The Issue Whether Edward J. McLoughlin's license as a registered general contractor in the State of Florida should be disciplined for alleged violations of Chapter 489, Florida Statutes, as set forth in an Administrative Complaint filed May 6, 1987?
Findings Of Fact Edward J. McLoughlin is, and was at all times material to this proceeding, licensed in the State of Florida as a registered general contractor. Mr. McLoughlin's license number is RG 0023302. Mr. McLoughlin's registered general contractor's license has been delinquent for failure to renew since 1983. Mr. McLoughlin was not licensed as an electrical contractor or as a plumbing contractor in the State of Florida during 1986. Joyce Carmichael, Mr. McLoughlin's former wife, and Richard D. Oldham, jointly own a four bedroom house. Ms. Carmichael and Mr. Oldham decided to convert the house to a duplex. In June and July of 1986, Ms. Carmichael contacted Mr. McLoughlin and requested that he perform the remodeling work necessary to convert the house to a duplex for her and Mr. Oldham. Initially Mr. McLoughlin declined to do the work. In July, 1986, however, Mr. McLoughlin agreed to perform the work. Mr. McLoughlin indicated that he would perform the work in return for an hourly fee. Ultimately, however, Mr. McLoughlin agreed to perform the work for a lump-sum of $2,000.00. The renovation work on the house was begun by Mr. McLoughlin in July, 1986. Mr. McLoughlin provided the tools and labor necessary to renovate the house and Ms. Carmichael and Mr. Oldham paid for supplies and materials. Ms. Carmichael purchased the supplies and materials which Mr. McLoughlin told her to purchase. During the course of the renovations, Mr. McLoughlin performed electrical work and plumbing work for which an electrical license and a plumbing license were required. Mr. McLoughlin stopped performing work on the house in September, 1986, because he was unwilling to perform all the electrical work necessary to complete the renovations. Mr. McLoughlin was paid $1,000.00 for the work that he performed for Ms. Carmichael and Mr. Oldham. Although Mr. Oldham was a licensed contractor in 1986, he did not agree to act as the contractor for the renovations on the house and Mr. McLoughlin did not work at Mr. Oldham's direction and under Mr. Oldham's supervision.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a Final Order finding Edward J. McLoughlin guilty of violating Section 489.129(1)(j), Florida Statutes, for failing to comply with Sections 489.115(3) and 489.117(2), Florida Statutes It is further RECOMMENDED that the Department issue a letter of reprimand to Mr. McLoughlin and require that he pay a fine of $250.00. DONE and ENTERED this 20 day of July, 1988, in Tallahassee, Florida. LARRY J. SARTIN 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 July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2501 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally-accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 2 2. 3-4 3. 5 5. 6 4 and 5. 7 7. 8-9 10. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 Irrelevant. There is no requirement that the "complaining witness" appear at the formal hearing. 2-4 Argument and summary of proceedings. 5-6 Argument of law. Not supported by the weight of the evidence. Although it is true that materials were purchased by Ms. Carmichael, the rest of this proposed finding of fact is not supported by the weight of the evidence. 9-10 Argument of law and not supported by the weight of the evidence. COPIES FURNISHED: Fred Seely Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Ray Shope, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Lester Mokofka, Esquire 222 East Forsyth Street Jacksonville, Florida 32202
The Issue The issues in this proceeding are whether the Respondent has violated provisions of Florida Statutes pertaining to the licensing of contractors as alleged in the Administrative Complaint, and, if so, what disciplinary action should be imposed.
Findings Of Fact The Respondent has been licensed in Florida as a general contractor since November, 1970. At all times material to this proceeding, the Respondent qualified A & E Builders, Inc., and Maury Daniel Construction Company under his general contractor's license. During March, 1982, Respondent qualified Southern Bilt Kitchens & Baths, Inc. ("Southern Bilt"), under his general contractor's license. Prior to March, 1982, Petitioner had not applied to qualify Southern Bilt under his contractor's license. Angel Alvarez is now and at all material times was the owner and president of Southern Bilt. Neither Alvarez nor Southern Bilt was registered or certified as a contractor with the Construction Industry Licensing Board. Alvarez has been licensed in Dade County only as a miscellaneous carpenter. For a period of time which included the years 1980 and 1981, the Respondent received payments from Southern Bilt to obtain building permits so that Southern Bilt could engage in various construction projects. Respondent was not otherwise employed or involved with Southern Bilt, and he did not participate in the operations, management, or control of the company. Respondent would receive payments from Southern Bilt, the amount of which varied depending upon the nature of the project, in exchange for obtaining building permits. Southern Bilt did not have persons in its employ who were qualified to obtain building permits. Southern Bilt utilized Respondent's services solely for the purpose of obtaining building permits. During October, 1980, Patricia Stewart, a resident of Miami, Florida, entered into a contract with Angel Alvarez, who represented Southern Bilt. The contract was for Southern Bilt to construct an addition to Mrs. Stewart's home. Alvarez and Southern Bilt were not qualified to obtain a building permit to complete the project. The Respondent obtained a building permit for the construction as the qualifier for A & E Builders, Inc. The permit was issued on January 15, 1981. Except for obtaining the permit, neither the Respondent nor A & E Builders, Inc., was involved in the project in any manner. Difficulties arose during construction of the project. Mrs. Stewart had paid a substantial portion of the contract price. She was dissatisfied with the quality and pace of work that was being performed. She did not learn that the building permit for the addition to her home was obtained by persons other than Alvarez and Southern Bilt until after she considered the project abandoned by Southern Bilt and contacted employees of the Building and Zoning Department in Dade County.
The Issue This proceeding was commenced on February 7, 1985, when the Division issued its Notice to Show Cause, alleging a list of seven violations of Chapter 509 Florida Statutes and certain administrative rules. The matter was handled informally and Final Order was entered by Division Director, R. Hugh Snow, on April 11, 1985. (H & R No. 23-16678R). The Final Order was later withdrawn pursuant to an Order of the First District Court of Appeal, (Case No. BG-307, dated October 29, 1985) and the matter was forwarded to the Division of Administrative Hearings. At the commencement of the hearing, George Frix was determined to be authorized to represent his family-held corporation. See Magnolias Nursing and Convalescent Center v. DHRS, 428 So.2d 256 (Fla. 1st DCA 1982). The Petitioner presented the testimony of four witnesses and nine exhibits, marked A-l. The Respondent testified on his own behalf and one exhibit was admitted. Both parties submitted post-hearing proposed recommended orders. On January 27, 1986, Petitioner filed a Motion to Strike certain portions of Respondent's proposed recommended order, based upon Respondent's attachment of five exhibits to his proposed order. Those attachments labeled Exhibits #1 through #4 were not entered into evidence at the hearing and were not considered in the preparation of this Recommended Order. However, the attachment labeled Exhibit #5 was admitted at the formal hearing as Respondent's Exhibit #1 (Final Order of the Division, dated 4/11/85). This document is part of the record in this proceeding. Except as addressed above, the Motion to Strike is Denied. A specific ruling on each party's proposed findings of fact is found in the appendix attached to, and incorporated as part of this Recommended Order. The issue in the proceeding is whether Respondent committed the violations alleged in Petitioner's February 7, 1985, Notice to Show Cause, and if so, what disciplinary or corrective action should be taken.
Findings Of Fact At all times relevant, Sangeo has held license number 23-16678R for the premises known as the Provider at 9713 N. E. 2nd Avenue in Miami Shores. The license was initially issued in January 1982, with an effective date of December 1981. The license is a counter and take-out license; that is, it permits the consumption of food on the premises and preparation of food for take-out. (Hayes testimony). The establishment consists of a sandwich take-out, meat market and grocery. Tables and chairs are provided for the customers, but there are no waitresses. The establishment has a beer and wine license, but not a "COP" (consumed on premises) license. (Testimony of Frix). The Division of Hotels and Restaurants, the licensing authority, maintains a contract with the Department of HRS to conduct inspections of restaurants on a quarterly basis. (Testimony of Livingstone and Hayes). Joanna Thomas, an Environmental Health Specialist, employed by the Dade County Health Department, conducted her first inspection of the licensee on October 24, 1984. She found several code violations: no urinal in the men's room, the hand wash sink blocked by bicycles and inaccessible, an open hole over the heater, failure to keep food at the required temperature, and other violations which she noted on her report and explained to the manager at the premises. (Thomas testimony). Ms. Thomas returned for a follow-up inspection on October 30, 1984. Some corrections had been made. The manager was told that the urinal had to be installed by the next routine inspection visit. (Thomas testimony). The next inspection was conducted on January 4, 1985. Again, several violations were found, and the following remedial actions were listed in the instructions on the inspection report: (The numbers correspond to the numbers on the violation checklist). #5 Provide approved thermometer as was told. #8 Elevate foods off floor in walk-in. #16 Install drainboards on both ends of three-compartment sink. #17 Provide chemical test kit. #20 Provide sanitizing agent for utensils. #25 Store single service articles upside down. #31 Install urinal in one of the restrooms. Handwash sink must be accessible at all times. #33 Provide covers for garbage cans and keep covered. Provide approved garbage containers - not plastic. #36 Clean floor on the side of hand wash sink and clean under items in the storage room. #37 Repair hole over heater or provide a screen to protect entrance of insects/rodents. #38 Light bulbs must be shielded in preparation and dishwashing area. #42 Remove unnecessary articles from storage room. Arrange storage so that floor could be reached for cleaning. Store cleaning maintenance equipment properly. (Petitioner's Exhibit A) At the follow-up inspection on January 10, 1985, Ms. Thomas noted that some of the violations were still not corrected. She found failure to comply with the following: #16, 17, 31, 33, 37, 38. (Numbers correspond to the instructions listed in paragraph 5, above). These violations were the basis for the Notice to Show Cause which gave rise to this proceeding. (Petitioner's Exhibit 3, Notice to Show Cause dated 2/7/85). On February 22, 1985, Ms. Thomas found compliance with #37 and $38, but not the other violations. On her April 10, 1985 inspection visit, her primary concern was that the urinal was still not installed. On her most recent visit on December 11, 1985, a reinspection, all prior violations had been corrected, except the installation of a range ventilation system (not at issue in the Notice to Show Cause) and the urinal. (Testimony of Thomas, Petitioner's Exhibit C). The Provider does not now have, nor has it ever had, a urinal in the men's room. It was issued a license without one. The other violations, designated as "minor" on the January 4, 1985 inspection report, existed for varying periods or occasionally re-occurred, but no longer existed by December 11, 1985. The establishment maintains drainboards, but they are portable and not always in view. A handwash sink exists but on occasion it is blocked. Shields are utilized over the light fixtures, but are removed periodically for cleaning. (Testimony of Frix, Petitioner's Exhibits A and C). George Frix conceded at the hearing that space exists to install a urinal. However, he claims that installation of another water-using device is prohibited by the local pollution control authority. No evidence of that prohibition was presented to substantiate the claim. He also claims that the requirement for the urinal did not exist at the time his license was issued and cites the Division's previous "Final Order", dated April 11, 1985, for authority, since the order does not require correction of the missing urinal. (Testimony of Frix, Respondent's Exhibit
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a Final Order finding the Respondent guilty of the violations cited in paragraphs A, B, D, E, F and G of the Notice to Show Cause, dated February 7, 1985, and imposing a fine of $300.00 ($50.00 per violation). That Petitioner enter a Final Order finding the Respondent guilty of the violation cited in paragraph C of the Notice to Show Cause dated February 7, 1985, and requiring that compliance be demonstrated within 60 days of the date of the Final Order or thereafter that license No. 23-166F-R be suspended until compliance is demonstrated. DONE and ORDERED this 6th day of February, 1986, in Tallahassee, Florida. MARY W. CLARK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1986. COPIES FURNISHED: Richard B. Burroughs, Jr. Secretary Department of Business Regulation 725 S. Bronough Street Tallahassee, Florida 32301 R. Hugh Snow, Director Division of Hotels & Restaurants 725 South Bronough Street Tallahassee, Florida 32301 H. Reynolds Sampson, Esquire Post Office Box 3457 Tallahassee, Florida 32315 Lynne Quimby, Esquire Harold F. X. Purnell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. George A. Frix, President Sangeo, Inc. P.O. Box 530583 Miami Shores, Florida 33153 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of feet submitted by the parties to this ease. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact #1. Adopted in Finding of Fact #2. Adopted in Finding of Fact #3. Adopted in Finding of Fact #4. Adopted in Finding of Fact #5. Adopted in Conclusion of Law #5. Rejected as a statement of testimony, not a finding of fact. Adopted in Finding of Fact #6. Rejected as immaterial, cumulative and unnecessary. Rejected as immaterial, cumulative and unnecessary. Rejected as a simple statement of testimony rather than a finding of fact. Rejected as cumulative and unnecessary. 13-23. These "proposed findings of fact" are mere recitations of the testimony of various witnesses, and are rejected as such. To the extent that the testimony was credible, material and necessary, the facts adduced are reflected in Findings of Fact #7, 8 and 9. 24-27. These paragraphs citing provisions of the Administrative Code are addressed in Conclusions of Law #4 and 5. Rulings on Proposed Findings of Fact Submitted by the Respondent Rejected as a statement of testimony rather than finding of fact. However, the substance of this paragraph was addressed as Respondent's defense in Finding of Fact #9. Rejected as presenting evidence that was not introduced or admitted at the final hearing (Exhibits 1-4). These exhibits are also immaterial. Exhibit #5 is addressed in Finding of Fact #9. Rejected as a statement of Respondent's testimony and argument of his position. He failed to produce authority that the law and rules did not exist when the facility was licensed. Rejected as substantially inconsistent with the evidence. Rejected as a statement of the Respondent's testimony. His argument that the violations charged were the result of a personality conflict between employees of Petitioner and Respondent, is rejected as based upon wholly unsubstantiated hearsay, and inconsistent with the greater weight of the evidence. Rejected as immaterial. Adopted in part in paragraph 8. The final sentence is rejected as inconsistent with competent substantial evidence that the violations existed on January 10, 1985 and, in some cases, longer.
The Issue Whether the Respondent committed the following acts on Ellenton Shoney's construction project: Aiding and abetting a person engaged in the unregistered and uncertified practice of contracting. Obtaining a permit for construction in which he took no part. Using his license to illegally associate with an unlicensed contractor.
Findings Of Fact At all times material to these proceedings, Respondent, Samuel E. Whitener, was licensed as a certified general contractor in Florida, and held license number CG C024909. His qualifying status is that of an individual, and the business address is 13502 Greenleaf Drive, Tampa, Florida 33612. On December 9, 1987, the Respondent contracted with Restaurant Management Services, Inc., a Georgia corporation, to manage a construction project known as Shoney's in Ellenton, Florida. Respondent was awarded the contract once it was determined that he had submitted the lowest bid for the job. This contract was the written restatement of an oral agreement entered into by the parties on December 4, 1987. Pursuant to the contract terms, Respondent was to substantially complete the partially completed project within four weeks from the restart of the job. His management fee of $4,000.00 was to be paid upon completion of his contract. The reason the job had to be restarted was that Stop Work Order number 1055 had been issued by the Manatee County Building Official on December 3, 1987 because a properly qualified Florida licensed contractor was not on the permit documents previously submitted to the county. At the time the stop work order was issued, the project was seventy- five percent complete. All of the subcontractors were in place, and the project manager retained by the owner was still with the project. The Shoney's restaurant being built at this location was based upon a design and plans created by the architect Steven Cooper. This was a "cookie cutter" project in that the project manager and a majority of the subcontractors had built Shoney's restaurants from the same plans at various locations throughout Florida and the Southeast. The project manager and the subcontractors went from location to location, and built the restaurants wherever the owner, Restaurant Management Services, Inc., scheduled such construction. In keeping with the corporate plan to locate these restaurants in certain locales by certain target dates, the subcontractors and the project manager were paid by the corporation instead of the contractor. When Respondent entered into the contract with Restaurant Management Services, Inc., he was aware that the funds for supplies and services on the project were to be managed by the owner. Respondent likened the contract to those traditionally made with school boards and hospitals. In Florida, these particular entities hire a contractor, but they like to maintain control of the funds themselves. However, as part of the cost management of the project, the contract specifically required that Respondent, Samuel E. Whitener, approve all related costs prior to payment by the owner. He also had authority to determine the value of the subcontractor's work on the site. It was agreed that Respondent would visit the jobsite twice weekly, and he would be on call during normal working hours. He would meet with building officials when needed. Values of work or code interpretation would be his sole responsibility, and the job superintendent had to be qualified and approved by Respondent Whitener. If he were unable to work with the job superintendent provided, a replacement would be made by Respondent. During the time period between December 4, 1987 and the completion of the project, the Respondent took responsibility for the work performed at the site and fulfilled his obligations of contract. As agreed, he was paid upon completion of the job. The Respondent was not paid $4,000 by Fred Pringle to obtain the permit. He was paid $4,000 to manage the remaining twenty-five percent of the project, which he did. After his personal interview of the project manager, and upon review of his work during the project, the Respondent decided to allow the same project manager to continue with his work on this project. No conflicts occurred on the job involving Respondent's authority or the quality of construction undertaken by the subcontractors or the project manager. Testimony from one subcontractor at hearing revealed that Respondent exercised his authority as the general contractor to reject some clay materials brought to the site that he determined were unacceptable for its intended use.
Recommendation Based upon the foregoing, it is RECOMMENDED: That Respondent be found not guilty of having violated Sections 489.129(1)(e), (f) and (m), as alleged in Counts I, II and II of the Amended Administrative Complaint filed August 14, 1990, and modified without objection on December 14, 1990. DONE and ENTERED this 28th day of February, 1991, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 February, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-5657 Petitioner's proposed findings of fact are addressed as follows: Accepted. Accepted. See HO number 1. Accepted. Accepted. See HO number 4. Reject the first sentence. Contrary to fact. See HO number 2. Accept the rest of the paragraph. Reject the first sentence. Contrary to fact. See HO number 3, number 11 and number 12. Accept second sentence. See HO number 8. Reject the rest. Contrary to fact. See HO number 5 - number 15. Accept the first sentence. Reject the second sentence. Contrary to fact. See HO number 10, number 11, number 13 - number 15. Reject the third sentence. Contrary to fact. See HO number 7. Reject the fourth sentence. Contrary to fact. See HO number 10. Accept the last sentence. Respondent's proposed findings of fact are addressed as follows: Accepted. Accepted. See HO number 1. Accepted. See HO number 2, number 5, number 8, number 9, number 10. Accepted. See HO number 11 - number 15. Rejected. Irrelevant. Accepted. See HO number 11 and number 12. Accepted. Accept that Respondent was unaware of an entity known as Quality Construction. See HO number 8. The rest of the paragraph is rejected as irrelevant. COPIES FURNISHED: Robert B. Jurand, Esquire Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Brian A. Burden, Esquire Post Office Box 2893 Tampa, Florida 33601 Daniel O'Brien, Executive Director Construction Industry Licensing Board 111 East Coastline Drive, Room 504 Jacksonville, Florida 32202 Jack McCray, Esquire General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792
