STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, ) CONSTRUCTION INDUSTRY LICENSING ) BOARD, )
)
Petitioner, )
)
vs. ) Case No. 05-1686PL
)
BRET JAYSON BOREK, )
)
Respondent. )
________________________________)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case by video teleconference on July 7 and September 13, 2005, at sites located in Lauderdale Lakes and Tallahassee, Florida, before Errol H. Powell, a designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Theodore R. Gay, Esquire
Department of Business and Professional Regulation
8685 Northwest 53rd Terrace, Suite 100
Miami, Florida 33166
For Respondent: Bret Jayson Borek, pro se
5005 Johnson Street
Hollywood, Florida 33021 STATEMENT OF THE ISSUE
The issue for determination is whether Respondent committed the offenses set forth in the Administrative
Complaint and, if so, what action should be taken.
PRELIMINARY STATEMENT
On September 9, 2004, the Department of Business and Professional Regulation, Construction Industry Licensing Board (Department) filed a four-count Administrative Complaint against Bret Jayson Borek (Mr. Borek). The Department charged Mr. Borek with the following: Counts I and II--violating Section 489.129(1)(i), Florida Statutes (2001), by failing in a material respect to comply with the provisions of Section
489.129 or violating a rule or lawful order of the board; Count III--violating Section 489.129(1)(m), Florida Statutes (2001), by committing incompetency or misconduct in the practice of contracting; and Count IV--violating Section 489.129(1)(j), Florida Statutes (2001), by abandoning a construction project in which the contractor is engaged or under contract as a contractor--a project may be presumed abandoned after 90 days if the contractor terminates the project without just cause or without proper notification to the owner, including the reason for termination, or fails to perform work without just cause for 90 consecutive days.
Mr. Borek filed an Election of Rights form disputing the material allegations of fact in Counts I, III, and IV, and requesting a hearing. On May 12, 2005, this matter was referred to the Division of Administrative Hearings.
At hearing, the Department presented the testimony of three witnesses and entered thirty-two exhibits (Petitioner's Exhibits numbered 1-32) into evidence. Mr. Borek testified on his own behalf and entered one exhibit (Respondent's Exhibit numbered 1) into evidence.
A transcript of the hearing was ordered. At the request of the parties, the time for filing post-hearing submissions was set for ten days following the filing of the transcript. The Transcript, consisting of two volumes, was filed on
July 22 and September 22, 2005. The Department timely filed its post-hearing submission. Mr. Borek filed his post-hearing submission beyond the ten-day submission period and, simultaneously, filed a pleading, with an exhibit, indicating that he relied upon the representation of the Department as to when he was required to file his post-hearing submission, which was beyond the ten-day submission period. The Department did not file a response to Mr. Borek's pleading or representation. As a result, the undersigned considers
Mr. Borek's pleading as an agreement by the parties to extend the ten-day submission period, and his post-hearing submission is accepted as timely filed.
The parties' post-hearing submissions have been considered in the preparation of this Recommended Order.
FINDINGS OF FACT
At all times material hereto, Mr. Borek was licensed by the Department as a certified general contractor, having been issued license number CG C 58817. He was licensed on November 18, 1996.
At all times material hereto, Mr. Borek was the qualifying agent of Atlantic Coast General Contractors, Inc. (ACGC), a Florida corporation, and has been its president.
ACGC was issued a certificate of authority as a contractor qualified business on June 2, 1977, having been issued license number QB 07357. ACGC's license expired on September 1, 2001 and became null and void on September 1, 2003.
The State of Florida, Department of State, administratively dissolved ACGC, as a corporation, on
October 1, 2004, for its failure to file its annual report, as required by law; and, as a result, ACGC's authority to transact business, as a corporation, in the State of Florida was revoked on the same date.
At all times material hereto, Tracey Meredith (Ms. T. Meredith) resided in and owned a home located at 7690 Northwest 16th Court, Pembroke Pines, Florida. Ms. T. Meredith wanted her mother, Jane Meredith1 (Ms. J. Meredith), to live with her so Ms. T. Meredith decided to have an
addition built to her home, consisting of a bedroom, bathroom, and closet.
Ms. T. Meredith obtained a proposal from ACGC and five other contractors for the addition. Each contractor was aware of the purpose of the addition. Ms. T. Meredith decided to contract with ACGC, which was not the lowest or the highest bidder, but was somewhat in the middle.
On June 28, 2002, a Proposal/Contract (Contract) was executed with ACGC for the addition at a cost of $32,925.00. Even though the Contract showed Ms. T. Meredith as the contracting party, it was signed by Ms. J. Meredith because she (Ms. J. Meredith) was actually paying for the addition and signing the checks. Both Mses. T. Meredith and J. Meredith were in agreement with the Contract. The Contract provided, among other things, that the addition was 15 x 21; and that the payments would be as follows: 20% at acceptance of the Contract, 20% at permit issuance, 10% at slab, 20% at wall and roof framing, 10% at roof completion, 10% at finished walls and flooring, and 10% at final completion.
No dispute exists that the cost of the Contract was reasonable.
No dispute exists that the Contract failed to contain a provision explaining the consumer's rights under the Florida Homeowners' Construction Recovery Fund, formerly known as the
Construction Industries Recovery Fund.
No dispute exists that the Contract did not provide a date for completion of the addition.
Regarding a completion date for the addition, Ms. T. Meredith testified that all the other proposals provided that the addition would be completed within six to eight weeks and that, at the beginning, Mr. Borek orally communicated to her that the addition would be completed by ACGC within six to eight weeks. To the contrary, Mr. Borek testified that, at the beginning, no completion date was given to her, either orally or in writing. None of the other proposals were submitted into evidence, only the Contract with Mr. Borek, which did not provide a completion date. It would not be reasonable for Ms. T. Meredith to accept Mr. Borek's proposal without it’s being within the time period of completion of the other proposals. The undersigned finds Ms. T. Meredith's testimony more credible and makes a finding of fact that, at the time of the signing of the Contract, Mr. Borek made an oral representation that the addition would be completed by ACGC within six to eight weeks.
An expert in the field of general contracting, John
Yanoviak (Mr. Yanoviak), testified on behalf of the Department. The undersigned finds his testimony credible, except as specifically indicated.
A reasonable amount of time to complete the addition was a maximum of three months.
Mr. Borek, as the contractor, was responsible for keeping the project timely and for quality control.
On June 30, 2002, Ms. J. Meredith wrote a check, payable to ACGC, in the amount of $6,585.00. This amount was
20 percent of the contracted cost for the addition. No dispute exists that this check was written and presented to Mr. Borek. Paying this amount was in accordance with the Contract.
Mr. Borek filed an application for a building permit with the City of Pembroke Pines (CPP) on or about July 3, 2002. The building permit was issued by CPP on or about October 25, 2002. Work on the addition was commenced before the issuance of the building permit.
Ms. T. Meredith was aware of the date that the building permit was issued. Prior to the issuance of the building permit, Ms. T. Meredith complained to Mr. Borek regarding the addition’s not being completed. No evidence was presented to show that Ms. T. Meredith indicated to Mr. Borek that, by his failure to complete the addition within a six-to- eight-week period, he was not abiding by the Contract. No evidence was presented to show that she indicated her dissatisfaction to the degree of possibly terminating the
Contract with ACGC.
On November 12, 2002, Ms. J. Meredith wrote a check, payable to ACGC, in the amount of $6,585.00. This amount was paid after Mr. Borek obtained the building permit and was 20 percent of the contracted cost for the addition. No dispute exists that this check was written and presented to Mr. Borek. Paying this amount was in accordance with the Contract.
On December 11, 2002, Ms. J. Meredith wrote a check, payable to ACGC, in the amount of $6,885.00. This amount was
$300.00 more than 20 percent of the contracted cost for the addition. No dispute exists that this check was written and presented to Mr. Borek. An inference is drawn and a finding is made that this check was written in advancing of the addition.
According to the records of the CPP's building department2 (Records), a CPP form for a revision to the addition was submitted on January 6, 2003, providing for an electrical change to the addition. Further, the Records indicate that, on March 20, 2003, an application for an electrical permit was submitted and that, on March 24, 2003, the permit was approved.
Also, a revision to the plans of the addition was submitted to the CPP by the architect to the addition, Hernando Acosta, according to the Records. The Records
indicate that the revision to the plans was dated January 30, 2003 by Mr. Acosta, that the revision was submitted on February 7, 2003, and that the revision was approved on February 11, 2003 by the CPP.
In addition, in February 2003, Ms. T. Meredith received written communication from the CPP regarding a problem with the addition. Ms. T. Meredith received a copy of a letter from the CPP to Mr. Borek, dated February 18, 2003. The letter indicated, among other things, that the CPP had issued a "stop work status" on the addition due to Mr. Borek’s having issued a check, payable to the CPP, in the amount of
$135.80, which was dishonored.
Another revision, according to the Records, was submitted on March 27, 2003, regarding the trusses. The Records indicate that the revision was approved on April 17, 2003.
Ms. T. Meredith became more dissatisfied with the progress toward completion on the addition by Mr. Borek to the point that she filed a complaint with the Department on
May 21, 2003.
In May 2003, Ms. T. Meredith received written communication from the CPP regarding a problem with the addition. By letter dated May 22, 2003, she received notification from the CPP, as information only, that a code
violation had not been corrected within the allowable ten-day period, together with a copy of CPP's letter to Mr. Borek, dated May 22, 2003, of his failure to correct the code violation. The letter to Mr. Borek indicated, among other things, that Mr. Borek had until June 11, 2003 to correct the violation, identifying the inspection date and the violation.
By a letter dated May 28, 2003, Ms. T. Meredith advised Mr. Borek, among other things, that he had seven days to continue with the work on the addition in accordance with the Contract or else the Contract would be considered by her to be "null and void"; that, if he did not do so, she would be "forced" to hire another contractor, with Mr. Borek being held financially responsible for completion of the addition; and that the Contract was to be completed within six to eight weeks.
On June 12, 2003, Mr. Borek contacted the investigator for the Department regarding the complaint filed by Ms. T. Meredith. Among other things, Mr. Borek informed the investigator that he (Mr. Borek) was willing to complete the addition in 30 days. By his representation, Mr. Borek indicated that he would complete the addition on or about July 12, 2003.
By a letter dated June 18, 2003, Mr. Borek notified
the
investigator, among other things, that he was working "diligently" to complete the addition.
Mr. Borek failed to complete the addition within the 30-day period, as he had represented to the Department's investigator.
The Records indicate that an application for a building permit, involving the roof to the addition, was submitted on June 25, 2003. The permit was issued, according to the Records, on July 30, 2003.
Further, the Records indicate that a revision, regarding the size of a window and the elimination of a door, was submitted on July 8, 2003, and approved on July 9, 2003.
In July 2003, Ms. T. Meredith received another written communication from the CPP regarding a problem with the addition. By letter dated July 9, 2003, she received notification from the CPP, as information only, that a code violation had not been corrected within the allowable ten-day period, together with a copy of CPP's letter to Mr. Borek, dated July 9, 2003, of his failure to correct the code violation. The letter to Mr. Borek indicated, among other things, that Mr. Borek had until July 28, 2003, to correct the violation, identifying the inspection date and the violation.
In addition, in July 2003, Ms. T. Meredith received
written communication from the CPP regarding another problem with the addition. She received a copy of a letter from the CPP to Mr. Borek, dated July 18, 2003, which indicated, among other things, that the CPP had issued a "stop work status" on the addition due to Mr. Borek having issued a check, payable to the CPP, in amount of $76.23, which was dishonored.
Even though Mr. Borek failed to complete the addition within the 30-day period that he had represented to the Department's investigator and even though Ms. T. Meredith had received notification of the problems at the jobsite from the CPP, on September 10, 2003, Ms. J. Meredith wrote a check, payable to ACGC, in the amount of $4,000.00. No dispute exists that this check was written and presented to Mr. Borek. An inference is drawn and a finding is made that this check was written in furtherance of the addition.
ACGC had been paid a total of $24,055.00 of the Contract cost of $32,925.00, which was approximately 73 percent of the Contract cost. The balance of the Contract cost was $8,870.00.
Mr. Borek testified that, at the time of the writing of the check for $4,000.00, he and Ms. T. Meredith agreed that he would have until on or about November 15, 2003 to complete the project. Ms. T. Meredith testified that no such agreement was made. At the time of the check for $4,000, ACGC was
almost 60 days beyond the completion date represented to the Department's investigator. No testimony was presented as to why the $4,000.00 was paid to ACGC in light of such a considerable delay in completing the job by ACGC and in light of the complaint being filed with the Department. Due to the lack of an explanation for the payment of the $4,000.00 to ACGC in furtherance of the project, Mr. Borek's testimony presents a reasonable explanation. Therefore, Mr. Borek's testimony is found to be credible. Hence, a finding is made that, on or about September 10, 2003, Mr. Borek and Ms. T. Meredith orally agreed that ACGC would have until on or about November 15, 2003, to complete the addition.
Ms. T. Meredith continued to be dissatisfied with the progress on the addition by ACGC. Sometime after September 10, 2003, an incident occurred which caused her to reach the conclusion that she could not allow ACGC to continue working on the project. One day when she left for work, one of ACGC's workers was painting the exterior walls. When she returned from work later that same day, the same worker for ACGC was painting the exterior walls. Ms. T. Meredith immediately directed the worker to leave and to take all of his equipment with him; the worker did so.
Ms. T. Meredith contacted Mr. Borek and informed him that she would not allow him to continue with the project.
Mr. Borek repeatedly requested Ms. T. Meredith to allow him to continue with the project, but she refused.
By letter dated October 9, 2003, Ms. T. Meredith terminated the Contract with ACGC. She mailed the letter on the same date and faxed it on October 14, 2003. Her mother was in agreement with terminating the Contract. Ms. T. Meredith indicated, among other things, in her letter to ACGC that its failure to complete the addition as of the date of the letter, when the oral agreement was completion within six to eight weeks, left her no choice but to terminate the Contract. Ms. T. Meredith included in the letter, among other things, what remained to be completed on the project and a cost of $539.55 for damaged items at her home caused by ACGC, with an itemized list.
At the time of the termination, the following work remained to be completed: purchase and installation of plumbing fixtures; sewer hookup; molding; tile work in the bathroom; installation of storm panels and flooring; some painting; installation of an air conditioner; some electrical connections; and installation of an electrical panel, electric wall plates, and an electric light fixture.
Ms. T. Meredith obtained a homeowner's permit and hired someone, Adam Friedman, to assist her in completing the addition. On December 15, 2003, the CPP issued a certificate
of occupancy to her.
As to expenditures by Mses. T. and J. Meredith in order to complete the addition, the undersigned finds the testimony of Mr. Yanoviak credible. Mses. T. and J. Meredith expended $19,170.52 to complete the addition. The expenditures for completion were reasonable and necessary. Not included in the expenditures for completion are the following: $3,941.31 for items not included in the Contract--a fence, pavers, wood floor, upgraded bathroom fixtures or accessories, closet woodwork and various Home Depot items (totaling $238.21); $250.00 for mill work associated with chair rails; and $2,400.00 for an exterior concrete slab. Included in the expenditures for completion is the following:
$1,360.00 for a split-system air conditioning unit which was not installed by ACGC. Further, included in the cost of expenditures is an adjustment in favor of Ms. T. Meredith in the amount of $1,000.00 for the elimination of a window on the west elevation of the addition, which was orally agreed to by Ms. T. Meredith and Mr. Borek after the signing of the Contract and which would have been subtracted from the cost of the Contract.
After Ms. T. Meredith terminated the Contract, she filed a claim under the Construction Industries Recovery Fund. The claim was dated October 10, 2003, one day after she
terminated the Contract. Ms. T. Meredith set forth in the claim that she was requesting $12,000.00, which she indicated was the amount to pay another contractor to complete the project. The undersigned places very little weight upon the amount requested because the claim is prior to completing the project and fails to reflect the actual costs involved in completing the project, which were realized only after completion.
Damage to items at Ms. T. Meredith's home occurred, during the work being performed by ACGC, for which ACGC was responsible. The following items were affected: damaged a window magnet that was part of the home's security system at
$80.00; destroyed, broken, or thrown away one large planter pot, one archway, and two large stepping stones--all at an estimate of $440.34; and broken tiles in the front of the house at $13.57. The damages totaled $533.91.
At the time of the hearing, Mr. Borek had not made any payments to Ms. T. Meredith or Ms. J. Meredith for their expenditures to complete the addition or for the damages.
At the time of the termination, in accordance with the oral agreement of completion by on or about November 15, 2003, ACGC had a little over 30 days to complete the addition. In light of the finding that an oral agreement had been reached to allow ACGC until on or about November 15, 2003, to
complete the addition and in light of the only incident since that agreement, presented by the evidence, was the situation involving ACGC's painter, the undersigned finds that the painting situation was not substantial and that, therefore, the termination on October 9, 2003, prior to the new agreed- upon termination date, was unreasonable.
Ms. T. Meredith testified that, sometime during the middle of the year 2003, for a period of "exactly" 60 days, ACGC failed to perform any work at the project. Mr. Borek denies her assertion. Ms. T. Meredith testified that she kept records on everything. When she testified as to an exact 60- day period in the middle of 2003 during which no work was being done at the project, Ms. T. Meredith did not point to any of her records to verify the assertion or provide certain beginning and ending dates. Taking into consideration the standard of proof and the burden of proof, the evidence failed to show clearly and convincingly that no work was done at the jobsite by ACGC for a period of 60 days in the middle of the year 2003.
Nothing was done by Ms. T. Meredith, the architect, or CPP to delay the completion of the project.
Mr. Borek admits that he had other jobs in progress when he was working on the addition. He further admits that when changes had to be made to the project, whether by the CPP
or the architect or Ms. T. Meredith or himself, he had to re- arrange his schedule to accommodate the other jobs, which included re-deploying his workers and subcontractors, which in turn caused delays.
Further, Mr. Borek admits that the turnaround time for any changes given to the architect for the plans to the addition was reasonable and that the turnaround time for the CPP to review the changes to the plans submitted by the architect was reasonable. Consequently, no unreasonable or inordinate delays were caused by the architect or the CPP when changes were made to the plans of the addition.
Mr. Borek performed some work for Ms. T. Meredith at no cost that was not required by the Contract. The extra work at no cost included the following: the removal of trees; pouring of an exterior concrete slab; and plastering of drywall.
The slow progress in completing the Contract was significant and material and resulted in the Contract’s not being performed in a reasonable time. The delays in completion of the addition were significant and were the fault of Mr. Borek. In addition to re-deploying workers for other jobs on which ACGC was working, ACGC failed to properly perform work, which resulted in failed inspections by the CPP, which resulted in numerous delays, and failed to timely obtain
an electrical permit.
As to the failure to timely obtain an electrical permit, the electrical permit was obtained almost five months subsequent to the issuance of the building permit by the CPP. The electrical permit was applied for on March 20, 2003 and approved on March 24, 2003. CPP's turnaround time in approving the permit was short and inconsequential.
As to the failure to properly perform work, the Records indicate construction defects, which were under
Mr. Borek's, the contractor's, control and which resulted in failed inspections. Furthermore, the Records indicate prior construction faults, identified in inspections, not being timely corrected, which was under Mr. Borek's control and which resulted in delays until the faults were corrected.
Mr. Yanoviak testified that failure to perform the Contract within a reasonable time constituted misconduct. The undersigned finds his testimony credible. A finding of fact is made that the failure to perform the Contract within a reasonable time constituted misconduct.
Additionally, Mr. Yanoviak testified that the failure to perform the Contract within a reasonable time constituted a material breach of the Contract. The undersigned finds his testimony credible, and a finding of fact is made that the failure to perform the Contract within a
reasonable time constituted a material breach of the Contract.
Further, Mr. Yanoviak testified that, such material breach, justified terminating the Contract. The undersigned finds his testimony credible only as to a general application and, therefore, a finding of fact is made that, generally, the failure to perform a construction contract within a reasonable time would justify terminating the construction contract but does not justify terminating the Contract under the circumstances presented in the instant case. Both Mr. Borek and Ms. T. Meredith orally agreed to a new date for completion of the addition, i.e., on or about November 15, 2003. To disregard the new date of completion would be manifestly unjust. Furthermore, at the time of the termination of the Contract by Ms. T. Meredith, i.e., on October 9, 2003, the termination was unreasonable and not for just cause. Hence, a finding of fact is made that termination of the Contract by Ms. T. Meredith, prior to the new completion date, was not justified.
Mr. Yanoviak also testified that failure to perform
the Contract within a reasonable time constituted abandonment of the project. The undersigned finds his testimony credible only as to general application and, therefore, a finding of fact is made that, generally, the failure to perform a construction contract within a reasonable time would
constitute abandonment of a project. However, as found above, a new date for completion of the project was orally agreed upon and the new date had not expired at the time of the termination of the Contract by Ms. T. Meredith. Hence, a finding of fact is made that, under the circumstances of the instant case, abandonment did not exist.
The Department presented evidence of costs for the investigation and prosecution of this matter, excluding costs associated with attorney time. As of July 5, 2005, the costs for the investigation and prosecution totaled $880.18.
As to prior disciplinary action, on September 9, 2004, the Department filed a Final Order in Department of Business and Professional Regulation vs. Bret Jayson Borek, Case No. 2003-069533, License No. CG Co58817 before the Construction Industry Licensing Board. In that case, an administrative complaint was filed against Mr. Borek for violating Section 489.129(1)(i), Florida Statutes (2001), by failing to comply in a material respect with a provision of Chapter 489, Florida Statutes, through the failure to obtain a certificate of authority for ACGC; and for violating Section 489.129(1)(q), Florida Statutes (2001), by failing to satisfy a civil judgment, related to the practice of construction, within a reasonable time. Mr. Borek waived his rights to an informal hearing, and no material fact was disputed. Among
other things, the Final Order imposed an administrative fine of $1,000.00, required restitution of $15,218.94 to a roofing and sheet metal company and required payment of $506.92 for investigative costs.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of these proceedings and the parties thereto pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes (2005).
License revocation proceedings are penal in nature.
The burden of proof is on the Petitioner to establish by clear and convincing evidence the truthfulness of the allegations in the Administrative Complaint. Department of Banking and Finance, Division of Securities and Investor Protection v.
Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
A licensee is charged with knowing the practice act that governs his/her license. Wallen v. Florida Department of Professional Regulation, Division of Real Estate, 568 So. 2d 975 (Fla. 3d DCA 1990).
Section 489.129, Florida Statutes (2001) and (2002), provides grounds for disciplinary action and provides in pertinent part:
The board may take any of the following actions against any certificate
holder or registrant: place on probation or reprimand the licensee, revoke, suspend, or deny the issuance or renewal of the certificate, registration, or certificate of authority, require financial restitution to a consumer for financial harm directly related to a violation of a provision of this part, impose an administrative fine not to exceed $5,000 per violation, require continuing education, or assess costs associated with investigation and prosecution, if the contractor, financially responsible officer, or business organization for which the contractor is a primary qualifying agent, a financially responsible officer, or is a secondary qualifying agent responsible under s.
489.1195 is found guilty of any of the
following acts:
* * *
Failing in any material respect to comply with the provisions of this part or violating a rule or lawful order of the board.
Abandoning a construction project in which the contractor is engaged or under contract as a contractor. A project may be presumed abandoned after 90 days if the contractor terminates the project without just cause or without proper notification to the owner, including the reason for termination, or fails to perform work without just cause for 90 consecutive days.
* * *
(m) Committing incompetency or misconduct in the practice of contracting.
Section 489.119, Florida Statutes (2001) and (2002), entitled "Business organizations; qualifying agents," provides in pertinent part:
(2) If the applicant proposes to engage in contracting as a business organization, including any partnership, corporation, business trust, or other legal entity, or in any name other than in the applicant's legal name or a fictitious name where the applicant is doing business as a sole proprietorship, the business organization must apply for a certificate of authority through a qualifying agent and under the fictitious name, if any.
* * *
(d) A certificate of authority must be renewed every 2 years. If there is a change in any information that is required to be stated on the application, the business organization shall, within 45 days after such change occurs, mail the correct information to the department.
Section 489.1425, Florida Statutes (2001) and (2002), provides in pertinent part:
Any agreement or contract for repair, restoration, improvement, or construction to residential real property must contain a written statement explaining the consumer's rights under the Construction Industries Recovery Fund, except where the value of all labor and materials does not exceed
$2,500. The written statement must be substantially in the following form:
CONSTRUCTION INDUSTRIES RECOVERY FUND
PAYMENT MAY BE AVAILABLE FROM THE CONSTRUCTION INDUSTRIES RECOVERY FUND IF YOU LOSE MONEY ON A PROJECT PERFORMED UNDER CONTRACT, WHERE THE LOSS RESULTS FROM SPECIFIED VIOLATIONS OF FLORIDA LAW BY A STATE-LICENSED CONTRACTOR. FOR INFORMATION ABOUT THE RECOVERY FUND AND FILING A CLAIM, CONTACT THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD AT THE FOLLOWING TELEPHONE NUMBER AND ADDRESS:
The statement shall be immediately followed by the board's address and telephone number as established by board rule.
(2)(a) Upon finding a first violation of subsection (1), the board may fine the contractor up to $500, and the moneys must be deposited into the Construction Industries Recovery Fund.
(b) Upon finding a second or subsequent violation of subsection (1), the board shall fine the contractor $1,000 per violation, and the moneys must be deposited into the Construction Industries Recovery Fund.
As to Count I of the Administrative Complaint in the instant case, the evidence shows that the certificate of authority for ACGC expired on September 1, 2001, and remained in an expired-status throughout the construction of the addition by ACGC until the certificate of authority became null and void on September 1, 2003; and that ACGC continued to work on the addition beyond September 1, 2003. The Department demonstrated by clear and convincing evidence that Mr. Borek violated Section 489.129(1)(i), Florida Statutes (2001) and (2002).
As to Count II, Mr. Borek did not dispute this Count in his Election of Rights form. Furthermore, the evidence shows that the Contract failed to contain a provision advising the consumers, Mses. T. Meredith and J. Meredith, of their rights under the Construction Industries Recovery Fund. The Department demonstrated by clear and convincing evidence that
Mr. Borek violated Section 489.129(1)(i), Florida Statutes (2001) and (2002).
As to Count III, the evidence shows that the numerous and considerable delays on the project were the fault of Mr. Boren; that the failed inspections were the fault of Mr. Boren; and that Mr. Borek was the cause of the addition not being completed by ACGC after more than 14 months when it should have been completed by ACGC in a maximum of three months. As a result, the evidence clearly and convincingly shows that Mr. Borek committed misconduct in the practice of contracting. Hence, the Department demonstrated by clear and convincing evidence that Mr. Borek violated Section 489.129(1)(m), Florida Statutes (2001) and (2002).
As to Count IV, the evidence shows that an oral agreement between Ms. T. Meredith and Mr. Borek extended the date of completion to on or about November 15, 2003; that Ms. T. Meredith terminated the Contract on October 9, 2003; and that the termination was unreasonable and without just cause. As a result, the evidence fails to clearly and convincingly show that Mr. Borek abandoned the project. Hence, the Department failed to demonstrate by clear and convincing evidence that Mr. Borek violated Section 489.129(1)(j), Florida Statutes (2001) and (2002).
Regarding penalty, Florida Administrative Code Rule 61G4-17.001 provides in pertinent part:
The following guidelines shall be used in disciplinary cases, absent aggravating and
mitigating circumstances and subject to other provisions of this Chapter.
* * *
(i) 489.129(1)(i), F.S.: Failing in any material respect to comply with the provisions of Part I of Chapter 489, F.S.
* * *
4. Section 489.1425, F.S.: Failure to notify residential property owner of recovery fund. First violation, $100 to
$500 fine; repeat violation $1,000 fine.
* * *
8. Section 489.119, F.S.: Failure to register qualified business organization.
. . . repeat violation, $500 to $1,000 fine and suspension or revocation.
* * *
(j) Section 489.129(1)(j), F.S.:
Abandonment. First violation, $500 to
$2,000 fine; repeat violation, revocation and $5,000 fine.
* * *
(m) Misconduct or incompetency in the practice of contracting, shall include, but is not limited to:
* * *
4. The following guidelines shall apply to cases involving misconduct or incompetency
in the practice of contracting, absent aggravating or mitigating circumstances:
* * *
c. Any other form of misconduct or incompetency. First violation, $250 to
$1,000 fine and/or probation; repeat violations, $1,000 to $5,000 fine and suspension or revocation.
* * *
For any violation occurring after October 1, 1989, the board may assess the costs of investigation and prosecution.
The assessment of such costs may be made in addition to the penalties provided by these guidelines without demonstration of aggravating factors set forth in Rule 61G4- 17.002.
For any violation occurring after October 1, 1988, the board may order the contractor to make restitution in the amount of financial loss suffered by the consumer. Such restitution may be ordered in addition to the penalties provided by these guidelines without demonstration of aggravating factors set forth in rule 61G4- 17.002, and to the extent that such order does not contravene federal bankruptcy law.
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. The Guideline penalty for the offense most closely resembling the omitted violation shall apply.
Florida Administrative Code Rule 61G4-17.002 provides in pertinent part:
Circumstances which may be considered for purposes of mitigation or aggravation of
the 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 the licensee had 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 danger to the public.
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.
Florida Administrative Code Rule 61G4-17.003, entitled "Repeat Violation," provides:
As used in this rule, a repeat violation is any violation on which disciplinary action is being taken where
the same licensee had previously had disciplinary action taken against him or received a letter of guidance in a prior case; and said definition is to apply regardless of whether the violations in the present and prior disciplinary actions are of the same or different subsections of the disciplinary statutes.
The penalty given in the above list for repeat violations is intended to apply only to situations where the repeat violation is of a different subsection of Chapter 489 than the first violation. Where, on the other hand, the repeat violation is the very same type of violation as the first violation, the penalty set out above will generally be increased over what is otherwise shown for repeat violations in the above list.
Further, Section 455.227, Florida Statutes (2001) and (2002), provides in pertinent part:
When the board, or the department when there is no board, finds a person guilty of the grounds set forth in subsection (1) or of any grounds set forth in the applicable practice act, including conduct constituting a substantial violation of subsection (1) or a violation of the applicable practice which occurred prior to obtaining a license, it may enter an order imposing one or more of the following penalties:
Refusal to certify, or to certify with restrictions, an application for a license.
Suspension or permanent revocation of a license.
Restriction of practice.
Imposition of an administrative fine not to exceed $5,000 for each count or separate offense.
Issuance of a reprimand.
Placement of the licensee on probation for a period of time and subject to such conditions as the board, or the department
when there is no board, may specify. Those conditions may include, but are not limited to, requiring the licensee to undergo treatment, attend continuing education courses, submit to be reexamined, work under the supervision of another licensee, or satisfy any terms which are reasonable tailored to the violations found.
Corrective action.
(3)(a) In addition to any other discipline imposed pursuant to this section or discipline imposed for a violation of any practice act, the board, or the department when there is no board, may assess costs related to the investigation and prosecution of the case excluding costs associated with the attorney's time.
The Department suggests that aggravating factors dictate a harsh penalty for Mr. Borek. The aggravating factors as set forth by the Department are as follows: the monetary damage to Mses. T. Meredith and J. Meredith and Mr. Borek's failure to pay any of the monies to them at the time of hearing; and Mr. Borek's prior disciplinary action. As to the monetary damages, the undersigned has determined that no abandonment occurred and, therefore, the monetary
damages remaining would be for the damage to the items during the construction, which amounted to $550.00; and these damages, Mr. Borek has not attempted to pay. Regarding the prior disciplinary action, one of the counts is identical to Count I of the instant case. These two factors should be considered aggravating factors.
Another aggravating factor to consider is the danger to the public. The evidence shows that Mr. Borek has little regard for the consumer. Even though the evidence fails to show that he abandoned the project, the evidence shows that, in more than 14 months, Mr. Borek had not completed a maximum three-month project, approximately 11 months beyond the reasonable completion date, but he had approximately 73 percent of the Contract cost; and that the delay in completion was his fault. Mr. Borek is a danger to the public.
Regarding Count I, the Department suggests an administrative fine of $1,000.00 and revocation of Mr. Borek's license. The Department's suggested penalty is reasonable.
Regarding Count II, the Department suggests an administrative fine of $500.00. The Department's suggested penalty is reasonable.
Regarding Count III, the Department suggests an administrative fine of $5,000.00 and revocation of Mr. Borek's license. The Department's suggested penalty is reasonable.
Regarding Count IV, the undersigned has determined that no violation was committed as to this Count and, therefore, it is not necessary to address the Department's suggestion that Counts III and IV do not merit separate penalty assessments because the two counts are based on essentially the same conduct.
Further, the Department suggests that Mr. Borek pay restitution to Mses. T. Meredith and J. Meredith in the amount of $10,300.52, which represents the cost to complete the addition, i.e., $19,170.52, minus the unpaid balance of the Contract, i.e., $8,870.00. In the instant case, restitution is not appropriate. Even though the numerous and considerable delays and the failed inspections were the fault of Mr. Borek, he and Ms. T. Meredith had agreed to a new completion date for the addition; but Ms. T. Meredith terminated the Contract prior to the new agreed-upon date for completion, without reasonable and just cause. The Construction Industry Licensing Board's discretion should be exercised not to require restitution.
Also, the Department suggests Mr. Borek pay the costs of investigation and prosecution, totaling $880.18.
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:
Finding that Bret Jayson Borek committed the violations set forth in Counts I, II, and III;
Dismissing Count IV; and
Imposing the following penalties:
As to Count I, an administrative fine in the amount of $1,000.00 and revocation of the license of Bret Jayson Borek.
As to Count II, an administrative fine in the amount of $500.00.
As to Count III, an administrative fine in the amount of $5,000.00 and revocation of the license of Bret Jayson Borek.
S
DONE AND ENTERED this 9th day of January, 2006, in Tallahassee, Leon County, Florida.
_______________________________ ERROL H. POWELL
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 9th day of January, 2006.
ENDNOTES
1/ Jane Meredith did not testify at hearing.
2/ No representative from the building department of the CPP testified at hearing.
COPIES FURNISHED:
Theodore R. Gay, Esquire Department of Business and
Professional Regulation
8685 Northwest 53rd Terrace, Suite 100
Miami, Florida 33166
Bret Jayson Borek 5005 Johnson Street
Hollywood, Florida 33021
Josefina Tamayo, General Counsel Department of Business and
Professional Regulation 1940 North Monroe Street
Tallahassee, Florida 32399-2202
Tim Vaccaro, Director
Construction Industry Licensing Board Department of Business and
Professional Regulation 1940 North Monroe Street
Tallahassee, Florida 32399-0792
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.
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 01, 2006 | Agency Final Order | |
| Jan. 09, 2006 | Recommended Order | Respondent failed to have a current certificate of authority; failed to include the consumer`s rights provision in the contract; and committed misconduct, but did not abandon the project. Recommend administrative fine of $6,500 and revocation of license. |
CONSTRUCTION INDUSTRY LICENSING BOARD vs JULIUS S. BAKER, 05-001686PL (2005)
CONSTRUCTION INDUSTRY LICENSING BOARD vs. DAVID R. KNIGHT, 05-001686PL (2005)
CONSTRUCTION INDUSTRY LICENSING BOARD vs. JAMES J. HASTINGS, 05-001686PL (2005)
CONSTRUCTION INDUSTRY LICENSING BOARD vs. JACK A. MARTIN, 05-001686PL (2005)
