The Issue The issue is whether respondent's license as a registered roofing contractor should be disciplined for the reasons set forth in the administrative complaint.
Findings Of Fact Based upon the entire record, the following findings of fact are determined: At all times relevant hereto, respondent, Raymond D. Simmons, was licensed as a registered roofing contractor having been issued license number RC 0055320 by petitioner, Department of Professional Regulation, Construction Industry Licensing Board (Board). He has been licensed as a roofing contractor since November 1987. The Board's official records reflect that on July 1, 1991, the license was placed on the delinquent status for non-renewal and is now considered "invalid." 1/ When the events herein occurred, respondent was the qualifying agent for Simmons and Sons Plumbing and Roofing, Route 1, Box 191 (County Road 225), Waldo, Florida. Except for this action, there is no evidence that respondent has ever been disciplined by the Board. On May 3, 1988, respondent submitted a proposal to Charles and Thea Ansman to repair the roof on their home located at 5132 N. W. 29th Street, Gainesville, Florida. With minor modifications, the proposal was accepted by the Ansmans on May 10, 1988. According to the agreement, respondent was to perform the following services: Tear off old shingles dry-in with 15 lb. felt and replace with Corning Owens 20 year fungus resistant shingles. Replace all plumbing stacks and ease drips. Will replace back porch with 3-ply build-up roof will coat it with roof coating 10 year warranty on workmanship 20 year manufactor [sic] on shingles and build-up roof. Will replace all wood that needs to be replaced. Although the agreement does not specifically refer to ridge vents, the parties also agreed that respondent would install a ridge vent on the home. On May 16, 1988, respondent made application for a building permit from the City of Gainesville to "reroof" the Ansman's home. The permit was issued on May 20, 1988, in the name of Simmons & Sons Plumbing and Roofing. Respondent commenced work on the project on May 16 and continued the work over a period of several days. During this period of time, respondent was frequently on the job site overseeing the work. Indeed, Thea Ansman said respondent was at her home approximately half of the time while the repairs were being made. Thus, while respondent undoubtedly supervised the job, for the reasons stated in findings of fact 6 and 7, he nonetheless failed to "properly" supervise the work. On May 20, 1988, Thea Ansman paid respondent in full for the work. Although the job was not finished, respondent told Mrs. Ansman he would return the next day to complete the work. When respondent failed to return, the Ansmans repeatedly telephoned him during the next few months, but respondent either refused to speak with the Ansmans or told them he would return within a few days. However, the work was never finished and respondent never returned to the job site. While inspecting the roof one day, Charles Ansman noted that the roof trusses, an intregal part of the load bearing capacity of the structure, were cut at their peaks. The depth of the cuts was between one and two inches and was apparently the result of a saw-blade not set at the proper height when the ridge vent was installed. Sometime in July or August 1988 Charles Ansman discussed the damage with respondent and requested that respondent repair the same. Respondent refused to do so on the ground he was not responsible for the damage. Ansman then filed a complaint with the City of Gainesville Building Department. On September 9, 1988, a city building inspector inspected the home and confirmed that virtually every truss was cut and that the integrity of the roof was in jeopardy. He also observed that the soffits were improperly installed in some cases, and in others, were missing altogether. A notice of violation was then issued by the city on October 3, 1988, charging respondent with violating the Standard Building Code in two respects. More specifically, it was charged that respondent's workmanship violated sections 1701.1.1 and 1708.2.1 of the 1985 Standard Building Code, as amended through 1987. These sections pertain to the quality and design of wood trusses and the design of trussed rafters, respectively. At a hearing before the city's Trade Qualifying Board, respondent admitted his workers had violated the cited sections and caused the damage to the trusses. However, respondent denied liability on the theory that the workers, and not he personally, had negligently damaged the house. Respondent was thereafter issued a letter of reprimand for his actions. In order to recover their damages, which included the replacement of all damaged trusses, the Ansmans filed suit against respondent in Alachua County small claims court. On April 18, 1989, they received a judgment in the amount of $1,050. The judgment was eventually satisfied but only after the Ansmans threatened to levy on respondent's real property located in Alachua County. In preparation for the suit, the Ansmans obtained an engineering report which corroborates the findings made by the city building inspector concerning the damage and negligence on the part of respondent's work crew. By allowing the work to be performed in that manner, respondent was incompetent and committed misconduct in his practice of contracting. However, there is no evidence that respondent was grossly negligent during his supervision of the job. Respondent did not appear at hearing. However, prior to hearing he spoke to the city building inspector and acknowledged that the roof trusses were damaged as the result of negligence on the part of his crew. He also admitted this during the final hearing on the small claims action. At the same time, he denied that his workers had ever touched the soffits. This assertion, however, is rejected as not being credible.
Recommendation Based upon the foregoing findings of facts and conclusions of law, it is, recommended that respondent be found guilty of violating Subsection 489.129(1)(m), Florida Statutes (1987), and that he pay a $1000 fine and his license be suspended for one year. RECOMMENDED this 16th day of December, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER 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 16th day of December, 1991.
The Issue The issue for consideration in this hearing is whether Respondent's license as a certified building contractor should be disciplined because of the matters set out in the Administrative Complaint.
Findings Of Fact At all times pertinent to the allegations herein, Petitioner was the state agency responsible for the regulation of the construction industry in Florida. Respondent, David P. Miller, was licensed as a certified building contractor under license number CB C039127 and was doing business as Great Southern Construction and Development, Inc. On March 14, 1988, Robert Crowley, a semi-retired real estate broker and promoter, and Treasurer of Enterprise Industrial Park, Inc., (EIP), entered into contracts with the Respondent to construct three buildings, A, B, and H, for it within the park boundaries. Building A was to house offices and retail space; building B was to house warehouse and offices; and building C was to house garage space. The construction was to be financed by an infusion of shareholders' money and by a construction loan from the Southland bank in the amount of $375,000.00. The loan was ultimately increased to $614,000.00 so that EIP could begin development of phase II of the park. The contracts provided for Respondent to be paid $110,000.00 for Building A, $67,000.00 for Building B, and $52,807.00 for Building H. The loan was obtained in phases. The developers had outlined the project to bank officials who approved it, initially, for development of the park and construction of four buildings. Phase one was to include the roadway and one building. When that was completed, the other buildings were to be erected. Site preparation was accomplished by John T. Day. Most of the site preparation was completed before Respondent started construction. Thereafter, as work progressed, Respondent periodically certified to the bank what work had been done and that suppliers had been paid. Upon receipt of that certification, the bank would issue a check for the appropriate amount to EIP which would, thereafter, issue its own check to Respondent. There was an exception, however, in the case of payments to Ludwig Steel. Whereas that supplier would bill Respondent for small items delivered, it demanded payment by cashiers' check upon delivery for major structural steel fabrications. These checks, for steel for Buildings A and B, were for $18,511.84 and $17,716.84, were issued by Southland Bank, at the request of EIP. During the course of his performance of the contracts for the construction of Buildings A, B, & H, Respondent executed several of the above mentioned certification forms. For Building H: These included: a. August 30, 1988 $ 9,505.00 b. October 4, 1988 9,505.00 c. October 17, 1988 9,505.00 d. December 28, 1988 11,881.50 e. January 31, 1989 9,437.50 TOTAL $49,834.00 Prior to these certificates, the bank also released $90,000 in advances for start up costs and the loan in March, April and May, 1988. In addition to the certificates listed above, Respondent also signed certificates for Building A totalling $91,446.00 as follows: a. August 30, 1988 $ 19,800.00 b. October 4, 1988 19,800.00 c. October 17, 1988 19,800.00 d. December 28, 1988 24,750.00 e. January 31, 1989 7,296.00 TOTAL $ 91,446.00 Respondent also signed additional certificates for Buildings B as follows: a. December 28, 1988 $ 46,642.00 b. January 31, 1989 28,031.00 c. March 1, 1989 28,031.00 TOTAL $102,704.00 These certificates were also signed by the architect, Mr. Wilcockson. In fact, they were not correct in that not all the work had been done and not all suppliers had been paid. Respondent admits to falsely signing the certificates but claims he was urged to do so by representatives of EIP who indicated to him it was just a routine procedure. Consequently, even knowing the certificates were not accurate, he signed them because he wanted to get paid. It is found, however, that Respondent has been a licensed contractor for a number of years and knew the implications of his actions. His attempts at justification for his actions are neither credible nor impressive. Construction progressed satisfactorily and without major problems up to the time for the last draw. At that point, the bank declined to issue a check to EIP for the construction of Building C, also to be erected on the site, when it became aware that numerous liens had been filed by subcontractors and materialmen indicating Respondent's failure to make satisfactory payment for buildings A, B, and H. These liens included claims by: American Roll-Up Door Co. $ 3,630.00 B & B Painting Contractors 3,020.00 Blackton, Inc., 5,820.73 Brownie Septic Tank Contractors #1 1,025.00 Brownie Septic Tank Contractors #2 1,025.00 Brownie Septic Tank Contractors #3 1,635.00 Don Alan Dinora 930.00 Energy Savings Systems, Inc. 10,750.00 Florida Mining & Materials 2,388.31 Mid Florida Air Conditioning, Inc. 3,982.00 Neeley-Built Structures, Inc., 4,995.78 Residential Building Supply 7,857.11 Total $47,058.93 Mr. Crowley claims the above liens were satisfied by EIP, and it is so found. He claims EIP also paid some subcontractors who did not file liens because of a desire to help small contractors who otherwise would not have been paid. No figures were available to support that latter claim, however, and it is not considered to be probative of any issue. It is found, however, that Respondent paid Neeley-Built the amount of $4,995.78 and the claim of lien form included within Petitioner's exhibit of filed liens refers to property other than that in issue here. In addition, the $10,750.00 lien of Energy Savings Systems is not totally attributable to services or materials for the instant project. It is estimated that 60 percent of that amount relates to work done outside the three contracts in issue here. Further, only $1,700.00 of the lien of Residential Building Supply relates to material provided for the work done by Respondent under these contracts. The balance relates to work done outside the original contract limits. Over the course of the contracts, EIP paid Respondent, in addition to a deposit of $25,786,99 for Bldgs. A & H, the sums below, for a total of $259,006.72 for Bldgs. A, B, & H: a. Aug. 31, 1988 $19,800.00 for Bldg. A b. Aug. 31, 1988 9,505.00 for Bldg. H c. Oct. 05, 1988 10,793.16 for Bldg. H & A d. Oct. 17, 1988 29,305.99 for Bldg. A & H e. Dec. 14, 1988 19,000.00 f. Dec. 29, 1988 49,417.06 g. Feb. 06, 1989 7,296.00 for Bldg. A h. Feb. 06, 1989 28,310.00 for Bldg. B i. Feb. 06, 1989 9,473.50 for Bldg. H j. Feb. 10, 1989 2,350.00 for misc. k. Feb. 15, 1989 20,000.00 l. Mar. 03, 1989 28,031.00 for Bldg. B In addition to those payments, EIP also paid $16,000.00 to Benson Drywall on December 12, 1988 at the request of Respondent. The total paid by EIP, either to or on behalf of the Respondent, was: $ 25,786.00 deposit 233,280.72 to Great Southern 16,000.00 Benson Drywall 36,228.68 Ludwig Steel $311,295.40 TOTAL Mr. Crowley was not the main source of corporate funds. The President of the company is a Mr. Nelson who was the "money man." Contractor selection was by agreement between Nelson and Crowley, but Crowley was the supervisor of the contracts and did most of the negotiating with Respondent. The work stipulated in the contracts between EIP and Respondent was not the only work called for in their relationship. The contracts provided for the basic construction but Mr. Crowley requested Respondent to perform additional work in or around buildings A, B, and H, which included: Tenant improvements in buildings A and B valued at $23,000 excluding labor; Additional site work including electrical, telephone, grading and filling, berm modification, concrete sidewalks and parking buffers, and repair of damaged concrete (all but the repair of concrete was the result of the failure of the original site preparation contractor to properly complete his work); Negotiations and discussions with Volusia County regarding the sewer/septic system necessary for the project. In addition to the $23,000.00 for tenant improvements mentioned in the paragraph next above, Respondent also paid out of pocket to the following contractors and suppliers for work outside the scope of the original contracts: a. Ludwig Metal Buildings $ 3,000.00 b. Concrete 3,840.00 c. John Bates & family 6,497.73 d. Four Seasons 1,190.00 e. Will Cox 975.00 f. Riley 3,100.00 All Star Electric 4,705.32 Jerry's Concrete Service 1,350.00 TOTAL $24,658.05 Though the contracts referenced in this proceeding pertain to construction of Buildings A, B, & H, Respondent was also retained to erect a metal building to be designated C. Respondent received a total of $253,000.00 from EIP to construct those buildings for which he had the initial contracts and also to put up the metal building, C. The cost to complete Building C was $45,500.00 but EIP had remaining only slightly over $6,000.00 to pay for that work. Respondent did substantial work for EIP which was over and above the services called for under the contracts for Buildings A, B, & H as amended by the change orders for which he was not paid because Mr. Crowley advised him no additional monies were available. For example, he and his brother, Thomas, did additional site work valued by him at $24,260.00; and additional labor and services on the septic and sewer system problems valued by him at $5,600.00 and for tenant improvement, valued by him at $5,000.00. Here, however, it must be noted that the figures cited are not documented by any supporting material and contain significant amounts for his labor which he priced at $90.00 per hour. Mr. Miller, during his relationship with EIP, purchased a 10 percent interest in the firm. He originally filed his own lien on the property for $80,364.00 based on the contracts he had in hand and the site work which he valued at $18,000.00. He claims he subsequently withdrew his lien without being paid so that the limited funds available could be used to pay the subcontractors. No corroborating evidence on this point was introduced, however. Mr. Miller's contracting license was, subsequent to the incidents herein, placed in inactive status and currently remains so. He is not now engaged in contracting and claims he does not intend to do so in the future. His motivation in contesting the allegations against him is, he claims, solely to clear his good name and reputation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED THAT the Respondent, David P. Miller, d/b/a Great Southern Construction and Development, Inc. pay an administrative fine of $3,750.00 and be reprimanded. RECOMMENDED this 9th day of November, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-7413 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. Accepted and incorporated herein. Accepted. & 6. Accepted and incorporated herein. 7. - 14. Accepted and incorporated herein. 15. - 17. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. & 21. Accepted and incorporated herein. 22. - 24. Accepted and incorporated herein. 25. & 26. Accepted. FOR THE RESPONDENT: Accepted and incorporated herein. & 3. Accepted and incorporated herein. Rejected as the total amount paid by EIP for the buildings constructed by Respondent. The figure is somewhat higher due to deposit and amounts paid to suppliers by EIP. Accepted and incorporated herein. * At this point, Respondent's proposed Findings of Fact become misnumbered. There are two numbers 5. The subsequent numbers are as reflected in Respondent's submittal. 5. - 9. Accepted and incorporated herein. 10. - 12. Accepted and incorporated herein. 13. - 15. Accepted and incorporated herein. 16. Accepted. 17 & 18. Accepted. Alleged but not proven. Accepted. Rejected as contra to the weight of the evidence. Accepted and incorporated herein. COPIES FURNISHED: Tracy Sumner, Esquire William S. Cummins, Esquire Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kurt R. Borglum, Esquire 366 East Graves Avenue, Suite B Orange City, Florida 32763 Jack McRay General Counsel Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Daniel O'Brien Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
The Issue Whether the respondent committed the violations alleged in the Administrative Complaint, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Business and Professional Regulation is the state agency responsible for investigating and prosecuting complaints made to the Department for violations of the requirements of chapter 489, part I, Florida Statutes. Sections 489.131(7)(e) and 455.225, Fla. Stat. Pursuant to section 489.129(1), the Construction Industry Licensing Board ("Board") is the entity responsible for imposing discipline for the violations set out in that section. At all times material to this case, Mr. Cote was a certified general contractor operating under License Number CGC006199 issued by the Construction Industry Licensing Board. Mr. Cote currently holds this license, and he has been a licensed general contractor since 1973. At all times material to this case, Mr. Cote was the licensed qualifying agent for JLC Enterprises, Inc. On January 12, 1995, Noel Mais, on behalf of Noel Mais Roofing, contracted with Judith Braun to re-roof property she owned located at 8914 Northwest 26th Court, Coral Springs, Florida. The contract price was $7,000.00, with $3,000.00 required as a down-payment, $3,000.00 to be paid after the roof was dried in, and $1,000.00 to be paid on completion of the project. Neither Mr. Cote nor JLC Enterprises, Inc., was a party to this contract. In late January, 1995, Mr. Mais approached Mr. Cote and requested that he apply for the necessary building permit from the City of Coral Springs. He provided to Mr. Cote a workers' compensation waiver and exemption, a Certificate of Insurance for general commercial liability insurance, and a Certificate of Competency issued by Broward County, Florida, with an expiration date of August 31, 1995. Mr. Mais also told Mr. Cote that he had submitted all of the papers necessary to register his Broward County Certificate of Competency with the state but had not yet received his registration. Mr. Cote relied on the documents and the representations of Mr. Mais regarding his registration status with the state. On or about February 1, 1995,1 Mr. Cote submitted an application to the City of Coral Springs for a building permit to re-roof property owned by Ms. Braun and located at 8914 Northwest 26th Court, Coral Springs, Florida, naming JLC Enterprises, Inc., as the contractor and identifying the estimated cost of the project at $7,000.00. Mr. Mais gave Mr. Cote $300.00 when he applied for the permit. Mr. Cote used $150.00 of this money to pay the permit application fee and $60.00 to pay for two re- inspections which had to be done on the roof. On or about February 17, 1995, the City of Coral Springs issued Permit Number 95-443.2 Mr. Mais commenced work on the project a few weeks after the contract was signed, but before Mr. Cote applied for the permit. According to Ms. Braun, Mr. Mais started "like gangbusters" and quickly stripped the old tiles off of the roof and applied the tar paper. After Mr. Cote agreed to apply for the permit, he told Mr. Mais not to work on the project until the permit was issued. According to Mr. Cote, Mr. Mais returned to work the day after the permit was issued and, the "next day," the job failed inspection because the nail spacing was not consistent with the new code. Mr. Mais re-nailed the roof according to code, but it failed re-inspection because the flashing was not painted. This was done, and the job passed a second re-inspection. Mr. Cote looked in on the job a couple of times after this and saw that nothing was being done. He contacted Mr. Mais and asked why he was not working on the project, and Mr. Mais told him that he was waiting for Ms. Braun to give him some money so he could buy the tiles. When Ms. Braun called Mr. Cote and complained that no tile had been delivered, he went to Mr. Mais's home and insisted that he "get some tile on that roof." The next day, Mr. Mais brought a load of tiles and piled them on the roof.3 Ms. Braun paid Noel Mais the $3,000.00 down-payment specified in the contract by a check dated January 12, 1995, the day the contract was executed. Then, notwithstanding the payment schedule stated in the contract, Ms. Braun paid Mr. Mais $3,000.00 by check dated January 25, 1995. She paid Mr. Mais the remaining $1,000.00 due under the contract by checks dated March 28 and 31, 1995, and April 13, 1995. After receiving full payment, Mr. Mais abandoned the job, and, when Ms. Braun told Mr. Cote she had paid Noel Mais in full for the job, Mr. Cote refused to finish the work because he had not received any portion of the payment. In November, 1995, Ms. Braun contracted with R. J. Chambers Roofing, Inc., to complete the work on her roof for $4,500.00. The work was completed, and she paid Mr. Chambers the contract price. The evidence presented by the Department is sufficient to establish that Mr. Cote knew that Mr. Mais was not registered with the State of Florida as a roofing contractor and that Mr. Cote stated on the permit application that his company, JLC Enterprises, Inc., was the contractor for the Braun re-roofing job even though he was not a party to the contract.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board issue a Final Order finding that Jacques Cote violated section 489.129(1)(e) and (n), Florida Statutes; imposing an administrative fine in the total amount of $1,000.00, consisting of a $500.00 fine for each of the two violations; assessing the costs of investigating and prosecuting the violations; and requiring Mr. Cote to make restitution to Judith Braun in the amount of $1,000.00. DONE AND ENTERED this 6th day of May, 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1997.
The Issue The issue for determination in this proceeding is whether Petitioner should receive credit for any of the 15 challenged questions in two parts of the certified general contractors examination given in June, 1993.
Findings Of Fact Petitioner took the general contractors examination given on June 29- 30, 1993. The examination consisted of three parts. The minimum score required to pass each part was 70. Petitioner passed the Business and Finance part of the examination with a score of 70. Petitioner failed the other two parts of the examination. He received a score of 61 on the Contract Administration part of the examination and a score of 67 on the Project Management part of the examination. Petitioner challenged eight questions on the Contract Administration part of the examination and seven questions on the Project Management part of the examination. The part of the examination on which each question appeared, the question number, the correct answer, and the answer chosen by Petitioner are as follows: EXAM PART QUESTION CORRECT ANSWER PETITIONER'S ANSWER Contract Admin. 2 B C Contract Admin. 5 D A Contract Admin. 10 D C Contract Admin. 11 C D Contract Admin. 13 C B Contract Admin. 20 C D Contract Admin. 22 C D Contract Admin. 37 B D Project Mgmt. 7 C D Project Mgmt. 9 D C Project Mgmt. 10 C A Project Mgmt. 11 B C Project Mgmt. 13 B A Project Mgmt. 23 D A Project Mgmt. 37 A D For each of the foregoing questions, the correct answer was the answer identified by Respondent and not the answer chosen by Petitioner. Petitioner presented no competent and substantial evidence to support his answers. The challenged questions were clearly and unambiguously worded. The challenged questions contained enough correct information to allow the candidate to select the correct response. The correct response for each of the challenged questions was supported by approved reference materials. The correct response did not require knowledge which was beyond the scope of knowledge that reasonably could be expected from a candidate for licensure. All current techniques were taken in account when the correct response was determined by Respondent. The examination was open book. Petitioner was allowed to refer to the Standard Building Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order and therein DENY Petitioner's challenge to the questions at issue in this proceeding. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 27th day of April, 1994. DANIEL MANRY 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 27th day of April, 1994. COPIES FURNISHED: Richard Hickok Executive Director Department of Business and Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, FL 32399-0792 Jack McRay, Esquire General Counsel Department of Business and Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, FL 32399-0792 Vytas J. Urba, Esquire William M. Woodyard, Esquire Department of Business and Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, FL 32399-0792 Mr. Behzad Khazraee 142 Tollgate Trail Longwood, FL 32750
The Issue This case arises on an amended administrative complaint filed by the Petitioner which seeks to have Respondent's contractor licenses disciplined for alleged violations of Chapter 489, Florida Statutes, incident to the construction of a residence near Melrose, Florida. The case originally was scheduled to be heard on July 10, 1987, but after the hearing was convened, Respondent's counsel sought a continuance based on Respondent's health problems which were supported by a doctor's statement. The motion was granted and the hearing was continued until August 25, 1987. At the hearing, Petitioner presented the testimony of Evans Starke, Marion Uhl, and Robert H. Adams. Petitioner submitted eight exhibits in evidence, including the depositions of Respondent and Matthew M. Gordon. Respondent testified in his own behalf and submitted three exhibits in evidence. However, Respondent's exhibit three, which was a house plan, was retained by Respondent and a copy thereof was to be filed within 10 days after the hearing. Additionally, Respondent was provided a period of 10 days after the hearing to submit a deposition of James A. Taylor However, the deposition was not filed within the required period nor was Respondent's exhibit three. Respondent's post-hearing motion to extend the time for filing the deposition was denied. The parties were provided a period of ten days from the filing of the hearing transcript in which to file proposed recommended orders. Neither party made a timely submission. However, Respondent's post-hearing motion to extend the time period was granted. The proposed Findings of Facts submitted by both parties were considered and substantially incorporated herein.
Findings Of Fact Respondent Joseph Rentz is licensed as a registered building contractor, roofing contractor, and mechanical contractor, and was so licensed at all times pertinent to this proceeding. In addition, he is the qualifying contractor for Alachua Association Builders. (Petitioner's exhibits 2-3) In March 1985, Evans Starke of Miami, Florida entered into an oral agreement with Respondent for the construction of a residence near Melrose, Florida. Respondent agreed to build the house on a cost-plus basis and estimated that the cost would be approximately $27.00 per square foot or less. Respondent told Starke that he would be satisfied with 10 percent of the cost of construction for his fee. The arrangement was that Starke would Periodically provide money to his aunt, Lenora Peterson, and that Respondent could make draws from that source as required to progress with construction. Starke also asked Respondent to open a checking account from which he would pay the bills for materials and labor. (Testimony of Starke) The original construction plans provided to the Respondent by Starke were for a house of approximately 4,000 square feet, but since Starke wished to expand the size of the house considerably, he informed Respondent of the various modifications which resulted in Respondent obtaining revised plans from a draftsman for a house of approximately 10,000 square feet. (Testimony of Starke, Respondent) Respondent obtained a building permit in his name and commenced construction. As work progressed, Respondent would inform Lenora Peterson of the need for progress payments for materials and labor on a weekly basis. She would then provide the necessary money in cash to Respondent and obtain a signed receipt from him. During the period March through September, 1985, Respondent signed receipts amounting to $121,360. Respondent had several checking accounts in the name of "J. & L. Properties", into which some of the draws were deposited and checks drawn thereupon to pay materialmen, subcontractors, and workmen. In other instances, Respondent paid cash to workmen, but obtained no receipts therefor. Starke visited the project site usually on a biweekly basis during the initial months of construction. On several occasions, he met Respondent midway between Gainesville and Miami to deliver cash for construction costs. Some of this money given to Respondent was not evidenced by a receipt of Respondent. Starke testified that on one occasion, he gave Respondent $3,000 to pay for the installation of a well, but Respondent had only given the well-digger $1,000, and Starke later found that he still owed the balance, plus a 25 percent rise in cost. Starke also claimed that he spent $1,000 to put a drain under the driveway to the basement because Respondent had forgotten to do so. He further stated that he had given Respondent $5,000 to purchase shingles for the house, but Respondent bought only enough to cover the garage. Consequently, Starke was obliged to expend further sums to obtain the remaining shingles. (Testimony of Starke, Respondent, exhibits to deposition of Rentz (Petitioner's Exhibit 2), (Petitioner's composite Exhibit 6) During Starke's periodic visits to the job site, he requested that Respondent show him the bills and receipts for the purchase of construction material and labor payments, but Respondent evaded such request by saying that his wife was handling the business matters, and that she was ill and unable to show him the records. Eventually, Starke became more concerned because of the discrepancies in the expenditures of funds, and therefore made a special trip in October 1985 to meet with Respondent and go over the project accounts. At that meeting, Respondent's wife provided Starke with a number of canceled checks on the J. & L. Properties account, which failed to identify any specific payments for the Starke project, but which consisted mostly of apparent payments of Respondent's personal bills. (Testimony of Starke, Respondent, Petitioner's Exhibits 2,6) Subsequent to the October meeting, Respondent asked Starke for the sum of $1,500 for his own services, which was paid. This was the last payment made by Starke to Respondent and the last contact that he had with him. Respondent performed no further work and left the project about the third week of November 1985. Although Starke attempted to get in touch with him during the intervening period, he was unsuccessful in doing so. (Testimony of Starke, Respondent, Petitioner's Exhibit 2) On January 31, 1986, Starke obtained a new building permit to complete his residence, and hired Marion C. Uhl, a certified residential contractor, at an hourly rate to supervise the remaining work. Uhl found at that time that the house consisted of a shell with some interior partitions erected and doors in place, but without any electrical or plumbing work, except for a garage bathroom. It took him approximately ninety days to correct previous construction errors before it was ready for subcontractor work. Specifically, he found that the partition walls were out of plumb and that some of the doors were not framed properly. It was necessary for him to tear them out and redo the work. He found no backing (dead wood) for the ceilings and walls which should have been in place before the roof was sheathed. He had to take out all the windows which were out of plumb and reinstall them. It was necessary to frame out the gables of the house in order that water wouldn't accumulate in vacant areas. Water had accumulated in the garage basement due to a failure to install proper drain fields under the house. Additionally, it was discovered that there was no concrete in the tie beams which supported the floor above and could cause it to sag eventually. In Uhl's opinion, which is accepted, these problems would not have occurred if the job had been properly supervised. (Testimony of Starke, Uhl) Robert H. Adams, an expert in the residential contracting field, who owns a building inspection firm, inspected the Starke premises on May 18, 1987 at the request of Petitioner. Based upon his examination of the house, he found the following deficiencies, which had existed at the time Respondent left the project: In some areas, the brick veneer exterior walls were not properly supported on the footing in that the brick veneer protruded beyond the outside edge of the footing. Also the footing was at grade rather than being below grade. Failure to utilize solid concrete walls or pouring of concrete into concrete blocks which formed walls supporting a steel I-beam. This deviation from the plans could result in failure of the foundation walls. Improper splicing of girders under the house. Girders were butt-spliced rather than spliced with either a shep or a diagonal cut. The joints were not over a supporting pier. Settling from the floor above could cause the house floor to sag. The exterior brick roll-out window sills were level instead of being at a slight angle to permit water to flow away from the bottom of windows, thus causing the potential of water intrusion into the house. Front entry brick steps were not centered with the door opening by approximately 18 inches. An exterior garden hose bib Produced hot water instead of cold at left front of the garage. This was caused by "mis- plumbing" the cold and hot water lines. Block wall of the garage was out of plumb approximately 7/8 of an inch over a 4 foot vertical distance. One of the garage roll doors had only 9 foot, 3 inch clearance instead of 10 feet as called for by the plans. Uneven coursing of brick veneer at the ceiling of the right rear porch. Waferboard was used on roof decking rather than plywood as called for by the plans. Waferboard is not as strong as plywood. Water intrusion into the garage- basement. In Adams' opinion, which is accepted, the deficiencies noted by his inspection reflected very poor workmanship and gross negligence, in that the fundamentals of construction as practiced in the construction trade were not observed by Respondent in major areas. They were gross deviations from good building practices and a competent contractor properly supervising the job would have been aware of the deviations from good contracting practice. In addition, it is incumbent upon a contractor to keep accurate and complete financial records for a particular project. (Testimony of Adams, Petitioner's Exhibit 7) In January 1986, Starke employed Universal Engineering Testing Company, a structural engineering firm, to ascertain the cause of groundwater leaking into the garage-basement of his house and to provide remedial recommendations. Professional engineers of the firm inspected the premises and observed that groundwater was leaking at the wall-floor joint around most of the garage. They found that although a drainage system had been installed during construction, soil and groundwater conditions at the site limited the effectiveness of the existing system, due to hydrostatic pressure build up under the garage floor. It was determined that, unless the pressure was dissipated with under-slab drainage, the slab would heave, crack, and leak at the wall-slab joint They found that the situation could only be remedied by installing an under drain grid after removal of the existing slab. In their professional opinion, which is accepted, the failure of the existing slab had been caused by excessive water pressure build up and improper construction techniques. (Testimony of Gordon, Petitioner's Exhibit 1) At the hearing, Respondent admitted that he had never constructed a house of the scope and size of the Starke residence, but that he had attempted to build what Starke desired in accordance with the plans and numerous changes required by Starke during the course of construction. Such changes, in his view, caused the difficulty in centering the brick work at the front of the house since this work was called for after the front door had already been installed. He claimed that he had waterproofed the garage-basement and put in French drains, but that water couldn't go out, and it was necessary to install a tank under the driveway to pump the water from the basement. Respondent also conceded that he did not maintain continuing records during the course of construction as to the financial aspects of the project, but intended to recapitulate all costs and payments when construction was completed. He acknowledged that receipts from the project were commingled with other funds in his bank accounts and he was unable to show the disposition of proceeds from the project. As to leaving the job, Respondent said that he left because he was threatened by Starke and also because of ill health caused by the stressful situation which came from continuing complaints by Starke concerning the workmanship, and also by the numerous changes to the construction plans. Although Respondent claimed that he notified Starke by letter of January 14, 1986, that he intended to remove his permit no later than January 27, 1986, because it appeared that Starke had decided to take charge of completing the construction, Starke denied receiving such a letter and there is no credible evidence that it was delivered. (Testimony of Respondent, Petitioner's Exhibit 2, Respondent's Exhibit 1) On two prior occasions in 1985 and 1986, Respondent was disciplined by the Construction Industry Licensing Board pursuant to settlement stipulations of administrative complaints filed by Petitioner against Respondent. In those stipulations, Respondent admitted violations of Chapter 489, Florida Statutes, as alleged in the complaints, and administrative fines of $250 and $400 were imposed. (Petitioner's Exhibits 4-5)
Findings Of Fact Respondent holds certified residential contractor's license number CR C018843, which was issued to him in February, 1981. He was not licensed before that time. In 1979 and 1980, prior to his licensure, Respondent operated as a building contractor in one or more businesses known as Associated Building Contractors, Associated Building Contractors of Altamonte Springs, Inc., and Associated Building Contractors Sales, Inc. Neither Respondent nor any other individual was registered as a qualifying agent with Petitioner on behalf of any of these companies. However, a licensed general contractor, Robert Evans, was affiliated with Respondent from approximately February to October, 1979, and believed he qualified Associated Building Contractors during that period. Respondent's contracting activities in 1979 and 1980 included the contracting for and construction of a residential house in Seminole County for Robert K. and Debra A. Good. This home is located on Lot 273 in the Barclay Woods Subdivision. Respondent signed the contract with the Goods on November 27, 1979, as seller. On May 20, 1980, Respondent signed an affidavit as president of Associated Building Contractors of Altamonte Springs, Inc., certifying there were no unpaid bills or security interests in the Good property. Respondent signed this affidavit in order to obtain disbursement of funds from the lender. Respondent's affidavit was false, there being outstanding unpaid bills to subcontractors and materialmen as of May 20, 1980. These debts included over $2,000 due on the Good project to a carpet business owned by John Polk (Carpet Service Unlimited and its successor, Design Flooring, Inc.). This debt has never been paid and is currently an unsatisfied judgment against Respondent or his company. The law suit was instituted by Polk's complaint filed in the Seminole County Court, apparently on September 22, 1980. See Petitioner's Exhibit 16. Respondent, or his company, also owed Overhead Door Company of Orlando, Inc., $612 for services on the Good house as of Nay 20, 1980. The Overhead Door bill was settled in October, 1980. Additionally, Respondent, or his company, owed Schilke Enterprises, Inc., a window and door business, $1,558 which was billed to the Good project and was the subject of a law suit filed December 2, 1981. Respondent, or his company, owed Castle Custom Cabinets $1,777 for work on the Good house as of April, 1980. This bill was finally settled in June, 1981. Respondent applied for a contractor's license in December, 1980. Petitioner's application form included the question: Are there now any unpaid past-due bills or claims for labor, materials, or services, as a result of the construction operations of [the applicant] or any organization in which any such person was a member of the personnel? Respondent answered "No" to this question, when in fact he and/or his organizations owed several past due bills relating to the construction operations discussed above. The application form contained a similar question regarding liens, judgments or pending law suits, to which Respondent also answered "No." However, with the possible exception of the Polk suit, the evidence did not establish that any pending law suits, liens or judgments were in effect at the time Respondent answered this question. A further question on Petitioner's license application form asked: Has [the applicant] ever been convicted of any offense . . . other than traffic violations? Respondent answered "No" to this question. There was no evidence that this answer was improper, although on January 5, 1979, Respondent was placed on five years probation, adjudication of guilt withheld, by the Circuit Court of Orange County. The charge was second degree grand theft, a felony, to which Respondent had entered a plea of nolo contendere.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order finding Respondent guilty of violating Subsection 489.129(1)(a), Florida Statutes (1979) , and revoke his license as a certified residential contractor. DONE and ENTERED this 15th day of April, 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer 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 15th day of April, 1983. COPIES FURNISHED: John O. Williams, Esquire 547 North Monroe Street, Suite 204 Tallahassee, Florida 32301 Kenneth M. Meer, Esquire Post Office Drawer 30 Winter Park, Florida 32790 James Linnan, Executive Director Florida Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
