Findings Of Fact At all times material to this proceeding, Respondent was a registered roofing contractor, having been issued License No. RC0034672, in the name of John M. Sneed, Beall and Associates Roofing Corp., 7650 Southwest 135th Street, Miami, Florida 33156. Sometime during the month of October, 1951, Jerry Stamos entered into an oral agreement with Bill Parry and Billy Duncan, to have Parry and Duncan reroof Stamos's home at 441 Castonia Avenue, Coral Gables, Florida. The contract price for the reroofing work was $4,000. At no time was either Duncan or Parry licensed to perform roofing work. As a result, after Mr. Stamos was unable to obtain a building permit in his own name to perform the work, Duncan contacted Respondent, and requested that Respondent pull the building permit for the job. On October 20, 1981, Respondent obtained City of Coral Gables, Department of Building and Zoning Permit No. A48375 to perform the work on the Stamos's property. At the time the building permit was pulled by Respondent, no work had commenced on the job. Duncan and Parry were paid a total of $4,000 for the job, $100 in cash; $2,000 on October 13, 1981; and an additional $1,900 on October 22, 1981. Shortly after the building permit was pulled and work had been commenced on the property by Duncan and Parry, Duncan and Parry stopped work on the roof and never returned. Respondent was on the job site on at least one occasion when work was being performed. No notice was furnished to Mr. Stamos concerning cessation of work on the project, nor was he ever given an explanation of why work stopped and was never recommenced by Parry, Duncan, or Respondent. Respondent never supervised any of the work performed by Parry or Duncan, nor did he ever call for any inspection of the project by the City of Coral Gables, Department of Building and Zoning. The South Florida Building Code, Section 3401.1(b) provides as follows: INSPECTION. The Building Officials shall be notified by the permit holder and ample time for mandatory inspections to be made as follows: At the time the anchor sheet is being mopped to non-nailable decks. At the completion of mechanically fastening the anchor sheet to nailable decks and before mopping. During the operation of shingling or tiling. Upon completion of the roof covering. On December 1, 1981, Respondent contacted the City of Coral Gables, Department of Building and Zoning, and cancelled the permit previously obtained by him on October 20, 1981. At that time, Respondent represented to city officials that construction had never started on the project, although he knew that representation to he false. The building project remained unfinished for a period in excess of ninety days before Mr. Stamos had the job finished by another contractor.
The Issue At issue is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Department, is the state agency charged with the duty and responsibility of regulating the practice of contracting pursuant to Chapters 20, 455 and 489. At all times material to the allegations of the Administrative Complaint, Randy Falls, d/b/a DRC Contractors LLC, was licensed as a Florida State Certified Building Contractor, having been issued license number CGC 1507600 on August 12, 2004. His licensure status is designated as "Current, Active." Kingston Shores Condominiums (Kingston Shores) is located in Ormond Beach, Florida. Several condominiums in Kingston Shores were badly damaged in Hurricane Charlie in 2004. Marvin Harris is the president of the condominium association of Kingston Shores. Following Hurricane Charlie, Mr. Harris was approached by Kerry Brooks of JTC Reconstruction and Restoration Services (JTC). Mr. Brooks proposed that his company perform repairs and reconstruction services to Kingston Shores. Mr. Harris asked Mr. Brooks for the license number of the general contractor under whom JTC would be working, so it could be posted in the condominium offices. Initially, Mr. Brooks provided a license number of a general contractor who, when contacted by Mr. Harris, informed Mr. Harris that he knew nothing of JTC. Mr. Harris again asked Mr. Brooks for the license number of the general contractor and was given the license number of Respondent, Mr. Falls. Mr. Harris checked with “the department of licensing” to be sure Mr. Falls’ license was valid, but did not contact Mr. Falls to make sure he was aware of the work being done by JTC. The work performed by JTC was “extremely shoddy substandard work.” After performing unacceptable work for approximately one year, JTC abandoned the project leaving the work unfinished. In addition to the work done by JTC for Kingston Shores, at least one individual condominium owner, Paul Ross, contracted with JTC to perform restoration and repairs of his condominium unit. The contract between Mr. Ross and JTC, dated May 11, 2005, does not mention Mr. Falls or his company, DRC General Contractors. The contract was for a total of $28,464.85. Mr. Ross confirmed through personal research that JTC was a Georgia company located outside of Atlanta and that Mr. Falls held a valid Florida general contractor’s license. Mr. Ross and his wife initially paid JTC $5,652 for some work which was performed. He later paid JTC $8,607, for which no work was performed. As with the work done for Kingston Shores, the work performed by JTC was unacceptable and incomplete when JTC abandoned the job. While Mr. Ross assumed that JTC was operating under the auspices of Mr. Falls and that Mr. Falls would be overseeing the work, he never paid any money to Mr. Falls. About the time Mr. Harris was contacted by Mr. Brooks, Respondent was contacted by Jack Turner of JTC. According to Mr. Falls, Mr. Turner identified himself as a representative of Kingston Shores. Mr. Turner proposed that they (Falls and Turner) would sign a contract for work after Mr. Turner dealt with insurance companies, and that Mr. Falls would get a percentage of the money up front. At that point, Mr. Falls “pulled the permit.” That is, on October 7, 2004, Mr. Falls completed, signed, and submitted a Volusia County Commercial Permit Application for Kingston Shores. The appropriate permit or permits were issued by Volusia County on November 30, 2004. Sometime thereafter, Mr. Falls moved to Pensacola and apparently did not have any more contact with Jack Turner. At the time he pulled the permit, Mr. Falls did not have a contract with JTC, Kingston Shores, or any individual condominium owner. At no time material to this proceeding was Respondent involved in the supervision of the individuals who performed the work done on the Kingston Shores property nor did he supply any of the workers who performed the work on the subject property. On July 20, 2005, Mr. Falls wrote to Volusia County requesting that the construction permit(s) be deactivated “due to nonpayment to contractor.” Mr. Harris then contacted Mr. Falls who informed Mr. Harris that JTC owed him money, and that he would need $12,000 to reinstate the permit(s). Mr. Harris did not agree to paying that amount and threatened legal action. According to Mr. Falls, he requested the $12,000 because “they had done work without me knowing.” On October 26, 2005, Mr. Falls wrote to Volusia County requesting reinstatement of the construction permit “for final inspections.” After the permit(s) were reinstated, construction work resumed. It is unclear from the record who performed the work at that point, although Mr. Harris referred to having “other contractors come in.” However, it was Mr. Falls who obtained the certificate of occupancy from Volusia County which is dated January 23, 2006. Mr. Falls did not receive any payment from JTC for any work done at Kingston Shores. He acknowledges that pulling a permit without a contract or a letter of intent was “sheer stupidity . . . . I mean, I had just got my license, you know, I just got it. So I was an idiot. I did something stupid, and unfortunately people got hurt over it.” Mr. Falls shows genuine remorse for the consequences of his actions. On January 24, 2006, Mr. Harris executed a General Release which states as follows: Know all men by these presents that Marvin Harris, serving as representative for Kingston Shores Condominium Inc. (First Party) in consideration and [sic] services received, specifically re-applying for six (6) building permits, and passing the final inspection for C.O. Occupancy on all six (6) from DRC General Contractors, LLC and Randy Falls (Second Party) receipt of which is hereby acknowledged release the second party from any suits, damages relating to materials, or workmanship by Second Party at Kingston Shores Condominium, Inc. at 5500 Ocean Shore Blvd., Ormond Beach, Florida 32176. Respondent is no longer in the construction business. He currently earns $24,000 a year as an EMT and is studying to be a paramedic. The amount of the Department's costs of investigation and prosecution is not in evidence
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Construction Industry Licensing Board enter a final order imposing fines in the amount of $1,000 for violation of Subsection 489.129(1)(d); $1,000 for violation of Subsection 489.129(1)(e); and $1,000 violation of Subsection 489.129(1)(m), Florida Statutes; pay $8,607.00 in restitution; and require Respondent to attend seven additional hours of continuing education classes. DONE AND ENTERED this 24th day of March, 2008, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 24th day of March, 2008. COPIES FURNISHED: Collin W. L. Mcleod, Esquire Wright, Fulford, Moorhead & Brown, P.A. 145 North Magnolia Avenue Orlando, Florida 32803 Randy Falls 1250 Scottsdale Drive Ormond Beach, Florida 32174 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1040 North Monroe Street Tallahassee, Florida 32399-0792 G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1040 North Monroe Street Tallahassee, Florida 32399-0792
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 =================================================================
Recommendation It is recommended that the Florida Construction Industry Licensing Board dismiss the Respondent from further responsibility to answer to the Administrative Complaint. DONE and ENTERED this 25th day of August, 1976, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry S. Sinoff, Esquire 1010 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 John W. Tanner, Esquire Suite One. 434 N. Halifax Avenue Daytona Beach, Florida 32018
The Issue Whether Respondent committed the offenses described in the administrative complaints filed against him? If so, what discipline should he receive?
Findings Of Fact Based upon the record evidence, the Hearing Officer makes the following findings of fact: General Information Edward Ryan is now, and has been since October, 1973, licensed as a Building Contractor by the State of Florida. He holds license number CB 0006481. Ryan has previously been disciplined by the Florida Construction Industry Licensing Board (Board). In July, 1987, prior to the issuance of the instant administrative complaints, he received a letter of reprimand from the Board. The Department of Professional Regulation has recently received additional complaints concerning Ryan. These complaints are currently under investigation. Ryan has been the qualifying agent for Gulf Chemical Contractors, Inc. (Gulf) since August, 1982. All ten of the instant administrative complaints involve projects undertaken by Gulf in Dade County, Florida. The South Florida Building Code (Code) has been adopted as the building code for both the incorporated and unincorporated areas of Dade County. The Code provides in pertinent part as follows with respect to the requirement of permits: It shall be unlawful to construct, enlarge, alter, repair, move, remove or demolish any building structure, or any part thereof; or any equipment, device or facility therein or thereon; or to change the Occupancy of a building from one use Group to another requiring greater strength, means of egress, fire and sanitary provisions; or to install or alter any equipment for which provision is made or the installation of which is regulated by this Code; without first having filed application and obtained a permit therefor, from the Building Official, validated by payment there for. EXCEPTION: No permit shall be required, in this or any of the following Sections, for general maintenance or repairs which do not change the Occupancy and the value of which does not exceed one hundred dollars ($100.00) in labor and material as determined by the Building Official. The Code further requires that the permit holder or his agent notify the Building Official of the completion of the project and call for an inspection of the work completed. Another requirement of the Code is that products such as air vent systems receive official approval from the appropriate Building Official prior to their installation. An experienced building contractor like Ryan doing business in Dade County should be aware of these requirements and should know that it is the responsibility of the general contractor of a project to make sure that these requirements are met. Case No. 89-2204 On May 2, 1987, Helana Lau and her husband entered into a written contract with Gulf. Gulf agreed to perform work on the Lau residence located at 2400 S.W. 15th Street in Miami, Florida, for which it was to be paid, pursuant to the terms of the contract, $11,450.00 by the Laus. The work that was to be performed on the structure included, among other things, the replacement of the roof and "any rotted wood on facia and soffits" and the installation of a "filter vent system." Gulf installed an aluminum air vent system for the Laus. The product used by Gulf had not received official approval prior to its installation as required by the South Florida Building Code. Furthermore, it posed a potential safety hazard. No official inspection of the contract work performed by Gulf on the Lau residence has ever been requested, notwithstanding that Gulf has long since terminated its work in connection with the project and vacated the jobsite. Case No. 89-2205 On December 29, 1986, Marvin Lichtenstein entered into a written contract with Gulf. Gulf agreed to texture coat Lichtenstein's home located at 2080 N.E. 171st Street in North Miami Beach, Florida. Pursuant to the terms of the contract, Gulf was to be paid $4,000.00 by Lichtenstein for performing this work. The contract contained a handwritten notation that "finances will be appr 10-11%" and that therefore Lichtenstein would have "a monthly payment of appr $71 or less" on the unpaid balance, which was $3,900.00. The contract also contained the following provision, which unlike the aforementioned notation was printed: This is an agreement by the parties mentioned herein to enter into an installment loan contract. The Purchaser requests that the Seller and the Seller's agents make the appropriate inquiries into the Purchaser's credit history and into the condition of the Title of the Property to be encumbered. The purpose of these inquiries is to see if the Seller may be able to arrange financing of the unpaid cash balance and what the terms of that financing may be. The purchaser agrees to accept any Home Improvement Contract presented by or thru the Seller, that has an interest rate less than the maximum current interest mentioned in the Florida Retail Installment & Sales Acts. The Purchaser agrees that all cost incurred by the Seller in connection with the payment plan will be paid by the Purchaser if the Purchaser refuses to accept that Home Improvement Contract. The work was performed by Gulf on the Lichtenstein home during the second week of January, 1987. Although a permit was required under the Code, it was not obtained prior to the commencement of the project or at any time thereafter. Furthermore, no official inspection of the work completed by Gulf has been requested. Following the completion of the work, Lichtenstein received from AmSav Financial, Inc., an Advance Notice of Acceptance and Intent to Purchase an FHA Title I Note. The document, which was dated January 14, 1987, provided Lichtenstein with the following information: We have found your credit to be satisfactory for a loan in the amount of $3,900.00 for a period of 60 months. Interest at a rate of 14.50% will be charged on the unpaid principal balance. Monthly payments will be $92.82. It is our intention to disburse the funds to the above mentioned dealer [Gulf] when all necessary documents, including a completion certificate indicating the work has been satisfactorily completed are received in proper order; but not earlier than six days from this date. It is not our policy to inspect all improvement projects we finance, so we want you to know that the selection of the contractor and the acceptance of workmanship and materials is your responsibility. You should insist on a copy of all instruments you sign and you should not sign the completion certificate until the contract has been fulfilled to your satisfaction. Contractors are not permitted to give cash rebates from the proceeds of this transaction nor are they permitted to make any payments for you nor any other type of incentive to buy. This commitment is good for 60 days only. If you have any questions regarding this transaction, or if we can be helpful in any way, please let us hear from you within six days from this date. Lichtenstein refused to accept this financing arrangement and, because he was dissatisfied with the work Gulf had done, withheld payment. He eventually settled this dispute with Gulf and paid the company $2,500 in accordance with the terms of the settlement agreement. Case No. 89-2206 On or about July 11, 1987, Al Childress, the supervisor of the Code Enforcement Section of the Dade County Building and Zoning Department, received a complaint regarding work purportedly done by Gulf on the Rojas residence located at 18105 N.W. 5th Court in Dade County, Florida. Childress thereafter inspected the premises and discovered that a three-ton air conditioning unit had been installed without a permit first having been obtained. He further ascertained that no formal inspection of the installed unit had been requested. Childress subsequently issued Gulf citations for "unlawfully commencing work on a[n] air conditioning installation without a permit" and "unlawfully contracting for work outside the scope of the certificate of competency." Case No. 89-2207 On January 12, 1987, Bryan Bitner entered into a written contract with Gulf. Gulf agreed to remodel and renovate the kitchen and other parts of the Bitner residence located 571 N.E. 175th Terrace in North Miami Beach, Florida. Pursuant to the terms of the contract, Gulf was to be paid $10,216 by Bitner. Work on the project began on February 14, 1987, and ended on April 20, 1987. Although given the opportunity to do so by Bitner, Gulf failed to finish the work it had agreed to perform and, without justification or notice, abandoned the project after having completed only 70% of the kitchen cabinetry work specified in the contract. Neither before nor after the commencement of work on the project were the required building, electrical and plumbing permits obtained. No official inspections of the work done in connection with the project have been requested. Case No. 89-2208 On December 19, 1985, Anthony and Anna Rabeck entered into a written contract with Gulf. Gulf agreed to perform roofing work on the Rabeck's home located at 447 East 7th Street in Hialeah, Florida, for which it was to be paid, pursuant to the terms of the contract, $2,792.00 by the Rabecks. Gulf thereafter subcontracted with Louis Rusty Gordon of Rusty's Roofing to perform work on the project. Gordon performed the work, but was not paid the $600.00 Gulf had agreed to pay him. He therefore filed a lien on the Rabeck's residence in the amount of $600.00 and filed a complaint against Gulf and the Rabecks in Dade County Circuit Court seeking a $600.00 judgment against them. Gordon was ultimately paid the $600.00 by the Rabecks. A roofing permit was never obtained for the work that was done on the Rabeck residence. Furthermore, no official inspection of the work has ever been requested. Case No. 89-2209 On February 21, 1987, James Cox entered into a written contract with Gulf. Gulf agreed to texture coat and to add a screened porch to the Cox residence located at 11621 S.W. 183rd Street in Dade County, Florida. For this work, Gulf was to be paid, pursuant to the terms of the contract, $5,700.00 by Cox. The texture coating was completed in late March, 1987. The screened porch was finished in early April, 1987. Upon completion of the entire project, Cox paid Gulf in full in accordance with their contractual agreement. Although a permit was necessary to commence the work on the Cox residence, it was never obtained. In addition, no one requested that the completed work be officially inspected. The screened porch was constructed by a subcontractor, Steve Buzzella. Prior to his undertaking this project, Gulf had agreed to pay him $2,200.00 for such work. Although he satisfactorily completed the project, Gulf did not pay him for his work. Consequently, he filed a lien on the Cox residence in the amount of $2,200.00. Buzzella has yet to be paid the money he is owed by Gulf and the lien remains in effect. Cox has retained legal counsel to assist him in connection with this matter and has already paid $175.00 in legal fees. Case No. 89-2210 On June 30, 1986, Adele Spiegel and her husband David entered into a written contract with Gulf. Gulf agreed in the contract to, among other things, texture coat the Spiegels' residence located at 7380 S.W. 116th Terrace in Dade County, Florida. Pursuant to the terms of the contract, Gulf was to be paid $4,500.00 by the Spiegels. The contract further provided that the Spiegels were to receive a "15 year warr[anty] on [the] tex[ture] coat[ing]" work. It also contained the following provision: Contractor guarantees that all materials furnished by it will be of standard quality, type and condition, free from defects, and will be installed, built or applied in a good workmanlike manner; said labor and materials guaranteed against structural and material defects. Gulf completed the project without obtaining the required permit. Furthermore, no official inspection of the completed project was ever requested. The Spiegels paid Gulf in full for the work it had done. The last of their payments was made on July 10, 1986, following the completion of the project. After this final payment was made, "dark stains" appeared on portions of the texture coating that had been applied to the gable end of the Spiegels' roof. In addition, some of the texture coating started to peel and crack. These problems were caused by the improper application of the texture coating. The Spiegels have advised Gulf of these problems. They have made numerous efforts to have Gulf honor its fifteen-year warranty and correct these problems. These efforts have been to no avail. Gulf has yet to take any corrective action, notwithstanding its obligation to do so under the warranty it gave the Spiegels. Case No. 89-2211 On February 18, 1985, Angelo Bertolino entered into a written contract with Gulf. Gulf agreed to texture coat Bertolino's residence located at 11730 S.W. 175th Street in Dade County, Florida. For this work, Gulf was to be paid, pursuant to the terms of the contract, $3,000.00 by Bertolino. Bertolino received from Gulf, as part of their agreement, a fifteen-year warranty on the texture coating similar to the one that the Spiegels were given. Assurances were given to Bertolino that any warranty work that was necessary would be done by Gulf. The Bertolino home was texture coated shortly after the contract was signed. In July, 1987, the texture coating began to crack and peel. Bertolino immediately contacted Gulf to apprise it of the situation and to request that it perform the necessary repairs in accordance with the terms of the warranty it had given him. Receiving no response from Gulf to this initial request, he telephoned the company's offices on almost a daily basis until September, 1987, when a Gulf representative came to his home and did some corrective work. A month later, the area that had purportedly been repaired started to again crack and peel. Bertolino has made Gulf aware of the situation and has sought on numerous occasions to have the company perform the warranty work necessary to correct these problems. Gulf has ignored these requests and failed to honor the warranty it gave Bertolino. Case No. 89-2212 On January 6, 1988, Edward Baum entered into a written contract with Gulf. Gulf agreed to texture coat Baum's residence located at 10921 S.W. 120th Street in Dade County, Florida. For this work, Gulf was to be paid, pursuant to the terms of the contract, $3,200 by Baum. The project was completed on January 13, 1988. Upon completion of the work, Baum paid Gulf in full. Textured Coatings of America, Inc. (TCA) supplied Gulf with $583.28 of materials that were used to complete the project. The materials were supplied on credit. Because it had not received payment for these materials, TCA, on March 4, 1988, after giving due notice to Gulf and Baum, filed a lien on Baum's residence in the amount of $583.28. TCA has yet to be paid for these materials and the lien is still in effect. Case No. 89-2213 On February 17, 1987, James Harris entered into a written contract with Gulf. Gulf agreed to install new windows in Harris' residence located at 9730 S.W. 167th Street in Dade County, Florida, for which it was to be paid, pursuant to the terms of the contract, $2,503.20 by Harris. The windows were installed in one day. Although one was needed, no permit was obtained prior to the completion of the project. Furthermore, no official inspection of the completed work has ever been requested. The windows were not installed properly. As a result, they do not close and lock as they should. Harris must put cement blocks on the outside ledges in front of some of the windows and then tape these windows shut to prevent them from falling open. Harris has unsuccessfully sought to have Gulf repair the windows.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Construction Industry Licensing Board enter a final order (1) finding Respondent guilty of the violations described in paragraph 7, 8, 11, 12, 14, and 16-24 of the foregoing Conclusions of Law; (2) revoking his license as punishment for these violations; and (3) dismissing the charges against Respondent discussed in paragraphs 9, 10, 13, and 15 of the foregoing Conclusions of Law. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 8th day of September, 1989. STUART M. LERNER 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 8th day of September, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 89-2204 THROUGH 89-2213 The following are the Hearing Officer's specific rulings on the Proposed Findings of Fact submitted by the Department: 1-12. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. First sentence: Accepted and incorporated in substance; second sentence: Rejected as not supported by persuasive competent substantial evidence inasmuch as it suggests that Lichtenstein was obligated to, and did, make monthly payments of $92.82. Rejected for the same reason as 13, second sentence, above. 15-16. Accepted and incorporated in substance. First sentence: Accepted and incorporated in substance; second sentence: Rejected as not supported by persuasive competent substantial evidence to the extent that it asserts that Rojas "had hired Gulf to install an air conditioning unit." Insofar as it describes the complaint received by Childress, it has been accepted and incorporated in substance. Rejected as not supported by persuasive competent substantial evidence inasmuch as it indicates that the work on the Rojas residence was performed by Respondent. First and second sentences: Accepted and incorporated in substance; third sentence: Rejected as more in the nature of argument than a finding of fact. First sentence: Rejected for the same reason as 18 above; second sentence: Accepted and incorporated in substance. Rejected for the same reason as 18 above. 22-28. Accepted and incorporated in substance. Rejected as beyond the scope of the charges to the extent that it addresses the quality of the work that was completed. In all other respects, this proposed finding has been accepted and incorporated in substance. First sentence: Accepted and incorporated in substance; second sentence: Rejected as not supported by persuasive competent substantial evidence. 31-32. Accepted and incorporated in substance. 33-34. Rejected as not supported by persuasive competent substantial evidence inasmuch as both of these proposed findings are based upon the premise that the Rabeck's paid Gulf in full. 36-44. Accepted and incorporated by reference. 45. Rejected as unnecessary, except for the last sentence, which has been accepted and incorporated in substance. 46-62. Accepted and incorporated in substance. 63. Rejected as unnecessary except to the extent it references the lien filed against the Baum residence. Insofar as it addresses said lien, it has been accepted and incorporated in substance. 65-66. Accepted and incorporated in substance. 67. First sentence: Rejected as unnecessary; second and third sentences: Accepted and incorporated in substance. 68-71. Accepted and incorporated in substance. COPIES FURNISHED: Gregory A. Victor, Esquire Jan L. Darlow, Esquire William Burke, Esquire Bayview Executive Plaza 3225 Aviation Avenue, Suite 400 Miami, Florida 33133 Edward Ryan 169 Lincoln Road Miami Beach, Florida 33139 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
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 Florida Construction Industry Licensing Board (Petitioner herein) seeks to revoke Carroll L. Mozingo's (Respondent herein) license to practice as a registered general contractor based on allegations which will be set forth hereinafter in detail that he diverted funds in violation of Chapter 468.112(2)(e), Florida Statutes. Based upon my observation of the witnesses and their demeanor while testifying and the entire record compiled herein, I make the following:
Findings Of Fact The Respondent is a registered general contractor, who holds current license no. RG0015876. On September 7, 1976, Respondent entered into a contract with Robert Johnson and his wife Sandra Johnson for a room addition and patio to their house located at 197 North Roscoe Blvd., Ponte Vedra Beach, Florida. The full amount of the contract plus agreed upon extras amounted to $9,640.00. (Petitioner's Composite Exhibit Number 2) Respondent applied for and obtained a building permit for the construction of the Johnson's addition on or about September 27, 1976, and construction commenced shortly thereafter. (Petitioner's Exhibit Number 1) Donald Jermaine, a St. Johns County field inspector, testified that he conducted inspections on the subject job and noted numerous violations of the St. Johns County Building Code. He coordinated the inspections for this project up until the time it was abandoned by Respondent during mid February, 1977. At the time of abandonment, the owner, Robert Johnson, had paid a total amount of $11,021.96 to Respondent and/or various suppliers. To complete the job as contracted by the parties (Johnson and Mozingo) Messr. Johnson had to pay Proctors Construction Company $2,800.00, an electrical contractor $369.00 and a plumbing contractor $520.00 for a total expenditure over and above the above referenced contract amount of $3,689.00. He testified that no additional work was done to his home. The Respondent testified that he expended $7,458.00 for materials on the Johnson project and was unable to complete it because his mortgage payments were delinquent and he was not receiving any additional monies from Messr. Johnson to fulfill his obligations. He testified that he was unable to work at night and therefore had to seek other employment with another contractor. The above explanation by the Respondent which led to his abandonment of the subject project does not excuse him from his contractual obligations to either fulfill the contract as agreed upon or to seek a renegotiation based on additional costs and/or unexpected circumstances. This was not done nor was any other explanation given as to where the additional monies in excess of $4,000.00 was spent. I therefore conclude that he engaged in a diversion of funds as alleged in the administrative complaint filed by the Petitioner on May 27, 1977. I shall so recommend.
Recommendation Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the Respondent's general contractor's license be suspended for a period of two years. RECOMMENDED this 2nd day of December, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 C. H. Hoskinson, Chief Investigator Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211 Carroll L. Mozingo 1909 Ed Johnson Drive Jacksonville, Florida 32218 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. DIVISION OF ADMINISTRATIVE HEARINGS, DOCKET NO. 77-1095 CARROLL L. MOZINGO dba CARROLL CONSTRUCTION COMPANY, RG 0015876, 1909 Ed Johnson Drive, Jacksonville, Florida 32218, Respondent. /
The Issue At issue herein is whether or not the Respondent/Licensee, Tomas Perez, d/b/a Lifetime Chemicals of America, Inc. (Lifetime), engaged in conduct which will be set forth hereinafter in detail, which warrants the Florida Construction Industry Licensing Board (Board) to take disciplinary action respecting his license and to impose an administrative fine based on said alleged conduct.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and the entire record compiled herein, the following relevant facts are found. Tomas Perez, d/b/a Lifetime Chemicals of America, Inc. (Respondent), is a certified general contractor who holds license No. CGCA 04170, which is active. On September 24, 1975, Mr. Perez used his license to qualify Lifetime Chemicals of America, Inc., as the entity through which he would conduct his business activities (Petitioner's Exhibit 1). On August 15, 1978, Lifetime Chemicals of America, Inc. , entered into an agreement with James Laughery of Fort Myers, Florida, for a franchise agreement to use Lifetime's license in the immediate area of Fort Myers, Florida (Petitioner's Exhibit 5). That agreement provides, among other things, that Respondent Lifetime authorized James Laughery to use its license in the Fort Myers area for a fee of $50.00 per job or $1,500.00. The agreement does not provide, nor was any evidence offered to establish that Respondent Perez played any supervisory or managing role in agent Laughery's contracting activities in the Fort Myers area. During October of 1978, Mr. Andrew Szarfran entered into an agreement with Respondent's agent, Laughery, to perform certain roofing repairs to his residence for the sum of $1,000.00. Mr. Szarfran paid Laughery $500.00 and Laughery abandoned the project prior to completion (Testimony of Szarfran and Petitioner's Composite Exhibit 4). Mr. Szarfran engaged the services of another contractor to complete the project. On May 17, 1979, the Lee County Construction Board reviewed a complaint filed against Respondent by the Szarfrans. Based on that review, the Lee County Construction Board revoked Respondent's licensing privileges in the county at its June, 1979, meeting (Petitioner's Exhibits 3 and 4 and testimony of witnesses Richard M. McDole and Maxine Allred, Administrative Director of Court Enforcement and Permit Clerk, respectively, for Lee County). On or about October 17, 1978, Respondent's agent, Laughery, also entered into an agreement with Mr. and Mrs. Arthur Swanson for the erection of aluminum siding to the exterior walls of their residence for a full price of $5,000.00. The Swansons gave Respondent's agent, Laughery, a downpayment of $2,500.00 and agent Laughery abandoned the project prior to the commencement of any work (Petitioner's Exhibits 7 and 8 and testimony of Mrs. Swanson). Richard Newmes, the chief inspector for building and zoning, Cafe Coral, Florida, testified that the Construction Industry Licensing Board for Cape Coral, Florida, revoked Respondent's contractor license on January 17, 1979, based on his violation of Cape Coral Code Section 5-1/2 - 21(J), to wit: "Failure to make good faulty workmanship or materials performed or installed to evade performance of the contract or specifications as agreed upon." (Petitioner's Exhibit 9.) On or about January 4, 1979, Lifetime Chemicals of America, Inc., became aware of its agent, James Laughery's mismanagement of funds and his failure to honor contractual obligations he had entered in the Fort Myers area. Respondent and its agent Laughery therefore entered into an agreement which rendered the franchise agreement between the parties null and void. Agent Laughery, in said agreement, promised to pay, from his commissions due, monies owed to Lifetime Chemicals, Inc., which apparently was brought about due to the restitution that Lifetime Chemicals had made to customers whom agent Laughery had defaulted. As mitigating evidence, it was noted that the Respondent, Tomas Perez, was not party to or familiar with the activities and/or difficulties that the designated agent for Lifetime Chemicals of America, Inc., James Laughery, was encountering in the Fort Myers vicinity before early January, 1979. As soon as Respondent became aware of Laughery's problems, steps were immediately taken to halt such acts insofar as they related to Respondent (Testimony of Tomas Perez and Michael Arfaras).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law and the mitigating evidence which revealed that although the Petitioner is authorized and in fact holds the qualifier license of a registered entity responsible for the acts of its agents, in view of the undisputed evidence which reflects that neither Respondent Perez or Respondent Lifetime Chemicals of America, Inc., in any manner benefited from the acts of its agents and in fact attempted to thwart the illegal acts of its agent as soon as such became known, it is hereby RECOMMENDED: l. That the Respondent, Tomas Perez's Certified General Contractor's license, CGCA 04170, be placed on probation for a period of one (1) year. 2. That the Respondents, Tomas Perez and Lifetime Chemicals of America, Inc. , be issued a written letter of reprimand. RECOMMENDED this 24th day of April, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, 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 24th day of April, 1980. COPIES FURNISHED: Barry Sinoff, Esquire 2400 Independent Square Jacksonville, Florida 32202 Tomas Perez 2395 West 12th Avenue Hialeah, Florida 33010 Michael Harold Arfaras 820 S.W. 20th Avenue Miami, Florida 33135 Mr. J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. CASE NO. 79-2173 THOMAS PEREZ, CGCA 04170 Respondent. /
Findings Of Fact This cause comes on for consideration based on the Administrative Complaint of the Petitioner, State of Florida, Department of Professional and Occupational Regulation, Florida Construction Industry Licensing Board, now referred to as State of Florida, Department of Professional Regulation, Florida Construction Industry Licensing Board. The essential allegations of the Administrative Complaint are as found in the issue statement of this Recommended Order and that discussion in the issue statement is incorporated into the Findings of Fact and made a part hereof. The Petitioner, State of Florida, Department of Professional Regulation, Florida Construction Industry Licensing Board, is an agency of the State of Florida, which has the responsibility to regulate those individuals who serve the public in the capacity of contractors in the State of Florida. This regulatory function carries with it the obligation to prosecute those individual licensees whom the regulatory agency believes to have committed offenses as defined by Chapter 468, Florida Statutes. The possible outcome of such a prosecution carries with it the potential revocation or suspension of the license of those persons regulated by the agency. On this occasion, by Administrative Complaint, the Petitioner has charged E. J. Pollock, d/b/a Miami Advertising, Inc., with violations of Chapter 468, Florida Statutes, as set out herein. The Respondent has replied to the Administrative Complaint by reguesting a Subsection 120.57(1), Florida Statutes, hearing, which de novo hearing was held on the date and at the time and place set out above. E. J. Pollock, d/b/a Miami Advertising, Inc., is the holder of a Certified general Contractor's license, No. CG C004577, held with the Petitioner. That license was current and active in October, 1975, and continued as an active license until the year 1977 when the license became inactive and it remains inactive at this time. The facts reveal that the Respondent in 1975 entered into a discussion with Dr. Thor Brickman about assisting Dr. Brickman in obtaining a building permit from the Metropolitan Dade County Building and Zoning Department, Dade County, Florida. This permit was to allow the construction of certain office alterations of Dr. Brickman's office located at 1136 N.W. 119th Street, Dade County, Florida. The plans and specifications for such alterations may be found as Petitioner's Exhibit No. 8 admitted into evidence. After some discussion, the Respondent and Dr. Brickman concluded an arrangement by which the Respondent would act as a contractor on the job, in the sense of having the overall responsibility for its construction. This included the responsibility to pay the workers, sub contractors and material man. The agreement between Pollock and Brickman was one in which Pollock was acting in his individual capacity as opposed to through affiliation with a contracting firm. However, at the time Pollock entered into this agreement with Dr. Brickman, his Certified general Contractor's license had been transferred to an affiliation with Miami Advertising, Inc. The Respondent had made this transfer in anticipation of a job to be performed for Miami Advertising, Inc., and in fact certain preliminary matters had been concluded with Pollock acting as manager for the project for Miami Advertising, Inc. Miami Advertising, Inc., was without knowledge of the contract between Pollock and Dr. Brickman. Notwithstanding the lack of knowledge on the part of Miami Advertising, Inc., and the representations to Brickman that the Respondent was acting in his individual capacity when he contracted to remodel Brickman's office, the Respondent applied for a building permit to be issued by the Dade County Building and Zoning Department and in doing so he indicated that he was securing that permit as a qualifier for Miami Advertising, Inc. This can be seen in the petitioner's Exhibit No. 5 admitted into evidence which is a copy of the building permit application as issued on October 31, 1975. Pollock commenced the work and Dr. Brickman paid Pollock directly for the work that was being done. The parent checks were endorsed and cashed by Pollock. The amount Pollock received totaled $6,797.22. Sometime in December, 1975, the owner, Dr. Brickman, became disenchanted with some of the workers whom Pollock had on the job in the sense that those workers had been drinking while on the job. Brickman advised Pollock of this and indicated to Pollock that he did not want those persons on the job without supervision. Nonetheless, the owner continued to advance money to Pollock to pay for the job as contracted for. In January, 1976, the Respondent left the job and Brickman was of the impression that the roof on the extension was finished and that there was no problem with the roof, but this impression was wrong because in February, 1976, one of the owner's tenants began to complaint about the roof leaking and those complaints continued until the tenant moved out due to water damage. This caused Brickman to lose moneys in rentals. When Brickman spoke with Pollock about the leaking roof, Pollock sent a roofer to the job to see about the problems but Brickman was not satisfied with that roofer and declined to have him make any corrections to the roof job. (Although the Respondent denies the responsibility for the completion of the roofing work on the Brickman project, the testimony clearly reveals that he had accepted that responsibility as a part of the contract.) The roofer spoken of, whose name is Montgomery, came to the job in March, 1976. Subsequent to Montgomery's visit, problems continued to occur with the roof and the condition of the roof in April, 1976, and the interior of the building may be seen in the Composite Exhibit No. 1 by the Petitioner, which is a series of photos depicting the roof and interior. Pollock would not return and complete the job and Dr. Brickman made a complaint to cause administrative charges against the Respondent. This original complaint was dropped and in November, 1977, Pollock called about completing the job which was still unfinished. Brickman agreed to have Pollock cane and complete the job. Pollock did not return to the job as he stated he would do. In December, 1978, a representative of the Metropolitan Dade County Building and Zoning Department went to the project and found that the job was closed and found that no framing inspection had been requested by Pollock and completed as required by Metropolitan Dade County Building and Zoning Department Code. Other matters within the job site were found to be deficient. The original building permit had expired and the required roofing permit had never been granted. The condition of the project as it existed at the time of the inspection may be found in certain photographs taken by the Building Inspector which may be found as a part of the Petitioner's Composite Exhibit No. 2 admitted into evidence. The problem with permits was subsequently rectified; however, based upon the inspector's evaluation, notices of violations were filed in January, 1979, against the Respondent Pollock. The violations spoken to above were for violations of the building and zoning code, particularly Metropolitan Dade County Building and Zoning Department Code No. 305.2, failure to call for inspections between October 31, 1971, and January 4, 1979, and Metropolitan Dade County Building and Zoning Department Code Section No. 304.4(b), failure to construct office alterations according to plans between October 31, 1975, and January 4, 1979. (These provisions are part of the South Florida Building Code which is used by Metropolitan Dade County.) The charges were made through a two-count information in Case 79-53600 in the County Court in and for Dade County, Florida. For the former violation, the Respondent was adjudged guilty and received a fine of $750.00 with $25.00 court costs, and for the latter count Pollock was sentenced, with the sentence being suspended from day to day and term to term. This Statement of Charges and Disposition may be found as petitioner' s Composite Exhibit No 3 admitted into evidence, a copy of the Charges, Judgment, Sentence and Order of the Court. The Respondent, Pollock, was also charged by Metropolitan Dade County with a violation of the Code of Metro Dade, Chapter 10, Section 10-22 (b), abandonment of the construction project without legal authority. (The disposition of that charge is unknown to the Hearing Officer, in that it was not presented as a matter of proof in the course of the hearing and the facts of the existence of such charge came in by a stipulation of fact between the parties to this action.) The Respondent returned to the job in January, 1979, and on the date of the hearing 95 to 99 percent of the job had been completed. Still remaining to be completed were certain roofing work with metal-to-metal soldering and gravel stops to be concluded and at that time the roof was still leaking. In view of the damage to Brickman' s property, a claim was made against the liability insurance required by Subsection 468.106(6), Florida Statutes. This claim was denied by the insurance carrier because their insurance covered Miami Advertising, Inc., only, and that company had no knowledge of the contract or the job. An indication of this denial may be found as Petitioner's Composite Exhibit No. 4 admitted into evidence, which are copies of letters denying coverage. They are addressed to Dr. Brickman and are from Parliament Insurance Company, insurer of Miami Advertising, Inc.
Recommendation It is recommended that the Respondent, E. J. Pollock, who holds his license as qualifier for Miami Advertising, Inc., License No. CG C004577, be suspended for a period of one (1) year. This recommendation is made with the knowledge of the letters offered in mitigation of the penalty. DONE AND ENTERED this 26th day of November, 1979, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Barry Sinoff, Esquire Sinoff, Edwards & Alford 2400 Independent Square One Independent Drive Jacksonville, Florida 32202 H. Adams Weaver, Esquire 310 Okeechobee Boulevard Post Office Box "M" West Palm Beach, Florida 33402 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD
The Issue The issues in this case are whether Respondent violated Subsections 489.129(1)(g)2., (g)3., (j), (o) and (m), Florida Statutes (2004),1 and, if so, what discipline should be imposed.
Findings Of Fact Mr. Spencer holds a current, active Florida State Certified Building Contractor License, having been issued license number CBC 1252039. He is certified with the Department as doing business as KCLS Spencer, Inc. (KCLS), and is the primary qualifying agent thereof. Mr. Spencer submitted a Proposal, bearing the letterhead of KCLS and dated September, 14, 2004, to Jesse J. Ross, Sr. (Mr. Ross), which pertained to the exterior remodeling of Mr. Ross' jewelry store located at 6290 North Atlantic Avenue, Cape Canaveral, Florida 32920. Initially, the Proposal put the cost for the remodeling at $48,762.86. After some negotiating, the Proposal that ultimately formed the basis of their contract set the cost at $45,000.00 and relieved Mr. Spencer of the obligation of constructing walkways. The Proposal's explicit terms provide: As per specifications and blueprints pricing is as follows; labor and material to renovate existing exterior building. Prices to include all demolition of all exist [sic] structures, installation of siding, columns, dormers, cupolas, two (2) French doors, windows, front gutters and down spouts, electrical, and final painting. Notes: Signs by owner. Paint colors by owner. Power and water supplied by owner. Color of pre-painted metal roof determined by owner. Material storage space to be provided by owner. Quotes good for 10 days (after 10 days, please reconfirm material pricing). 20% deposit $9752.57 due to start project, invoicing to [sic] made weekly per actual costs. Essentially, much of the exterior remodeling to be performed is simply stated as being based on the specifications and blueprints, which Mr. Ross provided to Mr. Spencer. These specifications and blueprints have not been received in evidence, but there appears to be no dispute among the parties regarding the scope of the work. The terms of payment were for an initial 20 percent deposit of $9,752.57, with weekly invoices to follow based on actual, ongoing costs. On October 25, 2004, Mr. Ross' lender, Coastal Bank, drafted a loan check for $9,752.57 made payable to KCLS. Sometime shortly thereafter, KCLS began the work of remodeling the exterior of Mr. Ross' store. As work progressed, Mr. Spencer provided Mr. Ross with an invoice, dated November 11, 2004, requesting payment for costs incurred. Despite listing on the invoice an "off set balance" of $2,515.32 that applied costs to date against the initial deposit, the total amount due was nevertheless listed as $12,268.04. On November 23, 2004, Mr. Ross wrote a check for $12,268.04 made payable to Mr. Spencer personally. Later, Mr. Spencer provided Mr. Ross with another invoice, dated December 23, 2004, requesting payment for further costs incurred. The total amount due was $8,475.24. By check dated that same day, Mr. Ross wrote a check for $8,475.24 made payable to Mr. Spencer personally. At this time, Mr. Ross received assurance from Mr. Spencer that no further money would be due, until the work was entirely completed. Sometime between Christmas 2004 and New Year's 2005, Mr. Spencer returned again to Mr. Ross' store and requested from him an additional $3,000.00. At this point, Mr. Ross refused, because of Mr. Spencer's earlier assurance that no further ongoing payments would be demanded and because of the lack of any work performed since the last payment. Mr. Spencer insisted that he had all of the necessary materials in his warehouse and that he would be back on the Monday following the New Year's holiday to work on the store. He never returned and could not be contacted by Mr. Ross. As the storefront remained in disrepair, Mr. Ross was compelled to contract with other parties to complete the work. Sunland General Contractors, Inc. (Sunland); Baker Roofing (Baker); and D.A.B. Painting, Inc. (DAB), completed the work that Mr. Spencer had previously been contracted with to perform. According to the testimony of Mr. Ross, they based their work upon the same specifications and blueprints that Mr. Ross had previously provided to Mr. Spencer. Sunland, except for the roofing and painting, performed what work that remained. Based on a payment history dated December 16, 2005, the total cost of Sunland's work for Mr. Ross was $23,770.00. However, this cost includes $3,990.00 for walkway decking, which Mr. Ross and Mr. Spencer, in their previous negotiations, had agreed would not be part of their final agreement. As such, the relevant cost in the instant case for Sunland's work is $19,780.00. According to a Baker invoice, dated November 10, 2005, the cost to Mr. Ross for the new roof was $14,935.00. According to a letter from DAB, dated April 23, 2005, Mr. Ross paid $6,500.00 for the painting of his store. In sum, the relevant costs to Mr. Ross for this subsequent work total $41,215.00. Sometime in October of 2005, Mr. Ross provided Mr. Frank A. Wisniski (Mr. Wisniski), a general contractor and owner of Sunland, with a set of blueprints and asked him to takeover the job that Mr. Spencer had not completed. Mr. Wisniski further testified on the condition of the building, as Mr. Spencer had left it. According to his testimony, some of the siding was not nailed properly, and the columns in the front of the store were not well secured, a potentially hazardous situation. Overall, in his opinion, he felt that Mr. Spencer had completed approximately 25 percent of the total scope of the job. Mr. Robert T. Shindo (Mr. Shindo) is an investigator for the Department. He responded to Mr. Ross' complaint to the Department regarding Mr. Spencer's work on the store. He found, "basically, a building that was not in repair." Some siding work had been done on the north face of the building, as well as some column work. However, the columns appeared damaged or incomplete, and the siding appeared incomplete as well. Besides the siding and columns, Mr. Shindo testified that "[t]here did not appear to be any other work." Overall, Mr. Shindo had familiarized himself with the Proposal and estimated that between ten and 15 percent of the job appeared to be complete. Mr. Michael McCaughin (Mr. McCaughin) is employed at the Building Code Division of Brevard County and is the chief building official for the county. Mr. McCaughin concluded that based on the work specified in the Proposal of Mr. Spencer, the only item which would not have required permitting is the gutters. Mr. McCaughin personally searched the county permit database, and no permits were ever pulled by Mr. Spencer for the remodeling of Mr. Ross' store. Petitioner's Exhibit 14, a printout of the permits that have been pulled for Mr. Ross' store, confirms Mr. McCaughin's testimony. Moreover, Mr. McCaughin "performed a search of Mr. Spencer under his name, under his state license number, and also under the company name, KCLS and, could not find any record of any permits being pulled, nor was he registered with Brevard County contractor licensing." Mr. Spencer, in testifying in his own behalf, mainly confirmed the testimony of the other witnesses and the other facts in evidence. Among other things, he confirmed that he and Mr. Ross had an agreement for KCLS to remodel the exterior of the store and that the agreement was based on the Proposal he had submitted to Mr. Ross. He agreed that he received the payments that Mr. Ross testified to having paid and testified that he never pulled the permits for the job, because he "[j]ust didn't take the time to do it." Mr. Spencer's recollection of his final conversation with Mr. Ross was substantially the same as Mr. Ross' testimony, with Mr. Spencer testifying that he had told Mr. Ross he would be back to work on the job and that there was an understanding that final payment would be made at the end of the project. He goes on to testify that he did actually go back after this final conversation to finish up the siding on the south side of the store and that the siding was completed. This last testimony is not credible. In Mr. Spencer's defense, some of the work was farmed out to subcontractors, and they were paid in full. He then testified that he was planning on continuing the work but that he was waiting on a roofer. While he was waiting for the roofer, he testified that there was some dispute between himself and Mr. Ross regarding a ring he had received from Mr. Ross. He testified that the ring fell apart and that the dispute ended their working relationship. But for "$8200 - Ring" being handwritten on the Proposal alongside the other payments made by Mr. Ross, no mention of this ring was made by the Petitioner. Presumably, this ring was given as in-kind payment to Mr. Spencer, but without anything more to go on, the insufficiency of the relevant evidence precludes any recognition of the ring as payment. Therefore, the three previously described checks, furnished by Mr. Ross and made payable to Mr. Spencer or KCLS, are found to represent the entirety of the consideration furnished. To refresh, these checks are dated October 25, 2004; November 23, 2004; and December 23, 2004, and amount to $9,752.57; $12,268.04; and $8,475.24, respectively. In sum, they total $30,495.85. Mr. Spencer also testified about the installation of French doors at Mr. Ross' store. Mr. Ross earlier testified that he had refused delivery of two French doors, when a subcontractor arrived to install them, because they were not the style, size or number he desired. He further testified that Mr. Spencer was aware that he desired six doors with plastic slats (not two as listed in the Proposal), because he had directed Mr. Spencer to examine the doors of a nearby storefront, whose style he wished to replicate. Mr. Spencer was questioned about these doors by opposing counsel. Opposing counsel asked, "Were the French doors ever installed into the building?" Mr. Spencer responded, "Not that I know of, by Bill, no." Several questions later, opposing counsel asked, "Okay. My point is, the doors were never installed in the project; is that your understanding?" Mr. Spencer responded, "My understanding from Bill was that, yes, they were installed." On this issue, Mr. Spencer could only speculate, because he never returned to the job site to check whether the doors had been installed. Mr. Spencer's testimony on this topic is not credible. Despite never being installed, Mr. Ross paid a $4,700.00 deposit for the French doors that was never refunded. When asked why this money was never refunded to Mr. Ross, Mr. Spencer goes on to testify that he trusted the subcontractor delivering the doors, that he assumed they were delivered, and that that's why he never attempted to receive a refund of the doors' cost from the subcontractor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Respondent violated Subsections 489.129(1)(g)2., 489.129(1)(j), 489.129(1)(m), and 489.129(1)(o), Florida Statutes; finding that Respondent did not violate Subsection 489.129(1)(g)3., Florida Statutes; imposing an administrative fine of $1,500.00 for the violation of Subsection 489.129(1)(g)2., Florida Statutes; imposing an administrative fine of $2,000.00 for the violation of Subsection 489.129(1)(j), Florida Statutes; imposing an administrative fine of $1,000.00 for the violation of Subsection 489.129(1)(m), Florida Statutes; imposing an administrative fine of $1,500.00 for the violation of Subsection 489.129(1)(o), Florida Statutes; requiring Respondent to make restitution to Mr. Ross in the amount of $26,710.85; placing Respondent on probation for a period of three years; and requiring Mr. Spencer to attend a minimum of seven additional hours of continuing education classes. DONE AND ENTERED this 18th day of April, 2008, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of April, 2008.
