The Issue The issues are whether Respondent committed the several violations of Sections 489.129(1)(h)2.,(h)3.,(j),(k), and (n), Florida Statutes (1997), for the reasons stated in the respective Administrative Complaints and, if so, what, if any, penalties should be imposed. (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of contracting. Respondent is licensed as a certified general contractor pursuant to license number CG C059414. At all relevant times, Respondent was the qualifying agent for Fred T. Garrett Construction, Inc. ("FTG"). As the qualifying agent, Respondent was responsible for all of FTG's contracting activities in accordance with Section 489.1195, Florida Statutes. Respondent failed to obtain a certificate of authority for Fred T. Garrett Construction, Inc., as required by Section 489.119(2), Florida Statutes. The St. Cyr Case On or about August 21, 1998, Respondent entered into a contract with Louis L. St. Cyr to construct an addition to the residence located at 201 South Bel Air Drive, Plantation, Florida. The contract price was $50,000. Although Mr. St. Cyr paid $2,500 to Respondent, Respondent failed to commence work and canceled the project, thereby abandoning it without just cause and without proper notification to Mr. St. Cyr. The contract did not permit Respondent to keep the $2,500 paid by Mr. St. Cyr, and Respondent failed to refund the payment within 30 days after abandonment. Out of the $2,500 he received from Mr. St. Cyr, however, Respondent paid $1,600.00 to the architect before abandoning the project. Thus, the net amount that Respondent owes to Mr. St. Cyr is $900. Petitioner incurred a total of $1,092.28 in investigative costs relating to the St. Cyr case. The Forney Case On May 22, 1998, Respondent, who was doing business as FTG, entered into a contract with Mr. Warren Forney for the construction of a two-bedroom, one-bath addition to the residence located at 1698 Northeast 33rd Street, Oakland Park, Florida. The contract price was $32,500. The contract with Mr. Forney did not contain a written statement explaining the customer’s rights under the Construction Industries Recovery Fund, as required by Section 489.1425(1), Florida Statutes. On July 7, 1998, Respondent obtained permit number 98-050297 from the Oakland Park Building Department. Construction commenced on or about July 7, 1998, and continued sporadically until October 29, 1998, when Mr. Forney dismissed Respondent for failure to timely complete the project. The Oakland Park Building Department issued notices of violation against the project on August 3, September 11, and October 14, 1998, for various building code violations. Mr. Forney was forced to obtain a homeowner’s permit and subsequently hired a subcontractor to complete the work. Mr. Forney paid Respondent approximately $29,250 before relieving Respondent of his duties. To complete the project, Mr. Forney paid a total of $48,746.52, which was $15,396.52 over and above the original contract price. Petitioner incurred a total of $2,190.78 in investigative costs relating to the Forney case. The Kong Case In or around January 1998, a contractor named Lakeview Concepts hired Respondent to perform demolition work for the Kong dry cleaning store project on the property located at 5171 South University Drive, Davie, Florida. On or about June 17, 1998, permit 98-00002349 was issued to Respondent to perform alterations on commercial property located at 5171 South University Drive, Davie, Florida. Respondent, however, did not yet have a contract with the owner for this work. The next month, on or about July 30, 1998, Respondent, who was doing business as FTG, entered into a contract with Shek Kong to complete the dry cleaning store project at 5171 South University Drive, Davie, Florida, for the contract price of $22,300. Shek Kong made payments to Respondent totaling $16,000. Respondent’s work was of poor quality, however, and on or about November 6, 1998, he ceased work, though the project had not been completed. On or about November 14, 1998, Douglas Frankow, license number CB C052960, gave Mr. Kong an estimate of $20,562 to complete the project. Thereafter, on or about June 30, 1999, Mr. Kong contracted with George Settergren, another licensed contractor, to complete the project for a contract price of $27,956. On December 9, 1999, in Case No. 98-020065 08, the Circuit Court, Seventeenth Judicial Circuit, Broward County, Florida, rendered a Final Judgment against Respondent and in favor of Mr. Kong. This judgment awarded Mr. Kong the total amount of $28,693.30, plus 10 percent interest per annum. Petitioner incurred a total of $2,502.78 in investigative costs relating to the Kong case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Construction Industry Licensing Board enter a Final Order finding Respondent guilty of violating Sections 489.129(1)(h)2., (h)3., (j), (k), and (n), Florida Statutes, imposing administrative fines in the aggregate amount of $3,700, assessing investigative costs in the aggregate amount of $5,785.84, placing Respondent's license on probation for a period of four years from the date the Final Order is entered by the Board, and awarding payment of restitution to each customer as follows: (1) to Warren Forney, the amount of $15,396.52; (2) to Shek Kong, satisfaction of the unpaid civil judgment in the amount $28,693.30, plus 10 percent interest accrued thereon; and (3) to Louis L. St. Cyr, the amount of $900. DONE AND ENTERED this 15th day of February, 2002, in Tallahassee, Leon County, Florida. _________________________________ JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 2002.
Recommendation Based on the foregoing facts and conclusions of law, I recommend that the information filed herein be dismissed in it's entirety. Done and Entered this 24th day of August, 1976, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Manuel E. Oliver, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Walsh and Associates By Gerald M. Walsh, Esquire 404 Courthouse Square Building 200 Southeast Sixth Street Ft. Lauderdale, Florida 33301
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and the entire record compiled herein, the following relevant facts are found. Based on an Administrative Complaint filed on July 6, 1979, the Florida Construction Industry Licensing Board (herein sometimes referred to as the Petitioner or the Board) seeks to take disciplinary action against Licensee Richard E. Ulbricht, d/b/a Ulbricht Construction, Inc., and to impose an administrative fine or $500.00. Respondent is a registered contractor who holds the following licenses: RG 0011921 - Registered General/Active/Issued RGA 0011921 - Registered General/Active/Issued RG OB 11921 - Registered General/Delinquent RM 0014920 - Registered Mechanical/Active/Issued RM 0017586 - Registered Mechanical/Delinquent RS 0019201 - Registered Sheet Metal/Active/Issued RC 0019264 - Registered Roofing/Active/Issued Respondent was first licensed by the Petitioner during February, 1972. On June 14, 1977, Respondent qualified Ulbricht Construction, Inc., as the business entity through which he would conduct his contracting business. The construction activities involved herein took place in the City of Palm Bay, Florida. Palm Bay has no local licensing board. On June 12, 1978, Respondent entered into a contract with Michael D. and Karen K. McCammack to construct a residence for the sum of $39,900.00. Respondent received the full contracted price and the transaction closed on January 4, 1979. Chelsea Title and Guaranty Company closed the transaction for Respondent and the McCammacks on January 4, 1979. Camille Guilbeau is the manager for the Palm Bay branch of Chelsea Title and Guaranty Company. Ms. Guilbeau is in charge of all closing and as such ensures that all outstanding obligations of record are paid. In keeping with Chelsea's policy of protecting itself in the event of outstanding unrecorded claims of liens, Chelsea has a policy of requiring contractors and builders such as Respondent to declare in an affidavit that there is no outstanding work which has been performed, or labor or materials for which a lien could be filed on property in which Chelsea is closing the mortgage transaction. Respondent executed such an affidavit relative to the McCammacks' property, which Chelsea relied on to close the transaction on January 4, 1979 (Petitioner's Exhibit 4). On January 4, 1979, Chelsea Title and Guaranty Company paid Rinker Materials Corporation of Melbourne, Florida, $1,201.02 based on a claim of liens filed December 15, 1978, for materials consisting of concrete block, steel and miscellaneous items which were used on the McCammack property (Petitioner's Exhibit 6). Subsequent to the date of closing, January 4, 1979, liens amounting to approximately $2,761.62 have been filed against the McCammack property based on Respondent's failure to pay bills for labor and/or materials used in connection with the construction of the McCammacks' residence. These lien claims were filed against the McCammacks' property for a drilled well, installation of a pump and tank by Perry and Leighty, Inc., of Melbourne, Florida; two septic tanks, drains and sand supplied by Pence South Brevard Sewer and Septic Tank of Melbourne, Florida (Petitioner's Exhibits 7, 8 and 9). On December 22, 1978, Respondent entered into a contract with Robert J. Greene to construct a residence for $30,500.00 in Palm Bay, Florida. Respondent filed an affidavit of no liens relative to the Greene property on January 10, 1979. Chelsea Title and Guaranty Company relied on this affidavit to close the Greene property transaction on January 10, 1979 (Petitioner's Exhibit 5). Respondent was paid thee entire contract price. On February 12, 1979, Pence South Brevard Sewer and Septic Tank filed a claim of lien in the amount of $1,015.36 for two septic tanks, drains and sand which had been furnished the Respondent for the property of Robert J. and Alice Greene of Palm Bay, Florida, on December 15, 1978 (Petitioner's Exhibits 10 and 11). Approximately $3,496.40 was retained by Chelsea Title and Guaranty Company to satisfy outstanding recorded obligations on the date the Greene transaction closed (Petitioner's Exhibit 13). On February 21, 1979, Respondent caused to be filed in the United States District Court of the Middle District of Florida, a Voluntary Petition for Bankruptcy for Ulbricht Construction, Inc. (Petitioner's Exhibit 2 Composite).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Respondent's contractors licenses set forth hereinabove be REVOKED. RECOMMENDED this 6th day of May, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, 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 6th day of May, 1980.
The Issue Whether a permit should be granted for an at-grade crossing over the Florida East Coast Line Railroad at Mile Post 175.57.
Findings Of Fact 1. The City of Rockledge, Florida is constructing a road in the incorporated limits of the city, known as Rovac Parkway. The road has not been completed, but when completed, it will consist of two ten foot driving lanes running east and two ten foot driving lanes running west with a twelve foot median strip and fourteen foot shoulders. This road-is scheduled to intersect the Florida East Coast Line Railroad at Mile Post 175.57, and would cross the railroad with the same given dimensions as described above. After crossing the railroad, the Rovac Parkway would intersect with U.S.1, also known as State Road There is pending with the State of Florida, Department of Transportation, an application for driveway permit from the Rovac Parkway into U.S.1 (State Road 5), and a copy of the application for permit is found in the City's Exhibit #4 entered into evidence in the hearing. The area for which the application for at-grade crossing pertains is zoned R-2. In the general area of the proposed crossing it is intended that a industrial plant be built by Rovac, Inc., a firm from Maitland, Florida. The Florida East Coast Line Railroad which runs through the City of Rockledge is a single track line which runs roughly north and south and 66 percent of the population of the City of Rockledge, is located west of the Florida East Coast Line Railroad, with the remaining 34 percent found east of the Florida East Coast Line Railroad. The population in the City of Rockledge at the time of the hearing was 11,467 people. If the subject railroad crossing was open and the Rovac Parkway completed, approximately 35 percent of the 66 percent of the population lying west of the Florida East Coast Line Railroad would be using the at-grade crossing. The nearest at-grade crossing with signalization is found 1/2 mile north of the proposed crossing at Barton Road, and the implementation of an at-grade crossing at the subject location would releave the traffic at Barton Road and promote safe crossing of the Florida East Coast Line Railroad found in the City of Rockledge. Immediately north of the proposed at-grade crossing and identified as Mile Post 175.49 is an unprotected at-grade crossing. This crossing services a roofing company which services the public and also services a number of homes in the immediate vicinity of the existing crossing. If the new at-grade crossing at Mile Post 175.57 were permitted, the people who utilize the crossing at Mile Post 175.49 would be serviced by the new crossing. This service would be affected by an extension of an existing road known as Edwards Drive, from its present location to intersect with Rovac Parkway at right angles immediately west of the intersection of the proposed crossing with the Florida East Coast Line Railroad. The land that is necessary for the extension of Edwards Drive has been deeded to the City of Rockledge but has not been dedicated, A and public hearings have been held on the question of the service of those persons in the vicinity at the present at-grade crossing, in addition to public hearings on the extension of Edwards Drive. The location of the proposed crossing and the existing crossing at Mile Post 175.49, and their relationship to other landmarks in the area can be seen through the City's Exhibit #13, admitted into evidence. At the time of hearing, eight north and south bound freight trains and two local freight trains operated in the vicinity of the present crossing at Nile Post 175.49 and the contemplated crossing at Mile Post 175.57. The time schedule for the northbound freight trains is 3:00 A.M., 4:00 A.M., 5:00 A.M., 9:00 A.M., 2:00 P.M. 3:00 P.M., 4:00 P.M. and 7:00 P.M. The time schedule for the south bound freight trains is 10:45 A.M., 3:45 P.M., 7:00 P.M., 8:00 P.M., 9:00 P.M., 10:45 P.M., 11:45 P.M. and 6:30 A.M. The two local freight trains run at approximately 4:00 A.M. and 12:00 noon. The 7 speed limit in the area of the crossing at Mile Post 175.49 and the proposed crossing at Mile Post 175.57 is 60 fPH for the railroad. There is a left curve approximately 1,550 feet south of the proposed crossing. All parties to the hearing feel that it is necessary to have signalization at the proposed at-grade crossing. The witness for the City acknowledged the need for such an arrangement. The spokesman for the Railroad felt that the crossing should be controlled by an automatic system with flashing lights, ringing bells, and gates, which was train activated, and the witness of the Department of Transportation felt that the safety equipment at the proposed at-grade crossing should be a Type IV, with cantilevered flashing lights, ringing bells and gates. The same witnesses stressed that the existing crossing at Mile Post 175.49 was not signalized and therefore was much more dangerous than a signalized crossing, such as the proposed crossing at Mile Post 175.57. Exhibits which were offered in the course of the hearing which address the propriety of opening a crossing at Mile Post 175.57 and closing the crossing at Mile Post 175.49 were as follows: Exhibit #1, by the City, is a map of the City of Rockledge; Exhibit #2, by the City, is a comprehensive land use plan of the City; Exhibit #3, by the City, is a resolution of the City Council, City of Rockledge, proposing the opening of the crossing at Mile Post 175.57; Exhibit #6, by the City, a traffic count at the Barton crossing; Exhibit #11, by the City, a resolution of the Brevard Economic Development Commission concerning the impact of such a development; and Exhibit #12, by the City, a drawing of the extension of Edwards Drive and the construction of the Rovac Parkway, together with the present crossing and the proposed crossing.
Recommendation It is recommended that the permit be granted, to open the subject crossing, utilizing safety equipment of a type addressed in the Conclusions of Law section of this Recommended Order. DONE and ENTERED this 2nd day of July, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Walter C. Sheppard, Esquire City Attorney, for Rockledge 115 Harrison Street Cocoa, Florida 32922 Charles B. Evans, Esquire Florida East Coast Line Railroad One Malaga Street St. Augustine, Florida 32084 Philip Bennett, Esquire Office of Legal Operation Department of Transportation 605 Suwannee Street Haydon Burns Building Tallahassee, Florida 32304
