STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

CONSTRUCTION INDUSTRY )

LICENSING BOARD, )

)

Petitioner, )

)

vs. ) Case Nos. 01-0366PL

) 01-0367PL

OSCAR S. BENITEZ, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on August 27, 2001, in Miami, Florida, before

J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Theodore R. Gay, Esquire

Department of Business and Professional Regulation

401 Northwest Second Avenue Suite N-607

Miami, Florida 33128-1765

For Respondent: Oscar S. Benitez, pro se

3894 Southwest 107th Avenue Miami, Florida 33165

STATEMENT OF THE ISSUES

Whether the Respondent committed the violations alleged in the Administrative Complaints and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On April 11, 2000, the Petitioner, Department of Business and Professional Regulation, filed an Administrative Complaint against the Respondent, Oscar S. Benitez, that alleged 10 violations of Florida law. Such alleged violations stemmed from a contract to make improvements at a home located at 750 West 73rd Place, Hialeah, Florida. The property, owned by Mr. Piloto, was to be improved by an addition and an in-ground swimming pool. The Respondent timely denied the allegations of this complaint and the matter was forwarded to the Division of Administrative Hearings for formal proceedings and assigned DOAH Case No. 01-0366PL.

A second case, DOAH Case No. 01-0367PL, arose from an Administrative Complaint dated August 7, 2000. In that matter, the Petitioner alleged 11 violations of law against the Respondent. That case was forwarded to the Division of Administrative Hearings for formal proceedings on January 26, 2001.

At the hearing, the Petitioner presented testimony from Jose Mitrani, Juan Gutierrez, Maricel Alayon, Lourdes Cordeiro-Piloto, Juan Luis Piloto, and Antonio Lopez. The Petitioner's Exhibits numbered 1-27, 29, and 31-37 were admitted into evidence. The Respondent testified in his own behalf.

The transcript of these proceedings was filed with the Division of Administrative Hearings on September 14, 2001. Both parties filed Proposed Recommended Orders that have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Department is the state agency charged with regulating the construction industry within the State of Florida.

2. At all times material to the allegations of these cases, the Respondent was licensed by the Department as a certified general contractor, license number CG C007009. Additionally, due to the time period from which the Respondent held his license he was "grand- fathered" to perform roofing construction. The Respondent was the qualifying agent of O. Benitez & Associates, Inc., a Florida corporation.

3. On November 13, 1997, the Respondent executed a contract with Maricel Alayon to construct a terrace for a home located at 1215 West 82nd Street, Hialeah, Florida. While Ms. Alayon referred to the structure as a "terrace," it was to be a covered (roofed) open porch attached to her home at the rear of the property. The price for the addition was $14,125.00.

4. The contract that was prepared by the Respondent for Ms. Alayon's signature did not contain the Respondent's license number or a written notice of the consumer's rights under the Construction Industry's Recoveries Fund.

5. Ms. Alayon paid the Respondent the full

   
   

   $14,125.00 on or about November 17, 1997. Despite having been paid the full amount, the Respondent did not complete the Alayon project. The work was begun on or about November 27, 1997, but was never finished.

6. Ms. Alayon did not fire the Respondent, did not refuse access to her property, and never refused to pay the Respondent monies owed for the work.

7. Curiously, the Respondent obtained the building permit for the Alayon project on January 27, 1998. The Respondent never called for a final inspection on the job

   and, as of March 29, 2001, a final passing inspection for the project had not been performed by building officials.

8. In addition to the contract amount, Ms. Alayon paid $3,575.00 for materials that were used in the construction of the porch. The Respondent did not reimburse Ms. Alayon for that amount.

9. In May of 1998, the Respondent began negotiations with Mr. and Mrs. Piloto for the construction of an addition to their home to include an in-ground swimming pool. From the beginning of the talks, Mr. Piloto advised the Respondent that the couple could only invest $38,000 for the remodeling work as that was the amount the bank had approved for the project.

   The Pilotos wanted to build a bedroom, an expanded bathroom, and a swimming pool at the rear of their home located at 750 West 73rd Place, Hialeah, Florida.

   Eventually the Respondent telephoned the Pilotos to advise them that they could get what they wanted within the budget set by the bank.

10. The contract executed by the Pilotos called for the remodeling for a price of $37,890.00. The contract, prepared by the Respondent, did not contain the Respondent's license number or a notice of consumer's

    rights pursuant to the Construction Industries Recovery Fund.

11. At all times material to the Piloto project, the Respondent did not hold a valid architect's license. In fact, in December of 1997, the Board of Architecture and Interior Design had fined the Respondent for having practiced architecture with a delinquent license. Nevertheless, the Respondent represented himself as an architect to the Pilotos and charged them for blueprints for the remodeling project.

12. Moreover, the Respondent submitted the signed and sealed plans for the Piloto project to the Building Department in order to obtain a building permit for this project. Such plans were filed on or about August 12, 1998.

13. Pursuant to their agreement with the Respondent, the Pilotos paid the Respondent a total of

    $26,664.00 for the project. In comparison, the value of the work performed by the Respondent did not exceed

    $10,000.

    
    

14. The Respondent asked the Pilotos to increase the amount for the contract to $50,395.75, but they refused. Despite the fact that he had caused their home to be reduced to a dangerous condition (by virtue of

    exposed wiring and open walls), the Respondent refused to complete the work on the Piloto project for the contracted amount. Instead, he abandoned the project.

15. The Pilotos did not fire the Respondent. They refused to increase the amount of the contract. The Pilotos did not stop the work or refuse workers access to the property.

16. A lien was placed on the Piloto property by a subcontractor to whom the Respondent owed monies. The Pilotos were required to pay the subcontractor in order to satisfy the lien amount. The Respondent has failed or refused to repay the lien amount.

17. The Respondent grossly under estimated the cost of remodeling the Piloto home. He did so either negligently or intentionally. The Piloto home was compromised by the demolition work done by the Respondent's crew. The Pilotos were faced with paying the additional monies to comply with the Respondent's demand or living with their home in an uninhabitable condition. They chose the latter.

18. On or about May 11, 1999, the Respondent applied for and obtained a building permit to re-roof the home of Sam and Daisy Carpenter. The contract for the

    work was with Banos Remodeling Services, an unlicensed entity, not the Respondent or his company.

19. The Respondent has been the subject of prior disciplinary actions filed by the Department. He settled such actions without admitting or denying the allegations against him. As to his architectural license, it is undisputed that at all times material to these cases, the Respondent did not hold a valid architect's license.

20. The Petitioner has incurred expenses and costs in the investigation of and the prosecution of the instant cases against this Respondent.

21. The Respondent provided no credible explanation for the failure to complete the work contracted for regarding the Alayon and Piloto homes.

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57, Florida Statutes.

23. The Department bears the burden of proof in this cause to establish by clear and convincing evidence the allegations of the administrative complaints. It has met that burden. The Petitioner has established by clear and convincing evidence multiple violations of the licensing laws.

24. A contractor is required by Section 489.1425, Florida Statutes, to notify a residential property owner of consumer rights under the Construction Industries Recovery Fund. None of the contracts employed by the Respondent in this cause provided the appropriate language.

25. As to the re-roofing work for the Carpenter home, either Respondent failed to qualify the business pursuant to Section 489.119, Florida Statutes, or he wrongly obtained a permit for a non-licensed entity in violation of Section 489.129(1)(f), Florida Statutes. In either event, the Petitioner has established by clear and convincing evidence that the Respondent committed a violation of the licensing law in connection with the Carpenter roof work.

26. In connection with the Piloto project, the Petitioner has established by clear and convincing evidence that the Respondent failed to timely obtain the permit for the work, failed to complete the work, and abandoned the job in violation of Subsections 489.129(1)(h), (k), and (p), Florida Statutes.

27. In connection with the Alayon project, the Petitioner has established by clear and convincing evidence that the Respondent failed to timely obtain the

    permit for the work and abandoned the project without obtaining a final inspection in violation of Subsections 489.129(1)(h) and (k), Florida Statutes.

28. The Respondent's Proposed Recommended Order was not timely filed but has been considered in the preparation of this order. Petitioner's motion in opposition to the Respondent's Proposed Recommended Order is denied. As to the exhibits attached to the Respondent's Proposed Recommended Order, the Petitioner's objection is sustained. The Respondent could have presented such exhibits at hearing. Such exhibits have been retained for identification but have not been received in evidence. They will be forwarded to the Department with the other exhibits with the entry of this order.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Construction Industry Licensing Board, enter a final order sustaining the violations outlined by the Conclusions of Law, imposing an administrative fine in the amount of

$5000.00, requiring the Respondent to make restitution to the Pilotos and Ms. Alayon, requiring the Respondent to

remit the costs of investigation and prosecution of these cases, and revoking the Respondent's license until all amounts are fully paid.

DONE AND ENTERED this 23rd day of October, 2001, in Tallahassee, Leon County, Florida.

______________________________

J. D. PARRISH Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 2001.

COPIES FURNISHED:

Kathleen O'Dowd, Executive Director Construction Industry Licensing Board Department of Business and

Professional Regulation

7960 Arlington Expressway, Suite 300

Jacksonville, Florida 32211-7467

Hardy L. Roberts, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2201

Oscar S. Benitez

3894 Southwest 107th Avenue Miami, Florida 33165

Theodore R. Gay, Esquire Department of Business and

Professional Regulation

401 Northwest Second Avenue Suite N-607

Miami, Florida 33128-1765

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 01-000367PL

Orders for Case No: 01-000367PL