Findings Of Fact The parties stipulated to the fact that James Baskin holds registered contractor's license number BC 0011300. Raskin's registered general contractor's license was issued by the Florida Construction Industry Licensing Board. Prior to the commencement of the hearing, the Hearing Officer held that the record of the proceedings for the Cape Coral Board could be filed as a late filed exhibit in this cause in order that the Florida Construction Industry Licensing Board could review the Cape Coral Board's action pursuant to its authority under Section 468.112(2)(f), Florida Statutes. Ambassador Homes contracted with Sam and Marie Franzella for the construction of a single family residence to be constructed on the property located on Lots 41-42, Block 1224, Cape Coral Unit 19, Section 32-33, Township 44 South, Range 24 East. Stucky Well Drilling was initially contacted by an unknown agent of Ambassador Homes on January 1, 1975, and directed to drill a well, and install a deep well jet pump and tank at the location stated above. On January 20, 1975, Marion, a secretary for Ambassador Homes, called Stucky Well Drilling and directed that Stucky Well Drilling install the well and equipment as soon as possible. On January 21, 1975, a 210 foot well was drilled on the property described above and on January 23, 1975, a Mr. Green from Ambassador Homes called and requested that the tank and equipment be installed immediately. Mr. Hall, an employee of Stucky Well Drilling, installed all the equipment as ordered on January 23, 1975. On January 24, 1975, a bill in the amount of Six Fifty Dollars ($650.00) was sent to Ambassador Homes for the work performed on the property described above. Ambassador Homes was a corporation engaging in residential contracting and operating under the license of James Raskin. Ambassador Homes did not pay Stucky Well Drilling the bill for the drilling of the well and installation of the equipment on the property described in paragraph 3 above. Subsequently Stucky Well Drilling brought suit against Ambassador Homes, Inc., in the County Court of Lee County and obtained final judgment in the amount of Six Hundred Fifty Dollars ($650.00) plus costs. This judgment was entered on December 2, 1975.
Recommendation Based on the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Florida Construction Industry Licensing Board suspend the license of James Raskin as a registered general contractor until he presents satisfactory proof to the Board of his financial qualifications to engage in the contracting business. DONE and ORDERED this 27th day of May, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry Sinoff, Esquire 1010 Blacks tone Building Jacksonville, Florida 32202 James Raskin 1810 S. E. 44th Street Cape Coral, Florida 33904 Mr. J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211
Findings Of Fact In early September of 1979, John and Ruth E. Lockwood contracted with P & P Custom Pools, Inc. (P & P), for the construction of a swimming pool at their home, 231 El Dorado Drive, Debary, Florida. Respondent, Philip J. Mains, signed the contract on behalf of P & P and later obtained a building permit. He and his men began excavating on site in mid-September. The Lockwoods paid respondent $700.00 on September 6, 1979. As construction progressed, they paid him $1,706.25 on September 27, 1979; $1,000.00 on October 26, 1979; $1,047.50 on October 29, 1979; and $1,706.25 on November 20, 1979. At the appropriate times, a building inspector was summoned, who inspected the project, including the placement of reinforcing steel, ground wiring, and lights. Neither the "steel inspection" nor the "deck inspection" revealed any problem. The workmanship was excellent, as far as it went, but the Volusia County building inspector's office was never asked to perform a final inspection. As respondent promised there would be, there was water in the swimming pool by Christmas of 1979, but respondent did no further work after December, 1979. He never installed the pump, filter, diving board, or hand bars called for in the Lockwoods' contract. Earlier in 1979, Patrick T. Ryan, the other principal in P & P, left town and abandoned the business which was then $37,000 in debt. In November of 1979, respondent turned the company's books over to an accountant. In January of 1980 the business' financial problems became critical and, at the accountant's suggestion, respondent so advised the eight homeowners for whom he was building swimming pools, including, in January or February, Mr. Lockwood, who reacted angrily. Respondent testified that Mr. Lockwood "cussed him out." Thereafter respondent avoided the Lockwoods until April of 1980 when they found him working on another pool. There was enough money owed on the eight contracts as a group to finish all the pools, according to respondent's uncontroverted testimony, at the time the Internal Revenue Service levied on respondent's bank account and seized his tools and equipment. Even then respondent offered to finish the Lockwoods' pool if they would buy the materials. Respondent's wife asked Mrs. Lockwood to write a check to a supplier for a pump and filter so that respondent could install them and get water in the pool circulating. Instead, during the last week of April, 1980, the Lockwoods contracted with somebody else to finish the job and paid him $1,200. Respondent subcontracted with a Jacksonville cement company to pour concrete for the pool. After the concrete had been poured, the Lockwoods got a registered letter from the subcontractor threatening to place a lien on their property if he were not paid. According to Mr. Lockwood, the problem was that some check [supposedly drawn by respondent in favor of the subcontractor] had been delayed in the mail. In any event, there was no indication in the evidence that the Lockwoods heard anything further from the subcontractor.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspend respondent's registration for thirty (30) days. DONE AND ENTERED this 29th day of April, 1981, in Tallahassee, Florida. ROBERT T. BENTON, II 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 30th day of April, 1981. COPIES FURNISHED: Charles F. Tunnicliff, Esquire 130 North Monroe Street Tallahassee, Florida 32301 Philip J. Mains c/o Sue Mains Route 2, Box 799A DeLand, Florida 32720 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, vs. CASE NO. 80-2231 PHILIP J. MAINS, RP 0024663, Respondent. /
Findings Of Fact On February 27, 1974, Pelle J. Lindquist contracted with Patrick G. Yeager to build a house on Concord Road in Ormond Beach, Florida. This contract was admitted in evidence as petitioner's Exhibit No. 1. The contract called for work to begin on March 1, 1974, and to be completed within 90 days. Work did not begin on March 1, 1974, but did begin in the latter half of March, 1974. Frequent rain in March, 1974, caused the roof to warp, so that it had to be replaced. After considerable delay in undertaking the repair, actually replacing the roof took only about a week. Replacing the roof added significantly to respondent's costs in performing under the contract. Eleven months after construction began, Mr. Yeager moved in. Because the kitchen and both bathrooms lacked wallpaper, and because the gravel yard was partly unfinished, respondent Lindquist paid Mr. Yeager $300.00, in exchange for which Mr. Yeager released Mr. Lindquist from all liability in connection with the house. The release was admitted in evidence as respondent's Exhibit No. 1. In the course of construction, Haven Vaughn, a sub- contracting carpenter, filed a notice of intent to lien on behalf of himself and his partner, Cal Fisher. As long as Mr. Lindquist was allowed draws on the construction loan, Messrs. Vaughn and Fisher were paid regularly. For reasons which were not developed in the evidence, the lender withheld part of the loan proceeds from respondent. When the draws stopped, the carpenters were not paid, and they stopped work on the Yeager house. The lender ultimately paid the carpenters in full. At the time Mr. Yeager contracted with Mr. Lindquist for the house, Mr. Lindquist entered into a separate agreement with Mr. Cameron, a real estate broker who introduced Mr. Lindquist to Mr. Yeager. Under the latter agreement, Mr. Lindquist was to pay Cameron Realty Company a brokerage fee upon "obtaining last draw from lending firm." The brokerage fee has not been paid and is currently the subject of civil litigation. On February 15, 1974, Mr. and Mrs. Horace N. Smith, Jr., contracted with respondent for the construction of a house on another lot on Concord Road in Ormond Beach, Florida. This contract was admitted in evidence as petitioner's Exhibit No. 2. The contract called for completion of the Smith house on or about June 15, 1974. After the contract was signed, the Smiths returned to New Jersey, entrusting oversight of the project to Mr. Cameron, a real estate broker who introduced Mr. Lindquist to the Smiths. As construction progressed, Mr. Cameron kept Mrs. Smith advised, and she mailed installment payments on the strength of Mr. Cameron's representations. In this fashion, Mr. Lindquist was paid 75 percent of the total contract price of $27,600.00. For reasons which were not developed in the evidence, the Smiths stopped payments under the contract, presumably at Mr. Cameron's suggestion. When the payments stopped, work on the house also stopped, and, during the ensuing hiatus in construction, vandals broke a glass door, scrawled obscenities on the walls, scraped the walls, damaged the outside doors, and ruined the wooden trim. Work had fallen far behind schedule when, in April of 1975, a lawyer retained by Mr. and Mrs. Smith wrote Mr. Lindquist to the effect that the Smiths would take over the project unless it was finished within a week. When the week had passed, the Smiths began dealing directly with the sub-contractors, the house was eventually completed at a total cost to the Smiths of $29,100.00, or $1,500.00 more than the Smiths had agreed to pay Mr. Lindquist for the job. As completed, the house lacked an electric garage door opener and a sprinkler system which Mrs. Smith guessed would cost $1,000.00, but no competent evidence as to the cost or value of either the door opener or the sprinkler system was adduced. Vandalism added significantly to the cost of the Smith house. Mr. Lindquist replaced a glass door broken by vandals. On account of the vandalism, the Smiths paid the carpenters an additional $300.00 for their labor. The front doors, the trim, and all bays had to be replaced; the cost of replacement materials was not established. At the time Mr. and Mrs. Smith contracted with Mr. Lindquist for the house, Mr. Lindquist entered into a separate agreement with Mr. Cameron. Under the latter agreement, Mr. Lindquist was to pay Cameron Realty Company a brokerage fee. The brokerage fee has not been paid and is currently the subject of civil litigation. Certified general contractors' licenses are renewable annually in June, pursuant to Section 468.108, Florida Statutes (1975). Mr. Lindquist had such a license for 1974-75. In June of 1975, he desired to renew his license, but in a fashion which would authorize him to contract on behalf of a corporation, rather than as an individual. He telephoned the Jacksonville office of the Florida Construction Industry Licensing Board and explained his situation. That office mailed him forms which he filled out and mailed back in June of 1975. In March of 1976, some nine months later, the completed forms were mailed back to respondent, but no license was issued. On March 22, 1976, Mr. Clyde Pirtle, an investigator employed in the Jacksonville office of the Florida construction Industry Licensing Board, filled out and mailed to respondent a Notice of Violation," notifying respondent that he had failed to renew his certificate during June of 1975. The same "Notice of Violation" advised respondent of his putative failure to notify the Florida Construction Industry Licensing Board of his new address, although his application papers for the 1975-76 license had been returned to the new address. On the Monday after the Friday on which respondent received the "Notice of Violation," he telephoned Mr. Pirtle's office and was told that Mr. Pirtle would contact him. On or about June 3, 1976, Mr. Pirtle did contact respondent and meet with him. At this meeting, respondent showed Mr. Pirtle the papers he had mailed to the Board in June of 1975, and which were returned to him unprocessed in March of 1976. Mr. Pirtle told respondent that the papers had been returned because the application forms were for a registered, and not for a certified, contractor's license, and furnished respondent another set of forms. Respondent filled out the new set of forms and mailed them to the Board in June of 1976. A month and a half before the hearing in this cause, respondent received 1976-1977 certified general contractor's license No. CGC007702, which is currently in force. No contractor's license for 1975-76 was ever issued to respondent. On May 3, 1976, respondent applied for and was issued a building permit to erect a new residence at 1623 Anniston Avenue in the City of Holly Hill. At that time, respondent had no current contractor's license and presented to the authorities a license which had expired.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED that disciplinary action against Respondent, if any, be limited to a reprimand. DONE and ENTERED this 6th day of April, 1977, in Tallahassee, Florida. ROBERT T. BENTON Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Mr. Barry Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 Mr. Thomas L. West, Esquire Post Office Box 1857 1030 Volusia Avenue Daytona Beach, Florida 32015 J. K. Linnan, Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211
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 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.
Findings Of Fact At all times pertinent to these proceedings, Hamilton held registered residential contractors license number RR0015037. Hamilton agreed to construct a house in Clearmont, Florida, with a completion date no later than May 1, 1977, for Robert J. and Margaret M. Phlepsen. The construction price was $75,000.00. After construction of the house it was discovered that there existed two violations of the Southern Building Code. First, the "step-down" from the kitchen to the garage was an eleven inch riser contrary to the code requirement that the height of a riser shall not exceed seven and three quarters inches. The second violation occurred through the use of 2 X 8 joists where the code would require 2 X 10 joists. The extra high riser between the kitchen and the garage was apparently caused by an oversight. Hamilton merely failed to install an intermediate step at that location. The second violation occurred because the owner and Hamilton agreed to use the smaller joists in order to save money on the contract price. In neither case is there sufficient evidence to establish that Hamilton's violations were willful or deliberate as alleged in the Administrative Complaint. On June 6, 1978, the Lake County Board of Examiners suspended Hamilton's Lake County Certificate of Competency because of violations of building code requirements in the construction of Phlepsen's house.
The Issue Did Respondent commit the violations alleged in the Administrative Complaint dated April 11, 2000, and if so, what discipline is appropriate?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida charged with the responsibility of regulating the practice of contracting pursuant to Section 20.165, Florida Statutes, and Chapters 455 and 489, Florida Statutes. Respondent is, and has been at all times material hereto, a certified residential contractor in the State of Florida, having been issued license number CR CO13253 by the Florida Construction Industry Licensing Board. At all times material hereto, Respondent was licensed with the Construction Industry Licensing Board as an individual. On or about November 20, 1993, Respondent entered into a written contractual agreement (contract) with Kevin Watkins (Watkins) to construct a single family residence at 126 Meadow Lark Boulevard, Lot 65, Indian Lake Estates, Florida. The contract price was $333,944.00. Between December 7, 1993, and February 1, 1996, Watkins and Respondent executed 102 addenda to the contract which increased the contract price by approximately $241,874.43, for a total amount of approximately $575.818.43. On or about December 9, 1993, Respondent obtained permit number 93-120l850 from the Polk County Building Department and commenced work on the project. The contract provided that the "project shall be substantially completed on or about 195 days from the date all building permits are issued." However, due to the 100-plus addenda to the contract, it was estimated that an additional 190 days would be needed to complete the project. Additionally, construction ceased on the home for approximately 60 days so that Watkins could explore the possibility of a construction loan. However, due to the extent of completion, the lending institutions decided not to make any construction loans. On or about May 27, 1996, Watkins moved to Florida with the expectations that his home would be completed within a short period of time. (Watkins' recollection was that the home was to be completed in a couple of weeks. Respondent's recollection was that the home was to be completed in a couple of months.) In any event, Respondent did not complete the Watkins home within a couple of weeks or a couple of months. After Watkins moved to Florida, Respondent paid for Watkins to live in a Best Western motel for a few weeks. Subsequently, Respondent moved Watkins into a rental home for which Respondent paid the rent through September 1996. Beginning October 1996 through July 1999, Watkins paid $600.00 per month for a total of $20,400.00 as rent on the rental home. In early 1998, Respondent and Watkins went through the home, identified those items which had not been completed and Respondent made a handwritten list of those items. Respondent failed to complete the items identified on the list. In fact, shortly thereafter, Respondent ceased working on the project and was unresponsive to attempts to contact him. At the time Respondent ceased working on Watkins' home, the home was approximately 75 percent complete. While this estimation of completion may not be totally accurate, it is the best that could be derived based on the evidence presented, including Respondent's testimony to which I gave some credence. Watkins paid Respondent $561,617.91, which represents approximately 97.534 percent of the total contract price plus addenda to the contract. Seventy-five percent of the contract price plus addenda to the contract equals $431,863.82 for an overpayment of $129,754.09. To date, Respondent has not returned any of the money he received from Watkins above the amount completed under the contract. From early 1998, until August 1998, when Watkins had Respondent removed as general contractor on the building permit, Respondent failed to perform any work on the home for a period in excess of 90 days. Respondent contracted with Jack Eggleston to install cabinets in Watkins home. Eggleston performed under the contract but Respondent failed to pay Eggleston in full, requiring Watkins to pay Eggleston $1,200.00. After Watkins' home was partially complete, Respondent advised Watkins that he had the home insured when in fact he did not have the home covered with insurance. While Respondent was building Watkins' home, Respondent and Watkins entered into a joint venture called Contractors of Central Florida to build modular homes sometime after January 1, 1995. Respondent contends that some of the checks Watkins claims as payment under the contract for his home, were in fact reimbursement to Respondent for funds he had advanced for the joint venture. There is insufficient evidence to establish facts to show that any of the checks Watkins claims as payment under the contract for his home were in fact reimbursement for funds advanced by Respondent for the joint venture. Up until the time of the final hearing, the Department had incurred costs for the investigation and prosecution of this matter, excluding costs associated with an attorney's time, in the amount of $1,451.28.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and after careful review of the guidelines set forth in Rule 61G4-17.001(8) and (11), Florida Administrative Code, and the circumstances for purpose of mitigation or aggravation of penalty set forth in Rule 61G4-17.002, Florida Administrative Code, it is recommended that the Department: Enter a final order finding Respondent guilty of violating Section 489.129(1)(h)2., Florida Statutes, and imposing a penalty therefor an administrative fine in the amount of $1,000.00; Enter a final order finding Respondent guilty of violating Section 489.129(1)(k), Florida Statutes, and imposing a penalty therefor an administrative fine in the amount of $1000.00; Assessing costs of investigation and prosecution, excluding costs associated with an attorney's time, in the amount of $1,451.28, plus any such further costs which have or may accrue through the taking of final agency action and; Requiring Respondent to pay restitution to Kevin Watkins in the amount of $129,754.09 which represents the amounts accepted by Respondent for work not performed. DONE AND ENTERED this 23rd of October, 2000, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 2000. COPIES FURNISHED: Robert A. Crabill, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32388-2202 Ronald J. Powell Post Office Box 7043 Indian Lake Estates, Florida 33855 Rodney Hurst, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
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.
