Findings Of Fact The Respondent Donald W. Nettles is a certified general contractor having been issued license number CO C008957. Respondent's last known address is Crown Builders International, Inc., 1175 N.E. 135th Street, North Miami, Florida. On or about April 30, 1980, Respondent as qualifying agent for Crown Builder's International, Inc., contracted with Buckley Towers Condominium to repair damage caused by a fire to a condominium owned by Lee K. Abrams, 1301 N.E. Miami Gardens Drive, Apartment 205W, North Miami Beach, Florida. Said contract included the repair and, if required, the replacement of electrical wiring and outlets that were damaged by the fire. The amount of the contract was $10,640. On or about May 29, 1980, the Respondent completed the work without pulling a building permit or calling for building inspections as required by the South Florida Building Code. The Respondent, a general contractor who is not licensed to perform electrical work in Dade County, performed electrical work on the Abrams job which was outside the scope of his contractor's license. This complaint arose due to a dispute between the Respondent Nettles and the complainant over the replacement of a $56.16 thermostat with a defective control which resulted in electric bills of approximately $60 over a four-month period. The Respondent refused to pay for the replacement thermostat when the complainant also demanded that he pay her electric bills over the four month period. The Respondent refused to pay the electrical bills because on the day the thermostat was installed, May 29, 1980, the complainant left for New York and the Respondent was unable to gain access to the apartment to replace the thermostat until her return. A subpoena was issued in this case by the Petitioner to the complainant to ensure her attendance at the final hearing. Approximately a day before the final hearing, the complainant informed counsel for the Petitioner that she would not attend the final hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of law, it is RECOMMENDED: That the Respondent Donald W. Nettles be found to have violated Section 489.129(1)(j), Florida Statutes by operation of Section 489.113(3), Florida Statutes, and be placed on probation for a period of six months. DONE and ORDERED this 23rd day of December, 1982, in Tallahassee, Florida. SHARYN L. SMITH, 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 23rd day of December, 1982. COPIES FURNISHED: Michael J. Cohen, Esquire Suite 101 Kristin Building 2715 East Oakland Park Boulevard Fort Lauderdale, Florida 33306 Donald W. Nettles 1175 N.E. 135th Street North Miami, Florida 33161 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD DEPARTMENT OF PROFESSIONAL REGULATION Petitioner, vs. CASE NO. 0021333 DONALD W. NETTLES Crown Builders International, Inc. CG C008957 1175 Northeast 135th Street North Miami, Florida Respondent. /
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 The issue presented is whether Respondents are guilty of the allegations contained in the Administrative Complaint filed by Petitioner against them, and, if so, what disciplinary action should be taken, if any.
Findings Of Fact At all times material hereto, Respondent Richard Charles Weit has been a real estate broker licensed in the state of Florida, having been issued license numbered 0094418, and Respondent R C Properties International, Inc., has been a real estate broker licensed in the state of Florida, having been issued license numbered 0195105. At all times material hereto, Respondent Weit has been licensed and operating as a qualifying officer and broker of Respondent R C Properties. Jose Martinez met Respondent Weit in approximately 1986 as a result of a newspaper ad which had been placed by Weit. Weit personally owned a number of properties. At the time, Martinez was a construction worker, looking for real estate considered to be a "handyman special." Martinez wanted to buy property which was in need of repair so that he could make the repairs and then sell the property at a profit. Martinez purchased from Respondent Weit three such properties owned by Weit during 1986 and one during 1987. He bought them, repaired them, and sold them at a profit. On several occasions, Respondent Weit sold those properties for Martinez after Martinez had executed the necessary repairs. On all occasions, Respondent Weit sold those properties to Martinez for very small down payments since they both understood that Martinez needed his available cash to make the necessary repairs in order to be able to sell them at a profit. Respondent Weit was not acting as a real estate broker in any of those transactions or in the transaction involved in this proceeding. The properties which he sold to Martinez were owned by Weit. As the business relationship developed between Martinez and Weit, both men developed a trust for each other and worked together somewhat informally in that business relationship which resulted in a profit for both of them. By 1989 Martinez had gone into business with a partner, Jesse Deveras. As a licensed general contractor, Deveras was able to "pull permits" for the repairs which Martinez needed to make to the "handyman specials." In early 1989, Martinez and Deveras talked with Respondent Weit about purchasing an apartment building that Weit owned at 227 Northeast 26th Street, Miami, Florida. The apartment building was a three-story CBS structure containing 18 units. At the time, Martinez and Deveras were interested in purchasing that apartment building and another building located on the next street. Respondent Weit set the sale price for the apartment building at $190,000 and drafted a contract to that effect. Martinez and Deveras did not wish to pay that much for that building, and the contract was never executed. Martinez and Deveras thoroughly inspected that building at that time and fully understood that the building was in need of repair. Around that time, Respondent Weit received a letter from the Department of Housing and Urban Development of Metropolitan Dade County, Florida, notifying him that the apartment building was in need of repairs and was in violation of certain minimum housing standards. That letter gave Respondent Weit 60 days in which to remedy the violations. The violations were all clearly visible and involved such things as repairing windows and screens, replacing deteriorated door jambs and baseboards, replacing broken electrical switch cover plates, and repairing the damage from some "apparent water seepage." Respondent Weit showed Martinez and Deveras that letter. On November 13, 1989, Jorge Garcia, a police officer for the City of Miami Police Department, was dispatched to Respondent Weit's apartment building to check for "criminal elements." While there, he noticed a strong smell of gas. He notified the Fire Department, which responded to his call with fire engines and a fire inspector. The Fire Department subsequently summoned an inspector from the City of Miami Code Enforcement Section. A determination was made that there was a gas leak in the building. Accordingly, the remaining tenants were evacuated, and all utility service to the building was terminated. Officer Garcia obtained from a family living there the name and telephone number of Respondent Weit as the person in charge of collecting rent. He contacted Respondent Weit and spoke with him personally no later than the following day. He advised Weit that the building was going to be condemned, that the tenants needed to be relocated, and that the building was to be boarded up to prevent entry. Since the tenants had just made a rent payment, Officer Garcia told Respondent Weit that he should refund the rent payment so the tenants could move elsewhere. Respondent Weit went to the police station on Biscayne Boulevard where Officer Garcia worked and left the rent money he had collected so that it could be returned to the tenants. On November 14, when City of Miami officials returned to the apartment building, they discovered that Respondent had complied with their instructions. The doors and windows of the apartment building were locked and boarded up to prevent entry. Further, the iron gate at the front door was padlocked and chained. Maurice Majszak was the City of Miami fire inspector who responded to the property on November 13, 1989. During his inspection he found violations of the South Florida Building Code and the National Fire Protection Agency life/safety handbook, which the City of Miami was authorized to enforce. He returned to his office and drafted a letter to Respondent Weit on that same day, describing the violations which he had found and ordering Respondent Weit to correct those violations within 45 days. That violation letter was attached to a transmittal letter dated November 14, 1989. Respondent Weit had continuing problems with receiving his mail at the address of R C Properties. Accordingly, he had made arrangements with fire inspector Maurice Majszak so that whenever the City of Miami Fire Department needed to contact Respondent regarding any of the properties owned by him, rather than mailing notices to Respondent, Inspector Majszak would hand- deliver notices to Respondent after 2:00 p.m. That arrangement had worked well over the years, and Respondent Weit had always signed for any notices which the fire department hand-delivered to him. On November 14, 1989, Inspector Majszak attempted to hand deliver the two fire department letters to Respondent Weit-- the November 13 violation letter and the November 14 transmittal letter. Since he was unable to do so because Respondent Weit was not there, Inspector Majszak subsequently sent the letters to Respondent Weit by certified mail, but he failed to receive them. Pursuant to his inspection, the inspector from the Code Enforcement Section of the Building and Zoning Department of the City of Miami directed a letter to Respondent Weit dated November 22, 1989, advising him that the apartment building needed to be repaired or demolished. That letter was sent to Respondent Weit by regular mail but was not received by him. On December 9 or 10, 1989, Martinez and Deveras approached Respondent Weit about purchasing the apartment building. They advised Respondent Weit that they had again inspected the building approximately a week earlier. Since the apartment building was now vacant (not producing rental income) and due to the nature of the repairs needed, Respondent Weit agreed to reduce the purchase price by $40,000. On December 11, 1989, Martinez and Deveras entered into a contract with Respondent Weit whereby they agreed to purchase the apartment building from him. The new purchase price was $153,000, for which Martinez and Deveras put up a deposit of only $500. The contract recited that although Respondent Weit was a registered real estate broker, he was selling the property on his own account, that no commission would be paid by the purchasers, and that the property was being sold "as is." The contract further provided that the buyers would pay $8,500 in cash at the time of closing, of which the $500 deposit would be a part. Under the contract, Respondent Weit would take back a purchase money wrap-around mortgage. The contract specifically provided that the purchasers were taking title to the building on that same day although the closing would take place at a later date. It further provided that although interest on the mortgage would begin running from that same day, no mortgage payment would be due until 75 days later. Taxes, rent, and other revenue and expenses were to be prorated as of December 11, 1989, the date of the contract. The contract also specifically recited that the apartment building being purchased was vacant. It was understood by Respondent Weit, by Martinez, and by Deveras that Weit was requiring only a small down payment because Martinez and Deveras needed to have their cash available to effectuate repairs to the building in order to rent it and then sell it at a profit. Further, all three understood that the repairs needed to commence quickly so that the building could be rented. Although the three men considered Martinez and Deveras to be the "official owners" of the building as of December 11, 1989, the date they signed the contract for the purchase and sale of the building, they knew Martinez and Deveras would not be owners of record until the closing took place. They also understood that there might be some problem with the City of Miami insofar as Deveras "pulling permits" to begin the repair work prior to Deveras and Martinez becoming the owners of record. Accordingly, at the request of Martinez and Deveras, Respondent on December 11, 1989, executed an affidavit that he had just sold the property to Martinez and Deveras. The three men reasoned that the affidavit would be sufficient to allow Deveras to begin "pulling permits." The closing was scheduled for January 12, 1990. Martinez requested that Respondent Weit's attorney prepare all of the closing documents so that Martinez could avoid incurring additional expenses relative to acquiring title to the property. No title examination was performed by Martinez or Deveras or by anyone on their behalf, and they did not require one. Prior to the closing date, Martinez again approached Respondent Weit and explained that he could not pay the cash at closing because he needed to utilize all of his money for the necessary repairs. Respondent Weit agreed that Martinez and Deveras would pay him no cash at closing and that Martinez would give him a mortgage on a different property owned by Martinez instead. The closing did take place on January 12, 1990, using a closing statement computed as of December 11, 1989. Rather than receiving cash at closing, Respondent Weit received a mortgage in the amount of $8,500 on the other piece of property owned by Martinez. Accordingly, on January 12, 1990, Martinez and Deveras became owners of record of an 18-unit apartment building for a total expenditure of approximately $500 in closing costs. Thereafter, Martinez and Deveras went to the City of Miami to "pull permits" to begin the repair work. At that time, City of Miami officials showed Deveras and Martinez copies of the November letters which had been mailed to Respondent Weit. Respondent Weit had never told Martinez or Deveras about those November letters since he had not known about them. Deveras and Martinez never made any repairs to the apartment building. Further, they never made any mortgage payments to Respondent Weit pursuant to either the mortgage on the apartment building or the mortgage on the other property owned by Martinez which had been used to substitute for the cash owed to Respondent at closing pursuant to the purchase and sale contract. Instead, on April 23, 1990, Martinez and Deveras entered into a contract to sell the apartment building to Miguel Santiago for $165,000. That contract recited that the property was being sold "as is." The only specific disclosure regarding the condition of the building contained in that contract is as follows: "Buyer acknowledges that there exists code violations on the property which he agrees to correct at his own expense." The contract further required the buyer to begin repair work on the property within two weeks of closing. Respondent Weit agreed to the transfer of the mortgage and approved of the sale to Santiago. In approximately November of 1990 he voluntarily appeared before the Unsafe Structures Board of Metropolitan Dade County, Florida, to assist the subsequent owners of the apartment building to show cause why the building should not be demolished. Eventually, the City of Miami entered into a contract for the demolition of the building. The building was demolished in September of 1991. By 1990, Martinez had become licensed as a real estate salesman in the state of Florida. Since then, he has been employed part time as a real estate salesman working out of his own home. Respondent Weit eventually filed suit against Martinez and Deveras due to their nonpayment under the mortgages. In June of 1991 Martinez and Deveras filed a complaint with the Department of Professional Regulation alleging that Respondent Weit had sold them a building without them knowing its condition. That complaint resulted in the Administrative Complaint filed in this cause.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered finding Respondents Richard Charles Weit and R C Properties International, Inc., not guilty and dismissing the Administrative Complaint filed against them in this cause. RECOMMENDED this 11th day of June, 1992, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 1992. COPIES FURNISHED: Theodore Gay, Esquire Department of Professional Regulation 401 Northwest 2nd Avenue, Suite N-607 Miami, Florida 33128 Mr. Richard C. Weit 775 Northeast 79th Street, Suite B Miami, Florida 33138-4743 R C Properties International, Inc. 775 Northeast 79th Street, Suite B Miami, Florida 33138-4743 Darlene F. Keller, Division Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 APPENDIX Petitioner's proposed findings of fact numbered 1-11 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 12 has been rejected as not being supported by any competent evidence in this cause.
