Findings Of Fact In early September of 1979, John and Ruth E. Lockwood contracted with P & P Custom Pools, Inc. (P & P), for the construction of a swimming pool at their home, 231 El Dorado Drive, Debary, Florida. Respondent, Philip J. Mains, signed the contract on behalf of P & P and later obtained a building permit. He and his men began excavating on site in mid-September. The Lockwoods paid respondent $700.00 on September 6, 1979. As construction progressed, they paid him $1,706.25 on September 27, 1979; $1,000.00 on October 26, 1979; $1,047.50 on October 29, 1979; and $1,706.25 on November 20, 1979. At the appropriate times, a building inspector was summoned, who inspected the project, including the placement of reinforcing steel, ground wiring, and lights. Neither the "steel inspection" nor the "deck inspection" revealed any problem. The workmanship was excellent, as far as it went, but the Volusia County building inspector's office was never asked to perform a final inspection. As respondent promised there would be, there was water in the swimming pool by Christmas of 1979, but respondent did no further work after December, 1979. He never installed the pump, filter, diving board, or hand bars called for in the Lockwoods' contract. Earlier in 1979, Patrick T. Ryan, the other principal in P & P, left town and abandoned the business which was then $37,000 in debt. In November of 1979, respondent turned the company's books over to an accountant. In January of 1980 the business' financial problems became critical and, at the accountant's suggestion, respondent so advised the eight homeowners for whom he was building swimming pools, including, in January or February, Mr. Lockwood, who reacted angrily. Respondent testified that Mr. Lockwood "cussed him out." Thereafter respondent avoided the Lockwoods until April of 1980 when they found him working on another pool. There was enough money owed on the eight contracts as a group to finish all the pools, according to respondent's uncontroverted testimony, at the time the Internal Revenue Service levied on respondent's bank account and seized his tools and equipment. Even then respondent offered to finish the Lockwoods' pool if they would buy the materials. Respondent's wife asked Mrs. Lockwood to write a check to a supplier for a pump and filter so that respondent could install them and get water in the pool circulating. Instead, during the last week of April, 1980, the Lockwoods contracted with somebody else to finish the job and paid him $1,200. Respondent subcontracted with a Jacksonville cement company to pour concrete for the pool. After the concrete had been poured, the Lockwoods got a registered letter from the subcontractor threatening to place a lien on their property if he were not paid. According to Mr. Lockwood, the problem was that some check [supposedly drawn by respondent in favor of the subcontractor] had been delayed in the mail. In any event, there was no indication in the evidence that the Lockwoods heard anything further from the subcontractor.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspend respondent's registration for thirty (30) days. DONE AND ENTERED this 29th day of April, 1981, in Tallahassee, Florida. ROBERT T. BENTON, II 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 30th day of April, 1981. COPIES FURNISHED: Charles F. Tunnicliff, Esquire 130 North Monroe Street Tallahassee, Florida 32301 Philip J. Mains c/o Sue Mains Route 2, Box 799A DeLand, Florida 32720 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, vs. CASE NO. 80-2231 PHILIP J. MAINS, RP 0024663, Respondent. /
Findings Of Fact Based upon the record evidence, the Hearing Officer makes the following findings of fact: Martin Gold is now, and has been since July, 1986, licensed by Petitioner as a Registered Specialty Contractor authorized to do painting and waterproofing work in Dade County. He holds license number RX 0051718, which expires June 30, 1989. Since receiving his license he has been disciplined twice by the Florida Construction Industry Licensing Board. Gold is the President of Team Leisure Corp., a construction company, and is also its "qualifying agent." On August 14, 1986, Team Leisure Corp. entered into a written contract with Terry Dudley and his wife, Patricia, in which it agreed, for $12,000, to build a two-room, 27-foot by 13- foot addition to the Dudley home located at 15510 Leisure Drive in Dade County and to install new windows in the existing structure. According to the terms of the agreement, Team Leisure was to do "no painting." In his capacity as President of Team Leisure Corp., Gold hired William Sernaker to directly oversee the completion of the construction work specified in the Dudley contract. At the time, Sernaker was licensed as a general contractor in Dade County. As part of his arrangement with Gold, Sernaker assumed responsibility for ensuring that all work permits and inspections necessary to complete the Dudley project were obtained. On September 4, 1986, Sernaker obtained a building permit for the Dudley project. Thereafter, work on the project commenced. The foundation for the addition was laid and, on September 10, 1989, it passed the inspection of James Tucker, a Dade County building inspector. Fifteen days later, Tucker conducted a tie beam inspection. This phase of the project also received his formal approval. Sernaker obtained a roofing permit on October 14, 1986. The exterior of the roof was inspected by Russell Bergsma, another Dade County building inspector, on October 21, 1986. It too passed inspection. An electrical permit was obtained for the Dudley project on November 17, 1986, by Robins Electric, a subcontractor. When the electrical work was initially inspected by Grant Morse, another Dade County building inspector, it was rejected because there were a "few outlets missing." The record is unclear as to the results of any subsequent electrical inspections. Morse also conducted an inspection of the framing work done on the Dudley project. He did so on or around November 21, 1986. In his view, the framing was "not to code." Accordingly, he left a "tag" at the job site on which he gave the following written explanation for his rejection of the framing work: All window bucks must be tight with caulking, no gaps. When the stucco meets the window frame, it should be set back at approximately a 45-degree angle at a width of one quarter to provide a groove to be filled with caulking. Continuous back bed of caulking must be maintained. A follow-up inspection of the framing work was performed by Bergsma on December 1, 1986. In Bergsma's opinion, while some corrections had been made, deficiencies remained. He therefore issued another rejection. A third framing inspection was conducted on December 3, 1986. Tucker was the inspector who performed this inspection. He approved the work that had been done. Prior to this inspection, Gold had paid another contractor $600 to "redo" the framing. This additional expense was not passed on to the Dudleys. Morse attempted to conduct a final building inspection on December 22, 1989. He was unable to do so, however, because "[n]o one was home." From the outset, Gold kept abreast of the progress that was being made on the Dudley project by communicating with Sernaker. He also visited the job site on at least a weekly basis. Gold also heard from the Dudleys concerning the status of the project. The Dudleys closely monitored the work of Sernaker and his crew. If the work was not done to their satisfaction, they expressed their disapproval to Sernaker and, if he did not rectify the matter, they complained to Gold over the telephone. The following were among the complaints made by the Dudleys: the foundation was not level; the roof did not contain any fiberglass material; the window frames did not fit properly; the wood used for the open beam ceilings had cracks in it and was unsightly; the walls in the den were not level and had cracks in them; the linoleum on the Dudleys' screened-in porch was ripped by workers putting up a wall; the outside stucco was cracking and peeling; and trash was left on the property. An effort was made to address the Dudleys' concerns. For instance, in response to the Dudleys' complaints, a "thin cap" was placed over the foundation to make it level. The roof was redone with fiberglass material. The Dudleys were reimbursed for the linoleum they needed to replace on their porch. A contractor was hired to correct the framing problem. Nonetheless, the Dudleys became increasingly dissatisfied with Team Leisure Corp.. Sometime shortly before January 6, 1987, they became so dissatisfied that they ordered Sernaker and his crew off their property and refused to make any additional payments. Following this incident, Gold met with the Dudleys and attempted to mollify them. This was his first face-to-face meeting with them. He offered to send another contractor to the Dudleys' home to perform the work the Dudleys believed needed to be done to satisfactorily complete the project. The Dudleys accepted this offer. On January 6, 1987, Gold sent the Dudleys a letter which read as follows: As per our mutual agreement, these are the items you requested be taken care of. Once taken care of, you agree to sign completion certificate so we can be funded. COMPLETED (please check upon satisfaction) 1.) Touch up outside windows. 2.) Windows to be locked in. 3.) Walls in den to be taken down and leveled out. 4.) Frame around closet door. 5.) Fix two windows; replace concrete in doors and windows. 6.) Clean up. 7.) Replace vinyl, in rear den. 8.) $100.00 dollars to Mrs. Dudley, for clean-up. 9.) 10 year guarantee- roof and release of lien [sic]. 10.) Concrete over build. 11.) Crack under window sill. 12.) Nail in door frame. 13.) Gaps in drywall bedroom. 14.) Stucco cracking outside. 15.) Electrical inspection. (not to be Mike Charles.) Accepted and Approved: x x After receiving this letter, Mr. Dudley checked all but items 2, 5, 6, 8, and 9 on the letter's "completion certificate." Neither he nor his wife, however, signed this "completion certificate." Although the cracks in the outside stucco had been repaired at the time Dudley checked item 14, the stucco subsequently started cracking again. A final building inspection of the Dudley project was conducted by Tucker on January 13, 1989. The project was "turned down" by Inspector Tucker because it was unpainted. Under their contractual agreement, the Dudleys, not Team Leisure Corp., were responsible for the painting of the project. The painting was not done because the Dudleys noticed cracks reappearing in the outside stucco. On or around March 4, 1987, Mr. Dudley telephoned Inspector Bergsma and asked him to conduct an informal field inspection of the project. Bergsma complied with Dudley's request. When he arrived at the Dudley home, Dudley showed him a "gap on the rear of the house ... where the two roofs are at different levels and come together." Bergsma told Dudley that "[i]t didn't belong there" and that it would have to be eliminated if the structure was to pass a final building inspection. As of the date of the hearing, the structure had not passed such an inspection. Team Leisure Corp. received $10,200 for the work done in connection with the Dudley project. The remaining $1,800 of the $12,000 that the Dudleys were to pay pursuant to the contract was held in escrow by a bank. Ultimately, this $1,800, along with approximately an additional $500 from Team Leisure Corp., was given to the Dudleys as part of a settlement between them and Team Leisure Corp.. The money was to be used by the Dudleys to pay another contractor to complete the project to their satisfaction.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Construction Industry Licensing Board enter a final order (1) finding Respondent guilty of contracting outside the scope of his license in violation of Section 489.129(1) (j) , Florida Statutes; (2) imposing a $750 administrative fine upon Respondent for said violation, and (3) dismissing the remaining charges against Respondent set forth in the instant administrative complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of May, 1989. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 1989. COPIES FURNISHED: Elizabeth Alsobrook, Esquire Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 323399-0792 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Carlos Garcia, Esquire 8603 Dixie Highway Suite 400 Miami, Florida 33143 =================================================================
The Issue The issue is whether Respondent's proposed award of a portion of Bid No. 99-79 for retread tire services to Dave Howell Tires was arbitrary and capricious, as alleged by Petitioner.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Respondent, Escambia County Utilities Authority (Authority), is a local governmental body governed by Chapter 92- 248, Laws of Florida. The Authority manages and operates certain utility systems within Escambia County, Florida, and areas adjacent thereto. It is governed by a board consisting of five elected members. To assist it in carrying out its duties, the Authority has adopted the Escambia County Utilities Authority Code (Code), which contains various regulations, including Chapter 13, pertaining to Purchasing Procedures. Pertinent to this controversy are Sections 13-2(b)(1), 13-2(d), and 13-12, which authorize the Authority to accept or reject bids, to separate bids into more than one part, and to give preference to local vendors, respectively. By public advertisement made on September 16, 1999, the Authority solicited sealed proposals for Bid No. 99-79 for the supply of new truck tires and retread services for its sanitation truck fleet. The contracting period would run for two years. Such proposals were to be filed by interested vendors no later than 2:00 p.m., Thursday, September 30, 1999. The bid specification identified the new tires and retread services as separate items, meaning that each could be awarded to separate bidders, as authorized by Section 13-2(d) of the Code. The bid also provided that the Authority "reserved[d] the right to waive informalities in any bid; to reject any and all bids in whole or in part; and to accept the bid[s] that in its judgment is the lowest and most responsible." In response to that invitation, four vendors, including Petitioner, Eagle Tire & Service Center (Eagle), and Dave Howell Tires (Dave Howell), located in Milton and Pensacola, Florida, respectively, timely submitted sealed proposals. Eagle was found to have the lowest dollar bid for both items. On the retread portion of their responses, Eagle's bid was for $83,100.00, while Dave Howell's bid was for $83,934.36, or a difference of slightly more than $900.00. At issue in this case is the retread portion of the bid. In its proposal, Eagle offered to supply specially engineered Goodyear retreading from its facility in Atmore, Alabama, some 45 minutes north of Pensacola. On the other hand, Dave Howell, whose facility is located in Pensacola, offered to use Bandag rubber on its retreads, which is another widely- recognized retread brand. According to the Authority's director of sanitation, Jerry Moore (Moore), he saw no difference in the quality of the two products. Bid proposals are first reviewed by the department head who is directly affected by the solicitation; that individual makes a recommendation to the Finance Advisory Committee (Committee), which then presents its recommendation to the Authority. The Committee is made up of seven members, including two members of the Authority (Dale Perkins and George Watson) and five appointed citizens. In this case, the bids were opened and reviewed by Moore, the director of sanitation. On the afternoon of October 19, 1999, the Committee reviewed Moore's recommendation regarding the award of a contract. The Committee unanimously accepted Moore's recommendation that Petitioner, the lowest bidder, be awarded a two-year contract for both new and retread tire services. During the course of the Committee meeting, representatives of both Eagle and Dave Howell spoke to the Committee in support of their respective proposals. In addition, Dr. Larry N. Walker (Dr. Walker), a member of the Authority, appeared before the Committee to make comments favorable to Dave Howell. Among other things, Dr. Walker made the following statements: I come before you as something of a partisan today. I'm a friend of Dave Howell. I buy all my tires from his store. [B]ecause of conversations I've had with him and other input . . . this is one of those instances where we will actually come out ahead if we were to select the higher bid. I was not asked, t but it was] suggested by Mr. Howell that I call someone at the Escambia County School Board and ask them about their experience with Dave Howell Tires, his retreads, and I called Jerry Watson, one of the assistant superintendents, and Mr. Watson just was, was just very effusive in his compliments of the tires saying that their [tires were] far better than they had gotton before from the previous vendor. That they last much longer. They very seldom, that they don't start tearing up as quickly so that the, they say that when you have school bus tires starting to shred on the edges, the retread starts shredding and stuff, that, that you'll have parents calling, complaining, that, hey, the tires on my child's school bus look terrible. And said we don't, we just don't get those calls, and so in short he was very full of praise for the product produced by Dave Howell. It is a fact too that Dave Howell Tires is a local employer and contributes to our local economy and I think that's worth considering. I have had more than a few friends who submitted bids with ECUA contracts over the years and I've never stood up and made a speech like this before for any of them nor have I ever done it for Mr. Howell before. But in this particular instance when the dollar figures are this close, I think the points that, the points that I have raised have, have impressed me at any rate. [I]n short, this is a very close bid and I think there's some legitimate reasons for considering going with Mr. Howell's bid [which] is a better bid even though it's not the lowest. Despite the recommendation of Dr. Walker, the Committee rejected by a 5-2 vote a motion by Dale Perkins to award the retread portion of the contract to Dave Howell. When these comments were made, Dr. Walker was running for a term as County Commissioner. He had accepted a contribution of $300.00 from Dave Howell on August 1, 1999. In addition, Dave Howell made another $250.00 contribution on October 4, 1999. As required by law, all contributions were disclosed by Dr. Walker in his campaign treasurer's reports filed with the local Supervisor of Elections. The first contribution was disclosed by Dr. Walker in a quarterly report filed on October 13, 1999, or before the Committee meeting at which he spoke, while the second was disclosed in a later-filed quarterly report. During his appearance at the meeting, however, Dr. Walker did not disclose either contribution. On October 28, 1999, the Authority met to consider the award of a contract under Bid No. 99-79. At that meeting, Moore, speaking on behalf of the Committee, recommended that the contract for both items be awarded to Eagle. Dave Howell was also present at the meeting and was given an opportunity to make a brief presentation. He described his product (Bandag) as being "superior" to the other proposals, and pointed out that he did retreading for the Escambia County School Board (School Board). In addition, he mentioned the fact that he used a NDI (non-destruct imager) machine for scanning tire casings which would "save money" for the Authority. Finally, he pointed out that he was a local vendor who employed 39 persons, all of whom were residents of Escambia County. At the same meeting, Dr. Walker again spoke on behalf of Dave Howell saying that "Howell Tires has the . . . best bid"; that it would "better . . . to go with Dave Howell tires because I do believe that the tires, the retread tires are a better tire, that will give longer wear, have fewer failures and therefore that we will come out ahead . . . in the long run"; that "I do believe that this is the better contract and part of that comes from talking with Mr. Jerry Watson who . . . said the School Board is absolutely delighted with the retreads from Dave Howell Tires"; and that "Mr. Howell insists that [Eagle's machine] can't be as good as his [NDI machine]." At the Authority meeting, another member produced a letter dated October 26, 1999, drafted by School Board Deputy Superintendent Jerry Watson (Watson), which stated in part that Watson understood that Dave Howell's service to the School Board under an existing contract "has been excellent"; that the firm provided "dependable, quality service"; that Dave Howell "understands that safety is of utmost importance to [the School Board]"; and that he "would recommend the excellent service of Dave Howell Tires." As it turned out, the letter had been solicited from Watson by Dr. Walker at the suggestion of Dave Howell. The letter was read in full at the meeting at the urging of Dr. Walker. Thereafter, the Authority unanimously voted to split the contract and award the new tire business to Eagle and the retread portion of the contract to Dave Howell. A splitting of the contract was permissible under Section 13-2(d) of the Code. Eagle did not send a representative to the Authority meeting believing that after the unanimous vote by the Committee to award Eagle the contract, it had no reason to attend. Had a representative attended, however, he would have been given an opportunity to speak. Eagle later learned in a telephone call from Moore that the retread portion of the contract had been given to Dave Howell. This appeal ensued. In its timely-filed appeal, Eagle contends that the award of the retread part of the contract "was arbitrary, capricious, unlawful, contrary to the Authority's rules and regulations, contrary to the substantial weight of the evidence and applicable [Authority] bidding procedures, deprived [P]etitioner of his substantial rights, and was unconstitutional." More specifically, Petitioner contended that the contract was awarded to Dave Howell "based on improper, irrelevant, incompetent, and highly prejudicial procedures, statements, events, and the personal interest of one or more board members"; that the Authority "improperly applied a 'local preference' standard"; that a board member (Dr. Larry Walker) "improperly, unethically, and in direct violation of his oath of office and state law engaged in extensive ex parse communications, personal contacts, and financial transactions with and in behalf of Howell"; and that Dr. Walker did not disclose the fact that "Howell had paid a substantial sum of money to Walker for the latter's political campaign." More specific findings regarding these contentions are made below. Local vendor preference Section 13-12 of the Code prohibits favoritism for "local bidders" except in the narrowly defined circumstance where a "rapid response time" is needed in the case of a service contract. Bid No. 99-79 did not contain a local preference provision. While the Code does not define the term "local bidders," the evidence supports an inference that it applies to bidders who are located in Escambia County and the immediate area. During the discussions regarding Dave Howell at the Authority's meeting, Dr. Walker referred to Dave Howell as a local vendor, and another member, Dale Perkins, made reference to Dave Howell's local residency, the residency of his work force, and the taxes they presumably paid to Escambia County. A third member, Elvin McCorvey, also indicated that he was "inclined to agree . . . about doing business with the local vendor." In light of the foregoing comments, the Authority's General Counsel, Mr. Kievit, twice explained to the Authority members the local preference policy. Specifically, after two members expressed their desire to keep business "at home," Mr. Kievit cautioned the members against utilizing local vendor preference as a basis for awarding the contract in this instance. Testimony by Authority members at hearing confirms that this advice was accepted and that their decision was based on other criteria, including Dave Howell's "convincing" and uncontradicted presentation; his record of service with the School Board under an existing contract; the assertion that Bandag was a better product; the assertion that most private commercial waste haulers used Bandag tires; and an assertion that over time Dave Howell's NDI machine would save the Authority money. In short, it is fair to conclude that local preference played no role in the members' final votes on the matter. Finally, the member (Perkins) who had unsuccessfully moved that the Committee award the retread portion of the contract to Dave Howell, indicated at that time to the Committee members that his recommendation was not based on the local preference rule. While Petitioner asserts that Dave Howell received special preference as a "local vendor," the more persuasive evidence supports a finding that he did not. Conflict of Interest As noted in earlier findings, Dr. Walker made comments in support of Dave Howell at both the Committee and Authority meetings. This was after Dr. Walker had accepted two contributions totaling $550.00 from Dave Howell for his reelection bid. Except for filing his campaign treasurer's reports with the Supervisor of Elections, Dr. Walker had no other legal or ethical requirement regarding disclosure of contributions. In retrospect, however, Dr. Walker wishes he had done so to avoid any appearance of impropriety. Even so, merely because he had accepted a campaign contribution did not require that Dr. Walker abstain from voting on the contract or prevent him from advocating on behalf of a contributor/constituent. There is no evidence that Dr. Walker received any direct, personal, or financial gain as a result of his vote. Although members have rarely advocated the award of a contract to a particular vendor in prior years, there is no legal or ethical prohibition against a member doing so on behalf of a constituent. There is also no prohibition against a member investigating information about a bidder. In this case, before the contract was awarded, Dr. Walker made inquiry from both Dave Howell and the School Board regarding the quality of the Bandag product; he visited Dave Howell's facility; and he solicited a letter from a School Board representative regarding Dave Howell's service under an existing contract. While he made no similar inquiries regarding Eagle, and in fairness probably should have, Dr. Walker acknowledged that had Eagle contacted him, he would have been happy to meet with a representative of that firm to discuss its product. Finally, the evidence shows that Dr. Walker did not discuss the contract with, or personally solicit the vote of, any other member before the final vote was taken. Dr. Walker, who is the author of a treatise entitled The Florida Municipal Officials Manual, a publication widely used by elected and appointed municipal officials, municipal attorneys, and the Florida League of Cities, had no reason to disbelieve, or question the reliability of, the information he obtained from Dave Howell. Indeed, he simply relied on Dave Howell's representations in advocating on that vendor's behalf. Appearance by Dave Howell at the Authority Meeting As noted earlier, Dave Howell spoke at the Authority meeting on October 28, 1999. Eagle had no representative at that meeting. Eagle suggests that it was inappropriate for a vendor to appear at the meeting at which the contract was awarded; alternatively, Eagle suggests that the Authority should have given notice that vendors could appear and make presentations in support of their proposals. The evidence shows that while it is not a normal occurrence, several times a year a disappointed vendor will appear before the Authority and make a presentation. The Authority's policy is to allow any member of the public to speak, including disappointed bidders. Also, there is no requirement that the Authority inform all vendors that a disappointed bidder intends to make a presentation, or that the successful bidder should make an appearance on behalf of its proposal. Had an Eagle representative appeared at the meeting, he would have been allowed to give a presentation. The Authority violated no rule, Code provision, or statute by allowing Dave Howell to speak at the Authority meeting. Indeed, it is not unusual for a bidder to provide further information regarding its product to the Committee and Authority before a vote is taken, and such action by a bidder does not constitute a modification to its bid package. Was the Final Decision Arbitrary? In its proposed order, Eagle contends that there was no difference in quality between the retreads offered by either vendor. Thus, it argues that any assertion by the Authority members that their votes were based on Dave Howell providing a better quality product is simply a ruse for circumventing the local preference rule, and therefore its decision was not based on adequate facts. The record establishes that both products were of similar quality and reliability and met all specifications. Assertions by Dave Howell that his product was better, that his NDI machine was superior to his competitor's machine and would save the Authority money in the long run, and that virtually all private waste haulers used the Bandag product were not accurate. Indeed, the products were similar in quality, Eagle had a NOT scanning machine which was just as good as the NDI machine and would achieve the same savings, if any, and the amount of use of Bandag tires by other waste haulers was embellished. Moreover, School Board Deputy Superintendent Watson's assertion that Dave Howell provided a better product than did the predecessor contract holder is somewhat puzzling since the prior vendor also used the same Bandag retread. All of these representations were accepted by the Authority, primarily because they were unrebutted, and they formed the factual basis for awarding the contract to Dave Howell. Indeed, at hearing, each Authority member acknowledged that he had no independent knowledge of these matters and accepted without further question the representations made by Dave Howell and Walker. Because the Authority mistakenly relied on invalid assumptions, or representations which were either embellished or incorrect, as a basis for awarding the contract to someone other than the lowest bidder, its decision was not based on facts or logic and was therefore arbitrary.
Conclusions For Petitioner: John C. Barrett, Esquire 5 Calle Traviesa, Pensacola Beach Pensacola Beach, Florida 32561 For Respondent: Robert W. Kievit, Esquire Michael J. Stebbins, Esquire Kievit, Kelly & Odom 15 West Main Street Pensacola, Florida 32501
Findings Of Fact At all times relevant hereto, Respondent, Daniel A. Arguelles, held certified general contractor license number CG C004252 issued by Petitioner, Department of Professional Regulation, Florida Construction Industry Licensing Board. When the events herein occurred, he was qualified as an individual. He presently resides at 9455 Southwest 78th Street, Miami, Florida. Respondent's brother is J. Alejandro Arguelles. Alejandro holds an inactive contractor's license which has been delinquent since July, 1979. In June, 1984, Alejandro was contacted by an individual named Louis Taylor. Taylor told Alejandro that David Reynolds, who resided at 753 Northwest 116th Street, Miami, Florida, wished to add a room to his house. After meeting with Reynolds, Alejandro had plans for the addition prepared, provided an estimate for the job, and gave Reynolds a business card reflecting that he was a licensed general contractor. Reynolds and Alejandro then jointly executed a contract on July 26, 1985, wherein it was provided that A. Arguelles & Associates would construct the room addition for $19,000. The letterhead on which the contract was executed indicated that Alejandro was a general contractor. However, the entity "A. Arguelles & Associates" has never been qualified by any licensee to do construction work in the state. During all negotiations with Reynolds, Alejandro never mentioned that Daniel would be the contractor on the project although Alejandro did advise him that a general contractor would be required. All checks were made out to Alejandro, and Alejandro ordered all supplies and materials used on the project. In addition, Alejandro was at the job site on a regular basis. Prior to signing the contract on July 26, Daniel was approached by Alejandro and asked if he would be willing to act as contractor on the project. Daniel agreed, and thereafter pulled a job permit and used his license number on all pertinent documentation. Other than visiting the job site on a "couple" of occasions, he had no other contact with the project. He never met or had any contact with Reynolds. The actual amount of work done on the project by Alejandro and Daniel amounted to only $5,000.00 and consisted of constructing the foundation up to the tie beam. There is no evidence that this phase of the work was performed in a negligent or incompetent manner.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty as set forth in the Conclusions of Law portion of this order, and that he be fined $500.00. DONE and ORDERED this 1st day of October, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1985. COPIES FURNISHED: Salvatore A. Carpino, Esquire 130 N. Monroe St. Tallahassee, FL 32301 Fred Roche, Secretary Dept. of Professional Regulation 130 N. Monroe St. Tallahassee, FL 32301 Nancy M. Snurkowski, Esquire 130 N. Monroe St. Tallahassee, FL 32301 J. K. Linnan, Executive Director Florida Construction Industry Licensing Board P. O. Box 2 Jacksonville, FL 32201 Mr. Daniel A. Arguelles 9455 S.W. 78th Street Miami, FL 33173
Findings Of Fact At all times relevant hereto, respondent, George E. Feld, held certified general contractor license number CG C021801 issued by petitioner, Department of Professional Regulation, Florida Construction Industry Licensing Board. Feld has been a licensed contractor in Florida since June 1982. He has qualified George E. Feld and Associates, Inc. under his license and operates the business at 2131 Northeast 205th Street, North Miami Beach, Florida. After submitting the low bid, on or about March 1, 1985 George Feld and Associates, Inc. entered into a contract with the City of Tamarac to construct a 5,500 square foot recreation building for the City. The negotiated contract price was $195,950. The contract called for commencement of the project within ten days after the contract was signed and completion by July 27, 1985. Sometime prior to March 20, 1985, Feld met one David P. McCall and Marvin Weiss at a motel in North Miami. McCall was interested in doing work on the Tamarac project. He gave Feld a business card with the name "Arrow Head Development Corporation, Inc." printed on it, and which stated the firm was "state certified" and "licensed" as a general contractor. Feld also noted that Weiss held a general contractor's license, and he assumed that McCall and Weiss were working together. Relying on McCall's card, and later representations by McCall, but without checking with petitioner's office to verify if McCall or Arrow Head were licensed or qualified, Feld agreed to subcontract out the shell and sewer work on the Tamarac project to Arrow Head. To this end, Feld and Arrow Head entered into two contracts on March 20, 1985, for Arrow Head to perform the shell and sewer work. On June 21, 1985 McCall submitted a written "proposal" to Feld for the shell work on the job. The proposal had the following words and numbers typed on its face: "State License Number: #CGC 05961." It was not disclosed whose license number this was. Although McCall denied typing this document (because he does not personally know how to type), he did not deny that it was placed on the document at his direction or with his knowledge. It was not until sometime later that Feld learned that Arrow Head was not qualified by any licensee. Because of his mistaken belief that Arrow Head was qualified, Feld had never qualified that firm. Even so, there was no evidence that Feld intended to allow an unqualified firm to perform the work. Work proceeded on a timely basis as required by the contract. Feld visited the job site daily, and supervised all activities, including those performed by McCall. He routinely inspected the work, verified that it was being done according to specifications, and made corrections where needed. The job specifications called for trusses that were over forty feet in length. Because of this, and pursuant to the South Florida Building Code (Code), it was necessary for the City to hire an engineer to oversee their installation. The City hired one George Fink as engineer to supervise this phase of the project. However, Fink's responsibility was limited to just that, and once the installation was completed, Feld resumed responsibility for the remainder of the job. Trusses are a manufactured roof member and may vary in length, height and pitch. In this case, they were designed in the form of a cathedral roof, and were in excess of forty-seven feet in length. Further, because of the building's design, there were a number of trusses to be installed. The installation of the trusses was begun around 9:00 a.m. on Friday, June 27, 1985 and finished by 2:00 p.m. that same day. As required by the Code, Fink was present and supervised the installation of the trusses on the top of the shell. He confirmed at hearing that they were properly installed. The problem herein arose early that day when Fink had noticed that the building plans did not provide for lateral bracing of the trusses. However, according to Fink, this was not unusual since plans do not normally provide for lateral bracing. Even so, Fink told an unnamed person who "appeared to be the fellow running the erection crew" that lateral bracing should be added to the center and two side core members and that the four trusses on each end needed additional bracing. Fink also suggested to this unnamed individual that sheathing be added "as soon as possible" to the top and outside of the trusses to give added stability and protect them from wind damage and the like. In this regard, at hearing Fink conceded that it was "reasonable" for a contractor to erect trusses one day, and to place sheathing on them the following work day. Fink thought sheathing to be particularly necessary on this job since the trusses were high pitched," "long in length," and there were "no gables or anything in between to ... add any other support." By the end of the work day, the crew had placed the proper bracing on the trusses. However, no sheathing was applied. According to Fink, who was accepted as an expert in this proceeding, a prudent and competent contractor would be aware of the need for sheathing and added bracing because of the potential hazard of high winds caused by late afternoon thunderstorms in South Florida. By failing to place sheathing on the roof, Fink opined that Feld was grossly negligent and incompetent in the practice of construction on the Tamarac project. Sometime on late Sunday night or early Monday morning, most of the trusses on the roof collapsed. Some fell on an electrical wire running to the building. However, no injuries occurred. Only five trusses on the north side of the building remained in place. The City of Tamarac then filed a complaint with petitioner against Feld. The cause of the collapse was not disclosed, and even Fink was unable to state that the lack of sheathing was the cause of the accident. There was no evidence that strong winds or thunderstorms occurred on the night the trusses fell, or that bad weather was predicted when the work day ended on Friday afternoon. Feld acknowledged that no sheathing was placed on the trusses. He attributed this to the fact that the construction crew stopped work at 3:30 on Friday afternoon, and did not return to the job site until the following Monday morning. He intended to install the sheathing the following Monday but by then it was too late. This was in accord with the standard enunciated by Fink that it was not unreasonable for a contractor to erect trusses one day, and to place sheathing on them the following work day. Feld also stated that he was well aware of the need for bracing and sheathing on trusses by virtue of his long experience in the construction business. Feld hinted, but did not prove, that McCall may have been responsible for the accident because of bad blood between the two. In any event, he doubted that wind would have caused the trusses in question to fall. Finally, Feld pointed out that, even though city inspectors were present, no one had come to him on Friday afternoon and said the trusses might collapse over the weekend without sheathing. Feld is a graduate of the University of Buenos Aires with a degree in architecture, and has been engaged in the construction/architecture business for twenty-two years. He presently is an instructor of construction at Miami-Dade Community College. There is no evidence he has ever been the subject of a disciplinary action by the Board on any other occasion.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the administrative complaint against George E. Feld be DISMISSED, with prejudice. DONE AND ORDERED this 9th day of April, 1987, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 9th day of April, 1987.
Findings Of Fact Robert Queen, Respondent, was during all times material herein a registered general contractor and is the holder of license no. RG0011043. On May 5, 1975, Mr. and Mrs. Paul B. Stuewe, of Delray Beach, Florida, a 100 percent disabled veteran-service connected, entered into a contract with Robert Queen then d/b/a Queen Construction Company for construction of a home. The home was to be completed within 45 days. Construction commenced as scheduled, however within 60 days following commencement of construction, the Stuewes became concerned about the progress of construction and notified the Respondent of their concern. During this period, the Stuewes had received liens and notices of intent to file liens from various suppliers and materialmen. To finance the project, the Stuewes obtained a $55,000.00 construction loan commitment from First Federal Savings and Loan Association. As of August, 1975, approximately $41,000.00 of the available $55,000.00 construction loan commitment had been withdrawn by the Respondent. The remaining balance of approximately $14,175.00 was frozen by the lender based on its receipt of liens or notices of intent to file liens in the amount of $23,243.84 from various suppliers and mechanics. Based on the monies available in the construction loan, it is apparent that when all liens are satisfied, a deficit of approximately $9,000.00 will be created. The Stuewes took possession of their home on December 9, 1975, at which point the construction had not been completed as per the plans. When they took possession, Respondent advised that he had monies due from other projects and that upon receipt thereof, the construction for the Stuewe residence would be completed. Mr. Stuewe testified that when he took possession, the home was not carpeted nor did the Respondent install special railings in hallways and baths that were required by the contract and which the Stuewes requested based on his disability. Maynard Hamlin, the construction loan supervisor for First Federal Savings and Loan Association, testified and was in all respects corroborative of the testimony given by Mr. Stuewe. Edward Flynn, Director of the Construction Industry Licensing Board for Palm Beach County testified that he Investigated various complaints that he had received against Respondent during late 1975 and early 1976. During that board's public meeting of February, 1976, the board considered Mr. Flynn's investigation of various complaints received by Respondent. Respondent was noticed but failed to appear at the hearing. The board did however receive a letter from the Respondent's attorney advising that he felt that his presence was unnecessary at the February meeting inasmuch as he was no longer the qualifying agent for Queen Construction Company, a Florida corporation. Minutes of the board's February meeting revealed that there were outstanding liens on two homes under construction by Respondent in excess of approximately $33,000.00. At that meeting, the board suspended Respondent's certificate of competency for an indefinite period of time. Terry Verner, an investigator for the Florida Construction Industry Licensing Board, investigated the instant complaint filed against the Respondent. Mr. Verner was shown an application for the building permit obtained by Respondent for the Stuewe residence and noted that the permit was obtained by Respondent who qualified Johnson Builders as the qualifying contractor. Investigation of Petitioner's files reveals that Respondent qualified Johnson Builders as the qualifying entity under which he would pull all construction contracts but failed to register the Queen Construction Company, Inc. as required by the Board's rules and regulations. (See Petitioner's Exhibit #4). Based on the foregoing findings of fact, I hereby make the following: CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. The authority of the Petitioner is derived from Chapter 468, Florida Statutes. The action of the Respondent in abandoning a construction project for which he contracted leaving a lien balance in excess of $9,000.00 which monies were received by him for completion of a specified construction project and his failure to fulfill the terms of his obligations pursuant to the contract he entered with the Stuewes amount to conduct violative of Chapter 468.112(2)(e), Florida Statutes. Evidence adduced at the hearing established that the Respondent had been disciplined by the County's construction industry licensing board which action is reviewable pursuant to Chapter 468.112 (2)(f), Florida Statutes. Based on the foregoing findings of fact and conclusions of law, I hereby issue the following:
Recommendation It is recommended that the Florida Construction Industry Licensing Board dismiss the Respondent from further responsibility to answer to the Administrative Complaint. DONE and ENTERED this 25th day of August, 1976, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry S. Sinoff, Esquire 1010 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 John W. Tanner, Esquire Suite One. 434 N. Halifax Avenue Daytona Beach, Florida 32018
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact Respondent Paul L. Crowder first registered with petitioner as a general contractor on April 4, 1980. He held license No. RG 0035515 at least until July 1, 1987, when it "was placed on a delinquent status for non-renewal." Petitioner's Exhibit No. 12. Respondent's license "is considered invalid for the 1991-93 licensing period." Id. On February 20, 1990, the late Dorothy Regoski accepted respondent's written proposal to construct a seawall 276 feet long to a height of four feet above mean high water on Santa Rosa Sound around the edge of her yard. She lived at 232 Brooks Street in Fort Walton Beach with her mother (to whom the house belonged). By signing the proposal, Petitioner's Exhibit No. 6, Miss Regoski obligated herself to pay $10,227.00 for the seawall, which everybody agreed was needed to replace an existing seawall that had begun to fail. She gave respondent a check for $6,600 on February 20, 1990, Petitioner's Exhibit No. 7, and agreed to pay the rest when the project was completed. Respondent Crowder testified he was too busy to begin work in February or March but he found time on April 17, 1990, to apply to the City of Fort Walton Beach for a building permit. Sometime thereafter he spent part of a day removing sand just landward of the existing seawall and severing the "tie backs" with which the top of the existing seawall had been anchored to "dead men" further landward. It was necessary to break the "tie backs" in order to install the replacement seawall against the landward side of the existing seawall. Fortunately, removal of the sand diminished or eliminated the pressure or moment tending to tip the top of the existing seawall seaward. But, perhaps mainly because of salt water "cut worms" at work on the existing wall, only some sixty percent of the existing wall remained vertical by the time Mr. Lancaster inspected it in June of 1990. On two or three occasions after the initial excavation, although never for more than a day at a time, respondent or his employees returned to the Regoski home, put in piles, and joined many of them with horizontal 3" x 6" stringers or "whalers." In mid-June, after they had failed to appear for over a month, Ms. Regoski engaged Wayne Lancaster to finish the job. Mother and daughter were understandably alarmed at the rate of erosion boat wakes, the southeast wind and the jetting action of tides created. Mr. Lancaster supplied additional whalers and repositioned others, then installed two courses of 1" x 8" planks separated by filter cloth, and tied back the new seawall to its own deadman. He charged $6200, Petitioner's Exhibit No. 11, and he and his men finished the job in a week and a half. The evidence put respondent's work at approximately two-fifths of the whole. Mr. Pelham, a professional engineer who has designed and supervised the erection of at least 100 seawalls (and who remembers the day respondent was born), put the fraction at 41%. Respondent claimed about 40%. The successor contractor testified it might have been as little as 30%. Once respondent excavated, exposing the old seawall and tie backs, acceptable construction practice required staying with the job until it was finished. Respondent's handling of this project was closely analogous to a roofer's taking a roof off and leaving the roof uncovered. Respondent conceded that the delay was not standard practice and that normally such a project should not be interrupted. He also testified that he knew the existing seawall was damaged and "fixing to go." The project should have been completed in a continuous operation, both to protect the upland against erosion and to avoid siltation of waters of the state.
Recommendation It is, accordingly, and in keeping with Rule 21E-17.002, Florida Administrative Code, RECOMMENDED: That the CILB suspend respondent's license for thirty (30) days, and thereafter until he has paid Ms. Regoski's estate two thousand five hundred seventy-three dollars ($2,573). DONE and ENTERED this 7th day of May, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1992. Copies furnished to: William S. Cummins, Esquire Department of Professional Regulation 1940 N. Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Paul L. Crowder 521 Shrewbury Road Mary Esther, FL 32569 Daniel O'Brien, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue Whether Respondent, a registered general contractor, (1) unlawfully and willfully committed fraud and theft, violated the Fictitious Name Statute, and violated Municipal and County Contractor Licensing Ordinances, and (2) violated other provisions of the Construction Industry Licensing Law relating to the name under which a qualifying agent may engage in business.
Findings Of Fact At all times material hereto, Respondent was the holder of Registered General Contractors License No. RG0013533 issued by the Board to Respondent, d/b/a Deltec Construction Co. (Stipulation of counsel). Respondent is a fifty-five year old general contractor who has worked in construction for thirty-seven years, and has never been disciplined for misconduct associated with construction activities. (Testimony of Respondent) Respondent, at all times material hereto, did not qualify or license with the Board Trendway Construction Co., Trendway Construction Inc., or Trend- Tech Construction Co. (Testimony of Respondent, P.E. 1, 2, 3) Respondent's Business Activities in Daytona Beach, Florida On May 24, 1978, Respondent, d/b/a Deltec Construction Co., contracted with Darcy A. Vernier to assist him in the formation and operation of a corporation to be known as Trendway Construction Inc. In exchange for $8,500.00, Respondent agreed to provide a broad range of business assistance, expertise, training, and equipment to Trendway Construction, Inc. Vernier was designated General Manager and President of the new Company, and agreed to be individually responsible for its overall management. Although the long-term goal of the new Company was to perform general contracting, Vernier and Respondent envisioned that the Company would first gain necessary knowledge and experience by limiting its construction work to masonry and flat concrete construction projects. Profits were to be equally divided between Respondent (Deltec) and Vernier (Trendway), and, as subsequently amended, the Corporation was to be wholly owned by Vernier. (Testimony of Vernier, Respondent, P.E. 4) Prior to executing the contract, Vernier met with Respondent and discussed their proposed business venture on three separate occasions during a ten-day period. Vernier had his attorney review the contract prior to his signing, and fully understood its provisions. The proposed contract was modified, at Vernier's request, to ensure that Vernier would be the sole owner of the Corporation. (Testimony of Vernier) Prior to executing the contract, Respondent took Vernier to observe a masonry or flat concrete construction job in Ormond Beach, which he had recently completed d/b/a Deltec Construction Co. (Testimony of Vernier, Respondent) On July 6, 1978, pursuant to his contractual obligation, Respondent paid $250.00 for and obtained a Masonry Sub-Contractor's License, in Vernier's name, from the Building Department of the City of Daytona Beach. (Testimony of Respondent, Holmes, Vernier) Conflicting evidence was presented on whether, in order to do sub- contracting, masonry and flat concrete work within the City of Daytona Beach, a sub-contractor must also secure a certificate of competency or license from Volusia County under Ordinance 69-3. By stipulation, the testimony of Fred Holmes, Building Official with the City of Daytona Beach, was subsequently taken by deposition and submitted to determine this question. However, the testimony of Holmes is inconclusive, conflicting and unclear. (Testimony of Respondent, Vernier, Holmes, P.E. 7) Respondent did not represent to Vernier that Deltec Construction Co.'s licenses could be used by Vernier d/b/a Trendway Construction, Inc., and that no further licenses would be necessary. Vernier testified that Respondent made such representation, and Respondent denied it. Vernier's testimony is inconsistent with the express contractual provision which required Respondent to affirmatively secure "initial licensing" for Trendway Construction, Inc. Furthermore, Vernier's demeanor as a witness reflected a level of bitterness and hostility toward Respondent which may have influenced his recollection. (Since his construction company failed, Vernier had demanded Respondent return his money and filed a civil suit for such purpose.) In contrast, Respondent's unequivocal testimony on this question is buttressed by his consistent actions in securing an additional license for the Company from the City of Daytona Beach), and his subsequent action in attempting to secure a local license for another company under a contract markedly similar to the one between Vernier and Respondent, post. (Testimony of Respondent, Vernier, Garr, Fortner) Respondent was aware, however, that the Company would eventually have to acquire a license from Volusia County; he concluded, though, that his contractual obligations to secure "initial licensing" encompassed only the license required by the City of Daytona Beach. (Testimony of Respondent) Trendway Construction, Inc., was never organized as a corporation as envisioned by the contract between Respondent and Vernier. Soon after the contract was signed, serious business disagreements arose between Respondent and Vernier. Vernier, then, unilaterally moved the business, including its equipment, furnishings, office forms, and principal employee from Daytona Beach and relocated in another community. From the execution of the contract to Vernier's ultimate closing of the business, Respondent never received any profits from its operation, and his non-participation in the business operations was acknowledged by Vernier. During September or October, 1978, Vernier changed the name of the Company to Pelican Construction Co. During its existence, Trendway Construction was not registered as a fictitious name with the Clerk of the Circuit Court of Volusia County. (Testimony of Respondent, Vernier) Respondent's Business Activities in Ocala, Florida During September and October, 1978), Respondent operated a duly licensed masonry and flat concrete construction business known as Deltec Construction Co., in Ocala, Florida. (Testimony of Garr, Fortner, Respondent) On October 5, 1978, Respondent d/b/a Deltec Construction Co. contracted with Albert W. Latham to assist in the formation and operation of a corporation to be known as Trendway Construction, Inc. (In the Daytona Beach transaction, Trendway Construction Co. had never been incorporated by Vernier, and he had subsequently changed the Company's name, infra.) In exchange for $8,500.00, Respondent agreed to provide business assistance, expertise, training and equipment to Trendway Construction, Inc. Albert Latham was designated as General Manager and President of the newly formed Company, and agreed to be individually responsible for its general overall management. Although general construction was the Company's long-term objective, the parties invisioned that necessary knowledge and experience would be acquired by limiting their initial work to sub-contracting masonry and flat concrete construction projects. Profits were to be equally divided between Respondent and Latham, and 60 percent of the capital stock of the corporation was to be owned by Latham--the remaining 40 percent, by Respondent. (Testimony of Respondent, P.E. 13) On October 23, 1978, Trendway Construction, Inc., was officially organized and formed pursuant to the contract between Respondent and Latham. (P.E. 9) Under the contract between Respondent and Latham, Respondent was obligated to secure initial licensing for the new Company, Trendway Construction, Inc. Because Trendway Construction, Inc., was going to initially engage only in masonry and flat concrete sub-contracting work, the only license required was a certification of competency from the City of Ocala. Respondent made reasonable, diligent and earnest efforts to obtain the required certification from the City. First, he tried to apply for the license on behalf of Trendway Construction, Inc. But, since Latham owned a controlling interest in the Company, and was apparently considered its owner, City Building Department officials insisted that Latham must apply for the license on behalf of the Company. Respondent then obtained and delivered to Latham the necessary application forms and character reference letters, set up appointments for Latham at the Building Department, and repeatedly reminded him of the need to secure the local certification. Despite Respondent's efforts, Latham procrastinated, and failed to obtain from the City of Ocala the required license for Trendway Construction, Inc. It is probable that if proper application had been made for the license, it would have been issued to Latham d/b/a Trendway Construction, Inc., upon payment of the application fee and proof of insurance. (Testimony of Respondent, Garr, Fortner, P.E. 13) After formation of the Corporation, Respondent continued to provide assistance to Latham and Trendway Construction, Inc., but he did not dictate what construction work would be done or whore it would be undertaken. Latham directed two construction work crews and made those decisions. Nevertheless, Respondent warned Latham that no construction work should be undertaken within Ocala until the necessary City certification was obtained. (Testimony of Respondent) On October 24, 1978, Trendway Construction, Inc., poured a driveway slab for Herbert Adams at 2332 East Silver Spring Boulevard, Ocala, Florida, for $668.72. Adams dealt only with Jack Cook, an employee of Trendway, and neither knew nor had any dealings with Respondent. (Testimony of Adams, Garr) The name of "Trendway Construction, Inc.," has not been registered with the Clerk of the Circuit Court of Marion County, Florida. (Testimony of Respondent) Respondent did not attempt to mislead Latham by representing that Trendway Construction, Inc., could operate under Deltec's local or state licenses. (Testimony of Respondent) There was no evidence that Respondent mislead or misrepresented any material fact to Latham or failed to diligently carry out his obligations under their contract; neither was any evidence presented to show Latham was dissatisfied, in any manner, with Respondent's contractual performance. Respondent's Business Activities in Gainesville, Florida Respondent sold a construction business to Valentine Webber of Gainesville, Florida, for $8,500.00. (Testimony of Respondent)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Board find Respondent Not Guilty of the charges contained in its Administrative Complaint, and that the Complaint be DISMISSED. DONE and ENTERED this 11th day of June, 1980, in Tallahassee, Florida. R. L. CALEEN JR., Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 904/488-9675
The Issue Whether Respondent, a certified general contractor, is guilty of pulling permits for construction projects not supervised by Respondent, and, if so, the appropriate disciplinary action which should be taken by the Board.
Findings Of Fact At all times material hereto, Respondent was the holder of Certified General Contractor's License No. CG C005204 issued by the Board. Although this license was active at the time the Administrative Complaint was filed, Respondent has placed it on an inactive status until June 30, 1981. (Stipulation, Testimony of Respondent) As to Amiguet Construction Project During 1976, Jose Amiguet entered into a contract with San Pedro Construction Inc. for the construction of an addition to his existing residence located at 1409 Granada Boulevard, Coral Gables, Florida. (Stipulation, Petitioner's Exhibit 1) Since San Pedro Construction Inc. was not properly licensed as a building contractor, it was not qualified to apply for and obtain a Coral Gables building permit to undertake this residential addition. Therefore, on January 12, 1977, pursuant to an agreement with Jose San Pedro, representative of San Pedro Construction Inc., the Respondent applied and obtained the required Coral Gables building permit under his on name. (Stipulation, Testimony of Respondent, Charles Kozak, Petitioner's Exhibit 1) The Respondent did not participate in, manage, or supervise, in any manner, the construction of the Amiguet residential addition by San Pedro Construction Inc. Jose Amiguet neither knew the Respondent, nor had any dealings with him during the construction work. (Stipulation, Testimony of Respondent) Final inspection of the Amiguet construction project has not been conducted by the Coral Gables building inspection department since the required documentation concerning sidewalk improvements and subcontractors used has not yet been submitted. The actual construction work has, however, been completed, to the satisfaction of Jose Amiguet. (Testimony of Charles Kozak, Respondent) Respondent made an effort to assist Jose Amiguet in obtaining the final inspection and clearance by the city building inspection department. However, since Respondent did not supervise the subcontractors' work, he cannot truthfully complete the required documents. He has, therefore, offered to (1) pay for the additional costs associated with obtaining the necessary final inspection, and (2) transfer to Jose Amiguet the right to receive, after final inspection, the refund of the contractor's performance bond in the amount of approximately $400-$500. (Testimony of Respondent) As to the Shaw Construction Project During July, 1977, and on February 8, 1978, James L. Shaw entered into separate contracts with San Pedro Construction Inc. for the construction of residential improvements at 836 Obispo Avenue, Coral Gables, Florida. The final contract was in the amount of $16,700.00. (Stipulation, Testimony of Respondent, James L. Shaw, Petitioner's Exhibit 4) Since San Pedro Construction Inc. was an unlicensed contractor, Respondent, on November 15, 1977, pursuant to an agreement with that company, applied for and obtained the required Coral Gables building permit. (Stipulation, Testimony of Respondent, James L. Shaw, Petitioner's Exhibit 4) The Respondent did not participate in, manage, or supervise in any manner the construction of the Shaw residential improvements by San Pedro Construction Inc. James Shaw neither knew Respondent, nor had any dealings with him during the construction work. (Stipulation, Testimony of Respondent) On or about April, 1978, the lending institution for the Shaw project, and James Shaw stopped making construction payments to San Pedro Construction Inc., due to its failure to proceed on and abandonment of the project. (Testimony of James Shaw, Charles Kozak) On June 20, 1978, James Shaw obtained an "owner-builder" permit from the City of Coral Gables and incurred the following costs in order to complete the construction project as originally planned: $12,000 for labor and materials, and $625.00 for architectural services. Inasmuch as approximately, $10,128.00 had earlier been paid to San Pedro Construction Inc. for the construction project, the total cost of the project to James Shaw was approximately $22,753.00-$6,053.00 in excess of the original contract price. (Testimony of James Shaw and Respondent) San Pedro Construction Inc. is no longer in business, and the whereabouts of its owner, Jose San Pedro, is unknown. (Testimony of Respondent) As with the Amiguet construction project, final inspection of the Shaw project cannot be conducted until missing documentation relative to sidewalk improvements and subcontractors involved is supplied. In an effort to assist James Shaw, the Respondent has offered to transfer to Shaw the right to receive, after final inspection, the refund of the contractor's performance bond in the amount of approximately $400-$500. (Testimony of Charles Kozak and Respondent) At all times material hereto, the Respondent was aware that it was unlawful, under both state law and the Code of Metropolitan Dade County, to aide an unlicensed contractor in evading the contractor licensing law, and to use one's license to pull permits for projects not supervised by the licensee. (Stipulation, Testimony of Respondent, Petitioner's Exhibit 1) The Metro Dade Construction Trades Board heard the complaint against the Respondent and found prima facie evidence and probable cause to refer the matter to the Florida Construction Industry Licensing Board (Stipulation) Notwithstanding the evidence presented, the Administrative Complaint and the Board's counsel at hearing limited the amount sought for restitution purposes to $5,300.00, provided both the performance bonds are refunded to the benefit of Jose Amiguet and James Shaw. (Administrative Complaint, statement of Board's Counsel) Respondent regrets having taken the actions complained of in the Board's Administrative Complaint, and now more fully understands the resulting burdens which have been placed on Jose Amiguet and James Shaw. (Testimony of Respondent)
Recommendation Guilty, as charged. Respondent's certified general contractor's license should be suspended until such time as full restitution is made to the persons damaged by his actions.
