Findings Of Fact Harry L. Wilson is the holder of a registered roofing contractor's license from the Florida Construction Industry Licensing Board. The license, Number RC 0041328, was first issued in March of 1982. The license was issued in the name of Harry L. Wilson Roofing, 1943 Hardy Street, Jacksonville, Florida, with the Respondent as qualifier. The Respondent has been the qualifier of Harry L. Wilson Roofing at all times relevant to this proceeding. On December 6, 1984, the Respondent and Robbie L. Hicks, entered into a written contract (Petitioner'S Exhibit 2). Pursuant to this written contract (hereinafter referred to as the "Contract"), the Respondent agreed to perform the repair work specified in the Contract in a "professional manner" and Ms. Hicks agreed to pay the Respondent $2,395.00. The property to be repaired is rental property owned by Ms. Hicks. The property is located at 1508 Eaverson Street, Jacksonville, Florida. The Respondent commenced work sometime during the early part of 1983. Shortly after commencing work, however, the Respondent and Ms. Hicks began having disagreements as to the work to be performed and the quality of the Respondent's work. These disagreements continued after the Respondent completed the work in November of 1983. Ms. Hicks testified that the work that the Respondent completed was done in an unprofessional manner and that the Respondent had not completed all of the work that he had agreed to perform. In particular, Ms. Hicks testified that the Respondent had failed to paint the interior of the house beige as required by the Contract, had failed to remove saw dust and other debris from the house following completion of the work, had failed to finish cabinets installed in the house, had failed to repair screens and generally had not performed in the manner he had agreed to perform. Ms. Hicks paid the Respondent all but $410.00 of the contract price. The Respondent testified that all off the work called for pursuant to the Contract had been performed. According to the Respondent, he had performed some work not required by the Contract and had not performed other work requested by Ms. Hicks because the work was beyond the scope of the Contract. The Respondent also stated that the work which Ms. Hicks expected would have cost considerably more than the price agreed upon in the Contract. The Respondent did not perform all of the work specified in the Contract in a "professional manner" as required by the Contract. Based upon the testimony of Mr. Claude Bagwell, Deputy Chief, Building and Zoning, Inspection Division of the City of Jacksonville, it is clear that no permit was issued by the City of Jacksonville to perform the work required by the Contract. The only permits issued with regard to Ms. Hicks' rental property was a permit issued in 1961 and the original building permit issued in 1949. Additionally, due to the fact that no Florida registered roofing contractor's license in the name of "Harry L. Wilson Roofing" had been filed with the City of Jacksonville, no permit could be issued to Harry L. Wilson Roofing with regard to the Contract. The Respondent admitted that he had not obtained a permit to perform the work required by the Contract. The Respondent indicated that he had not obtained a permit because he was not aware that one was required in order to perform the work. He did indicate that he had obtained permits to perform other jobs. The Respondent could not, however, have obtained permits for other jobs because no license issued in the name of Harry L. Wilson Roofing had been filed with the City of Jacksonville. The Respondent did take the examination required in order to obtain a registered roofing contractor's license. The Petitioner suggested in its Proposed Findings that the "permit requirement was explained" when the Respondent took the exam. No evidence to support such a finding was presented at the hearing. The Respondent in entering into the Contract clearly used the name "Wilson Recycling". Nowhere on the Contract is the name "Harry L. Wilson Roofing" used. The Respondent ultimately admitted that no Florida license authorizing the use of the name "Wilson Recycling" had been obtained by him. The Respondent, however, when initially asked whether a Florida license in the name of "Wilson Recycling" had been obtained indicated that such a license had been issued. On further examination, however, the Respondent testified that an occupational license in the name of "Wilson Recycling' had been obtained by him and not a Florida license. The work to be performed pursuant to the Contract was beyond the scope off the Respondent's license. As pointed out by Mr. Bagwell the work to be performed pursuant to the Contract would require licensure as a registered residential contractor or more.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That count I of the Administrative Complaint filed against the Respondent be dismissed. It is further RECOMMENDED: That Respondent be found guilty of violating Section 489.129 (1)(g), Florida Statutes (1983), by contracting in a name other than the name as set forth on the Respondent's license. It is further RECOMMENDED: That Respondent be found guilty of violating Section 489.129(1)(j), Florida Statutes (1983), by failing in a material respect to comply with the provisions of Section 489.119(2) and(3), Florida Statutes (1983), in that the Respondent failed to qualify the business name "Wilson Recycling" with the Construction Industry Licensing Board. It is further RECOMMENDED: That Respondent be found guilty of violating Section 489.129(1)(j), Florida Statutes (1983), when he failed in a material respect to comply with the provisions of Section 489.117(2), Florida Statutes (1983), by contracting to perform and actually performing work beyond the scope of his Florida contracting license. It is further RECOMMENDED: That Petitioner suspend Respondent's roofing contractor's license for a period of three (3) months. DONE and ENTERED this17th day of December, 1984, in Tallahassee, Florida. LARRY J. SARTIN 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 17th day of December, 1984. COPIES FURNISHED: H. Reynolds Sampson, Esquire Staff Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harry L. Wilson 1943 Hardee Street Jacksonville, Florida 32209 Mr. Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact On February 27, 1974, Pelle J. Lindquist contracted with Patrick G. Yeager to build a house on Concord Road in Ormond Beach, Florida. This contract was admitted in evidence as petitioner's Exhibit No. 1. The contract called for work to begin on March 1, 1974, and to be completed within 90 days. Work did not begin on March 1, 1974, but did begin in the latter half of March, 1974. Frequent rain in March, 1974, caused the roof to warp, so that it had to be replaced. After considerable delay in undertaking the repair, actually replacing the roof took only about a week. Replacing the roof added significantly to respondent's costs in performing under the contract. Eleven months after construction began, Mr. Yeager moved in. Because the kitchen and both bathrooms lacked wallpaper, and because the gravel yard was partly unfinished, respondent Lindquist paid Mr. Yeager $300.00, in exchange for which Mr. Yeager released Mr. Lindquist from all liability in connection with the house. The release was admitted in evidence as respondent's Exhibit No. 1. In the course of construction, Haven Vaughn, a sub- contracting carpenter, filed a notice of intent to lien on behalf of himself and his partner, Cal Fisher. As long as Mr. Lindquist was allowed draws on the construction loan, Messrs. Vaughn and Fisher were paid regularly. For reasons which were not developed in the evidence, the lender withheld part of the loan proceeds from respondent. When the draws stopped, the carpenters were not paid, and they stopped work on the Yeager house. The lender ultimately paid the carpenters in full. At the time Mr. Yeager contracted with Mr. Lindquist for the house, Mr. Lindquist entered into a separate agreement with Mr. Cameron, a real estate broker who introduced Mr. Lindquist to Mr. Yeager. Under the latter agreement, Mr. Lindquist was to pay Cameron Realty Company a brokerage fee upon "obtaining last draw from lending firm." The brokerage fee has not been paid and is currently the subject of civil litigation. On February 15, 1974, Mr. and Mrs. Horace N. Smith, Jr., contracted with respondent for the construction of a house on another lot on Concord Road in Ormond Beach, Florida. This contract was admitted in evidence as petitioner's Exhibit No. 2. The contract called for completion of the Smith house on or about June 15, 1974. After the contract was signed, the Smiths returned to New Jersey, entrusting oversight of the project to Mr. Cameron, a real estate broker who introduced Mr. Lindquist to the Smiths. As construction progressed, Mr. Cameron kept Mrs. Smith advised, and she mailed installment payments on the strength of Mr. Cameron's representations. In this fashion, Mr. Lindquist was paid 75 percent of the total contract price of $27,600.00. For reasons which were not developed in the evidence, the Smiths stopped payments under the contract, presumably at Mr. Cameron's suggestion. When the payments stopped, work on the house also stopped, and, during the ensuing hiatus in construction, vandals broke a glass door, scrawled obscenities on the walls, scraped the walls, damaged the outside doors, and ruined the wooden trim. Work had fallen far behind schedule when, in April of 1975, a lawyer retained by Mr. and Mrs. Smith wrote Mr. Lindquist to the effect that the Smiths would take over the project unless it was finished within a week. When the week had passed, the Smiths began dealing directly with the sub-contractors, the house was eventually completed at a total cost to the Smiths of $29,100.00, or $1,500.00 more than the Smiths had agreed to pay Mr. Lindquist for the job. As completed, the house lacked an electric garage door opener and a sprinkler system which Mrs. Smith guessed would cost $1,000.00, but no competent evidence as to the cost or value of either the door opener or the sprinkler system was adduced. Vandalism added significantly to the cost of the Smith house. Mr. Lindquist replaced a glass door broken by vandals. On account of the vandalism, the Smiths paid the carpenters an additional $300.00 for their labor. The front doors, the trim, and all bays had to be replaced; the cost of replacement materials was not established. At the time Mr. and Mrs. Smith contracted with Mr. Lindquist for the house, Mr. Lindquist entered into a separate agreement with Mr. Cameron. Under the latter agreement, Mr. Lindquist was to pay Cameron Realty Company a brokerage fee. The brokerage fee has not been paid and is currently the subject of civil litigation. Certified general contractors' licenses are renewable annually in June, pursuant to Section 468.108, Florida Statutes (1975). Mr. Lindquist had such a license for 1974-75. In June of 1975, he desired to renew his license, but in a fashion which would authorize him to contract on behalf of a corporation, rather than as an individual. He telephoned the Jacksonville office of the Florida Construction Industry Licensing Board and explained his situation. That office mailed him forms which he filled out and mailed back in June of 1975. In March of 1976, some nine months later, the completed forms were mailed back to respondent, but no license was issued. On March 22, 1976, Mr. Clyde Pirtle, an investigator employed in the Jacksonville office of the Florida construction Industry Licensing Board, filled out and mailed to respondent a Notice of Violation," notifying respondent that he had failed to renew his certificate during June of 1975. The same "Notice of Violation" advised respondent of his putative failure to notify the Florida Construction Industry Licensing Board of his new address, although his application papers for the 1975-76 license had been returned to the new address. On the Monday after the Friday on which respondent received the "Notice of Violation," he telephoned Mr. Pirtle's office and was told that Mr. Pirtle would contact him. On or about June 3, 1976, Mr. Pirtle did contact respondent and meet with him. At this meeting, respondent showed Mr. Pirtle the papers he had mailed to the Board in June of 1975, and which were returned to him unprocessed in March of 1976. Mr. Pirtle told respondent that the papers had been returned because the application forms were for a registered, and not for a certified, contractor's license, and furnished respondent another set of forms. Respondent filled out the new set of forms and mailed them to the Board in June of 1976. A month and a half before the hearing in this cause, respondent received 1976-1977 certified general contractor's license No. CGC007702, which is currently in force. No contractor's license for 1975-76 was ever issued to respondent. On May 3, 1976, respondent applied for and was issued a building permit to erect a new residence at 1623 Anniston Avenue in the City of Holly Hill. At that time, respondent had no current contractor's license and presented to the authorities a license which had expired.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED that disciplinary action against Respondent, if any, be limited to a reprimand. DONE and ENTERED this 6th day of April, 1977, in Tallahassee, Florida. ROBERT T. BENTON Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Mr. Barry Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 Mr. Thomas L. West, Esquire Post Office Box 1857 1030 Volusia Avenue Daytona Beach, Florida 32015 J. K. Linnan, Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211
The Issue The issues presented in this case concern certain allegations made by the Petitioner against the Respondent through an Administrative Complaint. In particular, it is alleged that on or about April 23, 1980, the Respondent's contractor's license issued by the Petitioner was suspended and subsequent to that time, the Respondent continued to perform contracting services through a company, David H. Hamilton, Inc., a corporation which was not properly qualified by the Petitioner to provide contracting services. It is further alleged by the Petitioner that the Respondent obtained building permits Nos. S2740-80B 1/ and 3214-80B from the Osceola County Building Department with the use of another contractor's license, namely: Louie S. Winchester, license #RR003839. For the reason of these facts, the Petitioner alleges that the Respondent has violated Subsection 489.127(1)(e), Florida Statutes, in that he attempted to use a suspended registration. It is further alleged, based upon the facts as reported in this Issues statement, that the Respondent has violated Subsection 489.129(1)(g), Florida Statutes, by acting in a capacity as a contractor under a certificate of registration not in his name. Finally, it is alleged, based upon the facts as reported hereinabove, that the Respondent has violated Subsection 489.129(1)(j), Florida Statutes, by failing to comply with Subsection 489.119(2), Florida Statutes, by not properly qualifying a corporation under which he performed contracting services.
Findings Of Fact The case presented concerns license disciplinary action by the Petitioner, State of Florida, Department of Professional Regulation, Florida Construction Industry Licensing Board, against the Respondent, David H. Hamilton, who holds a residential contractor's license issued by the Petitioner, #RR0014037. The prosecution of this action is through the offices of the Department of Professional Regulation and the outcome of the matter could lead to the revocation, suspension or other disciplinary action against the Respondent, in keeping with the provisions of Chapter 489, Florida Statutes. This case was presented before the Division of Administrative Hearings following a decision on the part of the Respondent to request a formal hearing pursuant to Subsection 120.57(1), Florida Statutes. The facts reveal that a Final Order of the Florida Construction Industry Licensing Board was issued on April 23, 1980, and this order established disciplinary action against the current license of David H. Hamilton. (A copy of this Final Order may be found as a part of the record in this proceeding and official recognition of that Final Order is made by the Recommended Order process.) This Final Order was entered after review of a Recommended Order of a Division of Administrative Hearings' Hearing Officer. By the terms of the Final Order, Hamilton's license was suspended "until such time as his Lake County Certificate of Competency is reinstated by the Lake County Board of Examiners." This contingency referred to the fact that the Respondent had his Lake County Certificate of Competency Card removed prior to the entry of the April 23, 1980, order of the Construction Industry Licensing Board. On September 2, 1980, at a time when the Respondent's residential contractor's license was under suspension by the State of Florida, the Respondent through a corporation applied to the Osceola County Building Department for a building permit to construct a residence in Osceola County, Florida. This permit number was #2740-80B. The permit was issued on September 4, 1980, and was granted in the name of David Hamilton, Inc., a corporation in which the Respondent was a principal. To obtain the permit in the sense of an effort to meet the requirements that the permit be applied for by a licensed Florida contractor, the Respondent used the registered residential contractor's license of one Louie Stevens Winchester who held license #RR003839 issued by the Florida Construction Industry Licensing Board. On the occasion of the issuance of the permit by Osceola County, Winchester was an officer of David Hamilton, Inc. Through the action of "pulling" this permit and the utilization of the permit in his construction of the residence, the Respondent was acting in the capacity of contractor under Winchester's license and the offices of the corporation, as opposed to the Respondent's suspended license. Prior to the request for permit, neither Hamilton nor Winchester had attempted to properly qualify David Hamilton, Inc., as a contracting corporation with the Florida Construction Industry Licensing Board. In this case, to properly qualify the corporation, it would have entailed the use of Winchester as the qualifying agent, in view of the fact that Winchester still held a valid contractor's license from the Florida Construction Industry Licensing Board. No effort was made to qualify David Hamilton, Inc., in its own right, through the agency of Winchester, until some time shortly beyond December 1, 1980. On October 28, 1980, the Respondent in his individual capacity, that is to say unconnected with his business pursuits as David Hamilton, Inc., went to the Osceola Building Department and applied for the issuance of a building permit for a home remodeling project for a customer of his. The permit in question on this occasion was #3214-80B. That permit was issued on October 29, 1930, and was used by the Respondent in his building project. An official in the Osceola County Building Department had checked with an employee in the Lake County Building Department on the status of Hamilton's rights to be employed as a building contractor in Lake County, Florida, and was informed that Hamilton's status in Lake County was acceptable. Based upon these representations, the Osceola County employee issued the permit discussed in this paragraph to Hamilton. The Osceola County employee also asked that the Lake County employee formally confirm Hamilton's status. The correspondence in response to Osceola County employee, John Pate, Assistant Building Director, as issued by an official in Lake County, one Herb Dudgeon, may be found as Petitioner's Exhibit No. 3. This letter was received by Pate after the permit was issued. That correspondence indicates that Hamilton had been given the privilege of reinstating his Lake County Competence Card, contingent upon "providing bond, insurances, occupational license, etc.," which had not been received by Lake County as of the date of the correspondence. The correspondence goes on to mention that the State, meaning the Florida Construction Industry Licensing Board, was waiting for confirmation of the completion of the contingencies referred to. Subsequent to this correspondence, the Respondent having completed all the necessary steps for reinstatement of the Lake County Competency Card, had his license suspension removed and was reinstated by the Florida Construction Industry Licensing Board, as verified by that body.
Recommendation Based upon a full consideration of the findings of fact and conclusions of law reached herein, it is RECOMMENDED: That the Florida Construction Industry Licensing Board issue a Final Order which absolves the Respondent of any responsibility for a violation of Subsection 489.127(1)(e), Florida Statutes (1980); that finds the Respondent in violation of Subsection 489.129(1)(g), Florida Statutes (1979), and imposes a penalty of a 60-day suspension; and that finds the Respondent in violation of Subsection 489.129(1)(j), Florida Statutes (1979), and imposes a suspension of 60 days to run concurrently with the other suspension in this paragraph of recommendation. 2/ DONE and ENTERED this 13th day of November, 1981, in Tallahassee, Florida. CHARLES C. ADAMS, 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 13th day of November, 1981.
Findings Of Fact Petitioner is the state agency charged with the responsibility to prosecute administrative complaints pursuant to Chapters 489, 455, and 120, Florida Statutes, and the rules promulgated pursuant thereto. At all times material to the Administrative Complaint, Respondent James J. Hastings was licensed as a certified general contractor in the State of Florida, holding license number CG C009847. At all times material hereto, Respondent was a qualifying agent for Hastings Construction Company, Inc. Respondent and Candace Reinertz are married. At all times material to the violations charged, she was operating under her maiden name for all purposes. At all times material hereto, Candace Reinertz was not licensed by the Florida Construction Industry Licensing Board, and the Respondent had knowledge thereof. Over several years, Ms. Reinertz regularly assisted Mr. Hastings in the operation of Hastings Construction Company, Inc., including day to day supervision of pool, small building, and house construction and pulling building permits for that corporation. She had been authorized in writing by Hastings to pull building permits for him on specific projects (not necessarily in a corporate name) at least since April 27, 1987. At all times material hereto, Castles `n' Pools, Inc., 205 Third Avenue, Melbourne Beach, Florida, was a firm that was not qualified with the Construction Industry Licensing Board, and Respondent had knowledge thereof. This corporation was intended to become a venture to be run jointly by husband and wife. Castles `n' Pools, Inc. had been qualified as a corporation with the Florida Secretary of State and had received an occupational license. The corporate officers/directors were Reinertz and Hastings. However, a Florida Construction Industry Licensing Board License was never applied for by Ms. Reinertz in her own name nor was one applied for by Mr. Hastings as a qualifier for Castles `n' Pools, Inc. On June 27, 1987, Castles `n' Pools, Inc., through Candace Reinertz, contracted with Zimmer Dominque for construction of a pool at Mr. Dominque's residence located at 866 Van Circle, N.E., Palm Bay, Florida, for $7,750. The contract promised completion of the pool by September 23, 1987, barring adverse weather and mishaps. It is Ms. Reinertz's testimony that she inadvertently filled in a Castles `n' Pools, Inc. blank contract when she intended to use a Hastings Construction Company blank contract. The blank forms are, indeed, very similar. Mr. Dominque's testimony is that he thought at all times that he was contracting with Castles `n' Pools, Inc., through Ms. Reinertz. Although he admits that at least by September 22, 1988, he considered Respondent in charge of the project and that he thereafter dealt directly with Respondent, Mr. Dominque's payment by checks made out to Castles `n' Pools and/or Candace Reinertz dated June 27, July 7, September 22, and September 24, 1987 (P-10) support a finding that all work to that point was progressing in the name of Castles `n' Pools. Also supportive of such a finding is that on July 6, 1987, Pyramid Equipment Service billed Castles `n' Pools for digging the hole for the pool (R-8) and on August 11, 1987, R & J Crane Service billed Castles `n' Pools for setting the pool in place (R-9). However, the issuance of the building permit to Hastings Construction Company, Inc. and the chronology of how the permit came to be issued (see infra.) suggest that Mr. Hastings did not know about the Castles `n' Pools connection until at least late September. Respondent's and Ms. Reinertz' testimony that Respondent did not find out that the wrong contract had been used until after construction was underway on the Dominque property is unrefuted and the exact date of his discovery was not demonstrated, but he admits he did not attempt to qualify Castles `n' Pools once he found out. On June 29, 1987, the Respondent authorized Candace Reinertz to pull a permit for the construction of a pool at Mr. Dominque's residence. The authorization, (P-12), does not specify either Castles `n' Pools nor Hastings Construction Company, Inc. as the construction corporation applicant. Ms. Reinertz's subsequent permit application was denied on July 2, 1987, by the Palm Bay Building Department, for failure to include a survey certified by a civil engineer or architect. The record does not reflect in what corporate name Ms. Reinertz made this initial application. She may not even have gotten as far as filling out a permit application before she was refused at the permit desk, but the line drawing prepared for that application (R-1) specifies that the line drawing was that of Hastings Construction Company, Inc. Mr. Hastings regularly did line drawings for Hastings Construction Company, Inc. projects on a particular machine in that corporation's offices. The certified survey requirement was a recent innovation of the Palm Bay Building Code. On July 6, 1987, Castles `n' Pools, Inc. delivered the prefabricated fiberglass pool, excavated the site and dropped the pool in the hole. No further efforts of permanent installation occurred at that time, due to failure to obtain a permit. A dispute then ensued between Hastings and Reinertz on one side and Mr. Dominque on the other over who must provide the survey and how. This dispute occasioned some delay in the project, but on July 26, 1987, Ms. Reinertz again applied, with a certified survey, to the Palm Bay Building Department for a permit for the construction of Mr. Dominque's pool, listing the builder as Hastings Construction Company, Inc. (P-5). On July 30, 1987, permit number 8702101 was issued by the Palm Bay Building Department for the construction of Mr. Dominque's pool by Hastings Construction Company, Inc. (P-6). Thereafter, work on the pool progressed sporadically until September 22, 1987, when the pool floated up out of the ground. The pool floated up out of the ground during a rainstorm and after Respondent had left Mr. Dominque with instructions to fill the pool to a certain level with water. There is sufficient evidence to demonstrate that Mr. Dominque failed to follow Respondent's directions with precision. Subsequent to September 22, 1987, the pool was reinserted in the excavation by crane and by October 2, 1987, the deck was installed. Two or three months later a crack appeared in the pool which has since been repaired, however, the drain and light still do not work properly, and Mr. Dominque had to pay an additional $50 for cleanup of the resulting debris. Some of the delay in completion of work on the pool can be attributed to the dispute about the survey, some to injury of a key employee, and some to heavy rains, but the testimony of Mr. Nasrallah, architect and expert contractor, is accepted that 30 to 45 days would be sufficient to install the entire pool except for the pool deck even in rainy weather. Also, Mr. Dominque's and Respondent's testimony is in agreement that Respondent (not Ms. Reinertz) was fired for a period of time and then rehired. The length of time and the dates that Respondent was off the job is unclear, but it was minimally from September 9 to September 22, 1987. Oversight of the work at all times was by the Respondent. Mr. Dominque has paid the total contract price of $7,750 and expressed himself that any amount he questioned has either "evened out" or been paid back by Respondent. Stan Alexander is a certified general contractor and former chairman of the Florida Construction Industry Licensing Board. In his expert opinion as a contractor, construction began when the hole was first dug on July 6, 1987 and the pool was placed in it even temporarily. Also in his expert opinion as a contractor, Mr. Alexander determined that the contractor responsible for the installation of this pool was guilty of gross negligence or incompetence due in part to the insufficiency of dewatering devices (including a hydrostatic device) and placement of the responsibility to fill the pool on the home owner. Mark Nasrallah is a registered Florida architect and a licensed general contractor. Also in his expert opinion as a contractor, construction began on the job when the pool was placed in the excavation. It is also Mr. Nasrallah's expert opinion that the contractor responsible for this job is guilty of gross negligence or incompetence. Although Mr. Alexander was unfamiliar with any local Palm Bay zoning or permitting provision which would allow "site clearing" prior to excavation/construction, and although Mr. Nasrallah considered it "questionable" whether the digging for the pool constituted "construction without a permit," Mr. Nasrallah's assessment that digging the hole and putting the pool in the hole even temporarily was in excess of mere site clearing and was work which clearly began construction is accepted. Section 103 of the Standard Building Code has been adopted by the City of Palm Bay. It provides as follows: A person, firm or corporation shall not erect, construct, enlarge, alter, repair, move, improve, remove, convert, or demolish any building or structure in the applicable jurisdiction, or cause the same to be done, without first obtaining a building permit for such building or structure from the Building Official. Respondent was disciplined by the Construction Industry Licensing Board in October, 1984, for violation of Sections 489.129(1)(c), (g), (j); 489.119(2), (3); and 455.227(1)(a) Florida Statutes.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Construction Industry Licensing Board enter a final order finding Respondent guilty of violations of Sections 489.129 (1)(d) and (m) Florida Statutes, issuing a letter of guidance with regard to the permitting violation, fining the Respondent $750.00 for gross negligence or incompetence, and dismissing the remaining two charges. DONE and RECOMMENDED this 23rd day of November, 1988, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 23rd day of November, 1988. APPENDIX TO RECOMMENDED ORDER DOAH Case No. 87-5172 The following constitute rulings pursuant to s. 120.59(2), Florida Statutes, upon the parties' respective Proposed Findings of fact (FOF). Petitioner PFOF: Accepted in FOF 1. Accepted in FOF 2. Accepted in FOF 3. Accepted in FOF 5. Accepted in FOF 7. Accepted in FOF 8. 7-8. Accepted and expanded to more accurately reflect the record in FOF 10 9. Accepted in FOF 11. 10-11. Accepted and expanded to more accurately reflect the record in FOF 12. Accepted and expanded to more accurately reflect the record in FOF 13. Accepted in FOF 14. 14-15. Accepted in part and rejected in part in FOF 15-17. The modifications are made to more accurately reflect the record as a whole, the specific expert opinion as given by Messrs. Alexander and Nasrallah (discussed in the Conclusions of Law) and to reflect that some hydrostatic devices were used, some removed, and at least one left in for a period of time. 16. Accepted in FOF 19. COPIES FURNISHED: Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 G. W. Harrell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 James J. Hastings 205 Third Avenue Melbourne Beach, Florida 32951 Lawrence A. Gonzalez, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce D. Lamb, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Respondent was licensed as a registered general contractor by the State of Florida, Construction Industry Licensing Board, having been issued license number RG 0014645. Respondent's address is 2533 Green Road, Tallahassee, Florida 32308. On or about October 30, 1985, Willie McFarland (McFarland) contracted with Virgil Fleming (Fleming) to perform certain improvements to Fleming's home located at 9008 Broken Lance, Tallahassee, Florida. The contract price was $24,600.00. There was no contract between Fleming and Respondent. Fleming paid McFarland $16,500.00 of the contract price. Most of this money was paid in advance of work being performed. MoFarland was not, at any time material to this proceeding, a licensed contractor in the State of Florida and both Fleming and Respondent knew that he was not a licensed contractor. McFarland was not authorized to pull a permit to complete the work and Fleming, upon finding this out, started to pull the permit as a homeowner but changed his mind. Respondent agreed to pull, and did pull, the permit for this job, after checking on McFarland and with the understanding that he would have to be involved with McFarland on the job. Without the permit, McFarland could not have continued with the job. Fleming did not pay any money to Respondent for pulling the permit or for anything else and there was no evidence that McFarland paid any money to Respondent for pulling the permit or anything else. McFarland partially completed the work contracted for with Fleming. The Respondent went to the job site on several occasions but was unable to make contact with McFarland. Respondent did make contact with McFarland on one (1) occasion after he had pulled the permit and obtained some promises from McFarland concerning the job but McFarland did not "live up" to those promises. There was credible testimony from Respondent that McFarland was not an employee of Respondent's business but that one of the conditions for pulling the permit required McFarland to be an employee of Respondent only on this job. Respondent had no knowledge of the financial arrangements between McFarland and Fleming until after the permit was pulled and McFarland had "skipped." The parties have been unable to locate McFarland.
The Issue Whether Rocco R. Sodomire (Respondent) violated Section 489.129(1)(c) and (r) and Section 455.227(l)(o), Florida Statutes, and if so, what disciplinary action should be taken against his license to practice contracting.
Findings Of Fact Respondent is, and has been at all times material hereto, a Certified Residential Contractor in the State of Florida, having been issued license number CR CO57213. At all times material hereto, Respondent was not licensed to do any swimming pool/spa contracting in the State of Florida. On or about November 1996, Respondent submitted a proposal to Vincent Neglio for the construction of a 28' x 14' in-ground swimming pool, a deck, and a screen enclosure at a cost of $15,000.00. Shortly thereafter, pursuant to the proposal, Respondent began construction of a swimming pool and deck at Mr. Neglio's residence. Prior to completion of the pool project, Mr. Neglio paid Respondent a total of $14,200.00. Although Respondent received $14,200.00 from Vincent Neglio, he never completed the pool project. Respondent presented the proposal for the pool project to Mr. Neglio; accepted money from Mr. Neglio as payment for work on the project; distributed funds to other contractors who worked on the pool project; and performed work on the pool project at Mr. Neglio's home. On August 4, 1997, the County Court of the Twentieth Judicial Circuit in and for Lee County, Florida, Small Claims Division (Case Nos. 97-2569SP-RRS and 97-2570-SP-RRS), entered a Record of Agreement between Respondent and Mr. Neglio whereby Respondent was to pay Mr. Neglio a total of $2,600.00 to settle the dispute involving the aforementioned pool project. On January 13, 1998, the County Court of the Twentieth Judicial Circuit in and for Lee County, Florida, Small Claims Division, in the above-referenced cases entered a Final Judgment by Default against Respondent in favor of Vincent Neglio in the amount of $2,600.00, the payment amount required in the Agreement, as a result of Respondent's failing to pay monies based on the Agreement referenced in paragraph 6. To date, Respondent has failed to make any payments to Vincent Neglio based on the Small Claims Court Record of Agreement, referenced in paragraph 6 or the Final Judgment by Default referenced in paragraph 7.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Construction Industry Licensing Board enter a final order that: (1) finds Respondent committed the offenses alleged in Counts I and II of the Administrative Complaint and imposes a $500.00 fine for these violations; (2) requires Respondent to pay restitution to Vincent Neglio in the amount of $2,600.00; and (3) requires Respondent to pay to Petitioner $858.97, the costs incurred by Petitioner in the investigation and prosecution of this proceeding. DONE AND ENTERED this 23rd day of November, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 November, 1999. COPIES FURNISHED: Paul F. Kirsch, Esquire Leonardo N. Ortiz, Qualified Representative Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Rocco R. Sodomire 3520 Southeast 2nd Avenue Cape Coral, Florida 33904 Rodney Hurst, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times material to this proceeding Respondent was a registered building contractor in the State of Florida having been issued license number RB 0009164. At no time material to this proceeding was Domingo Alonzo (a/k/a Domingo Alonzo) registered, certified or otherwise licensed by the Florida Construction Industry Licensing Board. Respondent and Alonzo signed and submitted a proposal to Myron M. Gold and Roberta Fox for remodeling and additions to their residence located at 1550 Zuleta Avenue, Coral Gables, Florida in accordance with plans prepared by Frese - Camner Associates on file with the City of Coral Gables, Florida, File No. 2897 for a contract price of $65,940.00 with draw schedules attached. On December 6, 1982, Myron M. Gold and Roberta Fox (Homeowners) accepted the Proposal (Contract). On December 6, 1982, the Homeowners paid Respondent and Alonzo jointly $3,297.00 in accordance with the contract whereby they were to receive 5 percent of the contract amount as a down payment upon signing. The draw schedule provided for a 10 percent retainage from each draw which was to be paid to Respondent and Alonzo upon completion and the issuance of a certificate of occupancy. On December 21, 1982 the Homeowners paid Respondent and Alonzo jointly $2,025.00 which represented a draw on Schedule I - Item 3 for $1,350.00, Schedule II - Item 2 for $360.00 and Item 5 for $315.00. On December 17, 1982 the Homeowners and Respondent filed the affidavit required by ordinance with the City of Coral Gables for the purpose of having a building permit issued covering the work under the contract. 9. On January 19, 1983 Respondent using his building contractors license applied for building permit to cover the work anticipated under the contract and on the same day was issued building permit, No. 28214. Under the contract the Homeowners were to pay for the building permit and the bond required by the city. On January 26, 1983 the Homeowners paid Respondent and Alonzo jointly $3,000.00 which along with a payment on January 27, 1983 of $500.00 and January 31, 1983 of $544.60 represented a draw on Schedule I - Item 2 for $405.00, Item 5 for $1,260.00, Item 6 for $1,547.10 and Item 13 for $832.50. All payments from December 6, 1982 through January 31, 1983 under the contract by the Homeowners totaled $9,366.50 and were paid jointly to Respondent and Alonzo. On February 4, 1983 Respondent and Alonzo entered into an agreement, prepared by Myron Gold in the law office of Gold and Fox, whereby the Homeowners were to pay the balance of the funds remaining under the contract to Alonzo individually. After this date all payments were made to Alonzo. It was the Homeowners understanding after the February 3, 1983 agreement that Respondent would still be responsible for the supervision of the construction although they never saw Respondent again until October 1983. Edward Borysiewicz testified that he dealt with Respondent during March 1983 when he made the floor slab inspection on March 3, 1983 and the columns inspection on March 14, 1983. The record is clear that shortly after the agreement on February 3, 1983 Respondent no longer came to the construction site and supervised the work of Alonzo. On February 8, 1983 the Homeowners paid Alonzo $3,060.00 which represented a draw on Schedule I - Item 1 for $810.00, Item 5 for $1,417.50 and Item 13 for $832.50. On February 28, 1983 the Homeowners paid Alonzo $3,155.40 which represented a draw on Schedule I - Item 4 for $1,705.50 and $729.90 for extras apparently not covered by the contract but whether the balance of check No. 1161 (Pet. Ex. 13) of $720.00 was for payment under the contract or for extras is not shown in Petitioner's Exhibit No. 15. On March 18, 1983 the Homeowners paid Alonzo $1,000 which represented a draw on Schedule I - Item 9 for $819.00. Again whether the balance of check No. 1206 (Petitioner's Exhibit No. 13) of $181.00 is for payment under the contract or for extras is not shown in Petitioner's Exhibit No. 15. On March 21, 1983, the Homeowners paid Alonzo $6,400.00 which represented a draw on Schedule I - Items 10, 11, 12, 14 and 15. On March 21, 1983 the Homeowners paid Alonzo $2,166.90 but Petitioner's Exhibit No. 15 does not list check No. 1210 as being a payment under the contract or for extras. On March 31, 1983 the Homeowners paid Alonzo $4,230.00 which represents a draw under Schedule I - Item 7 for $2,520.00 and a payment for extras not covered under the contract in the amount of $1,710.00. On April 21, 1983 the Homeowners paid Alonzo $5,207.40 which represented a draw Schedule I - Items 1, 5, 6, 9 and 14. On June 24, 1983 the Homeowners paid Alonzo $5,788.00 which represented a draw on Schedule I - Item 12 for $667.00, Item 14 for $3,024.00 and payment for extras not under contract for $2,097.00. After March 14, 1983 Respondent was not seen on the job site and there was no longer any apparent supervision of Alonzo by Respondent. After Respondent left the job site there was no licensed building contractor involved in the construction. After Respondent left the construction site the Homeowners soon realized that Alonzo did not know how to proceed with the work and experienced problems with the pace and manner in which the work was being accomplished. On July, 1983, Alonzo stopped working altogether. Although the Homeowners were aware of the problems that Alonzo was having with the construction and that Respondent was not on the job, the record does not reflect that they ever attempted to contact Respondent after the meeting on February 3, 1983. On August 1, 1983 the Homeowners notified Respondent and Alonzo that the contract had been terminated. The Homeowners paid Respondent and Alonzo $42,174.20 total under the contract (pages 1-5, Petitioner's Exhibit No. 15) and paid Alonzo $10,766.37 for extras (Pages 6- 10, Petitioner's Exhibit No. 15). On August 31, 1983 the Homeowners paid Edward Bryant, plastering contractor the sum of $3,100.00 for plastering performed by Edward Bryant. This was for work under the contract that had not been completed or work necessary to correct problems that were already completed. Roberta Fox testified that there were no extras on plaster, however, page 7, line 11 and page 9, line 21 of Petitioner's Exhibit 15 indicates that there was extra plastering. On August 29, 1983 and September 29, 1983 the Homeowners paid Southwest Plumbing Services, Inc. the total amount of $4,875.00 for work contemplated under the contract that had not been completed or needed correction. Homeowners had paid Alonzo $3,591.00 for plumbing under the contract. Both Alonzo and Southwest Plumbing, Inc. were paid for extra plumbing not covered by the contract in the amount of $567.00 and $391.50, respectively by the Homeowners. From September 13, 1983 through June 13, 1984 the Homeowners paid Charles Brueg, Jim Brueg, Charles Buffington and Dan, Inc. the total amount of $4,192.91 for electrical work contemplated under the contract that was not completed or required correction after Alonzo left the construction site. Page 6 lines 6 and 11 of Petitioner's Exhibit No. 15 indicate that there were extras not covered by the contract. The total amount for electricity contemplated by the contract was $3,649.00. Alonzo was paid $2,627.10 under the contract and $1,710.00 for extras. The Homeowners were required to obtain the services of an air conditioning contractor to complete the work contemplated under the contract after Alonzo left the job site and as a result were required to pay Cameron, Inc., the air conditioning contract the amount of $5,181.60 between August 16, 1983 and January 24, 1984. The total amount contemplated under the contract was $3,600.00 of which $1,134.00 had been paid to Alonzo. Debris was dumped in the swimming pool requiring the Homeowners to pay $7,000 to refurbish the swimming pool. This amount included the repair contemplated under the contract and the extra work caused by Alonzo. The contract contemplated $2,300.00 for repairs of which none had been paid to Respondent or Alonzo. The Homeowners paid $1,150.00 to a painting contractor to finish the painting contemplated under the contract. Alonzo had been paid $1,125.00 for painting. (Petitioner's Exhibit No. 15) The contract provided $2,500.00 for all painting required under the contract. Respondent failed to notify the building department that he was no longer responsible for the construction. After the Homeowners terminated the contract due to Respondent's and Alonzo's nonperformance, the Homeowners had to expend a substantial amount of extra money to complete the construction. The evidence is insufficient to determine an exact or approximate amount. Roberta Fox's testimony was conflicting with regard to her understanding as to whether or not the Respondent would continue to supervise the construction after the meeting in the Homeowners' law office on February 3, 1983 when Respondent and Alonzo entered into this agreement. Myron Gold testified that it was his understanding that Respondent would continue to supervise Alonzo after the agreement. However, the Homeowners action in this regard subsequent to February 3, 1983, in making no effort to bring the matter to a "head" and requiring Respondent to supervise the work or terminate the contract and in continuing to deal with Alonzo although Homeowners were aware shortly after February 3, 1983 that Alonzo could not perform without Respondent's supervision and that they knew Respondent was not on the job, tends to show that they were aware or should have been aware that Respondent was no longer involved in the day to day supervision of the construction. Alonzo installed a fireplace pursuant to the contract that the building department determined to be a fire hazard and recommended against its use. The Homeowners applied for and were granted a "owner/builder" permit on September 1, 1983 and requested cancellation of the building permit issued to Respondent which was cancelled on September 6, 1983. They have not received a certificate of occupancy because the building department has not performed the following inspection: electrical final; plumbing final; air conditioning final; roofing final and public works final. The building department would have issued a "stop-work order" had it been aware that Respondent was not supervising the construction and would have required the Homeowners to obtain another licensed building contractor or proceed as a owner/builder. The plans prepared by Frese-Camner Associates that were made a part of the contract by reference were not introduced into evidence with the contract and thus the record is insufficient to determine what was required to meet the specifications of the plans and thereby determine if the specifications had been met. There was a permit issued for the septic tank and drain field which work was started in December, 1982. The construction of the house itself was started in January 1983. The first inspection (foundation) on the house was made by the building department of January 21, 1983.
Recommendation Based on the findings of fact and conclusions of law recited herein, it is Recommended that the Board enter a final order finding Respondent guilty of violating Section 489.129(1)(h)(k)(m), Florida Statutes (1981) and for such violations it is Recommended that the Board assess the Respondent with an administrative fine of $500.00 and suspend the Respondent's contracting license for a period of three (3) years, provided, however, that if Respondent submits to the Board competent and substantial evidence of restitution to Myron Gold and Roberta Fox within one (1) year from the date of the final order herein, then the suspension shall be stayed and Respondent placed on probation for the balance of the suspension. Respectfully submitted and entered this 6th day of February, 1986, in Tallahassee, Florida. WILLIAM R. CAVE 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 6th day of February, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 84-2529 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. RULINGS ON PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3 but clarified. Adopted in Findings of Fact 4 and 5. Adopted in Finding of Fact 4. Adopted in Finding of Fact 6. Adopted in Finding of Fact 5. Adopted in Finding of Fact 9. Adopted in Finding of Fact 9. Adopted in Finding of Fact 9. Adopted in Finding of Fact 9. Adopted in Finding of Fact 10. Adopted in Finding of Fact 11. Adopted in Finding of Fact 12 except clarified as to the last date on construction site. Adopted in Finding of Fact 13. Adopted in Finding of Fact 14 but clarified. Adopted in Finding of Fact 15 but clarified. Adopted in Finding of Fact 16. Adopted in Finding of Fact 17 but clarified. Adopted in Finding of Fact 15 but clarified. Adopted in Finding of Fact 19. Adopted in Finding of Fact 20 but clarified. Adopted in Finding of Fact 21. Adopted in Finding of Fact 11. Adopted in Finding of Fact 21. Adopted in Finding of Fact 22. Adopted in Findings of Fact 22 and 23. Adopted in Finding of Fact24 but clarified to show correct amount paid under contract as indicated by Petitioner's Exhibit 15. Adopted in Finding of Fact 25 but clarified to show that extra plastering not under contract was required. Adopted in Finding of Fact 26. Adopted in Finding of Fact 26. Adopted in Finding of Fact 26. Adopted in Finding of Fact 27. Adopted in Finding of Fact 27. Adopted in Finding of Fact 27. Adopted in Finding of Fact 27. Adopted in Finding of Fact 27. Adopted in Finding of Fact 27. Adopted in Finding of Fact 28. Adopted in Finding of Fact 28. Adopted in Finding of Fact 28. Adopted in Finding of Fact 28. Adopted in Finding of Fact 29 but clarified. Adopted in Finding of Fact 30 but clarified. Rejected as immaterial. Rejected as not supported by competent substantial evidence. Rejected as not supported by substantial competent evidence. Adopted in Finding of Fact 31. Rejected as immaterial. Adopted in Finding of Fact 32 but clarified to show that the record does not support a figure that approximate $32,000.00. Rejected as not supported by substantial competent evidence even though the Homeowners' testimony supported this fact because the Homeowners' actions with regard to Respondent after February 3, 1983, was to the contrary. Adopted in Finding of Fact 33. Adopted in Finding of Fact 34. Adopted in Finding of Fact 34. Adopted in Finding of Fact 34. Adopted in Finding of Fact 35. Adopted in Finding of Fact 36. Adopted in Finding of Fact 36. RULINGS ON PROPOSED FINDINGS OF FACT SUBMITTED BY RESPONDENT: No Findings of Fact was submitted by the Respondent. COPIES FURNISHED: James Linnan, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 W. Douglas Beason Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. George J. Soler, Pro Se 3315 S.W. 96th Avenue Miami, Florida 33165
Findings Of Fact The Respondent is a certified general contractor holding license number CG C016888. The Petitioner is an agency of the State of Florida charged with enforcing the provisions of Chapter 489, Florida Statutes, regulating the licensure and practice status and standards of building contractors in the State of Florida and enforcing the disciplinary provisions of that chapter. On December 14, 1981, Respondent contracted with Mr. and Mrs. Frank J. Sullivan to build the Sullivans a home in Sarasota County, Florida. Those parties entered into a contract whereby the Respondent was to be paid the actual cost of construction including all labor and materials plus a commission in the amount of 8 percent of the actual cost of construction, provided however, that the total contract price would not exceed $49,000, including actual costs and commission. In January, 1982, Respondent commenced work constructing the home. The Respondent worked on the home for several months and then abruptly ceased and abandoned construction without explanation on May 14, 1982. At this time the house was approximately 70 percent complete. At the time the Respondent ceased work on the project he had already been paid $47,362.29 or approximately 97 percent of the total contract price agreed to by the parties. The Sullivans thereafter had to pay $10,633.53 to subcontractors and materialmen who had been hired by the Respondent to supply labor and/or materials to the house, at the Respondent's direction, prior to his ceasing construction and leaving the job. Additionally, the Nokomis Septic Tank Company, Inc., the subcontractor who installed the septic tank, was owed $1,180.07 by the Respondent for the installation of the septic tank, which amount was to have been paid out of the total $49,000 contract price. The Respondent failed to pay Nokomis Septic Tank Company, which then filed a mechanic's lien on the property. In order to remove this cloud on their title to the property and avoid foreclosure of the lien, the Sullivans were forced to pay the $1,180.07 amount of the lien. In addition to more than $10,000 paid to subcontractors who had already performed labor or supplied materials to the job before the Respondent left it, the Sullivans had to obtain a loan from their bank in order to finish the project. The contracted for items which the Respondent had left undone (approximately 30 percent of the construction) required them to expend $18,662.04 to complete the dwelling in a manner consistent with the contractual specifications. The items which remained to be constructed or installed are listed on Petitioner's Exhibit 7 in evidence. The remaining amount of contract price which the Respondent was due upon completion of the job would have been $1,737.71. With this in mind, as well as the fact that the Sullivans had to pay in excess of $10,000 to defray already outstanding bills to subcontractors for labor and materials already furnished and then had to obtain a loan in order to pay $18,662.04 in order to complete the house, and it being established without contradiction that the Respondent was unable to make his payroll at the point of leaving the job, the Respondent obviously used substantial amounts of the funds he received from the Sullivans for purposes other than furthering the construction project for which he contracted with the Sullivans. Concerning Count II, on December 22, 1981, Frederick Berbert doing business as Venice Enclosures of Venice, Florida, contracted with Mr. Emory K. Allstaedt of Grove City, Florida, Charlotte County, to build an addition to Mr. Allstaedt's mobile home. The contract specified a price of $4,952 for which Berbert was required to construct a 12-foot by 20-foot enclosure or porch. Mr. Allstaedt never did and never intended to contract with the Respondent, Mr. Martin, rather, his contract was only with Frederick Berbert. Mr. Berbert was a registered aluminum specialty contractor in Sarasota County. He was not registered or licensed to practice contracting in Charlotte County where Mr. Allstaedt lived and where the porch was to be constructed. On December 28, 1981, the Respondent obtained building permit number 72030 from the Charlotte County Building and Zoning Department to construct a "Florida room" for Mr. Allstaedt's mobile home, the same room to be constructed by Mr. Berbert. Under Charlotte County Ordinances in evidence as Petitioner's Exhibits 13 and 13A, only a properly licensed "A", "B" or "C" contractor or a registered aluminum contractor can perform this type of job. The Respondent was appropriately licensed for this type of work in Charlotte County, but Mr. Berbert was not and thus could not obtain the permit in his own right. The Respondent's only connection with this job was obtaining the permit in his own name as contractor of record and in performing some minor work in replacing some damaged sheets of paneling shortly after the construction of the room addition and after the performance of the contract by Berbert. Though the Respondent listed himself as contractor in order to be able to obtain a building permit for the job, he never qualified as the contractor of record nor "qualified" Mr. Berbert's firm with the Construction Industry Licensing Board. Both Mr. Berbert and the Respondent were aware that Mr. Berbert could not legally perform contracting in Charlotte County at the time the Respondent obtained the building permit on Berbert's behalf.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED: That the contractor's license of Jack A. Martin be suspended for a period of ten (10) years, provided however, that if he makes full restitution to the Sullivans of all monies they expended for labor, materials and permits to enable them to complete the work he had contracted to perform, within one year from a final order herein, that that suspension be reduced to three (3) years after which his license should be reinstated. DONE and ENTERED this 27th day of April, 1984, in Tallahassee, Florida. P. MICHAEL RUFF 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 30th day of April, 1984. COPIES FURNISHED: Charles P. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Jack A. Martin 305 Park Lane Drive Venice, Florida James Linnan, Executive Director Florida Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue in this case is whether Respondent committed the acts alleged in the Administrative Complaint and if so, what penalty is appropriate.
Findings Of Fact Based upon the testimony of the witnesses and the evidence presented and the entire record in this proceeding, the following material and relevant facts are found. At no time material hereto was Respondent, Donald Clark, licensed by the State of Florida Construction Industry Licensing Board to engage in construction contracting. At no time material hereto was Cancun Development Company ever qualified or certified by any State of Florida agency as a certified contractor. With knowledge of that he was not licensed by the State of Florida to solicit, engage in, nor contract for construction work, Respondent entered into an oral agreement with homeowner Ms. Eichar to build a second-story addition to her home, located in Indian Rocks Beach, Florida, for a contract price of $30,000.00. Respondent, who was paid by Ms. Eichar a total of $25,000.00, subcontracted with Mr. Erwin, a licensed electrical contractor, to do the electrical work at the Eichar's residence for $2,364.00. Respondent, after notice, failed to attend the formal final hearing regarding this matter. The investigative and prosecution costs to the Department of Business and Professional Regulation, excluding cost associated with attorney time, were $550.00.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered by the Department as follows: Finding Respondent, Donald Clark, guilty of having violated Subsection 489.127(1)(f), Florida Statutes, as alleged in the Administrative Complaint herein filed and imposing as a penalty an administrative fine in the amount of $5,000.00. Assess costs of investigation and prosecution, excluding costs associated with an attorney's time, in the amount of $550.70. DONE AND ENTERED this 23rd day of July, 2002, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 July, 2002. COPIES FURNISHED: Donald Clark 813 East Bloomingdale Avenue Suite 252 Brandon, Florida 32720 Brian A. Higgins, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: At all times material to these proceedings Respondent was licensed by the State of Florida as a registered residential contractor, having been issued license number RR 0033727. Respondent's license was first issued in February, 1974. In April, 1983, Respondent submitted a change of status application and requested to qualify Regency Builders, a proprietorship. License number RR 0033727 was then issued to William B. Pitts, qualifying Regency Builders. Regency Builders, Inc., has never been qualified by a license of the Florida Construction Industry Licensing Board pursuant to Chapter 489, Florida Statutes or any predecessor of Chapter 489, Florida Statutes. There is nothing in the record to show that Regency Builders was ever properly incorporated in the State of Florida. However, the record reflects that Respondent did register Regency Builders under the fictitious name statutes Section 685.09, Florida Statutes and complied with the requirements of Section 489.117, Florida Statutes after being contacted by Petitioner's employee sometime in February, 1983. Respondent has been a contractor in Bay County, Florida for 10-12 years and has constructed 150-200 homes during this period of time without any disciplinary action against him, excluding the present proceeding. Respondent prepared a proposal for the construction of a home for Mr. and Mrs. Lee Munroe under the name of Regency Builders, Inc., and submitted the proposal to them. Although the Agreement which was prepared by Lee R. Munroe and signed by Respondent on April 11, 1982 and signed by Lee R. Munroe and Sara W. Munroe (Munroes) but undated, incorporates certain portions of the Proposal, the record reflects that the proposal, per se, was never accepted by the Munroes. The Agreement referenced in paragraph 5 was an agreement entered into by the Respondent and the Munroes for the construction of the Munroes' residence in Gulf Air Subdivision, Gulf County, Florida. The agreed upon contract price was $74,129.33 but, due to changes requested by the Munroes, the Respondent was paid approximately $95,000.00. The Munroes' residence was constructed by Respondent pursuant to the Agreement and was essentially completed in December, 1982. The Munroes moved into this "completed" residence in December, 1982. DeWayne Manuel, building inspector for Gulf County, Florida, during the construction of the Munroe's residence by Respondent, performed the framing inspection, the rough electrical inspection, the rough plumbing inspection, the mechanical inspection (the heating and air conditioning systems) and all other inspections required by the 1982 Southern Standard Building Code, as adopted by the Board of County Commissioners, Gulf County Florida (Code) with the exception of the final inspection. At the beginning of construction, but before the framing inspection, Lee Munroe contacted Manuel with a general concern about the construction. As a result of this meeting with Lee Munroe, Manuel requested Charles Gaskins (Gaskins) an architect with Gaskins Architect of Wewahitchka, Florida, to inspect the pilings, girders and floor joist. After this inspection, Gaskins made some recommendations in regard to the attachment of girders to the pilings which Respondent followed in making the corrections to the attachments. Gaskins Architect provided the Piling Layout 1st and 2nd Floor Framing (Petitioner's Exhibit No. 8) at the request of the Munroes. Generally, Gaskins found no major problems with the pilings and girders other than the work was "sloppy". Both Manuel's and Gaskins' inspection revealed that Respondent had complied with the requirements of the Piling Lay Out and Manuel found no Code violations. After Gaskins inspected the pilings and girders, Respondent was allowed to continue construction by both Manuel and Munroe. The House Plans (Plans) for the construction of the Munroes' home were prepared by the Munroes' daughter who is an unlicensed architect. Although in several instances the Plans requirements were less stringent than Code requirement, the Plans were approved by the Gulf County Building Department. While the Plans were lacking in detail a competent licensed contractor should have known how to fill in the details. Once the Plans were approved, Manuel would allow a change in the Plans provided the change was as stringent as the Code and would allow the structure to be built in compliance with the Code. The change could be a downgrade or an upgrade provided the Plans, as changed, complied with the Code requirements. Respondent did not request any additional or more comprehensive plans from the Munroes or inform the Munroes in any manner that the plans were inadequate. The Plans called for 2 x 12 solid floor joists to be placed on 16 inch centers. The house as constructed by Respondent had engineered floor truss (I- Beams) placed on 24 inch centers. Those I-Beams carrying a significant load were not blocked and in some instance the I-Beams were not "end-blocked." The Code allows the use of wood I-Beams in place of solid wood floor joists provided the wood I-Beams are constructed in accordance with Code requirements. The record does not reflect that the I-Beams as used in this construction were built in accordance with the Code, and the testimony of both consulting engineering experts, that the placement of I-Beams in this structure required blocking along both sides and the end went unrebutted. There were holes and notches in the plywood web of the I-Beams. However, in reviewing the photographs in Petitioners Exhibits Nos. 11 and 14, and, in particular, photograph 1 of Exhibits 11 and photographs 4, 5, 6, and 7 of Exhibit 14, and the testimony surrounding those photographs, there is insufficient evidence to determine: (1) the size of the holes or notches (2 inch hole, 4 inch notch, etc.); (2) placement of hole or notch in relation to depth of I-Beam (upper 1/3, lower 1/4, etc.); or, (3) the depth of the I-Beams. Although there was no testimony concerning the size of the hole for the duct work and the depth of the I-Beam in photograph 7 of Exhibit No. 14, it is clear that the hole for the duct work is greater than 1/3 the depth of the I-Beam. The evidence is insufficient to show that Respondent did not use 5 - 2 x 12's in the main girder as required by Piling Layout. The evidence is clear that the 2 x 12's used in girders were not always butted at a support. The evidence is insufficient to show where the 2 x 12's were butted in the span or if the butting was staggered. No set-in braces or plywood sheathing was used in the bracing of exterior stud walls. However, diagonal metal strapping and thermoply was used and two layers of weatherboard were put on horizontally. The evidence was insufficient to show that water penetrated into the wood framework after the second siding was put on. A 32/16, 1/2 inch plywood was used for subflooring. There was no top plate on dining room wall which was a weight bearing wall. Ventilation in the attic was in accordance with plans but no cross ventilation was provided in the attic. The evidence is insufficient to show that hurricane clips were not applied to the center exterior wall in that neither engineer inspected the outside of the wall to determine if hurricane clips were on the outside. Manuel did not find a violation of Code in regard to the hurricane clips. In February, 1983, James Van Orman (Orman), a licensed engineer, was employed by the Munroes to do a structural analysis of the home constructed by Respondent. Orman's report (Petitioner's Exhibit No. 10) contained certain calculations in regard to the structural integrity of the home. The calculations and Orman's testimony surrounding the calculations went unrebutted. Orman and Lee Munroe were associated through their work and Orman, also a general contractor, was hired to make the necessary corrections in the construction to make it structurally sound. On December 5, 1984, after reviewing the case file and exhibits, Harold Benjamin, Jr. (Benjamin), a licensed consulting engineer, conducted an inspection on the structure. While Benjamin's inspection was cursory and he made no calculations Benjamin noted the same Code violations as did Orman and concurred in Orman's conclusion that the structural integrity of the home had been compromised. Respondent was notified in March, 1983, of the problems with the structure but due to problems with the Munroes and with his subcontractor he was only able to replace the siding and do some cosmetic work between March, 1983 and October, 1983. In October, 1983, the Munroes contracted with Orman to correct what Orman had determined to be structural deficiencies and notified Respondent that they no longer wanted him on the job. On September 30, 1983, the final inspection was conducted by the Gulf County Building Department. The Respondent was not present at this inspection having failed to pick up a certified letter from Manuel advising him of the date for the final inspection. By letters dated February 7, 1983 (Petitioner's Exhibit No. 4), October 13, 1983 (Petitioner's Exhibit No. 5) and February 13, 1984 (Respondent's Exhibit No. 1), Manuel expressed his thinking about the Code violations and Orman's report. At the hearing Manuel testified that his thinking had not basically changed from what he had expressed in the letters. Neither the Respondent nor the Gulf County Building Department have had the residence structurally analyzed by a licensed engineer. Respondent deviated from the Plans without first obtaining approval of the Gulf County Building Department when he substituted I-Beams on 24 inch centers for 12 x 12 solid floor joists on 16 inch centers. The only evidence that this change was discussed with the Munroes was in regard to running heating and air conditioning duct work through the I-Beams because Mrs. Munroe did not want to drop the ceiling down to 7 feet to accommodate the duct work. While this change may not have affected the structural integrity of the house had the I-Beams been properly constructed and the strength of the subfloor material adjusted to account for the increased span, the evidence shows that the I-Beams were not properly constructed and that the subfloor material used was not of sufficient strength on account of the increased span. Therefore, this change affected the structural integrity of the house. It was apparent from the testimony that certain other changes in the Plans were made without prior approval of the Gulf County Building Department. However, it was also apparent from the evidence that these changes were at least verbally approved by the Munroes and there was no evidence that these changes affected the structural integrity of the house. Due to a grandfathering provision in the law, William Pitts has never taken an examination for licensure and has never been examined as to the provisions of the Code. Respondent in his testimony exhibited: (1) an awareness of the applicable provisions of the Code but not a complete understanding of them; and (2) an acceptable knowledge of he applicable construction practice.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is Recommended that the Board enter a final order finding Respondent guilty of the violations alleged in Count I and Count II of the Administrative Complaint and for such violations it is Recommended that the Board impose an administrative fine of $1 000.00 and suspend Respondent's residential contractor license for a period of one (1) year, staying the suspension and placing Respondent on probation for that period provided the Respondent: (1) pays the $1,000.00 fine within ninety (90) days; (2) obtains a current copy of the Southern Standard Building Code and agrees to keep it current; and (3) proves to the Board that he has read and is familiar with the applicable Sections of the Code that relate to his license. Respectfully submitted and entered this 2nd day of July, 1985, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 2nd day of July, 1985. COPIES FURNISHED: Edward C. Hill, Jr. Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Charles S. Isler, III, Esquire Post Office Box 430 Panama City, Florida 32402 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee Florida 32301 Salvatore A. Carpino, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. James Linnan Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville Florida 32202 =================================================================
