Findings Of Fact At all times relevant hereto, Respondent, Larry F. Hoffman, held certified general contractor license number CG C019686 and certified residential contractor license number CR C018801 issued by Petitioner, Department of Professional Regulation, Florida Construction Industry Licensing Board. He operates a general contracting firm at 3060 Indian Trail, Lantana, Florida. On or about November 18, 1983, Hoffman entered into a contract with Maurino Palmieri to add a screened porch addition to Palmieri's residence located at 6227 Hitching Post Way, Delray Beach, Florida. The contract generally required Hoffman to construct a screen enclosure with a flat roof to the existing structure for a price of $2,500. The contract reflected that the contractor on the project was Hoffman Construction, a name under which Respondent has not qualified to do business. Hoffman is not licensed to construct flat roofs in Palm Beach County. Because of this, he subcontracted the roofing work to American Roofing and Supply Association (American) in Delray Beach. According to Hoffman, American completed only one-half of the job and then filed for bankruptcy. Although Hoffman was not licensed to do the roof work, he finished the roof on the project. The project was completed on February 1, 1984 and Palmieri paid Hoffman the full amount due. At that time, Hoffman warranted the roof "to be free of leaks one year" and provided a written warranty to evidence this representation. About three weeks later, a heavy rain occurred and leaks developed in the new room. After calling Hoffman to complain, Hoffman placed a tar composition on certain parts of the new roof in an effort to stop the leaks. The leaks continued to persist whenever it rained and Hoffman sent a helper to Palmieri's residence on two occasions. Both efforts to fix the roof were unsuccessful. Thereafter, Palmieri telephoned Hoffman's residence on many occasions but was unable to personally speak with Hoffman. Hoffman never returned his calls. Palmieri eventually hired another roofer in October, 1984, to fix the leaks and discovered that flashing was missing in several areas. The repairs cost him $750. He has had no problem with his roof since that time. Hoffman denied that he had failed to put all necessary flashing in the roof. He attributed the leak to the gable in the original structure rather than any defect in the roof on the new room. However, this contention is rejected as not being credible. Hoffman also acknowledged that he finished the roof even though he was not licensed to do so, but did so since he could not find another roofing company within a reasonable period of time, and knew Palmieri desired the project to be completed as soon as possible. Finally, he concedes that he did not qualify "Hoffman Construction" with the Construction Industry Licensing Board, but contended he was unaware of this requirement. He now understands the law and represents he will not violate this requirement in the future.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of violating Subsections 489.115(1)(b) and 489.119(2) and (3), Florida Statutes, that he be given a $500 administrative fine, and his license suspended for ninety days. In the event Hoffman makes restitution to Palmieri, and furnishes evidence of the same to the Board, the suspension should be lifted. The remaining charge should be dismissed. DONE and ORDERED this 1st day of July, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 1985.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating the licensing of contractors in Florida and regulating the practice of contracting of all types. Specifically, the Petitioner is responsible for enforcing law which prohibits unlicensed persons from engaging in the business of contracting, or advertising themselves or business organizations as available to engage in contracting, without proper licensure. The Respondent is a citizen of the State of Florida, who has embarked on a business of representing owners who desire to construct residences, acting as the agent of those owners in arranging for materials, labor, subcontractors, and the financing of construction. Upon the decision by the owner to construct a residence, the Respondent engages in drafting plans, to some extent, arranging for subcontractors, overseeing the details of the work and any changes or alterations in the work and plans as the project proceeds. The owner in this arrangement does not obtain workers' compensation coverage for the Respondent, as would be the case if the Respondent was an employee of the owner, nor does the owner withhold F.I.C.A. taxes from monies due the Respondent for his services. The Respondent is not licensed as a contractor in the State of Florida. On May 11, 1995, the Respondent signed a contract (hereinafter the "Kassiris Contract") with owner Gus Kassiris, to oversee the erection and construction of a new residence for Mr. Kassiris. The Respondent was to perform the following duties, pursuant to the Kassiris Contract: to make recommendations as to which subcontractor to hire; to inspect progress and review payments; consultations and solutions on construc- tion project; to engage in manpower tracking and coor- dination of resources; monitoring of contract compliance; to provide punch list services; and to engage in the preparation and de- fense of change orders, as well as cost accounting. The "punch list services" mean that the Respondent was to engage in insuring that no work was left undone or done incorrectly at the end of the project. The Respondent admitted that he conducted all inspections on the project and reviewed all requisitions for payment from the subcontractors. The amount he charged for his services was roughly equivalent to the amount a licensed contractor would charge for similar services. The Kassiris Contract did not meet the conditions for a homeowner's exemption, found in Section 489.103(7), Florida Statutes. Specifically, the Kassiris Contract did not provide that the Respondent would work under the supervision of the homeowner. In fact, the Kassiris Contract provided that if the homeowner wanted changes made in the specifications, he could request a change order. The Kassiris Contract also did not provide that the homeowner would deduct F.I.C.A. and withholding taxes from the Respondent's fees or wages, as required in the homeowner's exemption standards. There was no provision requiring that the homeowner provide workers' compensation, as required by the statute, in order to make out the elements of the homeowner's exemption (from the requirement of having a contractor's license). The conditions for exemption from licensure were also not met in the implementation of the Kassiris Contract. Specifically, the homeowner did not act as his own contractor and provide all of the material supervision himself. Although he denies it, in fact, the Respondent negotiated the contracts with the subcontractors and, during the course of performance of the Kassiris Contract, the Respondent approved plan changes for the project, without the involvement or consultation of the owner. The Respondent acted in the capacity of a contractor in the implementation of the contract by overseeing most details of construction of the residence. He performed the on-site inspections, dealt with subcontractors, approved the manner in which work was being performed, approved payment of subcontractors, and, in general, closely managed all details of the contracting effort. Practically, the only involvement the owner had, other than being present on the site frequently, was that the owner actually wrote the checks to pay the subcontractors and delivered them to the Respondent, who, in turn, delivered them to the subcontractors. The owner obtained the building permit at the commencement of the project. The Respondent advertised in the Citrus County Chronicle, a newspaper of general circulation, on or about June 25, 1995, that he offered services for hire as a construction consultant and for project management. On or about June 27, 1995, he entered into a contract with Paul and Valerie Stamper (hereinafter the "Stamper Contract"). The Respondent was thus charged with overseeing the erection and construction of a residence located at Lot 15 of Laurel Oak Estates Subdivision in Citrus County, Florida. He acted in the capacity of a contractor in the negotiation and formulation of this contract. According to the Stamper Contract, the Respondent's responsibilities were to include the following: make recommendations as to which subcon- tractor to hire; conduct progress inspections and payment reviews; consult concerning construction problems and arrive at solutions; engage in manpower and tracking and coor- dination of resources; monitor contract compliance; provide "punch list" services; prepare and defend any change orders; engage in cost accounting. The terms of the Stamper Contract indicate that the residence to be constructed was to be purveyed to the owner, rather than a case of the owner being the contractor actually creating the product. In order for the above- referenced exemption to apply, the homeowner must be the party functioning as a contractor on his own behalf. It is noteworthy in this regard that the Stampers gave the Respondent a $3,000.00 deposit. The Stampers later decided that they did not wish to proceed with the contract and requested return of that deposit. The Respondent refused to return the deposit money, although acknowledging that the Stamper Contract was no longer in effect. In his letter to the Stampers, responding to their request for return of the deposit, he proposed, instead, that they continue to proceed with the contract and the construction of the residence, which the Stampers no longer wished to own and occupy, in order that they could sell it. The intention to construct a residence for sale to another party directly belies the possibility that the homeowner can be his own contractor, constructing a residence for his own use in compliance with the homeowner-exemption law. It shows an intention to engage in contracting by the Respondent. The existence of facts supporting this exemption is also belied because the Respondent, in his contract with the Stampers, did not contract to have F.I.C.A. or income taxes withheld from any paychecks due him from the Stampers, nor did the Stampers contract to provide workers' compensation coverage for the Respondent. The contract also did not provide that the owners, the Stampers, would act as their own contractors and provide all material supervision themselves. In fact, the Respondent was to provide supervision. The Petitioner is responsible for enforcing the prohibition against unlicensed contracting in order to protect the public. There are frequent problems with unlicensed contractors in Florida in terms of their competence to provide quality work and their willingness to do so, as well as outright fraud and harm to the public. The contracts which unlicensed contractors enter into are illegal and unenforceable. Homeowners who contract with unlicensed contractors are not eligible for recovery under the Construction Industry Licensing Recovery Fund. On July 2, 1995, the Respondent again advertised in the Citrus County Chronicle, advertising himself as available to manage the construction of residences. Based upon this notice and other information, the Petitioner issued a Notice to Cease and Desist to the Respondent, ordering him to cease and desist the unlicensed practice of contracting. The Respondent contends that he is not a contractor and that he is, instead, a project manager or consultant and, therefore, not governed by the statutory provision authorizing the Notice to Cease and Desist.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered imposing an administrative fine in the amount of $5,000.00 against the Respondent. DONE AND ENTERED this 23rd day of February, 1996, in Tallahassee, Florida. P. MICHAEL RUFF, 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 23rd day of February, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 95-4534 Petitioner's Proposed Findings of Fact 1-9. Accepted. 10. Rejected, as constituting a conclusion of law. 11-14. Accepted. 15. Rejected, as being irrelevant. 16-17. Accepted. 18. Accepted, except for the next to the last sentence, which constitutes a conclusion of law. 19-20. Accepted. 21. Rejected, as constituting a conclusion of law. 22-31. Accepted. Respondent's Proposed Findings of Fact 1-2. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as contrary to the unrefuted evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as not in accordance with the greater weight of the evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as constituting a conclusion of law, but to the extent it might be a proposed finding of fact, as not in accord with unrefuted evidence of record and as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as not representative of the unrefuted evidence of record and as subordinate to the Hearing Officer's findings of fact on this subject matter and as not itself being dispositive of material issues. Rejected, as contrary to the greater weight of the evidence and as not being materially dispositive. Rejected, as contrary to the greater weight of the evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter and as, in part, being a conclusion of law and not a proposed finding of fact. 10-12. Rejected, as constituting a conclusion of law. COPIES FURNISHED: Donna Bass, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0750 Mr. Mark P. Stanish 6041 Town Court Springhill, FL 34606 Richard Hickok, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, FL 32211-7467 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue Whether Respondent violated section 489.129(1)(j), Florida Statutes (2005),1 by abandoning a construction project, and, if so, the appropriate discipline; and Whether Respondent violated section 489.129(1)(i) by virtue of her violation of section 489.127(1)(f), which prohibits engaging in the business or acting in the capacity of a contractor without being licensed, and, if so, the appropriate discipline.
Findings Of Fact Based on the evidence, the following facts were made: Ms. Curbelo is a certified building contractor, doing business as A+ Construction & Management, Inc. The Florida Construction Industry Licensing Board issued Ms. Curbelo License No. CBC 1255321 on March 12, 2007. She is currently licensed as the qualifying agent of A+ Construction & Management, Inc., and she was issued qualified business organization certificate of authority License No. QB53665. Before March 12, 2007, Ms. Curbelo was not licensed pursuant to chapter 489, Part I, to practice construction contracting. In December 2005, Ms. Curbelo purchased A+ Construction & Remodeling, Inc., and became its sole corporate officer. She renamed the entity A+ Construction & Management, Inc. (A+ Construction). Before March 12, 2007, A+ Construction was not duly licensed pursuant to chapter 489, Part I. Further, its predecessor, A+ Construction & Remodeling, Inc., was never duly licensed pursuant to chapter 489, Part I. On January 25, 2006, Mr. Torres was provided a proposal from Ms. Curbelo, doing business as A+ Construction & Remodeling, Inc. The proposal was to remodel, renovate, and repair Mr. Torres' home located at 1031 Hunting Lodge Drive, Miami Springs, Florida 33166. On January 27, 2006, Mr. Torres accepted the proposal, and it formed the agreement between Ms. Curbelo and Mr. Torres. Mr. Torres made an initial payment of $24,900.00 to A+ Construction on February 6, 2006, which was due under the contract upon acceptance. The agreed contract price for the work was $166,000.00. The contract contained a description of the work to be completed and a draw schedule that provided for payment as the work progressed. Mr. Torres made payments to A+ Construction for the time period of February 8, 2006, through April 10, 2007. The payments totaled $157,700.00 and corresponded with a majority of the work contracted to be completed under the contract. The only draw that Mr. Torres did not pay was in the amount of $8,300.00 that was due "upon completion" of the work. Mr. Torres credibly testified that he paid A+ Construction for work that had not been completed in order to move the job along to completion. Furthermore, Mr. Torres credibly testified that when he would question Mr. Luis Curbelo, the job-site foreman, about the status of the work, Mr. Curbelo would threaten to walk off the job. Mr. Torres identified a check, Petitioner's Exhibit 6, that he made payable to First Call Roofing dated August 23, 2007, in the amount of $5,000.00. Mr. Torres explained that he paid First Call Roofing because he was desperate to get his leaking roof repaired. Mr. Torres paid this amount even though he had previously paid A+ Construction for repairs to the roof as part of the contract. The evidence also showed that during the work, Mr. Torres requested change orders which were not part of the original contract. Although these change orders increased the costs above the original contract, it was not disputed that Mr. Torres fully paid A+ Construction for all of the work outside of the contract. Sometime in late August 2007, A+ Construction stopped work on the job and failed to return. Mr. Torres credibly testified that he had an estimate from another contractor that the construction job was left approximately 40 percent completed and that it would cost an estimated amount of $108,000.00 to complete the job. The Department, however, did not introduce any non-hearsay evidence to support the estimate to complete the work or the costs to complete the construction. After A+ Construction stopped work on the job, Mr. Torres testified that he called in a series of inspections and that his home had passed the inspections. He stated that a majority of the inspections had been called in by him. Ms. Curbelo and Mr. Luis Curbelo offered the following three explanations for why A+ Construction stopped work on Mr. Torres' house: first, Mr. Torres failed to approve a payment draw concerning installation of windows; second, Mr. Torres' construction job included work for which Mr. Torres had not paid; and finally, Mr. Torres attempted to undercut A+ Construction by directly dealing with its subcontractors. None of these offered reasons is supported by the evidence. The record clearly showed that Mr. Torres made all of the payments required under the contract, except the final draw of $8,300.00, which was due on completion of the job. Consequently, under the contract, Mr. Torres had fully paid, including amounts for windows, all amounts that were owed under the contract when A+ Construction abandoned the job. The final draw was not due until completion, and A+ Construction had not completed the job. Next, the record clearly shows that Mr. Torres paid for all change orders. Therefore, the record does not support Ms. Curbelo's claim that A+ Construction stopped work because of non-payment. Finally, the record clearly showed that Mr. Torres contracted with the roofing subcontractor to do work that A+ Construction had been paid to do, but had not done. Thus, the evidence did not support the contention that A+ Construction had stopped work because Mr. Torres attempted to undercut them by dealing with the subcontractors. The record clearly shows that Ms. Curbelo, doing business as A+ Construction, abandoned the construction job. Next, the record does not support the claim that the building inspections showed that 85 percent of the remodeling had been completed on the job and that work stopped because of Mr. Torres' non-payment. Considering that Ms. Curbelo stopped work in August 2007, a review of the building inspections shows that many of the inspections occurred after she abandoned the job. None of the inspections shows the percentage of work completed by A+ Construction. Finally, the record does not support Ms. Curbelo's testimony that Mr. Torres was aware that at the time of entering into the contract that she did not have a contractor's license and that the job was under the supervision of Joe Anon (Mr. Anon). Ms. Curbelo testified that Mr. Torres was aware the Mr. Anon would be the general contractor, as his name was on the January 25, 2006, contract. Interestingly, the document that Ms. Curbelo relies upon for her testimony is a proposal dated January 25, 2006, from A+ Construction & Management, Inc. This document is nearly identical to the 11-page proposal from the A+ Construction & Remodeling, Inc., to Mr. Torres on the same date for the repairs to the home. However, two important differences are found on the faces of the two exhibits. On Respondent's Exhibit 2, under the logo of "A+ Construction" are the terms "& Management, Inc. For Joe Anon, GC." In contrast, Petitioner's Exhibit 3 shows the logo of "A+ Construction & Remodeling" with no reference to the later company or Mr. Anon's name. Both of these exhibits purport to be from the same proposal given to Mr. Torres on the same day. Yet, out of the composite exhibit of 12 pages, only Ms. Curbelo's offered document contains Ms. Curbelo's subsequent company's name or reference to Mr. Anon. Moreover, unlike the Department's exhibit, the exhibit offered by Ms. Curbelo is unsigned by Mr. Torres. Consequently, the document offered by Ms. Curbelo is untrustworthy. Thus, the undersigned rejects as unbelievable Ms. Curbelo's claims that Mr. Torres knew that she was not a licensed general contractor and that the construction project was being overseen by a licensed contractor. Mr. Torres credibly testified in rebuttal that he did not meet Mr. Anon until after Ms. Curbelo abandoned the job. Further, Mr. Torres credibly testified that his "biggest mistake was paying ahead" to get work completed. The Department's total investigative costs of this case, excluding attorney's fees, is $414.57. The evidence showed that Ms. Curbelo does not have any prior disciplinary actions against her license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued by Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board: Finding Respondent, Chandra Beth Curbelo, guilty of having violated section 489.129(1)(j), Count I of the Administrative Complaint, imposing as a penalty a fine of $7,500.00, and placing Ms. Curbelo's license on probation for a period of four years; Finding Ms. Curbelo guilty of having violated sections 489.127(1)(f) and 489.129(1)(i), as set out in Count II of the Administrative Complaint, imposing a fine of $7,500.00, and placing her license on probation for a period of four years; and Requiring Ms. Curbelo to pay the Department's costs of investigation and prosecution in the amount of $414.57. DONE AND ENTERED this 5th day of January, 2011, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS 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 5th day of January, 2011.
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
Findings Of Fact At all times material hereto, the Respondent was licensed as a certified building contractor, having been issued license number CB C012964 by the State of Florida. At all times material hereto, the Respondent was licensed as an individual only. On or about April 14, 1982, Cedar Homes of Pinellas, Inc., entered into a contract with Mary Fedico to enclose the carport on her home, which was located at 2085 Victory Avenue, Largo, Florida. The contract price was $5,000.00. Mike Fredricks acted as the saleman for this contract on behalf of Cedar Homes of Pinellas, Inc. At all times material hereto, Cedar Homes of Pinellas, Inc., was owned by Kenneth Larrow. The only employees of this corporation were Kenneth Larrow and his son. Cedar Homes of Pinellas, Inc., was formed in January of 1982 for the purpose of performing room additions and other types of construction. On April 14, 1982, the sole officer of Cedar Homes of Pinellas, Inc., was Kenneth Larrow, who also served as a director. An attorney John L. Riley, was the registered agent. At all times pertinent hereto, Kenneth Larrow was not licensed to engage in the business of contracting in the State of Florida. On or about April 16, 1982, Kenneth Larrow and his salesman, Mike Fredricks, went to the City of Largo Building Department to obtain a construction permit for the enclosure of Mary Fedico's carport. Neither of these persons wash qualified, or licensed, to engage in the business of contracting in the City of Largo. Therefore, the Largo Building Department refused to issue a permit for this construction. When Kenneth Larrow and Mike Fredricks were unable to obtain a permit for the construction of the addition to Mary Fedico's home, they informed the Largo Building Department that the qualifier for Cedar Homes of Pinellas, Inc., was Barry L. Critoph, the Respondent. The Largo Building Department informed Mr. Larrow and Mr. Fredricks that the Respondent had to sign the permit application in order for a permit to be issued for the construction to be performed on Mary Fedico's home. On or about April 16, 1982, the Respondent applied for and obtained a construction permit for the enclosure of Mary Fedico's carport. This permit was issued to Cedar Homes of Pinellas, Inc., with the Respondent as the qualifying contractor. At all times relevant hereto, the Respondent did not qualify Cedar Homes of Pinellas, Inc., with the Construction Industry Licensing Board. At all pertinent times, the Respondent did not have in his possession a certificate issued by the Construction Industry Licensing Board with the notation "Cedar Homes of Pinellas Inc." thereon. Moreover, the Respondent admitted he was not positive that he had properly qualified Cedar Homes of Pinellas Inc., when he obtained the permit for the enclosure of Mary Fedico's carport. On or about May 5, 1982, Cedar Homes of Pinellas, Inc., entered into a second contract with Mary Fedico to finish the interior of the carport which was to be enclosed by Cedar Homes of Pinellas, Inc., pursuant to the prior contract, for a price of $710. Kenneth Larrow began to perform the work required under the terms of the two contracts. Mary Fedico never saw the Respondent at the project site. Mr. Larrow hired all subcontractors and was responsible for paying them. He was also responsible for supervision of the construction of the carport enclosure. The Respondent did not know that there was a second contract for interior work in Mary Fedico's carport enclosure, and the Respondent performed no work on the project. He did drive his car by the site three times, but he never entered onto the project, and he simply viewed the construction being performed from the street. The Respondent had no knowledge as to who the subcontractors were on the Fedico project, and he had no responsibility for hiring them. He had no knowledge of the money that was being obtained from this project, and he did not know whether or not the subcontractors were being paid. At a time uncertain, construction of the carport enclosure addition to the Fedico home began to slow down. When Mary Fedico began to receive notices from subcontractors that they were not being paid, she contacted Kenneth Larrow about problems with the construction. However, when Mr. Larrow was unable to satisfactorily respond to Mary Fedico's questions regarding the work, she and her son-in-law took over the project, completed it, and paid all the subcontractors. The cost of completion was between $2,000 and $2,500 more than the contract price had been. As a result of the Fedico contracts noted above, Kenneth Larrow was charged with using the designation of "contractor" without a license, in two counts. Kenneth Larrow plead nolo contendere to these charges, and he was sentenced to pay a fine of $250 plus court costs. Mary Fedico first became aware that the Respondent had some involvement with the construction of the addition to her home when she was subpoenaed to appear at this court proceeding. Prior thereto, she had not been notified by either the Respondent or Mr. Larrow, that the Respondent had any connection with her carport project. The Respondent's involvement with Cedar Homes of Pinellas Inc., was limited to obtaining permits and "supervision". As compensation therefor, the Respondent was to received two percent of the gross sales of the company. He was supposed to check jobs and verify construction, but this supervision was to consist of checking the projects contracted for by Cedar Homes of Pinellas Inc., at his own convenience, to determine if these projects were "okay". The Respondent was not connected with the financial operation of Cedar Homes of Pinellas Inc., he had no financial control over the operations of the corporation, and he could not sign checks. All subcontractors were hired and paid by Kenneth Larrow. Mr. Larrow and his salesmen actually entered into the contracts, and the Respondent had no involvement with the contracts except to determine if work contracted for was structurally sound. Kenneth Larrow actually supervised all of the construction projects of Cedar Homes of Pinellas Inc., on a daily basis, and the Respondent was not aware of all the projects entered into by the corporation. Kenneth Larrow eventually made restitution to Mary Fedico in the amount of $1,250 for the problems which occurred in connection with the carport enclosure work on her home.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that license number CB C012964 held by the Respondent, Barry L. Critoph, be suspended for two years. THIS RECOMMENDED ORDER entered this 2nd day of December, 1983. WILLIAM B. THOMAS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 1983. COPIES FURNISHED: Stephanie A. Daniel, Esquire 130 North Monroe Street Tallahassee, Florida 32301 John J. Fogarty, Esquire 327 South Garden Avenue Clearwater, Florida 33517 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
The Issue The issue is whether Petitioner's application for a real estate license should be denied for the reasons stated in Respondent's Notice of Intent to Deny, dated November 2, 2018.
Findings Of Fact The Commission is the state agency charged with licensing real estate brokers and sales associates in Florida. See § 475.161, Fla. Stat. On August 17, 2018, Petitioner filed with the Commission an application for a Real Estate Broker License – Out of State Experience. According to his PRO, however, he is applying for a "real estate associate license." In conjunction with the application, a lengthy and somewhat confusing record of Petitioner's administrative and criminal history in New York and Minnesota between 1995 and 2018 has been compiled and is found in Commission Exhibit 11, consisting of approximately 300 pages. Besides holding an active Colorado real estate license, he also has a mortgage originator's license issued by the State of Minnesota in 2018. The application required Petitioner to provide answers to four background questions. In response to question 1, which asks the applicant if he has ever been convicted or found guilty of, or entered a plea of nolo contendere or guilty to, regardless of adjudication, a crime in any jurisdiction, or is currently under criminal investigation, Petitioner answered yes. In his explanation to the question, Petitioner listed four arrests, discussed below, all occurring in the State of Minnesota. Although the Notice of Intent to Deny alleges that he was convicted of a felony, the Commission now concedes that all convictions are for misdemeanors. First, on July 1, 1997, Petitioner, then 22 years old, was arrested for one felony count of criminal sexual conduct in the first degree and two felony counts of criminal sexual conduct in the third degree. In May 1998, he pled guilty to fifth degree sexual conduct, a gross misdemeanor, and was fined $900.00, sentenced to nine days in jail, placed on two years' probation, ordered to undergo sex offender treatment, and required to register as a sex offender for ten years in New York (where he had relocated temporarily) and Minnesota. Petitioner completed all conditions required by the court. In his application, Petitioner explained that the arrest and conviction were the result of "interactions with an underaged woman [a 15-year-old babysitter for his fiancee's child] that lied about her age." At hearing, he testified that he pled guilty to the misdemeanor charge because he did not have sufficient funds to continue to fight the original felony charges, and he "did not want to take the chances with the jury," even though the prosecutor admitted to the court the defendant's attorney "can kill our guys on cross-examination." He decided to "take the misdemeanor and get on with [his] life." Petitioner acknowledges that he pled guilty to a sexual offense, but it is fair to find that he wants the Commission to accept his version of events - that the girl fabricated the entire incident. Second, on July 10, 1997, Petitioner was arrested for disorderly conduct, a misdemeanor, after an "[a]rgument with girlfriend and her brother." He was found guilty of the charge and paid a $150.00 fine. Third, in October 2008, while in a divorce proceeding with his then wife, Petitioner was charged with violation of an Order for Protection for "exchanging messages with my wife on childcare/exchange matters which were allowed according to the original order. She called in and filed a complaint." The application states that the charge was later dismissed. The Commission does not dispute this representation. Finally, in November 2008, Petitioner was arrested for gross misdemeanor domestic assault against his then wife. Petitioner explained that this incident occurred after an "argument with wife (she was heavily intoxicated) that escalated." He later pled guilty to disorderly conduct, paid a $300.00 fine, and was given one year of unsupervised probation. He successfully completed all conditions imposed by the court. Question 1 requires that an applicant also report traffic offenses other than parking, speeding, inspection, or traffic signals. The Commission's PRO points out that Petitioner failed to disclose that in 1995, while a resident of the State of New York, he pled guilty to operating a motor vehicle (motorcycle) while impaired by drugs (marijuana). At hearing, Petitioner testified that he forgot about the traffic violation, as it occurred 24 years ago when he was only 20 years old. Even though the Notice of Intent to Deny does not allege that Petitioner failed to disclose his complete criminal record, the issue was tried by consent at hearing. However, Petitioner's omission of this minor item should have no bearing on whether to approve or deny the application. Question 4 asks the applicant to disclose whether he ever has had a license to practice any regulated profession revoked, annulled, suspended, relinquished, or otherwise disciplined in any jurisdiction. Petitioner answered yes. In explaining his answer to question 4, Petitioner stated that his Minnesota real estate broker license was revoked by the Department of Commerce in May 2018 for (a) failure to self-report a 2008 bankruptcy; (b) the denial in 2009 of his application for a residential general contractor's license; and a 2012 felony charge (domestic assault by strangulation of his ex-wife), which was dismissed later. The application added that due to the revocation of the Minnesota license, his Colorado realtor license "is currently in review." At hearing, however, Petitioner testified that Colorado is not taking any action on that license. The revocation order provided in part that Petitioner obtained his license by fraud and misrepresentation, he had a complete disregard for the law, and he could not be trusted to make material disclosures and otherwise comply with licensing requirements. See Comm. Ex. 11, p. 208. Obtaining a license by fraud and/or misrepresentation, and not being trusted to make material disclosures and comply with licensing requirements, are grounds for revoking or suspending a license in the state of Florida had Petitioner then been registered. At hearing, Petitioner testified that he actually had disclosed the bankruptcy and administrative action to the state when he submitted an application to transfer a brokerage license in 2009. Evidently, this contention was not accepted by the Department of Commerce. Petitioner says he "attempted" to appeal the revocation order, but the appeal was denied. In its PRO, the Commission alleges that Petitioner failed to disclose an enforcement action instituted by the Minnesota Department of Labor and Industry (MDLI) in 2009, which resulted in him voluntarily consenting to the revocation of a residential building contractor license held by Vanquish Custom Homes, LLC, a company he controlled. Although this omission is not cited in the Notice of Intent to Deny, the issue was raised at hearing without objection by Petitioner. Petitioner's response to background question 3 acknowledges that his application for a "residential general contractor's license" was denied in 2009. Also, in a letter attached to the application, Petitioner made reference to that action, although in a somewhat confusing and incomplete manner. See Comm. Ex. 11, p. 187. The letter fails to disclose that the proceeding arose in the context of an enforcement action by MDLI, which alleged, among other things, that Petitioner was untrustworthy, incompetent, and unqualified to act as a licensee's qualifying owner. The letter and application also fail to disclose that MDLI issued a consent order revoking the license, imposing a $5,000.00 suspended civil fine, and ordering him to cease and desist from acting as a residential building contractor. Had Petitioner been registered in the state of Florida, these actions would have been grounds to suspend or revoke the license. At hearing, Petitioner explained that the license lapsed around 2007, he reapplied for licensure in 2008, but he withdrew the application after MDLI issued an intent to deny. He says he took this action because he "didn't need the contractor license, and it just wasn't worth spending the money to fight it." By consent of the parties, Petitioner acknowledged that he failed to disclose a consent order issued by MDLI in 2013, which determined that Vanquish Services Group, LLC, another company controlled by Mr. Shields, had violated the 2009 consent order. Petitioner was ordered to cease and desist from any further residential building contractor violations and to pay a $5,000.00 civil penalty, of which $4,500.00 was stayed. At hearing, Petitioner testified that in an effort to procure clients, his company incorrectly advertised four trades on Angie's List, when the company was allowed no more than three trades to be advertised. He admits this was a "mistake." Two character witnesses, Mr. Hartos and Ms. Anderson, both currently licensed as realtors in Minnesota, testified on behalf of Petitioner. Both testified that they are aware of his prior administrative and criminal history. Mr. Hartos is a long- time licensed broker, who has served on the Minnesota Association of Realtors Board of Professional Standards for more than 25 years, and was Petitioner's broker and "boss" for the last five years. The other is a former employee. Based on their work experience with Petitioner, they found him to be ethical, truthful, honest, and trustworthy, and not a danger to the public. Forty-three letters of recommendation, including those submitted by the two character witnesses, all hearsay in nature, corroborate this conclusion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order denying Petitioner's application for a license as a real estate broker or sales associate. DONE AND ENTERED this 15th day of July, 2019, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 15th day of July, 2019.
The Issue The issue in this case is whether the real estate license issued to the Respondent, Kathi L. Kitts, should be revoked or otherwise penalized based upon the acts alleged in the Administrative Complaint.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I make the following findings of fact: Brickell Grove Realty Corporation ("Brickell Grove") is a licensed real estate brokerage corporation in Florida having been issued license number 0245921. From at least May 1988 through September 1, 1988, the sole qualifying broker for Brickell Grove was Frederick Morrison, Jr. (Morrison). At some point in mid to late 1988, (the exact date was not established by competent substantial evidence) Morrison was hospitalized with a terminal illness and his subsequent involvement in the real estate brokerage business was limited. Morrison died on September 1, 1988. Respondent, Kathi L. Kitts (formerly known as Kathi L. Abassi), was licensed by Petitioner as a salesman with Brickell Grove beginning on or about August 13, 1986. Respondent completed the required course for a real estate broker's license in April of 1988. On September 19, 1988, she passed the state exam required to obtain a broker's license. The evidence did not establish when Respondent first filed an application for a broker's license. After passing the exam in September of 1988, Respondent submitted an application which she thought would enable her to become the sole qualifying broker for Brickell Grove. The evidence did not establish the date that application was submitted. That application was not signed by the qualifying broker of Brickell Grove and/or the owner so it could not serve to qualify Respondent as the sole qualifying broker for Brickell Grove. On October 1, 1988, Petitioner issued Respondent a broker/salesman license as an employee of Brickell Grove. That broker/salesman license was revoked in November of 1988 when it was discovered that the corporate registration of Brickell Grove was cancelled effective September 30, 1988 as a result of the death of Morrison and the non-renewal of the corporate license. The exact date of the revocation was not established by competent substantial evidence but it was apparently on or after November 1, 1988. Prior to receiving the revocation notice, Respondent was advised by an investigator employed by Petitioner that her application to become the qualifying broker was deficient because it was not signed by the owner or broker. On October 20, 1988, Respondent filed another application to become licensed as the qualifying broker for Brickell Grove and to change the name on her license from Kathi Abassi to Kathi Kitts. This second application contained the signature of the owner of Brickell Grove. On November 4, 1988, Respondent sent a letter to the Division of Real Estate indicating that Mr. Morrison was seriously ill and that it was urgent that her application to be the active broker for Brickell Grove be approved as quickly as possible. Respondent did not, however, discover that Mr. Morrison had died on September 1, 1988, until sometime in the middle of November when she was advised by Petitioner's investigator. Petitioner approved Respondent's second application to become the qualifying broker for Brickell Grove on November 22, 1988. The approved broker's license was backdated to establish an effective date of October 20, 1988. Effective October 20, 1988, the corporate registration of Brickell Grove Realty Corporation was reinstated upon the Respondent becoming its sole qualifying broker. Respondent admitted that at least during the time period from September 1, 1988 through October 20, 1988, she operated as a salesman in the office of Brickell Grove Realty without any supervision from another broker in the office. However, no competent substantial evidence was offered to establish the nature or extent of business conducted by that office or by Respondent during this time period. Respondent did not open bank accounts or advertise as a broker until after October 20, 1988. While Respondent contends that she thought Mr. Morrison was continuing to carry on as the active broker for Brickell Grove during the time period he was hospitalized and continuing through November (after his death), she admitted that she only saw him on occasion and could not recall when he was last in the office. The limited contact between Respondent and the licensed broker for Brickell Grove is reflected by her lack of knowledge of his death until almost two months after it occurred. While there is hearsay testimony that Mr. Morrison was in the hospital for several months prior to his death and that his involvement with Brickell Grove Realty during the several months preceding his death was limited, or nonexistent, no competent substantial evidence was offered to establish the nature or extent of the business conducted by Respondent without the benefit of supervision by a licensed broker during the time period prior to September 1, 1988. Petitioner had previously initiated an investigation into unlicensed practice by one of the owners of Brickell Grove, Mahmoud Abassi (Respondent's former husband) in July of 1986. That investigation resulted in an August 29, 1986 affidavit executed by Mahmoud Abassi to cease and desist unlicensed real estate brokerage activity. However, no competent substantial evidence was offered to prove any involvement by Respondent in the activities which led to the execution of that affidavit nor was any evidence offered to show that Mahmoud Abassi was actually running Brickell Grove at any point subsequent to the execution of the affidavit. Moreover, no competent substantial evidence was offered as to Respondent's activities and/or supervision during the period from the execution of the affidavit until September 1, 1988.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Florida Real Estate Commission, enter a Final Order finding Respondent, Kathi Kitts, guilty of operating as a broker without a license during the period from September 14, 1988, to October 1, 1988, reprimanding her and placing her on probation for one year. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of December 1989. 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 15th day of December, 1989.
