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 the Petitioner violated Section 489.129(1)(a), Florida Statutes, by obtaining licensure by fraud or misrepresentation.
Findings Of Fact The Petitioner is the state agency responsible for licensure of certified general contractors. The Respondent Lawrence I. Paul, III, ("Respondent") is a licensed general contractor, holding State of Florida licenses GC C046485 and CG CA46485. On or about December 12, 1988, the Respondent submitted his application to the Department of Professional Regulation seeking leave to take the examination for certification as a general contractor. The Respondent subsequently took and passed the certified general contractors examination. In his application, the Respondent states that he is qualified to take the examination by virtue of having four years of proven experience as a workman or foreman of which at least one year was as a foreman. On the experience verification form submitted to the DPR as part of his application the Respondent states that from January, 1977 to January, 1980, he had been employed as a construction workman and that from January 1980 to January 1981 he had been employed as a construction foreman. The application includes an experience verification form executed by the Respondent and Paula Wisnik, a New York licensed architect. The form indicates that the Respondent had experience in steel erection form work, masonry walls, concrete slabs, footings, site work, excavation, rebar, trusses, and floor and ceiling joists, in single family residences, strip stores and high rise condominiums ten stories and higher. The experience verification form executed by Ms. Wisnik and the Respondent states as follows: I have read the CANDIDATE INFORMATION BOOKLET and reviewed the experience requirements and understand that any false information provided on this form may subject the person(s) signing below to disciplinary action and possible loss of license. I understand that DIRECT KNOWLEDGE does NOT mean that I am relying on a statement from the applicant that he has met the requirements. Ms. Wisnik has no direct knowledge of the Applicant's experience or of the applicant personally. Her knowledge was based upon information provided to her by Peter Wendt, another licensed architect. The Respondent originally sought to have Mr. Wendt complete the experience verification form. Mr. Wendt forwarded the form to Ms. Wisnik and she subsequently signed the document. Mr. Wendt has no direct personal knowledge of the Respondent's experience as set forth on the experience verification form. Mr. Wendt did not meet the Respondent until the Respondent's move to Florida, which occurred subsequent to the period of employment identified in the application. The greater weight of the evidence establishes that at the time the application was completed, the Respondent did not have the claimed four years of proven experience as construction worker or foreman. The Respondent's application states that first he became employed in the construction trade in January, 1977. In fact, he became employed full time in late December, 1978, with Paul Brothers, Inc., a family owned fire restoration business in Philadelphia. He worked primarily as a salesman and estimator with Paul Brothers until June, 1982, a period of approximately three and one-half years. Although there were periods when the Respondent worked on- site, it was not his primary responsibility throughout the employment period.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Professional Regulation, Construction Industry Licensing Board, enter a Final Order revoking the licensure of Lawrence I. Paul, III, as a certified general contractor, license numbers GC C046485 and CG CA46485. DONE and RECOMMENDED this 19th day of October, 1992, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 1992. APPENDIX TO CASE NO. 92-0193 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 1. The proposed finding is modified to reflect that the Respondent did not hold the licenses prior to examination. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 5. Rejected, illogical and unsupported by evidence. 6-7. Rejected, not supported by credible and persuasive evidence. COPIES FURNISHED: Daniel O'Brien, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Robert G. Harris, Esq. Senior Attorney Dept. of Professional Regulation 2295 Victoria Avenue #263 Fort Myers, Florida 33901 Timothy J. Murty, Esq. 1633 Periwinkle Way, Suite A Sanibel, Florida 33957 Wellington H. Meffert, II Chief Construction Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0750
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are made: At all times material to this proceeding, Respondent Joseph W. Miklavic was licensed as a certified building contractor in the state of Florida, holding license number CB C006615, qualifying Security Home d/b/a Security Homes of Clearwater (Security). Since March, 1989 the Respondent's license has been on active status qualifying, Individual. At all times material to this proceeding, Respondent was a salaried employee of Security. Ronald MacLaren was president of Security and also sole owner and president of Yankee Construction Inc. d/b/a Olympic Homes of Citrus County (Olympic). In accordance with a management agreement between Security and Olympic, the Respondent was assigned by Ronald MacLaren to oversee the operation of Olympic. Olympic was licensed to engage in construction having been qualified by Wilmon Ray Stevenson through license number RB A035005 which was in effect from June, 1987 until October, 1988 when Stevenson filed a change of status application with the Construction Industry Licensing Board (Board) requesting license number RB A035005 be changed to inactive status qualifying, Individual. While this application was not acted upon until February, 1989, the Board considered license number RB A035005 in effect as qualifying Olympic only until October, 1988. Effective September 26, 1988, the name of Yankee Construction, Inc. was changed to Rivercoast Homes, Inc. (Rivercoast) which apparently ceased doing business under the fictitious name of Olympic Homes of Citrus County. On September 19, 1988 Wilmon Ray Stevenson advised the Citrus County Building Department that he was no longer the "qualifier for Olympic Homes". Around this same time, the Respondent, Ronald MacLaren and the management of Olympic became aware that Stevenson would no longer be the qualifying agent for Olympic. There was no evidence that Rivercoast Homes, Inc. a/k/a Yankee Construction Inc. ever advised the Board of the name change or the termination of Stevenson as its only qualifying agent affiliation in accordance with Section 489.119(2)(3), Florida Statutes. Nor was there any evidence that Rivercoast was ever qualified by another qualifying agent pursuant to Section 489.119, Florida Statutes. In accordance with the agreement between Security and Olympic, referred to in Finding of Fact 4, the Respondent continued to oversee the Rivercoast operations until sometime around December 1988 when all of MacLaren's operations in Florida, including Security, closed down. Under Security's agreement with both Olympic and Rivercoast, Respondent's duties included working with management and subcontractors to develop construction schedules and to advise Ron MacLaren of the financial aspect of the company so that MacLaren could make funds available to pay subcontractors, etc. Respondent did not have any control over the finances of either Olympic or Rivercoast such as receiving, depositing or disbursing funds. Either in late September or early October of 1988, Respondent approached Larry Vitt, Citrus County Building Department, as to whether the Respondent could pull permits under his license for Olympic or Rivercoast. Vitt advised Respondent that unless he qualified the company he could not pull permits for that company under his license. Respondent advised MacLaren that Rivercoast would have to have a qualifying contractor in order to engage in contracting. MacLaren did not get Rivercoast qualified to engage in contracting at anytime. Respondent did not qualify Rivercoast under his contractor's license at anytime. Sometime around the last of September or the first part of October of 1988, Respondent became aware that Rivercoast a/k/a Yankee Construction, Inc. was no longer qualified under Section 489.119, Florida Statutes, and therefore, not authorized under law to engage in contracting. On August 16, 1988 Ernest and Marjorie Ellison met with Ken Smith and Gloria Stevenson of Olympic to discuss Olympic building the Ellisons a home. The Ellisons picked out a floor plan at this time and gave Olympic a $100.00 deposit to hold the price until a contract could be executed. On October 1, 1988 the Ellisons met again with Ken Smith and was introduced to the Respondent who gave them a brief run down on the status of the company and advised them that the company was in "good shape". At this meeting, Ken Smith advised the Ellisons of certain things that were required of them before construction began, including a survey. On October 31, 1988 the Ellisons signed a contract with Rivercoast to construct their home. In his capacity as a representative of Security, under the agreement between Security and Rivercoast, the Respondent signed this contract on the line designated Contractor/Representative. There is insufficient evidence to show that Respondent intended to sign the contract as contractor of record as the term contractor is defined in Section 489.105(3), Florida Statutes (Supp. 1988), and thereby impose upon himself the responsibility for the entire project. The contract price was $44,634.00. On November 1, 1977 the Ellisons delivered to Rivercoast a check for $4,363.40 which along with the $100.00 deposit paid in August represented a total down payment of $4,463.40. Respondent did not personally receive any funds from the Ellisons for Rivercoast or receive any funds for himself from the Ellisons under this contract. No permit was ever pulled or any work performed by Rivercoast under the aforementioned contract. Ernest Ellison met with Respondent on November 21, 1988 and requested that the contract be cancelled. Under the authority granted Respondent through the agreement between Security and Rivercoast, the Respondent and Ernest Ellison signed the contract as being cancelled on November 21, 1988. Although the Ellisons were offered an opportunity by the Respondent to transfer their deposit of $4,463.40 to Security and enter into a contract with Security to build their house, they declined and contracted with another contractor. On the date the contract was cancelled, Respondent advised Ernest Ellison that the down payment of $4,463.40 would be reimbursed. Although Respondent attempted to obtain a refund for the Ellisons from MacLaren and was advised by MacLaren that a refund was forthcoming, no refund of the Ellison's down payment was ever made by Rivercoast, Ronald MacLaren, the Respondent or anyone else. Respondent was aware during the negotiation and at the time the Ellison's contract was executed, that Rivercoast was not authorized by law to engage in contracting. However, there is insufficient evidence to show that Respondent ever advised the Ellisons that he would be the contractor responsible for building their home under the contract with Rivercoast or that he would be the contractor to pull the necessary permits for construction of their home. There is no evidence that Respondent had any financial interest or owned any stock or held any office in Rivercoast a/k/a Yankee Construction, Inc. Around October 1, 1988, after Stevenson had withdrawn as qualifying agent for Olympic, Rivercoast was no longer authorized to engage in the practice of contracting since it had not been qualified by another qualifying agent in accordance with Section 489.119, Florida Statutes.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the demeanor of the witnesses and the disciplinary guidelines set out in Chapter 21E- 17, Florida Administrative Code, it is RECOMMENDED: That the Board enter a final order finding Respondent guilty of violating Section 489.129(1)(e), Florida Statutes, and for such violation it is recommended that the Board assess the Respondent with an administrative fine of $1,000.00. It is further recommended that Counts I, II, IV and V be dismissed DONE and ORDERED this 27th day of November, 1990, in Tallahassee, Florida. WILLIAM R. CAVE 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 27th day of November, 1990. APPENDIX CASE NO. 90-2046 The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Rulings of Proposed Findings of Fact Submitted by the Petitioner Not necessary. Adopted in Finding of Fact 1. Adopted in Finding of Fact 7 but modified. Adopted in Findings of Fact 4, 8, and 10. Adopted in Findings of Fact 9 and 14 but modified. Adopted in Finding of Fact 15. Adopted in Findings of Fact 16 and 17 but modified. Adopted in Findings of Fact 17 and 18. Rulings of Proposed Findings of Fact Submitted by Respondent 1. - 2. Not material or relevant. Adopted in Findings of Fact 1, 7 and 20. Adopted in Finding of Fact 4. Adopted in Findings of Fact 4 and 8. Not material or relevant. Adopted in Finding of Fact 19. - 10. Adopted in Finding of Fact 15. Restatement of testimony not a Finding of Fact but see Finding of Fact 13. Adopted in Finding of Fact 15. Not material or relevant. Adopted in Finding of Fact 15. - 16. Not material or relevant. Restatement of testimony not a Finding of Fact but see Findings of Fact 13, 14 and 15. Adopted in Finding of Fact 19 but modified. Not material or relevant. Adopted in Finding of Fact 4. Restatement of testimony not a Finding of Fact but see Finding of Fact 4. Adopted in Finding of Fact 9. Adopted in Finding of Fact 4 but modified to show license effective until October, 1988 rather than February, 1989. Restatement of testimony not a Finding of Fact but see Findings of Fact 1, 7 and 20. - 26. Not material or relevant. Adopted in Finding of Fact 4 but modified to show from June, 1987 until October, 1988. - 29. Adopted in Findings of Fact 5 and 13. Restatement of testimony not a Finding of Fact but see Finding of Fact 4. - 32. Adopted in Findings of Fact 4, 8 and 9 but modified. Not material or relevant. - 36. Adopted in Findings of Fact 4, 8, and 9 but modified. Adopted in Finding of Fact 10. Not material or relevant. - 40. Adopted in Findings of Fact 8, and 17, respectively. Rejected as there is no substantial competent evidence in the record to show any other contract than the one Respondent signed on October 31, 1988. Not material or relevant. Not supported by substantial competent evidence in the record. Not material or relevant. Adopted in Finding of Fact 18. Restatement of testimony not a Finding of Fact but see Finding of Fact 9. - 50. Not necessary to the conclusion reached since this matter was covered in the Preliminary Statement wherein the motion was denied. COPIES FURNISHED: G. W. Harrell, Senior Attorney Department of Professional Regulation 1940 N. Monroe Street, Suite 60 Tallahassee, FL 32399-0750 Geoffrey Vining, P.A. 2212 South Florida Avenue Suite 300 Lakeland, FL 33803 Daniel O'Brien, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 Kenneth D. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
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 Did Respondent commit the violations alleged in the Administrative Complaint dated April 11, 2000, and if so, what discipline is appropriate?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida charged with the responsibility of regulating the practice of contracting pursuant to Section 20.165, Florida Statutes, and Chapters 455 and 489, Florida Statutes. Respondent is, and has been at all times material hereto, a certified residential contractor in the State of Florida, having been issued license number CR CO13253 by the Florida Construction Industry Licensing Board. At all times material hereto, Respondent was licensed with the Construction Industry Licensing Board as an individual. On or about November 20, 1993, Respondent entered into a written contractual agreement (contract) with Kevin Watkins (Watkins) to construct a single family residence at 126 Meadow Lark Boulevard, Lot 65, Indian Lake Estates, Florida. The contract price was $333,944.00. Between December 7, 1993, and February 1, 1996, Watkins and Respondent executed 102 addenda to the contract which increased the contract price by approximately $241,874.43, for a total amount of approximately $575.818.43. On or about December 9, 1993, Respondent obtained permit number 93-120l850 from the Polk County Building Department and commenced work on the project. The contract provided that the "project shall be substantially completed on or about 195 days from the date all building permits are issued." However, due to the 100-plus addenda to the contract, it was estimated that an additional 190 days would be needed to complete the project. Additionally, construction ceased on the home for approximately 60 days so that Watkins could explore the possibility of a construction loan. However, due to the extent of completion, the lending institutions decided not to make any construction loans. On or about May 27, 1996, Watkins moved to Florida with the expectations that his home would be completed within a short period of time. (Watkins' recollection was that the home was to be completed in a couple of weeks. Respondent's recollection was that the home was to be completed in a couple of months.) In any event, Respondent did not complete the Watkins home within a couple of weeks or a couple of months. After Watkins moved to Florida, Respondent paid for Watkins to live in a Best Western motel for a few weeks. Subsequently, Respondent moved Watkins into a rental home for which Respondent paid the rent through September 1996. Beginning October 1996 through July 1999, Watkins paid $600.00 per month for a total of $20,400.00 as rent on the rental home. In early 1998, Respondent and Watkins went through the home, identified those items which had not been completed and Respondent made a handwritten list of those items. Respondent failed to complete the items identified on the list. In fact, shortly thereafter, Respondent ceased working on the project and was unresponsive to attempts to contact him. At the time Respondent ceased working on Watkins' home, the home was approximately 75 percent complete. While this estimation of completion may not be totally accurate, it is the best that could be derived based on the evidence presented, including Respondent's testimony to which I gave some credence. Watkins paid Respondent $561,617.91, which represents approximately 97.534 percent of the total contract price plus addenda to the contract. Seventy-five percent of the contract price plus addenda to the contract equals $431,863.82 for an overpayment of $129,754.09. To date, Respondent has not returned any of the money he received from Watkins above the amount completed under the contract. From early 1998, until August 1998, when Watkins had Respondent removed as general contractor on the building permit, Respondent failed to perform any work on the home for a period in excess of 90 days. Respondent contracted with Jack Eggleston to install cabinets in Watkins home. Eggleston performed under the contract but Respondent failed to pay Eggleston in full, requiring Watkins to pay Eggleston $1,200.00. After Watkins' home was partially complete, Respondent advised Watkins that he had the home insured when in fact he did not have the home covered with insurance. While Respondent was building Watkins' home, Respondent and Watkins entered into a joint venture called Contractors of Central Florida to build modular homes sometime after January 1, 1995. Respondent contends that some of the checks Watkins claims as payment under the contract for his home, were in fact reimbursement to Respondent for funds he had advanced for the joint venture. There is insufficient evidence to establish facts to show that any of the checks Watkins claims as payment under the contract for his home were in fact reimbursement for funds advanced by Respondent for the joint venture. Up until the time of the final hearing, the Department had incurred costs for the investigation and prosecution of this matter, excluding costs associated with an attorney's time, in the amount of $1,451.28.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and after careful review of the guidelines set forth in Rule 61G4-17.001(8) and (11), Florida Administrative Code, and the circumstances for purpose of mitigation or aggravation of penalty set forth in Rule 61G4-17.002, Florida Administrative Code, it is recommended that the Department: Enter a final order finding Respondent guilty of violating Section 489.129(1)(h)2., Florida Statutes, and imposing a penalty therefor an administrative fine in the amount of $1,000.00; Enter a final order finding Respondent guilty of violating Section 489.129(1)(k), Florida Statutes, and imposing a penalty therefor an administrative fine in the amount of $1000.00; Assessing costs of investigation and prosecution, excluding costs associated with an attorney's time, in the amount of $1,451.28, plus any such further costs which have or may accrue through the taking of final agency action and; Requiring Respondent to pay restitution to Kevin Watkins in the amount of $129,754.09 which represents the amounts accepted by Respondent for work not performed. DONE AND ENTERED this 23rd of October, 2000, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 2000. COPIES FURNISHED: Robert A. Crabill, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32388-2202 Ronald J. Powell Post Office Box 7043 Indian Lake Estates, Florida 33855 Rodney Hurst, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent, a licensed real estate salesman, is guilty, as charged, of fraud, misrepresentation, culpable negligence or breach of trust in violation of Section 475.25(1)(b), Florida Statutes.
Findings Of Fact I. At all times material to the charges, Respondent was a licensed Florida real estate salesman associated with Woodlake Realty, Inc., in Melbourne, Florida. He obtained his real estate salesman's license in 1982. On March 14, 1985, became a licensed real estate broker and now operates his own business under the name of Peter Frontiero Realty. His office is located in his residence at 3247 West New Haven Avenue, Melbourne, Florida. II. On or about April 7, 1983, while employed as a real estate salesman at Apollo Realty, Inc., Mary E. Sousa obtained a listing on a tract of land owned by John and Janet Biansco. In connection with the listing, an Exclusive Right of Sale Contract was executed. This contract contained the following legal description of the tract to be sold: Parcel of land lying in the County of Brevard in the southwest 1/4 of Sec 11, TW 28 South Range 36E more particularly described as follows: S 2/3 of the following tract: commence at SE corner of W 1/2 of Sec 11 TW 28 South Range 36E, thence along south line of said Sec 11, 589-54-14 West for 30 feet., thence north 1- 17-00E for [sic] 43 feet to the point of beginning thence south 89-54-14 west along the north R/W line Melbourne Tillman Drainage district canal #63 for 297.43 feet, thence north 1-15-49 east for 353 feet, thence north 89-54-14 east for 297.55 feet, to the west R/W line of Arizona Street; thence south 1 17-00 West along R/W line for 353.00 feet, to the point of beginning. (P-4, Admissions No. 5, 6) As so described, this tract of land measures 235.34' x 297.47' and contains approximately 1.61 acres. (Admission No. 7) Mary E. Sousa and her broker, Peter Sergis, however, incorrectly determined that the legal description described a tract of land measuring 297' x 353' feet, containing 2.4 acres. (They determined this by examining the legal description attached to the Listing Contract and relying on Mr. Biansco's representation that the tract contained 2.4 acres.) Mary E. Sousa then had the property listed in the Melbourne Multiple Listing Service (MLS) on or about April 26, 1983. The MLS listing reflected the incorrect measurements and size of the tract, as submitted by Ms. Sousa. (P-3, Admission No. 8) III. During May, 1983, Karen Dunn-Frehsee and Paul Winkler (her fiance), contacted Respondents, a real estate salesman associated with Woodlake Realty, Inc., about purchasing a home. After Respondent showed them a house they were interested in, Ms. Dunn-Frehsee and Mr. Winkler decided that what they really wanted was to buy land on which they could build a residence. They told Respondent that they would need a minimum of two acres since they had two horses: local zoning requirements required at least one acre of land per horse. (Admission No. 10, Testimony of Dunn-Frehsee) Respondent checked MLS and found the listing (containing the incorrect measurements and size) of the Biansco property. He showed the land to Ms. Dunn- Frehsee and Mr. Winkler, who liked it and decided to make an offer. (At that time, Respondent was unaware that the MLS listing erroneously described the tract to be 297' x 353', containing 2.4 acres, when in fact it was 297.47' x 235.34', containing approximately 1.61 acres.) On or about May 5, 1983, Respondent prepared a "Contract for Sale and Purchase" containing the offer of Ms. Dunn-Frehsee. After she signed it, it was presented to the Bianscos, who subsequently accepted it. (Admission No. 12, P- 1) The Contract for Sale and Purchase contained, on the attached addendum--a correct legal description of the tracts as the description was taken from the listing agreement, not the erroneous MLS listing. Prior to closing, Respondent contacted Ms. Dunn-Frehsee several times to advise her regarding efforts being made by Lawyers Title Insurance Company to locate the prior owner of the property and secure a quitclaim deed covering a 30-foot strip of land bordering Arizona Street on the east side of the property. He was still unaware of the discrepancy between dimensions of the property contained on the MLS listing and the Contract of Sale. He did not tell Ms. Dunn-Frehsee that he had personally measured the property, or that he had confirmed the accuracy of the listing information. He was concerned only with the problem of obtaining access to the property through the 30-foot strip bordering Arizona Street. Although he told Ms. Dunn-Frehsee that he thought she was getting 2.7 or 3.0 acres by virtue of the additional strip of land which was to be quitclaimed to her at no additional cost, this belief was based on his reasonable assumption that the original tract contained 2.4 acres, as represented by the listing agents (Mary Sousa and Peter Sergis of Apollo Realty) and reflected in the Multiple Listing Book. Respondent also contacted Mr. Winkler, but similarly, did not represent to him that he (Respondent) had personally measured the property or confirmed the MLS information. (Testimony of Respondent) Prior to the closing, Respondent discussed with Ms. Dunn-Frehsee the need to order a survey of the property. She then ordered a survey, which was completed a week and a half before closing. After picking it up, Respondent telephoned Ms. Dunn-Frehsee. There is conflicting testimony about the conversation which ensued. Respondent testifies that he telephoned her and asked if she would like him to deliver the survey to her house or mail it to her, or if she would like to pick it up at his office. (TR-30) Ms. Dunn- Frehsee, on the other hand, testified that Respondent telephoned her stating that he had looked the survey over and there was no reason for her to drive out to his office to pick it up, that he would bring it to the closing. (TR-48) Neither version is more plausible or believable than the other. Both Respondent and Ms. Dunn-Frehsee have a discernible bias: Respondent faces charges which could result in the revocation of his professional license; Ms. Dunn-Frehsee has sued Respondent for damages resulting from her purchase of a tract of land which was smaller than what she was led to believe. Since the burden of proof lies with the Departments, the conflicting testimony is resolved in Respondent's favor as it has not been shown with any reliable degree of certainty that Respondent told Ms. Dunn-Frehsee that he had looked the survey over and that there was no need for her to examine it before closing. Both witnesses agree, however, and it is affirmatively found that Ms. Dunn-Frehsee agreed that Respondent should bring the survey with him to the closing, which was imminent. The surveys prepared by Hugh Smith, a registered land surveyors correctly showed the property to be approximately 235.33' x 297.43', but did not indicate the size by acreage. (Admission No. 20, P-2) At closings on or about June 23, 1983, Respondent showed the survey to Ms. Dunn-Frehsee. Ms. Dunn- Frehsee questioned the measurements as not being the same as she recalled being on the MLS listing. Neither Ms. Sousa nor Respondent, both of whom were in attendance, had a copy of the MLS listing so that the measurements on the two documents were not compared. (Admission No. 22-23) Ms. Dunn-Frehsee chose to close the transaction anyway after her questions regarding the property were apparently resolved to her satisfaction by Kathleen Van Mier, the agent for Lawyers Title Insurance Company which was handling the closing. Ms. Dunn-Frehsee signed a contingency statement indicating that all contract contingencies had been satisfied and that she wished to proceed with the closing. (TR-4O-41; 77-78) Respondent was misinformed regarding the dimensions and size of the property by the listing agents, Mary Sousa and Peter Sergis of Apollo Realty, who had provided inaccurate information to the Multiple Listing Service. Respondent reasonably relied upon the listing information and the representations of the listing agents concerning the size of the property. In his discussions with Ms. Dunn-Frehsee and Mr. Winkler, he drew reasonable inferences from such (incorrect) representations. He did not intentionally mislead anyone. It has not been shown that, under the circumstances, he failed to exercise due care or that degree of care required of a licensed real estate salesman. Nor has it been shown that he violated any professional standard of care adhered to by real estate salesmen and established by qualified expert testimony at hearing.
Recommendation Based on the foregoing it is RECOMMENDED: That the administrative complaint, and all charges against Respondent be DISMISSED for failure of proof. DONE and ORDERED this 11th day of October, 1985, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1985.
