Recommendation Based on the foregoing finding of fact and conclusions of law, it is RECOMMENDED that Respondent, Harold D. Biggs, be found guilty of violating Subsections 409.129(1)(j), 489.113 (2)and (3), and 489.117(1) and (2), Florida Statutes, and be given a public reprimand and pay a $500 fine; all other charges should be DISMISSED. DONE and ENTERED this 23rd day of November, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER 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 23rd day of November, 1982.
The Issue Whether Respondent's License as a residential pool contractor should be suspended for alleged violation of Section 468.112(7), Florida Statutes. The Respondent did not appear at the hearing although proper notice thereof had been furnished under date of February 11, 1976 to him by the hearing officer. Accordingly, the hearing was conducted as an uncontested proceeding.
Findings Of Fact Respondent has been licensed as a registered pool contractor by the Florida Construction Industry Licensing Board since June 20, 1974. The license was not renewed for 1975/76 (Exhibit 4). Respondent filed a Voluntary Petition in Bankruptcy in the U.S. District Court for the Northern District of Florida, Bankruptcy No. TBK 75-25, on March 13, 1975 (Exhibit 5).
Recommendation That the registration of William R. MacKinnon as a residential pool contractor be suspended until such time as he meets the qualifications and other requirements for renewal of registration and applies therefor. DONE and ENTERED this 5th day of April, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 1976. COPIES FURNISHED: David Linn, Esquire 217 South Adams Street Tallahassee, Florida 32301 Mr. William R. Mackinnon Route 3, Box 584C Tallahassee, Florida 32303
Findings Of Fact Gary Antonissen holds residential contractor's license No. RR 0029550 and at all times here relevant was the qualifying contractor for Rogart Development Corp. (Rogart). He received this license in 1976. Rogart is owned by Arthur Antonissen, the father of Respondent. Arthur Antonissen constructed residences in Long Island, New York from 1962 until he moved to Florida in 1976, shortly before Gary was licensed. In New York he constructed an average of 80 homes per year. Rogart commenced doing business in 1976 with Gary Antonissen as the qualifying contractor. Rogart generally developed tract homes and used subcontractors for the work. Upon arrival in Florida in 1976, Rogart found subcontractors readily available in Collier County and work progressed satisfactorily. However, in late 1977 and 1978 as the construction industry expanded Rogart found subcontractors more difficult to get to do the work they had previously done. This resulted in Rogart delaying the completion of homes from the four months promised the buyer to as much as 18 months and in inferior workmanship and complaints from buyers. Although Gary Antonissen was the qualifying contractor for Rogart, it clearly appears that Arthur Antonissen directed the operations of the company and actually supervised the construction of many of the homes. Between August 1977 and August 1978, Rogart built 80 homes. It was during this period that Rogart began having trouble with subcontractors and buyers started complaining to the Collier County Building Department and to the Collier County Contractors Licensing Board. The Collier County building inspectors found numerous instances of poor workmanship in the construction of residences and some of these were corrected by the contractor. Three buyers of homes from Rogart testified to defects in the construction of their homes and of their efforts to get Rogart to correct these defects. These workmanship deficiencies were corroborated by the Collier County Building Inspector and were not rebutted by Respondent. Differences arose between buyers and developer resulting from the former seeing cabinets or equipment in a model house and expecting the same in the house they bought, whether the plans actually called for it or not. The one contract entered into evidence did not have attached thereto the plans and specifications the contract stated would be attached, and the testimony was silent whether or not the buyers actually received a copy of the plans and specifications for the home each purchased. No evidence was submitted that code violations existed in the construction of these homes. All were issued certificates of occupancy and the Collier County Building Inspector testified that a certificate of occupancy would not be issued if code violations existed. Gary Antonissen was not a qualified carpenter, electrician or plumber, nor did he have the mechanical skills needed to himself correct defective workmanship left by the subcontractors. Supervising the construction of some 50 homes under construction at one time taxed his abilities to the utmost. Following several meetings by the Collier County Contractors Licensing Board at which complaints were received from buyers of Rogart's homes, the Board on August 15, 1978 voted to revoke the Certificate of Competency of Gary Antonissen (Exhibit 3) Although the Collier County Contractors Licensing Board revoked Respondent's license for, inter alia, departing in material respect from plans or specifications without the consent of the owner, no evidence of such departure was here presented. No plans or specifications were submitted into evidence from which a departure there from could be ascertained.
The Issue Whether Petitioner, William P. Pearson, Jr., is entitled to recover attorney's fees and costs pursuant to the Florida Equal Access to Justice Act, Section 57.111 Florida Statutes and Rule 221-6,35. BACKGROUND AND PROCEDURE At hearing, Petitioner presented the oral testimony of William P. Pearson, Jr. and had admitted five exhibits. Respondent presented the oral testimony of Richard Hartog, Investigator, and Douglas A. Shropshire, the Department of Professional Regulation's senior attorney for the prosecution of all Florida Construction Industry Licensing Board cases, and had admitted five exhibits. At close of formal hearing, Petitioner elected to make oral closing argument and to file no post-hearing proposals. Respondent elected to file a transcript of proceedings and written proposed findings of fact and conclusions of law within 10 days of filing transcript. Respondent's proposals are ruled on within the appendix to this recommended order pursuant to Section 120.59(2) Florida Statutes.
Findings Of Fact Petitioner seeks to recover attorney's fees and costs associated with his defense against charges contained in an administrative complaint filed and prosecuted by the Department of Professional Regulation which was styled, Department of Professional Regulation, Construction Industrv Licensing Board v. William P. Pearson, Jr., DOAH Case No. 85-0672. The administrative complaint in DOAH Case No. 85-0672 contained two counts. Count I alleged a violation of Section 489.129(1)(c) through violation of Section 455.227(1)(a) Florida Statutes (1983), which statutory section addresses making misleading, deceptive, or fraudulent representations in the practice of the profession of construction. Count II alleged a violation of Section 489.129(1)(d) Florida Statutes (1983) by not complying with the specific escrow requirements imposed by the consumer protection Statute, Section 501.1375(2) Florida Statutes and violation of Section 489.129(1)(m) Florida Statutes (1983), which latter statutory section addresses gross negligence, incompetence or misconduct in the practice of contracting. The state agency was therefore not a nominal party only but was an accusing and principal party. Petitioner seeks an award of attorney's fees in the sum of $3,568.75 together with costs of $11.10. Respondent, in its Amended Response to Petitioner's Amended Motion for Attorney's Fees and Costs, did not challenge the reasonableness of the attorney's fees and costs set forth in Petitioner's affidavit attached and incorporated in his Amended Motion and specifically stipulated to reasonableness and necessity at formal hearing. Accordingly, the foregoing amounts are found to be necessary and reasonable. Pearson Construction Co., Inc.'s domicile during the whole of DOAH Case No. 85-0672's initial prosecution was Charlotte County, Florida. It had no employees other than William P. Pearson, Jr. and his wife, who worked without compensation. William P. Pearson, Jr. was the president and qualifying agent of Pearson Construction Co., Inc. which was a Florida corporation at all times material to the initial prosecution. The combined net worth of William P. Pearson, Jr. and of Pearson Construction Co., Inc. never exceeded two million dollars and presently petitioner Pearson's personal net worth does not exceed two million dollars. In early 1986, prior to initiating this instant fee and costs recovery case, Mr. Pearson failed to update payment of his corporate fees and Pearson Construction Co., Inc. was automatically dissolved by the secretary of State. Respondent Department of Professional Regulation (DPR) notified John Vlasek of its intent to investigate his complaint against Petitioner in late July 1984. DPR's investigation was conducted by Investigator Richard Hartog. Mr. Hartog has been employed by the Respondent since November 1982 and has been its investigator since March 1983. He has a degree in criminal justice and 23 years prior experience as a detective with the Police Department of Nassau County, New York. Investigator Hartog was first made aware of vlasek's complaint against Pearson Construction Co., Inc. by way of a memorandum dated July 16, 1984 received directly from the State Attorney's Office for the 20th Judicial Circuit. Attached to the State Attorney's memorandum was a 6 page consumer complaint form signed by John A. Vlasek. Hartog determined that William P. Pearson, Jr. was the qualifying agent for Pearson Construction Co., Inc. and then telephoned DPR's complaint section in Tallahassee, giving the complaint section the basis of the information received from the State Attorney's Office and statutory citations for alleged violations of sections 489.129(1)(m), 455.227(1)(a) and 501.1375 Florida statutes. His purpose was to obtain a complaint number to continue the investigation. Investigator Hartog personally interviewed Petitioner William P. Pearson, Jr. regarding the allegations underlying Vlasek's complaint. Upon completion of the investigation the Department's investigator prepared an investigative report. The investigative report includes a narrative summary of the investigator's interview with Pearson. The investigative report prepared at the conclusion of Hartog's investigation contains the following findings with regard to the investigator's interview of Pearson: Mr. Pearson states he built a good number of homes a year. Last year he built thirty-nine (39) homes. Mr. Pearson was readvised of the allegations made by Mr. Vlasek, a prospective buyer of one of Pearson's spec homes. Mr. Pearson maintains the reason the house was not completed on June 12, 1984, the date originally stipulated in the contract, was the fact Mr. Vlasek was not in a hurry to have the house completed. Mr. Pearson stated he is not aware of the requirements of P.S. 501.1375, therefore, he did not handle the deposit according to the requirement set forth. The money was used to complete the spec house for Vlasek. Mr. Pearson states he received a letter from the First Federal Savings and, Loan of Charlotte County indicating Mr. Vlasek obtained an extension of his loan commitment with the bank. Mr. Malone, who was present, verifies that such a letter was received by Mr. Pearson. Investigator Hartog personally interviewed Barbara Lowe, a loan officer for the First Federal Savings and Loan of Charlotte County. The investigator interviewed Ms. Lowe to determine "whether the bank had, in fact, sent a letter to Mr. Pearson indicating that an extension to Mr. Vlasek's 45-day loan had been extended." The investigative report prepared at the conclusion of Hartog's investigation contains the following findings with regard to the interview of Ms. Lowe: Barbara Lowe, who states she handled the transaction, states no such letter was mailed to Pearson Construction. It would not be appropriate to grant an extension in this type of action. Mr. Vlasek would be required to enter into a separate agreement for an additional forty-five (45) days thereby nullifying the original commitent. This was not done by Mr. Vlasek, therefore, the original commitment expired 5/31/84. Investigator Hartog personally interviewed Tom Hannon, a loan officer with the First Federal Savings and Loan Association in Charlotte County. The investigative report prepared at the conclusion of Hartog's investigation contains the following finding: Mr. Hannon contacted this office to relate that the loan commitment obtained by Vlasek was for a period of forty-five (45) days between 4/19/84 and 5/31/84. There is no record a thirty (30) day extension was asked for or granted according to the records. Investigator Hartog personally interviewed Jack R. Malone who was a salesman for Pearson Construction Co., Inc. The investigative report prepared at the conclusion of Hartog's investigation relates that Malone stated the deposit money was not required to be deposited in an escrow account but when referred to section 501.1375 Malone stated money might have been given to an attorney, presumably for escrow, and further Malone related that: Mr. Vlasek became very impatient because he said very little was being done to complete his house. He was concerned because the terms of his loan agreement was a commitment which expired June 1, 1984. The completed investigative report as forwarded by the investigator to the Department's legal section consisted, in part, of the following: a three page narrative summary of the investigator' s findings; a copy of the memorandum and accompanying executed consumer complaint form; a First Federal savings and Loan Association loan transfer commitment to John and Madelyn Vlasek; a copy of section 501.1375, Florida statutes; a copy of the April 1984 contract between Pearson Construction Company and John and Madelyn Vlasek reflecting a completion date altered from June 12 to June 1, 1984. Douglas A. Shropshire was the DPR attorney responsible for reviewing the investigative report with regard to making a recommendation to the probable Cause Panel of the Construction Industry Licensing Board. The complaint against Petitioner was a "case of first impression" in that DPR had not previously investigated a complaint alleging a violation of the escrow requirement of Chapter 501, Florida Statutes. As a result of the complaint against Petitioner, Mr. Shropshire requested that a law clerk prepare a memorandum of law with regard to the relationship between Section 501.1375, Florida Statutes and the regulation of licensed contractors under Chapter 489 Florida Statutes. On or about September 21, 1984 the law clerk provided Mr. Shropshire with a two page memorandum of law exploring the relationship between Chapter 501, Florida Statutes and the regulation of the construction industry. The memorandum reached the general conclusion that licensed contractors were subject to the provisions of Chapter 501 Florida Statutes. In preparing his recommendation to the Probable Cause Panel, Shropshire reviewed both Hartog's investigative report with all attachments and the law clerk's memorandum of law. On January 10, 1985 DPR, through Mr. Shropshire, made a probable cause recommendation to the Construction Industry Licensing Board Probable Cause Panel. Prior to January 10, 1985 DPR had provided each panel member with a copy of the DPR's probable cause package. The probable-cause package as reviewed by the Probable Cause Panel consisted of the following: a cover sheet setting forth the Subject's name, case number and statutory violations; a proposed administrative complaint; a copy of the narrative portion of the Department's investigative report. The Probable Cause Panel did not review a copy of the Vlasek-Pearson contract which provided it was not contingent on financing, which provided for forfeit to Pearson of Vlasek's deposit upon Vlasek's default, and which provided for escrow of Vlasek's deposit pending closing of the transaction. However, this item was reviewed by the DPR attorney before making the probable cause recommendation and the copy of this item reviewed showed that the completion date had been altered, allegedly by Malone. Petitioner stipulated to the correctness of the procedure employed in impaneling the Probable Cause panel. Each panel member had the opportunity to review the probable cause package before the Probable Cause Panel was convened. Each panel member had the opportunity to familiarize himself with the probable cause materials prior to the meeting. The Chairman of the Probable Cause Panel was Mr. Roy Adams. Mr. Adams is a certified general contractor. The other probable cause member was Mr. Joseph Richards. Mr. Richards is a pharmacist and is a public member of the Construction Industry Licensing Board. Neither Mr. Richards nor Mr. Adams is an attorney. The Construction Industry Licensing Board is not involved in the investigation or prosecution of a complaint. In making the determination of probable cause the panel members discussed the allegations contained in the complaint with both DPR's prosecuting attorney and their independent advisor from the Department of Legal Affairs. On January 10, 1985 the Probable Cause Panel found probable cause to believe Petitioner violated Chapter 489, Florida Statutes. The panel's finding of probable cause included, but was not limited to, the violations alleged by DPR in its recommendation. The Probable Cause Panel directed DPR to file a formal complaint. On January 16, 1985 DPR's Secretary signed a formal administrative complaint charging Petitioner with violating the provisions of Chapters 455 and 489, Florida Statutes reviewed by the panel plus Section 489.129(1)(d) Florida Statutes. Petitioner denied all the allegations in the administrative complaint and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. On August 20, 1985 a formal hearing was conducted before the undersigned hearing officer. Petitioner interposed the defense that Section 501.1375 Florida Statutes did not apply to him because he had constructed less than 10 houses in the year 1984 despite constructing more than 20 homes per year in most years. Section 501.1375 provides in pertinent part as follows: "Building Contractor" means any person who, for compensation, constructs and sells one-family or two-family residential dwelling units, except for a person who sells or constructs less than 10 units per year state wide. "Developer" means either a building contractor who offers new residential dwelling units for sale or any person who offers a new one-family or two-family dwelling unit for sale except a person who sells or constructs less than 10 units per year state wide. The Recommended Order entered December 20, 1985 found as fact that: On April 12, 1984 John and Madelyn Vlasek contracted with Pearson Construction Company for the purchase of a home in Port Charlotte, Florida. . . .The contract specified a $2,000 escrow deposit on the purchase price of $68,500. On April 12, 1984, the Vlaseks provided Pearson Construction Company with $200 in cash toward the escrow deposit. On April 13, 1984, the Vlaseks provided Pearso Construction Company with a check in the amount of $1,800 toward the escrow deposit. The contract specified the deposit was to be held in escrow pending closing of the transaction. . . .The contract referred to above was not contingent on the buyer obtaining financing. However, the deposit was not placed in escrow as specified in the contract and as required under the terms of the contract. Instead, it was used by the Respondent in purchasing lighting fixtures, carpeting, tiling and other accoutrements in colors and styles selected by John R. Vlasek. On April 23, 1984, the Vlaseks executed the loan transfer commitment. . . .After executing the loan transfer commitment, Vlasek realized that the commitment would expire prior to the June 12, 1984 closing date. Vlasek then notified Pearson Construction Company of the discrepancy between the expiration date of the loan commitment and the actual closing date. Upon being informed of the discrepancy, Jack R. Malone agreed to modify the closing date. Malone expressly modified the contract by changing the closing date from June 12 to June 1, 1984. Vlasek subsequently informed the Respondent of the change of the closing date. When informed of the change, Respondent indicated the home would be substantially completed by June 1, 1984. . . .Vlasek was repeatedly assured by Malone and other members of the construction team (not Pearson) that the home would be completed by June 2, 1984. . . .the Vlasek contract was rescinded . . .Pearson Construction Company, Inc. and William P. Pearson constructed a total of 8, possibly 9 houses during the calendar year of 1984. In most previous years he has constructed in excess of 20 houses per year. The findings and conclusions of law of the recommended order are replete with analyses of credibility of witnesses. The conclusions of law discuss such diverse legal concepts as the differences in actual versus apparent authority and ratification of an agent's/employee's misrepresentations by his employer, reasonable reliance thereon, and whether section 501.1375 should be applied annually (10 houses constructed per year) or upon a pattern of annual house construction (8-9 houses in 1984 versus more than 20 houses each previous year). The recommended order determined that DPR had failed to establish Count I (misleading, deceptive or fraudulent representations) by clear and convincing evidence and found only a "minimal" violation of Section 429.129(1)(m) had been established within Count II due to the petitioner's failure to escrow. By Final Order dated March 17, 1986, the Board adopted the findings of fact in toto. The final order rejected the conclusions of law and dismissed the administrative complaint. No evidence was introduced to indicate or otherwise explain why the Board rejected the hearing officer's conclusions of law.
The Issue Whether or not Respondent has been disciplined by the local Charlotte County Building Department, and if so what, if any, administrative penalty is appropriate.
Findings Of Fact Herman W. Duffus, herein Respondent, is licensed as a registered specialty contractor holding license no. RX 0048193 in the State of Florida. Respondent obtained his local certifications by being "grandfathered" in. At all times material hereto Respondent was so licensed. The Department of Professional Regulation, Construction Industry Licensing Board (herein Petitioner) was and is the State agency charged with the regulation of contractors in Florida. Jeffrey Deboer, a building code official employed by the Charlotte County Building Department, investigated a complaint filed against Respondent by Catherine Wolfe during mid-October, 1987. As a result of Deboer's investigation, Respondent was issued three notices of violation for engaging in the performance of electrical and plumbing contracting without first obtaining a certificate of competency in those two trades, for violating local ordinances and/or the Charlotte County zoning regulations and for engaging in electrical and plumbing contracting without first obtaining a- permit as required. At the time of the above-referenced investigation, Respondent had been hired by Catherine Wolfe to install a sprinkler system to her home in Port Charlotte, Florida. Respondent holds several local licenses to engage in the trades of carpentry, masonry, aluminum and installation of sprinkler systems. However, he is not licensed to engage in electrical and plumbing contracting. Following Deboer's issuance of the three citations to Respondent on October 16, 1987, a hearing was scheduled with Respondent before the Charlotte County Licensing Board on December 3, 1987, at which hearing Respondent attended. Respondent was found guilty of engaging in electrical and plumbing contracting without a license, violating local ordinances and the Charlotte County Zoning Regulations and failing to obtain a permit as required to engage in electrical and plumbing work for the work he did for Catherine Wolfe. Specifically, Respondent was found guilty of violating Ordinance 83-04, Section 10, Ordinance 83-04 amended by 84-15, Section 2, SSA, 10 and Ordinance 83-04 amended by 83-11, Section 2(a), Charlotte County Ordinances. As a result of those violations, Respondent's sprinkler system license was suspended for 60 days by the Charlotte County Building and Licensing Board. Prior to the above-referred incident, Respondent had been previously disciplined by Charlotte County for doing work outside the scope of his license in February, 1985 and as a result thereof, his aluminum and carpentry licenses were suspended for 30 days. Finally, Respondent was previously disciplined by Petitioner during March, 1986. (Petitioner's Exhibit 5). After Respondent was cited for violating the Charlotte County Ordinances in December 1987, he engaged the services of a licensed electrical contractor and has paid the requisite fee to correct the items for which he was cited and found guilty of violating to include payment of the requisite fees for obtaining the permits. Respondent is 76 years old and is semi-retired although he needs to continue his livelihood in contracting to satisfy his financial obligations.
Recommendation Based on Respondent's age and demonstrated need to continue practicing his livelihood in the construction business, his willingness to, and in fact, the correction of the electrical problems for which he is now being cited, such factors are herein considered in mitigation of penalty. Based thereon, and in view of the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner enter a final order imposing an administrative fine against Respondent in the aggregate amount of $1,000 which fine shall be payable by Respondent to Petitioner within 30 days of entry of the final order. Further, to insure payment of the fine, the final order shall provide that Respondent's license shall be suspended, effective 30 days from the date of the final order, for a period of 30 days and provided the administrative fine is paid within the required time, the suspension will not be imposed. If the fine is paid after the 30 days but during the effective period of suspension the suspension will be suspended when paid. 1/ DONE and ENTERED this 26th day of July, 1989, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 26th day of July, 1989.
The Issue The basic allegations of the complaint having been proven or admitted, the sole question at hearing was one of mitigation.
Findings Of Fact Rivers is a licensed general and a licensed pool contractor. All the complaints against Rivers arose in relationship to his pool contracting activities. Rivers did begin construction of two pools in Levy County without first obtaining a building permit as required by the Levy County Building Code, a certified copy of which was identified by the Levy County Building official. Rivers paid a late fee in both instances. Although in one instance all inspections were made, in the second instance no inspections were possible because construction was essentially complete when the construction was discovered by the Levy County Building official. Rivers did fail to pay materialmen on two pools although he received payment in full for the jobs. His failure resulted in materialmen's liens being placed on the property, although Rivers provided each owner a written statement that all bills had been paid. Rivers admitted that he had not paid the materialmen because he lacked funds to do so. His contract with both parties for construction of a specified pool contained a provision stating that he would provide them an affidavit that all labor and material had been paid prior to receipt of final payment on the contract.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Residential Pool Contractor's License and General Contractor's License of Norman Rivers be suspended for a minimum of ninety (90) days and that thereafter be reinstated upon his satisfying the Board of his ability to meet his financial obligations. DONE and ORDERED this 15th day of September, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488 9675 COPIES FURNISHED: Mr. J.K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211 Mr. Norman Rivers 1710 South East 19th Street Ocala, Florida 32670
The Issue The issue posed for decision herein is whether or not the Respondent has engaged in conduct which warrants the Board to take disciplinary action as set forth in its Administrative Complaint.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, arguments of the parties and the entire record compiled herein, the following relevant facts are found. The pertinent complaint allegations are that: Respondent willfully and deliberately disregarded and violated the building codes or laws of this state or its cities, counties or municipalities. Acted as a contractor under a name different from his registered certification. Abandoned a construction project. Materially failed to comply with the provisions of Chapter 468, Florida statutes. 1/ Frank Daniele, Respondent, is a registered General Contractor who holds license No. RG 0009465, which is currently active. On October 24, 1977, Respondent entered into a contract with Mr. and Mrs. Howard Heil to construct a residence for the sum of $75,000.09 in Lee County, Florida. (Petitioner's Exhibit 2.) On December 27, 1977, Respondent, through the entity of D & D Construction Company, applied for and obtained a building permit to construct the Heils' residence. Respondent has qualified D & D Construction Company with the local Lee County Board. The events which are the subject of this complaint occurred in Lee County. (Testimony of John Viking, Petitioner's investigator assigned to investigate the complaint filed by the Heils.) On November 11, 1977, Mrs.. Theresa Heil paid Respondent a fee of $5,000.00 to commence construction of their residence. The Heils paid Respondent two additional payments in the amount of $10,500.00 each on January 30, and March 13, 1978. When Respondent and the Heils entered into the agreement for the construction of their residence the Heils advised Respondent that they wanted parts of two models which the Respondent had plans for, the Amhurst and the Victoria. Respondent attempted to comply with the Heils' request and, in so doing, prepared a set of drawing plans which were submitted to the Heils at their permanent residence in Dumont, New Jersey. According to the plans and specifications submitted to the Heils, the total square footage of the living area was approximately 3,172 plus an additional 520 square feet for the unheated area. (Petitioner's Exhibit 5) The Heils visited the construction site after Respondent had completed the framing chase of the construction. The Heils inspected the Respondent's progress to that point and were pleased with the construction. However, they wanted the entrance area (foyer) enlarged. Respondent explained the difficulty he would encounter in removing various partitions and wall plates after they had been erected. Respondent reluctantly agreed to go along with the Heils' desire to enlarge their home on an "at-cost" basis. The Heils disagreed and Respondent counter-offered to do the enlargement if the Heils would defray one-half of his cost for the enlargement. According to Respondent's undisputed testimony, the Heils requested an enlargement which would bring the total square footage of the house to approximately 5,400 square feet. The parties were unable to independently resolve their differences and the Heils engaged the services of James Humphrey, a local attorney in Fort Myers. Attorney Humphrey was called upon to act as trustee for the disbursement of the remaining monies due Respondent for the completion of the Heils' residence. During approximately July of 1979, Respondent and Attorney Humphrey disagreed with the progress of construction and the disbursement of funds. All work ceased on the project by Respondent after Attorney Humphrey had disbursed approximately $17,500.00. Respondent does not dispute the amount of money paid him by the Heils and their trustee, Attorney James Humphrey. He credibly testified that he endeavored to construct the residence for the Heils within the limits of the funds disbursed him; however, Attorney Humphrey was "very slow in disbursing funds as construction was completed". He (Respondent) also emphasized the fact that he was operating with limited funds and further weakened his financial wherewithal by attempting to enlarge the Heils' residence over and above that which he originally agreed to in an effort to satisfy the Heils. After reviewing the entire testimony and the documents compiled herein relating to the Heils' complaint, the undersigned is of the opinion that the Respondent's version of the events surrounding the Heils' complaint is more credible than the version attested to by Mrs. Heil. For example, Mrs. Heil testified on direct examination that there were no change orders in the project; however, Respondent's undisputed testimony is that the Heils requested and he reluctantly agreed to enlarge the foyer of their residence after the framing phase of the construction was complete. Respondent also testified that the total square footage of the Heils' residence as agreed upon in the contract was approximately 3,483 square feet, 2/ whereas subsequent to the modifications and changes requested by the Heils, the total square footage of the residence was increased to approximately 5,400 square feet. (Testimony of Heil and Petitioner's Exhibit 5.) Finally, Mrs. Heil made much of the fact that she had to pay an additional $1,500.00 for the purchase of a central vacuum system, whereas a review of the contract entered into between the parties revealed that that was one of the items to be purchased "by owners at contractor's cost, if desired". (Petitioner's Exhibit 2, paragraph 23.) Respondent made known to the Heils his inability to complete their residence, as enlarged, without an adjustment in the contract price. When the Heils refused, Respondent had just cause for refusing to complete their residence with the modifications without an adjustment in his contract price. For all these reasons, it is concluded that the Respondent is not guilty of abandonment of a construction project as set forth and defined in Section 468.112(2)(h), Florida Statutes. 3/ I shall so recommend. Maxine Allred, an employee of the Lee County Code Enforcement Licensing Complaint section, appeared and testified at the hearing. Based on Ms. Allred's review of the pertinent inspection documents respecting the Heils' residence, Respondent's work was satisfactory and at each inspection stage the work passed inspection. During 1977 through December 30, 1978, Respondent held a local Lee County registration with D & D Construction Company listed as the qualifying entity. There is no record that the Respondent was suspended by the Lee County Board of Construction as alleged. To the contrary, the Lee County Board advised the Heils by letter dated May 20, 1978, that Respondent's work was satisfactory and in compliance with Code specifications. (Testimony of Ms. Maxine Allred.) Although Ms. Allred testified that in order for Respondent to renew his license, in view of the hiatus between the date that his license expired, i.e., December 30, 1979, and the present time, it would be necessary for Respondent to take a "block exam" and prove his proficiency before the Board, there was nothing in that testimony which would tend to indicate that this requirement was occasioned by anything other than the mere lapse of time since the expiration date of his license. In this regard, Respondent testified that he had in fact passed the required block exam; however, he had not applied for licensure inasmuch as he was merely completing on-going Projects which were commenced during a period in which he was licensed by the local Lee County Board. Finally, Respondent closed by asserting that he would have completed the Heils' house even with the enlargements had payments been timely made as construction progressed. The soaring costs of construction both in terms of labor and materials forced Respondent to halt activity on this project for nonpayment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: The Administrative Complaint filed herein be DISMISSED IN ITS ENTIRETY. ENTERED this 30th day of April, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, 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 30th day of April, 1980.
Findings Of Fact At all times material to these proceedings, Respondent Farrall was licensed as a certified general contractor in Florida, and held license number CG C040234. In addition, the Respondent was licensed as a certified roofing contractor and held license number CC C024398. Mr. Farrall was the qualifying agent for Sunmaster Roofing Company. On May 25, 1987, Sunmaster Roofing Company entered into a contract with Clarence A. Miller and Emily Miller to reroof their residence in Naples, Florida. After the project was completed, Mr. and Mr. Miller filed a complaint with the Collier County Contractors' Licensing Board on December 7, 1987. Essentially, the complaint alleged as follows: 1) that the contractor abandoned the job without adequately completing construction; 2) that the roof materials were incorrectly installed; 3) that the contractor failed to obtain a building permit; and 4) that the contractor failed to adequately perform the contract due to his failure to correct faulty workmanship on the job. On December 11, 1987, copies of the complaint and a notice of hearing was sent to Respondent Farrall by certified mail to two different addresses. The items were promptly received at both locations. On January 15, 1988, the Respondent acknowledged that he was personally aware of the hearing scheduled for January 20, 1988. The Respondent requested a continuance until after January 29, 1988, because he had to attend to urgent family matters which required his presence in Canada. A continuance was not granted, and the hearing proceeded as scheduled. The Respondent was aware that the hearing was not continued prior to his departure for Canada. On January 20, 1988, a hearing was held, and the local board received evidence regarding the Miller complaint. As a result of the hearing, the local board found that the Respondent violated specific county ordinances in the following manner: by abandoning the job without legal excuse; disregarding or violating the building code by failing to obtain a building permit; and by failing to make good, faulty workmanship obviously performed in evasion of performance of the contract. The Respondent was disciplined by the Collier County Contractors' Licensing Board on January 20, 1988. His permit privileges were suspended in Collier County until the contractor makes restitution and appears before the Board for reinstatement. The Respondent was given fifteen days to appeal the decision. The Respondent personally received a copy of the disposition of the hearing by certified mail on January 28, 1988. An appeal was not taken of the decision.
Recommendation Based upon the foregoing, it is recommended that the charges set forth in the Administrative Complaint against the Respondent, John W. Farrall, in Case No. 89-3291 be DISMISSED. RECOMMENDED this 15th day of February, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 February, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3291 The proposed findings of fact set forth in Petitioner's proposed recommended order are addressed as follows: 1. Accepted. See HO #1. 2. Accepted. See HO #2. 3. Accepted. See HO #1 and #2 4. Accepted. See HO #8 and #9. 5. Accepted. See HO #8. Rejected. Irrelevant to the charges filed. Rejected. Irrelevant to the charges filed. The proposed findings of fact filed by the Respondent are addressed as follows: Accept the first two sentences. See HO #1. The rest of paragraph 1 is rejected as improper argument which is not based upon material evidence presented at hearing. Accepted. See HO #2. Rejected. The issue in this proceeding involves the discipline by the local government board and not the underlying facts upon which the board based its findings. Immaterial. 4. Rejected. Immaterial. See above. Rejected. Rejected. Rejected. Irrelevant. Irrelevant. Irrelevant. Rejected. Rejected. Irrelevant. Irrelevant. Rejected. Rejected. Rejected. Irrelevant. Irrelevant. Contrary to fact. See HO #6. Rejected. Rejected. Contrary to Irrelevant. fact. See HO #9. COPIES FURNISHED: Jack M. Larkin, Esquire 806 Jackson Street Tampa, Florida 33602 John W. Farrall 316-2 Tudor Drive Cape Coral, Florida 33904 Fred Seely, Executive Director Construction Industry Licensing Board 111 East Coastline Drive, Room 504 Jacksonville, Florida 32202 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792
The Issue At issue herein is whether or not the Respondent/Licensee, Tomas Perez, d/b/a Lifetime Chemicals of America, Inc. (Lifetime), engaged in conduct which will be set forth hereinafter in detail, which warrants the Florida Construction Industry Licensing Board (Board) to take disciplinary action respecting his license and to impose an administrative fine based on said alleged conduct.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and the entire record compiled herein, the following relevant facts are found. Tomas Perez, d/b/a Lifetime Chemicals of America, Inc. (Respondent), is a certified general contractor who holds license No. CGCA 04170, which is active. On September 24, 1975, Mr. Perez used his license to qualify Lifetime Chemicals of America, Inc., as the entity through which he would conduct his business activities (Petitioner's Exhibit 1). On August 15, 1978, Lifetime Chemicals of America, Inc. , entered into an agreement with James Laughery of Fort Myers, Florida, for a franchise agreement to use Lifetime's license in the immediate area of Fort Myers, Florida (Petitioner's Exhibit 5). That agreement provides, among other things, that Respondent Lifetime authorized James Laughery to use its license in the Fort Myers area for a fee of $50.00 per job or $1,500.00. The agreement does not provide, nor was any evidence offered to establish that Respondent Perez played any supervisory or managing role in agent Laughery's contracting activities in the Fort Myers area. During October of 1978, Mr. Andrew Szarfran entered into an agreement with Respondent's agent, Laughery, to perform certain roofing repairs to his residence for the sum of $1,000.00. Mr. Szarfran paid Laughery $500.00 and Laughery abandoned the project prior to completion (Testimony of Szarfran and Petitioner's Composite Exhibit 4). Mr. Szarfran engaged the services of another contractor to complete the project. On May 17, 1979, the Lee County Construction Board reviewed a complaint filed against Respondent by the Szarfrans. Based on that review, the Lee County Construction Board revoked Respondent's licensing privileges in the county at its June, 1979, meeting (Petitioner's Exhibits 3 and 4 and testimony of witnesses Richard M. McDole and Maxine Allred, Administrative Director of Court Enforcement and Permit Clerk, respectively, for Lee County). On or about October 17, 1978, Respondent's agent, Laughery, also entered into an agreement with Mr. and Mrs. Arthur Swanson for the erection of aluminum siding to the exterior walls of their residence for a full price of $5,000.00. The Swansons gave Respondent's agent, Laughery, a downpayment of $2,500.00 and agent Laughery abandoned the project prior to the commencement of any work (Petitioner's Exhibits 7 and 8 and testimony of Mrs. Swanson). Richard Newmes, the chief inspector for building and zoning, Cafe Coral, Florida, testified that the Construction Industry Licensing Board for Cape Coral, Florida, revoked Respondent's contractor license on January 17, 1979, based on his violation of Cape Coral Code Section 5-1/2 - 21(J), to wit: "Failure to make good faulty workmanship or materials performed or installed to evade performance of the contract or specifications as agreed upon." (Petitioner's Exhibit 9.) On or about January 4, 1979, Lifetime Chemicals of America, Inc., became aware of its agent, James Laughery's mismanagement of funds and his failure to honor contractual obligations he had entered in the Fort Myers area. Respondent and its agent Laughery therefore entered into an agreement which rendered the franchise agreement between the parties null and void. Agent Laughery, in said agreement, promised to pay, from his commissions due, monies owed to Lifetime Chemicals, Inc., which apparently was brought about due to the restitution that Lifetime Chemicals had made to customers whom agent Laughery had defaulted. As mitigating evidence, it was noted that the Respondent, Tomas Perez, was not party to or familiar with the activities and/or difficulties that the designated agent for Lifetime Chemicals of America, Inc., James Laughery, was encountering in the Fort Myers vicinity before early January, 1979. As soon as Respondent became aware of Laughery's problems, steps were immediately taken to halt such acts insofar as they related to Respondent (Testimony of Tomas Perez and Michael Arfaras).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law and the mitigating evidence which revealed that although the Petitioner is authorized and in fact holds the qualifier license of a registered entity responsible for the acts of its agents, in view of the undisputed evidence which reflects that neither Respondent Perez or Respondent Lifetime Chemicals of America, Inc., in any manner benefited from the acts of its agents and in fact attempted to thwart the illegal acts of its agent as soon as such became known, it is hereby RECOMMENDED: l. That the Respondent, Tomas Perez's Certified General Contractor's license, CGCA 04170, be placed on probation for a period of one (1) year. 2. That the Respondents, Tomas Perez and Lifetime Chemicals of America, Inc. , be issued a written letter of reprimand. RECOMMENDED this 24th day of April, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, 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 24th day of April, 1980. COPIES FURNISHED: Barry Sinoff, Esquire 2400 Independent Square Jacksonville, Florida 32202 Tomas Perez 2395 West 12th Avenue Hialeah, Florida 33010 Michael Harold Arfaras 820 S.W. 20th Avenue Miami, Florida 33135 Mr. J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. CASE NO. 79-2173 THOMAS PEREZ, CGCA 04170 Respondent. /
Findings Of Fact At all times pertinent to these proceedings, Hamilton held registered residential contractors license number RR0015037. Hamilton agreed to construct a house in Clearmont, Florida, with a completion date no later than May 1, 1977, for Robert J. and Margaret M. Phlepsen. The construction price was $75,000.00. After construction of the house it was discovered that there existed two violations of the Southern Building Code. First, the "step-down" from the kitchen to the garage was an eleven inch riser contrary to the code requirement that the height of a riser shall not exceed seven and three quarters inches. The second violation occurred through the use of 2 X 8 joists where the code would require 2 X 10 joists. The extra high riser between the kitchen and the garage was apparently caused by an oversight. Hamilton merely failed to install an intermediate step at that location. The second violation occurred because the owner and Hamilton agreed to use the smaller joists in order to save money on the contract price. In neither case is there sufficient evidence to establish that Hamilton's violations were willful or deliberate as alleged in the Administrative Complaint. On June 6, 1978, the Lake County Board of Examiners suspended Hamilton's Lake County Certificate of Competency because of violations of building code requirements in the construction of Phlepsen's house.
