FILED Deparunent of Busfins and Prafyislenal Reputathyn AGENCY CLERK CLERK Sarah Wachman Dale 7718/2009 File # STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD DIVISION I DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, Petitioner, Vv. Case No. 2007-063580 RENE A. AVILES D/B/A TOTAL SCREEN, Respondent. / ADMINISTRATIVE COMPLAINT Petitioner, DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, ("“Petationer’), files this Administrative Complaint before the Construction Industry Licensing Board, against RENE A, AVILES, (“Respondent”), and says: L. Petitioner is the state agency charged with regulating the practice of contracting pursuant to Section 20.165, Florida Statutes, and Chaprers 43s and 489, Florida Statutes. 2. Respondent is, and has been at all times material hereto, a Certified General Contractor in the State of Florida, having been issued license number CG Ci513065, which is at present time in a current and active stacus. 3. Respondent's last known address of record is 1121 s8 12°" Place, Cape Coral, FL 33990. GaaG CV rdeleanaviles AG 07-63 580 Sayto.doe 1 BPfET Savd dad 98TbTcbese Se-T 6hae/4e/UT Be:0T 600¢ 42 450 4, At all times material hereto, Respondent was doing business as A & D Holdings Group, Inc., which has been appropriately qualified as required, receiving a certificate of authority and license Qns3493. A & D Holdings Group, Ine. was engaged at all times material hereto in business under the fictitious name of Total Screen (“Total Screen”) 5. At all times material hereto, Respondent was doing business ag Full Construction Services, Tne. (Full Construction”), which has been appropriately qualified as required, receiving a certificate of authority and license QB60156. 6. 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 organigation; for all field work at all sites; and for financial matters, hoth for the organization in general and for each specific job. 7. On er about July 23, 2007, Respondent, doing business as Total Screen, entered into a contract with Michael Sagto (“Sasto”) to construct a lanai extension at 3199 Sundance Circle, Naples, Florida. 8. The contract price was $9,500.00, of which amount Sasto has paid a total of $3,325.00 to Respondent. ta GAQGC\Ardelean\Aviles AC 07-063580 Sasto.doc BP/PT Sav dad 98TbTcbese Se-T 6hae/4e/UT Bo:0T 600¢ 42 450 3, Respondent applied for a permit on Auguet 29, 2007, which was issued on September 10, 2007. 10. Respondent failed to commence construction under the contract. 11. The percentage of contracted work completed was less than the percentage of the contract price paid. 12. Respondent failed to refund any amount cof monies paid by Sasto. 13. Sasto did not waive in writing the 30-day period in which Respondent was to apply for a..work permit, nor did he waive im writing the 90-day pericd in which Respondent was to commence work pursuant to Sec, $489,.126(2), Florida Statutes. COUNT ONE 14. Petitioner re-alleges and incorporates the allegations set forth in paragraphs 1 through 13 as though fully set forth herein. 15. Section 489.126(2) (a), Florida Statutes, states that a contractor who receives, as initial payment, money totaling more than 10 percent of the contract price for repair, restoration, improvement, or construction te residential real property must apply for permits necessary to do work within 30 days after the date payment is made, except where there the work does not require a permit under the applicable codes and ordinances. GAOGC\Ardelean\Aviles AC 07-063580 Sasto.doc 3 BP/ST Savd dad 98TbTcbese Se-T 6hae/4e/UT Bo:0T 600¢ 42 450 16. Based on the foregoing, Respondent violated Section 489.129(1) (i), Florida Statutes, by failing in any material respect to comply with the provisions of Chapter 489, Part I, Florida Statutes, or violating a rule or lawful order of the board, by having violated Section 489.126(2), Florida Statutes. COUNT TWO 17. Petitioner re-alleges and incorporates the allegations set forth in paragraphs 1 through 13 as though fully set forth herein. 18. Section 489.126(2) (b),. Florida Statutes, states that 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 start the work within 90 days after the date all necessary permite for work are issued, unless the person who made the payment agreed, in writing, to a longer period to start the work. 19. Based on the feregoing, Respondent violated Section 489,.129(1) (i), Florida Statutes, by failing in any material respect te comply with the provisions of Chapter 489, Part I, Florida Statutes, or violating a rule or lawful order of the board, by having violated Section 489.126(2), Florida Statutes. GAQCC\Ardelean\Aviles AC 07-063580 Sasto.dae 4 and dad 98TbTcbese Se-T 6hae/4e/UT Bo:0T 600¢ 42 450 BP/9T COUNT THREE 20. Petitioner re-alleges and incorporates the allegations set forth in paragraphs 1 through 13 as though fully set forth herein. 21. 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 that than the percentage of the fetal 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 job is abandoned. COUNT FOUR 22. Petitioner re-alleges and incerporates the allegations set forth in paragraphs 1 through 13 as though fully set forth herein. 23. Based on the foregoing, Respondent violated Section 489.129(1) (j), Florida Statutes, by abandoning the construction project in which the contractor is engaged or under contract as & contractor. A project may bé presumed abandoned aftar 90 days if the contractor terminates the project without just cause or without proper notification to the owner, including the reason GAOGC\Ardelean\Aviles AC 67-063480 Sasto.doc 3 BPféT Sov dad 98TbTcbese Se-T 6hae/4e/UT BE:0T 6O0¢ 424é 450 for termination, or fails toe perform work without just cause for 30 consecutive days. COUNT FIVE 24. Petitioner re-alleges and incorporates the allegations set forth in paragraphs 1 through 13 as though fully set forth herein. 23. Based on the foregoing, Respondent violated section 489.125(1)(m), Florida Statutes, by committing incompetence or mismanagement 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, 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, aseess costs associated with investigation and prosecution, impose any or all penalties delineated within Section 455.227(2), Florida Statutes, and/or any other velief that the Board is authorized to impose pursuant to Chapters 489, 455, Florida Statutes, and/or the rules promjlgated thereunder, GAOGC\Ardelean\4viles AC 07-063580 Sasto.doc 6 BP/8T Savd dad 98TbTcbese Se-T 6hae/2e/UT BE:0T 600¢ 42 450 yer L . A He. 4 Signed this AS day of yarn : , 2003. OK CHARLES W. DRAGO, Secretary Department of Business and Professional Regulation By: ee Serin Ardelean Assistant General Counsel florida Bar No: 734853 Department of Business and Professional Regulation Office of the General Coungel 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 (850) 488-0062 Telephone (850) 921-9186 Facsimile pcp Date O-Z2D-OA . PCP Members —SSnoo Snares ue ard GAOGCMrdelean\Aviles AC 07-063580 Sasto. doc 7 BP/6T Savd dad 98TbTcbese Se-T 6hae/2e/UT BE:0T 600¢ 42 450 NOTICE OF RIGHTS Respondent has the right to Fequest a hearing to be conducted in aecordance with Sections 120.569 and 120.57, Florida Statutes, to be represented by counsel or other qualified representative, toe present evidence and argument, to call and cross-examine witnesses and to have subpoenas and subpoenas duces tecum issued on his or her behalf if a hearing is requested. Rule 28-106.111, Florida Administrative Code, provides in part that if Respondent fails to request a hearing within twenty-one (21) days of receipt of an agency pleading, Respondent waives the right to request & hearing on the facts alleged, NOTICE REGARDING ASSESSMENT OF cos'rs Respondent igs placed on notice that Petitioner has incurred costs related te the investigation and prosecution of this matter. Pursuant to Section 455.227(3) (a), Florida Statutes, the Board, or the Department when there is no Board, may assess costs related to the investigation and prosecution of the case excluding costs associated with an attorney's time,’ against the Respondent in addition to any other discipline imposed. GADGC\Ardeleam\Aviles AC 07-063580 Sasto.doc 8 6P/Ae Fovd dad 98TbTcbese Se-T 6hae/2e/UT BE:0T 600¢ 42 450

Docket for Case No: 09-005899