STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL | ) CASE | NOS. | 89-2204 |
REGULATION, CONSTRUCTION | ) | 89-2205 | |
INDUSTRY LICENSING BOARD, | ) | 89-2206 | |
) | 89-2207 | ||
Petitioner, | ) | 89-2208 | |
) | 89-2209 | ||
vs. | ) | 89-2210 | |
) | 89-2211 | ||
EDWARD RYAN, | ) | 89-2212 | |
) | 89-2213 | ||
Respondent. | ) |
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in these consolidated cases on July 10 and 11, 1989, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Jan L. Darlow, Esquire
William Burke, Esquire Bayview Executive Plaza
3225 Aviation Avenue, Suite 400
Miami, Florida 33133 For Respondent: No Appearance
STATEMENT OF THE ISSUES
Whether Respondent committed the offenses described in the administrative complaints filed against him?
If so, what discipline should he receive?
PRELIMINARY STATEMENT
Respondent is a building contractor licensed in the State of Florida. On April 27, 1989, ten administrative complaints that had been filed against Respondent by the Department of Professional Regulation (Department) were referred to the Division of Administrative Hearings for hearing. The complaints were docketed as Case Nos.89-2204 through 89-2213. The Department alleged in these complaints that Respondent had committed the following violations of Chapter 489, Florida Statutes:
Case No. 89-2204- in connection with work done on the residence of Helena Lau, Respondent "proceeded without a timely permit having been issued, violating local law, either deliberately
or through improper supervision" and proceeded without timely obtaining all required inspections, violating local law, either deliberately or through improper supervision."
Case No. 89-2205- in connection with
the work done on the residence of Marvin Lichtenstein, Respondent "proceeded without a timely permit having been issued, violating local law, either deliberately or through improper supervision;" "proceeded without timely obtaining all required inspections, violating local law, either deliberately or through improper supervision;" and displayed "gross negligence and/or incompetence" by "[u]nilaterally changing or allowing change of monthly contract payments ... from $71 to
$92."
Case No. 89-2206- in connection with the work performed on the residence located at 18105 N.W. 5th Court in Miami, Florida, Respondent proceeded without a timely permit having been issued, violating local law, either deliberately or through improper supervision;" "proceeded without obtaining all required inspections,
violating local law, either deliberately or through improper supervision;" and "exceeded the scope of his license concerning type of work" by installing an air-conditioning system.
Case No. 89-2207- in connection with the work done on the residence of Bryan Bitner, Respondent "proceeded without a timely permit having been issued,
violating local law, either deliberately or through improper supervision;" "proceeded without obtaining all required inspections, violating local law, either deliberately or through improper supervision;" and "failed to perform in a reasonably timely fashion and/or abandoned the said job."
Case No. 89-2208- in connection with the work done on the residence of Anthony Rabeck, Respondent "proceeded without a timely permit having been issued, violating local law, either deliberately or through improper supervision;" "proceeded without
obtaining all required inspections, violating local law, either deliberately or through improper supervision;" "exhibited financial mismanagement, misconduct, or diversion" and failed to properly supervise the finances on said job."
Case No. 89-2209- in connection with the work done on the residence of James Cox, Respondent "proceeded without a timely permit having been issued,
violating local law, either deliberately or through improper supervision;" "proceeded without obtaining all required inspections;" and "exhibited financial mismanagement, misconduct, or diversion."
Case No. 89-2210- in connection with the work done on the residence of the Spiegels, Respondent "proceeded without a timely permit having been issued,
violating local law, either deliberately or through improper supervision;" "proceeded without timely obtaining all required inspections, violating local law, either deliberately or through improper supervision;" "failed to reasonably honor [a] guarantee" he had given; and displayed "gross negligence, incompetence, misconduct and/or deceit attributable either to Respondent personally, or to Respondent's failure to properly supervise, ... as
generally exhibited by, but not limited to, the following: failure to properly prepare the roof before the [texture] coating was applied, resulting in discoloration; failure to provide a reasonably lasting roof, resulting in peeling and disintegration of the coating after only one year."
Case No. 89-2211- in connection with
the work done on the residence of Angelo Bertolino, Respondent gave "a guarantee on said job to the Customer, and thereafter failed to reasonably honor said guarantee."
Case No. 89-2212- in connection with
the work done on the residence of Edward Baum, Respondent engaged in "financial mismanagement and/or misconduct . attributable either to Respondent directly, or to Respondent's failure to
properly supervise ... the problem being generally in relation to, but not limited to, the following: failure to pay subcontractors and suppliers."
Case No. 89-2213- in connection with the work done on the residence of James Harris, Respondent "proceeded without a timely permit having been issued
violating local law, either deliberately or through improper supervision;" "proceeded without timely obtaining all required inspections, violating local law, either deliberately or through improper supervision;" displayed "gross negligence, incompetence, misconduct, and/or deceit ... attributable either
to Respondent personally, or to Respondent's failure to properly supervise ... as generally exhibited by, but not limited to the following:
failure to provide reasonably operable windows."
At the formal hearing on these complaints, the Department presented the testimony of fifteen witnesses: James Cox, the complainant in Case No. 89-2209: Angelo Bertolino, the complainant in Case No. 89-2211; Bryan Bitner, the complainant in Case No. 89-2207; Adele and David Spiegel, the complainants in Case No. 89-2210; Helana Lau, the complainant in Case No. 89-2204; Marvin Lichtenstein, the complainant in Case No. 89-2205; Gilbert Diamond, who supervises the product control section of the Dade County Building and Zoning Department; Brenda Sue Moore, a records custodian with the Dade County Building and Zoning Department; Al Childress, who supervises the Code Enforcement Section of the Dade County Building and Zoning Department; Lonnie Royal, the City of Hialeah's Chief Building Inspector; Thomas Conway, the City of North Miami Beach's Building Official; Steve Jawitz, a qualified expert in fields of general contracting and engineering; Miguel Roche, a Building Inspector for the City of Miami; and Janice Smith, an Investigator with the Department. In addition to presenting the testimony of these witnesses, the Department also offered into evidence 57 exhibits, all of which were admitted. Although Respondent was given notice of the hearing in accordance with the provisions of Section 120.57(1)(b)2., neither Respondent nor any one acting on his behalf made an appearance at hearing.
The Hearing Officer announced on the record at hearing that the parties would have twenty days following the filing of the hearing transcript with the Division of Administrative Hearings to file their Proposed Recommended Orders. The transcript was filed with the Division on July 28, 1989. On August 7, 1989, the Department filed a Notice of Errors in which it notes several errors found in the transcript. The hearing Officer acknowledges the accuracy of the observations made by the Department in this document. On August 15, 1989, the Department filed a motion requesting a five-day extension of time to file its Proposed Recommended Order. The motion was granted by order issued August 16, 1989. On August 21, 1989, the Department filed its Proposed Recommended Order. The Proposed Findings of Fact contained in the Department's Proposed Recommended Order have been carefully considered and are addressed in the Appendix to this Recommended Order.
FINDINGS OF FACT
Based upon the record evidence, the Hearing Officer makes the following findings of fact:
General Information
Edward Ryan is now, and has been since October, 1973, licensed as a Building Contractor by the State of Florida. He holds license number CB 0006481.
Ryan has previously been disciplined by the Florida Construction Industry Licensing Board (Board). In July, 1987, prior to the issuance of the instant administrative complaints, he received a letter of reprimand from the Board.
The Department of Professional Regulation has recently received additional complaints concerning Ryan. These complaints are currently under investigation.
Ryan has been the qualifying agent for Gulf Chemical Contractors, Inc. (Gulf) since August, 1982. All ten of the instant administrative complaints involve projects undertaken by Gulf in Dade County, Florida.
The South Florida Building Code (Code) has been adopted as the building code for both the incorporated and unincorporated areas of Dade County. The Code provides in pertinent part as follows with respect to the requirement of permits:
It shall be unlawful to construct, enlarge, alter, repair, move, remove or demolish any building structure, or any part thereof; or any equipment, device or facility therein or thereon; or to change the Occupancy of a building from one use Group to another requiring greater strength, means of egress, fire and sanitary provisions; or to install or alter any equipment for which provision is made or the installation of which is regulated by this Code; without first having filed application and obtained a permit therefor, from the Building Official, validated by payment there for.
EXCEPTION: No permit shall be required, in this or any of the following Sections, for general maintenance or repairs which do not change the Occupancy and the value of which does not exceed one hundred dollars ($100.00) in labor and material as determined by the Building Official.
The Code further requires that the permit holder or his agent notify the Building Official of the completion of the project and call for an inspection of the work completed. Another requirement of the Code is that products such as air vent systems receive official approval from the appropriate Building Official prior to their installation. An experienced building contractor like Ryan doing business in Dade County should be aware of these requirements and should know that it is the responsibility of the general contractor of a project to make sure that these requirements are met.
Case No. 89-2204
On May 2, 1987, Helana Lau and her husband entered into a written contract with Gulf. Gulf agreed to perform work on the Lau residence located at 2400 S.W. 15th Street in Miami, Florida, for which it was to be paid, pursuant to the terms of the contract, $11,450.00 by the Laus. The work that was to be performed on the structure included, among other things, the replacement of the roof and "any rotted wood on facia and soffits" and the installation of a "filter vent system."
Gulf installed an aluminum air vent system for the Laus. The product used by Gulf had not received official approval prior to its installation as required by the South Florida Building Code. Furthermore, it posed a potential safety hazard.
No official inspection of the contract work performed by Gulf on the Lau residence has ever been requested, notwithstanding that Gulf has long since terminated its work in connection with the project and vacated the jobsite.
Case No. 89-2205
On December 29, 1986, Marvin Lichtenstein entered into a written contract with Gulf. Gulf agreed to texture coat Lichtenstein's home located at 2080 N.E. 171st Street in North Miami Beach, Florida. Pursuant to the terms of the contract, Gulf was to be paid $4,000.00 by Lichtenstein for performing this work.
The contract contained a handwritten notation that "finances will be appr 10-11%" and that therefore Lichtenstein would have "a monthly payment of appr $71 or less" on the unpaid balance, which was $3,900.00. The contract also contained the following provision, which unlike the aforementioned notation was printed:
This is an agreement by the parties mentioned herein to enter into an installment loan contract. The Purchaser requests that the Seller and the Seller's agents make the appropriate inquiries into the Purchaser's credit history and into the condition of the Title of the Property to be encumbered. The purpose of these inquiries is to see if the Seller may be able to arrange financing of the unpaid cash balance and what the terms of that financing may be. The purchaser agrees to accept any Home Improvement Contract presented by or thru the Seller, that has an interest
rate less than the maximum current interest mentioned in the Florida Retail Installment & Sales Acts. The Purchaser agrees that all cost incurred by the Seller in connection with the payment plan will be paid by the Purchaser if the Purchaser refuses to accept that Home Improvement Contract.
The work was performed by Gulf on the Lichtenstein home during the second week of January, 1987. Although a permit was required under the Code, it was not obtained prior to the commencement of the project or at any time thereafter. Furthermore, no official inspection of the work completed by Gulf has been requested.
Following the completion of the work, Lichtenstein received from AmSav Financial, Inc., an Advance Notice of Acceptance and Intent to Purchase an FHA Title I Note. The document, which was dated January 14, 1987, provided Lichtenstein with the following information:
We have found your credit to be satisfactory for a loan in the amount of
$3,900.00 for a period of 60 months. Interest at a rate of 14.50% will be charged on the unpaid principal balance. Monthly payments will be $92.82.
It is our intention to disburse the funds to the above mentioned dealer [Gulf] when all necessary documents, including a completion certificate indicating the work has been satisfactorily completed are received in proper order; but not earlier than six days from this date.
It is not our policy to inspect all improvement projects we finance, so we want you to know that the selection of the contractor and the acceptance of workmanship and materials is your responsibility.
You should insist on a copy of all instruments you sign and you should not sign the completion certificate until the contract has been fulfilled to your satisfaction.
Contractors are not permitted to give cash rebates from the proceeds of this transaction nor are they permitted to make any payments for you nor any other type of incentive to buy. This commitment is good for 60 days only.
If you have any questions regarding this transaction, or if we can be helpful in any way, please let us hear from you within six days from this date.
Lichtenstein refused to accept this financing arrangement and, because he was dissatisfied with the work Gulf had done, withheld payment. He eventually settled this dispute with Gulf and paid the company $2,500 in accordance with the terms of the settlement agreement.
Case No. 89-2206
On or about July 11, 1987, Al Childress, the supervisor of the Code Enforcement Section of the Dade County Building and Zoning Department, received a complaint regarding work purportedly done by Gulf on the Rojas residence located at 18105 N.W. 5th Court in Dade County, Florida. Childress thereafter inspected the premises and discovered that a three-ton air conditioning unit had been installed without a permit first having been obtained. He further ascertained that no formal inspection of the installed unit had been requested. Childress subsequently issued Gulf citations for "unlawfully commencing work on a[n] air conditioning installation without a permit" and "unlawfully contracting for work outside the scope of the certificate of competency."
Case No. 89-2207
On January 12, 1987, Bryan Bitner entered into a written contract with Gulf. Gulf agreed to remodel and renovate the kitchen and other parts of the Bitner residence located 571 N.E. 175th Terrace in North Miami Beach, Florida. Pursuant to the terms of the contract, Gulf was to be paid $10,216 by Bitner.
Work on the project began on February 14, 1987, and ended on April 20, 1987. Although given the opportunity to do so by Bitner, Gulf failed to finish the work it had agreed to perform and, without justification or notice, abandoned the project after having completed only 70% of the kitchen cabinetry work specified in the contract.
Neither before nor after the commencement of work on the project were the required building, electrical and plumbing permits obtained. No official inspections of the work done in connection with the project have been requested.
Case No. 89-2208
On December 19, 1985, Anthony and Anna Rabeck entered into a written contract with Gulf. Gulf agreed to perform roofing work on the Rabeck's home located at 447 East 7th Street in Hialeah, Florida, for which it was to be paid, pursuant to the terms of the contract, $2,792.00 by the Rabecks.
Gulf thereafter subcontracted with Louis Rusty Gordon of Rusty's Roofing to perform work on the project. Gordon performed the work, but was not paid the $600.00 Gulf had agreed to pay him. He therefore filed a lien on the Rabeck's residence in the amount of $600.00 and filed a complaint against Gulf and the Rabecks in Dade County Circuit Court seeking a $600.00 judgment against them. Gordon was ultimately paid the $600.00 by the Rabecks.
A roofing permit was never obtained for the work that was done on the Rabeck residence. Furthermore, no official inspection of the work has ever been requested.
Case No. 89-2209
On February 21, 1987, James Cox entered into a written contract with Gulf. Gulf agreed to texture coat and to add a screened porch to the Cox residence located at 11621 S.W. 183rd Street in Dade County, Florida. For this work, Gulf was to be paid, pursuant to the terms of the contract, $5,700.00 by Cox.
The texture coating was completed in late March, 1987. The screened porch was finished in early April, 1987. Upon completion of the entire project, Cox paid Gulf in full in accordance with their contractual agreement.
Although a permit was necessary to commence the work on the Cox residence, it was never obtained. In addition, no one requested that the completed work be officially inspected.
The screened porch was constructed by a subcontractor, Steve Buzzella. Prior to his undertaking this project, Gulf had agreed to pay him $2,200.00 for such work. Although he satisfactorily completed the project, Gulf did not pay him for his work. Consequently, he filed a lien on the Cox residence in the amount of $2,200.00. Buzzella has yet to be paid the money he is owed by Gulf and the lien remains in effect. Cox has retained legal counsel to assist him in connection with this matter and has already paid $175.00 in legal fees.
Case No. 89-2210
On June 30, 1986, Adele Spiegel and her husband David entered into a written contract with Gulf. Gulf agreed in the contract to, among other things, texture coat the Spiegels' residence located at 7380 S.W. 116th Terrace in Dade County, Florida. Pursuant to the terms of the contract, Gulf was to be paid
$4,500.00 by the Spiegels.
The contract further provided that the Spiegels were to receive a "15 year warr[anty] on [the] tex[ture] coat[ing]" work. It also contained the following provision:
Contractor guarantees that all materials furnished by it will be of standard quality, type and condition, free from defects, and will be installed, built or applied in a good workmanlike manner; said labor and materials guaranteed against structural and material defects.
Gulf completed the project without obtaining the required permit. Furthermore, no official inspection of the completed project was ever requested.
The Spiegels paid Gulf in full for the work it had done. The last of their payments was made on July 10, 1986, following the completion of the project.
After this final payment was made, "dark stains" appeared on portions of the texture coating that had been applied to the gable end of the Spiegels' roof. In addition, some of the texture coating started to peel and crack. These problems were caused by the improper application of the texture coating.
The Spiegels have advised Gulf of these problems. They have made numerous efforts to have Gulf honor its fifteen-year warranty and correct these problems. These efforts have been to no avail. Gulf has yet to take any corrective action, notwithstanding its obligation to do so under the warranty it gave the Spiegels.
Case No. 89-2211
On February 18, 1985, Angelo Bertolino entered into a written contract with Gulf. Gulf agreed to texture coat Bertolino's residence located at 11730
S.W. 175th Street in Dade County, Florida. For this work, Gulf was to be paid, pursuant to the terms of the contract, $3,000.00 by Bertolino. Bertolino received from Gulf, as part of their agreement, a fifteen-year warranty on the texture coating similar to the one that the Spiegels were given. Assurances were given to Bertolino that any warranty work that was necessary would be done by Gulf.
The Bertolino home was texture coated shortly after the contract was signed. In July, 1987, the texture coating began to crack and peel. Bertolino immediately contacted Gulf to apprise it of the situation and to request that it perform the necessary repairs in accordance with the terms of the warranty it had given him. Receiving no response from Gulf to this initial request, he telephoned the company's offices on almost a daily basis until September, 1987, when a Gulf representative came to his home and did some corrective work.
A month later, the area that had purportedly been repaired started to again crack and peel. Bertolino has made Gulf aware of the situation and has sought on numerous occasions to have the company perform the warranty work necessary to correct these problems. Gulf has ignored these requests and failed to honor the warranty it gave Bertolino.
Case No. 89-2212
On January 6, 1988, Edward Baum entered into a written contract with Gulf. Gulf agreed to texture coat Baum's residence located at 10921 S.W. 120th Street in Dade County, Florida. For this work, Gulf was to be paid, pursuant to the terms of the contract, $3,200 by Baum.
The project was completed on January 13, 1988. Upon completion of the work, Baum paid Gulf in full.
Textured Coatings of America, Inc. (TCA) supplied Gulf with $583.28 of materials that were used to complete the project. The materials were supplied on credit. Because it had not received payment for these materials, TCA, on March 4, 1988, after giving due notice to Gulf and Baum, filed a lien on Baum's residence in the amount of $583.28. TCA has yet to be paid for these materials and the lien is still in effect.
Case No. 89-2213
On February 17, 1987, James Harris entered into a written contract with Gulf. Gulf agreed to install new windows in Harris' residence located at 9730 S.W. 167th Street in Dade County, Florida, for which it was to be paid, pursuant to the terms of the contract, $2,503.20 by Harris.
The windows were installed in one day. Although one was needed, no permit was obtained prior to the completion of the project. Furthermore, no official inspection of the completed work has ever been requested.
The windows were not installed properly. As a result, they do not close and lock as they should. Harris must put cement blocks on the outside ledges in front of some of the windows and then tape these windows shut to prevent them from falling open. Harris has unsuccessfully sought to have Gulf repair the windows.
CONCLUSIONS OF LAW
General Principles
The Department of Professional Regulation has been vested with the authority to issue licenses to those seeking to engage in the construction contracting business in Florida who have been deemed qualified for licensure by the Construction Industry Licensing Board and who have paid the requisite fee. Section 489.115, Fla. Stat. Licensure permits the licensee "to engage in contracting only for the type of work covered by the [license]." Section 489.115(1)(b), Fla. Stat.
A business entity, like Gulf, may obtain such a license, but only through a "qualifying agent." The "qualifying agent" must be "legally qualified to act for the business organization in all matters connected with its contracting business and [have the] authority to supervise construction undertaken by such business organization." The license which authorizes the business entity to act as a contractor in the construction industry is issued "in the name of the qualifying agent, and the name of the business organization [is] noted thereon." Section 489.119, Fla. Stat. The license which is the subject of the instant disciplinary proceedings is such a license. It is issued in the name of Respondent, who is the "qualifying agent" for Gulf.
Once a license is issued, it may be revoked or suspended by the Construction Industry Licensing Board if an administrative complaint is filed alleging that the licensee committed any of the acts proscribed by Section 489.129(1), Florida Statutes, and it is shown that the allegations of the complaint are true. Proof greater than a mere preponderance of the evidence must be submitted. Clear and convincing evidence is required. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Pascale v. Department of Insurance, 525 So.2d 922 (Fla. 3d DCA 1988). "The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983). Furthermore, the revocation or suspension of a license may be based only upon offenses specifically alleged in the administrative complaint. See Hunter v. Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2nd DCA 1984).
At the time the administrative complaints in the instant cases were filed and at all material times prior thereto, Section 489.129, Florida Statutes, provided in pertinent part as follows:
The board may revoke, suspend, ... the certificate or registration of a contractor and impose an administrative 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 or director, trustee, or member of a business entity for which the contractor is a qualifying agent, is found guilty of any of the following acts:
* * *
(d) Will full or deliberate disregard and violation of the applicable building codes or laws of the state or of any municipalities or counties thereof.
* * *
(h) Financial mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Financial mismanagement or misconduct occurs when:
1. 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 not had the liens removed from the property, by payment or by bond, within 30 days after the date of such liens.
* * *
Failure in any material respect to comply with the provisions of this act.
Abandonment of a construction project in which the contractor is engaged or under contract as a contractor. A project is to be considered abandoned after 90 days if the contractor terminates the project without notification to the prospective owner and without just cause.
* * *
(m) Upon proof that the licensee is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.
If a contractor disciplined under subsection (1) is a qualifying agent for a business entity and the violation was performed in connection with a construction project undertaken by that business entity the board may impose an additional administrative fine not to exceed $5,000 against the business entity or against any partner, officer,
director, trustee, or member if such person participated in the violation or knew or should have known of the violation and failed to take reasonable corrective action.
The board may specify by rule the acts or omissions which constitute violations of this section.
Effective October 1, 1988, Section 489.129, Florida Statutes, was amended to give the Construction Industry Licensing Board the additional authority to require an errant contractor to make "financial restitution to a[n aggrieved] consumer" and to take "continuing education" courses. Because the amendment imposes new penalties and it took effect after the acts of alleged professional misconduct were committed by Respondent, it has no application to the instant case. See Larson v. Independent Life and Accident Insurance Co. 29 So.2d 448 (Fla. 1947); Anderson v. Anderson, 468 So.2d 528, 530 (Fla. 3d DCA 1985), cert.
denied, 476 So.2d 672 (Fla. 1985).
A "qualifying agent" has the statutory responsibility "to supervise, direct, manage, and control the contracting activities of the business entity with which [he] is connected." Section 489.105(4), Fla. Stat. This responsibility may not be delegated by the "qualifying agent" to another licensed contractor. Because he has a nondelegable statutory obligation to oversee all construction projects undertaken by the business entity he has qualified, the "qualifying agent" may be held liable and disciplined for statutory violations committed in connection with such projects, regardless of his actual involvement in these projects, on the theory that he breached his duty to supervise. See Gatewood v. McGee, 475 So.2d 720 (Fla. 1st DCA 1985); Alles v. Department of Professional Regulation, 423 So.2d 624 (Fla. 5th DCA 1982).
Case No. 89-2204
In connection with the project undertaken by Gulf pursuant to its May 2, 1987, contract with the Laus, Respondent, in his capacity as Gulf's "qualifying agent," willfully disregarded the provisions of the South Florida Building Code by permitting the installation of an unapproved aluminum air vent system and by failing to request an official inspection of the project upon its completion, in so doing, Respondent violated Sections 489.129(1)(d), (j) and (m), Florida Statutes, as charged by the Department in the administrative complaint.
Case No. 89-2205
In connection with the project undertaken by Gulf pursuant to its December 29, 1986, contract with Marvin Lichtenstein, Respondent, in his capacity as Gulf's "qualifying agent," willfully disregarded the provisions of the South Florida Building Code by allowing work to commence without the required permit first having been obtained and by failing to request an official inspection of the project upon its completion. In so doing, Respondent violated Sections 489.129(1)(d), (j) and (m), Florida Statutes, as charged by the Department in the administrative complaint.
The administrative complaint in this case further alleges that there was "gross negligence and/or incompetence in connection with said job,
attributable either to Respondent personally, or to Respondent's failure to supervise, in violation of Section 489.129(1)(m), (j); 489.119; 489.105(4); the problems being generally in relation to: Unilaterally changing or allowing change of monthly contract payments ... from $71 to $92." The evidence adduced in support of this charge reveals that Gulf agreed to arrange financing for Lichtenstein to pay the $3,900.00 unpaid balance of the contract price; Gulf represented that the interest rate on any loan Lichtenstein received would be "appr[oximately] 10-11%" and that Lichtenstein therefore would have a "monthly payment of appr[oximately] $71 or less;" at the behest of Gulf, Lichtenstein was subsequently offered a loan by AmSav Financial, Inc., in the amount of $3,900 to be paid off in 60 months; pursuant to the terms of the offer monthly payments would be $92.82, based on an interest rate of 14.50%; Lichtenstein rejected the offer and therefore, contrary to the suggestion made in the complaint, did not become obligated to make monthly payments of $92; a dispute ensued between Gulf and Lichtenstein over payment for the work performed by Gulf; and the dispute was resolved when Gulf accepted $2,500 from Lichtenstein as payment in full for said work, which is considerably less than the total amount he would have had to pay had he taken out a 60-month loan and repaid it by making monthly payments of
$71. The foregoing suggests no wrongdoing on the part of Gulf, for which Respondent may be held accountable. Accordingly, the Department's charge alleging that Respondent displayed "gross negligence and/or incompetence" in connection with this matter should be dismissed.
Case No. 89-2206
The administrative complaint in this case alleges that Respondent should be disciplined because he performed contracting work that "exceeded the scope of his license concerning type of work" and because, in addition, he violated local law, either deliberately or through improper supervision, by proceeding "without a timely permit having been issued" and "without obtaining all required inspections." The record evidence, however, does not clearly and convincingly establish that the project in question was one undertaken by Gulf or by Respondent in his capacity as an individual contractor. That Gulf, following a complaint made against it, was cited for violating the laws of Dade County in connection with this project is insufficient, standing alone without any independent competent substantial evidence supporting the factual underpinnings of the citation, to clearly and convincingly link either Gulf or Respondent to this project. In the absence of clear and convincing evidence of such a connection, the administrative complaint in this case should be dismissed in its entirety.
Case No. 89-2207
In connection with the project undertaken by Gulf pursuant to its January 12, 1987, contract with Bryan Bitner, Respondent, in his capacity as Gulf's "qualifying agent," willfully disregarded the provisions of the South Florida Building Code by allowing work to commence without the required permits first having been obtained. In so doing, Respondent violated Section 489.129(1)(d), (j) and (m), Florida Statutes, as charged by the Department in the administrative complaint.
By permitting Gulf to terminate the Bitner project prior to its completion without notification to Bitner and without any apparent good cause, Respondent, in his capacity as Gulf's "qualifying agent," violated Section 489.129(1)(k), Florida Statutes, and therefore engaged in "misconduct" in violation of Section 489.129(1)(m), Florida Statutes, as charged by the Department in the administrative complaint.
Because the Bitner project was not completed, it appears that there was no duty under the South Florida Building Code to call for an inspection of the project. Accordingly, the charge in this case that "Respondent proceeded without obtaining all required inspections" is without merit and therefore should be dismissed.
Case No. 89-2208
In connection with the project undertaken by Gulf pursuant to its December 19, 1985, contract with the Rabecks, Respondent, in his capacity as Gulf's "qualifying agent," willfully disregarded the provisions of the South Florida Building Code by allowing work to commence without the required permit first having been obtained and by failing to request an official inspection of the project upon its completion. In so doing, Respondent violated Section 489.129(1)(d), (j) and (m), Florida Statutes, as charged by the Department in the administrative complaint.
The administrative complaint in this case further charges that "Respondent exhibited financial mismanagement, misconduct, or diversion, in violation of 489.129(1)(h), (m)" and that he "failed to properly supervise the finances on said job, in violation of 489.129(1)(m), (j); 489.119; 498.105(4)." To have met its burden of proof regarding these allegations, the Department had to show by clear and convincing evidence, among other things, that either Gulf or Respondent had received funds from the Rabecks to pay for the project. Section 489.129(1)(h)1, Fla. Stat. The Department failed to make such a showing. The only record evidence concerning any payment made by the Rabecks to Gulf or Respondent is the handwritten notation, "paid in full," appearing on the contract between Gulf and the Rabecks. The record does not reveal, however, by whom this notation was made; nor is there any indication as to the circumstances surrounding its making. It cannot be said therefore that the Department has clearly and convincingly demonstrated that either Gulf or Respondent received payment from the Rabecks. In view of the Department's failure to have adequately proven such payment, the charges against Respondent pertaining to the financial management of the Rabeck project should be dismissed.
Case No. 89-2209
In connection with the project undertaken by Gulf pursuant to its February 21, 1987, contract with James Cox, Respondent, in his capacity as Gulf's "qualifying agent," willfully disregarded the provisions of the South Florida Building Code by allowing work to commence without the required permit first having been obtained and by failing to request an official inspection of the project upon its completion. In so doing, Respondent violated Section 489.129(1)(d), (j) and (m), Florida Statutes, as charged by the Department in the administrative complaint.
In the spring of 1987, a valid lien was recorded against Cox's property by Steve Buzzella for supplies and services ordered by Gulf for completion of the project. Notwithstanding that Gulf has long since been paid in full by Cox, it has yet to have the lien removed. Based on these facts, which were established by clear and convincing evidence, the Hearing Officer further concludes that Respondent, in his capacity as Gulf's "qualifying agent," engaged in financial mismanagement and misconduct in violation of Section 489.129(1)(h), (j) and (m), Florida Statutes, as charged by the Department in the administrative complaint.
Case No. 89-2210
In connection with the project undertaken by Gulf pursuant to its June 30, 1986, contract with the Spiegels, Respondent, in his capacity as Gulf's "qualifying agent," willfully disregarded the provisions of the South Florida Building Code by allowing work to commence without first having obtained the required permit and by failing to request an official inspection upon completion of the project. In so doing, Respondent violated Section 489.129(1)(d), (j) and (m), Florida Statutes, as charged by the Department in the administrative complaint.
The administrative complaint further alleges that, in connection with Gulf's texture coating of the Spiegels' residence, there was "gross negligence," "incompetence," and "misconduct" for which Respondent, by virtue of his being Gulf's "qualifying agent," should be held accountable. Clear and convincing evidence was adduced at hearing to support this claim. Accordingly, the Hearing Officer further concludes that Respondent violated Section 489.129(1)(j) and (m), Florida Statutes, by allowing the texture coating of the Spiegels' residence to be done in a grossly negligent and incompetent manner.
The Spiegels have requested Gulf to correct the problems caused by its grossly negligent and incompetent workmanship. Although obligated to do so by the warranty it gave the Spiegels, Gulf has failed to take any corrective action. Accordingly, the Hearing Officer makes the additional determination that, as charged by the Department in the administrative complaint, Respondent, in his capacity as Gulf's "qualifying agent," engaged in misconduct in violation of Section 489.129(1)(j) and (m), Florida Statues, by failing to reasonably honor the warranty given by Gulf to the Spiegels.
Case No. 89-2211
In connection with the project undertaken by Gulf pursuant to its February 18, 1985, contract with Angelo Bertolino, Respondent, in his capacity as Gulf's "qualifying agent," failed to reasonably honor the warranty given Bertolino by Gulf. In so doing, Respondent engaged in misconduct in violation of Section 489.129(1)(j) and (m), Florida Statutes, as charged by the Department in the administrative complaint.
Case No. 89-2212
On March 4, 1988, a valid lien was recorded against the property of Edward Baum by Textured Coatings of America, Inc., for supplies ordered by Gulf for a project Gulf had undertaken pursuant to its January 6, 1988, contract with Baum. Notwithstanding that Gulf has long since been paid in full by Baum, it has yet to have the lien removed. Based on these facts, which were established by clear and convincing evidence, the Hearing Officer concludes that Respondent, in his capacity as Gulf's "qualifying agent," engaged in financial mismanagement and misconduct in violation of Section 489.129(1)(h) and (m), Florida Statutes, as charged by the Department in the administrative complaint.
Case No. 89-2213
In connection with the project undertaken by Gulf pursuant to its February 17, 1987, contract with James Harris, Respondent, in his capacity as Gulf's "qualifying agent," willfully disregarded the provisions of the South Florida Building Code by allowing work to commence without the required permit first having been obtained and by failing to request an official inspection upon
completion of the project. In so doing, Respondent violated Section 489.129(1)(d), (j) and (m), Florida Statutes, as charged by the Department in the administrative complaint.
The administrative complaint in this case further alleges that, in connection with Gulf's installation of the windows in Harris' home, there was "gross negligence," "incompetence" and "misconduct" for which Respondent, by virtue of his being Gulf's "qualifying agent," should be held accountable. Clear and convincing evidence was adduced at hearing to support this claim. Accordingly, the Hearing Officer further concludes that Respondent, in his capacity as Gulf's "qualifying agent," violated Section 489.129(1)(j) and (m),
Florida Statutes, by permitting the windows to be installed in Harris' home in a grossly negligent and incompetent manner.
Penalty
In determining what disciplinary action should be taken against Respondent, it is necessary to consult Chapter 21E-17, Florida Administrative Code, which contains the Construction Industry Licensing Board's disciplinary guidelines. Cf. Williams v. Department of Transportation, 531 So.2d 994, 996 (Fla. 1st DCA 1988)(agency is required to comply with its disciplinary guidelines in taking disciplinary action against its employees).
Florida Administrative Code Rule 21E-17.001 provides in pertinent part:
Normal Penalty Ranges. The following guidelines shall be used in disciplinary cases, absent aggravating or mitigating circumstances and subject to the other provisions of this Chapter.
* * *
(5) 489.129(1)(d) : Permit violations.
* * *
(b) Job finished without a permit having been pulled, or no permit until caught after job, or late permit during the job resulting in missed inspection or inspections. First violation, $250 to $750 fine; repeat violation, $1000 to $2000 fine.
* * *
(8) 489.129(1)(d): Failure to call for inspections. First violation, letter of guidance; repeat violation, $250 to
$750 fine.
* * *
(10) 489.129(1)(h): Diversion of funds. First violation, $750 to $1500 fine; repeat violation, revocation.
(11) 489.129(1)(m): Misconduct by failure to reasonably honor warranty. First violation, $250 to $750 fine; repeat violation, $500 to $1500 fine and one year suspension.
(12) 489.129(1)(k): Abandonment. First violation, $500 to $2000 fine; repeat violation, revocation.
* * *
Gross negligence, incompetence, and/or misconduct, fraud or deceit.
Causing no monetary or other harm to licensee's customer, and no physical harm to any person. First violation,
$250 to $750 fine; repeat violation,
$1000 to $1500 fine and a 3 to 9 month suspension.
Causing monetary or other harm to licensee's customer, or physical harm to any person. First violation, $500 to
$1500 fine; repeat violation $1000 to
$5000 fine and suspension or revocation.
489.129(1)(d): Violation of state or local laws. First violation, $250 to
$750 fine. Repeat violation, $1000 to
$3000 fine.
A "repeat violation," as used in this rule, is described in Florida Administrative Code Rule 21E-17.003 as follows:
As used in this rule, a repeat violation is any violation on which disciplinary action is being taken where the same licensee had previously had disciplinary action taken against him or received a letter of guidance in a prior case; and said definition is to apply regardless of the chronological relationship of the acts underlying the various disciplinary actions, and (ii) regardless of whether the violations in the present or prior disciplinary actions are of the same or different subsections of the disciplinary statutes.
The penalty given in the above list for repeat violations is intended to apply only to situations where the repeat violation is of a different subsection of Chapter 489 than the first violation. Where, on the other hand, the repeat violation is the very same type of violation as the first violation, the penalty set out above will generally be increased over what is otherwise shown for repeat violations on the above list.
Florida Administrative Code Rule 21E-17.005 provides that where, as in these disciplinary proceedings, "several of the above violations [referenced in Rule 21E-17.001] shall occur in one or several cases being considered together, the penalties shall normally be cumulative and consecutive."
The aggravating and mitigating circumstances which must be considered before a particular penalty is chosen are listed in Florida Administrative Code Rule 21E-17.002. They are as follows:
Monetary or other damage to the licensee's customer, in any way associated with the violation, which damage the licensee has not relieved, as of the time the penalty is to be assessed. (This provision shall not be given effect to the extent it would contravene federal bankruptcy law.)
Actual job-site violations of building codes, or conditions exhibiting gross negligence, incompetence, or misconduct by the licensee, which have not been corrected as of the time the penalty is being assessed.
The severity of the offense.
The danger to the public.
The number of repetitions of offenses.
The number of complaints filed against the licensee.
The length of time the licensee has practiced.
The actual damage, physical or otherwise, to the licensee's customer.
The deterrent effect of the penalty imposed.
The effect of the penalty upon the licensee's livelihood.
Any efforts at rehabilitation.
Any other mitigating or aggravating circumstances.
Having considered the facts of the instant case in light of the foregoing provisions of Chapter 21E-17, Florida Administrative Code, it is the view of the Hearing Officer that the appropriate penalty in the instant case for the violations described in paragraphs 7, 8, 11, 12, 14, and 16-24 of these Conclusions of Law is the revocation of Respondent's license The loss of
Respondent's ability to make a living in the contracting business in the State of Florida is ample punishment for his transgressions. The Hearing Officer therefore rejects the suggestion advanced by the Department that he recommend that Respondent also be fined $5,000.00 for each of the violations he committed.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
RECOMMENDED that the Construction Industry Licensing Board enter a final order (1) finding Respondent guilty of the violations described in paragraph 7, 8, 11, 12, 14, and 16-24 of the foregoing Conclusions of Law; (2) revoking his license as punishment for these violations; and (3) dismissing the charges against Respondent discussed in paragraphs 9, 10, 13, and 15 of the foregoing Conclusions of Law.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 8th day of September, 1989.
STUART M. LERNER
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 1989.
APPENDIX TO RECOMMENDED ORDER, CASE NOS. 89-2204 THROUGH 89-2213
The following are the Hearing Officer's specific rulings on the Proposed Findings of Fact submitted by the Department:
1-12. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.
First sentence: Accepted and incorporated in substance; second sentence: Rejected as not supported by persuasive competent substantial evidence inasmuch as it suggests that Lichtenstein was obligated to, and did, make monthly payments of $92.82.
Rejected for the same reason as 13, second sentence, above. 15-16. Accepted and incorporated in substance.
First sentence: Accepted and incorporated in substance; second sentence: Rejected as not supported by persuasive competent substantial evidence to the extent that it asserts that Rojas "had hired Gulf to install an air conditioning unit." Insofar as it describes the complaint received by Childress, it has been accepted and incorporated in substance.
Rejected as not supported by persuasive competent substantial evidence inasmuch as it indicates that the work on the Rojas residence was performed by Respondent.
First and second sentences: Accepted and incorporated in substance; third sentence: Rejected as more in the nature of argument than a finding of fact.
First sentence: Rejected for the same reason as 18 above; second sentence: Accepted and incorporated in substance.
Rejected for the same reason as 18 above. 22-28. Accepted and incorporated in substance.
Rejected as beyond the scope of the charges to the extent that it addresses the quality of the work that was completed. In all other respects, this proposed finding has been accepted and incorporated in substance.
First sentence: Accepted and incorporated in substance; second sentence: Rejected as not supported by persuasive competent substantial evidence.
31-32. Accepted and incorporated in substance.
33-34. Rejected as not supported by persuasive competent substantial evidence inasmuch as both of these proposed findings are based upon the premise that the Rabeck's paid Gulf in full.
36-44. Accepted and incorporated by reference.
45. Rejected as unnecessary, except for the last sentence, which has been accepted and incorporated in substance.
46-62. Accepted and incorporated in substance.
63. Rejected as unnecessary except to the extent it references the lien filed against the Baum residence. Insofar as it addresses said lien, it has been accepted and incorporated in substance.
65-66. Accepted and incorporated in substance.
67. First sentence: Rejected as unnecessary; second and third sentences: Accepted and incorporated in substance.
68-71. Accepted and incorporated in substance.
COPIES FURNISHED:
Gregory A. Victor, Esquire Jan L. Darlow, Esquire William Burke, Esquire Bayview Executive Plaza
3225 Aviation Avenue, Suite 400
Miami, Florida 33133
Edward Ryan
169 Lincoln Road
Miami Beach, Florida 33139
Fred Seely Executive Director
Construction Industry Licensing Board
Post Office Box 2 Jacksonville, Florida 32201
| Issue Date | Proceedings |
|---|---|
| Sep. 08, 1989 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 08, 1990 | Agency Final Order | |
| Sep. 08, 1989 | Recommended Order | Qualifying agent's willful disregard of provisions of building code, misconduct, gross negligence, mismanagement warranted revocation of license. |
