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.
Findings Of Fact At all times relevant hereto, respondent, Richard Kondian, was a licensed real estate salesman having been issued license number 0302230 by petitioner, Department of Professional Regulation, Division of Real Estate. The license is currently in an inactive status. His present address is 300 South Pine Island Road, Plantation, Florida. In July, 1984, James E. and Janis Shand, who lived at 4940 S. W. 16th Street, Fort Lauderdale, Florida, suffered extensive fire damage to their residence. Respondent approached the Shands, introduced himself as Dick Como, and offered to repair their home to its original condition. He also represented himself to be a contractor and that he was a principal in Apex Roofing, a local contracting firm. The Shands agreed to permit Kondian (Como) to perform the work, and they executed a contract prepared by Kondian on an "Apepco Corp." letterhead which authorized the work. A copy of the contract has been received in evidence as petitioner's exhibit 2. The document is a photostatic copy of the original, and is only partially legible. It does reflect July 24, 1984 as being the date of execution, and describes the repairs to be made as follows: To be effected to return Property to Pre- Fire Condition as per policy. (No extra charge to Home.) It also authorizes Allstate Insurance Company to pay for the repairs in accordance with the terms of the Shands' insurance policy. The contract was accepted by "D. Como." Como and Kondian were identified by the Shands as being one and the same. The owner of Apex Roofing and Insurance Repair Corporation was Michael Derhagopian, a licensed roofing contractor in Dania, Florida. Respondent told Derhagopian that he had procured a repair job on the Shands' residence and that he desired Apex to do the roofing portion of the work, and that a general contractor would perform the remainder of the project. He also advised Derhagopian that he needed to use Apex Roofing as the licensee on the project. Derhagopian agreed to do the work and pulled a permit for the roofing work. He also opened a checking account in which the insurance proceeds from Allstate were to be deposited. Both he and respondent had authorization to sign checks drawn on that account. On September 24, 1984, Allstate Enterprises Mortgage Corporation issued a check payable to Apex Roofing and Insurance and J. E. Shand in the amount of $18,150.66. The check was issued for the purpose of enclosing the house, cleaning it, and installing a new roof, trusses and windows. The check was endorsed by both the Shands and Richard Kondian who 'indicated on the endorsement that he was president of Apex. The check was then deposited into the Derhagopian Kondian joint account. Work began on the Shands' residence in September, 1984. Derhagopian completed a small flat deck in the rear of the house, and the general contractor began stripping the inside of the house and cleaning the premises. When neither was paid by Kondian they ceased work on the project. At that time Derhagopian learned that Kondian had spent the entire $18,150.66 within a week. According to Derhagopian, Kondian spent around $5,000.00 on a "nursing home" transaction, $500.00 for legal expenses, and an undisclosed amount for mortgage payments on his home. It is not known how the remainder of the funds were spent except that they were not used for their intended purpose of repairing the Shands' home. Despite demands for repayment of their monies, Kondian has never repaid the Shands. The Shands eventually had their home repaired, but still have liens on it to this date. They have pending a civil action against Kondian to recover the insurance proceeds.
Recommendation Based on the foregoing, it is RECOMMENDED that respondent be found guilty of violating Subsection 475.25(1)(b), Florida Statutes, and that his license number 0302230 be REVOKED. DONE and ORDERED this 16th day of December, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer ~ Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904 ) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16 day of December, 1985. COPIES FURNISHED: Mr. Richard Kondian 300 South Pine Island Road Plantation, FL 33324 Arthur R. Shell, Jr., Esq. P. O. Box 1900 Orlando, FL 32802
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 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, /
Findings Of Fact Respondent Jean P. Pittenger is a licensed general contractor holding license number CGC010323 issued by the Florida Construction Industry Licensing Board and is a licensed real estate broker-salesman, holding license number 0341210. Respondent Lan Thi Tran also known as Marie J Pittenger; is a licensed real estate salesman, holding license number SLO216661. Respondent LeRoy G. Bailey is a real estate broker in the State of Florida, holding license number BKO184114. On or about December 11, 1981, the Respondents Pittenger and Tran solicited and obtained Louis and Lamquet DeWinter and J. M. Demeulemeister as purchasers and joint venturers for the purchase of a certain piece of real property in Collier County, and for the construction of a house thereon. The Respondent Pittenger was the President and qualifying agent for his construction company known as "The Pittenger Company," d/b/a Real Estate Technology Group. Jean Pittenger entered into the joint venture agreement with Louie Philippe DeWinter and the others, as president of that entity. Pursuant to this agreement, DeWinter agreed to purchase a lot at Site 51, Block A, The Pelican Bay, Unit 1, a recorded subdivision in Collier County, Florida, and Respondent Jean Pittenger agreed to construct a first-class residence" on the property for purposes of investment and resale. Respondent Jean Pittenger never qualified his company or the joint venture entity under which he intended to undertake to construct the house with the Florida Construction Industry Licensing Board. In connection with the joint venture, the DeWinters gave to Marilyn Evanish of Coral Ridge-Collier Properties, Inc., a $17,000 earnest money deposit in accordance with the sales contract calling for DeWinter to purchase the property at a total of $170,000. The DeWinters' also paid $15,000 for architectural services and $13,151 for advance construction costs, attorney's fees and the like to Respondents' Pittenger and Tran. The DeWinters' made these disbursements from their own funds in trust and reliance upon the statements, actions and representations of Respondents' Pittenger and Tran to the effect that an architect would be retained to design the residence to be built, and that construction permits would be obtained and construction would `begin at a time certain. Thereafter, on or about April 14, 1982, Pittenger and Tran, unilaterally terminated the professional services of the architect and abandoned the joint venture agreement and the construction of the residence without explanation to their fellow joint venturers, the DeWinters, who were the owners of the lot upon which the residence was to be constructed. Respondent Pittenger never returned to complete construction. This unilateral action by the Respondents resulted in the DeWinters losing the use and benefit of approximately $28,151 which they had paid to those Respondents for architectural services and construction costs, which services were never performed. Louis DeWinter made demand on the Pittengers for return of the funds. Respondents' Pittenger and Tran, however, failed to justify the abandonment of construction of the dwelling, and failed and refused to account for the funds or what services, if any, had been purchased with the funds provided them by DeWinter for development of the property. Respondents' Pittenger and Tran utilized the $13,151 for their own use and benefits or in any event, for a use and benefit not intended by their joint venture partners and clients, the DeWinters. An indefinite portion of the $15,000 attributable to architectural services was apparently paid to the architect engaged to design the house; but in any event, Pittenger and Tran terminated the professional services of the architect before he completed his design and failed to account for or deliver the $13,151 entrusted to them by the DeWinters and intended for initiation of construction. The evidence does not clearly establish what became of the $15,000 advance for architectural services, but the DeWinters never received the benefit of any architectural services purchased. On or about March 24, 1982, Respondents' Jean P. Pittenger and Lan Thi Tran solicited and obtained $5,000 from the DeWinters supposedly for the purpose of purchasing real property in Bonita Springs, Florida, for investment and resale. The DeWinters' gave $5,000 to Respondents' Jean P. Pittenger and Lan Thi Tran in trust and reliance upon the acts, representations and statements of those Respondents which were made in order to induce the DeWinters' to deliver the $5,000 to them. Thereafter, those Respondents refused and neglected to account for or deliver to the Dewinters the $5,000 after demand and they never used that sum to purchase any property on behalf of the DeWinters, their clients. On or about April 22, 1982, Respondents' Pittenger and Tran solicited and obtained a sales contract on a restaurant known as "The Elephant Walk." The property was owned by Hospitality-Condo Inn, Inc. (seller) and was listed by the real estate brokerage known as Tri-Dynamics Realty of Florida, Inc., which was the brokerage of Respondent LeRoy Bailey, who is also the President of Hospitality-Condo Inn, Inc. The property was sold to Gerlanelie, Inc. by Lee Nichols Realty, Inc., the "selling broker," pursuant to that contract. Gerlanelie, Inc., was owned by the DeWinters and Respondent Tran who in effect were the purchasers of the property. Respondent Tran was the real estate salesperson who secured and negotiated the purchase from Mr. Bailey's corporation, at which time she was a salesman for Lee Nichols Realty, Inc., the selling broker. In executing the contract, the DeWinters acted upon the advice and representations of the Pittengers, who represented that the purchase price of $850,000 was a reasonable price and- knowing that the DeWinters were foreign nationals and uninitiated in the legal aspects of real estate transactions in Florida, represented to them that it was illegal under Florida law to counter- offer for less than that purchase price, which representation the DeWinters apparently believed. At the closing, the DeWinters executed documents assigning their beneficial interests back to the sellers Bailey and Hospitality Condo-Inns Inc., as collateral and security for the mortgage and promissory note obligations by which they were to pay the purchase price, to which obligations they both corporately and personally obligated themselves. Additionally, the Respondents' Pittenger and Tran agreed to share and participate in the mortgage payments, by which $728,000 of the purchase price was to be paid, as an inducement to get the Dewinters to enter into the sales contract and close the transaction. In connection with the purchase and renovation of the restaurant, the Respondents, Pittenger and Tran solicited and obtained $104,795 from the DeWinters between May 17, 1982 and July 10, 1982. Respondent Jean Pittenger, who was to do the construction work for the renovation, originally represented that the construction work would cost no more than $75,000. In any event, very little renovation work was completed by the Respondent Pittenger, and he and Respondent Tran abandoned the project, leaving $70,000 in unpaid, recorded mechanics' and materialmens' liens and approximately $30,000 in unpaid bills for food, liquor and other expenses, which were in large part incurred by Respondents' Pittenger, Tran and their invited guests and business associates. This $30,000 amount had to be paid by the DeWinters through a loan and they had to pay the $70,000 liens as well. As a result of this unforeseen, massive expense, the DeWinters were unable to meet their August, 1982, mortgage payment, although in the first full month of operation they had grossed approximately $60,000 with the restaurant operation and it appeared to be a very viable business. Additionally, Respondents' Pittenger and Tran failed to pay their share of the mortgage payments, notwithstanding their promise to the DeWinters that they would participate in making the mortgage payments as inducement to the DeWinters entering into the purchase transaction in the first place. In any event, Respondents' Pittenger and Tran abandoned the project and left the state and were last known to be in the Atlanta, Georgia area. They thus deprived the DeWinters of the vast majority of the $104,795 to have been used to pay for renovation on their restaurant, the $70,000 in addition to that required to discharge the liens and the $30,000 expended to pay various expenses incurred by those Respondents. The former owner and mortgagee, Respondent LeRoy G. Bailey advised the DeWinters during the initial month of operation of the restaurant after the sale, that Pittenger and Tran were not to be trusted, and that they should remove them from management of the restaurant and seek legal counsel, which the DeWinters did. Respondent Bailey additionally cooperated with the DeWinters, attempting to help them make the business a successful operation, but in the ends due to the perfidy of Pittenger and Tran, and the severe financial hardship it caused the DeWinters, the DeWinters were forced to assign all of their right, title and interest in the restaurant back to Respondent Bailey, at the point of the restaurant's mortgage becoming in default, as they had earlier agreed to do. Mr. Bailey employed the DeWinters in a management capacity for a short time after the assignment, but then discharged them and operated the restaurant himself for a time until he ultimately sold it. In any event, it was not established that Bailey entered into any conspiracy or scheme with Pittenger and Tran to attempt to defraud the DeWinters, or otherwise engage in any dishonest dealing by trick, scheme, device or otherwise at the expense of the DeWinters. The financial and legal problems which befell the DeWinters were due to their naive reliance on the representations, promises and statements made by Jean Pittenger and Lan Thi Tran, his wife. All their agreements with Bailey were entered into with counsel present and upon advice of counsel. The DeWinters knew at the closing of the transaction that they had executed an assignment, in the nature of a deed in lieu of foreclosure, back to Bailey, which would be exercised should the mortgage become in default.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of records the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the charges against the Respondent LeRoy G. Bailey be DISMISSED and it is further, RECOMMENDED that all licenses issued by the Construction Industry Licensing Board to Jean P. Pittenger be REVOKED and that he be fined the amount of $5,000. It is further RECOMMENDED that the licenses of Jean P. Pittenger and Lan Thi Tran, also known as Marie J. Pittenger, issued by the Florida Real Estate Commission be REVOKED, and that they each be fined in the amount of $6,000. DONE and ENTERED this 20th day of November, 1985 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 1985. APPENDIX TO RECOMMENDED ORDER, CASE NOs. 84-0311 AND 84-1112 Petitioner's Proposed Findings of Fact Accepted. 4. Accepted. Accepted. 5. Accepted. Accepted. 6. Accepted. Respondent's Proposed Findings of Fact Accepted. 5. Accepted. Accepted. 6. Accepted. Accepted. 7. Accepted. Accepted. 8. Accepted. COPIES FURNISHED: James H. Gillis, Esquire Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Wesley A. Lauer, Esquire ACKERMAN, BAKST, GUNDLACH, LAUER & ZWICKEL, P.A. 515 North Flagler Drive Orlando, Florida 32802 Jean P. PITTENGER and Lan Thi Tran 235 Tallwood Terrace Roswell, Georgia 30075 James Linnan Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Harold Huff, Executive Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are made: At all times material to this proceeding, Respondent Joseph W. Miklavic was licensed as a certified building contractor in the state of Florida, holding license number CB C006615, qualifying Security Home d/b/a Security Homes of Clearwater (Security). Since March, 1989 the Respondent's license has been on active status qualifying, Individual. At all times material to this proceeding, Respondent was a salaried employee of Security. Ronald MacLaren was president of Security and also sole owner and president of Yankee Construction Inc. d/b/a Olympic Homes of Citrus County (Olympic). In accordance with a management agreement between Security and Olympic, the Respondent was assigned by Ronald MacLaren to oversee the operation of Olympic. Olympic was licensed to engage in construction having been qualified by Wilmon Ray Stevenson through license number RB A035005 which was in effect from June, 1987 until October, 1988 when Stevenson filed a change of status application with the Construction Industry Licensing Board (Board) requesting license number RB A035005 be changed to inactive status qualifying, Individual. While this application was not acted upon until February, 1989, the Board considered license number RB A035005 in effect as qualifying Olympic only until October, 1988. Effective September 26, 1988, the name of Yankee Construction, Inc. was changed to Rivercoast Homes, Inc. (Rivercoast) which apparently ceased doing business under the fictitious name of Olympic Homes of Citrus County. On September 19, 1988 Wilmon Ray Stevenson advised the Citrus County Building Department that he was no longer the "qualifier for Olympic Homes". Around this same time, the Respondent, Ronald MacLaren and the management of Olympic became aware that Stevenson would no longer be the qualifying agent for Olympic. There was no evidence that Rivercoast Homes, Inc. a/k/a Yankee Construction Inc. ever advised the Board of the name change or the termination of Stevenson as its only qualifying agent affiliation in accordance with Section 489.119(2)(3), Florida Statutes. Nor was there any evidence that Rivercoast was ever qualified by another qualifying agent pursuant to Section 489.119, Florida Statutes. In accordance with the agreement between Security and Olympic, referred to in Finding of Fact 4, the Respondent continued to oversee the Rivercoast operations until sometime around December 1988 when all of MacLaren's operations in Florida, including Security, closed down. Under Security's agreement with both Olympic and Rivercoast, Respondent's duties included working with management and subcontractors to develop construction schedules and to advise Ron MacLaren of the financial aspect of the company so that MacLaren could make funds available to pay subcontractors, etc. Respondent did not have any control over the finances of either Olympic or Rivercoast such as receiving, depositing or disbursing funds. Either in late September or early October of 1988, Respondent approached Larry Vitt, Citrus County Building Department, as to whether the Respondent could pull permits under his license for Olympic or Rivercoast. Vitt advised Respondent that unless he qualified the company he could not pull permits for that company under his license. Respondent advised MacLaren that Rivercoast would have to have a qualifying contractor in order to engage in contracting. MacLaren did not get Rivercoast qualified to engage in contracting at anytime. Respondent did not qualify Rivercoast under his contractor's license at anytime. Sometime around the last of September or the first part of October of 1988, Respondent became aware that Rivercoast a/k/a Yankee Construction, Inc. was no longer qualified under Section 489.119, Florida Statutes, and therefore, not authorized under law to engage in contracting. On August 16, 1988 Ernest and Marjorie Ellison met with Ken Smith and Gloria Stevenson of Olympic to discuss Olympic building the Ellisons a home. The Ellisons picked out a floor plan at this time and gave Olympic a $100.00 deposit to hold the price until a contract could be executed. On October 1, 1988 the Ellisons met again with Ken Smith and was introduced to the Respondent who gave them a brief run down on the status of the company and advised them that the company was in "good shape". At this meeting, Ken Smith advised the Ellisons of certain things that were required of them before construction began, including a survey. On October 31, 1988 the Ellisons signed a contract with Rivercoast to construct their home. In his capacity as a representative of Security, under the agreement between Security and Rivercoast, the Respondent signed this contract on the line designated Contractor/Representative. There is insufficient evidence to show that Respondent intended to sign the contract as contractor of record as the term contractor is defined in Section 489.105(3), Florida Statutes (Supp. 1988), and thereby impose upon himself the responsibility for the entire project. The contract price was $44,634.00. On November 1, 1977 the Ellisons delivered to Rivercoast a check for $4,363.40 which along with the $100.00 deposit paid in August represented a total down payment of $4,463.40. Respondent did not personally receive any funds from the Ellisons for Rivercoast or receive any funds for himself from the Ellisons under this contract. No permit was ever pulled or any work performed by Rivercoast under the aforementioned contract. Ernest Ellison met with Respondent on November 21, 1988 and requested that the contract be cancelled. Under the authority granted Respondent through the agreement between Security and Rivercoast, the Respondent and Ernest Ellison signed the contract as being cancelled on November 21, 1988. Although the Ellisons were offered an opportunity by the Respondent to transfer their deposit of $4,463.40 to Security and enter into a contract with Security to build their house, they declined and contracted with another contractor. On the date the contract was cancelled, Respondent advised Ernest Ellison that the down payment of $4,463.40 would be reimbursed. Although Respondent attempted to obtain a refund for the Ellisons from MacLaren and was advised by MacLaren that a refund was forthcoming, no refund of the Ellison's down payment was ever made by Rivercoast, Ronald MacLaren, the Respondent or anyone else. Respondent was aware during the negotiation and at the time the Ellison's contract was executed, that Rivercoast was not authorized by law to engage in contracting. However, there is insufficient evidence to show that Respondent ever advised the Ellisons that he would be the contractor responsible for building their home under the contract with Rivercoast or that he would be the contractor to pull the necessary permits for construction of their home. There is no evidence that Respondent had any financial interest or owned any stock or held any office in Rivercoast a/k/a Yankee Construction, Inc. Around October 1, 1988, after Stevenson had withdrawn as qualifying agent for Olympic, Rivercoast was no longer authorized to engage in the practice of contracting since it had not been qualified by another qualifying agent in accordance with Section 489.119, Florida Statutes.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the demeanor of the witnesses and the disciplinary guidelines set out in Chapter 21E- 17, Florida Administrative Code, it is RECOMMENDED: That the Board enter a final order finding Respondent guilty of violating Section 489.129(1)(e), Florida Statutes, and for such violation it is recommended that the Board assess the Respondent with an administrative fine of $1,000.00. It is further recommended that Counts I, II, IV and V be dismissed DONE and ORDERED this 27th day of November, 1990, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of November, 1990. APPENDIX CASE NO. 90-2046 The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Rulings of Proposed Findings of Fact Submitted by the Petitioner Not necessary. Adopted in Finding of Fact 1. Adopted in Finding of Fact 7 but modified. Adopted in Findings of Fact 4, 8, and 10. Adopted in Findings of Fact 9 and 14 but modified. Adopted in Finding of Fact 15. Adopted in Findings of Fact 16 and 17 but modified. Adopted in Findings of Fact 17 and 18. Rulings of Proposed Findings of Fact Submitted by Respondent 1. - 2. Not material or relevant. Adopted in Findings of Fact 1, 7 and 20. Adopted in Finding of Fact 4. Adopted in Findings of Fact 4 and 8. Not material or relevant. Adopted in Finding of Fact 19. - 10. Adopted in Finding of Fact 15. Restatement of testimony not a Finding of Fact but see Finding of Fact 13. Adopted in Finding of Fact 15. Not material or relevant. Adopted in Finding of Fact 15. - 16. Not material or relevant. Restatement of testimony not a Finding of Fact but see Findings of Fact 13, 14 and 15. Adopted in Finding of Fact 19 but modified. Not material or relevant. Adopted in Finding of Fact 4. Restatement of testimony not a Finding of Fact but see Finding of Fact 4. Adopted in Finding of Fact 9. Adopted in Finding of Fact 4 but modified to show license effective until October, 1988 rather than February, 1989. Restatement of testimony not a Finding of Fact but see Findings of Fact 1, 7 and 20. - 26. Not material or relevant. Adopted in Finding of Fact 4 but modified to show from June, 1987 until October, 1988. - 29. Adopted in Findings of Fact 5 and 13. Restatement of testimony not a Finding of Fact but see Finding of Fact 4. - 32. Adopted in Findings of Fact 4, 8 and 9 but modified. Not material or relevant. - 36. Adopted in Findings of Fact 4, 8, and 9 but modified. Adopted in Finding of Fact 10. Not material or relevant. - 40. Adopted in Findings of Fact 8, and 17, respectively. Rejected as there is no substantial competent evidence in the record to show any other contract than the one Respondent signed on October 31, 1988. Not material or relevant. Not supported by substantial competent evidence in the record. Not material or relevant. Adopted in Finding of Fact 18. Restatement of testimony not a Finding of Fact but see Finding of Fact 9. - 50. Not necessary to the conclusion reached since this matter was covered in the Preliminary Statement wherein the motion was denied. COPIES FURNISHED: G. W. Harrell, Senior Attorney Department of Professional Regulation 1940 N. Monroe Street, Suite 60 Tallahassee, FL 32399-0750 Geoffrey Vining, P.A. 2212 South Florida Avenue Suite 300 Lakeland, FL 33803 Daniel O'Brien, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 Kenneth D. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint and, if so, what disciplinary action should be taken against him.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent has been a Florida-licensed general contractor (holding license number CGC 062108) since February 5, 2001. At all times material to the instant case, JQC held a certificate of authority authorizing it to engage in contracting in Florida through a qualifying agent. At all times material to the instant case, Respondent was the primary qualifying agent for JQC. On or about May 10, 2007, JQC, through Respondent, entered into a written contract (Building Contract) with Marienne Cavalier, agreeing, for $95,000.00, to construct an addition to the Miami, Florida residence (Residence) of Ms. Cavalier and her husband, Wilfrid Pierre-Louis (Project). The Building Contract provided as follows: For Architectural, Engineering, Permit Expediting and Construction Services in the sum of Ninety Five Thousand Dollars ($95,000.00) based on the following criteria: Architectural services to be provided consist of the following: Bringing into compliance the existing residence with the Zoning & Building Department[']s Requirements for the City of North Miami Beach, in the State of Florida. Complete set of working drawings to include, Design Development, Site Plan/Floor Plan in compliance with the "Florida Building Code" & the Florida Accessibility Code (Handicapped). Exterior Elevations (Facades). Wall Sections & details as required to assure design intent and constructability. Engineering services to be provided consist of the following: Foundation plan and specifications. Plumbing plan and specifications. Electrical plan and specifications. Mechanical plan and specifications. Roof framing plan and specifications. Air conditioning system calculations as per the State of Florida. Home Energy calculations as per the requirements of the State of Florida. Hurricane Wind Load calculations as per the requirements of the Florida Building Code. Permit Expediting services to be provided consist of the following: Submitting of Plans and Application to the Building Department for processing. Going to the Building Department to pick up Plans each time there are revisions to be made, delivering the Plans to the Architect/Engineer for review and re-submitting the Plans to the Building Department. Coordinating plan review between Architect/Engineer and Building Department so as to obtain the Building Permit in a reasonable amount of time. Construction services to be provided consist of the following: Labor and materials included Relocating existing front door Entrance and construction of new Terrace. Demolition of existing Bathroom. Extension of kitchen wall. Relocation of existing Air Conditioning Unit and Duct Work. Demolition of Existing Partitions and Installation of new Partition work to include Dining Room, Living Room and Florida Room. Raising of concrete floor Slab at existing addition. Installation of tiles at new concrete floor. Construction of new Master Bedroom, Master Bathroom and Walk-In Closet. Construction of new Laundry Room. Construction of new Office Room. Demotion of existing flat roof addition. Raising existing tie-beam of flat roof to match the height of the house. Construction of new roof. Installation of new Doors and Windows. New concrete sidewalk at rear of house. Stucco and Painting of new Addition. Painting of Interior walls. Insulation of new Addition Walls and Ceiling. Mechanical work to existing addition as per plans. Plumbing work to existing addition as per plans. Electrical work to existing addition as per plans. Trash Container and Disposal of construction debris. Portable Toilet. Items not included: New Air Conditioner if required by Building Department. Any work related to the existing Septic Tank system. Driveway. Landscaping. Terms of Agreement First Payment (Initial Down Payment) $3,000.00 Second Payment $4,000.00 (Due at Submittal of Plans Building Department) to the Third Payment $24,000.00 (Due at Approval of Construction Permit) Fourth Payment $20,000.00 (Due after First Inspection) Fifth Payment (Due at 50% of $20,000.00 Work Completion) Sixth Payment (Due at 75% of $20,000.00 Work Completion) Seventh Payment $4,000.00 (Due upon Final Inspection) Total cost of Work $95,000.00 Items not specified in this agreement are not part of this contract. Fees for Permits and other Inspections (if required) are not included in the indicated cost above. There was no written statement in the Building Contract explaining a consumer's rights under the Construction Industries Recovery Fund, as then required by Section 489.1425, Florida Statutes (2006). JQC commenced work on the Project after the Building Contract was signed by Respondent and Ms. Cavalier. There were expenses that JQC incurred in connection with the Project that were "unexpected" and "not anticipated," including those related to the demolition work required by the Building Contract. In addition to doing work required by Building Contract (Project Work), JQC did extra work on the Residence (Extra Work), at Mr. Pierre-Louis's request, resulting in further "additional expenses being incurred that were not [contemplated] in the original contract." Respondent (acting on behalf of JQC) and Mr. Pierre-Louis verbally agreed that this Extra Work would be undertaken by JQC, but nothing was ever reduced to writing.2 There came a time, after he and his wife had made several payments to JQC, that Mr. Pierre-Louis became dissatisfied with the pace of the JQC's efforts. Mr. Pierre- Louis confronted Respondent and erroneously "accused [Respondent] of stealing the money" he and his wife had paid (instead of using it to do the work JQC had agreed to do on the Residence). In fact, "the money was being spent on the [improvements to the Residence]." Mr. Pierre-Louis "even called the police on [Respondent]." Respondent was interviewed by a police detective, who, following the interview, told Respondent that "this seem[ed] to be a civil case," not a "criminal" matter. No criminal charges were ever filed against Respondent. To avoid any similar misunderstanding on Mr. Pierre- Louis's part in the future, Respondent told Mr. Pierre-Louis that he and his wife should not give Respondent "a single dollar," but they, instead, should themselves directly pay the workers JQC had working on the job site and also "buy the necessary materials." In or around June 2009, JQC temporarily stopped working on the Residence because "there wasn't any money available" to pay for labor and materials. As of the date of the stoppage of work, approximately 50% of the Project Work and Extra Work had been completed, and Ms. Cavalier and Mr. Pierre-Louis had made the following payments for the Project Work and Extra Work: payments by check to JQC and Respondent, totaling $86,478.85; cash payments to Respondent, totaling $1,553.62; payments by check to JQC workers, totaling $7,835.00; cash payments to JQC workers, totaling $3,600.00; $1,000.00 for concrete; $600.00 for tar paper; and $500.00 for plywood. Respondent explained to Mr. Pierre-Louis that JQC was stopping work on the Residence because the money had "run out," and he assured Mr. Pierre-Louis that JQC would resume the work "whenever [Mr. Pierre-Louis] ha[d] some money available," an assurance that was sincerely made. Mr. Pierre-Louis, in turn, told Respondent that it was his intention to secure the funds necessary to finish the work. Three months later, when Mr. Pierre-Louis "did get some money," he let Respondent know. JQC thereupon began working on the Residence again (as Respondent had promised it would),3 and it has continued to work on the Residence (doing the Project Work and Extra Work) on an ongoing basis (with Ms. Cavalier and Mr. Pierre-Louis paying for labor and materials,4 as they had done immediately before the work had stopped). While Ms. Cavalier and Mr. Pierre-Louis have paid the workers doing the Project Work and Extra Work, these workers have at all times been under Respondent's supervision. As of the date of the final hearing in this case, at least 90% of the Project Work and Extra Work had been completed. Undertaking the Project Work and Extra Work has been a money-losing venture for JQC and Respondent. Petitioner has incurred a total of $297.10 in investigative and prosecutorial costs in connection with the instant case (excluding costs associated with any attorney's time).
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 One and Two of the Administrative Complaint; (2) finding Respondent guilty of violating Section 489.129(1)(i), Florida Statutes, by failing to comply with Section 489.1425, Florida Statutes, as alleged in Count III of the Administrative Complaint; (3) fining him $375.00 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 6th day of December, 2010, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 6th day of December, 2010.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are made: At all times material to this proceeding, Respondent Wilmon Ray Stevenson was licensed as a registered building contractor in the state of Florida, holding license numbers RB 0035005 and RB A035005. License number RB 0035005 was issued on an active status qualifying an Individual in March 1987 and is still in effect. License number RB 0035005 replaced license number RR 0035005 issued in December, 1980. License number RB A035005 was issued on an active status qualifying Yankee Construction, Inc. d/b/a Olympic Homes of Citrus County (Olympic) in June 1987 and replacing license number RR A035005 issued in August 1981. In October, 1988 Respondent submitted a change of status application which was not acted upon by Petitioner until February, 1989 when it was deleted. However, Petitioner's file (Petitioner's Exhibit 1, page 2) indicates the license was in effect only until October, 1988. The Marion County Building Department was advised of this status change in September, 1988. Findings As To Case No. 90-1637 On April 16, 1988, Frank and Margaret Orkwis entered into a contract with Olympic to construct a home for $37,900 which was later modified, increasing the contract price to $39,363.00. On July 26, 1988 a permit for the Orkwis job was obtained from the Marion County Building Department in accordance with the Respondent's letter dated January 25, 1985 authorizing certain individuals to "pull" permits on his license. There was a total of $27,583.20 paid to Olympic on the Orkwis contract which included $27,483.20 paid by draw schedules and $100.00 as a down payment. Olympic stopped work on the Orkwis home sometime around November 27, 1988 and failed to complete the work under the contract. Olympic gave no notice to Orkwis that it intended to terminate the work on the Orkwis job. In fact, Olympic kept putting Mrs. Orkwis off about completing the job until sometime in late January, 1989 or early February, 1989 when she decided to get a permit and complete construction. Olympic terminated the Orkwis job without just cause. The following liens were recorded against the Orkwis property for the failure of Olympic to timely pay for materials and labor furnished to Olympic for the Orkwis's job in accordance with Orkwis contract: (a) Florida A/C Sales and Services, Inc., filed December 13, 1988 and; (b) Florida Forest Products, Inc. filed December 15, 1988. The labor and materials had been furnished between October 24, 1988 and November 22, 1988. Olympic was contacted by Mrs. Orkwis concerning the liens, with no response. However there was insufficient evidence to establish that the liens had not been removed from the property, by payment or bond, within 30 days after the date of such liens. Sometime in early 1989, Mrs. Orkwis obtained a permit and she and her husband completed the home. Although Mr. Orkwis had obtained an estimate of $27,050.00 from a contractor to complete the home, she and her husband invested 466.5 hours of their time and $10,340.00 for materials to complete the home. In addition to the material, a reasonable amount for labor to complete the home would be $10,000.00. Findings As To Case No. 90-1889 John J. and Josephine Grillo and Madeline Chapman entered into a contract with Olympic for construction of a home on June 11, 1987. A permit was obtained for the Grillo/Chapman home under Respondent's license. The Grillo/Chapman home was completed and a certificate of occupancy issued January 13, 1989. Olympic was paid in full under the contract. Before the expiration of the one-year warranty under the contract, Olympic was advised of certain problems with the construction which Olympic attempted to correct. It is unclear whether the problems were satisfactorily corrected by Olympic but it appears that the only complaint not resolved was a water stain on the carpet that was the result of water seeping in under a door. Respondent was not aware of these problems until after the expiration of the one-year warranty and upon learning of the problems, commented that he was not obligated since the warranty had expired. There was insufficient evidence to establish that the problems were not corrected in accordance with contract. Findings As To Case No. 90-1890 Veronica McPherson entered into a contract with Olympic on March 1, 1989 to construct a home for the contract price of $36,450.00 which was later modified increasing the contract price to $37,775.00. All permits were obtained under the Respondent's license pursuant to a letter dated January 15, 1985 authorizing certain individuals to "pull" permits under Respondent's license. McPherson paid $26,442.50 to Olympic pursuant to a draw schedule in the contract as the home was being constructed. Additionally, McPherson paid a $100.00 down payment. All work performed by Olympic pursuant to the McPherson contract was prior to November 22, 1988. The exact date of termination of work is uncertain. Olympic notified McPherson that it had terminated work and would not complete construction of the home. The exact date of this notification is uncertain. There is no evidence that notice was not given within 90 after termination of work. Olympic terminated work without just cause. McPherson paid a roofing contractor $998.00 to complete the roof on her unfinished home in order to protect the interior. McPherson was financially unable to complete construction of the home. A reasonable estimate to complete construction of the McPherson home at the time work ceased would be $20,000.00. On December 15, 1988 Florida Forest Products, Inc. recorded a lien on December 15, 1988 against the McPherson property for building materials furnished to the McPherson job on order of Olympic on October 24, 1988 for construction of the home pursuant to the McPherson contract in the amount of $1,450.08. There was insufficient evidence to establish that this lien had not been removed from the McPherson property, by payment or bond, within 30 days after the date of such lien. There were three other claims of liens for labor and materials furnished to the McPherson job on order of Olympic between October 19, 1988 and December 2, 1988 for construction for the home pursuant to the McPherson contract as follows: (a) Florida A/C Sales and Services, Inc. dated December 8, 1988 for $1,059.00; (b) Masons Concrete of Crystal River dated December 14, 1988 for $354.97 and (c) Panning Lumber Company, a Division of Wheeler Consolidated, Inc. for $2,284.13. There is no evidence that any of the above liens were ever recorded against the McPherson property. Likewise, there is no evidence to establish that these liens had not been removed from the McPherson property, by payment or bond, within 30 days after the date of such lien, if in fact they were recorded. General Findings Respondent was advised by Larry Vitt in February, 1988 that Olympic was having financial problems. Respondent never supervised the financial aspects of Olympic. Respondent did not participate in the contract process or supervision of the construction of homes contracted to be built by Olympic. More specifically, he did not participate in the contract process or the supervision of the construction of the Orkwis, McPherson or Grillo/Chapman homes. Respondent's main purpose in being involved with Olympic was to use his license to qualify Olympic and to contract all of Olympic's concrete block work. In March, 1989 Respondent advised the Marion County Building Department that no one was authorized to "pull" permits under his license. However, at no time did Respondent withdraw the permits for the Orkwis and McPherson jobs that had been issued under his license. The record is clear that Respondent did not understand his relationship with Olympic nor did he understand the responsibility he incurred when he used his license to qualify Olympic. However, his inexperience or ignorance in this regard does not relieve him of his responsibility to those whose homes were built or not completely built pursuant to a permit issued under his license.
Recommendation Having considered the foregoing Findings of Facts and Conclusions of Law, the evidence of record, the demeanor of the witnesses and the disciplinary guidelines set out in Chapter 21E-17, Florida Administrative Code, it is RECOMMENDED: That the Board enter a final order finding Respondent guilty of violating Section 489.129(1)(k) and (m), Florida Statutes, and for such violations it is Recommended that the Board assess the Respondent with an administrative fine of $2,500.00. It is further Recommended that Counts I and II for the Administrative Complaint in Case Nos. 90-1637, 90-1889, and 90-1890 be Dismissed. DONE and ORDERED this 24th day of October, 1990, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-1637 The following constitute my specific rulings pursuant to Section 120.59(20, Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Rulings of Proposed Findings of Fact Submitted by the Petitioner 1. Covered in Conclusions of Law. 2.-8. Adopted in Findings of Fact 1, 2, and 3. 4.-6. Adopted in Findings of Fact 15, 16, and 17, respectively. 7. Adopted in Findings of Fact 19 and 20, but modified. 8.-12. Adopted in Findings of Fact 18, 4, 5, 6, and 8, respectively. 13.-14. Adopted in Findings of Fact 9 and 10, respectively, but modified. Adopted in Findings of Fact 21 through 25. Restatement of testimony; not stated as a Finding of Fact but see Findings of Fact 10 and 14. Adopted in Findings of Fact 13 through 15. Adopted in Findings of Fact 16, but modified. Rulings of Proposed Findings of Fact Submitted by Respondent 1. Covered in Preliminary Statement. 2.-8. Adopted in Findings of Fact 1, 2, 3, 3, 15, 15, and 16, respectively. 9. Adopted in Findings of Fact 19 and 20. 10.-11. Adopted in Findings of Fact 18 but modified. Adopted in Finding of Fact 4. Adopted in Findings of Fact 4 and 6. Adopted in Finding of Fact 5. Adopted in Findings of Fact 8 and 9. 16.-20. Adopted in Findings of Fact 7, 7, 11, 13 and 14, respectively, but modified. Not material. Adopted in Finding of Fact 3, but modified. Not material. Copies furnished to: Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 G. W. Harrell, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Fred A. Ohlinger, Esquire P.O. Box 1007 Beverly Hills, FL 32665
The Issue Whether disciplinary action should be taken against Respondent’s license to practice contracting, license number CGC 060878, based on violations of Subsection 489.129(1), Florida Statutes (2005)1, as charged in the three-count Administrative Complaint filed against Respondent in this proceeding. Whether Respondent violated Subsection 489.129(1)(g)2., Florida Statutes (Count I) by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer; Subsection 489.129(1)(j), Florida Statutes (Count II) by abandoning a construction project in which the contractor is engaged or under contract as a contractor, and Subsection 489.129(1)(m), Florida Statutes (Count III) by committing incompetency or misconduct in the practice of contracting. And, if so, what discipline should be imposed, pursuant to Section 489.129, Florida Statutes, and Florida Administrative Code Rule 61G4-17.002.
Findings Of Fact Based on the evidence and testimony of the witnesses presented and the entire record in this proceeding, the following facts are determined: At all times material, Respondent was a certified general contractor, having been issued license number CGC 060878 by the Florida Construction Industry Licensing Board (CILB). At all times material, Respondent was the qualifier of Epic Building and Development Corporation, a Florida Corporation, with its principal place of business in the Fort Myers area. On February 22, 2005, Respondent entered into a contract with Edward Dueboay to rebuild a house owned by Dueboay and his wife, located at 22299 Laramorre Avenue, Port Charlotte, Florida, which had been distroyed some months earlier by Hurricane Charlie. The price of the contract was $150,000.00. On or about March 24, 2005, Dueboay gave Respondent a check in the amount of $3,500 payable to Contractors Marketing America, Inc. (CMA, Inc.), for the engineering plans. On May 6, 2005, Dueboay paid Respondent $5,000, as an advance on the contract. Respondent did not obtain the building permit from the Charlotte County Building Department until December 12, 2005, and work on the project did not start until January 2006. Because of the enormous damage caused by the hurricane, contractors in the area were flooded with jobs, and significant shortages in building materials also occurred. On January 13, 2006, Respondent billed Dueboay $11,000.00 for land clearing and filling, $750.00 for permit fees, and $3,200.00 for a temporary electric pole. The bill gave credit for the $5,000.00 Dueboay paid on May 6, 2005, and showed a balance due of $10,000.00. On January 20, 2006, Dueboay paid the above-mentioned invoice, by check to Respondent, in the amount of $10,000.00. Respondent paid $4,600.00 to the sub-contractor who performed the lot clearing and filling, but billed Dueboay $11,000.00. However, the contract provided for a $2,500.00 allowance for clearing and filling, and a $750.00 allowance for permit fees. Section 11.c of the contract also provided that Respondent shall provide and pay for all materials and utilities and all other facilities and services necessary for the proper completion of the work on the project in accordance with the contract documents. To pay for the remainder of the contract, Dueboay negotiated and obtained a loan in the total amount of $153,000.00 from Suncoast Schools Federal Credit Union (Credit Union). On March 21, 2006, Dueboay and the Credit Union signed the construction loan agreement. On March 21, 2006, Respondent was paid $18,235.00 by the Credit Union for the pre-cast walls used in the erection of the structure. On May 11, 2006, Respondent finished Phase I of the project. On May 15, 2006, Respondent received $11,350.00 as the first draw by the Credit Union. On June 20, 2006, Respondent finished Phase II of the project. On June 20, 2006, Respondent was paid $26,335.00 as the second draw by the Credit Union. From June 2006 to November 2006, Respondent performed no work on the house under the Dueboay contract. Because the roof was not completed, mold appeared on and in the house. On August 21, 2006, Dueboay paid $109.95 to America’s Best Cleaning and Restoration, Inc., for mold removal. On or before September 13, 2006, Dueboay hired an attorney to clarify billing charges related to lot filling, permit fees and the temporary electric pole, and to prompt Respondent to resume work abandoned since June 2006. Under the Credit Union Loan Agreement, after several extensions, the completion of the Dueboay home should have taken place on or before October 17, 2006. On October 18, 2006, the Loan Agreement extension expired, and Dueboay was required to pay mortgage and interest on the loan, even though construction of the house was not completed. On November 10, 2006, Dueboay’s attorney sent Respondent a third letter advising him that the project was stagnating; that after eighteen months since the signing of the contract, the roof of the house was not yet completed; and that, under the contract, Respondent was obligated to substantially complete all work in a reasonable time after construction had started. On or about December 1, 2006, the building permit expired and had to be renewed. At some point after November 10, 2006, Respondent resumed work and finished Phase III on March 8, 2007, with the exception that some doors were not installed, including the garage door. Respondent submitted a sworn Contractor’s Affidavit stating that all subcontractors had been paid, and that there are no liens against Dueboay’s property. However, Dueboay had to pay Charlotte County Utilities $224.93 on October 29, 2007, and $240.00 to Pest Bear, Inc., on May 7, 2008, to avoid two liens being recorded against his property. From March 8, 2007, until July 2007, Respondent performed no work under the contract. David Allgood, another general contractor, was hired by Respondent to complete some of Respondent’s projects in the Port Charlotte area, including the Dueboay house. However, Dueboay was not informed of this arrangement. There was no contract directly between Dueboay and Allgood. On September 4, 2007, relying on advice from his attorney, Dueboay changed the locks to the house, with the intent to keep Respondent and his employees off his property. Shortly thereafter, employees of general contractor David Allgood broke the front lock and entered the property in September 2007, without Dueboay’s permission. Dueboay, again, following advice from this attorney, called law enforcement to eject Allgood’s employees from his property. Allgood attempted to invoice Dueboay for installing some doors on the house that Respondent had previously paid for, and which Respondent should have installed. However, following advice from his attorney, Dueboay resisted Allgood’s request to pay him for the doors. Respondent was paid a total of $122,246.03 for the Dueboay project, before the contract was cancelled. Respondent did not complete work from Phases IV and V, with the following exceptions: he did some work on the driveway, painted the interior, did some cabinet work, exterior trim and soffit, siding, stucco, and some interior trim. Therefore, Respondent completed, at best, three out of seven operations from Phase IV (interior and exterior paint, interior trim and doors, and exterior trim and soffits) and worked on, but did not complete, stucco and some cabinets. From Phase V, Respondent only worked on the driveway and sidewalks, which had to subsequently be repaired. Dueboay hired Storybook Homes, Inc. (Storybook), to complete work abandoned by Respondent from Phases IV and V. Storybook was hired to complete work as follows: install cabinets and vanities, install ceramic tiles, repair stucco, install custom tub, all electrical and plumbing per code, complete exterior paint, install hardware, sinks and faucets in the baths and showers, complete floors, install all appliances, complete air conditioning and heat, and obtain the certificate of occupancy. The amount of $122,246.03 paid to Respondent at the time when Respondent abandoned the Dueboay project represents 81 percent of the total contract price of $150,000.00. Respondent completed, at best, 75 percent of the job by completing only three out of seven operations of Phase IV and working on some additional operations that needed to be redone, like the driveway, sidewalks and stucco. Due to Respondent’s failure to perform work on time, Dueboay incurred $5,116.42 in additional expenses, as follows: $109.95 on August 21, 2006 (mold removal), $360.00 on November 23, 2006 (legal fees), $175.00 on June 4, 2007 (legal fees), $375.00 on September 4, 2007 (legal fees), $224.93 on October 29, 2007 (to satisfy lien), $668.34 on November 3, 2007 (legal fees), $200.00 on April 4, 2008 (legal fees), $1,151.05 on May 7, 2008 (to correct work performed deficiently by Respondent), $390.00 on May 7, 2008 (to repair driveway), $240.00 on May 7, 2008 (to avoid lien), and $412.00 on May 12, 2008 (to install safe room door that Respondent failed to install). The total investigative costs of this case to Petitioner, excluding costs associated with any attorney’s time, for Petitioner’s case no. 2005-028129 was $276.18.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board render a Final Order as follows: Finding Respondent guilty of having violated Subsection 489.129(1)(g)2., Florida Statutes, as alleged in Count I of the Administrative Complaint, and imposing as a penalty an administrative fine in the amount of $1,500. Finding Respondent guilty of having violated Subsection 489.129(1)(j), Florida Statutes, as alleged in Count II of the Administrative Complaint, and imposing as a penalty an administrative fine in the amount of $2,500. Finding Respondent guilty of having violated Subsection 489.129(1)(m), Florida Statutes, as alleged in Count III of the Administrative Complaint, and imposing as a penalty an administrative fine in the amount of $1,500. Respondent’s license to practice contracting (CGC 060878) be suspended for a period of three months, followed by a period of probation for two years, upon such conditions as the Board may impose, including the payment of costs and restitution. Requiring Respondent to pay financial restitution to the consumer, Edward Dueboay, in the amount of $5,116.42 for consumer harm suffered due to payment of additional expenses. Requiring Respondent to pay Petitioner’s costs of investigation and prosecution, excluding costs associated with an attorney’s time, in the amount of $276.18. DONE AND ENTERED this 21st day of July, 2009, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 21st day of July, 2009.
The Issue Whether Respondent committed the offenses alleged in the Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact At all times relevant to this proceeding, Respondent has been licensed by the Construction Industry Licensing Board (CILB) as a certified contractor and has held license CGC 13316. At all times relevant to this proceeding, Coastal Structures, LCC (Coastal Structures) has possessed a certificate of authority as a contractor qualified to do business in the State of Florida and has held license QB39088. At all times relevant to this proceeding, Respondent has been the primary qualifying agent for Coastal Structures. At times relevant to this proceeding, Ruth Schumacher was the owner of a residence located in Martin County at 2880 Southwest Brighton Way, Palm City, Florida (the subject property). Ms. Schumacher passed away on June 17, 2008. Prior to her mother’s death, Ms. Macey assisted Ms. Schumacher with her affairs. After her death, all of Ms. Schumacher’s estate, including the subject property, was placed in a trust with Ms. Macey as the trustee. In late October 2005, a screened porch on the subject property was damaged by Hurricane Wilma. In November 2005, Ms. Macey, on behalf of her mother, contacted Coastal Structures about making repairs to the damaged porch. In November 2005, David and Donna Williams, on behalf of Coastal Structures, visited the subject property, made temporary repairs to the damaged porch, and discussed with Ms. Macey and Ms. Schumacher the replacement of the porch. On November 28, 2005, Coastal Structures entered into a written contract with Ms. Schumacher to remove the damaged porch and to replace it with a new screened porch over the existing concrete slab. The written contract failed to contain a written statement explaining to Ms. Schumacher her rights under the Florida Homeowners’ Construction Recovery Fund as required by Section 489.1425(1), Florida Statutes. When Ms. Schumacher contracted with Coastal Structures on November 25, 2005, her insurance company had accepted her claim, but had not completed the damage assessment. The scope of the work was to be based on the allowances provided in the insurance adjuster’s statement of loss once the damage assessment was completed. The insurance company’s damage assessment for the damaged porch was completed December 3, 2005. The total replacement cost was valued at $21,190.10, with a deductible of $2,960.00, for a net claim value of $18,230.10. On March 8, 2006, Respondent submitted to the Martin County Building Department an application for a permit for a screen enclosure over an existing slab. The Martin County Building Department approved the permit application and issued permit number BSCE-2006030334 (the subject permit) to Respondent on March 8, 2006. The subject permit required one inspection, which was to be a final inspection after the completion of the work. Respondent failed to request the required inspection and the subject permit expired. After the execution of the contract with Coastal Structures and the completion of the damage assessment by the insurance company, Ms. Schumacher and Coastal Structures agreed to change the scope of the work from a screened enclosure to a glass enclosure with windows. Ms. Schumacher and Coastal Structures did not execute a written change order or any other written amendment to the written contract. Coastal Structures completed its work on the porch in May 2006. Pursuant to its verbal agreement with Ms. Schumacher, Coastal Structures replaced the damaged screen porch with a glass enclosure with windows. On May 17, 2006, Ms. Schumacher paid Coastal Structures the sum of $25,363.00 in full payment for the work it had done. After payment had been made, Ms. Macey observed several problems with the project including leaks from the ceiling panels and tile work that was not flush with the bottom of the exterior doorway, which allowed water to seep into the structure. In response to complaints from Ms. Macey, Mr. Williams returned to the subject property in May 2006 and applied caulking to the ceiling and along the floor of the structure. That work did not resolve the problems with the project. Ms. Macey made further complaints to Mr. Williams, but he did not respond to those complaints. Ms. Macey and Ms. Schumacher asked Palm City Screening, LLC (Palm City Screening) to determine the problems with the project and to provide an estimate to repair those problems. On February 13, 2007, Palm City Screening provided Ms. Schumacher with an estimate of $19,785.00 to replace the existing porch. In May 2007, Respondent visited the subject property in response to complaints from Ms. Macey. Ms. Macey pointed out to Respondent problems with the porch and Respondent inspected the structure. Respondent told Ms. Macey that he would send someone named George to the subject property to make repairs. Respondent left the subject property and Ms. Macey heard nothing further from him. No one returned to the property on behalf of Respondent. At no time did Ms. Schumacher or Ms. Macey terminate the contract with Coastal Structures or prevent Coastal Structures from correcting the problems with the porch. On July 2, 2008, Palm City Screening provided a second estimate to Ms. Macey in the amount of $23,230.00 to replace the structure. Palm City Screening’s representative told Ms. Macey that the structure could not be repaired as built, but would have to be replaced. The scope of work and estimated costs excluded electrical work for the structure. On July 11, 2008, Jimmy Rowell Electric Service provided Ms. Macey with a written estimate in the amount of $1,520.00 for the electrical work that would be required if the structure were to be replaced. No one on behalf of Palm City Screening or Jimmy Rowell Electric Service testified at the formal hearing. The total investigative costs of this case to Petitioner, excluding costs associated with attorney’s time, was $176.39. On October 8, 1995, Petitioner filed an Amended Administrative Complaint against Respondent in DBPR Case 91- 00022. The Amended Administrative set forth certain factual allegations pertaining to Respondent’s dealings with a person named Donald H. Shaffer. Based on those allegations, Petitioner charged Respondent with abandonment of a project (Count I); committing mismanagement or misconduct in the practice of contracting that caused financial harm to a customer by allowing liens to be placed against the project (Count II); failure to supervise (Count III); mismanagement or misconduct in the practice of contracting that caused financial harm to a customer by abandoning the project (Count IV); and by having committed fraud, deceit, gross negligence, incompetence, or misconduct in the practice of contracting (Count V). DBPR Case 91-00022 was resolved by stipulation. As part of the stipulation, Respondent agreed to pay a fine and make restitution to the customer. The stipulation contained the following provision: Respondent neither admits nor denies the allegations of fact contained in the Amended Administrative Complaint attached hereto as Exhibit “A”. The CILB entered a Final Order Approving Settlement Stipulation on August 2, 1966, which “. . . approved and adopted in toto . . .” the settlement stipulation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the violations alleged in the Administrative Complaint. It is further RECOMMENDED that the final order impose against Respondent administrative fines as follows: $500.00 for Count I; $5,000.00 for Count II; $5,000.00 for Count III; and $5,000.00 for Count IV, for the aggregate amount of $15,500.00. It is further RECOMMENDED that Respondent’s licensure be revoked. DONE AND ENTERED this 20th day of August, 2008, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 20th day of August, 2008.
