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 The issue presented is whether Petitioner City of Opa Locka is responsible for reimbursing the Department of Transportation for the cost of relocating water and sewer lines owned and maintained by Petitioner within the State Road 916 right-of-way.
Findings Of Fact Opa Locka Boulevard and N. W. 135 Street in Dade County, Florida, are paired one-way streets between I-95 and N. W. 27 Avenue. They are located within the city limits of the City of Opa Locka and have been designated as State Road 916. Public records reveal that the portions of Opa Locka Boulevard and N. W. 135 Street which were involved in the Department’s road construction project and the right-of-way attendant to those streets were dedicated to perpetual public use by private landowners platting subdivisions between 1928 and 1956. In 1959 the City of Opa Locka transferred those roadways and rights-of-way to Dade County, Florida, so that the County would be responsible for maintaining them. In 1979 Dade County transferred its interests to the Department. The State Road 916 designation was subsequently made. The Department determined the need to improve those streets by widening them and making other improvements such as installing drainage and lighting. As the Department prepared to begin that project, it conducted a utility pre-design meeting on May 26, 1992. Such a meeting involves the Department’s employees who will be supervising portions of a road improvement project and representatives of the owners of utilities located within the area of anticipated construction. The owners of utilities are advised as to the details and extent of the anticipated construction, and they mark maps as to the location of their utilities. As the road design process proceeds, agreements are made and relocation schedules are prepared. If practical, the Department will design the road around utilities which conflict with the location of the roadway. If designing around the utility is not practical, the owner is required to relocate any utility which conflicts with the Department’s roadway or which interferes with the construction project. If the utility owner intends to relocate its own utilities, a Utility Relocation Schedule is agreed upon by the owner and the Department. If the owner requests that the Department do the relocation work and agrees to pay the costs in advance, a Joint Participation Agreement is entered into, and the Department’s contractor performs the work. The City’s consulting engineer attended the May 1992 utility pre-design meeting and attended many subsequent meetings. Subsequent meetings were also attended by the City’s public works director and the City’s project engineer. During the pre-design and design stages of the road project, the Department was able to design around all utilities or obtain voluntarily removal or relocation by all utility owners except the City. The City maintained that it could not afford to remove or relocate its water and sewer lines. Both the City and the Department were very concerned about the location of the City’s lines and about the lines themselves. The lines were made of cement asbestos and were old. Cement asbestos lines cannot withstand nearby construction and will break. Neither the Department nor the City wanted the lines to break during construction, and the Department did not want to build new roads and have the lines underneath breaking afterward, requiring re-construction. As feared, the City’s sewer line ruptured while another utility owner was relocating its utilities in the area of the City’s sewer line prior to the Department’s construction work. Further, as a result of that other utility owner’s relocation work, it was discovered that the City’s water and sewer lines within the project limits were not in fact located where the City’s maps of the lines reflected. Therefore, the City’s utilities posed a danger to the construction project, and the Department could not allow the lines to remain wherever they were. Due to the City’s position that it could not afford to remove or relocate its water and sewer lines and due to the Department’s need to proceed with the construction project, the Department and the City’s representatives agreed that the Department would issue to the City a 30-day notice to remove or relocate, but the City would not do so. The Department would then do the work for the City, and the City would reimburse the Department for its costs under a reimbursement plan yet to be negotiated. That meeting was attended by the City’s consulting engineer, the City’s former public works director, and the City’s current public works director. Everyone attending agreed that the lines needed to be replaced with newer, stronger lines. The Department agreed to issue the 30-day notice, do the work, and then seek reimbursement from the City since doing so was the only solution to the problem which would allow the road project to proceed without substantial damages and increased costs due to delay. Based upon that agreement and the City’s inability to pay the costs of relocating its water and sewer lines, no Utility Relocation Schedule or Joint Participation Agreement was entered into by the City and the Department. The City’s consulting engineer drew preliminary plans for the relocation of the City’s utilities, and the Department submitted those plans to its contractor to obtain bids for the City’s relocation work. The contractor priced the work and obtained three bids. The subcontract was awarded, the prime contractor added its overhead costs, and that became the anticipated cost. The Department kept the City advised as to additional costs as they were incurred. On July 7, 1993, the Department issued its 30-day notice to the City, expecting the City to respond in the agreed non-adversarial manner. Instead, the City requested this administrative proceeding. As the work was actually performed, the City expressed no disagreement with the materials used or the construction techniques. The City’s representatives were frequent visitors to the construction site since the actual work disclosed more problems. Not only were the City’s utilities not located where the City indicated they were but also the construction crews encountered lines which the City did not know existed. These problems caused additional delays in the project and thereby caused additional expenses to the Department. The reasonable and necessary costs incurred by the Department to remove and relocate the City’s utilities within the project limits total $791,751.07
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT a Final Order be entered finding Petitioner City of Opa Locka responsible for reimbursing the Department of Transportation in the amount of $791,751.07 for the costs incurred in relocating and replacing the City's water and sewer utilities. DONE AND ENTERED this 23rd day of April, 1997, at Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 23rd day of April, 1997. COPIES FURNISHED: Patricia C. Ellis, City Attorney City of Opa Locka 777 Sharazad Boulevard Opa Locka, Florida 33054 Francine M. Ffolkes Assistant General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Ben G. Watts, Secretary Department of Transportation c/o Diedre Grubbs Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458
Recommendation Based upon the admission of the Respondent, Oscar Darias, that the allegations in the Administrative Complaint are true, and the Respondent's plea of guilty to the violations as charged in the Complaint, it is RECOMMENDED that the certified general contractor's license, number CG C004728, held by the Respondent, Oscar Darias, be revoked. THIS RECOMMENDED ORDER entered on this 22nd day of September, 1982, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 1981. COPIES FURNISHED: Harold M. Braxton, Esquire 45 S.W. 36th Court Miami, Florida 33135 Oscar Darias 9402 S.W. 17th Street Miami, Florida 33174
The Issue The issues in this matter are as promoted by an administrative complaint brought by the State of Florida, Department of Professional Regulation against William B. Garrison. In particular, the respondent is charged with having diverted funds or property received for the completion of a specific project in violation of Section 489.129(1)(h), Florida Statutes (1979). In addition, the respondent is charged with signing a statement falsely indicating that payment had been made for all subcontracting work, in violation of Section 489.129(1)(1), Florida Statutes (1979), and of making misleading, deceptive, untrue or fraudulent representations in the practice of his profession in violation of Section 455.227(1)(a), Florida Statutes (1979). It is the respondent's denial of these accusations and request for formal hearing which eventuated in this recommended order.
Findings Of Fact Respondent is a holder of a registered building contractor's license issued by the Florida Construction Industry Licensing Board. That license number is RB0029142, first issued in 1975. Respondent has been associated with the construction business on a full time basis since 1970. From 1975 through 1981 respondent operated as Garrison Builders of Tallahassee, Inc. At all times relevant to the administrative complaint, respondent was the qualifier of Garrison Builders of Tallahassee, Inc., pursuant to Section 489.119, Florida Statutes. On August 6, 1980, Garrison Builders of Tallahassee, Inc., contracted with TBW, Inc., to build eight townhouses at Larette Drive, in Tallahassee, Florida, for a contract price of $269,424.00. That base contract price was subject to change orders, the first of which decreased the contract price by $8,000 and the second which increased the contract price by $864.00. As a consequence, the final contract price was $262,388.00. Garrison Builders of Tallahassee, Inc., was paid a total of $257,598.38 under the terms of the contract. Garrison Builders paid out, related to the account for this project, $257,890.01. As of March 31, 1981, respondent had failed to pay the following subcontractors and materialmen in the amounts designated: Butterfield's Floor Covering, Inc. $ 277.10* Barineau & Sons Heating and Air Conditioning 2,420.00 Big Bend Rental Center, Store #1 596.96 Sam Crowder Co. 61.39 Discount Lumber, Inc. 445.33* Ken Driggers, Inc. 32.14 Deep South Insulation Co. 600.00 John T. Daniel Cabinet Co. 3,400.00 Miller Sheet Metal 1,292.00 Melco Wood fixtures 1,502.59 Maples Concrete Products Co., Inc. 1,571.31 Quality Plumbing, Inc. 5,864.00* Tallahassee Glass & Screen 690.56 Tallahassee Rug Co. 1,486.51 Yarbrough Paint & Decorating Center 1,589.15 City Building Department-Systems Charges 1,790.10 Wallpaper Installation-50 rolls @ $7.00/roll 350.00* Total $23,969.14 *Billing not complete The contract between Garrison Builders and TBW was to be performed in 150 days after August 6, 1980, subject to allowances for rain days, etc. Garrison Builders was responsible for satisfying the claims of the materialmen and subcontractors as reflected above, in keeping with the terms of the contract. Respondent, as president of Garrison Builders, was responsible for the overall project. In keeping with the contract terms, respondent and the job foreman for the subject project made application and certification for payment. These applications and certifications may be found as part of the petitioner's composite Exhibit Number 2, admitted into evidence. The last of those applications was made by the respondent on February 17, 1984. Prior to that payment, Garrison Builders had been paid $247,136.70. On that occasion, as on other occasions, respondent certified, "that all amounts have been paid by him for work for which previous certificates for payment were issued and payments received from the owner. . . ." in signing the certification for an additional $10,461.68 draw. At that point in time approximately 98 percent of the job had been completed. Nonetheless, contrary to the certification statement, materialmen and suppliers had not been paid as demonstrated in the accounting set forth above showing that as of March 31, 1981, $23,969.14 was still owed, which amount far exceeds the difference between the contract price of $262,388.00, and the amount Garrison Builders had been paid prior to the last draw, i.e., $247,136.70. That differential is $15,251.30. In a meeting in March 1981 at which respondent attended and was represented by counsel, respondent admitted to a representative of TBW that materialmen and suppliers had not been satisfied in terms of payment. By affidavit of April 3, 1981, a copy of which is petitioner's Exhibit Number 5 admitted into evidence, he acknowledged the $23,969.14 of outstanding claims effective March 31, 1981. Moreover, in a court appearance involving TBW and some of the materialmen and suppliers in which the question of possible liens by those latter entities was litigated, respondent admitted that he had lied in his statement of certification in the contractor's application and certificate for payment, wherein he stated that all materialmen and suppliers had been satisfied before obtaining payments under the contract. This admission, taken in the context of the other facts found, indicates that the respondent appreciated that materialmen and suppliers had not been paid when he made application for the February 17, 1981, draw and swore that they had. This oath as to that circumstance was not one of mistake or inadvertence. It was a comment made with the knowledge of the implications of the oath. Thus, the effect was to be false, misleading, deceptive, untrue and fraudulent, contributing to a loss of $277.10 which the owner paid Butterfield Floor Covering without reimbursement. Respondent was not paid the balance of the contract price, the owner having claimed that the contract was 90 days beyond the contract date for completion, and upon the assertion by the owner that additional funds had to be expended to complete the contract over and above the contract amount. Respondent claims that the reason for late completion concerned a problem with a subcontractor who was providing cabinets, one John Daniel. In addition, respondent alludes to the fact that he was in the hospital from November 10, 1980, through November 20, 1980, and again from December 2 through 19, 1980, and as a consequence was unable to supervise the job in a manner which he preferred. Daniel was a subcontractor chosen by the owner and accepted by the respondent. From a review of the evidence, it is unclear whether Daniel was the responsible agency for the project being approximately 90 days over the contract period. It is also uncertain whether the essentially 90 day delay was in view of respondent's failures as responsible agent for Garrison Builders. Had Garrison Builders been responsible the owner would have been entitled to deduct essentially $20 a day for late penalties. Finally, the owner's claim of expenditures in excess of $10,000 to complete the job was not satisfactorily proven. In summary, the job was late for reasons unestablished. Certificates of occupancy were issued for the eight units in March 1983 signaling the completion of the job. On the subject of whether respondent diverted funds and property from this project into other projects thereby affecting the outcome of the project, the proof on balance demonstrates that Garrison Builders, under the aegis of the respondent, made a bad bargain by underbidding this project as opposed to diverting funds and property to other pursuits.
Recommendation Upon consideration of the findings of facts and conclusions of law, it is RECOMMENDED that a final order be entered which finds the respondent guilty of a violation of Section 489.129(1)(1), Florida Statutes, and Section 455.227(1)(a), Florida Statutes, and dismisses the allegation of a violation of Section 489.129(1)(h), Florida Statutes. For the violations established, a penalty of a 60 day suspension should be imposed against the respondent. DONE AND ENTERED this 11th day of September 1984 in Tallahassee, Florida. CHARLES C. ADAMS 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 11th day of September 1984. COPIES FURNISHED: Michael Egan, Esquire ROBERTS, EGAN & ROUTA, P.A. 217 South Adams Street Tallahassee, Florida 32302 Jeffrey H. Savlov, Esquire Post Office Box 10082 Tallahassee, Florida 32302 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Board of Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202
Findings Of Fact Based on the stipulation of the parties and on the evidence presented at the hearing, I make the following findings of fact. The Respondent was issued a certified residential contractor's license to qualify Towne & County Homes, Post Office Box 11, Flagler Beach, Florida 32306, and License No. CRCO11317 was issued to qualify said entity together with License No. RG0024736. The Respondent was also issued a Class B pool contractor's license, License No. CPC023590 to qualify Mullen Pools, Inc., 2100 South Flagler Avenue, Flagler Beach, Florida 32036. The Respondent presently maintains three current licenses issued by the Petitioner, which are as follows: Registered General Contractor, License No. RG0024736 Certified Residential Contractor, License No. CRCO11317 Certified Pool Contractor, Class B, License No. CPC023590 On September 8, 1986, the Respondent entered into a contract with Mr. and Mrs. Richard Davis to construct a single family residence in the City of Flagler Beach, Florida. The construction site was located in an area of the city zoned for single family residences only. On October 3, 1986, the Respondent submitted an application to the City of Flagler Beach to obtain a building permit, together with plans and specifications upon which a building permit was to be issued. On February 18, 1987, during an inspection, the building official, Mr. R. A. Law, observed that the Respondent had made some changes in the construction of the residence which deviated from the plans and specifications. The specific changes noticed on this occasion were (a) some rough plumbing had been stubbed in on the first floor where none was indicated on the plans, (b) an additional door had been cut into the rear of the first floor, and (c) a door on the plans between the first and second floors had not been cut in. The building official thought that the foregoing changes constituted an effort to violate the zoning law by building a two-family residence in a one-family zone. Accordingly, he issued a stop work order. After the stop work order of February 18, 1987, was posted, the Respondent removed the additional plumbing and installed a doorway between the first and second floors so that the residence complied with the approved plans and specifications. The building official removed the stop work order. On or about March 24, 1987, the building official, Mr. R. A. Law, was back on the construction site. On this occasion he observed a double electric meter can installed on the residence. This observation caused the building official to again suspect that the Respondent was attempting to violate the zoning law by building a two-family residence in a one-family zone, because he assumed that the meter can had been added to the residence since his February inspection. Actually, the double meter can had been in place since the electrical rough in was done and was simply overlooked during the February inspection. The building official wrote to the Respondent advising him that it appeared that he was "installing an extra apartment on the first floor," and ordering the Respondent to remove the double electric meter can from the house. The Respondent wrote back to the building official stating, among other things, that such was not his intent and that he did not have a contract to finish the first floor of the residence. No electrical service was ever installed to the first floor and, in any event, the power company would not have connected the second service without a second certificate of occupancy from the City. Consistent with the Respondent's contentions that he did not intend to build a two-family residence is the fact that written across the face of the plans submitted to the city were the words "Entire first floor is future area, rough in plumbing only." The Respondent's work orders to subcontractors also support his contention that he did not intend to construct a two-family dwelling. At the time of the inspections noted above, Mr. R.A. Law had only recently assumed the position of building official. There had been prior inspections by the predecessor building official at which no objection was made to the changes that Mr. Law objected to.
Recommendation For all of the foregoing reasons, it is recommended that the Construction Industry Licensing Board enter a final order in this case dismissing all charges against the Respondent. DONE AND ENTERED this 18th day of May, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH, 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 18th day of May, 1988. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 87-5040 The following are my specific rulings on all proposed findings of fact submitted by all parties. Findings proposed by the Petitioner: All of the proposed findings of fact submitted by the Petitioner have been accepted in substance, except as specifically set forth below. Paragraph 6: The portion of this paragraph that states or implies that there was an effort to convert a single family residence to a two-family residence is rejected as contrary to the greater weight of the evidence. (The building official suspected such an effort, but there was no such effort by the Respondent.) Paragraph 8: The portion of this paragraph that describes the Respondent's intent is rejected as contrary to the greater weight of the evidence. Paragraph 10: This paragraph is rejected as in part redundant and in part irrelevant, in view of the fact that the changes were minor and were not for the purpose suspected by the building official. Findings proposed by the Respondent: All of the proposed findings of fact submitted by the Respondent have been accepted in substance. COPIES FURNISHED: John O. Williams, Esquire Lindsey & Williams, P.A. Renaissance Square 1343 East Tennessee Street Tallahassee, Florida 32308 Stephen P. Sapienza, Esquire P. O. Box 159 Flagler Beach, Florida 32036 Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 William O'Neil, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether the Respondent was required to carry workers' compensation insurance coverage for its employees and, if it failed to do so, whether the Amended Notice and Penalty Assessment Order is correct.
Findings Of Fact At all times material to this case, the Petitioner, the Department of Labor and Employment Security, Division of Workers’ Compensation was the state agency charged with the responsibility of administering compliance with state laws governing workers’ compensation (WC). The Respondent, A. J. Interiors, Inc., is a Florida corporation doing business at 1825 Mears Parkway, Margate, Florida. At all times material to this case, Robert Barnes was an investigator employed by the Department to perform compliance investigations for WC. On July 6, 2000, Investigator Barnes performed a random construction site inspection at a new construction project located at 16687 Jog Road, Delray Beach, Florida. While at that location, Investigator Barnes observed two men wearing T-shirts bearing the company name "A. J. Interiors, Inc." along with its telephone number. The men were installing metal framing in order to hang and finish drywall. The field interview with the two men, identified in this record as Sergio and Jaime Gonzalez, revealed that neither was covered by WC insurance. This information was later confirmed by Investigator Barnes. Additionally, neither man had obtained an exemption from coverage as the sole proprietor of a business. Based upon the field interview of the two men, a review of Department records, and contact with the Respondent's insurance agent, Investigator Barnes correctly determined that the men were the Respondent’s "employees” as that term is defined by the WC law. The men did not supply materials to the job site but agreed to perform work based upon a price described as a "per board" industry standard rate. In other words, the men would hang the drywall at a flat rate (established by and consistent with the local industry standard) for each job accepted through the Respondent. If the work were completed, the men expected to be paid by the Respondent. The men did not contract with or work for the general contractor of the job. The only requirement for payment was the performance of the work. The only risk incurred by the workers related to their relationship with the Respondent. Having concluded that the workers were not covered by WC and were not exempt, Investigator Barnes caused a stop work order to be issued against the Respondent. In conjunction with that order, the Department requested copies of the Respondent's business records. A review of the "vendor accounts” supplied by the Respondent established that its workers were paid amounts presumably based upon the number of boards hung per job identified. The payments were not always the same amount as the number of boards hung for a given job could vary. Additionally, the Respondent allowed workers to receive "draws" against the expected payments for uncompleted jobs. The Respondent’s claim that the workers were independent contractors has not been deemed credible. Based upon the testimony of the Respondent's witness all of the workers performed as outlined by the men interviewed by Investigator Barnes. The Respondent did not have a valid WC policy during the three years preceding the stop work order. The Amended Notice and Penalty Assessment Order prepared by Investigator Barnes accurately calculates the amounts owed by the Respondent for the three-year period.
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
