The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Department), is a state government licensing and regulatory agency charged with the duty and responsibility to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Sections 20.165, Florida Statutes, Chapters 120, 455, and 489, Florida Statutes, and the rules promulgated pursuant thereto. At all times material hereto, Respondent, Todd J. Jonas, was licensed by the Department as a certified general contractor, having been issued license number CG C014823, and was the qualifying agent for Mello Concrete Service, Inc. Moreover, at all such times, Respondent was licensed as a registered architect, pursuant to Chapter 481, Florida Statutes. In August 1992, consequent to the forces of Hurricane Andrew, Lee and Hanna Munson suffered damage to their residence at 1710 Tigertail Avenue, Miami, Florida. Subsequently, Mr. Munson employed Respondent to repair some of that damage. The scope of the repairs Respondent was to undertake was set forth in a written proposal, dated May 12, 1993, from "Todd Jay Jonas Architect" to Mr. Munson, which provided: Repair storm damaged stucco. Repair storm damaged windows. Repair storm damaged doors. Repair storm damaged shutters. Repair storm damaged cabinets. Repair storm damaged walls. Repair storm damaged interior partitions. Replace existing Tigertail wood gate with iron. Landscaping-replacing shrubs for same. Clean-up. Painting. (Petitioner's Exhibit 4.) According to Respondent, "Todd Jay Jonas Architect" was, at the time, a fictitious name under which he practiced architecture. Mr. Munson apparently accepted the proposed repair list, and agreed to pay Respondent for labor and materials (the contract cost), plus 20 percent. (Respondent's Exhibit 6, page number 97.) On May 19, 1993, Respondent filed an application for a building permit with the City of Miami to repair the Munson residence. The application named Respondent as the contractor and architect, and included a copy of the May 12, 1993, proposal, as the repairs that were to be made to the residence. The application was signed by Respondent as "Qualifier," and he acknowledged that: "In signing this application, I am responsible for the supervision and completion of the construction in accordance with the plans and specifications and for compliance with all federal, state, and county laws applicable." The City of Miami approved Respondent's application, and on May 21, 1993, issued its Building Permit No. 93-5010807. The permit named Mello Concrete Service, Inc. (Mello Concrete), as the contractor, and Respondent as the qualifier. The approved repairs were limited to those contained on the proposal of May 12, 1993, which was submitted with the application. Following permitting, the business Respondent had qualified, Mello Concrete, undertook needed structural and other repairs to the residence. Pertinent to this case, these repairs required the removal of a large portion of the interior plaster on the residence. Consequently, to repair the interior wall surfaces and ceilings, and to provide an interior plaster finish, Respondent solicited a proposal from MACTEC Construction, Inc. (MACTEC). At the time, MACTEC was apparently authorized to conduct business as a certified general contractor, license number CG C027670, and Jorge A. Machado was its president. On June 23, 1993, Mr. Machado, on behalf of MACTEC, submitted the following proposal to Respondent: Mr. Todd J. Jonas Todd Jay Jonas Architects 7275 Southwest 55th Avenue Miami, FL 33143 Re: Munson Residence 1710 Tigertail Avenue Miami, FL 33133 Dear Todd: Pursuant to several field inspections of the property in reference, I am pleased to submit the following Proposal for your consideration. Due to the unique nature of the job and existing field conditions, several alternatives to structuring this bid were considered and we feel that a Time & Materials Contract would be the most effective approach. Please note that the scope of work which follows is based the application of "Woncote" interior plaster finish over the existing Lath and Plaster walls and celings [sic] and the installation of "Blueboard" where needed in lieu of standard joint compound and gypsum wallboard assemblies. The work described herein will require the skill of our most experienced plasters. Less costly alternatives are available which will result similar in appearance once finished, but which lack the quality, durability and compatibility with the materials and assemblies that compose this home. SCOPE OF WORK: Patch and repair existing interior wall surfaces and ceilings. Skim coat all wall and ceiling surfaces to a smooth uniform finish ready for paint. * * * UNIT PRICES Labor: 3 man crew @ $ 105.00 per hour. ESTIMATED DURATION Four Weeks. ( Based on 40 hr./ week.) MATERIALS Cost Plus Ten Percent. ( Estimated materials cost: $ 3,000.00 ). * * * PAYMENT SCHEDULE Payment in full of previous week's work by the following Thursday of each week. Time sheets and invoices shall be submitted to General Contractor no later than Monday of each week to allow for review and processing. . . . On July 8, 1993, Respondent signed the proposal, noting his acceptance of its terms; however, Respondent had apparently agreed to the proposal earlier, since MACTEC began to provide labor and materials to the residence on June 25, 1993. As the work progressed, MACTEC, consistent with its agreement, submitted to Respondent an invoice, as well as a time and materials control sheet, on a weekly basis. The invoices read "SOLD TO: TODD JAY JONAS ARCHITECTS," and the time and materials control sheets read "CLIENT: TODD JAY JONAS ARCHITECTS." Respondent, periodically, remitted payment to MACTEC on the account, and nothing unusual occurred with regard to their financial relationship until early August 1993. On August 9, 1993, Respondent tendered to MACTEC a check in the sum of $9,000 for payment on account of labor and materials furnished through August 9, 1993.2 MACTEC deposited the check to its account at SunBank Miami on August 10, 1993; however, when presented to the payor's bank, payment was refused because of insufficient funds. In explanation, Respondent contends that at the time the check was issued there were sufficient funds in the account to cover the check; however, unbeknownst to him, on the day the MACTEC check was presented for payment, a check previously deposited to the account was returned as uncollectable. Consequently, according to Respondent, the bank debited the account, reducing the available funds to less than $9,000, and refused payment. (Petitioner's Exhibit 10 and Respondent's Exhibit 8.) Respondent's bank statement (Respondent's Exhibit 8) facially supports his contention that at the time the check was written there were sufficient funds in the account to honor the check. However, bank statements are maintained on an accrual basis, and the balance shown is not, as evidenced by the returned item in this case, representative of cleared or available funds. Notwithstanding, no evil purpose or other impropriety has been shown or can be attached to Respondent's conduct with regard to this transaction. On August 16, 1993, Respondent gave Mr. Machado a check for $9,000 as a replacement for the check that was returned for insufficient funds, and on August 19, 1993, a check for $3,500 as payment on account for additional labor and materials furnished to the residence. At the time of issuance, Respondent advised Mr. Machado to hold the checks until he had clear or available funds in the account. Mr. Machado abided Respondent's advice until August 30, 1993, when the checks were deposited to MACTEC's account at SunBank Miami. When presented to the payor's bank, payment was refused because Respondent had entered a stop payment order. According to Respondent, Mr. Munson complained regarding the quality of MACTEC's work, as well as theft or damage to property by MACTEC employees, and directed that he make no further payments to MACTEC. Based on this direction from the client, Respondent issued the stop payment order. Under the circumstances, no evil purpose or other impropriety was shown with regard to Respondent's entry of the stop payment orders. While Respondent may have felt justified, based on his client's instructions, to stop payment on the checks he tendered to Mr. Machado, Mr. Machado was not dissuaded from seeking redress. On or about September 20, 1993, in the Circuit Court, Dade County, Florida, MACTEC sued Respondent, Todd J. Jonas, individually. The complaint sought judgment against Respondent in the amount of $17,685.66, plus pre-judgment interest and costs, based on the following allegations: GENERAL ALLEGATIONS At all times material hereto Plaintiff MACTEC CONSTRUCTION, INC. (hereinafter "MACTEC") is and has been a corporation incorporated under the laws of the State of Florida and authorized to do business and doing business in Dade County, Florida. At all times material hereto, Defendant TODD J. JONAS is and has been an individual sui juris residing and doing business in Dade County, Florida. COUNT I This is an action for breach of contract within the jurisdiction of this court. The allegations of Paragraphs 1 and 2 above are realleged and incorporated by reference in full herein. In June, 1993, MACTEC and TODD J. JONAS entered into a contract pursuant to which MACTEC was to perform construction work on a construction project known as the Munson residence, located at 1710 Tigertail Avenue, Miami, Florida (hereinafter referred to as "Project"). A copy of said contract between Plaintiff and Defendant TODD J. JONAS is attached hereto as Exhibit "A" and incorporated by reference in full herein.3 Pursuant to said contract, MACTEC supplied labor and materials to the project in accordance with the contract (Exhibit "A") hereto. MACTEC has substantially performed its obligations pursuant to the contract attached hereto as Exhibit "A". Defendant JONAS is in material breach of his contract with MACTEC (Exhibit "A" hereto) inasmuch as he has failed and refused to pay to MACTEC the sum of $17,685.66 due and owing to MACTEC for labor and materials supplied to the subject project pursuant to said contract. All conditions precedent to the maintenance of this action have occurred, have been performed, or have been waived. * * * COUNT II This is an action on open account within the jurisdiction of this court. The allegations of Paragraphs 1, 2 and 5 set forth above are realleged and incorporated by reference herein. MACTEC and TODD J. JONAS had business transactions between them, and TODD J. JONAS has failed to pay MACTEC for labor performed and materials furnished. TODD J. JONAS owes MACTEC the sum of $17,685.66 plus pre-judgment interest since August 19, 1993 per the attached accounts (Exhibit "B" hereto). Following a three-day trial (April 4, 5, and 6, 1994), the court entered a final judgment for MACTEC and against Respondent. That judgment, dated April 14, 1994, provided that MACTEC recover from Respondent damages of $17,585.66,4 as well as pre-judgment interest of $1,358.30, and reserved jurisdiction to tax costs and attorney's fees. Subsequently, a final judgment was entered for costs of $1,000 and a final judgment for attorney's fees of $7,787.50. At some time between the date of judgment (April 14, 1994) and August 8, 1994, Respondent paid $2,000 in partial satisfaction of the judgment. Other than that payment, there has been no further payment toward satisfaction of the judgment, and no other arrangement for satisfaction of the judgment, by a mutually agreeable payment plan or otherwise, has been made.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be rendered as follows: Finding Respondent not guilty of Count I of the Administrative Complaint. Finding Respondent guilty of Counts II and III of the Administrative Complaint and imposing, as a penalty for such violations, an administrative fine of $1,000 and the assessment of $247.50 as costs. DONE AND ENTERED this 12th day of March, 1998, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 12th day of March, 1998.
The Issue Whether or not Respondent's certified general contractor's license should be disciplined because he aided or abetted an uncertified or unregistered person, knowingly combined or conspired with an uncertified or unregistered person by allowing his certificate or registration to be used by an uncertified or unregistered person with the intent to evade Chapter 489; acted in the capacity of a contractor under an unregistered or uncertified name; engaged in fraud, deceit, or gross negligence, incompetence, or misconduct in the practice of contracting as alleged, in violation of Subsections 489.129(1)(e),(f),(g) and (m), Florida Statutes.
Findings Of Fact Petitioner is the state agency charged with the responsibility to investigate construction activities in Florida and, where indicated, to file Administrative Complaints pursuant to Chapters 489, 455 and 120, Florida Statutes, and other rules and regulations promulgated pursuant thereto. During times material, Respondent, Richard L. Melvin, was licensed as a general contractor, having been issued license number CG C022926. During times material, Respondent did not qualify Jeffrey Gaston or Tropical Exteriors & Services, Inc. (TESI), nor did said entity or contractor's name appear on Respondent's license. During times material, Jeffrey Gaston d/b/a TESI, was never licensed nor qualified to do business as a contractor in Florida. During times material, Respondent was not a licensed roofing contractor. On or about March 31, 1987, Jeffrey Gaston contracted with Deborah and Clinton Weber to repair a roof and renovate a bathroom at their residence for the sum of $5,000.00. Respondent's name, license number, address and telephone number was listed on the Gaston/Weber contract. Jeffrey Gaston d/b/a TESI entered into a contract with Wilfred Butler on January 12, 1987, to replace a back porch at his residence. Respondent's general contractor's license number was listed at the top of the agreement between Gaston-TESI/Butler. Checks drawn by Butler were made payable to Respondent/TESI. Respondent obtained a permit for Jeffrey Gaston d/b/a TESI for the Butler project. (Petitioner's Exhibit 7.) Respondent admitted to authorizing Gaston or TESI to use his name and certificate number on contracts. Respondent was aware of approximately 20 contracts and several other permits wherein Gaston/TESI obtained the contracts or permits by using Respondent's name and license number. Respondent admitted receiving approximately $2,000.00 for supervising TESI. Respondent never disassociated himself from Jeffrey Gaston until May 31, 1987. Petitioner introduced ten contracts for work in Pinellas County from December 1986 to May 1987, with Respondent's name and state certification number with Jeffrey Gaston d/b/a TESI listed as the contractor. (Petitioner's Exhibit 9.) Respondent obtained a permit for Jeffrey Gaston d/b/a TESI for the installation of aluminum soffit and fascia on the Stitches' home situated at 111 Aurora Avenue North, Clearwater, Florida. Respondent did not supervise the installation of aluminum soffit and fascia on the Stitch's residence. Respondent, as a general contractor, is responsible for all phases of work for which he contracted for and/or obtained permits. Respondent was aware that Jeffrey Gaston was not a licensed contractor in Florida. Jimmy Jimenez has never been a licensed contractor in Florida. J & J Construction Company was qualified in February 1988, under Respondent's license number, CG C022926. Thereafter, during February 1989, J & J Construction was qualified under Respondent's license number RC 0058448. Respondent did not attempt to qualify J & J Construction until he was cautioned by Petitioner's investigators Steven Pence and Dennis Force, that his construction activities amounted to "aiding and abetting an unlicensed contractor." On or about December 11, 1987, Wiley Parks, Jr., entered into a contract with J & J Construction to perform construction work and remodel a home for Parks located at 1722 West Arch Street, Tampa, Florida. In conjunction with that contract, a second contract was submitted by J & J Construction for Mr. Parks, although unbeknownst to him, which utilized Respondent's name and contractor's license number at the top of the agreement. Wiley Parks spent a great deal of his time observing the construction and remodeling work by J & J. Respondent was only seen by Wiley Parks when they met at a local bank to cash a check which represented a draw submitted by Respondent for construction work done at the Arch Street construction project. Respondent obtained a permit for the Parks job on January 6, 1988, which was prior to the time he qualified J & J Construction as the entity through which he would conduct construction business. Respondent, although required to do so, never called for a final inspection on the Parks job. The floor joists at the Parks job were disapproved by the Hillsborough County Building Department and were never repaired by Respondent. Employees of J & J were observed working at the Parks job site on January 4 and 8, 1988. Respondent was, on two occasions, the subject of prior disciplinary action by Petitioner during 1987. On one occasion, probable cause was found on August 12, 1987 and the case was closed by issuing a letter of guidance to Respondent. On the second occasion, probable cause was found on October 7, 1987. Final action was taken on February 11, 1988, whereby an administrative fine of $1,000.00 was imposed against Respondent or, alternatively, a 30-day suspension of his license. Respondent paid the administrative fine within the allotted time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent's general contractor's license number CG C022926 be REVOKED. 1/ RECOMMENDED this 26th day of March, 1990, 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 March, 1990.
Findings Of Fact The Respondent, Richard M. Woodley has two inactive contracting licenses numbered CB CA 17970 and CB CO 17970, and was so licensed in 1986. The Respondent's license CB CA 17970 qualified "Woodley Builders, Inc." with the Florida Construction Industry Licensing Board. At the time of the hearing, the Respondent was no longer in the construction contracting business as a licensed contractor. With respect to case number 87-2809, on December 15, 1985, the Respondent, on behalf of Woodley Builders, Inc., entered into a contract with Catherine M. Richardson and Jonathan P. Richardson to build a residence in or near Orlando, Florida. The contract price was $90,000, with $20,000 attributable to the land. The contract specified that payments would be made to Woodley Builders, Inc. "in accordance with the disbursement schedule set forth by the construction lender." P. Ex. 1, paragraph 7. Woodley Builders, Inc. also agreed in the contract to furnish to the Richardsons lien waivers as required by the construction lender for disbursements. The construction lender disbursed the following amounts on the indicated dates: $10,200 March 17, 1986 $10,200 March 19, 1986 $17,000 March 27, 1986 $17,000 April 24, 1986 To induce these disbursements, a total of $54,400, the Respondent signed lien waivers stating that all bills for labor and materials used had been paid in full. P. Ex. 5. At the time of signing, the Respondent told the construction lender that he had paid all bills due to that time, but had not paid bills not yet presented. T. 89. Thus, the lien waivers were intended to be a certification of the partial completion and payment for the work billed to the date of the waiver, and a promise to pay other bills for work already completed as such bills were presented. Six claims of liens were filed by subcontractors. The Richardsons hired a lawyer, and the lawyer was able to defend against two of the liens for failure to properly comply with procedures for mechanic's liens. Four liens for the following amounts and for work beginning on the dates indicated ultimately had to be satisfied by the Richardsons: $ 2,851.45 March 19, 1986 $13,462.34 March 7, 1986 $ 1,944.57 April 8, 1986 $ 785.01 April 9, 1986 These liens were for work commenced before the last lien waiver was signed on April 24, 1986. Thus, the Respondent failed to comply with the oral representations he made at the time of signing the lien waivers. The Richardsons were forced to execute a second mortgage in excess of $17,000 to pay off the unpaid liens. The Richardsons terminated the contract with Woodley Builders, Inc. when subcontractors quit working for lack of payment by Woodley Builders, Inc. Some money was obtained from family loans. It cost the Richardsons about $30,000 to have the house finished, which has added about $325 per month to their mortgage obligations. The Respondent and Woodley Builders, Inc. have not paid anything on these liens. Woodley Builders, Inc. filed bankruptcy. The Richardsons sued the Respondent as trustee for Woodley Builders, Inc. and obtained a default judgment for $149,839, which was a judgment of $32,380 in compensatory damages, trebled, plus costs, interest, and attorney's fees. With respect to case number 87-2810, on June 11, 1986, Woodley Builders, Inc. entered into a contract with Tom Jamieson to construct an addition to his residence in Orlando, Florida. The price of the work was $18,500. The contract specified that the price was a cash price, and that draws were to be made according to a schedule stated in the contract. Mr. Jamieson paid to Woodley Builders, Inc. about $11,700 of the contract price. At some time before completion of the addition, the owner, Mr. Jamieson, evidently became dissatisfied with the Respondent's work. Mr. Jamieson was given the Respondent's copy of the contract and refused to return it to the Respondent. Mr. Jamieson then owed the Respondent a draw of $3500, but refused to give it to him, and refused to have it put in escrow for the payment of subcontractors. The date that this occurred is not in evidence. T. 35-36, 39. Since Mr. Jamieson had taken back the contract, the Respondent thought that he (the Respondent) no longer had any legal proof of the contract (either scope of work or amount due), and thus had no contract to complete the work. He also did not receive the draw that was due. The Respondent thus ceased work on the addition for fear that he would not be paid without a copy of his contract. T. 36-37. The Respondent offered to complete the work. T. 51. The drywall contractor, Rick's Drywall, Inc., filed a lien for $465 for work done from August 12, 1986 and August 20, 1986. The Respondent would have paid this lien had Mr. Jamieson not terminated the contract and refused to give the Respondent a draw still due of $3500. T. 49-50. There may be a claim for unpaid electrical work in July, 1986, see P. Ex. 15, but it is impossible to tell if this occurred before or after Mr. Jamieson terminated the contract, or whether the Respondent had received draw money that should have paid this claim. The only evidence is that the Respondent had an agreement with the electrical subcontractor to pay that subcontractor at the time of the final draw, a draw never received as discussed above. T. 53. P. Ex. 11 is insufficient evidence that there were unpaid claims for roof trusses. Moreover, it cannot be determined whether the Respondent received a draw before contract termination which should have been used to pay for roof trusses. The Respondent had been a contractor for eight years before he began to have financial difficulties resulting in the problems with the Richardson's residence. There is no evidence of any prior discipline.
Recommendation It is recommended that the Construction Industry Licensing Board enter its final order finding in case number 87-2809 that the Respondent, Richard M. Woodley, violated sections 489.129(1)(m), 489.129(1)(j), and 489.119, Fla. Stat. (1986), misconduct in contracting by diversion of funds, and failure to supervise as a qualifying agent, and in case number 87-2810, dismissing the administrative complaint for failure of proof by clear and convincing evidence. It is further recommended for the violation set forth above that the license of the Respondent be suspended for one year. DONE and ENTERED this 22nd day of July, 1988. WILLIAM C. SHERRILL, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1988. COPIES FURNISHED: Richard M. Woodley 2521 Tuscaloosa Trail Maitland, Florida 32751 David Bryant, Esquire 1107 East Jackson, Suite 104 Tampa, Florida 33602 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Nonroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
Findings Of Fact At all times pertinent to the allegations contained herein, the Respondent, Henry J. Alberico, was licensed as a real estate salesman in Florida, and the Petitioner, Division of Real Estate, was the state agency responsible for the licensing and regulation of real estate professionals in this state. During the Summer of 1988, Shirley Jean Hicks, was interested in purchasing a new house in the Sarasota area. Based on the recommendation of a friend, she went to the Respondent who showed her a house listed by the Murphys located at 2311 Waldemere Street in Sarasota. After Ms. Hicks saw the property twice, she made an offer to buy it. She wanted owner financing, if possible, because she did not have a good credit rating, but she did not discuss this with the Murphys until after the contract was signed. Because some defects had been noted in the house, the contract for sale called for inspections to be done for termite infestation and of the general condition of the building as well, and Respondent indicated these would be done. The building inspection was done by Guengerich Home Inspections, whose report indicated that roof repairs were needed. Ms. Hicks told Respondent that unless the damage was repaired at no cost to her prior to closing, she would not go through with the purchase. The Guengrich report, as to the roof, stated, inter alia,: Several water stains are noted inside the house but probably from a previous leak. The flat roof over the right end of the house is also of the same type gravel roof. It appears that several small areas were repaired previously. Also several small bubbles are noted near the A/C unit, one at the front and several at the right of the A/C. Should be checked by a roofer. Gutters appear to be in good condition. Some gravel and leaves in the gutter. There were three different termite inspections done. The first, by Royal Exterminator on September 30, 1988, was accomplished for the real estate company. It showed evidence of dry rot and termites with visible damage on the left side, on window trim, on the right rear external panel, on a door frame and on interior trim. No live organisms were noted. The report was sent to the real estate company but reflected Ms. Hicks as the buyer. The second inspection was done by Truly Nolen on October 7, 1988, also for the realtor because Mr. Murphy was not happy with the first one. It, too, reflected evidence of termites and dry wood decay in the same areas as previously described, and again, there was no indication that live organisms were found. A copy of this report was provided to Ms. Hicks at the time of closing by the Barnett Bank, not by Respondent. Though her acknowledgment appears on the form, she does not recall having seen it. The third inspection, by Hughes Exterminating Company, was done on January 31, 1989 at the request of Ms. Hicks. The substance of this report was the same as the two prior reports. Damage was noted even though Mr. Murphy paid a carpenter, Todd McCammack, to repair this damage on October 18, 1988, shortly after the second termite inspection. Respondent indicated to Ms. Hicks that the roof repairs, identified as needed by Guengerich, had been satisfactorily completed, and the testimony by deposition of Mr. Scarbrough indicates that is true. In September, 1988, Scarbrough repaired the leaks on the back portion of the roof and regraveled the bare spots which were noted but which were not leaking. Considering the evidence as it relates to the issue of the termite damage, dry rot damage, and roofing damage in its totality, it would appear, and it is so found, that Mr. Alberico arranged for the necessary repairs to be made and they were made. It is unclear as to whether he advised Ms. Hicks that the necessary repairs were made. While doing so may have avoided some of her displeasure and dissatisfaction with his performance, and might have obviated her complaint against him, it does not appear that his failure to provide her with copies of the repair orders, in light of the fact he advised her the repairs had been made, constitutes misconduct. He told her the repairs had been made and it appears they had been made. It is clear that the relationship between Ms. Hicks and the Murphys was neither smooth nor harmonious. She claims, for example, she was not offered a walk-through inspection of the house prior to closing, but there is indication she was taken there several times, at least once with consultants, before she made her offer. Ms. Hicks financed her purchase through the local Barnett Bank. Prior to applying there, she had applied with another lender, Reliant, which offered to finance her purchase but at an unacceptably high interest rate. After her initial attempts at financing were unsuccessful, she noted to Respondent that she was getting tired of the extended financing process and was considering pulling out of the transaction. Thereafter, Respondent loaned her $6,000.00 for a part of the down payment. She also was to get $7,000.00 from an aunt, $6,000.00 from her father, and a small amount from her mother. She told Respondent she was concerned that Barnett would not approve her loan if they knew she was borrowing a part of the down payment which had to be paid back. According to her, he suggested she have her aunt give her $13,000.00 for the down payment rather than $7,000.00 and then use his $6,000.00 to pay back her aunt after the loan went through. She did this and did not tell the bank about it even though she knew it was not "on the up and up." She did it, however, because she was afraid she would lose her deposit if she backed out of the transaction, and would not get her loan if the bank knew that some of the down payment was a loan which had to be paid back. In that regard, however, she has not paid Respondent any of the money she borrowed from him, claiming she holds him responsible for the house's defects which include the roof, the air conditioning, and the termite damage. Mr. Alberico indicates, with regard to the financing, that after Ms. Hicks received Reliant's lending proposal with the high interest rate, he took her to two other mortgage companies, neither of which would take her. Several days later, she allegedly called him and indicated that Barnett Bank, which had held her prior mortgage, might agree to finance her. As a result, he worked with Barnett, but did very little, aside from providing the information they requested. When Ms. Hicks indicated to him that she needed more money for the down payment, Mr. Alberico offered to lend her the $6,000.00 she said she needed. The loan was to be for a short term only, and he gave her the money without a note or mortgage as evidence of the debt. However, just before closing, she told him she had lied on the income verification form. As a result, he felt he had best get some security for his loan and, after closing, asked that she give him a promissory note for the $6,000.00 he had loaned her. Mr. Alberico denies he in any way urged Ms. Hicks to lie to the bank nor did he make any representations to the bank regarding the source of her funds. As a result of this transaction, Ms. Hicks filed a complaint against the Respondent with the Sarasota Board of Realtors, and a hearing was held before that Board on July 24, 1989 concerning the conduct of the Respondent and his broker, Mr. Maloof. According to Mr. Bruce B. Winter, Chairman of the Board's Professional Standards Committee, Mr. Alberico, though fully advised in advance of his right to be represented by counsel and to call witnesses and present evidence in his own behalf, nonetheless spoke for himself and presented neither witnesses nor documentation. Having heard all the evidence presented, the panel, on August 1, 1989, filed its decision on Ms. Hicks' complaint against Mr. Alberico and his broker. The Board found that with regard to the termite inspection, Mr. Alberico did not give copies to the complainant; did not inform her that two inspections were made; misrepresented the results of the inspection to the complainant; and later told her that work had been completed when it had not. The Board's findings do not appear to be supported by the evidence presented at the instant hearing, and are not considered binding on the undersigned. With regard to the home inspection report, the Board found that Mr. Alberico told Ms. Hicks the roof work had been completed when it had not, yet evidence presented at the instant hearing shows that the work was, in fact, completed. The Board also found that Mr. Alberico loaned Ms. Hicks the money for the down payment but did not record it nor inform the lender, "because they would not have made the loan", and that he may have induced the buyer to purchase a property beyond her financial capacity. It further found that he improperly gave legal advice to Ms. Hicks by advising her not to disclose his loan for the down payment to the lender. The evidence presented at the instant hearing clearly supports the conclusion that Respondent was a party to a dishonest action on the part of Ms. Hicks regarding her application for a loan. Her dishonesty, which she denied at hearing but is, nonetheless, found to have existed, appears to have been in the falsification of her earnings statement to be submitted to the lender and her failure to disclose the true source of her down payment. The local Board made several other findings of inappropriate activity on the part of Mr. Alberico with regard to his dealing with Ms. Hicks in this case. However, they are found to be not pertinent to the allegations under consideration here, and are not considered for any purpose in the resolution of the issues currently at hand.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be issued suspending Respondent, Henry J. Alberico's license as a real estate salesman for six months and assessing an administrative fine of $500.00 against him. RECOMMENDED this 6th day of December, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 6th day of December, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-3229 The following constitutes my specific rulings pursuant to S 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1.-3. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein, except for the fact that Ms. Hicks' viewing of the roof is not determinative of whether the required repair work was completed. & 8. Accepted and incorporated herein. 9. & 10. Accepted and incorporated except that the evidence reveals she was given a copy of a termite inspection report at closing and signed for it. Accepted. - 14. Accepted as to the fact that three termite inspections were conducted, all of which showed termite damage. All three, however, failed to indicate live termites, and the evidence also shows that the damage done by the prior infestation was repaired prior to sale. Accepted as to the fact that Respondent ordered the inspection but rejected as to his concealment. & 17. Accepted and incorporated herein. FOR THE RESPONDENT: 1. & 2. Accepted and incorporated herein. 3. - 9. Accepted and incorporated herein. Not a Finding of Fact but a comment on the evidence. & 12. Accepted and incorporated herein. 13. & 14. Not a Finding of Fact but a comment on the evidence. Accepted and incorporated herein. & 17. Accepted and incorporated herein. Not a Finding of Fact but a comment on the evidence. First three sentences accepted and incorporated herein. Balance merely a comment on the evidence. Accepted. & 22. Not Findings of Fact. Accepted and incorporated herein. Not a Finding of Fact, but the substance of his inspection and service report is accepted. Accepted. - 30. Not Findings of Fact in form but the substance is accepted. Not a finding of Fact but argument based on the evidence. Not a proper Finding of Fact. Accepted. Accepted. Not a Finding of Fact but a restatement of evidence. Accepted as to a lack of Respondent's contact with the Bank rejected as to misrepresentation conclusions. Not a Finding of Fact. & 39. Accepted and incorporated herein. 40. & 41. Accepted. 42. & 43. Accepted. 44. & 45. Accepted. 46. - 48. Accepted and incorporated herein. 49. Not a Finding of Fact but a Conclusion of Law. COPIES FURNISHED: Steven W. Johnson, Esquire DPR, Division of Real Estate Hurston North Tower 400 West Robinson Street Orlando, Florida 32801-1772 Thomas K. Marshall, Esquire 1800 - 2nd Street, #775 Sarasota, Florida 34236 Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact An administrative complaint was filed against Respondent Earl W. Adams, a registered real estate broker on July 27, 1977. Respondent holds license no. 0148042. The complaint alleged: That Mildred Muranyi contacted Respondent in May, 1976, for this services to locate investment property. Respondent suggested that Mrs. Muranyi consider the motel business and specifically the Seascape Motel owned by Joseph J. Brex and his wife. That Respondent drafted a contract under which Mrs. Muranyi agreed to purchase the Seascape Motel; that at the insistence of Mrs. Muranyi Respondent Adams placed a provision in the contract relating to termite inspection; that Respondent stated that he would have the Seascape Motel inspected for termites on behalf of Mrs. Muranyi; that at Respondent's request Broker Dorothy Kincel instructed Mr. Ken Treat of Terminix Pest Control to inspect the Seascape Motel; that upon beginning the inspection, evidence of termites and termite damage was found and this information was brought to the attention of Respondent whereupon Respondent contacted Mr. Baughn Kestetter of R.W. Collins Pest Control and requested a termite inspection of the Seascape Motel; that Respondent instructed the pest control agent to inspect only certain units of the Motel; that thereafter Respondent requested a clearance letter from Mr. Kerstetter regarding termites and was thereupon advised that inasmuch as the inspection was incomplete, no clearance letter would be given. That on or about June 16, 1976, Respondent wrote Mrs. Muranyi and advised her that the Seascape Motel had been inspected by Collins Pest Control for termites and no evidence of any infestation was located; that in reliance upon the representations of Respondent Mrs. Muranyi, on July 12, 1976 closed the sale and purchased the Seascape Motel. The Hearing Officer finds: The subject property, the Seascape Motel, was inspected by two termite companies, one company, Ken Treat of Terminix Pest Control began inspection and the inspector found termites present and notified the owner of the property. No Evidence was produced to show that Respondent had notice of the finding of the termites. A second pest control company, R.W. Collins Pest Control, was contacted but could not make a complete inspection of the property for the reason that part of the units were not available to the inspector. The inspector notified Respondent Adams that he could not write a clearance letter inasmuch as all units had not been inspected. The original contract had been changed by the parties to state that the property was sold in "as is condition." A letter of June 16, 1976 from Respondent Adams to the purchaser, Mrs. Milly Muranyi gave notice that no full termite inspection had been made. The Respondent, however, appears to be less than candid inasmuch as the broker stated in part "I would do nothing, I wouldn't do anything else regarding termite inspection prior to closing . . ." It is inconceivable that a person with knowledge of damage that can be done by termites could in good faith state that he would close a deal for himself in which the termite damage was unknown. Mr. Adams has dealt with coastal property which is subject to termite damage and it is good business practice to determine any damage that might be done to any structure before purchased. (a) Petitioner contends: that the representations and activities of the Respondent amounted to a fraud on the purchaser; that once evidence of termite damage to the property for sale was discovered by one firm the inspection was cancelled; that the inspection by the second pest control company was limited to portions of the property that were not infected by termites. (b) Respondent contends: that at the time the contract was signed the property was being bought in "as is condition" and that the contract shows a waiver of the termite clause and was initialled by the parties; that the purchasers were represented by a competent attorney; that the condition of the contract was not predicated upon "termites or not termites" and that the price of the motel had been lowered from the original asking price.
Recommendation Dismiss the complaint. DONE AND ENTERED this 11th day of September, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Kenneth Meer, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Earl W. Adams 206 Sand Dollar North Indialantic, Florida 32903
The Issue Did Respondent, Commercial Concrete Systems, LLC (Commercial Concrete), discriminate against Petitioner, Bernard Maybin, because of his race or color?
Findings Of Fact Mr. Maybin was an employee of Commercial Concrete in 2019. Mr. Maybin is a dark-skinned African-American. In 2019, Commercial Concrete reprimanded Mr. Maybin for tardiness and absenteeism on January 18, April 15, and August 16, 2019. On November 8, 2019, Commercial Concrete terminated Mr. Maybin for being absent all of the preceding 30 days. This was consistent with its policy of terminating employees who were absent for thirty days without communicating with the company. During at least some of the days that he was absent, Mr. Maybin was recovering from an automobile accident. He advised Commercial Concrete of the accident. But he did not advise it which days he would be unable to work due to the accident or request leave. He also did not communicate with Commercial Concrete during the period of absenteeism, beyond advising it of the accident when it first occurred. There is no evidence that any non-African-Americans or light-skinned employees with attendance failings similar to Mr. Maybin's were treated differently than him. There is no evidence of statements by any manager or other employee of Commercial Concrete alluding to Mr. Maybin's race or color. There is no evidence that non-African-American or light-skinned employees were paid more than Mr. Maybin or received vacation pay that he did not, although his petition makes that allegation. When Commercial Concrete discharged Mr. Maybin, it was not aware that he had filed a complaint of discrimination with the Commission.
Recommendation Based on the preceding Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief of Petitioner Bernard Maybin. 2 Federal case law dealing with Title VII applies when interpreting chapter 760. School Bd. of Leon Cty. v. Hargis, 400 So. 2d 103, 108 n. 2 (Fla. 1st DCA 1981). DONE AND ENTERED this 9th day of February, 2021, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 9th day February, 2021. Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Peter Shoup Commercial Concrete Systems, LLC 6220 Taylor Road, Suite 101 Naples, Florida 34109 Bernard Maybin 290 Lowell Avenue North Fort Myers, Florida 33917 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020
The Issue Whether Respondent, Department of Financial Services, Division of Workers' Compensation (Department or Respondent), should pay Petitioners’, Stephen Ogles, LLC, or RL Ogles Roofing, LLC (Petitioners), attorney's fees and costs under section 57.111, Florida Statutes (2013),1/ for initiating Division of Administrative Hearings (DOAH) Case Nos. 13-2448 and 13-2517.
Findings Of Fact Respondent is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation for the benefit of their employees and officers, pursuant to section 440.107, Florida Statutes. Petitioners are in the business of roofing, within the construction industry, as defined by subsection 440.02(8), and are Florida employers over whom Respondent has jurisdiction to enforce the payment of workers' compensation premiums for the benefit of Petitioners' employees. Petitioners are the sole members of their respective limited liability companies, each with one employee. An officer of a corporation may elect to be exempt from chapter 440, Workers' Compensation, by filing a notice of election with the Respondent. § 440.02(15)(b)1., Fla. Stat. An officer of a corporation who elects to be exempt from Florida's Workers' Compensation Law is not an employee. § 440.02 (15)(b)3., Fla. Stat. Jonas Hall is employed as an investigator for the Division of Workers’ Compensation. He has been conducting workers’ compensation compliance investigations for approximately five years, and during that time has been involved in between 2,000 and 3,000 investigations. On June 12, 2013, Respondent issued a Stop-Work Order and Order of Penalty Assessment to Stephen Ogles, LLC, and RL Ogles Roofing, LLC, and a Stop Work Order For Specific Worksite Only to Ogles Construction and Roofing, LLC. Findings of Fact 8 through 18 below set forth the specific facts and circumstances known to Respondent at the time the SWO was issued. These facts are based upon the testimony at hearing of Jonas Hall, which is found credible, as well as documentary evidence offered by Respondent, which is corroborative of Mr. Hall’s testimony. Mr. Hall began a random site investigation on June 12, 2013, after he noticed construction work about to be performed at a single-family dwelling located in Live Oak, Florida. Upon investigation, four men were found to be installing roofing at a private residence. One of those workers, Robert Ogles, advised Respondent's investigator that he was working with his three sons, Stephen, Matt, and Robert, Jr. Investigator Hall first spoke to the elder Robert Ogles who advised Investigator Hall that he was the general contractor on the job and that his sons were working as subcontractors. At no time during the interview did Robert Ogles state that his sons were employees of his company, Ogles Construction and Roofing, LLC. Investigator Hall next spoke to Stephen Ogles who stated that he owned his own business and had a valid workers’ compensation exemption. Investigator Hall then spoke to the younger Robert Ogles who also advised him that he owned his own business and had a valid workers’ compensation exemption. Finally, Investigator Hall spoke to the third son, Matt Ogles, who also stated that he owned his own business and had a valid workers’ compensation exemption. At no time during the interview of June 12, 2013, did any of the three sons state that they were employees of their father’s business. After interviewing the four Ogles, Investigator Hall left the jobsite in order to gain access to a wireless internet connection for his computer. Once he obtained a connection, Investigator Hall accessed the Division of Corporations website to look up the correct names of the businesses owned by the four Ogles. With respect to the two Petitioners, the website revealed that Stephen Ogles was the sole member of Stephen Ogles, LLC, and that Robert Ogles, Jr., was the sole member of RL Ogles Roofing, LLC. Investigator Hall then accessed the Coverage and Compliance Automated System (CCAS) to ascertain the status of workers compensation coverage for the four individuals. CCAS revealed that while both Petitioners had at one time held exemptions, both exemptions had expired at the time of Investigator Hall’s site visit on June 12, 2013. Based upon this information, Investigator Hall reasonably concluded that both Petitioners were not in compliance with Florida workers’ compensation coverage requirements. With respect to the third son, Matt, Mr. Hall’s investigation revealed that his company, Matt Ogles, LLC, held a valid exemption, and was therefore compliant with the workers compensation coverage requirements. As such, Investigator Hall did not issue an SWO to Matt Ogles, LLC. After accessing information about Petitioners’ status on his computer, Investigator Hall returned to the jobsite. Upon his return, he observed all four of the Ogles working at the jobsite, with two actively working on the roof of the home. Investigator Hall then called those on the roof down, and served the SWOs on Petitioners. The facts uncovered in Investigator Hall's investigation on June 12, 2013, provided the Department with a reasonable basis to issue the SWOs to Petitioners. On June 17, 2013, Petitioners timely filed a Request for Hearing alleging the affirmative defense that Petitioners had valid workers' compensation exemptions. The Request for Hearing filed on behalf of Stephen Ogles, LLC, specifically stated: The Respondent disputes the SWO, to wit: The Owner’s exemption was not expired. And although worded somewhat differently, the Request for Hearing filed on behalf of RL Ogles Roofing, LLC, stated: The Respondent disputes the SWO, to wit: The WC Exemption was current. The Requests for Hearing filed by Petitioners on June 17, 2013, are consistent with the representations made to Investigator Hall on June 12, 2013, to wit, both Petitioners were subcontractors on the job, and held valid exemptions. On September 10, 2013, Petitioners filed an Amended Request for Hearing disputing the penalty assessment, and contending that Petitioners were employees of Ogles Construction and Roofing, LLC. The Amended Request for Hearing stated in pertinent part: The Respondents disputes the SWO, to wit: Ogles Construction and Roofing LLC disputes the penalty assessment. RL Ogles, LLC contends that he was an employee of Ogles Construction and Roofing, LLC. Stephen Ogles, LLC contends that he was an employee of Ogles Construction and Roofing, LLC. On October 8, 2013, Respondent issued an Order Releasing Stop-Work Order (Revocation) to Stephen Ogles, LLC, and RL Ogles Roofing, LLC. Two witnesses testified as to the reasonableness of the attorney’s fees being sought by Petitioners. Petitioners’ witness on the subject, John Middleton, is a Jacksonville attorney with eight years’ experience in handling workers’ compensation defense matters. Mr. Middleton opined that the $5,000 in fees being claimed by each Petitioner was not excessive, particularly in view of the successful outcomes for Petitioners in the underlying cases. Respondent’s witness, Ralph Paul Douglas, Jr., is a Tallahassee attorney who has concentrated his practice on workers’ compensation matters for twenty years. Mr. Douglas testified that Petitioners’ attorney in the underlying cases claimed 13.3 hours per case for legal services. However, according to Mr. Douglas, at least 1.3 hours of the total hours should be deducted as not awardable due to those hours relating to the preparation of a motion in response to an order to compel. Such fees “cannot be related to any delay, any confusion caused by that party claiming the fees, . . . obfuscation, . . . anything that does not move the case along in the docket.” It was Mr. Douglas’s opinion that 12 hours of legal services is a reasonable number for the underlying cases. However, since the same itemized list of services was submitted for both cases, Mr. Douglas concluded that the second itemized list was duplicative and mostly amounted to only ministerial work. The second itemized list should be, therefore, apportioned. Mr. Douglas testified that a $10,000 fee for the work done on the underlying cases would not be appropriate or reasonable based on the pleadings, the deposition testimony of the attorney performing the work, and the itemization of services. Rather, a reasonable fee would be 12 hours at $200 per hour for one case ($2,400) and $1,200 on the second case. Thus, the total fees that should be awardable for both cases would be $3,600. While the testimony of both Mr. Middleton and Mr. Douglas is credible, the undersigned gives greater weight to the testimony of Mr. Douglas due to his greater experience in the field of workers’ compensation law, and his more detailed analysis of the legal services performed in the underlying cases. The unrebutted testimony presented by Stephen Ogles and Robert Ogles, Jr., established that their respective LLC’s employ fewer than 25 full-time employees and have a net worth of less than $2 million each.
The Issue The issues are whether Respondent committed the several violations of Sections 489.129(1)(h)2.,(h)3.,(j),(k), and (n), Florida Statutes (1997), for the reasons stated in the respective Administrative Complaints and, if so, what, if any, penalties should be imposed. (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of contracting. Respondent is licensed as a certified general contractor pursuant to license number CG C059414. At all relevant times, Respondent was the qualifying agent for Fred T. Garrett Construction, Inc. ("FTG"). As the qualifying agent, Respondent was responsible for all of FTG's contracting activities in accordance with Section 489.1195, Florida Statutes. Respondent failed to obtain a certificate of authority for Fred T. Garrett Construction, Inc., as required by Section 489.119(2), Florida Statutes. The St. Cyr Case On or about August 21, 1998, Respondent entered into a contract with Louis L. St. Cyr to construct an addition to the residence located at 201 South Bel Air Drive, Plantation, Florida. The contract price was $50,000. Although Mr. St. Cyr paid $2,500 to Respondent, Respondent failed to commence work and canceled the project, thereby abandoning it without just cause and without proper notification to Mr. St. Cyr. The contract did not permit Respondent to keep the $2,500 paid by Mr. St. Cyr, and Respondent failed to refund the payment within 30 days after abandonment. Out of the $2,500 he received from Mr. St. Cyr, however, Respondent paid $1,600.00 to the architect before abandoning the project. Thus, the net amount that Respondent owes to Mr. St. Cyr is $900. Petitioner incurred a total of $1,092.28 in investigative costs relating to the St. Cyr case. The Forney Case On May 22, 1998, Respondent, who was doing business as FTG, entered into a contract with Mr. Warren Forney for the construction of a two-bedroom, one-bath addition to the residence located at 1698 Northeast 33rd Street, Oakland Park, Florida. The contract price was $32,500. The contract with Mr. Forney did not contain a written statement explaining the customer’s rights under the Construction Industries Recovery Fund, as required by Section 489.1425(1), Florida Statutes. On July 7, 1998, Respondent obtained permit number 98-050297 from the Oakland Park Building Department. Construction commenced on or about July 7, 1998, and continued sporadically until October 29, 1998, when Mr. Forney dismissed Respondent for failure to timely complete the project. The Oakland Park Building Department issued notices of violation against the project on August 3, September 11, and October 14, 1998, for various building code violations. Mr. Forney was forced to obtain a homeowner’s permit and subsequently hired a subcontractor to complete the work. Mr. Forney paid Respondent approximately $29,250 before relieving Respondent of his duties. To complete the project, Mr. Forney paid a total of $48,746.52, which was $15,396.52 over and above the original contract price. Petitioner incurred a total of $2,190.78 in investigative costs relating to the Forney case. The Kong Case In or around January 1998, a contractor named Lakeview Concepts hired Respondent to perform demolition work for the Kong dry cleaning store project on the property located at 5171 South University Drive, Davie, Florida. On or about June 17, 1998, permit 98-00002349 was issued to Respondent to perform alterations on commercial property located at 5171 South University Drive, Davie, Florida. Respondent, however, did not yet have a contract with the owner for this work. The next month, on or about July 30, 1998, Respondent, who was doing business as FTG, entered into a contract with Shek Kong to complete the dry cleaning store project at 5171 South University Drive, Davie, Florida, for the contract price of $22,300. Shek Kong made payments to Respondent totaling $16,000. Respondent’s work was of poor quality, however, and on or about November 6, 1998, he ceased work, though the project had not been completed. On or about November 14, 1998, Douglas Frankow, license number CB C052960, gave Mr. Kong an estimate of $20,562 to complete the project. Thereafter, on or about June 30, 1999, Mr. Kong contracted with George Settergren, another licensed contractor, to complete the project for a contract price of $27,956. On December 9, 1999, in Case No. 98-020065 08, the Circuit Court, Seventeenth Judicial Circuit, Broward County, Florida, rendered a Final Judgment against Respondent and in favor of Mr. Kong. This judgment awarded Mr. Kong the total amount of $28,693.30, plus 10 percent interest per annum. Petitioner incurred a total of $2,502.78 in investigative costs relating to the Kong case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Construction Industry Licensing Board enter a Final Order finding Respondent guilty of violating Sections 489.129(1)(h)2., (h)3., (j), (k), and (n), Florida Statutes, imposing administrative fines in the aggregate amount of $3,700, assessing investigative costs in the aggregate amount of $5,785.84, placing Respondent's license on probation for a period of four years from the date the Final Order is entered by the Board, and awarding payment of restitution to each customer as follows: (1) to Warren Forney, the amount of $15,396.52; (2) to Shek Kong, satisfaction of the unpaid civil judgment in the amount $28,693.30, plus 10 percent interest accrued thereon; and (3) to Louis L. St. Cyr, the amount of $900. DONE AND ENTERED this 15th day of February, 2002, in Tallahassee, Leon County, Florida. _________________________________ JOHN G. VAN LANINGHAM 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 15th day of February, 2002.
