Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Respondent was licensed as a registered general contractor by the State of Florida, Construction Industry Licensing Board, having been issued license number RG 0014645. Respondent's address is 2533 Green Road, Tallahassee, Florida 32308. On or about October 30, 1985, Willie McFarland (McFarland) contracted with Virgil Fleming (Fleming) to perform certain improvements to Fleming's home located at 9008 Broken Lance, Tallahassee, Florida. The contract price was $24,600.00. There was no contract between Fleming and Respondent. Fleming paid McFarland $16,500.00 of the contract price. Most of this money was paid in advance of work being performed. MoFarland was not, at any time material to this proceeding, a licensed contractor in the State of Florida and both Fleming and Respondent knew that he was not a licensed contractor. McFarland was not authorized to pull a permit to complete the work and Fleming, upon finding this out, started to pull the permit as a homeowner but changed his mind. Respondent agreed to pull, and did pull, the permit for this job, after checking on McFarland and with the understanding that he would have to be involved with McFarland on the job. Without the permit, McFarland could not have continued with the job. Fleming did not pay any money to Respondent for pulling the permit or for anything else and there was no evidence that McFarland paid any money to Respondent for pulling the permit or anything else. McFarland partially completed the work contracted for with Fleming. The Respondent went to the job site on several occasions but was unable to make contact with McFarland. Respondent did make contact with McFarland on one (1) occasion after he had pulled the permit and obtained some promises from McFarland concerning the job but McFarland did not "live up" to those promises. There was credible testimony from Respondent that McFarland was not an employee of Respondent's business but that one of the conditions for pulling the permit required McFarland to be an employee of Respondent only on this job. Respondent had no knowledge of the financial arrangements between McFarland and Fleming until after the permit was pulled and McFarland had "skipped." The parties have been unable to locate McFarland.
The Issue The issue in this case is whether Respondent violated Section 489.129(1), Florida Statutes (1997) (hereinafter, "Florida Statutes"), by committing mismanagement or misconduct in the practice of contracting, causing financial harm to a customer, abandoning a construction project, and failing to satisfy a judgment against him.
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of contracting. Respondent is licensed as a contractor pursuant to license number CB C019811. At all relevant times, Respondent was the qualifying agent for Gulf and Bay Sunrooms, Inc. ("Gulf"). As the qualifying agent, Respondent was responsible for all of Gulf's contracting activities in accordance with Section 489.1195, Florida Statutes. On August 23, 1995, Respondent and Gulf entered into a contract with Mr. H. Edward Dowling ("Dowling") to install a Four Seasons System 330 Sunroom in Dowling's residence at 3016 West 38th Street, Orlando, Florida. The contract price was $31,340. Dowling paid the first draw of $9,402 to Respondent and Gulf by check number 45016644. On October 27, 1995, Gulf deposited the check to its account. Respondent and Gulf never commenced work on the sunroom. Respondent and Gulf did not return the first draw to Dowling. Respondent and Gulf abandoned the project without just cause and without notice to Dowling. On June 19, 1997, the County Court of the Ninth Judicial Circuit entered a Default Final Judgment in Case No. CO97-3800. The default judgment was entered in the amount of $9,402 plus costs of $145. Neither Respondent nor Gulf have satisfied the judgment. Respondent has a discipline history in two other cases. In Petitioner's Case No. 96-7123, Respondent failed to pay a supplier for windows. In DOAH Case No. 96-5914, Respondent contracted to build a sunroom in a residence, accepted payment of $1,540.44 toward the contract price of $4,668.00, never commenced construction, and abandoned the project. In the first case, Respondent was found guilty of failing to satisfy a civil judgment, was fined, and was ordered to pay restitution. In the second case, Respondent was found guilty of abandonment, incompetency or misconduct, was fined, and was ordered to pay restitution, and his license was suspended until Respondent complied with the penalty imposed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a Final Order finding Respondent guilty of violating Section 489.129(1), Florida Statutes, imposing administrative fines in the aggregate amount of $15,000.00, and revoking Respondent's license. DONE AND ENTERED this 10th day of August, 1998, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 1998. COPIES FURNISHED: Rodney Hurst, Executive Director Department of Business and Professional Regulation Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Paul F. Kirsch, Senior Attorney Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 William Leete Stone, IV, pro se 3386 Poinsettia Avenue Naples, Florida 34104
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Respondent was a registered specialty contractor in the state of Florida with license No. RR 0049820 and qualified Marion Pump Service with the state of Florida, Department of Professional Regulation. On January 8, 1986, Dorothy Dorsey and Respondent entered into a contract whereby Respondent was to install a four- inch well and a one horsepower pump on Dorsey's property in Marion County, Florida for a contract price of $1,410.00 Respondent commenced work on the well and pump installation on January 9, 1986, but it was not clear from the record when the Respondent completed the temporary installation of the pump. Temporary installation consists of drilling the well, installing and connecting the pump to a service pole for electrical service so the building contractor can use the water during construction of the house. Permanent installation could not be completed until Dorsey's home was at a stage completion to allow permanent pipe and electrical connection to the house. At the time of entering into the contract, Respondent requested that Dorsey "pull" the permit for the well and pump installation with the Marion County Building Department. It is not clear from the record when Dorsey attempted to "pull" the permit with the Marion County Building Department, but at that time she was informed by someone in the Marion County Building Department that the contractor would have to "pull" the permit. Again, it is not clear from the record when, or if, the Respondent was advised by Dorsey that he would have to "pull" the permit. Dorsey attempted to contact the Respondent by telephone concerning this matter, but Respondent did not return her telephone call. Apparently, the Respondent had completed the temporary installation at this time and was not at the job site. Upon Dorsey's home being completed, Dorsey was unable to get a Certificate of Occupancy (CO) from the Marion County Building Department because no permit had been issued and no final inspection called for or made. Being unable to get any response from the Respondent, Dorsey obtained a permit through Armstrong Well Service. Permanent connections to the home were made and a final inspection made, resulting in a CO being issued sometime around September 9, 1986. There was no evidence that Respondent's action in this regard resulted in any substantial delay to Dorsey obtaining a CO. Marion County's ordinance number 85-8, duly enacted on June 25, 1985, requires that the "contractor and/or owner" apply for and be issued a permit before well construction or pump installation, unless the State requires a permit, in which case proof that such permit has been issued exempts the applicant from this provision of the ordinance. This ordinance was in effect at all times material hereto. Ordinance 85-8 provides for doubling the permit fee as a penalty for failure to obtain the permit prior to commencing the well and pump installation. At all times material hereto, the water management district covering Marion County, Florida, the agency usually responsible for well permits, did not require a permit in the section of Marion County where Dorsey's home was located. It was Respondent's understanding of the ordinance that a permit was not required until the final inspection. There was no evidence that any inspection other than the final inspection was required by the Marion County Building Department for well construction and pump installation.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Board enter a Final Order DISMISSING the Administrative Complaint filed herein against the Respondent, Johnny Lee Bryant. RESPECTFULLY submitted and entered this 15th day of September, 1988, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1988. COPIES FURNISHED: Fred Seely Executive Director Construction Industry Licensing Board Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 David E. Bryant, Esquire Jonathan M. Deer, Esquire 220 East Madison Street, Suite 530 Tampa, Florida 33602 Johnny Lee Bryant, Pro Se Post Office Box 600 Silver Springs, Florida 32688
Findings Of Fact Harry L. Wilson is the holder of a registered roofing contractor's license from the Florida Construction Industry Licensing Board. The license, Number RC 0041328, was first issued in March of 1982. The license was issued in the name of Harry L. Wilson Roofing, 1943 Hardy Street, Jacksonville, Florida, with the Respondent as qualifier. The Respondent has been the qualifier of Harry L. Wilson Roofing at all times relevant to this proceeding. On December 6, 1984, the Respondent and Robbie L. Hicks, entered into a written contract (Petitioner'S Exhibit 2). Pursuant to this written contract (hereinafter referred to as the "Contract"), the Respondent agreed to perform the repair work specified in the Contract in a "professional manner" and Ms. Hicks agreed to pay the Respondent $2,395.00. The property to be repaired is rental property owned by Ms. Hicks. The property is located at 1508 Eaverson Street, Jacksonville, Florida. The Respondent commenced work sometime during the early part of 1983. Shortly after commencing work, however, the Respondent and Ms. Hicks began having disagreements as to the work to be performed and the quality of the Respondent's work. These disagreements continued after the Respondent completed the work in November of 1983. Ms. Hicks testified that the work that the Respondent completed was done in an unprofessional manner and that the Respondent had not completed all of the work that he had agreed to perform. In particular, Ms. Hicks testified that the Respondent had failed to paint the interior of the house beige as required by the Contract, had failed to remove saw dust and other debris from the house following completion of the work, had failed to finish cabinets installed in the house, had failed to repair screens and generally had not performed in the manner he had agreed to perform. Ms. Hicks paid the Respondent all but $410.00 of the contract price. The Respondent testified that all off the work called for pursuant to the Contract had been performed. According to the Respondent, he had performed some work not required by the Contract and had not performed other work requested by Ms. Hicks because the work was beyond the scope of the Contract. The Respondent also stated that the work which Ms. Hicks expected would have cost considerably more than the price agreed upon in the Contract. The Respondent did not perform all of the work specified in the Contract in a "professional manner" as required by the Contract. Based upon the testimony of Mr. Claude Bagwell, Deputy Chief, Building and Zoning, Inspection Division of the City of Jacksonville, it is clear that no permit was issued by the City of Jacksonville to perform the work required by the Contract. The only permits issued with regard to Ms. Hicks' rental property was a permit issued in 1961 and the original building permit issued in 1949. Additionally, due to the fact that no Florida registered roofing contractor's license in the name of "Harry L. Wilson Roofing" had been filed with the City of Jacksonville, no permit could be issued to Harry L. Wilson Roofing with regard to the Contract. The Respondent admitted that he had not obtained a permit to perform the work required by the Contract. The Respondent indicated that he had not obtained a permit because he was not aware that one was required in order to perform the work. He did indicate that he had obtained permits to perform other jobs. The Respondent could not, however, have obtained permits for other jobs because no license issued in the name of Harry L. Wilson Roofing had been filed with the City of Jacksonville. The Respondent did take the examination required in order to obtain a registered roofing contractor's license. The Petitioner suggested in its Proposed Findings that the "permit requirement was explained" when the Respondent took the exam. No evidence to support such a finding was presented at the hearing. The Respondent in entering into the Contract clearly used the name "Wilson Recycling". Nowhere on the Contract is the name "Harry L. Wilson Roofing" used. The Respondent ultimately admitted that no Florida license authorizing the use of the name "Wilson Recycling" had been obtained by him. The Respondent, however, when initially asked whether a Florida license in the name of "Wilson Recycling" had been obtained indicated that such a license had been issued. On further examination, however, the Respondent testified that an occupational license in the name of "Wilson Recycling' had been obtained by him and not a Florida license. The work to be performed pursuant to the Contract was beyond the scope off the Respondent's license. As pointed out by Mr. Bagwell the work to be performed pursuant to the Contract would require licensure as a registered residential contractor or more.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That count I of the Administrative Complaint filed against the Respondent be dismissed. It is further RECOMMENDED: That Respondent be found guilty of violating Section 489.129 (1)(g), Florida Statutes (1983), by contracting in a name other than the name as set forth on the Respondent's license. It is further RECOMMENDED: That Respondent be found guilty of violating Section 489.129(1)(j), Florida Statutes (1983), by failing in a material respect to comply with the provisions of Section 489.119(2) and(3), Florida Statutes (1983), in that the Respondent failed to qualify the business name "Wilson Recycling" with the Construction Industry Licensing Board. It is further RECOMMENDED: That Respondent be found guilty of violating Section 489.129(1)(j), Florida Statutes (1983), when he failed in a material respect to comply with the provisions of Section 489.117(2), Florida Statutes (1983), by contracting to perform and actually performing work beyond the scope of his Florida contracting license. It is further RECOMMENDED: That Petitioner suspend Respondent's roofing contractor's license for a period of three (3) months. DONE and ENTERED this17th day of December, 1984, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1984. COPIES FURNISHED: H. Reynolds Sampson, Esquire Staff Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harry L. Wilson 1943 Hardee Street Jacksonville, Florida 32209 Mr. Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue in this proceeding is whether Willie Daniels violated sections 489.129(1)(d) and (e) F.S., as alleged in the administrative complaint, by willful violation of a local building code and aiding and abetting an unlicensed person to evade any provision of Chapter 489. At the hearing the material facts were uncontroverted.
Findings Of Fact Willie F. Daniels is now, and was at all times relevant, licensed as a roofing contractor by the Florida Construction Industry Licensing Board. He holds license #RC 0027954 and does business as "Daniels Roofing', a sole proprietorship. He has been doing roofing in the Orlando, Florida area since 1954. Willie Daniels first met Thomas Dahlman when Dahlman came to his house trying to sell windows. Dahlman told him that he did all kinds of work, including windows, roofing and painting. Later Dahlman called him and said he had a roofing job that he wanted Daniels to do and that he would take him out to the house. The house belonged to Chris Correa and was located at 4421 Sebastian Way, in Orlando. Dahlman bought the materials for the job and Willie Daniels provided a day and a half labor on the roof. He was paid approximately $600.00 by Dahlman. Chris Correa was initially contacted by an agent for Thomas Dahlman who was trying to sell solar heating devices. When she told him she really needed a new roof, he said his boss could arrange that. Dahlman arranged for her loan to pay for the roof and arranged for the labor to be done by Willie Daniels. Chris Correa paid Thomas Dahlman $3,000 for the roof. About three days after the roof was completed, on February 18, 1986, she signed a contract for the roof work with Dahlman Enterprises, Inc. The contract is signed Thomas Dahlman and by Ms. Correa. Willie Daniels was not a party to the contract. The City of Orlando has adopted the Standard Building Code, including the following provision relating to permit applications: Section 105 - Application for Permit - When Required Any owner, authorized agent, or contractor who desires to construct, enlarge, alter, repair, move, demolish, or change the occupancy of a building or structure, ... or to cause any such work to be done, shall first make application to the Building Official and obtain the required permit therefor. * * * No permit was applied for or obtained for the roofing job on Chris Correa's house. Willie Daniels assumed Thomas Dahlman was a licensed contractor because Dahlman told him he was in the business of doing roofing, painting, installing windows and similar work. He did not ask Dahlman if he was licensed. Dalhman was, in fact, not a licensed contractor.
The Issue Whether Respondent, a certified general contractor, is guilty of pulling permits for construction projects not supervised by Respondent, and, if so, the appropriate disciplinary action which should be taken by the Board.
Findings Of Fact At all times material hereto, Respondent was the holder of Certified General Contractor's License No. CG C005204 issued by the Board. Although this license was active at the time the Administrative Complaint was filed, Respondent has placed it on an inactive status until June 30, 1981. (Stipulation, Testimony of Respondent) As to Amiguet Construction Project During 1976, Jose Amiguet entered into a contract with San Pedro Construction Inc. for the construction of an addition to his existing residence located at 1409 Granada Boulevard, Coral Gables, Florida. (Stipulation, Petitioner's Exhibit 1) Since San Pedro Construction Inc. was not properly licensed as a building contractor, it was not qualified to apply for and obtain a Coral Gables building permit to undertake this residential addition. Therefore, on January 12, 1977, pursuant to an agreement with Jose San Pedro, representative of San Pedro Construction Inc., the Respondent applied and obtained the required Coral Gables building permit under his on name. (Stipulation, Testimony of Respondent, Charles Kozak, Petitioner's Exhibit 1) The Respondent did not participate in, manage, or supervise, in any manner, the construction of the Amiguet residential addition by San Pedro Construction Inc. Jose Amiguet neither knew the Respondent, nor had any dealings with him during the construction work. (Stipulation, Testimony of Respondent) Final inspection of the Amiguet construction project has not been conducted by the Coral Gables building inspection department since the required documentation concerning sidewalk improvements and subcontractors used has not yet been submitted. The actual construction work has, however, been completed, to the satisfaction of Jose Amiguet. (Testimony of Charles Kozak, Respondent) Respondent made an effort to assist Jose Amiguet in obtaining the final inspection and clearance by the city building inspection department. However, since Respondent did not supervise the subcontractors' work, he cannot truthfully complete the required documents. He has, therefore, offered to (1) pay for the additional costs associated with obtaining the necessary final inspection, and (2) transfer to Jose Amiguet the right to receive, after final inspection, the refund of the contractor's performance bond in the amount of approximately $400-$500. (Testimony of Respondent) As to the Shaw Construction Project During July, 1977, and on February 8, 1978, James L. Shaw entered into separate contracts with San Pedro Construction Inc. for the construction of residential improvements at 836 Obispo Avenue, Coral Gables, Florida. The final contract was in the amount of $16,700.00. (Stipulation, Testimony of Respondent, James L. Shaw, Petitioner's Exhibit 4) Since San Pedro Construction Inc. was an unlicensed contractor, Respondent, on November 15, 1977, pursuant to an agreement with that company, applied for and obtained the required Coral Gables building permit. (Stipulation, Testimony of Respondent, James L. Shaw, Petitioner's Exhibit 4) The Respondent did not participate in, manage, or supervise in any manner the construction of the Shaw residential improvements by San Pedro Construction Inc. James Shaw neither knew Respondent, nor had any dealings with him during the construction work. (Stipulation, Testimony of Respondent) On or about April, 1978, the lending institution for the Shaw project, and James Shaw stopped making construction payments to San Pedro Construction Inc., due to its failure to proceed on and abandonment of the project. (Testimony of James Shaw, Charles Kozak) On June 20, 1978, James Shaw obtained an "owner-builder" permit from the City of Coral Gables and incurred the following costs in order to complete the construction project as originally planned: $12,000 for labor and materials, and $625.00 for architectural services. Inasmuch as approximately, $10,128.00 had earlier been paid to San Pedro Construction Inc. for the construction project, the total cost of the project to James Shaw was approximately $22,753.00-$6,053.00 in excess of the original contract price. (Testimony of James Shaw and Respondent) San Pedro Construction Inc. is no longer in business, and the whereabouts of its owner, Jose San Pedro, is unknown. (Testimony of Respondent) As with the Amiguet construction project, final inspection of the Shaw project cannot be conducted until missing documentation relative to sidewalk improvements and subcontractors involved is supplied. In an effort to assist James Shaw, the Respondent has offered to transfer to Shaw the right to receive, after final inspection, the refund of the contractor's performance bond in the amount of approximately $400-$500. (Testimony of Charles Kozak and Respondent) At all times material hereto, the Respondent was aware that it was unlawful, under both state law and the Code of Metropolitan Dade County, to aide an unlicensed contractor in evading the contractor licensing law, and to use one's license to pull permits for projects not supervised by the licensee. (Stipulation, Testimony of Respondent, Petitioner's Exhibit 1) The Metro Dade Construction Trades Board heard the complaint against the Respondent and found prima facie evidence and probable cause to refer the matter to the Florida Construction Industry Licensing Board (Stipulation) Notwithstanding the evidence presented, the Administrative Complaint and the Board's counsel at hearing limited the amount sought for restitution purposes to $5,300.00, provided both the performance bonds are refunded to the benefit of Jose Amiguet and James Shaw. (Administrative Complaint, statement of Board's Counsel) Respondent regrets having taken the actions complained of in the Board's Administrative Complaint, and now more fully understands the resulting burdens which have been placed on Jose Amiguet and James Shaw. (Testimony of Respondent)
Recommendation Guilty, as charged. Respondent's certified general contractor's license should be suspended until such time as full restitution is made to the persons damaged by his actions.
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Mr. Borek was licensed by the Department as a certified general contractor, having been issued license number CG C 58817. He was licensed on November 18, 1996. At all times material hereto, Mr. Borek was the qualifying agent of Atlantic Coast General Contractors, Inc. (ACGC), a Florida corporation, and has been its president. ACGC was issued a certificate of authority as a contractor qualified business on June 2, 1977, having been issued license number QB 07357. ACGC's license expired on September 1, 2001 and became null and void on September 1, 2003. The State of Florida, Department of State, administratively dissolved ACGC, as a corporation, on October 1, 2004, for its failure to file its annual report, as required by law; and, as a result, ACGC's authority to transact business, as a corporation, in the State of Florida was revoked on the same date. At all times material hereto, Tracey Meredith (Ms. T. Meredith) resided in and owned a home located at 7690 Northwest 16th Court, Pembroke Pines, Florida. Ms. T. Meredith wanted her mother, Jane Meredith1 (Ms. J. Meredith), to live with her so Ms. T. Meredith decided to have an addition built to her home, consisting of a bedroom, bathroom, and closet. Ms. T. Meredith obtained a proposal from ACGC and five other contractors for the addition. Each contractor was aware of the purpose of the addition. Ms. T. Meredith decided to contract with ACGC, which was not the lowest or the highest bidder, but was somewhat in the middle. On June 28, 2002, a Proposal/Contract (Contract) was executed with ACGC for the addition at a cost of $32,925.00. Even though the Contract showed Ms. T. Meredith as the contracting party, it was signed by Ms. J. Meredith because she (Ms. J. Meredith) was actually paying for the addition and signing the checks. Both Mses. T. Meredith and J. Meredith were in agreement with the Contract. The Contract provided, among other things, that the addition was 15 x 21; and that the payments would be as follows: 20% at acceptance of the Contract, 20% at permit issuance, 10% at slab, 20% at wall and roof framing, 10% at roof completion, 10% at finished walls and flooring, and 10% at final completion. No dispute exists that the cost of the Contract was reasonable. No dispute exists that the Contract failed to contain a provision explaining the consumer's rights under the Florida Homeowners' Construction Recovery Fund, formerly known as the Construction Industries Recovery Fund. No dispute exists that the Contract did not provide a date for completion of the addition. Regarding a completion date for the addition, Ms. T. Meredith testified that all the other proposals provided that the addition would be completed within six to eight weeks and that, at the beginning, Mr. Borek orally communicated to her that the addition would be completed by ACGC within six to eight weeks. To the contrary, Mr. Borek testified that, at the beginning, no completion date was given to her, either orally or in writing. None of the other proposals were submitted into evidence, only the Contract with Mr. Borek, which did not provide a completion date. It would not be reasonable for Ms. T. Meredith to accept Mr. Borek's proposal without it’s being within the time period of completion of the other proposals. The undersigned finds Ms. T. Meredith's testimony more credible and makes a finding of fact that, at the time of the signing of the Contract, Mr. Borek made an oral representation that the addition would be completed by ACGC within six to eight weeks. An expert in the field of general contracting, John Yanoviak (Mr. Yanoviak), testified on behalf of the Department. The undersigned finds his testimony credible, except as specifically indicated. A reasonable amount of time to complete the addition was a maximum of three months. Mr. Borek, as the contractor, was responsible for keeping the project timely and for quality control. On June 30, 2002, Ms. J. Meredith wrote a check, payable to ACGC, in the amount of $6,585.00. This amount was 20 percent of the contracted cost for the addition. No dispute exists that this check was written and presented to Mr. Borek. Paying this amount was in accordance with the Contract. Mr. Borek filed an application for a building permit with the City of Pembroke Pines (CPP) on or about July 3, 2002. The building permit was issued by CPP on or about October 25, 2002. Work on the addition was commenced before the issuance of the building permit. Ms. T. Meredith was aware of the date that the building permit was issued. Prior to the issuance of the building permit, Ms. T. Meredith complained to Mr. Borek regarding the addition’s not being completed. No evidence was presented to show that Ms. T. Meredith indicated to Mr. Borek that, by his failure to complete the addition within a six-to- eight-week period, he was not abiding by the Contract. No evidence was presented to show that she indicated her dissatisfaction to the degree of possibly terminating the Contract with ACGC. On November 12, 2002, Ms. J. Meredith wrote a check, payable to ACGC, in the amount of $6,585.00. This amount was paid after Mr. Borek obtained the building permit and was 20 percent of the contracted cost for the addition. No dispute exists that this check was written and presented to Mr. Borek. Paying this amount was in accordance with the Contract. On December 11, 2002, Ms. J. Meredith wrote a check, payable to ACGC, in the amount of $6,885.00. This amount was $300.00 more than 20 percent of the contracted cost for the addition. No dispute exists that this check was written and presented to Mr. Borek. An inference is drawn and a finding is made that this check was written in advancing of the addition. According to the records of the CPP's building department2 (Records), a CPP form for a revision to the addition was submitted on January 6, 2003, providing for an electrical change to the addition. Further, the Records indicate that, on March 20, 2003, an application for an electrical permit was submitted and that, on March 24, 2003, the permit was approved. Also, a revision to the plans of the addition was submitted to the CPP by the architect to the addition, Hernando Acosta, according to the Records. The Records indicate that the revision to the plans was dated January 30, 2003 by Mr. Acosta, that the revision was submitted on February 7, 2003, and that the revision was approved on February 11, 2003 by the CPP. In addition, in February 2003, Ms. T. Meredith received written communication from the CPP regarding a problem with the addition. Ms. T. Meredith received a copy of a letter from the CPP to Mr. Borek, dated February 18, 2003. The letter indicated, among other things, that the CPP had issued a "stop work status" on the addition due to Mr. Borek’s having issued a check, payable to the CPP, in the amount of $135.80, which was dishonored. Another revision, according to the Records, was submitted on March 27, 2003, regarding the trusses. The Records indicate that the revision was approved on April 17, 2003. Ms. T. Meredith became more dissatisfied with the progress toward completion on the addition by Mr. Borek to the point that she filed a complaint with the Department on May 21, 2003. In May 2003, Ms. T. Meredith received written communication from the CPP regarding a problem with the addition. By letter dated May 22, 2003, she received notification from the CPP, as information only, that a code violation had not been corrected within the allowable ten-day period, together with a copy of CPP's letter to Mr. Borek, dated May 22, 2003, of his failure to correct the code violation. The letter to Mr. Borek indicated, among other things, that Mr. Borek had until June 11, 2003 to correct the violation, identifying the inspection date and the violation. By a letter dated May 28, 2003, Ms. T. Meredith advised Mr. Borek, among other things, that he had seven days to continue with the work on the addition in accordance with the Contract or else the Contract would be considered by her to be "null and void"; that, if he did not do so, she would be "forced" to hire another contractor, with Mr. Borek being held financially responsible for completion of the addition; and that the Contract was to be completed within six to eight weeks. On June 12, 2003, Mr. Borek contacted the investigator for the Department regarding the complaint filed by Ms. T. Meredith. Among other things, Mr. Borek informed the investigator that he (Mr. Borek) was willing to complete the addition in 30 days. By his representation, Mr. Borek indicated that he would complete the addition on or about July 12, 2003. By a letter dated June 18, 2003, Mr. Borek notified the investigator, among other things, that he was working "diligently" to complete the addition. Mr. Borek failed to complete the addition within the 30-day period, as he had represented to the Department's investigator. The Records indicate that an application for a building permit, involving the roof to the addition, was submitted on June 25, 2003. The permit was issued, according to the Records, on July 30, 2003. Further, the Records indicate that a revision, regarding the size of a window and the elimination of a door, was submitted on July 8, 2003, and approved on July 9, 2003. In July 2003, Ms. T. Meredith received another written communication from the CPP regarding a problem with the addition. By letter dated July 9, 2003, she received notification from the CPP, as information only, that a code violation had not been corrected within the allowable ten-day period, together with a copy of CPP's letter to Mr. Borek, dated July 9, 2003, of his failure to correct the code violation. The letter to Mr. Borek indicated, among other things, that Mr. Borek had until July 28, 2003, to correct the violation, identifying the inspection date and the violation. In addition, in July 2003, Ms. T. Meredith received written communication from the CPP regarding another problem with the addition. She received a copy of a letter from the CPP to Mr. Borek, dated July 18, 2003, which indicated, among other things, that the CPP had issued a "stop work status" on the addition due to Mr. Borek having issued a check, payable to the CPP, in amount of $76.23, which was dishonored. Even though Mr. Borek failed to complete the addition within the 30-day period that he had represented to the Department's investigator and even though Ms. T. Meredith had received notification of the problems at the jobsite from the CPP, on September 10, 2003, Ms. J. Meredith wrote a check, payable to ACGC, in the amount of $4,000.00. No dispute exists that this check was written and presented to Mr. Borek. An inference is drawn and a finding is made that this check was written in furtherance of the addition. ACGC had been paid a total of $24,055.00 of the Contract cost of $32,925.00, which was approximately 73 percent of the Contract cost. The balance of the Contract cost was $8,870.00. Mr. Borek testified that, at the time of the writing of the check for $4,000.00, he and Ms. T. Meredith agreed that he would have until on or about November 15, 2003 to complete the project. Ms. T. Meredith testified that no such agreement was made. At the time of the check for $4,000, ACGC was almost 60 days beyond the completion date represented to the Department's investigator. No testimony was presented as to why the $4,000.00 was paid to ACGC in light of such a considerable delay in completing the job by ACGC and in light of the complaint being filed with the Department. Due to the lack of an explanation for the payment of the $4,000.00 to ACGC in furtherance of the project, Mr. Borek's testimony presents a reasonable explanation. Therefore, Mr. Borek's testimony is found to be credible. Hence, a finding is made that, on or about September 10, 2003, Mr. Borek and Ms. T. Meredith orally agreed that ACGC would have until on or about November 15, 2003, to complete the addition. Ms. T. Meredith continued to be dissatisfied with the progress on the addition by ACGC. Sometime after September 10, 2003, an incident occurred which caused her to reach the conclusion that she could not allow ACGC to continue working on the project. One day when she left for work, one of ACGC's workers was painting the exterior walls. When she returned from work later that same day, the same worker for ACGC was painting the exterior walls. Ms. T. Meredith immediately directed the worker to leave and to take all of his equipment with him; the worker did so. Ms. T. Meredith contacted Mr. Borek and informed him that she would not allow him to continue with the project. Mr. Borek repeatedly requested Ms. T. Meredith to allow him to continue with the project, but she refused. By letter dated October 9, 2003, Ms. T. Meredith terminated the Contract with ACGC. She mailed the letter on the same date and faxed it on October 14, 2003. Her mother was in agreement with terminating the Contract. Ms. T. Meredith indicated, among other things, in her letter to ACGC that its failure to complete the addition as of the date of the letter, when the oral agreement was completion within six to eight weeks, left her no choice but to terminate the Contract. Ms. T. Meredith included in the letter, among other things, what remained to be completed on the project and a cost of $539.55 for damaged items at her home caused by ACGC, with an itemized list. At the time of the termination, the following work remained to be completed: purchase and installation of plumbing fixtures; sewer hookup; molding; tile work in the bathroom; installation of storm panels and flooring; some painting; installation of an air conditioner; some electrical connections; and installation of an electrical panel, electric wall plates, and an electric light fixture. Ms. T. Meredith obtained a homeowner's permit and hired someone, Adam Friedman, to assist her in completing the addition. On December 15, 2003, the CPP issued a certificate of occupancy to her. As to expenditures by Mses. T. and J. Meredith in order to complete the addition, the undersigned finds the testimony of Mr. Yanoviak credible. Mses. T. and J. Meredith expended $19,170.52 to complete the addition. The expenditures for completion were reasonable and necessary. Not included in the expenditures for completion are the following: $3,941.31 for items not included in the Contract--a fence, pavers, wood floor, upgraded bathroom fixtures or accessories, closet woodwork and various Home Depot items (totaling $238.21); $250.00 for mill work associated with chair rails; and $2,400.00 for an exterior concrete slab. Included in the expenditures for completion is the following: $1,360.00 for a split-system air conditioning unit which was not installed by ACGC. Further, included in the cost of expenditures is an adjustment in favor of Ms. T. Meredith in the amount of $1,000.00 for the elimination of a window on the west elevation of the addition, which was orally agreed to by Ms. T. Meredith and Mr. Borek after the signing of the Contract and which would have been subtracted from the cost of the Contract. After Ms. T. Meredith terminated the Contract, she filed a claim under the Construction Industries Recovery Fund. The claim was dated October 10, 2003, one day after she terminated the Contract. Ms. T. Meredith set forth in the claim that she was requesting $12,000.00, which she indicated was the amount to pay another contractor to complete the project. The undersigned places very little weight upon the amount requested because the claim is prior to completing the project and fails to reflect the actual costs involved in completing the project, which were realized only after completion. Damage to items at Ms. T. Meredith's home occurred, during the work being performed by ACGC, for which ACGC was responsible. The following items were affected: damaged a window magnet that was part of the home's security system at $80.00; destroyed, broken, or thrown away one large planter pot, one archway, and two large stepping stones--all at an estimate of $440.34; and broken tiles in the front of the house at $13.57. The damages totaled $533.91. At the time of the hearing, Mr. Borek had not made any payments to Ms. T. Meredith or Ms. J. Meredith for their expenditures to complete the addition or for the damages. At the time of the termination, in accordance with the oral agreement of completion by on or about November 15, 2003, ACGC had a little over 30 days to complete the addition. In light of the finding that an oral agreement had been reached to allow ACGC until on or about November 15, 2003, to complete the addition and in light of the only incident since that agreement, presented by the evidence, was the situation involving ACGC's painter, the undersigned finds that the painting situation was not substantial and that, therefore, the termination on October 9, 2003, prior to the new agreed- upon termination date, was unreasonable. Ms. T. Meredith testified that, sometime during the middle of the year 2003, for a period of "exactly" 60 days, ACGC failed to perform any work at the project. Mr. Borek denies her assertion. Ms. T. Meredith testified that she kept records on everything. When she testified as to an exact 60- day period in the middle of 2003 during which no work was being done at the project, Ms. T. Meredith did not point to any of her records to verify the assertion or provide certain beginning and ending dates. Taking into consideration the standard of proof and the burden of proof, the evidence failed to show clearly and convincingly that no work was done at the jobsite by ACGC for a period of 60 days in the middle of the year 2003. Nothing was done by Ms. T. Meredith, the architect, or CPP to delay the completion of the project. Mr. Borek admits that he had other jobs in progress when he was working on the addition. He further admits that when changes had to be made to the project, whether by the CPP or the architect or Ms. T. Meredith or himself, he had to re- arrange his schedule to accommodate the other jobs, which included re-deploying his workers and subcontractors, which in turn caused delays. Further, Mr. Borek admits that the turnaround time for any changes given to the architect for the plans to the addition was reasonable and that the turnaround time for the CPP to review the changes to the plans submitted by the architect was reasonable. Consequently, no unreasonable or inordinate delays were caused by the architect or the CPP when changes were made to the plans of the addition. Mr. Borek performed some work for Ms. T. Meredith at no cost that was not required by the Contract. The extra work at no cost included the following: the removal of trees; pouring of an exterior concrete slab; and plastering of drywall. The slow progress in completing the Contract was significant and material and resulted in the Contract’s not being performed in a reasonable time. The delays in completion of the addition were significant and were the fault of Mr. Borek. In addition to re-deploying workers for other jobs on which ACGC was working, ACGC failed to properly perform work, which resulted in failed inspections by the CPP, which resulted in numerous delays, and failed to timely obtain an electrical permit. As to the failure to timely obtain an electrical permit, the electrical permit was obtained almost five months subsequent to the issuance of the building permit by the CPP. The electrical permit was applied for on March 20, 2003 and approved on March 24, 2003. CPP's turnaround time in approving the permit was short and inconsequential. As to the failure to properly perform work, the Records indicate construction defects, which were under Mr. Borek's, the contractor's, control and which resulted in failed inspections. Furthermore, the Records indicate prior construction faults, identified in inspections, not being timely corrected, which was under Mr. Borek's control and which resulted in delays until the faults were corrected. Mr. Yanoviak testified that failure to perform the Contract within a reasonable time constituted misconduct. The undersigned finds his testimony credible. A finding of fact is made that the failure to perform the Contract within a reasonable time constituted misconduct. Additionally, Mr. Yanoviak testified that the failure to perform the Contract within a reasonable time constituted a material breach of the Contract. The undersigned finds his testimony credible, and a finding of fact is made that the failure to perform the Contract within a reasonable time constituted a material breach of the Contract. Further, Mr. Yanoviak testified that, such material breach, justified terminating the Contract. The undersigned finds his testimony credible only as to a general application and, therefore, a finding of fact is made that, generally, the failure to perform a construction contract within a reasonable time would justify terminating the construction contract but does not justify terminating the Contract under the circumstances presented in the instant case. Both Mr. Borek and Ms. T. Meredith orally agreed to a new date for completion of the addition, i.e., on or about November 15, 2003. To disregard the new date of completion would be manifestly unjust. Furthermore, at the time of the termination of the Contract by Ms. T. Meredith, i.e., on October 9, 2003, the termination was unreasonable and not for just cause. Hence, a finding of fact is made that termination of the Contract by Ms. T. Meredith, prior to the new completion date, was not justified. Mr. Yanoviak also testified that failure to perform the Contract within a reasonable time constituted abandonment of the project. The undersigned finds his testimony credible only as to general application and, therefore, a finding of fact is made that, generally, the failure to perform a construction contract within a reasonable time would constitute abandonment of a project. However, as found above, a new date for completion of the project was orally agreed upon and the new date had not expired at the time of the termination of the Contract by Ms. T. Meredith. Hence, a finding of fact is made that, under the circumstances of the instant case, abandonment did not exist. The Department presented evidence of costs for the investigation and prosecution of this matter, excluding costs associated with attorney time. As of July 5, 2005, the costs for the investigation and prosecution totaled $880.18. As to prior disciplinary action, on September 9, 2004, the Department filed a Final Order in Department of Business and Professional Regulation vs. Bret Jayson Borek, Case No. 2003-069533, License No. CG Co58817 before the Construction Industry Licensing Board. In that case, an administrative complaint was filed against Mr. Borek for violating Section 489.129(1)(i), Florida Statutes (2001), by failing to comply in a material respect with a provision of Chapter 489, Florida Statutes, through the failure to obtain a certificate of authority for ACGC; and for violating Section 489.129(1)(q), Florida Statutes (2001), by failing to satisfy a civil judgment, related to the practice of construction, within a reasonable time. Mr. Borek waived his rights to an informal hearing, and no material fact was disputed. Among other things, the Final Order imposed an administrative fine of $1,000.00, required restitution of $15,218.94 to a roofing and sheet metal company and required payment of $506.92 for investigative costs.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Construction Industry Licensing Board enter a final order: Finding that Bret Jayson Borek committed the violations set forth in Counts I, II, and III; Dismissing Count IV; and Imposing the following penalties: As to Count I, an administrative fine in the amount of $1,000.00 and revocation of the license of Bret Jayson Borek. As to Count II, an administrative fine in the amount of $500.00. As to Count III, an administrative fine in the amount of $5,000.00 and revocation of the license of Bret Jayson Borek. S DONE AND ENTERED this 9th day of January, 2006, in Tallahassee, Leon County, Florida. _______________________________ ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 2006.
The Issue The issues are whether Respondent committed the several violations of Sections 489.129(1)(h)2.,(h)3.,(j),(k), and (n), Florida Statutes (1997), for the reasons stated in the respective Administrative Complaints and, if so, what, if any, penalties should be imposed. (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of contracting. Respondent is licensed as a certified general contractor pursuant to license number CG C059414. At all relevant times, Respondent was the qualifying agent for Fred T. Garrett Construction, Inc. ("FTG"). As the qualifying agent, Respondent was responsible for all of FTG's contracting activities in accordance with Section 489.1195, Florida Statutes. Respondent failed to obtain a certificate of authority for Fred T. Garrett Construction, Inc., as required by Section 489.119(2), Florida Statutes. The St. Cyr Case On or about August 21, 1998, Respondent entered into a contract with Louis L. St. Cyr to construct an addition to the residence located at 201 South Bel Air Drive, Plantation, Florida. The contract price was $50,000. Although Mr. St. Cyr paid $2,500 to Respondent, Respondent failed to commence work and canceled the project, thereby abandoning it without just cause and without proper notification to Mr. St. Cyr. The contract did not permit Respondent to keep the $2,500 paid by Mr. St. Cyr, and Respondent failed to refund the payment within 30 days after abandonment. Out of the $2,500 he received from Mr. St. Cyr, however, Respondent paid $1,600.00 to the architect before abandoning the project. Thus, the net amount that Respondent owes to Mr. St. Cyr is $900. Petitioner incurred a total of $1,092.28 in investigative costs relating to the St. Cyr case. The Forney Case On May 22, 1998, Respondent, who was doing business as FTG, entered into a contract with Mr. Warren Forney for the construction of a two-bedroom, one-bath addition to the residence located at 1698 Northeast 33rd Street, Oakland Park, Florida. The contract price was $32,500. The contract with Mr. Forney did not contain a written statement explaining the customer’s rights under the Construction Industries Recovery Fund, as required by Section 489.1425(1), Florida Statutes. On July 7, 1998, Respondent obtained permit number 98-050297 from the Oakland Park Building Department. Construction commenced on or about July 7, 1998, and continued sporadically until October 29, 1998, when Mr. Forney dismissed Respondent for failure to timely complete the project. The Oakland Park Building Department issued notices of violation against the project on August 3, September 11, and October 14, 1998, for various building code violations. Mr. Forney was forced to obtain a homeowner’s permit and subsequently hired a subcontractor to complete the work. Mr. Forney paid Respondent approximately $29,250 before relieving Respondent of his duties. To complete the project, Mr. Forney paid a total of $48,746.52, which was $15,396.52 over and above the original contract price. Petitioner incurred a total of $2,190.78 in investigative costs relating to the Forney case. The Kong Case In or around January 1998, a contractor named Lakeview Concepts hired Respondent to perform demolition work for the Kong dry cleaning store project on the property located at 5171 South University Drive, Davie, Florida. On or about June 17, 1998, permit 98-00002349 was issued to Respondent to perform alterations on commercial property located at 5171 South University Drive, Davie, Florida. Respondent, however, did not yet have a contract with the owner for this work. The next month, on or about July 30, 1998, Respondent, who was doing business as FTG, entered into a contract with Shek Kong to complete the dry cleaning store project at 5171 South University Drive, Davie, Florida, for the contract price of $22,300. Shek Kong made payments to Respondent totaling $16,000. Respondent’s work was of poor quality, however, and on or about November 6, 1998, he ceased work, though the project had not been completed. On or about November 14, 1998, Douglas Frankow, license number CB C052960, gave Mr. Kong an estimate of $20,562 to complete the project. Thereafter, on or about June 30, 1999, Mr. Kong contracted with George Settergren, another licensed contractor, to complete the project for a contract price of $27,956. On December 9, 1999, in Case No. 98-020065 08, the Circuit Court, Seventeenth Judicial Circuit, Broward County, Florida, rendered a Final Judgment against Respondent and in favor of Mr. Kong. This judgment awarded Mr. Kong the total amount of $28,693.30, plus 10 percent interest per annum. Petitioner incurred a total of $2,502.78 in investigative costs relating to the Kong case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Construction Industry Licensing Board enter a Final Order finding Respondent guilty of violating Sections 489.129(1)(h)2., (h)3., (j), (k), and (n), Florida Statutes, imposing administrative fines in the aggregate amount of $3,700, assessing investigative costs in the aggregate amount of $5,785.84, placing Respondent's license on probation for a period of four years from the date the Final Order is entered by the Board, and awarding payment of restitution to each customer as follows: (1) to Warren Forney, the amount of $15,396.52; (2) to Shek Kong, satisfaction of the unpaid civil judgment in the amount $28,693.30, plus 10 percent interest accrued thereon; and (3) to Louis L. St. Cyr, the amount of $900. DONE AND ENTERED this 15th day of February, 2002, in Tallahassee, Leon County, Florida. _________________________________ JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 2002.
