FILED of Business ano Professional AGENCY CLERK STATE OF FLORIDA Ciera: Ravi. ye DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATI] pote 2/6/2017 Filo # DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, Petitioner, v. Case No. 2015-028596 FRANK A. DIAZ, Respondent. f ADMINISTRATIVE COMPLAINT The Department of Business and Professional Regulation (“Petitioner”) files this Administrative Complaint before the Construction Industry Licensing Board, Division I & I, against Frank A. Diaz (“Respondent”), and alleges: 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 At all times material hereto, Respondent was licensed as a Certified Building Contractor and Certified Roofing Contractor in the State of Florida, having been issued license numbers CBC 17239 & CCC 1330540. 3. Respondent's address of record is 213 Morrison Road, Brandon, Florida 33511. 4. At all times material hereto, Respondent was the primary qualifying agent of FA Diaz Construction, Inc. d/b/a Invincible Home Improvements. (“Invincible”). 3; 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. 6. On or about September 11, 2013, Vera Wood (“Complainant”) entered into multiple contracts, for compensation, with Invincible for construction contracting services to be performed at Complainant’s residence, located at 9501 Sun Isle Drive Northeast, St. Petersburg, Florida 33702 (“Project”). Ts Invincible proceeded on the Project without obtaining applicable local building department permits and inspections. 8. Respondent failed to apply for a required permit within 30 days after receiving an initial deposit amounting to more than ten percent of the contract price. 9. Invincible ceased work and failed to perform any work under the contracts for a period of greater than 90 consecutive days without just cause. 10. At the time Invincible ceased work under the contracts, the percentage of completion was less than the percentage of the contract price paid to Invincible by Complainant. 11. Invincible was not entitled under the contracts to retain the excess funds paid by Complainant, and to date has not refunded the excess funds. 12. The contracts failed to include a proper statement notifying Complainant of Complainant’s rights under the Florida Homeowner’s Construction Recovery Fund. 13. At no time material hereto did Invincible maintain worker’s compensation insurance coverage. 14. Respondent d/b/a Invincible allowed David Barry (“Barry”), a sub-contractor, to contract on behalf of Invincible. 15. At no time material hereto was Barry an employee of Invincible as defined by Chapter 489, Part I, Florida Statutes. DBPR v. Diaz 2 Case No, 2015-028596 16. At no time material hereto was Barry certified or registered to engage in the practice of construction contracting in the State of Florida pursuant to Chapter 489, Part I, Florida Statutes. 17. Respondent knew or had reasonable grounds to know that Barry was not certified or registered to engage in the practice of construction contracting in the State of Florida pursuant to Chapter 489, Part I, Florida Statutes. 18. Respondent knowingly combined and/or conspired with Barry by allowing license numbers CBC 17239 & CCC 1330540 to be used with intent to evade the provisions of Chapter 489, Part I, Florida Statutes. 19. Respondent knowingly allowed license numbers CBC 17239 & CCC 1330540 to be used by Barry, and/or used by a business organization that is not qualified, as defined by Chapter 489, Part I, Florida Statutes, to engage in the business, or act in the capacity of a contractor. COUNT ONE 20. Petitioner realleges and incorporates the allegations set forth in paragraphs one through 19 as though fully set forth herein. 21. Based upon the foregoing, Respondent violated section 489.129(1)(j), Florida Statutes (2013), by abandoning a construction project in which the contractor is engaged or under contract as a contractor. COUNT TW. 22. Petitioner realleges and incorporates by reference the allegations set forth in paragraphs one through 19 as though fully set forth herein. DBPR v. Diaz 3 Case No. 2015-028596 23. Based upon the foregoing, Respondent violated section 489.129(1)(g)2., Florida Statutes (2013), by abandoning a customer’s job when the percentage of completion was less than the percentage of the total contract price paid to the contractor. co THREE 24. Petitioner realleges and incorporates by reference the allegations set forth in paragraphs one through 19 as though fully set forth herein. 25. Section 489.1425(1), Florida Statutes (2013), provides that 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 recovery fund, except where the value of all labor and materials does not exceed $2,500.00. 26. Based on the foregoing, Respondent violated section 489.129(1)(i), Florida Statutes (2013), by failing 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 489.1425, Florida Statutes (2013). COUNT FOUR 27. Petitioner realleges and incorporates by reference the allegations set forth in paragraphs one through 19 as though fully set forth herein. 28. Section 489.114, Florida Statutes (2013), states that the failure to maintain workers’ compensation coverage as required by law shall be grounds for the board to revoke, suspend, or deny the issuance or renewal of a certificate or registration of the contractor under the provisions of section 489.129, Florida Statutes (2013). 29. Based upon the foregoing, Respondent violated section 489.129(1)(i), Florida Statutes (2013), by failing in any material respect to comply with the provisions of chapter 489, DBPR v. Diaz 4 Case No. 2015-028596 part I, Florida Statutes, or violating a rule or lawful order of the board, by having violated section 489.114, Florida Statutes (2013). COUNT FIVE 30. Petitioner realleges and incorporates by reference the allegations set forth in paragraphs one through 19 as though fully set forth herein. 31. Based upon the foregoing, Respondent violated section 489.129(1)(d), Florida Statutes (2013), by performing an act which assists a person or entity in engaging in the prohibited uncertified and unregistered practice of contracting. COUNT SIX 32. Petitioner realleges and incorporates by reference the allegations set forth in paragraphs one through 19 as though fully set forth herein. 33. Section 489.126(2){a), Florida Statutes (2013), states that a contractor who receives, as an initial payment, money totaling more than ten 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 date payment is made, except where the work does not require a permit under the applicable codes and ordinances, and must start work within 90 days after the date all necessary permits for work, if any, are issued. 34. Based upon the foregoing, Respondent violated section 489.129(1)(i), Florida Statutes (2013), 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)(a), Florida Statutes (2013). DBPR v. Diaz 5 Case No. 2015-028596 COUNT SEVEN 35. Petitioner realleges and incorporates by reference the allegations set forth in paragraphs one through 19 as though fully set forth herein. 36. Based upon the foregoing, Respondent violated section 489.129(1)(0), Florida Statutes (2013), by proceeding on a job without obtaining applicable local building department permits and inspections. Cc T EIGHT 37. Petitioner realleges and incorporates by reference the allegations set forth in paragraphs one through 19 as though fully set forth herein. 38. | Based upon the foregoing, Respondent violated section 489.129(1)(e), Florida Statutes (2013), by knowingly combining or conspiring with an uncertified or unregistered person by allowing his or her certificate or registration to be used by the uncertified or unregistered person with intent to evade the provisions of Chapter 489, Part I, Florida Statutes. col NINE 39. Petitioner realleges and incorporates by reference the allegations set forth in paragraphs one through 19 as though fully set forth herein. 40. Section 489.127(4)(b), Florida Statutes (2013), states a certified or registered contractor, or contractor authorized by a local construction regulation board to do contracting, may not knowingly allow his or her certification number or registration number to be used by a person who is not certified or registered as provided for in this chapter, or used by a business organization that is not qualified as provided for in this chapter to engage in the business, or act in the capacity of, a contractor. DBPR v. Diaz 6 Case No. 2015-028596 41. Based upon the foregoing, Respondent violated section 489.129(1)(i), Florida Statutes (2013), 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 489.127(4)(b), Florida Statutes (2013). 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 $10,000 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. [SIGNATURE PAGE FOLLOWS] DBPR v. Diaz 7 Case No. 2015-028596 Signed this 24" day of January, 2017 Probable Cause Found 01/24/2017 Division Il: Wood/Pietanza Division I: Kane/Cathey DBPR v. Diaz Case No. 2015-028596 By: MATILDE MILLER, Secretary Department of Business and Professional Regulation /s/ Clayton Osteen Clayton Osteen Assistant General Counsel Florida Bar No. 0112109 Department of Business and Professional Regulation Office of the General Counsel 2601 Blair Stone Road Tallahassee, FL 32399-2202 (850)488-0062 Telephone (850)921-9186 Facsimile NOTICE OF RIGHTS Please be advised that mediation under section 120.573, Florida Statutes, is not available for administrative disputes involving this type of agency action. Please be further advised that Respondent has the right to request a hearing to be conducted in accordance 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 requested. Rule 28-106.111, //orida Administrative Code, provides in part that if Respondent fails to request a hearing within 21 days of receipt of an agency pleading, Respondent waives the right to request a hearing on the facts alleged. Any request for an administrative proceeding to challenge or contest the charges contained in the Administrative Complaint must conform to rule 28-106.2015, Florida Administrative Code. 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 costs related to the investigation and prosecution of the case excluding costs associated with an attorney's time, against Respondent in addition to any other discipline imposed.

Docket for Case No: 18-001495PL