Findings Of Fact Mr. Ansley is the holder of license No. CB C033338 as a building contractor in the State of Florida, having been issued that license in 1985. At all times relevant hereto, Mr. Ansley was so licensed. In 1987, Fred Fox Enterprises, a private consulting firm in economic development and housing rehabilitation, worked with the Town of Baldwin to write a Community Development Block Grant to upgrade housing in targeted areas of the town. The Town of Baldwin received the grant and Fred Fox Enterprises administered the grant. As part of the grant, arrangements were made to build a new home for Michael and Karen Turner. The Turners qualified for a $25,000 grant and the Turners augmented the grant with their own funds in the amount of $2,750. Fred Fox Enterprises solicited contractors to participate in the grant activities. Mr. Ansley was one of the contractors who agreed to participate. The Turners selected a floor plan and Mr. Ansley's bid for the job was acceptable. A contract was signed on June 29, 1987. Ansley was to receive $27,750 in draws from a special escrow account in the name of the homeowner and the contractor. Ansley pulled the permits and began construction pursuant to a Notice to Proceed dated August 31, 1987. Ansley had 75 days to complete construction. Ansley did the foundation and poured the slab. He was paid his first draw of $3,750 for the slab on September 24, 1987. By early October, the exterior walls were constructed up to the lintel, however no trusses and no roof were in place. No further work was done on the house. Ansley's next draw would have been at dry-in, but the construction never reached that stage. Representatives of Fred Fox Enterprises and of the Town of Baldwin tried to contact Ansley about the work stoppage. Letters were sent to Ansley by the Town of Baldwin on September 30, October 15, and October 30, 1987, reminding Ansley that by contract he had 75 days to complete the project, that his time was running out, that liquidated damages of $50 per day were called for under the contract, and that the deadline for completion was November 14, 1987. On November 10, 1987, the Town of Baldwin wrote to Ansley advising that no work had been done since October 26, 1987, in violation of the contract, that the structure was only 20% complete in violation of the contract, that a Claim of Lien had been placed against the property by a materialman, and that any further payments would cease until the lien was satisfied. Ansley never responded to that letter. On November 27, 1987, the Town of Baldwin officially informed Ansley that his contract was terminated. The letter also reminded Ansley that he was still responsible for payment for materials, labor and/or supplies purchased for work on the Turner's house prior to termination of the contract. On December 3, 1987, another Claim of Lien was filed by Southern Atlantic Concrete in the amount of $3,386.59. The previous lien was by Holmes Lumber Company in the amount of $194.63. At various times Ansley contacted representatives of Fred Fox Enterprises and the Town of Baldwin and told them that the liens were in error or that he would take care of them in the future. Ansley acknowledged that he was having financial difficulties. Another contractor was retained to complete the house for approximately $1,000 more than the Ansley/Turner contract price. Also, the Turner's were placed in temporary housing at the cost of the Town of Baldwin and the grant. Ansley never paid the liens. Finally, to protect its reputation, Fred Fox Enterprises paid the liens out of its own funds, not from the grant money. Including interest, Fred Fox Enterprises paid $3,873,15 to cover the liens. Ansley acknowledges that he was in a financial crunch. He intended to finish the house and not to abandon it, but he was financially unable to do so. He says he had $5,500 of his own money tied up in the house, in addition to the liens. He simply did not have the funds to complete the house up to the second draw so he could use the draw funds to pay for the materials and labor.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Construction Industry Licensing Board, enter a Final Order and therein: Find Mark V. Ansley guilty of violating Sections 489.105(4) and 489.129(1)(h), (j), (k), and (m), Florida Statutes, as charged in the Administrative Complaint. Order Mark V. Ansley to pay an administrative fine of $5,000. Suspend building contractor's license No. CB-C033338 issued to Mark V. Ansley for a period of one (1) year. DONE and ENTERED this 17th day of April, 1989, in Tallahassee, Florida. DIANE K. KIESLING 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 17th day of April, 1989. COPIES FURNISHED: Mark A. Sieron Attorney at Law 1329-A Kingsley Avenue Orange Park, Florida 32073 Mark V. Ansley 7034 Luke Street Jacksonville, Florida 32210 Harper Fields General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
The Issue The issue for determination is whether Respondent failed to secure workers’ compensation coverage for his subcontractors, thereby, failing to abide by the coverage requirements of the Workers’ Compensation Law, Chapter 440, Florida Statutes, and, if so, what penalty should be assessed.
Findings Of Fact At all times material hereto, Family Flooring was located at 1450 10th Street, Lake Park, Florida. At all times material hereto, Michael Martino was the president of Family Flooring. After having conducted a workers’ compensation coverage check of businesses along 10th Street in Lake Park, Florida, the Department’s investigator, John Turner (Investigator Turner), visited Family Flooring. Family Flooring engages in the retail sales of various flooring and performs some installation of the floorings sold when requested by its clients. When installation is requested, the client pays Mr. Martino for the flooring and installation. Mr. Martino hires and pays the subcontractors to perform the installation. Mr. Martino informed Investigator Turner and testified at hearing that Family Flooring had not secured payment of workers’ compensation coverage for its subcontractors. The Department’s Coverage and Compliance Automated Systems (CCAS), a database of workers’ compensation coverage information for the State of Florida, and its exemption website (exemption database) confirmed that Family Flooring failed to have workers’ compensation coverage for the subcontractors. Investigator Turner requested certain business records from Family Flooring, including payroll records and exemptions, for the time period covering October 16, 2004 through December 16, 2004. Mr. Martino complied with the request. The business records submitted indicated that Family Flooring hired eight subcontractors. Individuals may make application to the Department to be exempt from workers’ compensation benefits. If granted, only the individual named on the application is exempt. The business records indicated that some, not all, of the subcontractors had exemptions. A review of both the business records and the Department’s databases for the eight subcontractors failed to verify workers’ compensation coverage or current, valid workers’ compensation exemptions for the following subcontractors: Scott Lunardoni -- exemption expired on December 31, 2003; Mauricio Perez -- exemption expired on December 31, 1999; Richard Robinson -- no exemptions; and Robert Waddicor -- exemption expired on December 31, 2003. No dispute exists that Family Flooring hired and paid the above-named subcontractors for installation of flooring. At the time of hiring the above-named subcontractors, Mr. Martino did not inquire as to whether they had secured the payment of workers’ compensation coverage or possessed current, valid workers’ compensation exemptions. Mr. Martino maintained that the above-named subcontractors were independent contractors, not employees of Family Flooring. As a result, he maintained that Family Flooring was not required to secure the payment of workers' compensation coverage. At hearing, Mr. Martino entered into evidence two notarized letters from two of the subcontractors, Mauricio Perez and Scott Lunardoni. The letter from Mauricio Perez was notarized on April 21, 2005, and the letter from Scott Lunardoni was notarized on April 20, 2005. Both letters provided that each considered himself an “independent contractor,” not an employee of Family Flooring; that Family Flooring supplied the flooring, which was purchased by the customer, usually a homeowner; that each set his own time and schedule, provided his own transportation and tools for the installation, and was compensated at his own rate schedule; that each understood his responsibilities as to the required insurance and licenses; and that each was free to offer his services to other businesses, which they did. Investigator Turner testified that the Department’s interpretation of Chapter 440, Florida Statutes, pertaining to Family Flooring’s circumstances was that the above-named subcontractors became employees of Family Flooring when the subcontractors failed to secure workers’ compensation coverage and failed to have a current, valid workers’ compensation exemption. Having identified subcontractors who had no workers’ compensation coverage or exemptions, Investigator Turner sought approval from his supervisor for the issuance of a SWO and OPA. The approval was given, and a SWO and OPA were issued and served on Family Flooring on December 28, 2004. The SWO provided, among other things, that Family Flooring was an employer in the construction industry and that the basis for its issuance was Family Flooring’s “failure to secure the payment of workers’ compensation in violation of § 440.107(2) Fla. Stat., by: failing to obtain coverage that meets the requirements of Ch. 440, Fla. Stat., and the Insurance Code.” The OPA provided, among other things, that the penalty assessed would be “in an amount equal to 1.5 times the amount the employer would have paid in premium when applying approved manual rates to the employer’s payroll during the periods for which it failed to secure the payment of workers’ compensation required by this chapter [Chapter 440, Fla. Stat.] within the preceding 3-year period, or $1,000, whichever is greater. § 440.107(7)(d), Fla. Stat.” To determine the assessment for the penalty, on December 28, 2004, Investigator Turner served a subpoena upon Family Flooring for the production of its business records covering a three-year period from December 28, 2001 through December 28, 2004. Family Flooring responded to the subpoena and provided a copy of its check ledger and a computer generated payroll ledger. The Department utilizes the Scopes Manual to assign a class code or number to a specific job or task. The Scopes Manual is produced by the National Council on Compensation Insurance (NCCI) and is a reference for all jobs and jobs descriptions to which NCCI assigns class codes/numbers. The Scopes Manual is used throughout the insurance industry and throughout the State of Florida for uniformity; as a result, the same specific job or task in different geographic locations in Florida would have the same class code or number. Using the Scopes Manual, the Department assigned a class code to the type of work performed by each aforementioned subcontractor, who was now determined to be an employee of Family Flooring. The Department then multiplied the assigned class code’s approved manual rate times the gross wages paid to the employee, per one hundred dollars, to obtain the premium what Family Flooring should have paid during the period of non- compliance; and then multiplied the premium obtained by 1.5 to obtain the penalty to be assessed for each employee. During the period of non-compliance, Mr. Martino had a current, valid workers’ compensation exemption. Also, the Department’s database indicated, among other things, that the “Exemption Type” was “Construction.” Due to Mr. Martino's exemption, payments to him by Family Flooring were not included in the assessment of the penalty. A total penalty in the amount of $42,613.47 was calculated by the Department. An Amended OPA, together with the Department’s penalty worksheet, was served on Family Flooring on January 4, 2005, providing, among other things, that the amended assessed penalty was $42,613.47. Subsequently, Family Flooring entered into an agreement, Payment Agreement Schedule for Periodic Payment of Penalty (Agreement), with the Department regarding payment of the penalty. The Agreement provided, among other things, for a down payment by Family Flooring of ten percent of the assessed penalty, for the remaining balance of the penalty to be paid by Family Flooring in 24 equal monthly installments, and for proof of compliance with Chapter 440, Florida Statutes, by Family Flooring. As proof of compliance with Chapter 440, Florida Statutes, Family Flooring, through Mr. Martino, provided the Department a notarized letter, dated and notarized December 28, 2004, which provided that Family Flooring would only hire subcontractors who were in compliance with the regulations of the Department. As a result of the Agreement, on January 4, 2005, the Department issued an Order of Conditional Release from Stop-Work Order (Order of Conditional Release). No evidence was presented at hearing that Family Flooring had violated the Order of Conditional Release.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers' Compensation enter a final order: Finding that WMW Enterprises, d/b/a Family Flooring violated Sections 440.10 and 440.38, Florida Statutes, by failing to secure the payment of workers' compensation coverage for its employees, Scott Lunardoni, Mauricio Perez, Richard Robinson, and Robert Waddicor. Affirming and upholding the Stop-Work Order and Order of Penalty Assessment and the Amended Order of Penalty Assessment in the amount of $42,613.47. DONE AND ENTERED this 6th day of February, 2006, in Tallahassee, Leon County, Florida. S ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 2006. COPIES FURNISHED: Colin M. Roopnarine, Esquire Department of Financial Services Division of Legal Services Workers’ Compensation Section 200 East Gaines Street Tallahassee, Florida 32399-4229 Michael Martino WMW Enterprises, Inc. d/b/a Family Flooring 1450 10th Street Lake Park, Florida 33403 Carlos G. Muñiz, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Tom Gallagher, Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
Findings Of Fact Petitioner is a permanent Career Service employee of the Department of Offender Rehabilitation (DOR), State of Florida, who was serving as a Planner and Evaluator II, Class Code 5291, Position No. 04038, Planning and Development Section, Bureau of Planning, Research and Statistics, in July, 1977. (Composite Exhibit 3) The 1977 Florida Legislature reduced the number of authorized positions in the DOR through "productivity adjustment," effective July 1, 1977. By letter of July 26, 1977, the Secretary of the DOR requested the Secretary of Administration to approve a statewide competitive area for the positions to be abolished. By letter of July 27, the Secretary of Administration approved the requested competitive area to include all organizational units on a statewide basis within the Department. At that time, the DOR had four positions in the class of Planner and Evaluator II. These were then held by Petitioner, Sunil Nath, Position 00053, Edward M. Teuton, Position 07974, and Bill C. Schnitzer, Position Number 03756. All of these positions except Position 07974 were abolished as a result of the legislative mandate. The incumbents of the four positions met with Mr. James A. Ball, DOR Personnel Officer, on or about July 28, 1977. At that time, he informed them of the position deletions and consequent necessary layoffs. Ball indicated in his comments to the group that the Petitioner would not be adversely affected because he had the greatest number of retention points of the four individuals. It was further indicated by Ball to Petitioner at this meeting and in later discussions that Petitioner would assume the duties of the remaining Position 07974 and proceed to "phase in" to the job. By letters dated August 5, 1977, Nath, Teuton and Schnitzer were notified by the Secretary of the DOR of their layoff under State Personnel Rule 22A-7.11, and advised of their options and rights under pertinent law. (Composite Exhibits 1-4, Testimony of Ball, Fitzgibbon) By letter of August 31, 1977, to the State Personnel Director, the Secretary of the DOR requested that selective competition be approved under State Personnel Rule 22A-7.11(3) for the position of Planner and Evaluator II, DOR, Class Code 5291, Position Number 07974, among persons affected by layoff in the Department. The letter stated: The specific background necessary to perform the job requirements of this unique position of Mutual Participation Program Administrator are reflected below and relate directly to the duties of the position as reflected on the official Position Description, a copy of which is attached. The letter further indicated the particular qualifications for the position. The Position Description attached to the letter set forth the duties and responsibilities of the job, but did not specify particular qualifications required of the incumbent. Conley M. Kennison, State Personnel Director, in a letter of September 8, 1977, approved selective competition for the position in question "In accordance with Section 22A-7.11(3), Personnel Rules and Regulations, F.A.C., and based on the specific qualifications required of this position to function as the coordinator for the Mutual Participation Program as substantiated by the Position Description you submitted." The concept of selective competition for a position arises only in layoff situations. Under normal layoff procedures, an employee's number of retention points computed under Rule 22A-7.11 determines priority for available remaining positions. However, if selective competition is used, only those employees possessing the special qualifications for a particular position are eligible to compete therefor, and if several have the necessary qualifications, the employee with the highest retention points is selected. Approval for selective competition is based on special qualifications that must be derived from the official Position Description. In such cases, an economic impact statement is not prepared nor are the normal procedures for promulgation of a rule. Neither are Position Descriptions promulgated as rules under Chapter 120, Florida Statutes. Minimum qualifications for a particular class of positions are set forth in separate documents called Class Specifications. Position Descriptions are prepared by the affected agency and approved by the Department of Administration. In the instant case, the Deputy State Personnel Director approved selective competition for Position 07974 based upon qualifications considered necessary from the duties and responsibilities shown in the Position Description. (Composite Exhibit 2, Testimony of Dean) After approval had been obtained for selective competition for Position 07974, it was determined by DOR that only Edward M. Teuton, the incumbent of that position, possessed the necessary qualifications. As a result, Petitioner, who had no prior knowledge that selective competition was to be applied, was orally informed by his supervisor on September 13 or 14 that he would not receive the position and that Teuton would retain the same. On September 19, he received a letter dated September 14, 1977, from the Secretary of the DOR, which provided formal notice of layoff, and informed him of his right to appeal such action and to request demotion or reassignment to a position for which he might be eligible. He thereafter appealed the layoff and requested demotion in lieu thereof based on information received from the Department Personnel Officer who told him that he would have to take such action in order to retain state employment. (Composite Exhibit 4, Testimony of Petitioner)
The Issue Whether Respondent committed the offenses described in the administrative complaint? If so, what disciplinary action should be taken against him?
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Respondent is now, and has been since 1982, a general contractor licensed to practice in the State of Florida. He holds license number CG C020528. At all times material hereto, Respondent has been licensed as an individual general contractor, rather than as a qualifying agent for any business entity. 1/ Respondent is now, and has been at all times material hereto, the President of Michelle Construction Corp. (MCC). On or about November 29, 1987, MCC, through Respondent, entered into a written contract with Henry Rodriguez and his wife Patricia, in which MCC agreed, for $30,000.00, to remodel the Rodriguez residence located at 9139 S.W. 69th Court in Miami, Florida. The work to be performed by MCC included, among other things, renovating the residence's two bathrooms, replacing most of the existing roof, doubling the size of the kitchen, and adding to the residence a back porch, living room, dining room, and master bedroom with a bathroom and walk-in closet. Respondent was to prepare the plans for the project. The $30,000.00 contract price was exceptionally low for the type of work that was the subject of the contract. On December 12, 1987, Respondent, using his general contractor's license, obtained a building permit from the Metro-Dade County Building and Zoning Department to perform the work specified in the contract. Shortly thereafter, work began on the project. Although he hired Paulino Hernandez to serve as the project foreman, Respondent retained overall supervisory responsibility for the project and visited the worksite on various occasions. Work on the project proceeded slowly. Changes had to be made to the plans originally prepared by Respondent because they were infeasible. Furthermore, the project was underfinanced, notwithstanding that Mr. and Mrs. Rodriguez made payments in accordance with their contractual obligations. MCC last performed work on the Rodriguez residence on August 25, 1988. At the time it stopped working on the project, the project was not complete. To this date, it remains unfinished, despite Mr. Rodriguez's efforts to have MCC fulfill its obligations under the contract. Among those portions of the project that MCC failed to complete was the roofing work described in the contract. Following MCC's abandonment of the project, Mr. Rodriguez contracted with Trans Continental Coating Co., Inc., to install over the entire residence a "Foamed-In-Place Urethane Insulated Roof and an elastomeric coating system" for $10,000.00. The work that MCC and/or its subcontractors did perform in furtherance of its contract with Mr. and Mrs. Rodriguez was, at least in part, shoddily done in a manner reflecting either gross negligence or incompetence on the part of the workers who performed the work and those that supervised them. For example, the floors in the dining room and living room additions to the house were not level. Neither were the ceilings in the new master bedroom. Furthermore, the tiles that MCC installed were irregular and had depressions in them. Moreover, the dining room addition was several inches out of square. The paint that had been applied to the exterior of the Rodriguez home as part of the project was already peeling off at the time MCC abandoned the project. Mr. and Mrs. Rodriguez had it repainted by Transcon Painting Co. at a cost of $1,900.00. Mr. and Mrs. Rodriguez had paid MCC in excess of $30,000.00 at the time of MCC'S abandonment of the project. Initially payments were made to MCC or Respondent. Subsequently, in an effort to expedite the completion of the project, Respondent authorized Mr. and Mrs. Rodriguez to make payments directly to the job foreman, Hernandez, which they did. Hernandez was to use the money he received from Mr. and Mrs. Rodriguez to pay for the labor and supplies necessary for the project. Although Mr. and Mrs. Rodriguez paid the contract price in full, MCC and Respondent lost money on the project. Respondent has not been the subject of any prior disciplinary action by the Construction Industry Licensing Board.
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 finding Respondent guilty of the violations of Section 489.129, Florida Statutes, charged in the instant administrative complaint and suspending Respondent's license for a period two months and imposing upon him a fine in the amount of $3,000.00 for having committed these violations. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of November, 1990. 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 day of November, 1990.
The Issue The issue in this case is whether disciplinary action should be taken against Respondent's contractor's license based upon the alleged violations of Sections 489.129(1)(h) and (m), Florida Statutes, set forth in the Administrative Complaint.
Findings Of Fact Based upon the oral and documentary evidence adduced at the hearing and the entire record in this proceeding, the following findings of fact are made. At all times pertinent to this proceeding, Respondent was licensed by the Construction Industry Licensing Board (the "Board") as a certified general contractor having been issued License No. CG C024612. Respondent has been a licensed contractor since 1983. On May 3, 1991, the Board filed a Final Order in Board Case Nos. 89-009986 and 89-013330 imposing a reprimand against Respondent. The Final Order was issued as part of the settlement of an amended administrative complaint filed against Respondent by Petitioner regarding certain unrelated transactions. Respondent was the qualifying agent for Willie William Construction Company, Inc. until October 1985. At that time, as a result of a corporate name change, Respondent became the qualified agent for Ashar Construction Company. On February 21, 1985, the Unsafe Structures Board of the Building and Zoning Department for Dade County advised Ruby Delancy that a hearing would be conducted on March 12, 1985 to determine whether a one story framed residence that Mrs. Delancy owned at 1005 NW 58th Street in Miami (the "House" or the "Property") should be demolished. The Notice indicated that the structure was "open, vacant, vandalized, filled with combustible materials; posing a serious fire hazard. Structure is a danger to human life and public welfare." The Notice estimated the present value of the building at $16,080 and the estimated cost of repairs at $51,120. The County's records indicate that a Notice of Violation regarding the Property had been issued to the owner on October 31, 1984. Facing imminent demolition of the House, Mrs. Delancy began to investigate possible ways to get the House repaired. She filed an application with the City of Miami for a low income, low interest loan that was funded through Federal HUD Community Development Funds. Her efforts to obtain funding to repair the House, delayed the proceedings that had been initiated to demolish the structure. In September of 1985, the City approved Mrs. Delancy for a grant of $10,000 and loan of $20,000 to repair the House. Mrs. Delancy has no other funds to pay for repairs to the Property other than the $30,000 she was obtaining through the City Program. Under the City's program, Mrs. Delancy was responsible for selecting a contractor. Mrs. Delancy contacted Respondent, who inspected the Property and prepared a construction estimate which was submitted to the City. Respondent entered into a contract (the "Contract") dated September 20, 1985 with Mrs. Delancy for home improvement work on the House. The total contract price was $29,870, which was to be paid in two installments: $10,835 on or before December 31, 1985 and a final payment of $19,035 on or before March 3, 1986. The evidence established that Respondent was initially reluctant to enter into the Contract and at least two other contractors refused to undertake the work given the limited funds available. However, Respondent agreed to take the job because of Mrs. Delancy's insistence and because of Respondent's sympathy for Mrs. Delancy's desperate situation in view of the imminent demolition of the House. The evidence also established that Mrs. Delancy requested Respondent to undertake additional work and/or services that were beyond the scope of the Contract. Among the extra items undertaken by Respondent was replacement of the floor in the family room. Additional expenses were also incurred because of unanticipated problems encountered during the renovation. For example one side of the house gave way during the renovation work. Upon investigation, it was discovered that there was no footing. Respondent was required to shore up that side of the House. In addition, the electrician was unable to get a meter because there was an outstanding electric bill for the Property. Respondent paid the old bill in order to get the meter connected. Similarly, she paid the gas company to get the stove hooked up. It does not appear Respondent received any additional compensation for the extra work. Except for $345 that Respondent paid for utilities on behalf of Mrs. Delancy, the evidence at the hearing was insufficient to place a dollar value on these extra services and expenses. The first installment under the Contract of $10,835 was paid to Respondent on or about December 31, 1985. In approximately January of 1986, Mrs. Delancy's son, Gerald Delancy, who had been living out of the state, returned to Miami and became involved in overseeing the construction on behalf of his mother. Gerald Delancy was not pleased with the quality of the construction and a great deal of tension developed between Gerald Delancy and Respondent. The final payment request form was submitted on February 20, 1986. Mrs. Delancy signed a document (the "Certificate of Completeness") indicating that the work was completed and the final payment was made to Respondent by the City on March 3, 1986. Gerald Delancy was present when his mother signed the Certificate of Completeness. She signed this Certificate against the advice of her son. At the time the document was signed, Respondent agreed in principal to complete any remaining work. The City Inspection Form which was posted on the project fails to indicate that a final inspection approval was obtained from the City. In addition, the evidence established that required roof inspections were not obtained prior to the final structural inspection. Gerald Delancy prepared a punch list of items which he felt were incomplete and submitted it to Respondent. It does not appear that this list was prepared until July of 1986. Because of the dispute between Respondent and Gerald Delancy as to what was required under the Contract, a copy of the punch list was also sent to the City. The punch list prepared by Gerald Delancy included a number of items which were beyond the scope of the Contract. For example, with respect to the plumbing, the complaints included the following: the water pressure was to low on the water line, the kitchen sink was too small, and the bathroom vanity was substandard. The Contract did not provide for a bathroom vanity. There were also complaints about ants and roaches and "missing shower rods and towel racks" even though these items were not specifically included within the Contract between Respondent and Mrs. Delancy. The City sent its estimator to the House to review the punch list items. The City's estimator felt that Respondent should provide another coat of paint and should complete some other minor repair work, but the estimator did not concur in many of Gerald Delancy's complaints. The City's rehabilitation estimator met with Respondent and Gerald Delancy at the House on July 15, 1986. At that meeting, Respondent agreed to correct certain matters and asked for one month to complete the work. On August 1, 1986, the work was not completed and Respondent requested an additional 30 days. On August 13, 1986, Respondent stated that she did not have the money to complete the work. According to the City's estimator, the cost to repair the construction deficiencies he noted would be approximately $2,500 to $3,000 as of the date of the hearing. During this period in August, Respondent did send some workers back to the house to complete some additional work. A dispute arose between those workers and Gerald Delancy. The exact nature and reasons for this dispute are not clear. Ultimately, Gerald Delancy refused to allow the workers to perform any work because he did not feel he received adequate answers to his inquiries as to the nature of the work they intended to perform. After the City refused to concur in all of his complaints, Gerald Delancy hired a building inspection company. He paid that company $534 and it rendered a report dated August 4, 1986 which detailed many other deficiencies in the construction. It is not clear whether this report was ever presented to Respondent. On or about November 3, 1986, Mrs. Delancy, at the urging of her son, filed a lawsuit against Respondent. On or about August 8, 1989, Mrs. Delancy obtained a final default judgement against Respondent in the amount of $65,000 plus costs of $102.50. Respondent claims that she was unaware of the lawsuit and the default final judgement until Petitioner's investigator questioned her about it on September 25, 1990. As of the date of the hearing in this case, Respondent has not appealed the judgement nor has she attempted to have it set aside or vacated. In addition to alleged construction defects, the default judgement included claims against Respondent for allegedly mishandling certain household goods and other property owned by Mrs. Delancy. The evidence presented in this case was confusing and inconclusive as to the nature and justification for these claims by the Delancys for property which Respondent was allegedly storing for Mrs. Delancy. Apparently, Respondent agreed to assist Mrs. Delancy by moving some of the furniture out of the house and placing it in storage during construction. The contract did not require Respondent to provide any moving or storage services and there is no evidence that Respondent was paid for this work. Some or all of the property that was moved out of the house was lost, stolen or destroyed. There is a dispute between the parties as to circumstances surrounding the loss of this property. The evidence presented in this case was insufficient to establish what happened to the property, who was responsible for it and/or how much it was worth. It does appear that the default judgement against Respondent includes a very high assessment for the property involved. However, as noted above, that judgement has not been vacated or appealed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing Count I of the Administrative Complaint, finding the Respondent guilty of having violated Section 489.129(1)(m), Florida Statutes, as alleged in Count II of the Administrative Complaint, and imposing the following disciplinary action against the Respondent: Imposition of an administrative fine of $1,000. Suspension of the Respondent's license for a period of one year, followed by two years probation under such terms as may be imposed by the Board. DONE and ENTERED this 22nd day of August, 1994, at Tallahassee, Florida. J. STEPHEN MENTON 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 22nd day of August, 1994. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 93-6438 Only Petitioner submitted a proposed recommended order. The following rulings are made with respect to the proposed findings of fact submitted by Petitioner. The Petitioner's Proposed Findings of Fact Adopted in substance in Findings of Fact 1. Adopted in substance in Findings of Fact 2. Adopted in substance in Findings of Fact 7 and 8. Adopted in substance in Findings of Fact 4, 11, and 12. Adopted in substance in Findings of Fact 3 through 9. Adopted in substance in Findings of Fact 10. Subordinate to Findings of Fact 14 through 18. Subordinate to Findings of Fact 18. Subordinate to Findings of Fact 16 through 18. Subordinate to Findings of Fact 17. Adopted in substance in Findings of Fact 20. Subordinate to Findings of Fact 20. Adopted in substance in Findings of Fact 20. Adopted in substance in Findings of Fact 20. Rejected as unnecessary. Adopted in substance in Findings of Fact 21 and 22. Subordinate to Findings of Fact 21. Subordinate to Findings of Fact 22. Subordinate to Findings of Fact 21 and 22. Subordinate to Findings of Fact 21 and 22. Adopted in substance in Findings of Fact 1. COPIES FURNISHED: Theodore R. Gay, Esquire Dept. of Bus. and Prof. Reg. 401 NW 2nd Ave., Ste N-607 Miami, FL 33128 Agnes Sangster 9925 NW 25th Ave. Miami, FL 33147 Jack McRay Acting General Counsel Dept. of Bus. and Prof. Reg. 1940 N. Monroe St. Tallahassee, FL 32399-0792 Richard Hickok, Exec. Dir. Construction Industry Licensing 7960 Arlington Expressway, Ste 300 Jacksonville, FL 32211-7467
Findings Of Fact The non-teaching staff of the University of South Florida (USF) includes both the University Services Personnel System and the Administrative and Professional staff (A & P). The former is a career service personnel system that includes the prohibition against terminating an employee except for cause. A & P employees do not acquire tenure, and A & P employees can be "non- reappointed" at will, subject to applicable personnel procedures and, in the case of some A & P employees, subject to the provisions of a union contract covering those employees. The Petitioner's position is not covered by any union contract. Besides, the union contracts that cover some of the other A & P employees do not affect the "non-reappointment" of A & P employees. USF hired the Petitioner as a coordinator of student affairs on January 29, 1991. This position was and is part of USF's Administrative and Professional staff. It normally is a one-year contract of employment. The Petitioner's initial contract expired on August 6, 1991. The Petitioner's contract was renewed in August, 1991, and again in August, 1992. The last annual contract was to expire on August 8, 1993. On November 23, 1992, USF's Provost, Gerry G. Meisels, wrote the Petitioner a letter advising the Petitioner that USF would not be re-appointing him upon expiration of his contract on August 8, 1993. The letter included reasons for the decision not to re-appoint the Petitioner. The Petitioner's compensation continued through the remainder of his contract. The Petitioner filed a grievance pertaining to USF's notice of non- reappointment. After Step 2 of the grievance proceeding, the Petitioner requested administrative proceedings under Section 120.57, Fla. Stat. (Supp. 1992).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent, the University of South Florida, enter a final order dismissing the petition for administrative proceedings in this case. RECOMMENDED this 23rd day of November, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 23rd day of November, 1993. COPIES FURNISHED: Robert G. Walker, Esquire 1432 Court Street Clearwater, Florida 34616 Henry W. Lavandera, Esquire Assistant General Counsel University of South Florida 4202 East Fowler Avenue, ADM 250 Tampa, Florida 33620-6250 Gerry G. Meisels, Provost University of South Florida 4202 East Fowler Avenue, ADM 226 Tampa, Florida 33620-6100 Noreen Segrest, Esquire Acting General Counsel University of South Florida 4202 East Fowler Avenue, ADM 250 Tampa, Florida 33620-6250
The Issue The issue is whether Respondent should have an administrative fine or other disciplinary action imposed for allegedly acting as a contractor without a license.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: When the events herein occurred, Respondent, Benjamin Ward, Jr., operated a business under the name of Ward's Handyman Services at 1204 Don Quixote North, Jacksonville Beach, Florida. Records of Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Board), indicate that Respondent is not licensed as a residential contractor. Rkia Carmack, also known as Maria Carmack, owns a residence at 301 Sixth Street, South, Jacksonville Beach. She is disabled, confined to a wheelchair, and does not read or write the English language. Carmack desired to remodel her home and based on a recommendation by a friend, chose Respondent to perform the work. It can be reasonably inferred from the evidence that Respondent represented to Carmack that he was authorized to perform contracting work on her house. On October 25, 1995, Respondent drafted a "Proposal" which sets forth the rather lengthy terms of the work to be done. The Proposal provided that Respondent would "re-carpet house, popcorn ceiling in house, replace kitchen countertop and faucet, [and] put on new shingles on roof." In addition, he agreed to "[t]ile kitchen floor, extend room to 12 x 14 and make bathroom to master bedroom 9 x 12 with wheel case excessible (sic) shower, one window, dual sinks, linen closet, and 5 1/2 x 9 closet, 36" door from garage to master bathroom, tile bathroom and shower and walk of shower, sink and toilet in bedroom #2." The Proposal further called for Respondent to "[t]exture walls in living room area; [r]eplace all windows with 'Kinco' windows; [and install] [a]ll mason on front side windows and except bath." Finally, Respondent agreed that "[o]wner will buy paint for job, and locks for house," but that he would "[i]nstall concrete to make front entrance wheel excessible (sic), [and] enlarge side LR window." The approximate completion date for all work was "on or before November 20, 1995." Respondent was not licensed to perform any of this work. The Proposal reflects that Carmack would pay "$11,500.00 and balance at completion of entire job." The Proposal was accepted by Carmack on October 25, 1995. The evidence is conflicting as to what amount of money was paid by Carmack to Respondent for the work performed. It is clear, however, that she paid all amounts in cash and did not receive any receipts for these payments. As incremental payments were made, however, Respondent noted these payments in a portion of the Proposal. It reflects that Carmack paid the following amounts on the cited dates: October 25, 1995 -- $2,000.00; October 27, 1995 -- $3,000.00; October 28, 1995 -- $1,800.00; November 18, 1995 -- $5,000.00; and December 14, 1995 -- $1,000.00. These payments totaled $12,800.00. Carmack contended that she paid $5,000.00 "up front" and gave varying amounts thereafter, but she gave conflicting dates and amounts, and her recollection of the events was obviously not clear. Assuming that Respondent's notes on the Proposal are correct, she still paid Respondent around $12,800.00 for the work. There was no evidence that Respondent was not fully paid in accordance with the Proposal. Respondent hired several workers to do the assigned tasks, none of whom were licensed, and he supervised all work being performed. It is reasonable to infer that he assumed the role of a contractor on the project. Although required, no building permits were ever obtained from the City of Jacksonville Beach (City) before the work began. Problems regarding workmanship arose, including the new shingles blowing off the roof during a storm which occurred two days after they were installed. In April 1996, two City building inspectors inspected Carmack's home. They found a number of deficiencies in the workmanship, including the plumbing, roofing, and electrical work, as well as problems with the carpet, sheet rock, and water drainage. Some of the deficiencies amounted to safety hazards. Overall, the two inspectors described the quality of work as being "very poor." The City required that Respondent hire licensed individuals to correct the deficiencies. These deficiencies were apparently resolved in May or June 1996 although Carmack contended it cost her additional money over and above the price specified in the Proposal. The record is unclear as to the amount of additional moneys paid. Even so, her testimony that she paid additional moneys was not contradicted.
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 finding Respondent guilty of violating Sections 489.127(1)(f) and (h) and 489.129 (1)(h), Florida Statutes, and that a fine in the amount of $1,000.00 be imposed, to be paid within thirty days after the entry of the Final Order. The Final Order should also include a provision directing Respondent to cease and desist from all activities for which a license is required. DONE AND ENTERED this day of August, 1997, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this day of August, 1997. COPIES FURNISHED: John O. Williams, Esquire Maureen F. Holz, Qualified Representative Post Office Box 14267 Tallahassee, Florida 32317 Benjamin Ward, Jr. 447 Aquatic Drive Atlantic Beach, Florida 32250 Rodney Hurst, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
