The Issue Whether Petitioners' claim for monies from the Florida Homeowners' Construction Recovery Fund is subject to adjudication pursuant to Section 120.57(1), Florida Statutes, and, if so, how much should Petitioners be awarded.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: On or about October 1, 1997, Petitioners entered into a contract in which they agreed to pay Respondent Norman Levinsky's company, Broward Roofing, Inc., $3,700.00 to place a "new shingle roof" on Petitioners' residence and perform other related roofing work. The contract provided Petitioners with a ten-year "labor warranty" and a 30-year shingle warranty. After the contracted work was completed and Petitioners paid Broward Roofing, Inc., the $3,700.00 called for by the contract, the newly-installed roof started leaking. Broward Roofing, Inc., refused to make the necessary repairs. Petitioners paid other contractors to perform the repair work. On November 17, 1998, Petitioner filed an application seeking to recover from the Florida Construction Industries Recovery Fund (which has since been renamed the Florida Homeowners' Construction Recovery Fund) $1,025.00 that they had paid for repairs to the "new shingle roof" Broward Roofing, Inc., had recently installed, contending that they were deserving of such an award inasmuch as "[t]he roofer [Broward Roofing, Inc.] [had] refused to fix [their] new roof that was leaking and [had] totally ignored [their] 10 year warranty." Their application was filed on a Board-produced Construction Industries Recovery Fund Claim Form (Form), at the end of which was printed the following: In addition to your complete written statement, we are requesting documentation of your contractual relationship with the contractor and evidence supporting your claim. Certified copies of the following list of documents are required to assist us in determining your eligibility for recovery. I have attached the following: (these documents are required for proper processing of your claim. Failure to provide required documentation will delay processing and could result in your claim being denied due to incompleteness.) Court certified copy of the Civil Judgment, and/or Final Order of the Construction Industry Licensing Board directing restitution be paid. Copy of contract between you and the contractor. Copies of applicable bonds, sureties, guarantees, warranties, letters of credit and/or policies of insurance. Court certified copies of levy and execution documents. Proof of all efforts/inability to collect restitution judgment. No claims will be processed until 45 days after the date of entry of the Civil Judgment and/or Final Restitution Order. On the completed Form that Petitioners filed, only the spaces next to "Copy of contract between you and the contractor" and "Copies of applicable bonds, sureties, guarantees, warranties, letters of credit and/or policies of insurance" were checked. On May 4, 1999, the Broward County Central Examining Board of Construction Trades filed an Administrative Complaint against "Norman Levinsky d/b/a Broward Roofing, Inc.," which read as follows: Count I At all times material hereto RESPONDENT was a roofing contractor holding Broward County Certificate of Competency #95-7726-R- R. On or about September 16, 1997, RESPONDENT entered into a contract to re- roof Complainant's home located at 10551 N.W. 21st Court, Sunrise, Florida. RESPONDENT obtained a building permit. The work was completed on March 10, 1998 and the roof began to leak on June 1, 1998. RESPONDENT failed to properly supervise to ensure that the tie in with flat roof was properly completed. His failure to ensure such a proper tie in resulted in leaks. Wherefore, it is charged that the RESPONDENT violated Subsection 9-14(b)(11) of the Broward County Code of Ordinances by failing to properly supervise a project commenced pursuant to a building permit. Count II Paragraphs 1 and 2 are included as if restated herein. Complainant paid RESPONDENT the total contract price of $3,700.00. RESPONDENT completed the work. RESPONDENT gave Complainant a 10 year labor warranty. RESPONDENT failed and refused to honor his warranty. Complainant had to pay additional amount of $1,025.00 for a new contractor to repair the work of RESPONDENT. Wherefore, it is charged that the RESPONDENT violated Subsection 9-14(b)(5)c of the Broward County Code of Ordinances by committing mismanagement which causes financial harm to a customer because the customer had to pay more for the contracted job than the original contract price. Count III Above paragraphs are included as if restated herein. RESPONDENT failed to honor the warranty and complete the project in a workmanlike manner for a period in excess of 90 consecutive days. Wherefore, it is charged that the RESPONDENT violated Subsection 9-14(b)(8) of the Broward County Code of Ordinances by abandoning a construction project in which RESPONDENT was under contract as a contractor. It is determined that the above stated charges are grounds for disciplinary action pursuant to Chapter 9, Sections 9-14, 9-28 and 9-46, Broward County Code of Ordinances and Section 6.11, Broward County Charter. Broward County has the authority to certify and discipline local contractors pursuant to Section 489.131, Florida Statutes. Following a hearing on the Administrative Complaint held May 25, 1999, the Broward County Central Examining Board of Building Construction Trades, on June 16, 1999, issued an Order, which read as follows: A Disciplinary Proceeding was held on May 25, 1999, before the Broward County Central Examining Board of Building Construction Trades (the "Board"), in accordance with Section 9-14, Broward County Code of Ordinances (the "Code"). Service of the Administrative Complaint filed against the Respondent was made by certified mail. The Respondent being duly advised was not present at the hearing. The Board heard the sworn testimony of William Grubb and Marlene Grubb. Upon consideration, it is ORDERED: The allegations of fact as set forth in the Administrative Complaint are found to be true and adopted and incorporated herein by reference as findings of fact. The conclusions of law alleged and set forth in the Administrative Complaint are approved and adopted and incorporated herein. Upon these findings, it is therefore ORDERED: That Respondent's Certificate of Competency is hereby revoked. That the Respondent make restitution to the Complainants in the amount of $3,700.00. Prior to the RESPONDENT being allowed to reinstate his certificate of competency or being allowed to sit for any exam administered by a Broward County Central Examining Board, or receiving any license from a Broward County Central Examining Board, RESPONDENT must appear before the Board and prove that the restitution amount has been paid in full. The board's order may be appealed by Petition for Writ of Certiorari to the Seventeenth Judicial Circuit within thirty (30) days of the date of rendition of the order of the board as provided by the Florida Rules of Appellate Procedure. FURTHER, the Broward County Central Examining Board of Construction Trades makes RECOMMENDATION to the Florida Construction Industry Licensing Board to impose on the state registration, the following penalty: 1. Revoke state registration and require the RESPONDENT to make restitution to the Complainants in the amount of $3,700.00. In accordance with Florida Statutes, Chapter 489.131(7)(c) and (d), the disciplined contractor, the complainant, or the Department of Business and Professional Regulation may challenge the local jurisdiction enforcement body's recommended penalty for Board action to the State Construction Industry Licensing Board. A challenge shall be filed within sixty (60) days of the issuance of the recommended penalty to the State Construction Industry Licensing Board in Jacksonville, Florida. If challenged, there is a presumptive finding of probable cause and the case may proceed before the State Board without the need for a probable cause hearing. Failure of the disciplined contractor, the complainant, or the Department of Business and Professional Regulation to challenge the local jurisdiction's recommended penalty within the time period set forth in this subsection shall constitute a waiver of the right to a hearing before the State Construction Industry Licensing Board. A waiver of the right to a hearing before the State Board shall be deemed an admission of the violation, and the penalty recommended shall become a final order according to procedures developed by State Board rule without further State Board action. Pursuant to Section 120.569, Florida Statutes, the Parties are hereby notified that they may appeal the Final Order of the State Board by filing one copy of a Notice of Appeal with the Clerk of the Department of Business and Professional Regulation, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 32399-0792, and by filing the filing fee and one copy of the Notice of Appeal with the District Court of Appeal within thirty (30) days of the effective date of said Order. On or sometime after September 1, 1999, Petitioners filed an affidavit prepared by Petitioner Marlene Grubb, which read as follows: I, Marlene A. Grubb, hereby certify that I have completed a reasonable search and inquiry in accordance with the instructions provided by the Construction Industry Licensing Board and have not found property or assets to satisfy my Board Order[1] in whole or part. Legal Names The Department of State revealed that the company Broward Roofing Inc. was administratively dissolved on 9/10/98. The C[IL]B verified the contractor[']s name and license number as: Norman Levinsky d/b/a Broward Roofing Inc. RC0047656. Real Property My search included property in the names: Norman Levinsky and Broward Roofing Inc. in Broward County, Florida. Norman Levinsky had no real property and Broward Roofing Inc. is delinquent on property taxes for over two years. Boats and Motor Vehicles There were no vehicles or boats in the motor vehicle data bank registered to Norman Levinsky or Broward Roofing Inc. Aircraft The FAA in Oklahoma City, Ms. Jeannie Vannest stated that there is no registration listed for Norman Levinsky or Broward Roofing Inc. On March 25, 2004, the Board rendered a Final Order Approving Recommended Order of Disciplinary Action by Local Enforcement Body, which approved the Broward County Central Examining Board of Building Construction Trades' June 16, 1999, Order and read as follows: THIS MATTER came before the Construction Industry Licensing Board (hereinafter referred to as the "Board") pursuant to Section 489.131(7), Florida Statutes, for a determination of whether to accept the proposed recommended penalty by the Broward County Central Examining Board of Building Construction Trades (a copy of which is attached and incorporated herein by reference). Neither the Petitioner, the Respondent nor the Complainant filed a challenge to the local enforcement body's recommended penalty to the Board. Upon consideration of the local enforcement body's Administrative Complaint, the minutes from the meetings on January 21, 1999, and May 25, 1999, and the Final Order of Disciplinary Action and its proposed recommended penalty to the Board in this matter and being otherwise fully advised in the premises it is hereby ORDERED AND ADJUDGED: The proposed recommended penalty is hereby approved and adopted in its entirety and incorporated herein by reference. In accordance with the recommended penalty, Respondent's state registration (RC 0047656) is hereby REVOKED. Respondent shall pay restitution in the amount of $3,700 to William and Marlene Grubb. Respondent will adhere to and abide by all of the terms and conditions of the recommended penalty. Failure to abide by the terms of this Order may result in further action by the Board. This Order shall be placed in and become a part of Respondent's official records. A change in the Respondent's licensure status, including the suspension, revocation, voluntary relinquishment, or delinquency of license, does not relieve the Respondent of his obligation to pay any fines, costs, interest or restitution imposed in this and previous orders. Pursuant to Section 120.68, Florida Statutes, the Parties are hereby notified that they may appeal this Final Order by filing a Notice of Appeal with the Clerk of the Department of Business and Professional Regulation, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 32399- 0792, and by filing the filing fee and one copy of the Notice of Appeal with the District Court of Appeal within thirty (30) days of the effective date of this Order. This Order shall become effective upon filing with the Clerk of Department of Business and Professional Regulation. This was the "Final Order of the Construction Industry Licensing Board directing restitution be paid," that, according to the Form Petitioners used to submit their claim for monies from the Florida Construction Industries Recovery Fund, was "required for proper processing of [their] claim." On June 10, 2004, more than five and a half years after Petitioners had filed their claim application, the Board met to determine the merits of their claim pursuant to Section 120.57(2), Florida Statutes. Although given due notice of the Board meeting, neither Petitioners, nor Mr. Levinsky, made an appearance, either in person or through a representative, at the meeting. "[U]pon consideration of the documentation and testimony submitted," the Board determined that Petitioners' claim for $1,025.00 should be "approved." On July 29, 2004, the Board rendered (that is, filed with the agency clerk) a written order to this effect, which read as follows: THIS MATTER came before the Construction Industries Recovery Fund Committee and Construction Industry Licensing Board (the "Board") pursuant to sections 120.57(2) and 489.143, Florida Statutes (2003) as well as rule 61G4-21.004, Florida Administrative Code, on June 10, 2004, in Coral Gables, Florida, for consideration of a claim for restitution from the Construction Industries Recovery Fund (the "Recovery Fund"). William [a]nd Marlene Grubb ("Claimants") and Norman Levinsky ("Licensee") were duly notified of the proceedings. At the proceedings before the committee and the Board, Claimants were not present, and were not represented by counsel. Licensee was not present, and was not represented by counsel. Upon consideration of the documentation and testimony submitted, it is ORDERED: Claimants satisfied all requirements for payment from the Recovery Fund. The Recovery Fund Claim was filed on November 17, 1998. The application was timely filed. The contractor was paid $3,700.00. Claimants were awarded restitution from the Construction Industry Licensing Board on March 24, 2004, in the amount of $3,700.00, pursuant to a Final Order Approving Recommended Order of Disciplinary Action by Local Enforcement Body. The Board adopted and approved the Broward County Central Examining Board of Building Construction Trades recommendation, which found: Contractor held a current and active license at all times material to the transaction; The construction contract is dated September 18, 1997; The work was completed on March 10, 1998, and the roof began leaking June 1, 1998; Contractor failed to honor the warranty on the roof; As a result, Claimants paid an additional $1,025.00 for repair work; Contractor violated subsection 9- 14(b)(5)c of the Broward County Ordinances by committing mismanagement, which caused financial harm to a consumer because the consumer had to pay more for the contractual job than the original contract price. The contractor engaged in activity that appears [to] violate section 489.129(1)(g)2, Florida Statutes (2003). There is an asset search in the file that shows no assets are available from which claimant can satisfy the judgment. Pursuant to section 489.143, Florida Statutes (2003), the maximum amount that the Recovery Fund can pay on a single claim is $25,000.00. Thus, the claim for restitution from the Recovery Fund is APPROVED in the amount of $1,025.00. In accordance with rule 61G4-21.005, Florida Administrative Code, the Secretary of the Florida Department of Business and Professional Regulation is directed to pay the claim from the Recovery Fund after forty-five days from the date upon which the Final Order is filed with the Agency Clerk. Pursuant to section 489.143(6), Florida Statutes (2003), upon payment of the claim from the Recovery Fund, Licensee's licensure to practice contracting is AUTOMATICALLY SUSPENDED without any further administrative action. Pursuant to section 489.143(2), Florida Statutes (2003), upon receipt by Claimant under section 489.143(1), Florida Statutes (2003) of payment from the Recovery Fund, Claimant shall assign his or her additional right, title, and interest in the judgment or restitution order, to the extent of such payment, to the Board, and thereupon the Board shall be subrogated to the right, title, and interest of the Claimant; and any amount subsequently recovered on the award, judgment or restitution order by the Board, to the extent of the right, title, and interest of the Board therein, shall be for the purpose of reimbursing the Recovery Fund. This Order shall become effective upon filing with the Clerk of the Department of Business and Professional Regulation. DONE AND ORDERED this 21st day of June, 2004. Appended to the order was the following Notice of Right of Appeal: You are hereby notified that mediation is not available in this matter. Pursuant to Section 120.569, Florida Statutes, you may seek review of the above by filing a request for hearing with the Executive Director of the Board at 1940 North Monroe Street, Tallahassee, Florida 32399-2202 within twenty-one (21) days of the filing of this Order. Upon request, you will receive an informal hearing pursuant to section 120.57(2), Florida Statutes. In the alternative, you may request a formal hearing pursuant to Section 120.57(1), Florida Statutes, if there are material facts in dispute; if you request a formal hearing, the petition must contain the information required by Rule 28-106.201, Florida Administrative Code, including specification of the facts which are in dispute. If you request a hearing, you have the right to be represented by an attorney or other qualified representative to take testimony. On August 12, 2004, Petitioners filed a Request for Hearing, complaining that they "should be awarded at least $3,475.00" to be adequately compensated for all of the repairs they had to make to their roof as a result of Broward Roofing, Inc.'s failure to meet its responsibilities. On August 30, 2004, the Board referred the matter to DOAH "for the assignment of an Administrative Law Judge to conduct a formal hearing" pursuant to Section 120.57(1), Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board issue an order dismissing Petitioners' Request for Hearing challenging the Board's order, rendered July 29, 2004, disposing of their claim for monies from the Fund, but allowing them, if they so desire, to request that that order be vacated and re-rendered so that they will have the opportunity to file a timely appeal in accordance with Section 120.68, Florida Statutes. DONE AND ENTERED this 28th day of December, 2004, 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 28th day of December, 2004.
Findings Of Fact Gary Smith d/b/a Sirmons Roofing Company is a roofing contractor registered with the Florida Construction Industry Licensing Board. Smith does not hold any license issued by local construction licensing boards which does not license roofing contractors. Smith admitted that he had commenced construction projects without acquiring the appropriate building permits from the local building officials. Calvin Smith identified a contract, Exhibit 2, which he had entered into with Gary Smith d/b/a Sirmons Roofing regarding the repair of the roof of his house. This contract called for the replacement of bad wood, which was understood by the parties to refer to rotten wood planking and rafters. Calvin Smith stated that after construction commenced and the old roof had been removed, his house had suffered rain damage although Gary Smith had advised him that the roof had been dried in. Gary Smith explained that he had in fact laid the requisite felt paper on the roof but that a severe wind and rain storm and occurred immediately following which had destroyed the felt paper. Smith stated that a crew was on the job during the storm at all times trying to keep the felt nailed down and maintain the water-tight integrity of the roof. There were no delays following the removal of the roof in replacing the felt and diligently proceeding with the re-roofing. Several days after the storm the roof had been finished, the plywood ceiling of the family room of Calvin Smith's house was partially removed to permit the insulation to be replaced. At this time Calvin Smith discovered rotten wood which Smith felt should have been removed and replaced by Gary Smith pursuant to their contract. Gary Smith stated that he had found one rotten rafter, but that he had advised Calvin Smith of the fact that it was there and that Calvin Smith realized that he was not replacing it. Gary Smith stated that he had removed and replaced all the rotten wood in the roof and that the rotten wood discovered by Calvin Smith was on that portion of the family room roof which was under the eaves of the pre-existing roof of the house where it could only be seen upon removal of the family room ceiling. Gary Smith further testified that subsequent to finding the rotten wood, Calvin Smith had not permitted him to correct the job and that he had not personally seen the rotten wood, pictures of which Calvin Smith had identified. Calvin Smith identified photographs of the interior and exterior of the roof as repaired by Gary Smith. These photographs were received as Exhibits 3 and 8. Exhibits 7 and 8 were photographs of the exterior of the roof. Exhibit 8 is a photograph of a shingle which was not properly installed. Gary Smith admitted that the shingle was not properly installed but stated that it would have been corrected prior to finishing the job. Exhibit 7 is a photograph showing a course of shingles which does not have the proper overlap. Gary Smith explained that this short run of shingles was necessary to even up or balance the runs on both sides of a hip in the roof because the distance from the eave to the top or peak of the hip was not the same on both sides. Gary Smith also pointed out that in both photographs the shingles are laid so that the bottom of the upper course of shingles comes to or overlaps the lower course of shingles to the top of the tab, causing good contact between the shingles and the adhesive strips. Contrary to the assertion of Calvin Smith that the shingles had been laid in such a manner that the adhesive strips did not touch. Calvin Smith had identified Exhibit 6 as photograph of roof flashing on the family room roof which he asserted was improperly installed. Gary Smith stated that the flashing in Exhibit 6 was installed in accordance with the manufacturer's recommendation and that the roof on the family room had the requisite number of layers of felt and tar as required by the building code. Gary Smith stated that he could not identify the purported location of the underside of the roof depicted in Exhibit 5 and identified by Calvin Smith as being in the middle of the family room. Gary Smith stated that he could not identify the purported location of the underside of roof depicted in Exhibit 5 and identified by Calvin Smith as being in the middle of the family room. Gary Smith stated that he had shown the rotten beam indicated in Exhibit 4 to Calvin Smith and that Calvin Smith had known that he was not replacing the bean because replacement would have required the removal of the family room ceiling as well as the sheeting on the roof over the beam. Gary Smith stated that the wood shown in Exhibit 3 was not rotten but water stained and that the beam was sufficiently solid to hold the weight of the roofing materials on top of it and to nail the new sheeting into. Tommy Thompson, construction inspection supervisor of the City of Jacksonville, inspected the roof of Calvin Smith's home. Thompson found that the shingles had not been lapped properly, that some shingles had been laid so that the ceiling strips would not adhere properly, that rotten rafters and wood had been left, that the correct number of nails had not been placed in the shingles, that metal flashing around the chimney had not been installed in accordance with the manufacturer's specifications, and that one, twelve inch hold had been left in the roof sheeting. Thompson identified the Building Code of the City of Jacksonville and those portions of the code relating to installation of roofing materials. Thompson stated that the items mentioned in the paragraph above constituted violations of the code. Thompson also pointed out that it was a violation of the code to commence construction or repair of a roof without obtaining the requisite building permit. J. R. Bond, Executive Director of the Construction Trades Qualifying Board of the City of Jacksonville, stated that the board did not certify roofers. The ordinances of the City of Jacksonville empower the Construction Trades Qualifying Board to hear complaints against state registered but unlicensed contractors. However, the board lacks authority to take direct action against persons who are state registered but unlicensed. The board may only request that the city building official not issue the individual any further building permits. The building official must exercise his own independent authority and judgment in determining whether to suspend an individual's right to obtain building permits. The building official suspended Smith's privilege to obtain permits without a hearing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that Smith's registration as a roofing contractor be suspended for a period of one year. DONE and ORDERED this 3rd day of January, 1979, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 Telephone: 904/488-9675 COPIES FURNISHED: Michael Egan, Esquire 217 South Adams Street Tallahassee, Florida 32304 Gary A. Smith Sirmons Roofing Company 3845 Edidin Drive Jacksonville, Florida 32211 J. K. Linnan, Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. CASE NO.: 78-1780 GARY A. SMITH d/b/a SIMMONS ROOFING CO., RC 0030047, 3845 Edidin Drive, Jacksonville, Florida 32211, Respondent. /
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, /
Findings Of Fact Respondent, Frank D. Gutc, holds registered building contractor license number R80027543 issued by petitioner, Department of Professional Regulation, Florida Construction Industry Licensing Board. When the events herein occurred, Gutc resided in Flagler Beach, Florida where he was engaged in the business of constructing residential homes. Simon and Doris Lutterbach were aware of Gutc's construction activities and approached him concerning the possibility of him building a house. The Lutterbachs had only 50,000 with which to buy a home and they conveyed this information to Gutc. Gutc showed them the plans for a three bedroom house which cost in excess of 550,000, but agreed to "downsize" the house to two bedrooms for a price of 550,000, including the lot. Thereafter, on December 11, 1982, Gutc entered into a contract with the Lutterbachs to construct a two bedroom, two bath home at 16 Prince Patric Lane in Palm Coast, Florida at a cost of 550,000. The parties later agreed that Gutc would enclose the porch for an additional 51,700, or a total contract price of $51,700. The contract called for a closing date of March 1, 1983. After the Lutterbachs gave an initial down payment of $10,000 to Gutc, Gutc obtained a $37,500 construction loan from Stockton Whatley Davin & Company. He later received an additional $1,314 from the Lutterbachs for minor changes in the plans. Construction commenced in early January, 1983, but the house was not completed by March 1. The closing date was accordingly reset to April 26, 1983. However, by that date a number of suppliers and subcontractors had filed liens totaling $28,005.37 on the house. The liens were filed even though Gutc had drawn the full amount of the construction loan from the lending institution, and had received almost $11,400 in cash from the Lutterbachs. The Lutterbachs were unable to pay off the additional liens incurred by Gutc and were consequently unable to close on the house. They have never been reimbursed the $11,314 which they advanced to Gutc to construct the home. Since that time Gutc's financial condition has deteriorated, and he has been forced to file for bankruptcy. An expert witness retained by petitioner established that the house constructed by Gutc was substantially underpriced, and that a competent contractor would have charged at least $53,800 for the house itself, exclusive of the cost of land. It was also established that a competent contractor normally prepares an itemized cost sheet whereby all costs are broken out in detail. By doing this, and using sound financial management procedures, a contractor could avoid the predicament which befell Gutc on this project. Gutc himself acknowledged that he should have asked around $70,000 for the house instead of $50,000, that he never priced out construction costs on any of his projects including the Lutterbach project, and did not know if he had made a profit on a job until the proceeds were distributed at closing. Further, he had no one keeping his books, kept no financial records, and did not seek competitive bids on his jobs. In short, while Gutc's on-site competency is not questioned, his planning and financial practices are in contravention of competency standards for the construction industry.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsection 489.129(1)(m), Florida Statutes, as set forth in Count III of the administrative complaint. All other charges should be dismissed. It is further RECOMMENDED that respondent pay a $1,500 administrative fine, that his registered general contractor's license be suspended for two years, and that reinstatement of said license thereafter be conditioned on respondent demonstrating that he has received adequate training or study in cost estimating and in the financial management of a construction business. DONE and ORDERED this 25th day of January, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER 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 25th day of January, 1981. COPIES FURNISHED: Douglas A. Shropshire, Esquire 130 North Monroe Street Tallahassee, Florida 32301 Frank D. Gutc P.O. Box 1658 Flagler Beach, Florida 32036
The Issue Whether Respondent, a licensed general contractor, committed the offenses set forth in the Administrative Complaint or is responsible for the offenses set forth in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact At all times pertinent to this proceeding, Respondent was a certified general contractor and the holder of license number CG C031547 issued by the Florida Construction Industry Licensing Board. At all times pertinent to this proceeding, Respondent was the licensed qualifying agent for A.A. Home Improvement Company, Inc. (A.A.), 4101 North Andrews Avenue, Fort Lauderdale, Florida, and as such qualifying agent was responsible for all its contracting activities. On August 25, 1990, A.A. contracted with Anthony Williams, Sr., and Janice Williams, 1/ as the owners, to re-roof and perform internal renovations on the owners' house located at 2804 Avenue H, Fort Pierce, Florida, for a contract price of $6,900.00. The contract provided that all repairs and improvements would be done and completed in a substantial and workmanlike manner. The contract between the parties was an installment loan contract that provided for a mortgage on the house and property that was the subject of the contract. On August 25, 1990, Mr. and Mrs. Williams and Ethel Nelson gave A.A. a mortgage on the property to secure payment of the amount of the contract. A.A. assigned the mortgage to Union Mortgage Company, Inc. on August 29, 1990. Subsequent to the assignment of the mortgage to Union Mortgage Company, Inc., Janice Williams and Anthony Williams, Sr., consolidated certain debts through a loan from Metropolitan Mortgage Company of Fort Pierce, Florida. With the proceeds of the Metropolitan loan, Mr. and Mrs. Williams paid off the mortgage that had been given to A.A. on August 25, 1990, and assigned to Union Mortgage Company on August 29, 1990. To secure payment of the Metropolitan loan, Mr. and Mrs. Williams gave Metropolitan a mortgage on the subject property. The Williams were still paying off the Metropolitan mortgage at the time of the formal hearing. The contract between A.A. and the owners required A.A. to remove the existing roof of the subject property and to replace the roof with a twenty-year fiberglass roof, repair the ceilings of three rooms with sheetrock, seal off holes in two walls (these holes resulted after two air conditioning units were removed), install a vinyl floor in the dining room, renovate a bathroom to 90 percent completion, and make certain unspecified minor repairs. A.A. is not certified or registered as a roofing contractor. Respondent is not certified or registered as a roofing contractor. The repair of the roof on the subject property was work that should be performed only by a certified or registered roofing contractor. Workmen from A.A. were present at the job site for approximately a week. After the work was performed, including the roofing work, the owners began having problems with the work performed by A.A. Water began to leak through the walls where the air conditioning units had been. This leaking resulted because A.A. did not properly seal the holes in the wall. Instead, A.A. merely nailed pieces of plywood over the holes where the air conditioning units had been. The roof leaked and caused damage to interior panelling. A.A. did none of the work on the bathroom that had been contracted. Mr. and Mrs. Williams attempted to get A.A. to come back and finish the work or to correct defective work on two occasions. On two separate occasions, a representative of A.A. promised to return to the job site to complete the work and to correct defective work. A.A. did not return to the job site and made no further effort to complete or correct the work on the subject property. Mr. and Mrs. Williams will have to expend approximately $6,000 to repair the roof and interior of the house as a result of A.A.'s failure to perform its contractual duties. In negotiating the contract with A.A., the owners dealt with Christine McDonough, who was a corporate officer of A.A. and who had the authority to bind A.A. as a party to the contract. A building permit was required by the City of Fort Pierce Building Code for the construction contemplated by the subject contract. No permit was obtained by A.A. The Respondent did not supervise any of the work performed on the subject property by A.A.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent be ordered to pay a fine in the amount of $2,250.00 to the Florida Construction Industry Licensing Board and pay restitution to Janice Williams and Anthony Williams, Sr., in the amount of $6,000. DONE AND ENTERED this 28th day of April, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida
Findings Of Fact Leroy Alvin Colts was qualifier for Berkley Home Service, which held License #RC0029635. Colts held such license from 1977 - 81. In December 28, 1978, Leroy Alvin Colts' local certificate of competency was revoked by the Pinellas County authorities. This action was reviewed by the Florida Construction Industry Licensing Board prior to these charges being filed. On January 4, 1979, Leroy Alvin Colts was adjudged guilty of violating Section 812.021 (Grand Theft) and Section 812.014 (Grand Larceny) and sentenced to 45 years in the State Penitentiary. These offenses arose directly from Colts' activities as a licensed contractor. The court's judgment was affirmed by the appellate court. Notice of this proceeding was provided Colts in the manner prescribed by law, and inquiry of Counsel for the Petitioner Board and representatives of the St. Petersburg Police Department showed that Colts was free on bond and available to attend the hearing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommended that the Florida Construction Industry Licensing Board revoke Leroy Alvin Colts' license. DONE and ORDERED this 21st day of September, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Michael E. Egan, Esquire 247 South Adams Street Post Office Box 1386 Tallahassee, Florida 32302 Joseph F. McDermott, Esquire 544 First Avenue, North St. Petersburg, Florida 33701 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner,
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are made: At all times material to this proceeding, Respondent Joseph W. Miklavic was licensed as a certified building contractor in the state of Florida, holding license number CB C006615, qualifying Security Home d/b/a Security Homes of Clearwater (Security). Since March, 1989 the Respondent's license has been on active status qualifying, Individual. At all times material to this proceeding, Respondent was a salaried employee of Security. Ronald MacLaren was president of Security and also sole owner and president of Yankee Construction Inc. d/b/a Olympic Homes of Citrus County (Olympic). In accordance with a management agreement between Security and Olympic, the Respondent was assigned by Ronald MacLaren to oversee the operation of Olympic. Olympic was licensed to engage in construction having been qualified by Wilmon Ray Stevenson through license number RB A035005 which was in effect from June, 1987 until October, 1988 when Stevenson filed a change of status application with the Construction Industry Licensing Board (Board) requesting license number RB A035005 be changed to inactive status qualifying, Individual. While this application was not acted upon until February, 1989, the Board considered license number RB A035005 in effect as qualifying Olympic only until October, 1988. Effective September 26, 1988, the name of Yankee Construction, Inc. was changed to Rivercoast Homes, Inc. (Rivercoast) which apparently ceased doing business under the fictitious name of Olympic Homes of Citrus County. On September 19, 1988 Wilmon Ray Stevenson advised the Citrus County Building Department that he was no longer the "qualifier for Olympic Homes". Around this same time, the Respondent, Ronald MacLaren and the management of Olympic became aware that Stevenson would no longer be the qualifying agent for Olympic. There was no evidence that Rivercoast Homes, Inc. a/k/a Yankee Construction Inc. ever advised the Board of the name change or the termination of Stevenson as its only qualifying agent affiliation in accordance with Section 489.119(2)(3), Florida Statutes. Nor was there any evidence that Rivercoast was ever qualified by another qualifying agent pursuant to Section 489.119, Florida Statutes. In accordance with the agreement between Security and Olympic, referred to in Finding of Fact 4, the Respondent continued to oversee the Rivercoast operations until sometime around December 1988 when all of MacLaren's operations in Florida, including Security, closed down. Under Security's agreement with both Olympic and Rivercoast, Respondent's duties included working with management and subcontractors to develop construction schedules and to advise Ron MacLaren of the financial aspect of the company so that MacLaren could make funds available to pay subcontractors, etc. Respondent did not have any control over the finances of either Olympic or Rivercoast such as receiving, depositing or disbursing funds. Either in late September or early October of 1988, Respondent approached Larry Vitt, Citrus County Building Department, as to whether the Respondent could pull permits under his license for Olympic or Rivercoast. Vitt advised Respondent that unless he qualified the company he could not pull permits for that company under his license. Respondent advised MacLaren that Rivercoast would have to have a qualifying contractor in order to engage in contracting. MacLaren did not get Rivercoast qualified to engage in contracting at anytime. Respondent did not qualify Rivercoast under his contractor's license at anytime. Sometime around the last of September or the first part of October of 1988, Respondent became aware that Rivercoast a/k/a Yankee Construction, Inc. was no longer qualified under Section 489.119, Florida Statutes, and therefore, not authorized under law to engage in contracting. On August 16, 1988 Ernest and Marjorie Ellison met with Ken Smith and Gloria Stevenson of Olympic to discuss Olympic building the Ellisons a home. The Ellisons picked out a floor plan at this time and gave Olympic a $100.00 deposit to hold the price until a contract could be executed. On October 1, 1988 the Ellisons met again with Ken Smith and was introduced to the Respondent who gave them a brief run down on the status of the company and advised them that the company was in "good shape". At this meeting, Ken Smith advised the Ellisons of certain things that were required of them before construction began, including a survey. On October 31, 1988 the Ellisons signed a contract with Rivercoast to construct their home. In his capacity as a representative of Security, under the agreement between Security and Rivercoast, the Respondent signed this contract on the line designated Contractor/Representative. There is insufficient evidence to show that Respondent intended to sign the contract as contractor of record as the term contractor is defined in Section 489.105(3), Florida Statutes (Supp. 1988), and thereby impose upon himself the responsibility for the entire project. The contract price was $44,634.00. On November 1, 1977 the Ellisons delivered to Rivercoast a check for $4,363.40 which along with the $100.00 deposit paid in August represented a total down payment of $4,463.40. Respondent did not personally receive any funds from the Ellisons for Rivercoast or receive any funds for himself from the Ellisons under this contract. No permit was ever pulled or any work performed by Rivercoast under the aforementioned contract. Ernest Ellison met with Respondent on November 21, 1988 and requested that the contract be cancelled. Under the authority granted Respondent through the agreement between Security and Rivercoast, the Respondent and Ernest Ellison signed the contract as being cancelled on November 21, 1988. Although the Ellisons were offered an opportunity by the Respondent to transfer their deposit of $4,463.40 to Security and enter into a contract with Security to build their house, they declined and contracted with another contractor. On the date the contract was cancelled, Respondent advised Ernest Ellison that the down payment of $4,463.40 would be reimbursed. Although Respondent attempted to obtain a refund for the Ellisons from MacLaren and was advised by MacLaren that a refund was forthcoming, no refund of the Ellison's down payment was ever made by Rivercoast, Ronald MacLaren, the Respondent or anyone else. Respondent was aware during the negotiation and at the time the Ellison's contract was executed, that Rivercoast was not authorized by law to engage in contracting. However, there is insufficient evidence to show that Respondent ever advised the Ellisons that he would be the contractor responsible for building their home under the contract with Rivercoast or that he would be the contractor to pull the necessary permits for construction of their home. There is no evidence that Respondent had any financial interest or owned any stock or held any office in Rivercoast a/k/a Yankee Construction, Inc. Around October 1, 1988, after Stevenson had withdrawn as qualifying agent for Olympic, Rivercoast was no longer authorized to engage in the practice of contracting since it had not been qualified by another qualifying agent in accordance with Section 489.119, Florida Statutes.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the demeanor of the witnesses and the disciplinary guidelines set out in Chapter 21E- 17, Florida Administrative Code, it is RECOMMENDED: That the Board enter a final order finding Respondent guilty of violating Section 489.129(1)(e), Florida Statutes, and for such violation it is recommended that the Board assess the Respondent with an administrative fine of $1,000.00. It is further recommended that Counts I, II, IV and V be dismissed DONE and ORDERED this 27th day of November, 1990, in Tallahassee, Florida. WILLIAM R. CAVE 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 27th day of November, 1990. APPENDIX CASE NO. 90-2046 The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Rulings of Proposed Findings of Fact Submitted by the Petitioner Not necessary. Adopted in Finding of Fact 1. Adopted in Finding of Fact 7 but modified. Adopted in Findings of Fact 4, 8, and 10. Adopted in Findings of Fact 9 and 14 but modified. Adopted in Finding of Fact 15. Adopted in Findings of Fact 16 and 17 but modified. Adopted in Findings of Fact 17 and 18. Rulings of Proposed Findings of Fact Submitted by Respondent 1. - 2. Not material or relevant. Adopted in Findings of Fact 1, 7 and 20. Adopted in Finding of Fact 4. Adopted in Findings of Fact 4 and 8. Not material or relevant. Adopted in Finding of Fact 19. - 10. Adopted in Finding of Fact 15. Restatement of testimony not a Finding of Fact but see Finding of Fact 13. Adopted in Finding of Fact 15. Not material or relevant. Adopted in Finding of Fact 15. - 16. Not material or relevant. Restatement of testimony not a Finding of Fact but see Findings of Fact 13, 14 and 15. Adopted in Finding of Fact 19 but modified. Not material or relevant. Adopted in Finding of Fact 4. Restatement of testimony not a Finding of Fact but see Finding of Fact 4. Adopted in Finding of Fact 9. Adopted in Finding of Fact 4 but modified to show license effective until October, 1988 rather than February, 1989. Restatement of testimony not a Finding of Fact but see Findings of Fact 1, 7 and 20. - 26. Not material or relevant. Adopted in Finding of Fact 4 but modified to show from June, 1987 until October, 1988. - 29. Adopted in Findings of Fact 5 and 13. Restatement of testimony not a Finding of Fact but see Finding of Fact 4. - 32. Adopted in Findings of Fact 4, 8 and 9 but modified. Not material or relevant. - 36. Adopted in Findings of Fact 4, 8, and 9 but modified. Adopted in Finding of Fact 10. Not material or relevant. - 40. Adopted in Findings of Fact 8, and 17, respectively. Rejected as there is no substantial competent evidence in the record to show any other contract than the one Respondent signed on October 31, 1988. Not material or relevant. Not supported by substantial competent evidence in the record. Not material or relevant. Adopted in Finding of Fact 18. Restatement of testimony not a Finding of Fact but see Finding of Fact 9. - 50. Not necessary to the conclusion reached since this matter was covered in the Preliminary Statement wherein the motion was denied. COPIES FURNISHED: G. W. Harrell, Senior Attorney Department of Professional Regulation 1940 N. Monroe Street, Suite 60 Tallahassee, FL 32399-0750 Geoffrey Vining, P.A. 2212 South Florida Avenue Suite 300 Lakeland, FL 33803 Daniel O'Brien, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 Kenneth D. Easley, 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 Based on the evidence presented at hearing, the following facts are determined: The BOARD is the state agency charged with the duty to license, regulate, and discipline construction industry contractors pursuant to Chapter 489, Part I, Florida Statutes (1979). VARNUM is a licensed, certified general contractor holding two currently active licenses, CG C000832 and CG CA00832 (Prehearing Stipulation). Here, the BOARD seeks to discipline VARNUM'S licenses on the ground that he submitted to the BOARD a false, erroneous, and misleading Change of Status Application ("Application") which failed to disclose outstanding judgments and liens; VARNUM claims that he either did not know of the outstanding judgments and liens, or that he reasonably believed that they had been satisfied prior to the filing of this Application. (Prehearing Stipulation, Testimony of Varnum). On September 28, 1978, VARNUM filed his Application with the BOARD. The purpose of the Application was to qualify, under his licenses, a corporation known as General Contractors of Florida, Inc.; Richard Gale was identified as its president, VARNUM, its executive vice president. Within the Application, VARNUM answered the following questions in the negative: "12(b) 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 any such person was a member of the personnel? Yes ( ) No (x) * * * "(c) 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? Yes ( ) No (x)" * * * "(d) Are there now any liens of record by the U.S. Internal Revenue Service or the State of Florida Corporate Tax Division against any person named in (i) below or any organization in which any such person was a member of the personnel? Yes ( ) No (x)" Paragraph 12(i), referenced in Questions 12(b) through (d) contained the name "Ira L. Varnum", Respondent. (Testimony of Norman: P.E. 4.) By executing, under oath, the Application, VARNUM expressly vouched for the truth and accuracy of his statements and answers contained therein. The Application expressly warns that "[a]ny wilful falsification of any information contained herein is grounds for disqualification." (P.E. 1.) From 1969 through 1976, VARNUM engaged in contracting under the following business entities: All Florida Builders Diversified, Inc. Varnum Enterprises, Inc. Varnum & Associates, Inc. Structural Concrete Forming, Inc. Ira L. Varnum & Co. (a partnership) Oakridge Construction Co., Inc. General Contractors of Florida, Inc. Since 1976, VARNUM engaged in contracting under the name of "Structural Concrete Forming of Florida, Inc.,"; this has been an active corporation with a gross income of 1.5 to 2 million dollars during the last two years. (Testimony of Varnum, Norman, Gale.) The following tax liens or civil judgments, arising out of VARNUM's prior construction operations, were extant and of record at the time the Application was filed, but were not disclosed by VARNUM in his answers to Questions 12(b) through (d): JUDGMENT OR DEBTOR LIEN CREDITOR DATE RECORDED AMOUNT Judgments: Structural Concrete Forming of Florida, Inc. Jiffy Johns, Inc. 6/1/77 $ 79.92 plus costs, $14.00 All Florida Builders Diversified Morgan Driveway 7/15/74 $ 147.95 Tax Liens: Structural Concrete Forming, Inc. U.S. Internal Revenue Service 2/11/76 $ 5,002.37 Ira Ira L. L. Varnum Varnum and and Co. U.S. Internal Revenue Service 8/3/73 $18,100.25 Ira Ira L. L. Varnum Varnum and and Co. U.S. Internal Revenue Service 3/19/74 $ 5,061.86 Ira Ira L. L. Varnum Varnum and and Co. U.S. Internal Revenue Service 3/22/73 $13,041.17 All Florida Builders U.S. Internal 8/29/73 $30,721.59 Diversified, Inc. Revenue Service All Florida Builders Diversified U.S. Internal Revenue Service 7/27/73 $ 2,404.94 All Florida Builders Diversified U.S. Internal Revenue Service 8/30/73 $21,747.76 All Florida Builders Diversified U.S. Internal Revenue Service 3/20/73 $10,161.41 Varnum Enterprises, Inc. Florida Division of Labor and Employment Opportu- nities 3/11/71 $ 2,700.00 plus int. & penalties Varnum and Associates, Inc. Florida Division of Labor and Employment Opportunities 8/4/70 $ 4,380.88 plus int. & penalties Structural Concrete Forming, Inc. Florida Division of Labor and Employment Opportunities 2/12/75 $ 649.57 plus int. The Jiffy Johns, Inc., judgment was paid by VARNUM prior to filing his Application on September 28, 1978, although the Satisfaction of Judgment was not executed until June 22, 1979, and recorded on June 25, 1979. The Burroughs Corporation may also have held a judgment against Varnum Enterprises, dated May 25, 1973; however, the copy introduced into evidence is illegible and, therefore, cannot support an affirmative finding. (Testimony of Norman, Varnum; P.E. 2, 3, 4, 7, 8, 9, 10, 11, 12, 13, 14; R.E. 2.) VARNUM did not willfully or knowingly falsify or fail to disclose the existence of the outstanding judgments and tax liens when he completed his Application. He believed that those judgments and liens had been satisfied years earlier, and had no reason to believe otherwise. When the tax liens were initially filed, he had turned them over to his attorney, Paul Mueller, for handling. Mueller had been resident agent for many of VARNUM's construction companies and VARNUM retained him to perform business-related legal services. VARNUM had reason to believe that the judgments and liens filed several years earlier had been handled and satisfied by Mueller, in accordance with VARNUM's instructions. The holders of those judgments and liens have not made an effort to collect or enforce them against VARNUM. VARNUM's assertion that he believed there were no outstanding judgments or liens against him at the time of his Application is buttressed by his experience in refinancing and subsequently selling his residence in 1978. Although one Federal tax lien and several other judgments and claims were satisfied and paid-off at the time of these two separate mortgage transactions, the judgments and liens here in question did not surface, were apparently unknown to the parties, and were not noted or included in the closing statement and title insurance policy accompanying the mortgages and sale. (Testimony of Varnum; R.E. 1, 3, 4.) Furthermore, since 1976 VARNUM has conducted in the same community a construction business under the name of "Structural Concrete Forming of Florida, Inc." That company has enjoyed a good credit rating with its suppliers, and has had no judgments or tax liens filed against it. The holders of the judgments and liens here in question never contracted the company to discuss, or seek collection of these outstanding claims. (Testimony of Gale, Varnum). VARNUM has filed proposed findings of fact and conclusions of law. Findings of Fact Nos. 9, 10, 11, 12, 16, 17, 18, 21, 22, 23, 24, 25 and 28 are hereby adopted. To the extent that his proposed findings of fact are not adopted herein, they are specifically rejected as being either irrelevant to the issues in this cause or as not having been supported by the evidence.
Conclusions Although Respondent made a false background on his Application--that there were no outstanding liens or judgments against him--the Petitioner Licensing Board, failed to establish that Respondent knew, or should have known that the statement was false. To the contrary, the evidence shows that Respondent made the false statement innocently, and upon a reasonable belief that it was true. Respondent is, therefore, not guilty of the charges, and the Board's Second Amended Administrative Complaint should be DISMISSED.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Second Amended Administrative Complaint filed against VARNUM be DISMISSED. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 15th day of October, 1980. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1980.
