Judges: JAMES E. BRADWELL
Agency: Department of Business and Professional Regulation
Latest Update: Aug. 19, 1986
Summary: Construction project abandoned; fine and restitution recommended.
86-1458.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL )
REGULATION, CONSTRUCTION )
INDUSTRY LICENSING BOARD, )
)
Petitioner, )
)
vs. ) CASE NO. 86-1458
)
ANTONIO V. MALLO, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on June 12, 1986 in Miami, Florida. The parties were afforded leave through July 15, 1986, to submit memoranda supportive of their respective positions. Petitioner has submitted a proposed recommended order which was considered by me in preparation of the Recommended Order. Proposed recommendations which are not incorporated in this Recommended Order are the subject of specific rulings in an appendix to this Recommended Order.
APPEARANCES
For Petitioner: Charles Tunnicliff and
Ray Shope, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: Antonio V. Mallo, Pro Se
1256 San Miguel Avenue Coral Gables, Florida 33134
Issue Presented
Whether or not Respondent's state license as a certified general contractor should be revoked, suspended or otherwise disciplined for allegations, set forth hereinafter in detail, as set forth in the Administrative Complaint filed herein dated March 26, 1986.
INTRODUCTION AND BACKGROUND PARAGRAPH
This case arises from an Administrative Complaint filed by Petitioner seeking to take disciplinary action against Respondent, Antonio V. Mallo, a certified general contractor for violation of Chapter 489, Florida Statutes, to wit:
Section 489.129(1)(e), Florida Statutes:
aiding or abetting an unlicensed contractor to evade the provisions of Chapter 489.
Section 489.129(1)(f), Florida Statutes: knowingly combining or conspiring with an unlicensed contractor in the evasion of Chapter 489.
Section 489.129(1)(g), Florida Statutes: acting in the capacity of a contractor under a name other than that appearing on his State certificate.
Section 489.129(1)(j), Florida Statutes: failing in a material respect to comply with the provisions of Part I of Chapter 489.
Section 489.119, Florida Statutes: failing to qualify a legal entity he was contracting through.
Section 489.129(1)(k), Florida Statutes: abandonment of a job in which Respondent was engaged as contractor.
At the commencement of the hearing, Respondent moved for a continuance.
Respondent's motion was denied inasmuch as it was untimely filed and all parties and witnesses had assembled for the hearing. Additionally, it was noted that the matter had been set for hearing some 19 days prior to the hearing date.
Petitioner called five witnesses to testify and submitted twelve exhibits as documentary evidence. Respondent testified on his behalf.
Based upon my observation of the witnesses and their demeanor while testifying, I hereby make the following relevant factual findings.
FINDINGS OF FACT
Respondent, Antonio V. Mallo, is a certified general contractor in Florida and has been issued license number CGC004868, issued as an individual. (Exhibit 1, TR 21.)
During times material hereto, Respondent was a certified general contractor in Florida practicing under the subject reference license as an individual.
On October 26, 1984, Robert Golden contracted with Magic Eye Remodeling for the construction of an addition to his home situated at 19701 Northeast 12th Court, North Miami, Florida for the sum of $36,000. The contract price included the cost for labor and materials for a "turn key" job. (Testimony of Robert Golden and Jose Garcia, TR 25, 110, Exhibit 3 and TR 24.)
As stated, the contract called for the construction of the entire project including air conditioning, electrical work, tile and bathroom fixtures. (Testimony of Jose Garcia, Exhibit 3, TR 112.)
Magic Eye Remodelers was not licensed to perform contracting in Florida. Luis Valido, president of Magic Eye, and Jose Garcia, an employee of Magic Eye, negotiated and signed the contract with Magic Eye and Golden. (Testimony of Garcia and Golden, TR 21, 22 and 112, Exhibits 1 and 2.)
Although Valido and Garcia had discussions with Respondent at the time Magic Eye was negotiating a contract with Golden, Respondent was not signatory to the Golden-Magic Eye Contract. (Testimony of Robert Golden, TR 34.)
On November 6, 1984, Respondent obtained building permit number 84-01- 123-3 from Metropolitan-Dade County for the subject work at the Golden residence. (Exhibit 4, TR 28.)
Construction commenced at the Golden residence and progressed slowly until approximately April 4, 1985 when owner Golden observed Magic Eye (its employees) preparing to leave the job. During that time, Garcia informed Golden that they had misused the construction funds advanced and could not finish the project. During that discussion, Magic Eye offered to complete the job if Golden would pay for the necessary supplies. Golden agreed to pay for the supplies. (Testimony of Robert Golden, TR 32.)
During mid April, 1985, Golden contacted Michael O'Connor, Dade County code enforcement officer about his problems with Magic Eye and Respondent. O'Connor informed Golden to contact the contractor who obtained the permit, i.e., Respondent.
Subsequent to that conversation and prior to June 4, 1985, Respondent was contacted by Golden. He visited Golden's home and worked on the construction project with Luis Valido. (Testimony of Robert Golden, TR 38.) This was the first contact between Golden and Respondent and the first time Respondent visited the construction site. In this regard, Golden was employed in a capacity whereby he did work early morning and late evening hours and spent all of his daytime hours on the construction site. (Testimony of Robert Golden and Jose Garcia, TR 34 and 125.)
On or about June 3, 1985, all work at the project ceased and the Respondent informed Golden that Valido did not want to work there anymore since he wasn't making any money. (Testimony of Golden) Golden thereafter reported the problem to Michael O'Connor and Bob Wolfe, an investigator with the Department of Professional Regulation.
O'Connor thereafter informed Respondent that unless he could produce a contract between himself and Golden, criminal charges would be filed by the State's attorney's office. (Testimony of Mike O'Connor, TR 166.)
While at Michael O'Connor's office to sign the complaint with Petitioner, Golden was contacted by Respondent who advised that he would contract to complete the project. (Testimony of Golden, TR 40.)
On or about June 12, 1985, Golden and Respondent negotiated a contract to complete the work for the sum of $39,882 of which a credit for $38,383 was given for work already performed by Magic Eye. As contracted, Respondent would receive $1500, fifty percent of which would be paid at the beginning of the tiling work and the remainder at completion of the project. Respondent performed plumbing and metal overhang work at the site after the contract was signed. (Testimony of Robert Golden, TR 41, 48 and Exhibit 6.)
On July 10, 1985, Respondent notified Golden he was leaving the job because Golden failed to sign a change order to the contract and make payment as
per the contract of June 12, 1985. At that time, or subsequent thereto, Respondent had not submitted a change order to the contract to Golden.
Additionally, no payment was due Respondent under the June 12, 1985 contract for the tile was not ordered until September, 1985. (Testimony of Robert Golden, TR
54 and Bob Wolfe, TR 99, Exhibit 8.)
When Respondent left the Golden project, the construction was sixty percent completed.
Golden completed the project under an owner-builder permit. The total cost for the project was $62,804. (TR 65, 66 and Exhibit 11.)
During the hearing, Respondent raised a question as to the validity of Petitioner's Exhibit number 6, claiming in essence that it had been tampered with by Golden. An examination of all the evidence introduced herein reveals that the agreement (contract) between Respondent and Golden (Petitioner's Exhibit 6) was valid.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.
The parties were duly noticed pursuant to the provisions of Chapter 120, Florida Statutes.
The authority of the Petitioner is derived from Chapter 489, Florida Statutes.
Respondent, a certified general contractor, is subject to disciplinary guides of Chapter 489, Florida Statutes.
Competent and substantial evidence was offered herein to establish that Respondent aided and abetted Magic Eye Remodelers (an unlicensed entity) to evade Chapter 489 by obtaining a building permit for the work at the Robert Golden residence in violation of Section 489.129(1)(e), Florida Statutes.
Respondent, by knowingly combining and/or conspiring with Magic Eye Remodelers by allowing his certificate to be used by Magic Eye to evade the provisions of Chapter 489, engaged in conduct violative of Section 489.129(1), (f), Florida Statutes.
Competent and substantial evidence was offered herein to conclude that Respondent abandoned the Golden construction project, without just cause, in violation of Section 489.129(1)(k), Florida Statutes.
Insufficient evidence was offered herein to establish that Respondent contracted in a name other than the name set forth on his certificate.
Insufficient evidence was offered herein to establish that Respondent failed to comply with Sections 489.119(2) and (3), Florida Statutes or that Respondent thereby violated Section 489.129(1)(j), Florida Statutes.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Respondent be assessed an administrative fine of
$1,000.
It is further recommended that Respondent's certified general contractor's license number CGC004868 be suspended for a period of two years. Provided however that Respondent make restitution to Robert Golden in the amount of
$5,000, it is then recommended that the suspension be abated with Respondent's suspension reverting to a like term of probation.
RECOMMENDED this 19th day of August, 1986, in Tallahassee, Florida.
JAMES E. BRADWELL
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1986.
APPENDIX TO RECOMMENDED ORDER IN CASE NUMBER 86-1458
Petitioner's Proposed Recommended Order Paragraph 22. Incorporated as modified.
COPIES FURNISHED:
Ray Shope, Esquire
130 North Monroe Street Department of Professional
Regulation
Tallahassee, Florida 32301
Mr. Antonio Mallo
1256 San Miguel Avenue Coral Gables, Florida 33134
Mr. Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2
Jacksonville, Florida 32201
Mr. Fred Roche, Secretary Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Wings Slocum Benton, Esquire General Counsel
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Docket for Case No: 86-001458
Orders for Case No: 86-001458
