I — os FILED Gepartment of Business und Profesional Rsutution AGENCY CLERK CLERK Sarah Wachman Date 7/15/2008 ley STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD DIVISION Tf DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, Petitioner, Vv. Case No. 2007-066480 RENE A. AVILES D/B/A TOTAL SCREEN, Respondent. / ADMINISTRATIVE, COMPLAINT Petitioner, DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, (“Petitioner”), files this Administrative Complaint before the Construction Industry Licensing Board, against RENE A. AVILES, (“Respondent”), and says: l. Pelitioner 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, & Certified General Contractor in the State of Florida, having been issued license number ¢G C1513065, which is at present time in &@ current and active status. a. Respondent's last known address of record is 1121 SE 12° Place, Cape Coral, PL 33990. GAOGCAA rdeleun\aviles AC 2007-U66480 Gutterezatoc 1 BPfEP Sod dad 98TbTcbese Se-T 6hae/4e/UT RIOT 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 0853493, A @ D Holdings Group, Ine. was engaged at all times material hereto in business under the fictitious name of Total Screen (“Total Sereen”) 5. At all times material hereto, Respondent was doing business as Full Construction Services, Inc, (“Full Construction”), which has been appropriately qualified as required, receiving a certificate of authority and license QB60156. é. 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, 7. On or about April 21, 2007, Respondent, deing business ag Total Sereen, entered into a contract with Yasmin Gutierrez (“Gutierrez”) to install a screen enclosure at 12610 Nw 11 Place, Sunrise, Florida. 8. The contract price was $4,983.00, of which amount Gutierrez has paid a total of $1,494,00 to Respondent. 9. Respondent failed to apply for a permit. CAOGCMrdelean\Aviles AC 2007-066480 Gutierrez.doy Zz oP/PP BV ada 98T6Tc6eass 92 -aT RIOT 600¢ 42 450 BaGe /20 /aT 10. Respondent failed to commence construction under the contract. ll. The percentage of contracted work completed was less than thé percentage of the contract price paid. 12. Respondent failed to refund any amount of monies paid by Gutierrez. 13. Gutierrez did not waive in writing the 30-day period in which Respondent was to apply for a work permit pursuant to Sec. $489.126(2), Florida Statutes. COUNT ONE id. 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 to 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 doés not require a permit under the applicable codes and ordinances. 16. Based on the foregoing, Respondent violated Section 489.129(1) (i), Plorida Statutes, by failing in any material respect to comply with the provisions of Chapter 489, Part I, GAOGC\Ardelean\A viles AC 2007-066480 Gutierrez.doe 3 BP/SP SFBvd dad 98TbTcbese Se-T 6hae/4e/UT TROT 600¢ 42 450 Plorida 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 incerporates the allegations set forth in paragraphs 1 through 13 as though fully set forth herein, 18. 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 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 job is abandoned. COUNT THREE 19. Petitioner re-alleges and incorporates the allegations set forth in paragraphs 1 through 13 as though fully set forth herein, 20. Based on the foregoing, Respondent violated Section 489,129(1) (3), Florida Statutes, by abandoning the construction project in which the contractor is engaged or under contract as a contractor. A project may be presumed abandoned after 30 days GAQGC\Ardeleun\a viles AC 2007-066480 Gutierex.dac 4 BP/9P = SBvd dad 98TbTcbese Se-T 6hae/2e/UT oP:OT 600¢ 42 450 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 20 consecutive days, COUNT FOUR 2il. Petitioner re-alleges and incorporates the allegations set forth in paragraphs 1 through 13 ag though fully set forth herein. 22, Based on the foregoing, Respondent violated section 489.129(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, 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, GAOGCArdelean\Aviles AC 2007-06640 Gulierrez.doe 5 Bpfép SBN dad 98TbTcbese Se-T 6hae/2e/UT oP:OT 600¢ 42 450 Signed this £ { S™ day of Hier , 2009. CHARLES W. DRAGO, Secretary Department of Business and Professional. “Régulation “ene —_ By: wat % Soréh Ardelean Assistant General Counsel Fkorida Bar No: 734853 Department of Business and Professional Regulation Office of the General Counsel 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 (850) 488-0062 Telephone (850) 921-9186 Facsimile PCP Pate (9-25-09 PCP Members fe [dec ete: GAOGC\Ardelean\Aviles AC 2007-06640 Gutierrez.dac 6 BP/OPp Sod dad 98TbTcbese Se-T 6hae/2e/UT oP:OT 600¢ 42 450 NOTICE OF RIGHTS Respondent has the right to request a hearing to be conducted in accordance with Sections 120.569 and 120.57, Florida Statutes, to be represented by counsel or other qualified representative, to present evidence and argument, to Gall 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 a hearing on the facts alleged. NOTICE REGARDING ASSESSMENT OF Costs Respondent is placed on notice that Petitioner has incurred costs related to 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 ease excluding costs associated with an attorney's time, against the Respondent in addition to any other discipline imposed. GAOGCMridelean\a viles AC 2007-06640 Gutierrez.doc 7 BP/6P SBvd dad 98TbTcbese Se-T 6hae/4e/UT oP:OT 600¢ 42 450

Docket for Case No: 09-005903