Findings Of Fact At all times relevant hereto, Respondent was licensed as a registered building contractor and as a registered general contractor. On or about August 4, 1982, Hoffman, representing B & B Constructors, Inc., contracted with Vernon Swanger to build an addition to the Swanger residence at 4412 West Lelia Avenue, Tampa, Florida. The contract price for the addition to the Swanger residence was $9,150. On August 4, 1982, Swanger made the initial payment to Hoffman of $3,000 by check on this contract. Prior to the signing of this contract, Hoffman had contacted Respondent, who agreed to pull the permit for this project and who signed a blank proposal which was subsequently completed, executed by Swanger and Hoffman on 4 August 1982, and became Exhibit 2 in these proceedings. On or about August 16, 1982, Respondent obtained a permit for the addition to the Swanger residence from the City of Tampa Building Department showing Respondent as the licensed contractor for the job. Although Respondent signed the stipulation of facts that "All or the greater part of the $3,000.00 which was the first or initial payment on the contract for the Swanger addition was diverted from the construction work," Hoffman testified in Exhibit 25 that he used the $3,000 to buy materials for the project and to pay his (Hoffman's) salary for his work on the project. Under the facts here presented, Hoffman was the only one who knew for what this $3,000 had been used. In his deposition Hoffman testified that an excessive number of rainy days resulted in cost overruns resulting in insufficient money to complete the project. At no time relevant hereto was Hoffman of B & B Constructors, Inc., licensed as a contractor by the State of Florida. Respondent visited the Swanger residence once or twice while the work was in process, but all materials were ordered by Hoffman, all subcontractors were hired by Hoffman or Swanger, Hoffman was the one supervising the project, and Respondent's participation and supervision was, at best, pro forma. At no time was Respondent the qualifying agent for B & B Constructors, Inc., although Respondent briefly considered acquiring B & B Constructors, Inc., at or about the time the contract with Swanger was negotiated. The City of Tampa, Florida, is the local government with jurisdiction of the area, which is part of Hillsborough County, where Respondent is qualified as a licensed contractor. On or about January 11, 1983, as the result of a complaint filed by Swanger, Respondent's license to practice contracting in Tampa was revoked by the City of Tampa Unified Construction Trades Board. Respondent testified that he paid for the permit pulled for the Swanger project out of his own pocket and was never reimbursed by Hoffman. However, in Exhibit 25, Hoffman testified that he gave Respondent $100 in cash with which to pull the permit and his agreement with Respondent was to pay Respondent 3 percent of the contract price to pull the permit as licensed contractor.
Recommendation From the foregoing it is concluded that Respondent is guilty of all charges alleged except violation of Section 489.129(1)(h), Florida Statutes, involving diversion of funds. In view of Respondent's voluntary inactivation of his license since June 1983 it is recommended that Respondent's license be suspended for six (6) months from the date the Construction Industry Licensing Board enters its final order in this case. DONE AND ENTERED this 19th day of October 1984 at Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of October 1984. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 George W. Brown 11222 Russell Drive Seffner, Florida 33584 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Board of Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202
The Issue The issues framed by the Stipulated Issues, Facts and Exhibits are whether the license of David L. Norris as a certified general contractor should be disciplined for violation of: Section 489.129(1)(e), Florida Statutes (1983), by aiding an unlicensed person to evade the requirements of Chapter 489; Section 489.129(1)(f), Florida Statutes (1983), by knowingly conspiring with an unlicensed person to use Norris' certificate with the intent to evade the requirements of Chapter 489; Section 489.129(1)(j), Florida Statutes (1983), through the violation of Section 489.119, Florida Statutes (1983), by failing to qualify a firm through which Respondent was acting; Section 489.129(1)(g), Florida Statutes (1983), by acting in a name not on his license. At the final hearing, the Department amended the Administrative Complaint to dismiss the violations of Sections 489.129(1)(k) (abandoning a contracting job) and (m) (gross negligence or malpractice in contracting). The Department presented the two witnesses and the Respondent presented one witness. Twelve exhibits for the Department were received into evidence, and Mr. Norris offered one exhibit. The parties also stipulated to certain facts. (See Stipulated Issues, Facts and Exhibits filed May 15, 1986, Tr. 4-5)... /1
Findings Of Fact At all times material, Respondent, David L. Norris, was a certified general contractor, having been issued license numbers CG C011081 and CG CA11081, by the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board. (PX 2; Stp. F. #1, Administrative Complaint paragraph 2) At all times material, Mitch Kobylinski (Kobylinski) was unlicensed, and KMK Remodeling and Repair (KMK) had no qualifying agent for the purpose of engaging in contracting under Section 489.119, Florida Statutes (1983). At times Kobylinski has done business as KMK. (PX 1; Stp. F. #2; Tr. 18-21) At no time did the name Kobylinski or KMK appear on the license issued to Norris by the Construction Industry Licensing Board, nor did Norris qualify a business by that name. (Stp. F. #1, Administrative Complaint paragraph 9) Norris knew Kobylinski was not licensed to engage in contracting. (Stp. F. #1, Administrative Complaint paragraph 5) Kobylinski had worked for Norris on prior jobs, including working for Norris in the capacity as overseer on a large room addition. Norris had paid Kobylinski by the hour, by the day or by the type of work Kobylinski did. On one other job, Norris and Kobylinski shared the job in that Kobylinski was paid by the day, however, at the end both Respondent and Kobylinski split the profit. (Tr. 21,22) Kobylinski, not Norris, was initially contacted by a leasing agent to improve a structure for Marianne Tomlinson (Tomlinson) at 21073 Jog Road, Suite 21, Boca Raton, to become Tootsie's, a nail salon. Kobylinski indicated to the leasing agent and Ms. Tomlinson that he would have to perform the work with a general contractor. (Stp. F. #3; Tr. 24) Kobylinski presented a proposal on KMK's letterhead, dated August 17, 1984, to Tomlinson for the work to be done. (PX 3; Tr. 16, 18) Norris also submitted a proposal, dated August 15, 1984, to Tomlinson. The evidence does not show what letterhead was used by Norris, because the exhibit is a carbon copy. (RX 1) The proposed cost of the work from Kobylinski was $23,593.75 and from Norris was $23,600. Both proposals made separate provisions for formica work at additional prices of $10,600 and $10,500 respectively. (Stp. F. #4; PX 3; RX 1) Only Kobylinski's proposal was signed by Ms. Tomlinson. (PX 3; Tr. 39) Norris and Kobylinski agreed that Norris would act as the overseer of the job and that, as compensation, Norris initially was to receive $1,000.00 to begin the job (Tr. 26) and further monies depending upon time Norris expended on the job (Tr. 22-23, 28-29). They also agreed that Kobylinski was to deal exclusively with Tomlinson and be responsible for all monies on the job and paying subcontractors. (Tr. 26, 43) No agreement was signed between Norris and Tomlinson providing that Norris would be the contractor for the job. (Tr. 38-39) Norris applied for and was issued, on September 18, 1984, the building permit for the Tomlinson job. (PX 4,5; Stp. F. #1, Administrative Complaint paragraph 6; Tr. 39) Norris contacted the electrician, at the initial stage of the job, for the electrical work. (Tr. 56) A certificate of occupancy was issued for the job. (Stp. F. #6; Tr. 46) Tomlinson made all payments for the construction work by checks payable to Kobylinski, drawn on Tomlinson's business account for Tootsie's. (PX 7; Tr. 30) Near the end of the job, Tomlinson gave Kobylinski a check, dated December, 1984, for $4,000.00. There were not sufficient funds in the account for Kobylinski to cash the check. Kobylinski returned to Tomlinson with the check, and Tomlinson issued him a replacement check for $2,000.00. She requested the return of the $4,000.00 check to her, but Kobylinski had not brought that check with him. At this point in time, the working relationship between Kobylinski and Tomlinson broke down. (PX 7; Tr. 31,32) Tomlinson submitted her punch list, dated December 17, 1984, to Norris. On it she identified him as the contractor for her job and stated she wanted to make the final payment to him. (PX 6) On January 20, 1985, due to problems with the punch list and remaining payment, Tomlinson and Norris met. As a result of that meeting, they reached an agreement dated January 20, 1985, as to what remained to be paid, viz., $4,113.75, and what work remained to be done. The August 17th agreement between Kobylinski and Tomlinson was referenced in the agreement of January 20, 1985. (PX 8; Tr. 45) By January 20, 1985, Kobylinski would have received all the monies for the cost of the work, according to the August 17th agreement, if the $4,113.75 were paid by Tomlinson. (Stp. F. #5) On January 21, 1985, Norris filed a claim of lien against the Tomlinson job. The lien indicated that the total value of the work was $23,593.75 (which was the cost of construction according to the contract with Kobylinski) and that the amount unpaid was $4,113.75. Norris filed the lien because, after signing the agreement of January 20, 1985, he and Tomlinson had further disagreements. (PX 9; Tr, 46) In a letter to Norris, dated April 23, 1985, in an attempt to get Respondent to release his lien, Tomlinson indicated that she had contracted with Kobylinski, not Norris, to do the work for her. (PX 11) As compared to the compensation received by Norris, Kobylinski has received over one-half the money from the Tomlinson job. (Tr. 28)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent be found guilty as charged in the Administrative Complaint, as amended at the final hearing, and that an administrative fine of $1,000.00 be imposed. DONE AND ORDERED this 9th day of October 1986 in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY, JR. 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 October, 1986.
The Issue The issue presented for decision herein is whether or not the Respondent, David H. Tinius, unlawfully abandoned a construction project; diverted funds received for completion of a construction project and thereby failed to fulfill his contractual obligations.
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. By its administrative complaint filed herein signed October 6, 1982, the Petitioner, Construction Industry Licensing Board, seeks to suspend, revoke or take other disciplinary action against the Respondent's registered building contractor's license. During times material herein, Respondent was a registered building contractor and has been issued license No. RB0024083. On approximately April 20, 1978, Respondent entered into a contract with Jess Marks to build a residence in Tamarac, Florida, for the sum of $46,551. Respondent commenced construction of the Mark's residence but left the site when it was approximately forty percent complete. At that time, Respondent had received approximately $44,000 of the contract sum. Jess Marks completed the construction of his residence by hiring another contractor to complete the project and expended approximately $50,000 over and above the contract price as agreed upon by the Respondent to complete his residence. Respondent never returned any of the monies received from the Marks for completion of the residence. On approximately April 24, 1978, Respondent entered into a contract with Abe Abrahams to construct a residence in Tamarac, Florida, for the sum of $30,473. Respondent left the Abrahams' project after he had received $6,000 and had completed approximately ten percent of the work on the Abrahams' residence. Respondent did not return to the site nor did he return any of the monies received from the Abrahams for the construction of their residence (See Petitioner's Composite Exhibit No. 5). The Abrahams had to pay for supplies and material bought for the project by the Respondent and which reportedly had been paid, according to Respondent. THE RESPONDENT'S POSITION As noted hereinabove, the Respondent did not appear to contest or otherwise refute the allegations contained in the administrative complaint filed herein. However, Respondent, through counsel, filed an answer which admitted the complaint allegations filed herein.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, hereby RECOMMENDED that the Respondent's registered building contractor's license No. RB0024083 be REVOKED. DONE and RECOMMENDED this 29th day of August, 1983 in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1983 COPIES FURNISHED: Michael J. Cohen, Esquire 2715 East Oakland Park Boulevard Suite 101 Fort Lauderdale, Florida 33306 David H. Tinius 4420 Northwest 36th Court Lauderdale Lakes, Florida 33309 David H. Tinius Post Office Box 6338 Charlotte Amalil St. Thomas, U.S.V.I. 00801 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Respondent performed an act which assisted an entity in engaging in the prohibited uncertified and unregistered practice of contracting or whether he abandoned a construction project in which he was engaged or under contract as a contractor, in violation of section 489.129(1), Florida Statutes, as set forth in the Administrative Complaint, and, if so, what is the appropriate sanction.
Findings Of Fact The Board is the state agency charged with regulating the practice of construction contracting pursuant to section 20.165 and chapters 455 and 489, Florida Statutes. At all times material to this proceeding, Mr. Requejo was licensed as a certified general contractor in the state of Florida, having been issued license number CGC 1504266. Mr. Requejo’s address of record is 15941 Southwest 53rd Court, Southwest Ranches, Florida 33331. At all times material to this proceeding, Mr. Requejo was the primary qualifying agent of Recol, Inc. Mr. Andre Chestnut was formerly a registered contractor in the state of Florida. He testified credibly that he used to have nine licenses. At all times relevant to this case, he held no state licensure as a contractor. Consistent with Department records, he testified that his license had been revoked sometime around August 2003. USA Screens was incorporated in December 2011 to perform “any and all lawful business,” with Mr. Chestnut as the incorporator, registered agent, and president. Records of the Department contain no evidence that USA Screens, Inc., has ever been qualified by a licensed contractor or had an active license as a construction business. Ms. Carmen Goehrig owned real property at 6300 Pinehurst Circle East in Tamarac, Florida. She wished to install a screen enclosure on the property. On January 21, 2012, she entered into a construction contract with USA Screens, Inc., signed by Mr. Chestnut. This constituted the practice of contracting by Mr. Chestnut and USA Screens, Inc. Mr. Chestnut testified that he had been working in conjunction with Mr. Requejo on various projects for the past nine years. He credibly testified that he received the template for the contract he entered into with Ms. Goehrig from Mr. Requejo. That contract template contains the full name and address for both Recol, Inc., and USA Screens, Inc., at the top of the contract in large type, but shows only one contractor’s license number, that of Mr. Requejo, under the address for Recol, Inc. No contractor’s license number is shown under the USA Screens, Inc., address. Having worked with Mr. Chestnut for nine years, and having prepared the template contract that they used for common projects, Mr. Requejo had reasonable grounds to know that USA Screens, Inc., was uncertified and unregistered, as suggested by the contract itself. The contract mentioned that it was contingent upon both homeowner association and government approvals, and included a handwritten provision that there would be “no material purchases until association approval.” Ms. Goehrig signed two checks to USA Screens, Inc.: the first in the amount of $500.00 for the application; the other in the amount of $3,000.00 for materials. Both checks were cashed on January 24, 2012. On February 14, 2012, Mr. Requejo, d/b/a Recol, Inc., timely filed building permit application 12-636 for construction of the screen enclosure at 6300 Pinehurst Circle East with the city of Tamarac, using his general contractor’s license number. Recol, Inc., is listed as the general contractor in the city’s records. In filing for a permit from the city of Tamarac for the construction, Mr. Requejo assisted USA Screens, Inc., and Mr. Chestnut in engaging in the prohibited uncertified and unregistered practice of contracting. Mr. Claudio Grande is the chief building official for the city of Tamarac. He oversees permitting and is the custodian of records. He testified that permit 12-636 was denied due to zoning restrictions and structural issues. Mr. Chestnut testified that he made numerous calls trying to get the permit approved. He testified that the problem was that the screen enclosure encroached on a utility easement. As Mr. Goehrig testified: They applied for the permit. He showed us the drawings, Andre, and to my knowledge, submitted the permit application. And then we noticed that the second check was cashed, so we started calling him about that. And all he would say is, “Don’t worry, don’t worry, don’t worry.” And then the permit was denied and then we went back and tried to do something to get it approved and it was denied. And then zoning finally denied it again. So three times, we tried to fix it to make it work. And we finally, you know, the zoning department finally came down and said, “No, end of story, no good.” So we went to him and said, “Okay, we can’t get the permit, please just give us our money back and we’ll go on our way.” And of course, his answer was, “No, you’re not getting any money back, I spent your money, goodbye.” After the permit was finally denied and Mr. Chestnut refused to return their money, the Goehrigs contacted Mr. Requejo to get their money back, again to no avail. It was not shown that the project was terminated without just cause or that it was terminated without proper notification to Ms. Goehrig. It is clear from the filed complaint, as well as the testimony that Ms. Goehrig was aware that the project could not be permitted, and sought a return of the money that had been paid. “The permit was denied and [Chestnut] refuses to refund our deposit.” The Department failed to prove that Mr. Requejo abandoned a construction project in which he was engaged or under contract as a contractor. Prior Discipline On February 13, 2013, a Final Order Adopting Settlement and Vacating Prior Orders was filed by the Board. The Order incorporated a settlement agreement imposing discipline for allegations in several earlier Administrative Complaints. The October 2012 settlement agreement required the payment of fines, investigatory costs, and restitution to six individuals, as well as continuing education and a six-year period of probation. The Order constitutes prior discipline within the meaning of the disciplinary guidelines.
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 Mr. Antonio L. Requejo in violation of section 489.129(1)(d), Florida Statutes; suspending his contractor’s license for a period of six months, followed by a period of probation deemed advisable by the Board; imposing a fine of $7,000.00; and directing that he make restitution in the amount of $3,500.00 to Carmen Goehrig. DONE AND ENTERED this 17th day of March, 2016, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 2016. COPIES FURNISHED: Sorin Ardelean, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 (eServed) Antonio L. Requejo 11826 B. Miramar Parkway Miramar, Florida 33025 Daniel Biggins, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 (eServed) William N. Spicola, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 (eServed)
Findings Of Fact The Respondent is a registered building contractor, having been issued license number RB 0010555. On December 12, 1980, Benjamin Kyler entered into a contract with Sweet E. Glover to construct a house for her at 2020 Southwest First Street, Ocala, Florida. At no time material hereto was Benjamin Kyler properly licensed to perform contracting in the State of Florida. The Respondent obtained the building permit to enable Benjamin Kyler to perform the construction contract with Sweet Glover. Benjamin Kyler received approximately $1,650, but he performed only a minimal amount of construction on the Glover residence. The Respondent knew that Benjamin Kyler was engaged in the construction of a residence for Sweet Glover, and the Respondent also knew that Benjamin Kyler was not licensed to contract in the State of Florida. The Respondent was paid a fee for pulling the building permit for Benjamin Kyler.
Recommendation From the foregoing Findings of fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Isaac Butler, be found guilty of violating Section 489.129(1)(e) and 489.129 (1)(f), Florida Statutes, and that his license be revoked. THIS RECOMMENDED ORDER entered on this 1st day of February, 1983. WILLIAM B. THOMAS, 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 1st day of February, 1983. COPIES FURNISHED: John O. Williams, Esquire 547 North Monroe Street Suite 204 Tallahassee, Florida 32301 Mr. Isaac Butler RFD 1, Box 752 Anthony, Florida 32617 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
Findings Of Fact Respondent is a certified general contractor holding license number CG C005645. His last known address was Raemel Construction & Engineering, Inc., 950 County Club Boulevard, Cape Coral, Florida 33904 (Prehearing Stipulation). I. Although respondent has engaged in contracting under the name of Raemel Construction & Engineering, Inc., since May 27, 1980, he did not qualify this company with the Construction Industry Licensing Board until December 4, 1980. (Prehearing Stipulation; Testimony of respondent.) This was not, however, an intentional violation of the Construction Industry Licensing Law. It wasn't until December, 1980--after consulting with his new attorney--that respondent discovered that his former attorney had not filed the necessary papers to qualify his newly renamed company with the Construction Industry Licensing Board. Upon discovering this omission, he promptly qualified the company with the Board. (Testimony of respondent.) II. In May, 1980, respondent entered an agreement with Bozidar and Rene Devic to build a commercial building to be known as Atrium Plaza on Lots 1-8, Block 359, Cape Coral, Florida. The construction price was $145,000. (R-1.) Thereafter, respondent, together with his on-site building superintendent, carried out the duties of a general contractor. He supervised the construction of the building, helped obtain the construction loan, received the construction loan proceeds, and, in turn, paid the subcontractors. He, together with Mr. Devic, selected the masonry, plumbing, roofing and electrical subcontractors. He pulled the building permit, checked with his on-site building superintendent daily, and inspected the project at least twice a week. He arranged for all building inspections. Indeed, there is no evidence that the respondent acted other than as a competent and responsible general contractor. (Testimony of respondent, Wunder, Cosser.) Herbert J. Werner, Director of the Building and Zoning Department of the City of Cape Coral, submitted a sworn statement on respondent's behalf, a statement which is singular in its praise of respondent's performance as a contractor: It has been my extreme pleasure to have known and dealt with Charles A. Wunder, Sr., during most of the above mentioned [6] years. He has always conducted himself in a most professional manner and I cannot recall a single complaint against him in all that time. Were I to have my choice of people to conduct business with, out of the 2200 contractors within our city, my first choice would be Mr. Charles A. Wunder, Sr. (R-4.)
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent receive a reprimand for violating Sections 489.129(1)(j) and 489.119(2), Florida Statutes (1981). DONE and RECOMMENDED this 21st day of March, 1983, in Tallahassee, Leon County, Florida. R. L. CALEEN, JR. 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 21st day of March, 1983.
