The Issue The issue presented herein concern whether or not the Respondent failed to maintain apartments that he owns situated at the 2563 Northwest 13th Court in good repair; free of vermin; failed to keep the premises and yard clean; failed to keep the garbage in proper receptacles and to keep the license for the premises displayed in a conspicuous place as is more particularly set forth in the Notice to Show Cause filed herein dated January 3, 1984.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. Respondent, George A. Williamson, is the owner of several apartments known as the 13th Court Apartments in Ft. Lauderdale, Florida. Those apartments are licensed by the Petitioner, Division of Hotels and Restaurants and has been assigned control number 16-3079-H. (Stipulation of the parties.) On November 22, 1983, petitioner's inspector, Daniel J. Stallone, made a routine inspection of the Respondent's apartments involved herein and found that the roof leaked in apartment number 2, that the toilet leaked in apartment number 7, that there were several torn and missing screens and that garbage and refuse were strewn all around the premises and needed attention. (Petitioner's Exhibit 1.) In addition, inspector Stallone could not find the license displayed in a conspicuous place as is required pursuant to Rule 7C-1.02(1), Florida Administrative Code. On December 8, 1983, Inspector Stallone made a callback inspection and found that none of the above-referred violations had been corrected or otherwise complied with by Respondent. Inspector Stallone issued a Notice of violation citing the Respondent with non-compliance with Rule 7C-1.02(4), 7C-1.03(1), (5), and (7), Florida Administrative Code and Section 509.221(8), Florida Statutes. (Petitioner's Exhibit 2.) Copies of the reports for the November 22 and December 8, 1983 inspections were sent to Respondent by certified mail, return receipt requested. (Petitioner's Exhibit 3.) On January 24, 1984, Inspector Stallone made a subsequent inspection and found that the roof leak had not been repaired on the premises. Additionally, he noted that there were broken screens in several apartments and that there was garbage strewn around the premises. (Petitioner's Exhibit 4.) Inspector Stallone made another inspection of the premises on July 20, 1984 and found that all of the violations for which Respondent had been cited in earlier inspections had been complied with with the exception of a roofing leak. That leak is now repaired. (Respondent's testimony and Exhibit 1.) Rosa Mae Spivey, a tenant at the apartments, has resided there for approximately seven years and is responsible for the overall maintenance and cleaning for the apartments. The structure has a flat roof. As of March 30, 1984, apartments 2, 4 and 5 were patched by Cherokee Roofing of Ft. Lauderdale, Florida. Ms. Spivey cleans the grounds surrounding the premises approximately three times per week and has had the screens repaired or replaced at least three times since she has served as manager of the apartments. Respondent paid Cherokee Roofing $475 on April 2, 1984 to repair the roof for the apartments. Respondent has placed a large dumpster for the tenants to utilize for garbage and other debris from their apartments. Respondent retains the services of a plumber, a carpenter, a general laborer and a painting and cleanup employee who responds to complaints as they are made. Respondent admits to an approximately four-month delay in correcting the roof inn repairs however, he states that due to the large number of repairs brought abort by uncaring tenants, he attempts to prioritize the repairs and schedules them as soon as practicable.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Petitioner issue Respondent a written reprimand admonishing him for failure to timely correct violations for which he has been cited and request that he continuously maintain his premises in a clean and sanitary condition as required by pertinent rules and statutes. RECOMMENDED this 3rd day of December, 1984, 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 3rd day of December, 1984. COPIES FURNISHED: William Hatch, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 George Williamson 1113 Southeast 3 Avenue Ft. Lauderdale, Florida 33316 Gary Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Fallone is the developer of Indigo Woods East, Phase II, a condominium development. Indigo Woods East Condominium Association, Inc., operates the condominium. Fallone maintained the controlling interest of the Association from March 25, 1985, through October 12, 1987 (See Fallone's response to Request for Admissions and testimony of Robert Clearwater). The 1986 Annual Budget for the Association was considered and adopted at a budget meeting held on September 23, 1985. Copies of the Proposed 1986 Annual Budget for the Association were not mailed to unit owners on or before September 9, 1985. Additionally, a complete financial report of actual receipts and expenditures of the Association for the calendar year 1985 was not furnished to unit owners on or before May 1, 1986. The fiscal year for the Association is the calendar year. The Association's By-Laws provide that an audit of the accounts shall be made annually and that a copy of the report shall be furnished to each member of the Association no later than May 1st of the year following the year for which the report is made. The assessments imposed against members of the Association are guaranteed at a rate of $45.00 per month by the "developer guarantee" provided for in the Declaration of Condominium. The developer guarantee remains in effect until the unit owners, other than the developer, elect a majority of the members of the Board of Administration. In this instance, that election was October 12, 1987. The developer is required to fund the common expenses of the Association which exceed the amount of assessments collected from the unit owners other than the developer. The Association budgets provide for monthly funding of reserves for roof replacement, building re-painting and pavement resurfacing of $22.22, $50.00 and $50.00, respectively, for those three reserve accounts. From March 25, 1985, through October 12, 1987, the reserve accounts were not funded by Fallone. There has been no waiver or reduction in the obligation to maintain the reserves at the agreed-upon amount. The amounts not funded from March 25, 1985, through October 12, 1987, total, for Phase I, $3,737.48; for Phase II, $2,375.76. Fallone became a "subsequent developer" of the condominium on March 25, 1985, when Howard P. Logue transferred his units to Fallone. When that transfer occurred, on March 25, 1985, the reserve accounts set forth in Paragraph 12 above had not been funded. The amount not funded from July 31, 1984, through March 25, 1985, is $950.14. Fallone entered into a Purchase Agreement with Mary O'Mealy on June 12, 1985, for unit 418, Phase II, of the condominium. It entered into a Purchase Agreement with Arthur and Rita Begin on October 12, 1985, for unit 523, Phase II, of that condominium. Fallone did not make any filing or registration for Phase II of the condominium until after October 12, 1985. "Turnover" to the unit owners occurred on October 12, 1987. On that date, Fallone failed to deliver to the Association, at the time association control was turned over from Fallone to the unit owners, "other than the developer, all property of the unit owners and of the Association "held or controlled by the developer," Fallone. This "turnover" was not performed within sixty (60) days following the "turnover" which occurred on October 12, 1987, when the unit owners (other than the developer) elected a majority of the Board of Administration. The property that Fallone failed to turnover to the Association consisted of the Declaration of Condominium and all amendments thereto; a certified copy of the Articles of Incorporation of the Association; a copy of the By-Laws; the Minute Books, including all minutes and other books and records of the Association; any house rules and regulations which had been promulgated; resignations of Officers and Members of the Board of Administration who are required to resign because Fallone is required to relinquish control of the Association; the financial records covering the period of time from incorporation of the Association through turnover; the "Association Fund", or control thereof; all tangible personal property of the Association which is part of the common elements and an inventory of that property. Additionally, Fallone failed to convey a copy of the plans and specifications used in construction of the condominium with related certificate of authenticity; insurance policies; all written warranties of the contractor and sub-contractors, etc., as well as a roster of unit owners and leases of the "common element" and other leases to which the Association is a party. Fallone was additionally required to convey any employment or service contracts in which the Association is a contracting party or service contracts in which the Association or the unit owners have an obligation to pay fees or charges to persons performing a service, as well as all other contracts to which the Association is a party, as well as certificates of occupancy and any other permits applicable to the condominium property issued by governmental bodies. Fallone failed to deliver all this property to the Association on the "turnover date" mentioned above. Fallone additionally expended working capital contributions in the amount of $100.00, collected from a purchaser at a closing, during the period of the developers "guarantee of assessments," when they were supposed to have been guaranteed at a level of $45.00 per month.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED That the Division of Florida Land Sales, Condominiums and Mobile Homes enter a Final Order finding Fallone guilty of the violations charged in the Amended Notice to Show Cause dated August 2, 1988; and That Fallone shall therefore be required to pay the Division a total civil penalty in the amount of $10,000.00. DONE AND ENTERED this 14th day of December, 1988, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF, 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 14th day of December, 1988. APPENDIX PETITIONER'S PROPOSED FINDINGS OF FACT: Petitioner's Proposed Findings of Fact 1 - 24 are accepted. COPIES FURNISHED: Thomas Presnell, Jr., Esquire Staff Attorney Department of Business Regulation Tallahassee, Florida 32399-1007 J. J. Andreano c/o Fallone Construction, Inc. 221 North Causeway, Suite B New Smyrna Beach, Florida 32069
The Issue The purpose of the hearing in this case was to provide Petitioner an opportunity to present evidence as to the relief to which she is entitled in a housing discrimination case.2
Findings Of Fact As a result of the admitted facts alleged in the Petition for Relief, Petitioner has suffered both tangible and intangible harm. As a result of the admitted facts, when Petitioner and her family were evicted from the apartment they had been subletting, they were locked out of the apartment and were unable to retrieve most of the personal property that was in the apartment. The reasonable value of the personal property that was lost as a result of the acts alleged in the Petition for Relief is $5,281.00.6 Petitioner also suffered intangible harm as a result of the admitted facts. The most serious aspects of the intangible harm were humiliation and loss of personal pride and self-esteem as a result of, in her words, “being treated like a dog.” Petitioner also suffered a substantial amount of personal inconvenience and indignity, because for a period of time after the eviction from the apartment she was truly homeless and was forced to live in her automobile. The harm to Petitioner described in this paragraph cannot be quantified. There is no evidence in this case that Petitioner incurred any attorney’s fees or costs. Alina Portuono is no longer employed at the apartment complex where the events giving rise to this proceeding occurred. Whoever owned the apartment complex at the time of the events giving rise to this proceeding is no longer the owner. The subject apartment complex no longer rents apartments as all the units are now condominiums.
Recommendation On the basis of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order awarding quantified damages in the amount of $5,281.00 to Petitioner, if the FCHR believes it has provided adequate notice to Respondent(s) in this case and has jurisdiction arising from such notice.8 DONE AND ENTERED this 29th day of April, 2004, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH 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 29th day of April, 2004.
Findings Of Fact This matter arose from the sale of a certain apartment building in Dunedin, Florida, known as Piper's Ten. This building was owned by two foreign corporations, the principals of which are represented by a Mr. Eugene Morgan of Boston, Massachusetts. Douglas S. Kennedy, Defendant, is a registered real estate salesman whose license was registered with Lockhart Realty, Inc., of Seawalls Point, Florida, the broker for which was his then wife Trude Kennedy. The Defendant and his wife were involved in domestic difficulties which eventually lead to a divorce. When the Defendant and his wife separated sometime in late 1972, he sought out his friend and business associate, Eugene Morgan, who suggested that the Defendant move to Dunedin, Florida and reside in the model apartment at Piper's Ten. The Defendant heeded the suggestion and took on the assignment as resident manager of the Piper's Ten Apartments at a final salary of approximately $1,000 per month. According to the Defendant and Mr. Morgan, his prime responsibility was seeing that Morgan and his co-investors in the property "receive a fair shake with the local people in and around Dunedin, Florida." At the time the property was registered with a real estate broker of Dunedin, Florida, whose name is Mr. Woodrow Register, and he had an exclusive listing on the sale of Piper's Ten Apartments. The initial arrangement between Morgan and the Defendant was that the Defendant would live in the apartment rent free and he would be paid an amount to defray his expenses for the management responsibility. When the Defendant became dissatisfied with this arrangement approximately 3 weeks later, he notified Mr. Morgan that he could no longer remain in Dunedin under that arrangement. This set the stage for the new arrangement referred to above whereby the Defendant was to be paid $1,000 per month payable out of the proceeds, when and if the building was sold. According to Morgan, this arrangement was to last for at least 4 to 5 months or until such time as a purchaser was located to purchase the apartment building. During April 1973, Kelly Prior Realty of Dunedin produced a proposed purchaser for the property at the purchase price of $400,000 which was the amount set by the owners who had agreed to pay a real estate commission of 5 percent. Kelly Prior Realty prepared a proposed contract of sale and purchase and submitted it to the offices of the attorney for the seller, Raymond Argyros, who after certain modifications, submitted the contract to the sellers for their approval. At the closing in May 1973, Kelly Prior, the selling broker, received a full commission of 5 percent as agreed upon by their sellers in their open listing of the property. According to attorney Argyros, the Defendant received a check for $5,000 as agreed upon between the Defendant and Morgan and according to him, the contract erroneously referred to such payment as a commission. It is this $5,000 payment which is the matter of controversy in this hearing. According to Morgan, Defendant was hired to "see if he could get Morgan and his associates a fair shake with the local people in Dunedin respecting the management of the apartment building." Originally the two story building was primarily an office space on the lower level and approximately ten apartments on the upper level. The plan was to rent the upper level as a condominium and to lease the office space on the lower level. Morgan was unable to sell the condominiums on the upper level based on the fact that prospective purchasers did not want to buy condominiums in a building approximately 50 percent comprised of office space. With this fact, Morgan and his associates made the decision to convert the lower level to apartments as well. When this was done, the Defendant saw to it that the building was properly managed and provided feedback to Morgan in order to keep him advised at all times of the situation with the apartment building. When the building was sold, Kelly Prior Realty Company received the commission of $20,000 which represented 5 percent of the total purchase price and the Defendant received $5,000 for his efforts. In this regard, the Defendant received a check drawn in the amount of $5,000 and the check bore a notation that the amount represented a commission. When the Defendant noted this, he changed the face of the check to reflect that the amount paid was intended to be an agency fee for the sale of Piper's Ten. The Defendant played no part in the drafting of the purchase and sales agreement. After the closing, the Defendant also was given the furniture from the model apartment and he thereafter departed for Puerto Rico. Trude Kennedy, the Defendant's former wife, testified that Lockhart Realty was in no way associated with the sale of Piper's Ten. Trude Kennedy had several conversations with Mr. Morgan regarding the sales and problems which he encountered with Piper's Ten. However the basis of these statements involved other businesses which she had with Morgan regarding the sale and subdivision of other properties in and around Dunedin. Mrs. Kennedy was unaware of the amount paid to the Defendent and she made no claim for such funds when the payment was disbursed. Morgan denied that the amount in any way reflected a commission but rather was payment for the services which the Defendant rendered in the general upkeep and management of the building such that he could be fully advised at all times of the progress, if any, that the local realtors were having with the sale of the apartment building. With these facts, the undersigned is of the opinion that the $5,000 sum given to Kennedy represented the amount as per the agreement he had with Morgan. There was no evidence that he participated in any way with the sale of the building other than to advise Morgan of any efforts that the other local realtors played in locating purchasers. It was noted that the check which represented payment for these services indicated that the amount originally was a commission. However, the Defendant, when noting that the designation of a commission was included on the check, immediately advised Mr. Argyros, the seller's agent, to correct that mistake by placing a designation that the amount represented was intended to be a "seller's agent" fee. This correction was made prior to the time the check was deposited and it was done with the consent of attorney Argyros. There was no evidence that the Defendant demanded such amount as a commission for his efforts as a salesman or that he showed the property to prospective purchasers as a real estate salesman. Thus it appears that the amount paid to the Defendant was an amount given him for his services as testified to by Morgan. The amount paid also appears to correspond with the arrangement as testified to by Morgan. I therefore find that the $5,000 sum paid the Defendant represented an amount for services that he rendered, not as a real estate salesman, but rather, as a property manager of the Piper's Ten Apartment building.
The Issue The issue presented is whether Respondents are guilty of the allegations contained in the Administrative Complaint filed by Petitioner against them, and, if so, what disciplinary action should be taken, if any.
Findings Of Fact At all times material hereto, Respondent Richard Charles Weit has been a real estate broker licensed in the state of Florida, having been issued license numbered 0094418, and Respondent R C Properties International, Inc., has been a real estate broker licensed in the state of Florida, having been issued license numbered 0195105. At all times material hereto, Respondent Weit has been licensed and operating as a qualifying officer and broker of Respondent R C Properties. Jose Martinez met Respondent Weit in approximately 1986 as a result of a newspaper ad which had been placed by Weit. Weit personally owned a number of properties. At the time, Martinez was a construction worker, looking for real estate considered to be a "handyman special." Martinez wanted to buy property which was in need of repair so that he could make the repairs and then sell the property at a profit. Martinez purchased from Respondent Weit three such properties owned by Weit during 1986 and one during 1987. He bought them, repaired them, and sold them at a profit. On several occasions, Respondent Weit sold those properties for Martinez after Martinez had executed the necessary repairs. On all occasions, Respondent Weit sold those properties to Martinez for very small down payments since they both understood that Martinez needed his available cash to make the necessary repairs in order to be able to sell them at a profit. Respondent Weit was not acting as a real estate broker in any of those transactions or in the transaction involved in this proceeding. The properties which he sold to Martinez were owned by Weit. As the business relationship developed between Martinez and Weit, both men developed a trust for each other and worked together somewhat informally in that business relationship which resulted in a profit for both of them. By 1989 Martinez had gone into business with a partner, Jesse Deveras. As a licensed general contractor, Deveras was able to "pull permits" for the repairs which Martinez needed to make to the "handyman specials." In early 1989, Martinez and Deveras talked with Respondent Weit about purchasing an apartment building that Weit owned at 227 Northeast 26th Street, Miami, Florida. The apartment building was a three-story CBS structure containing 18 units. At the time, Martinez and Deveras were interested in purchasing that apartment building and another building located on the next street. Respondent Weit set the sale price for the apartment building at $190,000 and drafted a contract to that effect. Martinez and Deveras did not wish to pay that much for that building, and the contract was never executed. Martinez and Deveras thoroughly inspected that building at that time and fully understood that the building was in need of repair. Around that time, Respondent Weit received a letter from the Department of Housing and Urban Development of Metropolitan Dade County, Florida, notifying him that the apartment building was in need of repairs and was in violation of certain minimum housing standards. That letter gave Respondent Weit 60 days in which to remedy the violations. The violations were all clearly visible and involved such things as repairing windows and screens, replacing deteriorated door jambs and baseboards, replacing broken electrical switch cover plates, and repairing the damage from some "apparent water seepage." Respondent Weit showed Martinez and Deveras that letter. On November 13, 1989, Jorge Garcia, a police officer for the City of Miami Police Department, was dispatched to Respondent Weit's apartment building to check for "criminal elements." While there, he noticed a strong smell of gas. He notified the Fire Department, which responded to his call with fire engines and a fire inspector. The Fire Department subsequently summoned an inspector from the City of Miami Code Enforcement Section. A determination was made that there was a gas leak in the building. Accordingly, the remaining tenants were evacuated, and all utility service to the building was terminated. Officer Garcia obtained from a family living there the name and telephone number of Respondent Weit as the person in charge of collecting rent. He contacted Respondent Weit and spoke with him personally no later than the following day. He advised Weit that the building was going to be condemned, that the tenants needed to be relocated, and that the building was to be boarded up to prevent entry. Since the tenants had just made a rent payment, Officer Garcia told Respondent Weit that he should refund the rent payment so the tenants could move elsewhere. Respondent Weit went to the police station on Biscayne Boulevard where Officer Garcia worked and left the rent money he had collected so that it could be returned to the tenants. On November 14, when City of Miami officials returned to the apartment building, they discovered that Respondent had complied with their instructions. The doors and windows of the apartment building were locked and boarded up to prevent entry. Further, the iron gate at the front door was padlocked and chained. Maurice Majszak was the City of Miami fire inspector who responded to the property on November 13, 1989. During his inspection he found violations of the South Florida Building Code and the National Fire Protection Agency life/safety handbook, which the City of Miami was authorized to enforce. He returned to his office and drafted a letter to Respondent Weit on that same day, describing the violations which he had found and ordering Respondent Weit to correct those violations within 45 days. That violation letter was attached to a transmittal letter dated November 14, 1989. Respondent Weit had continuing problems with receiving his mail at the address of R C Properties. Accordingly, he had made arrangements with fire inspector Maurice Majszak so that whenever the City of Miami Fire Department needed to contact Respondent regarding any of the properties owned by him, rather than mailing notices to Respondent, Inspector Majszak would hand- deliver notices to Respondent after 2:00 p.m. That arrangement had worked well over the years, and Respondent Weit had always signed for any notices which the fire department hand-delivered to him. On November 14, 1989, Inspector Majszak attempted to hand deliver the two fire department letters to Respondent Weit-- the November 13 violation letter and the November 14 transmittal letter. Since he was unable to do so because Respondent Weit was not there, Inspector Majszak subsequently sent the letters to Respondent Weit by certified mail, but he failed to receive them. Pursuant to his inspection, the inspector from the Code Enforcement Section of the Building and Zoning Department of the City of Miami directed a letter to Respondent Weit dated November 22, 1989, advising him that the apartment building needed to be repaired or demolished. That letter was sent to Respondent Weit by regular mail but was not received by him. On December 9 or 10, 1989, Martinez and Deveras approached Respondent Weit about purchasing the apartment building. They advised Respondent Weit that they had again inspected the building approximately a week earlier. Since the apartment building was now vacant (not producing rental income) and due to the nature of the repairs needed, Respondent Weit agreed to reduce the purchase price by $40,000. On December 11, 1989, Martinez and Deveras entered into a contract with Respondent Weit whereby they agreed to purchase the apartment building from him. The new purchase price was $153,000, for which Martinez and Deveras put up a deposit of only $500. The contract recited that although Respondent Weit was a registered real estate broker, he was selling the property on his own account, that no commission would be paid by the purchasers, and that the property was being sold "as is." The contract further provided that the buyers would pay $8,500 in cash at the time of closing, of which the $500 deposit would be a part. Under the contract, Respondent Weit would take back a purchase money wrap-around mortgage. The contract specifically provided that the purchasers were taking title to the building on that same day although the closing would take place at a later date. It further provided that although interest on the mortgage would begin running from that same day, no mortgage payment would be due until 75 days later. Taxes, rent, and other revenue and expenses were to be prorated as of December 11, 1989, the date of the contract. The contract also specifically recited that the apartment building being purchased was vacant. It was understood by Respondent Weit, by Martinez, and by Deveras that Weit was requiring only a small down payment because Martinez and Deveras needed to have their cash available to effectuate repairs to the building in order to rent it and then sell it at a profit. Further, all three understood that the repairs needed to commence quickly so that the building could be rented. Although the three men considered Martinez and Deveras to be the "official owners" of the building as of December 11, 1989, the date they signed the contract for the purchase and sale of the building, they knew Martinez and Deveras would not be owners of record until the closing took place. They also understood that there might be some problem with the City of Miami insofar as Deveras "pulling permits" to begin the repair work prior to Deveras and Martinez becoming the owners of record. Accordingly, at the request of Martinez and Deveras, Respondent on December 11, 1989, executed an affidavit that he had just sold the property to Martinez and Deveras. The three men reasoned that the affidavit would be sufficient to allow Deveras to begin "pulling permits." The closing was scheduled for January 12, 1990. Martinez requested that Respondent Weit's attorney prepare all of the closing documents so that Martinez could avoid incurring additional expenses relative to acquiring title to the property. No title examination was performed by Martinez or Deveras or by anyone on their behalf, and they did not require one. Prior to the closing date, Martinez again approached Respondent Weit and explained that he could not pay the cash at closing because he needed to utilize all of his money for the necessary repairs. Respondent Weit agreed that Martinez and Deveras would pay him no cash at closing and that Martinez would give him a mortgage on a different property owned by Martinez instead. The closing did take place on January 12, 1990, using a closing statement computed as of December 11, 1989. Rather than receiving cash at closing, Respondent Weit received a mortgage in the amount of $8,500 on the other piece of property owned by Martinez. Accordingly, on January 12, 1990, Martinez and Deveras became owners of record of an 18-unit apartment building for a total expenditure of approximately $500 in closing costs. Thereafter, Martinez and Deveras went to the City of Miami to "pull permits" to begin the repair work. At that time, City of Miami officials showed Deveras and Martinez copies of the November letters which had been mailed to Respondent Weit. Respondent Weit had never told Martinez or Deveras about those November letters since he had not known about them. Deveras and Martinez never made any repairs to the apartment building. Further, they never made any mortgage payments to Respondent Weit pursuant to either the mortgage on the apartment building or the mortgage on the other property owned by Martinez which had been used to substitute for the cash owed to Respondent at closing pursuant to the purchase and sale contract. Instead, on April 23, 1990, Martinez and Deveras entered into a contract to sell the apartment building to Miguel Santiago for $165,000. That contract recited that the property was being sold "as is." The only specific disclosure regarding the condition of the building contained in that contract is as follows: "Buyer acknowledges that there exists code violations on the property which he agrees to correct at his own expense." The contract further required the buyer to begin repair work on the property within two weeks of closing. Respondent Weit agreed to the transfer of the mortgage and approved of the sale to Santiago. In approximately November of 1990 he voluntarily appeared before the Unsafe Structures Board of Metropolitan Dade County, Florida, to assist the subsequent owners of the apartment building to show cause why the building should not be demolished. Eventually, the City of Miami entered into a contract for the demolition of the building. The building was demolished in September of 1991. By 1990, Martinez had become licensed as a real estate salesman in the state of Florida. Since then, he has been employed part time as a real estate salesman working out of his own home. Respondent Weit eventually filed suit against Martinez and Deveras due to their nonpayment under the mortgages. In June of 1991 Martinez and Deveras filed a complaint with the Department of Professional Regulation alleging that Respondent Weit had sold them a building without them knowing its condition. That complaint resulted in the Administrative Complaint filed in this cause.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered finding Respondents Richard Charles Weit and R C Properties International, Inc., not guilty and dismissing the Administrative Complaint filed against them in this cause. RECOMMENDED this 11th day of June, 1992, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 1992. COPIES FURNISHED: Theodore Gay, Esquire Department of Professional Regulation 401 Northwest 2nd Avenue, Suite N-607 Miami, Florida 33128 Mr. Richard C. Weit 775 Northeast 79th Street, Suite B Miami, Florida 33138-4743 R C Properties International, Inc. 775 Northeast 79th Street, Suite B Miami, Florida 33138-4743 Darlene F. Keller, Division Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 APPENDIX Petitioner's proposed findings of fact numbered 1-11 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 12 has been rejected as not being supported by any competent evidence in this cause.
Findings Of Fact Peter C. Swebelius, Sr., holds certified residential contractor's license no. CRC005629. On or about February 12, 1975, Mrs. Betty Banko and Andrew Banko, of Cardinal Boulevard and Major Street, Daytona Beach, Florida entered into a contract with Peter C. Swebelius for the construction of a home at a cost of $42,496.19 (See Petitioner's Exhibit 1). The contractor agreed to construct a Nobel Home package 7365-B (a prepackaged home) as the second floor of a conventionally constructed first floor, as per revised plans drawn by Luis C. Geil and submitted by Schutte-Mochan, Inc. The licensee agreed to complete construction within sixty (60) days, subject to an extension of time for strikes, accidents or delays beyond the licensee's control. Licensee agreed to construct the home according to the specifications and cost estimates submitted to First Federal Savings and Loan Association of New Smyrna, who arranged construction financing. Luis C. Cell, the manager of the architectural firm who drew the Banko's house plan testified that flashing, a moisture barrier, should have been used to prevent vapor and water leakage from the first and second floors. He further testified that while the plans called for a metal flashing, other flashing such as felt paper would have been acceptable John H. Swebelius, the carpenter employed by Peter C. Swebelius testified that he installed black felt paper as a flashing and vapor barrier for the second floor around the entire home. He testified that in view of the fact that the Banko home was constructed by component and conventional methods, the contractor had to improvise in many areas in order to construct an acceptable home based on the plans submitted. He further testified that while the plans called for a step or spread footers for the floor, the specifications submitted to the lending institution called for a monolithic slab which was, in fact, used in this case. He testified that when there is a conflict between the written specifications and the plans, the written specifications control. Robert G. Howard, an architect registered since 1968 testified that the drawing plans submitted by the Banko's were incomplete. For this reason, he testified that a great deal of discretion was given to the general contractor and that it was common practice in the building trades that specifications govern plan drawings in the event of a conflict He therefore voiced his opinion that the contractor committed no wrong by utilizing a monolithic foundation as opposed to a spread footer foundation based on the conflicts. While he admitted that a written change order would have been a better procedure, he also stated that this procedure is seldom used in a single family dwelling Respecting the shape of the chimney which was upright with no curvatures, he stated that was merely a design preference and based on the overall design plan, the upright shape did not, in any material way, alter the salability or design of the Banko home Roy E Ransom, the mason contractor for the Banko residence, testified that Mrs. Banko visited the construction site frequently and voiced no complaint regarding the chimney. Evidence adduced during the course of the hearing revealed that during the construction of the Banko residence, heavy rainfall occurred and that in this regard, approximately 72 inches of rain fell during the time the Banko's home was under construction (See Respondent's Exhibit 6). Peter C Swebelius therefore offered his opinion that the water leakage problem resulted from standing rain which entered the Banko residence through a threshold, a problem which has now been corrected He testified that due to Mrs. Banko's directions to the lending institution to halt all construction draws, he was unable to complete the home and in essence that he was fired from the project. Arthur Eiland, an inspector for Volusia County testified that the Banko home was given a final inspection on April 22, 1977, and at that time, there were no deficiencies and in fact the house passed the inspection He further testified that this was the first final inspection request by Mrs. Banko and that no violations exist at this time. He testified further that when Mrs. Banko requests a certificate of occupancy, it will be issued by the building inspection department.
Recommendation Based on the foregoing findings of fact and conclusions of law, I hereby RECOMMEND: That the Respondent be issued a written reprimand for his deviation of the building plans respecting the chimney design in his construction of the Banko residence. RECOMMENDED this 29th day of July, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 Paul Hagglund, Esquire 1055 North Dixie Freeway Post Office Drawer J New Smyrna Beach, Florida 32069 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. DIVISION OF ADMINISTRATIVE HEARINGS, DOCKET NO. 76-784 PETER C. SWEBELIUS, SR. CR C005629, Route 1, Airport Road, New Smyrna Beach Florida 32069, Respondent. /
Findings Of Fact Roy Howard rented an apartment from Respondent from 23 October 1977 until 31 August 1978. The lease was oral with the rent of $175 payable monthly and due on the first of each and every month after October 1977. Respondent received a security deposit from Howard in the amount of $100 when the apartment was leased to Howard. Sometime shortly before August 15, 1978 Howard notified Mrs. Williams by telephone that he intended to vacate the premises on 31 August 1978. No written notice was given; however, Respondent acknowledged that actual notice was received of Howard's intention to quit the premises on 31 August 1978. Within a few days after Howard left the apartment, Mrs. Williams inspected the apartment and found damage to wall in hall due to furniture being moved out, the apartment dirty, and damage to hardwood floors. On 15 September 1978 Mrs. Williams sent Howard a letter outlining the above damages and a check for $31.50 representing the balance from the $100 security deposit after she had paid for the cleaning of the apartment. Howard protested withholding part of his security deposit for cleaning and complained to Petitioner, who issued the Notice to Show Cause in this case. At the time Howard entered into the lease with Mrs. Williams she told him his full security deposit would be refunded if he left the apartment in the same condition with respect to cleanliness and repair it was in when occupied by Howard. Subsequent to September 15, 1978 Mrs. Williams obtained an estimate of $115.95 to repaint the hallway and ceiling leading to the apartment occupied by Howard. No evidence was introduced indicating that any damage to the hall ceiling was occasioned by Howard's move from the apartment.
The Issue Whether the Respondent, Bill Schnell (Respondent), committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact At all times material to the allegations of this case, the Petitioner was the state entity charged with the responsibility of regulating the practice of unlicensed construction and contracting within the State of Florida pursuant to Chapters 455 and 489, Florida Statutes (2005). At all times material to the allegations of this case, the Respondent was not licensed as a contractor nor has he ever been certified or licensed to engage in contracting in the State of Florida. Hurricane Wilma struck Florida in the fall of 2005. Many residential structures were damaged by the storm in Boca Raton, Florida. Ms. Jean Pflaum resided in Boca Raton and the roof to her home was one of the structures damaged. Ms. Pflaum met the Respondent when he came through her neighborhood offering to repair damaged homes. On or about December 7, 2005, Ms. Pflaum contracted with the Respondent to repair her roof. In accordance with their agreement, Ms. Pflaum tendered the sum of $1990.00 to the Respondent, who did not competently complete the repair. Instead, the Respondent caused greater damage to the Pflaum residence. In short, Ms. Pflaum ended up hiring another contractor to correctly repair her roof and the damages caused by the Respondent. Ms. Pflaum expended an additional $2,300.00 to have the work completed. Ms. Pflaum had believed the Respondent to be a licensed person. He had represented his Florida license to be #CBC 1251460. That number corresponds to the license held by F. Devine Construction, a company unrelated to the Respondent. In fact, the Petitioner received a complaint from E. Devine Construction, Inc. The complaint alleged, among other things, that someone who represented himself to be "Bill Schnell" was using their license number without their consent or agreement. Upon receipt of this complaint, the Petitioner issued a cease and desist order against the Respondent. The Respondent never repaired Ms. Pfaum's roof, never refunded her money for the repair, and never resolved the Petitioner's complaint against him. In fact, the Respondent represented to the Petitioner that he would be moving to the Dominican Republic. The Petitioner incurred expenses and costs associated with the investigation of this case against the Respondent. Those costs, as of the date of the hearing, totaled $429.24. Those costs do not include any legal or attorneys fees associated with the prosecution of the case. The Respondent made no restitution in this cause.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a Final Order that imposes an administrative fine in an amount not less than $5000.00 against the Respondent and assesses costs of the investigation in an amount not less than $429.24. S DONE AND ENTERED this 6th day of November, 2007, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH 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 6th day of November, 2007. COPIES FURNISHED: W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ned Luczynski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Nancy S. Terrel, Hearing Officer Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Bill Schnell c/o Elington Hernandes Acesor Legal Calle Restauracion, No. 125 Alto Santiago, Dominican Republic Bill Schnell 1432 Northeast 27th Avenue Pompano Beach, Florida 33064 Sorin Ardelean, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
