The Issue The Florida Construction Industry Licensing Board, Petitioner, seeks to revoke the registered contractor's license of Stephen J. Borovina, Respondent, based on allegations, which will be set forth in detail hereafter, that he engaged in conduct violative of Chapter 468, Florida Statutes. The issue presented is whether or not the Respondent aided or abetted and/or knowingly combined or conspired with Mr. Howard North, an uncertified or unregistered contractor, to evade the provisions of Chapter 468.112(2)(b), and (c), Florida Statutes, by allowing North to use his certificate of registration without having any active participation in the operations, management, or control of North's operations. Based on the testimony adduced during the hearing and the exhibits received into evidence, I make the following:
Findings Of Fact The Respondent is a certified general contractor who holds license no. CGC007016, which is current and active. On or about July 25, 1976, Mr. and Mrs. Julius Csobor entered into a contract with Mr. and Mrs. Howard North for the construction of a home in Martin County, Florida, for a total price of $35,990. Neither Mr. or Mrs. North are certified or registered contractors in the State of Florida. (Petitioner's Composite Exhibit #2). Respondent applied for and was issued a permit by the Martin County Building Department to construct a residence for the Csobors at the same address stipulated in the contract between the Csobors and the Norths, i.e., Northwest 16th Street, Palm Lake Park, Florida. (Petitioner's Composite Exhibit #1). Howard North, a licensed masonry contractor for approximately nine (9) years was contacted by the Csobors through a sales representative from a local real estate firm. It appears from the evidence that North had previously constructed a "spec" house which the local realtor had sold and thus put the Csobors in contact with Mr. North when they were shown the "spec" house built by North. Evidence reveals that North contacted Borovina who agreed to pull the permit "if he could get some work from the job and could supervise the project". Having reached an agreement on this point, North purchased the lot to build the home for the Csobors and he orally contracted with the Respondent to, among other things, pull the permit, supervise construction, layout the home and do trim and carpentry work. North paid Respondent approximately $200 to layout the home for the Csobors. By the time that North had poured the slab and erected the subfloor, the Csobors became dissatisfied with his (North's) work and demanded that he leave the project. According to North, Respondent checked the progress of construction periodically. Prior to this hearing, the Csobors had never dealt with Respondent in any manner whatsoever. According to Csobor, North held himself out as a reputable building contractor. A contractor is defined in relevant part as any person who, for compensation, undertakes to, or submits a bid to, or does himself or by others, construct, repair, etc. . . . real estate for others. . . Chapter 468.102(1), Florida Statutes. Applying this definition to the facts herein, it appears that the Respondent, at least in a literal sense, satisfied the requirements and obligations of a contractor, as defined in Chapter 468.102, Florida Statutes. Thus, he contracted with North to oversee and/or supervise the project for the Csobors which he fulfilled, according to the testimony of North. Said testimony was not refuted and thus I find that no effort was made by Respondent to evade any provision of Chapter 468, Florida Statutes. Accordingly, I shall recommend that the complaint filed herein be dismissed in its entirety.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the complaint filed herein be dismissed in its entirety. RECOMMENDED this 4th day of November, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry S. Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 Stephen J. Borovina 2347 Southeast Monroe Street Stuart, Florida 33494 J. Hoskinson, Jr. Chief Investigator Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. DIVISION OF ADMINISTRATIVE HEARINGS, DOCKET NO. 77-1442 STEPHEN J. BOROVINA, CG C007016, 2347 S. E. Monroe Street, Stuart, Florida 33494, Respondent. / This cause came before the FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD at its regular meeting on February 10, 1978. Respondent was sent the Hearing Officer's findings and recommendations and was given at least 10 days to submit written exceptions to the recommended order. Respondent was notified of the meeting so that respondent or counsel might appear before the Board. Respondent did not appear The FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD on February 10, 1978, after reviewing a complete transcript of the Administrative Hearing, by motion duly made and seconded voted to revoke the certified general contractor's license of STEPHEN J. BOROVINA. It is therefore, ORDERED that the certification of respondent STEPHEN J. BOROVINA, Number CG C007016, be and is hereby revoked. Respondent is hereby notified that he has 30 days after the date of this final order to appeal pursuant to Chapter 120, Florida Statutes, and the Florida Appellate Rules. DATED this 13th day of February, 1978. FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD BY: JOHN HENRY JONES, President ================================================================= SECOND AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD STEPHEN J. BOROVINA, CG C007016, Respondent/Appellant, vs. DIVISION OF ADMINISTRATIVE HEARINGS, DOCKET NO. 77-1442 FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner/Appellee. / This cause came before the Florida Construction Industry Licensing Board at its regular meeting on August 3, 1979. The respondent was sent the Hearing Officer's findings and recommendations and was given at least 10 days to submit written exceptions to the recommended order. Respondent was notified of the meeting so that respondent or counsel might appear before the Board. Respondent did appear. The Florida Construction Industry Licensing Board, on August 3, 1979, after reviewing a complete transcript of the Administrative Hearing, by motion duly made and seconded, voted to revoke the certified general contractor's license of Stephen J. Borovina, No. CG C007016. On February 13, 1978, the certification of respondent, Stephen J. Borovina, No. CG C007016, was revoked by order of the Florida Construction Industry Licensing Board. On April 25, 1979, the District Court of Appeal of the State of Florida, Fourth District, in Case Number: 78-527, reversed the final order of the Florida Construction Industry Licensing Board. That Court remanded the above captioned case to the Board to further consider the matter and enter such order as it may be advised in conformity with Section 120.57(1)(b)(9), Florida Statutes (1977). In accordance with the decision of the Florida District Court of Appeal, Fourth District, the Board has reconsidered the above captioned matter and finds as follows: The Board rejects the recommended order as the agency's final order. The Board adopts the first paragraph of the hearing officer's finding of fact. The Board, however, rejects the findings of fact found in the second paragraph of the hearing officer's findings. The second paragraph states as follows: A contractor is defined in relevent(sic) part as any person who, for compensation, undertakes to, or submits a bid to, or does himself or by others, construct, repair, etc. real estate for others...Chapter 468.102(1), Florida Statutes. Applying this definition to the facts herein, it appears that the Respondent, at least in a literal sense, satisfied the requirements and obligations of a contractor, as defined in Chapter 468.102, Florida Statutes. Thus, he contracted with North to oversee and/or supervise the project for the Csobors which he fulfilled, according to the testimony of North. Said testimony was not refuted and thus I find that no effort was made by Respondent to evade any provision of Chapter 468, Florida Statutes. Accordingly, I shall recommend that the complaint filed herein be dismissed in its entirety. The findings of fact found in the above-quoted paragraph were not based upon competent substantial evidence. The competent substantial evidence supports a finding that the respondent, Stephen J. Borovina, did not supervise the project and that Borovina evaded the provisions of Chapter 468, Florida Statutes. The following evidence supports the Board's position: There was no written agreement entered into between Howard North and the respondent which indicated that the respondent was to supervise the construction of the Csobors' house (T- 14); It was conceded at the hearing that the only subcontractors or draftmen who worked on the Csobors' house were contracted solely by Howard North and they had no contract whatsoever with the respondent (T-19, 25); The respondent never advised or informed Mr. and Mrs. Csobor that he was the contractor on the job. (T-51); At all times during the act of construction of the house, Mr. and Mrs. Csobor were under the impression that Howard North was the contractor (T-44-51). It is, therefore, ORDERED: That the certification of respondent, Stephen J. Borovina, Number CG 0007016, be and is hereby revoked. Respondent is hereby notified that he has thirty (30) days after the date of the Final Order to appeal pursuant to Chapter 120, Florida Statutes, and the Florida Appellate Rules. Dated this 3rd day of August, 1979. FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD BY: JOHN HENRY JONES, President
Findings Of Fact At all times material to these proceedings, Section 4-67 of the Building Regulations, Supplement Number 44, Pasco County Ordinances were in effect and said regulation is the applicable local law. During the applicable time period, the Respondent, ROBERT G. FELLENZ, SR., was registered by the State of Florida as a roofing contractor and held license number RC0027998. Mr. Fellenz is the qualifying agent for Fellenz Roofing Co., Inc. On or about March 24, 1987, the Respondent, FELLENZ entered into a contract with James J. Hoover to re-roof a portion of his residence located at 822 Crestfield Avenue, Holiday, Pasco County, Florida. On April 1, 1987, the Respondent went to the building department in Pasco County to acquire the necessary permit to begin the Hoover project. During the processing of the permit, the Respondent learned that a stop order had been placed on the job. His work crew had disobeyed his direct orders and began work before the permit was obtained. While the Respondent was in the process of having the stop order removed, he learned that his liability insurance had expired. Proof of liability insurance coverage was needed by the Respondent in order for the building permit to be issued by Pasco County on the Hoover project. The Respondent contacted his customer, Mr. Hoover, and explained that he had an insurance coverage problem which he needed to straighten out before work could continue on the roof, and before he could obtain the building permit. Mr. Hoover was not home on the day the re-roofing project was begun and completed by the Respondent. On April 3, 1987, the Respondent obtained liability insurance coverage which went into effect on that date. He began and completed the Hoover re- roofing project on that date. On April 6, 1987, the building department issued the building permit on the Hoover project. A final inspection was never called for by the Respondent. The Respondent has previously been found to have violated Section 489.129(1)(d), Florida Statutes, in Case No. 69097 Construction Industry Licensing Board.
Findings Of Fact At all times material to these proceedings, the Respondent, David R. Knight, held a registered general contractor's license numbered RG 007907 issued by the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board initially in July, 1968. Respondent's license is presently in an inactive status for failure to renew but renewal can be accomplished by Respondent paying the required renewal fee only. On May 13, 1983, Respondent contracted with Joseph Cobb to remodel a house in Milton, Florida. The contract price was $23,800.00. The Respondent began the remodeling and when the project was approximately 50 percent completed, left the site. Joseph Cobb, on numerous occasions, offered to work with the Respondent in any way to finish the project, but the Respondent failed to return. Joseph Cobb paid Respondent $19,100.00 from May 14, 1983 through June 23, 1983. In addition, although the contract required Respondent to pay for all supplies and materials, Cobb paid $2,300.98 for supplies and material used in the remodeling. Respondent failed to pay Gary Rich Plumbing for the plumbing work done on the Cobb residence. Joseph Cobb was forced to pay Gary Rich $1,200.00 in order to avoid a lien being filed on his home. Respondent was not licensed to contract in Milton, Santa Rosa County, Florida, when he contracted with Joseph Cobb to perform remodeling. In June, 1982, Respondent contracted with Pearlie Rutledge to remodel a house at 608 North D Street, Pensacola, Florida, Escambia County. The contract price was $17,000.00. The Respondent began the construction without obtaining a building permit which is in violation of Section 106 Standard Building Code as adopted by the City of Pensacola Ordinance 81-83. Respondent deliberately and in a hurry left the site of construction when the building inspector appeared on the job. The Respondent was not licensed in Escambia County or the City of Pensacola to practice contracting. Pearlie Rutledge paid Respondent $5,000.00 which the Respondent failed to return when the remodeling was stopped by Charles Humphreys, Housing Inspector for the City of Pensacola. Pearlie Rutledge obtained a Final Judgement against the Respondent for $4,557.00 which has not been paid by the Respondent. Respondent's "81-82' and "82-83", Okaloosa County Occupational License was issued to David Knight doing business as "Your Way Construction." However, there was no evidence presented at the hearing that Respondent ever contracted in the name of "Your Way Construction." In fact there is evidence that during the year 1983 he contracted with Cobb as David Knight, General Contractor and not as David Knight, General Contractor, d/b/a Your Way Construction. (See Petitioner's Exhibit No. 1.)
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Board enter a final order Dismissing Counts II, V and VI of the Administrative Complaint filed against the Respondent. It is further RECOMMENDED that the Board enter a final order finding Respondents guilty of the violation charged in Counts I, III and IV of the Administrative Complaint filed against the Respondent and for such violation it is RECOMMENDED that the Board revoke the Respondent's registered general contractor's license numbered RG 0007907, to practice contracting in the State of Florida Respectfully submitted and entered this 9th day of January, 1986, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 9th day of January, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 84-3836 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the Petitioner to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Exhibit 1). 3. Adopted in Finding of Fact 3. 4. Adopted in Finding of Fact 4. 5. Adopted in Finding of Fact 5. 6. Adopted in Finding of Fact 6. 7. Adopted in Finding of Fact 7. 8. Adopted in Finding of Fact 8. 9. Adopted in Finding of Fact 9. 10. Adopted in Finding of Fact 10. 11. Adopted in Finding of Fact 11. 12. Adopted in Finding of Fact 12. Adopted in Finding of Fact 2 except for contract amount which should have been $23,800. (See Petitioner's Respondent Did Not Submit Any Proposed Findings of Fact COPIES FURNISHED: James Linnan, Executive Director Department of Professional Regulation Construction Industry Licensing Post Office Box 2 Jacksonville, Florida 32202 Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. David R. Knight 1215 East Hayes Street Pensacola, Florida 32503
Findings Of Fact The Respondent is a certified general contractor holding license number CG C016888. The Petitioner is an agency of the State of Florida charged with enforcing the provisions of Chapter 489, Florida Statutes, regulating the licensure and practice status and standards of building contractors in the State of Florida and enforcing the disciplinary provisions of that chapter. On December 14, 1981, Respondent contracted with Mr. and Mrs. Frank J. Sullivan to build the Sullivans a home in Sarasota County, Florida. Those parties entered into a contract whereby the Respondent was to be paid the actual cost of construction including all labor and materials plus a commission in the amount of 8 percent of the actual cost of construction, provided however, that the total contract price would not exceed $49,000, including actual costs and commission. In January, 1982, Respondent commenced work constructing the home. The Respondent worked on the home for several months and then abruptly ceased and abandoned construction without explanation on May 14, 1982. At this time the house was approximately 70 percent complete. At the time the Respondent ceased work on the project he had already been paid $47,362.29 or approximately 97 percent of the total contract price agreed to by the parties. The Sullivans thereafter had to pay $10,633.53 to subcontractors and materialmen who had been hired by the Respondent to supply labor and/or materials to the house, at the Respondent's direction, prior to his ceasing construction and leaving the job. Additionally, the Nokomis Septic Tank Company, Inc., the subcontractor who installed the septic tank, was owed $1,180.07 by the Respondent for the installation of the septic tank, which amount was to have been paid out of the total $49,000 contract price. The Respondent failed to pay Nokomis Septic Tank Company, which then filed a mechanic's lien on the property. In order to remove this cloud on their title to the property and avoid foreclosure of the lien, the Sullivans were forced to pay the $1,180.07 amount of the lien. In addition to more than $10,000 paid to subcontractors who had already performed labor or supplied materials to the job before the Respondent left it, the Sullivans had to obtain a loan from their bank in order to finish the project. The contracted for items which the Respondent had left undone (approximately 30 percent of the construction) required them to expend $18,662.04 to complete the dwelling in a manner consistent with the contractual specifications. The items which remained to be constructed or installed are listed on Petitioner's Exhibit 7 in evidence. The remaining amount of contract price which the Respondent was due upon completion of the job would have been $1,737.71. With this in mind, as well as the fact that the Sullivans had to pay in excess of $10,000 to defray already outstanding bills to subcontractors for labor and materials already furnished and then had to obtain a loan in order to pay $18,662.04 in order to complete the house, and it being established without contradiction that the Respondent was unable to make his payroll at the point of leaving the job, the Respondent obviously used substantial amounts of the funds he received from the Sullivans for purposes other than furthering the construction project for which he contracted with the Sullivans. Concerning Count II, on December 22, 1981, Frederick Berbert doing business as Venice Enclosures of Venice, Florida, contracted with Mr. Emory K. Allstaedt of Grove City, Florida, Charlotte County, to build an addition to Mr. Allstaedt's mobile home. The contract specified a price of $4,952 for which Berbert was required to construct a 12-foot by 20-foot enclosure or porch. Mr. Allstaedt never did and never intended to contract with the Respondent, Mr. Martin, rather, his contract was only with Frederick Berbert. Mr. Berbert was a registered aluminum specialty contractor in Sarasota County. He was not registered or licensed to practice contracting in Charlotte County where Mr. Allstaedt lived and where the porch was to be constructed. On December 28, 1981, the Respondent obtained building permit number 72030 from the Charlotte County Building and Zoning Department to construct a "Florida room" for Mr. Allstaedt's mobile home, the same room to be constructed by Mr. Berbert. Under Charlotte County Ordinances in evidence as Petitioner's Exhibits 13 and 13A, only a properly licensed "A", "B" or "C" contractor or a registered aluminum contractor can perform this type of job. The Respondent was appropriately licensed for this type of work in Charlotte County, but Mr. Berbert was not and thus could not obtain the permit in his own right. The Respondent's only connection with this job was obtaining the permit in his own name as contractor of record and in performing some minor work in replacing some damaged sheets of paneling shortly after the construction of the room addition and after the performance of the contract by Berbert. Though the Respondent listed himself as contractor in order to be able to obtain a building permit for the job, he never qualified as the contractor of record nor "qualified" Mr. Berbert's firm with the Construction Industry Licensing Board. Both Mr. Berbert and the Respondent were aware that Mr. Berbert could not legally perform contracting in Charlotte County at the time the Respondent obtained the building permit on Berbert's behalf.
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 contractor's license of Jack A. Martin be suspended for a period of ten (10) years, provided however, that if he makes full restitution to the Sullivans of all monies they expended for labor, materials and permits to enable them to complete the work he had contracted to perform, within one year from a final order herein, that that suspension be reduced to three (3) years after which his license should be reinstated. DONE and ENTERED this 27th day of April, 1984, in Tallahassee, Florida. P. MICHAEL RUFF 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 30th day of April, 1984. COPIES FURNISHED: Charles P. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Jack A. Martin 305 Park Lane Drive Venice, Florida James Linnan, Executive Director Florida Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact At all times material hereto, Respondent has been a registered residential contractor having been issued license number RR 0040275. In approximately 1980, Respondent entered into a contract to erect a screen room for a Mr. Lewis. Under the terms of the contract, Respondent was to obtain the necessary building permit. After the contract had been signed, Respondent's grandfather died, and Respondent therefore went to New Jersey. He left the permit application with his qualifying agent to sign and process through the building department. When Respondent returned from New Jersey approximately 30 to 35 days later, he went to the Lewis job site and found the project almost completed. Respondent did not check to ascertain if the permit had been obtained, but rather completed the screen room himself. Lewis subsequently contacted Respondent to say that he had received a notice of violation from the building department for erecting a screen room without a permit. Respondent contacted the building department and advised that it was not Lewis's fault, but rather that it was Respondent's responsibility to pull the permit. Respondent was charged with unlawfully erecting a screen room without a permit; he appeared in court and pled guilty; and he paid a $250 fine pursuant to the adjudication of guilt entered on April 20, 1981, in the County Court in and for Dade County, Florida, in Case No. 81-50438. On June 24, 1981, Respondent submitted to the Construction Industry Licensing Board a Contractor's Registration application. On that application, Respondent answered in the negative the following question: "Has any person named in (i) below ever been convicted of any offense in this state or elsewhere other than traffic violations?" At the time Respondent gave that answer, he believed it to be true. He understood the question to call for information on criminal acts and did not comprehend the "screen room" charge to have been criminal conduct. Since Respondent answered that question in the negative, his application for registration was processed in accordance with normal procedures. Had Respondent answered that question in the affirmative, his application would not have gone through normal processing but rather would have been presented to the Construction Industry Licensing Board for the Board's determination of whether to approve the application based upon a consideration of the facts. On November 22, 1982, Respondent contracted with Naomi Blanton to construct an addition to Blanton's home located in the City of Miami, in Dade County, Florida, for a contract price of $11,250. When Respondent had first met with Blanton several months earlier, he had told her he could guarantee completion of the project within 45 days. No contract was entered into at that time, however, since Blanton had not obtained the financing she needed in order to construct an addition. When the contract was signed on November 22, Respondent told Blanton he would start the job when he finished the Chamber of Commerce building he was con structing but that he was starting a 12-unit duplex project around Christmas and would not be able to guarantee any 45-day completion deadline. Accordingly, when the contract was signed, no completion date was included in the terms of that written contract, since Respondent did not know when he could guarantee completion. The Blanton contract written by Respondent specifically provided that Respondent would obtain the building permit. On December 22 and 23, 1982, two of Respondent's employees arrived at the Blanton job site, dug a trench, knocked down the utility room, and moved Mrs. Blanton's washing machine. No further work was done until January 1983. Since Respondent knew that he was required to obtain the building permit before commencing any construction work, Respondent submitted his plans and permit application to the City of Miami Building Department. After the plans had been there about a week, he was advised that his plans would not be accepted unless they were drawn by an architect, although that is not required by the South Florida Building Code. After attempting several more times to obtain approval from the City of Miami Building Department, Respondent hired an architect to redraw the plans and secure the building permit. By this time, Respondent found himself unable to concentrate on operating his business efficiently, since he was preoccupied with spending time with his father who was dying of cancer. Also by this time, Blanton had commenced telephone calls to Respondent on an almost daily basis as late as 11:00 p.m. at his office, at his home, at his mother's home, and at his father's home. Respondent offered to return Blanton's deposit, but she refused to cancel the contract and threatened Respondent that she would sue him if he did not comply with that contract. Respondent commenced working on the Blanton job, although no permit had yet been obtained. The contract on the Blanton job called for payments at certain stages of the construction. By January 27, 1983, Respondent had completed a sufficient amount of the work under the contract so that Blanton had paid him a total of $8,270 in accordance with the draw schedule contained in the contract. Respondent ceased working on January 27, 1983, and advised Blanton and her attorney that he would do no further work until he could obtain the building permit, which he had still not been able to obtain. Although he told them his work stoppage was due to his continued inability to obtain the permit, he also stopped work due to his father's illness and his continued inability to get along with Mrs. Blanton. A delay occurred with the plans being redrawn by the architect Respondent hired to obtain the Blanton building permit, since the architect needed information from Blanton and she was out of town. After Blanton returned, the architect made unsuccessful attempts to obtain the building permit. Respondent and his architect were finally able to speak to one of the top personnel in the City of Miami Building Department about the problems they were experiencing in obtaining a building permit, and, at about the same time, Blanton contacted that same individual to complain that Respondent had no permit. On May 4, 1983, the building department finally accepted the second permit application together with the plans drawn by the architect, and the building permit was issued on May 4, 1983. No work was performed on the Blanton job between January 27, 1983, when Blanton paid Respondent the draw to which he was entitled by that date, and May 4, 1983, when the building permit was finally issued by the City of Miami. Respondent immediately resumed work and quickly completed the next stage of construction called for under the Blanton contract. Upon completing that next stage, he requested his next draw payment; however, Blanton decided not to pay Respondent for the work completed and had her attorney advise Respondent not to return to the job site. Blanton then had a friend of her son come to Miami from Wisconsin to complete the addition to her home. At all times material hereto, Respondent held a certificate of competency issued by Metropolitan Dade County.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of violating Section 489.129(1)(d), Florida Statutes, by willfully and deliberately violating Section 301(a) of the South Florida Building Code; imposing an administrative fine against Respondent in the amount of $2,000 to be paid by a date certain; and dismissing the remaining charges contained in the Administrative Complaint, as amended, against Respondent. DONE and RECOMMENDED this 13th day of April, 1984, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 13th day of April, 1984. COPIES FURNISHED: Douglas A. Shropshire, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Joseph F. Scioli, Jr. 246 North Krome Avenue Florida City, Florida 33034 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
Findings Of Fact The Respondent is licensed as a general contractor in the State of Florida and registered with the Florida Construction Industry Licensing Board. That agency is the agency charged with regulating the practice of contracting in the State of Florida and with monitoring the compliance of licensees with the various provisions of Chapter 489, Florida Statutes, and pertinent rules relating to licensure standards and practice standards of contractors. On April 23, 1980, one Terry Burch and Jim Goodman were operating a construction business under the fictitious name of "T. J. Associates." Neither Terry Burch or Jim Goodman, nor the entity known as T. J. Associates, was qualified or licensed with the Florida Construction Industry Licensing Board at that time, nor at times subsequent thereto which are pertinent to this proceeding. On April 23, 1980, T. J. Associates entered into a written contract with homeowners Florence Martin and her husband to remodel their home at 120 Broadview Avenue, Winter Park, Florida. The original contract was for $26,615.00 with various addenda to that contract, such that the total net contract price, with modifications, ultimately reached $40,597.00. Both the contract and the modification agreements were signed by the Martins and Terry Burch of T. J. Associates. The Respondent, Steven Shields, was not a party to any of these agreements. Mr. Burch and Mr. Goodman of T. J. Associates, obtained the Martin contract entirely through their own efforts and after obtaining the signed contract, approached the Respondent, Steven Shields, to ask him to draft blueprints for the job, also proposing that the three of them enter into some sort of partnership or other business arrangement. During the meeting at which this business was discussed, it was revealed to the Respondent that T. J. Associates was unlicensed with the Florida Construction Industry Licensing Board and the three men agreed that they would obtain proper application documents from the Board's office in Orlando for filing so as to properly qualify the company. In the meantime, the Respondent agreed to obtain from the City of Winter Park Building Department, the necessary building permits and did so. The Respondent was ultimately paid $600.00 by T. J. Associates for labor he performed on the subject project and for obtaining a building permit in his own name. The Respondent ultimately decided not to enter into a business relationship with T. J. Associates, Burch and Goodman. He did, however, work on the "Martin project" as a sort of job supervisor or foreman, performing some labor on the job and going to the job site on possibly two or three occasions during the course of the construction effort of T. J. Associates. The Respondent initially intended to use his contractor's license to properly qualify T. J. Associates with the Board and obtain the papers to do so, but after he did not enter the formal business relationship with T. J. Associates, neglected to do so, nor did T. J. Associates make any further effort to qualify itself as a contracting entity with the Florida Construction Industry Licensing Board. The Respondent did obtain the building permit for T. J. Associates for the Martin job on May 13, 1980, and obtained it under his individual name and contractor license number. T. J. Associates worked on the Martin job from May 6, 1980, to July 16, 1980. On July 16, 1980, after a dispute regarding the quality of the paint work and other matters, T. J. Associates and the Respondent stopped all work. At the time of the stoppage, the work was 90 percent complete. At the time the work was stopped, no more money was due to T. J. Associates for work already performed. The Martins, at that point, had paid T. J. Associates $35,900.00. The Martins had however, upon advice of their attorney, withheld sufficient funds at the point of cessation of work by T. J. Associates, to enable them to pay for the completion of the job by other labor and materialmen. Three subcontractors had been hired or contracted with by T. J. Associates for work which was performed by them on the Martin job. Those three subcontractors, Mr. Anthony Costa, Mr. Clyde Ray and Mr. Michael Ellis, had performed work for which they were owed, respectively, $531.00, $550.00 and $130.00. None of those three subcontractors have, as yet, been paid for these amounts. They repeatedly attempted to obtain payment from T. J. Associates, but were given no satisfaction in that regard. The Respondent never entered into any agreement or hiring arrangement with the three subcontractors involved, nor did the Respondent ever have possession or control of any funds paid from the Martins to T. J. Associates from which the subcontractors should have been paid. The Respondent only received the above- mentioned $600.00 from T. J. Associates for his services.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the Respondent be found guilty of a violation of Section 489.129(1)(e) and (k), in that he aided and abetted an uncertified, unregistered person to evade the act and violated Subsection (k) by abandoning the project without just cause. The remaining charges in the Administrative Complaint should, however, be dismissed. In view of the violations proven, an administrative fine of $500.00 and a three (3) month suspension of his license, followed by a one (1) year period of probation is warranted. DONE and ENTERED this 22nd day of August, 1983, in Tallahassee, Florida. P. MICHAEL RUFF 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 22nd day of August, 1983. COPIES FURNISHED: Douglas A. Shropshire, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Charles E. Hoequist, Esquire 301 North Ferncreek Orlando, Florida 32803 James Linnan, Executive Director Florida Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue for consideration was whether Respondent's license as a registered residential contractor should be disciplined because of the alleged misconduct outlined in the two Administrative Complaints filed in this case.
Findings Of Fact At all times pertinent to the Administrative Complaint filed herein, Respondent was a registered residential contractor in the State of Florida having been issued license number RR 0010134. Michael P. Freeman (a/k/a Dennis Freeman) was at no time material to the allegations considered herein a registered, certified, or otherwise licensed individual on record with CILB in Florida. In July 1983, Respondent and Dennis Freeman agreed to form a corporation for the purpose of home construction in Florida to be known as D & S Homebuilders, Inc. (D & S). The officers of this corporation were to be: President S. A. Stone (Respondent) Vice President Dennis Freeman Sec. Treas. Kristina Freeman The letter from Respondent to his attorney, drafted and written by Ms. Via, but signed by Respondent, requesting that the corporation be established, provided that Freeman was to be responsible for all materials, maintenance, labor, bills, etc., and Respondent was to be responsible only for the "quality of work." This letter served as an agreement between Freeman and Stone which was to be separate and apart from the Articles of Incorporation. Respondent was to receive a 7% commission on "all labor done or any type of construction by Mr. Freeman or D & S Homebuilders . . .", and through his Exchange Realty office, was to receive a 5% commission on all sales of property from the corporation or Mr. Freeman. D & S was organized as a corporation until November 21, 1984, when it was involuntarily dissolved for failure to file an annual report. Though the corporation was formed and a Corporate Charter issued, and this action was taken at the request of the Respondent, the corporation was formed in the attorney's name. Neither Respondent nor the Freemans ever officially took over as officers or directors. In short, the corporation while legally born, never breathed. At no time during its life and during the period relative to the allegations contained in the Administrative Complaint herein, did the Respondent qualify the corporation with the Florida Construction Industry Licensing Board. In addition to sending the letter to the attorney requesting that the corporation be established, Mr. Stone, on November 1, 1983, entered into a handwritten agreement with Mr. Freeman, also drawn by Ms. Via, which called for the use of his license: for Freeman to pay Respondent an additional $500.00 for the use of the license on each job over $5,0000.00 and for Freeman to "be solely responsible for anything that might arise against S. A. Stone's license." The first payment was to be made on December 1, 1983, and the agreement was to last through November 1, 1984. Stone never got any financial benefit from his relationship with Freeman. The agreement mentioned above was entered into at the behest of the then Chief of Police in Chiefland, Mr. Underwood, who requested that Respondent do anything he could to keep Freeman, who was then under investigation for other misconduct in the area. Mr. Underwood corroborates this. Pursuant to this request, when Respondent suggested an arrangement with Freeman, Freeman insisted that the agreement be in writing. Stone contends that at no time did he ever intend for the agreement to be permanent nor did he ever intend to make any money out of it. He says he knew it was illegal and he entered it solely because of the request from the police. He contends, and there is no evidence to contradict his contention, that at no time did he ever receive any money from Freeman as a result of this agreement nor from the formation of D & S. On July 26, 1983, Respondent executed an authorization for Dennis Freeman to act as his authorized agent to pull permits on his behalf at the Levy County Building Department. No mention was made on this form of D & S Homebuilders, Inc. The form was prepared by Mrs. Nancy Gilbert, the administrative assistant to Mr. Davis, the Levy County Building Official. At the time in question, Mr. Stone had introduced Mr. Freeman, his agent, to pull permits and Ms. Gilbert prepared the document to do what Mr. Stone wanted. The document is written in plural terms for repeated uses. Mr. Stone contends that his intention at the time was for it to be used for a single operation and that he failed to notice the erroneous pluralism, but other evidence of record disproves this contention. While it is not the policy of the Building Office to prepare these authorizations for contractors, it is a normal practice in Levy County and other counties throughout the State to allow agents to pull permits on the license of their prime contractor or employer as was done here. There is no evidence that the Bell job, which was for the most part accomplished by Respondent, was not satisfactory. Here, the work progressed smoothly and was properly completed, but based on his dissatisfaction with Freeman's performance during this job, he indicated to Freeman that there would be no further relationship between them. Nonetheless, the authorization was not revoked and Stone signed the permit application for the Reagan house as seen below. Without that authorization, the Building Office would not have allowed Freeman to obtain any of the building permits utilized for the other construction projects referenced in the Administrative Complaint. In July 1983, the Fumeas entered into a handwritten contract with Freeman, drafted by Kristina Freeman for the construction of a house for Bertha Reagan, Mrs. Fumea's mother. The contract had a price of $24,000.00. The Fumeas were to receive $10,000.00 for their land on which the house was to be built and Freeman was to receive a $14,000.00 loan from Mrs. Reagan for materials to build the house in question. When the house was sold, the initial $24,000.00 was to be returned to Mrs. Reagan. Any profit was to be divided 40% to Mrs. Reagan, 40% to the Freemans, and 20% to the Fumeas. The contract also called for the construction of a second house upon completion of the first. By check, dated June 9, 1983, Mrs. Reagan provided Freeman with the $14,000.00 to be secured by a second mortgage on the property executed by both Freemans in favor of Bertha Reagan. Thereafter, on August 24, 1983, Respondent, acting for D & S and S. A. Stone and Dennis Freeman, applied for a construction permit to build a residence for Mrs. Reagan as called for. In support of that application, Mr. Stone also furnished an affidavit to the effect that he was the qualifying contractor for residential building for D & S in Levy County. That same day, a building permit was issued to D & S, S. A. Stone, and Dennis Freeman for construction of the house in question. Somewhat later, in August or September, 1983, Freeman began construction of the house. During their negotiations, Freeman had indicated that Respondent was his associate. Nonetheless, it was Freeman who did all the work but in September or October 1983, he quit work on the project. At that point the foundation, the floor, and the 2 x 4 framing was in. No roof, no plumbing, and no electrical work had been installed. Mr. Fumea kept calling Freeman who repeatedly promised to finish work on the property by December 1983, but never did. The house was finally completed by another builder, David Allen, in 1984, for $21,000.00 additional. Allen was unable to complete the work started by Freeman and had to tear it down. Only the original footing was utilized. Neither Mr. or Mrs. Fumea ever dealt with or saw Stone, nor at any time during the period of difficulty with the construction was any attempt made to contact him. The reasoning was that even though Freeman had indicated Stone was the "S" in D & S before the work started, they did not believe Stone had anything to do with the contract. The Fumea's knowledge of Respondent's relationship with D & S was based solely on Freeman's representations. They never dealt with Stone, never saw him at the job, nor did they complain to him when the work was not completed even though Chiefland is a small town and it would be easy to contact him. Somewhat later, on September 7, 1983, Michael (Dennis) and Kristina Freeman entered into a contract with Herman R. and Verenia A. Matthews for the construction of a home in Levy County for a contract price of approximately $21,061.45 which included $17,061.45 which was then owed to the Matthews by Freeman. Freeman was to build them a house on a lot they owned across from their residence for an investment. The $17,641.00 was made up of several loans by the Matthews to Freeman. At this time, the Matthews did not know of D & S. The loans in question had been granted on the basis of a personal friendship between the Matthews and Freeman. At the time, the Matthews were in Michigan and the loans were not secured nor was interest involved. In addition to the $17,061.45 already advanced, the Matthews were to pay an additional $4,000.00 and any sums received from the cutting of timber on the property was to also be paid to Freeman. On or about October 12, 1983, Michael Freeman, acting for D & S, applied for a construction permit to build the Matthews' house. Attached to the application was an undated, unnotarized affidavit signed by Michael Freeman indicating he was qualifying contractor for D & S. Pursuant to the application, that same day, a building permit for the construction in question, was issued. Actually, construction had started without the benefit of a permit in early September, 1983. On September 9, 1983, the Matthews gave Freeman a $1,000.00 check with second and third payments of $1,000.00 each being paid on September 22, 1983. On October 17, 1983, Mrs. Matthews gave Freeman a check for $7,000.00 of which $1,000.00 was the remaining amount due on the $4,000.00 balance and $6,000.00 was an unsecured loan. This loan was repaid immediately with an exchange check, post-dated to October 24, 1983, in the amount of $6,000.00 drawn on the account of D & S by Michael Freeman. When the Matthews ultimately deposited the check, however, it was dishonored due to insufficient funds and the $6,000.00 loan was never repaid. The Matthews first found out about D & S Homebuilders, Inc. when the Freemans in late August or September, 1983, indicated they had incorporated. Mrs. Matthews had never met the Respondent nor been aware that Respondent might be involved in the construction. Freeman had represented himself as a licensed contractor and had told the Matthews that he had rented space in Respondent's office. At no time, however, did he say that Respondent was involved in the business. On November 14, 1983, Mrs. Matthews gave a check in the amount of $7,000.00 to Kristina Freeman, as a loan to D & S since she had been told that the company was haying trouble paying its bills. This loan was never repaid. By this time, the Matthews knew well that Freeman was in financial difficulties and did not have any money, so they did not ask for their loan back. In addition, on December 2, 1983, Mrs. Matthews gave Michael Freeman a check for $850.00 as a loan for payroll and on December 12, 1983, gave him a check for an additional $200.00 as a loan to assist him to buy property on which he was to build a house for Mr. Piperski. Neither of these latter two loans were ever repaid. The house to be built for the Matthews was never completed by Freeman or D & S. Work stopped sometime in November 1983. After Freeman went to jail in January 1984, Mrs. Matthews had it finished by someone else. The home was completed by this second contractor in April 1984 and the Matthews now live in it. In addition to the amounts set out above, the Matthews also paid an additional $7,034.00 for materials and $6,590.00 for labor to complete the property. On top of this, they also paid $1,200.00 to RocLen Refrigeration for a dishonored check issued by Kris Freeman on the D & S account in January 1984 for the heating and air conditioning system. They also paid off a claim of lien in the amount of approximately $3,600.00 filed by McCoy Building Supply Center for building materials ordered by D & S for the property; approximately $240.00 to Arrington Tru-Value Hardware for miscellaneous building materials ordered by D & S for the property; and approximately $875.00 to satisfy a claim of lien filed by Keller Building Products of Ocala, based on a contract with D & S for miscellaneous building materials on the property. Mrs. Matthews did not contact Respondent about the house because as far as she was concerned, he had nothing to do with it. Freeman had told her that D & S was owned by Freeman and his wife, most of the checks she gave to D & S were made out to Freeman and endorsed by either Freeman or his wife. All cash paid into the D & S account was done through dealings with one or the other of the Freemans, and she never dealt at all with Stone. On November 25, 1983, Michael Freeman, acting for D & S, submitted a proposal to Charles Treis for the construction of a home on property in Chiefland, Florida, for a price of $14,000.00 plus a travel trailer valued at $3,000.00. On the same day, Freeman and Treis entered a standard form agreement for the construction of this home by D & S for the amount stated, payments to be made of $5,000.00 as of signing $5,000.00 upon "rough in," and $4,000.00 plus the travel trailer upon completion of specified work. Construction was to begin on November 28, 1983, and was to be completed within 60 days. The contractor was to complete the house except for painting and staining, heating and air conditioning, floor covering, and appliances. Interior trim and doors were to be supplied by the contractor for, installation by the owner. That same day, Mr. Treis gave a check in the amount of $5,000.00 to Michael Freeman as the first payment on account in accordance with the terms of the contract. This contract was amended on January 10, 1984 when Freeman agreed to install floor covering, build cabinets for the kitchen, install interior trim and doors, and paint and stain. the interior and exterior. He was also to supply wood ceiling in the living room area and kitchen and in return therefor, was to be paid $2,000.00 plus a travel trailer. On December 20, 1983, Michael Freeman, on behalf of D & S, applied for a construction permit to build the Treis house and that same day a building permit was issued to D & S. On January 6, 1984, Mr. Treis gave two checks to Mr. Freeman, one for $1,000.00 and one for $6,000.00 additional draws against the contract price. In mid-January 1984, after the foundation was poured and the interior and exterior walls were partially erected, D & S ceased all construction activity because Freeman had been arrested and jailed in Marion County. At this point, the roof had not been installed nor were doors and windows in place. No one from D & S ever returned to complete his own construction. On January 16, 1984, Mr. Treis paid Suwannee Valley Precast Company in the amount of $540.00 for a 900 gallon septic tank ordered by Mike Freeman at D & S. This bill was supposed to have been paid out of the first draw Treis gave Freeman but was not. To avoid a lien being filed against his property, Mr. Treis paid off the amount in question. Mr. Treis also paid $710.33 to Sunshine Concrete and Building Supply for materials ordered by D & S and $189.00 to Lindsey Brothers Construction for labor for laying the foundation walls, also procured by Freeman for D & S. In addition, Mr. Treis paid Harcan Lumber the amount of $4,500.00 for bad checks that Michael Freeman had written in payment for materials to go into the Treis property. As a result of all these additional debts, Mr. Treis was required to sell the property to pay off the creditors not paid by D & S. Mr. Stone was not present at any time during the transactions described regarding Mr. Treis, and Freeman made no mention of him. In fact, Mr. Treis did not know anything about Mr. Stone. It was only after Mr. Treis found out that Freeman was in jail that he had any contact with Stone. Toward the end of January 1984, when he found out that the "S" in D & S was Respondent, Treis and a friend went to Stone's office to find out what Stone intended to do about the property. Stone indicated he was not responsible for anything that Freeman did and that he would not honor the contract that had been entered into with D & S. At some time prior to November 26, 1983, in response to an advertisement placed in the Chiefland newspaper by D & S, Howard Robinson contacted Freeman to obtain an estimate for the construction of a home in Levy County. During the contract negotiations, Freeman provided Robinson with a D & S business card which bears only Freeman's name. Robinson is a resident of Largo but owns property in Levy County. On November 26, 1983, Mr. and Mrs. Robinson, entered into a contract with D & S which was signed by Michael Freeman, for the construction of a home for the price of $16,900.00. Payments were to be made one-third upon acceptance of the contract, one-third upon "rough-in" inspection, and one a third upon completion. The owner was to install floor coverings, heating and air-conditioning and appliances, and the contractor was to provide a one year warranty on construction. Construction was to begin by November 29 and the house was to be completed within 60 days. Three days later on November 29, 1983, Mrs. Robinson issued a check in the amount of $5,633.33 to D & S Homebuilders, Inc. as the first payment for the construction of their home. This check was endorsed by Michael Freeman for D & S. It should be noted here that, as previously, the business card given to Mr. Robinson by Freeman at the time of their first meeting reflects only Freeman's name, not that of Respondent. After the contract was executed, Mr. Robinson returned to Largo and did not come back to Levy County until January 1984. On December 22, 1983, Mr. Freeman came to Largo to see the Robinsons for purpose of securing the second draw. At that time, he indicated the foundation and slab had been poured and that walls erected and the roof trusses were to be installed the following day. Based on these representations, Mrs. Robinson issued another check for $5,633.33 to Freeman for the second draw under the contract even though the second draw was not due until after erection of the roof trusses. As inducement to pay prior to the time called for in the contract, Freeman agreed to amend the contract to provide air conditioning and heating, furnish the floor covering, and build a 10 x 12 foot pump house. After paying these additional sums, Mr. Robinson found out that construction on his house had not been started even though Freeman had indicated that it had. Therefore, in January 1984, Mr. Robinson made his first trip back to Chiefland since the signing of the contract to visit the construction site and discovered that the only work accomplished had been the digging of a footer. On or about January 10, 1984, Freeman, on behalf of D & S, applied for a building permit to construct the property in question and this permit was issued that same day. The only construction accomplished on Robinson's property was an oversized footer, approximately three feet wide and four or five feet deep, out of which the steel company had already taken the steel originally installed. Even after this however, Mr. Robinson did not contact Respondent because his dealings had always been with Freeman and he had never seen nor talked to Stone. Neither Stone or any of his agents or employees has ever contacted Mr. Robinson concerning either completing the construction or repaying the money paid under the contract. The only thing Mr. Robinson has ever been reimbursed with was a $300.00 payment from the County when Mr. Freeman was on a work- release program while in jail. In November 1983, Mitchell Piperski saw an ad in the paper for a home built by Mr. Freeman. This ad was in the name of D & S Builders and Mr. Piperski contacted Freeman at the phone number in the ad. Freeman thereafter came to Piperski's house and they discussed the possible construction of a home for the Piperskis. As a result of these discussions, Mr. Piperski, on December 19, 1983, entered into a contract with D & S signed by Michael and Kris Freeman for the construction of a home in Chiefland for a contract price of $16,500.00. Since Mr. Piperski did not have a lot on which to build the house, Freeman took him a see a lot which he said he, Freeman, owned. The lot in question was a five acre corner and when Piperski said he did not need so much land, Freeman said he would keep one half. Since, however, the two parties could not agree on the property, Piperski purchased a lot from someone else. A short time thereafter, the Freemans came to the Piperskis and indicated they would be in financial difficulty if the Piperskis did not buy their property and as a result, the Piperskis agreed to allow Freeman to build the house on the property which, by warranty deed on December 19, 1983, Freeman conveyed to the Piperskis. At closing Freeman was paid $5,000.00 called for upon acceptance of the contract, and $12,500.00 for the lot. During the negotiations, Freeman had told Mr. Piperski that there were three people involved in D & S. These three were Freeman, his wife, Kris, and someone else, undisclosed, who was in the real estate business. Mr. Piperski had known Stone from the lodge to which they both belonged but he had no idea that Stone was the "S" in D & S. No work on the construction of the Piperski house was ever accomplished. When Piperski called the building department, he was told that Freeman could no longer build homes because Mr. Stone had pulled the authorization for him to use Stone's license. This disclosure was made to Mr. Piperski on January 8, 1984. Prior to that date and all through the negotiations, he had no idea that Stone was involved in the transaction. That afternoon, Mr. Piperski went to a lawyer about the situation and the lawyer called Stone. When Piperski asked Stone for his $5,000.00 back, Mr. Stone said he would allow Freeman to use his license to complete the house. Notwithstanding this promise by Stone, Freeman never made any effort to secure a permit to begin construction. Mr; Piperski did not contact Stone again after that one instance because he felt Stone knew what the situation was and what had to be done. Stone, on the other hand, did not contact Piperski either, nor did Freeman, and at no time was Piperski reimbursed the $5,000.00 deposit he made under the terms of the contract. On January 9, 1984, Stone wrote to Mr. A1 Simmons, the attorney who formed the corporation known as D & S Homebuilders, Inc. In this letter Stone recalled that Simmons had formed the corporation in which Freeman was President, his wife was Secretary/Treasurer, and he, Respondent, was Vice-President. Stone also cited that there was a communications gap between Freeman and himself and as a result, asked how he could be removed as an officer of the corporation. Stone indicated that he was "going to notify the County that I am no longer going to authorize the use of my license as D & S Homes." At the bottom of the letter, he states that it constitutes official notification to Freeman and to Mr. Davis, the building official, that his license is no longer to be used under D & S Homes. By this letter, Mr. Stone recognized that as of January 9, 1984, he was still a part of D & S Homes and was aware of the use of his license by D & S under the authorization given earlier in the year. It has already been found that in November 1983, Stone and Freeman entered into an agreement for Freeman to pay Stone for the use of his license by D & S Homes. It is also noted, however, that on January 5, 1984, approximately two months later, Mr. Stone wrote to Freeman indicating his dissatisfaction with the way Freeman was managing the company and because of Freeman's failure to communicate with Stone in response to inquiry. In this letter, he makes it very clear to Freeman that if Freeman does not keep in touch, he will terminate the relationship that he has with D & S. By so doing, Stone puts to rest any question that he was still a part of D & S and agreed to Freeman's using his license for construction by that firm as late as January 5, 1984 - well after the contracts described above were entered into by Freeman. D & S had a checking account with the Bank of Florida in Chiefland on which both Respondent and Freeman were authorized to write checks. In October 1983, Mr. Freeman drafted a check to Exchange Realty, which is owned by Respondent, in the amount of $500.00 which bears the notion, "commission on burnout." This check was deposited to the account of Exchange Realty. The handwriting on the endorsement appears to be that of Penny Via as does the name of the payee. On October 24, 1983, Mr. Stone wrote a check, apparently on a counter check payable to Exchange Realty in the amount of $500.00. Again, this check is endorsed for deposit to the account of Exchange Realty and not only the endorsement but also the check itself, with the exception of the signature, appears to be drawn in the handwriting of Ms. Via. While offered to show Respondent's receipt of benefit from his association with D & S, this evidence does not do so. Respondent knew of this account, nonetheless, and agreed to be a signatory on it so that he could work on the account when Freeman was out of town. After a short period, however, he took his name off the account though he cannot remember when that was. Respondent's contention that he had little if any connection with the actual construction work accomplished by Freeman under the D & S banner is supported by the testimony of Earl Jones, a plumber, who did the plumbing work on some of the houses constructed by Freeman during the Summer of 1983. Jones was hired by Freeman who, at the time, advised him that he was a general contractor and owned the business. Freeman admitted that he was a friend of the Respondent but during the whole period of his association with D & S, Jones never dealt with Stone and he feels that his employer was Freeman, not Stone. During the period of their association, Jones had no contact at all with Respondent. All bills for services rendered were sent directly to Freeman. Andrew Sension, an electrical contractor, met Freeman when Freeman solicited bids for the drawing of house plans. Thereafter, Sension drew five house plans for Freeman through D & S and also did some electrical work. At that time, Freeman indicated that he and his wife owned D & S and throughout their relationship, Sension assumed that Freeman was licensed. He has, however, worked for Respondent but never any project where Freeman and Respondent were involved together. To his knowledge, Respondent had a good reputation in the County as a contractor. Respondent has lived in Chiefland for approximately 15 years and is licensed as a contractor in both Florida and Virginia where he operated as a general contractor for 10 or 11 years before coming to Florida. In addition, he worked as a contractor in Ft. Lauderdale for 5 or 6 years and in all his construction history, never had any disciplinary action taken against him. Stone met Freeman some time in the middle of 1983 when Freeman came to his real estate office to buy a lot to build on. Later on, Freeman came back and said his brother an attorney, had suggested he contact Stone to form a corporation to build homes. At the time, Freeman, whose real name was Michael, was using the name Dennis Freeman, actually the name of his brother. When Stone checked Freeman's reputation out with the credit bureau, he checked the name, Dennis Freeman, and found that there was no adverse comments recorded. He did not know at the time that he was checking the record of a different individual. Nonetheless, satisfied with the results of his inquiry, and willing to go into the proposition suggested by Freeman, the parties made an appointment with attorney Simmons to form a corporation. Stone contends, and Simmons concurs, that though the corporation was formed, it never became operative because while formed in the name of Simmons for incorporation purposes, the transfer of authority to the true officers, Stone, Freeman, and Freeman's wife, was never accomplished. Were this all there were to it, there would be little difficulty in accepting Stone's exculpatory rationale. The fact remains, however, that his conduct and communications with his attorney in January 1984, several months after the corporation was formed, clearly reveals that though the official transfer of names never took place, he was well aware that D & S was active, that Freeman was building homes under the D & S banner, and that Freeman was using his, Stone's license, to do so with Stone's permission. The letter of January 9, 1984, to the lawyer clearly defeats Stone's contention that he felt the authorization for Freeman to pull permits was a one time proposition. If that were the case, he would not have indicated in these later communications that he was aware of what was going on and wished it stopped as of that time. There is no doubt that Respondent never met Mrs. Reagan, the Fumeas, the Matthews, the Robinsons, Mr. Treis, or the Piperskis in the capacity of a contractor. None of the people ever indicated that they dealt with Stone. Respondent admits that his contractor's license was withdrawn by the County but contends that this action was taken at a meeting to which he was not invited and did not attend. He did pot know of the action taken, he claims, until he read it in the newspaper. There is no evidence to contradict this. He firmly believes that his problem with the County is the direct result of the fact that he failed to contribute Mr. Davis' church when asked-to do so at the time he executed the general authorization for Freeman to use his license. Whether Mr. Davis is the complainant and the cause of the disciplinary action being taken here is immaterial however, and in any case, there is no evidence to support Respondent's contention. As for Freeman, on January 30, 1984, he entered a guilty plea to one count of a third degree felony by failing to redeliver and one count of a third degree felony by forgery and committing grand theft. Thereafter, he was found guilty of the charges and placed on probation for two years.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is, therefore RECOMMENDED that the Administrative Complaint in DOAH Case No. 85-1468 be dismissed. It is further recommended that based on the violations established in DOAH Case No. 85-0690, Respondent's license as a registered general contractor be suspended for six months and that thereafter Respondent be placed on probation for a period of three years. RECOMMENDED in Tallahassee, Florida this 16th day of January, 1986. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of January, 1986. COPIES FURNISHED W. Douglas Beason, Esquire 130 N. Monroe Street Tallahassee, Florida 32301 Jeffrey J. Fitos, Esquire 1 East Silver Springs Blvd. Ocala, Florida 32670 James Linnan Executive Director Construction Industry Licensing Board P. O. Box 2, Jacksonville, Florida Fred Roche Secretary Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.57(2), Florida Statutes, on all Proposed Findings of Fact submitted by parties to this case. RULINGS ON PETITIONER'S SUBMISSION 1. Adopted in Findings of Fact 1 and 3. 2 · Adopted in Finding of Fact 1. Adopted in substance in Finding of Fact 7. Sentence 1 through 3 are irrelevant. Sentence 4 is accepted as to it relates to the letter being prepared by the building department but rejected as to this being done at Respondent's request. Adopted in Finding of Fact 2. Adopted in Finding of Fact 2. Adopted in Finding of Fact 2. Adopted in Finding of Fact 2. Adopted in Finding of Fact 2. 1O. Adopted in Finding of Fact 4. 11. Adopted in Finding of Fact 4. 12. Adopted in Finding of Fact 4. 13. Adopted in Finding of Fact 4. 14. Adopted in Finding of Fact 2. 15. Adopted in Finding of Fact 10 16. Adopted in Finding of Fact 10. Adopted in Finding of Fact 12, except for the first sentence which is irrelevant. Adopted in Finding of Fact 11. Adopted in Finding of Fact 12. Adopted in Finding of Fact 12, except for the last sentence which implied Freeman signed as affiant when in fact he signed as a witness. Adopted in Finding of Fact 12. Adopted in Finding of Fact 15. Sentence 1 rejected as contra to the evidence. Sentence 2 adopted in Finding of Fact 13. Adopted in Finding of Fact 14. Rejected as irrelevant and misleading. There is no indication in the record that Respondent knew of this contract or that any demand for reimbursement was made upon him. Adopted in Finding of Fact 17. Adopted in Finding of Fact 17 and 22, except for sentences 3 & 4, which are rejected as irrelevant. Rejected as irrelevant and inaccurate. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Adopted in Finding of Fact 19. Adopted in Finding of Fact 19. Adopted in Finding of Fact 20. Adopted in Finding of Fact 20. Adopted in Finding of Fact 24. Adopted in Finding of Fact 24. Adopted in Finding of Fact 24. Adopted in Finding of Fact 24. Adopted in Finding of Fact 24. Rejected as irrelevant. Adopted in Finding of Fact 24. Rejected as irrelevant. Adopted in Finding of Fact 24. Rejected as irrelevant. Adopted in Finding of Fact 24. Adopted in Finding of Fact 26. Adopted in Finding of Fact 26. Adopted in Finding of Fact 26. Adopted in Finding of Fact 28. Adopted in Finding of Fact 28. Adopted in Finding of Fact 29. Adopted in Finding of Fact 30. Adopted in Finding of Fact 30. Adopted in Finding of Fact 30. Adopted in Finding of Fact 30. Adopted in Finding of Fact 31. Adopted in Finding of Fact 32. Adopted in Finding of Fact 32. Adopted in Finding of Fact 35, except that November 6 in the proposal should be November 26. Adopted in Finding of Fact 35. Adopted in Finding of Fact 35. Adopted in Finding of Fact 34. Adopted in Finding of Fact 34 and 35. Adopted in Finding of Fact 36. Adopted in Finding of Fact 36. Adopted in Finding of Fact 36. Adopted in Finding of Fact 37. Adopted in Finding of Fact 38. Adopted in Finding of Fact 39. Adopted in Finding of Fact 41. Accepted but not adopted as irrelevant. Adopted in Finding of Fact 41. Adopted in Finding of Fact 43. Adopted n Finding of Fact 45 and 46, except that it was the building office that advised Piperski that Freeman did not have a permit, not Respondent. Adopted in Finding of Fact 46. Adopted in Finding of Fact 62. Adopted in Finding of Fact 62. RULINGS ON RESPONDENT'S SUBMISSION Adopted in Finding of Fact 1. Sentence 1 through 3 adopted in Finding of Fact 7. Sentence 4 rejected as contra to the weight of the evidence. Sentence 5 and 6 adopted in Finding of Fact 8. Sentences 1 and 2 adopted in Finding of Fact 9. Sentences 3 through 5 rejected as contra to the weight of the evidence. Sentences 1 and 2 adopted in Findings of Fact 26- 29. Sentence 3 rejected as not being a Finding of Fact but a Conclusion of Law. Sentence 1 rejected as contra to the evidence. Mrs. Reagan did not sign the contract. Mrs. Fumea did. Sentence 2 adopted in Finding of Fact 15. Sentence 3 adopted in Finding of Fact 12. Sentence 4 adopted in general. Sentences 1 and 2 adopted in Finding of Fact 17, 35 and 41. Sentence 3 rejected by contra to the weight of the evidence. Sentence 4 is rejected as irrelevant. Sentence 5 is ejected as contra to the weight of the evidence in that he failed to show the proper concern for the use of his licenses. Rejected as irrelevant to the issues herein. 8 and 9. Adopted in Finding of Fact 4. Adopted in Finding of Fact 62. Adopted as a general fact. Adopted in Finding of Fact 61. Adopted in Findings of Fact 52-55.
The Issue The issues in this cause are those promoted by the filing of an Administrative Complaint by the Department of Professional Regulation accusing the Respondent of various violations of Chapter 489, Florida Statutes. Should the Respondent be found guilty, this action contemplates the imposition of a penalty against Respondent's license as a commercial pool contractor in Florida.
Findings Of Fact 1. Respondent, at all times relevant to this inquiry, was a registered commercial pool contractor having been issued license number RP0041725. This is a license issued by the Florida Construction Industry Licensing Board. 2..On November 18, 1983, Respondent entered into a contract under the name Kennedy Pool and Construction Co., an entity for whom Respondent serves as a qualifying agent in the commercial pool contracting business. This contract was with one Marie Robertson; however, the contract was not for the purpose of construction of a pool. It was for construction of a 20' by 24' block garage. This structure was to be free-standing and would be located adjacent to Ms. Robertson's residence, which is also used in her business. Petitioner's exhibit number 2 is a copy of the contract and reflects the $4,800.00 contract price. Robertson has paid the full amount of the contract and the garage construction was completed in January, 1984. Respondent personally built the garage. Respondent built the garage without obtaining a building permit from the City of Jacksonville, Florida. Respondent also failed to submit plans and specifications to the City of Jacksonville, which set forth the design and placement of this garage structure. Having failed to request a permit or to submit plans and specifications, Respondent made no request of the City of Jacksonville Building Department to inspect the construction related to the garage. Finally, Respondent in his licensure with the State of Florida, and license recognition with the City of Jacksonville, was not authorized to serve as a building contractor engaging in the construction of structures such as the garage in question. The project at issue entailed the pouring of a foundation; the erection of block walls the erection of a roof truss system and the installation of a roof covering of shingles. All of these items were beyond the license recognition which respondent held with the State of Florida and the City of Jacksonville. When the City of Jacksonville discovered the existence of the garage, it made the owner aware that the structure was in violation of the City of Jacksonville Building Code related to the need for obtaining a building permit, and the fact that the garage structure violated the city's set-back requirement. This later item pertained to the fact that given the commercial utilization of the property, on the part of Ms. Robertson, the garage was too close to the city street. As a consequence, Robertson was put to the inconvenience of obtaining and paying for a building permit and gaining a variance from the set-back requirements mentioned. Had the City of Jacksonville been presented with building plans and specifications, this would have alerted the city to the fact that the placement of the garage was too close to the street. When confronted with her difficulty, Ms. Robertson contacted the Respondent to gain his assistance in obtaining a building permit. The Respondent indicated that it was her problem and said that he could not get a permit because the property was business property and not private property. The Respondent was charged by the City of Jacksonville through a notice of violation of local zoning requirements related to the failure to obtain a building permit and the fact that the Respondent was not licensed by the City of Jacksonville to construct a garage at the Robertson residence. Attempts at serving the violations were not successful in that calls to the Respondent and issuance of notice of violations through certified mail, return receipt requested, were not acknowledged by the Respondent.
