Findings Of Fact At all times material to these proceedings, Respondent Farrall was licensed as a certified general contractor in Florida, and held license number CG C040234. In addition, the Respondent was licensed as a certified roofing contractor and held license number CC C024398. Mr. Farrall was the qualifying agent for Sunmaster Roofing Company. On May 25, 1987, Sunmaster Roofing Company entered into a contract with Clarence A. Miller and Emily Miller to reroof their residence in Naples, Florida. After the project was completed, Mr. and Mr. Miller filed a complaint with the Collier County Contractors' Licensing Board on December 7, 1987. Essentially, the complaint alleged as follows: 1) that the contractor abandoned the job without adequately completing construction; 2) that the roof materials were incorrectly installed; 3) that the contractor failed to obtain a building permit; and 4) that the contractor failed to adequately perform the contract due to his failure to correct faulty workmanship on the job. On December 11, 1987, copies of the complaint and a notice of hearing was sent to Respondent Farrall by certified mail to two different addresses. The items were promptly received at both locations. On January 15, 1988, the Respondent acknowledged that he was personally aware of the hearing scheduled for January 20, 1988. The Respondent requested a continuance until after January 29, 1988, because he had to attend to urgent family matters which required his presence in Canada. A continuance was not granted, and the hearing proceeded as scheduled. The Respondent was aware that the hearing was not continued prior to his departure for Canada. On January 20, 1988, a hearing was held, and the local board received evidence regarding the Miller complaint. As a result of the hearing, the local board found that the Respondent violated specific county ordinances in the following manner: by abandoning the job without legal excuse; disregarding or violating the building code by failing to obtain a building permit; and by failing to make good, faulty workmanship obviously performed in evasion of performance of the contract. The Respondent was disciplined by the Collier County Contractors' Licensing Board on January 20, 1988. His permit privileges were suspended in Collier County until the contractor makes restitution and appears before the Board for reinstatement. The Respondent was given fifteen days to appeal the decision. The Respondent personally received a copy of the disposition of the hearing by certified mail on January 28, 1988. An appeal was not taken of the decision.
Recommendation Based upon the foregoing, it is recommended that the charges set forth in the Administrative Complaint against the Respondent, John W. Farrall, in Case No. 89-3291 be DISMISSED. RECOMMENDED this 15th day of February, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 15th day of February, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3291 The proposed findings of fact set forth in Petitioner's proposed recommended order are addressed as follows: 1. Accepted. See HO #1. 2. Accepted. See HO #2. 3. Accepted. See HO #1 and #2 4. Accepted. See HO #8 and #9. 5. Accepted. See HO #8. Rejected. Irrelevant to the charges filed. Rejected. Irrelevant to the charges filed. The proposed findings of fact filed by the Respondent are addressed as follows: Accept the first two sentences. See HO #1. The rest of paragraph 1 is rejected as improper argument which is not based upon material evidence presented at hearing. Accepted. See HO #2. Rejected. The issue in this proceeding involves the discipline by the local government board and not the underlying facts upon which the board based its findings. Immaterial. 4. Rejected. Immaterial. See above. Rejected. Rejected. Rejected. Irrelevant. Irrelevant. Irrelevant. Rejected. Rejected. Irrelevant. Irrelevant. Rejected. Rejected. Rejected. Irrelevant. Irrelevant. Contrary to fact. See HO #6. Rejected. Rejected. Contrary to Irrelevant. fact. See HO #9. COPIES FURNISHED: Jack M. Larkin, Esquire 806 Jackson Street Tampa, Florida 33602 John W. Farrall 316-2 Tudor Drive Cape Coral, Florida 33904 Fred Seely, Executive Director Construction Industry Licensing Board 111 East Coastline Drive, Room 504 Jacksonville, Florida 32202 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792
The Issue Whether the certified general contractor's license of W. Bert Jones should be revoked.
Findings Of Fact By an Administrative Complaint filed October 27, 1976, the Florida Construction Industry Licensing Board sought to revoke the general contractor's license of W. Bert Jones alleging that the Respondent contractor entered into a contract with Mrs. Barbara Loewe to renovate her home and to add a room onto the back of the house; that the Respondent contractor was paid in full the contract price but the job was not completed and there were numerous building code violations. Respondent requested an administrative hearing. Pursuant to written agreements entered into between the Respondent and Mrs. Barbara Loewe of Tampa, Florida, Respondent agreed to renovate Mrs. Loewe's home and to add a room onto the back of the house. Mrs. Loewe, either by paying the Respondent directly or paying material suppliers, paid the full contract price. In June or July of 1975 the Respondent left the job contracted for partially or wholly incompleted as follows: the ceiling of the kitchen and drywall were in complete and the kitchen was not painted; the guest bathroom was not trimmed; two back rooms were incomplete. Inasmuch as the ceiling was left undone, it was not trimmed, the drywall was incomplete, the doorways were left uninstalled, and the paneling was incomplete; the bathroom had no toilet, no sink and no trim on the tub; in the master bedroom the ceiling was left sagging, there was no insulation in ceiling or walls, the door was untrimmed, siding was left partially undone and the windows weren't trimmed; holes were left unrepaired around the pipes in the home. The sum of Five Thousand Dollars ($5,000) was paid by St. Paul Fire and Marine Insurance Company in full settlement of the claims arising under the general contractor's bond. Additional money, approximately Thirty-Five Hundred Dollars ($3,500), was spent by Mrs. Loewe in addition to the Five Thousand Dollars ($5,000.00) received from the bonding company in order to complete the jobs contracted for. Although there were minimum changes In the job as originally contracted for, work is still going on to complete the original work contracted for by the Respondent. The building inspector for the City of Tampa Building Bureau, Tom Burgoyme, inspected the job site on several occasions during the progress on the work contracted for between Mrs. Loewe and the Respondent. He found building code violations and submitted a list of corrections to the Respondent, Mr. Jones, which were not remedied. A number of problems arose during the construction work, some of which was not the fault of the Respondent. Another contractor was involved in the work on the project. Funds in excess of the purchase price were paid to the Respondent and funds in excess of Eighty-Five Hundred Dollars ($8,500) were needed or will be needed to complete the project.
Recommendation Revoke the general contractor's license of Respondent, Number C GC007323. DONE and ORDERED this 7th day of April, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211 Barry Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 W. Bert Jones 2300 Greenlawn Street Brandon, Florida 33511
The Issue The issues in this case are whether Respondent violated Subsections 489.129(1)(g)2., (g)3., (j), (o) and (m), Florida Statutes (2004),1 and, if so, what discipline should be imposed.
Findings Of Fact Mr. Spencer holds a current, active Florida State Certified Building Contractor License, having been issued license number CBC 1252039. He is certified with the Department as doing business as KCLS Spencer, Inc. (KCLS), and is the primary qualifying agent thereof. Mr. Spencer submitted a Proposal, bearing the letterhead of KCLS and dated September, 14, 2004, to Jesse J. Ross, Sr. (Mr. Ross), which pertained to the exterior remodeling of Mr. Ross' jewelry store located at 6290 North Atlantic Avenue, Cape Canaveral, Florida 32920. Initially, the Proposal put the cost for the remodeling at $48,762.86. After some negotiating, the Proposal that ultimately formed the basis of their contract set the cost at $45,000.00 and relieved Mr. Spencer of the obligation of constructing walkways. The Proposal's explicit terms provide: As per specifications and blueprints pricing is as follows; labor and material to renovate existing exterior building. Prices to include all demolition of all exist [sic] structures, installation of siding, columns, dormers, cupolas, two (2) French doors, windows, front gutters and down spouts, electrical, and final painting. Notes: Signs by owner. Paint colors by owner. Power and water supplied by owner. Color of pre-painted metal roof determined by owner. Material storage space to be provided by owner. Quotes good for 10 days (after 10 days, please reconfirm material pricing). 20% deposit $9752.57 due to start project, invoicing to [sic] made weekly per actual costs. Essentially, much of the exterior remodeling to be performed is simply stated as being based on the specifications and blueprints, which Mr. Ross provided to Mr. Spencer. These specifications and blueprints have not been received in evidence, but there appears to be no dispute among the parties regarding the scope of the work. The terms of payment were for an initial 20 percent deposit of $9,752.57, with weekly invoices to follow based on actual, ongoing costs. On October 25, 2004, Mr. Ross' lender, Coastal Bank, drafted a loan check for $9,752.57 made payable to KCLS. Sometime shortly thereafter, KCLS began the work of remodeling the exterior of Mr. Ross' store. As work progressed, Mr. Spencer provided Mr. Ross with an invoice, dated November 11, 2004, requesting payment for costs incurred. Despite listing on the invoice an "off set balance" of $2,515.32 that applied costs to date against the initial deposit, the total amount due was nevertheless listed as $12,268.04. On November 23, 2004, Mr. Ross wrote a check for $12,268.04 made payable to Mr. Spencer personally. Later, Mr. Spencer provided Mr. Ross with another invoice, dated December 23, 2004, requesting payment for further costs incurred. The total amount due was $8,475.24. By check dated that same day, Mr. Ross wrote a check for $8,475.24 made payable to Mr. Spencer personally. At this time, Mr. Ross received assurance from Mr. Spencer that no further money would be due, until the work was entirely completed. Sometime between Christmas 2004 and New Year's 2005, Mr. Spencer returned again to Mr. Ross' store and requested from him an additional $3,000.00. At this point, Mr. Ross refused, because of Mr. Spencer's earlier assurance that no further ongoing payments would be demanded and because of the lack of any work performed since the last payment. Mr. Spencer insisted that he had all of the necessary materials in his warehouse and that he would be back on the Monday following the New Year's holiday to work on the store. He never returned and could not be contacted by Mr. Ross. As the storefront remained in disrepair, Mr. Ross was compelled to contract with other parties to complete the work. Sunland General Contractors, Inc. (Sunland); Baker Roofing (Baker); and D.A.B. Painting, Inc. (DAB), completed the work that Mr. Spencer had previously been contracted with to perform. According to the testimony of Mr. Ross, they based their work upon the same specifications and blueprints that Mr. Ross had previously provided to Mr. Spencer. Sunland, except for the roofing and painting, performed what work that remained. Based on a payment history dated December 16, 2005, the total cost of Sunland's work for Mr. Ross was $23,770.00. However, this cost includes $3,990.00 for walkway decking, which Mr. Ross and Mr. Spencer, in their previous negotiations, had agreed would not be part of their final agreement. As such, the relevant cost in the instant case for Sunland's work is $19,780.00. According to a Baker invoice, dated November 10, 2005, the cost to Mr. Ross for the new roof was $14,935.00. According to a letter from DAB, dated April 23, 2005, Mr. Ross paid $6,500.00 for the painting of his store. In sum, the relevant costs to Mr. Ross for this subsequent work total $41,215.00. Sometime in October of 2005, Mr. Ross provided Mr. Frank A. Wisniski (Mr. Wisniski), a general contractor and owner of Sunland, with a set of blueprints and asked him to takeover the job that Mr. Spencer had not completed. Mr. Wisniski further testified on the condition of the building, as Mr. Spencer had left it. According to his testimony, some of the siding was not nailed properly, and the columns in the front of the store were not well secured, a potentially hazardous situation. Overall, in his opinion, he felt that Mr. Spencer had completed approximately 25 percent of the total scope of the job. Mr. Robert T. Shindo (Mr. Shindo) is an investigator for the Department. He responded to Mr. Ross' complaint to the Department regarding Mr. Spencer's work on the store. He found, "basically, a building that was not in repair." Some siding work had been done on the north face of the building, as well as some column work. However, the columns appeared damaged or incomplete, and the siding appeared incomplete as well. Besides the siding and columns, Mr. Shindo testified that "[t]here did not appear to be any other work." Overall, Mr. Shindo had familiarized himself with the Proposal and estimated that between ten and 15 percent of the job appeared to be complete. Mr. Michael McCaughin (Mr. McCaughin) is employed at the Building Code Division of Brevard County and is the chief building official for the county. Mr. McCaughin concluded that based on the work specified in the Proposal of Mr. Spencer, the only item which would not have required permitting is the gutters. Mr. McCaughin personally searched the county permit database, and no permits were ever pulled by Mr. Spencer for the remodeling of Mr. Ross' store. Petitioner's Exhibit 14, a printout of the permits that have been pulled for Mr. Ross' store, confirms Mr. McCaughin's testimony. Moreover, Mr. McCaughin "performed a search of Mr. Spencer under his name, under his state license number, and also under the company name, KCLS and, could not find any record of any permits being pulled, nor was he registered with Brevard County contractor licensing." Mr. Spencer, in testifying in his own behalf, mainly confirmed the testimony of the other witnesses and the other facts in evidence. Among other things, he confirmed that he and Mr. Ross had an agreement for KCLS to remodel the exterior of the store and that the agreement was based on the Proposal he had submitted to Mr. Ross. He agreed that he received the payments that Mr. Ross testified to having paid and testified that he never pulled the permits for the job, because he "[j]ust didn't take the time to do it." Mr. Spencer's recollection of his final conversation with Mr. Ross was substantially the same as Mr. Ross' testimony, with Mr. Spencer testifying that he had told Mr. Ross he would be back to work on the job and that there was an understanding that final payment would be made at the end of the project. He goes on to testify that he did actually go back after this final conversation to finish up the siding on the south side of the store and that the siding was completed. This last testimony is not credible. In Mr. Spencer's defense, some of the work was farmed out to subcontractors, and they were paid in full. He then testified that he was planning on continuing the work but that he was waiting on a roofer. While he was waiting for the roofer, he testified that there was some dispute between himself and Mr. Ross regarding a ring he had received from Mr. Ross. He testified that the ring fell apart and that the dispute ended their working relationship. But for "$8200 - Ring" being handwritten on the Proposal alongside the other payments made by Mr. Ross, no mention of this ring was made by the Petitioner. Presumably, this ring was given as in-kind payment to Mr. Spencer, but without anything more to go on, the insufficiency of the relevant evidence precludes any recognition of the ring as payment. Therefore, the three previously described checks, furnished by Mr. Ross and made payable to Mr. Spencer or KCLS, are found to represent the entirety of the consideration furnished. To refresh, these checks are dated October 25, 2004; November 23, 2004; and December 23, 2004, and amount to $9,752.57; $12,268.04; and $8,475.24, respectively. In sum, they total $30,495.85. Mr. Spencer also testified about the installation of French doors at Mr. Ross' store. Mr. Ross earlier testified that he had refused delivery of two French doors, when a subcontractor arrived to install them, because they were not the style, size or number he desired. He further testified that Mr. Spencer was aware that he desired six doors with plastic slats (not two as listed in the Proposal), because he had directed Mr. Spencer to examine the doors of a nearby storefront, whose style he wished to replicate. Mr. Spencer was questioned about these doors by opposing counsel. Opposing counsel asked, "Were the French doors ever installed into the building?" Mr. Spencer responded, "Not that I know of, by Bill, no." Several questions later, opposing counsel asked, "Okay. My point is, the doors were never installed in the project; is that your understanding?" Mr. Spencer responded, "My understanding from Bill was that, yes, they were installed." On this issue, Mr. Spencer could only speculate, because he never returned to the job site to check whether the doors had been installed. Mr. Spencer's testimony on this topic is not credible. Despite never being installed, Mr. Ross paid a $4,700.00 deposit for the French doors that was never refunded. When asked why this money was never refunded to Mr. Ross, Mr. Spencer goes on to testify that he trusted the subcontractor delivering the doors, that he assumed they were delivered, and that that's why he never attempted to receive a refund of the doors' cost from the subcontractor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Respondent violated Subsections 489.129(1)(g)2., 489.129(1)(j), 489.129(1)(m), and 489.129(1)(o), Florida Statutes; finding that Respondent did not violate Subsection 489.129(1)(g)3., Florida Statutes; imposing an administrative fine of $1,500.00 for the violation of Subsection 489.129(1)(g)2., Florida Statutes; imposing an administrative fine of $2,000.00 for the violation of Subsection 489.129(1)(j), Florida Statutes; imposing an administrative fine of $1,000.00 for the violation of Subsection 489.129(1)(m), Florida Statutes; imposing an administrative fine of $1,500.00 for the violation of Subsection 489.129(1)(o), Florida Statutes; requiring Respondent to make restitution to Mr. Ross in the amount of $26,710.85; placing Respondent on probation for a period of three years; and requiring Mr. Spencer to attend a minimum of seven additional hours of continuing education classes. DONE AND ENTERED this 18th day of April, 2008, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 18th day of April, 2008.
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 At all times material to this proceeding Respondent was a registered building contractor in the State of Florida having been issued license number RB 0009164. At no time material to this proceeding was Domingo Alonzo (a/k/a Domingo Alonzo) registered, certified or otherwise licensed by the Florida Construction Industry Licensing Board. Respondent and Alonzo signed and submitted a proposal to Myron M. Gold and Roberta Fox for remodeling and additions to their residence located at 1550 Zuleta Avenue, Coral Gables, Florida in accordance with plans prepared by Frese - Camner Associates on file with the City of Coral Gables, Florida, File No. 2897 for a contract price of $65,940.00 with draw schedules attached. On December 6, 1982, Myron M. Gold and Roberta Fox (Homeowners) accepted the Proposal (Contract). On December 6, 1982, the Homeowners paid Respondent and Alonzo jointly $3,297.00 in accordance with the contract whereby they were to receive 5 percent of the contract amount as a down payment upon signing. The draw schedule provided for a 10 percent retainage from each draw which was to be paid to Respondent and Alonzo upon completion and the issuance of a certificate of occupancy. On December 21, 1982 the Homeowners paid Respondent and Alonzo jointly $2,025.00 which represented a draw on Schedule I - Item 3 for $1,350.00, Schedule II - Item 2 for $360.00 and Item 5 for $315.00. On December 17, 1982 the Homeowners and Respondent filed the affidavit required by ordinance with the City of Coral Gables for the purpose of having a building permit issued covering the work under the contract. 9. On January 19, 1983 Respondent using his building contractors license applied for building permit to cover the work anticipated under the contract and on the same day was issued building permit, No. 28214. Under the contract the Homeowners were to pay for the building permit and the bond required by the city. On January 26, 1983 the Homeowners paid Respondent and Alonzo jointly $3,000.00 which along with a payment on January 27, 1983 of $500.00 and January 31, 1983 of $544.60 represented a draw on Schedule I - Item 2 for $405.00, Item 5 for $1,260.00, Item 6 for $1,547.10 and Item 13 for $832.50. All payments from December 6, 1982 through January 31, 1983 under the contract by the Homeowners totaled $9,366.50 and were paid jointly to Respondent and Alonzo. On February 4, 1983 Respondent and Alonzo entered into an agreement, prepared by Myron Gold in the law office of Gold and Fox, whereby the Homeowners were to pay the balance of the funds remaining under the contract to Alonzo individually. After this date all payments were made to Alonzo. It was the Homeowners understanding after the February 3, 1983 agreement that Respondent would still be responsible for the supervision of the construction although they never saw Respondent again until October 1983. Edward Borysiewicz testified that he dealt with Respondent during March 1983 when he made the floor slab inspection on March 3, 1983 and the columns inspection on March 14, 1983. The record is clear that shortly after the agreement on February 3, 1983 Respondent no longer came to the construction site and supervised the work of Alonzo. On February 8, 1983 the Homeowners paid Alonzo $3,060.00 which represented a draw on Schedule I - Item 1 for $810.00, Item 5 for $1,417.50 and Item 13 for $832.50. On February 28, 1983 the Homeowners paid Alonzo $3,155.40 which represented a draw on Schedule I - Item 4 for $1,705.50 and $729.90 for extras apparently not covered by the contract but whether the balance of check No. 1161 (Pet. Ex. 13) of $720.00 was for payment under the contract or for extras is not shown in Petitioner's Exhibit No. 15. On March 18, 1983 the Homeowners paid Alonzo $1,000 which represented a draw on Schedule I - Item 9 for $819.00. Again whether the balance of check No. 1206 (Petitioner's Exhibit No. 13) of $181.00 is for payment under the contract or for extras is not shown in Petitioner's Exhibit No. 15. On March 21, 1983, the Homeowners paid Alonzo $6,400.00 which represented a draw on Schedule I - Items 10, 11, 12, 14 and 15. On March 21, 1983 the Homeowners paid Alonzo $2,166.90 but Petitioner's Exhibit No. 15 does not list check No. 1210 as being a payment under the contract or for extras. On March 31, 1983 the Homeowners paid Alonzo $4,230.00 which represents a draw under Schedule I - Item 7 for $2,520.00 and a payment for extras not covered under the contract in the amount of $1,710.00. On April 21, 1983 the Homeowners paid Alonzo $5,207.40 which represented a draw Schedule I - Items 1, 5, 6, 9 and 14. On June 24, 1983 the Homeowners paid Alonzo $5,788.00 which represented a draw on Schedule I - Item 12 for $667.00, Item 14 for $3,024.00 and payment for extras not under contract for $2,097.00. After March 14, 1983 Respondent was not seen on the job site and there was no longer any apparent supervision of Alonzo by Respondent. After Respondent left the job site there was no licensed building contractor involved in the construction. After Respondent left the construction site the Homeowners soon realized that Alonzo did not know how to proceed with the work and experienced problems with the pace and manner in which the work was being accomplished. On July, 1983, Alonzo stopped working altogether. Although the Homeowners were aware of the problems that Alonzo was having with the construction and that Respondent was not on the job, the record does not reflect that they ever attempted to contact Respondent after the meeting on February 3, 1983. On August 1, 1983 the Homeowners notified Respondent and Alonzo that the contract had been terminated. The Homeowners paid Respondent and Alonzo $42,174.20 total under the contract (pages 1-5, Petitioner's Exhibit No. 15) and paid Alonzo $10,766.37 for extras (Pages 6- 10, Petitioner's Exhibit No. 15). On August 31, 1983 the Homeowners paid Edward Bryant, plastering contractor the sum of $3,100.00 for plastering performed by Edward Bryant. This was for work under the contract that had not been completed or work necessary to correct problems that were already completed. Roberta Fox testified that there were no extras on plaster, however, page 7, line 11 and page 9, line 21 of Petitioner's Exhibit 15 indicates that there was extra plastering. On August 29, 1983 and September 29, 1983 the Homeowners paid Southwest Plumbing Services, Inc. the total amount of $4,875.00 for work contemplated under the contract that had not been completed or needed correction. Homeowners had paid Alonzo $3,591.00 for plumbing under the contract. Both Alonzo and Southwest Plumbing, Inc. were paid for extra plumbing not covered by the contract in the amount of $567.00 and $391.50, respectively by the Homeowners. From September 13, 1983 through June 13, 1984 the Homeowners paid Charles Brueg, Jim Brueg, Charles Buffington and Dan, Inc. the total amount of $4,192.91 for electrical work contemplated under the contract that was not completed or required correction after Alonzo left the construction site. Page 6 lines 6 and 11 of Petitioner's Exhibit No. 15 indicate that there were extras not covered by the contract. The total amount for electricity contemplated by the contract was $3,649.00. Alonzo was paid $2,627.10 under the contract and $1,710.00 for extras. The Homeowners were required to obtain the services of an air conditioning contractor to complete the work contemplated under the contract after Alonzo left the job site and as a result were required to pay Cameron, Inc., the air conditioning contract the amount of $5,181.60 between August 16, 1983 and January 24, 1984. The total amount contemplated under the contract was $3,600.00 of which $1,134.00 had been paid to Alonzo. Debris was dumped in the swimming pool requiring the Homeowners to pay $7,000 to refurbish the swimming pool. This amount included the repair contemplated under the contract and the extra work caused by Alonzo. The contract contemplated $2,300.00 for repairs of which none had been paid to Respondent or Alonzo. The Homeowners paid $1,150.00 to a painting contractor to finish the painting contemplated under the contract. Alonzo had been paid $1,125.00 for painting. (Petitioner's Exhibit No. 15) The contract provided $2,500.00 for all painting required under the contract. Respondent failed to notify the building department that he was no longer responsible for the construction. After the Homeowners terminated the contract due to Respondent's and Alonzo's nonperformance, the Homeowners had to expend a substantial amount of extra money to complete the construction. The evidence is insufficient to determine an exact or approximate amount. Roberta Fox's testimony was conflicting with regard to her understanding as to whether or not the Respondent would continue to supervise the construction after the meeting in the Homeowners' law office on February 3, 1983 when Respondent and Alonzo entered into this agreement. Myron Gold testified that it was his understanding that Respondent would continue to supervise Alonzo after the agreement. However, the Homeowners action in this regard subsequent to February 3, 1983, in making no effort to bring the matter to a "head" and requiring Respondent to supervise the work or terminate the contract and in continuing to deal with Alonzo although Homeowners were aware shortly after February 3, 1983 that Alonzo could not perform without Respondent's supervision and that they knew Respondent was not on the job, tends to show that they were aware or should have been aware that Respondent was no longer involved in the day to day supervision of the construction. Alonzo installed a fireplace pursuant to the contract that the building department determined to be a fire hazard and recommended against its use. The Homeowners applied for and were granted a "owner/builder" permit on September 1, 1983 and requested cancellation of the building permit issued to Respondent which was cancelled on September 6, 1983. They have not received a certificate of occupancy because the building department has not performed the following inspection: electrical final; plumbing final; air conditioning final; roofing final and public works final. The building department would have issued a "stop-work order" had it been aware that Respondent was not supervising the construction and would have required the Homeowners to obtain another licensed building contractor or proceed as a owner/builder. The plans prepared by Frese-Camner Associates that were made a part of the contract by reference were not introduced into evidence with the contract and thus the record is insufficient to determine what was required to meet the specifications of the plans and thereby determine if the specifications had been met. There was a permit issued for the septic tank and drain field which work was started in December, 1982. The construction of the house itself was started in January 1983. The first inspection (foundation) on the house was made by the building department of January 21, 1983.
Recommendation Based on the findings of fact and conclusions of law recited herein, it is Recommended that the Board enter a final order finding Respondent guilty of violating Section 489.129(1)(h)(k)(m), Florida Statutes (1981) and for such violations it is Recommended that the Board assess the Respondent with an administrative fine of $500.00 and suspend the Respondent's contracting license for a period of three (3) years, provided, however, that if Respondent submits to the Board competent and substantial evidence of restitution to Myron Gold and Roberta Fox within one (1) year from the date of the final order herein, then the suspension shall be stayed and Respondent placed on probation for the balance of the suspension. Respectfully submitted and entered this 6th day of February, 1986, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 84-2529 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties to this case. RULINGS ON PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3 but clarified. Adopted in Findings of Fact 4 and 5. Adopted in Finding of Fact 4. Adopted in Finding of Fact 6. Adopted in Finding of Fact 5. Adopted in Finding of Fact 9. Adopted in Finding of Fact 9. Adopted in Finding of Fact 9. Adopted in Finding of Fact 9. Adopted in Finding of Fact 10. Adopted in Finding of Fact 11. Adopted in Finding of Fact 12 except clarified as to the last date on construction site. Adopted in Finding of Fact 13. Adopted in Finding of Fact 14 but clarified. Adopted in Finding of Fact 15 but clarified. Adopted in Finding of Fact 16. Adopted in Finding of Fact 17 but clarified. Adopted in Finding of Fact 15 but clarified. Adopted in Finding of Fact 19. Adopted in Finding of Fact 20 but clarified. Adopted in Finding of Fact 21. Adopted in Finding of Fact 11. Adopted in Finding of Fact 21. Adopted in Finding of Fact 22. Adopted in Findings of Fact 22 and 23. Adopted in Finding of Fact24 but clarified to show correct amount paid under contract as indicated by Petitioner's Exhibit 15. Adopted in Finding of Fact 25 but clarified to show that extra plastering not under contract was required. Adopted in Finding of Fact 26. Adopted in Finding of Fact 26. Adopted in Finding of Fact 26. Adopted in Finding of Fact 27. Adopted in Finding of Fact 27. Adopted in Finding of Fact 27. Adopted in Finding of Fact 27. Adopted in Finding of Fact 27. Adopted in Finding of Fact 27. Adopted in Finding of Fact 28. Adopted in Finding of Fact 28. Adopted in Finding of Fact 28. Adopted in Finding of Fact 28. Adopted in Finding of Fact 29 but clarified. Adopted in Finding of Fact 30 but clarified. Rejected as immaterial. Rejected as not supported by competent substantial evidence. Rejected as not supported by substantial competent evidence. Adopted in Finding of Fact 31. Rejected as immaterial. Adopted in Finding of Fact 32 but clarified to show that the record does not support a figure that approximate $32,000.00. Rejected as not supported by substantial competent evidence even though the Homeowners' testimony supported this fact because the Homeowners' actions with regard to Respondent after February 3, 1983, was to the contrary. Adopted in Finding of Fact 33. Adopted in Finding of Fact 34. Adopted in Finding of Fact 34. Adopted in Finding of Fact 34. Adopted in Finding of Fact 35. Adopted in Finding of Fact 36. Adopted in Finding of Fact 36. RULINGS ON PROPOSED FINDINGS OF FACT SUBMITTED BY RESPONDENT: No Findings of Fact was submitted by the Respondent. COPIES FURNISHED: James Linnan, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 W. Douglas Beason Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. George J. Soler, Pro Se 3315 S.W. 96th Avenue Miami, Florida 33165
The Issue The Florida Construction Industry Licensing Board (Petitioner herein) seeks to revoke Carroll L. Mozingo's (Respondent herein) license to practice as a registered general contractor based on allegations which will be set forth hereinafter in detail that he diverted funds in violation of Chapter 468.112(2)(e), Florida Statutes. Based upon my observation of the witnesses and their demeanor while testifying and the entire record compiled herein, I make the following:
Findings Of Fact The Respondent is a registered general contractor, who holds current license no. RG0015876. On September 7, 1976, Respondent entered into a contract with Robert Johnson and his wife Sandra Johnson for a room addition and patio to their house located at 197 North Roscoe Blvd., Ponte Vedra Beach, Florida. The full amount of the contract plus agreed upon extras amounted to $9,640.00. (Petitioner's Composite Exhibit Number 2) Respondent applied for and obtained a building permit for the construction of the Johnson's addition on or about September 27, 1976, and construction commenced shortly thereafter. (Petitioner's Exhibit Number 1) Donald Jermaine, a St. Johns County field inspector, testified that he conducted inspections on the subject job and noted numerous violations of the St. Johns County Building Code. He coordinated the inspections for this project up until the time it was abandoned by Respondent during mid February, 1977. At the time of abandonment, the owner, Robert Johnson, had paid a total amount of $11,021.96 to Respondent and/or various suppliers. To complete the job as contracted by the parties (Johnson and Mozingo) Messr. Johnson had to pay Proctors Construction Company $2,800.00, an electrical contractor $369.00 and a plumbing contractor $520.00 for a total expenditure over and above the above referenced contract amount of $3,689.00. He testified that no additional work was done to his home. The Respondent testified that he expended $7,458.00 for materials on the Johnson project and was unable to complete it because his mortgage payments were delinquent and he was not receiving any additional monies from Messr. Johnson to fulfill his obligations. He testified that he was unable to work at night and therefore had to seek other employment with another contractor. The above explanation by the Respondent which led to his abandonment of the subject project does not excuse him from his contractual obligations to either fulfill the contract as agreed upon or to seek a renegotiation based on additional costs and/or unexpected circumstances. This was not done nor was any other explanation given as to where the additional monies in excess of $4,000.00 was spent. I therefore conclude that he engaged in a diversion of funds as alleged in the administrative complaint filed by the Petitioner on May 27, 1977. I shall so recommend.
Recommendation Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the Respondent's general contractor's license be suspended for a period of two years. RECOMMENDED this 2nd day of December, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 C. H. Hoskinson, Chief Investigator Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211 Carroll L. Mozingo 1909 Ed Johnson Drive Jacksonville, Florida 32218 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. DIVISION OF ADMINISTRATIVE HEARINGS, DOCKET NO. 77-1095 CARROLL L. MOZINGO dba CARROLL CONSTRUCTION COMPANY, RG 0015876, 1909 Ed Johnson Drive, Jacksonville, Florida 32218, Respondent. /
Findings Of Fact Respondent is a certified general contractor holding license number CG C008351. Respondent obtained Osceola County Building Permits and agreed to help property owners construct improvements or additions to four motels located in Osceola County, Florida. (Testimony of Record, Popesco, Matay, Solms, respondent.) Specifically, on January 29, 1980, respondent pulled Osceola County Building Permit ("building permit") No. 364-80B to construct the Record Motel, an 11-unit motel owned by Frank B. Record. On March 17, 1981, respondent pulled building permit No. 694-81B to construct a five-unit addition to the Record Motel; on January 30, 1980, he pulled building permit No. 2613-80B to add eight units to the Lakeview Motel owned by Michael Popesco; on February 2, 1980, he pulled building permit No. 2996-81B to construct a 20-unit motel known as The Key Motel, owned by Reinhold Matay; on April 8, 1981, he pulled building permit No. 3087-81B to construct a second floor addition to The Key Motel; and on March 2, 1981, he pulled building permit No. 3038-81B to construct a 20-unit motel known as the Siesta Motel, owned by Herbert Solms. (Stipulation dated June 30, 1982.) II. Respondent had a similar working arrangement with each motel owner, none of whom were licensed contractors. As the general contractor, he pulled the necessary building permits. He would perform the carpentry work on each project. The owners actively supervised and participated in their building projects. After consulting with respondent, they solicited, selected, and awarded bids to electrical, masonry plumbing, paving, and drywall subcontractors. They paid subcontractors directly and supervised their work daily. Respondent, however, would inspect the job sites intermittently, usually on weekends, sometimes during the week. But he did not directly and actively supervise the subcontractors; some were even unaware that he was the general contractor for the job. (Testimony of Record, Popesco, Matay, Solms; P-3, P- 10.) No evidence was presented to establish that the owners, for compensation, constructed these improvements for others or for resale to others. All the buildings were constructed in a satisfactory manner. The buildings passed all inspections, and the owners are entirely satisfied. (Testimony of Record, Popesco, Matay, Solms, respondent.) The owners of the various motels did not act as "contractors" within the meaning of Section 489.105(3), Florida Statutes (1981).
Recommendation Based on the foregoing, it is RECOMMENDED: That the charges against respondent be dismissed. DONE and RECOMMENDED this 14th day of October, 1982, in Tallahassee, Leon County, Florida. R. L. CALEEN, JR., 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 14th day of October, 1982.
The Issue The issues presented in this case concern certain allegations made by the Petitioner against the Respondent through an Administrative Complaint. In particular, it is alleged that on or about April 23, 1980, the Respondent's contractor's license issued by the Petitioner was suspended and subsequent to that time, the Respondent continued to perform contracting services through a company, David H. Hamilton, Inc., a corporation which was not properly qualified by the Petitioner to provide contracting services. It is further alleged by the Petitioner that the Respondent obtained building permits Nos. S2740-80B 1/ and 3214-80B from the Osceola County Building Department with the use of another contractor's license, namely: Louie S. Winchester, license #RR003839. For the reason of these facts, the Petitioner alleges that the Respondent has violated Subsection 489.127(1)(e), Florida Statutes, in that he attempted to use a suspended registration. It is further alleged, based upon the facts as reported in this Issues statement, that the Respondent has violated Subsection 489.129(1)(g), Florida Statutes, by acting in a capacity as a contractor under a certificate of registration not in his name. Finally, it is alleged, based upon the facts as reported hereinabove, that the Respondent has violated Subsection 489.129(1)(j), Florida Statutes, by failing to comply with Subsection 489.119(2), Florida Statutes, by not properly qualifying a corporation under which he performed contracting services.
Findings Of Fact The case presented concerns license disciplinary action by the Petitioner, State of Florida, Department of Professional Regulation, Florida Construction Industry Licensing Board, against the Respondent, David H. Hamilton, who holds a residential contractor's license issued by the Petitioner, #RR0014037. The prosecution of this action is through the offices of the Department of Professional Regulation and the outcome of the matter could lead to the revocation, suspension or other disciplinary action against the Respondent, in keeping with the provisions of Chapter 489, Florida Statutes. This case was presented before the Division of Administrative Hearings following a decision on the part of the Respondent to request a formal hearing pursuant to Subsection 120.57(1), Florida Statutes. The facts reveal that a Final Order of the Florida Construction Industry Licensing Board was issued on April 23, 1980, and this order established disciplinary action against the current license of David H. Hamilton. (A copy of this Final Order may be found as a part of the record in this proceeding and official recognition of that Final Order is made by the Recommended Order process.) This Final Order was entered after review of a Recommended Order of a Division of Administrative Hearings' Hearing Officer. By the terms of the Final Order, Hamilton's license was suspended "until such time as his Lake County Certificate of Competency is reinstated by the Lake County Board of Examiners." This contingency referred to the fact that the Respondent had his Lake County Certificate of Competency Card removed prior to the entry of the April 23, 1980, order of the Construction Industry Licensing Board. On September 2, 1980, at a time when the Respondent's residential contractor's license was under suspension by the State of Florida, the Respondent through a corporation applied to the Osceola County Building Department for a building permit to construct a residence in Osceola County, Florida. This permit number was #2740-80B. The permit was issued on September 4, 1980, and was granted in the name of David Hamilton, Inc., a corporation in which the Respondent was a principal. To obtain the permit in the sense of an effort to meet the requirements that the permit be applied for by a licensed Florida contractor, the Respondent used the registered residential contractor's license of one Louie Stevens Winchester who held license #RR003839 issued by the Florida Construction Industry Licensing Board. On the occasion of the issuance of the permit by Osceola County, Winchester was an officer of David Hamilton, Inc. Through the action of "pulling" this permit and the utilization of the permit in his construction of the residence, the Respondent was acting in the capacity of contractor under Winchester's license and the offices of the corporation, as opposed to the Respondent's suspended license. Prior to the request for permit, neither Hamilton nor Winchester had attempted to properly qualify David Hamilton, Inc., as a contracting corporation with the Florida Construction Industry Licensing Board. In this case, to properly qualify the corporation, it would have entailed the use of Winchester as the qualifying agent, in view of the fact that Winchester still held a valid contractor's license from the Florida Construction Industry Licensing Board. No effort was made to qualify David Hamilton, Inc., in its own right, through the agency of Winchester, until some time shortly beyond December 1, 1980. On October 28, 1980, the Respondent in his individual capacity, that is to say unconnected with his business pursuits as David Hamilton, Inc., went to the Osceola Building Department and applied for the issuance of a building permit for a home remodeling project for a customer of his. The permit in question on this occasion was #3214-80B. That permit was issued on October 29, 1930, and was used by the Respondent in his building project. An official in the Osceola County Building Department had checked with an employee in the Lake County Building Department on the status of Hamilton's rights to be employed as a building contractor in Lake County, Florida, and was informed that Hamilton's status in Lake County was acceptable. Based upon these representations, the Osceola County employee issued the permit discussed in this paragraph to Hamilton. The Osceola County employee also asked that the Lake County employee formally confirm Hamilton's status. The correspondence in response to Osceola County employee, John Pate, Assistant Building Director, as issued by an official in Lake County, one Herb Dudgeon, may be found as Petitioner's Exhibit No. 3. This letter was received by Pate after the permit was issued. That correspondence indicates that Hamilton had been given the privilege of reinstating his Lake County Competence Card, contingent upon "providing bond, insurances, occupational license, etc.," which had not been received by Lake County as of the date of the correspondence. The correspondence goes on to mention that the State, meaning the Florida Construction Industry Licensing Board, was waiting for confirmation of the completion of the contingencies referred to. Subsequent to this correspondence, the Respondent having completed all the necessary steps for reinstatement of the Lake County Competency Card, had his license suspension removed and was reinstated by the Florida Construction Industry Licensing Board, as verified by that body.
Recommendation Based upon a full consideration of the findings of fact and conclusions of law reached herein, it is RECOMMENDED: That the Florida Construction Industry Licensing Board issue a Final Order which absolves the Respondent of any responsibility for a violation of Subsection 489.127(1)(e), Florida Statutes (1980); that finds the Respondent in violation of Subsection 489.129(1)(g), Florida Statutes (1979), and imposes a penalty of a 60-day suspension; and that finds the Respondent in violation of Subsection 489.129(1)(j), Florida Statutes (1979), and imposes a suspension of 60 days to run concurrently with the other suspension in this paragraph of recommendation. 2/ DONE and ENTERED this 13th day of November, 1981, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 1981.
The Issue The Florida Construction Industry Licensing Board, Petitioner, by its Administrative Complaint filed May 18, 1978, seeks to revoke the Certified General Contractor's license issued to Ira L. Varnum based on allegations contained therein to the effect that he aided or abetted an uncertified or unregistered person to utilize his registration with an intent to evade the provisions of Chapter 468, Florida Statutes, which prohibits the use of a registrant's registration by an uncertified or unregistered person. Additionally, the Petitioner seeks to assess an administrative fine in the amount of $500.00 against the Respondent, Ira L. Varnum, for failure to comply with the dictates of Chapter 468, Florida Statutes.
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the following relevant facts are found: Ira L. Varnum, a Certified General Contractor, is the holder of license No. CG CA00832 and, during the times material, was a Certified General Contractor. William H. Bosely, the Chief Codes Enforcement Officer for Deerfield Beach, Florida, appeared during the course of the hearing and testified that he is the custodian of the permit applications in Deerfield Beach. Mr. Bosely issued permits to Ira L. Varnum to construct one-story, single-family residences on property located at 3275 and 3285 Southwest First Court, in West Deerfield Beach, Florida. (See Petitioner's Composite Exhibits Nos. 1 and 2.) As best as can be determined from the permits, the construction activity commenced during late December, 1977; and on January 25, 1978, Respondent, Ira L. Varnum, mailed a letter to the Deerfield Beach building department requesting that the construction activity for the properties here in question be "red-tagged" and requesting the building department to cease inspecting the construction of such properties. The properties were "red- tagged" based on these letters. (See Petitioner's Exhibits Nos. 3 and 4.) Respondent, Ira L. Varnum, is the president of Structural Concrete Forming of Florida, Inc. Respondent Varnum testified that he entered into an agreement with his son-in-law, Angel Gonzales, James Monteleone and Frank Sepe, who were in a joint venture to construct approximately one hundred houses within a subdivision in West Deerfield Beach. According to Respondent, Structural Concrete Forming of Florida, Inc., was to be the contracting entity. Mr. Gonzales was to be the supervisor and Messrs. Sepe and Monteleone were to be the owners of the project, providing all funds necessary, and the profits derived from the building activity were to be equally divided into thirds. Mr. Gonzales, a developer residing in Boca Raton, testified that he simply contracted with his father-in-law, Respondent Varnum, to pull the building permits, and he agreed to "give his father-in-law something". According to Mr. Gonzales, he paid Respondent in cash $600.00 to pull the permits for the subject houses. Mr. Gonzales testified that Messrs. Sepe and Monteleone formed A-I-A Builders, Inc., to be the contracting entity for construction of the two houses which Respondent Varnum pulled the building permits for. According to Mr. Gonzales, Respondent Varnum visited the site on no more than two occasions after the concrete slab was poured for the erection of the homes. There is no dispute but that a controversy arose when Respondent Varnum was not permitted to order supplies and materials through Structural Concrete Forming of Florida, Inc., and for disbursement of all monies through that entity. The parties were unable to resolve their differences as to which firm would order and pay for the materials, and Respondent Varnum notified the building department of the City of Deerfield Beach that all construction activity of the subject projects would be halted forthwith until further notice. (Petitioner's Exhibits Nos. 3 and 4.) Initially, the building department "red-tagged" the two projects but later decided, based on letters received from Messrs. Monteleone and Sepe and Attorney Richard R. Haas to the effect that the controversies between Respondent Varnum and Messrs. Monteleone and Sepe should be resolved either in the courts or between themselves amicably. The Department issued owner/builder permits to Mr. Monteleone and, thereafter, action resumed sometime during April, 1978. By letter dated May 1, 1978, Mr. Monteleone advised the building department of the City of Deerfield Beach that "I have relieved Structural Concrete Forming, Inc., General Contractors, of all obligations pertaining to the development of one single family residence located on Lot 155, . . ." Additionally, Respondent Varnum testified that he received no monies from Mr. Gonzales, and that the agreement between him (Varnum), Gonzales, Sepe and Monteleone centered solely around their failure to permit Varnum's contracting entity, Structural Concrete Forming of Florida, Inc., to purchase, pay for and generally be responsible for the overall supervision and control of the two projects in question. In furtherance of this agreement, which was oral, Respondent Varnum testified that he received no monetary consideration. While this entire sequence of transactions appears to be suspicious, the undersigned, based on the evidence presented, is unable to rest a conclusion based on the disputed testimony of Messrs. Gonzales, Monteleone and Sepe that the Respondent engaged in the alleged unlawful conduct. While it is difficult to fully credit the version offered by Respondent Varnum, it is difficult to rationalize the versions testified by Messrs. Monteleone and Sepe to the effect that the Respondent had no obligations and yet a letter was sent to the building department advising that any and all obligations heretofore which were being performed by Structural Concrete Forming of Florida, Inc., were being released. In view thereof, I shall recommend that the complaint allegations filed herein be dismissed.
Recommendation Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the complaint filed herein be dismissed in its entirety. RECOMMENDED this 9th day of January, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry Sinoff, Esquire 2400 Independent Square Jacksonville, Florida 32202 Norman D. Zimmerman, Esquire 737 East Atlantic Boulevard Pompano Beach, Florida 33060
