STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL | ) DOAH Case Nos.: | 89-3902, | 90-1900 |
REGULATION, CONSTRUCTION | ) | 90-1901, | 90-1902 |
INDUSTRY LICENSING BOARD, | ) | 91-7394, | 91-7951 |
) | 92-0370 | ||
Petitioner, | ) DPR Case Nos.: | 89-6785, | 89-6784 |
) | 89-7452, | 89-3412 | |
) | 89-8734, | 89-2286 | |
vs. | ) | 91-7092, | 91-5440 |
) | 91-7097, | 91-0257 | |
MARVIN M. KAY, | ) | 90-5262, | 108378, |
) | 101566, | 112660, | |
Respondent. | ) | 110300 |
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in these consolidated cases on March 4 and 5, 1992, at Fort Lauderdale, Broward County, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances for the parties at the hearing were as follows: 1/
APPEARANCES
For Petitioner: Jan Darlow Langer, Esquire
Adorno & Zeder, P.A.
2601 South Bayshore Drive Suite 1600
Miami, Florida 33133.
For Respondent: Mr. Marvin Kay, pro se
5433 N.E. Third Terrace
Fort Lauderdale, Florida 33334.
STATEMENT OF THE ISSUES
DOAH Case No. 89-3902, the Barona and Carrow Complaints
Whether Respondent violated Florida Statutes Section 489.129(1)(d), by willfully or deliberately disregarding and violating the applicable building codes or laws of the state or of any municipalities or counties thereof.
Whether Respondent violated Florida Statutes Section 489.129(1)(m), by being guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.
DOAH Case No. 90-1900, the Grantz, Victor, Beckett, Maffetonne, and Wolfe Complaints
Whether Respondent violated Sections 489.129(1)(m), (j), and 489.105(4), and 489.119, Florida Statutes, by being guilty of gross negligence, incompetence, and/or misconduct.
Whether Respondent violated Sections 489.129(1)(h), (m), (j), and 489.119, and 489.105(4), Florida Statutes, by being guilty of financial mismanagement or misconduct.
Whether Respondent violated Section 489.129(1)(d), Florida Statutes, by wilful or deliberate violation or disregard of applicable local building codes and laws.
Whether Respondent violated Sections 489.129(1)(m), (j), 489.119, and 489.105(4), Florida Statutes, by failing to properly supervise contracting activities he was responsible for as qualifying agent, which supervisory deficiency also reflected gross negligence, incompetence, or misconduct
Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor.
Whether Respondent violated Sections 489.129(1)(m), and (j), Florida Statutes, by giving a guarantee on a job to a consumer and thereafter failing to reasonably honor said guarantee in violation of Florida Statutes.
DOAH Case No. 90-1901, the Klokow Complaint
Whether Respondent violated Section 489.129(1)(d), Florida Statutes, by wilfully or deliberately disregarding and violating the applicable building codes or laws of the state or any municipalities or counties thereof.
Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor.
Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being guilty of fraud or of gross negligence, incompetency, or misconduct in the practice of contracting.
DOAH Case No. 90-1902, the Meister Complaint
Whether the Respondent violated Section 489.129(1)(n), Florida Statutes, by failure to obtain a permit.
DOAH Case No. 91-7493, the Antonelli Complaint
Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer.
Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor.
Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.
DOAH Case No. 91-7951, the Insurance, Palomba, Romanello and Marin Complaints
The Insurance Complaint
Whether Respondent violated Section 489.129(1)(c), Florida Statutes, by violating Section 455.227(1)(a), Florida Statutes, by making misleading, deceptive, untrue, or fraudulent representations in the practice of his profession.
Whether Respondent violated Section 489.129(1)(d), Florida Statutes, by wilfully or deliberately disregarding and violating the applicable building codes or laws of the state or any municipalities or counties thereof.
Whether Respondent violated Section 489.129(1)(c), Florida Statutes, by violating Section 455.227(1)(b), Florida Statutes, by intentionally violating a Board rule.
Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.
The Palomba Complaint
Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer.
Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.
The Romanello Complaint
Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer.
Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor.
Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.
The Marin Complaint
Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer.
Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor.
Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.
DOAH Case No. 92-0370, the Pappadoulis Complaint
Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing financial misconduct.
Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by committing gross negligence, incompetence and misconduct in the practice of contracting.
PRELIMINARY STATEMENT
On September 5, 1989, Petitioner filed an Administrative Complaint in DOAH Case No. 89-3902 against the Respondent, DPR Case No. 108378, the Barona Complaint. On December 5, 1989, Petitioner filed a Motion to Amend that Administrative Complaint in order to add allegations contained within DPR Case No. 101566, the Carrow Complaint. Thereafter, on December 5, 1989, an Amended Administrative Complaint was filed in DOAH Case No. 89-3902.
On December 28, 1989, Petitioner filed an Administrative Complaint in DOAH Case No. 90-1901, based upon DPR Case No. 112660, the Klokow Complaint. On February 15, 1990, Petitioner filed an Administrative Complaint in DOAH Case No. 90-1900, consisting of the complaints contained in DPR Case Nos. 89-6785, 89- 6784, 89- 7452, 89-3412, and 89-8734. These are also referred to as the Grantz, Victor, Beckett, Maffetonne, and Wolfe Complaints.
On March 6, 1990, Petitioner filed an Amended Administrative Complaint in DOAH Case No. 90-1902, based upon DPR Case No. 89-2286, the Meister Complaint. On April 23, 1990, DOAH Case Nos. 89-3902, 90-1900, 90-1901, and 90-1902 were
consolidated.
On May 23, 1990, an Amended Administrative Complaint was filed in DOAH Case No. 91-7493, based upon DPR Case No. 110300, the Antonelli Complaint. On January 10, 1991, Petitioner filed an Administrative Complaint in DOAH Case No. 92-0370, based upon DPR Case No. 90-5262, the Pappadoulis Complaint.
On August 14, 1991, Petitioner filed an Administrative Complaint in DOAH Case No. 91-7951. This Administrative Complaint contains DPR Case Nos. 91-7092, 91-5440, 91-7097, and 91-0257. These cases are also referred to as the Insurance, Palomba, Romanello, and Marin Complaints. On July 26, 1991, an Order of Emergency Suspension of Licensure was entered by the Petitioner in reference to DOAH Case No. 91-7951. Respondent did not appeal the Order of Emergency Suspension of Licensure, nor did he request an emergency hearing on an expedited basis. His license has remained suspended through the present. All of the cases listed above were consolidated for the formal hearing.
At the formal hearing, the Petitioner presented the testimony of the following witnesses: Martin Abbattichio, Michael Palomba, Lawrence Mervis, John Grantz, Rodney Guise, Norma Romanello, Barbara Baum, Oscar Williams, John Stengle, Donna Bennett, John Fixx (expert), Steve Victor, Clay Parker, Vinton Beckett (deposition), Walter Barona (deposition), E.E. Duke Jordan (deposition), Linda Klokow (deposition), and Anthony Antonelli (deposition).
The Respondent, Marvin M. Kay, testified on his own behalf, but did not call any other witnesses.
At the formal hearing a total of 47 exhibits were received on behalf of the Petitioner and a total of 15 exhibits were received on behalf of the Respondent. (The exhibits are listed at Appendix Two to this Recommended Order.)
At the conclusion of the hearing the parties were allowed 30 days from the filing of the transcript within which to file their respective proposed recommended orders. The transcript was filed with the Hearing Officer on April 8, 1992. All parties were advised by written memorandum that the deadline for filing proposed recommended orders would be May 8, 1992. Thereafter, the Petitioner filed a motion seeking an extension of time within which to file proposed recommended orders. By order issued on May 4, 1992, the deadline for filing proposed recommended orders was extended to June 8, 1992. On June 8, 1992, the Petitioner filed a proposed recommended order containing proposed findings of fact and conclusions of law. 2/ Specific rulings on all proposed findings of fact submitted by the Petitioner are contained in Appendix One to this Recommended Order. As of the date of this Recommended Order, the Respondent has not filed any proposed recommended order or other form of post- hearing document.
FINDINGS OF FACT
Pre-Hearing Admissions 3/ Admissions Applicable to All Cases
Respondent is currently licensed as a contractor by the Florida Construction Industry Licensing Board.
Respondent's current license number from the Florida Construction Industry Licensing Board is CG C040139.
Respondent is licensed by the Florida Construction Industry Licensing Board as a certified general contractor.
Respondent holds Florida Certified Roofing License No. CC-042792.
Respondent is the qualifying agent for Tropical Home Industries, Inc.
As qualifying agent for Tropical Home Industries, Inc., Respondent is responsible for all work performed.
DOAH Case No. 89-3902
Respondent was licensed as set forth in items 1, 2, 3 and 4 above at the time of the job alleged in the Administrative Complaint.
Exhibit "A", attached to the Request for Admissions 4/ is a true and correct copy of the contract between Sarah S. Carrow and the firm Respondent qualified at the time the contract was executed.
As a qualifier for Tropical Home Industries, Inc., Respondent was responsible in his capacity as a certified general and roofing contractor for all work performed by Tropical Home Industries, Inc., pursuant to its contract with Sarah S. Carrow.
Pursuant to the contract between Sarah S. Carrow and Tropical Home Industries, Inc., all work under said contract was to be completed in three (3) to six (6) weeks.
Respondent, acting through Tropical Home Industries, Inc., failed to complete all work under the contract with Sarah S. Carrow within six (6) weeks after work was commenced.
Respondent, acting through Tropical Home Industries, Inc., failed to obtain a final inspection of the work under the contract with Sarah S. Carrow prior to the building permit's expiration date.
Broward County, Florida, has adopted the South Florida Building Code as its local ordinance governing residential construction.
Respondent's failure to obtain a timely final inspection of the work performed pursuant to the contract between Tropical Home Industries, Inc., and Sarah S. Carrow is a violation of Section 305.2 of the South Florida Building Code.
Section 1405.1 of the South Florida Building Code requires installation of either a window or vent fan in each bathroom.
Section 3407.9(a) of the South Florida Building Code requires that flashing be installed on plumbing vent pipes which are installed through the roof.
Any problems or deficiencies in the work performed by Tropical Home Industries, Inc., pursuant to its contract with Sarah S. Carrow were caused by employees and/or subcontractors of Tropical Home Industries, Inc.
DOAH Case Nos. 89-3902, 90-1900, 90-1901, and 90-1902 DOAH Case No. 89-3902
The Baronas' house is located at 1251 Westchester Drive East, West Palm Beach, Florida 33417.
Respondent contracted with the Baronas as the qualifying agent of Tropical Home Industries, Inc.
The Baronas' house is located within Palm Beach County.
Palm Beach County is the appropriate Building Department under which all inspections were to have been performed.
DOAH Case No. 90-1901
On or about December 5, 1988, Respondent contracted with Mel Klokow, acting for Linda Klokow ("Klokow"), for the renovation of a screen porch with a roof to her home.
Respondent contracted with Klokow as a qualifying agent of Tropical Home Industries, Inc.
Permit No. 88-8085 was issued by the local building department.
The work at the Klokow residence did not pass final inspection.
DOAH Case No. 90-1902
In December of 1987, Respondent contracted to close in a screen porch for Janet Meister ("Meister").
Respondent contracted with Meister as the qualifying agent for Tropical Home Industries, Inc.
Respondent failed to obtain a permit for the work performed at the Meister's.
Respondent's failure to obtain a permit for the Meister job violated local building codes and Section 489.129(1)(n), Florida Statutes.
DOAH Case No. 90-1900
The Grantz home is located at 10878 Granite Street, Boca Raton, Florida.
The approximate amount of the contract price with the Grantz was
$1,890.00.
Respondent contracted for the Grantz job as a qualifying agent of Tropical Home Industries, Inc.
Respondent began work at the Grantz residence on or about May 10, 1989.
The work at the Grantz residence failed final inspection on July 12, 1989.
Respondent wilfully violated applicable local building codes and laws on the Grantz project.
Respondent wilfully disregarded local building codes and laws in connection with the Grantz project.
Respondent deliberately violated applicable local building codes and laws in connection with the Grantz project.
Respondent deliberately disregarded applicable local building codes and laws in connection with the Grantz project.
On or about April 12, 1989, and April 17, 1989, Respondent contracted with Stephen Victor ("Victor") to install sliding glass doors at his home.
The Victor residence is located at 9768 Majorca Place, Boca Raton, Florida.
The contract price with Victor was $3,293.00.
Respondent contracted with Victor as a qualifying agent of Tropical Home Industries, Inc.
Victor paid a total deposit of $670.00 to Respondent.
Respondent never began work at the Victor residence.
On or about April 17, 1989, Respondent contracted with Vinton Beckett ("Beckett") to install windows at her home.
The Beckett residence is located at 2501 N.W. 41st Avenue, Unit 302, Lauderhill, Florida.
The contract price with Beckett was $1,684.00.
Respondent contracted with Beckett as a qualifying agent of Tropical Home Industries, Inc.
On or about October 29, 1988, Respondent contracted with Thomas and Sherry Maffetonne (the "Maffetonnes") to construct a patio enclosure at their home.
The Maffetonne's residence is located at 22980 Old Inlet Bridge Drive, Boca Raton, Florida.
The contract price for the work to be performed at the Maffetonnes was
$4,350.00.
Respondent contracted with the Maffetonnes as a qualifying agent for Tropical Home Industries, Inc.
A five-year warranty on materials was given by Respondent for the work to be performed at the Maffetonne's.
A one-year warranty on labor was given by Respondent for the work performed at the Maffetonne's.
On or about June 6, 1989, Respondent contracted with Mr. and Mrs. Morton Wolfe (the "Wolfes") to install windows at their home.
The Wolfe's residence is located at 7267 Huntington Lane, #204, Delray Beach, Florida.
Respondent contracted with the Wolfes as the qualifying agent of Tropical Home Industries, Inc.
Respondent failed to obtain a timely permit or call for required inspections at the Wolfe residence.
DOAH Case No. 91-7951
On June 21, 1990, Tropical's general liability insurance coverage (policy number 891006GL327), produced by Steven Adams and Associates, Inc., (hereinafter "Adams and Associates") and afforded by Guardian P & C Insurance Company, expired.
On July 17, 1990, Tropical issued a check to Adams and Associates in the amount of $2,475.00 to obtain general liability and workers' compensation insurance.
Upon receipt of the check, Adams and Associates issued a Certificate of Insurance to the Davie (Florida) Building Department indicating that Tropical had general liability (policy number GL 235810) and workers' compensation insurance in force through July 17, 1991.
After said Certificate of Insurance was issued, Tropical stopped payment on the check issued to Adams and Associates.
Tropical failed to issue an additional check or remit payment of any kind, resulting in both the general liability and workers' compensation insurance being canceled, effective July17, 1990.
In September of 1990, a Certificate of Insurance was submitted to the Davie Building Department indicating that Tropical had general liability insurance in effect from September21, 1990, until September 21, 1991.
Said certificate had been altered in that the issue, effective, and expiration dates had been updated to reflect that the policy coverage was current and in force.
The policy listed on the certificate (number 891006GL327, produced by Adams and Associates with coverage being afforded by Guardian P & C Insurance Company) expired on June21,1990, and was never renewed or kept in force after that date.
The Davie Building Department had no other certificates or records indicating that Tropical had insurance coverage.
Between July 17, 1990, and April 8, 1991, Tropical obtained five (5) building permits from the Davie Building Department.
At no time during the aforementioned period did Tropical have general liability insurance, thereby violating Section 302.1(b) of the South Florida Building Code which requires that building permit applicants be qualified in accordance with PartI of Chapter 489, Florida Statutes.
Licensees are required to maintain public liability insurance at all times as provided by rules promulgated pursuant to Part I of Chapter 489, Florida Statutes.
Construction Industry Licensing Board records indicate that Tropical has general liability insurance coverage through Equity Insurance (hereinafter "Equity") of Hollywood, Florida.
Effective June 8, 1988, Tropical's insurance with Equity was canceled.
On February 20, 1991, Tropical entered into an agreement with Michael and Margaret Palomba (hereinafter "Palombas") to perform enclosure and remodeling work at the Palombas' residence located at 130 North East 5th Court, Ft. Lauderdale, Florida 33334.
The approximate contract price was $11,978.00.
On March 13, 1991, Tropical received a $2,994.50 deposit from the Palombas.
On March 25, 1991, Tropical obtained a permit for the project from the Broward County Building Department.
Subsequent to receiving the permit, Tropical removed an interior closet from the area that was to be remodeled.
Subsequent to receiving the permit, Tropical removed interior plaster from the area that was to be remodeled.
Subsequent to receiving the permit, Tropical removed exterior doors from the area that was to be remodeled.
Tropical then stopped work stating that rotten wood had been discovered, and requested an additional $2,800.00 to continue with and complete the project.
Tropical refused to perform any additional work without the Palombas agreeing to the added cost.
Tropical failed to continue with the project pursuant to the original agreement.
Tropical refused to continue with the project pursuant to the original agreement.
Tropical failed to return any monies to the Palombas.
In May 1991, the Palombas hired a second contractor, Dan Sturgeon, to complete the project for $13,830.00.
On or about July 11, 1990, Tropical entered into an agreement with Don Romanello (hereinafter "Romanello") to construct a screen room on an existing slab at Romanello's residence located in Boca Raton, Florida.
The contract price was $9,500.00.
Tropical received $4,800.00 in payments from Romanello, but failed to obtain a permit or perform any work pursuant to the agreement.
Tropical has failed to return any portion of Romanello's payments.
Tropical refused to communicate with Romanello.
Based on the preceding, Tropical committed misconduct in the practice of contracting.
On or about June 23, 1990, Tropical entered into an agreement with Marcelina Marin (hereinafter "Marin") to construct a screen room at Marin's residence located in Broward County, Florida, for $4,021.00.
Tropical received a $2,000.00 deposit from Marin at the time the agreement was entered into.
Tropical failed to perform any work under the terms of the agreement.
Tropical has failed to return Marin's deposit.
Tropical has refused to return Marin's deposit.
Based on the preceding, Tropical committed misconduct in the practice of contracting.
DOAH Case No. 91-7493
On July 2, 1988, Respondent contracted with Anthony Antonelli ("Antonelli") to construct an aluminum roof over the patio and gutters of his residence at 9303 Laurel Green Drive, Boynton Beach, Florida.
The price of the contract was $2,016.00.
Antonelli paid a deposit of $500.00 to Tropical Home Industries.
Respondent informed Antonelli that he would not be able to perform the work at the contracted price.
Respondent never performed any work at the Antonelli's home.
Respondent canceled the contract with Antonelli.
Respondent failed to return the deposit paid by Antonelli to Tropical Home Industries.
Testimony at Final Hearing Facts Applicable to All Cases
Respondent is, and has been at all times hereto, a certified general and roofing contractor in the State of Florida, having been issued license number CG C040139 and CC 2042792.
For all contracts and jobs referenced in all of the administrative complaints in these consolidated cases, Respondent acted through the contracting business with which he was associated and for which he was responsible in his capacity as a licensed contractor.
DOAH Case No. 89-3902, The Barona and Carrow Complaints
Respondent contracted with Rhonda Barona to build an addition to her home at 1251 Westchester Dr. East., West Palm Beach, Florida, for approximately
$5,124.
The work performed at the Barona residence took an unreasonable amount of time to complete.
The permit issued to perform the work at the Barona residence was canceled and Respondent failed to obtain a final inspection.
Respondent contracted with Sarah Carrow to build an addition at her home located at 1421 N. 70th Avenue, Hollywood, Florida, for approximately
$14,460.60.
Respondent allowed the permit to expire and failed to obtain required inspections at the Carrow residence.
Respondent failed to fully comply with applicable local codes by failing to install a window or vent fan in the bathroom.
DOAH Case No. 90-1900,
The Grantz, Victor, Beckett, Maffetonne and Wolfe Complaints
On or about March 31, 1989, Respondent contracted with John and Lori Grantz to install windows at 10878 Granite Street, Boca Raton, Florida, for the amount of $1,890.00.
Work at the Grantz residence began on or about May 10, 1989. At the time work began, no permit had been obtained. A late permit was obtained on June 15, 1989, in violation of local codes.
The work performed by Respondent at the Grantz residence failed final inspection on July 12, 1989, because the structure was not constructed as for the intended use. The windows which were installed were designed as a temporary structure, removable in cases of severe weather and not as a permanent enclosure.
On or about April 12, 1989, and April 17, 1989, Respondent contracted with Stephen Victor ("Victor") to install sliding glass doors and windows at 9768 Majorca Place, Boca Raton, Florida, for the total amount of $3,293.00.
Victor paid Tropical a total deposit of $670.00, but work never began.
On or about April 17, 1989, Respondent contracted with Vinton Beckett ("Beckett") to install windows at 2501 N.W. 41st St., Unit 808, Lauderhill, Florida, in the amount of $1,684.
A five-year warranty on materials and a one-year warranty on labor were provided to Beckett by Tropical.
Respondent failed to obtain a timely permit or call for required inspections in violation of local law.
Respondent failed to correct defects and deficiencies in the work performed at the Beckett residence in a reasonable amount of time.
On or about October 29, 1988, Respondent contracted with Thomas and Sharee Maffetonne to construct a patio enclosure at 22980 Old Inlet Bridge Drive, Boca Raton, Florida, for the amount of $4,350.00.
A five-year warranty on materials and a one-year warranty on labor were given. Respondent failed to correct defects and deficiencies in the work on the Maffetonne residence in a reasonable amount of time.
On or about June 6, 1989, Respondent contracted with Morton Wolfe to install windows at 7267 Huntington Lane, #204, Delray Beach, Florida, for the amount of $1,668.13.
Respondent failed to obtain a timely permit or call for required inspections at the Wolfe residence in violation of local codes.
DOAH Case No. 90-1901
The Klokow Complaint
On or about December 5, 1989, Respondent contracted with Mel Klokow, acting for Linda Klokow, for the construction of a screen porch with a roof to her home at 5292 N.E. 10th Terr., Ft. Lauderdale, Florida, for the sum of
$4,473.00.
Permit number 88-8085 was issued by the local building department.
The work performed at the Klokow residence initially failed to pass the final inspection, and the Respondent failed to return to correct the code violations in a reasonable amount of time.
DOAH Case Number 90-1902 The Meister Complaint
In December of 1987, Respondent contracted to close in a screen porch for Janet Meister.
Respondent failed to obtain a permit for the work performed, which is a violation of local building codes.
DOAH Case Number 91-7493 The Antonelli Complaint
On July 2, 1988, Respondent contracted with Anthony Antonelli ("Antonelli") to construct an aluminum roof over the patio and gutters at his residence at 9303 Laurel Green Drive, Boynton Beach, Florida.
The price of the contract for the work to be performed at the Antonelli residence was $2,016.00. Antonelli remitted a deposit of $500 to the Respondent.
Respondent informed Antonelli that he would not be able to perform said job for the contracted price and no work ever began.
Respondent canceled the contract with Antonelli and failed to return the deposit to Antonelli.
DOAH Case Number 91-7951
The Insurance, Palomba, Romanello and Marin Complaints
On June 21, 1990, Tropical's general liability insurance coverage, policy number (891006GL327), produced by Stephen Adams & Associates, Inc., ("Adams & Associates") and afforded by Guardian Property & Casualty Company, expired.
On July 17, 1990, Tropical issued a check to Adams & Associates in the amount of $2,475.00 to obtain and/or renew general liability and workers' compensation insurance.
Upon receipt of the check, Adams & Associates issued a certificate of insurance to the Davie Building Department in Davie, Florida, indicating that Tropical had general liability (policy number 235810) and workers compensation insurance in force through July 17, 1991.
After said certificate of insurance was issued, Tropical stopped payment on the check issued to Adams & Associates.
Tropical failed to issue an additional check or remit payment of any kind resulting in the general liability and workers compensation insurance being canceled, effective July 17, 1990.
In about September 1990, a certificate of insurance was submitted to the Davie Building Department indicating that Tropical had general liability insurance in effect from September 21, 1990, until September 21, 1991.
Said certificate had been altered in that the issue, effective and expiration dates had been updated to reflect that the policy coverage was current and in force.
The policy listed on the certificate (number 891006GL327), produced by Adams & Associates and afforded by Guardian Property & Casualty Company, expired on June 21, 1990, and was never renewed or kept in force after that date.
The Davie Building Department has no other certificates or records indicating that Tropical has insurance coverage.
Between July 17, 1990, and April 8, 1991, Tropical obtained five (5) building permits from the Davie Building Department.
At no time during the aforementioned period did Tropical have general liability insurance thereby violating Section 302.1(b) of the South Florida Building Code which requires that building permit applicants be qualified in accordance with Part I of Chapter 489, Florida Statutes. Licensees are required to maintain public liability insurance at all times as provided by rules promulgated pursuant to Part I of Chapter 489, Florida Statutes.
Construction Industry Licensing Board ("CILB") records indicate that Tropical has general liability insurance coverage through Equity Insurance Company ("Equity") of Hollywood, Florida.
Effective June 8, 1988, Tropical's insurance with Equity was canceled.
On February 20, 1991, Tropical entered into an agreement with Michael and Margaret Palomba (the "Palombas") to perform enclosure and remodeling work at the Palomba's residence located at 130 N.E. 5th Ct., Ft. Lauderdale, Florida 33334. The approximate contract price was $11,978.00.
On March 13, 1991, Tropical received a $2,994.50 deposit from the Palombas.
On March 25, 1991, Tropical obtained a permit for the project from the Broward County Building Department.
Subsequent to receiving the permit, Tropical removed an interior closet and exterior doors from the area that was to be remodeled.
Tropical then stopped work stating that rotten wood had been discovered, and requested an additional $2,800.00 to continue with and complete the project.
Tropical refused to perform any additional work without the Palombas agreeing to the added cost.
Tropical failed or refused to continue with the project pursuant to the original agreement and failed to return any monies to the Palombas.
In May, 1991, the Palombas hired a second contractor, Dan Sturgeon, to complete the project for $13,000.00. 156. Based on the foregoing, Tropical committed misconduct in the practice of contracting.
On or about July 11, 1990, Tropical entered into an agreement with Don and Norma Romanello (the "Romanellos") to construct a screened room on an existing slab at the Romanello's residence located in Boca Raton, Florida. The contract price was $9,500.
Tropical received a $4,800.00 payment from the Romanellos but failed to perform any work pursuant to the agreement.
Tropical has failed or refused to return any portion of the Romanellos payments and has refused to communicate with the Romanellos.
Based on the preceding, Tropical committed misconduct in the practice of contracting.
On or about June 23, 1990, Tropical entered into an agreement with Marcelina Marin to construct a screened room at Marin's residence located in Broward County, Florida for $4,021.00
Tropical received a $2,000.00 deposit at the time the agreement was entered into.
Tropical failed to perform any work under the terms of the agreement, and has failed or refused to return Marin's deposit.
Based on the preceding, Tropical committed misconduct in the practice of contracting.
DOAH Case Number 92-0370 The Pappadoulis Complaint
On or about February 11, 1990, the Respondent contracted with John Pappadoulis ("Pappadoulis") to remodel a Florida room for the agreed upon amount of $11,448.00 at his residence located at 983 Southwest 31st Street, Fort Lauderdale, Florida.
Respondent received a deposit of $648.00, but never obtained a permit nor began work. The Respondent failed or refused to return Pappadoulis' deposit. John Pappadoulis has since passed away.
Aggravating and Mitigating Circumstances Monetary Damages
Several of the customers in these cases suffered monetary damages. The Baronas had to hire an attorney to deal with the Respondent. The Baronas also incurred additional costs in the work they performed to complete the contract.
John and Lori Grantz also suffered monetary damages due to their dealings with the Respondent. The work at the Grantz residence was never completed by the Respondent. The Respondent filed a lien on the Grantz property and also filed a lawsuit to receive the full amount of the contract price. The Grantz had to hire an attorney to obtain legal advice and to defend the lawsuit. The Grantz prevailed in that lawsuit and a judgment was entered requiring the Respondent to refund the $500.00 cash deposit. The Grantz also spent at least
$150.00 on attorney fees. The deposit money was never returned and none of their costs were ever reimbursed by the Respondent.
Steven Victor also sustained monetary damages in his dealings with the Respondent. Victor paid the Respondent $670.00 as a deposit. No work was ever performed. After requesting the return of his deposit money and failing to receive it, Victor filed a civil action against the Respondent. Judgment was entered in favor of Victor, but the judgment was never paid.
The Maffetonnes also sustained monetary damages in their dealings with the Respondent. The Respondent agreed to refund a portion of the contract money to the Maffetonnes due to a problem with the carpet he installed incorrectly, but failed to ever refund any money. The Maffetonnes therefore paid for goods which were defective, and never received a compensatory credit.
Klokow also sustained monetary damages in his dealings with the Respondent Because of continuing roof problems, Klokow had to hire an independent roofing expert to inspect the roof and prepare a report.
Mr. and Mrs. Palomba also sustained monetary damage due to their dealings with the Respondent. When the Respondent abandoned the Palomba job, the Palombas were forced to hire a second contractor at a higher contract price.
The Respondent's actions also caused monetary damages to Antonelli, Pappadoulis, Marin, and Romanello. In each case, the homeowner paid a deposit to the Respondent, and the Respondent failed to ever perform work or return any of the deposit money. The Antonellis paid $500.00, Pappadoulis paid $648.00, Marin paid $2,000.00, and Romanello paid $4,800.00.
Actual Job-Site Violations of Building Codes or Conditions Exhibiting Gross Negligence, Incompetence, or Misconduct by the Licensee
Several of the jobs involved in these cases had actual job site violations of building codes or conditions which exhibited gross negligence, incompetence, or misconduct by the Respondent which had not been resolved as of the date of the formal hearing. At the Barona residence, the framing inspection failed twice before finally being passed a third time; the lath inspection failed three times before finally passing on the fourth time; and the final inspection failed and was never satisfactorily completed by the Respondent.
At the Carrow residence, the Respondent failed to install a window or vent fan in the bathroom of the room addition which he installed. In addition to the building code violation, the work performed was incompetent as the structure installed leaked for many months. Further, the original permit expired prior to a final inspection ever being obtained.
At the Grantz residence, the Respondent exhibited incompetence and misconduct by installing windows that he knew or should have known were unsuitable for the purposes specified by the customer.
Severity of the Offense
The large number of violations established in these cases indicates that the Respondent is a serious threat to the public. These violations establish that the Respondent had a pattern of failing to conduct any meaningful supervision of work in progress. And perhaps most serious of all is his frequent act of soliciting deposits for projects he apparently had no intention of even beginning, much less finishing. This latter practice borders on constituting some form of larceny.
Danger to the Public
The Respondent is a danger to the public in two ways. First, he is a financial threat to the public, most significantly by his practice of taking deposits for jobs he apparently did not intend to perform. Second, he is a threat to public safety, because the work he performs is often done in a haphazard, careless manner.
The Number of Repetitions of Offenses
As is obvious from the findings of fact and conclusions of law in this Recommended Order, the Respondent is guilty of numerous repeated offenses which occurred over a period of approximately three years. The Respondent's numerous offenses are indicative of an attitude of contempt or disregard for the requirements of the applicable rules and statutes.
Number of Complaints Against Respondent
The charges in these cases are based on fifteen separate customer complaints to the Department of Professional Regulation regarding the Respondent. Further, the Palm Beach County Construction Industry Licensing Board received four complaints from homeowners regarding the Respondent 5/ and the Broward County Consumer Affairs Department received twenty-nine complaints regarding the Respondent. 6/ Such a large number of complaints indicates that the Respondent's shortcomings were not isolated events, but represent a recurring problem.
The Length of Time the Licensee Has Practiced
The Respondent was first licensed as a state general contractor in 1987. He obtained his roofing contractor license shortly thereafter. The Respondent's licenses were placed under emergency suspension in August of 1991.
Damage to the Customers
The damages, monetary and otherwise, suffered by the Respondent's customers has already been addressed. In addition, all of the Respondent's customers mentioned in the findings of fact suffered a great deal of aggravation, stress, and frustration in dealing with the Respondent.
Penalty and Deterrent Effect
In these cases, the proof submitted demonstrates that no penalties short of revocation of the Respondent's licenses and imposition of the maximum amount of fines will act as a deterrent to the Respondent and others and as appropriate punishment for the many violations established by the record in these cases.
Efforts at Rehabilitation
There is no persuasive evidence in the record of these cases that the Respondent has become, or is likely to become, rehabilitated. To the contrary, the greater weight of the evidence is to the effect that the Respondent is unwilling or unable to conform his conduct to the requirements of the statutes and rules governing the practice of contracting.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57(1), Florida Statutes.
The Board's authority to take disciplinary action against a contractor is found at Section 489.129(1), which reads as follows, in pertinent part:
The board may revoke, suspend, or deny the issuance or renewal of the certificate or registration of a contractor, require financial restitution to a consumer, impose an administrative fine not to exceed $5,000, place a contractor on probation, require continuing education, assess costs associated with investigation and prosecution, or reprimand or censure a contractor if the contractor, or if the business organization for which the contractor is a primary qualifying agent or is a secondary qualifying agent responsible under s. 489.1195, is found guilty of any of the following acts:
***
Violating Chapter 455;
Wilfully or deliberating disregarding and violating the applicable building codes or laws of the state or of any municipalities or counties thereof;
***
(h) Committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Financial
mismanagement or misconduct occurs when:
Valid liens have been recorded against the property of a contractor's customer for supplies or services ordered by the contractor for the customer's job; the contractor has received funds from the customer to pay for the supplies or services; and the contractor has not had the liens removed from the property, by payment or by bond within 75 days after the date of such liens;
The contractor has abandoned a customer's job and the percentage of completion is less than the percentage of the total contract price paid to the contractor as of the time of abandonment, unless the contractor is entitled to retain such funds under the terms of the contract or refunds the excess funds within 30 days after the date the job is abandoned;
The contractor's job has been completed, and it is shown that the customer has had to pay more for the contracted job than the original contract price, as adjusted for subsequent change orders, unless such increase in cost was the result of circumstances beyond the control of the contractor, was the result of circumstances caused by the customer, or was otherwise permitted by the terms of the contract between the contractor and the customer.
***
Failing in any material respect to comply with the provisions of this part;
Abandoning 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 just cause or without proper notification to the prospective owner, including the reason for termination, or fails to perform work without just cause for 90 consecutive days.
***
Committing fraud or deceit or gross negligence, incompetency, or misconduct in the practice of contracting.
Proceeding on any job without obtaining applicable local building department permits and inspections.
Section 489.105(4), Florida Statutes, contains the following definition:
"Primary qualifying agent" means a person who possesses the requisite skill, knowledge, and experience, and has the responsibility, to supervise, direct, manage, and control the
contracting activities of the business organization with which he is connected; who has the responsibility to supervise, direct, manage, and control construction activities on a job for which he has obtained the building permit; and whose technical and personal qualifications have been determined by investigation and examination as provided in this part, as attested by the department.
Section 489.119, Florida Statutes, provides, among other things, that in its application a business organization must show that its qualifying agent "is legally qualified to act for the business organization in all matters connected with its contracting business and that he has authority to supervise construction undertaken by such business organization." The subject statutory provision also states that "[t]he qualifying agent shall be certified or registered under this part in order for the business organization to be certified or registered in the category of the business conducted for which the qualifying agent is certified or registered."
Section 455.227, Florida Statutes, contains the following relevant provisions:
The board shall have the power to revoke, suspend, or deny the renewal of the license, or to reprimand, censure, or otherwise discipline a licensee, if the board finds that:
The licensee has made misleading, deceptive, untrue, or fraudulent representations in the practice of his profession;
The licensee has intentionally violated any rule adopted by the board or the department.
***
In addition to, or in lieu of, any other discipline imposed pursuant to this section, the board may impose an administrative fine not to exceed $1,000 for each violation.
The Board has adopted Rule 21E-15.003, Florida Administrative Code, on the subject of public liability insurance. The rule provides, in pertinent part:
As a prerequisite to the initial issuance, or the renewal of an active certificate or registration or a change in the status of an active certificate or registration, the applicant shall submit a signed affidavit attesting to the fact that the appellant (sic) has obtained and will maintain public liability and property damage insurance, in the amounts stated herein for the life of an active certificate or registration and for the safety and welfare of the public. It shall be a violation of this
rule for any licensee to fail to continually maintain liability and property damage insurance in amounts set forth herein.
The Petitioner has the burden of proving the allegations in all of the Administrative Complaints and Amended Administrative Complaints in these consolidated cases by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). The nature of clear and convincing evidence has been described as follows in Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983):
We therefore hold that clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
See also, Smith v. Department of Health and Rehabilitative Services, 522 So.2d 956 (Fla. 1st DCA 1988), which, at page 958, quotes with approval the
above
following at page 958:
"Clear and convincing evidence" is an intermediate standard of proof, more than the "preponderance of the evidence" standard used in most civil cases, and less than the "beyond a reasonable doubt" standard used in criminal cases. See State v. Graham, 240 So.2d 486 (Fla. 2d DCA 1970).
The Petitioner has met its burden of proof in these cases. All of the material factual allegations of the several Administrative Complaints and Amended Administrative Complaints have been established by admission or by convincing proof at hearing. Applying the statutory and rule provisions quoted above to the facts established by the admissions and evidence in these cases, the following conclusions are reached regarding the allegations in each of the several Administrative Complaints and Amended Administrative Complaints.
DOAH Case No. 89-3902, the Barona and Carrow Complaints
That the Respondent violated Section 489.129(1)(d), Florida Statutes, by willfully or deliberately disregarding and violating the applicable building codes or laws of the state or of any municipalities or counties thereof.
That the Respondent violated Section 489.129(1)(m), Florida Statutes, by being guilty of gross negligence, incompetence, and/or misconduct in the practice of contracting.
DOAH Case No. 90-1900, the Grantz, Victor, Beckett, Maffetonne, and Wolfe Complaints
That the conduct described in paragraph 3, subparagraphs a-e, of the Administrative Complaint in DOAH Case No. 90-1900, considered in the aggregate, reflects gross negligence, incompetence, and/or misconduct by the Respondent, in violation of Sections 489.129(1)(m), (j), and 489.105(4), and 489.119, Florida Statutes.
That the conduct described in paragraph 3, subparagraphs a-e, of the Administrative Complaint in DOAH Case No. 90-1900, considered in the aggregate, reflects financial mismanagement or misconduct by the Respondent, in violation of Sections 489.129(1)(h), (m), (j), and 489.119, and 489.105(4), Florida Statutes.
That the conduct described in paragraph 3, subparagraphs a-e, of the Administrative Complaint in DOAH Case No. 90-1900, considered in the aggregate, reflects Respondent's wilful or deliberate violation or disregard of applicable local building codes and laws, in violation of Section 489.129(1)(d), Florida Statutes.
That the conduct described in paragraph 3, subparagraphs a-e, of the Administrative Complaint in DOAH Case No. 90-1900, considered in the aggregate, reflects a failure by Respondent to properly supervise contracting activities he was responsible for as qualifying agent, which supervisory deficiency also reflected gross negligence, incompetence, and/or misconduct, violating Sections 489.129(1)(m), (j), 489.119, and 489.105(4), Florida Statutes.
That the conduct described in paragraph 3, subparagraphs a-e, of the Administrative Complaint in DOAH Case No. 90-1900, considered in the aggregate, reflects abandonment of contracting work by Respondent, in violation of Section 489.129(1)(k), Florida Statutes.
That the conduct described in paragraph 3, subparagraphs a-e, of the Administrative Complaint in DOAH Case No. 90-1900, considered in the aggregate, reflects that Respondent gave a guarantee on a job to a consumer and thereafter failed to reasonably honor said guarantee in violation of Sections 489.129(1)(m), and (j), Florida Statutes.
DOAH Case No. 90-1901, the Klokow Complaint
That the Respondent violated Section 489.129(1)(d), Florida Statutes, by wilfully or deliberately disregarding and violating the applicable building codes or laws of the state or any municipalities or counties thereof.
That the Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor.
That the Respondent violated Section 489.129(1)(m), Florida Statutes, by being guilty of gross negligence, incompetence, and/or misconduct in the practice of contracting.
DOAH Case No. 90-1902, the Meister Complaint
That the Respondent violated Section 489.129(1)(n), Florida Statutes, by failure to obtain a permit.
DOAH Case No. 91-7493, the Antonelli Complaint
That the Respondent violated Section 489.129(1)(h), Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer.
That the Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor.
That the Respondent violated Section 489.129(1)(m), Florida Statutes, by being guilty of fraud or deceit or of gross negligence, incompetence, and/or misconduct in the practice of contracting.
DOAH Case No. 91-7951, the Insurance, Palomba, Romanello, and Marin Complaints
The Insurance Complaint
That the Respondent violated Section 489.129(1)(c), Florida Statutes, by violating Section 455.227(1)(a), Florida Statues, by making misleading, deceptive, untrue, or fraudulent representations in the practice of his profession.
That the Respondent violated Section 489.129(1)(d), Florida Statutes, by wilfully or deliberately disregarding and violating the applicable building codes or laws of the state or any municipalities or counties thereof.
That the Respondent violated Section 489.129(1)(c), Florida Statutes, by violating Section 455.227(1)(b), Florida Statutes, by intentionally violating a Board rule.
That the Respondent violated Section 489.129(1)(m), Florida Statutes, by being guilty of fraud or deceit or of gross negligence, incompetency, and/or misconduct in the practice of contracting.
The Palomba Complaint
That the Respondent violated Section 489.129(1)(h), Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer.
That the Respondent violated Section 489.129(1)(m), Florida Statutes, by being found guilty of fraud or deceit or of gross negligence, incompetency, and/or misconduct in the practice of contracting.
The Romanello Complaint
That the Respondent violated Section 489.129(1)(h), Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer.
That the Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor.
That the Respondent violated Section 489.129(1)(m), Florida Statutes, by being found guilty of fraud or deceit or of gross negligence, incompetency, and/or misconduct in the practice of contracting.
The Marin Complaint
That the Respondent violated Section 489.129(1)(h), Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer.
That the Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor.
That the Respondent violated Section 489.129(1)(m), Florida Statutes, by being found guilty of fraud or deceit or of gross negligence, incompetency, and/or misconduct in the practice of contracting.
DOAH Case No. 92-0370, the Pappadoulis Complaint
That the Respondent violated Section 489.129(1)(h), Florida Statutes, by committing financial misconduct.
That the Respondent violated Section 489.129(1)(m), Florida Statutes, by committing gross negligence, incompetence and/or misconduct in the practice of contracting.
Determination of Appropriate Penalties
The Board has adopted disciplinary guidelines in Rule 21E-17.001, Florida Administrative Code. Those rules provide, 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.
***
489.129(1)(d): Permit violations.
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.
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.
***
(8) 489.129(1)(d): Failure to call for inspections. First violation, letter of guidance; repeat violation, $250 or 750 fine.
***
489.129(1)(h): Diversion of funds. First violation, $750 to $1500 fine; repeat violation, revocation.
489.129(1)(m): Misconduct by failure to reasonably honor warranty. First violation, $250 to $750 fine; repeat violation, $500 to $1500 fine and one year suspension.
489.129(1)(k): Abandonment. First violation, $500 to $2000 fine; repeat violation, revocation.
***
(18) 455.227(1)(a): Fraud, deceit, misleading, or untrue representations. First violation, $500 to $1500 fine; repeat violation, revocation.
489.129(1)(m): Gross negligence, incompetence, and/or misconduct, fraud or deceit.
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.
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.
489.129(1)(d): Violation of state or local laws. First violation, $250 to $750 fine. Repeat violation, $1000 to $3000 fine.
The absence of any violation from this Chapter shall be viewed as an oversight, and shall not be construed as an indication that no penalty is to be assessed.
In addition to the disciplinary guidelines set forth above, the Board has adopted Rule 21E-17.002, Florida Administrative Code, which addresses aggravating and mitigating circumstances to be considered in the determination of the appropriate penalty. Rule 21E-17.002 reads as follows:
Aggravating and Mitigating Circumstances. Circumstances which may be considered for the purposes of mitigation or aggravation of penalty shall include, but are not limited to the following:
monetary or other damage to the licensee's customer in any way associated with the violation, which damage licensee has not relieved, as of the time the penalty is to be assessed. (This provision shall not be given effect to the extent it would contravene federal bankruptcy law.)
Actual job-site violations of building codes, or conditions exhibiting gross negligence, incompetence, or misconduct by the
licensee, which have not been corrected as of the time the penalty is being assessed.
The severity of the offense.
The danger to the public.
The number of repetitions of offenses.
The number of complaints filed against the licensee.
The length of time the licensee has practiced.
The actual damage, physical or otherwise, to the licensee's customer;
The deterrent effect of the penalty imposed.
The effect of the penalty upon the licensee's livelihood.
Any efforts at rehabilitation.
Any other mitigating or aggravating circumstances.
As is evident from the findings of fact in these cases, especially the findings of fact at Paragraphs 167 through 184 following the caption "Aggravating and Mitigating Circumstances," there are a large number of aggravating circumstances in these cases and nothing of significance in the way of mitigating circumstances. Because of both the large number of violations and the many aggravating circumstances, in these cases the normal penalty ranges of Rule 21E-17.001, Florida Administrative Code, are insufficient. The totality of the evidence in these cases supports a conclusion that the maximum penalties authorized by law should be imposed in these cases.
Based upon the foregoing findings of fact and conclusions of law, IT IS RECOMMENDED:
That the Respondent be found guilty of all of the violations charged in each Administrative Complaint and Amended Administrative Complaint as noted in the conclusions of law, and that the Respondent be disciplined as follows:
The Respondent be required to pay an administrative fine in the amount of $5,000.00 for each of the twenty-nine counts of violations charged and proved, for a grand total of $145,000.00 in administrative fines;
The Respondent's license numbers CG C040139 and CC C042792 be revoked;
and
The Respondent be required to pay restitution to the following
Complainants in the following amounts:
Steven Victor - $670.00;
John Grantz - $650.00;
Don Romanello - $4,800.00;
Marcelina Marin - $2,000.00;
Anthony Antonelli - $500.00;
John Pappadoulis' next of kin - $648.00.
All restitution shall earn 12% interest per annum from the date the Complainants paid their deposit to Respondent.
DONE AND ENTERED at Tallahassee, Leon County, Florida, this 21st day of October, 1992.
MICHAEL M. PARRISH, 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 21st day of October, 1992.
ENDNOTES
1/ Although the Respondent, Mr. Marvin M. Kay, represented himself at the formal hearing, during much of the prehearing phase of this extensive litigation he was represented by legal counsel.
2/ The proposed findings of fact contained in the recommended order submitted by the Petitioner are, with very few exceptions, well prepared and consistent with the record in these cases. Large portions of those proposed findings of fact have been incorporated into the findings of fact in this Recommended Order.
3/ The facts found in Section A of these Findings of Fact are all admitted by the Respondent either in writing or due to his failure to respond to the Petitioner's Request for Admissions which were admitted into evidence as Petitioner's Exhibits 29, 30, 31 and 32. Independent proof of many of these admitted facts was also presented by teh Petitioner at hearing. The facts found in Section B of these Findings of Fact are based on the independent proof submitted at hearing.
4/ See Petitioner's Exhibit 29.
5/ Two of these complaints were also complainants to the Department of Professional Regulation.
6/ Five of these complaints were also complainants to the Department of Professional Regulation.
APPENDIX NUMBER ONE TO RECOMMENDED ORDER IN CASE NUMBER 89-3902, ET AL.
The following are my specific rulings on all proposed findings of fact submitted by the parties to these consolidated cases.
Proposed findings submitted by Petitioner:
All proposed findings of fact submitted by the Petitioner have been accepted in whole or in substance except as specifically noted below.
With regard to the Petitioner's proposed findings of fact based on prehearing admissions (pages 13 to 27 of Petitioner's proposed recommended order), I have omitted the paragraphs listed immediately hereafter on the grounds that they are proposed conclusions of law, rather than proposed findings of fact. The omitted paragraphs are, of course, addressed in the conclusions of law portion of this Recommended Order. The omitted paragraphs are: 68, 69, 70, 74, 77, 78, 79, 80, 81, 82, 83, 97, 99, 105, 106, 108, 114, 115, 117, 125, 126,
and 127.
With regard to the Petitioner's proposed findings of fact based on the testimony at the hearing (pages 27 to 41 of Petitioner's proposed recommended order), I have omitted the paragraphs listed immediately hereafter on the grounds that they are proposed conclusions of law, rather than proposed findings of fact. The omitted paragraphs are, of course, addressed in the conclusions of law portion of this Recommended Order. The omitted paragraphs are: 9, 10, 24, 25, 26, 27, 28, 29, 33, 34, 35, 38, 43, 44, 54, 55, 58, 61, 62, 63, 64, 77, 78,
80, 84, 85, 87, 90, and 91.
Proposed findings submitted by Respondent:
(The Respondent did not submit any proposed findings of fact.) APPENDIX NUMBER TWO TO RECOMMENDED ORDER
IN CASE NUMBER 89-3902, ET AL.
The following is a list of all exhibits submitted by the parties at the formal hearing:
Petitioner's Exhibits:
Contract between the Palombas and Tropical Home Industry ("Tropical");
Checks written by the Palombas to Tropical;
(Withdrawn and not admitted);
Building permit application and inspection history regarding the Barona residence;
Letter to Tropical from Clay Parker dated February 22, 1989 regarding Barona residence;
Certificate of Insurance effective June 22, 1989 through June 21, 1990;
Certificate of Insurance with the effective date of July 17, 1990;
Check number 1056 dated July 17, 1990;
Letter of July 20, 1990 to Lawrence Mervis from Respondent;
Letter to Rodney Guise from Lawrence Mervis of August 10, 1990;
Certificates of Insurance dated September 22, 1990 and June 21, 1990;
Letter to Paul Ray from Lawrence Mervis dated March 21, 1991;
Contract between the Grantz' and Tropical;
Letter of May 11, 1989 to Tropical from John Grantz;
Blueprint of product installation for Grantz job;
Letter from Palm Beach County to Elite Windows of June 12, 1989;
Correction Notice by Palm Beach County regarding work performed at the Grantz residence;
Final Judgment in the case of Tropical Home Industries
v. John Grantz;
Three (3) Certificates of Insurance, with effective dates of June 21, 1990, July 17, 1990, and September 21, 1990;
Workers' Compensation Affidavit executed by Respondent on December 6, 1990;
Five (5) building permits issued by Davie Building Department to Tropical between July 18, 1990 and April 8, 1991;
Contract entered into between the Romanello's and Tropical;
Check number 7812 issued to Tropical by the Romanellos;
Contract of June, 1990 between Tropical and the Romanellos;
Letter from Attorney Shorr to Respondent of September, 1990;
Broward County Consumer Affairs records regarding Catanzaro case;
Broward County Consumer Affairs records regarding Fischer case;
Broward County Consumer Affairs list of complaints against Tropical;
Request for Admissions with answers regarding Carrow Complaint;
Request for Admissions with answers regarding DOAH Case Nos. 89-3902, 90-1900, 90-1901, and 90-1902;
Request for Admissions regarding DOAH Case No. 91- 7951;
Request for Admissions regarding DOAH Case No. 91- 7493;
City of Lauderhill government records regarding plans and late permit at the Beckett residence;
City of Lauderhill government records indicating no final inspection at the Beckett residence;
Government records regarding the Meister residence;
Government records regarding the Wolfe residence;
(Withdrawn);
Deposition of Dr. Linda Klokow;
Deposition of E.E. Duke Jordan;
Deposition of Vinton Beckett;
Deposition of Walter Barona;
Deposition of Anthony Antonelli;
Construction Industry Licensing Board document regarding Respondent's Insurance Certificate;
Palm Beach County Permit Inspection History regarding Grantz residence;
Palm Beach County Inspection Record History regarding Barona residence;
Two (2) contracts entered into between the Victors and Tropical;
Certified copy of Default and Final Judgment regarding the case of Stephen Victor v. Tropical Home Industries;
Copy of Return of Service;
(Not admitted);
Copy of Seminole Home Industries advertisement.
Respondent's Exhibits:
Building permit regarding the Palomba residence;
Engineering drawings regarding the Palomba residence;
Notice of Commencement regarding the Romanello residence dated 6/25/91;
Contract entered into between the Baronas and Tropical;
The Addendum to the Contract entered into between the Baronas and Tropical;
Permit issued from Palm Beach County to Tropical regarding the Barona residence;
Waiver of Lien regarding the Barona residence;
Mutual Releases between Tropical and Barona;
Package of documents regarding the Carrow residence;
Contract entered into between Maffetonne and Tropical;
A drawing regarding the Maffetonne residence
Certificate of Completion regarding the Maffetonne residence;
Polaroid of debris at the Carrow residence;
Polaroid of flashed pipe at the Carrow residence;
Bills of 4/2/90 from architect regarding Pappadoulis residence.
COPIES FURNISHED:
Daniel O'Brien, Executive Director Construction Industry Licensing Board Post Office Box 2
Jacksonville, Florida 32202
Jan Darlow Langer, Esquire ADORNO & ZEDER, P.A.
2601 South Bayshore Drive Suite 1600
Miami, Florida 33133
Mr. Marvin M. Kay 5433 N.E. 3 Terrace
Fort Lauderdale, Florida 33334
Jack McRay, Esquire General Counsel
Department of Professional Regulation 1940 North Monroe Street
Suite 60
Tallahassee, Florida 32399-0792
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in these cases concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in these cases.
| Issue Date | Proceedings |
|---|---|
| Mar. 12, 1993 | Final Order filed. |
| Nov. 17, 1992 | Letter to Daniel O'Brien from M.M. Parrish (RE: ltr referenced the recommended order in the above styled case with attached recommended order) sent out. |
| Oct. 21, 1992 | Recommended Order sent out. CASE CLOSED. Hearing held March 4 and 5, 1992. |
| Jun. 22, 1992 | (1 Diskette) Petitioner's Proposed Recommended Order w/coverltr filed. |
| Jun. 10, 1992 | Order sent out. (petitioner's motion seeking leave to file a proposed recommended order in excess of 40 pages is granted) |
| Jun. 08, 1992 | (Petitioner) Motion For Leave to File Proposed Recommended Order Exceeding 40 pages; Petitioner's Proposed Recommended Order filed. |
| May 04, 1992 | Order Extending Time sent out. (motion granted, parties are allowed until 6-8-92, within which to file their respective proposed recommended orders) |
| Apr. 29, 1992 | Petitioner's Motion for Extension of Time filed. |
| Apr. 09, 1992 | Memo to All Parties from M.M. Parrish (RE: Transcript of formal hearing) sent out. |
| Apr. 08, 1992 | Transcript (Vols 1-4) filed. |
| Mar. 04, 1992 | CASE STATUS: Hearing Held. |
| Feb. 28, 1992 | (Petitioner) Notice of Taking Deposition filed. |
| Feb. 28, 1992 | (Petitioner) Notice of Taking Deposition filed. |
| Feb. 24, 1992 | (DPR) Notice of Taking Deposition (for case #91-7394) filed. |
| Feb. 13, 1992 | (Petitioner) Notice of Taking Deposition filed. |
| Feb. 13, 1992 | (Petitioner) Notice of Taking Deposition filed. |
| Feb. 11, 1992 | Order Authorizing Telphone Deposition sent out. |
| Feb. 11, 1992 | Letter to M M Kay from MMP sent out. (RE: Telephone Deposition). |
| Jan. 29, 1992 | Order on Motion to Shorten Time sent out. |
| Jan. 29, 1992 | Further Order of Consolidation and Notice of Hearing (set for March 4-6, 1992) sent out. (89-3902, 90-1900, 90-1901, 90-1902, 91-7394, 91-7951 & 92-0370 are consolidated). |
| Jan. 24, 1992 | Defendant's Notice of Serving Pretrial/Update Interrogatories to Plaintiff filed. |
| Jan. 24, 1992 | Petitioner's Motion to Shorten Time in Which to Respond to Discovery;Notice of Taking Deposition filed. |
| Jan. 21, 1992 | Letter to J D Langer from MMP sent out. (RE: Consolidation). |
| Jan. 21, 1992 | Petitioner's Request for Admissions filed. |
| Jan. 21, 1992 | Notice of Taking Deposition filed. |
| Jan. 21, 1992 | Petitioner's Request for Admissions filed. |
| Dec. 27, 1991 | (Petitioner) Motion to Consolidate filed. |
| Dec. 18, 1991 | Order of Consolidation and Notice of Hearing sent out. (89-3902, 90-1900, 90-1901, 90-1902 and 91-7394 are consolidated). |
| Nov. 14, 1991 | Order Granting Continuance and Rescheduling Hearing sent out. (hearing rescheduled for March 4-5, 1992; 10:30am 1st day, 9:30am 2nd day; Ft Laud). |
| Nov. 12, 1991 | (Respondent) Motion for Continuance filed. |
| Nov. 07, 1991 | Petitioner's Request for Admissions filed. |
| Oct. 17, 1991 | Letter to M M Kay from MMP sent out. (RE: Qualified representative). |
| Oct. 15, 1991 | CC Notice of Withdrawal As Counsel For Respondent filed. (From JosephDeGance) |
| Oct. 04, 1991 | Second Notice of Hearing sent out. (hearing set for Jan. 9-10, 1992;10:00am day 1 & 9:00am day 2; Ft. Laud). |
| Sep. 23, 1991 | (pleading w/no name) Response to Order filed. (From Gregory A. Victor) |
| Sep. 10, 1991 | Order sent out. (Re: Status report due Sept. 23, 1991). |
| Sep. 03, 1991 | (DPR) Status Report filed. |
| Jul. 23, 1991 | Order sent out. (Case in abeyance; Parties; status report due Aug. 30, 1991). |
| Jul. 01, 1991 | (DPR) Status Report filed. |
| Apr. 19, 1991 | Notice of Vacation filed. (From Joseph DeGance) |
| Apr. 11, 1991 | Order sent out. (cases to remain in abeyance; status report due 6/30/91) |
| Mar. 29, 1991 | (Petitioner) Status Report filed. |
| Dec. 24, 1990 | Order (Case in Abeyance; Status report due March 29, 1990) sent out. |
| Dec. 17, 1990 | (DPR) Status Report filed. |
| Oct. 11, 1990 | Order of Abeyance (Counsel for parties to give status report by Dec. 14, 1990) sent out. |
| Oct. 01, 1990 | (Petitioner) Motion For Abatement filed. (From Gregory A. Victor) |
| Sep. 20, 1990 | Response to Petitioner's Request For Admissions filed. (From Joseph DeGance) |
| Sep. 07, 1990 | Order Granting Continuance (sine die) sent out. |
| Sep. 04, 1990 | (Respondent) Motion for Continuance; Notice of Appearance filed. (From Joseph Degance) |
| Aug. 20, 1990 | (Petitioner) Notice of Taking Deposition Duces Tecum filed. (from Gregory A. Victor) |
| May 24, 1990 | Petitioner's Request for Production of Documents filed. (from GregoryA. Victor) |
| May 21, 1990 | Petitioner's Notice of Filing First Set of Interrogatories filed. |
| May 08, 1990 | Order Rescheduling Hearing sent out. (hearing is reset for Oct. 4 and5, 1990) |
| May 08, 1990 | Notice of Hearing sent out. (hearing set for Oct. 4 and 5, 1990; 9:00; Ft. Laud) |
| May 07, 1990 | Letter to MMP from J. Darlow (re: hearing dates/discovery) filed. |
| Apr. 23, 1990 | Order Granting Consolidation and Extending Time (hearing set for 6/5/90) sent out. Consolidated cases are: 89-3902, 90-1900, 90-1901 & 90-1902. |
| Mar. 20, 1990 | (Petitioner) Motion For Extension of Time and Motion to Consolidate filed. |
| Mar. 06, 1990 | Order Denying Motion to Compel sent out. |
| Mar. 06, 1990 | Order Granting Motion to Further Amend Administrative Complaint sent out. |
| Mar. 06, 1990 | Order Granting Motion to Further Amend Administrative Complaint sent out. |
| Mar. 06, 1990 | Notice of Hearing sent out. (hearing set for 6-5-90; 9:30; Ft. Laud) |
| Mar. 02, 1990 | (Petitioner) Response to Order of Continuance filed. |
| Feb. 20, 1990 | Order Granting Continuance and Requiring Response sent out. (parties shall have no longer than ten days to submit several potential hearingdates) |
| Feb. 19, 1990 | Petitioner's Motion for Continuance filed. |
| Feb. 01, 1990 | Petitioenr's Motion to Compel w/exhibits A&B filed. |
| Feb. 01, 1990 | Petitioner's Motion to Amend The Amended Administrative Complaint filed. |
| Jan. 29, 1990 | Petitioner's First Request for Production of Documents filed. |
| Jan. 22, 1990 | Notice of Change of Name and Address filed. |
| Dec. 26, 1989 | Notice of Appearance filed. |
| Dec. 19, 1989 | Order Granting Motion to Amend Administrative Complaint and Rescheduling Hearing sent out. (hearing set for 3-7-90; 10:00; FtLaud) |
| Dec. 05, 1989 | Amended Administrative Complaint filed. |
| Sep. 07, 1989 | Amended Order Granting Continuance and Requiring Response (parties torespond by 12/4/89) sent out. |
| Sep. 06, 1989 | Order Granting Continuance and Requiring Response sent out. (partiesto advise HO of status by 9-4-89) |
| Aug. 30, 1989 | Motion for Continuance filed. |
| Aug. 29, 1989 | Order denying motion to compel sent out. |
| Aug. 25, 1989 | Order Granting Motion to Accept Qualified Representative sent out. |
| Aug. 21, 1989 | (DPR) Motion to Compel Answers to Petitioner's Interrogatories (+ exhA) filed. |
| Aug. 11, 1989 | Notice of Hearing sent out. (hearing set for 09/07/89;1PM;Ft.Lauderdale) |
| Aug. 11, 1989 | Affidavit filed. |
| Jul. 31, 1989 | Initial Order issued. |
| Jul. 31, 1989 | Initial Order issued. |
| Jul. 21, 1989 | Referral Letter; Petitioner's First Interrogatories to Respondent; Petitioner's First request for Admissions; Petitioner's Notice of filingInterrogatories; Administrative Complaint; Election of Rights filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 09, 1993 | Agency Final Order | |
| Oct. 21, 1992 | Recommended Order | Evidence establishes contractor is guilty of 29 violations and should have license revoked and be assessed maximum fines. |
