Findings Of Fact At all material times, the Respondent Morris Marder was a registered building contractor, having been issued license number RB 0004509. On March 4, 1980, the Respondent Marder contracted with Erwin and Joan Ravich to convert the garage of the Ravich home into a family room. The March 4, 1980 contract between the Raviches and Marder, who was also doing business as "Home Remodeler Morris Marder", 1/ was signed by the Raviches and accepted by M. Marder. An undated addendum to the contract, which was prepared by the Raviches' attorney, was signed by the Raviches and Dan Rossman, a salesman and contract estimator for the Respondent Marder. However, no evidence was presented that the Respondent Marder had knowledge of or signed the addendum, which required completion of the project by an unspecified date. The execution of the addendum delayed beginning construction on the project until May of 1980. The Respondent Marder subcontracted the performance of work on the Ravich job to Ken Nieset, who with his brother, Steve, a licensed general contractor, was doing business as Brothers Two Construction. During the course of the project, Nieset received three of the four payments made under the contract directly from the Raviches. Although Nieset worked for the Respondent previously, he was neither Marder's foreman nor employee. When additional subcontractors were required, they were hired for the Ravich job by Nieset. The Raviches paid a total of $9,190 under the contract. The first payment of $1,190 was made directly to Home Remodeler on May 3, 1980, the approximate date that work on the project actually began. A partial release of lien was furnished by Morris Marder to Erwin Ravich on May 6, 1980 based on the first payment. The second payment was made by Erwin Ravich on June 20, 1980 for $2,500. This check was made payable to Ken Nieset per authorization of lien furnished on June 20, 1980, in connection with the second payment. 2/ On June 27, 1980 and July 11, 1980, checks were issued to Ken Nieset by the Raviches for $3,500 and $2,000, respectively. The Raviches' received a release of lien for $2,000 from Nieset, but did not obtain a release of lien for the $3,500 payment. The release of lien for the $2,000 payment executed by Nieset did not involve Home Remodeler or the Respondent Marder. After receiving payments totaling $5,500 directly from the Raviches, Nieset abandoned the project. During the course of the Ravich job, the Respondent Marder employed Jorge Gamez, a draftsman/supervisor, who he believed was supervising the Ravich job. However, Gamez' involvement with the job was limited to drawing the plans and did not include supervising construction, since he was not a licensed general contractor. King Cole Plumbing, a state licensed contractor, subcontracted with Nieset to install the plumbing and septic tank at the job site. When King Cole left the job, the rough plumbing was installed and all that remained on the job was interior finishing. The septic tank with an appropriate cover was in place and all work performed by King Cole had passed inspection. The septic tank cover originally agreed to by the parties was required to be changed to a heavier type when the Raviches altered their plans and decided to continue using their driveway. This change resulted in a $512 charge from Sun Gold Industries, who supplied the new cover. Additionally, the original contract was modified to add higher grade plumbing fixtures, lighting fixtures, and tile. In August, 1980, the Respondent Marder entered Saint Frances Hospital for treatment of phlebitis. At the same time, Rossman, Marder's employee, left for vacation in California for seven to eight weeks. As a consequence, the Ravich job was delayed and an unauthorized payment of $2,500 to Nieset was made without securing the approval of the Respondent Marder or Rossman. The Respondent Marder calculated that approximately $2,000 was due as the balance of the job and an added $1,500 was due for extras to the contract. Faced with a substantial loss, the Respondent Marder contacted the Raviches and their attorney in August, 1980, and offered to finish the job and pay for the specified extras in return for Ravich placing $4,500 in escrow with his attorney. Ravich's attorney declined the Respondent's offer and ordered him off the job site. Subsequently, Dade County cancelled the Respondent's building permits, which effectively prohibited him from completing the work at the site. Subsequently, a lien was filed against the Ravich job by King Cole Plumbing for nonpayment of monies due from Ken Nieset. The lien was determined to have been filed in violation of Florida's Mechanics Lien Law and was voluntarily removed. The work performed by the Respondent and his subcontractors prior to being ordered off the job was satisfactory and passed periodic inspection by the Dade County Building Department. The charges in this administrative proceeding formed the basis of action taken against the Respondent by the Dade County Division of Construction Trades Qualifying Board on September 11, 1981, which resulted in revocation of the Respondent's certificate as a subgeneral building contractor in Dade County. The Respondent Marder has been in the construction business since 1954 and licensed as a general contractor in Florida since 1968. Other than the instant case, the Respondent has never been forced off a job. He has been in business in South Florida for many years and has been involved in thousands of construction jobs.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Petitioner Construction Industry Licensing Board enter a Final Order suspending the Respondent's license for a period of six (6) months. DONE and ENTERED this 27th day of September, 1983, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1983.
Findings Of Fact At all times material to this proceeding, the Respondent, Donald F. Royal, was licensed as a registered roofing contractor in the State of Florida, holding license number RC 0031831. During the times of the alleged violations, the Respondent was the sole qualifying agent for J & J Construction Company (the company.) The principals of the company were the Respondent and a man named James Jimenez. Both men sold jobs for the company and were responsible for overseeing some of the work of the company. The Respondent pulled permits for, and was primarily responsible for, the roofing work contracted by the company. But sometimes, when the company had more than one job going at the same time, the Respondent would be primarily responsible for overseeing one, and Jimenez would be primarily responsible for overseeing the other. The Respondent thought that Jimenez held a license of some kind that enabled him to do some kinds of minor renovation construction. The Respondent restricted his work to roofing and did not mind Jimenez doing some renovation work on the side, separate from the business of the company. But the Respondent understood that Jimenez' "side deals" would be done separately under Jimenez' own license and would not be part of the business of the company. On or about August 14, 1986, Jimenez entered into a contract on behalf of the company to build an addition, remodel and reroof the existing structure and roof the addition of the residence of Ernest and Mercedes Riccio located at 3117 West Henry Avenue, Tampa, Florida. The contract price was $18,999. Jimenez telephoned the Respondent about the job but only told him about the part of the contract that called for the existing roof to be torn off and reroofed. He told the Respondent that the contract price for the job was $3,800. The Respondent pulled a permit for what he thought was the job and started and finished what he thought was the work to be done. The Respondent personally was compensated approximately $700-$800 for his part in the reroofing job. When the Respondent was finished, Jimenez continued with the rest of the contract, which was to include roofing the addition, without telling the Respondent about it. Jimenez did not get very far before a Tampa building inspector happened past and, seeing unfamiliar work in process, inspected the job site. He discovered that the building permit displayed at the site had been altered to expand the work purportedly permitted to include building, in addition to the roofing work for which the Respondent had obtained a permit. Someone other than the Respondent (probably Jimenez although he denied it) altered the permit. The Respondent knew nothing about the contract (other than the reroofing that he did), the alteration of the permit, or the work Jimenez was doing after he left the site. When he discovered the permit violations, the building inspector "red- tagged" the entire job, and work stopped. That was only the beginning of the Riccios' problems. Further investigation revealed that the job would require not only a valid permit but also zoning variances and utility easements. Although the contract had called for the company to obtain all necessary permits, Jimenez and the Riccios agreed that the Riccios would apply for whatever else was necessary in their own names and that Jimenez would assist them. By the time work stopped, the Riccios already had paid the company $12,666 of the total contract price. Nonetheless, when Jimenez' minimal assistance did not resolve the Riccios' problems quickly, Jimenez decided that he already had put too much into the job, and he began to lose interest and make himself scarce. The Riccios finally got their necessary permits on January 26, 1987. They then approached Jimenez about the work to be done under the contract (and the matter of the remaining $6,333 draw). The Riccios and Jimenez agreed that the Riccios would provide the materials and supplies necessary to complete the work and the company would provide the labor. Despite these alternate arrangements, the company did not promptly finish the job. Eventually, the Riccios gave up on Jimenez and in April or May, 1987, began to deal directly with the company's former job superintendent, a man named Ray. To improve their chances of getting the job done (and reduce some of their extra expenses), the Riccios agreed to allow Ray to live in the house free of charge while they were doing the work. The job still did not get finished. Eventually, Mrs. Riccio and some of her relatives finished the job themselves. Even so, the Riccios wound up spending about $20,000, in addition to the $12,666 they had paid the company, to complete the job which the company had contracted to do for $18,999, total. The Respondent was not aware of any of Jimenez' dealings with the Riccios after the Respondent completed his reroofing work. The Respondent assumed that Jimenez had called for a final inspection and that the job had been completed satisfactorily. But in approximately February or March, 1987, the Respondent was contacted by a DPR investigator in connection with the Riccios' complaint against the company. He learned at about that time about Jimenez' other dealings with the Riccios. He also learned that the roof over the addition that had been built had failed inspection. The Respondent eventually corrected the deficiencies, and the roof passed final inspection on August 19, 1987. The Respondent attempts to excuse himself of any wrongdoing, saying that he had a right to delegate the supervision of jobs such as the Riccio job to Jimenez and that he himself was victimized by Jimenez, along with the Riccios. Respondent nonetheless negotiated with Jimenez through the end of the year 1987 in an attempt to come to an agreement to continue to do business together, but the negotiations finally failed. The Respondent was disciplined by the Construction Industry Licensing Board on January 7, 1988, for offenses which occurred during the same time frame in which the Riccio job took place.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Construction Industry Licensing Board enter a final order finding the Respondent, Donald F. Royal, guilty of violating Section 489.129(1)(j) and (m), Florida Statutes (1987), and imposing on him an administrative fine in the amount of $1,000. RECOMMENDED this 20th day of December, 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 20th day of December, 1988. COPIES FURNISHED: Mr. Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Donald F. Royal, pro se 8509 North 16 Street Tampa, Florida 33604 Bruce D. Lamb General Counsel Dept. of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact At all times pertinent to the allegations contained in the Administrative Complaint filed herein, Petitioner was licensed as a general contractor in Florida, holding license number CG CO20660, under which license he had qualified Custom Retail Contractors, Inc., and the Petitioner, Construction Industry Licensing Board, (Board), was the state agency charged with regulating the practice of contracting. On February 12, 1986, the Board entered a Final Order in its case number 0058164 in which it suspended Respondent's license to practice contracting for five years. This action was based on a finding that Respondent had violated several sections of the Standard Building Code in a contract to build several commercial buildings in Largo, Florida, and also had exhibited gross negligence or incompetency in several aspects of the job. Respondent was first made aware of the action of the Board in late March or early April, 1986 when his attorney, Mr. Gordon, told him he had received a copy of the Final Order. At that point, Respondent did not know there had been a hearing on his case, though he knew an action had been filed. Correspondence extracted from the files of DPR relating to Respondent, indicates that between March 11, 1986 and June 25, 1986, several phone calls and letters were exchanged between DPR legal personnel and Respondent's counsel regarding whether Respondent had been given notice that the initial Administrative Complaint against him had been filed. The complaint had been served by an investigator with DPR on Mr. Gordon who declined to accept service since he was counsel for Respondent's corporation and not Respondent, individually. The evidence further indicates that subsequent pleadings in that case were misdirected and misaddressed due to faulty addresses used by the Department which included erroneous street addresses and erroneous ZIP codes. The upshot of all this was that Respondent failed to submit an Election of Rights regarding the initial Administrative Complaint, and, after numerous attempts at communication by DPR, which included the posting of a notice of the Board hearing in the Clearwater, Florida newspaper, the Board ultimately held Respondent in default and entered the Final Order suspending his license as described above. In the Spring of 1986, however, while the communication and correspondence between DPR and Mr. Gordon was going on, Respondent was led to believe, he contends, that the Final Order was not dispositive of his status, that the status of his license was still undecided, and that he could continue to practice his profession. His reliance on advice of counsel was misplaced and works to his detriment here as it does not excuse his improprieties. Consistent with that understanding, on May 1, 1986, Respondent entered into a contract with Mr. Clarence P. Foster, owner of Clarence's, a lounge, restaurant and package store located in Clearwater, Florida, to remodel a patio outside the facility. Work was to include pouring a concrete slab in the drive- thru, constructing a block wall around the patio, installing lattice panels on top of the block wall, and placing planter boxes on two of the walls. The total contract price was $4,730.00 and on May 15, 1986, the manager of Clarence's issued a check in the amount of $1,730.00 payable to Tom Morgan, Respondent's associate. At the time of Respondent's negotiations with Mr. Foster, Mr. Foster indicated he was utilizing a contractor for the complete remodeling of his facility who did not want to do the patio work, and Respondent agreed to do it. After their contract was signed, Respondent dealt with Mr. Foster's manager who showed him the plans for the entire remodeling which, according to Respondent, included the patio. They were stamped by the contractor and had a permit number on them. Respondent contends he asked if that indicated permit included the entire project and claims he was told it did. Respondent also claims he advised Foster's manager that there was some problem with his contractor's license but was assured that the master permit already issued would cover any work done by him under the terms of the individual contract. After receiving the down payment from the manager, Respondent purchased the required materials, paying cash therefore, and started work. Respondent relates that at the very beginning, a violation was written by building inspectors for the failure of the electrical contractor to procure a permit for his portion of the work. When this was done, the contractor immediately got the required permit after the fact and continued with his work. This concerned the Respondent, however, and he requested the manager to bring the existing permit for the remodeling around to the area where Respondent was working where he posted it and covered it with cellophane. When the inspector subsequently came by to check Respondent's work, he asked where the permit for that portion of the construction was and Respondent pointed to the master permit. The inspector then indicated that that permit was only for exterior siding and when Respondent protested that decision, called his office and verified that fact. Upon being advised of this development, Respondent then took the plans he had been furnished and a copy of the permit to the building office and asked the clerk on duty what he had to do. According to Respondent, he was advised that he needed to get more plans prepared with a certificate that the work already done had been done to code. Respondent relates that in response to these instructions, he procured an architect to come and look at the job as it then stood. The architect reportedly thereafter drew up plans and certified the quality of the work already accomplished by Respondent and Respondent allegedly took this information to the building department where, on June 25, 1986, he applied for a building permit to do the work. At that time, according to Respondent, he advised the clerk he had a problem with his license and that all he wanted was a supplemental permit to finish the job. Approximately two weeks later, when passing the County building, Respondent stopped in at the building department office to check on the status of his permit. It was at this point that he first discussed the matter with Mr. Palmer, the plans examiner, who told him that his license had been suspended and that he could not receive a permit to do the work requested. Respondent returned to Mr. Foster and explained the situation to him. Mr. Foster turned the matter over to his manager who arranged for someone else to get the permit and complete the job. Respondent contends he was not trying to trick anyone or to contract without a license. He claims that at the time he entered into the agreement with Mr. Foster, he was unsure of the status of his license and he thought he had made that clear to everyone, including Mr. Foster and the people at the building office. Respondent contends that in his dealings with Foster he was attempting to deal as a subcontractor and not as a general contractor. The fact is, however, that the contract he entered into was a separate contract with Mr. Foster and failed to indicate any reference to subcontractor status. The agreement called for Respondent to be paid directly by Foster and not by the general contractor and his claim is, therefore, not believed. Respondent's protestations in this regard are without merit. Further, his story regarding the permit status is equally as unbelievable. As a qualified contractor, Respondent knew, or should have checked on, the limits of the permit issued and whether it would cover the work he was to do. Reliance on the representations of the non-contractor manager of Mr. Foster's facility as to the status of the permit was unreasonable and constituted gross negligence. Consequently, he was thereafter operating in violation of the local law which required a permit for this work. As a result of the ongoing negotiations between Respondent's counsel and counsel for the Board, on July 10, 1986, after the contract between Mr. Foster and Respondent had been entered into, Respondent and the Board entered into a Settlement Stipulation which called for amendment of the Final Order entered in the prior case and which provided for the payment of a fine of $1,000.00 within 30 days with the further stipulation that when the fine was paid, the previously imposed five year suspension would be set aside. In the event the fine was not paid, however, then the Respondent's license was to be relinquished to the Board. The Amended Final Order was sent by certified mail to the Respondent but was unclaimed because the address used by the Department was, again, incorrect. It must also be noted, however, that at the time the Board agreed to the settlement stipulation, it had available to it the report of investigation relating to the current Administrative Complaint. The Board either failed to consider it or chose to ignore it when it agreed upon a settlement to the former Administrative Complaint. It is also noted that the Board was aware of the difficulties involving service of process as early as August, 1986. At that time, Respondent received a certified letter from the Board Attorney indicating that final action on his license would be taken by the Board at its September, 1986 meeting in Ft. Lauderdale. Respondent attended that meeting where, after discussion, counsel for the Board convinced the Board to reopen the case due to the questions involving proper service of its former actions. A year later, in July, 1987, Respondent was advised that the reopened case would again be considered at the Board's meeting in Tampa, and at the 1987 meeting of the Board, it entered its Amended Final Order. Though regrettable, these factors are not controlling and do not affect this current action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that the Respondent's license as a general contractor in Florida be suspended for two years. RECOMMENDED this 11th day of July, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 11th day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1999 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. For the Petitioner: 1 - 2. Accepted and incorporated herein. 3. Accepted and incorporated herein. 4 - 5. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. 10 - 13. Accepted and incorporated herein. Accepted that Palmer refused to issue the permit because Respondent's license had been suspended. Accepted and incorporated herein. Rejected that Respondent willfully violated local building code. Evidence shows more of gross negligence than willfulness. Accepted. For the Respondent: No submittal. COPIES FURNISHED: Belinda Miller, Esquire, Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0758 Fred H. Moore 12687 - 97th Street, North Largo, Florida 34643 Fred Seely, Executive Director DPR, Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
Findings Of Fact The Respondent, Paul K. Scapecchi, is a registered general contractor in the State of Florida, holding license number RG 0015926, and a registered roofing contractor, holding license number RC 0031048. The Respondent is the qualifier for Paul's Construction Company, which is the Respondent's firm. Edwin Schmid is a resident of West Germany who vacations in North Florida, and who testified by deposition which was received in evidence as Exhibit 1. He owns six parcels of real estate, or lots adjacent to each other, including Lot 19, Bon Bay Estates, in Santa Rosa County, Florida, which he purchased in approximately February, 1980. Edwin Schmid intended to have a home constructed on Lot 19 to be used as rental property. Subsequently, Edwin Schmid was introduced to the Respondent and the Respondent's father, Walter Scapecchi, by Lee and Carolyn Swigger. The Swiggers had become friendly with Edwin Schmid because Carolyn Swigger speaks German. Thereafter, Edwin Schmid contracted with the Respondent and Walter Scapecchi to have his home built on Lot 19 in Bon Bay Estates. This contract was in written form and dated March 21, 1981. Although Walter Scapecchi signed this contract "doing business as Paul's Construction Company," as contractor, the Respondent admitted that the contract was with himself, and that his father was merely an employee of the firm. The initial contract with Edwin Schmid in which the price was set at $36,000 was participated in by both the Respondent and his father. Edwin Schmid dealt with the Respondent directly on several occasions, but the business card he had been given showed Walter Scapecchi's name written in by hand over the Respondent's name. The deposit check written by Edwin Schmid was made payable to Walter Scapecchi in the amount of $8,000. Walter Scapecchi is not licensed to engage in the business of general contracting, but was so engaged, aided and assisted by his son, the Respondent. The deposit check for $8,000 was to be used to cover the digging of the foundation, the necessary fill, the pouring of the concrete foundation, a culvert for the driveway, and electrical service, which was to have been completed by April 10, 1981, pursuant to the contract. A second payment of $10,000 was to have been made on April 10, 1981. On April 10, 1981, however, no work had yet been done, and none was done until March of 1982, nearly one year later. The work done in March 1982 consisted only of placing foundation markers. The Respondent admitted that the work of placing foundation markers did not cost anything near the $8,000 paid, and that he did not request the second payment of $10,000 because the work done did not exhaust the initial payment. Nevertheless, no part of the $8,000 initial payment was refunded to Edwin Schmid. Throughout the period of time after the contract was executed in March of 1981, Edwin Schmid wanted the Respondent to complete the construction pursuant to the contract. At one point after the first year had elapsed without any substantial work being done, Edwin Schmid attempted to effect a new contract with the Respondent that required the initial work for which he had already paid $8,000 to be completed. The Respondent agreed to this, but did not perform any more work at the construction site. The Respondent admits that he has not performed as required by the contract. He contends this was due to personal financial problems. Other excuses for the Respondent's nonperformance included his underestimation of the amount of fill required, heavy rains which caused delays, and State of Florida requirements. Nevertheless, work was not begun for nearly one year after the contract, contrary to the agreement, and only a minimal amount of work was done as of the date of the hearing. The Respondent moved out of the State of Florida in February of 1982, without notifying Edwin Schmid.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent, Paul K. Scapecchi be found guilty of violating Sections 489.129(1)(e), (f), (h), (j) and (k), Florida Statutes, and that licenses numbered RG 0015926 and RC 0031048 held by Paul K. Scapecchi be REVOKED. THIS RECOMMENDED ORDER entered this 27th day of September, 1983. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1983. COPIES FURNISHED: Douglas A. Shropshire, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Paul K. Scapecchi 133F 25th Court, N.W. Birmingham, Alabama 35215 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
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.
The Issue The issues in this case are whether Respondent, Daniel F. Acevedo, committed the offenses alleged in a four-count Administrative Complaint filed with Petitioner, the Department of Business and Professional Regulation, on July 11, 2008, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for, among other things, the licensure of individuals who wish to engage in contracting in the State of Florida; and the investigation and prosecution of complaints against individuals who have been so licensed. See Chs. 455 and 489, Fla. Stat. Respondent, Daniel F. Acevedo, is and has been at all times material hereto a certified general contractor in Florida, having been issued license number CGC 1506071. Mr. Acevedo is also a Certified Roofing Contractor, having been issued license number CCC 1326888. Both licenses were issued by the Construction Industry Licensing Board (hereinafter referred to as the “Board) and are in “current active” status. At all times material, Mr. Acevedo was the primary qualifying agent for All Design Systems, Inc. (hereinafter referred to as “All Design”). All Design is a Florida corporation. Mr. Acevedo is an officer of the corporation. All Design’s certificate of authority, License Number QB 26737, was issued on September 4, 2003. The license expired on August 31, 2007, and was in delinquent status from September 1, 2007, to May 14, 2008. Mr. Acevedo remained the qualifying agent during the delinquent period. All Design employed three to four sales agents who “sold” construction projects to commercial and residential property owners on behalf of All Design. All Design utilized these individuals because it believed they had experience in the construction industry and that they held licenses or certifications which would allow them to perform estimates on construction projects and make appropriate bids. The sales agents were to find customers for All Design and enter into contracts with them on behalf and in the name of All Design. In August of 2005, Mr. Acevedo was approached by Eduardo Rodriguez. Mr. Rodriguez offered to locate potential home remodeling customers for All Design in exchange for a percentage commission. Mr. Acevedo agreed. At no time relevant to this matter was Mr. Rodriguez licensed in Florida to engage in contracting as a state certified or registered contractor. Nor was Mr. Rodriguez’s business entity, Eduardo’s Construction, Inc. (hereinafter referred to as “Eduardo’s Construction”), licensed with a certificate of authority as a contractor qualified business. Mr. Rodriguez was the president and sole officer of Eduardo’s Construction. Eduardo’s Construction was not incorporated in Florida. Some time during 2005, Grace Esposito obtained a business card for Eduardo’s Construction. She obtained the card after discussing with a neighbor construction work that was being performed by Eduardo’s Construction on the neighbor’s residence. The neighbor informed her that Mr. Rodriguez was the contractor performing the work. The business card incorrectly represented that Mr. Rodriguez was licensed and insured. Ms. Esposito called the number listed for Eduardo’s Construction and spoke with a man who identified himself as Eduardo Rodriguez. In August 2005, Mr. Rodriguez met with Ms. Esposito at her condominium residence, located at 20301 West Country Club Drive, Aventura, Florida (hereinafter referred to as the “Subject Property”). Ms. Esposito discussed with Mr. Rodriguez the work which she desired. Based upon representations from Mr. Rodriguez, Ms. Esposito believed that he was licensed to perform the work being discussed. The evidence failed to prove, as suggested by Mr. Acevedo, that Mr. Rodriguez “bid on the Esposito job, [and] orally agreed to essential terms with Esposito on behalf of All Design Systems, Inc., Respondent’s Firm.” Mr. Acevedo’s testimony in this regard was uncorroborated hearsay and was contradicted by the credible testimony of Ms. Esposito. On September 5, 2005, Ms. Esposito entered into a written contract with Mr. Rodriguez, doing business as Eduardo’s Construction, for the remodeling of the Subject Property (hereinafter referred to as the “Contract”). Ms. Esposito agreed in the Contract to pay $24,000.00 for the remodeling. Upon execution of the Contract, Ms. Esposito paid Eduardo’s Construction with three checks totaling $12,000.00 for the remodeling. Mr. Rodriguez informed Mr. Acevedo of the project in September 2005. At that time, without reviewing the Contract, Mr. Acevedo executed a building permit application which Mr. Rodriguez provided him for the project. The permit application had not been signed by Ms. Esposito. In October 2005, Mr. Rodriguez presented the building permit application to Ms. Esposito for her signature. The permit application was then submitted to the building department. The building permit was subsequently approved and issued under Mr. Acevedo’s license and in the name of All Design. Ms. Esposito had been told that part of the work would be completed in October. When this representation proved untrue, she began contacting Mr. Rodriguez. Mr. Rodriguez told her that it was taking time to get the permit due to delays at the building department. Eventually, when she was no longer able to contact Mr. Rodriguez, Ms. Esposito went directly to the building department where she learned that All Design was the contactor of record and not Eduardo’s Construction. On or about October 31, 2005, Ms. Esposito telephoned All Design and spoke with Mr. Acevedo. She informed Mr. Acevedo about the Contract. Mr. Acevedo agreed to meet with her. On November 1, 2005, Mr. Acevedo visited Ms. Esposito at the Subject Property. She showed him the work that had been performed and explained the details of the Contract and what had transpired with Mr. Rodriguez. Mr. Acevedo told Ms. Esposito that his relationship with Mr. Rodriguez was that he merely allowed Mr. Rodriguez to use his license to pull permits in exchange for $150.00. Mr. Acevedo told Ms. Esposito that he would attempt to get Mr. Rodriguez to complete the job. This meeting was memorialized in a letter to Mr. Acevedo written by Ms. Esposito. At some time in November, work recommenced on the project. Within approximately three days, however, work stopped. Ms. Esposito sent four emails to Mr. Acevedo describing the work performed and the cessation of the project. Ms. Esposito made a final request that the project be completed. Mr. Acevedo did not respond to the emails. On or about November 17, 2005, Ms. Esposito sent a letter to Mr. Acevedo outlining the events, requesting termination of the Contract, and the removal of Mr. Acevedo from the building permit. Mr. Acevedo did not respond to this letter. The building permit was cancelled by Mr. Acevedo in December 2005. The total investigation costs incurred by the Department, excluding those costs associated with any attorney’s time, was $381.83. Mr. Acevedo has not previously been disciplined by the Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Daniel F. Acevedo violated the provisions of Section 489.129(1)(d), (i), and (m), Florida Statutes, as alleged in Counts I, II, III, and IV of the Administrative Complaint; imposing fines of $250.00 for Count I, $1,000.00 for Count II, and $2,000.00 for Count III; requiring that Mr. Acevedo pay the costs incurred by the Department in investigating and prosecuting this matter; placing Mr. Acevedo’s licenses on probation for a period of two years, conditioned upon his payment of the fines, payment of the costs incurred by the Department; and any other conditions determined to be necessary by the Board. DONE AND ENTERED this 11th day of March, 2009, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 11th day of March, 2009. COPIES FURNISHED: Brian P. Coats, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2022 Daniel Acevedo All Designs Systems, Inc. 2813 Executive Drive Weston, Florida 32388 Kenneth Stein, Esquire 8436 West Oakland Park Boulevard Sunrise, Florida 33351 G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether Respondent, Wayne H. Wagie, committed the offenses alleged in an Administrative Complaint filed with Petitioner, the Department of Business and Professional Regulation, on August 11, 2004, and, if so, what penalty should be imposed.
Findings Of Fact The Parties. Petitioner, the Department of Business and Professional Regulation (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for, among other things, the licensure of individuals who wish to engage in contracting in the State of Florida; and the investigation and prosecution of complaints against individuals who have been so licensed. See Ch. 689, Fla. Stat (2005). Respondent, Wayne H. Wagie, is and has been at all times material hereto a licensed certified general contractor in Florida. Mr. Wagie was originally licensed as a certified general contractor on or about December 28, 1978, license number CGC 13331. At all times material hereto, the status of his license has been "Current, Active." At all times material, Mr. Wagie was the qualifying agent for Unified Construction Technologies, Inc (hereinafter referred to as "Unified Construction"), a Florida corporation. Unified Construction did not have a certificate of authority as a qualified business organization. The Department has jurisdiction over Mr. Wagie's license. The Spiegel Brothers. At the times material to this matter, Mr. Wagie engaged in a business arrangement with two brothers, Abraham and Yosef Spiegel (hereinafter referred to jointly as the "Spiegel Brothers), whereby Mr. Wagie allowed the Spiegel Brothers to use his general contractor's license number and qualifying number to pull permits for a company through which the Spiegel Brothers conducted construction business. The Spiegel Brothers' construction company was Mega Construction Group, Inc., d/b/a Mega Construction Group, Inc. (hereinafter referred to as "Mega Construction"). Pursuant to their agreement, Mega Construction, through the Spiegel Brothers, was to handle all aspects of any construction contracts the Spiegel Brothers were able to enter into, including negotiating the contract, handling funds received from customers, and performing all necessary work. The only function not to be carried out by the Spiegel Brothers or Mega Construction was to actually obtain the necessary building permits; that was Mr. Wagie's responsibility. In exchange for his services, Mr. Wagie was to receive a percentage of the sales price, with half paid upon execution of the contract and half after completion of the work. Neither of the Spiegel Brothers was a licensed general contractor in Florida. Nor was Mega Construction certified as a contractor qualified to do construction business in Florida. Mr. Wagie was aware of these facts. The Sicre Contract. In 2001, Candida Sicre owned and resided at a house located at 650 82nd Street, Miami Beach, Florida. Ms. Sicre was interested in adding a handicap accessible bathroom to her home and, when she received a flyer in the mail advertising Mega Construction, she contacted the Spiegel Brothers. On August 13, 2001, Ms. Sicre entered into a written contract with Mega Construction (hereinafter referred to as the "Sicre Contract"). Pursuant to the Sicre Contract, Mega Construction agreed to construct a new handicap-accessible bathroom for which Ms. Sicre agreed to pay a total of $15,762.00. As part of their contract, it was agreed that an air-conditioning unit would be relocated. While the relocation of the air-conditioning unit is listed as "1" and the construction of the new bathroom is listed as "2" in the Sicre Contract, in fact the relocation of the air-conditioning unit was a necessary component of the construction of the new bathroom, for the new bathroom was to be constructed from where the air-conditioning unit was to be relocated. Ms. Sicre paid a total of $7,762.00 on the agreed Sicre Contract price. On September 17, 2001, Mr. Wagie, pursuant to his agreement with the Spiegel Brothers, signed a building permit application required to complete the Sicre Contract. That application was filed with the City of Miami Beach building department on or about January 4, 2002. On the permit application, Unified Construction was listed as the "Company," Mr. Wagie was listed as "Qualifier," and Mr. Wagie's license number was listed as the "License No." under "Contractor Information". The permit application was approved by the City of Miami Beach on or about May 31, 2002, and permit number KB0201178 was issued. Pursuant to an agreement between the Spiegel Brothers and Ms. Sicre, the starting date for the Sicre Contract was postponed to August 15, 2002, just over a year after it had been entered into. At some time after the Sicre Contract was entered into, the air-conditioning unit was relocated as specified in the contract. Except for the relocation of the air-conditioning unit, no further work specified under the Sicre Contract was performed. The actual construction of the new bathroom was never started. Eventually, Ms. Sicre was told that the work would not be performed because Mega Construction was going to declare bankruptcy. After being told that the new bathroom would not be completed, Ms. Sicre sold her house. She attempted, however, to obtain a refund of some of the $7,762.00 she had paid Mega Construction. Eventually, Ms. Sicre learned of Mr. Wagie's involvement with the Spiegel Brothers and, through a series of negotiations, it was agreed that she would receive a refund of $2,000.00 through Mr. Wagie from the Spiegel Brothers. She was eventually given two $1,000.00 checks in furtherance of this agreement, but the checks ultimately "bounced." The only work performed on the Sicre Contract by Mega Construction was the drawing of a building permit and the relocation of the air-conditioning unit. For this work, Ms. Sicre paid a total of $7,762.00. Ultimately, Mega Construction, although beginning the project by relocating the air-conditioning unit, abandoned the project without its completion. Prior Disciplinary Action. On July 15, 1996, the Department filed a Final Order reflecting that a settlement stipulation had been approved by the Construction Industry Licensing Board (hereinafter referred to as the "Board"), pursuant to which Mr. Wagie agreed to pay an administrative fine in the amount of $250.00, plus investigative and legal costs in the amount of $368.30 to resolve charges against his license, which Mr. Wagie denied. The Department's Costs of Investigation and Prosecution. The Department has incurred $597.69 in the investigation and prosecution of this matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department: Finding that Wayne H. Wagie violated Section 489.129(1)(i), Florida Statutes (2000), as alleged in Counts I and III of the Administrative Complaint; and violated Section 489.129(1)(d), Florida Statutes (2000), as alleged in Count II of the Administrative Complaint; Dismissing Counts IV and V of the Administrative Complaint; and Imposing an administrative fine in the total amount of $3,250.00; requiring that Mr. Wagie pay Ms. Sicre $2,000.00 in restitution; requiring that Mr. Wagie pay $597.69 as the costs of the investigation and prosecution of this matter; and that his license be suspended for a period of two years. DONE AND ENTERED this 31st day of August, 2005, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 31st day of August, 2005. COPIES FURNISHED: Theodore R. Gay Assistant General Counsel Department of Business and Professional Regulation 8685 Northwest 53rd Terrace, Suite 100 Miami, Florida 33166 Wayne H. Wagie 220 Northeast 45th Street Miami, Florida 33137 Tim Vaccaro, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
