The Issue The issue in this case is whether disciplinary action should be taken against Respondent's contractor's license based upon the alleged violations of Sections 489.129(1)(h) and (m), Florida Statutes, set forth in the Administrative Complaint.
Findings Of Fact Based upon the oral and documentary evidence adduced at the hearing and the entire record in this proceeding, the following findings of fact are made. At all times pertinent to this proceeding, Respondent was licensed by the Construction Industry Licensing Board (the "Board") as a certified general contractor having been issued License No. CG C024612. Respondent has been a licensed contractor since 1983. On May 3, 1991, the Board filed a Final Order in Board Case Nos. 89-009986 and 89-013330 imposing a reprimand against Respondent. The Final Order was issued as part of the settlement of an amended administrative complaint filed against Respondent by Petitioner regarding certain unrelated transactions. Respondent was the qualifying agent for Willie William Construction Company, Inc. until October 1985. At that time, as a result of a corporate name change, Respondent became the qualified agent for Ashar Construction Company. On February 21, 1985, the Unsafe Structures Board of the Building and Zoning Department for Dade County advised Ruby Delancy that a hearing would be conducted on March 12, 1985 to determine whether a one story framed residence that Mrs. Delancy owned at 1005 NW 58th Street in Miami (the "House" or the "Property") should be demolished. The Notice indicated that the structure was "open, vacant, vandalized, filled with combustible materials; posing a serious fire hazard. Structure is a danger to human life and public welfare." The Notice estimated the present value of the building at $16,080 and the estimated cost of repairs at $51,120. The County's records indicate that a Notice of Violation regarding the Property had been issued to the owner on October 31, 1984. Facing imminent demolition of the House, Mrs. Delancy began to investigate possible ways to get the House repaired. She filed an application with the City of Miami for a low income, low interest loan that was funded through Federal HUD Community Development Funds. Her efforts to obtain funding to repair the House, delayed the proceedings that had been initiated to demolish the structure. In September of 1985, the City approved Mrs. Delancy for a grant of $10,000 and loan of $20,000 to repair the House. Mrs. Delancy has no other funds to pay for repairs to the Property other than the $30,000 she was obtaining through the City Program. Under the City's program, Mrs. Delancy was responsible for selecting a contractor. Mrs. Delancy contacted Respondent, who inspected the Property and prepared a construction estimate which was submitted to the City. Respondent entered into a contract (the "Contract") dated September 20, 1985 with Mrs. Delancy for home improvement work on the House. The total contract price was $29,870, which was to be paid in two installments: $10,835 on or before December 31, 1985 and a final payment of $19,035 on or before March 3, 1986. The evidence established that Respondent was initially reluctant to enter into the Contract and at least two other contractors refused to undertake the work given the limited funds available. However, Respondent agreed to take the job because of Mrs. Delancy's insistence and because of Respondent's sympathy for Mrs. Delancy's desperate situation in view of the imminent demolition of the House. The evidence also established that Mrs. Delancy requested Respondent to undertake additional work and/or services that were beyond the scope of the Contract. Among the extra items undertaken by Respondent was replacement of the floor in the family room. Additional expenses were also incurred because of unanticipated problems encountered during the renovation. For example one side of the house gave way during the renovation work. Upon investigation, it was discovered that there was no footing. Respondent was required to shore up that side of the House. In addition, the electrician was unable to get a meter because there was an outstanding electric bill for the Property. Respondent paid the old bill in order to get the meter connected. Similarly, she paid the gas company to get the stove hooked up. It does not appear Respondent received any additional compensation for the extra work. Except for $345 that Respondent paid for utilities on behalf of Mrs. Delancy, the evidence at the hearing was insufficient to place a dollar value on these extra services and expenses. The first installment under the Contract of $10,835 was paid to Respondent on or about December 31, 1985. In approximately January of 1986, Mrs. Delancy's son, Gerald Delancy, who had been living out of the state, returned to Miami and became involved in overseeing the construction on behalf of his mother. Gerald Delancy was not pleased with the quality of the construction and a great deal of tension developed between Gerald Delancy and Respondent. The final payment request form was submitted on February 20, 1986. Mrs. Delancy signed a document (the "Certificate of Completeness") indicating that the work was completed and the final payment was made to Respondent by the City on March 3, 1986. Gerald Delancy was present when his mother signed the Certificate of Completeness. She signed this Certificate against the advice of her son. At the time the document was signed, Respondent agreed in principal to complete any remaining work. The City Inspection Form which was posted on the project fails to indicate that a final inspection approval was obtained from the City. In addition, the evidence established that required roof inspections were not obtained prior to the final structural inspection. Gerald Delancy prepared a punch list of items which he felt were incomplete and submitted it to Respondent. It does not appear that this list was prepared until July of 1986. Because of the dispute between Respondent and Gerald Delancy as to what was required under the Contract, a copy of the punch list was also sent to the City. The punch list prepared by Gerald Delancy included a number of items which were beyond the scope of the Contract. For example, with respect to the plumbing, the complaints included the following: the water pressure was to low on the water line, the kitchen sink was too small, and the bathroom vanity was substandard. The Contract did not provide for a bathroom vanity. There were also complaints about ants and roaches and "missing shower rods and towel racks" even though these items were not specifically included within the Contract between Respondent and Mrs. Delancy. The City sent its estimator to the House to review the punch list items. The City's estimator felt that Respondent should provide another coat of paint and should complete some other minor repair work, but the estimator did not concur in many of Gerald Delancy's complaints. The City's rehabilitation estimator met with Respondent and Gerald Delancy at the House on July 15, 1986. At that meeting, Respondent agreed to correct certain matters and asked for one month to complete the work. On August 1, 1986, the work was not completed and Respondent requested an additional 30 days. On August 13, 1986, Respondent stated that she did not have the money to complete the work. According to the City's estimator, the cost to repair the construction deficiencies he noted would be approximately $2,500 to $3,000 as of the date of the hearing. During this period in August, Respondent did send some workers back to the house to complete some additional work. A dispute arose between those workers and Gerald Delancy. The exact nature and reasons for this dispute are not clear. Ultimately, Gerald Delancy refused to allow the workers to perform any work because he did not feel he received adequate answers to his inquiries as to the nature of the work they intended to perform. After the City refused to concur in all of his complaints, Gerald Delancy hired a building inspection company. He paid that company $534 and it rendered a report dated August 4, 1986 which detailed many other deficiencies in the construction. It is not clear whether this report was ever presented to Respondent. On or about November 3, 1986, Mrs. Delancy, at the urging of her son, filed a lawsuit against Respondent. On or about August 8, 1989, Mrs. Delancy obtained a final default judgement against Respondent in the amount of $65,000 plus costs of $102.50. Respondent claims that she was unaware of the lawsuit and the default final judgement until Petitioner's investigator questioned her about it on September 25, 1990. As of the date of the hearing in this case, Respondent has not appealed the judgement nor has she attempted to have it set aside or vacated. In addition to alleged construction defects, the default judgement included claims against Respondent for allegedly mishandling certain household goods and other property owned by Mrs. Delancy. The evidence presented in this case was confusing and inconclusive as to the nature and justification for these claims by the Delancys for property which Respondent was allegedly storing for Mrs. Delancy. Apparently, Respondent agreed to assist Mrs. Delancy by moving some of the furniture out of the house and placing it in storage during construction. The contract did not require Respondent to provide any moving or storage services and there is no evidence that Respondent was paid for this work. Some or all of the property that was moved out of the house was lost, stolen or destroyed. There is a dispute between the parties as to circumstances surrounding the loss of this property. The evidence presented in this case was insufficient to establish what happened to the property, who was responsible for it and/or how much it was worth. It does appear that the default judgement against Respondent includes a very high assessment for the property involved. However, as noted above, that judgement has not been vacated or appealed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing Count I of the Administrative Complaint, finding the Respondent guilty of having violated Section 489.129(1)(m), Florida Statutes, as alleged in Count II of the Administrative Complaint, and imposing the following disciplinary action against the Respondent: Imposition of an administrative fine of $1,000. Suspension of the Respondent's license for a period of one year, followed by two years probation under such terms as may be imposed by the Board. DONE and ENTERED this 22nd day of August, 1994, at Tallahassee, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 1994. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 93-6438 Only Petitioner submitted a proposed recommended order. The following rulings are made with respect to the proposed findings of fact submitted by Petitioner. The Petitioner's Proposed Findings of Fact Adopted in substance in Findings of Fact 1. Adopted in substance in Findings of Fact 2. Adopted in substance in Findings of Fact 7 and 8. Adopted in substance in Findings of Fact 4, 11, and 12. Adopted in substance in Findings of Fact 3 through 9. Adopted in substance in Findings of Fact 10. Subordinate to Findings of Fact 14 through 18. Subordinate to Findings of Fact 18. Subordinate to Findings of Fact 16 through 18. Subordinate to Findings of Fact 17. Adopted in substance in Findings of Fact 20. Subordinate to Findings of Fact 20. Adopted in substance in Findings of Fact 20. Adopted in substance in Findings of Fact 20. Rejected as unnecessary. Adopted in substance in Findings of Fact 21 and 22. Subordinate to Findings of Fact 21. Subordinate to Findings of Fact 22. Subordinate to Findings of Fact 21 and 22. Subordinate to Findings of Fact 21 and 22. Adopted in substance in Findings of Fact 1. COPIES FURNISHED: Theodore R. Gay, Esquire Dept. of Bus. and Prof. Reg. 401 NW 2nd Ave., Ste N-607 Miami, FL 33128 Agnes Sangster 9925 NW 25th Ave. Miami, FL 33147 Jack McRay Acting General Counsel Dept. of Bus. and Prof. Reg. 1940 N. Monroe St. Tallahassee, FL 32399-0792 Richard Hickok, Exec. Dir. Construction Industry Licensing 7960 Arlington Expressway, Ste 300 Jacksonville, FL 32211-7467
Findings Of Fact At all times material to this proceeding, the Respondent has been licensed as a residential contractor in the State of Florida, holding license number CR C022406, and was the licensed contractor qualifying Rothberg Homes, Inc. On or about May 21, 1986, the Respondent entered into a contract to build Mr. and Mrs. Frank Sargent a new home in Palm Harbor, Florida, for $95,670. The home was to be completed before November 15, 1986, so that the Sargents could qualify for a lower interest rate. The Respondent relied heavily on his construction superintendent, Frank Jackson, to accomplish the work in a timely and workmanlike manner. The Respondent was responsible primarily for selling contracts and for taking care of the company finances. To comply with the technical requirements of the contract, the Respondent had construction begin in July, 1986, with the clearing of the lot. But foundation footers were not dug and poured until about a month later, and construction proceeded at a slow pace (then it went on at all.) The Sargents registered numerous complaints to Jackson about the slow pace and some complaints to the Respondent about Jackson, but nothing was done to speed construction along. In October, 1986, the Sargents, who were on the job site daily, began hearing complaints from suppliers and subcontractors that the Respondent was slow paying them but was told that he eventually was coming through with the payments due. By November, the Respondent was not making payments at all in some cases. Also in October and November, Jackson was in the process of opening his own business (not construction-related) and was devoting less and less time to the Sargent job. November 15, 1986, approached, and it became obvious that the deadline would not be met. The Sargents and the Respondent met and agreed to extend the deadline one month to December 16. On December 11th, the Sargents again reminded the Respondent of the deadline and its importance to them, but the December 16 deadline also came and went with the house only about 70 percent complete. In December, Jackson quit altogether. The Sargents complained to the Respondent, who promised to replace Jackson but never did. Because the Respondent had stopped paying subs and suppliers, they refused to do any more work, and the Sargents wound up having to pay some of them out of their own pockets in order for work to continue. In March 1987, some of the subs and suppliers also filed claims of liens for unpaid work which the Sargents had to clear out of their own pockets in order to close the purchase of the house. Mr. Sargent himself did some of the work, some of which would have been warranty work if the Respondent had paid his bills on time, to save some additional expense caused by the Respondent's failure to keep current on his accounts with the subs and suppliers and to avoid some of the additional hassle of trying to persuade an unpaid sub or supplier to do warranty work. On March 16, 1987, the Sargents met with the Respondent to arrive at an accounting for purposes of the upcoming closing. They agreed that the Sargents should receive the last construction loan draw of about $9,500 to compensate them for payments they made that should have been made by the Respondent and that the Respondent still owed them $6,000, which the parties agreed would be the subject of a promissory note from the Respondent to the Sargents. (This does not even account for the Sargents being shortchanged when a three-foot roof overhang for which they had contracted turned out to be only a two-foot overhang.) The Respondent has paid the promissory note.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Construction Industry Licensing Board enter a final order finding the Respondent, Daniel S. Rothberg, guilty of violating Section 489.129(1)(h) and (m), Florida Statutes (1987), and imposing an administrative fine in the amount of $1,500. RECOMMENDED this 19th day of December, 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1988. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Daniel S. Rothberg 624 Charisma Drive Tarpon Springs, Florida 34689 Daniel S. Rothberg 196 Mayfair Circle Palm Harbor, Florida 34684 Warren A. Wilson, III, Esquire 2101 U.S. Highway 19 North Suite 201 Palm Harbor, Florida 33563 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Petitioner is the Department of Professional Regulation. Respondent is Denfield Lionel Kirby, at all times pertinent to these proceedings holder of certified general contractor license CG-C024695, issued by Petitioner. His address of record is Miami, Florida. In 1985, Fitzgerald McCoy and his wife had plans prepared by an architect for construction of a second story addition to their home in Miami, Florida. On October 31, 1985, a building permit for construction was obtained in the name of McCoy's wife, who is the owner of the house. Commencement of construction was stymied because the McCoy's contractor of choice was unlicensed. They eventually met and began discussions with the Respondent. On April 16, 1986, Respondent prepared and signed an agreement with the wife, Gwendolyn G. McCoy. The agreement provided that Respondent would build the addition to the single family dwelling for a total sum of $57,048. Further, the agreement provided construction would be in accordance with the owner's previously drawn architectural plans as revised by an architect named Edna L. Mingo, an acquaintance of Respondent. Payment terms of the agreement provided Respondent would be paid one third of the total amount at the beginning of construction and one third when the roof to the addition was "dried in" and installation of windows completed. The final one third of the total contract amount would be paid to the Respondent upon the completion of the project. This payment schedule was abandoned by mutual parol agreement of the parties when, upon execution of the agreement, the McCoys were unable to provide the initial one third payment required by the contract to start construction. At that time, the parties orally agreed that Respondent would commence work on the project upon payment of $5,000 to him by Mr. and Ms. McCoy. They made this payment on April 16, 1986, the same date the written agreement was executed. Construction activities commenced shortly thereafter pursuant to the building permit previously issued in the name of Ms. McCoy. Respondent eventually had this permit transferred to his name in May, 1986. The McCoys continued to live in the residence while construction was in progress. During this time, Respondent generally appeared at the work site merely to ascertain if workmen were present. After making this check, he would leave. As the building process continued, extensive damage occurred to portions of the existing structure from rainwater which blew into the residence. On one occasion, the ceiling to the McCoy's bed room caved in on them. The water damage was the direct result of the Respondent's failure to provide adequate protection to the existing structure from rainstorms during construction of the second floor roof over a portion of the residence. At one point in the construction activity, workmen discovered the presence of termites in the rafters to the original roof of the McCoy dwelling. One of the rafters was replaced and the others were braced with new wood. After receipt of payments totalling approximately $35,233.19, the Respondent took a respite from the project. His departure, due to the inability of the McCoys to provide further construction funds at the time, occurred around August 15, 1986. Eventually, the McCoys acquired more funds and, on October 20, 1986, gave the Respondent a check for $20,000. After receipt of the $20,000 payment, the Respondent's workmen were involved in minimal activities on the site in October and December of 1986. Because of proximity to the Christmas season, both parties evidenced very clear recollections of activities on the job around December 15, 1986. At that time, the Respondent requested, and received, another check for $3,000 from the McCoys. He received another check for $1,500 on January 20, 1987. Work by Respondent on the McCoy project after receipt of this payment was sporadic and the relationship between the parties steadily deteriorated. By Respondent's own admission, it is established that his last expense payment or other involvement in the project occurred in May, 1987. During the process of construction, the McCoys wrote successive checks to Respondent in varying amounts which he accepted. Those checks and dates of issuance are as follows: May 2, 1986 $ 4,000 May 21, 1986 $11,000 June 11, 1986 $ 5,000 June 20, 1986 $ 5,000 August 26, 1986 $ 5,233.19 October 20, 1986 $20,000 December 15, 1986 $ 3,000 January 20, 1987 $ 1,500 Per stipulation of the parties at hearing, the foregoing amounts plus the original payment of $5,000 resulted in a grand total of payments to Respondent in the amount of $59,733.17. Respondent's request for the payments, and the McCoy's acquiescence in making them, constituted a continuing parol amendment of the payment terms and amount of the original contract. At time of hearing, a milieu of tasks required by the original agreement to be performed by the Respondent, inclusive of requirements set forth in the plans referenced in that document, either remained unaccomplished, or had been accomplished by the McCoys at additional expense with third parties. Among those tasks were: Installation of mirrors in bath rooms. Installation of wood base boards. Installation of closet rods and shelving. Installation of guard rail to the stairway. Painting of the house's interior and exterior. Completion of plastering of the bathrooms. Although the project was approximately eighty percent complete upon the cessation of all work, testimony of the Petitioner's expert, James Rodgers, establishes that much of the construction completed by Respondent's workmen was not in accordance with the requirements of the plans referenced in the agreement. Among such items are: Substitution of glass panes for glass blocks. Improper construction of the upper level overhang. Stairway risers are not uniform in height. All walls of the second floor addition are uneven and out of plumb. The bedroom floor in the northwest corner of the second floor slants excessively toward the northwest corner. Wood exterior paneling is slanted at a 10 degree angle instead of the required 45 degree angle. The stair landing is six inches less in width than required by plans. Further, the landing (5 ft. 10 in. x 2 ft. 6 in.) is dangerous in that it is supported with only one joist at each end, instead of one every 24 inches. The testimony of Petitioner's expert also established that an expenditure of approximately $51,205 would be required to simply repair or correct improper construction in order to have a final product which is in accordance with the plans referenced in the initial agreement. The McCoys paid certain expenditures for which Respondent, under terms of the agreement, was to have assumed financial responsibility. Included in these items are: Bathroom tiles. Plumbing expenses. Painting expenses. The record is devoid of any evidence that the Respondent conducted any examination of the existing structure prior to contracting with the McCoys or initiation of construction on the project. Further, by the Respondent's own admission, it is established that he did not see the plans referenced in the written contract between the parties until several weeks after the construction was initiated. He proceeded with construction activities on the basis of a "concept". Based on the demeanor of the Respondent, his testimony that the McCoys agreed to pay for "extras" resulting from the plans which were revised by Edna Mingo is not credited. The original written agreement between the Respondent and Ms. McCoy, executed on April 16, 1986, incorporated these revised plans. By his own admission, the Respondent had completed these "extras" before the middle of August of 1986. He did not discuss this problem with the McCoys until sometime between November of 1986 and January of 1987. The Respondent did not espouse a total cost amount attributable to the "extras" until the final hearing held in this cause. Further, Respondent's testimony that the McCoys agreed to pay additional costs resulting from the plans was not supported by testimony of any other witness. The plans, as revised by Edna Mingo, depicted existing centers in the ceiling of the original structure as being 12 inches apart, when, in reality, they were 28 inches apart. These centers were required, by the revised plans, to be extended in order to support the overhang of the second floor addition. The Respondent discovered the disparity regarding the spacing of centers in the course of construction, but he failed to correct the problem with the result that the overhang will eventually sag. At hearing, the Respondent confirmed that numerous punch list items had not been completed. He stated his willingness to have these tasks completed if the McCoys would allow entry to the premises for personnel performing these tasks.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Construction Industry Licensing Board enter a final order finding the Respondent guilty of the commission of gross negligence in the practice of contracting in violation of subsection 489.129 (1)(m), Florida Statutes. The penalty of permanent revocation suggested by the Petitioner is outside the maximum range set forth in subsection 21E-17.001 (19), Florida Administrative Code, and also appears overly harsh in view of the informal atmosphere which surrounded the contractual arrangements in this case. This is particularly so in view of the apparently previously unblemished record of the Respondent. The nature and extent of neglect in this case does, however, dictate imposition of a firm penalty. As required by subsections 21E-17.002(1) and (2), Florida Administrative Code, the aggravating circumstances in this situation, namely the additional cost to be endured by the owners to correct errors by the Respondent, justify the recommendation that the Respondent's license be suspended for a period of three years and that he be assessed an administrative penalty of $2,500. DONE AND RECOMMENDED this 28th day of April, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1988. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. PETITIONER'S PROPOSED FINDINGS Petitioner's proposed findings consisted of 2 numbered paragraphs and 14 unnumbered paragraphs. Two of the unnumbered paragraphs have multiple numbered subdivisions. Numbers 3-14 have been applied to the unnumbered paragraphs and the numbered sub-paragraphs are redesignated with arabic letters. Included in finding number 2. Included in finding number 11. Included in part in findings numbered 4, 5, and 17. The remainder is rejected as unnecessary for the result reached. Included in findings 11 and 17. Rejected as unnecessary for the result reached. Included as to amount of pay in finding number 11. Remainder rejected as not supported by the weight of the evidence. There appears to be a typographical error in this proposed finding by Petitioner. As to an amount of $15,000 in extras claimed by the Respondent, this proposed finding is treated in finding number 18. Rejected as not necessary for the result reached. Rejected as not necessary. Included in finding number 18. Rejected as not necessary for the result reached. Rejected as unnecessary. Included in findings numbered 14 and 15. Included in finding number 14. a) rejected as unnecessary. rejected as unnecessary. included in finding number 7. rejected, these were not the Respondent's responsibility. included in finding number 19. included in finding number 14. rejected as redundant. Included in finding number 15. Included in part in finding number 20. Remainder rejected as redundant. RESPONDENT'S PROPOSED FINDINGS Included in finding number 2. Included in finding number 3. Included in finding number 3. Included in finding number 3. Included in finding number 3 and 4. Rejected as unnecessary to result reached. Included in finding number 4. Included in finding number 4. Included in part in finding number 17, Remainder Rejected as unnecessary. Rejected as unnecessary. Included in findings numbered 5 and 9. Included in finding number 5 as to permit transfer. Included in finding number 9. Rejected as unnecessary for the result reached. Included in finding number 9 as to payment amount, remainder rejected as unnecessary to result reached. Rejected as unnecessary. Included in finding number 11. Included in finding number 10. Included in finding number 11. Included in finding number 10. Rejected as unnecessary. Included in part in findings numbered 14 and 15. Included in finding number 20. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. COPIES FURNISHED: Lee Sims, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 R. Daniel Koppen, Esquire 700 Northeast 90th Street Miami, Florida 33138-3206 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely Executive Director Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 =================================================================
The Issue Whether Respondent committed the offenses described in the administrative complaint? If so, what disciplinary action should be taken against him?
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Respondent is now, and has been since 1982, a general contractor licensed to practice in the State of Florida. He holds license number CG C020528. At all times material hereto, Respondent has been licensed as an individual general contractor, rather than as a qualifying agent for any business entity. 1/ Respondent is now, and has been at all times material hereto, the President of Michelle Construction Corp. (MCC). On or about November 29, 1987, MCC, through Respondent, entered into a written contract with Henry Rodriguez and his wife Patricia, in which MCC agreed, for $30,000.00, to remodel the Rodriguez residence located at 9139 S.W. 69th Court in Miami, Florida. The work to be performed by MCC included, among other things, renovating the residence's two bathrooms, replacing most of the existing roof, doubling the size of the kitchen, and adding to the residence a back porch, living room, dining room, and master bedroom with a bathroom and walk-in closet. Respondent was to prepare the plans for the project. The $30,000.00 contract price was exceptionally low for the type of work that was the subject of the contract. On December 12, 1987, Respondent, using his general contractor's license, obtained a building permit from the Metro-Dade County Building and Zoning Department to perform the work specified in the contract. Shortly thereafter, work began on the project. Although he hired Paulino Hernandez to serve as the project foreman, Respondent retained overall supervisory responsibility for the project and visited the worksite on various occasions. Work on the project proceeded slowly. Changes had to be made to the plans originally prepared by Respondent because they were infeasible. Furthermore, the project was underfinanced, notwithstanding that Mr. and Mrs. Rodriguez made payments in accordance with their contractual obligations. MCC last performed work on the Rodriguez residence on August 25, 1988. At the time it stopped working on the project, the project was not complete. To this date, it remains unfinished, despite Mr. Rodriguez's efforts to have MCC fulfill its obligations under the contract. Among those portions of the project that MCC failed to complete was the roofing work described in the contract. Following MCC's abandonment of the project, Mr. Rodriguez contracted with Trans Continental Coating Co., Inc., to install over the entire residence a "Foamed-In-Place Urethane Insulated Roof and an elastomeric coating system" for $10,000.00. The work that MCC and/or its subcontractors did perform in furtherance of its contract with Mr. and Mrs. Rodriguez was, at least in part, shoddily done in a manner reflecting either gross negligence or incompetence on the part of the workers who performed the work and those that supervised them. For example, the floors in the dining room and living room additions to the house were not level. Neither were the ceilings in the new master bedroom. Furthermore, the tiles that MCC installed were irregular and had depressions in them. Moreover, the dining room addition was several inches out of square. The paint that had been applied to the exterior of the Rodriguez home as part of the project was already peeling off at the time MCC abandoned the project. Mr. and Mrs. Rodriguez had it repainted by Transcon Painting Co. at a cost of $1,900.00. Mr. and Mrs. Rodriguez had paid MCC in excess of $30,000.00 at the time of MCC'S abandonment of the project. Initially payments were made to MCC or Respondent. Subsequently, in an effort to expedite the completion of the project, Respondent authorized Mr. and Mrs. Rodriguez to make payments directly to the job foreman, Hernandez, which they did. Hernandez was to use the money he received from Mr. and Mrs. Rodriguez to pay for the labor and supplies necessary for the project. Although Mr. and Mrs. Rodriguez paid the contract price in full, MCC and Respondent lost money on the project. Respondent has not been the subject of any prior disciplinary action by the Construction Industry Licensing Board.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Construction Industry Licensing Board enter a final order finding Respondent guilty of the violations of Section 489.129, Florida Statutes, charged in the instant administrative complaint and suspending Respondent's license for a period two months and imposing upon him a fine in the amount of $3,000.00 for having committed these violations. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of November, 1990. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of November, 1990.
