The Issue The issue in this proceeding is whether Willie Daniels violated sections 489.129(1)(d) and (e) F.S., as alleged in the administrative complaint, by willful violation of a local building code and aiding and abetting an unlicensed person to evade any provision of Chapter 489. At the hearing the material facts were uncontroverted.
Findings Of Fact Willie F. Daniels is now, and was at all times relevant, licensed as a roofing contractor by the Florida Construction Industry Licensing Board. He holds license #RC 0027954 and does business as "Daniels Roofing', a sole proprietorship. He has been doing roofing in the Orlando, Florida area since 1954. Willie Daniels first met Thomas Dahlman when Dahlman came to his house trying to sell windows. Dahlman told him that he did all kinds of work, including windows, roofing and painting. Later Dahlman called him and said he had a roofing job that he wanted Daniels to do and that he would take him out to the house. The house belonged to Chris Correa and was located at 4421 Sebastian Way, in Orlando. Dahlman bought the materials for the job and Willie Daniels provided a day and a half labor on the roof. He was paid approximately $600.00 by Dahlman. Chris Correa was initially contacted by an agent for Thomas Dahlman who was trying to sell solar heating devices. When she told him she really needed a new roof, he said his boss could arrange that. Dahlman arranged for her loan to pay for the roof and arranged for the labor to be done by Willie Daniels. Chris Correa paid Thomas Dahlman $3,000 for the roof. About three days after the roof was completed, on February 18, 1986, she signed a contract for the roof work with Dahlman Enterprises, Inc. The contract is signed Thomas Dahlman and by Ms. Correa. Willie Daniels was not a party to the contract. The City of Orlando has adopted the Standard Building Code, including the following provision relating to permit applications: Section 105 - Application for Permit - When Required Any owner, authorized agent, or contractor who desires to construct, enlarge, alter, repair, move, demolish, or change the occupancy of a building or structure, ... or to cause any such work to be done, shall first make application to the Building Official and obtain the required permit therefor. * * * No permit was applied for or obtained for the roofing job on Chris Correa's house. Willie Daniels assumed Thomas Dahlman was a licensed contractor because Dahlman told him he was in the business of doing roofing, painting, installing windows and similar work. He did not ask Dahlman if he was licensed. Dalhman was, in fact, not a licensed contractor.
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 At issue is whether Respondent committed the offenses set forth in the Administrative Complaints and, if so, what penalty should be imposed.
Findings Of Fact The parties Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Department), is a state agency charged with the duty and responsibility for regulating the practice of contracting pursuant to Section 20.165, Florida Statues, and Chapters 455 and 489, Florida Statutes. Respondent, Richard M. Golfman, was, at all times material hereto, licensed by the Department as a certified general contractor, having been issued license number CG C032860, and authorized to engage in the practice of general contracting as an individual.1 The Feinstein project (DOAH Case No. 00-0599) On or about October 30, 1998, Respondent entered into a written contract with Norman and Sheila Feinstein to furnish the materials and perform the labor necessary to enclose and remodel the screened patio, and to build a rock garden, at their home located at 5468 Northwest 20th Avenue, Boca Raton, Florida, for the sum of $5,000. At the time, the Feinsteins paid Respondent $1,500 as the initial payment (deposit) under the terms of the contract. The contract Respondent presented and the Feinsteins executed on October 30, 1998, did not include Respondent's license number, nor did it contain a statement concerning consumers' rights under the Construction Industries Recovery Fund. Following execution of the contract, Respondent made repeated promises to construct the rock garden; however, it was not until November 10, 1998, that Respondent appeared on-site and constructed the rock garden, albeit not to the Feinsteins' satisfaction. Subsequently, Respondent had some high-hat electrical fixture cans and a bundle of furring strips delivered to the home for the patio project but, thereafter, despite repeated requests, refused to perform any work on the project or refund any money to the Feinsteins. The value of the labor and materials Respondent invested in the rock garden, as well as the cost of the building materials (the high-hat fixtures and furring strips) delivered to the job-site, was $250, a sum considerably less than the $1,500 the Feinsteins had entrusted to Respondent under the terms of their agreement. The Burres/Berger project (DOAH Case No. 00-0600) On or about November 23, 1998, Respondent submitted a written proposal to Tanya Burres to furnish the materials and perform the labor necessary to replace the existing roof on her home located at 7270 Montrico Drive, Boca Raton, Florida, for the sum of $22,125. The proposal was a one-page preprinted form. In the upper left there appeared, printed immediately following Respondent's handwritten name, the following: THE GOLFMAN GROUP, INC. P.O. Box 811926 Boca Raton, Florida 33431 The proposal did not include Respondent's license number, nor did it contain a statement concerning consumers' rights under the Construction Industries Recovery Fund. At the time the proposal was submitted, Tanya Burres was under contract to sell the home to Drs. Glenn Berger and Michelle Fiorillo, husband and wife (the Bergers), and Ms. Burres had agreed to split with the Bergers the cost of a new roof for the home. At the time, Ms. Burres had suggested the Respondent as a contractor to perform the work (because he had previously done satisfactory work for Ms. Burres); however, it was understood that the employment of any contractor was subject to the Bergers' approval. That the Bergers' agreement was required before any such employment would be accepted was clearly conveyed to Respondent. On November 23, 1998, Tanya Burres signed the proposal and gave Respondent a check payable to his order in the sum of $1,106.25, representing her half of the ten percent deposit called for by the proposal. The Bergers, however, declined to accept the proposal, and refused Respondent's request for the balance of the deposit. Rather, the Bergers, having received adverse information from the Department regarding Respondent's record, preferred to employ a different contractor, and Ms. Burres accorded the Bergers a monetary credit at closing (on the purchase of the home) for one-half the cost to re-roof the home. When the Bergers informed Ms. Burres (shortly after she signed the proposal on November 23, 1998) that they would not agree to use Respondent, Ms. Burres attempted to stop payment on her check; however, the check had already been cashed. Thereafter, Ms. Burres attempted on numerous occasions to contact Respondent by telephone and by his pager, but Respondent failed to return any of her calls or messages. To date, Respondent has failed to account for or return Ms. Burres' deposit of $1,106.25. The costs of investigation and prosecution As of February 25, 2000, the Department's costs of investigation and prosecution, excluding costs associated with any attorney's time, totaled $234.85 for DOAH Case No. 00-0599 (the Feinstein project) and $195.65 for DOAH Case No. 00-0600 (the Burres/Berger project.) Previous disciplinary action At hearing, the Department offered proof that, on two prior occasions, Respondent had been subjected to disciplinary action by the Construction Industry Licensing Board (the Board). (Petitioner's Exhibit 2.) The first occasion is reflected in the terms of a Final Order of the Board, dated August 4, 1987, which found Respondent guilty of the violations alleged in the Administrative Complaint (which were not revealed at hearing beyond what may be inferred from the terms of the Final Order), and resolved that Respondent suffer the following penalty: Respondent's licensure is hereby suspended for ten (10) years. Provided, Respondent may obtain termination of said suspension at anytime, without further action by the Board, upon providing the Board's Executive Director with a certified bank check in an amount sufficient to cover and pay a fine of five hundred dollars ($500), and the bad check alleged in the Administrative Complaint, and all service charges in connection therewith, and all other fees accruing as of the date Respondent seeks said termination of supervision. The second occasion Respondent was subjected to disciplinary action is reflected in the terms of a Final Order of the Board, dated July 18, 1997, which approved a stipulated settlement of certain complaints then pending before the Board. That Final Order approved the dismissal of a number of counts contained in five Administrative Complaints then pending before the Board and, as to the remaining counts, agreed (without Respondent admitting or denying the allegations of fact contained in the Administrative Complaints) to the following penalty: 3. FINE AND COSTS: Respondent shall pay a fine of Nine Hundred dollars ($900.00) and costs of Eight Hundred fifty One dollars ($851) to the Board within thirty (30) days of the filing of the Final Order. Said payment shall be in the form of a cashier's or certified check and shall be made payable to the "Construction Industry Licensing Board." To assure payment of the fine and costs, it is further ordered that all of Respondent's licensure to practice contracting shall be suspended with the imposition of the suspension being stayed for thirty (30) days. If the ordered fine and costs are paid in compliance with the terms set forth above, the suspension imposed shall not take effect. However, should payment not be timely made, the stay shall be lifted and Respondent's license shall be immediately suspended. Upon payment of the fine and costs in full, the suspension imposed shall be lifted. Respondent apparently satisfied the fines and costs imposed by the foregoing orders. (Petitioner's Exhibit 2.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered adopting the foregoing findings of fact and conclusions of law, and which, as a penalty for the violations found, imposes an administrative fine in the total sum of $13,500.00, revokes Respondent's licensure, orders that Respondent pay restitution to Norman and Sheila Feinstein in the sum of $1,250.00 and to Tanya Burres in the sum of $1,106.25, and assesses costs of investigation and prosecution (through February 25, 2000) in the total sum of $430.50 against Respondent. DONE AND ENTERED this 22nd day of June, 2000, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 2000.
Findings Of Fact Notice in this case was given as required on May 2, 1977. Paul Slivyak holds registered residential contractor's license RR 0000896 issued by the Florida Construction Industry Licensing Board. Slivyak is the qualifying licensee for Allcraft Construction Company, Inc., a Florida corporation solely owned by Paul Slivyak. Gussie Hailey identified a contract between Allcraft Construction Company, Inc., to her husband, Willie Hailey, for repairs to the interior of their residence caused by fire. See Exhibit 1. She also identified a cancelled check payable to Allcraft Construction Company signed by her in the amount of $1,700 as the initial payment to Allcraft Construction Company, Inc., under the terms of the contract. The only work performed by Allcraft Construction Company, Inc., on the Hailey residence pursuant to the contract was the removal of a portion of the burned interior of the Hailey hone. Gussie Hailey identified a photograph of the material removed from the hone as it was left in her back yard by the workmen. The total work performed by Allcraft Construction Company, Inc., on the contract was performed by two young men who worked one half day. The photograph and check identified by Mrs. Hailey were received as composite Exhibit 2. After the failure of Allcraft Construction Company, Inc. to complete the work called for under the contract, the Haileys had to additionally pay approximately $4,000 to complete the job in addition to the $1,700 paid to Allcraft Construction Company, Inc. Marjorie Kneski, the wife of Mr. Joseph Kneski, identified a contract between Allcraft Construction Company, Inc., and she and her husband for the construction of an addition to their home. See Exhibit 3. She also identified a cancelled check payable to Allcraft Construction Company in the amount of $700, initial payment to Allcraft Construction Company pursuant to the contract for the construction work to be performed. After waiting two or three weeks for Allcraft Construction Company to begin work, the Kneskis became concerned and contacted the Better Business Bureau. The Better Business Bureau contacted the Florida Construction Industry Licensing Board investigator in the area. The Better Business Bureau also informed Mr. Kneski that the business reputation of Allcraft Construction Company, Inc. , was of such a nature that care should be exercised in dealing with the company. Mr. Kneski contacted Allcraft Construction Company, Inc., and advised them that he wanted his money back in that they had not started work under the contract. The Kneskis never received any of their money back from Allcraft Construction Company. The investigator for the Florida Construction Industry Licensing Board contacted Slivyak regarding the Kneski's complaint. Slivyak told the investigator that he had used the money received from the Kneskis to pay a portion of his income taxes and no longer had the money. Kneski also identified a letter received by him from Jack A. Nants, Attorney at Law, representing Allcraft Construction Company, Inc. This letter (Exhibit 5) recognizes and ratifies the contract entered into in behalf of Allcraft Construction Company, Inc., by Doug Fioto, but indicates the intention of Allcraft Construction Company, Inc. , to retain the initial $700 received from the Kneskis as liquidated damage if Allcraft Construction Company, Inc., was not allowed to perform under the contract. The contract does not contain a liquidated damage provision.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Florida Construction Industry Licensing Board revoke the registered residential contractor's license of Paul Slivyak, No. RR 0000896. DONE and ORDERED this 19th day of July, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Barry Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 Mr. Paul Slivyak 502 South Lake Formosa Drive Orlando, Florida 32803 Mr. J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211
The Issue Whether Respondent abandoned a construction job, and whether Respondent failed to include a statement of consumer's rights in a contract; if so, whether (and what) discipline should be imposed against Respondent's general contractor's license.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: At all times material to the instant case, Respondent was a Florida-licensed general contractor, holding license number CGC 1509917. At all times material to the instant case, IGK held a certificate of authority authorizing it to engage in contracting in Florida through a qualifying agent. Respondent was the licensed primary qualifying agent for IGK. On or about December 20, 2007, Respondent entered into a contract to renovate Kevin Barrington's residence, located at 1315 Lenox Avenue, Miami Beach, Florida. The written contract did not contain a statement explaining a consumer's rights under the Florida Homeowners Construction Recovery Fund, as then required by section 489.1425. At hearing, Respondent produced a copy of a statement that explained a consumer's rights under the Florida Homeowners Construction Recovery Fund, and testified that he had attached this statement to the written contract. The statement produced by Respondent at hearing was dated December 24, 2011, four days after the contract was executed, and signed only by Respondent. Barrington testified that he never received the statement. The undersigned finds Barrington's testimony credible, and finds that the statement was not contained in the written contract as required by statute. Respondent has never been disciplined for a violation of section 489.1425. The initial contract price for the residential renovation totaled approximately $114,320.00. Several change orders increased the final contract price to approximately $148,603.25. On December 20, 2007, Barrington paid Respondent an initial payment of $46,968.00. Respondent began work on the renovation project in January, 2008. Barrington rented an apartment while the home was under construction. Between December, 2007, and June, 2008, Barrington made several payments to Respondent. By June, 2008, Respondent had received approximately $155,505.81, which was more than the original contract price, and more than the amount agreed to with the additional change orders. By August, 2008, Respondent was struggling financially. IGK experienced a significant decline in business and was forced to lay off employees. On August 23, 2008, Barrington sent Respondent an e-mail, stating, in part: I wanted to summarize our meeting yesterday. I appreciated your honesty, and I believe we came to a resolution that satisfies both our objectives; remodel 1315 Lenox Avenue with high quality standards in a timely manner. Due to unforeseen market conditions, we are not able to continue work within the confines of the existing contract dated 12/20/2007 between IGK and Kenneth Barrington. Therefore, we agreed to the following course of action. . . . If the stated objectives are completed on August 29th to Kenneth Barrington's satisfaction, we decided to terminate the existing contract and have my legal team draft a new contract between IGK and Ken Barrington that outlines the remaining scope of services and payment plan. The payment plan will be arranged as a loan between IGK and Ken Barrington where Ken Barrington will act as Lender and IGK as Borrower, IGK will be responsible to perform the duties outlined in the scope of services and payback monies at a specified date. Loan payments distributed to IGK are intended solely for the purpose of paying for the labor and materials used at 1315 Lenox Ave. On September 17, 2008, Respondent emailed Barrington, stating, in pertinent part: As discussed many times, I am trying to do the right thing and complete your project. However as stated before we are not in complete projects (sic) that were underbid last year. You are well aware that we came in below everyone else. At the time business was good and we could afford to work on a very low mark up. I tried...however and unfortunately the business environment has change (sic) and we can not (sic) do it any longer!!! . . . As it stands, for us to complete the project as mentioned above, we will have to receive a payment in the amount of $20,000.00. You may of course decide to hire to have some one (sic) else finish the project, by (sic) I believe your cost will be in excess of $40-$50k. By September, 2008, approximately 60 percent of the renovation project had been completed. On September 23, 2008, Respondent emailed Barrington stating, in part: Good morning Ken, We are still awaiting your decision in regards to which way your [sic] ant [sic] to go with your project. I do understand and per your advise [sic], that you are trying to hire other contractors to finish your project. However, if you decide to take/hire another contractor, you must apply for a change of contractors [sic]to, either [sic] another contractor or to yourself as a owner/contractor. No one, including yourself can do work, under our permits and/or call for inspections!!! Please refrain from trying to hire my employees to do unlicensed side jobs, they will not, and if they do they lose their jobs and/or be liable for prosecution by the state/county for working without a license and permit. Respondent, having indicated to Barrington that he needed more money to complete the project, and expressing a willingness to complete the renovation project, was clearly awaiting Barrington's decision as to the renegotiation of the contract. Barrington began to interview other contractors in October, 2008. On October 10, 2008, Barrington sent Respondent Change of Contractor forms to sign and have notarized. On October 14, 2008, Respondent signed the forms and had them notarized. Also on October 14, 2008, Barrington sent Respondent a letter, stating, in pertinent part: I, Ken Barrington, property owner of 1315 Lenox Ave [sic], Miami Beach, FL 33139, am notifying you that your services are hereby terminated from our project/permit #s: B08014536, B0801910, B0804552, BE080944, BE082572, BMS0801808. You are being terminated because: You have acknowledged that you are no longer capable of completing the project according to our agreed upon contract. You are no longer authorized to enter my property. On or about November 11, 2008, Barrington entered into a contract with a new contractor, Strategic Engineering, to complete the renovation project. The renovation project was complete by July, 2009, when Barrington was able to move into his home. Respondent and Barrington began to communicate again around this same time. Respondent informed Barrington that Respondent could return to work on the home, but that IGK was filing for bankruptcy. Respondent suggested that a Mutual Release be executed. On September 23, 2009, Barrington and IGK entered into a Mutual Release, intended to effect the elimination of any obligations by either party. Respondent never expressed any intention to abandon the project; rather, Barrington terminated Respondent shortly after Respondent expressed a willingness to complete the project despite his financial difficulties. During the time when Respondent was awaiting Barrington's decision as to the offer to renegotiate the contract price, Barrington elected to terminate Respondent, and did so. Barrington also forbade Respondent from entering the property. Thus, Respondent's separation from the project was caused by Barrington's actions, not by his own volition.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board issue a Final Order: (1) dismissing Counts Two and Three of the Administrative Complaint; (2) finding Respondent guilty of violating section 489.129(1)(i), by failing to comply with section 489.1425, Florida Statutes, as alleged in Count I of the Administrative Complaint; (3) fining him $250.00 for having committed this violation; and (4) ordering him to reimburse the Department for investigative and prosecutorial costs related to this violation. DONE AND ENTERED this 10th day of November, 2011, in Tallahassee, Leon County, Florida. S JESSICA ENCISO VARN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 2011.
Findings Of Fact The Respondent, Marlene E. Lutman, is a vice president of American Custom Builders, Inc. and was a vice president in 1977. Respondent holds licenses Number CR C012570 end Number CR CA12570 issued by the Petitioner Board. On September 11, 1978, Respondent submitted a certification change of status application to the Florida Construction Industry Licensing Board. This application, completed by Respondent under oath on September 7, 1978, was filed for the purpose of changing the contractor's licenses held by Respondent to add the name of American Custom Builders, Inc. to said licenses. On July 6, 1979, an Administrative Complaint was filed against Respondent, doing business as American Custom Builders, Inc., seeking to permanently revoke her licenses and her right to practice under said licenses and to impose an administrative fine in the amount of $500.00. Respondent Lutman requested an administrative hearing, which was scheduled for September 6, 1979, continued on Motion of Respondent, and held November 29, 1979. On the application completed by Respondent, Question 12(b) asked: Are there now any unpaid past-due bills or claims for labor, materials, or services, as a result of the construction operations of any person named in (i) below or any organization in which such person was a member of the personnel? Question 12(c) of the application asked: Are there now any liens, suits, or judgments of record or pending as a result of the construction operations of any person named in "(i) below" or any organization in which any such person was a member of the personnel? Respondent, as a vice president of American Custom Builders, Inc., was designated in "(i) below." She answered "no" on the application to both of the above stated questions. Respondent completed the application while she was in Florida. Prior to completing the application, Respondent spoke by telephone with John D. Cannell, an attorney in Ohio, in reference to Questions 12(b) and 12(c), supra. Cannell told Respondent that there were no unpaid bills outstanding. He said that there had been liens filed involving American Custom Builders, Inc., but that these liens had been cancelled. Cannell based his statements to Respondent upon oral assurances from personnel at the bank involved in financing the construction project associated with the liens that all liens had been paid. It was later learned that on September 7, 1978, the date Cannell told Respondent the liens had been cancelled, the liens had not been cancelled and were of record in the Recorder's Office of Geauga County, Ohio. Liens had been filed on January 6, 1978, January 23, 1978, and January 3l, 1978, by various subcontractors involved in the construction of a house owned by Winford and Sally Ferrentina. The liens were based on claims against American Custom Builders, Inc. as general contractor and the Ferrentinas as owners for unpaid labor and materials and were not satisfied of record until September 20, 1978, on which date the January 6, 1978 lien was satisfied, and March 22, 1979, on which date the other two (2) liens were satisfied. The Hearing Officer finds that Respondent Lutman did not intend to make a material false statement but negligently relied on oral representations that there were no past-due bills and no liens of record pending as a result of her construction operations. Both parties submitted proposed findings of fact, memoranda of law and proposed recommended orders, and the Petitioner Board submitted a reply memorandum. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this order they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based upon the foregoing Findings and Conclusions of Law, the Hearing Officer recommends that the Respondent, Marlene Lutman, be reprimanded. DONE and ORDERED this 1st day of February, 1980, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Jeffery B. Morris, Esquire 2400 Independent Square One Independent Drive Jacksonville, Florida 32202 Jeffrey R. Garvin, Esquire 2532 East First Street Post Office Box 2040 Fort Myers, Florida 33902 DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. DOAH CASE NO. 79-1546 Marlene Lutman, CR C012570, CR CA 12570 Respondent, /
The Issue The issues presented in this case concern certain allegations made by the Petitioner against the Respondent through an Administrative Complaint. In particular, it is alleged that on or about April 23, 1980, the Respondent's contractor's license issued by the Petitioner was suspended and subsequent to that time, the Respondent continued to perform contracting services through a company, David H. Hamilton, Inc., a corporation which was not properly qualified by the Petitioner to provide contracting services. It is further alleged by the Petitioner that the Respondent obtained building permits Nos. S2740-80B 1/ and 3214-80B from the Osceola County Building Department with the use of another contractor's license, namely: Louie S. Winchester, license #RR003839. For the reason of these facts, the Petitioner alleges that the Respondent has violated Subsection 489.127(1)(e), Florida Statutes, in that he attempted to use a suspended registration. It is further alleged, based upon the facts as reported in this Issues statement, that the Respondent has violated Subsection 489.129(1)(g), Florida Statutes, by acting in a capacity as a contractor under a certificate of registration not in his name. Finally, it is alleged, based upon the facts as reported hereinabove, that the Respondent has violated Subsection 489.129(1)(j), Florida Statutes, by failing to comply with Subsection 489.119(2), Florida Statutes, by not properly qualifying a corporation under which he performed contracting services.
Findings Of Fact The case presented concerns license disciplinary action by the Petitioner, State of Florida, Department of Professional Regulation, Florida Construction Industry Licensing Board, against the Respondent, David H. Hamilton, who holds a residential contractor's license issued by the Petitioner, #RR0014037. The prosecution of this action is through the offices of the Department of Professional Regulation and the outcome of the matter could lead to the revocation, suspension or other disciplinary action against the Respondent, in keeping with the provisions of Chapter 489, Florida Statutes. This case was presented before the Division of Administrative Hearings following a decision on the part of the Respondent to request a formal hearing pursuant to Subsection 120.57(1), Florida Statutes. The facts reveal that a Final Order of the Florida Construction Industry Licensing Board was issued on April 23, 1980, and this order established disciplinary action against the current license of David H. Hamilton. (A copy of this Final Order may be found as a part of the record in this proceeding and official recognition of that Final Order is made by the Recommended Order process.) This Final Order was entered after review of a Recommended Order of a Division of Administrative Hearings' Hearing Officer. By the terms of the Final Order, Hamilton's license was suspended "until such time as his Lake County Certificate of Competency is reinstated by the Lake County Board of Examiners." This contingency referred to the fact that the Respondent had his Lake County Certificate of Competency Card removed prior to the entry of the April 23, 1980, order of the Construction Industry Licensing Board. On September 2, 1980, at a time when the Respondent's residential contractor's license was under suspension by the State of Florida, the Respondent through a corporation applied to the Osceola County Building Department for a building permit to construct a residence in Osceola County, Florida. This permit number was #2740-80B. The permit was issued on September 4, 1980, and was granted in the name of David Hamilton, Inc., a corporation in which the Respondent was a principal. To obtain the permit in the sense of an effort to meet the requirements that the permit be applied for by a licensed Florida contractor, the Respondent used the registered residential contractor's license of one Louie Stevens Winchester who held license #RR003839 issued by the Florida Construction Industry Licensing Board. On the occasion of the issuance of the permit by Osceola County, Winchester was an officer of David Hamilton, Inc. Through the action of "pulling" this permit and the utilization of the permit in his construction of the residence, the Respondent was acting in the capacity of contractor under Winchester's license and the offices of the corporation, as opposed to the Respondent's suspended license. Prior to the request for permit, neither Hamilton nor Winchester had attempted to properly qualify David Hamilton, Inc., as a contracting corporation with the Florida Construction Industry Licensing Board. In this case, to properly qualify the corporation, it would have entailed the use of Winchester as the qualifying agent, in view of the fact that Winchester still held a valid contractor's license from the Florida Construction Industry Licensing Board. No effort was made to qualify David Hamilton, Inc., in its own right, through the agency of Winchester, until some time shortly beyond December 1, 1980. On October 28, 1980, the Respondent in his individual capacity, that is to say unconnected with his business pursuits as David Hamilton, Inc., went to the Osceola Building Department and applied for the issuance of a building permit for a home remodeling project for a customer of his. The permit in question on this occasion was #3214-80B. That permit was issued on October 29, 1930, and was used by the Respondent in his building project. An official in the Osceola County Building Department had checked with an employee in the Lake County Building Department on the status of Hamilton's rights to be employed as a building contractor in Lake County, Florida, and was informed that Hamilton's status in Lake County was acceptable. Based upon these representations, the Osceola County employee issued the permit discussed in this paragraph to Hamilton. The Osceola County employee also asked that the Lake County employee formally confirm Hamilton's status. The correspondence in response to Osceola County employee, John Pate, Assistant Building Director, as issued by an official in Lake County, one Herb Dudgeon, may be found as Petitioner's Exhibit No. 3. This letter was received by Pate after the permit was issued. That correspondence indicates that Hamilton had been given the privilege of reinstating his Lake County Competence Card, contingent upon "providing bond, insurances, occupational license, etc.," which had not been received by Lake County as of the date of the correspondence. The correspondence goes on to mention that the State, meaning the Florida Construction Industry Licensing Board, was waiting for confirmation of the completion of the contingencies referred to. Subsequent to this correspondence, the Respondent having completed all the necessary steps for reinstatement of the Lake County Competency Card, had his license suspension removed and was reinstated by the Florida Construction Industry Licensing Board, as verified by that body.
Recommendation Based upon a full consideration of the findings of fact and conclusions of law reached herein, it is RECOMMENDED: That the Florida Construction Industry Licensing Board issue a Final Order which absolves the Respondent of any responsibility for a violation of Subsection 489.127(1)(e), Florida Statutes (1980); that finds the Respondent in violation of Subsection 489.129(1)(g), Florida Statutes (1979), and imposes a penalty of a 60-day suspension; and that finds the Respondent in violation of Subsection 489.129(1)(j), Florida Statutes (1979), and imposes a suspension of 60 days to run concurrently with the other suspension in this paragraph of recommendation. 2/ DONE and ENTERED this 13th day of November, 1981, in Tallahassee, Florida. CHARLES C. ADAMS, 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 13th day of November, 1981.
The Issue The issues in this case are whether Respondent violated Subsections 489.129(1)(j) and (m), Florida Statutes (2004),1/ and, if so, what penalty should be imposed.
Findings Of Fact The Parties At all times relevant to this proceeding, Respondent was a certified general contractor, having been issued License No. CGC 1506043 by the Florida Construction Industry Licensing Board ("Board" or "Construction Industry Licensing Board") and was the primary qualifying agent for Rankor Corporation. The Board is the state agency charged with regulating the practice of contracting in the State of Florida pursuant to Chapters 455 and 489, Florida Statutes. At all times relevant, Rankor Corporation was a contractor-qualified business in the State of Florida, having been issued License No. QB 26667. The officers of the Rankor Corporation were as follows: Tina M. Despin, president; Stephen Despin, Sr., executive vice president; Jerold S. Bakelman, vice president and treasurer; and Eldora Bakelman, secretary. The directors of the Rankor Corporation were Respondent, Mr. Bakelman and Mr. Despin. Jerold Bakelman was licensed as a financially responsible officer by the Board from August 27, 2003, to January 7, 2005. Mr. Bakelman's license number was FRO 711. Transactions Related to Longoria Property In December 2004, Antonia Longoria met with Tina Despin and Stephen Despin, Sr., about replacing the roof and performing other repairs at a house owned by Ms. Longoria located at 4716 Nottingham Drive, Ft. Myers, Florida ("Nottingham Drive house" or "Nottingham Drive property").2/ On or about December 7, 2004, Ms. Longoria entered into a contract with Rankor Corporation to remove and replace the roof and to make the other repairs at the Nottingham Drive house (hereinafter referred to as "Contract No. 1" or "December 7, 2004, Contract"). The cost for the scope of work in Contract No. 1, including the cost of obtaining permits was $32,690.00. Pursuant to the terms of the contract, one-third of the contract amount, $10,896.67, was due when the contract was signed; one-third of the contract amount was due when the trusses were delivered; $8,396.67 was due when the job was completed; and $2,500.00 was due after the final inspection of the job was completed. The December 7, 2004, Contract was signed by Tina Despin on behalf of Rankor Corporation and by Ms. Longoria. On or about December 7, 2004, Ms. Longoria paid Rankor Corporation, by personal check, a payment in the amount of $10,896.67 for the work to be done pursuant to Contract No. 1. Ms. Longoria made the check out to Rankor Corporation and gave it to Ms. Despin. On or about December 17, 2004, about ten days after Contract No. 1 was executed, Ms. Longoria entered into a second contract with Rankor Corporation to do additional work at the Nottingham Drive house (hereinafter referred to as "Contract No. 2" or "December 17, 2004, Contract"). Under the terms of the December 17, 2004, Contract, Rankor Corporation was required to relocate the entrance to the house from the side to the front of the house. The cost for the scope of work under this contract was $10,770.00, with payments to be made in three installments. Pursuant to the terms of Contract No. 2, one-third of the contract amount, $3,590.00, was due when the contract was signed; one-third was due when the trusses were delivered; and the remaining one-third was due upon completion of the project. Contract No. 2 was signed by Tina Despin on behalf of Rankor Corporation and by Ms. Longoria on or about December 17, 2004. Two days later, on or about December 19, 2004, Ms. Longoria paid Mr. Despin, Sr., by personal check, a payment in the amount of $3,590.00 for the project under this contract. The check was made out to "Stephen E. Despin" and not to Rankor Corporation. Ms. Longoria paid the $3,590.00 to Mr. Despin, Sr., as a representative of Rankor Corporation. The scope of work under both Contract No. 1 and Contract No. 2 required permits from the City of Ft. Myers Building Department before work could commence. However, after the two contracts were executed, Rankor Corporation never applied for the permits necessary to commence work under those contracts. At or near the end of January 2005, Ms. Longoria began calling Mr. Despin, Sr., to find out when he would begin the project at the Nottingham Drive house. After several unsuccessful attempts by Ms. Longoria to reach Mr. Despin, Sr., he returned her call in February or March, but Rankor Corporation never performed any of the work required under Contract No. 1 and Contract No. 2. No one from Rankor Corporation ever performed any work on Ms. Longoria's Nottingham Drive house. Notwithstanding its failure to perform any of the work required under the December 7, 2004, Contract and the December 17, 2004, Contract, Rankor Corporation did not return Ms. Longoria's two payments made pursuant to the terms of those contracts. The total of these two payments was $14,486.67. In or about March 2005, the City of Ft. Myers Code Enforcement unit posted a notice on the Nottingham Drive property advising Ms. Longoria that the subject property was in violation of the city code. The notice gave Ms. Longoria, as owner of the property, 30 days to have the repairs done to bring the house into compliance with the code. The violations cited in the notice were related to damages the Nottingham Drive house sustained from Hurricane Charlie. On or about April 19, 2005, Ms. Longoria entered into a contract with Roofmaster of South Florida, Inc. ("Roofmaster") to repair the roof at the Nottingham Drive house in order for the roof to be in compliance with the City of Ft. Myers code. The scope of work under the contract with Roofmaster was smaller than the scope of work under the December 7, 2004, Contract between Ms. Longoria and Rankor Corporation. The contact price for the project with Roofmaster was $9,500.00. In or about May 2005, Roofmaster commenced and completed work under its contract with Ms. Longoria. For this work, Ms. Longoria paid Roofmaster the contract price of $9,500.00. At no point in time until May 2005, the time at which Roofmaster commenced work under the contract with Ms. Longoria, did Ms. Longoria prevent Rankor Corporation from commencing and completing the work projects under the December 7, 2004, Contract and the December 17, 2004, Contract. Respondent's Attempts to be Removed as Qualifying Agent On January 5, 2005, Respondent wrote a letter to Mr. Bakelman memorializing Respondent's and Bakelman's conversation concerning Mr. Bakelman's decision to no longer serve as the financially responsible officer for Rankor Corporation. In the letter, Respondent recounted that during that conversation, he (Respondent) had "executed documents supplied by you [Bakelman] from the State of Florida Construction Industry Licensing Board releasing you [Bakelman] from said position with immediate effect." By letter dated January 5, 2005, Respondent forwarded a copy of his January 5, 2005 letter to Mr. Bakelman to the secretary of the Construction Industry Licensing Board in Tallahassee, Florida. Respondent requested that the letter be recorded and filed with pertinent information maintained by that office for "the business qualified by me [Respondent], known as Rankor Corporation. Apparently concerned about Mr. Bakelman's stepping down as Rankor Corporation's financially responsible officer, Respondent contacted the Department's Customer Service section on January 5, 2005, about the situation. At that time, a person in that section told Respondent that he should inform the company officers that they had an obligation to secure a new financially responsible officer, and if they did not, he was obligated either to act in that position or to terminate his position as qualifying representative. On January 7, 2005, Bakelman was properly removed as the financially responsible officer for Rankor Corporation and, thereby, ceased being the financially responsible officer for Rankor Corporation. Upon Mr. Bakelman's being properly removed as the financially responsible officer, Respondent, as the qualifying agent, became responsible for the duties and obligations related to Rankor Corporation's financial matters. By letter dated February 7, 2005, Respondent advised Stephen and Tina Despin (Stephen and Tina) that he was terminating his position as the primary qualifying agent for Rankor Corporation. In this letter, Respondent recounted a January 5, 2005, letter to the Despins in which he indicated that in light of Mr. Bakelman's resignation, he (Respondent) was requiring them to secure a financially responsible officer within two weeks. According to the letter, the reason Respondent was terminating his position with the company was that the Despins had failed to do so. In addition to advising the Despins that he was terminating his position as qualifying agent for Rankor Corporation, Respondent's letter provided the following: Pursuant to guidelines of CILB [Construction Industry Licensing Board], it is required that no new contracts or construction endeavors requiring the use of my license be undertaken, this includes, but is not limited to, the "pulling" of permits. Furthermore, my license number is to be removed form any signage or advertising immediately, which would serve to give the impression that Rankor is acting as a certified general contractor. The only work you are permitted to perform is to conclude projects already underway, and I was advised by the board [Construction Industry Licensing Board] that you should secure another qualifier as soon as possible. I will advise the local building departments of the change of status as well. Respondent sent the February 7, 2005, letter to the Despins by certified mail. According to the return receipt, Tina Despin signed for and received the letter on February 8, 2005. Respondent also sent a copy of his February 7, 2005, letter to the Despins to the Construction Industry Licensing Board. On February 7, 2005, Respondent sent a letter to the Board informing the Board of Respondent's termination as the primary qualifying agent for Rankor Corporation and requesting the appropriate documents to be removed as the primary qualifying agent for Rankor Corporation. The letter provided, in relevant part, the following: Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Fl [sic] 32399 Re.: Termination of Acting as Qualifier for Rankor Corporation Dear Sirs or Mesdames: As per attached letter I with immediate effect remove myself as qualifier for Rankor Corporation, QB 26667[.] Please provide me with any forms required to effect completion of the same, this should not be considered in any manner a renunciation or modification of my termination as qualifier. This act is irrevocable and immediate. I am a certified General Contractor, [sic] [M]y license number is CGC 1506043. The "attached letter" referred to in Respondent's letter to the Board, quoted in paragraph 30, is Respondent's February 7, 2005, letter to the Despins. Larissa Vaughn has been the administrative assistant for the executive director of the Board since February 2005. As an administrative assistant, Ms. Vaughn is familiar with the licensure process for construction contractors. Ms. Vaughn testified that the Board never received Respondent's February 7, 2005, letter to the Board, which informed the Board of Respondent's termination as the primary qualifying agent for Rankor Corporation and requested that he be sent appropriate documents to be removed as the primary qualifying agent for Rankor Corporation. The reason the Board never received the letter is not clear. However, Ms. Vaughn testified that a letter, such as Respondent's February 7, 2005, letter to the Board, would not have necessarily been received. According to Ms. Vaughn, "[a] lot of letters like this are received and [when] there is a request for forms, it goes to our customer contact center." Ms. Vaughn testified that even if the Board had received Respondent's February 7, 2005, letter, that correspondence would not have been sufficient in itself to remove Respondent as the primary qualifying agent for Rankor Corporation. According to Ms. Vaughn, the Department requires that to be removed as the primary qualifying agent for a contractor-qualified business in the State of Florida, a licensed contractor must submit to the Board a properly completed change of status application. Ms. Vaughn testified that a change of status application can be requested and received from the Department by phone, e-mail, or internet.3/ On September 13, 2005, Respondent submitted a change of status application to the Board. Almost two years later, Respondent's change of status application remains open and has not been approved by the Board. Respondent's efforts to terminate his status as the qualifying agent for Rankor Corporation were unsuccessful for the reasons stated above. In this case, even if Respondent's February 7, 2005, letter had effectively terminated his status as qualifying agent, the fact remains that he was the qualifying agent in December 2004 when Rankor Corporation entered into the two contracts with Mrs. Longoria. Moreover, Respondent became responsible for Rankor Corporation's financial matters after Mr. Bakelman was properly released as the company's financially responsible officer. There is no evidence that Respondent has been previously cited for violations under Chapter 489, Florida Statutes. The total investigative costs of this case to Petitioner, excluding costs associated with any attorney's time, for Department Case No. 2005-028129 was $408.37 (four hundred eight dollars and thirty seven cents).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business and Professional Regulations, Construction Industry Licensing Board, enter a final order: (1) finding that Respondent, Joseph D. Sloboda, violated Subsections 489.129(1)(j) and (m), Florida Statutes; (2) imposing a $1,000 fine for each violation; (3) requiring Respondent to make restitution to Antonia Longoria in the amount of $14,486.67; and (4) requiring Respondent to pay investigative costs associated with this case of $408.37. DONE AND ENTERED this 30th day of November, 2007, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2007.
