The Issue The issue in this case is whether Respondent, Wayne H. Wagie, committed the offenses alleged in an Administrative Complaint filed with Petitioner, the Department of Business and Professional Regulation, on August 11, 2004, and, if so, what penalty should be imposed.
Findings Of Fact The Parties. Petitioner, the Department of Business and Professional Regulation (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for, among other things, the licensure of individuals who wish to engage in contracting in the State of Florida; and the investigation and prosecution of complaints against individuals who have been so licensed. See Ch. 689, Fla. Stat (2005). Respondent, Wayne H. Wagie, is and has been at all times material hereto a licensed certified general contractor in Florida. Mr. Wagie was originally licensed as a certified general contractor on or about December 28, 1978, license number CGC 13331. At all times material hereto, the status of his license has been "Current, Active." At all times material, Mr. Wagie was the qualifying agent for Unified Construction Technologies, Inc (hereinafter referred to as "Unified Construction"), a Florida corporation. Unified Construction did not have a certificate of authority as a qualified business organization. The Department has jurisdiction over Mr. Wagie's license. The Spiegel Brothers. At the times material to this matter, Mr. Wagie engaged in a business arrangement with two brothers, Abraham and Yosef Spiegel (hereinafter referred to jointly as the "Spiegel Brothers), whereby Mr. Wagie allowed the Spiegel Brothers to use his general contractor's license number and qualifying number to pull permits for a company through which the Spiegel Brothers conducted construction business. The Spiegel Brothers' construction company was Mega Construction Group, Inc., d/b/a Mega Construction Group, Inc. (hereinafter referred to as "Mega Construction"). Pursuant to their agreement, Mega Construction, through the Spiegel Brothers, was to handle all aspects of any construction contracts the Spiegel Brothers were able to enter into, including negotiating the contract, handling funds received from customers, and performing all necessary work. The only function not to be carried out by the Spiegel Brothers or Mega Construction was to actually obtain the necessary building permits; that was Mr. Wagie's responsibility. In exchange for his services, Mr. Wagie was to receive a percentage of the sales price, with half paid upon execution of the contract and half after completion of the work. Neither of the Spiegel Brothers was a licensed general contractor in Florida. Nor was Mega Construction certified as a contractor qualified to do construction business in Florida. Mr. Wagie was aware of these facts. The Sicre Contract. In 2001, Candida Sicre owned and resided at a house located at 650 82nd Street, Miami Beach, Florida. Ms. Sicre was interested in adding a handicap accessible bathroom to her home and, when she received a flyer in the mail advertising Mega Construction, she contacted the Spiegel Brothers. On August 13, 2001, Ms. Sicre entered into a written contract with Mega Construction (hereinafter referred to as the "Sicre Contract"). Pursuant to the Sicre Contract, Mega Construction agreed to construct a new handicap-accessible bathroom for which Ms. Sicre agreed to pay a total of $15,762.00. As part of their contract, it was agreed that an air-conditioning unit would be relocated. While the relocation of the air-conditioning unit is listed as "1" and the construction of the new bathroom is listed as "2" in the Sicre Contract, in fact the relocation of the air-conditioning unit was a necessary component of the construction of the new bathroom, for the new bathroom was to be constructed from where the air-conditioning unit was to be relocated. Ms. Sicre paid a total of $7,762.00 on the agreed Sicre Contract price. On September 17, 2001, Mr. Wagie, pursuant to his agreement with the Spiegel Brothers, signed a building permit application required to complete the Sicre Contract. That application was filed with the City of Miami Beach building department on or about January 4, 2002. On the permit application, Unified Construction was listed as the "Company," Mr. Wagie was listed as "Qualifier," and Mr. Wagie's license number was listed as the "License No." under "Contractor Information". The permit application was approved by the City of Miami Beach on or about May 31, 2002, and permit number KB0201178 was issued. Pursuant to an agreement between the Spiegel Brothers and Ms. Sicre, the starting date for the Sicre Contract was postponed to August 15, 2002, just over a year after it had been entered into. At some time after the Sicre Contract was entered into, the air-conditioning unit was relocated as specified in the contract. Except for the relocation of the air-conditioning unit, no further work specified under the Sicre Contract was performed. The actual construction of the new bathroom was never started. Eventually, Ms. Sicre was told that the work would not be performed because Mega Construction was going to declare bankruptcy. After being told that the new bathroom would not be completed, Ms. Sicre sold her house. She attempted, however, to obtain a refund of some of the $7,762.00 she had paid Mega Construction. Eventually, Ms. Sicre learned of Mr. Wagie's involvement with the Spiegel Brothers and, through a series of negotiations, it was agreed that she would receive a refund of $2,000.00 through Mr. Wagie from the Spiegel Brothers. She was eventually given two $1,000.00 checks in furtherance of this agreement, but the checks ultimately "bounced." The only work performed on the Sicre Contract by Mega Construction was the drawing of a building permit and the relocation of the air-conditioning unit. For this work, Ms. Sicre paid a total of $7,762.00. Ultimately, Mega Construction, although beginning the project by relocating the air-conditioning unit, abandoned the project without its completion. Prior Disciplinary Action. On July 15, 1996, the Department filed a Final Order reflecting that a settlement stipulation had been approved by the Construction Industry Licensing Board (hereinafter referred to as the "Board"), pursuant to which Mr. Wagie agreed to pay an administrative fine in the amount of $250.00, plus investigative and legal costs in the amount of $368.30 to resolve charges against his license, which Mr. Wagie denied. The Department's Costs of Investigation and Prosecution. The Department has incurred $597.69 in the investigation and prosecution of this matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department: Finding that Wayne H. Wagie violated Section 489.129(1)(i), Florida Statutes (2000), as alleged in Counts I and III of the Administrative Complaint; and violated Section 489.129(1)(d), Florida Statutes (2000), as alleged in Count II of the Administrative Complaint; Dismissing Counts IV and V of the Administrative Complaint; and Imposing an administrative fine in the total amount of $3,250.00; requiring that Mr. Wagie pay Ms. Sicre $2,000.00 in restitution; requiring that Mr. Wagie pay $597.69 as the costs of the investigation and prosecution of this matter; and that his license be suspended for a period of two years. DONE AND ENTERED this 31st day of August, 2005, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 31st day of August, 2005. COPIES FURNISHED: Theodore R. Gay Assistant General Counsel Department of Business and Professional Regulation 8685 Northwest 53rd Terrace, Suite 100 Miami, Florida 33166 Wayne H. Wagie 220 Northeast 45th Street Miami, Florida 33137 Tim Vaccaro, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact Based on the evidence adduced and the stipulation by the Petitioner and Respondents, the following facts are found. At all times material hereto, Respondent Jack W. Palmer, a licensed certified residential contractor, was the qualifier for Master Construction Services, Inc. , herein sometimes referred to as Master. (Petitioner's Exhibit #1) At all times material hereto, Respondent Richard J. Mueller, a licensed certified building contractor, was a qualifier for Master Construction Services, Inc. (Petitioner's Exhibit #2) At all times material hereto, Respondent Timothy E. Zook, a licensed certified general contractor, was a qualifier for Master . Construction Services, Inc. (Petitioner's Exhibit #3) During February, 1979, James Foster, a sales representative for Master Construction Services, Inc., submitted a proposal to one Wright Britton through an insurance adjuster for Crawford and Company, Wayne Trammell, to repair Mr. Britton's residence located at 213 S.E. 7th Ave., Delray Beach, Florida. The amount of the proposal as originally submitted was $37,709.30. (Petitioner's Exhibit #4) During March of 1979, Wayne Trammell, representative for Crawford and Company, effectuated a reduction in the bid proposal from James Foster of Master to $30,000 for the repairs to the Britton residence. (Petitioner's Exhibit #4) On or about May 7, 1979, Wright Britton accepted the proposal from Master. (Petitioner's Exhibits #4 and #11) Mr. Britton received a settlement check from the insurance company in the amount of $31,185. Mr. Britton in turn paid Master the sum of $20,000 as a deposit to commence construction to his residence. (Petitioner's Exhibit #7 and TR, pages 40, 80-85) Master commenced construction during early June, 1979 and abandoned construction during the latter part of September, 1979. At the time Master abandoned repairs to the Britton residence, several subcontractors, including the following, had furnished labor and materials to Master (for the Britton home) which were not paid: $ 480.00 988.26 c. Hallenruff Electric (Petitioner's Exhibits #16 and #17) 2,960.00 d. Ghale Insulation (Petitioner's Exhibit #18) 765.00 e. Russell Jennings (air conditioning work) (Petitioner's Exhibit #15) 1,500.00 f. Joe Mansfield (drywall) (Petitioner's Exhibit #14) 255.00 Pecht-Wensing, Architects & Planners (Petitioner's Exhibit #6) Dixie Glass (Petitioner's Exhibit #5) During January, 1980, Respondent Palmer submitted a document to the Department of Professional Regulation's Investigator, Robert Kehr. The document was entitled "Items Completed by Master Construction Services, Inc., as to Proposal No. 550 for Mr. Wright Britton." The document contained items which were not, in fact, completed by Master as reported. As example, the document indicates that the drywalls had been completed; there were doors in the kitchen; there were jalousie doors and windows which were clean whereas in fact these items, as evidenced by other documentary evidence, consisting of photographic evidence and Petitioner's Exhibit #12, reflect that these items were not, in fact, completed by. Master. Additionally, without reciting all of the discrepancies, in haec verba, it suffices to say that items 49, 50, 52, 57, 58, 62, 63, 71, 130, 131, 161, 163 on the above referred document and the air conditioning were not items completed by Master. Respondent, Jack Wetzel Palmer, appeared and testified on his own behalf during the subject proceeding. Respondent Palmer specializes in insurance repair work and has been involved in such work in this State for approximately ten (10) years. Respondent Palmer was a salesman with Master and had no control or other authority over Master Construction Services' checking or other fiscal policies. Palmer drew a commission and placed his license with Master such that it (Master) could obtain roofing permits. Respondent Palmer indicates that he had no idea that a drywall contractor, other than Master, had completed the drywall work for the Britton residence. Respondent Palmer offered that First American Bank took over all accounts, payable and receivable, of Master Construction Service prior to the conclusion of the Britton project and that that bank made the decision not to complete the Britton project. Respondent Timothy E. Zook also appeared and testified on his behalf during the subject proceeding. Respondent Zook did not compute, nor was he involved in the items referred to on Petitioner's Exhibit #10. Respondent Zook also offered that the decision not to complete the Britton residence was made by First American Bank. Respondent Palmer obtained the building permit for the Britton residence. Respondent Richard E. Mueller also appeared and testified on his behalf reference the subject dispute. According to Mueller, Master obtained some "bad" estimates and when the money for the various projects ran short, the bank refused to extend further monies and therefore the subject project was not completed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That Respondent Jack w. Palmer's certified residential contractor's license be placed on probation for a period of two (2) years. That Respondent Timothy E. Zook's certified general contractor's license be placed on probation for a period of two (2) years. That Respondent Richard J. Mueller's certified building contractor's license be placed on probation for a period of two (2) years. RECOMMENDED this 11th day of May, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, 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 11th day of May, 1983.
Findings Of Fact Respondent, Mark O. Holland, is a licensed registered building contractor holding license number RB 0039443. Respondent was licensed at all times material to this action. Sometime around June 19, 1986, Respondent entered into a contract with Mrs. Mary Sue Thames. Ms. Thames resided in Tennessee. The contract covered Ms. Thames' partially burned out home located at 528 Dement Circle, Panama City, Florida. Respondent was to rebuild the damaged portions of the home and to build an addition onto the home. The contract improvements were to be completed within sixty days of the contract date. The contract contemplated installment payments by Mrs. Thames, by September 5, 1986, she had paid $15,000.00 of the total contract price of $17,300.00 to Respondent. The remaining $2,300.00 was to be paid upon completion of the job. Mrs. Thames became concerned that the job was not progressing in a reasonably timely manner in September 1986 when she visited the job site from Tennessee. She observed that "nothing was done" even though the sixty day contract period had expired. Suppliers were removing items from the job that Respondent had not paid for under the contract. Mrs. Thames throughout the job had telephoned the Respondent weekly to check on the progress. Respondent would assure Mrs. Thames that he would "get right on it" and finish the job. Due to Respondent's assurances, Mrs. Thames elected to stay with Respondent so that he could complete the contract. Respondent never substantially performed the job although he did perform part of the contract. Between September 1986 and January 1987, Mrs. Thames in an effort to get the job finished, paid for supplies and materials that Respondent was contractually obligated to purchase. She paid for sheet rock, vinyl, carpet and doors. Respondent had told Mrs. Thames that he had no money to finish the job and that if she would purchase those materials he could finish the job. Mrs. Thames knew the contract obligated the Respondent to furnish the materials she purchased but was trying to work with the Respondent. The effort did not pay off. Respondent had in effect abandoned the job. As stated earlier, Respondent did not complete Mrs. Thames' job. In March 1987, Mrs. Thames' family assisted her in obtaining other subcontractors and suppliers to complete the job. She incurred costs of $8,000.00 to these subcontractors and suppliers, an amount less than the amount already paid to Respondent. Mrs. Thames testified that at least two subcontractors have not been paid by the Respondent those being Stephens Heating and Air Conditioning and M.D. Stewart Plumbing Company. Mr. Lester Stephens, owner of Stephens Heating and Air Conditioning subcontracted with the Respondent. Stephens' company roughed in the central ducts system valued at $700.00 on September 1, 1986 and as of September 27, 1988, had not been paid by Respondent. Coastal Insulation of Northwest Florida, Inc. filed a lien against Mrs. Thames' property as a result of Respondent not paying for supplies. The lien was apparently discharged by Respondent. Mr. Richard Dodson confirmed the testimony of Mrs. Thames. Mr. Dodson added that in addition to the $8,000.00 Mrs. Thames paid to complete the job, she also incurred hotel and travel bills. She also lost approximately 1 - 1/2 years worth of rental income on the house because of Respondent's misconduct and abandonment of the job. Respondent was disciplined by the Panama City Beach Board of Examiners on September 10, 1987 for misconduct and violations of the Building Regulations and Ordinances of the City of Panama City Beach during the Thames job. Respondent's competency card was revoked by the Board. Respondent has never refunded any of the contract price to Mrs. Thames.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That an administrative fine in the amount of $1,000.00 be levied against Respondent. DONE and ENTERED this 9th day of November, 1988, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2489 The facts contained in paragraphs 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraph 2 of Petitioner's Proposed Findings of Fact are subordinate. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Tectonics Section Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mark O. Holland Route A, Box 366 Youngstown, Florida 32466 Fred Seely Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 Lawrence A. Gonzalez, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Genaro H. Rodriguez, Petitioner, was employed by Y.A.C. Electric Corporation, Respondent, as an electrician on the City of Miami Fire Station #5 project during the period February 1976 through September 1977. He did not work on this project every working day during this period. During most of the period involved Petitioner held a Dade County license as a journeyman electrician. Before the job was completed he was licensed as a master electrician. Petitioner was the electrical foreman on the job for Respondent. This project came under the Prevailing Wage law. While working on this project Petitioner was paid $6.50 per hour and later $6.75 per hour. The prescribed prevailing wage for electricians on this project was $10.75 per hour. The difference between the amount Petitioner received while working on this project and the prevailing wage he should have received is $2,429.65. F. Bilboa and Associates was the general contractor on this project and Y.A.C. Electric Corporation was a subcontractor for the electrical work. At the commencement of the project Respondent advised its employees that they would be paid less than the prevailing wage while the work was in progress and when the work was completed they would be paid the difference in a lump sum between what they had been paid and the prevailing wage. Respondent had been a subcontractor with General Electric as prime contractor on an earlier prevailing wage job and pursuant to a similar agreement the prime contractor paid the lump sum difference to the workers to satisfy the prevailing wage law at the completion of the project. In this case, Respondent has been unable to collect what is owed him by the prime contractor and has, therefore, not fulfilled his agreement with Petitioner.
Findings Of Fact The Respondent, at all times material hereto, was a licensed registered "residential contractor." He was not registered or licensed as a general or building contractor, however, as Respondent himself acknowledged. See also, Petitioner's Exhibit 1 in evidence. The Petitioner is an agency of the State of Florida charged pursuant to the provisions of Chapter 489, Florida Statutes, with establishing licensure standards for building contractors of all types in the State of Florida, and with enforcing the various limitations on practice as a contractor embodied in that chapter. On or about January 28, 1986, the Respondent contracted with one Harold Martin, M.D., to build Dr. Martin a commercial office building in Leon County, Florida. The contract specified construction of all phases of the building project except the parking lot and the landscaping. The Respondent submitted a budget for the construction work to Dr. Martin depicting a total proposed cost for the project of $134,882. The Respondent performed substantial work on the office building in January and February of 1986. In March of 1986, due to a dispute which arose between the Respondent and Dr. Martin concerning the cost and progress of the construction project, Dr. Martin terminated the Respondent's service and contract and retained another contractor to finish the job, which was done. The Respondent established that when the contract was terminated, the building was approximately 65 percent complete. It is undisputed that the Respondent did perform a substantial amount of work on the office building pursuant to the contract with Dr. Martin. On March 27, 1986, the Respondent filed a claim of lien against the owner, Harold Martin, in which the Respondent stated that he had managed the construction of the office building in question and had performed $23,300 worth of work thereon. The Respondent also provided Dr. Martin with a Contractor's Affidavit, in which he certified to the owner that all lienors, except one, had been paid. The Respondent had contracted to perform the work after it had been started by another contractor retained by Dr. Martin, whom Dr. Martin had also terminated because he was not pleased with the progress and the quality of work of that first contractor. The Respondent established that one of the members of the Board of Directors of his corporation was a licensed general contractor, but admitted that that general contractor and board member had performed no work with regard to Dr. Martin's office building. The Respondent testified that another general contractor came to the job site from time to time to supposedly oversee the job. However, it was not established that any other general contractor, in the course of his practice, had any nexus with the Martin contract nor the performance of any construction on the building at times when the Respondent was performing construction thereon in January and February of 1986. This is demonstrated especially because of the fact that the Respondent never paid any other general contractor any money for any work or supervision performed with regard to this job, nor had Dr. Martin paid any other general contractor for such duties during the time that the Respondent was performing work on the building in question.
Recommendation Having considered the foregoing findings of fact conclusions of law, the evidence of record, and the candor and demeanor of the witnesses, it is therefore RECOMMENDED that a Final Order be entered by the Construction Industry Licensing Board, in accordance with disciplinary guideline Rule 21E-17.001(3), Florida Administrative Code, according the Respondent the penalty of a Letter of Guidance. DONE and ENTERED this 23rd day of December, 1987, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2958 Petitioner's Proposed Findings of Fact: Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. COPIES FURNISHED: William O'Neil, III, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mr. James L. Washington 320 West Pershing Street Tallahassee, Florida 32301 Mr. Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
Findings Of Fact Respondent contracted to build a fire-police-safety training center (hereafter center) for the City of Tampa, and by reference to Determination No. 1110-V, which was physically attached to the contract, agreed to pay carpenters at the rate of eight dollars and thirty-one and a half cents ($5.315) an hour and laborers at an hourly rate of six dollars and fifteen cents ($6.15). Charles Shade worked for respondent as superintendent of the center job. Petitioner first worked at the center job site as a carpenter in the employ of Armco, one of respondent's subcontractors. On respondent's behalf, Charles Shade hired petitioner Herron when Armco laid him off. At that time, Mr. Shade said, "Well, I don't have much carpentry now," but offered petitioner a job as assistant superintendent at five and a half dollars ($5.50) per hour. Part of the inducement for petitioner to take this job was the prospect of eventually working as a superintendent for respondent, and after he began work, petitioner submitted a resume in letter form listing his considerable experience in the construction industry. This letter came in evidence as respondent's exhibit No. l. Petitioner testified that he began working for respondent in August of 1976, but, according to payroll records introduced as petitioner's composite exhibit No. 3, he began work on September 10, 1976. This conflict in the evidence has been resolved in favor of the payroll records. From September 10, 1976, through January 28, 1977, petitioner was paid at an hourly rate of five and one-half dollars ($5.50), for 504 hours worked during regular working hours; and at an hourly rate of eight and one-quarter dollars ($8.25) for sixteen hours worked overtime. After January 28, 1977, until his employment with respondent ended, petitioner was paid at an hourly rate of six dollars and fifteen cents ($6.15), for a total of 176 hours worked during regular working hours. During the course of his employment by respondent, petitioner performed a great variety of tasks, often using tools he brought with him and kept in his car. Hammers, pliers, framing square, chisels, wrenches, a small electric drill and a small power hand saw were among the tools he had in his car. He did rough and finish carpentry, ironworking, counted how much brick the masons laid, shoveled sand, did layout, discussed plans with subcontractors, supervised laborers, filled out payroll sheets in Mr. Shade's absence, ran the bobcat, oversaw the paving of the driveway and dealt with the subcontractors in Mr. Shade's absence. From time to time in the course of his employment, petitioner did miscellaneous carpentry, including layout, putting backing on walls, hanging outside doors, installing door frames, building platforms, constructing wood curbing on the roof, putting thresholds in, and grading with a transit and level. While doing carpentry, petitioner ordinarily worked with a carpenter's helper. Mr. Shade also performed a great variety of tasks, including miscellaneous carpentry. Petitioner's last full day of work was February 25, 1977, a Friday. The following Wednesday he returned to the center job site and told Mr. Shade he had filed the affidavit which initiated these proceedings. Mr. Shade told petitioner he could continue working if he signed a statement acknowledging that he was an assistant superintendent. Petitioner answered that he wanted to obtain legal advice before deciding and did no further work for respondent. Shade did not hire petitioner in an effort to obtain a carpenter's services at less than the prevailing wage. In preparing its bid for the center contract, respondent budgeted one thousand dollars ($1,000.00) for rough carpentry (wages for carpenter and helper) and one thousand dollars ($1,000.00) for finish carpentry (wages for carpenter and helper). Petitioner spent approximately five and a half months on the center job site, which would have been ample time to do all the carpentry budgeted and more, even without a helper if respondent had hired petitioner for that purpose. The fact that respondent hired a carpenter to work on the center project after petitioner's departure indicates that a significant amount of carpenter's work still remained to be done, however. Everybody on the job, including petitioner was paid for a full day on Christmas Eve, although only a half day was worked. On one unspecified date, everybody on the job, including petitioner, was paid a day's wages although everybody was sent home because it was too cold to work.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the contracting authority, the City of Tampa, pay petitioner Herron the sum of three hundred twenty-five and forty hundredths dollars ($325.40). That the contracting authority, the City of Tampa, pay respondent the balance of moneys heretofore withheld on account of petitioner's claim, pursuant to Section 215.19(3)(b) Florida Statutes (1975). DONE and ENTERED this 30th day of June, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Dale W. Vash, Esquire 620 Twiggs Street Tampa, Florida 33602 James B. Loper, Esquire 101 East Kennedy Boulevard Tampa, Florida 33602 Dan F. Turnbull, Jr., Esquire Florida Department Of Commerce 401 Collins Building Tallahassee, Florida 32304 Luther J. Moore Administrator of Prevailing Wage Division of Labor 1321 Executive Center Drive East Tallahassee, Florida 32301
The Issue Whether the general contractor's license #CG C005245 of Respondent Dunaway should be revoked, and whether a fine of $500.00 should be levied.
Findings Of Fact On or about September 16, 1977, an administrative complaint was served on Respondent Dunaway, advising him that the Petitioner Board would not renew Respondent's delinquent license for a period of two (2) years, that it sought to revoke said license, and that it would levy a fine of $500.00 against him. Respondent requested an administrative hearing. (The certified general contractor's license of Respondent, issued by Petitioner Board, expired in 1975, but was renewed by Respondent prior to the hearing.) On January 31, 1977, Carl A. Posey entered into a contract with Carl Bowen, Jr., an unlicensed builder, to construct a room addition for a contract price of $6,578.00. Subsequent to the commencement of the construction, Posey paid Bowen approximately $4,800.00, some of it ahead of the payment schedule. During the course of construction, there were problems with the plumbing and roof and damage to the lawn in the front yard, and a lien was filed against the Posey property in the amount of $1,282.45. On or about April 1, 1977, Bowen abandoned the project. Subsequently, on or about April 20, 1977, Respondent Dunaway contacted Posey and stated that he would complete the work on the contract if Posey would pay the balance due on the contract. Posey, not knowing that Respondent had an interest in the project, and having had unsatisfactory transactions with the Respondent in a past construction job, declined to employ him to work on the room addition. Posey was later informed that the permit to build had been issued to Respondent, and in fact notice was posted at the construction site, although in a place out of view to Posey and unnoticed by Posey or his wife. Posey testified that he would have immediately cancelled the contract had he known Bowen was unlicensed and Respondent had secured the permit. Posy found the permit only after cleaning up construction debris after April 20, 1977. Respondent Dunaway's general contractor's license was delinquent at the time Respondent secured a permit to build the Posey addition in January of 1977. Thereafter, on October 9, 1978, the Volusia Building Trades Board suspended Respondent's right to pull a permit until after an administrative hearing. Respondent secured from Bowen approximately $75.00 for the permit to construct the Posey room addition to be built by the uncertified and unregistered contractor, Bowen. No monies were paid by Posey to Respondent for the construction, nor were any of the funds paid to Bowen by Posey shared with Respondent for work on the project. No work was done by Respondent. No memorandum of law or proposed recommended order was submitted by Petitioner Board. Respondent Dunaway submitted a memorandum of law, and this instrument was 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 boon specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Petitioner Board revoke the general contractor's license of Respondent and impose a fine not exceeding $500.00. DONE and ORDERED this 30th day of August, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Barry S. Sinoff, Esquire 2400 Independent Square One Independent Drive Jacksonville, Florida 32202 Mr. Max E. Dunaway 601 Merrimac Street Deltona, Florida 32725 ================================================================= AGENCY FINAL ORDER ================================================================= December 26, 1979 Honorable Delphene C. Strickland Hearing Of ficer Division of Administrative Hearings Room 101-Collins Building Tallahassee, Florida 32301 Re: Florida Construction Industry Licensing Board vs. Max E. Dunaway - Case No. 78-328 Dear Mrs. Strickland: In connection with the above referenced case, I am enclosing the following items: Copy of page 3 of the FCILB minutes of the regular meeting of November 16, 1979 at which time final action was taken dismissing the charges against Mr. Dunaway. The minutes of this meeting were approved at the December, 1979 meeting. Copy of letter dated December 13, 1979 from John Henry Jones, President, to Max E. Dunaway notifying him of the Board's action. THIS LETTER SERVES AS WRITTEN DOCUMENTATION OF THE BOARD'S FINAL ORDER IN THIS MATTER. At the board meeting on November 16, 1979, Mr. Dunaway's attorney presented a transcript of a sworn statement given by the complaining witness, Carl Posey, and it is my feeling that the board members were very favorably impressed by the fact that Mr. Dunaway had finally made full restitution to Mr. Posey. I have enclosed a copy of that transcript for your file. You are hereby requested to close your file on this matter with the continued appreciation of the Board and the Department of Professional Regulation. With kind personal regards, I am Very truly yours, BARRY S. SINOFF enclosures cc: Fred Wilsen, Esquire C. J. Hoskinson, Jr.
