Jul 10 200? 10:45 arfle/2ae7y lara. 8589219186 DEPR PAGE 3/24 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD DIVISION I & It DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, Petitioner, Vv. Case Nos.: 2005-041301; 2004-058045 _ oe : 2004-056285; 2005-041196 ROBERT CUNNYNGHAM 2004056280; 2005-041300 d/b/a FLORIDA, ACCENT BUILDERS, INC., Respondent. : / ADMINISTRATIVE COMPLAINT Petitioner, DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, ("Petitioner"), files this Administrative Complaint before the Construction Industry Licensing Board against ROBERT CUNNYNGHAM ("Respondent") d/b/a FLORIDA ACCENT BUILDERS, INC. 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 Construction Financially Responsible Officer'in the State of Florida, having been issued license number FRO $23. 3. Respondent's last known address is C/O Dennis K. Bayer, Esq., 306 8. Oceanshore Blvd., Flagler Beach, Florida 32136. Jul 10 200? 10:45 arfle/2ae7y lara. 8589219186 DEPR PAGE @d/24 j 4, At all times material hereto, Respondent was the Financially Responsible Officer for Florida Accent Builders, Inc. ("FAB"), which has certificate of authority QB# 0007732. The status of the QB license is Delinquent. 5. Section 489.1195(1)(b), Florida Statutes, provides in part that a financially responsible officer shall be responsible for all financial aspects of the business organization. 6. At all times material hereto, Fred Thellman (“Thellman’” , 4 Certified General Contractor in the State of Florida, having been issued license number CG 0009077, was the primary qualifying agent for FAB. 7. Section 489.1195(1)(a), Florida Statutes, provides in part that all primary qualifying agents for a business organization are jointly and equally responsible for supervision of all operations of the business organization and for all field work at all sites. FACTS PERTAINING TO CASE. NO. 2005-041301 . 8. On or about July 22, 2003, Respondent, on bebalf of FAB, entered into a contract with Marsha Wall (“Wall”), to build a new residence at 6 Bumet Place, Palm Coast, FLL 32137 (“the residence”). , 9. The contracted price for the construction was $157,716.00, of which amount FAB accepted $147,320.00, ot ninety-three percent (93%) of the contracted price. 10, On or about November 21, 2003, the City of Palm Coast Building Department issued Building Permit number 2003110184, by and through Thellman’s license, for the . contracted construction of the addition. 11. Construction commenced on or about November 21, 2003, and continued until in or around September, 2004, at which time constriction ceased without just cause or notice to Complainant. Jul 10 200? 10:45 arfle/2ae7y lara. 8589219186 DEPR PAGE 85/24 j 12. At the time construction ceased, Respondent had failed to pay materialmen and/or subcontractors who had provided labor and/or materials for the contracted construction. 13. As aresult of Respondent’s failure to pay for labor and/or materials supplied fox the residence, valid liens were filed on Wall’s property by materialmen and subcontractors, including but not limited to the following: Tom’s Tropic Air, Inc. for $2,342.00 and East Coast Concrete & Materials, Inc. for an unknown amount. 14. Wall paid to have the above liens removed from her property, 15, At the time construction ceased, the percentage of contracted work completed was less than the percentage of the contract price paid. COUNT I 16. Petitioner realleges and incorporates the allegations set forth in paragraphs 1 through 15 above as though fully set forth hercin. 17, Based on the foregoing, the Respondent violated Section 489.129(1)(2)(1), Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Financial mismanagement or misconduct occurs when 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 or by bond, within 75 days after the date of such liens. COUNT 18. Petitioner realléges and incorporates the allegations set forth in paragraphs 1 through 15 above as though fully set forth herein, Jul 10 200? 10:45 arfle/2ae7y lara. 8589219186 DEPR ; PAGE &6/24 ) | 19. Based on the foregoing, Respondent violated section 489.129( 1)(2)2, Florida _ Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm toa customer. Financial mismanagement or miscondiict occurs when the contractor has abandoned 2 customer's job and the percentage of completion is less than the percentage of the total contract price'paid to the contractor as of the time of abandonment, unless the contractor is.entitled to retain such funds under the terms of the contract or refunds the excess funds within 30 days after the date the job is abandoned. COUNT Tit — 20. Petitioner realleges and incorporates the allegations set forth in paragraphs through 15 above as though fully set forth herein. 21, Based on the foregoing, Respondent has violated Section 489,129(1)(), Florida Statutes, 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 reasons for termination, ot fails to perform work without just cause for 90 consecutive days. COUNT IV 22. Petitioner tealleges and incorporates the allegations set forth in paragraphs 1 through 15 above as though fully set forth herein, 23, Based on the foregoing, Respondent violated section 489.129(1)(m), Florida Statutes, by committing incompetency or misconduct in the practice of contracting. Jul 10 200? 10:45 arfle/2ae7y lara. 8589219186 DEPR PAGE a7/2d 1) , FACTS PERTAINING TO CASE NO. 2004-058045 24. On or about September 2, 2003, Respondent, on behalf of FAB, entered into a contract with Marie Domingues (“Domingues”) to build a new residence at 6 Flaxton Lane, Palm Coast, Florida 32137 (“the residence”), 25, The contracted price for the construction was $165,016.00, of which amount FAB accepted $119,371.80, or seventy-two percent (72%) of the contracted price, 26, On or about December 9, 2003, the City of Palm Coast Building Department issued Building Permit number 2003110557, by and through Thellman’s license, for the contracted construction. | 27. Construction commenced in or around January, 2004, and continued until in or around May, 2004, at which time construction ceased without just cause of notice to Domingues. 28. At the time construction ceased, the percentage of contracted work completed was less than the percentage of the contract price paid. COUNT v 29. Petitioner realleges and incorporates the allegations set forth in paragraphs 1 through 7 and 24 through 28 above as though fully set forth herein. 30. Based on the foregoing, Respondent violated section 489.129(1)(g)2, Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Financial mismanagement or misconduct occurs when the contractor has abandoned a customer's job and the percentage of completi on is less than the percentage of the total contract price paid to the contractor as of the time of abandonment, unless the contractor is entitled to retain such funds under the terms of the contract or refiinds the excess funds within 30 days after the date the job is abandoned. Jul 10 200? 10:47 arfle/2ae7y lara. 8589219186 DEPR PAGE 8/24 ) ) COUNT VI 31. Petitioner realleges and incorporates the allegations set forth in paragraphs 1 through 7 and 24 through 28 above as though fully set forth herein. 32. Based on the foregoing, Respondent has violated Section 489.129(1)(), Florida Statutes, 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 reasons for termination, or fails to perform work without just cause for 90 consecutive days. COUNT VII | 33. Petitioner realleges and incorporates the allegations set. forth in paragraphs 1 through 7 and 24 through 28 above as though fully set forth herein, 34, Based on the foregoing, Respondent violated section 489.129(1)(m), Florida Statutes, by committing incompetency or misconduct in the practice of contractiag. FACTS.PERTAINING FO CASE NO. 2004-056285 35. On or about October 7, 2003, Respondent, on behalf of FAB, entered into a ‘contract with Santo and Linda Macaluso (“Macaluso”), to build a new residence at 49 Fenwood Lane, Palm Coast, Florida (“the residence”). 36. The contracted price of the construction was $162,470.00, of which amount FAB accepted $61,034.92, or thirty-eight percent (38%) of the contracted price. 37. Onor about May 12, 2004, the City of Palm Coast Building Department issued Building Permit number 2004040812, by and through Thellman’s license, for the contracted construction. Jul 10 200? 10:47 arfle/2ae7 1a:3l 8589219186 DEPR ; PAGE @g/2d } ) 38. Construction commenced in or around June, 2004, and continued until on or about July 6, 2004, at which time construction ceased without just cause or notice to Macaluso. 39. At the time construction ceased, the percentage of contracted work completed was Jess than the percentage of the contract price paid. 40. At the time construction ceased, Respondent had failed to pay materialmen and/or subcontractors who had provided labor and/or materials for the contracted construction, including but not limited to: East Coast Concrete and Materials, Inc. in the amount of $6,365.43. 41. As a result of Respondent’s failure to pay for labor and/or materials supplied for the project, the above lien was filed on September 10, 2004 and Macaluso paid ‘it in full. COUNT VMI 42, Petitioner realleges and incorporates the allegations set forth in paragraphs 1 through 7 and 35 through 41 above as though fully set forth herein. 43, Based on the foregoing, the Respondent violated Section 489.129(1)(2)(1), Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to acustomer. Financial mismanagement or misconduct occurs when 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 or by bond, within 75 days after the date of such liens, COUNT IX 44, Petitioner realleges and incorporates the allegations set forth in paragraphs 1 through 7 and 35 through 41 above as though fully set forth herein. | Jul 10 200? 10:47 arfle/2ae7y lara. 8589219186 DEPR PAGE la/2d } ) 45, Based on the foregoing, Respondent violated section 489.129(1)(g)2, Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Financial mismanagement or misconduct occurs when the contractor has abandoned a customer's job and the percentage of completion is less than the percentage of the total contract price paid to the contractor as of the time of abandonment, unless the contractor is entitled to retain such funds under the terms of the contract or refunds the excess funds within 30 days after the date the job is abandoned. . COUNT X 46. Petitioner realleges and incorporates the allegations set forth in paragraphs 1 through 7 and 35 through 41 above as though fully set forth herein. 47, Based on the foregoing, Respondent has violated Section 489,129(1)(j), Florida Statutes, 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 reasons for termination, or fails to perform work without just cause for 90 consecutive days. COUNT AI 4B. Petitioner realleges and incorporates the allegations ‘set forth in paragraphs 1 through 7 and 35 through 41 above as though fully set forth herein. 49, Based on the foregoing, Respondent violated section 489.129(1)\(m), Florida Statutes, by committing incompetency or misconduct in the practice of contracting. Jul 10 200? 10:47 arfle/2ae7y lara. 8589219186 DEPR PAGE ) ) FACTS PERTAINING TO CASE NO. 2005-041196 50. On or about November 12, 2003, Respondent, on bebalf of FAB, entered into a contract with William and Josephine Hetherington (“Hetherington”), to build a new residence at 136 Wellstone Drive, Palm Coast, FL 32164 (“the residence”). 51. The contracted price for the construction was $160,104.00, of which amount FAB accepted $67,767.28, or forty percent (40%) of the contracted price. §2. On. or about February 18, 2004, the City of Palm Coast Building Department issued Building Permit number 2004010093, by and through Thellman’s license, for the contracted construction. 33. Construction commenced in or around February, 2004 and continued until on or about July 28, 2004, at which time construction ceased without just cause or notice to Hetherington. | 54. At the time construction ceased, the percentage of contracted work completed was less than the percentage of the contract price paid. . 55. In or around December 2004, Hetherington hired a different licensed contractor, Skyway Builders, Inc., to complete the residence and the residence passed final inspection on or about June 24, 2005. COUNT XI 56. Petitioner realleges and incorporates the allegations set forth in paragraphs 1 through 7 and 50 through 55. above as though fully set forth hercin. 57. Based on the foregoing, Respondent violated section 489,129(1)(g)2, Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Financial mismanagement or misconduct occurs when the ll/24 Jul 10 2007 10:48 arfle/2ae7y lara. 8589219186 DEPR PAGE 12/24 } } contractor has abandoned a customer's job and the percentage of completion is less than the percentage of the total contract price paid to the comtractor as of the time of abandonment, unless .the contractor is entitled to retain such funds under the terms of the contract or refunds the excess funds within 30 days after the date the job is abandoned. co XID 58. Petitioner realleges and incorporates the allegations set forth in paragraphs 1 through 7 and 50 through 55 above as though fully set forth herein. 59, Based on the foregoing, Respondent has violated Section 489.129(1)(), Florida Statutes, 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 reasons for termination, or fails to perform work without just cause for 90 consecutive days. COUNT XIV 60. Petitioner realleges and incorporates the allegations set forth in paragraphs 1 through 7 and 50 through 55 above as though fully set forth herein. Si, Based on the foregoing, Respondent violated section 489.129(1)(m), Florida Statutes, by committing incompetency or misconduct in the practice of contracting, FACTS PERTAINING TO CASE NO. 2004-056280 62. On or about November 14, 2003, Respondent, on behalf of FAB, entered into a contract with Clay McInnis (“McInnis”), to build a new residence at 4 Pine Circle Place, Palm Coast, FL (“the residence”), 63. The contracted price for the construction was $171,540.00, of which amount FAB accepted $136,473.55, or cighty percent (80%) of the contracted price. Jul 10 2007 10:48 arfle/2ae7y lara. 8589219186 DEPR PAGE 13/24 } ) 64. On or about January 15, 2004, the City of Palm Coast Building Department issued. Building Permit number 2003 120171, by and through Thellman’s license, for the contracted construction. 65. Construction commenced on or about January 22, 2004, and continued until in or around July 2004, at which time construction ceased without just cause or notice to Complainant. 66, At the time construction ceased, the percentage of contracted work completed was less than the percentage of the contract price paid. COUNT:XV 67. Petitioner realleges and incorporates the allegations set forth in paragraphs 1 through 7 and 62 through 66 above as though fully set forth herein. 68. Based on the foregoing, Respondent violated section 489.129(1)(2)2, Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Financial mismanagement or misconduct occurs when the contractor has abandoned a customer's job and the percentage of completion is less than the percentage of the total contract price paid to the contractor as of the time of abandonment, unless the contractor is entitled to retain such funds under the terms of the contract or refunds the excess funds within 30 days after the date the job is abandoned. COUNT. XVI 69. Petitioner realleges and incorporates the allegations set forth in paragraphs | through 7 and 62 through 66 above as though fully set forth herein. 70. Based on the foregoing, Respondent has violated Section 489.129(1)q), Florida Statutes, 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 I] Jul 10 2007 10:48 af/1a/2687 16:31 8589219186 DEPR PAGE ) : j terminates the project without just cause or without proper notification to the owner, including the reasons for termination, or fails to perform, work without just cause for 90 consecutive days. co XVII 71. ‘Petitioner realleges and incorporates the allegations set forth in paragraphs 1 through 7 and 62 through 66 above as though fully set forth herein. 72. Based on the foregoing, Respondent violated section 489.129(1)(m), Florida Statutes, by committing incompetency or misconduct in the practice of contracting. FACTS PERTAINING TO CASE NO. 2005-041300 73. On or about March 3, 2004, Respondent, on behalf of FAB, entered into a contract with Robert and Francisca Fischer (“Fischer”), to build a new residence at 61 Lake Success, Palm Coast, FL (“the residerice”). 74, The contracted price for the construction was $171,700.00, of which amount FAB accepted $21,153.75, or twelve percent (12%), of the contracted price. 75. On or about July 29, 2004, the City of Palm Coast Building Department issued Building Permit number 53380407, by and through Thellman’s license, for the contracted construction. 76. Construction commenced on or about August 6, 2004 and continued until on or about August 10, 2004, at which time construction ceased without just cause or notice to Fischer. 77. At the time construction ceased, the percentage of contracted work completed was less than the percentage of the contract price paid. COUNT XVHI 78. Petitioner realleges and incorporates the allegations set forth in paragraphs 1] through 7 and 73 through 77 above as though fully set forth herein. 2 Jul 10 2007 10:48 af/1a/2687 16:31 8589219186 DEPR PAGE 15/24 ) ; } 79. Based on the foregoing, Respondent violated section 489.129(1)(#)2, Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Financial mismanagement or misconduct occurs when the contractor has abandoned a customer's job and the percentage of completion is less than the percentage of the total contract price paid to the contractor as of the time of abandonment, unless the contractor is entitled to retain such finds under the terms of the contract or refunds the excess funds within 30 days after the date the job is abandoned. COUNT XIX 80. Petitioner realleges and incorporates the allegations set forth in paragraphs 1 through 7 and 73 through 77 above as though fully set forth herein. . 81. Based on the foregoing, Respondent has violated Section 489.129(1)q), Florida Statutes, by abandoning a construction project in which the contractor is engaged of under contract ag 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 reasons for termination, or fails to perform work without just cause for 90 consecutive days. COUNT XX | 82. Petitioner realleges and incorporates the allegations set forth in paragraphs 1 through 7 and 73 through 77 above as though fully set forth herein. 83. Based on the foregoing, Respondent violated section 489.129(1)(m), Florida _ Statutes, by committing incompetency or misconduct in the practice of contracting. WHEREFORE, Petitioner respectfully requests the Construction Industry Licensing Board enter an Order imposing one or more of the following penalties: place on probation, 13 Jul 10 200? 10:49 arfle/2ae7y lara. 8589219186 DEPR PAGE 16/24 ) \ 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 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. . tan! Signed this oe day of___ /V\ Cus 4 , 2006. Lisa ins i Assistant General a onal Regulation pepartment of Business * and reek COUNSEL FOR. DEPARTMENT: AGEN! Lisa Livezey Comingore Assistant General Counsel Department of Business and f.\0 Professional Regulation CLERK Soa wh 20 eno Office of the General Counsel Suh ty t200t 1940 N. Monroe Street, Ste. 42 nate Tallahassee, FL 32399-2202 : ‘Case #8: 2005-041301; 2004-058045; 2004-056285; 2005-041 196; 2004-056280; 2005-041300 PC Found: May 23, 2006 Division I: Kalmanson & Cox Division IT: Brown & Weller

Docket for Case No: 07-003082PL