Findings Of Fact Respondent, Susan Shilling Howell, was first licensed as a registered building contractor in Florida in October, 1981. License Number RB 0040698 was issued to her, qualifying M. B. Howell Homes, located at 2601 Dale Avenue, Panama City Beach, Florida, 32404. This license expired on June 30, 1983 and no address changes were made to the records pertinent to it during period of activity, nor has it been renewed since it expired. On March 23, 1983, William Carrier and J. Paula Carrier, his wife, entered into a contract with Respondent and her husband, M. B. Howell, to purchase a house, constructed by their company, located in Bay County, Florida. Closing was scheduled for some time in April, 1983, but because the house was not completed sufficiently to satisfy the Carriers, the closing was delayed and they did not move in until sometime in June, 1983. Even at that point, there remained a substantial list of discrepancies which required correction by the builder. These included such things as: a badly poured driveway - this was replaced by Respondent once, but when found to be still unsatisfactory, Respondent refused to correct. poor interior painting, poor exterior painting, and a damaged tub in the bathroom. Mr. Carrier contacted Respondent regarding these discrepancies right after he moved in. Both Respondent and her husband, the actual builder, came to the house and looked at the items and while a few of the minor discrepancies were corrected, the major ones were not. In Carrier's estimation, 80 percent of the problems were not fixed. Though he asked Respondent to come back and fix the items several times, with the last request by letter dated October 18, 1983, no one did and on November 14, 1983, he asked another contractor to come in and make the necessary repairs. During all this time, Respondent and M. B. Howell Homes were using the address, 126 Rose Coral Drive, (their home), as their place of business. On January 12, 1984, Respondent went to the Bay County Building Office and purchased a building permit in the name of M. B. Howell Homes, listing herself as contractor and her expired license on the application form along with the address, 126 Rose Coral Drive, as the business address. Permit Number 9472 was issued. This entire transaction was observed by Elizabeth O'Connor, a permit clerk, who recognized Respondent as the applicant. Thereafter, on March 15, 1984, Respondent again applied for a building permit for M. B. Howell Homes, at the same office, this time dealing directly with Ms. O'Connor. Again she listed her expired license number and the above address on the application form and was issued permit 9733. On both occasions, her license had expired and had not been renewed and she made no mention of the fact that the license was delinquent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that, the registration of Respondent, SUSAN SHILLING HOWELL, as a registered building contractor in Florida be revoked. RECOMMENDED in Tallahassee, Florida, this 8th day of March, 1985. ARNOLD H. POLLOCK 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 8th day of March, 1985. COPIES FURNISHED: W. Douglas Beason, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Susan Shilling Howell 126 Rose Coral Drive Panama City Beach, Florida 32407
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is now, and has been at all times material to the instant case, a Florida-licensed roofing contractor and general contractor. He received his roofing contractor's license on August 10, 2004, and his general contractor's license on October 13, 2005. At all times material to the instant case, GGC has held a certificate of authority authorizing it to engage in contracting in Florida through a qualifying agent. At all times material to the instant case, Respondent has been the primary qualifying agent for GGC. On January 5, 2007, GGC, through Respondent, entered into a written contract with Assad and Millicent Thompson, agreeing, for $37,135.00, to construct a rear porch lanai addition to the Thompsons' single family home in Royal Palm Beach, Florida (Project). The Thompsons paid GGC (by check) $11,140.50 at the time they entered into the contract. They made three subsequent payments to GGC (by check) totaling $21,232.50. The last of these payments was made on or about April 17, 2007. On January 9, 2007, GGC, through Respondent, applied for a permit from the Palm Beach County Planning, Zoning, and Building Department to perform the work it had agreed to do on the Thompsons' home. The permit was subsequently issued. In or around March of 2007, GGC began work on the Project. Dissatisfied with the progress GGC was making on the Project, the Thompsons, on June 5, 2007, sent the following letter to Respondent: With reference to the delay in completing the above construction, we are writing to request your immediate attention. We would like to know specifically: The reason for the delay[.] Your intention in writing as to your estimated time of completion of [the] specified project. Please note we have not physically seen you since April 19, 2007. We understand that inspection of the roof on May 10th resulted in certain violations and as per your conversation with Assad [Mr. Thompson] (when he called you on May 20th), you had problems contacting the Engineer. Please note that his name, telephone and fax are clearly indicated on the plan[s]. Per telephone conversation with him, he has not heard from you recently. You have indicated impatience and anxiety on our part, quite frankly the patience of JOB would have run out long ago. The pile of rubbish is a breeding room for all kinds of creatures and has been a disgusting sight not only for us, but for our neighbors. The open roof has created a vulnerable situation for us and can only deteriorate as we are now in hurricane season. We urge you to contact us urgently with your plan of action. Not having received a written response from Respondent, the Thompsons, on June 25, 2007, sent a follow-up letter to Respondent, which read as follows We note that you have ignored our previous letter of June 5th and you have also failed to honor your telephone promises of June 8th and June 19th to proceed with stucco/electric/rubbish removal etc. In fact absolutely nothing has been done on this job since May 18th. This is totally unacceptable. We have arrangements in place for use of the patio July 14th, cancellation of which will result in serious inconvenience for us. Please be advised that if no progress is made by June 30, 2007, we will be forced to seek all measures at our disposal to have the patio satisfactorily completed. We once again request your urgent co-operation in this matter. The next day, June 26, 2007, the Thompsons received a letter from Respondent (sent by facsimile transmission) acknowledging his receipt of the Thompsons' June 25, 2007, letter. In his letter, Respondent explained that he was "in a bad situation financially" due to circumstances "out of [his] control" related to another project, and he asked the Thompsons to "help [him] resolve[] this matter" by paying the "stucco man" $1,000.00 for materials and an additional $1,000.00 "when [the stucco work] was completed," as well as paying $400.00 for a dumpster to be brought to the Project site (which payments would go towards the monies the Thompsons had to pay for the Project under their contract with GGC). The Thompsons wrote back to Respondent that same day (June 26, 2007), advising him that they would pay for the materials for the stucco work "upon presentation of the invoice, then pay $1,000 for the job on completion as [Respondent had] requested," and that they also would "pay the dumpster charges on completion of the clean-up." Ernest Joseph was the "stucco man" that GGC sent to the Thompsons' home to work on the Project. He last worked on the Project in mid-July 2007. The Thompsons paid Mr. Joseph (by check) a total of $2,000.00 for labor and materials. They also paid Onyx Waste Services (by check) $416.91 to have a dumpster brought to the Project site. Neither GGC, nor anyone acting on its behalf, did any work on the Project after Mr. Joseph left the site in mid-July 2007. The Project was incomplete when the work ceased.2 GGC provided the Thompsons no explanation for the stoppage. In fact, the Thompsons did not hear from GGC at all. The Thompsons were anxious for the Project to be completed, and they did nothing to prevent GGC from accomplishing this objective. After more than 90 consecutive days had passed without any work having been done on the Project, the Thompsons hired another contractor to finish the Project. The Project was ultimately completed. The Thompsons paid $17,540.00 for the additional work that was necessary to complete the Project. The total amount that the Thompsons paid for the Project was $52,329.91 ($32,373 to GGC; $2,000 to Mr. Joseph; $416.91 to Onyx Waste Services; and $17,540.00 to finish the work GGC had failed to do). This was $15,194.91 more than the contract price. Petitioner has incurred a total of $182.90 in investigative and prosecutorial costs in connection with the instant case (excluding costs associated with any attorney's time).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board issue a Final Order: (1) finding Respondent guilty of violating Section 489.129(1)(j) and (m), as alleged in Counts II and IV, respectively, of the Administrative Complaint; (2) suspending his license for a period of two years; (3) fining him $7,500.00; (4) requiring him to pay restitution in the amount of $15,194.91 to the Thompsons; (4) ordering him to reimburse the Department $182.90 for investigative and prosecutorial costs; and (5) dismissing Counts I and III of the Administrative Complaint. DONE AND ENTERED this 27th day of August, 2008, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 27th day of August, 2008.
Findings Of Fact At all times relevant hereto, Respondent was licensed as a registered building contractor and as a registered general contractor. On or about August 4, 1982, Hoffman, representing B & B Constructors, Inc., contracted with Vernon Swanger to build an addition to the Swanger residence at 4412 West Lelia Avenue, Tampa, Florida. The contract price for the addition to the Swanger residence was $9,150. On August 4, 1982, Swanger made the initial payment to Hoffman of $3,000 by check on this contract. Prior to the signing of this contract, Hoffman had contacted Respondent, who agreed to pull the permit for this project and who signed a blank proposal which was subsequently completed, executed by Swanger and Hoffman on 4 August 1982, and became Exhibit 2 in these proceedings. On or about August 16, 1982, Respondent obtained a permit for the addition to the Swanger residence from the City of Tampa Building Department showing Respondent as the licensed contractor for the job. Although Respondent signed the stipulation of facts that "All or the greater part of the $3,000.00 which was the first or initial payment on the contract for the Swanger addition was diverted from the construction work," Hoffman testified in Exhibit 25 that he used the $3,000 to buy materials for the project and to pay his (Hoffman's) salary for his work on the project. Under the facts here presented, Hoffman was the only one who knew for what this $3,000 had been used. In his deposition Hoffman testified that an excessive number of rainy days resulted in cost overruns resulting in insufficient money to complete the project. At no time relevant hereto was Hoffman of B & B Constructors, Inc., licensed as a contractor by the State of Florida. Respondent visited the Swanger residence once or twice while the work was in process, but all materials were ordered by Hoffman, all subcontractors were hired by Hoffman or Swanger, Hoffman was the one supervising the project, and Respondent's participation and supervision was, at best, pro forma. At no time was Respondent the qualifying agent for B & B Constructors, Inc., although Respondent briefly considered acquiring B & B Constructors, Inc., at or about the time the contract with Swanger was negotiated. The City of Tampa, Florida, is the local government with jurisdiction of the area, which is part of Hillsborough County, where Respondent is qualified as a licensed contractor. On or about January 11, 1983, as the result of a complaint filed by Swanger, Respondent's license to practice contracting in Tampa was revoked by the City of Tampa Unified Construction Trades Board. Respondent testified that he paid for the permit pulled for the Swanger project out of his own pocket and was never reimbursed by Hoffman. However, in Exhibit 25, Hoffman testified that he gave Respondent $100 in cash with which to pull the permit and his agreement with Respondent was to pay Respondent 3 percent of the contract price to pull the permit as licensed contractor.
Recommendation From the foregoing it is concluded that Respondent is guilty of all charges alleged except violation of Section 489.129(1)(h), Florida Statutes, involving diversion of funds. In view of Respondent's voluntary inactivation of his license since June 1983 it is recommended that Respondent's license be suspended for six (6) months from the date the Construction Industry Licensing Board enters its final order in this case. DONE AND ENTERED this 19th day of October 1984 at Tallahassee, Florida. K. N. AYERS 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 19th day of October 1984. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 George W. Brown 11222 Russell Drive Seffner, Florida 33584 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Board of Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202
