The Issue The issue is whether disciplinary action should be taken against the contracting licenses held by Respondent, Jeffrey J. Clark, for the reasons stated in the Administrative Complaint.
Findings Of Fact Mr. Clark, doing business as JV Clark General Contractors, Inc., is a Florida State certified general contractor with license number CGC 061010, and his license as of May 2, 2008, was "current, active." He has held this license since November 16, 1999, and there is no evidence of record that any license held by him has been the subject of disciplinary proceedings. In the same capacity Mr. Clark is a Florida State certified roofing contractor, with license number CCC 1327256 and his license as of May 5, 2008, was "current, active." JV Clark General Contractors, Inc., has a Certificate of Authority as a contractor qualified business. Its license number is QB 0018745, and as of May 5, 2008, the license was "current, active." Mr. Clark is the "qualifying agent" for JV Clark General Contractors, Inc. Mr. Clark is the sole owner and is the registered agent of a business named the Affordable Door Company, Inc. (Affordable Door), which has an address of 2811 South Nova Road, Daytona Beach, Florida. The Department is the state agency charged with providing investigation and prosecutorial services to the Board. On or about August 20, 2004, Affordable Door entered into a written contract with the Sand Dollar Condominium (Sand Dollar). The contract provided that Affordable Door would sell 13 fire doors to Sand Dollar and thereafter would install the doors. In entering into this agreement, Affordable Door was engaged in contracting, as that term is used in Subsection 489.105(6), Florida Statutes. The contract did not include Mr. Clark's license number and did not contain a written notification of the Recovery Fund. The contract required Sand Dollar to pay Affordable Door a total of $13,374.40. On August 28, 2004, Sand Dollar paid $2,769 on the contract. On October 12, 2004, Sand Dollar paid $4,430.40 on the contract, and on February 1, 2005, Sand Dollar paid the balance. On December 6, 2004, Mr. Clark applied to the City of Daytona Beach Shores Building Department for a permit to perform the work contracted by Sand Dollar. The building permit application for the Sand Dollar job was made by JV Clark General Contractors, Inc., and listed an address of 2811 South Nova Road, Daytona Beach, Florida. Mr. Clark's license number, CGC 061010, was provided on the permit application. The permit, number BP2005-41, was issued on December 20, 2004. The permit called for replacing stair doors and frames within Sand Dollar. The permit was signed by Mr. Clark and was notarized. The manufacturer of the doors to be installed required that the doors have their jams filled with grout in order to meet standards set forth in the Daytona Beach Shores Building Code. However, the grouting was not accomplished. As a result, when Daytona Beach Shores Building Inspector Steve Edmunds inspected the job, he found the work to be deficient. Marlene Wuester is the association manager for Sand Dollar. She is responsible for the operation of the 57-unit building. When Ms. Wuester learned that the doors had failed the inspection, she attempted to contact Mr. Clark. She sent a letter dated April 20, 2006, to Mr. Clark at the 2811 South Nova Road address informing him that if he did not cause the doors to meet the required standards that Sand Dollar would hire another contractor to do it, and that Sand Dollar would thereafter seek damages. Mr. Clark did not respond to the letter and did not otherwise respond to Ms. Wuester's efforts to contact him. Ultimately, Sand Dollar paid Flores-Hager and Associates, Inc., $950.00 and General Mechanical Corporation $3,900.00 to bring the doors into compliance with the applicable code. Mr. Clark testified that Affordable Door was managed by Dave Randolph and that generally the company sold doors to other contractors. The contract with Sand Dollar was exceptional and even though Mr. Clark was the permittee, the installer was a man named Jim St. Louis. Mr. Clark asserted that he did not receive communications from Sand Dollar, and therefore could not respond to Sand Dollar, because his business moved from the 2811 South Nova Road address. However, as the licensed contractor, it was Mr. Clark's duty to see that the job was completed in accordance with the applicable building code.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Construction Industry Licensing Board enter an order finding that Jeffrey J. Clark, d/b/a JV Clark General Contractors, Inc., is guilty of Counts I through IV and Count VI, and that licenses numbered CGC 061010, CCC 1327256, and QB 0018745 be suspended until such time as Jeffrey J. Clark, d/b/a JV Clark General Contractors, Inc., pays a fine in the amount of $2,000.00 and makes restitution to the Sand Dollar Condominium Association in the amount of $4,850.00. DONE AND ENTERED this 10th day of July, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 10th day of July, 2008. COPIES FURNISHED: Jeffrey J. Clark JV Clark General Contractors, Inc. 2027 South Ridgewood Avenue Edgewater, Florida 32132 Arthur Barksdale, IV, Esquire Wright, Fulford, Moorhead & Brown, P.A. 145 North Magnolia Avenue Orlando, Florida 32801 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues presented are whether damages resulted to Petitioner's home as a result of Respondent's use of explosives in connection with construction materials mining activities, and, if so, what is the appropriate remedy.
Findings Of Fact By Notice of Hearing entered March 10, 2016, this cause was scheduled for final hearing on May 18, 2016. An Amended Notice of Hearing dated April 20, 2016, re- noticed the hearing for May 18, 2016, changing the location to Lauderdale Lakes, Florida. On May 12, 2016, a second Amended Notice of Hearing also scheduled the hearing to start on May 18, 2016. On May 17, 2016, Petitioner filed a Notice of Filing Her Power of Attorney. At 9:30 a.m., on May 18, 2016, the date and time scheduled for the final hearing in this cause, Respondent's attorney and its witnesses, the court reporter and the undersigned were present. Petitioner did not appear. Petitioner's husband appeared at hearing indicating that he was there to represent Petitioner by Power of Attorney. In administrative proceedings, pro se parties may either be represented by an attorney or a qualified representative. On May 2, 2016, Petitioner's request that her husband represent her as a qualified representative was denied by Order Denying Motion/Request for Leave to be Represented by a Qualified Representative in this Case ("Order"). The Order held Petitioner's husband does not have the "knowledge and experience identified in Florida Administrative Code Rule 28-106.106 to serve as a qualified representative." Petitioner's Renewed Motion/Request for Leave to be Represented by Qualified Representative in this Case was also denied by Order on Petitioner's Renewed Motion, dated May 16, 2016. While addressing preliminary matters prior to starting the hearing, the undersigned held that the Power of Attorney could not substitute for rule 28-106.106. Therefore, Petitioner's husband was prohibited from representing Petitioner at the hearing due to Petitioner's husband not meeting the qualified representative standards. After waiting for Petitioner to appear, the undersigned convened the hearing. At 10:13 a.m., Petitioner still had not appeared. The final hearing was adjourned.
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.
The Issue The issue in the case is whether the Petitioner is entitled to credit for answers, which the Respondent scored as incorrect, to three questions on the February 2003 General Contractor Construction Examination.
Findings Of Fact The Petitioner took the General Contractor Construction Examination on February 11, 2003. After being notified that he did not pass the test, the Petitioner requested a review of the test and his responses. Following the informal review of his examination answers, the Respondent awarded no further credit and the Petitioner requested an administrative hearing. The Petitioner initially challenged the scoring of his answers to 12 examination questions. The challenged examination questions are identified as Business and Finance AM questions 6, 12, 33, and 40, Business and Finance PM questions 2 and 25, and General Contract Administration questions 21, 22, 30, 34, 48, and 59. At the hearing, the Petitioner withdrew his challenges to Business and Finance AM questions 6, 12, and 33, and maintained his challenge to Business and Finance AM question 40. Business and Finance AM question 40 requires an examination candidate to identify the proper response, according to a specified reference source, to the hypothetical discovery of hidden asbestos revealed during a demolition process. The correct answer to Business and Finance AM question 40 requires a contractor to stop working and notify the owner and architect in writing. The answer is directly referenced in the text of "General Conditions of Contract," a book that the Petitioner was permitted to use during the examination. The Petitioner's answer to Business and Finance AM question 40 was to stop work and notify the owner by telephone. The evidence fails to establish that the Petitioner's response to Business and Finance AM question 40 is correct or that the Petitioner is otherwise entitled to credit for his answer. At the hearing, the Petitioner withdrew his challenges to Business and Finance PM questions 2 and 25. The Petitioner also withdrew his challenges to General Contract Administration questions 30, 34, 48, and 59, and maintained his challenge to General Contract Administration questions 21 and 22. General Contract Administration question 21 requires an examination candidate to calculate the workday upon which concrete footers could be poured following completion and inspection of specified preparatory work. According to the question, no inspection or other work occurs on Saturdays or Sundays and an inspection would occur on the workday after the footing preparation was completed. The question provided that the specified preparatory work would begin on a Monday and would take seven days to complete. An inspection would occur on the eighth workday. The correct answer to General Contract Administration question 21 was that the footers could be poured on the ninth workday. The Petitioner's answer to General Contract Administration question 21 was that the footers could be poured on the eleventh day. The Petitioner incorrectly included the weekend in his calculation of workdays. The evidence fails to establish that the Petitioner's response to General Contract Administration question 21 is correct or that the Petitioner is otherwise entitled to credit for his answer. General Contract Administration question 22 requires an examination candidate to calculate the total linear feet of rebar needed to reinforce a footer of specified length and construction. The calculation of the total linear feet of rebar as performed at the hearing by the Respondent's witness, William H. Palm (qualified as an expert in General Contracting), is accepted as correct. Based on the specifications given in the question, Mr. Palm calculated that there would be eight 20-foot bars with the eight bars overlapping each other by 12.5 inches at each of seven overlaps. Multiplying the seven overlaps by 12.5 inches results in 7.29 feet of total overlap. Adding the total overlapping segments to the 160-foot total and multiplying the results by the four continuous bars results in an answer to General Contract Administration question 22 of 669.16 feet. The closest possible answer from the multiple choices listed in the examination question is 670 linear feet. The Petitioner's answer to General Contract Administration question 22 was that 666 linear feet of rebar would be required. The evidence fails to establish that the Petitioner's response to General Contract Administration question 22 is correct or that the Petitioner is otherwise entitled to credit for his answer. The Petitioner also challenges as inappropriate and unfair, the use of "general trade knowledge" as a reference to correct answers. The evidence presented by the Petitioner fails to establish that the use of "general trade knowledge" is inappropriate or unfair. General trade knowledge is general or common knowledge among professionals in the trade. The list of appropriate references available to all examination candidates states that some questions will "be based on field experience and knowledge of trade practices."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a Final Order dismissing the Petitioner's challenge to the grading of the Petitioner's responses to the February 2003 General Contractor Construction Examination. DONE AND ENTERED this 12th day of December, 2003, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 December, 2003. COPIES FURNISHED: Carl Malavenda 15811 Gulf Boulevard Redington Beach, Florida 33703-1733 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Nancy Campiglia, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Tim Vaccaro, Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondents committed the violations alleged in the Notice to Show Cause.
Findings Of Fact Sandy Key Properties, Ltd., is the developer of Sandy Key, a condominium (Sandy Key). Thomas S. O'Rorke and Marion L. Bradford are general partners of Sandy Key Properties, Ltd. Sandy Key was meant to be a 244 condominium project consisting of four buildings with 61 units each. The condominium project was to be built in four phases, with each phase representing one building. Only three phases of the condominium project were built, however, consisting of 183 units. The ninety-second unit was sold on January 19, 1984. Control of the Owners Association Until September 1, 1984, the Respondents elected a majority of the board of directors of the Sandy Key Owners Association (Association). Up until then the board consisted of three directors: Thomas S. O'Rorke, Marion L. Bradford and Richard Douglas, who was a unit owner and Respondent's employee. On September 1, 1984, the Association held its annual meeting. At the meeting, the unit owners decided to increase the membership of the board of directors to five. The three sitting directors were reelected and two unit owners were added to the board. The Respondents did not vote their units at the election. On March 9, 1985, Mr. Douglas was replaced on the board by Bob Jackson. Mr. Douglas no longer worked for Respondents and Mr. Jackson was taking over Mr. Douglas' duties as Respondent's employee. During the time he served on the board, Mr. Douglas followed the orders given by Mr. O'Rorke. At the annual meeting held on September 14, 1985, the board's membership was increased from five to seven. The five sitting directors were reelected and two more unit owners were added. Respondents voted their units. On March 31, 1986, Mr. Jackson resigned from the board and was replaced by Mr. Douglas. At the annual meeting held on September 13, 1986, Mr. Bradford stated "that he and Mr. O'Rorke were not nominated to the board by the nominating committee since they automatically become board, members because they are the developers of Sandy Key." Petitioner's Composite Exhibit 1; Minutes of September 13, 1986 meeting. Five unit owners were also elected to the board. Two of the unit owners, Mr. Lassen and Mr. Putnam were also limited partners of Sandy Key Properties, Ltd., and Mr. Putnam was the developer's CPA. Respondents voted their units at the meeting. At a recall election held on May 2, 1987, Mr. O'Rorke was reelected and six new directors were elected. The six new directors were unrelated to the Respondents. Mr. O'Rorke was President of the Association from March 1983 to September 1985 and from September 1986 to May 1987. For those same periods, Mr. Bradford was Vice-President. From September 1985 to September 1986, Mr. Bradford was President and Mr. O'Rorke was Vice-President. Throughout the period beginning in 1983 and ending on May 2, 1987, Mr. O'Rorke and Mr. Bradford controlled the Association. Even though the majority of unit owners were allowed to elect the board of directors, Mr. O'Rorke asserted on numerous occasions that the developers were still in control of the Association. This assertion was based on Mr. O'Rorke's belief that the applicable law allowed him to retain control of the Association because he planned to build Phase IV of the project consisting of 61 units. The nondeveloper unit owners acquiesced in the assertion of control by Respondents until May 2, 1987. Until then, the unit owners believed that Respondents were in control and everyone acted accordingly. Prior to May 2, 1987, Respondents never relinquished control of the Association and the unit owners never accepted control of the Association. Up to the date of the hearing, Respondents had not delivered to the Association all the items required to be delivered by Section 718.301, Florida Statutes. One of the items Respondents never delivered is the review of the Association's financial records by a Certified Public Accountant required by Section 718.301(4)(c), Florida Statutes, and Rule 7D-23.003, Florida Administrative Code. Guarantee and Assessments At the hearing, the parties stipulated that the initial "guarantee period" ended on June 30, 1983. The "guarantee period" is that period of time, pursuant to Section 718.116(8)(a)2., Florida Statutes, wherein the developer obligates himself to pay any amount of common expenses which exceeds the assessments for common expenses imposed on other unit owners. In return for the guarantee, the developer does not have to pay assessments on the units it owns. On June 30, 1983, the Association reserve accounts were underfunded by $1,564.05. After June 30, 1983, Respondents did not pay assessments on developer- owned units as required of other unit owners. At the hearing, the parties agreed to stipulate to the amount of assessments Respondent should have paid from June 30, 1983, to December 16, 1986, and to file the stipulation after the hearing. The parties, however, were unable to reach agreement and a stipulation was not filed. The disagreement between the parties is over whether the assessment liability is $91,141.48, as asserted by Respondents, or $93,231.86, as asserted by Petitioner. From the evidence presented at the hearing, the assessments that should have been paid by Respondents from June 30, 1983, to December 16, 1986 total $91,141.48. For assessments paid more than ten days late, interest in the amount of 12 percent per annum from the date the assessment was due should also have been paid. Also, assessments not paid within ten days of the date due are subject to a $10 late fee. Petitioner's Exhibit 2, at p.10. Even though the Respondents did not make assessment payments to the Association in a formal and timely manner, Respondents continued to pay for Association expenses on a sporadic and as needed basis. From the evidence presented, however, one cannot determine the amount of these payments nor how to properly offset them against the assessments that Respondents failed to timely pay and against the interest and late fees that accrue to each unpaid assessment. As of December 16, 1986, the Association's reserve accounts were underfunded by $26,271.61. Financial Reports, Annual Meetings The Association did not mail or deliver to all unit owners a financial report for the year 1985 within 60 days following the end of the year. The Association did not call or hold an annual meeting of unit owners for the year 1983. The Association did not mail copies of proposed budgets and budget meeting notices, and did not hold budget meetings for the years 1984 and 1985. The Association failed to maintain its records according to good accounting practices prior to August 1986. During 1986, the Association imposed and collected a $50 per unit special assessment for shrubbery replacement. This assessment was first approved by the unit owners. Each unit owner's share of the common elements is 0.52 percent for a two-bedroom unit and 0.6208 1/3 percent for a three-bedroom unit.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondents be fined $100 for violating Section 718.115(2), Florida Statutes; Respondents be fined $2,500 for violating Section 718.116, Florida Statutes; Respondents be fined $1,000 for violating Section 718.112(2)(f) , Florida Statutes; Respondents be fined $1,000 for violating Section 718.111(13) , Florida Statutes; Respondents be fined $500 for violating Section 718.112(2)(d) , Florida Statutes; Respondents be fined $1,000 for the violations of Section 718.112(2)(e) Florida Statutes; Respondents be fined $500 for violating Section 718.111(12)(,a)11., Florida Statutes; Respondents be fined $2,500 for violating Section 718.301, Florida Statutes; and Respondents be ordered to have prepared the review of financial records required by Section 718.301(4)(c), Florida Statutes. DONE and ENTERED this 15th day of March, 1989, in Tallahassee, Leon County, Florida. JOSE A. DIEZ-ARGUELLES 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 15th day of March 1989. APPENDIX Rulings on Petitioner's Proposed Findings of Fact 1-4. Accepted. 5-6. Rejected as recitation of testimony. Not a finding of fact. Accepted. 9-11. Not a finding of fact. Accepted. Accepted, except portions that are argument. Also, some of these proposed facts are subordinate to facts found. Accepted generally. Not a finding of fact. 16-19. Accepted generally. Not a finding of fact. Accepted generally. Accepted. 23-32. Accepted generally; subordinate to facts found. Rulings on Respondents Proposed Findings of Fact Rejected as not supported by the weight of the evidence. First sentence accepted. Second and third sentences rejected. While the evidence establishes that Respondents paid some amounts, it cannot be determined what amounts were paid for association expenses. First sentence accepted, except as to phrase that unit owners had control. Second sentence rejected. Rejected. Accepted. First sentence accepted. Second sentence rejected. Accepted. Rejected. First sentence accepted. Second sentence rejected; the turnover review would help Respondents establish any offsets they may be entitled to. Accepted. Rulings on Intervenor's Proposed Findings of Fact 1-2. Accepted. 3. Not a finding of fact. 4-5. Accepted generally. 6-7. Rejected as argument. 8. Accepted. 9-11. Not a finding of fact. 12-13. Accepted. 14. Argument. 15-16. Accepted generally. 17-19. Not a finding of fact. 20. Accepted. 21-23. Not a finding of fact. 24 Accepted. Accepted but subordinate to facts found. First sentence is not a finding of fact. Second sentence accepted. 27-34. Not findings of fact. 35-37. Accepted but subordinate to facts found. COPIES FURNISHED: Karl M. Scheuerman, Esquire Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Thurston A. Shell, Esquire Post Office Box 1831 Pensacola, Florida 3259 Steven E. Quinnell, Esquire and Gregory D. Smith, Esquire Post Office Drawer 1832 Pensacola, Florida 32598 E. James Kearney, Director Division of Florida Land Sales, Condominiums and Mobile Homes 725 South Bronough Street Tallahassee, Florida 32399-1007 Van B. Poole, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
Findings Of Fact Petitioner McGowan was dismissed from his position as State Trooper by Respondent by letter dated 31 January 1978 (Composite Exhibit 1) which recites that the action in dismissing Petitioner is based upon Petitioner's violation of General Order No. 43 2.1C, Insubordination, third offense, and Rule 22A- 7.10(7)(a) Florida Administrative Code. McGowan was advised of his right to file a grievance pursuant to the agreement between Florida and the PBA or appeal the dismissal to the Career Service System. McGowan opted for the former and during the course of that hearing raised the issue before the Arbitrator that G.O.'s 40 and 43 were rules and invalid because not promulgated as required by Chapter 120 Florida Statutes. Respondent contested the jurisdiction of the Arbitrator to resolve this question, the parties stipulated that this issue be submitted to DOAH for determination, and the Petition here involved was filed. G.O. 40 relates to physical fitness of members of the Florida Highway Patrol and, after pointing out that weight control is an important part of physical fitness, provides in pertinent part: Members shall maintain control of their weight in relation to their height, age, and body build. There are several charts and tables available indicating the ideal or desirable weight based on the above factors. The maximum allowable weight by height for all ages and body builds for the members of the Florida Highway Patrol shall be those used by the Federal Bureau of Investigation. See G.O. 41, Appendix A. Exception to the maximum limits may be made for members who have a large amount of muscle weight (without excessive fat) and a physician certifies that the individual is not overweight due to excess fat. Failure to comply with the maximum weight limits will result in a low rating for personal appearance on the employee evaluation form and disciplinary action may be taken for violation of this regulation, as provided in G.O. 43. G.O. 43 contains guidelines for establishing standards of disciplinary actions and for appeals to the Career Service Commission. Guidelines for disciplinary actions are contained in Section 2.1 of G.O. 43 which provides in pertinent part: C. Guidelines: The following guidelines are established to insure that all supervisors are being reasonably consistent in taking disciplinary actions against employees involved in similar situations. These guidelines may be expanded or modified from time to time to meet changing conditions and to make their use more effective. They shall be followed generally; however, it is realized that some of the offenses and deficiencies will be more frequent in some cases, and the supervisor may take or recommend another course of action. In no case will these guidelines be binding on the Department as the disciplinary action it shall take. G.O. 43 goes on to provide in the recommended table of Disciplinary Actions following the above quoted provision that for the third offense of insubordination the offender may be dismissed. By letter dated August 10, 1976 (Composite Exhibit 1) Petitioner was advised by Respondent that he was 60 pounds overweight, that his doctor had stated Petitioner's back problem is greatly aggravated and brought about by the overweight problem, and he was directed to make a concerted effort to reduce weight. By letter dated April 7, 1977 (Composite Exhibit 1), Petitioner was suspended from duty for 8 hours without pay for insubordination based upon failure to lose weight as directed in the August 10 letter. By letter dated September 28, 1977 (Composite Exhibit 1) Petitioner was suspended from duty for 16 hours without pay for insubordination for not conforming to weight regulations. By letter dated January 31, 1977 (Composite Exhibit 1) Petitioner was dismissed for the third offense of Insubordination for not conforming to weight regulations. On one or more occasions petitioner was granted sick leave by reason of back problems associated with being overweight.
Recommendation It is recommended that the Florida Construction Industry Licensing Board dismiss the Respondent from further responsibility to answer to the Administrative Complaint. DONE and ENTERED this 25th day of August, 1976, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry S. Sinoff, Esquire 1010 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 John W. Tanner, Esquire Suite One. 434 N. Halifax Avenue Daytona Beach, Florida 32018
The Issue The Florida Real Estate Commission, herein sometimes called the Plaintiff or the Commission, seeks to revoke or suspend the license of the Defendant, Alan Leavitt, a registered broker, based on allegations that he violated Subsections 475.25(1)(a) and (b), Florida Statutes, as alleged in its administrative complaint filed on December 9, 1976. As is set forth more particularly in its two count administrative complaint, the Commission alleges that the Defendant, while employed as an active broker for Special Realty Corp., acted in his own behalf by advertising and selling several unimproved lots located in Walton County, Florida. It is further alleged that the Defendant made statements in an effort to sell said lots indicating that the lot sizes were 50 feet wide and 150 feet deep, whereas in actuality the lots were only 25 feet wide and 105 feet deep. The complaint alleges that the purchaser consummated the sale for the above referred lots based on the representations made respecting the lot sizes and upon subsequent examination found that the lot sizes were substantially less whereupon the purchaser demanded a refund from Defendant, to no avail. Based thereon, it is alleged that the Defendant is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, etc., in a business transaction in violation of Subsection 475.25(1)(a), Florida Statutes. In count two it is alleged that the Defendant, while registered as an active real estate broker, permitted Isaac Shelomith and Barry Shelomith, registered real estate salesmen, to unlawfully operate as real estate salesmen out of his offices and encouraged them to engage in the sale of lots in Walton County, Florida by means of unscrupulous and unlawful methods involving fraud, and other breaches of trust in violation of Subsection 475.25(1)(a), and (b), Florida Statutes. For all of the foregoing reasons, the complaint alleges that the Defendant is guilty of a course of conduct or practices which show that he is so dishonest and untruthful that the money, property, transactions and rights of investors or those with whom he may sustain a confidential relation, may not safely be entrusted to him, in violation of Subsection 475.25(3), Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor, the pleadings and the admissions contained therein including the arguments of counsel, I make the following: The Defendant, who holds license number 0051095, was a registered real estate broker during times material to the allegations contained in the administrative complaint filed herein. During early October, 1975, Defendant placed in the classified section of the Miami Southside Newspaper, an ad relative to real property located in Walton County, near DeFuniak Springs. On October 14, 1975, Mr. Lionel G. Rush, an unemployed marketing executive, responded to the aforesaid ad to inquire about the advertised lots. He later purchased four lots from the Defendant for the sum of $1,500. The four lots were described in a warranty deed dated October 17, 1975, from Defendant to Lionel G. Rush and Susie M. Rush, his wife. (See Commission's Exhibit #4). Mr. Rush stated that the Defendant advised him that each individual lot was 50 feet in width and 150 feet in depth and it was based on these representations that he purchased the four lots described in the above referenced warranty deed. Mr. Rush, after purchasing the lots, investigated the lot sizes, approximately three weeks later by calling the county clerk for Walton County who advised that the lot sizes were approximately 25 by 105 feet each. He thereafter contacted the Defendant who checked to determine the accuracy of the lot sizes and was able to determine that the lot sizes were 25 by 105 feet as Mr. Rush had informed. Mr. Rush indicated that but for the inaccurate lot sizes, he was pleased with the property purchased from the Defendant. Mr. Rush testified that he advised the Defendant that there were in his opinion, several options available to satisfy or otherwise cure his purchase problems. He first suggested that the Defendant refund a portion of his purchase money to reflect the actual lot sizes conveyed or alternatively Defendant deed over to him another four lots to compensate for the alleged inadequacy of the lot sizes. Alan Leavitt, the Defendant herein, acknowledged that he sold four lots to Mr. Lionel Rush and his wife in Country Club Heights in Ft. Walton Beach. He denied that the lot sizes were recorded by him or upon his direction as the description is now reflected on the warranty deed entered herein. (See Exhibit 4). Defendant testified that after selling the lots to the Rushes, he received a phone call approximately three weeks later from Mr. Rush complaining about the lot sizes. Mr. Rush expressed his desire to get a refund of the purchase money paid or to seek some other restitution. Defendant checked into the matter and was able to determine that the lot sizes were in fact 105 feet by 100 feet. When Defendant was unable to resolve the matter with the Rushes, he offered to return their money back and in fact purchased a money order for the full amount of the purchase price and agreed to absorb all incidental costs connected with the purchase of the property. He stated that the refund offer was made after Mr. Rush tried to bargain over price and in his opinion was trying to get the lots for what was in his opinion, a "ridiculously low price." He testified that when he discerned this, he had no further dealings with Mr. Rush and was only interested in refunding the purchase money price once the Rushes executed a proper deed returning the property to him. He (Defendant) denied ever misrepresenting the lot sizes. Isaac Shelomith, a registered real estate salesman during times material, was called and denied having any employment relationship with the Defendant in any manner during times material to the allegations contained in the administrative complaint filed herein.
Recommendation Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the administrative complaint filed herein be dismissed in its entirety. DONE AND ENTERED this 1st day of June, 1977, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: David B. Javits, Esquire 3628 Northeast Second Avenue Miami, Florida 33137 Alan Leavitt 7100 Fairway Drive Miami Lakes, Florida 33014 Bruce I Kamelhair, Esquire Associate Counsel Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789
