The Issue Whether Respondent, a certified general contractor, violated the construction industry licensing law, by: (1) willfully or deliberately disregarding and violating the applicable building codes or laws of the State or any municipalities, cities or counties thereof; (2) diverting construction funds resulting in his unwillingness or inability to perform pursuant to a construction contract; and (3) abandoning a construction project; and if the Respondent is guilty of such violations, the appropriate disciplinary penalty which should be imposed by the Construction Industry Licensing Board.
Recommendation That Respondent's certified general contractor's license No. CGC005174 be suspended until such time as Respondent furnishes the Board satisfactory evidence of having made restitution to Simon H. and Alexandra U. Ramos in the amount of $2,515 for monies expended by them to pay for lumber, electric and plumbing charges arising out of their construction contract.
The Issue Whether Petitioner should be granted additional credit for one or more examination questions answered by him during the June 1990 Certified Building Contractor Examination.
Findings Of Fact Petitioner sat for the June 1990 certified building contractor examination. On Part II, he received a score of 68.0. A minimum passing score is 69.01. On Part III, he received a score of 71.00. Minimum passing score is 69.01. Petitioner had previously passed Part I of the exam. Petitioner initially challenged question numbers 6, 13 and 14. Upon completion of the testimony, Petitioner withdrew his challenges to question numbers 13 and 14. The National Assessment Institute prepares licensure examinations for building contractors in the State of Florida under authority of the Office of Examination Services, Department of Professional Regulation. The Institute prepared question number 6 for the certified building contractor examination administered on June 26 and 27, 1990. Question number 6 tested the candidate's ability to calculate the time necessary for a crew to excavate, form and pour concrete for a reinforced concrete curb and gutter in a parking area and have it inspected. The candidate was asked to select the earliest date that concrete can be scheduled to be poured. Four dates were given: (A) June 11, (B) June 13, (C) June 15, and (D) June 18, 1990. The Institute determined that the only correct answer was: (D) June 18, 1990. The Petitioner selected: (C) June 15, 1990. Part of the instructions to the examination candidates stated: "The inspection request will NOT be called in the day the work is completed." The evidence was undisputed that preliminary calculations indicate with regard to question 6 the mathematical approach to the solution demonstrates that the work will take nine days (rounded up), starting June 1 and completed on June 13, and, therefore, the inspection is to be called in on Thursday, June 14, 1990. The third paragraph of the question states: Inspections have been taking one day from the time the inspection is called in until the time the inspection is completed. Inspections can NOT be called in or performed on Saturdays or Sundays." The first sentence of the fourth paragraph states: "The concrete is to be placed the day after the inspection is completed." (Emphasis supplied) The Department's position is that the plain language of the question indicates that it would take one day or 24 hours from the date the request for inspection was called in (June 14) until the inspection was completed which would be June 15. Since the instructions were clear that the concrete cannot be poured on the same day the inspection is completed or on Saturdays or Sundays, then the earliest date that the concrete can be scheduled is Monday, June 18, 1990, or answer (D). The Petitioner argues that it is not uncommon in the construction industry to "call in" an inspection in the morning and have it completed on the same date (in one day). Therefore, since it is undisputed that the inspection is to be "called in" on Thursday, June 14, that it was reasonable and logical for him to conclude that the inspection would also be completed the same date. Since the question instructed that the concrete is to be placed the day after the inspection is completed, he selected answer (C), June 15, 1990 (a Friday) as the correct answer. The Department does not dispute that it is common practice in the construction industry for an inspection to be called for and completed in one day. The Department's determination that answer (D) was the only appropriate answer was arbitrary and unreasonable.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner be awarded four points for his answer to question number 6 of Part II of the Certified Building Contractor examination for June, 1990. Petitioner be awarded a passing grade for Parts II and III of the examination. DONE AND ENTERED this 28th day of March, 1991, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 28th day of March, 1991. APPENDIX 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 of fact. Accepted in substance: paragraphs 1,2,3,4,5,6,7,10 Rejected as argument: paragraphs 8,9 Respondent's proposed findings of fact. Accepted in substance: paragraphs 1,2,3(included in Preliminary Statement), 4(in part),5. Rejected: paragraph 4(in part, as against the greater weight of the evidence and argument), 5 and 6(challenge withdrawn) Copies furnished: George Solar 1302 West Adalee Street Tampa, Florida Vytas J. Urba, Esquire Senior Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Daniel O'Brien, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Jack McRay, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue presented for decision herein is whether or not the Respondent, David H. Tinius, unlawfully abandoned a construction project; diverted funds received for completion of a construction project and thereby failed to fulfill his contractual obligations.
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. By its administrative complaint filed herein signed October 6, 1982, the Petitioner, Construction Industry Licensing Board, seeks to suspend, revoke or take other disciplinary action against the Respondent's registered building contractor's license. During times material herein, Respondent was a registered building contractor and has been issued license No. RB0024083. On approximately April 20, 1978, Respondent entered into a contract with Jess Marks to build a residence in Tamarac, Florida, for the sum of $46,551. Respondent commenced construction of the Mark's residence but left the site when it was approximately forty percent complete. At that time, Respondent had received approximately $44,000 of the contract sum. Jess Marks completed the construction of his residence by hiring another contractor to complete the project and expended approximately $50,000 over and above the contract price as agreed upon by the Respondent to complete his residence. Respondent never returned any of the monies received from the Marks for completion of the residence. On approximately April 24, 1978, Respondent entered into a contract with Abe Abrahams to construct a residence in Tamarac, Florida, for the sum of $30,473. Respondent left the Abrahams' project after he had received $6,000 and had completed approximately ten percent of the work on the Abrahams' residence. Respondent did not return to the site nor did he return any of the monies received from the Abrahams for the construction of their residence (See Petitioner's Composite Exhibit No. 5). The Abrahams had to pay for supplies and material bought for the project by the Respondent and which reportedly had been paid, according to Respondent. THE RESPONDENT'S POSITION As noted hereinabove, the Respondent did not appear to contest or otherwise refute the allegations contained in the administrative complaint filed herein. However, Respondent, through counsel, filed an answer which admitted the complaint allegations filed herein.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, hereby RECOMMENDED that the Respondent's registered building contractor's license No. RB0024083 be REVOKED. DONE and RECOMMENDED this 29th day of August, 1983 in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1983 COPIES FURNISHED: Michael J. Cohen, Esquire 2715 East Oakland Park Boulevard Suite 101 Fort Lauderdale, Florida 33306 David H. Tinius 4420 Northwest 36th Court Lauderdale Lakes, Florida 33309 David H. Tinius Post Office Box 6338 Charlotte Amalil St. Thomas, U.S.V.I. 00801 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Based upon the stipulated facts, only one issue, a legal one, must be resolved. The issue is whether Section 489.111(4)(c), Florida Statutes, is properly applied by the Board which interprets this section to require a minimum of four years of experience as a certified contractor. Having considered the statute and the Board's position in applying the interpretation above, it is concluded that the Board's interpretation is erroneous.
Findings Of Fact The Petitioner, Margaret K. Roberts, was licensed as a Certified Building Contractor October 19, 1984. Petitioner filed an application to take the State Certified General Contractor's Examination on or about December 19, 1984. At the time Petitioner applied to take the Certified General Contractor's Examination, she held Certified Building Contractor's License No. CB C031970 and she had four years of proven experience in the Certified Building Contractor's field, although she had only been certified as a building contractor since October 19, 1984. One may obtain experience in an area of contracting without being certified. Petitioner is not qualified by virtue of holding a baccalaureate degree or experience as a residential contractor. Petitioner was not certified as a building contractor for four years prior to applying for the general contractor's examination. Petitioner's only basis of claimed eligibility to take the General Contractor's Examination is Section 489.111(4)(c), Florida Statutes. The Respondent denied the Petitioner's application to take the certification examination because of insufficient time as a certified building contractor in accordance with Florida Statutes 489.111(4)(c). Other than the issue of requisite experience as a certified contractor, Petitioner meets all other statutes and Board Rules regarding eligibility for the Certified General Contractor's Examination.
Recommendation Based upon the stipulated facts and the conclusions of law, it is recommended that Section 489.111(4)(c), Florida Statutes, be interpreted to include qualifying service in a non-certified capacity and that Petitioner's application to take the building contractor's examination be approved. DONE AND ORDERED this 11th day of March, 1986 in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1986 COPIES FURNISHED: James Linnan Executive Director Construction Industry Licensing Board P.O. Box 2 Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Maxwell G. Battle, Esquire 8204-A West Waters Avenue Suite 350 Tampa, Florida 33615 Arden Siegendorf, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD MARGARET K. ROBERTS, License No. CB-C031970 Petitioner, DOAH CASE NO. 85-2240 DEPARTMENT OF PROFESSIONAL REGULATION Respondent. /
The Issue Whether petitioner was required or entitled to enroll in the Florida Retirement System at any time prior to March of 1989?
Findings Of Fact In the winter of 1979, petitioner DeWayne Manuel began performing building inspection services for Gulf County. He had responded to a newspaper advertisement entitled "JOB OPPORTUNITY," which stated, "Work will be under supervision of Building Inspector . . . Equal Opportunity Employer." Respondent's Exhibit No. 9. On the recommendation of E. F. "Red" Gunn, then head of Gulf County's Building Department, the Board of County Commissioners engaged him "temporarily" as a building inspector on March 13, 1979. Testimony of Manuel and Gortman. In the view of Commissioner Jimmy O. Gortman, Mr. Manuel was treated no differently than any other county employee. But Gulf County's Building Department was funded from permit fees, rather than from general county revenues. The building department was not "on the ad valorem tax budget." Testimony of Gortman; Stipulation. For the period March 13, 1979, to September 30, 1979, Gulf County paid petitioner $1,525.52. For the fiscal year ended September 30, 1980, Gulf County paid petitioner $3,840.83. Effective December 1, 1980, petitioner became responsible for all building inspections in Gulf County, not just those on projects north of the intracoastal canal. Petitioner's Exhibit No. 1A, Book 11, pp. 366-7. For the fiscal year ended September 30, 1981, Gulf County paid petitioner $13,319.83. For the fiscal year ended September 30, 1982, Gulf County paid petitioner $22,188.00, which represented permit fees from which a telephone expense of $24.00 a month, aggregating $288.00, had been deducted. Before the fiscal year ended September 30, 1982, Gulf County had deducted no expenses from permit fees, in calculating petitioner's compensation. Deposition of McCroan. At a county commission meeting on January 11, 1983, Mr. Gunn gave "an oral report on . . . problems" "with Building Inspector DeWayne Manuel's job performance," "fired Building Inspector Manuel and then resigned himself." Petitioner's Exhibit No. 1A, Book 12, p. 305. But, before the meeting concluded, "Mr. Gunn agreed to continue working as Building Official . . . and he then rehired Mr. Manuel as Building Inspector." Id., p. 306. When the county commission met on May 24, 1983, Mr. Gunn resigned, effective June 1, 1983, and "recommended the Board hire DeWayne Manuel as the Building Official." Petitioner's Exhibit No. 1A, Book 12, p. 381. At the same meeting, the Board voted unanimously to accept this recommendation. Id. For the fiscal year ended September 30, 1983, Gulf County paid petitioner $18,894.40. At its meeting on September 13, 1983, the "Board agreed to pay DeWayne Manuel . . . $1,130 per month as long as funds are available from the Building Permit Revenues," Petitioner's Exhibit No. 1A, Book 12, p. 447, thereby "capping" his compensation from the Building Department for the first time. Perhaps because he also served an eight- or nine- month stint as acting mosquito control director, however, Gulf County paid petitioner $41,985.28 during the fiscal year ended September 30, 1984. Testimony of Manuel; Deposition of McCroan. On November 13, 1984, the Board voted to pay "DeWayne Manuel $35,540 per year on a contract basis." Petitioner's Exhibit No. 1A, Book 13, p. 215. Although the Board voted changes in his rate of compensation thereafter, his income no longer depended on Building Department collections. For the fiscal year ended September 30, 1985, Gulf County paid petitioner $36,532.01; and for the fiscal year ended September 30, 1986, Gulf County paid petitioner $39,011.98. McCroan Deposition. During calendar year 1986, Gulf County paid petitioner $39,315.91. During calendar year 1987, Gulf County paid petitioner $41,929.77. During calendar year 1988, Gulf County paid petitioner $44,891.75. Respondent's Exhibit No. 6 to Deposition of Lister. On May 24, 1988, in response to audit criticisms, the Board entered into its first written contract with petitioner, which provided: Revenue source - All monies received from the sale of all types of building permits and interest earned on funds received from the sale of building permits in Gulf County shall be the revenue source for all costs and expenses of the Building Inspection Department. Separation of Costs and Expenses The Board of County Commissioners (Gulf County) shall pay or provide the following expenses or resources out of the above mentioned revenue source: secretary, office space, office supplies, administrative costs for operation of department utilities, telephone expenses (except for telephone expenses listed in Section II. B. 1. below) errors and omissions insurance coverage and a contract price of $40,905.00 to the Building Official for FY 87-88 (paid monthly). Contract price is calculated in the following manner. A $40,000.00 figure was established by the Board of County Commissioners for FY 86-87 (Book 14 Page 119). The contract price was increased for FY 87-88 by the same amount that all other Court House employees received, $455.00. In FY 87-88 the contract price was increased by $405.00 represents 2% of $22,500.00 which was estimated to be the salary after the deduction of expenses (listed in section B. 1., 2., 3., and 4. below). Building Official - Out of the $40,905.00 contract price, the Building Official is to pay the following: Basic (monthly) mobile telephone expenses In-county travel expenses All benefits (i.e. F.I.C.A., retire-ment, vacation, health and life insurance) All income tax withholdings Contracted services to be performed by the Building Official Be available (in office, on inspections, in meetings, or etc.) a minimum of 40 hours per week. Be responsible for the operations of the Building Department. Be responsible for all inspections required by the Standard Building, Plumbing, Mechanical, Gas, Swimming Pool, and the National Electric Codes, as well as such other codes which may be adopted in Gulf County. Be responsible for the duties of the Local Administrator as defined in the Gulf County Flood Ordinance. Such other duties as may be directed by the Board of County Commissioners of Gulf County. This agreement shall expire September 30, 1988 and may be cancelled at an earlier date by either party for good cause, by giving thirty (30) days notice. Respondent's Exhibit No. 8 to Lister Deposition. The contract provisions reflected the relationship that had existed between petitioner and Gulf County for some time before it was actually signed. Later the same year, petitioner's status was called into question. On September 27, 1988, Mr. Manuel was a topic of discussion at the County Commission meeting. Chairman Birmingham stated that he is satisfied with the present system, and stated that if the Building Department contract is not valid, he will vote to hire Mr. Manuel as a full-time County employee. Commissioner Branch stated that he has no problem with Mr. Manuel, and stated that he is very dedicated to Gulf County. Commissioner Traylor also stated that Mr. Manuel has done a fine job. After discussion, Chairman Birmingham requested that Attorney Rish check to see if different arrangements need to be made concerning this position (make him a permanent County employee, etc.). Upon inquiry by Ms. Arnold about the contract ending on September 30, 1988, and about being able to apply for the job, Attorney Rish stated that anyone could apply at any time. Upon further inquiry by Ms. Arnold about Mr. Manuel having a life-time contract, Chairman Birmingham stated that, as far as he is concerned, Mr. Manuel has the job unless he messes up. Petitioner's Exhibit No. 1A, Book 15, pp. 698-9. Two additional entries in board minutes reflect pertinent developments on February 14 and 28, 1989, respectively: Commissioner Gortman moved that the Board hire Building Inspector Manuel as a permanent County employee, under the direction of the Board (to negotiate salary, travel, etc.), effective March 1, 1989. Chairman Birmingham gave the Chair to Vice Chairman Peters, and seconded the motion. After discussion about the history and the financial situation of the Building Department, Commissioner Creamer stated that he would like an opportunity to discuss this matter with Mr. Manuel before making a decision. Chairman Peters stated that he is under the same impression as Commissioner Creamer, and he is also concerned about whether or not the job should be advertised. Upon inquiry by Commissioner Gortman, Attorney Rish reported that it would be legal for the Board to hire Mr. Manuel as a regular County employee, if Mr. Manuel is agreeable (he also stated that he will need to read the existing contract). After discussion, the motion passed with the following vote: Commissioners Birmingham, Creamer Gortman, and Parker voted yes. Chairman Peters voted no. Chairman Peters returned the Chair to Commissioner Birmingham. Chairman Birmingham then requested that Commissioner Gortman and Commissioner Parker work out the details of Mr. Manuel's duties and his salary, travel, etc., and report back to the Board at the next regular meeting. Upon inquiry by Commissioner Gortman, Attorney Rish reported that the Board has no problem with breaking the contract, if Mr. Manuel has no problem with it. . . . Commissioner Gortman moved that the Board hire DeWayne Manuel as a County employee with duties as Building/Fire Official (putting the Building Department under the direction of the Board) for the remainder of this fiscal year at $16,380.00 - salary, $1,230.00 - social security, and $2,356.00 - retirement, which totals $19,966.00 plus $.17 per mile for in-County travel not to exceed $4,760.00, which will give a grand total of $24,726.00 (to re-negotiate next fiscal year). He also included in his motion that Mr. Manuel will work 40 hours per week (and on weekends, if needed) under this salary, doing the Building Department work plus anything the Board directs him to do. Commissioner Gortman stated that Mr. Manuel is to have 10 years seniority, and is to be allowed to participate in the State retirement program (he will have to pay any back retirement). Upon inquiry by Commissioner Creamer and after discussion about the rate per mile for other County employees. Commissioner Gortman also included in his motion that the Board pay all County employees $.17 per mile for in-County travel and that the revenue from the inspections will go into the Building Inspector's budget. Commissioner Parker seconded the motion. Commissioner Peters stated that he feels this job should be advertised. Commissioner Parker stated that Mr. Manuel has been working without a contract since September and if he has worked this long without a contract, he should have the benefit of the doubt. The motion then passed with the following vote: Chairman Birmingham and Commissioners Creamer, Gortman, and Parker voted yes. Commissioner Peters voted no. Jean Arnold discussed that she is opposed to the Building Department funds not being controlled in the past, and is opposed to Mr. Manuel being the Building Inspector. . . . On March 1, 1988, there was no change in petitioner's hours, duties, job description or the number of people working in the Gulf County Building Department. The separate fund containing building permit fees was abolished, and petitioner began to be paid from general revenues, including ad valorem taxes. He also enrolled as a regular member of the Florida Retirement System on March 1, 1989. Testimony of Gortman and Birmingham. Gulf county prepared and filed 1099 forms reflecting moneys paid petitioner for the years 1985 through 1988, and for the first two months of 1989. Before 1985, the county did not prepare either a W-2 form or a 1099 form or otherwise report petitioner's income to the Internal Revenue Service. The only W- 2 form the county produced for him covered the period from March 1, 1989, until he left Gulf County's employ on September 30, 1989. Asked why she had not produced W-2 forms for petitioner before March 1, 1989, Donna R. McCroan, the county payroll clerk, explained that "[h]e had not gone through my payroll system, and that unless you run them through - - put his figures through my payroll system, my figures wouldn't balance." Deposition of McCroan, pages 14 and 15. At different times, Gulf County paid petitioner weekly, bi-weekly and monthly. Petitioner was listed as a vendor, rather than as an employee, for some time before March 1, 1989. At first, petitioner received compensation equivalent to the building permit fees Gulf County took in, during the pertinent period, on account of construction permitted in Gulf County, north of the intracoastal canal. Eventually added to this sum was a fraction of the fees Gulf County collected on behalf of Wewahitchka and Ward Ridge; and fees from permits issued for Gulf County south of the canal. Originally, petitioner's compensation was never based on invoices he submitted. For each pay period, the county clerk's office prepared a voucher listing the building permits that issued during that pay period. Petitioner's Exhibits Nos. 6 and 7. Because applicants for building permits paid fees as or before permits issued, before inspection services were needed, petitioner's compensation varied from period to period, not with the number of inspections or other work that he performed, but with the number of building permits "pulled." At no time was he paid for inspections as piecework. At county expense, petitioner was trained as a building inspector. He performed building inspection services under Mr. Gunn's supervision until the latter's retirement. Petitioner was obliged to follow the methods of inspection prescribed by the building code, but free to determine whether or not code requirements were met in a particular case. He had to use certain receipt and other forms, and keep records in a prescribed fashion to facilitate audits. No written job descriptions defined the duties of Building Department employees. Even when petitioner answered to Mr. Gunn, the Board of County Commissioners sometimes assigned him tasks directly, in areas unrelated to the building department. Petitioner helped obtain a permit from the state Department of Environmental Regulation for the county landfill, dealt with the state Department of Transportation on questions concerning bridges, dealt with the state Department of Corrections in connection with the county jail, secured a mosquito control grant and various other grants for Gulf County, and performed other jobs as directed. When working on things other than building inspections, the county commissioners often told him "exactly what to do." Testimony of Birmingham. When Gulf County hired him, Mr. Manuel sold his Western Auto Store and, beginning in April of 1979, devoted 40 hours or more a week to county duties. He never took vacations. His compensation was not reduced the only time he missed work for illness. Except for time in the field, he did all his work on Gulf County's "premises," in an office the county supplied. Gulf County provided not only an office but, eventually, a secretary and other building inspectors. Petitioner supervised these county employees. The county paid workmen's compensation premiums for petitioner, furnished office supplies and equipment, including a computer; and equipment for use in the field, including piling boring equipment and an electrical inspection tool known as a Megger. Until petitioner acquired a mobile telephone, Gulf County paid all telephone expenses the Building Department incurred. Afterwards, it paid telephone expenses except for the basic mobile telephone charge. Gulf County reimbursed petitioner for travel out of the county on the same basis that it reimbursed all county employees. Building inspection services petitioner or county employees under his supervision performed for Wewahitchka or Ward Ridge occurred under the terms of intergovernmental agreements, and on behalf of Gulf County. Otherwise, petitioner performed no building inspection or other services for any person or entity other than Gulf County while he worked for the county. Upon Mr. Gunn's departure, petitioner assumed supervisory responsibilities for the Gulf County Building Department, and served as department head.
Recommendation It is, accordingly, RECOMMENDED: That respondent grant petitioner regular membership in the Florida Retirement System for the period April 1, 1979, to February 28, 1989. DONE and ENTERED this 1st day of November, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 1990. APPENDIX Petitioner's proposed findings of fact Nos. 3, 4, 5, 6, 7 and 8 have been adopted, in substance, insofar as material. Petitioner's proposed findings of fact Nos. 1 and 2 refer to a county ordinance not in evidence. Petitioner's proposed finding of fact No. 9 pertains to a subordinate matter. Respondent's proposed findings of fact Nos. 1, 4 through 8 and 10 through 16 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 2, the fees were for building permits, not for inspections as such. With respect to respondent's proposed finding of fact No. 3, the evidence showed he took sick leave. With respect to respondent's proposed finding of fact No. 9, there was testimony that the County's payroll clerk prepared the vouchers. COPIES FURNISHED: Larry D. Scott, Esquire Department of Administration Division of Retirement Cedars Executive Center Building C 2639 North Monroe Street Tallahassee, FL 32399-1560 De Wayne Manuel P.O. Box 7593 Daytona Beach, FL 32116 De Wayne Manuel 212 Tapper Drive P.O. Box 305 Port St. Joe, FL 32456 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Augustus D. Aikens, Jr., General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550
The Issue Whether the certified general contractor's licenses and the registered roofing contractor's licenses held by Petitioner Robert J. Nali should be revoked.
Findings Of Fact The certified General Contractor's License number CG-C007395 and CG- CB07395, and the Registered Roofing Contractor's License number RC0028067, issued to Robert J. Nali are active and current. Respondent entered into a contract with Mr. Charles Rapp on June 1, 1977, to have a house constructed for the contract price of $29,500. The home was financed through the First Federal Savings and Loan Association of Leesburg for the sum of $27,730. Disbursed directly to Respondent Nali in five different draws was $16,638. These disbursements left a total of $11,092 in the bank account for completion of the home. Two bills remain unpaid, one for $500 and one for $560.92. Cost of the home was approximately $2,035.87 above the contract price. Two liens were filed against Mr. Rapp's property which were satisfied out of construction funds from the bank, one by Adobe Building Center, Inc., in the amount of $1,315 and one by Branch Garage Door Sales in the amount of $171.38. Respondent Nali admitted that the Kennedy Company supplied air conditioning duct work for the home, and that Yale Ogron Builders provided labor as a subcontractor; that he was paid for the supplies provided by the Kennedy Company on the second drawing, and for the labor provided by Yale Ogron Builders on the fourth draw. Respondent Nali admitted he did not pay these concerns although he did receive the funds for the material and labor supplied. Mr. Rapp fired Mr. Nali and completed the home himself. There was no date of completion in the contract, but Respondent did not actively pursue the completion. Respondent Nali entered into a contract with Mr. Charles Fosmoen in June of 1977, for the purpose of constructing a home. The contract price was $28,150. The home was financed through the First Federal Savings and Loan Association of Leesburg for the sum of $26,471. Disbursed to Nali under the contract was $19,845.75. The disbursement left a total of $6,625.25 to complete the house. Expended to complete construction of the home in accordance with the contract was $9,351.08, an excess of $2,725.83 of the contract price. A claim of lien was filed against the Fosmoen home by Lake Pre-Hung Door Manufacturing Company, Inc. Mr. Nali was fired from the job and, although no time was designated in the contract for completion, Respondent Nali did not actively pursue the construction of the home. A contract was entered into with Mrs. Ellen Haffey on November 16, 1977, to construct the shell of a home for the contract price of $17,600. Mrs. Haffey paid the sum of $10,000 directly to Respondent and expended a sum of $6,625.93 to complete the house as contracted. She has bills remaining unpaid in the amount of $3,620.50. Spent by Mrs. Haffey above the contract price was $2,648.43. Mrs. Haffey, a contractor, dismissed Mr. Nali, and the house is not yet completed. A claim of lien was filed against Mrs. Haffey's property on behalf of Leesburg Building Materials, Inc., in the amount of $4,384.47. The lien was for materials which had been delivered to the project site and should have been paid for out of the sum previously paid to Respondent. Mrs. Haffey paid $4,000 for the third draw instead of $6,000, as called for by the contract, a fact that prevented Respondent from timely payment of bills. A lien was filed on Mrs. Haffey's property by Keeman Brick of Central Florida, Inc., in the amount of $1,238.03. Respondent admitted he was charged with a criminal violation of misapplication of funds but pled nole contendere, and adjudication was withheld. A document entitled "Stipulation on Motion for Clarification and Modification" was received into evidence. The document constitutes an admission of Respondent that restitution was due from him to the complainants, Mr. and Mrs. Charles Rapp, Mrs. and Mrs. Charles Fosmoen, and Mrs. Ellen Haffey. Petitioner contends that Respondent diverted funds he had received to pay two subcontractors for the Rapp home; that although he may Waive underbid the Rapp and Fosmoen he later also underbid the Haffey contract, which caused these consumers inconvenience and loss and violated a contractor's position of trust. Respondent contends that he could have finished each of the houses within the contract terms, since time was not of the essence. He contended that increased building material costs contributed to the delay of the housing construction, and that he could have finished the houses were he not fired from each of the construction projects. Respondent denied that he had diverted any funds from construction projects. The Hearing Officer further finds: Both Mr. and Mrs. Rapp and Mr. and Mrs. Fosmoen gave Respondent Nali notice that they were dissatisfied because Mr. Nali was not actively finishing the construction of their respective homes. Both gave him notice and an opportunity to recommence active construction, which he did not resume; The dates of completion of homes were not specified in the contracts, but oral promises were given that the homes would be completed within a reasonable time. The delay caused each complainant much inconvenience; Liens were filed against these homes for nonpayment of bills. Respondent did not pay the liens; Each of the three homes cost more than the contracted price before said homes were completed by the parties contracting with Mr. Nali. Mr. Nali received money from Mr. Rapp for work and supplies provided by the Kennedy Company and Yale Ogron Builders, yet Respondent did not pay for these materials or work; and The complainants were justified in dismissing Respondent.
Recommendation Suspend the license of Respondent Robert J. Nali for a period of six months. DONE and ORDERED this 13th day of April, 1979, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Michael Egan, Esquire 217 South Adams Street Post Office Box 1386 Tallahassee, Florida 32302 Joan L. Wollin, Esquire Post Office Box 236 Leesburg, Florida 32748 DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32301 (904) 488-9675 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. DIVISION OF ADMINISTRATIVE HEARINGS, DOCKET NO. 78-2103 ROBERT J. NALI, Respondent. /
Findings Of Fact At all times relevant hereto Jonas C. Merricks, Respondent, was licensed by the Construction Industry Licensing Board, Petitioner, as a residential building contractor. In May 1981 Respondent was approached by John Oden regarding a building permit to add a room to the residence of Ms. Betty J. Wilson. Respondent testified he went to see Ms. Wilson to discuss the permit before pulling the permit; however, Ms. Wilson testified she did not see Respondent until after the word started. Regardless of the correct version Respondent pulled the permit for the construction knowing that he was not going to do the work. On May 23, 1981 Ms. Wilson entered into a contract with John Oden to construct an additional room on her residence. This contract was modified on May 26, 1981 to enlarge the room two feet and it is this contract (Exhibit 3), upon which the work was done. The contract made no mention of Respondent or of J & J Building Company which is owned by Respondent. Under the terms of the contract Ms. Wilson was to pay Oden one-third when walls were up, one-third when the roof was on and the final one-third when the job was completed. During the course of the construction Respondent appeared on the site a few times and straightened out existing problems. Ms. Wilson made all of her payments to Oden in accordance with the contract. However, she made the final payment before the work was completed. Her attempts to get Oden to satisfactorily complete the job were unsuccessful and Ms. Wilson complained to the Bureau of Consumer Affairs who referred her complaint to the Construction Industry Licensing Board which investigated and filed the complaint here under consideration. No evidence was submitted that Respondent pulled permits for work done by J & J Building Company. Evidence was presented that J & J Building Company is not licensed by petitioner. Respondent testified that he pulled the permit as a favor to Ms. Wilson and not for Oden, and that he did not know Oden had contracted with Ms. Wilson to do this job. However, Respondent did know that Oden was going to build the addition for Ms. Wilson; and, in his affidavit, Exhibit 5, Respondent acknowledged he had "helped out" Oden several times, that he was paid by Oden for work Respondent did on the premises, that payment for this work was made out to J & J Building Company, and that he supervised the work when he was on the premises.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint? If so, what punitive action should be taken against Respondent?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is now, and has been since 1981, a Florida- licensed general contractor (holding license number CG C019787). At all times material to the instant case, Respondent has been licensed as an individual in his own name, not as a qualifying agent 3/ or under a fictitious name. At no time has Respondent been licensed in the State of Florida as a roofing contractor or as any other type of contractor other than a general contractor. Larry Thomas is now, and has been at all times material to the instant case, the sole owner and president of Home Improvement Time, Inc. (HIT), a corporation that he formed in or around December of 1995. Mr. Thomas, in naming his company, hoped that the public, when hearing the company's name, would associate it with the popular "Home Improvement" television program. There are not now, nor have there ever been, any other owners, officers, or directors of the company. Until late in 1998, HIT was actively engaged in the business of soliciting home improvement work, including room additions and the installation of roofs, hurricane shutters, and screens. To solicit such work, HIT used telemarketers who contacted homeowners over the telephone from HIT's office (located in a shopping center in Jensen Beach, Florida and having the mailing address of 867 Northeast Jensen Beach Boulevard, Jensen Beach, Florida), and it also employed salespersons who visited homeowners at their homes. Among the salespersons who worked for HIT were Vince Ketchum and Bob Andrews. At no time material to the instant case did HIT have a licensed contractor serve as its certified qualifying agent. 4/ Mr. Thomas has never been licensed as a general contractor. Some time after 1996, he obtained aluminum structure and concrete contracting licenses from the City of Port St. Lucie and from Martin County. In or around January of 1996, shortly after the formation of HIT, Respondent met with Mr. Thomas at HIT's office and observed HIT's operations. As a result of this meeting, Respondent hired HIT, on a commission basis, to solicit home improvement work for him. Respondent was the only general contractor for whom HIT solicited business. When a HIT telemarketer made contact with a prospect, the telemarketer indicated that he or she was with HIT. If asked who would be doing the home improvement work, the telemarketer advised the prospect that the work would be done by Respondent. If a prospect contacted by a HIT telemarketer was interested in having home improvement work done, a HIT salesperson was dispatched to the prospect's home. Respondent provided HIT salespersons with training and instructions as to what to do when calling on prospects. On their visits to prospects' homes, the salespersons brought with them preprinted form contracts for the prospects to sign. These form contracts were jointly developed by Mr. Thomas and Respondent (using, as a model, a form contract that was published in a "Better Homes and Gardens" magazine article). On the top right hand corner of these form contracts were the words "licensed" and "insured." To the left of these words, in large, stylized lettering, were either the words "Home Improvement," "Home Improvement Inc.," "Home Improvement Time, Inc.," or "Home Improvement by Richard Kosalka" (depending on the time frame). These words were included on the form because Respondent wanted homeowners to make the connection between him and HIT and the television program after which HIT was named. Underneath these words appeared the following: 667 N.E. Jensen Beach Boulevard Jensen Beach, FL 34957 Richard Kosalka State License # CGCO19787 Among the provisions in the form contracts was the clause, "This agreement subject to office approval." When they returned from their sales calls, the salespersons brought any signed contract to Mr. Thomas at HIT's office. Depending on the nature of the work involved, Mr. Thomas approved or disapproved the contract himself or he gave the contract to Respondent 5/ to approve or disapprove (pursuant to the "subject to office approval" clause in the contract). Any contract that Respondent approved became Respondent's contract to perform. Although he did perform some contract work himself, most often he used subcontractors who worked under his general supervision. HIT received a commission for every approved contract its salespersons procured for Respondent. Its commission (the amount of which was established by agreement between Mr. Thomas and Respondent) was included in the contract price offered to the homeowner. Typically, payment from the homeowner was not due until the contract work was completed. Payment was made by the homeowner to HIT, which then paid Respondent by check in an amount equal to the contract price minus HIT's previously established commission. In an effort to make the public aware of the services it offered, HIT, in or around August of 1996, placed an advertisement in the Bell South Yellow Pages for Port St. Lucie and Stuart. In the advertisement, which was placed without Respondent's knowledge or authorization, HIT's name and telephone number appeared, along with a listing of home improvement services. Among the services listed was "roofing." Appearing at the bottom of the advertisement was the following: "Licensed & Insured KOSALKA CGC 019787." Among the homeowners who had signed the above-described preprinted form contracts that HIT's salesperson's brought back, for "office approval," to the HIT office in 1996 were the following three Port St. Lucie residents: Larkin Dunbar (whose residence was located at 114 Dorchester); Clara Masters (whose residence was located at 246 Northeast Mainsail); and Rita Maciuba (whose residence was located at 733 Southwest Curry Street). The Dunbar, Masters and Maciuba contracts were dated February 19, 1996, May 28, 1996, and June 14, 1996, respectively. On the top of the Dunbar contract, in large stylized lettering, were the words "Home Improvement Inc." On the top of both the Masters and Maciuba contracts, in the same large stylized lettering, were the words "Home Improvement by Richard Kosalka." The Dunbar contract provided for the "furnish[ing of] the following materials, improvements, labor, and/or services" for the price of $3,600.00: the installation of a "new fascia and soffit system," the "repair [of the] master bedroom walls," the "repair [of] roof leaks," and the "paint[ing of the] gutter and garage door to match [the] fascia and soffit." No work was performed pursuant to this contract (nor is there any evidence that the homeowner made any payments for the performance of such work). The Masters contract was signed by Ms. Masters and Vince Ketchum, the HIT salesperson who had negotiated with her at her home. At the time she signed the contract, Ms. Masters was approximately 85 years of age. The contract provided for the "furnish[ing of] the following materials, improvements, labor, and/or services": installation of a "new roof" with "shingles to be selected by Clara Masters" for $3,255.00; the repair and painting of the "interior ceiling" for $627.00; and the "pressure clean[ing] and paint[ing] of [the] exterior of [the] home" and the driveway for $2,628.00. After his mother had signed the contract (and before any contract work had started), Ms. Masters' son, Joseph Masters, who lived next door to his elderly mother and looked after her business affairs, telephoned Respondent, who was an acquaintance of his. Mr. Masters asked Respondent to come by his mother's home to discuss the contract his mother had signed. Respondent went to Ms. Masters' home as Mr. Masters had requested. Upon Respondent's arrival, Mr. Masters informed Respondent that he (Mr. Masters) and his mother wanted the roof work to be done first. Respondent and Mr. Masters then discussed the matter further. Their discussions lead to the contract being modified to provide that only the roof work would be done (for a price of $3,255.00). The modification was made by lining out the other work listed in the contract, having Ms. Masters put her initials next to the line-outs, and adding contract language to reflect that the total contract price was $3,225.00 for the "roof only." Before leaving Ms. Masters' home, Respondent told Mr. Masters that he would have "some roofers [come] around to get the estimate on the roof." Mr. Masters assumed that these roofers would be subcontractors. Respondent brought the modified contract back to the HIT office. The Sunday after his visit to Ms. Masters' home, Respondent's wife suffered a stroke and was hospitalized. Respondent remained in the hospital with his wife and stayed there for three days. David Harris is a licensed general, residential, and roofing contractor and the owner of David Harris Construction (DHC). He has had his roofing license (for work in Martin and St. Lucie Counties) since 1992. In 1996, and for several years prior thereto, Respondent used Mr. Harris as a subcontractor for concrete and roofing work (mostly on new residential construction). At the time he reviewed the modified Masters contract, Mr. Thomas was familiar with Mr. Harris and DHC. Mr. Harris used HIT to follow up on leads generated by DHC's Yellow Pages' advertising. Moreover, Respondent had spoken favorably to Mr. Thomas about Mr. Harris as a roofer. Accordingly, Mr. Thomas telephoned Mr. Harris and told him about the Masters re-roofing project. On the Monday after Respondent's wife was admitted to the hospital, DHC workers went to Ms. Masters' home and began to remove the old roof. A young child (around nine or ten years of age) was on the roof with the workers. Some time later that day, while the workers were still removing the old roof, Mr. Masters came by his mother's house and noticed the workers and the child on the roof. Mr. Masters was dissatisfied with the manner in which the workers were acting and with the quality of their work. He therefore "chased" them off the roof and told them to leave the property. Mr. Harris was not at the site at the time the workers (and the child) were directed to leave, but he later telephoned Mr. Masters "want[ing] to know what was wrong." Mr. Masters told Mr. Harris why he had removed the workers from the property. He further advised Mr. Harris to "not come back anymore," explaining that he would hire another roofer to complete the job (which he subsequently did). Mr. Masters assured Mr. Harris that payment would be made for the work that had been done by DHC on the roof that day, but there was no agreement reached as to the amount of the payment. A few days later, Mr. Harris telephoned Mr. Masters again, inquiring "if he [Mr. Harris] was going to get paid." In response to this inquiry, Mr. Masters replied that he was "going to get with [Respondent] to figure out the amount of work that was done" and he (Mr. Masters) would pay Mr. Harris accordingly. Subsequently (some time on or after June 4, 1996), Mr. Masters received in his mailbox a copy of an "invoice" (in an unstamped, unsealed envelope) from DHC which read as follows: DAVID HARRIS CONSTRUCTION TO: Home Improvement Date: 6/4/96 RE: 246 NE Mainsail, PSL (Masters) DESCRIPTION: Labor & Materials 1 DAY PRICE: $863.39 Thereafter, Mr. Masters telephoned Respondent and told Respondent about the bill he had received (the amount of which Mr. Masters thought was excessive). In response to Mr. Masters' telephone call, Respondent, on June 18, 1996, visited with Mr. Masters and his mother at the latter's home. There, Mr. Masters showed Respondent the copy of the "invoice" he (Mr. Masters) had received. Based upon his knowledge of the prices that Mr. Harris typically charged, Respondent determined that a fair price for the work that the DHC workers had done on Ms. Masters' roof was only $480.00. Respondent so advised Mr. Masters and then telephoned Mr. Harris (from Ms. Masters' home) in an effort to persuade Mr. Harris to accept that amount. Respondent and Mr. Harris, however, were unable to reach agreement on the matter. After hanging up, Respondent told the Masters that he and Mr. Harris "would work something out and get it straightened out." Thereafter, at Respondent's suggestion, Ms. Masters made out and signed a check to "Home Improvement" in the amount of $480.00, which she gave to Respondent, who told the Masters that he would "take care of" the matter. In addition to giving the Masters this assurance, Respondent also provided Ms. Masters, in exchange for the $480.00 check, a receipt marked "paid in full" and a release of lien signed by him. In the release of lien, Respondent identified himself as "Richard Kosalka of Home Improvement, a Florida corporation doing business in the State of Florida." Respondent delivered Ms. Masters' $480.00 check to Mr. Thomas and asked Mr. Thomas to issue an HIT check in that same amount payable to DHC. Mr. Thomas did as he was requested by Respondent. The $480.00 check signed by Mr. Thomas was received and deposited by DHC. Nonetheless, thereafter, on August 19, 1996, DHC filed a claim of lien for $383.39 (the difference between $480.00 and the amount of DHC's original invoice) on Ms. Masters' home. The $383.39 (which DHC claimed it was owed) was never paid; however, DHC took no action with respect to the lien and the lien expired. The Maciuba contract was signed by Ms. Maciuba and Bob Andrews, the HIT salesperson who had negotiated with her at her home. It provided for the "furnish[ing of] the following materials, improvements, labor, and/or services" for the price of $3,600.00: "Tear off existing shingles- Replace rotten facia and roof sheets. Shingle color: Shasta white (lightest color). 4 lengths of ridge vents." HIT contacted DHC to do the work described in the contract. DHC obtained a re-roofing permit for the work on June 21, 1996. DHC hired Jerry Poston to work as subcontractor on the project. Mr. Poston and his crew worked on the project during the period from June 21 through July 29, 1996. Mr. Harris also made an appearance at the work site. Ms. Maciuba made an initial down payment of $300.00, which she gave to Mr. Thomas. Subsequently, after the work had been completed, she gave Mr. Thomas three checks that were payable to herself and which she endorsed. Two of these checks were for $1,000.00, and the remaining check was for $800.00, for a total payment, including the down payment she had made, of $3,100.00, which was less than the $3,600.00 contract price. Ms. Maciuba refused to pay any more because of the damage she claimed her property had sustained as a result of re-roofing work. On August 23, 1996, Mr. Harris filed a claim of lien on Ms. Maciuba's home, in which he alleged that, "in accordance with a contract with Home Improvement Time, Inc.," he had "furnished labor, services or materials" in the amount of $2,565.00, and had not received any payment therefor. On October 15, 1996, Mr. Harris executed a Sworn Statement of Account acknowledging that he was owed only $1,873.18 inasmuch as the "contractor" had made direct payments to Mr. Harris' suppliers, thereby reducing the amount he (Mr. Harris) was owed. Ms. Maciuba, in small claims court, sought to have the lien removed. On November 19, 1996, a mediation session was held at which Ms. Maciuba, Mr. Harris, Mr. Thomas, and Respondent were present. At the session, Mr. Harris agreed to remove the lien in exchange for $1,450.00, of which amount $800.00 was to be paid by Ms. Maciuba and the remaining $650.00 was to be paid by HIT. That very same day, November 19, 1996, Ms. Maciuba and HIT made these agreed-upon payments, and Mr. Harris executed and recorded a release of lien. Ms. Masters and Ms. Maciuba filed complaints that were investigated by Edward Garcia, an investigator with the Department. As part of his investigation, Mr. Garcia spoke with Respondent by telephone on November 7, 1996. Respondent told Mr. Garcia that HIT was a telemarketing business owned by Mr. Thomas; he (Respondent) hired HIT to solicit business for him; he (Respondent) advertised as "Home Improvement" in order to "play off the name of Home Improvement Time"; the contract with Ms. Maciuba was for a re-roofing project and he (Respondent) subcontracted the work to DHC; and he (Respondent) was not aware, that he was not authorized, as a licensed general contractor, to enter into contracts for re-roofing projects. Mr. Garcia also visited HIT's office and met with Mr. Thomas. During this meeting, Mr. Thomas signed a document agreeing not to violate the provisions of Chapter 489, Part I, Florida Statutes, by engaging contracting activities without an appropriate license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order (1) finding Respondent guilty of the violations alleged in Counts I, II, V, VIII, and IX of the Administrative Complaint; (2) disciplining Respondent for having committed these violations by requiring him to pay a fine in the amount of $1,000.00 and to reimburse the Department for all reasonable costs associated with the Department's investigation and prosecution of these charges; and (3) dismissing the remaining counts of the Administrative Complaint. DONE AND ENTERED this 29th day of September, 1999, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 29th day of September, 1999.
