Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent James W. Geary presently holds certified general contractor's license number CG C005775. Respondent Geary apparently entered into a contract with Phillip Smith to add a screened porch to the Smith residence. Neither the contract nor the testimony of Mr. Smith were made available to the undersigned Hearing Officer. Respondent had difficulty obtaining a roofer and completion of the project was therefore delayed. During the interim, the interior of the Smith's living room suffered water damage. After receiving a complaint from the Smiths, Mr. Robert Jahn, Chief Building Official for the City of Tamarac, personally inspected the Smith project. He found that the water damage was caused by the uncompleted work of respondent and certain violations of the Southern Florida Building Code. Jahn did not know how long the project had not been worked on, but Smith told him he had tried for about one month to get respondent to return to correct the situation. Respondent testified that when he sent a man to the Smith residence to install the roof columns, Smith chased the man off the job. Upon the delivery of certain supplies for his projects, respondent Geary, d/b/a First Triangle Corporation, wrote two checks in the total amount of $391.41 payable to Rinker Materials. (Exhibit 1) These checks were offered for payment by Rinker, and were returned due to insufficient funds. The former credit manager of Rinker Materials did not know whether anyone from Rinker had contacted respondent about the checks. Respondent testified that no one from Rinker had informed him that the checks were dishonored. However, respondent did receive notice from his bank that the checks had been returned. He was changing banks about the same time and felt that the bank had made mistakes in the past. He felt that the checks were good when issued and he therefore did not put much reliance upon the notices received from the bank. Respondent testified that he is ready, willing and able to honor the checks written to Rinker Materials. Respondent Geary apparently entered into a contract with Richard Decker for the addition of a five by eleven foot bathroom to the Decker's residence. Neither the contract, the plans or specifications nor the testimony of Mr. Decker were offered into evidence at the Hearing. Respondent felt there were no deviations between the finished product and the job specifications, and that, even if there had been, there was no way he could put a five foot vanity into the project without violating the applicable building code. The field investigator for petitioner's District No. 10 found deviations from the plans with regard to the size of the vanity, the bathroom door and the illumination. He found that the Deckers had not indicated their approval of such deviations by placing their initials on the plans or specification. The South Florida Building Code (302.2(b)) provides that when the cost of a job is over $5,000.00, the permit applicant must present plans signed and sealed by a registered architect or engineer. A larger permit fee is also required for jobs costing over $5,000.00. On or about April 9, 1976, respondent Geary applied to the City of Tamarac for two building permits. (Exhibit 2). While blueprints were submitted, no plans signed and sealed by a registered architect Or engineer were submitted. From the square footages contained on the right hand column of the application, Chief Building Official Jahn determined that the value of the two projects were $7,300.00 and $6,620.00. The contract prices for these projects were approximately $8,000.00 and $10,000.00. There was no conclusive testimony as to who supplied the footage information on these applications, It was respondent's opinion that the actual costs of these projects did not exceed $5,000.00. Respondent apparently entered into a contract with Daniel Salzman for some project, and then entered into a second contract for the construction and installation of a fence and a trellis. For this second project, respondent received a deposit of $825.00. The first job was never completed by respondent and respondent never began work on the fence and trellis project. Respondent admitted that some $500.00 was due Mr. Salzman as a refund for the second project. He testified that he instructed Mr. Salzman to have the work on the first project completed by someone else and then to send respondent the bill for the same. Respondent has not heard from Salzman regarding this matter. By letter dated November 20, 1976, Chief Building Official Jahn notified respondent that "No further building permits [would] be issued to First Triangle Builders with you as their qualifier because of numerous complaints and unfinished projects." As indicated in the Introduction, petitioner filed an administrative complaint against respondent seeking to revoke his license for violations of certain ordinances and Florida Statutes S468.112(2). The cause was referred to the Division of Administrative Hearings for the appointment of a Hearing Officer, and the undersigned was designated to conduct the hearing.
Recommendation Based upon the findings of fact and conclusions of law recited above, as well as the seriousness of the offenses of which respondent has been found guilty, It Is recommended that respondent's certified general contractor's license number CG C005775 be revoked. Respectfully submitted and entered this 18th day of July, 1977, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (488-9675) Area Code 904 COPIES FURNISHED: Barry Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 Mr. James W. Geary 4370 Northwest 32nd Court Lauderdale Lakes, Florida Wallace Norman Construction Industry Licensing Board 305 South Andrews Avenue Ft. Lauderdale, Florida 33301 J. K. Linnan, Executive Director Construction Industry Licensing Board Post Office Box 8621 JacksonvIlle, Florida 32211
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaints filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent was licensed as a certified general contractor in the State of Florida, having been issued license number CG C000942. At all times material hereto, Respondent was the licensed qualifying agent for Twenty First Century Construction Management, Inc. On September 5, 1992, Willie Janes, doing business as Janes Roofing Contractor, entered into a contract with Debourah Benjamin to replace the roof at her residence located in Margate, Florida. The contract price was $6,748, but Janes later agreed to do the work for $6,248, which was all Benjamin's insurance company would pay. On November 26, 1992, Benjamin gave Janes a check in the amount of $2,200 as a down payment on the work. The check was payable to Willie Janes. At the time Janes entered into his contract with Benjamin, his local roofing license had expired, and he was not licensed as a roofing contractor by the State of Florida. Respondent applied for the roofing permit for the Benjamin job. The City of Margate Building Department issued permit number 11525-R by and through Respondent's licensure on December 3, 1992. Janes commenced work on the Benjamin project on November 26, 1992. On December 8, 1992, the City of Margate Building Department performed a tin tag inspection of the work done by Janes. The work failed the inspection that day but passed two days later. On January 11, 1993, Benjamin issued a second check, in the amount of $2,300, payable to Willie Janes, for the purchase of roof tile. Janes did not order and did not pay for the roof tile until approximately June 25, 1993. The tile was delivered to Benjamin's residence a few days later and placed on the roof for installation but Janes did not return to the project site. The amount of tile delivered to Benjamin's residence was not sufficient to cover the entire roof. On approximately June 25, 1993, Benjamin noticed for the first time that the name of the company on the permit posted at her residence was Twenty First Century Construction. Neither the Respondent nor Twenty First Century Construction Management, Inc., had any involvement in Benjamin's project other than obtaining the building permit. Benjamin contacted the building department which issued the permit and was referred to Petitioner. An employee of Petitioner advised her that the qualifier for Twenty First Century Construction was Respondent. Benjamin had never heard of Respondent at the time. Benjamin contacted Respondent by telephone several times about completing the work commenced by Janes. Respondent repeatedly promised to finish the roof but never did. Benjamin next contacted the Margate Police Department to report the activities of Respondent and Janes. On September 3, 1993, Officer Liberatori of the Margate Police Department spoke to Respondent by telephone, and Respondent promised to complete the work within 30 days. However, Respondent did nothing to complete the work. The last inspection performed on the Benjamin project under permit number 11525-R was the dry-in inspection performed on February 8, 1993. Permit number 11525-R expired on July 8, 1993. In December 1993 Benjamin had the project completed by another contractor. On November 16, 1992, Delos and Barbara Johnson entered into a written contract with Respondent to remodel a porch enclosure at the Johnson residence in Coral Springs, Florida, for a contract price of $10,250. The Johnsons made three payments to Respondent: $1,000 on September 28, 1992; $5,000 on November 17, 1992; and $3,000 on December 2, 1992. On October 12, 1992, Respondent applied for a building permit from the City of Coral Springs for the Johnson remodeling. The City of Coral Springs issued permit number 920004472 by and through Respondent's licensure on November 30, 1992. When the City of Coral Springs issues a building permit, it provides with the permit a list of the required inspections. Respondent proceeded with the construction until December 2, 1992, when he received the third payment. Thereafter, Respondent ceased all construction activities on the Johnson project. Shortly thereafter, the Johnsons learned from the Coral Springs Building Department that their remodeling project had failed to pass the required inspections. When they confronted Respondent regarding his failure to obtain the required inspections, he represented to them that he had made a videotape of all the work he performed, that he himself was a building inspector and could inspect his work, and that he could get a special inspector to inspect the project from the videotape. At no time material hereto was Respondent a certified building inspector. Videotaping a construction project in lieu of obtaining required inspections is not permitted under the South Florida Building Code nor is it permitted by the City of Coral Springs Building Department. Of the required nine inspections for the project, Respondent only obtained three inspections. Of those three, he only passed two. Respondent's failure to obtain the required inspections constitutes a violation of the South Florida Building Code, the minimum standard required for any type of building construction in South Florida. A contractor's failure to adhere to that minimum standard causes harm to the public from deteriorating construction. The Johnsons and the City of Coral Springs Building Department gave Respondent an opportunity to obtain and pass the required inspections and complete the construction project. When Respondent declined to do so, the attorney hired by the Johnsons discharged Respondent. The Johnsons had paid approximately 90 percent of the money they had saved for the porch enclosure to Respondent, and they could not afford to continue with the construction project using the services of another contractor until November 1994. Rick Hugins of Hugins Construction Corp., the remedial contractor, needed to pass the required inspections that Respondent had neglected in order to be permitted by the City of Coral Springs Building Department to complete the project. Work that needed to be inspected was concealed by subsequently- installed construction materials which had to be removed in order that the required inspections could be performed. Numerous code violations were discovered in the concealed work. The work performed by Respondent was below industry standards. The Johnsons paid Hugins Construction Corp. $10,000 to correct the code violations, to pass the required inspections Respondent had missed, and to complete the project. Hugins completed the project by January 23, 1995. Respondent has been previously disciplined by Petitioner on charges of assisting unlicensed activity and of failing to notify Petitioner of his current mailing address and telephone number. That discipline included the payment of an administrative fine and an assessment of costs associated with that investigation and prosecution.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the allegations contained in Counts I and III of the Administrative Complaint filed against him in DOAH Case No. 97- 1365, finding Respondent guilty of the allegations contained in Counts I and II of the Administrative Complaint filed against him in DOAH Case No. 97-1368, requiring Respondent to pay restitution to the Johnsons, assessing against Respondent the costs of investigation and prosecution through the time the final order is entered, and revoking Respondent's certification as a general contractor in the State of Florida. DONE AND ENTERED this 10th day of July, 1998, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 1998. COPIES FURNISHED: Dorota Trzeciecka, Esquire Department of Business and Professional Regulation 401 Northwest Second Avenue, No. N-607 Miami, Florida 33128 Edward Conrad Sawyer, Esquire 1413 North 58th Avenue Hollywood, Florida 33021 Rodney Hurst, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The Respondent, Thomas J. Embro holds two licenses issued by Petitioner. They are RG0021774, registered general contractor, and RC0021647, registered roofing contractor. He has held these licenses since 1974. Sometime in the fall of 1979 Respondent was hired by Richard F. Rogers to replace the roof on a residential structure located at 4119 N.W. 12th Avenue, Gainesville, Florida. At that time the house was for sale. Mr. Rogers, who is a real estate agent, wanted the roof replaced in anticipation of a Veterans Administration financed sale of the house to Mr. William Schrader. Prior to beginning work on the roof Mr. Embro did not obtain a building permit from the City of Gainesville for the job. On October 1, 1979 Mr. Schrader made a complaint to the Building Division of the City of Gainesville. His complaint stated that the roofing work performed by Respondent was unsatisfactory. Mr. Al Davis, a building inspector employed by Gainesville, reviewed the city records and determined that a permit had not been issued to Respondent for reroofing Mr. Schrader's house. On October 3, 1979 Mr. Davis wrote a letter to Mr. Embro which stated in its entirety: October 3, 1979 Mr. Thomas J. Embro 3816 SW 18 Street Gainesville, Florida Dear Sir: We have received a complaint from Mr. Bill Schrader of 4119 NW 12th Avenue on the reroofing that you performed on his residence. After receiving the complaint I investigated out records and the work performed by your company and found the following violations: Our records indicate that a permit was not issued to reroof the above address, this is a violation of Section 106.1 of the Southern Standard Building Code. The roof material was not installed correctly. Shingles shall be installed in accordance to manufacture [sic] re- quirements and some parts of the roof are too flat for shingles. Interior damage has been caused by the roof leaking from not installing the shingles as required. The above violations shall be corrected within 10 days from receipt of this letter. Your compliance will make further action unnecessary. Sincerely, /s/ Al Davis Building Official cc: Mr. Bill Dow, State Investigator Mr. Bill Schrader Mr. Embro applied on October 25, 1979 for a permit from Gainesville for the work at 4119 N.W. 12th Avenue. The permit was issued on December 6, 1979. It is not unusual in Gainesville for a contractor to begin a construction job before the appropriate permit is applied for or issued. When this is not a frequent practice of a particular contractor the City imposes no penalty. If the contractor habitually begins construction without permits, the City imposes a penalty by charging him double the regular permit application fee. Mr. Embro was not charged a penalty by the City in this case. In the course of his contracting business Mr. Embro frequently asked his wife to make permit applications for him before he begins work. In this case he believed that she had applied for the appropriate permit. The City of Gainesville allows persons other than the contractor to apply for a building permit on behalf of a contractor if the contractor has first filed an authorization with the City designating an agent. Mr. Embro filed such an authorization on February 13, 1980 for his wife to be his designated agent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Professional Regulation, Florida Construction Industry Licensing Board enter a final order dismissing the Administrative Complaint against Thomas J. Embro. DONE and RECOMMENDED this 16th day of November, 1981, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 1981.
The Issue The principal issue in this case is whether certain local technical amendments to the Florida Building Code adopted by the Broward County Board of Review and Appeals (BORA) comply with the requirements of Section 553.73(4)(b), Florida Statutes (2001). As to Broward County, there is the additional issue of whether Broward County is a proper party to this proceeding.
Findings Of Fact Based upon the testimony and evidence received at the hearing, and upon the parties' stipulations, the following findings are made: Findings about status of Broward County Respondent Broward County is a county created pursuant to the laws of the State of Florida. Broward County became a charter county effective on January 1, 1975, by a referendum approved by the voters of Broward County in November of 1974. In 1976, the Broward County Charter was amended to add a new Section 8.18, which the legislative history for the charter describes as establishing BORA as “an arm of Charter government.” Broward County has not voted to adopt any local amendments to the Florida Building Code. Findings about status of BORA Respondent BORA, is a board created under the provisions of the Charter of Broward County (the “Charter”). BORA was originally created in 1971 by a special act of the Florida legislature, 71-575, Laws of Florida, Special Acts of 1971. That special act adopted the South Florida Building Code, as the applicable building code for Broward County and included within the South Florida Building Code as Section 203 the following language, which created BORA: 203. Board of Rules and Appeals. In order to determine the suitability of alternate materials and types of construction, to provide for reasonable interpretation of the provisions of this code and to assist in the control of the construction of buildings and structures, there is hereby created a BORA, appointed by the appointing authority, consisting of twenty-four (24) members who are qualified by training and experience to pass on matters pertaining to building construction. Findings about status of Petitioners Petitioner, TRG-Aquazul, Ltd. ("TRG"), is a Florida limited partnership and is the developer of a high-rise multi- family residential building project located in Broward County (“Project”) which is subject to the Florida Building Code, as amended, in Broward County. Petitioner, Alfonso Fernandez-Fraga, is a principal of Initial Engineers. Mr. Fernandez-Fraga and Initial Engineers are the mechanical engineers of record on the Project. Mr. Fernandez-Fraga's firm has designed other high-rise residential buildings in Broward County in the past and plans on doing more such projects in the future. Petitioners allege that they will be materially and adversely affected by the application of the Broward County local technical amendments to the Florida Building Code in that the application of said technical amendments to the Project will require a redesign of the mechanical systems of the Project to comply with those technical amendments and undertaking such redesign will cost significant time and money. Alfonso Fernandez-Fraga submitted plans to the Broward County Building Department for approval in connection with the Project. The plans submitted included plans for smoke control measures. The smoke control measures were not approved by the chief mechanical official because in his estimation they did not comply with the local technical amendments to the Florida Building Code enacted by BORA on March 1, 2002. Despite the Broward County Building Official’s suggestion that Mr. Fernandez-Fraga appeal the Building Official’s decision interpreting the applicable code, Mr. Fernandez-Fraga decided not to appeal that decision. Rather, Mr. Fernandez-Fraga chose to challenge the validity of the local technical amendments to the Florida Building Code adopted by BORA, a different appeal than the one discussed with the Building Official. TRG, through its engineer and its architect of record on the project, attempted to comply with option four of the local technical amendments at issue here, which allows one to achieve an understanding with the local building official on an alternative method for smoke control. TRG could not, and did not, reach that understanding with the Broward County Building Official. The building that TRG proposes to build is over 75 feet high, which makes it subject to the local technical amendments at issue here. At the time the local technical amendments at issue here were being adopted, Petitioners were not concerned with such developments because at that time they did not have any projects in Broward County. Findings about BORA's amendment process Once it was clear that Florida was going to have a new statewide Florida Building Code, BORA embarked upon a course of action to adopt several local technical amendments to the Florida Building Code. Such amendments were allowed, with certain qualifications and requirements, by the then-new statutes providing for the implementation of a new Florida Building Code. On March 1, 2002, BORA adopted the local technical amendments that are at issue here. Those two local technical amendmants, Sections 412 and M403.6.4, contained standards for the application and testing of smoke control systems for high-rise buildings. The two amendments were more stringent than the corresponding requirements in the Florida Building Code. Each of these local technical amendments had been part of Broward County’s local building code in effect prior to the adoption of the Florida Building Code, and as set forth in the South Florida Building Code, Broward Edition. BORA sought to maintain the status quo within Broward County with respect to the adoption of these two local technical amendments to the Florida Building Code, a status quo that had been in effect since the mid 1980's. The two local technical amendments at issue here did not introduce any new subjects that had not previously been contained in the South Florida Building Code, Broward Edition. The process leading up to the adoption of amendments on March 1, 2002, began several months earlier with the appointment of a committee and a sub-committee to discuss and draft proposed amendments. The chairman of BORA’s Mechanical Committee appointed a subcommittee which reviewed materials and made decisions with respect to the Local Amendments and made recommendations to the Mechanical Committee which, in turn, made recommendations to BORA The meetings of BORA’s Mechanical Committee and its Smoke Control Subcommittee were not publicly noticed in the Sun Sentinel or any other local newspaper of general circulation. No findings or determinations made by BORA’s Mechanical Committee or Smoke Control Subcommittee with respect to the local need to enact the Local Amendments are reflected in the minutes of their meetings. On December 13, 2001, BORA held a hearing to receive and consider information from the subcommittee and the committee regarding the pending proposed amendments. BORA’s December 13, 2001 hearing was not publicly noticed in the Sun Sentinel or any other local newspaper. Final BORA action to adopt the proposed amendments was eventually scheduled for March 1, 2002. The March 1, 2002, BORA meeting was the only BORA meeting pertaining to the local technical amendments at issue here that was publicly noticed in the Sun Sentinel or any other local newspaper. BORA did not make any findings or determinations at the March 1, 2002, meeting. There was no discussion or determinations made at the March 1, 2002, hearing regarding whether there was a local need justifying the subject local technical amendments. There was no discussion at the March 1, 2002 hearing regarding the subject local technical amendments. At the March 1, 2002, meeting, BORA determined that what its Mechanical Committee presented was acceptable and BORA therefore voted to adopt it without any meaningful discussion. BORA did not make any other determinations with respect to the local technical amendments at that hearing. The members of the Florida Building Commission’s Mechanical and Technical Advisory Committee, which drafted and/or made recommendations with respect to the Florida Building Code, are presently considering the possibility of putting more stringent smoke control measures into the Florida Building Code for statewide application. Findings about the challenge process Broward County does not have, and has never had, an interlocal agreement establishing a countywide compliance review board for the purpose of reviewing any challenges to local technical amendments to the Florida Building Code that may be challenged by a substantially affected party. Neither Broward County, per se, nor any of the municipalities in Broward County, is authorized to exercise any authority over the building code in Broward County. In light of this situation in Broward County it appears to have been the concensus of the members of BORA that it was simply not necessary to structure any interlocal agreement nor create any county-wide compliance review board as otherwise generally provided for in the applicable statutory provisions. Thus, when Petitioner Fernandez-Fraga advised BORA that he wished to challenge the validity of two of the local technical amendments adopted by BORA, it was initially unclear where the challenge should be filed and where it should be heard. Following discussion with Commission staff, BORA advised that the challenge should be filed with BORA and would be heard by BORA. On or about March 20, 2003, Petitioners filed an appeal with BORA challenging the validity of the subject amendments. BORA scheduled a hearing on the challenge for April 10, 2003. BORA was apparently of the initial view that it was hearing the Petitioners' appeal in the capacity of a statutory "countywide compliance review board" because BORA originally noticed the April 10, 2003, hearing as being held by “the Board of Rules and Appeals sitting as a Countywide Compliance Review Board pursuant to Florida Statutes 553.73(4)(b) to hear challenges to Broward County Local Amendments to Sections 412 and M403.6.4 by Mr. Alfonso Fernandez-Fraga, P.A.” Notwithstanding the notice and agenda of the April 10, 2003, BORA meeting/hearing, during the course of the hearing BORA took the position that Broward County does not have a countywide compliance review board as described in Section 553.73(4)(b)8, Florida Statutes. Counsel for BORA stated, on the record, that BORA “has exclusive authority over the building code in Broward County.” Counsel then advised the Board: That statutory section which refers to an interlocal agreement applies to counties where the county and municipalities have the authority to amend the code. In Broward County, the municipalities and the county do not have that authority. Therefore, we don’t have a Compliance Review Board in Broward County because it’s just not authorized because we operate on a different procedure here. The Board of Rules and Appeals has the sole authority to amend the code, so we’re hearing this appeal tonight really as an appeal to reconsider whether the action of this board in March of 2002, when you passed these amendments, were done properly, and that’s the sole issue. The appeal was heard by BORA on April 10, 2003. BORA voted unanimously to deny the appeal. Mr. Fernandez-Fraga promptly received a letter from James DiPietro advising him that the appeal had been rejected. Thereafter the Petitioners timely filed their petition seeking relief from the Commission.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Building Commission issue a final order which concludes that, for the reasons set forth above, the local technical amendments adopted by BORA which are challenged in this case fail to comply with the requirements of Section 553.73(4)(b)1, Florida Statutes (2001), and are invalid local technical amendments, and further concluding that Broward County is not a necessary or appropriate party to this proceeding. DONE AND ENTERED this 30th day of June, 2003, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH 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 30th day of June, 2003.
The Issue At the commencement of formal hearing, Petitioner voluntarily dismissed Paragraphs 5 and 7 of the pending Administrative Complaint, and the formal hearing proceeded upon Paragraphs 1-4 and 6 of the Administrative Complaint. The Department of Professional Regulation prosecuted Respondent for one count of the following enumerated alleged violations: Sections 489.129(1)(d), willful or deliberate disregard of building codes; (j), failure in any respect to comply with the Act; (m), fraud, deceit, or gross negligence; and 489.105(4), Florida Statutes, all of which arise out of a single incident.
Findings Of Fact At all times material to the Administrative Complaint, Respondent, Leonardo Sanchez, was licensed by the State of Florida as a certified general contractor holding license numbers CG C004810 and CG CA04810. Robert G. Wolf, Investigator Specialist II with Petitioner, investigated a complaint made by Mirta Garcia against a contractor named Leonardo Sanchez. Ms. Garcia told him she had entered into a contract with a Mr. Sanchez; that she had paid Sanchez a sum of money for an addition to her house; that Sanchez never supplied her a written contract; and that Sanchez pulled a permit for the work and never completed it. Ms. Garcia did not appear and testify at formal hearing and her representations to Mr. Wolf are mere hearsay. They do, however, supplement or explain other competent proof. Mr. Wolf spoke with a Mr. Sanchez who, in Mr. Wolf's words "acknowledged the contractual relationship with the Garcias." (TR-15) Mr. Wolf visited Ms. Garcia's home and determined that a job of construction had been begun there but that interior work had yet to be completed. John Delaney is Assistant Chief Code Enforcement Officer for the Board of Rules and Appeals for the Building and Zoning Department, Dade County. He also visited the Garcia home and on August 18, 1987 it was approximately 80 per cent complete, in his opinion. He presented as a certified business record, a building permit application for an owner "Mirta Garcia" by "Caribean Window" [sic] applied for in the name of Leonardo Sanchez, dated "accepted 12/9/85," and carrying the contractor number CGC004810 and the social security number 109-42- 4859 (P-2). The contractor number and social security number on the application match Respondent's contractor's license and social security number. "Caribbean Window" is one of the entities for which Respondent is the registered qualifying agent. Dade County Ordinance 57-22 establishes that the South Florida Building Code was in effect in Dade County at all times material to this Administrative Complaint. Section 305.2(a) of the South Florida Building Code establishes a mandatory duty for the permit holder to obtain a reinforcing inspection. Mr. Delaney also presented a certified computer printout of a Building Inspection log or record (P-3) showing that no one, including Respondent, had obtained the required reinforcing inspection related to the Garcia job as of the date of the computer inquiry. The computer printout reflects the dates of other inspections and the date and number of the application to which it pertains; it does not clarify when Mr. Delaney made his computer inquiry but a reasonable inference is that it was made the date of his visit to the Garcia home, August 18, 1987. No reason was presented to excuse Respondent as permit holder from obtaining the appropriate inspection.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Construction Industry Licensing Board enter a Final Order finding Respondent guilty of violating Section 489.129(1)(d), assessing an administrative fine therefor of $250.00, and dismissing the remaining charges. DONE and RECOMMENDED this 29th day of December, 1988, at 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 29th day of December, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3445 The following constitute specific rulings upon the parties' respective proposed findings of fact (PFOF) pursuant to Section 120.59(2), Florida Statutes. Petitioner's PFOF 1-7 are accepted as modified to reflect the evidence of record. Respondent's PFOF Respondent submitted no proposals. COPIES FURNISHED: Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 G. W. Harrell, Esquire, and Donald Osterhouse, Qualified Representative Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Leonardo Sanchez 12700 Southwest 37 Street Miami, Florida 33175 Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue DOAH Case No. 89-3902, the Barona and Carrow Complaints Whether Respondent violated Florida Statutes Section 489.129(1)(d), by willfully or deliberately disregarding and violating the applicable building codes or laws of the state or of any municipalities or counties thereof. Whether Respondent violated Florida Statutes Section 489.129(1)(m), by being guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. DOAH Case No. 90-1900, the Grantz, Victor, Beckett, Maffetonne, and Wolfe Complaints Whether Respondent violated Sections 489.129(1)(m), (j), and 489.105(4), and 489.119, Florida Statutes, by being guilty of gross negligence, incompetence, and/or misconduct. Whether Respondent violated Sections 489.129(1)(h), (m), (j), and 489.119, and 489.105(4), Florida Statutes, by being guilty of financial mismanagement or misconduct. Whether Respondent violated Section 489.129(1)(d), Florida Statutes, by wilful or deliberate violation or disregard of applicable local building codes and laws. Whether Respondent violated Sections 489.129(1)(m), (j), 489.119, and 489.105(4), Florida Statutes, by failing to properly supervise contracting activities he was responsible for as qualifying agent, which supervisory deficiency also reflected gross negligence, incompetence, or misconduct Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor. Whether Respondent violated Sections 489.129(1)(m), and (j), Florida Statutes, by giving a guarantee on a job to a consumer and thereafter failing to reasonably honor said guarantee in violation of Florida Statutes. DOAH Case No. 90-1901, the Klokow Complaint Whether Respondent violated Section 489.129(1)(d), Florida Statutes, by wilfully or deliberately disregarding and violating the applicable building codes or laws of the state or any municipalities or counties thereof. Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being guilty of fraud or of gross negligence, incompetency, or misconduct in the practice of contracting. DOAH Case No. 90-1902, the Meister Complaint Whether the Respondent violated Section 489.129(1)(n), Florida Statutes, by failure to obtain a permit. DOAH Case No. 91-7493, the Antonelli Complaint Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. DOAH Case No. 91-7951, the Insurance, Palomba, Romanello and Marin Complaints The Insurance Complaint Whether Respondent violated Section 489.129(1)(c), Florida Statutes, by violating Section 455.227(1)(a), Florida Statutes, by making misleading, deceptive, untrue, or fraudulent representations in the practice of his profession. Whether Respondent violated Section 489.129(1)(d), Florida Statutes, by wilfully or deliberately disregarding and violating the applicable building codes or laws of the state or any municipalities or counties thereof. Whether Respondent violated Section 489.129(1)(c), Florida Statutes, by violating Section 455.227(1)(b), Florida Statutes, by intentionally violating a Board rule. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. The Palomba Complaint Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. The Romanello Complaint Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. The Marin Complaint Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. DOAH Case No. 92-0370, the Pappadoulis Complaint Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing financial misconduct. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by committing gross negligence, incompetence and misconduct in the practice of contracting.
Findings Of Fact Pre-Hearing Admissions 3/ Admissions Applicable to All Cases Respondent is currently licensed as a contractor by the Florida Construction Industry Licensing Board. Respondent's current license number from the Florida Construction Industry Licensing Board is CG C040139. Respondent is licensed by the Florida Construction Industry Licensing Board as a certified general contractor. Respondent holds Florida Certified Roofing License No. CC-042792. Respondent is the qualifying agent for Tropical Home Industries, Inc. As qualifying agent for Tropical Home Industries, Inc., Respondent is responsible for all work performed. DOAH Case No. 89-3902 Respondent was licensed as set forth in items 1, 2, 3 and 4 above at the time of the job alleged in the Administrative Complaint. Exhibit "A", attached to the Request for Admissions 4/ is a true and correct copy of the contract between Sarah S. Carrow and the firm Respondent qualified at the time the contract was executed. As a qualifier for Tropical Home Industries, Inc., Respondent was responsible in his capacity as a certified general and roofing contractor for all work performed by Tropical Home Industries, Inc., pursuant to its contract with Sarah S. Carrow. Pursuant to the contract between Sarah S. Carrow and Tropical Home Industries, Inc., all work under said contract was to be completed in three (3) to six (6) weeks. Respondent, acting through Tropical Home Industries, Inc., failed to complete all work under the contract with Sarah S. Carrow within six (6) weeks after work was commenced. Respondent, acting through Tropical Home Industries, Inc., failed to obtain a final inspection of the work under the contract with Sarah S. Carrow prior to the building permit's expiration date. Broward County, Florida, has adopted the South Florida Building Code as its local ordinance governing residential construction. Respondent's failure to obtain a timely final inspection of the work performed pursuant to the contract between Tropical Home Industries, Inc., and Sarah S. Carrow is a violation of Section 305.2 of the South Florida Building Code. Section 1405.1 of the South Florida Building Code requires installation of either a window or vent fan in each bathroom. Section 3407.9(a) of the South Florida Building Code requires that flashing be installed on plumbing vent pipes which are installed through the roof. Any problems or deficiencies in the work performed by Tropical Home Industries, Inc., pursuant to its contract with Sarah S. Carrow were caused by employees and/or subcontractors of Tropical Home Industries, Inc. DOAH Case Nos. 89-3902, 90-1900, 90-1901, and 90-1902 DOAH Case No. 89-3902 The Baronas' house is located at 1251 Westchester Drive East, West Palm Beach, Florida 33417. Respondent contracted with the Baronas as the qualifying agent of Tropical Home Industries, Inc. The Baronas' house is located within Palm Beach County. Palm Beach County is the appropriate Building Department under which all inspections were to have been performed. DOAH Case No. 90-1901 On or about December 5, 1988, Respondent contracted with Mel Klokow, acting for Linda Klokow ("Klokow"), for the renovation of a screen porch with a roof to her home. Respondent contracted with Klokow as a qualifying agent of Tropical Home Industries, Inc. Permit No. 88-8085 was issued by the local building department. The work at the Klokow residence did not pass final inspection. DOAH Case No. 90-1902 In December of 1987, Respondent contracted to close in a screen porch for Janet Meister ("Meister"). Respondent contracted with Meister as the qualifying agent for Tropical Home Industries, Inc. Respondent failed to obtain a permit for the work performed at the Meister's. Respondent's failure to obtain a permit for the Meister job violated local building codes and Section 489.129(1)(n), Florida Statutes. DOAH Case No. 90-1900 The Grantz home is located at 10878 Granite Street, Boca Raton, Florida. The approximate amount of the contract price with the Grantz was $1,890.00. Respondent contracted for the Grantz job as a qualifying agent of Tropical Home Industries, Inc. Respondent began work at the Grantz residence on or about May 10, 1989. The work at the Grantz residence failed final inspection on July 12, 1989. Respondent wilfully violated applicable local building codes and laws on the Grantz project. Respondent wilfully disregarded local building codes and laws in connection with the Grantz project. Respondent deliberately violated applicable local building codes and laws in connection with the Grantz project. Respondent deliberately disregarded applicable local building codes and laws in connection with the Grantz project. On or about April 12, 1989, and April 17, 1989, Respondent contracted with Stephen Victor ("Victor") to install sliding glass doors at his home. The Victor residence is located at 9768 Majorca Place, Boca Raton, Florida. The contract price with Victor was $3,293.00. Respondent contracted with Victor as a qualifying agent of Tropical Home Industries, Inc. Victor paid a total deposit of $670.00 to Respondent. Respondent never began work at the Victor residence. On or about April 17, 1989, Respondent contracted with Vinton Beckett ("Beckett") to install windows at her home. The Beckett residence is located at 2501 N.W. 41st Avenue, Unit 302, Lauderhill, Florida. The contract price with Beckett was $1,684.00. Respondent contracted with Beckett as a qualifying agent of Tropical Home Industries, Inc. On or about October 29, 1988, Respondent contracted with Thomas and Sherry Maffetonne (the "Maffetonnes") to construct a patio enclosure at their home. The Maffetonne's residence is located at 22980 Old Inlet Bridge Drive, Boca Raton, Florida. The contract price for the work to be performed at the Maffetonnes was $4,350.00. Respondent contracted with the Maffetonnes as a qualifying agent for Tropical Home Industries, Inc. A five-year warranty on materials was given by Respondent for the work to be performed at the Maffetonne's. A one-year warranty on labor was given by Respondent for the work performed at the Maffetonne's. On or about June 6, 1989, Respondent contracted with Mr. and Mrs. Morton Wolfe (the "Wolfes") to install windows at their home. The Wolfe's residence is located at 7267 Huntington Lane, #204, Delray Beach, Florida. Respondent contracted with the Wolfes as the qualifying agent of Tropical Home Industries, Inc. Respondent failed to obtain a timely permit or call for required inspections at the Wolfe residence. DOAH Case No. 91-7951 On June 21, 1990, Tropical's general liability insurance coverage (policy number 891006GL327), produced by Steven Adams and Associates, Inc., (hereinafter "Adams and Associates") and afforded by Guardian P & C Insurance Company, expired. On July 17, 1990, Tropical issued a check to Adams and Associates in the amount of $2,475.00 to obtain general liability and workers' compensation insurance. Upon receipt of the check, Adams and Associates issued a Certificate of Insurance to the Davie (Florida) Building Department indicating that Tropical had general liability (policy number GL 235810) and workers' compensation insurance in force through July 17, 1991. After said Certificate of Insurance was issued, Tropical stopped payment on the check issued to Adams and Associates. Tropical failed to issue an additional check or remit payment of any kind, resulting in both the general liability and workers' compensation insurance being canceled, effective July17, 1990. In September of 1990, a Certificate of Insurance was submitted to the Davie Building Department indicating that Tropical had general liability insurance in effect from September21, 1990, until September 21, 1991. Said certificate had been altered in that the issue, effective, and expiration dates had been updated to reflect that the policy coverage was current and in force. The policy listed on the certificate (number 891006GL327, produced by Adams and Associates with coverage being afforded by Guardian P & C Insurance Company) expired on June21,1990, and was never renewed or kept in force after that date. The Davie Building Department had no other certificates or records indicating that Tropical had insurance coverage. Between July 17, 1990, and April 8, 1991, Tropical obtained five (5) building permits from the Davie Building Department. At no time during the aforementioned period did Tropical have general liability insurance, thereby violating Section 302.1(b) of the South Florida Building Code which requires that building permit applicants be qualified in accordance with PartI of Chapter 489, Florida Statutes. Licensees are required to maintain public liability insurance at all times as provided by rules promulgated pursuant to Part I of Chapter 489, Florida Statutes. Construction Industry Licensing Board records indicate that Tropical has general liability insurance coverage through Equity Insurance (hereinafter "Equity") of Hollywood, Florida. Effective June 8, 1988, Tropical's insurance with Equity was canceled. On February 20, 1991, Tropical entered into an agreement with Michael and Margaret Palomba (hereinafter "Palombas") to perform enclosure and remodeling work at the Palombas' residence located at 130 North East 5th Court, Ft. Lauderdale, Florida 33334. The approximate contract price was $11,978.00. On March 13, 1991, Tropical received a $2,994.50 deposit from the Palombas. On March 25, 1991, Tropical obtained a permit for the project from the Broward County Building Department. Subsequent to receiving the permit, Tropical removed an interior closet from the area that was to be remodeled. Subsequent to receiving the permit, Tropical removed interior plaster from the area that was to be remodeled. Subsequent to receiving the permit, Tropical removed exterior doors from the area that was to be remodeled. Tropical then stopped work stating that rotten wood had been discovered, and requested an additional $2,800.00 to continue with and complete the project. Tropical refused to perform any additional work without the Palombas agreeing to the added cost. Tropical failed to continue with the project pursuant to the original agreement. Tropical refused to continue with the project pursuant to the original agreement. Tropical failed to return any monies to the Palombas. In May 1991, the Palombas hired a second contractor, Dan Sturgeon, to complete the project for $13,830.00. On or about July 11, 1990, Tropical entered into an agreement with Don Romanello (hereinafter "Romanello") to construct a screen room on an existing slab at Romanello's residence located in Boca Raton, Florida. The contract price was $9,500.00. Tropical received $4,800.00 in payments from Romanello, but failed to obtain a permit or perform any work pursuant to the agreement. Tropical has failed to return any portion of Romanello's payments. Tropical refused to communicate with Romanello. Based on the preceding, Tropical committed misconduct in the practice of contracting. On or about June 23, 1990, Tropical entered into an agreement with Marcelina Marin (hereinafter "Marin") to construct a screen room at Marin's residence located in Broward County, Florida, for $4,021.00. Tropical received a $2,000.00 deposit from Marin at the time the agreement was entered into. Tropical failed to perform any work under the terms of the agreement. Tropical has failed to return Marin's deposit. Tropical has refused to return Marin's deposit. Based on the preceding, Tropical committed misconduct in the practice of contracting. DOAH Case No. 91-7493 On July 2, 1988, Respondent contracted with Anthony Antonelli ("Antonelli") to construct an aluminum roof over the patio and gutters of his residence at 9303 Laurel Green Drive, Boynton Beach, Florida. The price of the contract was $2,016.00. Antonelli paid a deposit of $500.00 to Tropical Home Industries. Respondent informed Antonelli that he would not be able to perform the work at the contracted price. Respondent never performed any work at the Antonelli's home. Respondent canceled the contract with Antonelli. Respondent failed to return the deposit paid by Antonelli to Tropical Home Industries. Testimony at Final Hearing Facts Applicable to All Cases Respondent is, and has been at all times hereto, a certified general and roofing contractor in the State of Florida, having been issued license number CG C040139 and CC 2042792. For all contracts and jobs referenced in all of the administrative complaints in these consolidated cases, Respondent acted through the contracting business with which he was associated and for which he was responsible in his capacity as a licensed contractor. DOAH Case No. 89-3902, The Barona and Carrow Complaints Respondent contracted with Rhonda Barona to build an addition to her home at 1251 Westchester Dr. East., West Palm Beach, Florida, for approximately $5,124. The work performed at the Barona residence took an unreasonable amount of time to complete. The permit issued to perform the work at the Barona residence was canceled and Respondent failed to obtain a final inspection. Respondent contracted with Sarah Carrow to build an addition at her home located at 1421 N. 70th Avenue, Hollywood, Florida, for approximately $14,460.60. Respondent allowed the permit to expire and failed to obtain required inspections at the Carrow residence. Respondent failed to fully comply with applicable local codes by failing to install a window or vent fan in the bathroom. DOAH Case No. 90-1900, The Grantz, Victor, Beckett, Maffetonne and Wolfe Complaints On or about March 31, 1989, Respondent contracted with John and Lori Grantz to install windows at 10878 Granite Street, Boca Raton, Florida, for the amount of $1,890.00. Work at the Grantz residence began on or about May 10, 1989. At the time work began, no permit had been obtained. A late permit was obtained on June 15, 1989, in violation of local codes. The work performed by Respondent at the Grantz residence failed final inspection on July 12, 1989, because the structure was not constructed as for the intended use. The windows which were installed were designed as a temporary structure, removable in cases of severe weather and not as a permanent enclosure. On or about April 12, 1989, and April 17, 1989, Respondent contracted with Stephen Victor ("Victor") to install sliding glass doors and windows at 9768 Majorca Place, Boca Raton, Florida, for the total amount of $3,293.00. Victor paid Tropical a total deposit of $670.00, but work never began. On or about April 17, 1989, Respondent contracted with Vinton Beckett ("Beckett") to install windows at 2501 N.W. 41st St., Unit 808, Lauderhill, Florida, in the amount of $1,684. A five-year warranty on materials and a one-year warranty on labor were provided to Beckett by Tropical. Respondent failed to obtain a timely permit or call for required inspections in violation of local law. Respondent failed to correct defects and deficiencies in the work performed at the Beckett residence in a reasonable amount of time. On or about October 29, 1988, Respondent contracted with Thomas and Sharee Maffetonne to construct a patio enclosure at 22980 Old Inlet Bridge Drive, Boca Raton, Florida, for the amount of $4,350.00. A five-year warranty on materials and a one-year warranty on labor were given. Respondent failed to correct defects and deficiencies in the work on the Maffetonne residence in a reasonable amount of time. On or about June 6, 1989, Respondent contracted with Morton Wolfe to install windows at 7267 Huntington Lane, #204, Delray Beach, Florida, for the amount of $1,668.13. Respondent failed to obtain a timely permit or call for required inspections at the Wolfe residence in violation of local codes. DOAH Case No. 90-1901 The Klokow Complaint On or about December 5, 1989, Respondent contracted with Mel Klokow, acting for Linda Klokow, for the construction of a screen porch with a roof to her home at 5292 N.E. 10th Terr., Ft. Lauderdale, Florida, for the sum of $4,473.00. Permit number 88-8085 was issued by the local building department. The work performed at the Klokow residence initially failed to pass the final inspection, and the Respondent failed to return to correct the code violations in a reasonable amount of time. DOAH Case Number 90-1902 The Meister Complaint In December of 1987, Respondent contracted to close in a screen porch for Janet Meister. Respondent failed to obtain a permit for the work performed, which is a violation of local building codes. DOAH Case Number 91-7493 The Antonelli Complaint On July 2, 1988, Respondent contracted with Anthony Antonelli ("Antonelli") to construct an aluminum roof over the patio and gutters at his residence at 9303 Laurel Green Drive, Boynton Beach, Florida. The price of the contract for the work to be performed at the Antonelli residence was $2,016.00. Antonelli remitted a deposit of $500 to the Respondent. Respondent informed Antonelli that he would not be able to perform said job for the contracted price and no work ever began. Respondent canceled the contract with Antonelli and failed to return the deposit to Antonelli. DOAH Case Number 91-7951 The Insurance, Palomba, Romanello and Marin Complaints On June 21, 1990, Tropical's general liability insurance coverage, policy number (891006GL327), produced by Stephen Adams & Associates, Inc., ("Adams & Associates") and afforded by Guardian Property & Casualty Company, expired. On July 17, 1990, Tropical issued a check to Adams & Associates in the amount of $2,475.00 to obtain and/or renew general liability and workers' compensation insurance. Upon receipt of the check, Adams & Associates issued a certificate of insurance to the Davie Building Department in Davie, Florida, indicating that Tropical had general liability (policy number 235810) and workers compensation insurance in force through July 17, 1991. After said certificate of insurance was issued, Tropical stopped payment on the check issued to Adams & Associates. Tropical failed to issue an additional check or remit payment of any kind resulting in the general liability and workers compensation insurance being canceled, effective July 17, 1990. In about September 1990, a certificate of insurance was submitted to the Davie Building Department indicating that Tropical had general liability insurance in effect from September 21, 1990, until September 21, 1991. Said certificate had been altered in that the issue, effective and expiration dates had been updated to reflect that the policy coverage was current and in force. The policy listed on the certificate (number 891006GL327), produced by Adams & Associates and afforded by Guardian Property & Casualty Company, expired on June 21, 1990, and was never renewed or kept in force after that date. The Davie Building Department has no other certificates or records indicating that Tropical has insurance coverage. Between July 17, 1990, and April 8, 1991, Tropical obtained five (5) building permits from the Davie Building Department. At no time during the aforementioned period did Tropical have general liability insurance thereby violating Section 302.1(b) of the South Florida Building Code which requires that building permit applicants be qualified in accordance with Part I of Chapter 489, Florida Statutes. Licensees are required to maintain public liability insurance at all times as provided by rules promulgated pursuant to Part I of Chapter 489, Florida Statutes. Construction Industry Licensing Board ("CILB") records indicate that Tropical has general liability insurance coverage through Equity Insurance Company ("Equity") of Hollywood, Florida. Effective June 8, 1988, Tropical's insurance with Equity was canceled. On February 20, 1991, Tropical entered into an agreement with Michael and Margaret Palomba (the "Palombas") to perform enclosure and remodeling work at the Palomba's residence located at 130 N.E. 5th Ct., Ft. Lauderdale, Florida 33334. The approximate contract price was $11,978.00. On March 13, 1991, Tropical received a $2,994.50 deposit from the Palombas. On March 25, 1991, Tropical obtained a permit for the project from the Broward County Building Department. Subsequent to receiving the permit, Tropical removed an interior closet and exterior doors from the area that was to be remodeled. Tropical then stopped work stating that rotten wood had been discovered, and requested an additional $2,800.00 to continue with and complete the project. Tropical refused to perform any additional work without the Palombas agreeing to the added cost. Tropical failed or refused to continue with the project pursuant to the original agreement and failed to return any monies to the Palombas. In May, 1991, the Palombas hired a second contractor, Dan Sturgeon, to complete the project for $13,000.00. 156. Based on the foregoing, Tropical committed misconduct in the practice of contracting. On or about July 11, 1990, Tropical entered into an agreement with Don and Norma Romanello (the "Romanellos") to construct a screened room on an existing slab at the Romanello's residence located in Boca Raton, Florida. The contract price was $9,500. Tropical received a $4,800.00 payment from the Romanellos but failed to perform any work pursuant to the agreement. Tropical has failed or refused to return any portion of the Romanellos payments and has refused to communicate with the Romanellos. Based on the preceding, Tropical committed misconduct in the practice of contracting. On or about June 23, 1990, Tropical entered into an agreement with Marcelina Marin to construct a screened room at Marin's residence located in Broward County, Florida for $4,021.00 Tropical received a $2,000.00 deposit at the time the agreement was entered into. Tropical failed to perform any work under the terms of the agreement, and has failed or refused to return Marin's deposit. Based on the preceding, Tropical committed misconduct in the practice of contracting. DOAH Case Number 92-0370 The Pappadoulis Complaint On or about February 11, 1990, the Respondent contracted with John Pappadoulis ("Pappadoulis") to remodel a Florida room for the agreed upon amount of $11,448.00 at his residence located at 983 Southwest 31st Street, Fort Lauderdale, Florida. Respondent received a deposit of $648.00, but never obtained a permit nor began work. The Respondent failed or refused to return Pappadoulis' deposit. John Pappadoulis has since passed away. Aggravating and Mitigating Circumstances Monetary Damages Several of the customers in these cases suffered monetary damages. The Baronas had to hire an attorney to deal with the Respondent. The Baronas also incurred additional costs in the work they performed to complete the contract. John and Lori Grantz also suffered monetary damages due to their dealings with the Respondent. The work at the Grantz residence was never completed by the Respondent. The Respondent filed a lien on the Grantz property and also filed a lawsuit to receive the full amount of the contract price. The Grantz had to hire an attorney to obtain legal advice and to defend the lawsuit. The Grantz prevailed in that lawsuit and a judgment was entered requiring the Respondent to refund the $500.00 cash deposit. The Grantz also spent at least $150.00 on attorney fees. The deposit money was never returned and none of their costs were ever reimbursed by the Respondent. Steven Victor also sustained monetary damages in his dealings with the Respondent. Victor paid the Respondent $670.00 as a deposit. No work was ever performed. After requesting the return of his deposit money and failing to receive it, Victor filed a civil action against the Respondent. Judgment was entered in favor of Victor, but the judgment was never paid. The Maffetonnes also sustained monetary damages in their dealings with the Respondent. The Respondent agreed to refund a portion of the contract money to the Maffetonnes due to a problem with the carpet he installed incorrectly, but failed to ever refund any money. The Maffetonnes therefore paid for goods which were defective, and never received a compensatory credit. Klokow also sustained monetary damages in his dealings with the Respondent Because of continuing roof problems, Klokow had to hire an independent roofing expert to inspect the roof and prepare a report. Mr. and Mrs. Palomba also sustained monetary damage due to their dealings with the Respondent. When the Respondent abandoned the Palomba job, the Palombas were forced to hire a second contractor at a higher contract price. The Respondent's actions also caused monetary damages to Antonelli, Pappadoulis, Marin, and Romanello. In each case, the homeowner paid a deposit to the Respondent, and the Respondent failed to ever perform work or return any of the deposit money. The Antonellis paid $500.00, Pappadoulis paid $648.00, Marin paid $2,000.00, and Romanello paid $4,800.00. Actual Job-Site Violations of Building Codes or Conditions Exhibiting Gross Negligence, Incompetence, or Misconduct by the Licensee Several of the jobs involved in these cases had actual job site violations of building codes or conditions which exhibited gross negligence, incompetence, or misconduct by the Respondent which had not been resolved as of the date of the formal hearing. At the Barona residence, the framing inspection failed twice before finally being passed a third time; the lath inspection failed three times before finally passing on the fourth time; and the final inspection failed and was never satisfactorily completed by the Respondent. At the Carrow residence, the Respondent failed to install a window or vent fan in the bathroom of the room addition which he installed. In addition to the building code violation, the work performed was incompetent as the structure installed leaked for many months. Further, the original permit expired prior to a final inspection ever being obtained. At the Grantz residence, the Respondent exhibited incompetence and misconduct by installing windows that he knew or should have known were unsuitable for the purposes specified by the customer. Severity of the Offense The large number of violations established in these cases indicates that the Respondent is a serious threat to the public. These violations establish that the Respondent had a pattern of failing to conduct any meaningful supervision of work in progress. And perhaps most serious of all is his frequent act of soliciting deposits for projects he apparently had no intention of even beginning, much less finishing. This latter practice borders on constituting some form of larceny. Danger to the Public The Respondent is a danger to the public in two ways. First, he is a financial threat to the public, most significantly by his practice of taking deposits for jobs he apparently did not intend to perform. Second, he is a threat to public safety, because the work he performs is often done in a haphazard, careless manner. The Number of Repetitions of Offenses As is obvious from the findings of fact and conclusions of law in this Recommended Order, the Respondent is guilty of numerous repeated offenses which occurred over a period of approximately three years. The Respondent's numerous offenses are indicative of an attitude of contempt or disregard for the requirements of the applicable rules and statutes. Number of Complaints Against Respondent The charges in these cases are based on fifteen separate customer complaints to the Department of Professional Regulation regarding the Respondent. Further, the Palm Beach County Construction Industry Licensing Board received four complaints from homeowners regarding the Respondent 5/ and the Broward County Consumer Affairs Department received twenty-nine complaints regarding the Respondent. 6/ Such a large number of complaints indicates that the Respondent's shortcomings were not isolated events, but represent a recurring problem. The Length of Time the Licensee Has Practiced The Respondent was first licensed as a state general contractor in 1987. He obtained his roofing contractor license shortly thereafter. The Respondent's licenses were placed under emergency suspension in August of 1991. Damage to the Customers The damages, monetary and otherwise, suffered by the Respondent's customers has already been addressed. In addition, all of the Respondent's customers mentioned in the findings of fact suffered a great deal of aggravation, stress, and frustration in dealing with the Respondent. Penalty and Deterrent Effect In these cases, the proof submitted demonstrates that no penalties short of revocation of the Respondent's licenses and imposition of the maximum amount of fines will act as a deterrent to the Respondent and others and as appropriate punishment for the many violations established by the record in these cases. Efforts at Rehabilitation There is no persuasive evidence in the record of these cases that the Respondent has become, or is likely to become, rehabilitated. To the contrary, the greater weight of the evidence is to the effect that the Respondent is unwilling or unable to conform his conduct to the requirements of the statutes and rules governing the practice of contracting.
Recommendation Based upon the foregoing findings of fact and conclusions of law, IT IS RECOMMENDED: That the Respondent be found guilty of all of the violations charged in each Administrative Complaint and Amended Administrative Complaint as noted in the conclusions of law, and that the Respondent be disciplined as follows: The Respondent be required to pay an administrative fine in the amount of $5,000.00 for each of the twenty-nine counts of violations charged and proved, for a grand total of $145,000.00 in administrative fines; The Respondent's license numbers CG C040139 and CC C042792 be revoked; and The Respondent be required to pay restitution to the following Complainants in the following amounts: Steven Victor - $670.00; John Grantz - $650.00; Don Romanello - $4,800.00; Marcelina Marin - $2,000.00; Anthony Antonelli - $500.00; John Pappadoulis' next of kin - $648.00. All restitution shall earn 12% interest per annum from the date the Complainants paid their deposit to Respondent. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 21st day of October, 1992. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 1992.
