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
Findings Of Fact The Petitioner is the Department of Professional Regulation. The Respondent is John W. Hammel, holder at all times pertinent to these proceedings of certified general contractor license number CG-CA16780 issued by the Petitioner. His address of record is Dania, Florida. On or about June 17, 1986, the Respondent entered into a contract with a property owner named Vance Lee. The Respondent agreed to remodel Lee's duplex housing unit for the total sum of $15,200 and, in effect, turn the duplex into a four unit complex. The parties agreed the total sum would be paid in four installments. The owner was originally assured by the Respondent that all construction could be completed within six weeks of contract execution. Shortly after August 4, 1986, and after receipt from the owners of all amounts to be paid under the contract, except the final payment due upon project completion of $1,500, the Respondent left the construction site. At that time, approximately thirty percent of the required construction remained uncompleted. As a result of pressure by the owner and the filing of the administrative complaint in this cause, he has worked there since that time on a "spasmodic" basis. One day of work every two months reflects the average record of the Respondent's efforts to complete construction activities. At the hearing held in this cause, the Respondent admitted he had not completed the construction job in a timely and reasonable manner and that twenty to twenty-five percent of the construction job was still uncompleted. Among the tasks, at time of hearing, yet to be completed were some plumbing installations (including a missing hot water heater), a fire wall between two units, an uncompleted ceiling in one of the units, and certain landscaping requirements related to the front drive of the building. The Respondent's explanation, offered in mitigation of his failure to complete the construction job in a timely and reasonable manner, is that his business partner quit and left Respondent with the sole responsibility for completion of eight other jobs. Due to financial problems, he has been working his way through those jobs in chronological order. The job which is the subject of this proceeding was the last job taken before the partner departed and hence is the last to be completed. As a result of the Respondent's failure to timely complete the project, the building permit expired, resulting in the issuance of a violation citation by the local city government. At hearing, Respondent represented that he would complete the contract at issue, and requested leave to submit a post hearing mitigation exhibit to demonstrate completion of the project. With Petitioner's agreement, Respondent was granted leave until May 2, 1988 to file his exhibit. The exhibit was untimely, mailed approximately three days after the required date for filing, but the Petitioner waived objection to the late filing. The exhibit established that Respondent completed construction on the project to the satisfaction of the property owner after the hearing had in this cause. Further, the exhibit established that a certificate of occupancy for the premises, denoting completion in accordance with local governmental building requirements, had been issued by the City of Fort Lauderdale. As an additional mitigation gesture, the Respondent waived his right to receipt of the remaining payment of $1,500 from the property owners.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered assessing the Respondent an administrative penalty of $500 in accordance with disciplinary guidelines set forth in section 21E-17.001(19), Florida Administrative Code. DONE AND RECOMMENDED this 27th day of May, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 27th day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 5310 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. PETITIONER'S PROPOSED FINDINGS Included in finding number 2. Included in finding number 3. Included in finding number 4. Included in finding number 4. Included in finding number 7. Included in findings 4, 5, 6, 8, 9 and 10. Rejected as a conclusion of law. Rejected as a conclusion of law. COPIES FURNISHED: Michael J. Cohen, Esquire 517 South West First Avenue Ft. Lauderdale, Florida 33301 Mary E. Hammel, Esquire 501 South East 12 Street Ft. Lauderdale, Florida 33316 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely Executive Director Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201
The Issue The issues are whether Respondent violated Section 475.25(1)(b), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the duty of prosecuting administrative complaints pursuant to Chapters 455 and 475, Florida Statutes. Respondent is and was, at all times material hereto, a licensed Florida real estate salesperson. He holds license number 0487661. Respondent was working as a real estate salesperson in association with Global Realty of Volusia, Inc. (Global Realty) in Deltona, Florida, when he received his current license. In 1993, Paul Costello owned a residence (hereinafter "the property") in Deltona, Florida. Mr. Costello lived in Miami, Florida. He rented the property to tenants who informed him that cracks were developing in the property's driveway. Additionally, the house was settling and cracking. Mr. Costello subsequently made a claim for the property's reported distress on his homeowner's insurance policy with Republic Insurance Company. The insurance company retained a geotechnical engineering firm to determine the cause of the reported distress. The engineering firm made a site visit to the property on August 22, 1993. A visual inspection revealed cracks up to one and one-half inches wide in the exterior walls of the garage. The engineering firm completed its investigation in September 1993 and concluded that the property was subject to sinkhole conditions/activity. Based on the recommendations of the engineering firm, the insurance company hired a grouting contractor. Deep cement grout injections and shallow grouting (mudjacking) were performed in an attempt to stabilize the loose soil conditions on the property. Steel piles were used to raise and support the structure's footing. The stabilization effort took approximately two months to complete. In 1995, Shawna Lee Christenson and Janice Beery worked as licensed real estate salespersons for Choice Properties, Inc., (Choice Properties) in Deltona, Florida. Jean Gillian, a licensed real estate broker and owner of Choice Properties, gave Ms. Christenson and Ms. Beery their first employment as real estate sales associates. Because they were new to the real estate profession, Ms. Gillian directed Ms. Christenson and Ms. Beery to work as partners. Respondent was also working at Choice Properties when Ms. Gillian hired Ms. Christenson and Ms. Beery. He worked for Choice Properties for several weeks before returning to Global Realty as a sales associate. Sometime prior to October 22, 1995, Ms. Christenson received a call from a woman in Orlando. The woman, a friend of Mr. Costello's, requested Ms. Christenson to perform a market analysis on the property. Ms. Christenson and Ms. Beery performed the market analysis on the property. Subsequently, they received permission from Mr. Costello to list the property for sale as a multiple listing. Ms. Christenson and Ms. Beery signed a listing agreement with Mr. Costello. About that time, or soon thereafter, Ms. Christenson had a telephone conversation with Mr. Costello. During the conversation, Mr. Costello informed Ms. Christenson about possible prior sinkhole activity on the property. Ms. Christenson and Ms. Beery discussed the problem with Ms. Gillian. Everyone at Choice Properties thought the situation was humorous because the property was the first listing for Ms. Christenson and Ms. Beery. Later, Mr. Costello sent Ms. Christenson a document with the name of the geotechnical engineering firm. Ms. Christenson then contacted Mike Wilson, a friend who worked in soils engineering. Mr. Wilson contacted the engineering firm and requested that a copy of its settlement claim evaluation report be sent to Ms. Christenson. Ms. Christenson placed a copy of the engineering firm's report in the property's file at Choice Properties. She disclosed the possible sinkhole activity to everyone who called about the property. She advised all callers that the report was in the file. After learning about the possible sinkhole activity, real estate agents would not show the property to their customers. Sometime in October 1995, Barbara Redding, a single disabled female, contacted Respondent after seeing an advertisement in the newspaper. Respondent was aware that Ms. Redding was a recipient of Social Security benefits. On or prior to October 22, 1995, Respondent telephoned Ms. Christenson to inquire about the property. He told Ms. Christenson that he had a client (Ms. Redding) who was a Social Security recipient and really needed a home. Respondent was interested in the property because it was within Ms. Redding's price range and had an assumable mortgage. Ms. Christenson disclosed the possible sinkhole activity to Respondent. She told him that the engineering firm's report was in the file. Respondent declined Ms. Christenson's offer to fax the report to him. Ms. Christenson was surprised to learn that Respondent intended to show the property to Ms. Redding despite the disclosure about the sinkhole activity. Sometime after the initial phone call, Ms. Beery was outside the office of Choice Properties smoking a cigarette. Ms. Christenson was with Ms. Beery when Respondent arrived. As he walked into the office, Respondent joked about the fact that Ms. Christenson's and Ms. Beery's first listing was on a sinkhole. Respondent showed Ms. Redding four or five houses, including the subject property. After seeing the property, Ms. Redding contacted Respondent to make an offer to purchase it. Respondent prepared a contract for sale and purchase, which Ms. Redding signed on October 22, 1995. Respondent was acting as buyer's agent for Ms. Redding. The contract states that a deposit in the amount of $100 was held in escrow by "Associated Land Title upon acceptance by October 30, 1995." Respondent included the following language in the contract as an addendum: Seller agrees to remove branch from roof and repair roof and soffit where branch is presently lodged. This offer is contingent on Buyer receiving settlement from Social Security that has already been awarded. Seller agrees to close at Associated Land Title contingent on all payments being up to date. Regardless of principal balance, cash to mortgage [sic] will be $6,000 (six thousand dollars.) Respondent hand-delivered the contract for sale and purchase to Choice Properties. Mr. Costello, through Ms. Christenson and Ms. Beery, made a counter offer for a higher purchase price and a $500 deposit. The counter offer eliminated language in the contract addendum related to removal of the branch and repair of the roof. It also deleted the language related to $6,000 cash payment. The offer included an additional addendum to the contract that stated as follows: Buyer acknowledges that there has been disclosure regarding the driveway and previous activity affecting it. Seller reserves the right to leave property on market to entertain offers. Buyer acknowledges property is being sold "AS IS." Ms. Christenson and Ms. Berry asked Ms. Gillian to review the language in the contract addendum before they returned the contract to Respondent. After Ms. Gillian approved the statement, Ms. Christenson and Ms. Berry returned the contract to Respondent. Ms. Redding only had $100 in cash for a deposit. Respondent offered to loan her the other $400. Ms. Redding accepted Respondent's offer and signed a promissory note to that effect. Ms. Redding subsequently paid Respondent the $400 that she owed him. When Ms. Redding reviewed the counter offer, she asked Respondent about the additional language in the contract addendum stating that the buyer acknowledged disclosure about the driveway and previous activity affecting it. Respondent told Ms. Redding that the driveway had been cracked and that a new driveway had been put in. Respondent never discussed possible sinkhole activity with Ms. Redding. The contract closed in November 1995. After painting the house, Ms. Redding moved in on January 20, 1996. Sometime in March or April of 1996, a friend of Ms. Redding's asked her if she knew she had purchased a home on a sinkhole. Ms. Redding then discovered that all of her neighbors were aware of the problem. Ms. Redding contacted Richard Meyer, a professional geologist who works for the Volusia County Environmental Management Department. Mr. Meyer inspected the property in August 1996 and on three subsequent occasions. In the meantime, Ms. Redding contacted Ms. Christenson and Ms. Beery. They told Ms. Redding that they had advised Respondent about the sinkhole activity prior to Ms. Redding's purchase of the property. Ms. Gillian showed Ms. Redding a copy of the engineering report from the property's file at Choice Properties. Ms. Gillian gave Ms. Redding a copy of the report. Ms. Redding showed the engineering report to Mr. Meyer on one of his visits. Mr. Meyer determined that the property definitely was subject to sinkhole activity. He concluded that the property was a "slow sinking hole." Ms. Redding did not contact Respondent after she learned about the sinkhole on the property. At that point in time, Ms. Redding felt intimidated by Respondent. One day Ms. Redding heard a loud crunch as she was going into her garage. She asked the fire department to inspect the property to determine whether it was safe as a dwelling. The fire department determined that the property was not safe for habitation. Ms. Redding moved out of the house and had it demolished in October 1996 after the fire department condemned it. Ms. Redding's insurance company "totaled" the property.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Real Estate Commission enter a final order revoking Respondent's real estate license. DONE AND ENTERED this 28th day of June, 1999, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 28th day of June, 1999.
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 Alinco Associates, Inc. (Alinco) is a corporate real estate broker and was so registered with FREC at all times material herein. Alfred C. Couric, Jr., Carol L. Astin, and Reginald D. Lucas are real estate brokers and at all times material herein were so registered with FREC. Respondent Alinco was the listing broker for a home at 7110 Filmore Street, Hollywood, Florida, owned by Jones. In December, 1977, Mrs. Jones had a termite inspection by Orkin. The inspector reported active termite infestation in the attic and induced Mrs. Jones to sign a contract for tenting and fumigation. After talking to salesman Boland and his supervisor and listing broker, Respondent Lucas, Mrs. Jones commissioned a second inspection by Harry Pope, a licensed termite inspector. Pope also found active termite infestation and so advised Mrs. Jones. When told by Mrs. Jones that she had already entered into a contract with Orkin, Pope did not further pursue the matter. Respondent Lucas called Pope's office after the inspection but Pope was out and his secretary said he left no word there was active infestation. Lucas assumed from this that termites were not found. Pope never relayed his findings to anyone other than Mrs. Jones. Mrs. Jones rescinded the fumigation contract she had entered into with Orkin. After the Contract for Sale had been executed and a "solid" sign appeared on Jones' property the Orkin salesman revisited Mrs. Jones to inquire about the fumigation and was told she would call when ready. Approximately thirty days prior to closing, salesman Boland, on behalf of the purchaser, ordered an inspection by DeLeva Exterminating, Inc. Robert W. DeLeva, President of DeLeva Exterminating, Inc., inspected the residence at 7110 Filmore Street on March 8, 1977, found no evidence of active termite infestation and submitted a termite clearance report which was presented to the buyers at closing. Some three weeks after the closing and occupancy of the house, the purchaser Menendez was advised by the Orkin inspector that he had found evidence of termites. Menendez then called DeLeva who again inspected the premises and on this inspection found evidence of active termite infestation. No evidence was presented that any Respondent other than Lucas (and former Respondent Boland) as aware of the Orkin inspection and report. DeLeva Exterminating, Inc. is a licensed corporate termite inspector as is Orkin, but neither the Orkin inspector nor Robert DeLeva was a licensed inspector when their inspections were made. Robert DeLeva has conducted numerous termite inspections but, following this incident, limits his field of operations to fumigation for which he is licensed.
The Issue Whether petitioner suffered age discrimination for which Black & Veatch is answerable, when an employee of Black & Veatch objected to petitioner's becoming the safety engineer for M. A. Mortenson Company, the general contractor on a project for the Orlando Utilities Commission for which Black & Veatch was construction manager?
Findings Of Fact Since 1940, petitioner Jack Keels has been in the construction business, "95 percent of it would be . hydroelectric dams along the Columbia and Snake Rivers." (T.13) He has worked as a laborer, carpenter, an iron worker, a craft superintendent, a shift superintendent, a general superintendent, a craft foreman, a shift foreman and a general foreman. Aside from a wealth of practical experience, he has taken "probably 200 or 250 hours of classes on safety and first aid." (T. 13, 14) He has "been acting safety director on five or six jobs" (T.14) and once was responsible for the safety of 300 men. When he began work for M.A. Mortenson Company (Mortenson), however, on the Curtis H. Stanton Energy Center job (Stanton) , a coal-fired plant Mortenson was building for the Orlando Utilities Commission (OUC), Mr. Keels was a crane Coordinator without "assigned responsibility for safety." (T.93) But Mr. Keels offered suggestions about how to improve safety and spoke to Mortenson's Bill King regularly on such topics as safety latches for the hooks, proper nets, electrical splices, man baskets that were not regulation, and the like. When a new crane arrived on the site, Mr. Keels asked the general superintendent where the blocks were to test the crane and was told there were none and they had not been testing the cranes. There were other "flagrant violations" of safety regulations including widespread disregard for the rules requiring workmen to wear hard hats and forbidding them to bring glass containers onto the construction site. Although another contractor at Stanton, Babcock & Willcox, seemed to be doing worse as far as safety, Mortenson's practices were below average in Mr. Keels' opinion. This was also the impression key personnel at Black & Veatch had of Mortenson's performance. As the owner's representative at Stanton, Black & Veatch had invoked OUC's right under "option BC. 4. 1. of the . . . contract," Respondent's Exhibit No. 6, to require Mortenson to appoint a full-time safety engineer, in May of 1984. Bill King was Mortenson's safety director or designated safety engineer, when Mr. Keels started. Bill King left the job in February of 1985, and Mortenson's Mr. Barbato suggested replacing him with petitioner Keels. Mortenson did not propose this formally in writing, but Mr. Barbato explained to Richard F. King, Black & Veatch's project loss control manager at Stanton, that the work had reached a point that Mr. Keels' services as crane coordinator were no longer needed and that naming him safety engineer would make it possible to keep him on. He never told anybody at Black & Veatch about Mr. Keels' considerable background in construction safety. Petitioner and Black & Veatch's Paul William Weida had twice differed with each other on issues of safety: Once Mr. Weida objected to work on a generator pedestal going forward without a handrail in place. At the time, carpenters working for Mortenson were installing concrete forms on top of the pedestal, some distance above ground. Mr. Keels pointed out that they were wearing safety belts, and argued that a handrail could constitute a hazard as they moved around bolting and nailing the forms. The other dispute about which both men testified had to do with a bent crane lattice. The lessor of the crane told petitioner there was no need to replace that section of the lattice, but a representative of the manufacturer told Mr. Weida replacement would be best. Over petitioner's strenuous objection, Mr. Weida insisted that the damaged lattice be replaced. These confrontations left Mr. Weida with the impression that petitioner would be difficult to work with and also made him skeptical about petitioner's commitment to safety, a skepticism to which petitioner vehemently and perhaps justifiably objects. Under the contract between OUC and Mortenson, Black & Veatch had the right, as OUC's representative, to veto any candidate for safety engineer. The agreement provided, "During the life of the contract, replacement personnel will also be subject to interview and approval by the Owner." Respondent's Exhibit No. 7. Mr. Weida objected to Mr. Keels, and Richard F. King backed him up. Neither Mr. Weida's nor Mr. Richard King's opposition to Mr. Keels' being named safety engineer was in any way related to Mr. Keels' age, which, incidentally, was not proven with any specificity. After receiving indications from Black & Veatch that Mr. Keels would not be an acceptable safety engineer at Stanton, Mortenson laid him off, in February of 1985. By November of 1985, Mortenson had finished its work at Stanton.
