STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION _ CONSTRUCTION INDUSTRY LICENSING BOARD DIVISION II DEPARTMENT OF BUSINESS AND 4 PROFESSIONAL REGULATION, DY -L>80FL Petitioner, Case Nos. 2002-001557 2002-004991 vs. 2002-009246 2002-011903 NELSON DAVID CASTILLO, Respondent. / ADMINISTRATIVE COMPLAINT Petitioner, DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, ("Petitioner"), files this Administrative Complaint before the Construction Industry Licensing Board, against NELSON DAVID CASTILLO, ("Respondent"), and says: 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. Respondent is, and has been at all times material hereto, a Certified Pool/Spa Servicing Contractor, in the State of Florida, having been issued license number CP C056869. 3. Respondent's last known address is 17641 SW 87" Avenue, Miami, Florida 33157. 4. At all times material hereto, Respondent was licensed as the qualifying agent of Kristal Blue Pool Company of Miami (hereinafter "Contractor"), a Florida corporation. 5. 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 April 6, 2001, the Contractor entered into a written contract with . Joyce Marquez-Dearstein (“Customer”) to construct a swimming pool and deck at 12021 S.W. 184th Street, Miami, Florida. 7. The contract price was Sixteen Thousand, Eight Hundred dollars ($16,800.00). 8. The contract did not include a notice explaining the consumer’s rights under the Construction Industries Recovery Fund. 9. Pursuant to the contract, the Customer made payments to the Contractor on or - about the following dates and in the following amounts: May 5, 2001, $5,040.00; June 5, 2001, $5,040.00; and June 5, 2001, $4,085.00, for a total of $14,165.00. 10. Section 489.105(3)(1), Florida Statutes (2000), defines the scope of work of a swimming pool/spa servicing contractor license as follows: 489.105 Definitions.—As used in [Part I of Chapter 489, Florida Statutes]: (3) “Contractor” means the person who is qualified for, and shall only be responsible for, the project contracted for and means, except as exempted in this part, the person who, for compensation, undertakes to, submits a bid to, or does himself or herself or by others construct, repair, alter, remodel, add to, demolish, subtract from, or improve, any building or structure, including related improvements to real estate, for others or for resale to others, and whose job scope is substantially similar to the job scope described in one of the subsequent 2 paragraphs of this subsection.*** * x * * * (i) “Swimming pool/spa servicing contractor” means a contractor whose scope of work involves the servicing and repair of any swimming pool or hot tub or spa, whether public or private. The scope of such work may include any necessary piping and repairs, replacement and repair of existing equipment, or installation of new additional equipment as necessary. The scope of such work includes the reinstallation of tile and coping, repair and replacement of all piping, filter equipment, and chemical feeders of any type, replastering, reconstruction of decks, and reinstallation or addition of pool heaters. The installation, construction, modification, substantial or complete disassembly, or replacement of equipment permanently attached to and associated with the pool or spa for the purpose of water treatment or cleaning of the pool or spa requires licensure; however, the usage of such equipment for the purposes of water treatment or cleaning shall not require licensure unless the usage involves construction, modification, substantial or complete disassembly, or replacement of such equipment. Water treatment that does not require such equipment does not require a license. In addition, a license shall not be required for the cleaning of the pool or spa in any way that does not affect the structural integrity of the pool or spa or its associated equipment. 11. The Contractor performed or partially performed the work called for by the contract. COUNT I 12. Petitioner realleges and incorporates the allegations set forth in paragraphs one through eleven as though fully set forth in this Count I. 13. Section 489.1425, Florida Statutes, provides: 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 Construction Industries Recovery Fund, except where the value of all labor and materials does not exceed $2,500. 14. Based upon the foregoing, the Respondent violated Section 489.129(1)(), Florida Statutes (2000), by failing in any material respect to comply with the provisions of this part or violating a rule or lawful order of the board. COUNT if 15. Petitioner realleges and incorporates the allegations set forth in paragraphs one through eleven as though fully set forth in this Count I. 16. Based on the foregoing, the Respondent is guilty of having violated Sections 489,129(1)(c) and 455.227(1)(0), Florida Statutes (2000), by practicing or offering to practice beyond the scope permitted by law, by contracting to build, and/or by building, a swimming pool and deck. COUNT UI 17. Petitioner realleges and incorporates the allegations set forth in paragraphs one through five and ten as though fully set forth in this Count IT. 18, On or about June 30, 2001, the Contractor entered into a written contract with Jose and Bernardina Rodriguez (“Customers”) to construct a swimming pool and deck at 2095 N.W. 14th Street, Miami, Florida. 19. The contract price was Fourteen Thousand, Five Hundred dollars ($14,500.00). 20. The contract did not include a notice explaining the consumer’s rights under the Construction Industries Recovery Fund. 21. Pursuant to the contract, the Customers made payments to the Contractor on or about the following dates and in the following amounts: July 2, 2001, $4,350.00; and November 26, 2001, $4,350.00, for a total of $8,700.00. 22. The Contractor performed or attempted to perform, but did not complete, the work called for by the contract. After about December 2001, without just cause and notice to the Customers, the Contractor performed no further work, thereby abandoning the project. 23. On or about May 14, 2002, the Customers received an estimate from Noxon Construction Corp., for construction work to be performed. The estimate included itemized estimates for completion of the swimming pool for $5,800.00 and completion of the deck for $3,161.00. 24 Based on the foregoing, the Respondent is guilty of having violated Sections 489,129(1)(c) and 455.227(1)(o), Florida Statutes (2000), by practicing or offering to practice beyond the scope permitted by law, by contracting to build, and/or by building, a swimming pool and deck. COUNT IV 25. Petitioner realleges and incorporates the allegations set forth in paragraphs seventeen through twenty-three as though fully set forth in this Count IV. 26. Section 489.1425, Florida Statutes, provides: 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 Construction Industries Recovery Fund, except where the value of all labor and materials does not exceed $2,500. 27. Based upon the foregoing, the Respondent violated Section 489. 129(1)(i), Florida Statutes (2000), by failing in any material respect to comply to with the provisions of this part or violating a rule or lawful order of the board. COUNT Vv 28. _—~ Petitioner realleges and incorporates the allegations set forth in paragraphs seventeen through twenty-three as though fully set forth in this Count V. 29. Based upon the foregoing, the Respondent violated Section 489,129(1)G@), Florida Statutes (2000), by abandoning a construction project in which the contractor is engaged or under 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, including the reason for termination, or fails to perform work without just cause for 90 consecutive days. COUNT VI 30, Petitioner realleges and incorporates the allegations set forth in paragraphs one through five and ten as though fully set forth in this Count VI. 31. On or about October 15, 2001, the Contractor entered into a written contract with Orestes and Lourdes Martinez (“Customers”) to construct a swimming pool, deck, and spa at 6850 S.W. 28th Terrace, Miami, Florida. The contract contained a lifetime warranty on the structure and a 5-year warranty on cosmetic aspects. 32, The contract price was Nineteen Thousand, One Hundred Twenty-Five dollars ($19,125.00). 33. The contract did not include a notice explaining the consumer’s rights under the Construction Industries Recovery Fund. 34. Pursuant to the contract, the Customers made payments to the Contractor on or about the following dates and in the following amounts: October 15, 2001, $5,737.50; February 21, 2002, $2,861.21; and April 3, 2002, $1,822.87, for a total of $10,421.58. The Customers also made payments totaling approximately $7,197.37 to the Contractor’s subcontractors and suppliers. 35. The Respondent performed or attempted to perform the work called for by the contract, On or about May 3, 2002 the work received a passing final inspection from the building - department. 36. Onor about May 3, 2002 the Customers notified the Contractor that the pool leaked and that there were other problems with the pool, the deck, and the spa, and that the Customer’s sidewalk had been damaged during excavation and needed to be repaired. The Contractor agreed to inspect but subsequently failed or refused to inspect or otherwise address any of the Customers’ concerns. 37. Based on the foregoing, the Respondent is guilty of having violated Sections 489.129(1)(c) and 455.227(1)(o), Florida Statutes (2000), by practicing or offering to practice beyond the scope permitted by law, by contracting to build, and/or by building, a swimming pool, deck, and spa. COUNT Vi 38. Petitioner realleges and incorporates the allegations set forth in paragraphs thirty through thirty-six as though fully set forth in this Count Vil. 39. Section 489.1425, Florida Statutes, provides: 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 Construction Industries Recovery Fund, except where the value of all labor and materials does not exceed $2,500. 40. Based upon the foregoing, the Respondent violated Section 489.129(1)(i), Florida Statutes (2000), by failing in any material respect to comply to with the provisions of this part or violating a rule or lawful order of the board. COUNT VU Al, Petitioner realleges and incorporates the allegations set forth in paragraphs thirty through thirty-six as though fully set forth in this Count VIII. 42. _ Based upon the foregoing, the Respondent violated Section 489. 129(1)(m), Florida Statutes (2000), by committing incompetency or misconduct in the practice of contracting by failing to honor a warranty. COUNT IX 43. Petitioner realleges and incorporates the allegations set forth in paragraphs one through five and ten as though fully set forth in this Count IX. 44. On or about January 7, 2002, the Contractor entered into a written contract with Madelene and Raul Cabrera (“Customers”) to construct a swimming pool and deck at 1112 Alfonso Avenue, Coral Gables, Florida. 45. The contract price was approximately Twenty-Four Thousand Seven Hundred Fifty dollars ($24,750.00). 46. Onor about January 7, 2002, the Contractor applied to the City of Coral Gables (the “City”) for a building permit for the project. On or about January 16, 2002, the City approved the application and issued building permit number 02010281. 47. Onor about January 28, 2002, the City cancelled the building permit and issued a stop work order because the project was outside the scope of the Contractor’s license. — 48. Thereafter, and while the City’s stop work order remained in effect, the Contractor completed the project. 49. _ Inreference to the Cabrera pool project, on or about July 31, 2002 the City’s Building and Zoning Department issued a three-count administrative complaint charging the Respondent and the Contractor with having worked outside the scope of the Respondent’s license, with having violated the City’s stop work order, and with having built the pool without inspections. The City’s Construction Regulation Board (“CRB”) conducted a hearing on those charges on August 19, 2002. The CRB found the Respondent guilty of working outside the scope of the Respondent’s license, suspended indefinitely the Respondent's ability to obtain building permits, and required the Respondent to appear at a future CRB meeting in order to report progress toward satisfying inspections and providing engineering reports regarding the Cabrera pool project. 50. Based on the foregoing, the Respondent is guilty of having violated Sections 489.129(1)(c) and 455.227(1)(0), Florida Statutes (2000), by practicing or offering to practice beyond the scope permitted by law, by contracting to build, and/or by building, a swimming pool and deck. COUNT X 51. Petitioner realleges and incorporates the allegations set forth in paragraphs forty- three through forty-nine as though fully set forth in this Count X. 52. Based on the foregoing, the Respondent is guilty of having violated Section 489.129(1)(m), Florida Statutes (2000), by committing incompetency or misconduct in the practice of contracting. COUNT XI 53. Petitioner realleges and incorporates the allegations set forth in paragraphs forty- three through forty-nine as though fully set forth in this Count XI. 54. Based on the foregoing, the Respondent is guilty of having violated Section 489.129(1)(h), Florida Statutes (2000), by being disciplined by any municipality or county for an act or violation of Part I of Chapter 489, Florida Statutes. COUNT XH 55. Petitioner realleges and incorporates the allegations set forth in paragraphs one through eleven, eighteen through twenty-three, thirty-one through thirty-six, and forty-four through forty-nine as though fully set forth in this Count XII. 56. Section 489.119(2), Florida Statutes, provides: ifthe applicant proposes to engage in contracting as a business organization, including any partnership, corporation, business trust, or other legal entity, or in any name other than the applicant’s legal name or a fictitious name where the applicant is doing business as a sole proprietorship, the business organization must apply for a certificate of authority through a qualifying agent and under the fictitious name, if any. 57. Onor about August 31, 1999, the Contractor’s business organization certificate of authority number QB 0006449 expired, and it subsequently became null and void. At all times material hereto, the Contractor failed to have an active business organization certificate of authority as required by Section 489.1 19(2), Florida Statutes. 58. Based upon the foregoing, the Respondent violated Section 489.129(1)(i), Florida Statutes (2000), by failing in any material respect to comply to with the provisions of this part or violating a rule or lawful order of the board. _ 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 $5,000 per violation, require continuing education, assess costs associated with 10 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. Signed this l 4m day of J MG _, 2003. ASSISTANT GENERAL COUNSEL ED Department of Busi COUNSEL FOR DEPARTMENT: of Business and Protassj . DEPUTY CLERK aulation Theodore R. Gay Assistant General Counsel CLERK Brartn 7 “if ott Department of Business and DATE = ~ Professional Regulation £ _7= 18-2003 ed 8685 N.W. 53rd Terrace, Suite 100 Miami, FL 33166 (305) 470-6783 TRG/ 719/03 Case #s 2002-001557, 2002-004991, 2002-009246, 2002-011903 Division LI: PC Found July 2, 2003 Brown / Lawson 1

Docket for Case No: 04-002380PL