The Issue Whether Respondent, a licensed general contractor, committed the offenses set forth in the Administrative Complaint or is responsible for the offenses set forth in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact At all times pertinent to this proceeding, Respondent was a certified general contractor and the holder of license number CG C031547 issued by the Florida Construction Industry Licensing Board. At all times pertinent to this proceeding, Respondent was the licensed qualifying agent for A.A. Home Improvement Company, Inc. (A.A.), 4101 North Andrews Avenue, Fort Lauderdale, Florida, and as such qualifying agent was responsible for all its contracting activities. On August 25, 1990, A.A. contracted with Anthony Williams, Sr., and Janice Williams, 1/ as the owners, to re-roof and perform internal renovations on the owners' house located at 2804 Avenue H, Fort Pierce, Florida, for a contract price of $6,900.00. The contract provided that all repairs and improvements would be done and completed in a substantial and workmanlike manner. The contract between the parties was an installment loan contract that provided for a mortgage on the house and property that was the subject of the contract. On August 25, 1990, Mr. and Mrs. Williams and Ethel Nelson gave A.A. a mortgage on the property to secure payment of the amount of the contract. A.A. assigned the mortgage to Union Mortgage Company, Inc. on August 29, 1990. Subsequent to the assignment of the mortgage to Union Mortgage Company, Inc., Janice Williams and Anthony Williams, Sr., consolidated certain debts through a loan from Metropolitan Mortgage Company of Fort Pierce, Florida. With the proceeds of the Metropolitan loan, Mr. and Mrs. Williams paid off the mortgage that had been given to A.A. on August 25, 1990, and assigned to Union Mortgage Company on August 29, 1990. To secure payment of the Metropolitan loan, Mr. and Mrs. Williams gave Metropolitan a mortgage on the subject property. The Williams were still paying off the Metropolitan mortgage at the time of the formal hearing. The contract between A.A. and the owners required A.A. to remove the existing roof of the subject property and to replace the roof with a twenty-year fiberglass roof, repair the ceilings of three rooms with sheetrock, seal off holes in two walls (these holes resulted after two air conditioning units were removed), install a vinyl floor in the dining room, renovate a bathroom to 90 percent completion, and make certain unspecified minor repairs. A.A. is not certified or registered as a roofing contractor. Respondent is not certified or registered as a roofing contractor. The repair of the roof on the subject property was work that should be performed only by a certified or registered roofing contractor. Workmen from A.A. were present at the job site for approximately a week. After the work was performed, including the roofing work, the owners began having problems with the work performed by A.A. Water began to leak through the walls where the air conditioning units had been. This leaking resulted because A.A. did not properly seal the holes in the wall. Instead, A.A. merely nailed pieces of plywood over the holes where the air conditioning units had been. The roof leaked and caused damage to interior panelling. A.A. did none of the work on the bathroom that had been contracted. Mr. and Mrs. Williams attempted to get A.A. to come back and finish the work or to correct defective work on two occasions. On two separate occasions, a representative of A.A. promised to return to the job site to complete the work and to correct defective work. A.A. did not return to the job site and made no further effort to complete or correct the work on the subject property. Mr. and Mrs. Williams will have to expend approximately $6,000 to repair the roof and interior of the house as a result of A.A.'s failure to perform its contractual duties. In negotiating the contract with A.A., the owners dealt with Christine McDonough, who was a corporate officer of A.A. and who had the authority to bind A.A. as a party to the contract. A building permit was required by the City of Fort Pierce Building Code for the construction contemplated by the subject contract. No permit was obtained by A.A. The Respondent did not supervise any of the work performed on the subject property by A.A.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent be ordered to pay a fine in the amount of $2,250.00 to the Florida Construction Industry Licensing Board and pay restitution to Janice Williams and Anthony Williams, Sr., in the amount of $6,000. DONE AND ENTERED this 28th day of April, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida
The Issue Whether Jose Ramone Garcia obtained a building permit for the purpose of aiding an uncertified or unregistered person to evade the provisions of Part 2, Chapter 468, Florida Statutes.
Findings Of Fact Jose Ramone Garcia holds a license as a general contractor issued by the Florida Construction Industry Licensing Board and is licensed as doing business as Gabros Construction. Jose Ramone Garcia, on or about April 26, 1974, obtained a building permit No. 74-1006 issued by Collier County Building Department to build a home at 378 Seabee Avenue, Vanderbilt Beach, Florida. The home at 378 Seabee Avenue, Vanderbilt Beach, Florida, was built by Roger Dulaney, an unlicensed person, who had contracted verbally to build said home with Mr. William E. Young, the owner of the real property. Jose Ramone Garcia obtained the building permit No. 74-1006 with money given to him by Roger Dulaney, but Jose Ramone Garcia did not receive any compensation for his assistance to Roger Dulaney. Jose Ramone Garcia did not contract with William E. Young to build the home at 378 Seabee Avenue, Vanderbilt Beach, Florida. Jose Ramone Garcia did not contract with any of the subcontractors or materialmen for services or goods used in the construction of the home at 378 Seabee Avenue, Vanderbilt Beach, Florida. Jose Ramone Garcia was frequently at the construction site at 378 Seabee Avenue and did oversee the construction which Dulaney directed. Garcia did insure that all construction work done was in accordance with the specifications and plans and the building code of Collier County. All work on the home at 378 Seabee Avenue was inspected and approved by the building authorities of Collier County. With several minor adjustments, the construction was acceptable to the owners. The major problem involved with the house constructed at 378 Seabee Avenue involved the contract price of the home arrived at between Dulaney and Young. Garcia did not negotiate the contract of the construction of the house at 378 Seabee Avenue and had no knowledge of the contract price. The dispute between Dulaney and Young resulted in court action between these parties which resulted in a judgment by the court in the favor of Dulaney. Jose Ramone Garcia has been unable to obtain a building permit as a contractor in Collier County since the filing of the Administrative Complaint in January, 1976. Garcia currently resides in Collier County.
Recommendation Because the licensing privilege of Garcia has already been effectively suspended for 14 months, which is a substantial period of suspension, the Hearing Officer does not feel that a further suspension would be of any benefit. The Hearing Officer would recommend that a civil penalty of $500 be assessed against Garcia based upon the foregoing findings of fact and conclusions of law. DONE and ORDERED this 29th day of March, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry S. Sinoff, Esquire Jacobs, Sinoff, Edwards, Alford & Burgess Post Office Drawer I Fernandina Beach, Florida 32034 Jose Ramone Garcia 9341 S. W. 38th Street Miami, Florida J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211
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, /
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 are based upon an administrative complaint brought by the State of Florida, Department of Professional Regulation against Phillip E. Sheffield, Respondent. In particular, Respondent is said to have violated the building code of the City of Jacksonville, Florida by failing to obtain a building permit before commencing construction work related to a roofing project and building the roof to a slope that was contrary to that local building code. For violations of the City of Jacksonville building code, Respondent is said to have violated Section 489.129(1)(d), Florida Statutes, by willful or deliberate violation and disregard for the applicable building code of the municipality. Finally, Respondent is said to have violated Section 489.113(3), Florida Statutes by failing to subcontract roofing work.
Findings Of Fact At all times material to these proceedings, Section 4-67 of the Building Regulations, Supplement Number 44, Pasco County Ordinances were in effect and said regulation is the applicable local law. During the applicable time period, the Respondent, ROBERT G. FELLENZ, SR., was registered by the State of Florida as a roofing contractor and held license number RC0027998. Mr. Fellenz is the qualifying agent for Fellenz Roofing Co., Inc. On or about March 24, 1987, the Respondent, FELLENZ entered into a contract with James J. Hoover to re-roof a portion of his residence located at 822 Crestfield Avenue, Holiday, Pasco County, Florida. On April 1, 1987, the Respondent went to the building department in Pasco County to acquire the necessary permit to begin the Hoover project. During the processing of the permit, the Respondent learned that a stop order had been placed on the job. His work crew had disobeyed his direct orders and began work before the permit was obtained. While the Respondent was in the process of having the stop order removed, he learned that his liability insurance had expired. Proof of liability insurance coverage was needed by the Respondent in order for the building permit to be issued by Pasco County on the Hoover project. The Respondent contacted his customer, Mr. Hoover, and explained that he had an insurance coverage problem which he needed to straighten out before work could continue on the roof, and before he could obtain the building permit. Mr. Hoover was not home on the day the re-roofing project was begun and completed by the Respondent. On April 3, 1987, the Respondent obtained liability insurance coverage which went into effect on that date. He began and completed the Hoover re- roofing project on that date. On April 6, 1987, the building department issued the building permit on the Hoover project. A final inspection was never called for by the Respondent. The Respondent has previously been found to have violated Section 489.129(1)(d), Florida Statutes, in Case No. 69097 Construction Industry Licensing Board.
The Issue Whether disciplinary action should be taken against Respondent's license to practice contracting number RC 0054458, based on the violations of Section 489.129(1)(j), (k), (h), (p) and (m), F.S., alleged in the five count Administrative Complaint.
Findings Of Fact Since July 1968 and at all times material, Respondent Ronnie Boles, was licensed as a registered roofing contractor in the State of Florida, having been issued license number RC 0054458, and was registered to do business as "Ronnie Boles Roofing Company." On January 8, 1990 Ronnie Boles, doing business as Ronnie Boles Roofing and Construction, contracted with William C. Martin to construct two pole barns at 10550 N.W. 36th Lane, Gainesville, Alachua County, Florida. The contract price was $21,000.00. There is no evidence that "Ronnie Boles Roofing and Construction" was authorized through a valid contractor to construct pole barns. Respondent's roofing contractor license also did not permit the construction of pole barns. On January 12, 1990, Ms. Jean H. Martin, wife of William C. Martin, issued a personal check to the Respondent for $10,000 as partial payment on the January 8, 1990 contract. The Respondent delivered some materials to the site for use in the construction of the aforementioned pole barns, but never began construction. Mr. Martin attempted to have the Respondent construct the pole barns for over three months without success. The value of the materials provided by the Respondent was approximately $2,000.00, Mr. Martin attempted to have the Respondent refund the $8,000.00 balance of the money Ms. Martin previously paid Respondent on the uncompleted contract. Eventually, Mr. Martin retained attorney Ron Holmes who filed a civil suit against the Respondent based on the aforementioned contract. A judgment for Mr. Martin was obtained in the amount of $9,374.36 on October 1, 1991. Mr. Holmes has attempted to collect the judgment for Mr. Martin on several occasions without success. The Respondent has been actively uncooperative. As of the date of the formal administrative hearing, Respondent had paid no portion of the aforementioned judgment. Mr. Martin filed a complaint against the Respondent with the Department of Business and Professional Regulation. Tom Bishop, Department of Business and Professional Regulation Investigator, investigated the case and mailed the Respondent a notification letter on April 20, 1992. In addition, Mr. Bishop left two messages on the Respondent's answering machine. The Respondent did not respond to the notification letter or the phone messages left by Mr. Bishop. The Department of Business and Professional Regulation has accumulated $22.40 in initial investigative costs, $267.50 in investigative costs, and $605.90 in legal costs associated with prosecution of this cause as of the date of Petitioner's Proposed Recommended Order, totalling $895.80.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Construction Industry Licensing Board enter a final order which provides as follows: Finds Respondent guilty of all violations as set out above. Requires Respondent to pay a collective fine of $5,000.00; Requires Respondent to pay restitution to Mr. Martin of $9,374.36; Requires Respondent to pay costs of investigation and legal fees in the amount of $895.80; and Suspends Respondent's license for three years, thereafter renewal of his license to be subject to proof of Respondent's compliance with requirements (2) - (4) inclusive. RECOMMENDED this 1st day of February, 1994, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1497 The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: 1 Rejected as unnecessary. 2-9 Accepted as modified to remove rhetoric and cumulative material. Respondent's PFOF: None Filed. COPIES FURNISHED: G. W. Harrell, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ron Boles Route 2 Box 417 Alachua, Florida 32615 Richard Hickok, Executive Director Construction Industry Licensing 7960 Arlington Expressway Jacksonville, Florida 32211-7467 Jack McRay, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times pertinent to the issues herein, Graciela Zara was a registered roofing contractor in the State of Florida having license number RC 0035417. Respondent qualified Rolando Lopez Roofing Corp. at all times material to the complaint. Roofing work was done on the building located at 8413 8415 Hardin Avenue; however, the roofing work was not done by Rolando Lopez Roofing, but rather by Chungo, an employee of M. G. Construction Company, the owner of the building. Certain materials for the roofing work were delivered to 8413-8415 Harding Avenue by Tops All Roofing & Building Products, Inc., and those materials were ordered by Rolando Lopez and/or Renee Garcia. Rolando Lopez Roofing performed roofing work at the the bank at Las Americas Shopping Plaza, 8500 N.W. 85th Street; however, there was no evidence presented that Rolando Lopez Roofing failed to obtain a permit for the work it performed. Tropical Roofing entered into a contract for roofing work at the home of Mr. Sosa, 3001 S.W. 96th Avenue, Miami, Florida. 2/ The work was subcontracted to and done by Rolando Lopez Roofing. Although a permit for the work was required, respondent failed to obtain a permit. The respondent was responsible for obtaining the permit because the contractor that performs the work is responsible for obtaining the permit. Leon Gomez entered into a contract with Rene Garcia for roofing work at 309 Pinecrest Drive. Rene Garcia performed the roofing work on the house and was paid for the work by Mr. Gomez. However, the permit for the roofing work was obtained by the respondent. Roofing work was performed at the home of Felipe Acosta, 401 Flagami Boulevard, Miami, Florida. The permit for the roofing work was obtained by respondent. The contract for the work was with Rolando Lopez Roofing. The roofing work was performed by Rene Garcia and other workers that Mr. Acosta did not know. Mr. Acosta does not know Rulando Lopez. The contract negotiations and the payment for the job were handled by Mr. Acosta's brother. Mr. Acosta did not know whether Rene Garcia or Rolando Lopez received payment for she roofing work, but he knows his brother paid one of them. The roofing work was performed pursuant to the contract with Rolando Lopez Roofing. On June 1, 1983, Rolando Lopez Roofing Corp. issued a check for $11,667.86 to Tops All Roofing & Building Products. The check was returned by the bank stamped "Account Closed." On September 16, 1983, Rolando Lopez was adjudicated guilty of issuing a worthless check in violation of Section 832.05. Mr. Lopez paid $5,000 in restitution to Tops All Roofing & Building Products, but he was unable to pay the remaining amount because he has been unable to get any work. There was no evidence that Rolando Lopez Roofing Corp. failed to pay creditors for materials furnished. Although Rolando Lopez failed to make full restitution to Tops All Roofing and Building Products for the $11,667.86 check that was returned, there was no evidence that the check was for building supplies furnished to Rolando Lopez Roofing. Rolando Lopez testified that the check was written for the benefit of his nephew, Rene Garcia, to be used as collateral. Further, there was no evidence that Tops All Roofing & Building Products had furnished any building materials to Rolando Lopez Roofing prior to June 1, 1983, the date of the check. There was no evidence presented that Rene Garcia was not licensed by the State of Florida as a registered or certified roofing contractor
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Respondent be placed on probation for a period of six months. DONE and ORDERED this 2nd day of January, 1985, in Tallahassee, Leon County, Florida. DIANE GRUBBS 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 2nd day of January, 1985.
Findings Of Fact Respondent holds certification with the Florida Construction Industry Licensing Board as a general contractor and a registered roofing contractor, having been issued license numbers CG C009484 and RC0043155, respectively. Tate has qualified a company known as Allstate Roofing and Construction, Co., under the terms of the aforementioned licenses, and at times relevant to this inquiry, operated under that company name. On February 17, 1983, respondent through his business name, Allstate Roofing and Construction, contracted with Wayne Lackey to furnish the necessary labor and materials to build a 28' by 78'brick-veneered housing shell in Clay County, Florida. The specified amount of the contract was $34,365 to be paid in four equal draws, or installments, in the amount of $8,591.25, following the completion of work related to each of the phases. In accordance with the contract terms, Lackey paid the respondent three draws in the amount of $8,591.25, upon assurances that respondent had satisfied the expenses related to subcontractors, suppliers, and materialmen. Respondent requested advance payment of the final draw and indicated to Lackey that this money was to be used to pay for materials related to the construction of the housing shell. Lackey complied with this request and made two advanced payments on the fourth draw in the amount of $2,700 and $500. The total amount of the three draws and the advance payments related to the fourth draw was $28,973.75. At the point of paying the advance on the fourth draw, Tate had also told Lackey that all subcontractors, materialmen and suppliers had been paid, and indicated to Lackey that a written lien affidavit acknowledging that all the costs had been satisfied would be provided to Lackey at the conclusion of the construction. While respondent was still obligated under the terms of the contract, Lackey began to receive phone calls and statutory notices of intentions on the part of materialmen, subcontractors and suppliers indicating that they would lien the homesite of the owner, Lackey. These demands were made on the basis that several of these claimants had not been paid for services or' supplies. When Lackey confronted the respondent, the respondent initially told Lackey to ignore those notices and that they had been paid on checks drawn on the Allstate account. In fact, the claimants had either not been paid, or had been paid with checks upon which insufficient funds were available to honor the checks drawn on respondent's business account. Under the circumstances, the claimants continued to press Lackey for satisfaction of their claims for labor and supplies. As a consequence the Lackey's had to expend money of their own to satisfy the contract conditions on the subject of costs for services by subcontractors, materialmen, and suppliers. These costs should have been defrayed by respondent pursuant to the terms of the contract. Some of the expenses, which are recounted below, were expenses incurred prior to the respondent's entitlement to his fourth draw. Payments by the owners to the claimants are as follows: Acorn Windows Mr. Silvers, carpenter Mr. Bruning for fill material Joe Williamson, brickmason & concrete =$1,875.50 =$1,183.57 =$ 551.00 =$1,100.00 Taylor Concrete =$1,629.85 Mr. Karneol, clean-up =$ 200.00 United Electric =$1,523.00 SUBTOTAL PAID BY CHECK BY THE LACKEYS =$8,060.92 Cash payments for which receipts were given: Williamson =$1,000.00 United Electric =$ 800.00 door hardware =$ 136.08 TOTAL EXPENDITURE BY THE OWNERS =$10,003.00 When the amount paid by the Lackeys to subcontractors, materialmen, and suppliers is added to the $28,973.75 paid directly to the respondent, the expenditure on the part of the Lackeys' was $38,976.75. Respondent is due credits for extras in the amount of $200 for rear concrete slab, $160 for extra brick, and $70 for an interior door. That sum of $430 when subtracted from the overall payments of the Lackeys leaves $38,546.75 expended by the Lackeys, which exceeds the agreement, or contract price, between the respondent and the Lackeys by $4,181.75. From the facts presented, it is evident that the Lackeys did not receive the performance from the respondent which they were entitled to under the terms of the contract, and as a consequence, had to pay an additional $4,181.75 above the contract price, before receiving what they had bargained for. This was at some considerable inconvenience in time as well as money. The proof is not clear on whether the respondent diverted monies or property which he had received to carry out the contract with the Lackeys into some other pursuit or whether respondent made a bargain with the Lackeys which could not be concluded with the amount of available funds which the respondent had accepted by contract as being sufficient for the Lackeys to perform their obligation under the contract.
Findings Of Fact At all times relevant thereto, Respondent, Ronald E. Lotz, held registered roofing contractor license number RC0031773 issued by petitioner, Department of Professional Regulation, Florida Construction Industry Licensing Board. He has been a licensed roofing contractor since February, 1978. His present address is 1650 Palm Avenue, Winter Park, Florida. In April, 1979 Lotz and Allen Hartwell entered into a contract whereby Lotz agreed to install a "new truss, and shingle roof" on Hartwell's house located at 4005 Northwest 19th Avenue, Ocala, Florida. The agreed upon price for the job was $1,225. As is relevant here, Lotz agreed, inter alia, that a "(n)ew exterior siding (would) be used on all gables". According to their agreement, Lotz was to purchase the plywood necessary to complete the work while Hartwell agreed to buy all their necessary materials. Section 6 of Marion County Ordinance 78-5, adopted on January 24, requires that a roofing permit be obtained on all jobs where the value of the work exceeds $100.00. Lotz did not obtain such a permit even though he conceded at the hearing that such a permit was required. Although the contract called for a new exterior side on all gables, Lotz did not install the same. Instead, he installed tongue and groove 3/4 inch boards which he felt were an adequate substitute. He discussed this with Hartwell at the time the job was performed and Hartwell did net object to this change in the contract. Hartwell, who filed a complaint against Lotz, was primarily dissatisfied with a wavy roof. However, that aspect of the job is not a part of this proceeding. The contract itself was modified by the parties a number of times. As a result, Lotz omitted certain requirements therein but added others without additional charge. In all, he was paid $1,125 for the project.
Recommendation Based on the foregoing findings of fact and conclusions of law it is, RECOMMENDED that respondent be found guilty of failing to obtain a roofing permit in violation of Subsection 489.129(I)(d) Florida Statutes, and that he be given a public reprimand and fined $250. It is further RECOMMENDED that all other charges against respondent be DISMISSED. DONE and ENTERED this 27th day of September, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER 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 27th day of September, 1983 COPIES FURNISHED: Charles P. Tunnicliff, Esquire Deaptment of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Ron Lotz 1650 Palm Avenue Winter Park, Florida 32789 Mr. J. K. Linnan, Executive Director Florida Construction Industry Licensing Board Post Office Box Jacksonville, Florida 32201
