Findings Of Fact Robert O. Bartholomew is registered as a general contractor and as a residential contractor holding licenses No. RG0025081 and No. RR0035491. Be was so registered at all times here relevant. Neither Carl Robinson nor his company, Atlas Associates, Inc., is registered as a building contractor in Pasco County. Robinson, acting for Atlas Associates, Inc., entered into a contract with Betty Valdez to construct an addition to her mobile home in Lutz, Pasco County, Florida, and requested Respondent to pull the building permit as neither Robinson nor Atlas Associates, Inc., is registered in Pasco County. Respondent pulled the permit, as contractor, for the work to be done on Valdez' home although he was not a party to the contract. Both Robinson and Respondent testified they worked under a verbal arrangement as partners in several projects; however, Respondent has no ownership interest in Atlas Associates, Inc. The work was started by Robinson's foreman, Hubbard, but after a short period on the job Hubbard was fired and Respondent took over the construction. Disputes arose between Ms. Valdez and the contractor and the work was not completed by Atlas Associates, Inc. Part of the contract provided for a roof over the existing roof on the trailer. Pasco County requires this work, like electrical and plumbing, to be done by one licensed in that field. No licensed roofer was used and no permit to have such work done by a licensed roofer was pulled. Following unsatisfactory termination of the contract between Atlas and Valdez, liens were filed by Atlas Associates, Inc., and Respondent against Valdez' property and countersuits were instituted by Valdez before both sides agreed to drop their claims. Respondent's contention that Ms. Valdez' agreement to drop all claims in settlement of the dispute somehow precludes this action, is without merit. In a separate proceeding Robinson was disciplined by the Board for his violations of the Construction Industry Licensing Law in contracting with Ms. Valdez when not properly licensed to do so.
The Issue The issues are whether Respondent violated Section 489.227(1)(f), Florida Statutes, for the reasons stated in the Administrative Complaint, and, if so, what, if any, penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of contracting in the State of Florida. The Department of Business and Professional Regulation has jurisdiction over the unlicensed practice of contracting pursuant to Section 455.228, Florida Statutes. At no time material hereto was Respondent duly registered or certified to engage in the practice of contracting pursuant to Part I, Chapter 489, Florida Statutes. Augustine Weekley and Marilyn Weekley, the homeowners of a residence located at 2619 Bayshore Boulevard, Tampa, Florida, sought to remodel specific areas of their home. Initially, Mr. Weekley hired Wedgewood Contractors ("Wedgewood"), a licensed contractor, to perform the construction work. In the fall of 1999, Wedgewood obtained a building permit and commenced work on the Weekley project, but was eventually terminated by Mr. Weekley for unsatisfactory work. Mr. Weekley, a licensed contractor, then hired Respondent to take over the construction work. Mr. Weekley and Respondent entered into an oral contract whereby Respondent would complete work on the Weekley home and he would be paid as the work progressed. Between November 6, 1999 and June 16, 2000, Respondent sent invoices to the Weekleys totaling nearly $30,000 for labor and materials related to the construction work he performed, which amounts were paid in full by the Weekleys. The scope of the work performed by the Respondent as evidenced by the invoices, when considered as a whole, required either licensure or permitting. Admittedly, a building permit cannot be obtained by Respondent because he is not licensed. The building department records of the City of Tampa show that Respondent was never identified as the contractor of record for the Weekley project. The Weekleys became concerned when Respondent failed to deliver certain building materials that they had paid him to provide. On June 16, 2000, Respondent abandoned the Weekley project. Thereafter, Mr. Weekley hired another contractor to complete the work required for the project. Although Mr. Weekley is licensed as a general contractor, he did not determine whether Respondent was licensed. At no time did Respondent represent that he was a licensed contractor. The Department's investigative costs for this case total $350.62.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Section 489.227(1)(f), Florida Statutes, imposing an administrative fine in the amount of $1,000, and requiring Respondent to pay costs of the Department's investigation in the amount of $350.62. DONE AND ENTERED this 30th day of July, 2002, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 2002. COPIES FURNISHED: John R. Bishop 2212 Spyglass Hill Circle Valrico, Florida 33594 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Patrick L. Butler, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact At all times material hereto, the Respondent was licensed as a certified building contractor, having been issued license number CB C012964 by the State of Florida. At all times material hereto, the Respondent was licensed as an individual only. On or about April 14, 1982, Cedar Homes of Pinellas, Inc., entered into a contract with Mary Fedico to enclose the carport on her home, which was located at 2085 Victory Avenue, Largo, Florida. The contract price was $5,000.00. Mike Fredricks acted as the saleman for this contract on behalf of Cedar Homes of Pinellas, Inc. At all times material hereto, Cedar Homes of Pinellas, Inc., was owned by Kenneth Larrow. The only employees of this corporation were Kenneth Larrow and his son. Cedar Homes of Pinellas, Inc., was formed in January of 1982 for the purpose of performing room additions and other types of construction. On April 14, 1982, the sole officer of Cedar Homes of Pinellas, Inc., was Kenneth Larrow, who also served as a director. An attorney John L. Riley, was the registered agent. At all times pertinent hereto, Kenneth Larrow was not licensed to engage in the business of contracting in the State of Florida. On or about April 16, 1982, Kenneth Larrow and his salesman, Mike Fredricks, went to the City of Largo Building Department to obtain a construction permit for the enclosure of Mary Fedico's carport. Neither of these persons wash qualified, or licensed, to engage in the business of contracting in the City of Largo. Therefore, the Largo Building Department refused to issue a permit for this construction. When Kenneth Larrow and Mike Fredricks were unable to obtain a permit for the construction of the addition to Mary Fedico's home, they informed the Largo Building Department that the qualifier for Cedar Homes of Pinellas, Inc., was Barry L. Critoph, the Respondent. The Largo Building Department informed Mr. Larrow and Mr. Fredricks that the Respondent had to sign the permit application in order for a permit to be issued for the construction to be performed on Mary Fedico's home. On or about April 16, 1982, the Respondent applied for and obtained a construction permit for the enclosure of Mary Fedico's carport. This permit was issued to Cedar Homes of Pinellas, Inc., with the Respondent as the qualifying contractor. At all times relevant hereto, the Respondent did not qualify Cedar Homes of Pinellas, Inc., with the Construction Industry Licensing Board. At all pertinent times, the Respondent did not have in his possession a certificate issued by the Construction Industry Licensing Board with the notation "Cedar Homes of Pinellas Inc." thereon. Moreover, the Respondent admitted he was not positive that he had properly qualified Cedar Homes of Pinellas Inc., when he obtained the permit for the enclosure of Mary Fedico's carport. On or about May 5, 1982, Cedar Homes of Pinellas, Inc., entered into a second contract with Mary Fedico to finish the interior of the carport which was to be enclosed by Cedar Homes of Pinellas, Inc., pursuant to the prior contract, for a price of $710. Kenneth Larrow began to perform the work required under the terms of the two contracts. Mary Fedico never saw the Respondent at the project site. Mr. Larrow hired all subcontractors and was responsible for paying them. He was also responsible for supervision of the construction of the carport enclosure. The Respondent did not know that there was a second contract for interior work in Mary Fedico's carport enclosure, and the Respondent performed no work on the project. He did drive his car by the site three times, but he never entered onto the project, and he simply viewed the construction being performed from the street. The Respondent had no knowledge as to who the subcontractors were on the Fedico project, and he had no responsibility for hiring them. He had no knowledge of the money that was being obtained from this project, and he did not know whether or not the subcontractors were being paid. At a time uncertain, construction of the carport enclosure addition to the Fedico home began to slow down. When Mary Fedico began to receive notices from subcontractors that they were not being paid, she contacted Kenneth Larrow about problems with the construction. However, when Mr. Larrow was unable to satisfactorily respond to Mary Fedico's questions regarding the work, she and her son-in-law took over the project, completed it, and paid all the subcontractors. The cost of completion was between $2,000 and $2,500 more than the contract price had been. As a result of the Fedico contracts noted above, Kenneth Larrow was charged with using the designation of "contractor" without a license, in two counts. Kenneth Larrow plead nolo contendere to these charges, and he was sentenced to pay a fine of $250 plus court costs. Mary Fedico first became aware that the Respondent had some involvement with the construction of the addition to her home when she was subpoenaed to appear at this court proceeding. Prior thereto, she had not been notified by either the Respondent or Mr. Larrow, that the Respondent had any connection with her carport project. The Respondent's involvement with Cedar Homes of Pinellas Inc., was limited to obtaining permits and "supervision". As compensation therefor, the Respondent was to received two percent of the gross sales of the company. He was supposed to check jobs and verify construction, but this supervision was to consist of checking the projects contracted for by Cedar Homes of Pinellas Inc., at his own convenience, to determine if these projects were "okay". The Respondent was not connected with the financial operation of Cedar Homes of Pinellas Inc., he had no financial control over the operations of the corporation, and he could not sign checks. All subcontractors were hired and paid by Kenneth Larrow. Mr. Larrow and his salesmen actually entered into the contracts, and the Respondent had no involvement with the contracts except to determine if work contracted for was structurally sound. Kenneth Larrow actually supervised all of the construction projects of Cedar Homes of Pinellas Inc., on a daily basis, and the Respondent was not aware of all the projects entered into by the corporation. Kenneth Larrow eventually made restitution to Mary Fedico in the amount of $1,250 for the problems which occurred in connection with the carport enclosure work on her home.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that license number CB C012964 held by the Respondent, Barry L. Critoph, be suspended for two years. THIS RECOMMENDED ORDER entered this 2nd day of December, 1983. WILLIAM B. THOMAS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 1983. COPIES FURNISHED: Stephanie A. Daniel, Esquire 130 North Monroe Street Tallahassee, Florida 32301 John J. Fogarty, Esquire 327 South Garden Avenue Clearwater, Florida 33517 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
The Issue The issues in this case are whether Respondent violated Subsections 489.129(1)(g)1., (j) and (m), Florida Statutes (2004),1/ and, if so, what penalty should be imposed.
Findings Of Fact The Parties At all times relevant to this proceeding, Respondent was a certified general contractor in the State of Florida, having been issued License No. CG C1507065. Respondent's license as a general contractor was first issued on April 12, 2004, and is current and active. At all times relevant to this proceeding, Respondent was part-owner and the qualifying agent of a Florida corporation named Golden Rule Construction Group, Inc. (hereinafter referred to "GRCG"). The Board is the state agency charged with regulating the practice of contracting in the State of Florida pursuant to Chapters 455 and 489, Florida Statutes. Facts Related to Freedman Property On or about June 1, 2005, Barry Freedman (hereinafter referred to as "Freedman") entered into a contract to construct a room addition and remodel a bathroom at Freedman's residence at 2349 East Manor Avenue in Port St. Lucie, Florida. The pre-printed contract indicated that the contractor was GRCG. Also, the letterhead on the contract included the name "Golden Rule Construction Group, Inc." and the company's address, telephone number, fax number, and Respondent's general contractor's license number. The contract was executed by Freedman, as the homeowner, and Steve DiBenedetto (hereinafter referred to as "DiBenedetto"), as the contractor. All negotiations and presentations relative to the contract were between Freedman and DiBenedetto. The contract price was $52,652.00. Of this amount, Freedman paid $14,657.00, all of which was accepted by DiBenedetto as contractor for GRCG. Initially, on or about May 31, 2005, Freedman gave DiBenedetta a $10,000.00 check as a deposit for the construction project. On or about July 13, 2005, Freedman gave DiBenedetto a $4,657.00 check as a second payment under the contract. The payee on both checks was GRCG. DiBenedetta and a man identified as John Smith3/ commenced the bathroom remodeling project in June 2005 and satisfactorily completed that project by September 2005. The bathroom remodeling project was started and completed, even though no building permit had been pulled. Based on representations of DiBenedetta and/or John Smith, Freedman believed no permit was necessary for the bathroom remodel.4/ The Contract does not delineate or specify the cost of the room addition and the cost of the bathroom remodeling project. However, the value of the bathroom remodel was estimated by a qualified independent third party to be $7,804.00. The room addition was to begin in September or October 2005, after the plans for the addition were completed. The plans were never provided by GRCG, and it never commenced work on the room addition as provided for in the Contract. Eventually, Freedman went to the architect and purchased the plans for the room addition in order to move forward on the project. After completing the bathroom remodel, GRCG abandoned the project and never began the room addition that was provided for in the contract. The amount paid by Freedman to GRCG, $14,657.00, exceeds the value of the work performed by $6,853.00. Facts Related to Ekstrom Property On or about October 28, 2004, Larry Ekstrom (hereinafter referred to as "Ekstrom") entered into a contract (hereinafter referred to as "Ekstrom Contract") with GRCG to construct a new home a 117 Creek Drive in Port Charlotte, Florida (hereinafter referred to as "Eckstrom property"). The Ekstrom Contract was executed by Ekstrom, as the owner, and Keith Powell, as the contractor. The Ekstrom Contract price was $808,306.31. The Ekstrom Contract provided that work on the construction project was to commence upon issuance of the permit by Charlotte County. In accordance with that contract, after the permit was issued, GRCG began work on the construction project at the Eckstrom property. Eckstrom's understanding was that, pursuant to the Eckstrom Contract, GRCG would request periodic payments from Eckstrom that would be used to pay for materials, suppliers, and sub-contractors. Ekstrom made two payments to GRCG as payment for the project under the Ekstrom Contract. The first payment in the amount of $40,420.00 was made on October 29, 2004, when the Ekstrom Contract was fully executed. The second payment in the amount of $82,900.59 was paid to GRCG on or about March 3, 2005, as a "progress payment" under the terms of the Ekstrom Contract. On or about July 1, 2005, a Claim of Lien was recorded against Eckstrom's property by Tom Brunton Masonry, Inc. (hereinafter referred to as "Brunton Masonry"), for $18,029.91. The Claim of Lien was for the unpaid costs of labor, services, and materials furnished by Brunton Masonry for improvements to the Ekstrom property at 117 Creek Drive from April 2005 until May 2005. According to the Claim of Lien, Brunton Masonry provided the subject labor, services, and materials pursuant to a contract it had with GRCG. The Claim of Lien indicated that the total value of the labor, services, and materials furnished by Brunton Masonry was $39,243.91, "of which there remains an unpaid balance of $18,029.91." Eckstrom successfully negotiated with Brunton Masonry and the $18,029.91 lien was reduced to $14,000.00. On or about October 25, 2005, Eckstrom paid Brunton Masonry the negotiated amount of $14,000 to satisfy the Claim of Lien. On or about August 2, 2005, a Claim of Lien was recorded against the Eckstrom property by Murphy Concrete Works, Inc. (hereinafter referred to as "Murphy Concrete"), for $35,400.00. The Claim of Lien was for labor and material furnished by Murphy Concrete to perform concrete work on the Eckstrom property in accordance with a contract with GRCG. According to the Claim of Lien, the subject labor and materials were furnished between March 4 and 11, 2005. In order to remove the lien from his property, in or about September 2005, Eckstrom paid Murphy Concrete $35,400.00 to satisfy the Claim of Lien. Eckstrom paid a total amount of $49,400.00 to satisfy the above-referenced liens against his property. In April, May or June 2005, Eckstrom had a conversation with Keith Powell, in which Powell told Eckstrom that there was a company takeover by one of GRCG partners. In or about early summer 2005, GRCG stopped work on the Eckstrom property. Prior to that time, GRCG scraped and filled the lot and put in the foundation footers and stem wall. Prior to the liens being recorded against the Eckstrom property and after GRCG had ceased working on the property, Mr. Powell talked to Eckstrom and offered to complete the construction project. However, because previous discussions and representations with Powell had not yielded any positive results, Eckstrom had no confidence in Powell and, thus, did not accept Powell's offer. After GRCG ceased work on the Eckstrom property for more than 90 days, Eckstrom contracted with Towles Corporation to complete the construction project. Towles completed the construction of the house at a cost of $934,000.00.5/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, the Department of Business and Professional Regulation, Construction Industry Licensing Board, enter a final order: (1) finding that Respondent, Keith C. Powell, violated Subsections 489.129(1)(g)1., (j), and (m),6/ Florida Statutes, and imposing a $1,000.00 fine for each violation, for a total of $3,000.00; (2) requiring Respondent to make restitution to Barry Freedman in the amount of $6,853.00; (3) requiring restitution to Larry Eckstrom in the amount of $49,400.00; and (4) requiring Respondent to attend a minimum of seven additional hours of continuing education. DONE AND ENTERED this 31st day of January, 2008, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 31st day of January, 2008.
Findings Of Fact At all times relevant hereto, Respondent, Victor L. Contessa, (Contessa) was licensed as a real estate broker in the State of Florida, having been issued license Number 0016808. The last license issued to Respondent was as a broker, c/o Cavalier Southern Realty, Inc., 4343 Ridgewood Avenue, Port Orange Florida, 32019. At all times material hereto, Contessa was owner and president of Cavalier Development and Building Corporation. In 1983, Charles Hill purchased a lot in Port Orange, Florida, more particularly described as Lot 29, Phase One, Cypress Grove. In June of 1983, Charles Hill wished to have a house constructed on his lot. Mr. Hill spoke with Contessa regarding the construction of the house. After reviewing plans with Contessa, Hill entered into a written Building Agreement with Contessa whereby Contessa agreed to construct a house for Hill for $50,000.00, plus extras. At the time he signed the Building Agreement, Hill believed that Contessa was a licensed building contractor. He based this belief upon representations made by Contessa to Hill that Contessa was a licensed building contractor. The Building Agreement, dated June 4, 1983, listed Cavalier Development and Building Corporation as the contractor and was signed by Contessa as president of Cavalier Development and Building Corporation. Contessa was not a licensed building contractor when he signed the Building Agreement. In order to have the house constructed as set forth in the Building Agreement, it was necessary for Contessa to hire a licensed building contractor. Contessa contacted Donald E. Welch, a licensed residential contractor. Contessa represented to Welch that Contessa's company, Cavalier Development and Building Corporation, was the owner of Hill's lot. Based on that representation, Contessa entered into a Building Agreement with Welch to have Welch construct the house for $42,500.00. Welch did not become aware that the lot in question was owned by Hill and not by Contessa or Cavalier Development and Building Corporation until October 25, 1983, when Welch attempted to pull a building permit. At that time, Contessa advised Welch that the owner's name was Charles B. Hill. Hill paid Contessa a total of $45,000.00 for construction of the house. In January 1984, Welch slowed construction on the house because Contessa did not pay him his construction draws when they were due. Until this time, Contessa had instructed Hill not to discuss construction with any of the workmen on the site, but to bring any concerns directly to Contessa. Additionally, Contessa had instructed Welch not to deal directly with Mr. Hill, but instead to discuss all construction matters directly with Contessa. Because of the slowdown in construction, Hill and Welch discussed the matter between themselves. It was at this time that Hill learned that Welch was the licensed contractor, and not Contessa. Hill then began dealing directly with Welch. Welch completed the construction upon payment of $8,842.00 paid directly by Hill to Welch. Contessa, in the name of Cavalier Development and Building Corporation filed a mechanics lien as a contractor against the Hill property on May 16, 1984.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Professional Regulation, Division of Real Estate, enter a final order suspending the license of Victor L. Contessa for a period of five (5) years and assessing an administrative fine against Victor L. Contessa in the amount of $1,000.00. DONE AND ENTERED this 13th day of August, 1985, at Tallahassee Florida. DIANE K. KIESLING 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 13th day of August, 1985. COPIES FURNISHED: James H. Gillis, Esquire Staff Attorney Department of professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32801 Victor L. Contessa Box 566 Port Salerno, Florida 33492 Victor L. Contessa 101 Santa Lucia Avenue West Palm Beach, Florida 33492 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harold Huff, Director Division of Real Estate 400 West Robinson Street Orlando, Florida 32801
The Issue The issue is whether Respondent's license as a registered building contractor should be disciplined for the acts alleged in the Administrative Complaint, as amended?
Findings Of Fact Respondent, Robert Tucker, is a registered building contractor holding State of Florida license number RB 0033063 (Ex. 7). Respondent was licensed as a building contractor by the State of Florida in September 1978, and has remained licensed at all times material hereto (Ex. 7). Since September 20, 1978, Respondent has held a local Building Contractor's License issued by the Leon County Contractor Licensing and Examination Board (Ex. 7). Respondent's license with the Department has been delinquent since July 1, 1985 (Ex. 7). In July 1983, Respondent made an oral agreement with Violet Gladieux to erect a carport for her at a cost of $1,350 (Ex. 3). Ms. Gladieux's residence is located at 2321 Belle Vue Way, within the city limits of Tallahassee. Jay Gladieux, Jr. became acquainted with Mr. Tucker from his position as an employee of Mr. Tucker on a prior construction project. Mr. Gladieux introduced his mother, Ms. Gladieux, to Mr. Tucker for the carport construction. It was orally agreed that Ms. Gladieux would pay Mr. Tucker for supplies as they were needed. Mr. Tucker began erection of the carport approximately one week after July 11, 1983, when he received the first payment of $300. On July 29, 1983, Mr. Tucker received final payment of $350 so that he could complete the carport (Ex. 3). Approximately two weeks after July 29, 1983, Respondent completed the carport. A permit for the erection of the carport was required by Section 7-63, Buildings and Construction Regulations (The Building Code) of the City of Tallahassee. The language of that ordinance has not changed since 1957 (Ex. 1). No building permit was ever obtained by Mr. Tucker for erection of the carport. Approximately two weeks after completion of the carport, it collapsed after a heavy rainfall (Ex. 4 and 5). Mr. Tucker returned to repair the damaged carport. He erected center studs and was to return later to complete the damage repair. Mr. Tucker has failed to return to complete the damage repair after requested to do so by Jay Gladieux. When an administrative complaint has been filed against a contractor, personal service of the complaint is attempted upon the contractor at his last address of record. If personal service cannot be effectuated at the contractor's last address of record, further attempts are made to locate the contractor. The building departments, both City and County, the telephone company, utility company and post office are contacted. The building departments are contacted to determine if the contractor has obtained any permits, for the permits would list the contractor's address. The telephone company is contacted for prior and new telephone listing(s) with address(es). The post office is contacted for forwarding address(es). The utility company is contacted for new utility service which would contain a new address (es). If the contractor cannot be located after using these avenues, a diligent search affidavit is executed by the investigator who is attempting to serve the contractor. In September 1978 and at all times pertaining to the construction of the carport, Respondent's address of record with the Department was 1515-21 Paul Russell Road and P.O. Box 20234, Tallahassee, Florida. Respondent had not notified the Department of Professional Regulation, Construction Industry Licensing Board of any change in his address (Ex. 7), other than by the new address revealed on the Election of Rights form he filed in response to the administrative complaint. The Department attempted to personally serve Mr. Tucker at his listed address and could not locate him there. On May 21, 1984, Robert E. Connell, an investigator for the Department of Professional Regulation, executed a diligent search affidavit concerning service of the Administrative Complaint upon Mr. Tucker in this proceeding (Ex. 8).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent be found guilty of the charges in count one of the Administrative Complaint, as amended; that counts two and three be dismissed; and that he be fined $250.00. DONE AND ORDERED this 4th day of April 1986 in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY,JR., Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of April 1986. COPIES FURNISHED: Mr. James Linnan Executive Director Construction Industry Licensing Board P.O. Box 2 Jacksonville, Florida 32202 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Errol H. Powell, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Robert Tucker P.O. Box 10218 Tallahassee, Florida 32302
Findings Of Fact At all times material to this proceeding, the Respondent has been licensed as a residential contractor in the State of Florida, holding license number CR C022406, and was the licensed contractor qualifying Rothberg Homes, Inc. On or about May 21, 1986, the Respondent entered into a contract to build Mr. and Mrs. Frank Sargent a new home in Palm Harbor, Florida, for $95,670. The home was to be completed before November 15, 1986, so that the Sargents could qualify for a lower interest rate. The Respondent relied heavily on his construction superintendent, Frank Jackson, to accomplish the work in a timely and workmanlike manner. The Respondent was responsible primarily for selling contracts and for taking care of the company finances. To comply with the technical requirements of the contract, the Respondent had construction begin in July, 1986, with the clearing of the lot. But foundation footers were not dug and poured until about a month later, and construction proceeded at a slow pace (then it went on at all.) The Sargents registered numerous complaints to Jackson about the slow pace and some complaints to the Respondent about Jackson, but nothing was done to speed construction along. In October, 1986, the Sargents, who were on the job site daily, began hearing complaints from suppliers and subcontractors that the Respondent was slow paying them but was told that he eventually was coming through with the payments due. By November, the Respondent was not making payments at all in some cases. Also in October and November, Jackson was in the process of opening his own business (not construction-related) and was devoting less and less time to the Sargent job. November 15, 1986, approached, and it became obvious that the deadline would not be met. The Sargents and the Respondent met and agreed to extend the deadline one month to December 16. On December 11th, the Sargents again reminded the Respondent of the deadline and its importance to them, but the December 16 deadline also came and went with the house only about 70 percent complete. In December, Jackson quit altogether. The Sargents complained to the Respondent, who promised to replace Jackson but never did. Because the Respondent had stopped paying subs and suppliers, they refused to do any more work, and the Sargents wound up having to pay some of them out of their own pockets in order for work to continue. In March 1987, some of the subs and suppliers also filed claims of liens for unpaid work which the Sargents had to clear out of their own pockets in order to close the purchase of the house. Mr. Sargent himself did some of the work, some of which would have been warranty work if the Respondent had paid his bills on time, to save some additional expense caused by the Respondent's failure to keep current on his accounts with the subs and suppliers and to avoid some of the additional hassle of trying to persuade an unpaid sub or supplier to do warranty work. On March 16, 1987, the Sargents met with the Respondent to arrive at an accounting for purposes of the upcoming closing. They agreed that the Sargents should receive the last construction loan draw of about $9,500 to compensate them for payments they made that should have been made by the Respondent and that the Respondent still owed them $6,000, which the parties agreed would be the subject of a promissory note from the Respondent to the Sargents. (This does not even account for the Sargents being shortchanged when a three-foot roof overhang for which they had contracted turned out to be only a two-foot overhang.) The Respondent has paid the promissory note.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Construction Industry Licensing Board enter a final order finding the Respondent, Daniel S. Rothberg, guilty of violating Section 489.129(1)(h) and (m), Florida Statutes (1987), and imposing an administrative fine in the amount of $1,500. RECOMMENDED this 19th day of December, 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 19th day of December, 1988. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Daniel S. Rothberg 624 Charisma Drive Tarpon Springs, Florida 34689 Daniel S. Rothberg 196 Mayfair Circle Palm Harbor, Florida 34684 Warren A. Wilson, III, Esquire 2101 U.S. Highway 19 North Suite 201 Palm Harbor, Florida 33563 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
