The Issue Whether Petitioners' claim for monies from the Florida Homeowners' Construction Recovery Fund is subject to adjudication pursuant to Section 120.57(1), Florida Statutes, and, if so, how much should Petitioners be awarded.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: On or about October 1, 1997, Petitioners entered into a contract in which they agreed to pay Respondent Norman Levinsky's company, Broward Roofing, Inc., $3,700.00 to place a "new shingle roof" on Petitioners' residence and perform other related roofing work. The contract provided Petitioners with a ten-year "labor warranty" and a 30-year shingle warranty. After the contracted work was completed and Petitioners paid Broward Roofing, Inc., the $3,700.00 called for by the contract, the newly-installed roof started leaking. Broward Roofing, Inc., refused to make the necessary repairs. Petitioners paid other contractors to perform the repair work. On November 17, 1998, Petitioner filed an application seeking to recover from the Florida Construction Industries Recovery Fund (which has since been renamed the Florida Homeowners' Construction Recovery Fund) $1,025.00 that they had paid for repairs to the "new shingle roof" Broward Roofing, Inc., had recently installed, contending that they were deserving of such an award inasmuch as "[t]he roofer [Broward Roofing, Inc.] [had] refused to fix [their] new roof that was leaking and [had] totally ignored [their] 10 year warranty." Their application was filed on a Board-produced Construction Industries Recovery Fund Claim Form (Form), at the end of which was printed the following: In addition to your complete written statement, we are requesting documentation of your contractual relationship with the contractor and evidence supporting your claim. Certified copies of the following list of documents are required to assist us in determining your eligibility for recovery. I have attached the following: (these documents are required for proper processing of your claim. Failure to provide required documentation will delay processing and could result in your claim being denied due to incompleteness.) Court certified copy of the Civil Judgment, and/or Final Order of the Construction Industry Licensing Board directing restitution be paid. Copy of contract between you and the contractor. Copies of applicable bonds, sureties, guarantees, warranties, letters of credit and/or policies of insurance. Court certified copies of levy and execution documents. Proof of all efforts/inability to collect restitution judgment. No claims will be processed until 45 days after the date of entry of the Civil Judgment and/or Final Restitution Order. On the completed Form that Petitioners filed, only the spaces next to "Copy of contract between you and the contractor" and "Copies of applicable bonds, sureties, guarantees, warranties, letters of credit and/or policies of insurance" were checked. On May 4, 1999, the Broward County Central Examining Board of Construction Trades filed an Administrative Complaint against "Norman Levinsky d/b/a Broward Roofing, Inc.," which read as follows: Count I At all times material hereto RESPONDENT was a roofing contractor holding Broward County Certificate of Competency #95-7726-R- R. On or about September 16, 1997, RESPONDENT entered into a contract to re- roof Complainant's home located at 10551 N.W. 21st Court, Sunrise, Florida. RESPONDENT obtained a building permit. The work was completed on March 10, 1998 and the roof began to leak on June 1, 1998. RESPONDENT failed to properly supervise to ensure that the tie in with flat roof was properly completed. His failure to ensure such a proper tie in resulted in leaks. Wherefore, it is charged that the RESPONDENT violated Subsection 9-14(b)(11) of the Broward County Code of Ordinances by failing to properly supervise a project commenced pursuant to a building permit. Count II Paragraphs 1 and 2 are included as if restated herein. Complainant paid RESPONDENT the total contract price of $3,700.00. RESPONDENT completed the work. RESPONDENT gave Complainant a 10 year labor warranty. RESPONDENT failed and refused to honor his warranty. Complainant had to pay additional amount of $1,025.00 for a new contractor to repair the work of RESPONDENT. Wherefore, it is charged that the RESPONDENT violated Subsection 9-14(b)(5)c of the Broward County Code of Ordinances by committing mismanagement which causes financial harm to a customer because the customer had to pay more for the contracted job than the original contract price. Count III Above paragraphs are included as if restated herein. RESPONDENT failed to honor the warranty and complete the project in a workmanlike manner for a period in excess of 90 consecutive days. Wherefore, it is charged that the RESPONDENT violated Subsection 9-14(b)(8) of the Broward County Code of Ordinances by abandoning a construction project in which RESPONDENT was under contract as a contractor. It is determined that the above stated charges are grounds for disciplinary action pursuant to Chapter 9, Sections 9-14, 9-28 and 9-46, Broward County Code of Ordinances and Section 6.11, Broward County Charter. Broward County has the authority to certify and discipline local contractors pursuant to Section 489.131, Florida Statutes. Following a hearing on the Administrative Complaint held May 25, 1999, the Broward County Central Examining Board of Building Construction Trades, on June 16, 1999, issued an Order, which read as follows: A Disciplinary Proceeding was held on May 25, 1999, before the Broward County Central Examining Board of Building Construction Trades (the "Board"), in accordance with Section 9-14, Broward County Code of Ordinances (the "Code"). Service of the Administrative Complaint filed against the Respondent was made by certified mail. The Respondent being duly advised was not present at the hearing. The Board heard the sworn testimony of William Grubb and Marlene Grubb. Upon consideration, it is ORDERED: The allegations of fact as set forth in the Administrative Complaint are found to be true and adopted and incorporated herein by reference as findings of fact. The conclusions of law alleged and set forth in the Administrative Complaint are approved and adopted and incorporated herein. Upon these findings, it is therefore ORDERED: That Respondent's Certificate of Competency is hereby revoked. That the Respondent make restitution to the Complainants in the amount of $3,700.00. Prior to the RESPONDENT being allowed to reinstate his certificate of competency or being allowed to sit for any exam administered by a Broward County Central Examining Board, or receiving any license from a Broward County Central Examining Board, RESPONDENT must appear before the Board and prove that the restitution amount has been paid in full. The board's order may be appealed by Petition for Writ of Certiorari to the Seventeenth Judicial Circuit within thirty (30) days of the date of rendition of the order of the board as provided by the Florida Rules of Appellate Procedure. FURTHER, the Broward County Central Examining Board of Construction Trades makes RECOMMENDATION to the Florida Construction Industry Licensing Board to impose on the state registration, the following penalty: 1. Revoke state registration and require the RESPONDENT to make restitution to the Complainants in the amount of $3,700.00. In accordance with Florida Statutes, Chapter 489.131(7)(c) and (d), the disciplined contractor, the complainant, or the Department of Business and Professional Regulation may challenge the local jurisdiction enforcement body's recommended penalty for Board action to the State Construction Industry Licensing Board. A challenge shall be filed within sixty (60) days of the issuance of the recommended penalty to the State Construction Industry Licensing Board in Jacksonville, Florida. If challenged, there is a presumptive finding of probable cause and the case may proceed before the State Board without the need for a probable cause hearing. Failure of the disciplined contractor, the complainant, or the Department of Business and Professional Regulation to challenge the local jurisdiction's recommended penalty within the time period set forth in this subsection shall constitute a waiver of the right to a hearing before the State Construction Industry Licensing Board. A waiver of the right to a hearing before the State Board shall be deemed an admission of the violation, and the penalty recommended shall become a final order according to procedures developed by State Board rule without further State Board action. Pursuant to Section 120.569, Florida Statutes, the Parties are hereby notified that they may appeal the Final Order of the State Board by filing one copy of a Notice of Appeal with the Clerk of the Department of Business and Professional Regulation, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 32399-0792, and by filing the filing fee and one copy of the Notice of Appeal with the District Court of Appeal within thirty (30) days of the effective date of said Order. On or sometime after September 1, 1999, Petitioners filed an affidavit prepared by Petitioner Marlene Grubb, which read as follows: I, Marlene A. Grubb, hereby certify that I have completed a reasonable search and inquiry in accordance with the instructions provided by the Construction Industry Licensing Board and have not found property or assets to satisfy my Board Order[1] in whole or part. Legal Names The Department of State revealed that the company Broward Roofing Inc. was administratively dissolved on 9/10/98. The C[IL]B verified the contractor[']s name and license number as: Norman Levinsky d/b/a Broward Roofing Inc. RC0047656. Real Property My search included property in the names: Norman Levinsky and Broward Roofing Inc. in Broward County, Florida. Norman Levinsky had no real property and Broward Roofing Inc. is delinquent on property taxes for over two years. Boats and Motor Vehicles There were no vehicles or boats in the motor vehicle data bank registered to Norman Levinsky or Broward Roofing Inc. Aircraft The FAA in Oklahoma City, Ms. Jeannie Vannest stated that there is no registration listed for Norman Levinsky or Broward Roofing Inc. On March 25, 2004, the Board rendered a Final Order Approving Recommended Order of Disciplinary Action by Local Enforcement Body, which approved the Broward County Central Examining Board of Building Construction Trades' June 16, 1999, Order and read as follows: THIS MATTER came before the Construction Industry Licensing Board (hereinafter referred to as the "Board") pursuant to Section 489.131(7), Florida Statutes, for a determination of whether to accept the proposed recommended penalty by the Broward County Central Examining Board of Building Construction Trades (a copy of which is attached and incorporated herein by reference). Neither the Petitioner, the Respondent nor the Complainant filed a challenge to the local enforcement body's recommended penalty to the Board. Upon consideration of the local enforcement body's Administrative Complaint, the minutes from the meetings on January 21, 1999, and May 25, 1999, and the Final Order of Disciplinary Action and its proposed recommended penalty to the Board in this matter and being otherwise fully advised in the premises it is hereby ORDERED AND ADJUDGED: The proposed recommended penalty is hereby approved and adopted in its entirety and incorporated herein by reference. In accordance with the recommended penalty, Respondent's state registration (RC 0047656) is hereby REVOKED. Respondent shall pay restitution in the amount of $3,700 to William and Marlene Grubb. Respondent will adhere to and abide by all of the terms and conditions of the recommended penalty. Failure to abide by the terms of this Order may result in further action by the Board. This Order shall be placed in and become a part of Respondent's official records. A change in the Respondent's licensure status, including the suspension, revocation, voluntary relinquishment, or delinquency of license, does not relieve the Respondent of his obligation to pay any fines, costs, interest or restitution imposed in this and previous orders. Pursuant to Section 120.68, Florida Statutes, the Parties are hereby notified that they may appeal this Final Order by filing a Notice of Appeal with the Clerk of the Department of Business and Professional Regulation, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 32399- 0792, and by filing the filing fee and one copy of the Notice of Appeal with the District Court of Appeal within thirty (30) days of the effective date of this Order. This Order shall become effective upon filing with the Clerk of Department of Business and Professional Regulation. This was the "Final Order of the Construction Industry Licensing Board directing restitution be paid," that, according to the Form Petitioners used to submit their claim for monies from the Florida Construction Industries Recovery Fund, was "required for proper processing of [their] claim." On June 10, 2004, more than five and a half years after Petitioners had filed their claim application, the Board met to determine the merits of their claim pursuant to Section 120.57(2), Florida Statutes. Although given due notice of the Board meeting, neither Petitioners, nor Mr. Levinsky, made an appearance, either in person or through a representative, at the meeting. "[U]pon consideration of the documentation and testimony submitted," the Board determined that Petitioners' claim for $1,025.00 should be "approved." On July 29, 2004, the Board rendered (that is, filed with the agency clerk) a written order to this effect, which read as follows: THIS MATTER came before the Construction Industries Recovery Fund Committee and Construction Industry Licensing Board (the "Board") pursuant to sections 120.57(2) and 489.143, Florida Statutes (2003) as well as rule 61G4-21.004, Florida Administrative Code, on June 10, 2004, in Coral Gables, Florida, for consideration of a claim for restitution from the Construction Industries Recovery Fund (the "Recovery Fund"). William [a]nd Marlene Grubb ("Claimants") and Norman Levinsky ("Licensee") were duly notified of the proceedings. At the proceedings before the committee and the Board, Claimants were not present, and were not represented by counsel. Licensee was not present, and was not represented by counsel. Upon consideration of the documentation and testimony submitted, it is ORDERED: Claimants satisfied all requirements for payment from the Recovery Fund. The Recovery Fund Claim was filed on November 17, 1998. The application was timely filed. The contractor was paid $3,700.00. Claimants were awarded restitution from the Construction Industry Licensing Board on March 24, 2004, in the amount of $3,700.00, pursuant to a Final Order Approving Recommended Order of Disciplinary Action by Local Enforcement Body. The Board adopted and approved the Broward County Central Examining Board of Building Construction Trades recommendation, which found: Contractor held a current and active license at all times material to the transaction; The construction contract is dated September 18, 1997; The work was completed on March 10, 1998, and the roof began leaking June 1, 1998; Contractor failed to honor the warranty on the roof; As a result, Claimants paid an additional $1,025.00 for repair work; Contractor violated subsection 9- 14(b)(5)c of the Broward County Ordinances by committing mismanagement, which caused financial harm to a consumer because the consumer had to pay more for the contractual job than the original contract price. The contractor engaged in activity that appears [to] violate section 489.129(1)(g)2, Florida Statutes (2003). There is an asset search in the file that shows no assets are available from which claimant can satisfy the judgment. Pursuant to section 489.143, Florida Statutes (2003), the maximum amount that the Recovery Fund can pay on a single claim is $25,000.00. Thus, the claim for restitution from the Recovery Fund is APPROVED in the amount of $1,025.00. In accordance with rule 61G4-21.005, Florida Administrative Code, the Secretary of the Florida Department of Business and Professional Regulation is directed to pay the claim from the Recovery Fund after forty-five days from the date upon which the Final Order is filed with the Agency Clerk. Pursuant to section 489.143(6), Florida Statutes (2003), upon payment of the claim from the Recovery Fund, Licensee's licensure to practice contracting is AUTOMATICALLY SUSPENDED without any further administrative action. Pursuant to section 489.143(2), Florida Statutes (2003), upon receipt by Claimant under section 489.143(1), Florida Statutes (2003) of payment from the Recovery Fund, Claimant shall assign his or her additional right, title, and interest in the judgment or restitution order, to the extent of such payment, to the Board, and thereupon the Board shall be subrogated to the right, title, and interest of the Claimant; and any amount subsequently recovered on the award, judgment or restitution order by the Board, to the extent of the right, title, and interest of the Board therein, shall be for the purpose of reimbursing the Recovery Fund. This Order shall become effective upon filing with the Clerk of the Department of Business and Professional Regulation. DONE AND ORDERED this 21st day of June, 2004. Appended to the order was the following Notice of Right of Appeal: You are hereby notified that mediation is not available in this matter. Pursuant to Section 120.569, Florida Statutes, you may seek review of the above by filing a request for hearing with the Executive Director of the Board at 1940 North Monroe Street, Tallahassee, Florida 32399-2202 within twenty-one (21) days of the filing of this Order. Upon request, you will receive an informal hearing pursuant to section 120.57(2), Florida Statutes. In the alternative, you may request a formal hearing pursuant to Section 120.57(1), Florida Statutes, if there are material facts in dispute; if you request a formal hearing, the petition must contain the information required by Rule 28-106.201, Florida Administrative Code, including specification of the facts which are in dispute. If you request a hearing, you have the right to be represented by an attorney or other qualified representative to take testimony. On August 12, 2004, Petitioners filed a Request for Hearing, complaining that they "should be awarded at least $3,475.00" to be adequately compensated for all of the repairs they had to make to their roof as a result of Broward Roofing, Inc.'s failure to meet its responsibilities. On August 30, 2004, the Board referred the matter to DOAH "for the assignment of an Administrative Law Judge to conduct a formal hearing" pursuant to Section 120.57(1), Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board issue an order dismissing Petitioners' Request for Hearing challenging the Board's order, rendered July 29, 2004, disposing of their claim for monies from the Fund, but allowing them, if they so desire, to request that that order be vacated and re-rendered so that they will have the opportunity to file a timely appeal in accordance with Section 120.68, Florida Statutes. DONE AND ENTERED this 28th day of December, 2004, in Tallahassee, Leon County, Florida. S __ STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 2004.
The Issue Whether Respondent, a licensed general contractor, committed the offenses set forth in the Administrative Complaint or is responsible for the offenses set forth in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact At all times pertinent to this proceeding, Respondent was a certified general contractor and the holder of license number CG C031547 issued by the Florida Construction Industry Licensing Board. At all times pertinent to this proceeding, Respondent was the licensed qualifying agent for A.A. Home Improvement Company, Inc. (A.A.), 4101 North Andrews Avenue, Fort Lauderdale, Florida, and as such qualifying agent was responsible for all its contracting activities. On August 25, 1990, A.A. contracted with Anthony Williams, Sr., and Janice Williams, 1/ as the owners, to re-roof and perform internal renovations on the owners' house located at 2804 Avenue H, Fort Pierce, Florida, for a contract price of $6,900.00. The contract provided that all repairs and improvements would be done and completed in a substantial and workmanlike manner. The contract between the parties was an installment loan contract that provided for a mortgage on the house and property that was the subject of the contract. On August 25, 1990, Mr. and Mrs. Williams and Ethel Nelson gave A.A. a mortgage on the property to secure payment of the amount of the contract. A.A. assigned the mortgage to Union Mortgage Company, Inc. on August 29, 1990. Subsequent to the assignment of the mortgage to Union Mortgage Company, Inc., Janice Williams and Anthony Williams, Sr., consolidated certain debts through a loan from Metropolitan Mortgage Company of Fort Pierce, Florida. With the proceeds of the Metropolitan loan, Mr. and Mrs. Williams paid off the mortgage that had been given to A.A. on August 25, 1990, and assigned to Union Mortgage Company on August 29, 1990. To secure payment of the Metropolitan loan, Mr. and Mrs. Williams gave Metropolitan a mortgage on the subject property. The Williams were still paying off the Metropolitan mortgage at the time of the formal hearing. The contract between A.A. and the owners required A.A. to remove the existing roof of the subject property and to replace the roof with a twenty-year fiberglass roof, repair the ceilings of three rooms with sheetrock, seal off holes in two walls (these holes resulted after two air conditioning units were removed), install a vinyl floor in the dining room, renovate a bathroom to 90 percent completion, and make certain unspecified minor repairs. A.A. is not certified or registered as a roofing contractor. Respondent is not certified or registered as a roofing contractor. The repair of the roof on the subject property was work that should be performed only by a certified or registered roofing contractor. Workmen from A.A. were present at the job site for approximately a week. After the work was performed, including the roofing work, the owners began having problems with the work performed by A.A. Water began to leak through the walls where the air conditioning units had been. This leaking resulted because A.A. did not properly seal the holes in the wall. Instead, A.A. merely nailed pieces of plywood over the holes where the air conditioning units had been. The roof leaked and caused damage to interior panelling. A.A. did none of the work on the bathroom that had been contracted. Mr. and Mrs. Williams attempted to get A.A. to come back and finish the work or to correct defective work on two occasions. On two separate occasions, a representative of A.A. promised to return to the job site to complete the work and to correct defective work. A.A. did not return to the job site and made no further effort to complete or correct the work on the subject property. Mr. and Mrs. Williams will have to expend approximately $6,000 to repair the roof and interior of the house as a result of A.A.'s failure to perform its contractual duties. In negotiating the contract with A.A., the owners dealt with Christine McDonough, who was a corporate officer of A.A. and who had the authority to bind A.A. as a party to the contract. A building permit was required by the City of Fort Pierce Building Code for the construction contemplated by the subject contract. No permit was obtained by A.A. The Respondent did not supervise any of the work performed on the subject property by A.A.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent be ordered to pay a fine in the amount of $2,250.00 to the Florida Construction Industry Licensing Board and pay restitution to Janice Williams and Anthony Williams, Sr., in the amount of $6,000. DONE AND ENTERED this 28th day of April, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida
The Issue The Florida Construction Industry Licensing Board, Petitioner, seeks to revoke the registered contractor's license of Stephen J. Borovina, Respondent, based on allegations, which will be set forth in detail hereafter, that he engaged in conduct violative of Chapter 468, Florida Statutes. The issue presented is whether or not the Respondent aided or abetted and/or knowingly combined or conspired with Mr. Howard North, an uncertified or unregistered contractor, to evade the provisions of Chapter 468.112(2)(b), and (c), Florida Statutes, by allowing North to use his certificate of registration without having any active participation in the operations, management, or control of North's operations. Based on the testimony adduced during the hearing and the exhibits received into evidence, I make the following:
Findings Of Fact The Respondent is a certified general contractor who holds license no. CGC007016, which is current and active. On or about July 25, 1976, Mr. and Mrs. Julius Csobor entered into a contract with Mr. and Mrs. Howard North for the construction of a home in Martin County, Florida, for a total price of $35,990. Neither Mr. or Mrs. North are certified or registered contractors in the State of Florida. (Petitioner's Composite Exhibit #2). Respondent applied for and was issued a permit by the Martin County Building Department to construct a residence for the Csobors at the same address stipulated in the contract between the Csobors and the Norths, i.e., Northwest 16th Street, Palm Lake Park, Florida. (Petitioner's Composite Exhibit #1). Howard North, a licensed masonry contractor for approximately nine (9) years was contacted by the Csobors through a sales representative from a local real estate firm. It appears from the evidence that North had previously constructed a "spec" house which the local realtor had sold and thus put the Csobors in contact with Mr. North when they were shown the "spec" house built by North. Evidence reveals that North contacted Borovina who agreed to pull the permit "if he could get some work from the job and could supervise the project". Having reached an agreement on this point, North purchased the lot to build the home for the Csobors and he orally contracted with the Respondent to, among other things, pull the permit, supervise construction, layout the home and do trim and carpentry work. North paid Respondent approximately $200 to layout the home for the Csobors. By the time that North had poured the slab and erected the subfloor, the Csobors became dissatisfied with his (North's) work and demanded that he leave the project. According to North, Respondent checked the progress of construction periodically. Prior to this hearing, the Csobors had never dealt with Respondent in any manner whatsoever. According to Csobor, North held himself out as a reputable building contractor. A contractor is defined in relevant part as any person who, for compensation, undertakes to, or submits a bid to, or does himself or by others, construct, repair, etc. . . . real estate for others. . . Chapter 468.102(1), Florida Statutes. Applying this definition to the facts herein, it appears that the Respondent, at least in a literal sense, satisfied the requirements and obligations of a contractor, as defined in Chapter 468.102, Florida Statutes. Thus, he contracted with North to oversee and/or supervise the project for the Csobors which he fulfilled, according to the testimony of North. Said testimony was not refuted and thus I find that no effort was made by Respondent to evade any provision of Chapter 468, Florida Statutes. Accordingly, I shall recommend that the complaint filed herein be dismissed in its entirety.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the complaint filed herein be dismissed in its entirety. RECOMMENDED this 4th day of November, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry S. Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 Stephen J. Borovina 2347 Southeast Monroe Street Stuart, Florida 33494 J. Hoskinson, Jr. Chief Investigator Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. DIVISION OF ADMINISTRATIVE HEARINGS, DOCKET NO. 77-1442 STEPHEN J. BOROVINA, CG C007016, 2347 S. E. Monroe Street, Stuart, Florida 33494, Respondent. / This cause came before the FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD at its regular meeting on February 10, 1978. Respondent was sent the Hearing Officer's findings and recommendations and was given at least 10 days to submit written exceptions to the recommended order. Respondent was notified of the meeting so that respondent or counsel might appear before the Board. Respondent did not appear The FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD on February 10, 1978, after reviewing a complete transcript of the Administrative Hearing, by motion duly made and seconded voted to revoke the certified general contractor's license of STEPHEN J. BOROVINA. It is therefore, ORDERED that the certification of respondent STEPHEN J. BOROVINA, Number CG C007016, be and is hereby revoked. Respondent is hereby notified that he has 30 days after the date of this final order to appeal pursuant to Chapter 120, Florida Statutes, and the Florida Appellate Rules. DATED this 13th day of February, 1978. FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD BY: JOHN HENRY JONES, President ================================================================= SECOND AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD STEPHEN J. BOROVINA, CG C007016, Respondent/Appellant, vs. DIVISION OF ADMINISTRATIVE HEARINGS, DOCKET NO. 77-1442 FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner/Appellee. / This cause came before the Florida Construction Industry Licensing Board at its regular meeting on August 3, 1979. The respondent was sent the Hearing Officer's findings and recommendations and was given at least 10 days to submit written exceptions to the recommended order. Respondent was notified of the meeting so that respondent or counsel might appear before the Board. Respondent did appear. The Florida Construction Industry Licensing Board, on August 3, 1979, after reviewing a complete transcript of the Administrative Hearing, by motion duly made and seconded, voted to revoke the certified general contractor's license of Stephen J. Borovina, No. CG C007016. On February 13, 1978, the certification of respondent, Stephen J. Borovina, No. CG C007016, was revoked by order of the Florida Construction Industry Licensing Board. On April 25, 1979, the District Court of Appeal of the State of Florida, Fourth District, in Case Number: 78-527, reversed the final order of the Florida Construction Industry Licensing Board. That Court remanded the above captioned case to the Board to further consider the matter and enter such order as it may be advised in conformity with Section 120.57(1)(b)(9), Florida Statutes (1977). In accordance with the decision of the Florida District Court of Appeal, Fourth District, the Board has reconsidered the above captioned matter and finds as follows: The Board rejects the recommended order as the agency's final order. The Board adopts the first paragraph of the hearing officer's finding of fact. The Board, however, rejects the findings of fact found in the second paragraph of the hearing officer's findings. The second paragraph states as follows: A contractor is defined in relevent(sic) part as any person who, for compensation, undertakes to, or submits a bid to, or does himself or by others, construct, repair, etc. real estate for others...Chapter 468.102(1), Florida Statutes. Applying this definition to the facts herein, it appears that the Respondent, at least in a literal sense, satisfied the requirements and obligations of a contractor, as defined in Chapter 468.102, Florida Statutes. Thus, he contracted with North to oversee and/or supervise the project for the Csobors which he fulfilled, according to the testimony of North. Said testimony was not refuted and thus I find that no effort was made by Respondent to evade any provision of Chapter 468, Florida Statutes. Accordingly, I shall recommend that the complaint filed herein be dismissed in its entirety. The findings of fact found in the above-quoted paragraph were not based upon competent substantial evidence. The competent substantial evidence supports a finding that the respondent, Stephen J. Borovina, did not supervise the project and that Borovina evaded the provisions of Chapter 468, Florida Statutes. The following evidence supports the Board's position: There was no written agreement entered into between Howard North and the respondent which indicated that the respondent was to supervise the construction of the Csobors' house (T- 14); It was conceded at the hearing that the only subcontractors or draftmen who worked on the Csobors' house were contracted solely by Howard North and they had no contract whatsoever with the respondent (T-19, 25); The respondent never advised or informed Mr. and Mrs. Csobor that he was the contractor on the job. (T-51); At all times during the act of construction of the house, Mr. and Mrs. Csobor were under the impression that Howard North was the contractor (T-44-51). It is, therefore, ORDERED: That the certification of respondent, Stephen J. Borovina, Number CG 0007016, be and is hereby revoked. Respondent is hereby notified that he has thirty (30) days after the date of the Final Order to appeal pursuant to Chapter 120, Florida Statutes, and the Florida Appellate Rules. Dated this 3rd day of August, 1979. FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD BY: JOHN HENRY JONES, President
Findings Of Fact Robert Queen, Respondent, was during all times material herein a registered general contractor and is the holder of license no. RG0011043. On May 5, 1975, Mr. and Mrs. Paul B. Stuewe, of Delray Beach, Florida, a 100 percent disabled veteran-service connected, entered into a contract with Robert Queen then d/b/a Queen Construction Company for construction of a home. The home was to be completed within 45 days. Construction commenced as scheduled, however within 60 days following commencement of construction, the Stuewes became concerned about the progress of construction and notified the Respondent of their concern. During this period, the Stuewes had received liens and notices of intent to file liens from various suppliers and materialmen. To finance the project, the Stuewes obtained a $55,000.00 construction loan commitment from First Federal Savings and Loan Association. As of August, 1975, approximately $41,000.00 of the available $55,000.00 construction loan commitment had been withdrawn by the Respondent. The remaining balance of approximately $14,175.00 was frozen by the lender based on its receipt of liens or notices of intent to file liens in the amount of $23,243.84 from various suppliers and mechanics. Based on the monies available in the construction loan, it is apparent that when all liens are satisfied, a deficit of approximately $9,000.00 will be created. The Stuewes took possession of their home on December 9, 1975, at which point the construction had not been completed as per the plans. When they took possession, Respondent advised that he had monies due from other projects and that upon receipt thereof, the construction for the Stuewe residence would be completed. Mr. Stuewe testified that when he took possession, the home was not carpeted nor did the Respondent install special railings in hallways and baths that were required by the contract and which the Stuewes requested based on his disability. Maynard Hamlin, the construction loan supervisor for First Federal Savings and Loan Association, testified and was in all respects corroborative of the testimony given by Mr. Stuewe. Edward Flynn, Director of the Construction Industry Licensing Board for Palm Beach County testified that he Investigated various complaints that he had received against Respondent during late 1975 and early 1976. During that board's public meeting of February, 1976, the board considered Mr. Flynn's investigation of various complaints received by Respondent. Respondent was noticed but failed to appear at the hearing. The board did however receive a letter from the Respondent's attorney advising that he felt that his presence was unnecessary at the February meeting inasmuch as he was no longer the qualifying agent for Queen Construction Company, a Florida corporation. Minutes of the board's February meeting revealed that there were outstanding liens on two homes under construction by Respondent in excess of approximately $33,000.00. At that meeting, the board suspended Respondent's certificate of competency for an indefinite period of time. Terry Verner, an investigator for the Florida Construction Industry Licensing Board, investigated the instant complaint filed against the Respondent. Mr. Verner was shown an application for the building permit obtained by Respondent for the Stuewe residence and noted that the permit was obtained by Respondent who qualified Johnson Builders as the qualifying contractor. Investigation of Petitioner's files reveals that Respondent qualified Johnson Builders as the qualifying entity under which he would pull all construction contracts but failed to register the Queen Construction Company, Inc. as required by the Board's rules and regulations. (See Petitioner's Exhibit #4). Based on the foregoing findings of fact, I hereby make the following: CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. The authority of the Petitioner is derived from Chapter 468, Florida Statutes. The action of the Respondent in abandoning a construction project for which he contracted leaving a lien balance in excess of $9,000.00 which monies were received by him for completion of a specified construction project and his failure to fulfill the terms of his obligations pursuant to the contract he entered with the Stuewes amount to conduct violative of Chapter 468.112(2)(e), Florida Statutes. Evidence adduced at the hearing established that the Respondent had been disciplined by the County's construction industry licensing board which action is reviewable pursuant to Chapter 468.112 (2)(f), Florida Statutes. Based on the foregoing findings of fact and conclusions of law, I hereby issue the following:
The Issue Whether Respondent, a certified general contractor, is guilty of pulling permits for construction projects not supervised by Respondent, and, if so, the appropriate disciplinary action which should be taken by the Board.
Findings Of Fact At all times material hereto, Respondent was the holder of Certified General Contractor's License No. CG C005204 issued by the Board. Although this license was active at the time the Administrative Complaint was filed, Respondent has placed it on an inactive status until June 30, 1981. (Stipulation, Testimony of Respondent) As to Amiguet Construction Project During 1976, Jose Amiguet entered into a contract with San Pedro Construction Inc. for the construction of an addition to his existing residence located at 1409 Granada Boulevard, Coral Gables, Florida. (Stipulation, Petitioner's Exhibit 1) Since San Pedro Construction Inc. was not properly licensed as a building contractor, it was not qualified to apply for and obtain a Coral Gables building permit to undertake this residential addition. Therefore, on January 12, 1977, pursuant to an agreement with Jose San Pedro, representative of San Pedro Construction Inc., the Respondent applied and obtained the required Coral Gables building permit under his on name. (Stipulation, Testimony of Respondent, Charles Kozak, Petitioner's Exhibit 1) The Respondent did not participate in, manage, or supervise, in any manner, the construction of the Amiguet residential addition by San Pedro Construction Inc. Jose Amiguet neither knew the Respondent, nor had any dealings with him during the construction work. (Stipulation, Testimony of Respondent) Final inspection of the Amiguet construction project has not been conducted by the Coral Gables building inspection department since the required documentation concerning sidewalk improvements and subcontractors used has not yet been submitted. The actual construction work has, however, been completed, to the satisfaction of Jose Amiguet. (Testimony of Charles Kozak, Respondent) Respondent made an effort to assist Jose Amiguet in obtaining the final inspection and clearance by the city building inspection department. However, since Respondent did not supervise the subcontractors' work, he cannot truthfully complete the required documents. He has, therefore, offered to (1) pay for the additional costs associated with obtaining the necessary final inspection, and (2) transfer to Jose Amiguet the right to receive, after final inspection, the refund of the contractor's performance bond in the amount of approximately $400-$500. (Testimony of Respondent) As to the Shaw Construction Project During July, 1977, and on February 8, 1978, James L. Shaw entered into separate contracts with San Pedro Construction Inc. for the construction of residential improvements at 836 Obispo Avenue, Coral Gables, Florida. The final contract was in the amount of $16,700.00. (Stipulation, Testimony of Respondent, James L. Shaw, Petitioner's Exhibit 4) Since San Pedro Construction Inc. was an unlicensed contractor, Respondent, on November 15, 1977, pursuant to an agreement with that company, applied for and obtained the required Coral Gables building permit. (Stipulation, Testimony of Respondent, James L. Shaw, Petitioner's Exhibit 4) The Respondent did not participate in, manage, or supervise in any manner the construction of the Shaw residential improvements by San Pedro Construction Inc. James Shaw neither knew Respondent, nor had any dealings with him during the construction work. (Stipulation, Testimony of Respondent) On or about April, 1978, the lending institution for the Shaw project, and James Shaw stopped making construction payments to San Pedro Construction Inc., due to its failure to proceed on and abandonment of the project. (Testimony of James Shaw, Charles Kozak) On June 20, 1978, James Shaw obtained an "owner-builder" permit from the City of Coral Gables and incurred the following costs in order to complete the construction project as originally planned: $12,000 for labor and materials, and $625.00 for architectural services. Inasmuch as approximately, $10,128.00 had earlier been paid to San Pedro Construction Inc. for the construction project, the total cost of the project to James Shaw was approximately $22,753.00-$6,053.00 in excess of the original contract price. (Testimony of James Shaw and Respondent) San Pedro Construction Inc. is no longer in business, and the whereabouts of its owner, Jose San Pedro, is unknown. (Testimony of Respondent) As with the Amiguet construction project, final inspection of the Shaw project cannot be conducted until missing documentation relative to sidewalk improvements and subcontractors involved is supplied. In an effort to assist James Shaw, the Respondent has offered to transfer to Shaw the right to receive, after final inspection, the refund of the contractor's performance bond in the amount of approximately $400-$500. (Testimony of Charles Kozak and Respondent) At all times material hereto, the Respondent was aware that it was unlawful, under both state law and the Code of Metropolitan Dade County, to aide an unlicensed contractor in evading the contractor licensing law, and to use one's license to pull permits for projects not supervised by the licensee. (Stipulation, Testimony of Respondent, Petitioner's Exhibit 1) The Metro Dade Construction Trades Board heard the complaint against the Respondent and found prima facie evidence and probable cause to refer the matter to the Florida Construction Industry Licensing Board (Stipulation) Notwithstanding the evidence presented, the Administrative Complaint and the Board's counsel at hearing limited the amount sought for restitution purposes to $5,300.00, provided both the performance bonds are refunded to the benefit of Jose Amiguet and James Shaw. (Administrative Complaint, statement of Board's Counsel) Respondent regrets having taken the actions complained of in the Board's Administrative Complaint, and now more fully understands the resulting burdens which have been placed on Jose Amiguet and James Shaw. (Testimony of Respondent)
Recommendation Guilty, as charged. Respondent's certified general contractor's license should be suspended until such time as full restitution is made to the persons damaged by his actions.
The Issue The issues in this proceeding are whether the Respondent has violated provisions of the Florida Construction Industry Licensing Law, and, if so, what disciplinary action should be taken. The administrative complaint specifically charges Respondent with aiding an unlicensed person to evade provisions of the contracting licensing law, conspiring with an unlicensed person to allow his license to be used to evade provisions of the law, acting as a contractor under a name other than as appears on his registration, and failing to properly qualify a company under which he was doing business. Respondent denies the allegations.
Findings Of Fact At all times material to this proceeding, the Respondent has been duly licensed by the Petitioner as a building contractor. On March 23, 1980, Nettie Wilkes entered into a contract with Rado Construction, Inc. The contract was for Rado to enclose a carport at Wilkes' residence and to do other work incident to that renovation. The contract provided that work would commence on April 10, 1980, and be completed approximately 21 to 30 days from the start. The total contract price was $5,700, and Mrs. Wilkes gave Rado a $1,500 down payment. Donald W. Gray negotiated the contract on behalf of Rado with Wilkes. Gray appears to be the principal party in Rado Construction. Gray contacted James Neilan and Jerry Polk about performing the work on the Wilkes project. Gray did not show Polk a copy of the contract with Wilkes, and he led Polk to believe that considerably less work would need to be performed than was required under the contract. Although Polk had a local occupational license as a carpenter, he was not a licensed contractor, and was not able to obtain a building permit for the work. Neilan and Gray were also unlicensed and unable to obtain a permit. Polk assumed that he would be working for Gray in a subcontracting capacity. Polk had performed considerable carpentry work on a subcontracting basis for the Respondent. Polk felt that the Respondent might help him obtain a permit. Polk approached the Respondent about the Wilkes' project. He told the Respondent the scope of the project as it bad been related to Polk by Gray. He did not advise the Respondent of the involvement of Gray or of Rado Construction. Polk initially asked the Respondent if the Respondent would be able to do the job and the Respondent indicated that he could not. Polk and the Respondent discussed the job on a casual basis and the discussion ended. Several days later, Polk returned to the Respondent's office and asked the Respondent if the Respondent could obtain the building permit and allow Polk to perform the work on a subcontractor basis. Respondent drew up some plans about the project. He agreed to Polk's proposal. The Respondent filed an application with the building inspection department of the City of Orlando for a building permit on April 15, 1980. A permit was issued by the city on that same date. Respondent had estimated the cost of the project, based upon his discussion with Polk, as being approximately $2,000. The Respondent delivered the permit to Polk and advised Polk that he would be inspecting the project periodically. Polk posted the permit at the Wilkes' property and worked together with James Neilan on the project. The work did not commence as scheduled in the contract between Rado Construction and Mrs. Wilkes, but it did commence sometime after April 15, 1980. As the project went on, Gray would from time to time visit the site and advise Polk and Neilan of additional work that would need to be performed that Polk had not known about earlier. Polk did not know that considerable masonry work would be required. He was not qualified to do masonry work, but he attempted to perform it. As the work went on, Polk became more and more dissatisfied, and ultimately concluded that what had been described to him as a one and one-half week job for two people was in reality a two-week job for ten men. Polk ultimately removed the permit from the premises and abandoned his work there. Approximately four days after he obtained the building permit for Polk, the Respondent visited the job site. He observed that no work had commenced and he contacted Polk. Polk erroneously advised the Respondent at that time that the project had been abandoned and that the permit would not be utilized. Respondent heard nothing more about the project for approximately four weeks. Mrs. Wilkes eventually became dissatisfied with the nature of the services that were being performed on her property. When Polk abandoned further work, she contacted the building permit officials and was advised that the Respondent, not Rado Construction, had obtained the permit. She contacted the Respondent and advised him of what had occurred. The Respondent promptly visited Mrs. Wilkes at her home. He was surprised and appalled to find that very poor work had been performed in a very sloppy manner. He discussed the matter at length with Mrs. Wilkes and learned for the first time of Gray's involvement in the project. He advised Mrs. Wilkes that he would not be able to do the job, but he gave her a check for $600 which she told him would be sufficient to complete the project. Respondent also provided laborers to perform cleanup work at the site, and hired a subcontractor to pour a driveway. Respondent expended approximately $1,000 to complete the project for Mrs. Wilkes. The Respondent located Gray, and in an unpleasant confrontation, obtained a promissory note from Gray for $1,000 to compensate the Respondent for his expenditures. The Respondent ultimately accompanied Mrs. Wilkes to a first meeting of creditors at Gray's bankruptcy proceedings. The Respondent has not previously or subsequently engaged in business in the manner that he did in this transaction. He is a reputable contractor and is contrite about the role that he played in the transaction.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend that no action be taken against the licenses of K. C. Moore as a registered builder contractor. In addition, the testimony at the hearing revealed that subsequent to the institution of this complaint that Dr. 0. Rao, M.D., did make application to the Florida Construction Industry Licensing Board for licensure as a contractor, that his application was approved, and that upon successful completion of the Board's examination he was licensed. If K. C. Moore is in fact guilty of aiding or abetting or knowingly combining or conspiring with a person to violate Part II, Chapter 468, the person with whom he combined or conspired or who he aided or abetted was Dr. John 0. Rao. Although the Board may be limited under the statutory provisions in denying Dr. Rao the license, assuming the Board rejects the Hearing Officer's Conclusions of Law and finds the facts constitute a violation of the statutory provisions, there is an absence of essential fairness to proceed against the licenses of K. C. Moore while licensing the individual with whom he contracted. The disparity in treatment of K. C. Moore and Dr. John 0. Rao is a factor which must be considered by the Board. DONE and ORDERED this 20th day of July, 1977, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 R. Stephen Miles, Jr., Esquire Mile and Cumbie Post Office Box 517 Kissimmee, Florida 32741 Mr. J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner,
Findings Of Fact Harry L. Wilson is the holder of a registered roofing contractor's license from the Florida Construction Industry Licensing Board. The license, Number RC 0041328, was first issued in March of 1982. The license was issued in the name of Harry L. Wilson Roofing, 1943 Hardy Street, Jacksonville, Florida, with the Respondent as qualifier. The Respondent has been the qualifier of Harry L. Wilson Roofing at all times relevant to this proceeding. On December 6, 1984, the Respondent and Robbie L. Hicks, entered into a written contract (Petitioner'S Exhibit 2). Pursuant to this written contract (hereinafter referred to as the "Contract"), the Respondent agreed to perform the repair work specified in the Contract in a "professional manner" and Ms. Hicks agreed to pay the Respondent $2,395.00. The property to be repaired is rental property owned by Ms. Hicks. The property is located at 1508 Eaverson Street, Jacksonville, Florida. The Respondent commenced work sometime during the early part of 1983. Shortly after commencing work, however, the Respondent and Ms. Hicks began having disagreements as to the work to be performed and the quality of the Respondent's work. These disagreements continued after the Respondent completed the work in November of 1983. Ms. Hicks testified that the work that the Respondent completed was done in an unprofessional manner and that the Respondent had not completed all of the work that he had agreed to perform. In particular, Ms. Hicks testified that the Respondent had failed to paint the interior of the house beige as required by the Contract, had failed to remove saw dust and other debris from the house following completion of the work, had failed to finish cabinets installed in the house, had failed to repair screens and generally had not performed in the manner he had agreed to perform. Ms. Hicks paid the Respondent all but $410.00 of the contract price. The Respondent testified that all off the work called for pursuant to the Contract had been performed. According to the Respondent, he had performed some work not required by the Contract and had not performed other work requested by Ms. Hicks because the work was beyond the scope of the Contract. The Respondent also stated that the work which Ms. Hicks expected would have cost considerably more than the price agreed upon in the Contract. The Respondent did not perform all of the work specified in the Contract in a "professional manner" as required by the Contract. Based upon the testimony of Mr. Claude Bagwell, Deputy Chief, Building and Zoning, Inspection Division of the City of Jacksonville, it is clear that no permit was issued by the City of Jacksonville to perform the work required by the Contract. The only permits issued with regard to Ms. Hicks' rental property was a permit issued in 1961 and the original building permit issued in 1949. Additionally, due to the fact that no Florida registered roofing contractor's license in the name of "Harry L. Wilson Roofing" had been filed with the City of Jacksonville, no permit could be issued to Harry L. Wilson Roofing with regard to the Contract. The Respondent admitted that he had not obtained a permit to perform the work required by the Contract. The Respondent indicated that he had not obtained a permit because he was not aware that one was required in order to perform the work. He did indicate that he had obtained permits to perform other jobs. The Respondent could not, however, have obtained permits for other jobs because no license issued in the name of Harry L. Wilson Roofing had been filed with the City of Jacksonville. The Respondent did take the examination required in order to obtain a registered roofing contractor's license. The Petitioner suggested in its Proposed Findings that the "permit requirement was explained" when the Respondent took the exam. No evidence to support such a finding was presented at the hearing. The Respondent in entering into the Contract clearly used the name "Wilson Recycling". Nowhere on the Contract is the name "Harry L. Wilson Roofing" used. The Respondent ultimately admitted that no Florida license authorizing the use of the name "Wilson Recycling" had been obtained by him. The Respondent, however, when initially asked whether a Florida license in the name of "Wilson Recycling" had been obtained indicated that such a license had been issued. On further examination, however, the Respondent testified that an occupational license in the name of "Wilson Recycling' had been obtained by him and not a Florida license. The work to be performed pursuant to the Contract was beyond the scope off the Respondent's license. As pointed out by Mr. Bagwell the work to be performed pursuant to the Contract would require licensure as a registered residential contractor or more.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That count I of the Administrative Complaint filed against the Respondent be dismissed. It is further RECOMMENDED: That Respondent be found guilty of violating Section 489.129 (1)(g), Florida Statutes (1983), by contracting in a name other than the name as set forth on the Respondent's license. It is further RECOMMENDED: That Respondent be found guilty of violating Section 489.129(1)(j), Florida Statutes (1983), by failing in a material respect to comply with the provisions of Section 489.119(2) and(3), Florida Statutes (1983), in that the Respondent failed to qualify the business name "Wilson Recycling" with the Construction Industry Licensing Board. It is further RECOMMENDED: That Respondent be found guilty of violating Section 489.129(1)(j), Florida Statutes (1983), when he failed in a material respect to comply with the provisions of Section 489.117(2), Florida Statutes (1983), by contracting to perform and actually performing work beyond the scope of his Florida contracting license. It is further RECOMMENDED: That Petitioner suspend Respondent's roofing contractor's license for a period of three (3) months. DONE and ENTERED this17th day of December, 1984, in Tallahassee, Florida. LARRY J. SARTIN 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 17th day of December, 1984. COPIES FURNISHED: H. Reynolds Sampson, Esquire Staff Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harry L. Wilson 1943 Hardee Street Jacksonville, Florida 32209 Mr. Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue This is a license discipline proceeding in which the Petitioner seeks to have disciplinary action taken against the Respondent on the basis of alleged violations of various specified provisions of Section 489.129(1), Florida Statutes. The allegations are set forth in a seven count Administrative Complaint.
Findings Of Fact At all times pertinent to this proceeding, Respondent was a Certified General Contractor, having been issued license number CG C046419, by the Florida Construction Industry Licensing Board. At all times pertinent to this proceeding, Respondent was licensed in an individual capacity and thereby responsible for all his contracting activities. On June 6, 1993, Respondent, doing business as Universal General Contractors, entered into a construction contract with the Fagnanis for the remodeling of a bathroom in their residence located at 3440 Northeast 170th Street, North Miami Beach, Florida 33160. The contracted price was three thousand eight hundred dollars ($3,800,00). The Fagnanis paid at least two thousand seven hundred dollars ($2,700.00) to the Respondent as payment toward the contracted work. The written contract between the Respondent and the Fagnanis did not include the Respondent's contractor's license number. That written contract had printed on it the business name "Universal General Contractors." When they entered into the contract, the Fagnanis thought they were doing business with a company named "Universal General Contractors." At no time material hereto was Respondent registered with the Construction Industry Licensing Board as the licensed qualifier for Universal General Contractors. Construction commenced on or about August 20, 1993. Respondent failed to obtain a building permit or inspections for the Fagnani project. Shortly after commencing the project, Respondent informed the Fagnanis he had to go to Boca Raton for an estimate, but would return to finish the project. Respondent failed to return to finish the Fagnani project. Respondent abandoned the Fagnani's project without just cause or notification to the Fagnanis. Respondent did not respond to any attempts by the Fagnanis to contact him concerning the completion of their project. At the time Respondent abandoned the project the work was not complete. At the time of abandonment, the percentage of work completed was substantially less than the percentage of the contract price paid by the Fagnanis. On December 28, 1993, as a result of Respondent's failure to complete the project, the Fagnanis filed a civil suit against Respondent in Case Number 93-16225 SP23(03), County Court in and for Dade County, Civil Division. On January 11, 1994, Respondent was properly served with notice of the civil suit. On January 27, 1994, a Default Final Judgment was entered against Respondent in favor of the Fagnanis. The Default Final Judgment entered against Respondent in the case was in the principal amount of two thousand five hundred dollars ($2,500.00) and costs of one hundred nine dollars ($109.00) for a total amount of two thousand six hundred nine dollars ($2,609.00), and bore interest at the rate of 12 percent per year. The Default Final Judgment is related to Respondent's practice of contracting. To date, Respondent has failed to satisfy the terms of the Default Final Judgment. Respondent failed to satisfy the terms of the Default Final Judgment within a reasonable time. Respondent's incompetence and misconduct in overseeing the contracting and financial activities of his construction practice has resulted in a two thousand six hundred nine dollar ($2,609.,00) loss to the Fagnanis. The Respondent has been the subject of prior disciplinary action by the Construction Industry Licensing Board. In two prior cases (DBPR Case Nos. 93-12155 and 94-04871) the Board has issued final orders finding the Respondent guilty of several provisions of the statutes regulating contractors. Several of the prior violations are of the same type as the violations at issue in this case.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case to the following effect: Adopting the foregoing findings of fact and conclusions of law and concluding that the Respondent is guilty of the violations alleged in all seven counts of the Administrative Complaint; Revoking the Respondent's license; Ordering the Respondent to pay administrative fines in the total amount of twenty-five thousand dollars ($25,000.00); Ordering the Respondent to pay restitution to Mr. and Mrs. Fagnani in the amount of two thousand six hundred nine dollars ($2,609.00); and Ordering the Respondent to pay the costs incurred in the investigation and prosecution of this proceeding in an amount to be determined by the Construction Industry Licensing Board. DONE AND ENTERED this 22nd day of April, 1997, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1997.
Findings Of Fact At all times material to these proceedings, Respondent Farrall was licensed as a certified general contractor in Florida, and held license number CG C040234. In addition, the Respondent was licensed as a certified roofing contractor and held license number CC C024398. Mr. Farrall was the qualifying agent for Sunmaster Roofing Company. On May 25, 1987, Sunmaster Roofing Company entered into a contract with Clarence A. Miller and Emily Miller to reroof their residence in Naples, Florida. After the project was completed, Mr. and Mr. Miller filed a complaint with the Collier County Contractors' Licensing Board on December 7, 1987. Essentially, the complaint alleged as follows: 1) that the contractor abandoned the job without adequately completing construction; 2) that the roof materials were incorrectly installed; 3) that the contractor failed to obtain a building permit; and 4) that the contractor failed to adequately perform the contract due to his failure to correct faulty workmanship on the job. On December 11, 1987, copies of the complaint and a notice of hearing was sent to Respondent Farrall by certified mail to two different addresses. The items were promptly received at both locations. On January 15, 1988, the Respondent acknowledged that he was personally aware of the hearing scheduled for January 20, 1988. The Respondent requested a continuance until after January 29, 1988, because he had to attend to urgent family matters which required his presence in Canada. A continuance was not granted, and the hearing proceeded as scheduled. The Respondent was aware that the hearing was not continued prior to his departure for Canada. On January 20, 1988, a hearing was held, and the local board received evidence regarding the Miller complaint. As a result of the hearing, the local board found that the Respondent violated specific county ordinances in the following manner: by abandoning the job without legal excuse; disregarding or violating the building code by failing to obtain a building permit; and by failing to make good, faulty workmanship obviously performed in evasion of performance of the contract. The Respondent was disciplined by the Collier County Contractors' Licensing Board on January 20, 1988. His permit privileges were suspended in Collier County until the contractor makes restitution and appears before the Board for reinstatement. The Respondent was given fifteen days to appeal the decision. The Respondent personally received a copy of the disposition of the hearing by certified mail on January 28, 1988. An appeal was not taken of the decision.
Recommendation Based upon the foregoing, it is recommended that the charges set forth in the Administrative Complaint against the Respondent, John W. Farrall, in Case No. 89-3291 be DISMISSED. RECOMMENDED this 15th day of February, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 15th day of February, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3291 The proposed findings of fact set forth in Petitioner's proposed recommended order are addressed as follows: 1. Accepted. See HO #1. 2. Accepted. See HO #2. 3. Accepted. See HO #1 and #2 4. Accepted. See HO #8 and #9. 5. Accepted. See HO #8. Rejected. Irrelevant to the charges filed. Rejected. Irrelevant to the charges filed. The proposed findings of fact filed by the Respondent are addressed as follows: Accept the first two sentences. See HO #1. The rest of paragraph 1 is rejected as improper argument which is not based upon material evidence presented at hearing. Accepted. See HO #2. Rejected. The issue in this proceeding involves the discipline by the local government board and not the underlying facts upon which the board based its findings. Immaterial. 4. Rejected. Immaterial. See above. Rejected. Rejected. Rejected. Irrelevant. Irrelevant. Irrelevant. Rejected. Rejected. Irrelevant. Irrelevant. Rejected. Rejected. Rejected. Irrelevant. Irrelevant. Contrary to fact. See HO #6. Rejected. Rejected. Contrary to Irrelevant. fact. See HO #9. COPIES FURNISHED: Jack M. Larkin, Esquire 806 Jackson Street Tampa, Florida 33602 John W. Farrall 316-2 Tudor Drive Cape Coral, Florida 33904 Fred Seely, Executive Director Construction Industry Licensing Board 111 East Coastline Drive, Room 504 Jacksonville, Florida 32202 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792
