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. Based on an Administrative Complaint filed on July 6, 1979, the Florida Construction Industry Licensing Board (herein sometimes referred to as the Petitioner or the Board) seeks to take disciplinary action against Licensee Richard E. Ulbricht, d/b/a Ulbricht Construction, Inc., and to impose an administrative fine or $500.00. Respondent is a registered contractor who holds the following licenses: RG 0011921 - Registered General/Active/Issued RGA 0011921 - Registered General/Active/Issued RG OB 11921 - Registered General/Delinquent RM 0014920 - Registered Mechanical/Active/Issued RM 0017586 - Registered Mechanical/Delinquent RS 0019201 - Registered Sheet Metal/Active/Issued RC 0019264 - Registered Roofing/Active/Issued Respondent was first licensed by the Petitioner during February, 1972. On June 14, 1977, Respondent qualified Ulbricht Construction, Inc., as the business entity through which he would conduct his contracting business. The construction activities involved herein took place in the City of Palm Bay, Florida. Palm Bay has no local licensing board. On June 12, 1978, Respondent entered into a contract with Michael D. and Karen K. McCammack to construct a residence for the sum of $39,900.00. Respondent received the full contracted price and the transaction closed on January 4, 1979. Chelsea Title and Guaranty Company closed the transaction for Respondent and the McCammacks on January 4, 1979. Camille Guilbeau is the manager for the Palm Bay branch of Chelsea Title and Guaranty Company. Ms. Guilbeau is in charge of all closing and as such ensures that all outstanding obligations of record are paid. In keeping with Chelsea's policy of protecting itself in the event of outstanding unrecorded claims of liens, Chelsea has a policy of requiring contractors and builders such as Respondent to declare in an affidavit that there is no outstanding work which has been performed, or labor or materials for which a lien could be filed on property in which Chelsea is closing the mortgage transaction. Respondent executed such an affidavit relative to the McCammacks' property, which Chelsea relied on to close the transaction on January 4, 1979 (Petitioner's Exhibit 4). On January 4, 1979, Chelsea Title and Guaranty Company paid Rinker Materials Corporation of Melbourne, Florida, $1,201.02 based on a claim of liens filed December 15, 1978, for materials consisting of concrete block, steel and miscellaneous items which were used on the McCammack property (Petitioner's Exhibit 6). Subsequent to the date of closing, January 4, 1979, liens amounting to approximately $2,761.62 have been filed against the McCammack property based on Respondent's failure to pay bills for labor and/or materials used in connection with the construction of the McCammacks' residence. These lien claims were filed against the McCammacks' property for a drilled well, installation of a pump and tank by Perry and Leighty, Inc., of Melbourne, Florida; two septic tanks, drains and sand supplied by Pence South Brevard Sewer and Septic Tank of Melbourne, Florida (Petitioner's Exhibits 7, 8 and 9). On December 22, 1978, Respondent entered into a contract with Robert J. Greene to construct a residence for $30,500.00 in Palm Bay, Florida. Respondent filed an affidavit of no liens relative to the Greene property on January 10, 1979. Chelsea Title and Guaranty Company relied on this affidavit to close the Greene property transaction on January 10, 1979 (Petitioner's Exhibit 5). Respondent was paid thee entire contract price. On February 12, 1979, Pence South Brevard Sewer and Septic Tank filed a claim of lien in the amount of $1,015.36 for two septic tanks, drains and sand which had been furnished the Respondent for the property of Robert J. and Alice Greene of Palm Bay, Florida, on December 15, 1978 (Petitioner's Exhibits 10 and 11). Approximately $3,496.40 was retained by Chelsea Title and Guaranty Company to satisfy outstanding recorded obligations on the date the Greene transaction closed (Petitioner's Exhibit 13). On February 21, 1979, Respondent caused to be filed in the United States District Court of the Middle District of Florida, a Voluntary Petition for Bankruptcy for Ulbricht Construction, Inc. (Petitioner's Exhibit 2 Composite).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Respondent's contractors licenses set forth hereinabove be REVOKED. RECOMMENDED this 6th day of May, 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 6th day of May, 1980.
The Issue Whether the Respondent was validly disciplined by a local government, which causes the Respondent to be in violation of Section 489.129(1)(i), Florida Statutes. Whether the Respondent is guilty of fraud, or deceit or of gross negligence, incompetence, or misconduct in the practice of contracting, in violation of Section 489.129(1)(m), Florida Statutes.
Findings Of Fact At all times material to these proceedings, the Respondent, Tillack Ram Netram, was licensed as a certified residential contractor and held license number CR C035238. On or about November 16, 1988, a duly noticed hearing was held before the Contractors Regulatory Board of the City of Cape Coral to determine whether Respondent Netram had violated local ordinances by falsifying three certificates of occupancy in order to close real estate transactions and receive money before the residences were actually approved for occupancy by the City of Cape Coral. The incomplete permits were removed from the property prior to actual completion, and copies of falsified permits were given to the closing agent. The falsified permits showed that certificates of occupancy had been issued by the local building department when in fact, this had not occurred. All of the witnesses at the hearing were placed under oath and were subject to cross-examination by Respondent Netram's attorney, Terry Signorella. The Respondent was present at the proceeding and was allowed to present evidence and to testify in his own behalf. At the close of the evidentiary portion of the proceeding on November 16, 1988, Respondent Netram was found guilty by the local board of making misleading, deceptive, untrue or fraudulent representations in the practice of his contracting business. He committed these violations by delivering three building permits with forged signatures under the Certificate of Occupancy approval portion of the permits to Miss Peggy Burt of Stewart Title Company in Fort Myers. This conduct constitutes three violations of Section 6.10(1) of the Municipal Code. As a result of the alleged violations, Respondent's permit pulling privileges were suspended for a period of six months. An appeal was not taken of the disciplinary action. On November 15, 1988, an Information was filed against the Respondent which charged the Respondent with five counts of grand theft and scheme to defraud in connection with five separate real estate sales. At the time of hearing, these charges were still pending. The investigator for the State Attorney's offices attended the formal administrative hearing and presented a copy of his investigatory file. All of the testimony and documents presented were uncorroborated hearsay. None of the documents, including official records, were properly verified. There was no evidence submitted in mitigation or in aggravation of the penalties provided for the alleged violations.
Recommendation Because the Respondent committed the misconduct in regards to three different building permits, he should be penalized for his action as to each permit. Accordingly, it is Recommended: That the Respondent be found not guilty of having violated Section 489.129(1)(m), Florida Statutes, as set forth in paragraphs 3 and 5 of the Administrative Complaint. That the Respondent be found not guilty of having violated Section 489.129(1)(i), Florida Statutes, for the misconduct alleged in paragraph 4 of the complaint. That the Respondent be found guilty of having violated Section 489.129(1)(i), Florida Statutes, as set forth in paragraph 6 of the complaint. That the Respondent pay a fine of $1 500.00, as set forth in Rule 21E- 17.001(8), Florida Administrative Code, for his willful violation, on three occasions, of the municipal building code. DONE and ENTERED this 23rd day of February, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 23rd day of February, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-0819 Petitioner's proposed findings of fact are addressed as follows: Accepted. Accepted. See HO #1. Rejected. Irrelevant. Not charged in the Amended Administrative Complaint. Rejected. Insufficient competent evidence provided at hearing. Accepted. Accepted except for the allegation that Respondent forged the inspector's signature. Insufficient proof. See HO #4 and #5. Rejected. Insufficient competent evidence provided at hearing. Rejected. Insufficient competent evidence provided at hearing. Accepted. See preliminary matters. COPIES FURNISHED: David M. Gaspari, Esquire Post Office Box 2069 West Palm Beach, FL 33402 Tillack Ram Netram 532 Southeast 18th Place Cape Coral, FL 33904 Fred Seely Executive Director Construction Industry Licensing Post Office Box 2 Jacksonville, FL 32202 Kenneth D. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
The Issue Whether disciplinary action should be taken against Respondent's license to practice contracting, license number CC C057275, based on the violations of Section 489.129(1), Florida Statutes, as charged in the Administrative Complaint filed against Respondent in this proceeding.
Findings Of Fact At all times material, Respondent was a certified contractor, having been issued license number CC C057275 by the Florida Construction Industry Licensing Board. At all times material, Respondent was registered or certified with the Construction Licensing Industry Board doing business as Comtec Coatings Company (Comtec). At no time material hereto did Respondent apply for or obtain a certificate of authority for Comtec. Respondent has previously been disciplined for violations of Chapter 489, Florida Statutes, in Department of Business and Professional Regulation Case Number 2001-03759, including the failure to honor a warranty. On or about March 29, 1996, Respondent, doing business as Comtec Coatings Company, contracted with Kopp to re-roof her home located at 1010 Terry Drive, Melbourne, Florida, for the contract price of $8,600. Respondent's contract contained a five year warranty. Respondent was paid-in-full on or about April 6, 1996. Shortly after Respondent performed the roofing work, the roof experienced significant problems including excessive leakage and material deterioration. Eventually, the roof lost its ability to repel water and large portions rotted. Immediately, Respondent was advised of the problems yet failed to repair them. Kopp, along with her concerned friends and neighbors, expended hundreds of labor hours and at least $896.61 above the original contract price to mitigate the damage to her roof and home as a result of Respondent's workmanship. An independent roofing contractor estimated that it would cost $3,000 to temporarily repair the leaks and approximately $33,000 to replace it and completely correct the problem. As of the date of the administrative hearing, the roof has not been repaired, remains in poor condition and continues to leak. Kopp is legitimately concerned that her home may be condemned. The total investigative costs of this case to the Department of Business and Professional Regulation, excluding costs associated with counsel's time, are $399.30.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a Final Order as follows: Finding Respondent guilty of having violated Section 489.129(1)(i), Florida Statutes, for failing to file for a certificate of authority as required by Section 489.119(2), Florida Statutes, as alleged in Count I of the Administrative Complaint, and imposing an administrative fine in the amount of $1,000. Finding Respondent guilty of having violated Section 489.129(1)(m), Florida Statutes, for incompetency and misconduct as alleged in Count II of the Administrative Complaint, and imposing an administrative fine in the amount of $2,000, revoking all licensure under the auspices of the Florida Construction Industry Licensing Board. Finding Respondent guilty of having violated Section 489.129(1)(g)(3), Florida Statutes, for having Kopp pay significantly more than the roofing repair contract price, and imposing an administrative fine in the amount of $5,000, revoking all licensure under the auspices of the Florida Construction Industry Licensing Board, and ordering Respondent to pay financial restitution to consumer Judith Kopp in the amount of $33,896.61 for consumer harm suffered. Assessing costs of investigation and prosecution in the amount of $399.30, which excludes costs associated with any attorney's time. DONE AND ENTERED this 31st day of December, 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 31st day of December, 2002. COPIES FURNISHED: Brian A. Higgins, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Larry S. Olson 3451 Riva Ridge Place Fort Collins, Colorado 80526 Robert Crabill, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
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. /
The Issue The issue in this case is whether the Pinellas County Construction Licensing Board should discipline the Respondent for alleged failure or refusal to satisfy a civil judgment in a reasonable period of time.
Findings Of Fact The Respondent, Bradley T. Barbour, has not disputed that he is a certified tile and marble specialty contractor, holding Pinellas County Construction Licensing Board license number C-5778. The Respondent entered into a contract with Cameron Vale to tile the floor of his house. The tile job was unsatisfactory to Vale, who sued in the County Court, Pinellas County, Small Claims Division, Case No. 93-5287 SC-NCD. On February 14, 1994, Vale and the Respondent entered into a Pretrial Conference Agreement. Under the Agreement, the Respondent agreed, among other things, to pay Vale $2,500, payable $200 a month beginning February 18, 1994, until paid in full. Based on the Agreement, Vale and the Respondent filed a Stipulation to Stay Entry of Judgment on February 14, 1995, and two days later the court entered an Order staying entry of final judgment. Contrary to the terms of the Agreement and Stipulation, the Respondent only made one payment of $100. On June 7, 1994, the court entered a Judgment against the Respondent in the amount of $2,400, together with 12 percent interest on the Judgment. The Respondent has made no payments to Vale on the Judgment and has not satisfied the Judgment either in full or in part. The Board has published "Guidelines for Disciplinary Action" which provide for a $300 fine as the "typical" penalty for the first "minor" infraction and a $750 fine as the "typical" penalty for the first "major" infraction. The Guidelines give no guidance in distinguishing between "minor" and "major" infractions. The Guidelines also list aggravating and mitigating circumstances which focus on the harm done by the offense, the licensee's efforts to rectify the situation, and whether there is a history of similar offenses by the licensee. They also authorize suspension or revocation and fines "not to exceed $1,000 per count."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County Construction Licensing Board enter a final order: (1) finding the Respondent guilty of violating Section 24(2)(c) of Chapter 75-489, Laws of Florida (1975), as amended; (2) fining him $750; (3) revoking his license; and (4) conditioning relicensure upon both full restitution to Cameron Vale under the terms of the outstanding Judgment and full payment of the fine imposed in this case. RECOMMENDED this 23rd day of June, 1995, in Tallahassee, Florida. 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 23rd day of June, 1995. COPIES FURNISHED: William J. Owens Executive Director Pinellas County Construction Licensing Board Suite 102 11701 Belcher Road Largo, Florida 34643-5116 Bradley T. Barbour B & B Tile 2035 Philippe Parkway Safety Harbor, Florida 34695
The Issue This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of alleged violations of Chapter 489, Florida Statutes. Specifically, the Respondent has been charged in a three-count Administrative Complaint with violations of paragraphs (e), (h) and (m) of Section 489.129(1), Florida Statutes.
Findings Of Fact Respondent is, and has been at all times material hereto, a licensed Certified General Contractor, having been issued license number CG C046109, by the State of Florida. At all times material hereto, the Respondent was the qualifying agent for Florida Hi-Tech Construction, Inc. On November 2, 1990, the Respondent, doing business as Florida Hi-Tech Construction, Inc., contracted with New Life Presbyterian Church for the construction of a church at 7355 Coral Way, Miami, Florida 33155, for the price of Two Hundred and Ninety Four Thousand dollars ($294,000.00). New Life Presbyterian Church paid Florida Hi-Tech Construction, Inc., One Hundred and Four Thousand dollars ($104,000.00) toward the contract price. The Respondent constructed a foundation and two exterior concrete block walls with tie beams, and then abandoned the project without just cause or notice to the owner during or near March of 1991. The work performed by the Respondent amounted to approximately ten or fifteen percent of the total work to be performed under the contract. The amount of money the Respondent received from the New Life Presbyterian Church amounted to approximately thirty-five percent of the full price to be paid under the contract. On May 17, 1991, a lien in the amount of One Thousand Eighty Nine dollars and Seven cents ($1,089.07) was filed against 7355 Coral Way, Miami, Florida 33155, the property known as New Life Presbyterian Church, for building materials furnished by Nachon Enterprises, Inc., in accordance with a contract between Florida Hi-Tech Construction, Inc., and Nachon Enterprises, Inc. The Respondent failed to remove said lien and the New Life Presbyterian Church paid Nachon Enterprises, Inc., to satisfy said lien. On April 19, 1991, a lien in the amount of Ten Thousand One Hundred Eighty Four dollars and Fourteen cents ($10,184.14) was filed by Southeastern Municipal Supply, a Division of Clayton Group, Inc., against 7355 Coral Way, Miami, Florida 33155, for plumbing materials furnished in accordance with a contract with Downrite Engineering. On April 19, 1991, a lien in the amount of One Thousand Eight Hundred Sixty One dollars and Thirty Six cents ($1,861.36) was filed by PreCon Products, a Division of Clayton Group, Inc., against 7355 Coral Way, Miami, Florida 33155, for plumbing materials furnished in accordance with a contract with Downrite Engineering. The Respondent failed to remove the liens filed by Southeastern Municipal Supply and PreCon Products, a Division of Clayton Group, Inc., and New Life Presbyterian Church paid both liens. Downrite Engineering was a subcontractor of Florida Hi-Tech Construction, Inc., in the construction of the New Life Presbyterian Church, and the materials furnished to the New Life Presbyterian Church by Southeastern Municipal Supply and PreCon Products, both Divisions of Clayton Group, Inc., were furnished in accordance with Respondent's instructions. On May 17, 1991, a lien in the amount of Four Thousand Seven Hundred Ninety Four dollars and Ninety One cents ($4,794.91) was filed by Standard Concrete Corporation against 7355 Coral Way, Miami, Florida 33155, for concrete furnished in accordance with a contract between Florida Hi-Tech Construction, Inc., and Standard Concrete Corporation. On February 1, 1991, a lien in the amount of Four Thousand Nine Hundred Ninety Nine dollars and Eighty Four cents ($4,999.84) was filed by Central Concrete Supermix, Inc., against 7355 Coral Way, Miami, Florida 33155, for concrete furnished in accordance with a contract between Florida Hi-Tech Construction, Inc., and Central Concrete Supermix, Inc. The Respondent failed to remove the lien filed by Central Concrete Supermix, Inc., and the New Life Presbyterian Church paid Four Thousand dollars ($4,000.00) in satisfaction of the lien. On February 22, 1991, a lien in the amount of Two Thousand One Hundred Twelve dollars ($2,112.00) was filed by Del Amo Plumbing, Inc., against 7355 Coral Way, Miami, Florida 33155, for plumbing materials and labor furnished in accordance with a contract between Florida Hi-Tech Construction, Inc., and Del Amo Plumbing, Inc. The Respondent failed to remove the lien filed by Del Amo Plumbing, Inc. On April 10, 1991, a lien in the amount of Two Thousand Two Hundred and Fourteen dollars and Ninety Three cents ($2,214.93) was filed by Austin Tupler Trucking, Inc., against 7355 Coral Way, Miami, Florida 33155, for trucking and related services furnished in accordance with a contract between Downrite Engineering and Florida Hi-Tech Construction, Inc. The Respondent failed to remove the lien filed by Austin Tupler Trucking, Inc., and the New Life Presbyterian Church paid to satisfy the lien. Downrite Engineering was a subcontractor of Florida Hi-Tech Construction, Inc., in the construction of the New Life Presbyterian Church, and the materials furnished to the New Life Presbyterian Church, by Austin Tupler Trucking, Inc., were furnished in accordance with the Respondent's instructions. New Life Presbyterian Church overpaid the Respondent by approximately Sixty Five Thousand Seven Hundred and Five dollars ($65,705.00). The New Life Presbyterian Church suffered financial harm as a result of the Respondent's activities. The Respondent obtained money draws from the New Life Presbyterian Church in a manner that did not conform to the contract requirements. The Respondent hired Joe Al Electric, Inc., to perform electrical work on the New Life Presbyterian Church. Joe Al Electric, Inc., was not a licensed entity pursuant to Chapter 489, Florida Statutes. The Respondent failed to ensure that Joe Al Electric, Inc., was an entity licensed to practice electrical contracting in the State of Florida. The Respondent assisted Joe Al Electric, Inc., in the uncertified and unregistered practice of contracting. The Respondent was previously found guilty of violations of paragraphs (k), (h), and (m) of Section 489.129(1), Florida Statutes, in a Final Order issued by the Construction Industry Licensing Board on May 13, 1994, in DBPR Case No. 92-14332. As of the date on which it submitted its proposed recommended order, the Petitioner had incurred costs associated with the investigation and prosecution of this case of at least Eight Thousand Three Hundred Six dollars and Sixty Two cents ($8,306.62).
Recommendation On the basis of all the foregoing, it is RECOMMENDED that the Construction Industry Licensing Board issue a Final Order in this case to the following effect: Concluding that the Respondent is guilty of the violations charged in all three counts of the Administrative Complaint; and Imposing the following penalties for the violations alleged in Counts I and II of the Administrative Complaint: (a) administrative fines totaling Ten Thousand dollars ($10,000.00) (a $5,000.00 fine for each of the two counts); and (b) revocation of the Respondent's license. DONE AND ENTERED this 26th day of April 1995 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of April 1995 COPIES FURNISHED: Charles F. Tunnicliff, Esquire Senior Attorney Department of Business and Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Mr. Gonzalo Ardavin 6120 East Territorial Avenue Tucson, Arizona 85718 Richard Hickok, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Linda Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues are whether Respondent committed the several violations of Sections 489.129(1)(h)2.,(h)3.,(j),(k), and (n), Florida Statutes (1997), for the reasons stated in the respective Administrative Complaints and, if so, what, if any, penalties should be imposed. (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of contracting. Respondent is licensed as a certified general contractor pursuant to license number CG C059414. At all relevant times, Respondent was the qualifying agent for Fred T. Garrett Construction, Inc. ("FTG"). As the qualifying agent, Respondent was responsible for all of FTG's contracting activities in accordance with Section 489.1195, Florida Statutes. Respondent failed to obtain a certificate of authority for Fred T. Garrett Construction, Inc., as required by Section 489.119(2), Florida Statutes. The St. Cyr Case On or about August 21, 1998, Respondent entered into a contract with Louis L. St. Cyr to construct an addition to the residence located at 201 South Bel Air Drive, Plantation, Florida. The contract price was $50,000. Although Mr. St. Cyr paid $2,500 to Respondent, Respondent failed to commence work and canceled the project, thereby abandoning it without just cause and without proper notification to Mr. St. Cyr. The contract did not permit Respondent to keep the $2,500 paid by Mr. St. Cyr, and Respondent failed to refund the payment within 30 days after abandonment. Out of the $2,500 he received from Mr. St. Cyr, however, Respondent paid $1,600.00 to the architect before abandoning the project. Thus, the net amount that Respondent owes to Mr. St. Cyr is $900. Petitioner incurred a total of $1,092.28 in investigative costs relating to the St. Cyr case. The Forney Case On May 22, 1998, Respondent, who was doing business as FTG, entered into a contract with Mr. Warren Forney for the construction of a two-bedroom, one-bath addition to the residence located at 1698 Northeast 33rd Street, Oakland Park, Florida. The contract price was $32,500. The contract with Mr. Forney did not contain a written statement explaining the customer’s rights under the Construction Industries Recovery Fund, as required by Section 489.1425(1), Florida Statutes. On July 7, 1998, Respondent obtained permit number 98-050297 from the Oakland Park Building Department. Construction commenced on or about July 7, 1998, and continued sporadically until October 29, 1998, when Mr. Forney dismissed Respondent for failure to timely complete the project. The Oakland Park Building Department issued notices of violation against the project on August 3, September 11, and October 14, 1998, for various building code violations. Mr. Forney was forced to obtain a homeowner’s permit and subsequently hired a subcontractor to complete the work. Mr. Forney paid Respondent approximately $29,250 before relieving Respondent of his duties. To complete the project, Mr. Forney paid a total of $48,746.52, which was $15,396.52 over and above the original contract price. Petitioner incurred a total of $2,190.78 in investigative costs relating to the Forney case. The Kong Case In or around January 1998, a contractor named Lakeview Concepts hired Respondent to perform demolition work for the Kong dry cleaning store project on the property located at 5171 South University Drive, Davie, Florida. On or about June 17, 1998, permit 98-00002349 was issued to Respondent to perform alterations on commercial property located at 5171 South University Drive, Davie, Florida. Respondent, however, did not yet have a contract with the owner for this work. The next month, on or about July 30, 1998, Respondent, who was doing business as FTG, entered into a contract with Shek Kong to complete the dry cleaning store project at 5171 South University Drive, Davie, Florida, for the contract price of $22,300. Shek Kong made payments to Respondent totaling $16,000. Respondent’s work was of poor quality, however, and on or about November 6, 1998, he ceased work, though the project had not been completed. On or about November 14, 1998, Douglas Frankow, license number CB C052960, gave Mr. Kong an estimate of $20,562 to complete the project. Thereafter, on or about June 30, 1999, Mr. Kong contracted with George Settergren, another licensed contractor, to complete the project for a contract price of $27,956. On December 9, 1999, in Case No. 98-020065 08, the Circuit Court, Seventeenth Judicial Circuit, Broward County, Florida, rendered a Final Judgment against Respondent and in favor of Mr. Kong. This judgment awarded Mr. Kong the total amount of $28,693.30, plus 10 percent interest per annum. Petitioner incurred a total of $2,502.78 in investigative costs relating to the Kong case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Construction Industry Licensing Board enter a Final Order finding Respondent guilty of violating Sections 489.129(1)(h)2., (h)3., (j), (k), and (n), Florida Statutes, imposing administrative fines in the aggregate amount of $3,700, assessing investigative costs in the aggregate amount of $5,785.84, placing Respondent's license on probation for a period of four years from the date the Final Order is entered by the Board, and awarding payment of restitution to each customer as follows: (1) to Warren Forney, the amount of $15,396.52; (2) to Shek Kong, satisfaction of the unpaid civil judgment in the amount $28,693.30, plus 10 percent interest accrued thereon; and (3) to Louis L. St. Cyr, the amount of $900. DONE AND ENTERED this 15th day of February, 2002, in Tallahassee, Leon County, Florida. _________________________________ JOHN G. VAN LANINGHAM 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 15th day of February, 2002.
