STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD DIVISION I DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, Petitioner, Case No. 2001-03328 VS. OSVALDO MORALES, Respondent. / oe ADMINISTRATIVE COMPLAINT Petitioner, DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, ("Petitioner"), files this Administrative Complaint before the Construction Industry Licensing Board, against OSVALDO MORALES, ("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 C049737. 3. Respondent's last known address is 16808 NW 83" Place, Miami, Florida 33016. 4. On and after November 9, 1995, and at all times material hereto, Respondent was the qualifying agent for Galiano Construction of Miami, Inc. 5. On September 7, 1993 the Florida corporation Galiano Construction of Miami, Inc. was formed by the filing of articles of incorporation with the State of Florida Division of Corporations. On or about May 6, 1995 the Respondent became an officer of that corporation. On September 26, 1997 that corporation was administratively dissolved for failure to file an annual report. The federal employer identification number of the corporation was €5-0433512. 6. On March 11, 1998 articles of incorporation were filed with the State of Florida Division of Corporations creating a new corporation with the same name, Galiano Construction of Miami, Inc., and the same federal employer identification number, 65-0433512, as the corporation described in the immediately preceding paragraph. Filed with those articles of incorporation was the Respondent’s written affirmation that he released the corporate name Galiano Construction of Miami, Inc., and that he had no intention of reinstating that dissolved corporation. At all times material Rafael Yaque a/k/a Rafael Yaques (““Yaque”) wes the sole shareholder, director, and officer of, and exercised actual control of, and operated, the Florida corporation Galiano Construction of Miami, Inc. created March 11, 1998. 7. At all times material Yaque was not licensed to engage in the practice of contracting in the State of Florida. 8. 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 9. Petitioner realleges and incorporates the allegations set forth in paragraphs one through eight as though fully set forth in this Count I. 10. On or about November 8, 1998, Galiano Construction of Miami, Inc. entered into a written contract with Conchita Espinosa (“Customer”) for the construction of a new home at 690 Warren Lane, Key Biscayne, Florida. 11. The contract price was Three Hundred One Thousand, Six Hundred Seventy Nine dollars ($301,679.00). 12, Section 489.1425, Florida Statutes, provides: any agreement or contract for repair, restoration, improvement, or construction to residential real property must contain a written statement explaining the consumet’s rights under the Construction Industries Recovery Fund, except where the value of all labor and materials does not exceed $2,500. 13. The contract did not include a notice explaining the consumer’s rights under the Construction Industries Recovery Fund. 14. Based upon the foregoing, the Respondent violated Section 489.129(1)@), Florida Statutes (1997), by failing in any material respect to comply to with the provisions of this part or violating a rule or lawful order of the board. | COUNT I 15. Petitioner realleges and incorporates the allegations set forth in paragraphs one through eight and ten through thirteen as though fully set forth in this Count I. 16. Section 489.119(6)(b), Florida Statutes, provides: the registration or certification number of each contractor or certificate of authority number for each business organization shall appear in each offer of services, business proposal, bid, contract, or advertisement, regardless of medium, as defined by board rule, used by that contractor or business organization in the practice of contracting. 17. The contract did not include the Respondent’s license number. 18. Based upon the foregoing, the Respondent violated Section 489.129(1)G), Florida Statutes (1997), by failing in any material respect to comply to with the provisions of this part or violating a rule or lawful order of the board. COUNT If 19. Petitioner realleges and incorporates the allegations set forth in paragraphs one through eight, ten through thirteen and sixteen through seventeen as though fully set forth in this Count TH. 20. Section 489.119(2), Florida Statutes, provides: 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 other name 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 the fictitious name, if any. 21. The Respondent failed to obtain a certificate of authority as a qualified business organization for Galiano Construction of Miami, Inc. 22. Based upon the foregoing, the Respondent violated Section 489.129(1)(), Florida Statutes (1997), by failing in any material respect to comply to with the provisions of this part or violating a rule or lawful order of the board. COUNT IV 23. Petitioner realleges and incorporates the allegations set forth in paragraphs one through eight, ten through thirteen, sixteen through seventeen and twenty through twenty one as though fully set forth in this Count IV. 24 From on or about October 12, 1998 through October 28, 1999, the Customer paid Galiano Construction of Miami, Inc. a total of Two Hundred Sixty Nine Thousand, Nine Hundred Thirty Five dollars and Thirty Five cents ($269,935.35) for the construction of the home. 25. Galiano Construction of Miami, Inc. failed to pay Viateur Boulanger, Inc. (“VBI”) © for materials used in the construction of the Customer’s new home, which resulted in a lien in the amount of Fifteen Thousand, Five Hundred Forty One dollars ($15,541 .00) being placed on the Customer’s property. 26. Galiano Construction of Miami, Inc. failed to have the lien removed from the Customer’s property. 27. Onor about December 1999, the Customer terminated the contract and had the house completed by others at a total cost substantially in excess of the contract price. 28. In or around August 2000, VBI filed a lawsuit against the Customer to foreclose the lien on the Customer’s property in Case No. 00-19876 CA 01. 29, Based upon the foregoing, the Respondent violated Section 489.129(1)(h)1, 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 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 aot had the liens removed from the property, by payment or by bond, within 75 days after the date of such liens. COUNT V 30. Petitioner realleges and incorporates the allegations set forth in paragraphs one through eight, ten through thirteen, sixteen through seventeen, twenty through twenty one and twenty four through twenty eight as though fully set forth in this Count V. 31. Galiano Construction of Miami, Inc. used the Respondent’s name and license number to obtain from the Village of Key Biscayne a building permit to build the Customer’s house, permit number 98093015 issued September 21, 1998. 32. The Respondent knew or should have known that Yaque was not properly registered, certified, qualified, or licensed to practice contracting in the State of Florida. 33. Based upon the foregoing, the Respondent violated Section 489.129(1)(e), Florida Statutes (1997), by performing any act which assists a person or entity in engaging in the prohibited uncertified and unregistered practice of contracting, if the certificateholder or registrant knows or has reasonable grounds to know that the person or entity was uncertified and unregistered. COUNT VI 34. Petitioner realleges and incorporates the allegations set forth in paragraphs one through eight, ten through thirteen, sixteen through seventeen, twenty through twenty one, twenty four through twenty eight and thirty one through thirty two as though fully set forth in this Count VL 35, Section 489.127(4), Florida Statutes (1997) prohibits a contractor from agreeing to the use of, or knowingly allowing the use of, the contractor’s license number by a person or business that is not licensed to practice contracting and prohibits a contractor from applying for or obtaining a building permit for construction work for which the contractor has no ccntract. 36. Based upon the foregoing, the Respondent violated Section 489. 129(1)Q), Florida Statutes (1997), by failing in material respect to comply with the provisions of this part or violating a rule or lawful of the board. 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 Yn day of O 2002. TRICK CREEHAN CHIEF CONSTRUCTION ATTORNEY Fl i Regulation tof Business and Professional Depaninen DEPUTY CLERK COUNSEL FOR DEPARTMENT: CLERK COUNSEL FOR DEPARTMENT: Theodore R. Gay Assistant General Counsel Department of Business and ( Professional Regulation »S ~ 401 NW 2 Avenue #N607 Miami, FL 33128 (305) 377-7115 TRG/sb 7/22102 Case #2001-03328 pep + G-24-2C02

Docket for Case No: 03-003358PL