Findings Of Fact At all times material hereto, Daniel Frank Molinari (Respondent) was a certified plumbing contractor, being licensed by the Florida Construction Industry Licensing Board (CILB) and having been issued license numbers CF C021437 and CF C041671. On or about March 20, 1990, the State Attorney of Dade County, Florida charged Respondent by Information with an attempted offense against intellectual property in violation of Sections 815.04(3) and 777.04, Florida Statutes, a misdemeanor: "[Respondent] on the 19th day of February 1990 . . . willfully, knowingly, without authorization, attempt to disclose or take data, programs, or supporting documentation, to wit: The CONTENTS of a CONTRACTOR'S LICENSING EXAMINATION, which is confidential as provided by law, residing or existing internal or external to a computer, computer system, or computer network. . ." On or about July 30, 1990, Respondent pled nolo contendere to the misdemeanor charge. Based upon Respondent's plea of nolo contendere, the Dade County Judge entered a judgement finding Respondent guilty as charged, withholding adjudication and imposing costs in the amount of $300.00. In the Dade County judicial circuit, a judge usually makes a finding of guilt when a defendant pleads nolo contendere even if adjudication is withheld. Typically, items in a CILB examination are reused on subsequent exams. However, each examination must contain a certain percentage of new items. Because of Respondent's attempted act, the CILB considered the items on the contractors examination in 1990 to be compromised and, therefore, unusable for subsequent examinations. The 1990 CILB examination consisted of two hundred and twenty-one (221) items. Consequently, 221 new items had to be developed at a cost of approximately $100.00 per item. On or about June 10, 1993, Respondent submitted to the CILB a Certification Change of Status Application (Application) to activate his inactive certified plumbing contractor license (license number CF C041671). Question 7(H) of the Application inquired whether Respondent had ever "Been found guilty of any crime other than a traffic violation". He responded "no" to the question. The Application required an affirmation, and Respondent so affirmed, that "these statements are true and correct and I recognize that providing false information may result in a fine, suspension, or revocation of my contractor's license." Respondent's request for activation could have been denied if he had responded "yes" to question 7(H) of the Application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board enter a final order: Dismissing Count II of the administrative complaint in DOAH Case No. 94-5259; Dismissing all counts of the administrative complaint in DOAH Case No. 95-0199; Revoking Respondent's licenses; Imposing costs for the investigation and prosecution to be determined by the construction Industry Licensing Board. DONE AND ENTERED this 29th day of August, 1995, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 29th day of August, 1995.
The Issue Whether Respondent's license as a certified roofing contractor in the state of Florida should be revoked, suspended or otherwise disciplined under the facts and circumstances of this case.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, Respondent, Christopher G. Coxon, held a license as a certified roofing contractor, number CGC029604. On or about November 15, 1988, Respondent entered into a written contract with John DeCarlucci to repair a leak in the roof of DeCarlucci's residence at 1717 North Oregon Circle, Tampa, Florida. The contract amount was $400.00, of which Respondent was paid $200.00 by DeCarlucci on November 16, 1988. The Respondent gave DeCarlucci a one-year warranty on his work. The balance owed on the contract was to be paid upon satisfactory completion of the job. Respondent commenced work on the DeCarlucci residence on November 16, 1988. On November 16, 1988 Respondent removed two rows of roofing tile from DeCarlucci's roof while attempting to repair the leak in the roof. The Respondent carried these roofing tiles away from DeCarlucci's residence on November 16, 1988 and has never returned these roofing tiles or provided DeCarlucci with any replacement roofing tiles. On November 23, 1988 the area of the roof that Respondent had attempted to repair leaked. As a result of several telephone calls to Respondent from DeCarlucci, the Respondent returned to the job site on November 26, 1988 and December 7, 1988, and whatever repairs the Respondent attempted on those dates failed in that the roof continues to leak. After December 7, 1988 the Respondent did not return to the job site. DeCarlucci attempted to reach Respondent through the remainder of December 1988 and January and February 1989 by telephone and a certified letter but to no avail. As a result of DeCarlucci filing a complaint with the City of Tampa Building Department on January 5, 1989, the job site was inspected by the construction inspector for the building department and the project cited for violation of the building code. Respondent was notified of the complaint and building code violation. The Respondent was given until February 14, 1989 to correct the leakage and to replace the missing roofing tiles. As a result of Respondent's failure to take any corrective action toward repairing the roof or replacing the missing roofing tiles, the DeCarlucci complaint was filed with the City of Tampa Unified Construction Trades Board for disciplinary action. The Respondent subsequently returned the $200.00 to DeCarlucci that he had received from DeCarlucci on the contract price on November 16, 1988. In its complaint against the Respondent the City of Tampa Unified Construction Trades Board alleged that Respondent's failure to properly repair the roof was a violation of Section 101.1-Covering, Standard for the Installation to Roof Coverings, 1985, edition, Southern Building Code Congress International, Inc., and Section 25-101(5)(10) and (22) Grounds for Disciplinary Action, Penalties, City of Tampa, Building and Construction Regulations. Respondent was duly notified of the hearing to be held on April 4, 1989 on the allegations. At the hearing on April 4, 1989 the Respondent was found to have violated those sections set forth in Finding of Fact 13 and by unanimous decision the Board ordered Respondent to cease all construction activity and revoked the Respondent's permitting privilege. At no time material to this proceeding, has the Respondent made restitution to DeCarlucci for the missing roofing tiles or the cost of labor and materials for installing such tiles. While Section 489.129(1), Florida Statutes, provides for the assessment of costs associated with the investigation and prosecution of a case, there was no evidence presented by the Department as to the amount of those costs.
Recommendation Upon consideration of the foregoing findings of fact and conclusions of law and disciplinary guidelines set forth in Rule 21E-17.001, Florida Administrative Code, it is accordingly, RECOMMENDED: That the Board enter a Final Order finding Respondent, Christopher G. Coxon guilty of violation of Section 489.129(1)(d)(i) and (m), Florida Statutes, and for such violation revoke his license as a certified roofing contractor. DONE and ENTERED this 2nd day of January, 1992, in Tallahassee, Florida. WILLIAM R. CAVE 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 2nd day of January, 1992. APPENDIX The following constitutes my specific rulings pursuant to Section 120-59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in the case. Rulings on Proposed Finding of Fact Submitted by the Petitioner Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed findings of fact: 4-6(1); 7-8(2); 9-10(3); 11(4); 13-16(5); 17-18(3); 19(6); 20-21(7); 22-23(8); 24-26(9); 27 28(10); 29-30(11); 31(12); 32(16); 33(13); 34(14); and 35- 36(15). Proposed findings of fact 1-3 are covered in the Preliminary Statement. Proposed finding of fact 12 is rejected as not being supported by competent substantial evidence in the record. See proposed findings of fact 20 and 21 and finding of fact 7. Rulings on Proposed Findings of Fact Submitted by the Respondent The Respondent did not submit any proposed findings of fact. COPIES FURNISHED: Craig M. Dickinson, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Christopher Coxon 554 Carson Drive Tampa, FL 33615 Daniel O'Brien, Executive Director Construction Industry Licensing Board P.O. Box 2 Jacksonville, FL 32202 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
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:
Findings Of Fact The Respondent, Marlene E. Lutman, is a vice president of American Custom Builders, Inc. and was a vice president in 1977. Respondent holds licenses Number CR C012570 end Number CR CA12570 issued by the Petitioner Board. On September 11, 1978, Respondent submitted a certification change of status application to the Florida Construction Industry Licensing Board. This application, completed by Respondent under oath on September 7, 1978, was filed for the purpose of changing the contractor's licenses held by Respondent to add the name of American Custom Builders, Inc. to said licenses. On July 6, 1979, an Administrative Complaint was filed against Respondent, doing business as American Custom Builders, Inc., seeking to permanently revoke her licenses and her right to practice under said licenses and to impose an administrative fine in the amount of $500.00. Respondent Lutman requested an administrative hearing, which was scheduled for September 6, 1979, continued on Motion of Respondent, and held November 29, 1979. On the application completed by Respondent, Question 12(b) asked: Are there now any unpaid past-due bills or claims for labor, materials, or services, as a result of the construction operations of any person named in (i) below or any organization in which such person was a member of the personnel? Question 12(c) of the application asked: Are there now any liens, suits, or judgments of record or pending as a result of the construction operations of any person named in "(i) below" or any organization in which any such person was a member of the personnel? Respondent, as a vice president of American Custom Builders, Inc., was designated in "(i) below." She answered "no" on the application to both of the above stated questions. Respondent completed the application while she was in Florida. Prior to completing the application, Respondent spoke by telephone with John D. Cannell, an attorney in Ohio, in reference to Questions 12(b) and 12(c), supra. Cannell told Respondent that there were no unpaid bills outstanding. He said that there had been liens filed involving American Custom Builders, Inc., but that these liens had been cancelled. Cannell based his statements to Respondent upon oral assurances from personnel at the bank involved in financing the construction project associated with the liens that all liens had been paid. It was later learned that on September 7, 1978, the date Cannell told Respondent the liens had been cancelled, the liens had not been cancelled and were of record in the Recorder's Office of Geauga County, Ohio. Liens had been filed on January 6, 1978, January 23, 1978, and January 3l, 1978, by various subcontractors involved in the construction of a house owned by Winford and Sally Ferrentina. The liens were based on claims against American Custom Builders, Inc. as general contractor and the Ferrentinas as owners for unpaid labor and materials and were not satisfied of record until September 20, 1978, on which date the January 6, 1978 lien was satisfied, and March 22, 1979, on which date the other two (2) liens were satisfied. The Hearing Officer finds that Respondent Lutman did not intend to make a material false statement but negligently relied on oral representations that there were no past-due bills and no liens of record pending as a result of her construction operations. Both parties submitted proposed findings of fact, memoranda of law and proposed recommended orders, and the Petitioner Board submitted a reply memorandum. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this order they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based upon the foregoing Findings and Conclusions of Law, the Hearing Officer recommends that the Respondent, Marlene Lutman, be reprimanded. DONE and ORDERED this 1st day of February, 1980, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Jeffery B. Morris, Esquire 2400 Independent Square One Independent Drive Jacksonville, Florida 32202 Jeffrey R. Garvin, Esquire 2532 East First Street Post Office Box 2040 Fort Myers, Florida 33902 DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. DOAH CASE NO. 79-1546 Marlene Lutman, CR C012570, CR CA 12570 Respondent, /
The Issue The issues to be determined in this case are whether the Respondent, Kenneth Landers, violated state regulations related to the operation of a waste tire site, as charged by the Department of Environmental Protection ("Department"), and, if so, whether he should pay the administrative penalties and investigative costs and undertake the corrective actions that are demanded by the Department.
Findings Of Fact The Department is the state agency charged with the power and duty to protect Florida’s air and water resources and to administer and enforce the provisions of Chapter 403, Florida Statutes, and Florida Administrative Code Title 62. Respondent is a person doing business as Trackside Tires on property located at Zero 23rd Street East, Jacksonville, Duval County, Florida (“the property”). Respondent leases the property from its owner. Respondent sells used tires and recycles waste tires. Respondent is responsible for the day-to-day operation of the facility, including compliance with environmental regulations. Under Florida Administrative Code Chapter 62-711, the Department regulates waste tires. No person may maintain a waste tire site except as part of a permitted waste tire processing facility. Fla. Admin. Code R. 62-711.400(1). A "waste tire" is defined in Florida Administrative Code Rule 62-701.200(126) as a tire that has been removed from a motor vehicle and includes used tires. A "waste tire site" is defined in Rule 62-701.200(131) as a site at which 1,500 or more waste tires are accumulated. Respondent did not dispute that he had accumulated over 1,500 tires on the property. On July 29, 2009, Brian Durden of the Department's solid waste staff visited the property. He observed and measured a waste tire pile on the property which was 210 feet by 40 feet and averaged 6 feet in height. Using a method for estimating the number of tires in a pile by its cubic volume, and adding an estimate for the number of tires in four truck trailers on the property, Durden estimated that there were over 23,000 waste tires on the property. On July 29, 2009, the property was a waste tire site. In order to operate a waste tire site, a permit must be obtained from the Department. Respondent does not have a permit to operate a waste tire site. Respondent was previously cited by the Department for operating four other unpermitted waste tire sites, which was resolved by consent order in 2009. The consent order required Respondent to clean up the four sites and to pay penalties and costs. Respondent stated that he took many of the tires from the four sites and stored them in a warehouse, but was then forced to bring about 10,000 used tires to the property that is the subject of this proceeding because he lost the lease on the warehouse. On the day of the hearing, September 20, 2010, Respondent stated that he still had approximately 1,800 tires on the property that he could sell for reuse and other tires in trailers. He agreed with Durden's estimate that there are over 5,000 tires still on the property. In August 2009, the Department issued a warning letter to Respondent. The Department issued the NOV on May 8, 2010. Respondent contends that he is attempting to obtain a permit from the Department to operate a waste tire site. However, to date he has been mostly involved in "processing" tires at his property and has not made substantial progress in obtaining a permit.
The Issue The issues are whether Respondent committed the several violations of Sections 489.129(1)(h)2.,(h)3.,(j),(k), and (n), Florida Statutes (1997), for the reasons stated in the respective Administrative Complaints and, if so, what, if any, penalties should be imposed. (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of contracting. Respondent is licensed as a certified general contractor pursuant to license number CG C059414. At all relevant times, Respondent was the qualifying agent for Fred T. Garrett Construction, Inc. ("FTG"). As the qualifying agent, Respondent was responsible for all of FTG's contracting activities in accordance with Section 489.1195, Florida Statutes. Respondent failed to obtain a certificate of authority for Fred T. Garrett Construction, Inc., as required by Section 489.119(2), Florida Statutes. The St. Cyr Case On or about August 21, 1998, Respondent entered into a contract with Louis L. St. Cyr to construct an addition to the residence located at 201 South Bel Air Drive, Plantation, Florida. The contract price was $50,000. Although Mr. St. Cyr paid $2,500 to Respondent, Respondent failed to commence work and canceled the project, thereby abandoning it without just cause and without proper notification to Mr. St. Cyr. The contract did not permit Respondent to keep the $2,500 paid by Mr. St. Cyr, and Respondent failed to refund the payment within 30 days after abandonment. Out of the $2,500 he received from Mr. St. Cyr, however, Respondent paid $1,600.00 to the architect before abandoning the project. Thus, the net amount that Respondent owes to Mr. St. Cyr is $900. Petitioner incurred a total of $1,092.28 in investigative costs relating to the St. Cyr case. The Forney Case On May 22, 1998, Respondent, who was doing business as FTG, entered into a contract with Mr. Warren Forney for the construction of a two-bedroom, one-bath addition to the residence located at 1698 Northeast 33rd Street, Oakland Park, Florida. The contract price was $32,500. The contract with Mr. Forney did not contain a written statement explaining the customer’s rights under the Construction Industries Recovery Fund, as required by Section 489.1425(1), Florida Statutes. On July 7, 1998, Respondent obtained permit number 98-050297 from the Oakland Park Building Department. Construction commenced on or about July 7, 1998, and continued sporadically until October 29, 1998, when Mr. Forney dismissed Respondent for failure to timely complete the project. The Oakland Park Building Department issued notices of violation against the project on August 3, September 11, and October 14, 1998, for various building code violations. Mr. Forney was forced to obtain a homeowner’s permit and subsequently hired a subcontractor to complete the work. Mr. Forney paid Respondent approximately $29,250 before relieving Respondent of his duties. To complete the project, Mr. Forney paid a total of $48,746.52, which was $15,396.52 over and above the original contract price. Petitioner incurred a total of $2,190.78 in investigative costs relating to the Forney case. The Kong Case In or around January 1998, a contractor named Lakeview Concepts hired Respondent to perform demolition work for the Kong dry cleaning store project on the property located at 5171 South University Drive, Davie, Florida. On or about June 17, 1998, permit 98-00002349 was issued to Respondent to perform alterations on commercial property located at 5171 South University Drive, Davie, Florida. Respondent, however, did not yet have a contract with the owner for this work. The next month, on or about July 30, 1998, Respondent, who was doing business as FTG, entered into a contract with Shek Kong to complete the dry cleaning store project at 5171 South University Drive, Davie, Florida, for the contract price of $22,300. Shek Kong made payments to Respondent totaling $16,000. Respondent’s work was of poor quality, however, and on or about November 6, 1998, he ceased work, though the project had not been completed. On or about November 14, 1998, Douglas Frankow, license number CB C052960, gave Mr. Kong an estimate of $20,562 to complete the project. Thereafter, on or about June 30, 1999, Mr. Kong contracted with George Settergren, another licensed contractor, to complete the project for a contract price of $27,956. On December 9, 1999, in Case No. 98-020065 08, the Circuit Court, Seventeenth Judicial Circuit, Broward County, Florida, rendered a Final Judgment against Respondent and in favor of Mr. Kong. This judgment awarded Mr. Kong the total amount of $28,693.30, plus 10 percent interest per annum. Petitioner incurred a total of $2,502.78 in investigative costs relating to the Kong case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Construction Industry Licensing Board enter a Final Order finding Respondent guilty of violating Sections 489.129(1)(h)2., (h)3., (j), (k), and (n), Florida Statutes, imposing administrative fines in the aggregate amount of $3,700, assessing investigative costs in the aggregate amount of $5,785.84, placing Respondent's license on probation for a period of four years from the date the Final Order is entered by the Board, and awarding payment of restitution to each customer as follows: (1) to Warren Forney, the amount of $15,396.52; (2) to Shek Kong, satisfaction of the unpaid civil judgment in the amount $28,693.30, plus 10 percent interest accrued thereon; and (3) to Louis L. St. Cyr, the amount of $900. DONE AND ENTERED this 15th day of February, 2002, in Tallahassee, Leon County, Florida. _________________________________ JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 2002.
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 =================================================================
