The Issue Whether the certified general contractor's license of W. Bert Jones should be revoked.
Findings Of Fact By an Administrative Complaint filed October 27, 1976, the Florida Construction Industry Licensing Board sought to revoke the general contractor's license of W. Bert Jones alleging that the Respondent contractor entered into a contract with Mrs. Barbara Loewe to renovate her home and to add a room onto the back of the house; that the Respondent contractor was paid in full the contract price but the job was not completed and there were numerous building code violations. Respondent requested an administrative hearing. Pursuant to written agreements entered into between the Respondent and Mrs. Barbara Loewe of Tampa, Florida, Respondent agreed to renovate Mrs. Loewe's home and to add a room onto the back of the house. Mrs. Loewe, either by paying the Respondent directly or paying material suppliers, paid the full contract price. In June or July of 1975 the Respondent left the job contracted for partially or wholly incompleted as follows: the ceiling of the kitchen and drywall were in complete and the kitchen was not painted; the guest bathroom was not trimmed; two back rooms were incomplete. Inasmuch as the ceiling was left undone, it was not trimmed, the drywall was incomplete, the doorways were left uninstalled, and the paneling was incomplete; the bathroom had no toilet, no sink and no trim on the tub; in the master bedroom the ceiling was left sagging, there was no insulation in ceiling or walls, the door was untrimmed, siding was left partially undone and the windows weren't trimmed; holes were left unrepaired around the pipes in the home. The sum of Five Thousand Dollars ($5,000) was paid by St. Paul Fire and Marine Insurance Company in full settlement of the claims arising under the general contractor's bond. Additional money, approximately Thirty-Five Hundred Dollars ($3,500), was spent by Mrs. Loewe in addition to the Five Thousand Dollars ($5,000.00) received from the bonding company in order to complete the jobs contracted for. Although there were minimum changes In the job as originally contracted for, work is still going on to complete the original work contracted for by the Respondent. The building inspector for the City of Tampa Building Bureau, Tom Burgoyme, inspected the job site on several occasions during the progress on the work contracted for between Mrs. Loewe and the Respondent. He found building code violations and submitted a list of corrections to the Respondent, Mr. Jones, which were not remedied. A number of problems arose during the construction work, some of which was not the fault of the Respondent. Another contractor was involved in the work on the project. Funds in excess of the purchase price were paid to the Respondent and funds in excess of Eighty-Five Hundred Dollars ($8,500) were needed or will be needed to complete the project.
Recommendation Revoke the general contractor's license of Respondent, Number C GC007323. DONE and ORDERED this 7th day of April, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211 Barry Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 W. Bert Jones 2300 Greenlawn Street Brandon, Florida 33511
Findings Of Fact Until December of 1974, respondent William W. Lambert did business as a general contractor under the corporate name of Lambert Enterprises, Inc. As qualifying agent for the corporation, he built homes, poured concrete, laid sod, and did other general contracting. During 1974, respondent was in the process of acquiring a sod farm, as well as being engaged in the general contracting business. Lambert Enterprises, Inc. dealt largely with other contractors. When The Commonwealth Corporation went bankrupt, other contractors, notably the Collins brothers, also ended up in bankruptcy, and unable to make good on outstanding obligations to Lambert Enterprises, Inc. Respondent caused a voluntary petition in bankruptcy to be filed on behalf of Lambert Enterprises, Inc., on November 22, 1974. At that time he held all the stock in Lambert Enterprises, Inc., and served both as president and as a member of the board of directors of the corporation. Respondent Lambert has never been interested in any other corporation that has been declared bankrupt, and has never gone into bankruptcy personally. Mr. William E. Wingate, an investigator for the Florida Construction Industry Licensing Board, checks bankruptcy records twice monthly. By looking through bankruptcy records, he has learned of ten to twelve bankruptcies, in the Northern District of Florida, involving contractors in the last two years. He may have missed some, but every time he finds out about a contractor's bankruptcy, he reports it to the Board's Jacksonville office. On July 31, 1975, he first learned of respondent's corporation's bankruptcy. He obtained certified copies of pertinent papers which he then forwarded to other Board staff in Jacksonville. After Lambert Enterprises, Inc. failed, respondent obtained a general contractor's license as an individual, which is currently in force. Since December of 1975, respondent has been employed by Century Construction, first in Tallahassee, then in Jacksonville, where he is now a project manager for the company. Permits for work performed by Century Corporation are not pulled on respondent's license. Respondent's financial condition is now stable, and he is financially sound.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent be reprimanded. DONE and ENTERED this 25th day of April, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida COPIES FURNISHED: Barry S. Sinoff, Esquire Blackstone Building, Suite 1010 Jacksonville, Florida 32202 Daniel J. Wiser, Esquire Post Office Box 10137 Tallahassee, Florida 32302 Mr. J. K. Linnan Executive Director Florida Construction Industry Licensing Board 1010 Blackstone Building Jacksonville, Florida 32202
Findings Of Fact Gary Smith d/b/a Sirmons Roofing Company is a roofing contractor registered with the Florida Construction Industry Licensing Board. Smith does not hold any license issued by local construction licensing boards which does not license roofing contractors. Smith admitted that he had commenced construction projects without acquiring the appropriate building permits from the local building officials. Calvin Smith identified a contract, Exhibit 2, which he had entered into with Gary Smith d/b/a Sirmons Roofing regarding the repair of the roof of his house. This contract called for the replacement of bad wood, which was understood by the parties to refer to rotten wood planking and rafters. Calvin Smith stated that after construction commenced and the old roof had been removed, his house had suffered rain damage although Gary Smith had advised him that the roof had been dried in. Gary Smith explained that he had in fact laid the requisite felt paper on the roof but that a severe wind and rain storm and occurred immediately following which had destroyed the felt paper. Smith stated that a crew was on the job during the storm at all times trying to keep the felt nailed down and maintain the water-tight integrity of the roof. There were no delays following the removal of the roof in replacing the felt and diligently proceeding with the re-roofing. Several days after the storm the roof had been finished, the plywood ceiling of the family room of Calvin Smith's house was partially removed to permit the insulation to be replaced. At this time Calvin Smith discovered rotten wood which Smith felt should have been removed and replaced by Gary Smith pursuant to their contract. Gary Smith stated that he had found one rotten rafter, but that he had advised Calvin Smith of the fact that it was there and that Calvin Smith realized that he was not replacing it. Gary Smith stated that he had removed and replaced all the rotten wood in the roof and that the rotten wood discovered by Calvin Smith was on that portion of the family room roof which was under the eaves of the pre-existing roof of the house where it could only be seen upon removal of the family room ceiling. Gary Smith further testified that subsequent to finding the rotten wood, Calvin Smith had not permitted him to correct the job and that he had not personally seen the rotten wood, pictures of which Calvin Smith had identified. Calvin Smith identified photographs of the interior and exterior of the roof as repaired by Gary Smith. These photographs were received as Exhibits 3 and 8. Exhibits 7 and 8 were photographs of the exterior of the roof. Exhibit 8 is a photograph of a shingle which was not properly installed. Gary Smith admitted that the shingle was not properly installed but stated that it would have been corrected prior to finishing the job. Exhibit 7 is a photograph showing a course of shingles which does not have the proper overlap. Gary Smith explained that this short run of shingles was necessary to even up or balance the runs on both sides of a hip in the roof because the distance from the eave to the top or peak of the hip was not the same on both sides. Gary Smith also pointed out that in both photographs the shingles are laid so that the bottom of the upper course of shingles comes to or overlaps the lower course of shingles to the top of the tab, causing good contact between the shingles and the adhesive strips. Contrary to the assertion of Calvin Smith that the shingles had been laid in such a manner that the adhesive strips did not touch. Calvin Smith had identified Exhibit 6 as photograph of roof flashing on the family room roof which he asserted was improperly installed. Gary Smith stated that the flashing in Exhibit 6 was installed in accordance with the manufacturer's recommendation and that the roof on the family room had the requisite number of layers of felt and tar as required by the building code. Gary Smith stated that he could not identify the purported location of the underside of the roof depicted in Exhibit 5 and identified by Calvin Smith as being in the middle of the family room. Gary Smith stated that he could not identify the purported location of the underside of roof depicted in Exhibit 5 and identified by Calvin Smith as being in the middle of the family room. Gary Smith stated that he had shown the rotten beam indicated in Exhibit 4 to Calvin Smith and that Calvin Smith had known that he was not replacing the bean because replacement would have required the removal of the family room ceiling as well as the sheeting on the roof over the beam. Gary Smith stated that the wood shown in Exhibit 3 was not rotten but water stained and that the beam was sufficiently solid to hold the weight of the roofing materials on top of it and to nail the new sheeting into. Tommy Thompson, construction inspection supervisor of the City of Jacksonville, inspected the roof of Calvin Smith's home. Thompson found that the shingles had not been lapped properly, that some shingles had been laid so that the ceiling strips would not adhere properly, that rotten rafters and wood had been left, that the correct number of nails had not been placed in the shingles, that metal flashing around the chimney had not been installed in accordance with the manufacturer's specifications, and that one, twelve inch hold had been left in the roof sheeting. Thompson identified the Building Code of the City of Jacksonville and those portions of the code relating to installation of roofing materials. Thompson stated that the items mentioned in the paragraph above constituted violations of the code. Thompson also pointed out that it was a violation of the code to commence construction or repair of a roof without obtaining the requisite building permit. J. R. Bond, Executive Director of the Construction Trades Qualifying Board of the City of Jacksonville, stated that the board did not certify roofers. The ordinances of the City of Jacksonville empower the Construction Trades Qualifying Board to hear complaints against state registered but unlicensed contractors. However, the board lacks authority to take direct action against persons who are state registered but unlicensed. The board may only request that the city building official not issue the individual any further building permits. The building official must exercise his own independent authority and judgment in determining whether to suspend an individual's right to obtain building permits. The building official suspended Smith's privilege to obtain permits without a hearing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that Smith's registration as a roofing contractor be suspended for a period of one year. DONE and ORDERED this 3rd day of January, 1979, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 Telephone: 904/488-9675 COPIES FURNISHED: Michael Egan, Esquire 217 South Adams Street Tallahassee, Florida 32304 Gary A. Smith Sirmons Roofing Company 3845 Edidin Drive Jacksonville, Florida 32211 J. K. Linnan, Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. CASE NO.: 78-1780 GARY A. SMITH d/b/a SIMMONS ROOFING CO., RC 0030047, 3845 Edidin Drive, Jacksonville, Florida 32211, Respondent. /
Findings Of Fact At all times relevant hereto, respondent, George E. Feld, held certified general contractor license number CG C021801 issued by petitioner, Department of Professional Regulation, Florida Construction Industry Licensing Board. Feld has been a licensed contractor in Florida since June 1982. He has qualified George E. Feld and Associates, Inc. under his license and operates the business at 2131 Northeast 205th Street, North Miami Beach, Florida. After submitting the low bid, on or about March 1, 1985 George Feld and Associates, Inc. entered into a contract with the City of Tamarac to construct a 5,500 square foot recreation building for the City. The negotiated contract price was $195,950. The contract called for commencement of the project within ten days after the contract was signed and completion by July 27, 1985. Sometime prior to March 20, 1985, Feld met one David P. McCall and Marvin Weiss at a motel in North Miami. McCall was interested in doing work on the Tamarac project. He gave Feld a business card with the name "Arrow Head Development Corporation, Inc." printed on it, and which stated the firm was "state certified" and "licensed" as a general contractor. Feld also noted that Weiss held a general contractor's license, and he assumed that McCall and Weiss were working together. Relying on McCall's card, and later representations by McCall, but without checking with petitioner's office to verify if McCall or Arrow Head were licensed or qualified, Feld agreed to subcontract out the shell and sewer work on the Tamarac project to Arrow Head. To this end, Feld and Arrow Head entered into two contracts on March 20, 1985, for Arrow Head to perform the shell and sewer work. On June 21, 1985 McCall submitted a written "proposal" to Feld for the shell work on the job. The proposal had the following words and numbers typed on its face: "State License Number: #CGC 05961." It was not disclosed whose license number this was. Although McCall denied typing this document (because he does not personally know how to type), he did not deny that it was placed on the document at his direction or with his knowledge. It was not until sometime later that Feld learned that Arrow Head was not qualified by any licensee. Because of his mistaken belief that Arrow Head was qualified, Feld had never qualified that firm. Even so, there was no evidence that Feld intended to allow an unqualified firm to perform the work. Work proceeded on a timely basis as required by the contract. Feld visited the job site daily, and supervised all activities, including those performed by McCall. He routinely inspected the work, verified that it was being done according to specifications, and made corrections where needed. The job specifications called for trusses that were over forty feet in length. Because of this, and pursuant to the South Florida Building Code (Code), it was necessary for the City to hire an engineer to oversee their installation. The City hired one George Fink as engineer to supervise this phase of the project. However, Fink's responsibility was limited to just that, and once the installation was completed, Feld resumed responsibility for the remainder of the job. Trusses are a manufactured roof member and may vary in length, height and pitch. In this case, they were designed in the form of a cathedral roof, and were in excess of forty-seven feet in length. Further, because of the building's design, there were a number of trusses to be installed. The installation of the trusses was begun around 9:00 a.m. on Friday, June 27, 1985 and finished by 2:00 p.m. that same day. As required by the Code, Fink was present and supervised the installation of the trusses on the top of the shell. He confirmed at hearing that they were properly installed. The problem herein arose early that day when Fink had noticed that the building plans did not provide for lateral bracing of the trusses. However, according to Fink, this was not unusual since plans do not normally provide for lateral bracing. Even so, Fink told an unnamed person who "appeared to be the fellow running the erection crew" that lateral bracing should be added to the center and two side core members and that the four trusses on each end needed additional bracing. Fink also suggested to this unnamed individual that sheathing be added "as soon as possible" to the top and outside of the trusses to give added stability and protect them from wind damage and the like. In this regard, at hearing Fink conceded that it was "reasonable" for a contractor to erect trusses one day, and to place sheathing on them the following work day. Fink thought sheathing to be particularly necessary on this job since the trusses were high pitched," "long in length," and there were "no gables or anything in between to ... add any other support." By the end of the work day, the crew had placed the proper bracing on the trusses. However, no sheathing was applied. According to Fink, who was accepted as an expert in this proceeding, a prudent and competent contractor would be aware of the need for sheathing and added bracing because of the potential hazard of high winds caused by late afternoon thunderstorms in South Florida. By failing to place sheathing on the roof, Fink opined that Feld was grossly negligent and incompetent in the practice of construction on the Tamarac project. Sometime on late Sunday night or early Monday morning, most of the trusses on the roof collapsed. Some fell on an electrical wire running to the building. However, no injuries occurred. Only five trusses on the north side of the building remained in place. The City of Tamarac then filed a complaint with petitioner against Feld. The cause of the collapse was not disclosed, and even Fink was unable to state that the lack of sheathing was the cause of the accident. There was no evidence that strong winds or thunderstorms occurred on the night the trusses fell, or that bad weather was predicted when the work day ended on Friday afternoon. Feld acknowledged that no sheathing was placed on the trusses. He attributed this to the fact that the construction crew stopped work at 3:30 on Friday afternoon, and did not return to the job site until the following Monday morning. He intended to install the sheathing the following Monday but by then it was too late. This was in accord with the standard enunciated by Fink that it was not unreasonable for a contractor to erect trusses one day, and to place sheathing on them the following work day. Feld also stated that he was well aware of the need for bracing and sheathing on trusses by virtue of his long experience in the construction business. Feld hinted, but did not prove, that McCall may have been responsible for the accident because of bad blood between the two. In any event, he doubted that wind would have caused the trusses in question to fall. Finally, Feld pointed out that, even though city inspectors were present, no one had come to him on Friday afternoon and said the trusses might collapse over the weekend without sheathing. Feld is a graduate of the University of Buenos Aires with a degree in architecture, and has been engaged in the construction/architecture business for twenty-two years. He presently is an instructor of construction at Miami-Dade Community College. There is no evidence he has ever been the subject of a disciplinary action by the Board on any other occasion.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the administrative complaint against George E. Feld be DISMISSED, with prejudice. DONE AND ORDERED this 9th day of April, 1987, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 9th day of April, 1987.
The Issue The issue presented is whether Respondent committed the offenses alleged in the administrative complaint, and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, Respondent, John Arena, was a certified residential contractor, the qualifying agent for Classic Industries, Inc. and held license number CR C021139 from the Florida Construction Industry Licensing Board. The President and sole owner of Classic was Anthony Manganelli. Mr. Manganelli was also the manager of Classic and the principal from whom Mr. Arena received his information about the contracts entered into by Classic. On or about July 30, 1988, someone contacted Ms. Solange Gaston of Hollywood, Florida, by telephone, and asked her if her roof needed repair. The solicitor represented himself as an associate of Classic and offered to come out and inspect her roof. Ms. Gaston, believing her roof was in disrepair, agreed to have the inspection completed and entered into a contract with Mr. Carlo Mangano, representing himself as an agent of Classic, to do the repair. With Ms. Gaston's agreement, the tile on her roof was replaced with shingle roofing and certain other repairs were attempted. A letter to Petitioner from the Chief Permit Processor of the City of Hollywood, Florida indicates that no roofing permit was issued for Ms. Gaston's address. The roof was leaking prior to the repair and continues to leak. Ms. Gaston paid the complete contract price of $3,500 to Classic, but has been unable to locate Mr. Mangano or to have her roof repair completed. In her attempts to achieve satisfaction, Ms. Gaston contacted Classic and asked to speak with someone in charge. She was under the impression that she was speaking with Mr. Arena; however, she never spoke to Mr. Arena. In fact, Mr. Arena was not aware of the contract with Ms. Gaston until the instant complaint was filed against him. Mr. Arena does not know Mr. Mangano. When Mr. Arena became aware of the problem, he attempted to contact Mr. Manganelli, but was told that Mr. Manganelli had moved. Ultimately, Mr. Arena located Mr. Manganelli at a new address. According to Mr. Arena, Mr. Manganelli produced a copy of what appeared to be a contract with Ms. Gaston which has the signature of Carlo Mangano on it, but it is marked indicating that Ms. Gaston's credit was turned down. Mr. Manganelli told Mr. Arena that Classic had not undertaken the job due to the refusal of credit. With that representation, Mr. Arena was under the impression that the work had not been done, as was the custom of dealing for Classic when credit was denied. The two papers purporting to be contracts, one which Ms. Gaston acknowledged as being the one which she signed and the other being the one which Mr. Arena obtained from Mr. Manganelli as the actual contract between Ms. Gaston and Classic through Mr. Mangano, appear to be altered. Although both documents contain the same information, including the date, parties, addresses, work to be completed and price quoted, the portion of the copy indicating the price is written in Arabic numerals on Mr. Arena's copy and by words on Ms. Gaston's copy. Mr. Arena's copy also has the indication that credit was turned down on it, although the cancelled checks paid to Classic by Ms. Gaston were received into evidence. It was Mr. Arena's arrangement with Mr. Manganelli that Mr. Arena was to be informed of every contract into which Classic entered. In this way, Mr. Arena knew which sites he was to supervise. Since he was not advised about the roofing job for Ms. Gaston, he made no attempt to supervise it and after he became aware that the credit for the job had been disallowed, he was under the reasonable impression that the job was not done by Classic. Further, he did not know Mr. Mangano, nor did he believe that Mr. Mangano had the authority to bind Classic. Mr. Arena believes that Mr. Mangano may have obtained a blank contract form of Classic and misrepresented himself to Ms. Gaston as an agent for Classic. Petitioner asserted, however, that Mr. Arena, nevertheless, was responsible for the job and that Classic did perform the job. Neither Mr. Manganelli nor Mr. Mangano were present or testified at the hearing. Given Mr. Arena's demeanor at the hearing and the conflicting and altered state of the alleged contract forms, Mr. Arena's testimony is deemed credible, and the proof failed to demonstrate clearly that Classic actually attempted to repair Ms. Gaston's roof or that Mr. Arena was responsible for the attempted repair.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Florida Construction Industry Licensing Board issue a Final Order dismissing the administrative complaint filed in this case against Respondent, John Arena. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of June, 1990. J. LAWRENCE JOHNSTON 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 20th day of June, 1990. COPIES FURNISHED: Robert G. Harris Department of Professional Regulation 1940 North Monroe Street Suite 341 Tallahassee, Florida 32399-0792 John D. Arena 5961 Southwest 13th Street Plantation, Florida 33317 Fred Seely Executive Director Department of Professional Regulation Construction Industry Licensing Post Office Box 2 Jacksonville, Florida 32201 Kenneth D. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 =================================================================
Findings Of Fact At all times pertinent to the issues in this hearing, Respondent was a licensed building contractor, whose license is No. CBC014467. His certification as an individual by the Florida Construction Industry Licensing Board was initially dated August 16, 1979. In February, 1981, he requested his second license be registered qualifying Jeff Webb Homes, Inc.; and in September, 1982, the license was changed from Jeff Webb Homes, Inc., to Intervest Construction, Inc. On April 23, 1981, Anna Ray McClellan contracted with Regency Central, Inc., for the construction and purchase of a single family residence located at Lot 5, Devonwood Subdivision, Volusia County, Florida. David L. Martin is president of Regency Central, Inc., and neither he nor Regency Central, Inc., are or have ever been registered or certified by the Florida Construction Industry Licensing Board to engage in the business of contracting in the State of Florida. On June 5, 1981, Respondent applied for a residential construction permit for Lot 5, Devonwood Subdivision, listing Regency Central, Inc., as the owner of the property, and himself, with License No. CBC014467, as the contractor. Actual contracting for the construction at Lot 5, Devonwood Subdivision, was accomplished by Regency Central, Inc. Three separate addenda to the construction/purchase contract calling for modifications to the specifications of construction were signed, not by Respondent, but by David L. Martin for Regency Central, Inc. Major subcontracts on the construction including plumbing, electrical, and heating and air conditioning, were entered into between the subcontractors and Regency Central, Inc., and not Respondent. Subcontractors looked to Regency Central for payment, and not to Respondent. A claim of lien filed on ,September 9, 1981, for central air conditioning and heating work on the property in question reflects the work was done under contract with Regency Central, Inc., David L. Martin, President. During construction of the house, Ms. McClellan visited the construction site several times a week at different hours of the day. She recalls seeing Respondent in the area only twice, the first time being the day the contract for purchase was signed, and the second being the day the slab was poured. Her dealings at the site were with the supervisor, Dan Haley, who indicated to her that he worked for Regency Central, Inc. Respondent was interviewed by Philip T. Hundemann, an investigator for the Florida Department of Professional Regulation, in late March, 1982, at Respondent's home. During the course of the interview, Respondent admitted that he met David L. Martin when Martin rented office space in a building that Respondent had constructed and owned. During the course of conversations, Martin suggested to Respondent that he, Martin, had ninety-nine lots available for building and that if Respondent would pull the construction permit for the Lot 5 project, he would get a contract from Martin to build on the other ninety- nine lots. Respondent admitted that he did not supervise the contract, that he did pull the permit, and that he was in violation of the law and had prostituted his license. His defense was, at that time, that he was hungry to get a big construction contract with Martin. Though after he pulled the permits his agreement was to work on the site for the rate of ten dollars per day with the supervisor, Mr. Haley, he was there only infrequently. Respondent now modifies the admissions made previously to Mr. Hundemann. He now states he was heavily involved with the construction project on a daily basis either in his office or on the construction site, not only as a contractor, but also as sales broker. While he admits what he did was in violation of the law and was foolish, he did not intend to break the law. Respondent's involvement with Ms. McClellan's project was not as contractor as indicated in the permit he pulled. He had very little contact with that project until Martin abandoned the project and left the area.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent's, Dominic D'Alexander's, license as a certified building contractor be suspended for one year, but that, upon the payment of a $500 administrative fine, the execution of the suspension be deferred for a period of three years, with provision for automatic recission. RECOMMENDED this 21st day of March, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 21st day of March, 1983. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Dominic D'Alexander Post Office Box 4580 South Daytona, Florida 32021 Mr. James Linnan Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Petitioners' claim for monies from the Florida Homeowners' Construction Recovery Fund is subject to adjudication pursuant to Section 120.57(1), Florida Statutes, and, if so, how much should Petitioners be awarded.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: On or about October 1, 1997, Petitioners entered into a contract in which they agreed to pay Respondent Norman Levinsky's company, Broward Roofing, Inc., $3,700.00 to place a "new shingle roof" on Petitioners' residence and perform other related roofing work. The contract provided Petitioners with a ten-year "labor warranty" and a 30-year shingle warranty. After the contracted work was completed and Petitioners paid Broward Roofing, Inc., the $3,700.00 called for by the contract, the newly-installed roof started leaking. Broward Roofing, Inc., refused to make the necessary repairs. Petitioners paid other contractors to perform the repair work. On November 17, 1998, Petitioner filed an application seeking to recover from the Florida Construction Industries Recovery Fund (which has since been renamed the Florida Homeowners' Construction Recovery Fund) $1,025.00 that they had paid for repairs to the "new shingle roof" Broward Roofing, Inc., had recently installed, contending that they were deserving of such an award inasmuch as "[t]he roofer [Broward Roofing, Inc.] [had] refused to fix [their] new roof that was leaking and [had] totally ignored [their] 10 year warranty." Their application was filed on a Board-produced Construction Industries Recovery Fund Claim Form (Form), at the end of which was printed the following: In addition to your complete written statement, we are requesting documentation of your contractual relationship with the contractor and evidence supporting your claim. Certified copies of the following list of documents are required to assist us in determining your eligibility for recovery. I have attached the following: (these documents are required for proper processing of your claim. Failure to provide required documentation will delay processing and could result in your claim being denied due to incompleteness.) Court certified copy of the Civil Judgment, and/or Final Order of the Construction Industry Licensing Board directing restitution be paid. Copy of contract between you and the contractor. Copies of applicable bonds, sureties, guarantees, warranties, letters of credit and/or policies of insurance. Court certified copies of levy and execution documents. Proof of all efforts/inability to collect restitution judgment. No claims will be processed until 45 days after the date of entry of the Civil Judgment and/or Final Restitution Order. On the completed Form that Petitioners filed, only the spaces next to "Copy of contract between you and the contractor" and "Copies of applicable bonds, sureties, guarantees, warranties, letters of credit and/or policies of insurance" were checked. On May 4, 1999, the Broward County Central Examining Board of Construction Trades filed an Administrative Complaint against "Norman Levinsky d/b/a Broward Roofing, Inc.," which read as follows: Count I At all times material hereto RESPONDENT was a roofing contractor holding Broward County Certificate of Competency #95-7726-R- R. On or about September 16, 1997, RESPONDENT entered into a contract to re- roof Complainant's home located at 10551 N.W. 21st Court, Sunrise, Florida. RESPONDENT obtained a building permit. The work was completed on March 10, 1998 and the roof began to leak on June 1, 1998. RESPONDENT failed to properly supervise to ensure that the tie in with flat roof was properly completed. His failure to ensure such a proper tie in resulted in leaks. Wherefore, it is charged that the RESPONDENT violated Subsection 9-14(b)(11) of the Broward County Code of Ordinances by failing to properly supervise a project commenced pursuant to a building permit. Count II Paragraphs 1 and 2 are included as if restated herein. Complainant paid RESPONDENT the total contract price of $3,700.00. RESPONDENT completed the work. RESPONDENT gave Complainant a 10 year labor warranty. RESPONDENT failed and refused to honor his warranty. Complainant had to pay additional amount of $1,025.00 for a new contractor to repair the work of RESPONDENT. Wherefore, it is charged that the RESPONDENT violated Subsection 9-14(b)(5)c of the Broward County Code of Ordinances by committing mismanagement which causes financial harm to a customer because the customer had to pay more for the contracted job than the original contract price. Count III Above paragraphs are included as if restated herein. RESPONDENT failed to honor the warranty and complete the project in a workmanlike manner for a period in excess of 90 consecutive days. Wherefore, it is charged that the RESPONDENT violated Subsection 9-14(b)(8) of the Broward County Code of Ordinances by abandoning a construction project in which RESPONDENT was under contract as a contractor. It is determined that the above stated charges are grounds for disciplinary action pursuant to Chapter 9, Sections 9-14, 9-28 and 9-46, Broward County Code of Ordinances and Section 6.11, Broward County Charter. Broward County has the authority to certify and discipline local contractors pursuant to Section 489.131, Florida Statutes. Following a hearing on the Administrative Complaint held May 25, 1999, the Broward County Central Examining Board of Building Construction Trades, on June 16, 1999, issued an Order, which read as follows: A Disciplinary Proceeding was held on May 25, 1999, before the Broward County Central Examining Board of Building Construction Trades (the "Board"), in accordance with Section 9-14, Broward County Code of Ordinances (the "Code"). Service of the Administrative Complaint filed against the Respondent was made by certified mail. The Respondent being duly advised was not present at the hearing. The Board heard the sworn testimony of William Grubb and Marlene Grubb. Upon consideration, it is ORDERED: The allegations of fact as set forth in the Administrative Complaint are found to be true and adopted and incorporated herein by reference as findings of fact. The conclusions of law alleged and set forth in the Administrative Complaint are approved and adopted and incorporated herein. Upon these findings, it is therefore ORDERED: That Respondent's Certificate of Competency is hereby revoked. That the Respondent make restitution to the Complainants in the amount of $3,700.00. Prior to the RESPONDENT being allowed to reinstate his certificate of competency or being allowed to sit for any exam administered by a Broward County Central Examining Board, or receiving any license from a Broward County Central Examining Board, RESPONDENT must appear before the Board and prove that the restitution amount has been paid in full. The board's order may be appealed by Petition for Writ of Certiorari to the Seventeenth Judicial Circuit within thirty (30) days of the date of rendition of the order of the board as provided by the Florida Rules of Appellate Procedure. FURTHER, the Broward County Central Examining Board of Construction Trades makes RECOMMENDATION to the Florida Construction Industry Licensing Board to impose on the state registration, the following penalty: 1. Revoke state registration and require the RESPONDENT to make restitution to the Complainants in the amount of $3,700.00. In accordance with Florida Statutes, Chapter 489.131(7)(c) and (d), the disciplined contractor, the complainant, or the Department of Business and Professional Regulation may challenge the local jurisdiction enforcement body's recommended penalty for Board action to the State Construction Industry Licensing Board. A challenge shall be filed within sixty (60) days of the issuance of the recommended penalty to the State Construction Industry Licensing Board in Jacksonville, Florida. If challenged, there is a presumptive finding of probable cause and the case may proceed before the State Board without the need for a probable cause hearing. Failure of the disciplined contractor, the complainant, or the Department of Business and Professional Regulation to challenge the local jurisdiction's recommended penalty within the time period set forth in this subsection shall constitute a waiver of the right to a hearing before the State Construction Industry Licensing Board. A waiver of the right to a hearing before the State Board shall be deemed an admission of the violation, and the penalty recommended shall become a final order according to procedures developed by State Board rule without further State Board action. Pursuant to Section 120.569, Florida Statutes, the Parties are hereby notified that they may appeal the Final Order of the State Board by filing one copy of a Notice of Appeal with the Clerk of the Department of Business and Professional Regulation, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 32399-0792, and by filing the filing fee and one copy of the Notice of Appeal with the District Court of Appeal within thirty (30) days of the effective date of said Order. On or sometime after September 1, 1999, Petitioners filed an affidavit prepared by Petitioner Marlene Grubb, which read as follows: I, Marlene A. Grubb, hereby certify that I have completed a reasonable search and inquiry in accordance with the instructions provided by the Construction Industry Licensing Board and have not found property or assets to satisfy my Board Order[1] in whole or part. Legal Names The Department of State revealed that the company Broward Roofing Inc. was administratively dissolved on 9/10/98. The C[IL]B verified the contractor[']s name and license number as: Norman Levinsky d/b/a Broward Roofing Inc. RC0047656. Real Property My search included property in the names: Norman Levinsky and Broward Roofing Inc. in Broward County, Florida. Norman Levinsky had no real property and Broward Roofing Inc. is delinquent on property taxes for over two years. Boats and Motor Vehicles There were no vehicles or boats in the motor vehicle data bank registered to Norman Levinsky or Broward Roofing Inc. Aircraft The FAA in Oklahoma City, Ms. Jeannie Vannest stated that there is no registration listed for Norman Levinsky or Broward Roofing Inc. On March 25, 2004, the Board rendered a Final Order Approving Recommended Order of Disciplinary Action by Local Enforcement Body, which approved the Broward County Central Examining Board of Building Construction Trades' June 16, 1999, Order and read as follows: THIS MATTER came before the Construction Industry Licensing Board (hereinafter referred to as the "Board") pursuant to Section 489.131(7), Florida Statutes, for a determination of whether to accept the proposed recommended penalty by the Broward County Central Examining Board of Building Construction Trades (a copy of which is attached and incorporated herein by reference). Neither the Petitioner, the Respondent nor the Complainant filed a challenge to the local enforcement body's recommended penalty to the Board. Upon consideration of the local enforcement body's Administrative Complaint, the minutes from the meetings on January 21, 1999, and May 25, 1999, and the Final Order of Disciplinary Action and its proposed recommended penalty to the Board in this matter and being otherwise fully advised in the premises it is hereby ORDERED AND ADJUDGED: The proposed recommended penalty is hereby approved and adopted in its entirety and incorporated herein by reference. In accordance with the recommended penalty, Respondent's state registration (RC 0047656) is hereby REVOKED. Respondent shall pay restitution in the amount of $3,700 to William and Marlene Grubb. Respondent will adhere to and abide by all of the terms and conditions of the recommended penalty. Failure to abide by the terms of this Order may result in further action by the Board. This Order shall be placed in and become a part of Respondent's official records. A change in the Respondent's licensure status, including the suspension, revocation, voluntary relinquishment, or delinquency of license, does not relieve the Respondent of his obligation to pay any fines, costs, interest or restitution imposed in this and previous orders. Pursuant to Section 120.68, Florida Statutes, the Parties are hereby notified that they may appeal this Final Order by filing a Notice of Appeal with the Clerk of the Department of Business and Professional Regulation, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 32399- 0792, and by filing the filing fee and one copy of the Notice of Appeal with the District Court of Appeal within thirty (30) days of the effective date of this Order. This Order shall become effective upon filing with the Clerk of Department of Business and Professional Regulation. This was the "Final Order of the Construction Industry Licensing Board directing restitution be paid," that, according to the Form Petitioners used to submit their claim for monies from the Florida Construction Industries Recovery Fund, was "required for proper processing of [their] claim." On June 10, 2004, more than five and a half years after Petitioners had filed their claim application, the Board met to determine the merits of their claim pursuant to Section 120.57(2), Florida Statutes. Although given due notice of the Board meeting, neither Petitioners, nor Mr. Levinsky, made an appearance, either in person or through a representative, at the meeting. "[U]pon consideration of the documentation and testimony submitted," the Board determined that Petitioners' claim for $1,025.00 should be "approved." On July 29, 2004, the Board rendered (that is, filed with the agency clerk) a written order to this effect, which read as follows: THIS MATTER came before the Construction Industries Recovery Fund Committee and Construction Industry Licensing Board (the "Board") pursuant to sections 120.57(2) and 489.143, Florida Statutes (2003) as well as rule 61G4-21.004, Florida Administrative Code, on June 10, 2004, in Coral Gables, Florida, for consideration of a claim for restitution from the Construction Industries Recovery Fund (the "Recovery Fund"). William [a]nd Marlene Grubb ("Claimants") and Norman Levinsky ("Licensee") were duly notified of the proceedings. At the proceedings before the committee and the Board, Claimants were not present, and were not represented by counsel. Licensee was not present, and was not represented by counsel. Upon consideration of the documentation and testimony submitted, it is ORDERED: Claimants satisfied all requirements for payment from the Recovery Fund. The Recovery Fund Claim was filed on November 17, 1998. The application was timely filed. The contractor was paid $3,700.00. Claimants were awarded restitution from the Construction Industry Licensing Board on March 24, 2004, in the amount of $3,700.00, pursuant to a Final Order Approving Recommended Order of Disciplinary Action by Local Enforcement Body. The Board adopted and approved the Broward County Central Examining Board of Building Construction Trades recommendation, which found: Contractor held a current and active license at all times material to the transaction; The construction contract is dated September 18, 1997; The work was completed on March 10, 1998, and the roof began leaking June 1, 1998; Contractor failed to honor the warranty on the roof; As a result, Claimants paid an additional $1,025.00 for repair work; Contractor violated subsection 9- 14(b)(5)c of the Broward County Ordinances by committing mismanagement, which caused financial harm to a consumer because the consumer had to pay more for the contractual job than the original contract price. The contractor engaged in activity that appears [to] violate section 489.129(1)(g)2, Florida Statutes (2003). There is an asset search in the file that shows no assets are available from which claimant can satisfy the judgment. Pursuant to section 489.143, Florida Statutes (2003), the maximum amount that the Recovery Fund can pay on a single claim is $25,000.00. Thus, the claim for restitution from the Recovery Fund is APPROVED in the amount of $1,025.00. In accordance with rule 61G4-21.005, Florida Administrative Code, the Secretary of the Florida Department of Business and Professional Regulation is directed to pay the claim from the Recovery Fund after forty-five days from the date upon which the Final Order is filed with the Agency Clerk. Pursuant to section 489.143(6), Florida Statutes (2003), upon payment of the claim from the Recovery Fund, Licensee's licensure to practice contracting is AUTOMATICALLY SUSPENDED without any further administrative action. Pursuant to section 489.143(2), Florida Statutes (2003), upon receipt by Claimant under section 489.143(1), Florida Statutes (2003) of payment from the Recovery Fund, Claimant shall assign his or her additional right, title, and interest in the judgment or restitution order, to the extent of such payment, to the Board, and thereupon the Board shall be subrogated to the right, title, and interest of the Claimant; and any amount subsequently recovered on the award, judgment or restitution order by the Board, to the extent of the right, title, and interest of the Board therein, shall be for the purpose of reimbursing the Recovery Fund. This Order shall become effective upon filing with the Clerk of the Department of Business and Professional Regulation. DONE AND ORDERED this 21st day of June, 2004. Appended to the order was the following Notice of Right of Appeal: You are hereby notified that mediation is not available in this matter. Pursuant to Section 120.569, Florida Statutes, you may seek review of the above by filing a request for hearing with the Executive Director of the Board at 1940 North Monroe Street, Tallahassee, Florida 32399-2202 within twenty-one (21) days of the filing of this Order. Upon request, you will receive an informal hearing pursuant to section 120.57(2), Florida Statutes. In the alternative, you may request a formal hearing pursuant to Section 120.57(1), Florida Statutes, if there are material facts in dispute; if you request a formal hearing, the petition must contain the information required by Rule 28-106.201, Florida Administrative Code, including specification of the facts which are in dispute. If you request a hearing, you have the right to be represented by an attorney or other qualified representative to take testimony. On August 12, 2004, Petitioners filed a Request for Hearing, complaining that they "should be awarded at least $3,475.00" to be adequately compensated for all of the repairs they had to make to their roof as a result of Broward Roofing, Inc.'s failure to meet its responsibilities. On August 30, 2004, the Board referred the matter to DOAH "for the assignment of an Administrative Law Judge to conduct a formal hearing" pursuant to Section 120.57(1), Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board issue an order dismissing Petitioners' Request for Hearing challenging the Board's order, rendered July 29, 2004, disposing of their claim for monies from the Fund, but allowing them, if they so desire, to request that that order be vacated and re-rendered so that they will have the opportunity to file a timely appeal in accordance with Section 120.68, Florida Statutes. DONE AND ENTERED this 28th day of December, 2004, in Tallahassee, Leon County, Florida. S __ STUART M. LERNER 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 28th day of December, 2004.
Findings Of Fact The Respondent is licensed as a general contractor in the State of Florida and registered with the Florida Construction Industry Licensing Board. That agency is the agency charged with regulating the practice of contracting in the State of Florida and with monitoring the compliance of licensees with the various provisions of Chapter 489, Florida Statutes, and pertinent rules relating to licensure standards and practice standards of contractors. On April 23, 1980, one Terry Burch and Jim Goodman were operating a construction business under the fictitious name of "T. J. Associates." Neither Terry Burch or Jim Goodman, nor the entity known as T. J. Associates, was qualified or licensed with the Florida Construction Industry Licensing Board at that time, nor at times subsequent thereto which are pertinent to this proceeding. On April 23, 1980, T. J. Associates entered into a written contract with homeowners Florence Martin and her husband to remodel their home at 120 Broadview Avenue, Winter Park, Florida. The original contract was for $26,615.00 with various addenda to that contract, such that the total net contract price, with modifications, ultimately reached $40,597.00. Both the contract and the modification agreements were signed by the Martins and Terry Burch of T. J. Associates. The Respondent, Steven Shields, was not a party to any of these agreements. Mr. Burch and Mr. Goodman of T. J. Associates, obtained the Martin contract entirely through their own efforts and after obtaining the signed contract, approached the Respondent, Steven Shields, to ask him to draft blueprints for the job, also proposing that the three of them enter into some sort of partnership or other business arrangement. During the meeting at which this business was discussed, it was revealed to the Respondent that T. J. Associates was unlicensed with the Florida Construction Industry Licensing Board and the three men agreed that they would obtain proper application documents from the Board's office in Orlando for filing so as to properly qualify the company. In the meantime, the Respondent agreed to obtain from the City of Winter Park Building Department, the necessary building permits and did so. The Respondent was ultimately paid $600.00 by T. J. Associates for labor he performed on the subject project and for obtaining a building permit in his own name. The Respondent ultimately decided not to enter into a business relationship with T. J. Associates, Burch and Goodman. He did, however, work on the "Martin project" as a sort of job supervisor or foreman, performing some labor on the job and going to the job site on possibly two or three occasions during the course of the construction effort of T. J. Associates. The Respondent initially intended to use his contractor's license to properly qualify T. J. Associates with the Board and obtain the papers to do so, but after he did not enter the formal business relationship with T. J. Associates, neglected to do so, nor did T. J. Associates make any further effort to qualify itself as a contracting entity with the Florida Construction Industry Licensing Board. The Respondent did obtain the building permit for T. J. Associates for the Martin job on May 13, 1980, and obtained it under his individual name and contractor license number. T. J. Associates worked on the Martin job from May 6, 1980, to July 16, 1980. On July 16, 1980, after a dispute regarding the quality of the paint work and other matters, T. J. Associates and the Respondent stopped all work. At the time of the stoppage, the work was 90 percent complete. At the time the work was stopped, no more money was due to T. J. Associates for work already performed. The Martins, at that point, had paid T. J. Associates $35,900.00. The Martins had however, upon advice of their attorney, withheld sufficient funds at the point of cessation of work by T. J. Associates, to enable them to pay for the completion of the job by other labor and materialmen. Three subcontractors had been hired or contracted with by T. J. Associates for work which was performed by them on the Martin job. Those three subcontractors, Mr. Anthony Costa, Mr. Clyde Ray and Mr. Michael Ellis, had performed work for which they were owed, respectively, $531.00, $550.00 and $130.00. None of those three subcontractors have, as yet, been paid for these amounts. They repeatedly attempted to obtain payment from T. J. Associates, but were given no satisfaction in that regard. The Respondent never entered into any agreement or hiring arrangement with the three subcontractors involved, nor did the Respondent ever have possession or control of any funds paid from the Martins to T. J. Associates from which the subcontractors should have been paid. The Respondent only received the above- mentioned $600.00 from T. J. Associates for his services.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the Respondent be found guilty of a violation of Section 489.129(1)(e) and (k), in that he aided and abetted an uncertified, unregistered person to evade the act and violated Subsection (k) by abandoning the project without just cause. The remaining charges in the Administrative Complaint should, however, be dismissed. In view of the violations proven, an administrative fine of $500.00 and a three (3) month suspension of his license, followed by a one (1) year period of probation is warranted. DONE and ENTERED this 22nd day of August, 1983, in Tallahassee, Florida. P. MICHAEL RUFF 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 22nd day of August, 1983. COPIES FURNISHED: Douglas A. Shropshire, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Charles E. Hoequist, Esquire 301 North Ferncreek Orlando, Florida 32803 James Linnan, Executive Director Florida Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether or not the Respondent, Charles E. Sullivan, abandoned the construction project of his customer, Otto Kipar at a time when he had received 98 percent of the contract price and completed approximately 75 percent of the job, and whether or not such abandonment constituted a violation of Section 468.112(2)(h), Florida Statutes.
Findings Of Fact This cause comes on for consideration based upon the administrative complaint filed by the Petitioner, State of Florida, Department of Occupational Regulation, Florida Construction Industry Licensing Board, against the Respondent, Charles E. Sullivan, d/b/a Suwannee Roofing Company. The Petitioner is an agency of the State of Florida empowered to administer and regulate those individuals who hold various licenses with the Florida Construction Industry Licensing Board. Charles E. Sullivan, d/b/a Suwannee Roofing Company holds a registered roofing contractor's license and the number is RC 18162. In May 16, 1977, Otto Kipar, a resident of Suwannee County, Florida, entered into a contract for the Respondent to perform certain roofing work and associated to the roofing. The terms and conditions of this contract may be founded in the Petitioner's Exhibit 2, admitted into evidence. The price of the contract was in the amount of $2,500, to be paid by Mr. Kipar in an installment of $2,450 when the roofing was finished and a $50 balance when the chimney was flashed. Among other things, the contract called for the setting of the trusses on the roof, sheeting the roof with plywood, running facia boards, putting up the jack molding and putting on roofing shingles. The work was to be done by Suwannee Roofing, which is owned by the Respondent, Charles E. Sullivan, and all of the materials were to be furnished by Mr. Kipar, with the exception of the shingles and the staples necessary to nail the shingles into the plywood sheeting. The Respondent's employees went to the job site and started to install the roof. On June 24, 1977, Berl Wilson, a building inspector for Suwannee County, Florida, went to the job site and inspected the roof. He determined that the work on the roof was 50 percent completed. He found the trusses up and the sheeting and shingles installed. However, he felt that the roof construction was unsatisfactory and that the roof would eventually fall in. He immediately tried to contact Mr. Sullivan, the Respondent, and was able to speak to him on June 27, 1978. At that point, Mr. Sullivan indicated that he would work the matter out with the owner, Mr. Kipar. In August, 1977, the Respondent hired some individuals to go to the job site and make adjustments to the roof, so that it would structurally meet the necessary building standards of Suwannee County, Florida, and comply with his contract with Mr. Kipar, as to that element. At the behest of Mr. Kipar, the building inspector Wilson returned to the job site in August or September 1977, and discovered that the roof was not shingled over 25 percent to 35 percent of the roof area. In that particular part of the roof, only the felt paper was installed on the sheeting. This caused the roof to fail to meet the Southern Building Code, in terms of requirements of that code. It was also in violation of the contract conditions which called for the Respondent to install the shingles over the entire roof, not just part of it. When confronted with the fact of the incompleted roof, the Respondent told Wilson that he had spent over $600 in trying to make the necessary adjustment to the trusses and that he felt no obligation to spend any other money on the Kipar job. Therefore, the job was left unfinished and when Mr. Wilson saw the job site on March 22, 1978, he found it in the same state as had been indicated in August/September 1977, in that the roof was still 25 percent to 35 percent without shingles. The Respondent and his employees did not return to the job site to complete the roofing and Mr. Kipar had to make those arrangements himself. This abandonment on the part of the Respondent came, notwithstanding the fact that Mr. Kipar, in accordance with the contract had paid the Respondent $2,450 on May 30, 1977, as shown by Petitioner's Exhibit number 3, admitted into evidence. In summary, the Respondent was paid 98 percent of the amount of the contract, which constituted the full amount of payment with exception of $50 for flashing the chimney, and the Respondent abandoned the job when 25 percent to 35 percent of the shingles remained to be installed. This abandonment constitutes cause for disciplinary action in accordance with Section 468.112(2)(h), Florida Statutes, which states: ... (h) Abandonment of a construction project in which the contractor is engaged or under contract as a contractor. A project is to be considered abandoned after 90 days if the contractor terminates said project without notification to the prospective owner and without just cause. Abandonment has been demonstrated here because the Respondent did not work on the roof after the period of August/ September, 1977, and as stated before the roof was missing 25 percent to 35 percent of the necessary shingles at that time. In addition, the Respondent failed to notify the owner of this abandonment and the abandonment was without just cause.
Recommendation It is recommended that the Petitioner, State of Florida, Department of Professional Occupation Regulations, Florida Construction Licensing Board, suspend the Respondent's, Charles E. Sullivan's roofing contractor's license, RC18I62, for a period of one year. DONE AND ENTERED this 29th day of September, 1978, in Tallahassee, Florida. COPIES FURNISHED: Michael Egan, Esquire 217 South Adams Street Tallahassee, Florida 32301 Charles E. Sullivan Suwannee Roofing Company Post Office Box 999 Live Oak, Florida 32060 CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building MAILING ADDRESS: 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint and, if so, what disciplinary action should be taken against him.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent has been a Florida-licensed general contractor (holding license number CGC 062108) since February 5, 2001. At all times material to the instant case, JQC held a certificate of authority authorizing it to engage in contracting in Florida through a qualifying agent. At all times material to the instant case, Respondent was the primary qualifying agent for JQC. On or about May 10, 2007, JQC, through Respondent, entered into a written contract (Building Contract) with Marienne Cavalier, agreeing, for $95,000.00, to construct an addition to the Miami, Florida residence (Residence) of Ms. Cavalier and her husband, Wilfrid Pierre-Louis (Project). The Building Contract provided as follows: For Architectural, Engineering, Permit Expediting and Construction Services in the sum of Ninety Five Thousand Dollars ($95,000.00) based on the following criteria: Architectural services to be provided consist of the following: Bringing into compliance the existing residence with the Zoning & Building Department[']s Requirements for the City of North Miami Beach, in the State of Florida. Complete set of working drawings to include, Design Development, Site Plan/Floor Plan in compliance with the "Florida Building Code" & the Florida Accessibility Code (Handicapped). Exterior Elevations (Facades). Wall Sections & details as required to assure design intent and constructability. Engineering services to be provided consist of the following: Foundation plan and specifications. Plumbing plan and specifications. Electrical plan and specifications. Mechanical plan and specifications. Roof framing plan and specifications. Air conditioning system calculations as per the State of Florida. Home Energy calculations as per the requirements of the State of Florida. Hurricane Wind Load calculations as per the requirements of the Florida Building Code. Permit Expediting services to be provided consist of the following: Submitting of Plans and Application to the Building Department for processing. Going to the Building Department to pick up Plans each time there are revisions to be made, delivering the Plans to the Architect/Engineer for review and re-submitting the Plans to the Building Department. Coordinating plan review between Architect/Engineer and Building Department so as to obtain the Building Permit in a reasonable amount of time. Construction services to be provided consist of the following: Labor and materials included Relocating existing front door Entrance and construction of new Terrace. Demolition of existing Bathroom. Extension of kitchen wall. Relocation of existing Air Conditioning Unit and Duct Work. Demolition of Existing Partitions and Installation of new Partition work to include Dining Room, Living Room and Florida Room. Raising of concrete floor Slab at existing addition. Installation of tiles at new concrete floor. Construction of new Master Bedroom, Master Bathroom and Walk-In Closet. Construction of new Laundry Room. Construction of new Office Room. Demotion of existing flat roof addition. Raising existing tie-beam of flat roof to match the height of the house. Construction of new roof. Installation of new Doors and Windows. New concrete sidewalk at rear of house. Stucco and Painting of new Addition. Painting of Interior walls. Insulation of new Addition Walls and Ceiling. Mechanical work to existing addition as per plans. Plumbing work to existing addition as per plans. Electrical work to existing addition as per plans. Trash Container and Disposal of construction debris. Portable Toilet. Items not included: New Air Conditioner if required by Building Department. Any work related to the existing Septic Tank system. Driveway. Landscaping. Terms of Agreement First Payment (Initial Down Payment) $3,000.00 Second Payment $4,000.00 (Due at Submittal of Plans Building Department) to the Third Payment $24,000.00 (Due at Approval of Construction Permit) Fourth Payment $20,000.00 (Due after First Inspection) Fifth Payment (Due at 50% of $20,000.00 Work Completion) Sixth Payment (Due at 75% of $20,000.00 Work Completion) Seventh Payment $4,000.00 (Due upon Final Inspection) Total cost of Work $95,000.00 Items not specified in this agreement are not part of this contract. Fees for Permits and other Inspections (if required) are not included in the indicated cost above. There was no written statement in the Building Contract explaining a consumer's rights under the Construction Industries Recovery Fund, as then required by Section 489.1425, Florida Statutes (2006). JQC commenced work on the Project after the Building Contract was signed by Respondent and Ms. Cavalier. There were expenses that JQC incurred in connection with the Project that were "unexpected" and "not anticipated," including those related to the demolition work required by the Building Contract. In addition to doing work required by Building Contract (Project Work), JQC did extra work on the Residence (Extra Work), at Mr. Pierre-Louis's request, resulting in further "additional expenses being incurred that were not [contemplated] in the original contract." Respondent (acting on behalf of JQC) and Mr. Pierre-Louis verbally agreed that this Extra Work would be undertaken by JQC, but nothing was ever reduced to writing.2 There came a time, after he and his wife had made several payments to JQC, that Mr. Pierre-Louis became dissatisfied with the pace of the JQC's efforts. Mr. Pierre- Louis confronted Respondent and erroneously "accused [Respondent] of stealing the money" he and his wife had paid (instead of using it to do the work JQC had agreed to do on the Residence). In fact, "the money was being spent on the [improvements to the Residence]." Mr. Pierre-Louis "even called the police on [Respondent]." Respondent was interviewed by a police detective, who, following the interview, told Respondent that "this seem[ed] to be a civil case," not a "criminal" matter. No criminal charges were ever filed against Respondent. To avoid any similar misunderstanding on Mr. Pierre- Louis's part in the future, Respondent told Mr. Pierre-Louis that he and his wife should not give Respondent "a single dollar," but they, instead, should themselves directly pay the workers JQC had working on the job site and also "buy the necessary materials." In or around June 2009, JQC temporarily stopped working on the Residence because "there wasn't any money available" to pay for labor and materials. As of the date of the stoppage of work, approximately 50% of the Project Work and Extra Work had been completed, and Ms. Cavalier and Mr. Pierre-Louis had made the following payments for the Project Work and Extra Work: payments by check to JQC and Respondent, totaling $86,478.85; cash payments to Respondent, totaling $1,553.62; payments by check to JQC workers, totaling $7,835.00; cash payments to JQC workers, totaling $3,600.00; $1,000.00 for concrete; $600.00 for tar paper; and $500.00 for plywood. Respondent explained to Mr. Pierre-Louis that JQC was stopping work on the Residence because the money had "run out," and he assured Mr. Pierre-Louis that JQC would resume the work "whenever [Mr. Pierre-Louis] ha[d] some money available," an assurance that was sincerely made. Mr. Pierre-Louis, in turn, told Respondent that it was his intention to secure the funds necessary to finish the work. Three months later, when Mr. Pierre-Louis "did get some money," he let Respondent know. JQC thereupon began working on the Residence again (as Respondent had promised it would),3 and it has continued to work on the Residence (doing the Project Work and Extra Work) on an ongoing basis (with Ms. Cavalier and Mr. Pierre-Louis paying for labor and materials,4 as they had done immediately before the work had stopped). While Ms. Cavalier and Mr. Pierre-Louis have paid the workers doing the Project Work and Extra Work, these workers have at all times been under Respondent's supervision. As of the date of the final hearing in this case, at least 90% of the Project Work and Extra Work had been completed. Undertaking the Project Work and Extra Work has been a money-losing venture for JQC and Respondent. Petitioner has incurred a total of $297.10 in investigative and prosecutorial costs in connection with the instant case (excluding costs associated with any attorney's time).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board issue a Final Order: (1) dismissing Counts One and Two of the Administrative Complaint; (2) finding Respondent guilty of violating Section 489.129(1)(i), Florida Statutes, by failing to comply with Section 489.1425, Florida Statutes, as alleged in Count III of the Administrative Complaint; (3) fining him $375.00 for having committed this violation; and (4) ordering him to reimburse the Department for investigative and prosecutorial costs related to this violation. DONE AND ENTERED this 6th day of December, 2010, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 6th day of December, 2010.
