Findings Of Fact In General: Respondent is, and was at all times material to the Administrative Complaint, a certified general contractor, having been issued license no. CG C016774 by the Florida Construction Industry Licensing Board. At no time material to the Administrative Complaint was Stephen Karlan licensed, registered or certified by the Florida Construction Industry Licensing Board. As to Counts I--III: There is no evidence, direct or indirect, to tie any participation by Stephen Karlan to any event at the Reyes' home (Administrative Complaint Counts I--III). Mrs. Carolyn Reyes is the wife of Augustin Reyes, both of whom have resided at 9355 Southwest 180th Street, Miami, Florida, for approximately 12 years. They first met with Respondent Gomez sometime in July of 1983, and after a series of discussions concerning the work which the Reyes' desired, their budget restrictions, and charges proposed by Respondent, a contract was prepared by Respondent on Respondent's stationery. (P-3) The contracted work included: completely remodeling the kitchen and living room; the installation of central air conditioning and heating; the construction of a swimming pool; and the construction of a covered patio. The Reyes provided Respondent with a check in the amount of $4,227.40, representing a twenty percent down payment on the contract price of $24,237.00. Although signed by Mr. Reyes, who did not testify, Mr. Reyes' signature was identified by Mrs. Reyes on the contract and on the September 20, 1983 check. She was present at the execution of the contract and tendering of the check on the Reyes' joint bank account to Respondent Reyes on September 20, 1983. Existence of this contract and its terms is not disputed by Respondent. Subsequently, approximately $3,100.00 was deducted from the total contract price by way of a change order. This amount represented the cost of installing a roof over the patio and brought the new contract price to $21,137.00. (P-3 and P-6) A change order, prepared by Respondent, and signed by Mrs. Reyes, was agreed to approximately October 18, 1983, for installation of more expensive bronze-tone sliding glass doors in the family room and $250.00 was paid additionally by the Reyes. From September through November, 1983, Respondent performed construction work at the Reyes' residence. Under the terms of the contract, the Reyes provided Respondent with the following amounts, mostly by checks drawn on their joint account and issued over Mrs. Reyes' signature. DATES AMOUNTS September 20, 1983 $ 4,227.40 (20 percent down payment) October 5, 1983 $ 1,056.85 (installation of kitchen cabinets) October 13, 1983 $ 3,170.55 (pool framing inspection) October 24, 1983 $ 250.00 (change order--glass doors) October 25, 1983 $ 2,137.00 (air conditioning equipment) October 28, 1983 $ 2,137.00 (pool gunnited) November 3, 1983 $ 1,056.85 (kitchen remodeling) November 4, 1983 $ 1,056.85 (plumbing payment) November 21, 1983 $ 2,000.00 (kitchen and den) November 23, 1983 $ 1,000.00 (kitchen and den) November 28, 1983 $ 982.00 December 6, 1983 $ 2,137.00 (pool decking) $21,211.50 TOTAL (P-6) All of these checks were cashed by Respondent. During October and November, 1983, work was localized in the kitchen. Mrs. Reyes recalled not being able to use her kitchen for Thanksgiving, 1983. Except for recurring problems of improperly installed tiles, cabinets and appliances, related infra., Respondent completed the bulk of the kitchen remodeling in early December, 1983. Also in early December, 1983, the swimming pool was dug and gunnite was sprayed for the pool. Gunnite is a base of a spray used for installing the concrete bottom of a swimming pool prior to installing further marble-type finishing material, tile, and accouterments. In this same time period, the overhang above the anticipated patio was torn off the existing house by Respondent with the apparent goal of tying the existing roof beams into the new roof. After December 6, 1983, Respondent failed to perform any actual construction at the Reyes' residence until May, 1984. 2/ His crew only worked there one day in December of 1983. Approximately December 20, renegotiation of pool costs and kitchen tile costs were indulged-in by the the participants. The final result was that the Reyes would pay $80.00 more for kitchen tiles and $106.00 more for pool tiles and would be permitted by Respondent to deduct $246.00 from the total owed on the contract to him. Mrs. Reyes purchased the pool materials and paid cash for them rather than turning over any monies to Respondent but she stored them on her property so that the work could go forward. Respondent testified that shortly before that point in time, he realized that he had underestimated the cost of doing the Reyes' job by $6,000.00 to $7,000.00 and attempted to explain to them that having received approximately 90 percent of the contract price, but having not completed that much of the work contracted-for, he would have to do the work as he was able between other jobs in order to stay afloat financially. Respondent's proposal was not initially acceptable to the Reyes and they hired a lawyer who thereafter prohibited Respondent making direct contact with the Reyes. At that time, the following items remained to be completed at the Reyes' residence. The pool tile had not been installed; the pool equipment had not been purchased or installed; the living room windows had not been installed; and the patio roof had not been completed. There were also numerous problems with the quality of the workmanship of the completed items. The kitchen cabinets and the dishwasher were both initially improperly installed. As a result of the Reyes complaining to the Metropolitan Dade County Building and Zoning Department, one of that agency's code enforcement officers, John Delaney, inspected the Reyes' home on April 20, 1984. At that time, Mr. Delaney noted all of the items listed in Paragraph 8 as needing completion and also noted that the patio roof overhang was still exposed to the elements and that the air conditioning unit was only balanced on a concrete slab. Mr. Delaney estimated that at that time the contract work was approximately 55 percent to 60 percent complete. Upon investigation and a record search, Mr. Delaney determined that Respondent had obtained an approved building permit for the construction of the swimming pool and the open beamed porch. (P-13) The building permit did not specify installation of the pool's piping. Likewise the building permit did not specify that Respondent might perform the interior remodeling work. This permit which Respondent did obtain lists, and Respondent's signature acknowledges, that Respondent knew that "unless specifically covered by this permit" separate permits must also be obtained for electrical, plumbing, roofing, and paving and pool, among other items. Upon concluding his investigation, Mr. Delaney felt sufficient evidence existed to charge Respondent with violation of Section 10-22 of the Metropolitan Dade County Code and forwarded his investigative report to the official for the appropriate unincorporated municipality. This report indicates that Respondent also pulled permits for mechanical air conditioning and heating and an electrical permit for the swimming pool. To Mr. Delaney's knowledge, no charges were ever filed by that official against Respondent. 3/ Mr. Delaney conceded that a state certified general contractor such as Respondent can legitimately do pool piping and that the only failure of Respondent was in not pulling the county permit. He indicated that the kitchen work in the Reyes' home would require a special permit because there is electrical and plumbing work in replacing old appliances with new. However, as to the kitchen cabinets he felt it would be permissible for either the general contractor to pull a general permit or for a subcontractor to pull a specialty cabinet permit. By questions on cross-examination of Mr. Delaney, Respondent asserted that no electrical work was done, no switches were moved and his only work was replacement of kitchen cabinets, floor, and acoustical tile but this is in the form of his questions and not sworn testimony. Respondent eventually came back to the Reyes job. He finished the pool in July, 1984. He finished the open beamed roof in October 1984. Respondent's carpenters or subcontracting cabinetmakers Carlos and Hector eventually fixed a kitchen door drawer Mrs. Reyes had complained about. (It was never established what these workers' status was/is.) Despite her general dissatisfaction with the tiles in her kitchen, despite a chipped sink, and despite personally having to explain to the plumber (again the tile setter and plumber's contract or employment relationship with Respondent is unclear) how to install the dishwasher, Mrs. Reyes currently feels 95 percent of the contract work has been completed by Respondent. 4/ She acknowledged that Respondent has provided additional bronze fixtures in her family room by way of mitigation. As to Counts IV--VII: In March, 1982, June Mildred Cooper contracted with one Steve Karlan for the construction of a bathroom addition on a residence located at 4835 Westwood Lakes Drive, Miami, Florida. The contract price was $6,700.00. Steve Karlan is not registered, certified, or otherwise licensed by the Florida Construction Industry Licensing Board. See supra. All oral representations made by Karlan to Mrs. Cooper are total hearsay and excludable, but it is clear that Respondent was never mentioned or otherwise identified during the contract negotiation of Cooper and Karlan. Cooper submitted contract payments directly to Karlan and never paid anything to Respondent. Cooper found Respondent on the job one day and thinks he said something to her like, "I'm the boss," but her memory of the exact language, if any, is vague. Cooper was admittedly not on the premises most of the time the construction was in progress because she repeatedly visited her other residence in Indianapolis for several months at a time. Respondent admits he was approached by Steve Karlan to give an estimate for the bathroom job and they thereafter agreed that Respondent should do the work. Respondent admits Karlan later gave him a piece of paper, probably a tax assessment, showing June Cooper's name as the owner, which Respondent used as the basis for filling out the building permit application which he applied for and received covering the portion of the construction work he did at her Florida residence. At the conclusion of his job, Respondent also executed a waiver-of- mechanic-lien affidavit which did not specify any owner and gave it to Karlan. Gomez never inquired into the relationship between Karlan and Cooper and just assumed Karlan was a relative, probably a son, living at the same address, and initially assumed Karlan had authority to authorize the work because Karlan opened the door to him the first time Respondent came to do the requested estimate. At the time Karlan opened the door to Respondent, some construction was already in progress in the house. Respondent represents that this scenario of obtaining a construction job is so customary in the trade that he never questioned Karlan's statement until Mrs. Cooper ultimately complained about the construction after completion. He recalls meeting her at the house twice during construction, but does not think he told her he was the boss. In mitigation, he represents that he made good on Mrs. Cooper's complaints. Respondent admits he later entered a contract with Steve Karlan as a "salesman" after satisfying Mrs. Cooper but that contract had nothing to do with the Cooper job.
Recommendation Accordingly, upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Construction Industry Licensing Board enter a final order requiring Respondent to pay a penalty of $1,000.00 and monitoring his license for one year in a probationary status. DONE and ORDERED this 18th day of July, 1985, in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1985.
The Issue Whether pursuant to Sections 57.111 or 120.595(1), Florida Statutes, Petitioner Rafael R. Palacios (Palacios) should be awarded reasonable costs and attorney's fees incurred in defense of an administrative proceeding against him that was initiated by the Respondent, Department of Business and Professional Regulation (Department). Whether pursuant to Section 120.595(1), Florida Statutes, Petitioner Steven L. Johns (Johns) should be awarded reasonable costs and attorney's fees incurred in defense of an administrative proceeding against him that was initiated by Respondent.
Findings Of Fact Petitioner, Steven L. Johns, is a Florida Certified General Contractor and the principal qualifier for C. G. Chase Construction Company (Chase Construction). In 1994, Chase Construction entered into a construction contract with Carnival Cruise Lines for an expansion project at the Port of Miami. Chase Construction subcontracted the mechanical work to R. Palacios & Company. Petitioner, Rafael R. Palacios, is the president, primary qualifier, and 100 percent stockholder of R. Palacios & Company. Palacios' principal place of business is located in Miami, Florida. In July and December 1998, Palacios employed less than 25 employees and had a net worth of less than $2,000,000. The contract for the Port of Miami project consisted of two phases. Phase I was to construct an arrival lobby and an enclosed walkway to a terminal. Phase II included the addition of boarding halls, the renovation of an existing elevated area, and the addition of baggage areas. A foundation permit had been pulled for Phase I. The foundation work was quickly completed, and Chase Construction representatives advised both the Port of Miami and Carnival Cruise Lines that they could go no further without a permit. Work stopped for a short period of time. In June 1995, a Representative from the Port of Miami called Chase Construction and told them to go to the Dade County Building and Zoning Department (Building Department) the next day to meet with Port of Miami officials, the architect, and building and zoning officials. Johns sent Dave Whelpley, who was a project manager and officer of Chase Construction. Palacios did not attend the meeting. Dr. Carlos Bonzon (Bonzon) was the director and building official of Dade County's Building Department during the majority of the construction activities at the Port of Miami by Chase Construction. As the building official, Dr. Bonzon gave verbal authorization for the work on the project to proceed above the foundation without a written permit. Inspections were to be done by the chief inspectors for Dade County. After the meeting with the Building Department officials in June 1995, Johns understood that authorization had been given by the building official to proceed with construction without a written permit. Work did proceed and inspections were made on the work completed. The Dade County Building Code Compliance Office (BBCO) had the responsibility to oversee Dade County's Building Department. In early 1996, an officer of the BBCO accompanied a building inspector during an inspection of the Port of Miami project. It came to the attention of the BBCO officer that no written permit had been issued for the project. The BBCO officer notified the chief of code compliance for Dade County. A written permit was issued for Phase II of the Port of Miami Project on February 6, 1996, at which time approximately 80 percent of the work had been completed. On the same date, Chase Construction issued a memorandum to its subcontractors to secure the necessary permits. Shortly after the permits were issued, an article appeared in the Miami Herald concerning the project and the lack of written permits. Respondent, Department of Business and Professional Regulation (Department) became aware of the situation as a result of the newspaper article and began an investigation. Diane Perera (Perera), an attorney employed by the Department since 1993 to prosecute construction-related professional license law violations, played a major role in determining and carrying out the Department's subsequent actions regarding the Port of Miami project and persons licensed by the Department who had been involved in the project. The Department opened investigations against eight Department licensees. Those licensees included two building officials, Bonzon, and Lee Martin; four contractors, Johns, Palacios, Douglas L. Orr, and D. Jack Maxwell; one engineer, Ramon Donnell; and one architect, Willy A. Bermello. By Administrative Complaint prepared by Perera and filed on September 9, 1997, before the Building Code Administrators and Inspectors Board (BCAIB), the Department charged Bonzon with various violations of Part XIII of Chapter 486, Florida Statutes, for having allowed above-grade construction on the project to proceed in the absence of approved plans and building permits. In conjunction with the Bonzon case, Charles Danger (Danger), a licensed professional engineer and Director of BBCO testified in a deposition that above-grade construction of the project had proceeded without a building permit and without approved plans in violation of Chapter 3, Section 301 of the South Florida Building Code. He also testified that Bonzon had exceeded his authority under the South Florida Building Code by authorizing the above-grade construction and that the contractors who performed the work did so in violation of the South Florida Building Code. The Department's charges against Bonzon were resolved through a settlement agreement, whereby Bonzon agreed to relinquish his building code administrator's license. A final order of the BCAIB accepting the settlement agreement was filed on July 2, 1998. In the settlement agreement, Bonzon specifically agreed that his interpretation of the South Florida Building Code provisions, including portions of Section 301, was erroneous. On June 24, 1998, the Department presented the Department's Case Number 97-17322 involving Johns to the Division I Probable Cause Panel (PCP) of the Construction Industry Licensing Board (CILB). The panel members on this date were Gene Simmons and Wayne Beigle. Stuart Wilson-Patton and Leland McCharen, assistant attorneys general, were present to provide legal advise to the PCP. The prosecuting attorney presenting the case to the panel was Perera. The Department was requesting a finding of probable cause against Johns for a violation of Section 489.129(1)(d), Florida Statutes, for knowingly violating the applicable building code by performing above-grade construction work on the Port of Miami project in the absence of approved plans and specifications. Prior to the meeting of the Division I PCP of the CILB, Perera had furnished the two panel members documentary evidence pertaining to the case, copies of which were received in evidence at the final hearing as Respondent's Exhibits 5 and 13, with the exception of a letter dated July 31, 1998, from Petitioners' attorney, Renee Alsobrook. Respondent's Exhibit 5 consisted of materials taken from the Bonzon and Lee Martin cases, including the transcript of the December 22, 1997, deposition of Charles Danger, who was the building officer for the BBCO from 1991 to 1998. Respondent's Exhibit 13 was the investigative file for the Johns' case. The Division I PCP discussed Johns' case and voted to request additional information regarding whether any fast track ordinance existed in Dade County, and if so, how it might have applied to the Port of Miami project. On June 24, 1998, the Division II PCP of the CILB met and discussed the Palacios case, which was designated as the Department's Case No. 97-17313. The members of the panel were James Barge and Richard Cowart. Mr. Wilson-Patton and Mr. McCharen were present to provide legal advise to the PCP. The prosecuting attorney presenting the case to the PCP was Perera. The Department was requesting a finding of probable cause against Palacios for violating Section 489.129(1)(d), Florida Statutes, by knowingly violating the applicable building code by performing above-grade construction work on the Port of Miami project in the absence of approved plans and a building permit. Prior to the Division II PCP meeting, the panel members were provided with materials which were received in evidence at the final hearing as Respondent's Exhibits 5 and 14, with the exception of letters dated July 31 and August 26, 1998, from Renee Alsobrook. Respondent's Exhibit 14 is the Department's investigative file on the Palacios case. Following a discussion of the Palacios case, one of the panel members made a motion not to find probable cause. The motion died for lack of a second, and the panel took no further action on the case that day. Pursuant to Section 455.225(4), Florida Statutes, the case was treated as one in which the PCP failed to make a determination regarding the existence of probable cause and was presented to Hank Osborne, Deputy Secretary of the Department, to make a determination whether probable cause existed. On July 2, 1998, Deputy Secretary Osborne found probable cause, and the Department filed an Administrative Complaint against Palacios, charging a violation of Section 489.129(1)(d), Florida Statutes. The Department never served Palacios with the Administrative Complaint filed on July 2, 1998. The Department did not notify Palacios that the Administrative Complaint had been filed and did not prosecute the Administrative Complaint. At the time the Administrative Complaint was filed, the Department believed that the Legislature was in the process of enacting legislation to repeal Section 489.129(1)(d), Florida Statutes. Chapter 98-419, Laws of Florida, which became law on June 17, 1998, repealed Section 489.129(1)(d), Florida Statutes, effective October 1, 1998. Because of the repeal and the lack of a savings clause for pending cases, the Department determined that as of October 1, 1998, the Department did not have authority to take disciplinary action based on a violation of Section 489.129(1)(d), Florida Statutes. On December 18, 1998, the Department presented the Department's Case Nos. 97-17133 and 97-1732 to the PCPs for a second time with a recommendation to find probable cause that Johns and Palacios had violated Section 489.129(1)(p), Florida Statutes, for proceeding on any job without obtaining applicable local building permits and inspections. Mr. McCharen was present to provide legal advice to the PCPs. Ms. Perera was also present during the meetings of the PCPs. Documentary materials presented to the PCP considering Palacios' case included the materials on the Bonzon and Martin cases which had been previously presented to the PCP panel in June 1998 and the investigative files on Palacios. The investigative file included letters with attachments from Palacios' attorney Rene Alsobrook concerning the materials contained in the Bonzon and Martin cases as they related to Palacios and the investigative file on Palacios. Additionally, the investigative file contained a report from Frank Abbott, a general contractor who had been asked by the Department to review the file on Palacios. Mr. Abbott concluded that Palacios had violated several provisions of Chapters 489 and 455, Florida Statutes, including Section 489.129(p), Florida Statutes. The PCPs found probable cause in the Johns and Palacios cases. On December 23, 1998, the Department filed administrative complaints against Palacios and Johns alleging violations of Section 489.129(1)(p), Florida Statutes. The cases were forwarded to the Division of Administrative Hearings for assignment to an administrative law judge. Palacios and Johns claimed that they were relying on the authorization from Bonzon when they proceeded on the above-grade construction work. No formal administrative hearing was held on the administrative complaints filed on December 23, 1998. On December 18, 1998, a Recommended Order was issued in the related case against Lee Martin, Department Case No. 97-11278, finding that Mr. Martin, the building official who replaced Bonzon and assumed responsibility for the Port of Miami project, had the discretion to allow the remaining construction to proceed while taking action to expedite the plans processsing. A Final Order was entered by the Department dismissing all charges against Mr. Martin. On February 26, 1999, Petitioners Palacios' and Johns' Motions to Dismiss and Respondent's responses were filed. The Motions to Dismiss did not request attorney's fees or costs and did not reference Section 120.595(1), Florida Statutes. The motions did contain the following language: The DBPR has acted in an improper and malicious manner by precluding the Respondent from asserting his response to the second draft Administrative Complaint and requesting the Panel to find probable cause for reasons other than whether there was probable cause to believe the Respondent violated specific disciplinary violations. On March 19, 1999, the cases were consolidated and noticed for hearing on May 12-13, 1999. Section 489.129, Florida Statutes, was amended during the 1999 legislative session to provide: A contractor does not commit a violation of this subsection when the contractor relies on a building code interpretation rendered by a building official or person authorized by s. 553.80 to enforce the building code, absent a finding of fraud or deceit in the practice of contracting, or gross negligence, repeated negligence, or negligence resulting in a significant danger to life or property on the part of the building official, in a proceeding under chapter 120. . . . On April 15, 1999, the Department filed a Motion for Leave to Revisit Probable Cause Panel and to Hold in Abeyance. On April 20, 1999, Petitioners filed a response, stating they did not object to the granting of the motion to hold in abeyance. The final hearing was cancelled, and the cases were placed in abeyance. On May 24, 1999, the Department submitted a Status Report, stating that the cases would be placed on the next regularly scheduled PCP meeting scheduled for June 16, 1999. By order dated May 25, 1999, the cases were continued in abeyance. On July 1, 1999, Palacios and Johns filed a Status Report, indicating that the cases would be presented to the PCPs sometime in July and requesting the cases be continued in abeyance for an additional 30 days in order for the parties to resolve the issues. On July 30, 1999, Palacios and Johns filed a Status Report, stating that the cases were orally dismissed on July 28, 1999, and that a hearing involving issues of disputed facts was no longer required. Based on Johns' and Palacios' status report, the files of the Division of Administrative Hearings were closed by order dated August 3, 1999. No motion for attorney's fees and costs was filed during the pendency of the cases at the Division of Administrative Hearings. On August 3, 1999, orders were entered by Cathleen E. O'Dowd, Lead Attorney, dismissing the cases against Palacios and Johns.
The Issue Whether disciplinary action should be taken against Respondent, Michael Hill's, contracting license based on the violations as charged in the Administrative Complaint in this proceeding.
Findings Of Fact Based on the evidence and testimony of the witnesses presented and the entire record in this proceeding, the following Findings of Fact are made: Respondent is a certified contractor, having been issued License No. CR C057409 by the Florida Construction Industry Licensing Board. Respondent's license as a certified residential contractor is currently active. Respondent was not certified with the Construction Industry Licensing Board as doing business as "Michael Hill Homes, Inc." On or about April 11, 2005, Kenneth and Aldith Farquharson ("Farquharson") entered into a written contractual agreement with Respondent, d/b/a Michael Hill Homes, Inc., for the construction of a single-family residence at Lot 17, Hattaras Terrace, Palm Bay, Florida. The original contract price of the contract between Respondent and Farquharson was $240,900.00. The original contract price was subsequently increased, via change orders executed by Respondent and Farquharson, by $4,500.00, for a total contract price of $245,400.00, adding the value of the change order for the fill dirt needed for the lot. On June 19, 2005, Farquharson paid a total of $28,590.00 to Respondent. The scope of work under contract required appropriate permits from the City of Palm Bay Building Department before work could commence. Respondent failed to apply for the permits necessary to commence work under the contract. Respondent delivered some sand to the lot on or before October 2005. After delivering the sand, Respondent failed to continue any more of the contracted work. From November 2005 to December 2006, Respondent performed no work on the project under contract. From October 2005 to February 2006, Farquharson made multiple attempts to contact Respondent regarding the lack of work under the contract. Farquharson did not prevent Respondent from commencing and completing the work under contract or agree to delay the project for any reason. Farquharson did not terminate the contract with Respondent. Respondent did not refund any money to Farquharson. The amount of actual damages that Respondent caused Farquharson is calculated as follows: Amount paid: $28,590.00 Amount of work performed by Respondent (dirt fill): _ 4,500.00 $24,090.00 The Petitioner's total investigative cost for the case is $439.79.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered as follows: Finding Respondent guilty of having committed one violation of Subsection 489.129(1)(i), Florida Statutes, as alleged in Count I of the Administrative Complaint, for violating Subsection 489.119(2), Florida Statutes, and imposing as a penalty an administrative fine in the amount of $500.00; Finding Respondent guilty of having committed one violation of Subsection 489.129(1)(i), Florida Statutes, as alleged in Count II of the Administrative Complaint, for violating Subsection 489.126(2)(a), Florida Statutes, and imposing as a penalty an administrative fine in the amount of $1,000.00; Finding Respondent guilty of having committed one violation of Subsection 489.129(1)(g), Florida Statutes, as alleged in Count III of the Administrative Complaint, and imposing as a penalty an administrative fine in the amount of $2,500.00; Finding Respondent guilty of having committed one violation of Subsection 489.129(1)(j), Florida Statutes, as alleged in Count IV of the Administrative Complaint, and imposing as a penalty an administrative fine of $5,000.00; Finding Respondent guilty of having committed one violation of Subsection 489.129(1)(o), Florida Statutes, as alleged in Count V of the Administrative Complaint, and imposing as a penalty an administrative fine in the amount of $1,000.00; Finding Respondent guilty of having committed one violation of Section 489.129(1)(m), Florida Statutes, as alleged in Count VI of the Administrative Complaint, and imposing as a penalty an administrative fine in the amount of $2,500.00; Respondent be ordered to pay financial restitution in the amount of $24,090.00 to Kenneth and Aldith Farquharson; Assessing cumulative cost of investigation and prosecution in the total amount of $439.79, which excludes costs associated with any attorney's fees; and Permanently revoking Respondent's license as a result of the numerous violations and the financial harm sustained by Kenneth and Aldith Farquharson. DONE AND ENTERED this 12th day of October, 2007, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 12th day of October, 2007.
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 Harry L. Wilson is the holder of a registered roofing contractor's license from the Florida Construction Industry Licensing Board. The license, Number RC 0041328, was first issued in March of 1982. The license was issued in the name of Harry L. Wilson Roofing, 1943 Hardy Street, Jacksonville, Florida, with the Respondent as qualifier. The Respondent has been the qualifier of Harry L. Wilson Roofing at all times relevant to this proceeding. On December 6, 1984, the Respondent and Robbie L. Hicks, entered into a written contract (Petitioner'S Exhibit 2). Pursuant to this written contract (hereinafter referred to as the "Contract"), the Respondent agreed to perform the repair work specified in the Contract in a "professional manner" and Ms. Hicks agreed to pay the Respondent $2,395.00. The property to be repaired is rental property owned by Ms. Hicks. The property is located at 1508 Eaverson Street, Jacksonville, Florida. The Respondent commenced work sometime during the early part of 1983. Shortly after commencing work, however, the Respondent and Ms. Hicks began having disagreements as to the work to be performed and the quality of the Respondent's work. These disagreements continued after the Respondent completed the work in November of 1983. Ms. Hicks testified that the work that the Respondent completed was done in an unprofessional manner and that the Respondent had not completed all of the work that he had agreed to perform. In particular, Ms. Hicks testified that the Respondent had failed to paint the interior of the house beige as required by the Contract, had failed to remove saw dust and other debris from the house following completion of the work, had failed to finish cabinets installed in the house, had failed to repair screens and generally had not performed in the manner he had agreed to perform. Ms. Hicks paid the Respondent all but $410.00 of the contract price. The Respondent testified that all off the work called for pursuant to the Contract had been performed. According to the Respondent, he had performed some work not required by the Contract and had not performed other work requested by Ms. Hicks because the work was beyond the scope of the Contract. The Respondent also stated that the work which Ms. Hicks expected would have cost considerably more than the price agreed upon in the Contract. The Respondent did not perform all of the work specified in the Contract in a "professional manner" as required by the Contract. Based upon the testimony of Mr. Claude Bagwell, Deputy Chief, Building and Zoning, Inspection Division of the City of Jacksonville, it is clear that no permit was issued by the City of Jacksonville to perform the work required by the Contract. The only permits issued with regard to Ms. Hicks' rental property was a permit issued in 1961 and the original building permit issued in 1949. Additionally, due to the fact that no Florida registered roofing contractor's license in the name of "Harry L. Wilson Roofing" had been filed with the City of Jacksonville, no permit could be issued to Harry L. Wilson Roofing with regard to the Contract. The Respondent admitted that he had not obtained a permit to perform the work required by the Contract. The Respondent indicated that he had not obtained a permit because he was not aware that one was required in order to perform the work. He did indicate that he had obtained permits to perform other jobs. The Respondent could not, however, have obtained permits for other jobs because no license issued in the name of Harry L. Wilson Roofing had been filed with the City of Jacksonville. The Respondent did take the examination required in order to obtain a registered roofing contractor's license. The Petitioner suggested in its Proposed Findings that the "permit requirement was explained" when the Respondent took the exam. No evidence to support such a finding was presented at the hearing. The Respondent in entering into the Contract clearly used the name "Wilson Recycling". Nowhere on the Contract is the name "Harry L. Wilson Roofing" used. The Respondent ultimately admitted that no Florida license authorizing the use of the name "Wilson Recycling" had been obtained by him. The Respondent, however, when initially asked whether a Florida license in the name of "Wilson Recycling" had been obtained indicated that such a license had been issued. On further examination, however, the Respondent testified that an occupational license in the name of "Wilson Recycling' had been obtained by him and not a Florida license. The work to be performed pursuant to the Contract was beyond the scope off the Respondent's license. As pointed out by Mr. Bagwell the work to be performed pursuant to the Contract would require licensure as a registered residential contractor or more.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That count I of the Administrative Complaint filed against the Respondent be dismissed. It is further RECOMMENDED: That Respondent be found guilty of violating Section 489.129 (1)(g), Florida Statutes (1983), by contracting in a name other than the name as set forth on the Respondent's license. It is further RECOMMENDED: That Respondent be found guilty of violating Section 489.129(1)(j), Florida Statutes (1983), by failing in a material respect to comply with the provisions of Section 489.119(2) and(3), Florida Statutes (1983), in that the Respondent failed to qualify the business name "Wilson Recycling" with the Construction Industry Licensing Board. It is further RECOMMENDED: That Respondent be found guilty of violating Section 489.129(1)(j), Florida Statutes (1983), when he failed in a material respect to comply with the provisions of Section 489.117(2), Florida Statutes (1983), by contracting to perform and actually performing work beyond the scope of his Florida contracting license. It is further RECOMMENDED: That Petitioner suspend Respondent's roofing contractor's license for a period of three (3) months. DONE and ENTERED this17th day of December, 1984, in Tallahassee, Florida. LARRY J. SARTIN 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 17th day of December, 1984. COPIES FURNISHED: H. Reynolds Sampson, Esquire Staff Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harry L. Wilson 1943 Hardee Street Jacksonville, Florida 32209 Mr. Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issues in this cause are those promoted by the filing of an Administrative Complaint by the Department of Professional Regulation accusing the Respondent of various violations of Chapter 489, Florida Statutes. Should the Respondent be found guilty, this action contemplates the imposition of a penalty against Respondent's license as a commercial pool contractor in Florida.
Findings Of Fact 1. Respondent, at all times relevant to this inquiry, was a registered commercial pool contractor having been issued license number RP0041725. This is a license issued by the Florida Construction Industry Licensing Board. 2..On November 18, 1983, Respondent entered into a contract under the name Kennedy Pool and Construction Co., an entity for whom Respondent serves as a qualifying agent in the commercial pool contracting business. This contract was with one Marie Robertson; however, the contract was not for the purpose of construction of a pool. It was for construction of a 20' by 24' block garage. This structure was to be free-standing and would be located adjacent to Ms. Robertson's residence, which is also used in her business. Petitioner's exhibit number 2 is a copy of the contract and reflects the $4,800.00 contract price. Robertson has paid the full amount of the contract and the garage construction was completed in January, 1984. Respondent personally built the garage. Respondent built the garage without obtaining a building permit from the City of Jacksonville, Florida. Respondent also failed to submit plans and specifications to the City of Jacksonville, which set forth the design and placement of this garage structure. Having failed to request a permit or to submit plans and specifications, Respondent made no request of the City of Jacksonville Building Department to inspect the construction related to the garage. Finally, Respondent in his licensure with the State of Florida, and license recognition with the City of Jacksonville, was not authorized to serve as a building contractor engaging in the construction of structures such as the garage in question. The project at issue entailed the pouring of a foundation; the erection of block walls the erection of a roof truss system and the installation of a roof covering of shingles. All of these items were beyond the license recognition which respondent held with the State of Florida and the City of Jacksonville. When the City of Jacksonville discovered the existence of the garage, it made the owner aware that the structure was in violation of the City of Jacksonville Building Code related to the need for obtaining a building permit, and the fact that the garage structure violated the city's set-back requirement. This later item pertained to the fact that given the commercial utilization of the property, on the part of Ms. Robertson, the garage was too close to the city street. As a consequence, Robertson was put to the inconvenience of obtaining and paying for a building permit and gaining a variance from the set-back requirements mentioned. Had the City of Jacksonville been presented with building plans and specifications, this would have alerted the city to the fact that the placement of the garage was too close to the street. When confronted with her difficulty, Ms. Robertson contacted the Respondent to gain his assistance in obtaining a building permit. The Respondent indicated that it was her problem and said that he could not get a permit because the property was business property and not private property. The Respondent was charged by the City of Jacksonville through a notice of violation of local zoning requirements related to the failure to obtain a building permit and the fact that the Respondent was not licensed by the City of Jacksonville to construct a garage at the Robertson residence. Attempts at serving the violations were not successful in that calls to the Respondent and issuance of notice of violations through certified mail, return receipt requested, were not acknowledged by the Respondent.
The Issue Petitioner, Florida construction Industry Licensing Board (hereafter FCILB) seeks to revoke the building contractors license of Respondent, John N. Lambert (hereafter Lambert), on the ground that Lambert willfully or deliberately disregarded and violated applicable building codes of Metropolitan Dade County in violation of Section 468.112(2)(a), Florida Statutes. Initially, Lambert was also charged with abandonment of a construction project in violation of Section 468.112(2)(h), Florida Statutes. However, at the hearing, FCILB abandoned the charge.
Findings Of Fact Lambert is the holder of an inactive building contractors license number CBC009927 which legally qualified Lambert to act for Allstate Homecrafts, Inc., a corporation located in Miami, Florida, engaging in contracting work. Lambert was employed by the corporation but was not an officer or shareholder. On June 10, 1976, Lambert initiated a building permit application for work proposed to be done on the home of Mr. Nelson Tower. Mr. Tower had entered into a contract with Allstate Homecrafts, Inc., on June 4, 1976. The contract reflects that Mr. Neal Phillips acted as a corporate representative and not Lambert. The building permit was issued on August 11, 1976. On July 24, 1976, Allstate Homecrafts, Inc., contracted with a Mr. William Millman, and once again the contract reflects that Neal Phillips was the corporate representative and not Lambert. On September 13, 1976, and again on September 30, 1976, Lambert made application for a building permit with she City of Coral Gables, Florida, for the Millman job. Work was commenced on both projects. Work was still in progress on October 26, 1976, when Lambert wrote a letter to FCILB requesting that his qualification as contractor for Allstate Homecrafts, Inc., cease immediately. The reasoning given by Lambert, without further explanation, was that he could "in good conscience no longer comply" with Florida law regarding licensing of construction industry. Lambert further requested in the letter that he be requalified as an individual licensee. On the same date, Lambert terminated his employment with Allstate Homecrafts, Inc. The Tower project continued on until January, 1977, when it was abandoned by Allstate Homecrafts, Inc. The contract price was $30,000.00 and over $25,000.00 in draws were made. Five thousand dollars ($5,000.00) was drawn on November 2, 1977 $5,000.00 wad drawn on November 24, 1976, and $5,000.00 was drawn on December 16, 1976. These occurred after Lambert terminated his relationship with Allstate Homecrafts, Inc. After the contract was abandoned in January, 1977, Tower spent another $23,000.00 to finish the project. The Millman job continued until December, 1976, at which Lire it was abandoned at about 60 percent completion. A $10,000.00 draw was made on November 4, 1976, and a $5,000.00 draw was made on December 2, 1976. Millman spent an additional $10,000.00 to finish the project. Neither Tower nor Millman ever saw Lambert. All monies paid were given to other corporate representatives. While there was some evidence that violations of applicable building codes did occur, there was a complete absence of evidence to establish that Lambert willfully or deliberately disregarded the South Florida Building Code 4501.2(d)(4); failure to correct an electrical hazard. On February 2, 1978, the Dade County Construction Trade Qualifying Board reported that it had found that there was a prima facie showing of the charges brought against Lambert.
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, /
