STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD DIVISION I Od UB A DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, Petitioner, vs. Case No. 98-22455 JOHN NESS, Respondent. / . ADMINISTRATIVE COMPLAINT Petitioner, DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, ("Petitioner"), files this Administrative Complaint before the Construction Industry Licensing Board, against JOHN NESS, ("Respondent"), and says: 1. Petitioner is the state agency charged with regulating the practice of contracting pursuant to Section 20.165, Florida Statutes, and Chapters 455 and 489, Florida Statutes. 2. | Respondent is, and has been at all times material hereto, a Certified General Contractor, in the State of Florida, having been issued license number CG C007721. 3. Respondent's last known address is 8100 SW 184 Lane, Miami, Florida 33157. 4. At all times material hereto, Respondent was the licensed qualifier for Ness Construction, Inc. ("Contractor"). 5. Section.489.1195(1)(a), Florida Statutes, provides that all primary qualifying agents for a business organization are jointly and equally responsible for supervision of all operations of the business organization; for all field work at all sites; and for financial matters, both for the organization in general and for each specific job. COUNT I 6. Petitioner realleges and incorporates the allegations set forth in paragraphs one through five as though fully set forth in this Count I. 7. On or about June 13, 1998, the Contractor, dba Ness Native Development, Inc., contracted with Deborah Lesser (“Customer”) to pressure clean and sand two wood decks, replace brick door molding, drain pool and acid wash the pool, remarcite the pool, and remodel a bathroom with the removal and replacement of tile, tub, toilet and vanity at 7606 SW 147 Street, Miami, Florida for Eight Thousand, Seven Hundred Fifteen dollars ($8,715.00). 8. The Customer paid the Contractor Seven Thousand, Seven Hundred dollars ($7,700.00) toward the contract. 9. Section 489.119(2), Florida Statutes, provides: “If the applicant proposes to engage in business as a business organization, including any partnership, corporation, business trust, or other legal entity, or in any name other than 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 a fictitious name, if ” any. 10. At no time material hereto did the Respondent possess a qualified business certificate of authority. lt. Based on the foregoing, the Respondent violated Section 489.129(1)(j), Florida Statutes (1997), by failing in any material respect to comply with the provisions of this part or violating a rule or lawful order of the board. COUNT II 12. Petitioner realleges and incorporates the allegations set forth in paragraphs one through five, seven through ten as though fully set forth in this Count II. 13. Section 489.1425, Florida Statutes, provides that: (1) Any agreement or contract for repair, restoration, improvement, or construction to residential real property must contain a written statement explaining consumer rights under the Construction Industry Recovery Fund, except where the value of all labor and materials does not exceed $2,500.” 14. At no time material hereto did the Contractor provide written notice to the Customer that explained consumer rights under the Construction Industry Recovery Fund. 15. Based on the foregoing, the Respondent violated Section 489.1 29(1)(j), Florida Statutes (1997), by failing in any material respect to comply with the provisions of this part or violating a rule or lawful order of the board. COUNT III 16. Petitioner realleges and incorporates the allegations set forth in paragraphs one through five, seven through ten and thirteen through fourteen as though fully set forth in this Count IT]. 17. | Onor about June 29, 1998, the Contractor commenced work on the Customer’s project. 18. The Contractor failed to obtain the required permit for the Customer’s project. 19. Based on the foregoing, the Respondent violated Section 489.129(1)(p), Florida Statutes (1997), by proceeding on any job without obtaining applicable local building department permits and inspections. COUNT IV 20. Petitioner realleges and incorporates the allegations set forth in paragraphs one through five, seven through ten, thirteen through fourteen and seventeen through eighteen as though fully set forth in this Count IV. 21. Onor about August 31, 1998, the Contractor ceased work on the Customer’s project without just cause or notice to the Customer. 22. Based on the foregoing, the Respondent violated Section 489.129(1)(k), Florida Statutes (1997), 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. COUNT V 23. Petitioner realleges and incorporates the allegations set forth in paragraphs one through five, seven through ten, thirteen through fourteen, seventeen through eighteen and twenty one as though fully set forth in this Count V. 24. At the time the Contractor ceased work on the Customer’s project, the Contractor had not completed the contracted work. 25. Work that the Contractor left undone, includes but is not limited to: pool sanding, pool sealer application, replacement brick molding, thresholds and foam seal for three french doors, and bathroom remodeling. 26. At the time the Contractor ceased work on the Customer’s project, the percentage of completion was less than the percentage of the contract price paid to the Contractor. 27. At the time the Contractor ceased work on the Customer’s project, the Contractor was not entitled to retain excess funds under the terms of the contract. 28. Based on the foregoing, the Respondent violated Section 489.129(1)(h)(2), Florida Statutes (1997), by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Financial mismanagement or misconduct occurs when 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. WHEREFORE, Petitioner respectfully requests the Construction Industry Licensing Board enter an Order imposing one or more of the following penalties: place on probation, reprimand the licensee, revoke, suspend, deny the issuance or renewal of the certificate or registration, require financial restitution to a consumer, impose an administrative fine not to exceed $5,000 per violation, require continuing education, assess costs associated with investigation and prosecution, impose any or all penalties delineated within Section 455.227(2), Florida Statutes, and/or any other relief that the Board is authorized to impose pursuant to Chapters 489, 455, Florida Statutes, and/or the rules promulgated thereunder. Signed this COUNSEL FOR DEPARTMENT: Diane Snell Perera Senior Attorney Department of Bus. & Prof. Reg. 401 NW 2 Avenue #N607 Miami, FL 33128 (305) 377-7115 3/15/00 98-22455 DSP/ms J# day of May , 2000. CakKX £ Aouad CATHLEEN E. O’DOWD LEAD ATTORNEY (PoP) April Ate, 20D Division = : Cyene Summons + Paul MeKitier FILED Department of Business and Professional Regulation DEPUTY CLERK cen Stardmt Michele DATE _5-A24- 2000

Docket for Case No: 00-004549PL