitioner's exhibit 1.) The total contract price was $6,332.50.
Pursuant to the contract, AMI was required to obtain the necessary building permits for the job.
On April 7, 1987, AMI began remodeling the Lee's bathroom and was paid all but $502.27 of the total contract price by that time.
Respondent did not obtain a permit prior to commencement of the work on April 7, 1987.
A building permit was required to remodel a bathroom in Broward County in 1987. (Testimony of Susan Marchitello, Custodian of Records for the Broward County Building and Zoning Enforcement Division.)
On April 23, 1987, a notice of violation from Broward County was issued to David Lee requiring that he cease and desist from continuing the remodeling work in his home, which work was being performed by AMI.
AMI suspended work on the Lee residence on approximately April 23, 1987, and it remained dormant until he applied for a permit on May 7, 1987. While the work was stopped by the cease and desist order, Lee had no bathroom in his home.
Upon issuance of the cease and desist order, Lee contacted Richard Bird of AMI, who advised that AMI customarily does not pull permits for inside work as they are normally in and out before anything is seen by building officials.
AMI refused to pull the building permits and Lee therefore applied for, and obtained the building permits.
AMI's plans and intentions were to complete the construction work at the Lee's home without a building permit.
An Owner-Builder permit was issued to Mr. Lee on May 7, 1987. (Respondent's Exhibit 1.)
Mr. Lee was without a toilet for 21 days and without a tub and shower for approximately six weeks.
AMI promised Mr. Lee that the work would be completed within two weeks after the permits were obtained. Despite this promise, the bathroom did not
pass final inspection until July 21, 1987, approximately two months after the permits were obtained.
Mr. Lee communicated his concern to AMI in the form of a "punch list" of items to repair. AMI refused to repair those items and Lee, in turn, contacted Daniel Durbano Construction during August 1987 who provided Lee with a proposal to complete those items either that were not completed or to complete/repair those items that were not of workmanlike quality. Durbano presented Lee with his proposal on August 4, 1987, with an estimated cost (to repair the Lee's home) of $3,858.75. (Petitioner's exhibit 3.) After Durbano's proposal was presented to Lee, AMI returned to install the mirror around the tub and the shower stall enclosure.
During the time when Lee was negotiating with Durbano about completing the project undertaken by AMI, Respondent was never at the subject site. When a final inspection was called for by Lee, the work completed by AMI did not pass the final inspection.
Among the items listed in Lee's "punch list" were (1) the shower stall failed to drain properly as the pitch was almost flat and water settled around the bottom of the shower instead of draining, (2) the marble tub step is crooked and is larger on one end that on the other, (3) the knee wall is crooked and is approximately one inch thicker at the top than at the bottom, (4) the bathroom window does not open properly, (5) the door jam going into the master bedroom is improperly installed, and (6) the plastic caps that affix the toilet to the floor were lost.
Lee prepared a second "punch list" and presented it to AMI during August 1987. Among the items listed as deficient were that the floor was uneven and the carpet or tile flooring could not be installed without correcting the floor.
Daniel Durbano, a general contractor who is licensed in Florida, performed an inspection of the subject work performed by AMI during September 1987. Durbano found that the tile was not properly laid and the floors were "bumpy and wavy." He also found that the drywall was "wavy" and needed preparation to install wallpaper, there was no casing on the door entrance from the bathroom to the master bedroom, and that the cost would be approximately 20% less than the original estimate of $3,800 that he provided Lee. (Petitioner's exhibit 5.)
Respondent is 64 years old and has been a certified contractor since 1954. He is licensed in the states of Ohio, West Virginia, and Florida. Respondent has apprenticed as a carpenter, brick layer, electrician and a plumber. He has been licensed in Florida since 1969. Respondent has twice been a qualifier, once for AMI and with a present engagement, Fixel's Fix It, Inc.
As a qualifier for AMI, Respondent pulled permits and supervised construction during the periods of January 1987 through August 1987. Respondent no longer is qualifier for, or is otherwise affiliated with, AMI.
Respondent was not aware of the work being performed at the Lee residence, although he was engaged, as a qualifier, to supervise all jobs where AMI was required to obtain a permit.
Respondent first learned of problems with the Lee job when he was contacted by Petitioner during December of 1987. Respondent admits that although some of the work done in the Lee's home was probably up to industry's
standards, there were areas of workmanship that should have been performed better. Respondent also admits that he relied on Richard Bird, a builder/developer affiliated as a coordinator with AMI and AMI's principal/owner, Tony Enzo, to inform him of projects that needed his supervision or assistance in obtaining permits.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this action pursuant to Subsection 120.57(1), Florida Statutes (1987).
The authority of the Petitioner is derived from Chapter 489, Florida Statutes.
Section 489.129(1), Florida Statutes, authorizes the Board to revoke, suspend, or deny the issuance or renewal of the certificate of registration of a contractor if the contractor is found guilty of:
(d) wilful or deliberate disregard or violation of the applicable building codes or the laws of the State or any municipalities or counties.
* * *
(j) Failure in any material respect to comply with the provisions of this act.
* * *
(m) Upon proof that the licensee is guilty of fraud, or deceit, or gross negligence, incompetency, or misconduct in the practice of contracting.
Respondent, by failing to obtain a permit for construction at David Lee's residence, prior to commencement of construction for the entity that he was qualifier, AMI, engaged in willful or deliberate disregard of the applicable building codes or laws in Broward County. Subsection 489.129(1)(d) and (j), Florida Statutes. Additionally, by failing to call for a final inspection, Respondent also engaged in conduct within the purview of the above-referenced sections.
Respondent, as the sole qualifying agent for AMI, is responsible for supervising all of AMI's contracting activities. Subsections 489.119 and 489.105(4), Florida Statutes. By failing to supervise any aspect of the Lee's job, Respondent failed in a material respect to comply with the provisions of Chapter 489, Florida Statutes, in violation of Subsection 489.129(1)(j), Florida Statutes.
Respondent, as the sole qualifier for AMI, is specifically required to supervise the contracting activities of AMI. By his failure to supervise the employees of AMI or the construction activities of that entity, Respondent failed to perform his statutory duties and thereby engaged in incompetence or misconduct in the practice of contracting in violation of Subsection 489.129(1)(m), Florida Statutes.
RECOMMENDATION
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that 1/
Petitioner enter a final order imposing an Administrative Fine in the amount of $1,000, payable to Petitioner within thirty days of entry of its final order, for the above-referenced violations of Chapter 489, Florida Statutes.
RECOMMENDED this 20th day of January, 1989, in Tallahassee, Leon County, Florida.
JAMES E. BRADWELL
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 20th day of January, 1989.
ENDNOTE
1/ This recommendation comports with the requirements of Section 21E-17.001, Florida Administrative Code.
COPIES FURNISHED:
Elizabeth R. Alsobrook, Esquire Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
James L. Kershaw, Esquire 2641 North Andrews Avenue Wilton Manors, Florida 33311
William O'Neil, Esquire General Counsel
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2
Jacksonville, Florida 32201
Docket for Case No: 88-003343
Orders for Case No: 88-003343
| Issue Date |
Document |
Summary |
|
Mar. 03, 1989 |
Agency Final Order
|
|
|
Jan. 19, 1989 |
Recommended Order
|
Whether respondent failed to obtain required permits and engaged in other unlawful acts as a contractor which warrants discipline.
|
