The Issue This is an appeal from Resolution No. P60-99 of the Monroe County Planning Commission ("Planning Commission"), in which the Planning Commission approved the decision of the Monroe County Planning Department ("Planning Department") denying two applications for building permits submitted by the Appellants, Robert and Ruth Stoky ("the Stokys"). One application requested a building permit to reconstruct a screened porch and to build an elevated deck in the rear of the Señor Frijoles/Cactus Jack's restaurants, which are located at 103900 Overseas Highway, Key Largo, Florida; this application was assigned building permit number 99-3-857 ("permit number 99-3-857"). The second application requested a building permit to reconstruct a trellis as a separate structure associated with the Sundowner restaurant, also located at 103900 Overseas Highway, Key Largo, Florida; this application was assigned building permit number 99-3-858 ("permit number 99-3-858"). The instant appeal was forwarded by the Planning Commission to the Division of Administrative Hearings pursuant to Article XIV, Monroe County Code, the Hearing Officer Appellate Article, and Monroe County ("the County") has appeared as Appellee in this case. In their Initial Brief, the Stokys abandoned their appeal of the decision of the Planning Commission approving the Planning Department's denial of their application for permit number 99-3-858; therefore, the ultimate issue presented in this appeal is whether the Planning Commission's Resolution No. P60-99 should be affirmed, reversed, or modified with respect to the its decision approving the Planning Department's denial of the Stokys' application for permit number 99-3-857.
The Issue Whether Respondent's registration as a general contractor should be suspended or revoked, or the respondent otherwise disciplined, for alleged violations of Sections 468.112 (2)(a), (2)(g), and (2)(h), Florida Statutes, as set forth in the Administrative Complaint.
Findings Of Fact Petitioner Phillip H. Bare, Ocala, Florida, is registered with Respondent as a general contractor under the provisions of Chapter 468, Florida Statutes, and was so registered throughout the year of 1977. He operates under the name of American General Corporation of Florida, but that firm has not been qualified to engage in the contracting business in Florida, pursuant to Section 468.107, Florida Statutes. (Petitioner's Exhibits 1, 2, Stipulation, Testimony of Cherry) On August 15, 1977, Respondent, as president of American General Corporation of Florida, entered into a Home Improvement Installment Contract and Note with Joe Wheeler and wife, who reside at Route 2, Box 63, Live Oak, Florida. The contract provided that for a price of $4,250 Respondent would make the following property improvements on the Wheeler residence: Build 12 X 20 Room Addition and finish with paneling, ceiling tile, & all trim. Build 6 X 14 porch with top. Replace all Rotten sills. Replace all Rotten siding. Paint house with latex paint. Repair floor joist. The Wheelers made a down payment of $350 leaving an unpaid balance of $3,900. The promissory note provided for a total financed cost of $6,629.28 payable in monthly payments over a period of seven years. On August 29, 1977, the parties entered into another such contract for additional work to the residence for the price of $1,600 as follows: Install ceiling tile in (2) bed rooms and bathroom complete with trim. Install paneling in (2) bed rooms complete. Install paneling and tile board in bath. Remove old shingles and install new 235lb asphalt shingles. Install 54" kitchen sink complete and hook to water. The Wheelers paid $100 as a down payment on the work and financed the remainder with a total deferred price of $2,100 payable in 48 consecutive monthly installments. (Petitioner's Exhibits 5, 6, Testimony of E. Wheeler, J. Wheeler) Respondent subcontracted the work on the Wheeler residence to one John Compton. Respondent did not secure a Suwannee County Building Permit for the work, nor was he licensed in that county to act in the capacity of a contractor. (Testimony of Respondent, Wilson) On September 12, 1977, Mr. Wheeler signed a Customer's Completion Certificate" wherein he acknowledged that the contract work had been satisfactorily completed. Although Respondent testified that he explained the contents of the document to Wheeler at the time it was executed, Wheeler denied the same and testified that he had not read its contents prior to signing it. (Testimony of Respondent, J. Wheeler, Respondent's Exhibit 1) Prior to completion of the work, the Wheelers noted that certain deficiencies in the work existed, including a floor that "shaked" in the new addition, looseness of wall paneling, failure to replace rotten siding and lower sills, and failure to install ceiling tile in one bedroom. They spoke to workmen on the job who said that they would return and finish the work. However, nothing further was done in spite of the fact that Respondent told Mrs. Wheeler in a telephone conversation that he would be back to complete the job. As a result, Mrs. Wheeler made a complaint to Derl W. Wilson, the building official for Suwannee County. (Testimony of E. Wheeler, J. Wheeler, Wilson) Pursuant to Mrs. Wheeler's complaint, Wilson inspected the premises at some time during the month of September, 1977, and observed that the accomplished work was of a substandard nature involving various violations of the Southern Standard Building Code which had been adopted by Suwannee County in 1975. These violations, which Respondent acknowledged at the hearing to have been committed, included the following: concrete foundation blocks improperly aligned and unsupported by required concrete pad; improper spacing of floor joists at 24 inch rather required 16 inch intervals; use of one-ply instead of two-ply flooring material; failure to extend vent stack for plumbing system in kitchen to a height of 6 inches above the roof line; failure to provide a shutoff valve for cold water line under kitchen sink; failure to cover and protect splices in wiring of ceiling light fixture; failure to install ridge board for support of roof rafters; improperly installing two inch by four inch wood braces in attic; failure to connect sewer line to septic tank. Additionally, Wilson observed various instances of poor workmanship in installation of an electric wall receptacle and connection of the roof of the new addition to the existing building. Further, he noted that due to the improper spacing of floor joists, the substandard plywood flooring was not firm and constituted a safety hazard. (Testimony of Wilson, Petitioner's Composite Exhibit 3) After his inspection, Wilson wrote a letter to Respondent, dated October 18, 1977, pointing out the deficiencies in construction and advising that a complaint would be filed against him unless a building permit was obtained within ten days and the necessary corrections of deficiencies were made. Although Wilson testified that he did not hear from Respondent as a result of the letter, Respondent made several telephone calls to Wilson's office and was informed that he was on vacation. (Testimony of Wilson, Respondent, Respondent's Exhibit 7) On June 14, 1978, Respondent entered a plea of guilty in the County Court of Suwannee County, Florida to a charge of improper construction arising out of the Wheeler contract, and the Court withheld adjudication of guilt in the matter. (Petitioner's Exhibit 9) Respondent was previously convicted in the County Court of Putnam County, Florida, on August 13, 1974 of engaging in the business or acting in capacity of a contractor without being duly registered in the county pursuant to Section 468.105(2), Florida Statutes. On June 16, 1975, Respondent pleaded nolo contendere in the County Court of Alachua County, Florida to a charge arising out of his activities as a home improvement contractor. The Court withheld adjudication of guilt and placed the Respondent on probation for a period of six months and required that he "make necessary repairs to home of victim to satisfaction of Consumer Protection Section of State Attorney's Office, Eighth Judicial Circuit." (Petitioner's Exhibits 7-9) Petitioner has been a building contractor for twelve years. He testified that his subcontractor for the Wheeler job had been competent in the past and he relied on this fact in not closely inspecting the work under the Wheeler contracts. For this reason, he was unaware that the building code violations had occurred until after he had sold the Wheeler contracts and mortgages to a third party who was contacted by the Wheelers regarding the deficiencies. Respondent denied that he abandoned the work because he thought it had been completed until subsequent notification of the Wheeler complaint. He has since made attempts through Counsel to resolve the complaint by having the work performed by a contractor licensed in Suwannee County or by means of a monetary settlement. He further testified that he had inquired of Petitioner's office as to the necessity for obtaining a Suwannee County license prior to commencing the Wheeler contracts and was informed that his registration was valid for work in that county. He acknowledged that he made a "mistake" in not obtaining a building permit and in failing to supervise his subcontractor properly, but stated that the licensing rules in the various counties were "confusing." As to his prior difficulties in Putnam and Alachua Counties, Respondent testified that the Alachua matter involved a complaint raised four or five years after construction regarding quality of workmanship and that he had taken care of the matter. As to the Putnam County case, he testified that he was unaware that a building permit was necessary at the time he did the work for which he was subsequently prosecuted. It is found that Respondent's exculpatory testimony regarding his failure to obtain a building permit or county licensing, and lack of knowledge of code violations with respect to the work performed at the Wheeler residence is not credible. (Testimony of Respondent, Respondent's Exhibits 2-6)
Recommendation That Respondent's registration as a general contractor be suspended for a period of one year and that an administrative penalty in the amount of $500 be imposed, for violation of Section 468.112(2)(a), Florida Statutes. DONE and ENTERED this 23rd day of March, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 1979. COPIES FURNISHED: Barry Sinoff, Esquire 2400 Independent Square Jacksonville, Florida 32202 C. Valentine Bates, Esquire 726 NW 8th Avenue - Suite B Gainesville, Florida J. K. Linnan, Executive Director Florida Construction Industry Licensing Board Post Office Box 8621
The Issue Whether the Petitioner, Glenn Singer (Petitioner or Singer) is entitled to attorney's fees and costs from the Complainant/Respondent, Robert Nieman (Respondent or Nieman), pursuant to Section 112.317(8), Florida Statutes (2004).
Findings Of Fact On June 10, 2002, the Respondent executed a Complaint that was filed with the Ethics Commission against the Petitioner. At the time of the filing, the Respondent was on paid administrative leave or suspension from the Police Department of the Town of Golden Beach (Town). Nevertheless, the Respondent remained employed by the Town and at the time of hearing in this cause the Respondent was employed as a police sergeant. Immediately prior to filing the Complaint against the Petitioner the Respondent served as the interim police chief for the Town. At all times material to this case the Petitioner was a councilman serving on the Town’s governing council. As such, the Petitioner was subject to the ethics provisions governed by the Ethics Commission. The Petitioner and the Respondent have known one another since childhood. Prior to the incidents complained of herein the two had considered themselves cordial acquaintances. The Respondent’s Complaint itemized four concerns that he believed demonstrated violations of ethics provisions. The specifics of the Complaint are set forth in Petitioner’s Exhibit 1. In general, the Respondent believed that the Petitioner had used his position as a Town councilman to obtain a building permit at a lesser value than should have been reported. He based this assertion on information told to him by persons working within the Town who overheard comments made by the Petitioner and a building official. The Respondent believed that Linda Epperson, who has 20-plus years of experience in the construction business, had opined that the value of the work to be performed at the Petitioner’s home greatly exceeded the value set forth in the permit sought. Ms. Epperson’s comments regarding the permit issue were overheard by another Town employee, Rosemary Wascura. At hearing, Ms. Epperson denied making the comments. Ms. Epperson is still employed by the Town and would like to continue her employment until her retirement vests (another four years). Ms. Wascura (who is a personal friend of the Respondent’s) does not work for the Town any longer. Ms. Wascura’s testimony was credible and persuasive as to the incident regarding the conversation between the Petitioner and a building official. Although it is not concluded the Petitioner used his position to influence the building official and receive a reduced permit cost, it is found that the factual information upon which the Respondent relied in making such assertion was grounded in an eyewitness account of an incident and not mere speculation. The second allegation of the Complaint also dealt with a subcontractor who had performed services for the Petitioner at his home. That subcontractor was subsequently awarded a Town contract for brick pavers to be installed at the entrance to the Town. The basis for the Respondent’s concern regarding this allegation stemmed from unsealed bids that were submitted for the brick paver project. According to Ms. Wascura the subcontractor who had provided a favorable job for the Petitioner was to receive the bid on the Town job. Although wrongdoing on the Petitioner’s part was not substantiated, the basis for the Respondent’s assertion was supported by the information he received from Ms. Wascura. In as much as Ms. Wascura was privy to comments from the building officials at the time, it was reasonable for Respondent to believe that something untoward had occurred when the same subcontractor received the Town’s bid, especially when the bid amount was later changed to cover a shortfall on the construction cost (the increased amount would have resulted in the subcontractor not being the lowest bidder after all). As to the third assertion in the Complaint, the Respondent claimed that the Petitioner had physically assaulted a temporary security guard employed by the Town while the Police Guardhouse was being built. The Respondent based this claim on the personal observations he made when the security guard reported the incident, the pictures he took of the guard (depicting the damaged shirt), and the identification of the Petitioner as the perpetrator that the victim made from a photograph. Although the assault was never fully investigated (the security guard could not be located and the matter was dropped), the Respondent had a reasonable basis to believe some inappropriate act had occurred and that the Petitioner could be involved. Finally, the fourth claim set forth in the Respondent’s Complaint alleged that the Petitioner had changed a vote on a variance request after being called aside by someone known as “Vinnie” in this record. According to eyewitnesses to the incident, the Petitioner voted against Vinnie’s variance then changed his vote after Vinnie whispered something in the councilman’s ear, and the two left the room briefly. When the Petitioner returned to the council table, he changed his vote to favor Vinnie’s variance. Although it is not concluded the Petitioner did anything improper in changing his vote, or that the variance would not have received sufficient favorable votes to pass even without the Petitioner’s vote, it is clear that the Respondent thought the activity was highly unusual and suspect. The Town council meetings are videotaped. A videotape of the proceeding disproving the account of the witnesses was not provided. It is unusual to allow anyone to approach the council seats to privately discuss anything with a council member during a council session. As for why the Petitioner would change his vote, the Respondent believed it had to do with a boat mooring that the Petitioner sought. Although the Petitioner did not own a boat at the time, the gossip among Town workers had been that the Petitioner wanted to be able to moor his boat at a certain angle to avoid an impeded view of the waterway. In return, he allegedly supported Vinnie’s variance. Although the rumor was unfounded, when the story was viewed in light of the Petitioner’s actions with Vinnie at the council meeting, it formed a reasonable basis for Respondent’s concerns. On July 9, 2002, the staff attorney for the Ethics Commission sent Respondent a letter requesting additional information regarding the Complaint. The forms included with that letter constitute the Complaint Amendment that was executed by the Respondent on July 19, 2002. Sometime in August 2002 the Respondent was fired from his position with the Town. He filed an appeal of the termination and ultimately won his job back. At that time he desired to drop the entire matter against the Petitioner. To that end he executed and filed with the Ethics Commission a Request to Withdraw the Complaint. The Request to Withdraw was denied on December 9, 2003. Also on December 9, 2003, the Ethics Commission issued a Public Report that dismissed the Respondent’s complaint against the Petitioner. On January 4, 2004, the Petitioner filed a Fee Petition pursuant to Section 112.317(8), Florida Statutes. The Fee Petition asserts that the Respondent acted with a malicious intent to injure the reputation of the Petitioner. The Respondent’s intent was to bring to light the allegations against the Petitioner because he believed the information he had been given was accurate. It proved to be inaccurate. He did not investigate each of the claims before filing the Complaint and Complaint Amendment but believed his sources to be credible Town employees. In retrospect, the Respondent believes he could have avoided the professional pitfalls that befell his employment had he not filed the Complaint. Nevertheless, based on the information he had at the time from credible Town employees, the Respondent acted to cause some investigation of the Petitioner’s activities. The Respondent did not know that the comments from Town employees were false or not subject to confirmation. The Respondent personally observed Vinnie’s intervention at the council table. Had it not dovetailed with the rumor regarding the Petitioner’s proposed boat issue, the conversation would have still appeared unusual at best. Coupled with the other unverified information, it gave the appearance of impropriety warranting investigation. Similarly, none of the other allegations could be easily discredited. The Respondent relied on comments attributed to Ms. Wascura and Ms. Epperson. He had no reason to doubt the veracity of his friend. Further, he could not foresee that Ms. Epperson would not acknowledge making statements pertaining to the permit issue. The original documents pertaining to the permits pulled for the Petitioner’s property are in storage and were not available at the hearing. A computer-generated report was provided to the Ethic Commission’s investigator. That report does not contain the detail and dates that might have verified the account provided by Ms. Wascura. The Respondent’s efforts to obtain copies of public records were thwarted. The Petitioner’s efforts to paint Ms. Epperson as a gossip whose alleged statements should not have been credited is not supported by the weight of persuasive evidence. Ms. Epperson was an experienced person whose knowledge in the construction industry made her a credible source for information. She was employed in a position that made her privy to the activities of the building department. She now disavows making the comments that were the subject matter of the Complaint. Nevertheless, the Respondent believed the comments attributed to her and believed they were from a credible source. If attorney’s fees and costs are entered in this cause the beneficiary of an award will be the Town. The Petitioner has incurred no expenses or costs associated with the defense of the Complaint. The Town agreed to pay and has paid all attorney’s fees and costs associated with this case. The Petitioner presented several invoices from the Law Offices of Stuart R. Michelson that were alleged to pertain to the instant case. One invoice dated January 6, 2004, set forth 25.00 hours had been expended by Ilene L. Michelson (partner) at the rate of $200.00 per hour. The invoice also noted 5.50 hours had been expended by Stuart R. Michelson (senior partner) also at the rate of $200.00 per hour. The total of the first invoice including costs was $6,594.54. The second invoice, dated June 10, 2004, itemized time expended by James Birch (associate attorney) billed at the rate of $125.00 per hour; Michael Torres (law clerk) billed at the rate of $75.00 per hour; Robert J. Longchamps (law clerk 2) also billed at the rate of $75.00 per hour; and Stuart R. Michelson (senior partner) billed at the rate of $200.00 per hour. The total attorney’s fees for this second invoice equaled $3,232.50; with costs the second invoice was $3,772.38. A third invoice dated September 9, 2004 documented $1,187.50 in fees for time expended by James Birch, Michael Torres, Robert J. Longchamps, and Stuart R. Michelson. The total for fees and costs for the invoice were $4,308.85. The costs and fees claimed in this cause are set forth in detail in Petitioner’s Exhibit 8. However, bills attached to invoices identify other parties not related to the instant case. For example, an invoice from United Reporting, Inc., references the case James Vardalis v. Robert Neiman. The Petitioner’s case is not the same matter. Similarly, a second invoice from United Reporting, Inc. (dated June 16, 2004) references Michael Addicott v. Neiman. The Petitioner did not delineate which of the costs were solely attributable to this case. It is unclear whether the fees were also incurred for other cases related to this Respondent (but not the Petitioner herein). The Petitioner also presented testimony from an expert witness who was to be paid by the Town. That witness, an attorney, was to be paid $200.00 per hour for his efforts in this matter. In connection with his work in this matter and other cases the expert billed the Town a total of $8,050.00. Exactly what portion of that amount is attributable to solely this case is unknown (see page 77 of the transcript in this case). Although the Petitioner’s expert testified that the hourly rates for fees applied in this cause were reasonable, there was no evidence that the time was actually expended in connection with the instant case. There is no way to know if the services were performed for the defense of the Respondent’s Complaint.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the Fee Petition in this case. S DONE AND ENTERED this 2nd day of June, 2005, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 2nd day of June, 2005. COPIES FURNISHED: James J. Birch, Esquire Law Office of Stuart R. Michelson 200 Southeast 13th Street Fort Lauderdale, Florida 33133 Robert Nieman 9731 Southwest 12th Street Pembroke Pines, Florida 33026 Kaye Starling, Agency Clerk Commission on Ethics 3600 Maclay Boulevard, South, Suite 201 Tallahassee, Florida 32317-5709 Phillip C. Claypool, General Counsel Commission on Ethics 3600 Maclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Bonnie J. Williams, Executive Director Commission on Ethics 3600 Maclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
Findings Of Fact Respondent, Michael N. Kuvin (Kuvin), was at all times material hereto a certified general contractor in the State of Florida, having been issued license numbers CG CB07136 and CG C007136. Kuvin, under license number CG CB07136, was the qualifying agent for Gerald S. Krigel Corporation (Krigel Corp.). During the years 1904 and 1985, Krigel Corp. acted as the general contractor for Lomar Communities Inc. (Lomar), the owner/developer of Sugarwood and Heritage Park subdivisions, Dade County, Florida 1/ Gerald Krigel was the president of Krigel Corp. and Lomar. While the Sugarwood and Heritage Park subdivisions were under development, Kuvin did not supervise, direct, manage, or control the contracting activities of Krigel Corp., nor did he supervise, direct, manage, or control any of its construction activities in the subdivisions. He did, however, meet with Mr. Krigel twice a year, at which times he signed and delivered to Mr. Krigel an indeterminate number of blank building permit applications. On each occasion, Kuvin was paid $1,500. 2/ In mid-December 1985, Lomar and Krigel Corp. closed their offices. In January 1986, Lomar filed a petition in bankruptcy. The Freedman Residence On January 8, 1984, Marc Freedman and his wife entered into an agreement with Lomar for the purchase and sale of a single family residence in the Sugarwood subdivision. The agreement, as subsequently modified on May 11, 1984, called for Lomar to build the house in accordance with an agreed floor plan and deed it to the Freedmans in exchange for an agreed price of $106,337.50. On June 7, 1984, a building permit application was submitted to the Dade County Building and Zoning Department (Dade County) to construct the Freedman house. The application listed Lamar as the owner, Krigel Corp. as the contractor, and was signed by Kuvin. The requested permit was issued July 10, 1984, and a certificate of completion was issued on October 3, 1984. A closing was held on the Freedman purchase in late October 1984. Certain construction deficiencies existent on closing or subsequently discovered have not, however, been rectified despite demand of Lamar and Kuvin. 3/ The deficiencies include a backyard which is prone to flooding because of poor drainage, a pool deck area which has cracked into 14 separate pieces because not scored and which floods because not graded; interior dry wall which has cracked and buckled, and cracked tiles in the bathroom. The Florez Residence On February 23, 1985, Maria Florez entered into an agreement with Lomar for the purchase and sale of a single family residence in the Heritage Park subdivision. The agreement called for Lomar to build the unit in accordance with an agreed floor plan and deed it to Ms. Florez in exchange for an agreed price of $69,500. Under the terms of her agreement with Lomar, Ms. Florez was obligated to pay an initial deposit of $1,000, and an additional deposit of $2,500 upon approval of her application for a mortgage loan. Ms. Flores paid Lomar the initial deposit of $1,000, the $2,500 deposit upon approval of her application for financing with Pan American Bank, as well as the additional sum of $1,136 to add an air vent in the bathroom and to upgrade the carpeting. On June 25, 1985, a building permit application was submitted to Dade County to construct the Florez unit. The application listed Lomar as the owner, Krigel Corp. as the contractor, and was signed by Kuvin. The requested permit was issued July 5, 1985, and construction apparently completed in November 1985; however, Dade County has not yet issued a certificate of completion. No closing was ever scheduled for the Flarez unit. Upon learning of Lomar's bankruptcy, Ms. Florez filed a claim in the bankrupt's estate. To date, that claim has not been resolved. The Cevallos Residence On March 13, 1985, Pedro Cevallos and his wife entered into an agreement with Lamar for the purchase and sale of a single family residence in the Heritage Park subdivision. The agreement called for Lomar to build the unit in accordance with an agreed floor plan and deed it to the Cevallos in exchange for an agreed price of $69,900. Under the terms of the Cevallos' agreement with Lamar, they were obligated to pay an initial deposit of $500, and an additional deposit of $3,000 upon approval of their application for a mortgage loan. The Cevallos paid the deposits of $3,500, as well as an additional $190 to add an air vent in the bathroom. On June 6, 1985, a building permit application was submitted to Dade County to construct the Cevallos unit. The application listed Lomar as the owner, Krigel Corp. as the contractor, and was signed by Kuvin. The requested permit was issued June 13, 1985, and a certificate of completion was issued on November 14, 1985. The Cevallos had a walk through inspection of their unit and noted no deficiencies. A closing never occurred, however, because of Lamar's bankruptcy. The Cevallos are a claimant in the bankrupt's estate, but that claim has not been resolved. The Sujansky Residence On October 21, 1934, James Sujansky and his wife entered into an agreement with Lomar for the purchase and sale of a single family residence in the Heritage Park subdivision. The agreement called for Lomar to build the unit in accordance with an agreed floor plan in exchange for an agreed price of $64,900. On April 12, 1935, a building permit application was submitted to Dade County to construct the Sujansky unit. The application listed Lomar as the owner, Krigel Corp. as the contractor, and was signed by Kuvin. The requested permit was issued on April 26, 1985, and a certificate of completion was issued on October 9, 1985. On October 22, 1985, a closing was held on the Sujansky unit. At closing, the Sujanskys received a no-lien affidavit, a builder's warranty from Lomar, and Lomar's assurances that the deficiencies noted on the punch list would be corrected. Lomar failed or refused to correct the following deficiencies: the yard was prone to flooding because of poor drainage, cracked tiles were noticeable in both bathrooms and the kitchen, the dry wall was not sanded or painted, the exterior walls contained cracks in the stucco finish, the window trim rattled, the front door had gaps around it, the kitchen cabinets had missing or unsecured handles, and the formica was peeling off the kitchen counter. Subsequent to closing, the Sujanskys received a claim of lien against their property from GDG Services, Inc., B.Q. Interiors Contractors, and Bird Plumbing Corp. These companies claimed monies owed for materials and services furnished to the property under a contract with Lomar or Krigel Corp. The proof established that B.Q. Interiors was owed the sum of $390, but failed to establish the validity or amount of the remaining claims. The Frisby Residence On March 25, 1985, Thomas Frisby and his wife entered into an agreement with Lomar for the purchase and sale of a single family residence in the Heritage Park subdivision. The agreement called for Lomar to build the unit in accordance with an agreed floor plan in exchange for an agreed price of $69,000. On June 6, 1985, a building permit application was submitted to Dade County to construct the Frisby unit. The application listed Lomar as the owner, Krigel Corp. as the contractor, and was signed by Kuvin. The requested permit was issued on June 13, 1985, and a certificate of completion was issued on December 31, 1985. On November 3, 1985, a closing was held on the Frisby unit. At closing, the Frisbys received a no-lien affidavit and a builder's warranty from Lomar. Subsequent to closing, the Frisbys noted numerous deficiencies which Lomar failed or refused to remedy. These deficiencies included a back yard prone to flooding because of poor drainage, a bedroom wall that leaked and caused the wall and carpet to mildew, chipped and cracked sidewalks, and an uneven livingroom floor. Additionally, the Frisbys received a claim of lien against their property from B.Q. Interiors Contractors, S&R Industries, Inc., and Val's Air Conditioning, Inc. These companies claimed monies owed for materials and services furnished to the property under a contract with Lomar or Krigel Corp. The proof established that B.Q. Interiors was owed the sum of $390 and that S&R Industries was owed the sum of $632.50, but failed to establish the validity or amount of the lien claimed by Val's Air Conditioning.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Michael N. Kuvin's certification as a general contractor, license numbers CG CB07136 and CG C007136, be REVOKED. DONE AND ORDERED this 1st day of April, 1937, in Tallahassee, Florida. WILLIAM J. KENDRICK 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 1st day of April, 1987.
Findings Of Fact At all times relevant, Respondent, Hugh M. Holt, was licensed in Florida as a registered residential contractor, under license number RR-0034385. He was also licensed as an electrical contractor. A-I Carpenters Contractor, Inc. (A-I) was a company primarily involved in residential remodeling work. In 1984 and 1985, Jack and Sandra Delayne Deprima were President and Vice President, respectively. On May 30, 1984, Hugh Holt, his wife, Joan Holt, and the Deprimas executed a stockholders' agreement in which Hugh Holt was assigned 166 2/3 shares of stock, out of a total of 666 2/3 outstanding shares, in exchange for services to the corporation. Those services included his supervision of construction work undertaken by the corporation and the pulling of necessary permits. It was agreed that Hugh Holt would receive an additional $300.00 to $400.00 for each building permit taken out in his name with respect to work done by the corporation. Papers were prepared for filing an application to qualify Hugh Holt as agent for A-I Carpenters Contractor, Inc., pursuant to Section 489.119, F.S. Hugh Holt never filed those papers and the corporation was not registered or certified in his name. After the stockholders' agreement was executed, permits were pulled at the Orange County Building Department for the corporation in Hugh Holt's name. The applications were signed in advance by Hugh Holt, and an employee from the corporation used a power of attorney from Hugh Holt to obtain the permits at the local building department office. About twenty-five permits were obtained in this manner. Holt was paid by the corporation for those permits and in some instances appeared at the job site to supervise the work. In August 1985, Jack Deprima negotiated and entered into a contract on behalf of A-I with C.J. and Mary Lou Adelman, to construct an addition to their home at 5632 Pitch Pine Drive, in Orlando, Florida. The addition was a 16x38 feet porch enclosure involving the extension of an existing floor slab, installing a roof extension with skylights, a block wall with a window, and support for a built-in spa. On August 19, 1985, an Orange County building permit was obtained for the Adelman job in Hugh Holt's name. Cathy Davis, an employee of A-I, took a letter of authorization dated August 19, 1985, and purportedly signed by Hugh Holt, to the building department and obtained the permit. Hugh Holt denies signing the authorization but admits that the letter was prepared by his daughter. He claims that the letter was for an electrical permit for the Adelman job, but no electrical permit was obtained. Sandra Deprima, the bookkeeper for A-I, paid Hugh Holt $300.00 for the Adelman permit. Hugh Holt never appeared at the Adelman job site, nor did he supervise the work. In August 1985 he was the only individual associated with A-I who could serve as qualifying agent or pull permits. Sandra Deprima was granted a Florida residential contractors license in 1985, but did not have her license in hand in August 1985 when the Adelman job commenced. Charles Adelman paid A-I approximately $9600.00 for the work on his addition. During and after construction serious problems developed. The roof leaked because it was not properly tied to the existing structure, and the skylights leaked because they were not properly installed. The concrete wall began settling and cracking. A wooden wall set into the ground began rotting and the spa structural support collapsed. Jack Deprima attempted to make some corrections, but eventually the Adelmans had to hire another roofing company and other contractors to make repairs. Some masonry cracking still exists. The Adelmans have spent substantial sums above their contract amount with A-I to fix the problems. On December 23, 1985, Hugh Holt and his wife relinquished their shares of A-I Carpenters Contractor, Inc. and resigned from the corporation. The document they executed, titled "Transfer of Stock Interest, Release and Resignation", states that they had agreed to the surrender at such time when Sandra Deprima obtained her contractor's license and qualified the corporation. After the department initiated its investigation against A-I and the Deprimas, it learned of Hugh Holt's involvement through a questionnaire response provided by Sandra Deprima, and it informed Mr. Holt of the complaint.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the Construction Industry Licensing Board issue its final order, finding Hugh Holt guilty of the violations as charged, and assessing an administrative fine of $1,000.00, which fine is within the range of penalties found in the Board's disciplinary guidelines in Rule 21E-17.001, F.A.C. DONE and ORDERED this 21st day of August, 1989, in Tallahassee, Leon County, Florida. MARY CLARK 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 21st day of August, 1989. COPIES FURNISHED: John E. Jordan, Esquire Kenneth E. Easley Woolfolk, Estes and Keough, P.A. General Counsel 131 Park Lake Street Dept. of Professional Post Office Drawer 3751 Regulation Orlando, Florida 32802 1940 N. Monroe St. Suite 60 Hugh M. Holt, pro se Tallahassee, Florida 32399 6320 Ravinnia Drive Orlando, Florida 32809 Fred Seely Executive Director Post Office Box 2 Jacksonville, Florida 32202
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: By Warranty Deed dated July 2, 1982, petitioner was conveyed "Lot 151, Less the South 1/2 thereof" in Glenwood Subdivision. Lot 151 is presently zoned RS-50. The minimum lot area per dwelling unit in an RS-50 district is 5,000 square feet. Section 131.044, Code of Ordinances of the City of Clearwater. According to the subdivision plat, Glenwood Subdivision contains 154 platted lots, with an average lot size of 8,844 square feet. The smallest platted lot in the subdivision is 6,000 square feet. Lot 151 contains approximately 12,000 square feet. There is an existing single-family dwelling on the southern portion of Lot 151 which portion contains 7,700 square feet. Computations performed from a metes and bounds description of the northern part of Lot 151 which was conveyed to petitioner illustrates that petitioner's portion of Lot 151 contains 4,320 square feet. Section 20-2 of Ordinance No. 1449 provides, in part, that: ". . .Building permits shall not be issued for structures located on subdivided property created subsequent to the adoption of this Ordinance unless such plat of record is recorded in the Public Records of Pinellas County. The City Commission may permit lots of record to be cut in size to not less than the zone permits, without requiring a replat." No request was made to and no approval was given by the Clearwater City Commission to divide Lot 151, a platted lot. The restrictions for Glenwood Subdivision require that only one single- family dwelling house be erected on any single lot or plot. In August of 1982, petitioner applied to the Building Inspection Department of the City of Clearwater for a building permit to erect a single- family residence on his property. Apparently, a survey of the property did accompany the application, but no one in the Building Inspection Department verified the lot size. Petitioner was issued a building permit. Prior to October 27, 1982, petitioner had the land cleared, made soil boring tests, paid water meter fees, laid pilings and had the foundation and walls in place for the lower level of his new residence. The costs of this work, and other expenses related thereto, amounted to some $18,350.00. On or about October 27, 1982, the City issued a "red tag" on the project because it was discovered that petitioner's lot size was substandard. This was the first notification petitioner had of any problem with his lot size. He had never made inquiry concerning the zoning requirements for his lot. Petitioner continued construction on his residence. Two more "red tags" were issued on or about November 2 and November 25, 1982. On the latter date, petitioner was ordered to stop work on the project. Petitioner estimates that between August, 1982, and the date of his hearing (January 26, 1983), he expended approximately $40,710.00 on the purchase of his land and the partial construction of his residence. As noted in the Introduction, petitioner's application for a variance from the lot size requirements was denied by the City's Zoning Enforcement Officer, his appeal to the Board of Adjustment and Appeal on Zoning was denied and the instant proceeding resulted.
The Issue Whether the Respondent committed the violation alleged and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating building code administrators and inspectors. At all times material to the allegations of this case, the Respondent was either an applicant for licensure or held a building inspector license, license number BN 0002765. At all times material to this case, the Respondent was employed by the Martin County Building Department as a Building Inspector. Harriet R. Edwards owns a residence located at 2595 Hickory Avenue, Jensen Beach, Florida. This home is located in Martin County, Florida. At some point in early 1996, it became Ms. Edwards' desire to construct an addition to her residence. She retained a contractor to perform the work and returned to Ohio during the time of the construction. When Ms. Edwards returned to Florida she was dissatisfied with the quality of the work. Mr. Joyce, Ms. Edwards' friend, expressed that they had expressed a desire for, and requested only, a high quality of work for the addition to Ms. Edwards' home. Upon investigation it was discovered that the permit card located at the construction site had been initialed by the Respondent. All of the inspections listed on the permit card occurred prior to December 17, 1996. The Respondent was issued a provisional license to perform building inspections on or about December 17, 1996. All of the inspections initialed by the Respondent had been performed by another inspector employed by the Martin County Building Department, Bobby T. Chambers. Mr. Chambers was fully licensed at the times of the inspections and acted as the Respondent's training supervisor. The Respondent accompanied Mr. Chambers during a training period during which time Mr. Chambers was to instruct the Respondent in the procedures and practices of the Martin County Building Department. At all times material to the allegations of this complaint, the Martin County Building Department allowed unlicensed employees to assist its inspectors at construction sites. Such employees were authorized to initial permit cards and to radio to the main office the information regarding inspections performed at the job sites. Because of this informal and haphazard reporting system the official records maintained by the County falsely reflected that the Respondent had performed the inspections listed in this Administrative Complaint. He did not. The records were maintained inaccurately. By initialing the permit card and transmitting the information to the County, the Respondent was performing his duties as an employee-in-training and as directed by his supervisors. The Respondent did not intend to mislead officials and did not intend to file a false report required by law. As a result of the flawed training system used by the Martin County Building Department, this Respondent initialed permit documents prior to licensure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Building Code Administrators and Inspectors Board, enter a final order dismissing the Administrative Complaint against this Respondent. DONE AND ENTERED this 23rd day of October, 2000, in Tallahassee, Leon County, Florida. J. D. Parrish 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 23rd day of October, 2000. COPIES FURNISHED: Dorota Trzeciecka, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Michael A. Rodriguez, Esquire County Attorney's Office 2401 Southeast Monterey Road Stuart, Florida 34996 Leif Grazi, Esquire LAW OFFICES OF GRAZI & GIANINO, P.A. 217 East Ocean Boulevard Stuart, Florida 34995 Anthony B. Spivey, Executive Director Building Code Administrators and Inspectors Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
