The Issue The issue posed for decision herein is whether or not disciplinary action should be taken against Respondent, or his license to practice contracting based on the Complaint allegations filed herein which allege that he has diverted funds from a construction project in violation of Chapter 489.129(1)(h), and has violated Chapter 489.129(1)(i), Florida Statutes (1979), based on a suspension of his Certificate of Competency by the Collier County (Florida) Contractors' Licensing Board.
Findings Of Fact Based upon my observations 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 on or about April, 1981, the Petitioner, Department of Professional Regulation, herein sometimes referred to as the Department or Petitioner, seeks to take disciplinary action against the Respondent as licensee and against his license as a registered General Contractor based on conduct which will be set forth hereinafter in detail. Respondent is a Registered General Contractor who has been issued License No. RG0014840. According to Petitioner's records, Respondent's last known address is Route 2, Box 1017, Bonita Springs, Florida. However, evidence in the pleadings file revealed that the Respondent's present mailing address is Route 2, Box 231, Hannibal, New York. Respondent was first licensed as a Registered General Contractor in November of 1973 as an individual. His license is now delinquent as he did not renew it on the date of its expiration, June 30, 1979. 2/ During March of 1980, Respondent requested Claudia Blanche Klug of Dolphin Air Conditioning and Supplies (Dolphin) to rough-in air conditioning duct work in a home which Respondent had contracted to construct for Mr. Ray J. Hill or Naples, Florida. The rough-in services were provided by Dolphin which services were paid for by a check dated May 1, 1980, in the amount of $901.20. The check was returned for insufficient funds. (Petitioner's Exhibit No. 4.) Ray J. Hill, as stated, is a resident of Naples who entered a contract with Respondent for the construction of a residential home. To pay for the construction of the residence, Mr. Hill established a draw schedule to pay Respondent as construction progressed from proceeds from a construction loan obtained from Naples Federal Savings and Loan Association. According to Hill, Dolphin was to be paid by Respondent from monies obtained (by Respondent) from the construction loan. Respondent made the last construction draw from Naples Federal on or about April 15, 1980, whereas Dolphin completed its rough-in- work during March of 1980. Mr. Hill filed a complaint with the Collier County Contractors' Licensing Board which resulted in a suspension of Respondent's Collier County Certificate of Competency based on a violation (by Respondent) of five (5) local ordinances. (See Petitioner's Exhibit No. 2.) Petitioner has reviewed the action taken by Collier County respecting its suspension of Respondent's Certificate of Competency. Respondent did not appear nor was a representative on his behalf present at the hearing herein to either offer evidence or rebut the allegations contained in the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Petitioner suspend Respondent's license to practice as a Registered General Contractor (License No. RG0014840) for a period of two (2) years. RECOMMENDED this 5th day of March, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 1982.
The Issue Whether Petitioner's bid was properly rejected as being nonresponsive.
Findings Of Fact At all times relevant hereto, Respondent was licensed by Petitioner as a certified air conditioning contractor having been issued license No. C-2805 (Exhibit 1). From 1984 to June 29, 1992, Respondent was the qualifying contractor of record for Jay's Air Conditioning & Refrigeration (Exhibits 1 and 2). On December 11, 1991, Respondent and Vincent Tipaldo executed a contract for the sale and purchase of certain goodwill and inventory of Jay's Air Conditioning & Refrigeration, of Pinellas County, Florida from the Respondent to Tipaldo. (Exhibit 4). Paragraph 5 of the above agreement stated that Respondent agreed to allow Vincent Tipaldo to use Respondent's contractor license until the buyer, Vincent Tipaldo, obtained his own. Vincent Tipaldo transferred $18,000.00 to Respondent as consideration for the contract with the remaining $10,000.00 to be paid to Respondent in installments of $318 per month for three years. Respondent authorized Vincent Tipaldo and other uncertified and unregistered persons to pull and obtain permits under his license for Jay's Air Conditioning & Refrigeration from December 11, 1991 to May 5, 1992 (Exhibit 5). Shortly after the sale of the business Respondent was injured in a vehicle accident and was unable to work. Tipaldo stopped the monthly payments to Respondent and Respondent ceased supervising the projects. The situation deteriorated and civil litigation is ongoing. On May 5, 1992 and thereafter, Respondent no longer authorized anyone to pull permits or act under his license for Jay's Air Conditioning & Refrigeration using license No. C-2805 (Exhibit 5). On June 29, 1992, Respondent submitted to Petitioner a change of status no longer acting as the qualifying contractor of record for Jay's Air Conditioning & Refrigeration (Exhibit 2). Respondent did not supervise and had no active participation in the operation, management or control of the business from shortly after December 11, 1992 to June 29, 1992. Tipaldo was not licensed and has never been licensed as an air conditioning contractor by the PCCLB (Exhibit 3). After Respondent no longer authorized Tipaldi or anyone else to pull permits for Jay's Air Conditioning & Refrigeration in May 1992, Joe B. Hutson became the qualifying contractor of record for Jay's Air Conditioning & Refrigeration (Exhibits 6, 7 and 9).
Recommendation It is, therefore RECOMMENDED: That the license of Jay W. Beckner as a certified air conditioning contractor be suspended for a period of six months under such conditions as the Board deems appropriate. DONE and ENTERED this 6th day of January, 1993, at Tallahassee, Florida. K. N. AYERS 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 6th day of January, 1993. COPIES FURNISHED: David S. Sadowsky, Esquire 315 Court Street Clearwater, Florida 34616 Jay W. Beckner P.O. Box 20573 Bradenton, Florida 34203 William J. Owens, Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road - Suite 102 Largo, Florida 34643 5116
The Issue Whether Respondent's license as a certified general contractor should be suspended or revoked or the licensee otherwise disciplined for alleged violations of Chapter 489, Florida Statutes as set out in the January 18, 1984 Administrative Complaint. Petitioner presented the oral testimony of Louis P. Gilner, Peter Max Christianson, Jr., Catherine M. Edwards, John Owen Thompson, Jack W. Rainford, and Annie Gilner and had admitted in evidence Petitioner's exhibits 1, 3, 4, 5, 6, 7, 7A, 7B, 8, 9, 10, 11, 12 and 13. Exhibit 2 is clearly hearsay and inadmissible but has be considered as a stipulation of counsel and is discussed under the Conclusions of Law as a jurisdictional argument of counsel. Neither Respondent nor Chester A. Trow, Esquire appeared for formal hearing. Petitioner filed transcript of the proceedings November 14, 1985 and proposed findings of Fact and Conclusions of Law on November 18, 1985, and waived time for entry of this recommended Order. These proposals have been considered in this recommended Order and are ruled upon in the Appendix hereto.
Findings Of Fact Respondent, Patton N. Roberts, is a certified general contractor, license number CG C015023 and qualifying agent for Roberts Construction and Development, Inc. Although Respondent failed to renew his license in June, 1985, and his license is now on inactive status, it can be renewed at any time before June 1988 by payment of late renewal fee. In June 1982, Respondent entered into a contract for $68,242.00 with Louis Gilner to construct home in Putnam County, Florida. The charges against Respondent arise out of the use of the funds associated with construction of this home pursuant to contract. On June 30, 1982, Respondent obtained Putnam County building permit #6107 for the construction. Respondent commenced construction and completed the home to the dry-in stage by approximately early August 1982. Mr. Gilner paid Respondent a $50.00 deposit and two "draw" payments of $20,472.00 each, making total payments to Respondent of $40,995.00. These "draws" against the total amount of $62,242.00 which was contracted-for were paid on July 20, 1982 and August 5, 1982, respectively. Approximately July 15, 1982, Respondent ordered trusses for the Gilner residence from Landmark Truss, Inc. The trusses were delivered on July 23, 1982. Respondent failed to pay for the trusses, although he had received the draw payment for the trusses. Landmark Trusses, Inc. filed a lien on the Gilner residence for $2,490.00. On July 9, 1982, Respondent ordered 16 loads of fill dirt for the Gilner residence from Chesser & Strickland Sand Co., Inc. The Respondent's failure to pay $950.00 for the dirt and the labor in spreading it resulted in a lien being filed against the Gilner property for that amount. Mr. Jack Rainford testified that Respondent subcontracted the heating and air conditioning work to A-1 Air and A-1 plumbing for $5,806.00 ($3,550 plumbing and $2,556 air conditioning); that Respondent paid A-1 Air and A-1 Plumbing the first draw on the plumbing in the amount of $1,128.00 on August 17, 1982; that the Gilners had, on January 3, 1983, paid A-1 Air and A-1 Plumbing $1,128.00 on the air and $1,183.34 on the plumbing, and that Respondent has failed to pay $1,183.34 on the plumbing and $1,128.00 on the air conditioning. No matter how these figures are worked, they do not fairly support Mr. Rainford's conclusion that Respondent only owes A-1 $1,183.34 plus $1,12800. It is more mathematically logical that the original total owed was $6,106.00; the Respondent paid $1,128.00 on August 17, 1982 reducing the remaining amount to $5,806.00; thereafter Mr. and Mrs. Gilner, on January 3, 1983, paid A-1 $1,128.00 for the air conditioning work and $1,183.34 for the plumbing package and that Respondent actually owes the Gilners $2,311.34 for their having to pay twice, and owes A-1 $3,464.66; which is the balance of A-1's bill after all payments the Respondent and the Gilners have been deducted. However, the undersigned will accept Mr. Rainford's unrefuted testimony that Respondent owes A-1 only $1,128.00 plus $1,183.34 for a total of only $2,311.34. On or about September 6, 1982, Gilner terminated Respondent for lack of progress toward completion. At that date of termination the Respondent and his crew had been absent from the premises for five to six weeks. At the time of the Respondent's termination, the project was, by Mr. Gilner's estimation, only 40 percent completed. Although the predicate for Mr. Gilner's knowledge in this regard is less than might normally be characterized as "expert" testimony, it is still credible and based on Mr. Gilner's testimony concerning his usual employment as an installer of traffic controls involving other construction projects, and in conjunction with the testimony of Mrs. Gilner, his estimation that the extent of the household construction total led only 40 percent is accepted for purposes of this finding of fact. At this stage, based on the draws paid. 60 percent of the construction should have been completed by Respondent. The Gilners both testified that they completed the home after Respondent's termination at a total cost of $82,000, or $14,000 over the contract price. There is no evidence to support the actual amount paid or what it was paid for, nor is there any evidence to establish what relationship there may have been between Respondent's behavior and the increased cost. Although Mrs. Gilner testified that there was some misinstallation of the trusswork and that rain had damaged the roof prior to Respondent's final termination, this information, without more, will not support the $14,000 figure. Approximately August 25, 1982, in a conversation with Catherine Edwards, an employee of Landmark Truss, Respondent had explained that the reason he had not paid the Landmark Truss bill was because he had elected to use the draws he had received from the Gilners to buy some lots upon which to build ""spec" (speculation) Respondent stated to Ms. Edwards that he originally intended to get the lots "subordinated" but due to the early death of an elderly man up north, he had had to use the (5) Gilner draws to buy his lots and was awaiting profit from the speculation homes to pay landmark Trusses bill. Because this conversation occurred after Landmark Trusses had served its Notice of Claim on Mrs. Gilner, the undersigned construes this conversation to be an admission against interest by Respondent and draws the inference there from that failure of Respondent to pay the other necessary owed costs from the draws received from the Gilners resulted from the same misapplication of draw funds as Respondent described to Ms. Edwards.
Recommendation That the Construction Industry Licensing Board enter a final order providing that Respondent's certified general contractor's license shall be suspended for a five year period with the provision that the suspension shall be lifted after one year upon the Respondent providing proof to the Construction Industry Licensing Board that he has made restitution of $2,311.34 to the Gilners, $2,490.00 to Landmark Trusses, Inc., $950.00 to Chesser & Strickland Sand Co., and $2,311.34 to A-1 Air and A-1 Plumbing. DONE and ORDERED this 20th day of December 1985 in Tallahassee Florida. ELLA JANE P. DAVIS 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 20th day of December, 1985. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-2857 Petitioner's Proposed Findings of Fact: Accepted. Accepted Accepted. Accepted. Accepted. Accepted. Accepted Accepted. Accepted. Accepted. Accepted but expanded to conform to the evidence as a whole. Accepted but expanded to conform to the evidence as a whole. Rejected as not supported by the competent substantial evidence in the record as a whole. Accepted but rephrased to reflect the competent substantal evidence in the record as a whole. COPIES FURNISHED: Mr. James Linnan Executive Director Construction Industry Licensing Board P. O. Box 2 Jacksonville, Florida 32202 Mr. Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Salvatore A. Carpino General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Chester A. Trow, Esquire P. O. Box 1450 Ocala, Florida 32678 Patton N. Roberts 2442 Jackson Street Hollywood, Florida 33202
Findings Of Fact Based on the evidence received at the final hearing, the following findings of fact are made. At all times material to this case, the Respondent, Steven Ary, was a licensed air conditioning contractor in the State of Florida, holding license number CA CO36888. On October 20, 1987, a company named Jenni Temp Refrigeration Company, Inc., entered into a contract with Lauderhill Mall, Lauderhill, Florida, to install three 3 1/2 ton air conditioning units for the sum of $7,875. Jenni Temp was to provide the three separate permits required by the City of Lauderhill, Florida, for the installation. Joseph Roturra, the owner of Jenni Temp Refrigeration Company, Inc., and Respondent had, prior to October 20, 1987, entered into negotiations whereby Respondent would become employed by Jenni Temp as its qualifying agent so that Jenni Temp could engage in air conditioning contracting. Those negotiations ended before any formal efforts were made to have Jenni Temp licensed with Respondent as the qualifying agent. In late 1987, before his negotiations with Jenni Temp broke down, Respondent signed three blank application forms for electrical and air conditioning permits. Respondent then gave the three signed application forms to Joseph Roturra. Respondent knew that neither Joseph Roturra nor his company was licensed for air conditioning work. Joseph Roturra completed the signed blank application forms he received from Respondent and made application with the City of Lauderhill, Florida, for the three permits required for the job at Lauderhill Mall. The name of the applicant on the applications as completed by Joseph Roturra was All Star Service, Inc. Respondent served as the qualifying agent for All Star Service, Inc. The City of Lauderhill did not issue the permits for which Roturra applied using the forms signed by Respondent because permits had been previously issued to another company for the same job. Jenni Temp completed the Lauderhill Mall job without the permits required by local law and without further assistance from Respondent. Respondent did not supervise the job at Lauderhill Mall. There was no final inspection of the work as required by local law.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent guilty of having violated Sections 489.129(1)(e) and (m), Florida Statutes and which imposes an administrative fine on Respondent in the amount of $500 for the violation of Section 489.129(1)(e), Florida Statutes. It is further recommended that there not be a separate fine for the violation of Section 489.129(1) (m), Florida Statutes, because the conduct that establishes that violation is the same conduct which constitutes the violation for which the administrative fine is recommended. DONE and ENTERED this 22nd day of May, 1989, in Tallahassee, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 1989. APPENDIX The findings of fact contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, l0, 13, 14, 15, 19 and 20 of Petitioner's proposed findings of fact are adopted in substance, insofar as material. The findings of fact contained in paragraphs 11, 12, 16, 17 and 18 of Petitioner's proposed findings of fact are immaterial. COPIES FURNISHED: Kenneth E Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0729 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0729 Steven Ary 1217 N. E 4th Street Pompano Beach, Florida 33306
The Issue The issue is whether Respondent failed to secure workers' compensation coverage for its employees and, if so, the amount of the penalty to be assessed against Respondent.
Findings Of Fact Respondent installs and maintains air conditioning and heating equipment for residential and commercial applications. On May 2, 2017, Respondent was installing a duct system at 3128 East Hillsborough Avenue in Tampa. Two of Respondent's employees were performing work at the site and were not covered by workers' compensation. Leslie Michaud is the president and sole shareholder of Respondent. The air conditioning installation work performed by Respondent's employees is classified by the National Council on Compensation Insurance (NCCI) as class code 5537. This code is for "Heating, Ventilation, Air-Conditioning and Refrigeration Systems Installation, Service and Repair . . . ." During the audit period of May 3, 2015, through May 2, 2017 (Audit Period), code 5537 bore two rates. For the Audit Period, Respondent had no workers' compensation coverage for any of its employees, although it maintained an exemption for Mr. Michaud. For the Audit Period, Respondent's gross payroll was $213,327.49 exclusive of any payments to Mr. Michaud. Applying the manual rates during the Audit Period to the gross payroll yields unpaid workers' compensation premium of $14,870.43.
Recommendation It is RECOMMENDED that the Department of Financial Services, Division of Workers' Compensation, enter a final order determining that Respondent failed to secure workers' compensation coverage for its employees during the Audit Period and imposing a penalty of $29,740.86. DONE AND ENTERED this 7th day of January, 2019, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 7th day of January, 2019. COPIES FURNISHED: Tabitha G. Harnage, Esquire Steven R. Hart Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-4229 (eServed) Leslie G. Michaud L and M Airconditioning System, Inc. 49 North Federal Highway, No. 206 Pompano Beach, Florida 33062 Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 (eServed)
