Findings Of Fact From November 1979 to October 1980, and again from October 1982 to May 3, 1983, the Respondent, Ron Adams, who operated Adams Investigations, Inc., in Orlando, Florida, employed George S. Williams as, among other duties, a repossessor for the sum of $400 per week. During both periods of employment, Mr. Williams held no type of license covered or provided for by the provisions of Chapter 493, Florida Statutes. This fact was known by Mr. Adams, who admitted it to Mr. Willie Rister, an investigator for the Petitioner. At the time of the hearing, Respondent held a valid Class "A" license, a Class "C" license, and a Class "E" license. At the times in question, Respondent held at least a valid Class "A" license. No evidence was presented as to the "C" license, and the "E" license was not available until sometime in 1981. The Florida Legislature revised Chapter 493, Florida Statutes, effective July 1, 1980, to require a Class "E" or "EE" license for repossessors. Prior to that time, holders of a Class "A" or "C" license could repossess. The Division of Licensing was not prompt in notifying individuals of the change to the law or in making application forms available to the public. However, during the period leading up to the passage of the legislation in question, and afterwards, Respondent Adams served on the Private Security Advisory Council, an advisory body of the Department of State, to serve as liaison between the agency and the regulated industry. Members of this body generally are very familiar with the rules and regulations of the industry; and, according to Ms. Gast, who worked with the Council and who knows Respondent, Mr. Adams was instrumental in drafting the repossessor rules. Ms. Gast recalls that when the Council took the position that the Department of State should not allow credit for unlicensed experience in determining if an application meets the criteria for licensure as a repossessor, Respondent was present and voted for that position. Therefore, he was intimately familiar with the new legislation, its history, and its intended application.
Recommendation That Respondent pay an administrative fine of $100.
The Issue The issue in this proceeding is whether Willie Daniels violated sections 489.129(1)(d) and (e) F.S., as alleged in the administrative complaint, by willful violation of a local building code and aiding and abetting an unlicensed person to evade any provision of Chapter 489. At the hearing the material facts were uncontroverted.
Findings Of Fact Willie F. Daniels is now, and was at all times relevant, licensed as a roofing contractor by the Florida Construction Industry Licensing Board. He holds license #RC 0027954 and does business as "Daniels Roofing', a sole proprietorship. He has been doing roofing in the Orlando, Florida area since 1954. Willie Daniels first met Thomas Dahlman when Dahlman came to his house trying to sell windows. Dahlman told him that he did all kinds of work, including windows, roofing and painting. Later Dahlman called him and said he had a roofing job that he wanted Daniels to do and that he would take him out to the house. The house belonged to Chris Correa and was located at 4421 Sebastian Way, in Orlando. Dahlman bought the materials for the job and Willie Daniels provided a day and a half labor on the roof. He was paid approximately $600.00 by Dahlman. Chris Correa was initially contacted by an agent for Thomas Dahlman who was trying to sell solar heating devices. When she told him she really needed a new roof, he said his boss could arrange that. Dahlman arranged for her loan to pay for the roof and arranged for the labor to be done by Willie Daniels. Chris Correa paid Thomas Dahlman $3,000 for the roof. About three days after the roof was completed, on February 18, 1986, she signed a contract for the roof work with Dahlman Enterprises, Inc. The contract is signed Thomas Dahlman and by Ms. Correa. Willie Daniels was not a party to the contract. The City of Orlando has adopted the Standard Building Code, including the following provision relating to permit applications: Section 105 - Application for Permit - When Required Any owner, authorized agent, or contractor who desires to construct, enlarge, alter, repair, move, demolish, or change the occupancy of a building or structure, ... or to cause any such work to be done, shall first make application to the Building Official and obtain the required permit therefor. * * * No permit was applied for or obtained for the roofing job on Chris Correa's house. Willie Daniels assumed Thomas Dahlman was a licensed contractor because Dahlman told him he was in the business of doing roofing, painting, installing windows and similar work. He did not ask Dahlman if he was licensed. Dalhman was, in fact, not a licensed contractor.
The Issue The issues remaining to be resolved in this proceeding concern whether the above-named Petitioner is a "small business party" as described in Section 57.111(3)(d)1.a. b. and c., Florida Statutes (2007); whether the action of the above-named Agency in the underlying case was substantially justified in law and fact and whether an award of attorney's fees and costs would be unjust.
Findings Of Fact In the instant case the Respondent Agency (Department) does not dispute the amount of attorney's fees and costs sought in this proceeding and does not contest that the Petitioner is a prevailing party. Moreover, the Department admits that it was a real party in interest in the underlying proceeding involving the Administrative Complaint and was not merely a nominal party. The parties also waived an evidentiary hearing in this attorney fee proceeding. The parties, rather, submitted memoranda and affidavits in support of their respective positions. The present Petition for Attorney's Fees and Costs is based upon the above-referenced Administrative Complaint action brought against Wittmer and JR. Wittmer's Remodeling, Inc., by the Department, which came before the Division of Administrative Hearings by a request for formal hearing filed by Wittmer. Prior to filing that Administrative Complaint the Department performed an investigation related to the Complaint which had been filed by Kenneth Hatin of Palm Coast, Florida, against Wittmer. The Complaint by Hatin alleged that on August 10, 2005, he and Wittmer had entered into a contract for the building of an addition to the complainant's home in Palm Coast, Florida. Hatin had alleged and testified at hearing that Wittmer was unlicensed to perform the work under the contract and had been paid in excess of $30,000.00 for the project. Hatin maintained that Wittmer had abandoned the job before completion and that he had to hire another person or entity to complete the work, at further expense. The Department considered the results of its investigation, in the form of an investigative report, and considered the investigative file it had developed concerning Hatin's complaint. This included the original contract on JR. Wittmer's Remodeling, Inc.'s, stationary, signed by Wittmer, as well as copies of original checks amounting to approximately $30,000.00 written to Wittmer and/or his company or business. It also considered a copy of the local licensing records concerning Wittmer, revealing an expired occupational license, as well as records of the Department showing that Wittmer was unlicensed as any sort of contractor in the State of Florida. The Department also considered various invoices and receipts regarding the work contracted by complainant Hatin with another person or entity, to finish the job purportedly abandoned by Wittmer. During the investigation, the complainant and the complainant's fiancée were interviewed and made no mention of any familial relationship or friendship relationship between Wittmer and the complainant and his family members at the time of the investigation. Wittmer himself was interviewed by the investigator and did not mention any familial or personal relationship he had with the complainant or the complainant's family. The familial or friendship relationship between Wittmer and the complainant and the complainant's family only arose through the evidence adduced at the hearing. That evidence became a significant portion of the reason for the Findings of Fact and Conclusions which resulted in the Complaint against Wittmer being ultimately dismissed. JR. Wittmer's Remodeling, Inc., was dissolved by the State of Florida, Department of State, Division of Corporations on September 16, 2005, for failure to file required annual reports or Uniform Business Report. This fact was confirmed by Wittmer's affidavit submitted on January 18, 2008, in this proceeding, attesting that his corporation was dissolved and that it ceased business due to "financial hardship of the business." As a result of the hearing it was determined in the Recommended Order (with Findings of Fact adopted in the Final Order) that Wittmer performed work on the subject construction project without making any profit. It was performed, in essence, as a cooperative project between family and friends of Wittmer, in the sense that Wittmer's fiancée was related to the complaining witness's family and/or they were close friends. The circumstances established by preponderant evidence did not show that Wittmer was actually performing contracting, as defined in the above-referenced statutory authority underlying the charges in the Administrative Complaint. It was also determined, based upon the preponderant evidence at that hearing, that Wittmer made no profit on the project after paying all the subcontractors. The Department, in essence, adopted the Recommended Order of the Administrative Law Judge (with non-dispositive modifications of several Conclusions of Law) and entered a Final Order dismissing the charges in the Administrative Complaint. The subject Petition for Attorney's Fees and Costs was thereafter filed and this case ensued. The Department proceeded against Wittmer by naming as Respondents, in the underlying, case JR Wittmer's Remodeling, Inc., which corporation had actually already been dissolved at the time of the filing of the Administrative Complaint. It also named in that Complaint, and proceeded against, Willis Wittmer, Jr., personally. The Petitioners herein have established that Wittmer never had more than 25 full-time employees or a net worth in excess of two million dollars, whether functioning as JR Wittmer, Jr., an individual or as JR Wittmer's Remodeling, Inc. The Petitioner has also established that the construction contract at issue in the underlying case was entered into by the Petitioner herein under the name "JR Wittmer's Remodeling" and not "JR Wittmer's Remodeling, Inc." Moreover, that contact was not signed by Mr. Wittmer as president of JR Wittmer Remodeling, Inc. Aside from the fact that the Department filed the original Administrative Complaint against JR Wittmer Remodeling, Inc., it also named JR Wittmer individually as a Respondent in that Administrative Complaint, so he had defend against the action personally, regardless of the question of whether the corporation was in legal existence at the time of the filing of the Administrative Complaint. The evidence, as referenced above, shows that he met the requirements of having less than 25 full- time employees and a net worth of less than two million dollars. Thus, the totality of the evidence shows that Mr. Wittmer has standing, as the sole proprietor of an unincorporated business, to pursue the subject attorney's fee claim as a sole proprietor, even if not as a corporation or the president of the originally named, but now dissolved corporation. The Petitioner contends that the Department should have recognized the lack of a factual basis for the Administrative Complaint and, before finding probable cause, should have been able to determine that the construction arrangement between Wittmer and Hatin did not meet the legal definition of contracting or contracting services based upon the familial/friendship relationship of the protagonists. The Department, however, conducted a reasonable investigation and has been shown to have had a reasonable basis to determine, before hearing, that contracting and contracting services had been, in a legal sense, performed by Wittmer, based upon the results of its investigation (interviews, etc.). This is especially the case since Wittmer himself, when interviewed, had not revealed such exculpatory facts to the Department.
The Issue The issues to be resolved in this proceeding concern whether the Respondent violated Section 489.127(1)(f), Florida Statutes, by contracting without a license.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating entry into and the practice of contracting. It is also charged with discipline of licensed contractors who violate the various provisions of Chapter 489, Florida Statutes and the related rules, as well as those who practice contracting without appropriate licensure or certification. The Respondent, by his own admission and by stipulation, was not registered, certified, or otherwise licensed by the State of Florida for engaging in the practice of contracting, at pertinent times. On or about February 21, 1996, at her request, the Respondent provided Betty Thompson with a proposal to remodel and complete a new addition to her home at 110 Granger Street, Panama City Beach, Florida. The agreed-upon contract price was $26,685.00. Ms. Thompson signed the proposal, which contemplated construction of an addition in the amount of 593 square feet, at a price of $45.00 per square foot or $26,685.00. The price included all concrete, plumbing, and electrical work and installation. The terms of the contract stated that the price included the materials and the labor involved. The Respondent also obtained plans for the addition on Ms. Thompson's behalf. The plans depict the Respondent's name thereon as the contractor for the project. The Respondent then instructed Ms. Thompson to obtain the necessary building permit, which she did. The Respondent obtained several laborers to perform work on the project, including Eddie George, his son Shannon George, and Tim Polston. He introduced them to Ms. Thompson as the men who would perform most of the labor on the addition to her home. He hired these men as laborers and not Ms. Thompson. Later when he abandoned the job she hired them, or at least some of them, to finish the job. Eddie and Shannon George performed the majority of the actual labor on the project under the Respondent's supervision. Mr. Polston performed the electrical work. According to Mr. George's testimony they were supervised by the Respondent just as they would be by any contractor. They were paid by the Respondent by the hour. The Respondent stopped at the job site frequently and discussed the job's progress with Ms. Thompson. She addressed any questions and concerns to the Respondent, who conveyed any necessary information to his foreman, Eddie George. The Respondent also performed some construction work himself. The Respondent helped tear out a back wall of the house, set two (2) doors, did some painting, and did some air conditioning work on the project. He also checked the job site each day, and checked to see what materials were needed, and bought and delivered the needed materials. The Respondent received intermittent payments from Ms. Thompson, which he used to pay for the materials he purchased for the project. He also used a portion of those payments to pay his laborers. On or about May 6, 1996, the Respondent abandoned the job. This occurred shortly after he first met with Ms. Thompson's father who was paying for the job. Apparently there were some disagreement or issue raised between them and the Respondent never appeared at the job site again. After the Respondent abandoned the project, Ms. Thompson was unable to get another contractor to complete the job. She thereupon employed the laborers who had already worked on the job, the Georges and Tim Polston, to continue working there, which they agreed to do. It was only after the Respondent abandoned the job that Ms. Thompson paid the laborers directly herself. The addition that the Respondent contracted to construct has numerous construction flaws, including, but not limited to, malfunctioning air conditioning in the addition, improperly installed flooring, gaps between the old and new roofs and the old and new exterior concrete block work, as well as a leaking roof. These problems arose during the construction which occurred under the Respondent's supervision.
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, therefore, RECOMMENDED: That a Final Order be entered by the Florida Construction Industry Licensing Board, finding that the Respondent violated Section 489.127(1)(f), Florida Statutes, by contracting without proper licensure or certification, and imposing a fine of $5,000.00. DONE AND ENTERED this 1st day of April, 1998, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 1998. COPIES FURNISHED: John O. Williams, Esquire Boyd, Lindsey, Williams, and Branch, P.A. 1407 Piedmont Drive, East Tallahassee, Florida 32317 Sher L. Allan, Esquire 731 Oak Avenue Panama City, Florida 32402 Rodney Hurst, Executive Director Construction Industry Licensing 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Linda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007
