Kuvin, as a general contractor should be revoked, suspended, or otherwise disciplined.
At final hearing the Department called Donna Romito, Marc Freedman, Maria Florez, Teresa Cevallos, James Sujansky, Thomas Frisby, Augstin Perez, Sydney Shaffir, and William Reich. The Department's exhibits 1-31 were received into evidence. Respondent called no witnesses, and offered no exhibits.
The transcript of hearing was filed March 13, 1987, and the parties were granted leave until March 23, 1987; to file proposed findings of fact. Neither party elected to file proposed findings of fact.
Respondent, Michael N. Kuvin (Kuvin), was at all times material hereto a certified general contractor in the State of Florida, having been issued
license numbers CG CB07136 and CG C007136. Kuvin, under license number CG CB07136, was the qualifying agent for Gerald S. Krigel Corporation (Krigel Corp.).
During the years 1904 and 1985, Krigel Corp. acted as the general contractor for Lomar Communities Inc. (Lomar), the owner/developer of Sugarwood and Heritage Park subdivisions, Dade County, Florida 1/ Gerald Krigel was the president of Krigel Corp. and Lomar.
While the Sugarwood and Heritage Park subdivisions were under development, Kuvin did not supervise, direct, manage, or control the contracting activities of Krigel Corp., nor did he supervise, direct, manage, or control any of its construction activities in the subdivisions. He did, however, meet with Mr. Krigel twice a year, at which times he signed and delivered to Mr. Krigel an indeterminate number of blank building permit applications. On each occasion, Kuvin was paid $1,500. 2/
In mid-December 1985, Lomar and Krigel Corp. closed their offices. In January 1986, Lomar filed a petition in bankruptcy.
The Freedman Residence
On January 8, 1984, Marc Freedman and his wife entered into an agreement with Lomar for the purchase and sale of a single family residence in the Sugarwood subdivision. The agreement, as subsequently modified on May 11, 1984, called for Lomar to build the house in accordance with an agreed floor plan and deed it to the Freedmans in exchange for an agreed price of
$106,337.50.
On June 7, 1984, a building permit application was submitted to the Dade County Building and Zoning Department (Dade County) to construct the Freedman house. The application listed Lamar as the owner, Krigel Corp. as the contractor, and was signed by Kuvin. The requested permit was issued July 10, 1984, and a certificate of completion was issued on October 3, 1984.
A closing was held on the Freedman purchase in late October 1984. Certain construction deficiencies existent on closing or subsequently discovered have not, however, been rectified despite demand of Lamar and Kuvin. 3/ The deficiencies include a backyard which is prone to flooding because of poor drainage, a pool deck area which has cracked into 14 separate pieces because not scored and which floods because not graded; interior dry wall which has cracked and buckled, and cracked tiles in the bathroom.
The Florez Residence
On February 23, 1985, Maria Florez entered into an agreement with Lomar for the purchase and sale of a single family residence in the Heritage Park subdivision. The agreement called for Lomar to build the unit in accordance with an agreed floor plan and deed it to Ms. Florez in exchange for an agreed price of $69,500.
Under the terms of her agreement with Lomar, Ms. Florez was obligated to pay an initial deposit of $1,000, and an additional deposit of $2,500 upon approval of her application for a mortgage loan. Ms. Flores paid Lomar the initial deposit of $1,000, the $2,500 deposit upon approval of her application for financing with Pan American Bank, as well as the additional sum of $1,136 to add an air vent in the bathroom and to upgrade the carpeting.
On June 25, 1985, a building permit application was submitted to Dade County to construct the Florez unit. The application listed Lomar as the owner, Krigel Corp. as the contractor, and was signed by Kuvin. The requested permit was issued July 5, 1985, and construction apparently completed in November 1985; however, Dade County has not yet issued a certificate of completion.
No closing was ever scheduled for the Flarez unit. Upon learning of Lomar's bankruptcy, Ms. Florez filed a claim in the bankrupt's estate. To date, that claim has not been resolved.
The Cevallos Residence
On March 13, 1985, Pedro Cevallos and his wife entered into an agreement with Lamar for the purchase and sale of a single family residence in the Heritage Park subdivision. The agreement called for Lomar to build the unit in accordance with an agreed floor plan and deed it to the Cevallos in exchange for an agreed price of $69,900.
Under the terms of the Cevallos' agreement with Lamar, they were obligated to pay an initial deposit of $500, and an additional deposit of $3,000 upon approval of their application for a mortgage loan. The Cevallos paid the deposits of $3,500, as well as an additional $190 to add an air vent in the bathroom.
On June 6, 1985, a building permit application was submitted to Dade County to construct the Cevallos unit. The application listed Lomar as the owner, Krigel Corp. as the contractor, and was signed by Kuvin. The requested permit was issued June 13, 1985, and a certificate of completion was issued on November 14, 1985.
The Cevallos had a walk through inspection of their unit and noted no deficiencies. A closing never occurred, however, because of Lamar's bankruptcy. The Cevallos are a claimant in the bankrupt's estate, but that claim has not been resolved.
The Sujansky Residence
On October 21, 1934, James Sujansky and his wife entered into an agreement with Lomar for the purchase and sale of a single family residence in the Heritage Park subdivision. The agreement called for Lomar to build the unit in accordance with an agreed floor plan in exchange for an agreed price of
$64,900.
On April 12, 1935, a building permit application was submitted to Dade County to construct the Sujansky unit. The application listed Lomar as the owner, Krigel Corp. as the contractor, and was signed by Kuvin. The requested permit was issued on April 26, 1985, and a certificate of completion was issued on October 9, 1985.
On October 22, 1985, a closing was held on the Sujansky unit. At closing, the Sujanskys received a no-lien affidavit, a builder's warranty from Lomar, and Lomar's assurances that the deficiencies noted on the punch list would be corrected. Lomar failed or refused to correct the following deficiencies: the yard was prone to flooding because of poor drainage, cracked tiles were noticeable in both bathrooms and the kitchen, the dry wall was not sanded or painted, the exterior walls contained cracks in the stucco finish, the
window trim rattled, the front door had gaps around it, the kitchen cabinets had missing or unsecured handles, and the formica was peeling off the kitchen counter.
Subsequent to closing, the Sujanskys received a claim of lien against their property from GDG Services, Inc., B.Q. Interiors Contractors, and Bird Plumbing Corp. These companies claimed monies owed for materials and services furnished to the property under a contract with Lomar or Krigel Corp. The proof established that B.Q. Interiors was owed the sum of $390, but failed to establish the validity or amount of the remaining claims.
The Frisby Residence
On March 25, 1985, Thomas Frisby and his wife entered into an agreement with Lomar for the purchase and sale of a single family residence in the Heritage Park subdivision. The agreement called for Lomar to build the unit in accordance with an agreed floor plan in exchange for an agreed price of
$69,000.
On June 6, 1985, a building permit application was submitted to Dade County to construct the Frisby unit. The application listed Lomar as the owner, Krigel Corp. as the contractor, and was signed by Kuvin. The requested permit was issued on June 13, 1985, and a certificate of completion was issued on December 31, 1985.
On November 3, 1985, a closing was held on the Frisby unit. At closing, the Frisbys received a no-lien affidavit and a builder's warranty from Lomar.
Subsequent to closing, the Frisbys noted numerous deficiencies which Lomar failed or refused to remedy. These deficiencies included a back yard prone to flooding because of poor drainage, a bedroom wall that leaked and caused the wall and carpet to mildew, chipped and cracked sidewalks, and an uneven livingroom floor. Additionally, the Frisbys received a claim of lien against their property from B.Q. Interiors Contractors, S&R Industries, Inc., and Val's Air Conditioning, Inc. These companies claimed monies owed for materials and services furnished to the property under a contract with Lomar or Krigel Corp. The proof established that B.Q. Interiors was owed the sum of $390 and that S&R Industries was owed the sum of $632.50, but failed to establish the validity or amount of the lien claimed by Val's Air Conditioning.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
The allegations in this case are that Kuvin violated Section 489.129(1)(e), (g), (j) and (m), Florida Statutes. That section provides in pertinent part:
The board may revoke, suspend, or deny the issuance or renewal of the certificate or registration of a contractor and impose an adminis- trative fine not to exceed $5,000, place a contractor on probation, or reprimand or censure a contractor
if the contractor, or if the business entity or any general partner, officer, director, trustee, or member of a business entity for which the contractor is a qualified agent, is found guilty of any of the following acts:
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(e) Aiding or abetting any uncer- tified or unregistered person to evade any provision of this act.
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(g) Acting in the capacity of a contractor under any certificate or registration issued hereunder except in the name of the certi- ficateholder or registrant as set forth on the issued certificate or registration, or in accordance with the personnel of the certificate- holder or registrant as set forth in the application for the certificate or registration, or as later changed as provided in this act.
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(j) Failure in any material respect to comply with the provisions of this act.
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(m) Upon proof that the licensee is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.
As the qualifying agent for Krigel Corp., Kuvin had the responsibility to supervise, direct, manage, and control the contracting activities of the firm, as well as to supervise, direct, manage, and control construction activities on any job for which he obtained the building permit. Section 489.105(4), Florida Statutes. In this case, Kuvin totally forsook his responsibilities and in so doing violated the provisions of Section 439.129(i)(e), (j) and (m), Florida Statutes, as well as the public trust inherent in this licensure as a general contractor.
