The Issue Whether Respondent violated section 489.13(1), Florida Statutes (2016)1/, by offering, contracting, or performing regulated construction services, for compensation, as charged in the Administrative Complaint; and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of the construction industry, pursuant to section 20.165 and chapters 455 and 489, Florida Statutes. On September 29, 2016, by letter, the Broward County Environment Protection and Growth Management Department forwarded a complaint to DBPR indicating the subject matter "appears to fall within your area of jurisdiction." The complaint alleged that Ryan D. Kirkland, d/b/a The Shining Light Construction, Inc., represented himself as a licensed contractor, provided a quote, and cashed the check from the victim, Rayon Richards ("Richards"). DBPR assigned Sonya Roa-Zaiter ("Roa-Zaiter"), investigator, to investigate the complaint. During the investigation, Roa-Zaiter interviewed individuals and reviewed several documents to determine Respondent's licensure status and relationship with Richards. Roa-Zaiter discovered that on July 20, 2016, Respondent presented Richards with a written proposal ("proposal") to perform construction work at Richard's rental property, located at 3234 Northwest 31st Terrace, Oakland Park, Florida 33309. In the proposal, Respondent offered to perform regulated services for compensation in the amount of $1,500.00. Specifically, Respondent offered to replace a kitchen faucet, remove a dishwasher, install a new water line and replace exhaust fans. Respondent's proposal listed the company as "State License Insured," but contained the license number CGC 1518408, which is a certified general contractor license number that belongs to Bernard Forges. Bernard Forges did not give Respondent permission to use his license number. Respondent is not licensed and has never been certified or registered as a construction contractor in the State of Florida. Additionally, at all times material to the allegations in this matter, The Shining Light Construction, Inc., has not been an entity properly qualified or licensed in the practice of construction in the State of Florida. Roa-Zaiter also discovered during the investigation that on or about July 22, 2016, Respondent accepted $750.00 as partial payment to perform the services listed in the proposal and cashed the check for the services without performing any of the work. After DBPR completed the investigation, it was determined that Respondent offered to perform a regulated service for compensation without a license contrary to Florida law. On November 1, 2016, DBPR issued Respondent a Notice to Cease and Desist, which notified Respondent that he "may be practicing as a CONTRACTOR (in any trade) without the professional license or certification required by Florida law." On April 25, 2017, DBPR issued an Administrative Complaint charging Respondent with violation of section 489.13(1) for offering to perform regulated construction contracting services for compensation without holding an active and valid certification or registration. Respondent contested the Administrative Complaint and requested a hearing. Roa-Zaiter spent 18 hours and four minutes investigating Respondent's case. DBPR incurred $624.78 for the investigation relating to Respondent's actions in this case, excluding costs relating to any attorney's time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order: finding Respondent, Ryan D. Kirkland, a/k/a Ryan Dee Lon Kirkland, guilty of violating section 489.13(1), Florida Statutes; imposing an administrative fine of $3,000.00; and assessing costs in the amount of $624.78. DONE AND ENTERED this 19th day of January, 2018, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 19th day of January, 2018.
The Issue Whether Respondent engaged in the unlicensed practice of contracting in violation of Section 489.127, Florida Statutes, and if so, what penalty should be imposed?
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of contractors in the State of Florida pursuant to Section 20.42 and Chapters 455 and 489, Florida Statutes. On June 7, 2005, Harry Lee Wilson signed a proposal on behalf of Wilson Construction and Roofing to perform repairs on a home owned by Tony Wright at 2126 Evergreen Avenue, Jacksonville, Florida. The proposal consisted of a two-page list of repairs to be performed, including installation of doors, plumbing, kitchen cabinets and sheetrock; repair of several holes, walls, windows and floors; painting and installation of a wall. The proposed cost for the job was $7,595.00, with $3,200.00 to be paid as a down payment, $2,200.00 to be paid halfway through, and the balance to be paid when the job was completed. Mr. Wilson represented to Mr. Wright that he was a licensed contractor and had been for 20 years. He had business cards and t-shirts that advertised "Wilson Construction and Roofing." His license, however, was an occupational license issued by the City of Jacksonville. At no time material to these proceedings was Mr. Wilson registered with or certified by the State of Florida. Likewise, Wilson Construction and Roofing did not possess a certificate of authority to practice as a contractor qualified business. No evidence was presented to establish that Mr. Wilson held any sort of competency license issued by the local jurisdiction. Mr. Wright accepted the proposal and, in all, paid $5,000.00 to Mr. Wilson for his services. On September 21, 2005, Mr. Wilson wrote to Mr. Wright representing that he had completed the "first proposal," i.e., the first page of the work under the contract. In his letter, he claimed that Mr. Wright had defaulted on the job because of work done by another contractor and that additional funds would be needed to complete the work. Mr. Wright was not pleased with the quality of work performed on the job and stopped paying Mr. Wilson. Some of the work had to be redone by another contractor. For example, the plumbing was not installed correctly; the countertop was not level; a weight-bearing wall was braced incorrectly; and drywall was applied over the light switches. Mr. Wright was under the impression that the work by Mr. Wilson was not inspected because the funds were not coming from a bank. Inspection was only performed when the job was finished by the second contractor. Mr. Wilson admitted that he has been doing construction work for 20 years and did not believe a state license was necessary. He believed that his occupational license was all he needed to perform construction work. Mr. Wilson claimed that he did not perform any plumbing work for Mr. Wright or the amount he did was minimal. However, Mr. Wilson's proposal to Mr. Wright clearly includes plumbing work among those items to be performed. Whether or not he actually did plumbing work on the job, Mr. Wilson negotiated a contract to perform such work. There was no evidence presented that Mr. Wilson was offering to perform or performing any contracting services under the supervision of any licensed contractor. The Department incurred investigative costs, excluding any costs associated with an attorney's time, in the amount of $401.83.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered which finds that Respondent violated Section 489.127(1)(f), Florida Statutes; That an administrative fine of $5,000.00 be imposed; and That costs of investigation and prosecution in the amount of $401.83 be assessed. DONE AND ENTERED this 9th day of November, 2006, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 www.doah.state.fl.state Filed with the Clerk of the Division of Administrative Hearings This 9th day of November, 2006. COPIES FURNISHED: Brian A. Higgins, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Harry Wilson Wilson Construction and Roofing 12450 Biscayne Boulevard Apartment 415 Jacksonville, Florida 32218 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Nancy S. Terrel, Hearing Officer Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Did Respondent violate Section 489.129(1)(h), Florida Statutes, and, if so, what discipline should be imposed?
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 vested with statutory authority to regulate the practice of contracting under Chapters 455 and 489, Florida Statutes. Respondent is a licensed certified residential contractor in the State of Florida. Respondent's license number, as certified by Julie Odom, Department's Alternate Records Custodian, is CRC 20166. However, the Administrative Complaint alleges the license number to be CR C020166. Respondent's licensure status is "Delinquent, Active." On May 18, 1989, the Department entered a Final Order in DOAH Case No. 88-3308 wherein Respondent was found guilty of violating Section 489.129(1)(h),(j),(k), and (m), Florida Statutes. On September 27, 2000, the City of Cape Coral, Florida, Contractor's Regulatory Board (Board) entered into a Settlement Agreement (Agreement) with Respondent, in regard to a complaint, Case No. 00-01, wherein Respondent was charged with violating the following Sections of the City of Cape Coral Code of Ordinances: 6-10.1:, To make misleading, deceptive, untrue, or fraudulent representations in the practice of his contracting profession; 6-10.8: Diversion of funds or property received for prosecution or completion of a specified construction project or operation when as a result of the diversion, the contractor is or will be unable to fulfill the terms of his obligation or contract; 6-10.10: Failing in any material respect to comply with the provisions of the Code; 6-10.11: Abandoning of a construction project in which the contractor is engaged or under contract as a contractor. A project is to be considered abandoned after 90 days if the contractor terminates the project without notification to the prospective owner and the City and without just cause; and 6-10.13: Being found guilty of fraud or deceit or of gross negligence, incompetence, or misconduct in the practice of contracting. The Agreement provided that Respondent was pleading No Contest to the charges that he violated the aforementioned sections of the City of Cape Coral's Code of Ordinances and that Respondent's plea did not act as an admission of guilt as to the above mentioned charges. The Agreement provided for Respondent's permit pulling privileges to be revoked for a period of 90 days starting August 23, 2000. By an Order dated December 29, 2000, the Board, after hearing and discussing the charges made against Respondent, voted to accept and approve the Agreement. By this Agreement, Respondent's contracting license was disciplined by the City of Cape Coral. The total investigative and prosecution costs to the Department, excluding costs associated with any attorney's time, is $967.09.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and a review of Chapter 61G4-17, Disciplinary Guidelines, Florida Administrative Code, with consideration for the repeat violation of Section 489.129(1)(h), Florida Statutes, it is RECOMMENDED that the Department enter a final order finding Respondent, Robert Mensching guilty of violating Subsection 489.129(1)(h), Florida Statutes, and for such violation: (a) impose an administrative fine in the amount of $5,000.00; (b) assess costs in the amount of $967.09; and (c) revoke Respondent's Certified Residential Contractor's License. DONE AND ENTERED this 21st day of March, 2003, 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) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 2003. COPIES FURNISHED: Kimberly V. Clark, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Robert Mensching 1719 Northeast 23rd Terrace Cape Coral, Florida 33909 Robert Crabill, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulations Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact At all times relevant hereto, respondent, Pedro P. Landera, was a certified general contractor having been issued license number CG C005371 by petitioner, Department of Professional Regulation, Construction Industry Licensing Board (Board), in March 1973. In January 1986 the license was suspended by the Board for three years and, except for the charges pending in this proceeding, Landera would be eligible to have it reactivated in early 1989. Thus, Landera has been without authority to use his license for the last three years. Landera did not contest the Board's suspension action and, in a settlement stipulation, admitted he violated Subsections 489.129(1)(c), (d), (e), (f) and (m), Florida Statutes (1981), by certain conduct taken in December 1983. On August 11, 1986, an individual using the name of James Burke entered into a construction contract with Charlie E. Mincey, the owner of Charlie Tires Service, 1700 N. W. 79th Street, Miami, Florida. The contract, which has been received in evidence as petitioner's exhibit 4, called for Burke, "in a timely manner," to make the following additions to Mincey's tire shop: construct a 34' X 40' room onto the existing building, erect an aluminum shed across the front of the building, including a four foot concrete slab floor, and add a five foot wall across the back side of the building. Burke represented on the contract that he held license number 254514-4. However, a search of the Board's records revealed Burke held no state license. The total price for the work was $15,650. On August 13, Mincey paid Burke $3,000 as a down payment on the job. According to Mincey, Burke began work on the additions several weeks after the contract was executed and continued to do so on and off for a few months. Eventually, a concrete block wall for the 34' x 40' room was built, but it had no roof, windows, doors, electric wiring, plumbing or paint. The aluminum shed was never built nor did Burke construct a five foot wall at the rear of the building as required by the contract. During October and early November 1986 Mincey made additional payments to Burke in the amount of $3,175, 1,000, $500, $400, $300, $300, and $40. This made a total of $8,715 paid by Mincey to Burke. Despite these payments, several subcontractors came to the job site during the same time period to unload materials but requested payment from Mincey before they would release them. Mincey paid the subcontractors $2,593.64, as evidenced by receipts received in evidence as petitioner's exhibit 7. When Burke did not return to the job site, and the project was still far from completed, Mincey attempted to contact Burke but could not find him. When he left the job site for the final time, Burke gave Mincey no notice of his intention to leave the job unfinished or any reason for doing so. Burke's whereabouts are still unknown, and there is now pending an outstanding warrant for his arrest. On September 30, 1986, a building permit application was filed with the Metropolitan Dade County building and zoning department seeking a permit for work to be done on Mincey's business. The application was filled out with three different colors of ink and in more than one person's handwriting. A carbon copy of the application has been received in evidence as petitioner's exhibit 9. The document was authenticated by a permit clerk of the Metropolitan Dade building and zoning department who identified the cashier's validation stamp, issuance date and permit number affixed to the document, all being indicia that the application was received and processed by that department. Further, the clerk attested to the fact that the carbon copy was a document normally kept in the regular course of business by her department. The application carries the signature, license number and social security number of respondent. The authenticity of respondent's signature was confirmed by a questioned document examiner whose testimony has been accepted as being credible and persuasive and was corroborated by respondent's own admission that the signature was his own. The author of the remaining writings on the document is unknown. Pursuant to the above application, a building permit was issued on October 1, 1986, for the work performed by Burke. The inspection record, which has been received as petitioner's exhibit 8, reflected that the job site was inspected by a Dade County inspector on October 1 and November 12, 1986. Also, the inspection record reflected that Gila Construction Company (GCC) was the contractor on the job. GCC is a Miami firm that Landera qualified in March 1984. Its owner is Gilbert Castillo. Mincey's building remains unfinished as of this date, and he contends the value of the work is less than the $11,308 that he paid to Burke and the subcontractors. In attempting to resolve the matter, Mincey learned that Landera's license number was on the permit application, and a complaint was eventually filed with the Board. However, prior to hearing, Mincey had never seen or talked to Landera, knew nothing of GCC, and considered the business transaction to be between he and Burke. Landera denied knowing Burke or authorizing him to use his license. Also, he maintained that he has not used his suspended license since the Board's action in early 1986. He denied signing the application in question and had no explanation as to how his signature got on the application except to suggest that someone may have obtained one with his signature and then fraudulently used the same to obtain a permit. Even so, there was no reason for Landera to sign an application during this period of time since his license was under suspension. Castillo, who owns GCC, denied knowing Burke or Mincey or having any knowledge of or participation in the Mincey job.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as set forth in the conclusions of law, that he pay a $3,500 fine, and that his license be suspended until January, 1991. DONE AND ORDERED this 10th day of February, 1989, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 10th day of February, 1989. APPENDIX Petitioner: 1-2. Covered in finding of fact 1. 3-4. Covered in finding of fact 2. Covered in findings of fact 3. and 5. Covered in finding of fact 4. Covered in finding of fact 6. Covered in finding of fact 1. Respondent: Covered in findings of fact 1 and 2. Covered in findings of fact 3 and 5. Covered in findings of fact 4 and 5. 4-5. Covered in finding of fact 8. Covered in findings of fact 2, 5 and 6. Covered in findings of fact 6 and 9. Covered in finding of fact 6. 9 Covered in findings of fact 9 and 10 COPIES FURNISHED: George W. Harrell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Luis F. DeLaCruz, Jr., Esquire 300 Sevilla Avenue Suite 313 Coral Gables, Florida 33134 Kenneth E. Easley, Esquire General Counsel 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
The Issue Did respondent fail to properly supervise, direct and manage the contracting activities of the business of which he is the qualifier, and if so, what disciplinary action should be taken against respondent's contracting license?
Findings Of Fact At all times material to this proceeding the respondent was a certified building contractor licensed by the State of Florida and the qualifying agent for Custom Concrete of Naples, Inc. (Custom Concrete). Rodney Velez was the president of Custom Concrete and licensed only in concrete--concrete forming, placing and finishing. Susan Velez, Rodney Velez's wife, was an officer of Custom Concrete. On April 23, 1983, Custom Concrete, by and through Rodney Velez, entered into a contract with Mark and Penny Paterson to construct a home for $38,550.00. Mrs. Paterson had previously met Rodney Velez in the course of her work, and Velez had told her that he was a builder. Mrs. Paterson had suggested that Velez look at a floor plan that she and her husband had, and after certain negotiations, including a change of floor plan, the contract was entered into. During the course of the negotiations Mrs. Paterson never talked to the respondent and was unaware that the respondent was involved or would be involved in the construction of the home. Mrs. Paterson believed that Rodney Velez was the "builder"; however, the construction of the Paterson home was beyond the scope of Velez's concrete license. The respondent signed the application to secure the building permit for the Paterson residence, although he did not personally appear to procure the building permit. The clerk of the contractor's licensing section of the building code compliance department relied on the signature on the application because it was notarized. The notary was Susan Velez. Respondent did not supervise or direct the construction of the Paterson home. Neal Jackson, president of the company who did the electric work on the home, was unaware that respondent was involved in the project until well after the house was finished. Although it is usual for a supervisor or superintendent to be at the job site some of the time, Jackson never saw the respondent or Velez at the job site. Jeff Allain, the carpenter who did the framing and certain other work, was on the job site five or six days and saw the respondent once during the framing of the structure "just generally looking around." The respondent didn't say anything to Allain. David Isom did drywall work on the house. He had no contact with the respondent and did not see him at the construction site. Mrs. Paterson went by the construction site quite often and realized that the job was not being properly supervised. Velez was rarely there, and Mrs. Paterson never saw the respondent. The workmen on the site would ask the Patersons when Velez would be there because they had questions concerning the work. Neither of the building inspectors saw anyone supervising at the job site, although usually no one is at the job site when an inspection is made. Two days after the Patersons moved into their house, they compiled a "punch list" of the items that needed to be completed or corrected. The list was given to Velez, but the work was not corrected to the Paterson's satisfaction. Although Velez did not give the "punch list" to respondent, Velez discussed the problems with the respondent. Respondent did not take any steps to remedy the problems and said he thought "a lot of it was nonsense." Velez told respondent that he, Velez, would take care of it. Because of the unresolved problems with the house, Mrs. Paterson finally called the licensing board to file a complaint against Rodney Velez. At that time, she was informed that Rodney Velez was not the contractor; the contractor was the respondent. This was the first time that Mrs. Paterson was aware that the respondent was involved with the construction of the house. All of the Patersons dealings had been with Velez, and all checks for construction payments were made out to Velez personally. 2/ Even though the Patersons had not received satisfaction from Custom Concrete for the problems with the house, they signed the closing papers because Velez threatened to evict them. At closing the Patersons received a lien release from Custom Concrete which released all work prior to March 9, 1984. Subsequently, Velez filed a claim of lien against the Paterson property for work completed on February 9, 1984.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is recommended that respondent be found guilty of violating Section 489.129(j), Florida Statutes, that he be fined $1,000.00, and that his license be suspended for 60 days from the date the Construction Industry Licensing Board enters its final order in this case. DONE and ORDERED this 30th day of January, 1985, in Tallahassee, Florida. DIANE A. GRUBBS 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 January, 1985.
