Findings Of Fact William W. Carlton, Respondent, is licensed in Florida as a building contractor, holds license No. CB CO 10455, and was so licensed at all times here relevant (Exhibit 1) In February, 1980, Hays and Sons Construction Company (Hays) entered into a contract with Ken and Ethel Moore to construct a metal building to serve as a filling station and car repair facility in Spring Hill. Hays is not licensed as a building contractor in Florida and Respondent held no office in Hays, had no authority to make management decisions on behalf of Hays, contract on behalf of Hays, or hire subcontractors for Hays. The building permit for the construction of the Spring Hill filling station was pulled by Respondent and listed Respondent as builder (Exhibit 9). Respondent did interior woodwork in the building, room layouts, etc., while Hays hired all of his subcontractors and did the overall supervision of the work. Respondent testified that he visited the site frequently, usually after working hours, to see that the project was progressing properly. Dan Hays, principal in Hays and Sons Construction Company, is a capable builder of metal buildings and, although not licensed in Florida, has erected such buildings at numerous places in the United States. Hays hired and paid the subcontractors on this project. By letter dated November 11, 1980, Moore filed a complaint with the Hernando County Building Department alleging that his building had not `been completed according to plans and specifications, some subcontractors had not been paid, that Hays was not licensed and the permit was pulled by Carlson, and that Carlson denies responsibility for the completion of the work. A hearing was scheduled by the Construction Board of Examiners on this complaint and Respondent was notified of the time and place of hearing and advised to be present. Before the scheduled date of the hearing, the issues raised in the complaint had been settled and the complaint withdrawn by the complainant. Respondent called the Building Department respecting the necessity of him attending the scheduled hearing and was advised the complaint had been withdrawn and that he need not attend. At the scheduled hearing, the Board expected Respondent to give an explanation and, when Respondent did not show, the Board suspended his privilege of pulling permits until he appeared before the Board at its next scheduled meeting. Respondent appeared at the next scheduled meeting of the Board and his permit pulling authority was reinstated. On April 29, 1981, Hays entered into a contract to construct a steel building for Harold and Evelyn Walkowz in New Port Richey, Florida, at a price of $119,000. The building permit for this job was pulled July 28, 1981, by William Carlson as contractor (Exhibit 10). After construction commenced, the contract was assigned to Respondent (Exhibit 12) Walkowz initially made payments in accordance with the draw schedule but as the contract progressed disputes between the owner and the builder developed and payments were not made on schedule. Walkowz' brother-in-law, John Smith, put up most of the money for the building and arrived on the scene when the project was about half finished. His arrival coincided with the disputes regarding the work being done, with the subcontractors and with the Respondent. Several of the subcontractors' due payment were not paid by Respondent because the payment due from the owners was not received by Respondent. Some of these subcontractors left the job, other threatened to leave and were assured by the owners that they would be paid, while another group of subcontractors were paid by the owners to keep them from leaving. Prior to paying these three subcontractors (Exhibit 15) , Walkowz' attorney prepared Exhibit 13, which Respondent signed in order to get these subcontractors paid. After Walkowz had paid some $93,000 to Respondent (and Hays), further payments were stopped. At this time, sub- contractors were owed approximately $16,000 and the building was not completed. Respondent offered to complete the building if the balance of the contract price owed was placed in escrow (Exhibit 20). Walkowz refused to place the money in escrow, did not pay the subcontractors he had promised would be paid, used the funds still owed on the contract to complete the building, charged Respondent with wrongfully appropriating his money, and complained to the building department. Criminal charges of grand theft were brought against Respondent. At a hearing on these charges, Respondent pleaded nolo contendere, adjudication was withheld, and Respondent was placed on probation for five years. After a hearing on restitution, the court directed no restitution be paid by Respondent to Walkowz. Respondent maintained only one operating account into which he intermingled funds received on building contracts concurrently in progress. No evidence was submitted that Respondent diverted funds received from Walkowz to any other specific project. Testimony of one witness that Respondent said he diverted funds received from Walkowz to other projects was denied by Respondent. Further, no evidence was presented that because of the diversion of funds Respondent was unable to complete the Walkowz project. In installing the main air conditioner, the unit was located at a place slightly different than shown on the approved plan. Similarly, a wall was moved a few inches to cover an error made in the installation of plumbing lines. These changes were made with the knowledge and consent of the owner and while inspections of the work were being conducted by officials of the Pasco County Building Department. The contract provided for laying 1,350 cubic yards of black top one inch thick over a four-inch limerock base. Building codes and zoning requirements would not authorize the paving of an area this size on the property and, to comply with the code prescribed allowable impervious area requirements, less black top was used. Similarly, the contract provided for the slab on which the building was erected to be 3,000 psi. concrete. The concrete was routinely tested, with the results received after the building was erected. The test showed the concrete to be 2,500 psi. strength. This information was made known to the owner and, in lieu of tearing down the building and repouring the slab, allowances were made for other changes in the contract requested by the owner For a short period of time a company called Carobu appeared on a sign in front of the Walkowz construction site. This was the trio comprised of Carlton, Roth and Burns, who intended to contract under that name, with Carlson as qualifying officer. The company was never incorporated nor did it ever contract to do any construction work.
The Issue The issues are whether Respondent, as the qualifier of Thomson Homes, Inc., is guilty of financial mismanagement or misconduct in the practice of contracting, in violation of Section 489.129(1)(g)1, Florida Statutes; abandoning a construction project in which the contractor was engaged or under contract as a contractor, in violation of Section 489.129(1)(j), Florida Statutes; failing to satisfy within a reasonable time a civil judgment obtained against the licensee or business organization qualified by the licensee and relating to the practice of construction, in violation of Section 489.129(1)(q), Florida Statutes; and failing to comply with a provision of Chapter 489, Part I, Florida Statutes, by failing to include the contractor's certificate number on each contract used by him or his business organization, in violation of Sections 489.119(6)(b) and 489.129(1)(i), Florida Statutes. If Respondent is guilty of any of these violations, an additional issue is the penalty that should be imposed.
Findings Of Fact At all material times, Respondent has been a certified residential contractor, holding certificate number CR C013599. From April 26, 1999, through August 30, 1999, Respondent was the qualifying agent of Thomson Homes, Inc. All contracts described below involved contracting work to be performed in Palm Beach County, Florida. Previously, Steven Thomson, who is a general contractor, had been the qualifying agent of Thomson Homes, Inc. Mr. Thomson and his then-wife, Lori Thomson operated Thomson Homes, Inc., as a homebuilding business in the Palm Beach County area. At no time material to this case has Ms. Thomson been certified or registered as a residential, building, or general contractor, except from March 22, 1999, through April 30, 1999, when she held a temporary nonrenewal certificate as a general contractor. This certificate authorized Thomson Homes, Inc., to continue or complete contracting work already in progress. In 1998, Mr. Thomson filed for divorce from Ms. Thomson. During the divorce proceedings, Mr. Thomson learned that Ms. Thomson was the sole shareholder of Thomson Homes, Inc., which Mr. Thomson had previously believed was equally owned by him and his wife. In early March 1999, Ms. Thomson fired Mr. Thomson, who then resigned a couple of weeks later as qualifying agent of Thomson Homes, Inc. Respondent learned from an independent mortgage broker that Thomson Homes, Inc., was seeking a qualifying agent. The mortgage broker, who made all of the retail loans for Thomson Homes, Inc., never told Respondent anything negative about the company, probably because he was unaware of any problems. Respondent had heard of Thomson Homes, Inc., through its television and newspaper advertisements. When Respondent visited the office of Thomson Homes, Inc., to discuss the position with Ms. Thomson, he found a salesman and a secretary/receptionist working in the office. Nothing in the appearance or operation of the office suggested that Thomson Homes, Inc., was anything other than a typical homebuilding business. Ms. Thomson explained that her business needed a qualifying agent because her husband had previously been the qualifying agent, but they were in the process of obtaining a divorce. Respondent initially obtained a certificate as a residential contractor in 1978. Neither Petitioner nor any local jurisdiction has ever disciplined Respondent or any contracting business that he has qualified. For 20 years, Respondent was in the business of affordable residential construction. He managed subcontractors, paid subcontractors and suppliers, and performed other duties of a residential contractor. For the most part, Respondent worked as an individual, not as an employee of a homebuilding business. At one point, Respondent formed a corporation with another individual, but, unsatisfied with his partner's high-volume approach to homebuilding, Respondent terminated that relationship and resumed building homes individually. In April 1999, Respondent signed the paperwork to enable him to qualify Thomson Homes, Inc. After doing so, on April 27, 1999, Respondent signed and delivered to the Town of Jupiter Building Department a form authorizing Thomson Homes, Inc., to obtain building permits. Based on the representations of Ms. Thomson during their negotiations, Respondent believed that Thomson Homes, Inc., did not have any active contracting jobs. He was unaware that Ms. Thomson had ever held a temporary certificate. Until early August 1999, Respondent never knew that, using Ms. Thomson's temporary certificate and later Respondent's certificate, Thomson Homes, Inc., was engaged in the contracting business at all times between the withdrawal of Mr. Thomson's certificate and the withdrawal of Respondent's certificate. Although most of the company's jobs and office were in the same subdivision, the size of the subdivision made it unlikely that Respondent would discover a Thomson Homes, Inc., job site by chance. Respondent and Ms. Thomson agreed that Respondent would receive four percent of the contract price for pulling each permit, $1000 per week, and 35 percent of the profit on each job. In return, Respondent would supervise construction, manage subcontractors, perform estimates of construction costs, and preapprove all contracts. Ms. Thomson would manage the office and sales staff, handle the banking, and pay the bills. Ignorant of the legal obligations imposed upon a qualifying agent, especially where, as here, the contracting business had no financially responsible officer, Respondent intended to allow Ms. Thomson to handle, without supervision, all of the financial responsibilities of Thomson Homes, Inc. Respondent admitted that he intended to limit his responsibilities to field work and not involve himself with the company's financial matters or office operations. Respondent also admitted that he deemed himself unqualified to handle the financial responsibilities of the company. During their negotiations, Ms. Thomson told Respondent that his job with Thomson Homes, Inc., would not start until the company resumed construction. She explained to him that there would be a delay as she reestablished the necessary financing. Unconcerned by this fact and wanting to finish up some other work, Respondent agreed to wait until he heard from Ms. Thomson before starting work for Thomson Homes, Inc. Respondent understood that the company might reasonably need several months to reestablish financing. Ms. Thomson never summoned Respondent to work. Thomson Homes, Inc., never paid Respondent any compensation whatsoever. After some time had passed without hearing from Ms. Thomson, Respondent began to call her to determine when he would begin work for Thomson Homes, Inc. At first, he had Ms. Thomson's cell number, so he would talk to her, and she would repeatedly tell him that the financing was not yet in place. Eventually, Ms. Thomson changed her cell number and did not give it to him. However, Respondent called the office and spoke with the secretary/receptionist and salesman, both of whom assured Respondent that everything was "okay." On August 27, 1999, Respondent visited the office of Thomson Homes, Inc., trying to find Ms. Thomson in the office. However, he found no one present, and the office was locked. On August 30, 1999, Respondent mailed his letter to Petitioner resigning as the qualifying agent of Thomson Homes, Inc. On June 24, 1998, Thomson Homes, Inc., entered into a contract with Reginald and Katherine Shepherd to construct a home for $146,350 and sell a lot for $25,500. The contract requires the work to commence within ten days after the issuance of the building permit and funding of the construction loan and substantial completion within 150 days from the date of the slab pour. The loan closed on the Shepherds' home on November 17, 1998. The closing statement identifies the lot as Lot 1, Block 23, North Palm Beach Gardens. At the loan closing, Thomson Homes, Inc., received from the closing agent $13,457.20 plus $225 for a survey. Eight days after the loan closing, Thomson Homes, Inc., applied to the Palm Beach County Building Department for a building permit. The Building Department issued the permit on February 4, 1999, but Mr. Thomson, who had been the qualifying agent under whose certificate the permit had been issued, canceled the permit on February 23, 1999. Pursuant to the contract, Thomson Homes, Inc., was obligated to commence construction by February 14, 1999, but failed to do so. Instead, Thomson Homes, Inc., commenced construction sometime in early April 1999, after Ms. Thomson used her temporary certificate to reinstate the building permit. The initial work was poor, as the building sewer and underground plumbing failed inspections on April 23, 1999. However, three days later, they passed inspections. On April 30, 1999, the slab failed two inspections before passing on May 10. On May 10, 1999, the beam failed an inspection. This was the last work that Thomson Homes, Inc., ever performed on the Shepherds' residence. On May 14, 1999, the construction lender issued a check in the amount of $24,880 jointly to Mr. Shepherd and Thomson Homes, Inc. Mr. Shepherd endorsed the check, and Thomson Homes, Inc., deposited it to its credit. By this point, Thomson Homes, Inc., had received $38,562.20 and had completed the work described in the preceding paragraph, as well as additional carpentry work. On August 2, 1999, the Shepherds spoke with Ms. Thomson on the telephone. The parties disagreed over whether Thomson Homes, Inc., had done sufficient work to earn another draw. Two days later, the Shepherds tried to send a fax to Thomson Homes, Inc., during regular business hours, but the company's fax machine was not working. The next day, August 5, during normal business hours, Mr. Shepherd visited the office of Thomson Homes, Inc., but found the office closed with a sign on the door indicating the company had ceased doing business. By letter dated August 4, 1999, the Shepherds advised Thomson Homes, Inc., that it was in breach of contract and terminated their relationship with the company. The Shepherds sent a copy of this letter to Respondent's local address. A few days later, Respondent's wife called the Shepherds and asked them why they had sent a copy of this letter to her husband. Respondent testified that his wife never told him about the letter, but this testimony is not credited. However, the August 4 letter and ensuing, brief telephone call a few days later are the only contacts that the Shepherds had with Respondent, and these contacts were with Respondent's wife. On August 11, 1999, Wallace Surveying Corporation filed a Claim of Lien against Lot 1, Block 23, North Palm Beach Heights, for $150 for surveying that took place from April 30, 1999, through May 11, 1999. Thomson Homes, Inc., never paid this claim. The Shepherds paid this claim, and Wallace Surveying Corporation signed and delivered a Satisfaction of Lien on November 22, 1999. Thomson Homes, Inc., had received more than enough money to pay for the liened services. On October 6, 1999, the Shepherds filed a complaint in circuit court against Thomson Homes, Inc. On November 14, 2000, the court entered a Final Summary Judgment Against Defendant, Thomson Homes, Inc., in the total amount of $45,914.48. Among the findings in the judgment are that Thomson Homes, Inc., breached its contract by accepting money and abandoning the project and failing to pay subcontractors and suppliers, such that construction liens attached to the property. The judgment was never satisfied. In February or March 1999, Thomson Homes, Inc., entered into an undated contract with Dale and Joanne Dively to construct a home for $199,725. For an unknown reason, at the request of Ms. Thomson, the Divelys initialed each page of the contract on June 16, 1999. The contract does not bear Respondent's certificate number. The contract requires the work to commence within ten days after the issuance of the building permit and funding of the construction loan and substantial completion within 150 days from the date of the slab pour. The loan closed on the Divelys' home on June 16, 1999. The closing statement identifies the lot as Lot 583, Egret Landing at Jupiter. At the loan closing, Thomson Homes, Inc., received from the closing agent $16,767.20. The Divelys had previously paid Thomson Homes, Inc., $2000 on January 28, 1999, to prepare construction plans. Thomson Homes, Inc., never applied for a building permit. Except for ordering a survey, Thomson Homes, Inc., never commenced any construction. On August 6, 1999, the construction lender informed the Divelys that Thomson Homes, Inc., had ceased doing business. The Divelys immediately telephoned Thomson Homes, Inc., but learned that the telephone had been disconnected. By this point, Thomson Homes, Inc., had received $18,767.20 and performed no work whatsoever, except to order a survey. When Thomson Homes, Inc., abandoned the job, it had received money far in excess of the value of the work that had been done. On August 17, 1999, Wallace Surveying Corporation filed a Claim of Lien against Lot 583, Egret Landing at Jupiter, for $107.50 for surveying that took place from June 30, 1999, through July 2, 1999. Thomson Homes, Inc., never paid this claim. The Divelys paid this claim, and Wallace Surveying Corporation signed and delivered a Waiver of Lien on February 9, 2000. Thomson Homes, Inc., had received more than enough money to pay for the liened services. On October 6, 1999, the Divelys filed a complaint in circuit court against Thomson Homes, Inc. On August 2, 2000, the court entered a Final Summary Judgment Against Defendant, Thomson Homes, Inc., in the total amount of $28,893.75. Among the findings in the judgment are that Thomson Homes, Inc., breached its contract by accepting money and abandoning the project and failing to pay subcontractors and suppliers, such that construction liens attached to the property. The judgment was never satisfied. On October 31, 1998, Thomson Homes, Inc., entered into a contract with Keith and Karen Deyo to construct a home for $123,400 and sell a lot for $25,500. The contract requires the work to commence within ten days after the issuance of a building permit and funding of the construction loan and substantial completion within 120 days from the date of the slab pour. The loan closed on the Deyos' home on December 23, 1998. The closing statement identifies the lot as Lot 13, Block 33, North Palm Beach Heights. At the loan closing, Thomson Homes, Inc., received from the closing agent $5500.70 plus $225 for a survey. The Deyos had previously paid Thomson Homes, Inc., $6445 by check dated November 10, 1998. Petitioner Exhibit 39 purports to represent the building permit for the Deyos' home. However, the only document in the package identifying the Deyos' lot is the Notice of Commencement, which the Deyos signed on December 23, 1998. The original application appears to have been signed by Mr. Thomson on November 25, 1998, which would be after the contract, but before the loan closing; this is inconsistent with the typical practice of Thomson Homes, Inc., to apply for the building permit after--usually long after--the loan closing. Another page of Petitioner Exhibit 39 states that Respondent is the "builder," but is signed by Ms. Thomson as "contractor/owner builder." The only clear documentary evidence of permit activity is Petitioner Exhibit 7, which is Mr. Thomson's letter of February 22, 1999, to the Deyos advising them that he "will be withdrawing his general contractor's license" from their job. However, the permit package does not contain a copy of this letter, so it is impossible to determine if Mr. Thomson followed through on his warning. Notwithstanding, the confused state of the purported building permit, Mr. Deyo testified convincingly that Thomson Homes, Inc., started construction in January 1999 and ended construction in July 1999, even though the job was not complete. Mr. Deyo always cooperated with Thomson Homes, Inc., regarding all draw requests. The construction lender issued checks, jointly to Mr. Deyo and Thomson Homes, Inc., on April 13, 1999, May 10, 1999, and July 15, 1999, respectively, for $33,873, $12,772, and $15,549. Mr. Deyo endorsed the checks, and Thomson Homes, Inc., deposited them to its credit. In early August 1999, the Deyos found that the office of Thomson Homes, Inc., was closed, and the business had ceased operations. Unlike the other customers of Thomson Homes, Inc., Mr. Deyo met Respondent one time at the office while Mr. Deyo was loudly complaining about the lack of progress in constructing his residence. Ms. Thomson introduced the two men, who spoke briefly. The record is unclear whether Respondent heard Mr. Deyo's loud complaints, which he had voiced prior to the two men's conversation, or whether Mr. Deyo restated his complaints directly to Respondent. Numerous subcontractors and suppliers filed liens against the Deyos' property. On July 21, 1999, Maschmeyer Concrete Company filed a Claim of Lien against Lot 13, a/k/a 6359 Dania Street, for $2827.31 for services and materials supplied from April 7, 1999, through April 30, 1999. On August 11, 1999, Coastal Plumbing, Inc., filed a Claim of Lien against Lot 33, Block 13, North Palm Beach Heights, for $2765 for services and materials supplied from March 25, 1999, through May 24, 1999. On August 19, 1999, Griffin & Wilson Stucco, Inc., filed a Claim of Lien against Lot 13, Block 33, North Palm Beach Heights, for $3500 for services and materials supplied from July 12, 1999, through July 23, 1999. On September 10, 1999, L&W Supply Corp. filed a Claim of Lien against Lot 13, Block 33, North Palm Beach Heights, for $810.53 for services and materials supplied on July 11 and 12, 1999. On September 29, 1999, Gale Industries, Inc., filed a Claim of Lien against Lot 13, Block 33, North Palm Beach Heights, for $300 for services and materials supplied on July 6, 1999. On October 18, 1999, Mystic Electric, Inc., filed a Claim of Lien against Lot 13, Block 33, North Palm Beach Heights, for $4580 for services and materials supplied from July 2, 1999, through July 20, 1999. Thomson Homes, Inc., never paid any of the claims in the preceding paragraph. The Deyos paid over $27,000 to satisfy these and other liens filed against their property as a result of Thomson Homes, Inc., not paying suppliers of services or materials. In their releases or satisfactions of lien, five of the six lienholders recited the money received from the Deyos, and these sums totaled $8777.31. Thomson Homes, Inc., had received more than enough money to pay for the liened services and materials. On October 6, 1999, the Deyos filed a complaint in circuit court against Thomson Homes, Inc. On March 15, 2000, the court entered a Final Summary Judgment Against Defendant, Thomson Homes, Inc., in the total amount of $55,458.64. Among the findings of the judgment are that Thomson Homes, Inc., breached its contract by accepting money and abandoning the project and failing to pay subcontractors and suppliers, such that construction liens attached to the property. The judgment was never satisfied. On November 28, 1998, Thomson Homes, Inc., entered into a contract with Tina Centofanti to construct a home for $114,400 and sell a lot for $27,500. The contract identifies the lot as Lot 8, Block 26, North Palm Beach Heights. The contract requires the work to commence within ten days after the issuance of the building permit and funding of the construction loan and substantial completion within 150 days from the date of the slab pour. The loan closed on Ms. Centofanti's home on February 12, 1999. At the loan closing, Thomson Homes, Inc., received $225 for a survey. Ms. Centofanti had previously paid Thomson Homes, Inc., $1000 and $4000, respectively, by checks dated November 28, 1998, and January 11, 1999. On April 27, 1999, Thomson Homes, Inc., using Ms. Thomson's temporary certificate, applied to the Town of Jupiter Building Department for a building permit. On the same date, Thomson Homes, Inc., submitted to the Building Department an Agent Authorization signed by Respondent and authorizing the Building Department to issue building permits in the name of Thomson Homes, Inc. The Building Department issued the building permit on May 11, 1999, but canceled the permit on August 16, 1999, after Thomson Homes, Inc., ceased doing business. On March 3, March 8, April 21, May 26, and June 8, 1999, Ms. Centofanti sent letters to Ms. Thomson at Thomson Homes, Inc., inquiring and later complaining about the lack of activity on her home. The June 8 letter asks why Ms. Thomson had not picked up the building permit, which had been issued a month earlier. On June 14, 1999, Ms. Centofanti addressed a letter to Respondent at Thomson Homes, Inc. The letter, which was sent return receipt requested, asks Respondent to explain the inactivity, but Respondent never picked up the letter at the post office, presumably because he was unaware of its existence. By letter dated August 11, 1999, to Ms. Thomson, with a copy to Respondent, both addressed to Thomson Homes, Inc., Ms. Centofanti fired Thomson Homes, Inc. Again, Respondent was presumably unaware of this letter. Except for obtaining a survey, Thomson Homes, Inc., performed no work on the job. On August 11, 1999, Wallace Surveying Corporation filed a Claim of Lien against Lot 8, Block 26, North Palm Beach Heights, for $150 for surveying that took place from May 19, 1999, through May 25, 1999. Thomson Homes, Inc., never paid this claim. Ms. Centofanti paid this claim, and Wallace Surveying Corporation signed and delivered a Waiver of Lien on September 27, 1999. Thomson Homes, Inc., had received more than enough money to pay for these liened services. On August 27, 1999, Ms. Centofanti filed a statement of claim in county court against Thomson Homes, Inc., and Ms. Thomson. On October 4, 1999, the court entered a Default and Final Judgment against both defendants in the total amount of $5220. The judgment lacks any findings, but the statement of claim alleges that Thomson Homes, Inc., breached its contract by accepting money and not performing the contract and failing to pay a subcontractor, such that a construction lien attached to the property. Because Ms. Centofanti obtained a judgment lien against other property of Ms. Thomson, Ms. Centofanti was able to sell her judgment on June 18, 2002, for $4000. On September 12, 1998, Thomson Homes, Inc., entered into a contract with James and Donna Barr to construct a home for $140,900 and sell a lot for $30,000. The contract requires the work to commence within ten days after the issuance of the building permit and funding of the construction loan and substantial completion within 120 days from the date of the slab pour. The loan closed on the Barrs' home on December 31, 1998. The closing statement identifies the lot as Lot 6, Block 47, North Palm Beach Heights. At the loan closing, Thomson Homes, Inc., received from the closing agent $8159.50 plus $225 for the survey. The Barrs had previously paid Thomson Homes, Inc., $500 and $2000, respectively, by checks dated September 30, 1998, and November 19, 1998. After the closing, the construction lender issued checks dated May 17, 1999, and July 31, 1999, respectively, in the amounts of $34,239 and $8876 to the Barrs and Thomson Homes, Inc. The Barrs endorsed the checks, and Thomson Homes, Inc., deposited them to its credit. On April 27, 1999, Thomson Homes, Inc., using Ms. Thomson's temporary certificate, applied to the Town of Jupiter Building Department for a building permit. On the same date, Thomson Homes, Inc., submitted to the Building Department an Agent Authorization signed by Respondent and authorizing the Building Department to issue building permits in the name of Thomson Homes, Inc. The Building Department issued the building permit on May 25, 1999. Thomson Homes, Inc., commenced work on the home in May 1999. However, after performing little other work, Thomson Homes, Inc., ceased work on the home on June 14, 1999, after the slab pour. On August 11, 1999, Wallace Surveying Corporation filed a Claim of Lien against Lot 6, Block 47, North Palm Beach Heights, for $300 for surveying that took place from May 10, 1999, through June 3, 1999. On August 31, 1999, Albrecht Masonry filed a Claim of Lien against Lot 6, Block 47, North Palm Beach Heights, for $5600 for masonry services and materials. Thomson Homes, Inc., never paid these claims. Unlike the other customers of Thomson Homes, Inc., the Barrs negotiated an agreement with Albrecht Masonry in which it obtained releases of the liens in return for which the Barrs conveyed to it the real property. Due to this arrangement, the Barrs' out-of-pocket losses were limited to $8500. Thomson Homes, Inc., had received more than enough money to pay for the liened services and materials. On October 6, 1999, the Barrs filed a complaint in circuit court against Thomson Homes, Inc. On May 8, 2000, the court entered a Final Summary Judgment Against Defendant, Thomson Homes, Inc., in the total amount of $45,435.62. Among the findings in the judgment are that Thomson Homes, Inc., breached its contract by accepting money and abandoning the project and failing to pay subcontractors and suppliers, such that construction liens attached to the property. The judgment was never satisfied. On September 9, 1998, Thomson Homes, Inc., entered into a contract with Sandra Harvey to construct a home for $115,260 and sell a lot for $25,500. The contract identifies the lot as Lot 5A, Block 42, North Palm Beach Heights. The contract requires the work to commence within ten days after the issuance of the building permit and funding of the construction loan and substantial completion within 120 days of the slab pour. The loan closed on Ms. Harvey's home on December 8, 1998. At the loan closing, Thomson Homes, Inc., received from the closing agent $2506.80 plus $225 for the survey. Prior to the closing, Ms. Harvey paid Thomson Homes, Inc., $7060 by check dated November 25, 1998. After the closing, the construction lender issued checks dated April 21, 1999, and May 26, 1999, respectively, in the amounts of $28,010 and $11,411 to Ms. Harvey and Thomson Homes, Inc. Ms. Harvey endorsed the checks, and Thomson Homes, Inc., deposited them to its credit. On November 25, 1998, Thomson Homes, Inc., using Mr. Thomson's certificate, applied to the Palm Beach County Building Department for a building permit. The Building Department issued the building permit on January 15, 1999. Thomson Homes, Inc., commenced construction on the home in February 1999 and ceased work in June 1999 without finishing the job. At the time that Thomson Homes, Inc., abandoned the job, the Building Department inspector had passed the slab, beam/column, roof framing and sheathing, wall sheathing, framing anchors, and roof metal. Ms. Harvey spoke with Ms. Thomson repeatedly about the work on a regular basis, but, like the other customers, was unable to obtain a satisfactory explanation for why Thomson Homes, Inc., had ceased working on her home. Then, on August 11, 1999, Ms. Harvey found that Thomson Homes, Inc., had ceased doing business. On August 13, 1999, Orr Woodworks, Inc., filed a Claim of Lien against Lot 5A, Block 42, North Palm Beach Heights, for $3079.94 for services and materials supplied from May 14, 1999, through June 22, 1999. On September 1, 1999, J.W. Hodges Drywall filed a Claim of Lien against Lot 11, Block 33, North Palm Beach Heights, for $3000 for services and material supplied from May 28, 1999, through June 3, 1999. On October 18, 1999, Mystic Electric, Inc., filed a Claim of Lien against Lot 5A, Block 42, North Palm Beach Heights, for $3000 for services and materials supplied from July 2, 1999, through July 20, 1999. Thomson Homes, Inc., never paid these claims, but, for various reasons, Ms. Harvey was never required to pay them either, although the record is unclear whether all of them were released, waived, or satisfied. Thomson Homes, Inc., had received more than enough money to pay for the liened services and materials. On October 6, 1999, Ms. Harvey filed a complaint in circuit court against Thomson Homes, Inc. On March 30, 2001, the court entered a Default Final Summary Judgment Against Defendant, Thomson Homes, Inc., in the total amount of $46,267.32. Among the findings in the judgment are that Thomson Homes, Inc., breached its contract by accepting money and abandoning the project and failing to pay subcontractors and suppliers. The judgment was never satisfied. On July 13, 1999, Thomson Homes, Inc., entered into a contract with Kathleen and Richard Beltz to construct a home for $140,500 and sell a lot for $35,500. The contract identifies the lot as Lot 8, Block 47, North Palm Beach Heights. The contract does not bear Respondent's certificate number. The contract requires work to be commenced within ten days after the issuance of the building permit and funding of the construction loan and substantial completion within 120 days from the date of the slab pour. The parties agreed upon a loan closing date of August 10, 1999, but the closing did not take place as scheduled because no one from Thomson Homes, Inc., appeared at the closing. Prior to the date scheduled for the loan closing, the Beltzes paid Thomson Homes, Inc., $12,283.70 by check dated April 22, 1999. Thomson Homes, Inc., never commenced construction or provided any services in return for the money that it had received from the Beltzes. On February 4, 2002, the Beltzes filed a complaint in circuit court against Thomson Homes, Inc. On May 22, 2002, the court entered a Default Final Summary Judgment Against Defendant, Thomson Homes, Inc., in the total amount of $23,280.28. Among the findings in the judgment are that Thomson Homes, Inc., breached its contract by accepting money and abandoning the project and failing to pay subcontractors and suppliers, such that construction liens attached to the property. In fact, no party supplied any services or materials to the home under the direction of Thomson Homes, Inc., and no construction liens attached to the property. The judgment was never satisfied.
Recommendation It is RECOMMENDED that the Construction Industry Licensing Board enter a final order dismissing the Amended Administrative Complaint against Respondent. DONE AND ENTERED this 12th day of July, 2004, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 2004. COPIES FURNISHED: Tim Vaccaro, Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Theodore R. Gay Assistant General Counsel Department of Business and Professional Regulation 8685 Northwest 53rd Terrace, Suite 100 Miami, Florida 33166 Bruce G. Kaleita Law Office of Bruce G. Kaleita, P.A. The Barristers Building 1615 Forum Place, Suite 500 West Palm Beach, Florida 33401
The Issue The issue in this case is whether the Petitioner, Manuel Enrique Blanco (Petitioner), is entitled to the contracting license sought.
Findings Of Fact The Petitioner filed an application for licensure as a general contractor that was considered by the Board on January 11-13, 2006. The Respondent denied the Petitioner’s application for several reasons. The first basis for the denial was the fact that the Respondent has been convicted or plead guilty (regardless of adjudication) to crimes. In fact, the Petitioner has a history of criminal activities, many of which involve contracting without a license. In 1993, the Petitioner entered a plea of guilty and was found guilty of two counts of grand theft and carrying a concealed firearm. In 1995, the Petitioner entered a plea of guilty to grand theft and contracting without a license. In 1997, the Petitioner was adjudicated guilty of grand theft related to five separate incidents (cases). Most of the criminal activities related to contracting without a license. Some of the cases cited “Affordable Remodeling Services, Inc.” as the Petitioner’s company or “doing business as.” In 2001, the Petitioner was again adjudicated guilty of grand theft and dealing in stolen property. As to the foregoing cases, the Petitioner did jail time, was required to make restitution (in some cases), and paid fines and fees associated with the convictions. The Petitioner maintains he has paid for his past criminal behavior and should be afforded a new start. The second basis for the denial of the Petitioner’s application was the fact that many of the convictions dealt with contracting without a license that involved injury to consumers. The Petitioner does not dispute this assertion but maintains that when ordered to do so, he has made restitution. The third basis for the denial of the Petitioner’s application was an assertion that the Petitioner lacks good moral character as required by Section 489.111(2)(b), Florida Statutes (2006). The Petitioner did not present evidence regarding his character but maintained he has performed all required of him in connection with his past criminal history. Finally, the last basis for the denial of the Petitioner’s application was a lack of experience to establish qualification for a general contractor’s license. The Petitioner believes the affidavits furnished in his behalf are sufficient in this regard. Paragraphs 3 through 10 of the Respondent’s Proposed Recommended Order accurately chronicle in more detail the Petitioner's criminal history.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a Final Order denying the Petitioner’s request for licensure. DONE AND ENTERED this 1st day of February, 2007, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 2007. COPIES FURNISHED: G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Diane L. Guillemette, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Manuel Enrique Blanco 523 Columbus Parkway Hollywood, Florida 33016
Findings Of Fact On or about October 29, 1987, the Petitioner, Frederic T. Forrer, filed an application for a home improvement salesman's license. On February 1, 1988, the Respondent, the Department of Banking and Finance, Division of Finance (Department), entered an Amended Order Denying Home Improvement Salesman's License. The denial is based on: (1) nolo contendere pleas to two charges of criminal misapplication of funds in violation of Section 713.34(3), Florida Statutes; (2) revocation of Forrer's general contractor's license by the Construction Industry Licensing Board; (3) Forrer's insolvency; and (4) probation violations. Forrer's difficulties started with two construction jobs Forrer performed as a general contractor-the Mazzocco job and the Elliot job. On the Mazzocco job, Forrer entered into an arrangement under which John Mazzocco, husband of the owner of the home being renovated, would do some of the work and sub out some of the work. A dispute arose as to who was responsible for paying for over $1,000 of materials and labor and subcontracts Mazzocco ordered. Forrer claimed they were beyond the terms of the contract. On the Elliot job, which called for putting a second floor on Elliot's duplex, Forrer claimed that faulty engineering plans were responsible for a $6000 cost overrun within his first week on the project. Later, with the project about 90 percent complete, a dispute arose about responsibility for that and other cost overruns which Forrer and Elliot could not resolve. Forrer did not finish the job, and Elliot had another contractor finish it. Elliot claimed Forrer owed him about $8,000. In early 1987, John Mazzocco and Elliot both filed criminal charges against Forrer for violating Section 713.34(3), Florida Statutes (1985), for misapplication of monies paid to him for purposes of the Mazzocco and Elliot jobs. Forrer retained legal counsel and was advised to plead nolo contendere. On March 27, 1987, Forrer pled nolo contendere to the charges and was sentenced to five years probation conditioned on, among other things, payment of $237.50 court costs, $100 costs of prosecution, $250 to the court improvement fund, and restitution in an unspecified amount. Forrer's attorney did not advise him of any consequences of a nolo contendere plea on his contractor's license (or any other state license for which he might later apply) and estimated that the restitution probably would approximate $6000, the approximate attorney's fees for going to trial. Forrer agreed with his probation officer to pay $500 per month on his debts until they were paid and went to give the probation officer a money order for $500 on April 27, 1987. By this meeting, Forrer's local contractor's registration had been revoked, and he was expecting his state license to be revoked, too. At the meeting, Forrer was told the restitution would be approximately $31,000 to Mazzocco and $8,000 to Elliot. Forrer did not pay the $500 and called his attorney to withdraw his plea and go to trial. On May 8, 1987, Forrer's probation officer filed charges that Forrer had violated probation by not paying the $500. At the end of May, 1987, the judge denied Forrer's request to withdraw his plea and scheduled a hearing to set the amount of restitution. The probation violation charge remained pending. By this time, Forrer had become dissatisfied with his attorney and applied to the court for appointment of a public defender. In connection with his application, Forrer filed an affidavit on June 16, 1987, swearing that he was insolvent. The court granted the application and set the restitution hearing for mid-July, 1987. Meanwhile, Forrer began working for a roofing contractor, earning enough money to meet his living expenses and make reasonable payments on his probation obligations. After the July hearing, the judge set the restitution at approximately $39,000--$31,000 on the Mazzocco charge and $8,000 on the Elliot charge. A few days later, on July 17, 1987, Forrer went to his probation officer, who demanded an initial payment of $2711, apparently including payments due retroactively from April. Forrer denied ability to make the payment, and the probation officer told Forrer that he would file something to get the matter resolved-- namely, another probation violation charge. The probation violation charge was not heard until November, 1987. During this time, Forrer only made one $20 payment towards the cost of prosecution obligation and one $20 payment towards the court improvement fund obligation. At the hearing, the judge set monthly payments at $160 on the restitution to Mazzocco, $40 on the restitution to Elliot and $73 a month on the other items, for a total of $273 per month, which Forrer has been paying. In December, 1987, the Construction Industry Licensing Board revoked Forrer's license as a general contractor based on the convictions in the Mazzocco and Elliot matters and for diversion of funds received for a construction job, causing inability to fulfill contractual obligations, for failing to pay all subcontractors and suppliers, and for failing to properly supervise the projects. Forrer did not contest the charges, believing that it would be futile for him to do so. When Forrer lost his license, he also lost his job with the roofing company. He began to work in December, 1987, selling encyclopedias but quit because he was not making enough money to pay his living expenses and probation obligations. (He also supports a 16 year old son who Forrer says is hoping to go to college in a few years.) Forrer has lost his condominium (by foreclosure), the car he previously owned, his business and his wife. He remains insolvent and believes he is being denied the ability to earn a living. He says the roofing company for which he worked from June to December, 1987, would hire him back if he is granted the pending license application. Forrer still is on probation.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Department of Banking and Finance, Division of Finance, enter a final order denying the application of the Petitioner, Frederic T. Forrer, for a home improvement salesman's license. RECOMMENDED this 20th day of June, 1988 , in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 20th day of June, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1150 To comply with Section 120.59(2), Florida Statutes (1987), the following explicit rulings are made on the Respondent's proposed findings of fact: 1.-2. Accepted and incorporated. 3. Subordinate and unnecessary. 4.-6. Accepted and incorporated. COPIES FURNISHED: Frederic T. Forrer Post Office Box 24663 Tampa, Florida 33623 Stephen M. Christian, Esquire Office of the Comptroller 1313 North Tampa Street Suite 713 Tampa, Florida 33602-3394 Honorable Gerald Lewis Comptroller Department of Banking and Finance The Capitol Tallahassee, Florida 32399-0350 Charles L. Stutts, Esquire General Counsel Plaza Level, The Capitol Tallahassee, Florida 32399-0350
The Issue The issues presented are as follow: Did the Respondent allow his registration to be used by an unlicensed and unregistered person to evade the provisions of Chapter 489, Florida Statutes? Did the Respondent combine and conspire to allow his registration to be used by an unlicensed or unregistered person to evade the provisions of Chapter 489, Florida Statutes? Did the Respondent engage in contracting in a name other than set forth on his certificate? Did the Respondent engage in contracting in a name of a business entity without first qualifying that business entity with the Construction Industry Licensing Board? The parties submitted post hearing findings of fact in the form of a proposed recommended order and correspondence. To the extent that the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.
Findings Of Fact The Respondent, Damian C. Davis, is a certified general contractor holding license number CG C007059 issued by the Construction Industry Licensing Board through the Department of Professional Regulation. On or about August 29, 1980, the Respondent obtained building permit number B 45383 from the City of Tampa Building Department for construction to be performed by George Lacey at 910 East Osborne Street, Tampa, Florida, the residence of Martha Smith George Lacey was at that time uncertified and unregistered and was the contractor in fact on the work to be done for Martha Smith at 910 East Osborne Street in Tampa. The Respondent arranged for all building inspections by inspectors of the City of Tampa and was on the building site when said inspections were conducted. All work was approved by building inspectors of the City of Tampa, and there were no code problems. Subsequent to the completion of the work by Lacey, the owner had a problem with a leak over a sliding glass door which Lacey had contracted to repair. When this matter was brought to the Respondent's attention by officials of the Tampa Building Department, the Respondent fixed the leak to the owner's complete satisfaction. The building permit obtained by the Respondent was issued in the Respondent's name. All work the Respondent performed was done in the Respondent's name. The Respondent and Lacey frequently worked together in joint ventures; however, this was not such a project.
Recommendation Having found the Respondent, Damian C. Davis, guilty of one count (one offense) of violating Sections 489.129(1)(e) and (f), Florida Statutes, and considering the Respondent's prompt action to satisfy the owner, it is recommended that the Respondent be given a letter of reprimand and assessed a civil penalty of $500. DONE and RECOMMENDED this 28th day of July, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 28th day of July, 1983. COPIES FURNISHED: Stephanie A. Daniel, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Damian C Davis 1310 West Charter Street Tampa, Florida 33602 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 ================================================================= AMENDMENT TO AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, vs. CASE NO. 19791 DOAH CASE NO. 83-1230 DAMIAN C. DAVIS DAVIS & SEXTON, INC. 1302 West Sligh Avenue Tampa, Florida 33604, Respondent. / AMENDMENT TO FINAL ORDER The Final Order entered on September 22, 1983 in this cause incorrectly stated the fine imposed upon the Respondent. The correct amount is $250.00, to be paid within 30 days of this Order. DONE AND ORDERED in Jacksonville, Florida, this 30th day of November , 1983. FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD Henry Bachara, Chairman
