FILED Depa Unent of Business and Professional Kugulation AGENCY CLERK CLERK Sarah Wachman Sue 7/45/2009 File STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD DIVISION I DEPARTMENT .OF. RUSINESS. AND PROFESSIONAL REGULATION, Petitioner, v. : Case No. 20608-014709. RENE A. AVILES D/B/A TOTAL SCREEN, Respondent. / ADMINISTRATIVE COMPLAINT Petitioner, DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, (“Petitioner”), files this Administrative Complaint before the Construcrion Industry Licensing Board, against RENE A. AVILES, (“Respondent”), and says: 1. Petitioner is the state agency charged with regulating the practice of contracting pursuant to Section 20.165, Plorida 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 co C1513065, which is at Présent time in a current and active status. 3. Respondent's last known address of record is 1121 8B 12% Place, Cape Coral, FL 33950. GAQGCiArdelean\Aviles AC 2008-018708 Robinson. lye 1 BP/9E Sod dad 98TbTcbese Se-T 6hae/4e/UT cr:oTt 600¢ 42 450 4. At all times material hereto, Respondent was doing business as A & D Holdings Group, Inc., which has been appropriately qualified as required, recéiving a certificate of authority and license QB53493. A & D Holdings Group, Inc, was engaged at all times material hereto in business under the Fictitious name of Total Screen (“Total Sereen”) 5. At all times material hereto, Respondent was doing ’ business as Full Construction Services, Ine, (“Full Construction”), which has been appropriately qualified as required, receiving a certificate of authority and license QOB6o0l56. 6. Section 489.1195(1) (a), Florida Statutes, provides that all primary qualifying agents for a business organization are jointly and equally yvesponsible 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 “ob. 7. On or about April 3, 2007, Respondent, doing business as Total Soreen, entered into a contract with Ellen Robinson(*Robinson”) to install a new pool enclosure at 2611 NW 105 Lane, Sunrise, Florida. 8. The contract price was $10,363.00, of which amount Robinson has paid a total of $3,108.00 te Respondent. GAOGC\Ardelean\Aviles AC 2008-018709 Robinson.dec 2 Bpfle Sod dad 98TbTcbese Se-T 6hae/4e/UT Spigot 600¢ 42 450 9, Respondent applied for a permit on August 15, 2007, but the plans were rejected on September 5, 2007 and September 28, 2007, respectively. Respondent never corrected the plans nor pulled a permit. 10. Respondent failed to commence construction under the contract, ll. The percentage of contracted work completed was less than the percentage of the contract price paid, 2. Respondent failed to refund any amount of monies paid by Robinson. 13. Robinson did not waive in writing the 30-day period in which Respondent was to apply for a work permit pursuant to Sec. $489,126(2), Florida Statutes. COUNT ONE 14, Petitioner re-alleges and incorporates the allegations set forth in paragraphs 1 through 13 as though fully set forth herein, 15. Section 489.126(2) (a), Florida Statutes, states that a contractor who receives, as initial payment, money totaling more than 10 percent of the contract price for repair, restoration, improvement, or construction to residential real property must apply for permits necessary to do work within 30 days after the GAOGC\Ardeleun\Aviles AC 2008-018709 Robinson.doc 3 BP/BE Fad dad 98TbTcbese Se-T 6hae/4e/UT Sr:ot 600¢ 42 450 Gate payment is made, except where there the work does not require a permit under the applicable codes and ordinances. 16. Based on the foregoing, Respondent violated Section 489.129(1) (1), Florida Statutes, by failing in any material respect to comply with the provisions of Chapter 489, Part I, ‘Florida Statutes, or violating a rule or lawful order of the board, by having violated Section 489.126(2), Florida Statutes, COUNT TWO i7, Petitioner re-alleges and incorporates the allegations set forth in paragraphs 1 through 12 as though fully set forth herein. 18. Based on the foregoing, Respondent violated Section 489.129(1) (g)2, Florida Statutes, 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 that 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 job is abandoned, GAGGCArdelean\a viles AC 2008-018709 Robinson. doc 4 BP/6E Fad dad 98TbTcbese Se-T 6hae/4e/UT Spigot 600¢ 42 450 COUNT THREE 19. Petitioner re-alleges and incorporates the allegations set forth in paragraphs 1 through 13 as though Tully set forth herein, 20, Based on the foregoing, Respondent violated Section 499.129(1) (3), Florida Statutes, by abandoning the construction project in which the contractor is engaged or undér 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, ine¢luding the reason for termination, or fails to perform work without just cause for 90 consecutive days. COUNT FOUR 21, Petitioner re-alleges and incorporates the allegations set forth in paragraphs 1 through 13 as though fully set forth herein. 22. Based on the foregoing, Respondent viclated section 489.129(1)(m), Florida Statutes, by committing incompetence or mismanagement in the practice of contracting. 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 GAOGCiArdelean\Aviles AC 2008-018709 Robinson.doc 3 BP/APp Sod dad 98TbTcbese Se-T 6hae/2e/UT Spigot 600¢ 42 450 renewal of the certificate or registration, require finaneial restitution to a consumer, impose an administrative fine not to exceed $10,000 per violation, require continuing education, 4Ssess costs associated with investigation and prosecution, impose any or all penalties delineated within Section 435.227(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, oy Be o ‘ \ Signed this “Or. day of Bedi , 2009, GS CHARLES W. DRAGO, Secretary Department of Business and Professiopal Regulation fe a . aia Sein Ardelean Assistant General Counsel Florida Bar No: 734853 ®epartment of Business and Professional Regulation Office of the General Counsel 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 (850) 488-0062 Telephone (850) 921-9186 Facsimile By: PCP Date (p-Z25-OQ PCP Members 2, 22 Yo. cs\ Lf or ol) GAOGC\Ardelean\A viles AC 2008-08709 Robingon.doc 6 BP/TP avd dad 98TbTcbese Se-T 6hae/4e/UT RIOT 600¢ 42 450 NOTICE OF RIGHTS Respondent has the right to request a hearing to be conducted in acecerdanee with Sections 120.569 and 120.57, Florida Statutes, to be represented by counsel or other qualified representative, to present evidence and argument, to call and cross-examine witnesses and to have subpoenas and subpoenas duces tecum issued on his or her behalf if a hearing is vequested. Rule 28-106.111, Florida Administrative Code, provides in part that if Respondent fails to request a hearing within twenty-one (21) days of receipt of an agency pleading, Respondent waives the right to request a hearing on the facts alleged. NOTICE REGARDING ASSESSMENT OF COSTS Respondent is placed on notice that Petitioner has incurred costs related to the investigation and prosecution of this matter. Pursuant to Section 455.227(3) (a), Florida Statutes, the Board, or the Department when there is no Board, may assess cests related to the investigation and prosecution of the case excluding costs associated with an attorney's time, against the Respondent in addition to any other discipline imposed, GAOGC\Ardelean\aviles AC 2008-018709 Rabinson,doc 7 BP/ep Fovd dad 98TbTcbese Se-T 6hae/4e/UT RIOT 600¢ 42 450

Docket for Case No: 09-005902