Findings Of Fact The Respondent, Richard M. Woodley has two inactive contracting licenses numbered CB CA 17970 and CB CO 17970, and was so licensed in 1986. The Respondent's license CB CA 17970 qualified "Woodley Builders, Inc." with the Florida Construction Industry Licensing Board. At the time of the hearing, the Respondent was no longer in the construction contracting business as a licensed contractor. With respect to case number 87-2809, on December 15, 1985, the Respondent, on behalf of Woodley Builders, Inc., entered into a contract with Catherine M. Richardson and Jonathan P. Richardson to build a residence in or near Orlando, Florida. The contract price was $90,000, with $20,000 attributable to the land. The contract specified that payments would be made to Woodley Builders, Inc. "in accordance with the disbursement schedule set forth by the construction lender." P. Ex. 1, paragraph 7. Woodley Builders, Inc. also agreed in the contract to furnish to the Richardsons lien waivers as required by the construction lender for disbursements. The construction lender disbursed the following amounts on the indicated dates: $10,200 March 17, 1986 $10,200 March 19, 1986 $17,000 March 27, 1986 $17,000 April 24, 1986 To induce these disbursements, a total of $54,400, the Respondent signed lien waivers stating that all bills for labor and materials used had been paid in full. P. Ex. 5. At the time of signing, the Respondent told the construction lender that he had paid all bills due to that time, but had not paid bills not yet presented. T. 89. Thus, the lien waivers were intended to be a certification of the partial completion and payment for the work billed to the date of the waiver, and a promise to pay other bills for work already completed as such bills were presented. Six claims of liens were filed by subcontractors. The Richardsons hired a lawyer, and the lawyer was able to defend against two of the liens for failure to properly comply with procedures for mechanic's liens. Four liens for the following amounts and for work beginning on the dates indicated ultimately had to be satisfied by the Richardsons: $ 2,851.45 March 19, 1986 $13,462.34 March 7, 1986 $ 1,944.57 April 8, 1986 $ 785.01 April 9, 1986 These liens were for work commenced before the last lien waiver was signed on April 24, 1986. Thus, the Respondent failed to comply with the oral representations he made at the time of signing the lien waivers. The Richardsons were forced to execute a second mortgage in excess of $17,000 to pay off the unpaid liens. The Richardsons terminated the contract with Woodley Builders, Inc. when subcontractors quit working for lack of payment by Woodley Builders, Inc. Some money was obtained from family loans. It cost the Richardsons about $30,000 to have the house finished, which has added about $325 per month to their mortgage obligations. The Respondent and Woodley Builders, Inc. have not paid anything on these liens. Woodley Builders, Inc. filed bankruptcy. The Richardsons sued the Respondent as trustee for Woodley Builders, Inc. and obtained a default judgment for $149,839, which was a judgment of $32,380 in compensatory damages, trebled, plus costs, interest, and attorney's fees. With respect to case number 87-2810, on June 11, 1986, Woodley Builders, Inc. entered into a contract with Tom Jamieson to construct an addition to his residence in Orlando, Florida. The price of the work was $18,500. The contract specified that the price was a cash price, and that draws were to be made according to a schedule stated in the contract. Mr. Jamieson paid to Woodley Builders, Inc. about $11,700 of the contract price. At some time before completion of the addition, the owner, Mr. Jamieson, evidently became dissatisfied with the Respondent's work. Mr. Jamieson was given the Respondent's copy of the contract and refused to return it to the Respondent. Mr. Jamieson then owed the Respondent a draw of $3500, but refused to give it to him, and refused to have it put in escrow for the payment of subcontractors. The date that this occurred is not in evidence. T. 35-36, 39. Since Mr. Jamieson had taken back the contract, the Respondent thought that he (the Respondent) no longer had any legal proof of the contract (either scope of work or amount due), and thus had no contract to complete the work. He also did not receive the draw that was due. The Respondent thus ceased work on the addition for fear that he would not be paid without a copy of his contract. T. 36-37. The Respondent offered to complete the work. T. 51. The drywall contractor, Rick's Drywall, Inc., filed a lien for $465 for work done from August 12, 1986 and August 20, 1986. The Respondent would have paid this lien had Mr. Jamieson not terminated the contract and refused to give the Respondent a draw still due of $3500. T. 49-50. There may be a claim for unpaid electrical work in July, 1986, see P. Ex. 15, but it is impossible to tell if this occurred before or after Mr. Jamieson terminated the contract, or whether the Respondent had received draw money that should have paid this claim. The only evidence is that the Respondent had an agreement with the electrical subcontractor to pay that subcontractor at the time of the final draw, a draw never received as discussed above. T. 53. P. Ex. 11 is insufficient evidence that there were unpaid claims for roof trusses. Moreover, it cannot be determined whether the Respondent received a draw before contract termination which should have been used to pay for roof trusses. The Respondent had been a contractor for eight years before he began to have financial difficulties resulting in the problems with the Richardson's residence. There is no evidence of any prior discipline.
Recommendation It is recommended that the Construction Industry Licensing Board enter its final order finding in case number 87-2809 that the Respondent, Richard M. Woodley, violated sections 489.129(1)(m), 489.129(1)(j), and 489.119, Fla. Stat. (1986), misconduct in contracting by diversion of funds, and failure to supervise as a qualifying agent, and in case number 87-2810, dismissing the administrative complaint for failure of proof by clear and convincing evidence. It is further recommended for the violation set forth above that the license of the Respondent be suspended for one year. DONE and ENTERED this 22nd day of July, 1988. WILLIAM C. SHERRILL, JR. 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 22nd day of July, 1988. COPIES FURNISHED: Richard M. Woodley 2521 Tuscaloosa Trail Maitland, Florida 32751 David Bryant, Esquire 1107 East Jackson, Suite 104 Tampa, Florida 33602 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Nonroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
The Issue The issue in this case is whether the Florida Commission on Human Relations should grant the Petition for Relief alleging that the Respondent discriminated against the Petitioner on the basis of his marital status, in violation of Section 760.10, Fla. Stat. (1995).
Findings Of Fact The Respondent, Shaker Lakes Apartments Company d/b/a Seasons of Tampa, Limited, is a property management company whose principal place of business is in Cuyahoga County, Ohio. The Respondent owns real property or conducts business in Florida and has 15 or more employees. The Petitioner, Jerry Dolinger, was hired by the Respondent on or about August 14, 1989, as a maintenance supervisor at a starting pay of $12,000 a year. On or about May 1, 1991, the Petitioner was promoted to district manager at an annual salary of $20,541.57 ($395.03 per week), plus hospitalization benefits and the use of a company car. By the end of 1992, the Petitioner was demoted to maintenance supervisor, but his salary and benefits remained the same. The Petitioner's wife, Karen Dolinger, also was employed by the Respondent, as property manager for Seasons of Tampa, Limited. On or about April 1, 1993, the Petitioner's wife resigned due to disputes with and conduct of the Respondent's vice-president of operations, Jacqueline McCullough. Upon her resignation, she distributed a letter to all residents of the apartment complex giving the residents information concerning the change in property management and the names, addresses and telephone numbers of the Respondent's management personnel in Ohio. The Respondent did not wish to have the names, addresses and telephone numbers of the Respondent's management personnel in Ohio given to the tenants at Seasons of Tampa. The Respondent wished to have those individuals remain unknown to the tenants so all tenant complaints and similar issues would have to be resolved locally through the property manager and district manager. On or about April 2, 1993, Jacquelyn McCullough telephoned the Petitioner and asked whether he had any knowledge of his wife's letter to the tenants. The Petitioner denied any knowledge and in fact had no such knowledge. She asked if the Petitioner also intended to resign, and the Petitioner answered that he did not. Later on April 2, 1993, the Respondent terminated the Petitioner's employment. One of the reasons given for the termination--an alleged temporary staff reduction--was a pretext. (Within days of the Petitioner's termination, the Respondent hired someone to take the Petitioner's place as maintenance supervisor.) The other reason--alleged insubordination and disloyalty--was based on the Respondent's belief that the Petitioner knew about and participated in the letter to the tenants. But the only basis for this belief was the Petitioner's marital status. Since there was no evidence to support the Respondent's belief, the basis of the Petitioner's termination was his marital status. The Petitioner was unable to find reemployment until approximately June 11, 1993. However, his new employment was at a salary of only $17,000 a year, a reduction of $68.11 a week. The Petitioner suffered this reduction in salary until November 5, 1993, when he obtain employment at a salary higher than what he earned with the Respondent, together with hospitalization benefits and the use of a company car, for a total of salary loss during this period of $1,430.31. The Petitioner's loss of use of the Respondent's company car from April 2 through November 5, 1993, cost him monetary damages of $295 a month for replacement transportation, or approximately $2,100. (The Affidavit of Petitioner's damages incorrectly multiplies the monthly expense by 31 weeks, resulting in an incorrect alleged total loss of $9,145.) In order to redeem the second mortgage on the Petitioner's home, which went into default as a result of the loss of the Petitioner's salary, the Petitioner and his wife had to refinance, at a cost of $2,033.02. The Petitioner also claims damages due to the loss of life and health and hospitalization insurance from April 2 through November 5, 1993. But the Petitioner's testimony was that he could not afford to replace those insurance coverages, and there was not evidence that he suffered any out-of-pocket uninsured expenses that would have been covered by them. The Petitioner also claims damages for the loss of $3,775 worth of personal items sold to pay necessary living expenses for the period from April 2 through November 5, 1993. But those sums already are accounted for in loss of salary and would result in a double recovery if added to the loss of salary. Based on the Affidavit of Plaintiff's Attorney's Fees, a reasonable attorney fee in this case is $6,492.50. Based on the Certificate of Costs, reasonable costs to be taxed to the Respondent in this case is $178.42.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a final order: finding the Respondent guilty of illegal discrimination on the basis of the Petitioner's marital status; and (2) requiring that the Respondent pay the Petitioner a total of $9,692.03, together with legal interest from November 5, 1993, plus $6,492.50 as a reasonable attorney fee, together with legal interest from May 1, 1996, as affirmative relief from the effects of the illegal practice. DONE and ENTERED this 6th day of June, 1996, 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 6th day of June, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5381 To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the Petitioner's proposed findings of fact: Conclusion of law. 2.-5. Accepted and incorporated to the extent not conclusion of law, subordinate or unnecessary. Accepted and incorporated. Accepted but subordinate and unnecessary. Annual salary rejected as inconsistent with the Affidavit of Petitioner's Damages; otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 9.-10. Accepted but subordinate and unnecessary. 11.-15. Accepted and incorporated. 16. Accepted but subordinate and unnecessary. 17.-23. Accepted and incorporated to the extent not subordinate or unnecessary. Amount of loss rejected as not proven by the evidence; "mental anguish, loss of dignity, and other intangible injuries" rejected as not relevant in this proceeding; otherwise, accepted and incorporated. Accepted and incorporated. COPIES FURNISHED: David E. Davis, Esquire 620 E. Twiggs Street, Suite 305 Tampa, Florida 33602-3929 Jacqueline McCullough Vice President Shaker Lakes Apartments Company 1422 Euclid Avenue, Suite 1146 Cleveland, Ohio 44115-1951 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, Esquire Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Argadys T. Iglesias, hereinafter Respondent, was licensed as a certified general contractor by the Department of Business and Professional Regulation, Construction Industry Licensing Board, hereinafter Petitioner. In February 1991, Petitioner issued Respondent license number CG C052822 and placed the license on an inactive status. Effective February 23, 1993, Respondent's license status was changed to active; and Petitioner became the qualifying agent for Miami Construction Enterprises, Inc., hereinafter Miami Construction. Since in or around August 1994, Respondent's license has been on a delinquent status. As qualifier, Miami Construction authorized Respondent to act for it in matters concerning contracting and to supervise construction undertaken by it. At all times material hereto, Respondent was the primary qualifying agent for Miami Construction. At no time material hereto did Respondent have ownership interest in Miami Construction. Juan Carlos Rodriguez was the sole owner, having 100 per cent interest in Miami Construction, and was its president. At no time material hereto was Respondent a signatory on any bank account maintained by Miami Construction. At all times material hereto, Respondent was employed full-time with Dade County, Florida, as a housing inspector. On or about May 28, 1993, Miami Construction entered into a written contract with Juan Marulanda for repair work on a home at a cost of $14,520. The home, located at 8951 Hawthorne Avenue, Surfside, Dade County, Florida, was owned by Mr. Marulanda and his wife, Mildred Marulanda, and had been damaged by Hurricane Andrew. Juan Carlos Rodriguez entered into the contract on behalf of Miami Construction. Mr. Rodriguez represented to Mr. Marulanda that Miami Construction was licensed and insured. On or about July 20, 1993, after demolition of the existing damage to the home, building permit no. 24326 was issued by the Town of Surfside for the repair work. On or about August 20, 1993, Mr. Marulanda entered into a second written contract with Miami Construction for work on his home at a cost of $51,080. This second contract included change orders, some of which Respondent was unaware of. It is inferred and a finding is made that the contract dated August 20, 1993, hereinafter the second contract, superseded the contract dated May 28, 1993. No subsequent building permit was issued for the work under the second contract. It is inferred and a finding is made that building permit no. 24326 also covered work performed in accordance with the second contract. Miami Construction performed the work on Mr. Marulanda's home under Respondent's supervision. At three different times during the construction on his home, Mr. Marulanda observed Respondent examining the work being performed. During one of Respondent's visits, Mr. Rodriguez introduced Mr. Marulanda to Respondent, as the person who was in charge of the construction. The Marulandas paid for part of the construction being performed on their home.3 In addition to performing work on the Marulandas' home, Miami Construction performed work on Mr. Marulanda's business without the knowledge of Respondent. At some point during the construction on his home, Mr. Marulanda became dissatisfied with the work being performed. On December 2, 1993, Mr. Marulanda informed the Town of Surfside that he wanted to cancel building permit no. 24326 based upon "Irreconcilible [sic] differences" and that he wanted an owner's building permit. On December 2, 1993, the Town of Surfside issued Mr. Marulanda an owner's building permit for "nonstructural" work. Respondent did not receive notification of Mr. Marulanda's cancellation of the building permit even though Mr. Marulanda notified Miami Construction. When Respondent eventually became aware of the building permit's cancellation, he considered Mr. Marulanda's action as firing him and Miami Construction from the job. Mr. Marulanda obtained the services of an attorney and in 1994 filed a civil complaint in the Eleventh Judicial Circuit, Dade County, Florida, Case No. 94-3201-CA-01, against Miami Construction and Mr. Rodriguez for alleged violations of the second contract. Respondent was not named as a defendant. The complaint alleged, among other things, breach of agreement, unjust enrichment, fraud, and conversion. In or around February 1994, after operating for approximately one year, Miami Construction ceased doing business. On February 25, 1994, a copy of the complaint was served upon Respondent, through service of process, as a director of Miami Construction. No direct evidence was presented at hearing to show that Respondent was a director of Miami Construction.4 Respondent did not defend the lawsuit. Respondent believed that, since he was not named in the lawsuit, he could not defend it without the cooperation of Mr. Rodriguez, which he did not have. Additionally, after having communicated with the attorney representing Mr. Marulanda in the court action, Respondent believed erroneously that only Miami Construction and Mr. Rodriguez would be affected by the outcome of the court case. On October 12, 1994, Mr. Marulanda obtained a default final judgment against Mr. Rodriguez and Miami Construction from the Circuit Court.5 The default final judgment ordered the following: That a final judgment be and the same is hereby entered in favor of PLAINTIFF and against the DEFENDANTS, jointly and severally, in the amount of $43,304.06. That PLAINTIFF additionally recover from said DEFENDANT [sic] costs herein taxed in the sum of $197.00. That PLAINTIFF recover from said DEFENDANT [sic] attorney's fees herein taxed in the sum of $3,012.50. for all of which let execution issue. The default final judgment does not show that a copy of it was furnished to Respondent, but does show that a copy was furnished to the named defendants, Mr. Rodriguez and Miami Construction. The default final judgment has not been set-aside, vacated, appealed, satisfied, or discharged in bankruptcy in whole or in part. Respondent has not made a single payment toward satisfaction of the default final judgment or offered to negotiate a payment plan.6 Since in or around August 1994, Respondent's license has been on a delinquent status. Respondent is no longer a housing inspector with Dade County; however, he remains employed with Dade County. Respondent is required to have his license to continue his employment with Dade County in his present position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Construction Industry Licensing Board enter a final order: Finding that Argadys T. Iglesias violated Subsection 489.129(1)(r), Florida Statutes.; Imposing a $1,000 administrative fine; Requiring Argadys T. Iglesias to pay restitution to Juan Marulanda for the monetary damages awarded in the default final judgment entered in the Eleventh Judicial Circuit, Dade County, Florida, Case No. 94-3201-CA-01 on October 12, 1994, or, in the alternative, to provide proof of satisfaction of the said default final judgment; and Requiring Argadys T. Iglesias to pay all reasonable costs of investigation and prosecution associated with the Department of Business and Professional Regulation's investigation and prosecution of the charges set forth in the Administrative Complaint.9 DONE AND ENTERED this 5th day of November, 1997, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 5th day of November, 1997.
The Issue Whether Petitioners' claim for recovery from the Construction Industries Recovery Fund should be approved.
Findings Of Fact At all times material hereto, Respondent Sclease was a licensed certified general contractor. In 1995, Petitioners and Respondent Sclease entered into a contract for Respondent Sclease to make repairs to Petitioners’ home, which was damaged by Hurricane Andrew. The repair work was completed in May 1996, and a certificate of completion was issued on May 16, 1996. Petitioners subsequently discovered that problems existed with the work and filed suit in the Circuit Court of Dade County, Florida, Eleventh Judicial Circuit, against Respondent Sclease and the company that he had qualified. A non-jury trial was held and all parties were represented by counsel. The court’s final judgment was entered on January 7, 1999, and filed on January 13, 1999. The findings of the court were in pertinent part as follows: The claim in the complaint is that Defendants [Sclease Construction Company, Inc., a dissolved Florida corporation, and Louis Sclease] breached the contract to make repairs to the plaintiffs’ [Lamont J. Silas and Claudette Silas] home after Hurricane Andrew. The defective construction work caused substantial damage to the home. . . . It is undisputed that the parties entered into a contract in June, 1995 under which Defendants promised to make repairs to the property. The total contract price, as subsequently amended, was $45,758.37, all of which has been paid to defendants. In April, 1996, Defendants represented that the work was completed. It is also undisputed that within six (6) months of the completion of the construction work, several rooms of the home had evidence of mildew on the walls and other damage, including damage caused by water. The property, which is income producing rental property, was, by the Fall of 1996, uninhabitable. Plaintiffs lost their tenant and could not re-rent the premises for eight (8) months until the damage was repaired. The Defendant [sic] based its [sic] defense upon allegations that the tenants caused the damage from growing marijuana plants in the residence. Plaintiff’s [sic] evidence clearly showed defects in the workmanship of Defendant’s [sic] installation of a shower pan as well as defective installation of tiles. Plaintiff’s [sic] expert further testified that he had inspected prior homes wherein marijuana was grown and the instant residence bore no evidence which should have otherwise existed if marijuana had, in fact, been growing (e.g. moisture all over the walls; black ceilings, etc.). Defendant [sic] did not provide any competent evidence showing existence of growing marijuana and provided no evidence concerning faulty tiles. Clearly, the Defendant [sic] substantially breached his contract with Plaintiff [sic] and Plaintiff [sic] is entitled to recover its reasonable damages which the Court determines as follows: Cost to repair $30,364.93 [Amount paid to another contractor to fix the home] Loss of rental income $ 7,200.00 Total Damages $37,564.93 Plaintiffs are entitled to prejudgment interest in the amount of $5,634.74. Therefore, judgment is entered . . . in the amount of $43,199.67 . . . . Petitioners had insurance on the home. Prior to the final judgment, they received $9,583.22 from their insurance company. No insurance proceeds were received subsequent to the final judgment and no claim with their insurance company is pending. On April 18, 2000, the Department of Business and Professional Regulation (Department) filed an Administrative Complaint against Respondent Sclease before the Board. The Administrative Complaint alleged, among other things, that on or about January 13, 1999, Petitioners had obtained a final judgment against Respondent Sclease, relating to the practice of contracting, in the amount of $43,199.67; that no payment had been made nor had an agreement been made to satisfy the judgment; and that Respondent Sclease had violated Subsection 489.129(1)(q), Florida Statutes. By Final Order dated January 3, 2001, and filed January 12, 2001, the Board found, among other things, that the facts of the Administrative Complaint were not contested and that Respondent Sclease was represented by counsel before the Board. The Board concluded, among other things, in the Final Order that the allegations of fact and conclusions of law in the Administrative Complaint were adopted as the Board’s findings of fact and conclusions of law; and that the violations warranted disciplinary action. Finally, the Board ordered in the Final Order, among other things, that Respondent Sclease either pay restitution to Petitioners in the amount of $43,199.67 or submit proof that he had satisfied the civil judgment obtained by Petitioners. Petitioners filed a claim with the Recovery Fund. No dispute exists as to the timeliness of Petitioners’ claim. By Order dated January 3, 2001, which was the same date as the Board's Final Order as to restitution, and filed January 4, 2001, the Recovery Fund Committee and the Board ordered, among other things, that Petitioners had satisfied all the requirements for payment from the Recovery Fund and that their claim was granted in the maximum amount of $25,000.00. In February 2001, Respondent Sclease filed an amended request for a formal hearing challenging the Board's order of payment from the Recovery Fund, which challenge included the contention that he had not violated Section 489.129, Florida Statutes, as required by Section 489.141, Florida Statutes, for a claim to be considered. At the time of hearing on the instant case, the final judgment was not satisfied by Respondent Sclease. There is no dispute that Petitioners earnestly attempted to execute on the final judgment but had been unsuccessful. The evidence presented at hearing on the instant case established that the installation of the shower pan was not in accordance with the requirements of the 1994 South Florida Building Code (Building Code), was defectively installed, and was the cause of water damage to the home. Respondent Sclease admitted that the purpose of the Building Code, regarding the installation of the shower pan, was to prevent water from leaking out of the shower. The failure to install the shower pan in accordance with the Building Code was willful. Also, the evidence presented at hearing on the instant case established that insulation was not placed on all of the exterior walls of the home, which was required by the Building Code, and that such failure was a violation of the Building Code. Respondent Sclease admitted that the failure to put insulation on the exterior walls would be a violation of the Building Code. The failure to put insulation on the exterior walls in violation of the Building Code was willful. Even though a Certificate of Completion was issued, the evidence presented at hearing on the instant case does not support a finding that the work completed by Respondent Sclease was in accordance with the Building Code. Additionally, the evidence presented at hearing on the instant case established that Respondent Sclease failed, in accordance with the Building Code, to pull all the proper permits for the work performed. The failure to pull the proper permits was willful.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Construction Industry Licensing Board, Construction Industries Recovery Fund enter an order approving the claim of Lamont Silas and Claudette Silas against the Construction Industries Recovery Fund and granting them the maximum allowable recovery amount of $25,000.00. DONE AND ENTERED this 4th day of December, 2002, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 4th day of December, 2002.
The Issue By its Administrative Complaint filed on January 15, 1985, the Department of Professional Regulation charged Respondent with violations of Section 489.129(1)(h)(k) and (m) Florida Statutes, relating to diversion of funds, abandonment of a construction project and gross negligence, incompetency or misconduct. The issue in this proceeding is whether any violation occurred and, if so, what disciplinary action should be taken. The Respondent generally denies the charges. At the hearing, the Petitioner presented two witnesses: Don Riordan, the home-owner; and Stephen Douglas Gates, an employee of Brooks Glass Company who did an estimate of cost of completion for the project. Four Petitioner's exhibits were admitted without objection: a check for payment by Don Riordan to A1 Ruocco, the Brooks Glass estimate, letter from William Bambach to A1 Ruocco and letter from Bob Bambach to Donald Riordan. A fifth exhibit was withdrawn. The Respondent testified on his own behalf and presented no other witnesses. His eight exhibits included the contract and a series of letters between himself and Robert Bambach. At the outset of the hearing, Petitioner moved for leave to file the testimony of Robert Bambach at a later date, due to unsuccessful attempts to serve a subpoena. The Respondent objected and the motion was denied. Petitioner waited until two days before the hearing to attempt to serve the prospective witness even though the hearing had been scheduled since June and the location of the hearing had been established for two weeks. Petitioner filed its Proposed Recommended Order on November 1, 1985; none was filed by Respondent. The proposed findings of fact have been primarily adopted herein but are addressed more specifically in Appendix A, attached to this order.
Findings Of Fact The facts in this case are virtually uncontroverted, with the exception of the months and sequences of some events. At all times material to the Administrative Complaint, Respondent was a registered building contractor holding license number RB0030112, which license qualified River's Edge Construction Company, Inc., Melbourne, Florida. On March 11, 1983 a contract was entered between Albert Ruocco, President, River's Edge Construction Co., Inc. ("Ruocco") and Don Riordan, Jr., ("Riordan") to enclose a balcony with bronze awning windows and bronze tinted glass at Riordan's townhouse residence in Melbourne Beach, Florida. Ruocco and Riordan knew each other socially as Ruocco was a neighbor of Riordan's parents. Ruocco was recommended for the job by Riordan's parents. On March 31, 1983, Riorden paid Ruocco $1300.00 or the $1853.00 contract price. Riordan testified that Ruocco was doing him a favor because it was repair work and the principal amount of money was being paid up front to avoid a cash-flow problem on materials. (T-18). The idea was to get the work done as soon as possible. (T-16). Sometime around May or June 1983, the construction started with removal of existing screening and the installation of an aluminum kick plate and posts to hold the awning window frames. Sometime later the windows were put in for the first time. The actual work on the project was done by a Mr. Bambach, rather than Ruocco. What followed the first installation was a series of misadventures culminating in a lawsuit by Riordan and an $800.00 civil judgment against Ruocco. The work was never completed. The first windows installed were clear glass rather than tinted bronze. Riordan complained to Ruocco and the windows were removed within twenty-four hours. The windows were installed again, this time with film rather than tinted glass and Riordan called Ruocco the next day. Again the windows were removed immediately. Some time passed (by now it was early August) and bronze-tinted windows were installed. However, after a rain storm it became apparent that the installation was faulty, as the structure leaked. The metal strips had been damaged from the several removals. Riordan complained the third time and the windows were removed a third time. They were never replaced. Throughout this period Riordan was dealing with Ruocco, with whom he had the contract and Ruocco was dealing with Bambach, to whom he had given $800.00 as partial payment for the work. Relations between the individuals deteriorated as months passed and the windows were still not finally installed. Riordan called Ruocco about getting the work done and was told that Ruacco was having trouble with his worker. By the end of 1983 Riordan's attorney called Ruocco and said that the money had to be refunded. In the meantime, a stand-off had developed between Ruocco and Bambach, with Ruocco insisting that the work be completed prior to final payment and Bambach insisting that he be paid prior to re- installation of the windows. Bambach had taken the windows to a glass company to be fixed. Bambach alleged in his correspondence that Ruocco did not have the money to pay him, while Ruocco alleged that he tried to meet Bambach to give him the money but Bambach didn't show up. Ruocco testified that he possibly could have installed the windows himself but was trying to get Bambach to complete the job. (T-57). He further testified that he had two other persons look at the job but they wouldn't touch someone else's work. (T-58). Sometime in early 1984 Ruocco was made to understand that Riordan was not interested in waiting any longer for the project to be finished and wanted his money back.
Recommendation On the basis of the foregoing, I recommend that the Respondent be found guilty of misconduct as provided in Subsection 439.129(1)(m) Florida Statutes, and be reprimanded in accordance with Subsection 489.129(1) Florida Statutes. DONE and ORDERED this 12th day of November, 1985, in Tallahassee, Florida. MARY CLARK, 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 12th day of November, 1985. APPENDIX In accordance with Section 120.59(2) Florida Statutes, the following are recommended rulings on proposed findings of facts submitted by Petitioner in this case. The numbered paragraphs below conform to the paragraphs proposed by Petitioner. These findings are incorporated in Recommended Order, paragraph 1. These findings are incorporated in Recommended Order, paragraphs 2 and 6. These finding are incorporated in Recommended Order, paragraph 3. These findings are incorporated in Recommended Order, paragraph 5. These findings are incorporated in Recommended Order, paragraph 5. These findings are incorporated in Recommended Order, paragraph 5. These findings are incorporated in Recommended Order, paragraph 7. The findings related to the estimate of Brooks Glass Company are irrelevant. The estimate was done approximately one and a half years after the contract was entered between Riordan and Ruocco. The witness from Brooks Glass who testified about the estimate could not relate the quality of Brooks' windows to those intended by Ruocco for the project. (T. 41-43). To the extent that these findings are proposed to show the extent to which the project was left uncompleted, the fact that the windows were never re- installed was admitted by Ruocco and is reflected in Recommended Order paragraphs 4 and 5. These findings are incorporated in Recommended Order paragraphs 7 and 8. COPIES FURNISHED: Fred Roche, Seeretary 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 Douglas Beason, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Albert J. Ruocco 604 Citrus Court Melbourne, Florida 32951
The Issue Whether Respondent committed the violations alleged in the Stop Work Order and Second Amended Order of Penalty Assessment and if so, what penalty should be imposed?
Findings Of Fact The Department of Financial Services, Division of Workers' Compensation is the state agency charged with enforcement of workers' compensation compliance pursuant to Chapter 440, Florida Statutes. Respondents Earl Marshall and Justin Marshall were partners in ownership of Marshall and Son Painting Company on June 16, 2006. Respondents were working in the construction industry at Lot 12, Oak Meadows III, Lake City, Florida 32615, on June 16, 2006, for which they received payment. On June 16, 2006, Respondents had not secured the payment of workers' compensation as that term is defined in Chapter 440, Florida Statutes. Respondents do not dispute liability for failure to secure workers' compensation insurance. They contend that the calculation of the penalty to be imposed is inaccurate. Marshall and Son Painting Company came to the attention of the Division through a random site visit by one of its investigators. The Division's investigator, Katina Johnson, requested proof of workers' compensation coverage after observing Earl and Justin Marshall painting a new house. She was informed that Respondents previously held exemptions from workers' compensation coverage that had expired at the end of 2003. Ms. Johnson issued a Stop Work Order and Order of Penalty Assessment on June 16, 2006. She also issued a request to Respondents for written business records, including bank statements for the business, federal tax returns, and copies of checks from their business ledger. Respondents supplied the requested records. On June 21, 2006, the Division issued an Amended Order of Penalty Assessment (Amended Order). The Amended Order imposed a penalty of $53,519.52. Respondents entered into a payment agreement whereby they paid 10 percent of the penalty assessment and agreed to pay the remainder over a 60-month period. Upon execution of the payment agreement, the Division issued an Order of Conditional Release from Stop Work Order. On October 3, 2006, the Division issued a Second Amended Order of Penalty Assessment, reducing the amount of the penalty assessment to $43,649.40. A second Payment Agreement Schedule for Periodic Payments was entered, reducing the amount of the monthly payments to be made by Respondents. Earl Marshall and Justin Marshall have dissolved Marshall and Son Painting Company and have formed a new limited liability company, Marshall and Son Painting, LLC. Each has obtained workers' compensation exemptions under the new business, and are considered to be in compliance with Chapter 440, Florida Statutes. Ms. Johnson's calculation for the penalty assessment was based upon the checks written to Earl Marshall and Justin Marshall (individually) for the period at issue. She did not go back a full three years, but began with January 1, 2004, the point in time that the Marshalls' previous exemptions from workers' compensation coverage expired. Ms. Johnson used the Scopes Manual published by the National Council on Compensation Insurance and assigned occupation code 5474, which is the appropriate code for painting within the construction industry. Ms. Johnson based her final calculations on the amount evidenced by canceled checks payable to Earl Marshall or Justin Marshall, and upon their admission that these amounts represented their salaries as partners in the business. Ms. Johnson multiplied one percent of the payments to Earl Marshall and Justin Marshall for the relevant period by the manual rate assigned to the class code for painting, giving the premium Marshall and Son Painting Company would have paid for workers' compensation insurance. This number was then multiplied by 1.5. The Respondents' dispute with the penalty calculation is that it includes all of the partnership's profits as wages for the purpose of determining the rate of pay for insurance coverage. They contend that the Division should, instead, base the calculations on an industry standard for painters in the Lake City area. While the Respondents believe that the penalty assessment should be based upon a $12 an hour industry standard for painters in the Lake City area, Earl Marshall described the checks paid to Respondents as salary checks. These checks are, quite simply, the only evidence of actual payroll presented to Ms. Johnson in response to her request for records or presented at hearing. The methodology used by Investigator Johnson is mandatory.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a Final Order be entered approving the Stop Work Order and Second Amended Order of Penalty Assessment that assessed a penalty of $43,649.40. DONE AND ENTERED this 17th day of November, 2006, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 17th day of November, 2006. COPIES FURNISHED: Douglas D. Dolan Assistant General Counsel Division of Legal Services Division of Workers' Compensation 200 East Gaines Street Tallahassee, Florida 32399-6502 Jimmy E. Hunt, Esquire 654 Southeast Baya Drive Post Office Box 3006 Lake City, Florida 32056-6800 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Carlos G. Mu?niz, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
Findings Of Fact At all times material hereto, Respondent has been a certified building contractor in the State of Florida, having been issued License No. CB CO24584. At all times material hereto, Respondent was the qualifying agent for Southern Construction Technologies, Inc. In March, 1988, Alfred and Martha Entrekin entered into a contract with Southern Construction Technologies, Inc., whereby they agreed to pay the sum of $178,000 for construction of a custom-built home. Since the Entrekins were unable to qualify for the financing needed for construction, Southern Construction obtained a construction loan on their behalf. Despite delays, construction commenced in May of 1988 and continued through October, when, the closing on the residence took place, subsequent to the issuance of a certificate of occupancy by the Town of Davie. Just prior to the closing, a "punchlist" was prepared by Respondent and the Entrekins. That punchlist, which became part of the closing, contains 24 numbered items. (Due to misnumbering, the punchlist says 25.) Thirteen 0of those items on the copy of the punchlist offered in evidence by the Petitioner have been crossed off that list. Of the remaining 11 items, the evidence at final hearing reveals that some were corrected and some items were not the subject of any evidence offered by either party at the final hearing. Although additional items appear to have been added to the punchlist by the Entrekins sometime after the closing, those items will not be considered in this cause since no evidence was offered to indicate that those items were agreed to by the Respondent at the time of closing and no evidence was presented as to when those items were added to the original punchlist by the Entrekins. At the time of closing, the sum of $1,500 was placed in escrow to ensure completion of the punchlist by Respondent. Respondent performed some of the punchlist work on the day of the closing and continued working on the punchlist items for the next three weeks. On January 11, 1989, the Entrekins' attorney sent a demand letter seeking the release of the funds placed in escrow at the closing. Attached to that demand letter was a list of 16 items allegedly remaining on the punchlist. Some of the items on the new "punchlist" submitted by the Entrekins did not appear on the punchlist agreed to by the parties at the closing. Others did appear on the closing punchlist but had been struck through and initialed by Mrs. Entrekin, assumedly as having been completed, on the copy of the closing punchlist offered by Petitioner as an exhibit in this cause. In response to the demand letter, Respondent authorized the release of the $1,500 in escrow to the Entrekins. Respondent admits that at the time that the money was released to the Entrekins, there were still some repairs needed to the rake tiles on the roof and he had not seeded the backyard. Respondent testified that four rake tiles on the eaves were missing, some were misaligned, and some had not been "mudded" in with mortar, but no broken tiles remained on the roof. He also testified that he had not seeded the backyard because the Entrekins had not yet placed fill in the backyard, an item which Mr. Entrekin admits was his responsibility as provided in the contract between the Entrekins and Southern Construction Technologies, Inc. The only evidence submitted in corroboration of the complaints of the Entrekins consists of several invoices. In March, 1989, the Entrekins obtained an estimate for roof repairs from Warren Roofing, Inc., in the amount of $1,200. That invoice indicates the need to replace 80 broken tiles on the roof, the need to remove and replace approximately 130 rake tiles to be secured with mortar tinted to match (although Donald Warren testified that the tile used is nail-on tile which does not require mortar), and the need to "repair defects" in two rear valley areas. Warren Roofing was never hired to effectuate the repairs for which it had submitted its $1,200 estimate. The extensive work set forth in the estimate in March of 1989 is inconsistent with the roofing inspection which would have taken place prior to the certificate of occupancy issued prior to the closing in October of 1988. The only roofing repair effectuated to the Entrekin house by anyone other than Respondent was work performed by Warren Roofing in July of 1989 repairing a leak around the skylight. Petitioner also offered in evidence two invoices from pool services dated March of 1989. One invoice in the amount of $275 represents the cost of acid washing the pool, and the other invoice is for $230 to "filter pool water." Due to electrical problems, the water in the pool was not filtered for two days during the period of construction of the Entrekin house. No evidence was offered to show that the absence of filtering a pool for two days would require it to be acid washed, and no evidence was offered in support of the services performed or the need for the services represented by the second invoice. Another invoice represents the cost of 20 loads of muck for the backyard at a cost of $600, and $150 to rent a bulldozer. Since the muck for the backyard was the responsibility of the Entrekins, the bulldozer charge accompanying the 20 loads of muck is, in all probability, also the responsibility of the Entrekins. The last invoice submitted in evidence also bears the date of March of 1989 and represents 50 pounds of grass seed, in the amount of $110.50, a cost item which Respondent admits was his responsibility at the time that the escrowed monies were released to the Entrekins.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty of the allegations contained in the Administrative Complaint filed against him and dismissing the Administrative Complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 25th day of January, 1991. LINDA M. RIGOT 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 25th day of January, 1991. COPIES FURNISHED: Charles N. Tetunic, Esquire Becker, Poliakoff & Streitfeld, P.A. Post Office Box 9057 Fort Lauderdale, Florida 33310-9057 Joseph Stephen Sharrow, Esquire Post Office Box 8995 Fort Lauderdale, Florida 33310 Daniel O'Brien Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact Petitioner is the governmental agency responsible for issuing licenses to electrical contractors. Petitioner is also responsible for regulating the practice of electrical contracting on behalf of the state. Respondent is licensed as an electrical contractor. Respondent holds license number ER 0011299. On February 11, 1992, Respondent obtained permit number E92-001706 to perform electrical services in a residence located at 2349 Tinian Avenue, Orlando, Florida 32812 (the "project"). The permit expired on August 12, 1992. On February 11, 1992, Respondent completed the project, telephoned the Orange County Building Department, and requested a "final" inspection for the project. The inspector performed a "rough-in" inspection on February 12, 1992. The project passed the "rough-in" inspection. The inspector did not perform a "final inspection." The inspector determined that the project would not have passed a "final inspection." The inspector did not inform Respondent that he did not perform a "final inspection." The inspector followed routine practice for residential inspections. Respondent did not follow up to make sure that the project passed final inspection. Respondent does not routinely follow up on residential projects to make sure that the final inspection is completed. The project was not a large residential or commercial project. It was a small residential project. Respondent was leaving the state permanently. This was the last project he worked on before leaving the state. No final inspection was completed on the project. It is Respondent's responsibility to make sure that a project passes final inspection. When Respondent completed the project on February 11, 1992, Respondent connected a distributing system to wiring, an apparatus, or fixture without obtaining written permission from an electrical inspector. Respondent left the state, did not perform any other work on the project for 90 days and longer, and did not complete the project by obtaining a final inspection. The owners of the property hired another electrical contractor to obtain the final inspection. The second contractor did not perform any significant work on the project.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of violating Sections 489.533(1)(i) and (p), guilty of violating Section 489.533(1)(r), and imposing no penalty except a letter of guidance. RECOMMENDED this 14th day of August, 1996, in Tallahassee, Florida. DANIEL MANRY, 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 14th day of August, 1996.
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings: Petitioner is the state agency charged with regulating the construction industry in the State of Florida. Respondent was, at all times material hereto, a certified roofing contractor, who was operating under an expired State license number 80-1979-R and a suspended license number RC 0039352, in Miramar, Florida. Respondent engaged in his contracting work through an entity which he owned, Ken and Rick Roofing Company. Mrs. Lucia Servole resides at 6119 S.W. 32nd Street, Miramar, Florida. On March 14, 1987, Mrs. Servole engaged Respondent to remove the old roof from her utility shed and replace it with a new one. Mrs. Adrienne Hines, Mrs. Servole's daughter, executed the construction contract with Respondent to replace the roof on the utility shed and paid for the work. Respondent was paid $225.00 for the repairs. Petitioner conducted a records search of Respondent's licenses which reveals that during all times material hereto, all of Respondent's licenses with Petitioner were suspended or expired. Respondent presented several licenses during the hearing which were either expired or suspended. In this regard, Respondent maintains that his licenses were in effect during the time in question and that his legal counsel had taken care of any problems relative to fines which were imposed by Petitioner. In this regard, Respondent's testimony is not credible in view of his evasive testimony which was in conflict with other documentary evidence presented by Petitioner and his presentation during the hearing of expired licenses which he maintained were current and in good standing. Respondent completed the repairs for Mrs. Servole as he contracted to do. However, upon completion, Mrs. Servole noted that the roof and the utility shed leaked more than it had prior to the repairs. She therefore phoned Respondent to complain about the leaks. Mrs. Servole made repeated calls to Respondent to attempt to resolve this matter and Respondent refused to return all but one of her calls. On that one occasion, Respondent visited Mrs. Servole and maintained that the water was coming in through an open doorway to the shed. The leaks occurred underneath the roof and not through the open doorway as Respondent insists. Mrs. Servole's testimony in that regard is credible and Respondent's contention to the contrary is rejected. In order to stop the leaks, Mrs. Servole engaged the services of another roofing contractor who replaced the roof which Respondent installed. Since that time, Mrs. Servole has had no further leakage problems to the roof of her utility shed. Petitioner imposed an administrative fine of $500.00 against Respondent in Case No. 42963 which he failed to pay. That fine remained outstanding at the time of the hearing herein. Since September, 1987, Respondent has not held an active license as a contractor in good standing with Petitioner. Despite that fact, Respondent entered into a contract with Mrs. Servole (Adrienna Hines) to complete the roofing repair job on the utility shed and did so through the entity Ken and Rick Roofing Company. The letterhead of the contract indicates that Ken and Rick Roofing Company is "licensed and insured, State license number 80-1979-R." Respondent's license number 80-1979-R was expired and his other license (number RC 0039352) was suspended. (Petitioner's exhibit 1) Based on Petitioner's withdrawal of the complaint allegation that Respondent failed to obtain a permit prior to proceeding with construction on the Servole project, no finding is made herein respecting that allegation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Petitioner enter a Final Order revoking the licenses which were issued to Respondent to engage in construction as a contractor. DONE and ORDERED this 13th day of October 1988, 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 13th day of October, 1988.
Findings Of Fact Respondent, Michael N. Kuvin (Kuvin), was at all times material hereto a certified general contractor in the State of Florida, having been issued license numbers CG CB07136 and CG C007136. Kuvin, under license number CG CB07136, was the qualifying agent for Gerald S. Krigel Corporation (Krigel Corp.). During the years 1904 and 1985, Krigel Corp. acted as the general contractor for Lomar Communities Inc. (Lomar), the owner/developer of Sugarwood and Heritage Park subdivisions, Dade County, Florida 1/ Gerald Krigel was the president of Krigel Corp. and Lomar. While the Sugarwood and Heritage Park subdivisions were under development, Kuvin did not supervise, direct, manage, or control the contracting activities of Krigel Corp., nor did he supervise, direct, manage, or control any of its construction activities in the subdivisions. He did, however, meet with Mr. Krigel twice a year, at which times he signed and delivered to Mr. Krigel an indeterminate number of blank building permit applications. On each occasion, Kuvin was paid $1,500. 2/ In mid-December 1985, Lomar and Krigel Corp. closed their offices. In January 1986, Lomar filed a petition in bankruptcy. The Freedman Residence On January 8, 1984, Marc Freedman and his wife entered into an agreement with Lomar for the purchase and sale of a single family residence in the Sugarwood subdivision. The agreement, as subsequently modified on May 11, 1984, called for Lomar to build the house in accordance with an agreed floor plan and deed it to the Freedmans in exchange for an agreed price of $106,337.50. On June 7, 1984, a building permit application was submitted to the Dade County Building and Zoning Department (Dade County) to construct the Freedman house. The application listed Lamar as the owner, Krigel Corp. as the contractor, and was signed by Kuvin. The requested permit was issued July 10, 1984, and a certificate of completion was issued on October 3, 1984. A closing was held on the Freedman purchase in late October 1984. Certain construction deficiencies existent on closing or subsequently discovered have not, however, been rectified despite demand of Lamar and Kuvin. 3/ The deficiencies include a backyard which is prone to flooding because of poor drainage, a pool deck area which has cracked into 14 separate pieces because not scored and which floods because not graded; interior dry wall which has cracked and buckled, and cracked tiles in the bathroom. The Florez Residence On February 23, 1985, Maria Florez entered into an agreement with Lomar for the purchase and sale of a single family residence in the Heritage Park subdivision. The agreement called for Lomar to build the unit in accordance with an agreed floor plan and deed it to Ms. Florez in exchange for an agreed price of $69,500. Under the terms of her agreement with Lomar, Ms. Florez was obligated to pay an initial deposit of $1,000, and an additional deposit of $2,500 upon approval of her application for a mortgage loan. Ms. Flores paid Lomar the initial deposit of $1,000, the $2,500 deposit upon approval of her application for financing with Pan American Bank, as well as the additional sum of $1,136 to add an air vent in the bathroom and to upgrade the carpeting. On June 25, 1985, a building permit application was submitted to Dade County to construct the Florez unit. The application listed Lomar as the owner, Krigel Corp. as the contractor, and was signed by Kuvin. The requested permit was issued July 5, 1985, and construction apparently completed in November 1985; however, Dade County has not yet issued a certificate of completion. No closing was ever scheduled for the Flarez unit. Upon learning of Lomar's bankruptcy, Ms. Florez filed a claim in the bankrupt's estate. To date, that claim has not been resolved. The Cevallos Residence On March 13, 1985, Pedro Cevallos and his wife entered into an agreement with Lamar for the purchase and sale of a single family residence in the Heritage Park subdivision. The agreement called for Lomar to build the unit in accordance with an agreed floor plan and deed it to the Cevallos in exchange for an agreed price of $69,900. Under the terms of the Cevallos' agreement with Lamar, they were obligated to pay an initial deposit of $500, and an additional deposit of $3,000 upon approval of their application for a mortgage loan. The Cevallos paid the deposits of $3,500, as well as an additional $190 to add an air vent in the bathroom. On June 6, 1985, a building permit application was submitted to Dade County to construct the Cevallos unit. The application listed Lomar as the owner, Krigel Corp. as the contractor, and was signed by Kuvin. The requested permit was issued June 13, 1985, and a certificate of completion was issued on November 14, 1985. The Cevallos had a walk through inspection of their unit and noted no deficiencies. A closing never occurred, however, because of Lamar's bankruptcy. The Cevallos are a claimant in the bankrupt's estate, but that claim has not been resolved. The Sujansky Residence On October 21, 1934, James Sujansky and his wife entered into an agreement with Lomar for the purchase and sale of a single family residence in the Heritage Park subdivision. The agreement called for Lomar to build the unit in accordance with an agreed floor plan in exchange for an agreed price of $64,900. On April 12, 1935, a building permit application was submitted to Dade County to construct the Sujansky unit. The application listed Lomar as the owner, Krigel Corp. as the contractor, and was signed by Kuvin. The requested permit was issued on April 26, 1985, and a certificate of completion was issued on October 9, 1985. On October 22, 1985, a closing was held on the Sujansky unit. At closing, the Sujanskys received a no-lien affidavit, a builder's warranty from Lomar, and Lomar's assurances that the deficiencies noted on the punch list would be corrected. Lomar failed or refused to correct the following deficiencies: the yard was prone to flooding because of poor drainage, cracked tiles were noticeable in both bathrooms and the kitchen, the dry wall was not sanded or painted, the exterior walls contained cracks in the stucco finish, the window trim rattled, the front door had gaps around it, the kitchen cabinets had missing or unsecured handles, and the formica was peeling off the kitchen counter. Subsequent to closing, the Sujanskys received a claim of lien against their property from GDG Services, Inc., B.Q. Interiors Contractors, and Bird Plumbing Corp. These companies claimed monies owed for materials and services furnished to the property under a contract with Lomar or Krigel Corp. The proof established that B.Q. Interiors was owed the sum of $390, but failed to establish the validity or amount of the remaining claims. The Frisby Residence On March 25, 1985, Thomas Frisby and his wife entered into an agreement with Lomar for the purchase and sale of a single family residence in the Heritage Park subdivision. The agreement called for Lomar to build the unit in accordance with an agreed floor plan in exchange for an agreed price of $69,000. On June 6, 1985, a building permit application was submitted to Dade County to construct the Frisby unit. The application listed Lomar as the owner, Krigel Corp. as the contractor, and was signed by Kuvin. The requested permit was issued on June 13, 1985, and a certificate of completion was issued on December 31, 1985. On November 3, 1985, a closing was held on the Frisby unit. At closing, the Frisbys received a no-lien affidavit and a builder's warranty from Lomar. Subsequent to closing, the Frisbys noted numerous deficiencies which Lomar failed or refused to remedy. These deficiencies included a back yard prone to flooding because of poor drainage, a bedroom wall that leaked and caused the wall and carpet to mildew, chipped and cracked sidewalks, and an uneven livingroom floor. Additionally, the Frisbys received a claim of lien against their property from B.Q. Interiors Contractors, S&R Industries, Inc., and Val's Air Conditioning, Inc. These companies claimed monies owed for materials and services furnished to the property under a contract with Lomar or Krigel Corp. The proof established that B.Q. Interiors was owed the sum of $390 and that S&R Industries was owed the sum of $632.50, but failed to establish the validity or amount of the lien claimed by Val's Air Conditioning.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Michael N. Kuvin's certification as a general contractor, license numbers CG CB07136 and CG C007136, be REVOKED. DONE AND ORDERED this 1st day of April, 1937, in Tallahassee, Florida. WILLIAM J. KENDRICK 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 1st day of April, 1987.
