STATE OF FLORIDA Mp & *) DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION; “2, | CONSTRUCTION INDUSTRY LICENSING BOARD nin, 4 DIVISION I & II HEMEL» oy, SPE On Tifa SPs DEPARTMENT OF BUSINESS AND = OS Ne PROFESSIONAL REGULATION, OW \ te p (CL Petitioner, v. Case Nos. 2007-043465 2007-049032 2007-064645 MAGALY RODRIGUEZ, Respondent. ADMINISTRATIVE COMPLAINT Petitioner, Department of Business and Professional Regulation, ("Petitioner"), files this Administrative Complaint before the Construction Industry Licensing Board, against Magaly Rodriguez ("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 General Contractor and a Certified Residential Contractor in the State of Florida, having been issued license numbers CGC1510414 and CRC1328362. Respondent is and has been, at all times material hereto since October 9, G:\Ted 2008 Construction Cases\07-043465.Rodriguez. AC.doc 1 2006, a Certified Roofing Contractor in the State of Florida, having been issued license number CCC1327637. 3. Respondent's last known address of record is 12231 S.W. 13lst Avenue, Miami, Florida 33186. 4. At all times material hereto with license numbers .CGC1510414 and CRC1328362, and at all times material hereto on and after October 9, 2006 with license number CCC1327637, the Respondent was licensed as the qualifying agent of Construction Masters of Southern Florida, Inc., a Florida corporation (“Contractor”) with qualified business organization certificate of authority (“QB license”) number QB44749. The Contractor’s QB license expired on August 31, 2007 due to non-renewal on or before that date, and it was not subsequently renewed. 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. COUNT ONE 6. Petitioner realleges and incorporates the allegations set forth in paragraphs one through five as though fully set forth in this Count One. G:\Ted 2008 Construction Cases\07-043465.Rodriguez.AC.doc 2 seas veto! 7. Section 489.119(2) (d), Florida Statutes, provides inter alia that a certificate of authority must be renewed every 2 years. 8. Based upon the foregoing, the Respondent violated Section 489.129(1) (i), Florida Statutes (2005), by failing in any material respect to comply with the provisions of this part or violating a rule or lawful order of the board. Case Number 2007-043465 9. On or about May 11, 2006 the Contractor entered into a written contract with Jorge B. De Armas (hereinafter referred to as “De Armas”) for the construction of a new bedroom and bathroom addition to De Armas’s residence located at 8529 S.W. 133rd Place, Miami, Florida. 10. The contract price was $47,000,00. 11. The contract did not include an explanation of the consumer’s rights under the Florida Homeowners’ Construction Recovery Fund. 12. Pursuant to the contract, during the period from about May 16, 2006 to December 1, 2006, De Armas made payments to the Contractor totaling $37,000.00. 13. During the period May to July 2006 the Contractor performed work in furtherance of the project. Thereafter, and without just cause, the Contractor failed to perform further G:\Ted 2008 Construction Cases\07-043465.Rodriguez.AC.doc 3 seis? work on the project until December 2006. Thereafter, and without just cause, the Contractor failed to perform further work on the project until March 2007. Thereafter, and without just cause, the Contractor failed to perform further work, thereby abandoning the project. 14. At the time of abandonment, the percentage of the contract price paid exceeded the percentage of completion, and the Contractor did not refund to De Armas any of the excess funds. COUNT TWO 15. Petitioner realleges and incorporates the allegations set forth in paragraphs one through five and nine through fourteen as though fully set forth in this Count Two. 16. 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 Florida Homeowners’ Construction Recovery Fund, except where the value of all labor and materials does not exceed $2,500. 17. Based upon the foregoing, the Respondent violated Section 489,.129(1) (i), Florida Statutes (2005), by failing in any material respect to comply with the provisions of this part or violating a rule or lawful order of the board. G:\Ted 2008 Construction Cases\07-043465.Rodriguez.AC.doc 4 COUNT THREE 18. Petitioner realleges and incorporates the allegations set forth in paragraphs one through five and nine through fourteen as though fully set forth in this Count Three. 19. Based upon the foregoing, the Respondent violated Section 489.129(1)(j), Florida Statutes (2005), 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 FOUR 20. Petitioner realleges and incorporates the allegations set forth in paragraphs one through five and nine through fourteen as though fully set forth in this Count Four. 21. Based upon the foregoing, the Respondent violated Section 489.129(1)(g)2., Florida Statutes (2005), 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 G:\Ted 2008 Construction Cases\07-043465.Rodriguez.AC.doc . 5 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. Case Number 2007-049032 22. On or about February 1, 2006 the Contractor entered into a written “contract with Juan Rodriguez’ (hereinafter referred to as “Rodriguez”) for the construction of a new playroom, office, and terrace addition to Rodriguez’s residence located at 16313 S.W. 66th Street, Miami, Florida. 23. The contract price was $57,000.00. After a change order on or about September 18, 2006 for a price increase to cover the cost of 147 additional square feet of living space, the contract price was $74,640.00. 24. The contract did not include an explanation of the consumer’s rights under the Florida Homeowners’ © Construction Recovery Fund. 25. The contract called for the payment of a materials deposit of $17,000.00, and on or about February 1, 2006 Rodriguez paid that deposit. Pursuant to the contract, during the period from about February 1, 2006 to December 18, 2006, Rodriguez made payments to the Contractor totaling $64,640.00. 26. On or about May 1, 2006 the Contractor applied to the Miami-Dade County building department for a building permit for G:\Ted 2008 Construction Cases\07-043465,Rodriguez.AC.doc 6 the project. The application was approved, and on or about September 21, 2006 building permit number 2006129995 was issued. 27. During the period from June 2006 to October 2007 the Contractor performed work on a sporadic basis in furtherance of the project. Thereafter, and without just cause, the Contractor failed to perform further work on the project, thereby abandoning the project. COUNT FIVE 28. Petitioner realleges and incorporates the allegations set forth in paragraphs one through five and twenty two through twenty seven as though fully set forth in this Count Five. 29. 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 Florida Homeowners’ Construction Recovery Fund, except where the value of all labor and materials does not exceed $2,500. 30. Based upon the foregoing, the Respondent violated Section 489.129(1) (i), Florida Statutes (2005), by failing in any material respect to comply with the provisions of this part or violating a rule or lawful order of the board. G:\Ted_2008 Construction Cases\07-043465.Rodriguez.AC.doc 7 COUNT SIX 31. Petitioner realleges and incorporates the allegations set forth in paragraphs. one through five and twenty two through twenty seven as though fully set forth in this Count Six. 32. Based upon the foregoing, the Respondent violated Section 489.129(1) (0); Florida Statutes (2005), by proceeding on any job without obtaining applicable local building department permits and inspections, by commencing the project in this case without having obtained a building permit. COUNT SEVEN 33. Petitioner realleges and incorporates the allegations set forth in paragraphs one through five and twenty two through twenty seven as though fully set forth in this Count Seven. 34. Section 489.126(2) (a), Florida Statutes, states: “A contractor who receives, as initial payment, money totaling more than 10 percent of the contract price for repair, restoration, improvement, or construction to residential real property must apply for permits necessary to do work within 30 days after the date payment is made, except where the work does not require a permit under the applicable codes and ordinances.” 35. Based upon the foregoing, the Respondent violated Section 489.129(1) (i), Florida Statutes (2005), by failing in G:\Ted 2008 Construction Cases\07-043465.Rodriguez. AC.doc 8g ore any material respect to comply with the provisions of this part or violating a rule or lawful order of the board. COUNT EIGHT 36. Petitioner realleges and incorporates the allegations set forth in paragraphs one through five and twenty two through twenty seven as though fully set forth in this Count Eight. 37. Based upon the foregoing, the Respondent violated Section 489.129(1)(j), Florida Statutes (2005), 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. Case Number 2007-064645 38. On or about September 30, 2006 the Contractor entered into a written contract with Teofilo and Sara Noboa (hereinafter referred to as the “Noboas”) for the construction of a new front porch, master bedroom, bathroom, and family room addition and to remodel the existing garage of the Noboas’ residence located at 3661 S.W. 16th Terrace, Miami, Florida. 39. The contract price was $97,000.00. G:\Ted 2008 Construction Cases\07-043465.Rodrignez. AC.doc 9 40. The contract did not include an explanation of the consumer’s rights under the Florida Homeowners’ Construction Recovery Fund. 41. Pursuant to the contract, during the period from about October 4, 2006 to February 6, 2007, the Noboas made payments to the Contractor totaling $90,500.00. 42. During the period from October 2006 to October 2007 the Contractor performed work on a sporadic basis in furtherance of the project. Thereafter, and without just cause, the Contractor failed to perform further work on the project, thereby abandoning the project. 43. At the time of abandonment, the percentage of the contract price paid exceeded the percentage of completion, and the Contractor did not refund to the Noboas any of the excess funds. 44, The Contractor’s subcontractors and material suppliers recorded liens against the Noboas’ property for services for which the Contractor received payment, as follows: Name of Materials/ Lien : Lienor Services Amount Recording Date Amaralto Concrete Ready mix $4,639.96 March 29, 2007 Pump Inc. concrete J&éM Scaffolds Rolli-off $750.30 Sept. 10, 2007 of Florida, Inc. container Lighting Electric Elec. labor $4,680.00 Jan. 7, 2008 of Miami, Inc. & materials G:\Ted 2008 Construction Cases\07-043465.Rodriguez. AC.doc 10 The Contractor failed to remove the liens by payment or by bond within 75 days or thereafter. COUNT NINE 45. Petitioner realleges and incorporates the allegations set forth in paragraphs one through five and thirty eight through forty four as though fully set forth in this Count Nine. 46. 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 Florida Homeowners’ Construction Recovery Fund, except where the value of all labor and materials does not exceed $2,500. 47. Based upon the foregoing, the Respondent violated Section 489.129(1) (i), Florida Statutes (2005), 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 TEN 48. Petitioner realleges and incorporates the allegations set forth in paragraphs one through five and thirty eight through forty four as though fully set forth in this Count Ten. 49, Based upon the foregoing, the Respondent violated Section 489.129(1)(j), Florida Statutes (2005), by abandoning a construction project in which the contractor is engaged or under G:\Ted 2008 Construction Cases\07-043465, Rodriguez. AC.doc nh 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 ELEVEN 50. Petitioner realleges and incorporates the allegations set forth in paragraphs one through five and thirty eight through forty four as though fully set forth in this Count Eleven. 51. Based upon the foregoing, the Respondent violated Section 489.129(1)(g)1., Florida Statutes (2005), 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 from the property, by payment or by bond, within 75 days after the date of such liens. G:\Ted 2008 Construction Cases\07-043465. Rodriguez. AC.doc 12 COUNT TWELVE 52. Petitioner realleges and incorporates the allegations set forth in paragraphs one through five and thirty eight through forty four as though fully set forth in this Count Twelve. 53. Based upon the foregoing, the Respondent violated Section 489.129(1) (g)2., Florida Statutes (2005), 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. 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 $10,000 per violation, require continuing education, assess costs associated with investigation and prosecution, G:\Ted 2008 Construction Cases\07-043465.Rodriguez. AC.doc 13 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. te Signed this 28 day of 1 2008. eee > fen, Geom Theodore R. Gay. Assistant General Counsel Florida Bar No. 242896 Department of Business and Professional Regulation Office of the General Counsel 8240 NW 52™ Terrace, Suite 304 Miami, Florida 33166 (305) 470-6783 ext. 2225 Telephone (305) 470-5781 Facsimile PC Found: May 27, 2008 _ Div. I: Clark & Bonuso Div. I: Holloway & Weller FILED Department of Business and Professional Regulation DEPUTY CLERK G:ATed 2008 Construction Cases\07-043465_Rodriguez.AC.doc 14

Docket for Case No: 09-001526PL