The Issue Whether the Petitioner violated Section 489.129(1)(a), Florida Statutes, by obtaining licensure by fraud or misrepresentation.
Findings Of Fact The Petitioner is the state agency responsible for licensure of certified general contractors. The Respondent Lawrence I. Paul, III, ("Respondent") is a licensed general contractor, holding State of Florida licenses GC C046485 and CG CA46485. On or about December 12, 1988, the Respondent submitted his application to the Department of Professional Regulation seeking leave to take the examination for certification as a general contractor. The Respondent subsequently took and passed the certified general contractors examination. In his application, the Respondent states that he is qualified to take the examination by virtue of having four years of proven experience as a workman or foreman of which at least one year was as a foreman. On the experience verification form submitted to the DPR as part of his application the Respondent states that from January, 1977 to January, 1980, he had been employed as a construction workman and that from January 1980 to January 1981 he had been employed as a construction foreman. The application includes an experience verification form executed by the Respondent and Paula Wisnik, a New York licensed architect. The form indicates that the Respondent had experience in steel erection form work, masonry walls, concrete slabs, footings, site work, excavation, rebar, trusses, and floor and ceiling joists, in single family residences, strip stores and high rise condominiums ten stories and higher. The experience verification form executed by Ms. Wisnik and the Respondent states as follows: I have read the CANDIDATE INFORMATION BOOKLET and reviewed the experience requirements and understand that any false information provided on this form may subject the person(s) signing below to disciplinary action and possible loss of license. I understand that DIRECT KNOWLEDGE does NOT mean that I am relying on a statement from the applicant that he has met the requirements. Ms. Wisnik has no direct knowledge of the Applicant's experience or of the applicant personally. Her knowledge was based upon information provided to her by Peter Wendt, another licensed architect. The Respondent originally sought to have Mr. Wendt complete the experience verification form. Mr. Wendt forwarded the form to Ms. Wisnik and she subsequently signed the document. Mr. Wendt has no direct personal knowledge of the Respondent's experience as set forth on the experience verification form. Mr. Wendt did not meet the Respondent until the Respondent's move to Florida, which occurred subsequent to the period of employment identified in the application. The greater weight of the evidence establishes that at the time the application was completed, the Respondent did not have the claimed four years of proven experience as construction worker or foreman. The Respondent's application states that first he became employed in the construction trade in January, 1977. In fact, he became employed full time in late December, 1978, with Paul Brothers, Inc., a family owned fire restoration business in Philadelphia. He worked primarily as a salesman and estimator with Paul Brothers until June, 1982, a period of approximately three and one-half years. Although there were periods when the Respondent worked on- site, it was not his primary responsibility throughout the employment period.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Professional Regulation, Construction Industry Licensing Board, enter a Final Order revoking the licensure of Lawrence I. Paul, III, as a certified general contractor, license numbers GC C046485 and CG CA46485. DONE and RECOMMENDED this 19th day of October, 1992, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 1992. APPENDIX TO CASE NO. 92-0193 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 1. The proposed finding is modified to reflect that the Respondent did not hold the licenses prior to examination. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 5. Rejected, illogical and unsupported by evidence. 6-7. Rejected, not supported by credible and persuasive evidence. COPIES FURNISHED: Daniel O'Brien, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Robert G. Harris, Esq. Senior Attorney Dept. of Professional Regulation 2295 Victoria Avenue #263 Fort Myers, Florida 33901 Timothy J. Murty, Esq. 1633 Periwinkle Way, Suite A Sanibel, Florida 33957 Wellington H. Meffert, II Chief Construction Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0750
The Issue At issue herein is whether or not the Respondent/Licensee, Tomas Perez, d/b/a Lifetime Chemicals of America, Inc. (Lifetime), engaged in conduct which will be set forth hereinafter in detail, which warrants the Florida Construction Industry Licensing Board (Board) to take disciplinary action respecting his license and to impose an administrative fine based on said alleged conduct.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and the entire record compiled herein, the following relevant facts are found. Tomas Perez, d/b/a Lifetime Chemicals of America, Inc. (Respondent), is a certified general contractor who holds license No. CGCA 04170, which is active. On September 24, 1975, Mr. Perez used his license to qualify Lifetime Chemicals of America, Inc., as the entity through which he would conduct his business activities (Petitioner's Exhibit 1). On August 15, 1978, Lifetime Chemicals of America, Inc. , entered into an agreement with James Laughery of Fort Myers, Florida, for a franchise agreement to use Lifetime's license in the immediate area of Fort Myers, Florida (Petitioner's Exhibit 5). That agreement provides, among other things, that Respondent Lifetime authorized James Laughery to use its license in the Fort Myers area for a fee of $50.00 per job or $1,500.00. The agreement does not provide, nor was any evidence offered to establish that Respondent Perez played any supervisory or managing role in agent Laughery's contracting activities in the Fort Myers area. During October of 1978, Mr. Andrew Szarfran entered into an agreement with Respondent's agent, Laughery, to perform certain roofing repairs to his residence for the sum of $1,000.00. Mr. Szarfran paid Laughery $500.00 and Laughery abandoned the project prior to completion (Testimony of Szarfran and Petitioner's Composite Exhibit 4). Mr. Szarfran engaged the services of another contractor to complete the project. On May 17, 1979, the Lee County Construction Board reviewed a complaint filed against Respondent by the Szarfrans. Based on that review, the Lee County Construction Board revoked Respondent's licensing privileges in the county at its June, 1979, meeting (Petitioner's Exhibits 3 and 4 and testimony of witnesses Richard M. McDole and Maxine Allred, Administrative Director of Court Enforcement and Permit Clerk, respectively, for Lee County). On or about October 17, 1978, Respondent's agent, Laughery, also entered into an agreement with Mr. and Mrs. Arthur Swanson for the erection of aluminum siding to the exterior walls of their residence for a full price of $5,000.00. The Swansons gave Respondent's agent, Laughery, a downpayment of $2,500.00 and agent Laughery abandoned the project prior to the commencement of any work (Petitioner's Exhibits 7 and 8 and testimony of Mrs. Swanson). Richard Newmes, the chief inspector for building and zoning, Cafe Coral, Florida, testified that the Construction Industry Licensing Board for Cape Coral, Florida, revoked Respondent's contractor license on January 17, 1979, based on his violation of Cape Coral Code Section 5-1/2 - 21(J), to wit: "Failure to make good faulty workmanship or materials performed or installed to evade performance of the contract or specifications as agreed upon." (Petitioner's Exhibit 9.) On or about January 4, 1979, Lifetime Chemicals of America, Inc., became aware of its agent, James Laughery's mismanagement of funds and his failure to honor contractual obligations he had entered in the Fort Myers area. Respondent and its agent Laughery therefore entered into an agreement which rendered the franchise agreement between the parties null and void. Agent Laughery, in said agreement, promised to pay, from his commissions due, monies owed to Lifetime Chemicals, Inc., which apparently was brought about due to the restitution that Lifetime Chemicals had made to customers whom agent Laughery had defaulted. As mitigating evidence, it was noted that the Respondent, Tomas Perez, was not party to or familiar with the activities and/or difficulties that the designated agent for Lifetime Chemicals of America, Inc., James Laughery, was encountering in the Fort Myers vicinity before early January, 1979. As soon as Respondent became aware of Laughery's problems, steps were immediately taken to halt such acts insofar as they related to Respondent (Testimony of Tomas Perez and Michael Arfaras).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law and the mitigating evidence which revealed that although the Petitioner is authorized and in fact holds the qualifier license of a registered entity responsible for the acts of its agents, in view of the undisputed evidence which reflects that neither Respondent Perez or Respondent Lifetime Chemicals of America, Inc., in any manner benefited from the acts of its agents and in fact attempted to thwart the illegal acts of its agent as soon as such became known, it is hereby RECOMMENDED: l. That the Respondent, Tomas Perez's Certified General Contractor's license, CGCA 04170, be placed on probation for a period of one (1) year. 2. That the Respondents, Tomas Perez and Lifetime Chemicals of America, Inc. , be issued a written letter of reprimand. RECOMMENDED this 24th day of April, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, 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 24th day of April, 1980. COPIES FURNISHED: Barry Sinoff, Esquire 2400 Independent Square Jacksonville, Florida 32202 Tomas Perez 2395 West 12th Avenue Hialeah, Florida 33010 Michael Harold Arfaras 820 S.W. 20th Avenue Miami, Florida 33135 Mr. J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. CASE NO. 79-2173 THOMAS PEREZ, CGCA 04170 Respondent. /
The Issue Whether Respondent, a licensed general contractor, committed the offenses set forth in the Administrative Complaint or is responsible for the offenses set forth in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact At all times pertinent to this proceeding, Respondent was a certified general contractor and the holder of license number CG C031547 issued by the Florida Construction Industry Licensing Board. At all times pertinent to this proceeding, Respondent was the licensed qualifying agent for A.A. Home Improvement Company, Inc. (A.A.), 4101 North Andrews Avenue, Fort Lauderdale, Florida, and as such qualifying agent was responsible for all its contracting activities. On August 25, 1990, A.A. contracted with Anthony Williams, Sr., and Janice Williams, 1/ as the owners, to re-roof and perform internal renovations on the owners' house located at 2804 Avenue H, Fort Pierce, Florida, for a contract price of $6,900.00. The contract provided that all repairs and improvements would be done and completed in a substantial and workmanlike manner. The contract between the parties was an installment loan contract that provided for a mortgage on the house and property that was the subject of the contract. On August 25, 1990, Mr. and Mrs. Williams and Ethel Nelson gave A.A. a mortgage on the property to secure payment of the amount of the contract. A.A. assigned the mortgage to Union Mortgage Company, Inc. on August 29, 1990. Subsequent to the assignment of the mortgage to Union Mortgage Company, Inc., Janice Williams and Anthony Williams, Sr., consolidated certain debts through a loan from Metropolitan Mortgage Company of Fort Pierce, Florida. With the proceeds of the Metropolitan loan, Mr. and Mrs. Williams paid off the mortgage that had been given to A.A. on August 25, 1990, and assigned to Union Mortgage Company on August 29, 1990. To secure payment of the Metropolitan loan, Mr. and Mrs. Williams gave Metropolitan a mortgage on the subject property. The Williams were still paying off the Metropolitan mortgage at the time of the formal hearing. The contract between A.A. and the owners required A.A. to remove the existing roof of the subject property and to replace the roof with a twenty-year fiberglass roof, repair the ceilings of three rooms with sheetrock, seal off holes in two walls (these holes resulted after two air conditioning units were removed), install a vinyl floor in the dining room, renovate a bathroom to 90 percent completion, and make certain unspecified minor repairs. A.A. is not certified or registered as a roofing contractor. Respondent is not certified or registered as a roofing contractor. The repair of the roof on the subject property was work that should be performed only by a certified or registered roofing contractor. Workmen from A.A. were present at the job site for approximately a week. After the work was performed, including the roofing work, the owners began having problems with the work performed by A.A. Water began to leak through the walls where the air conditioning units had been. This leaking resulted because A.A. did not properly seal the holes in the wall. Instead, A.A. merely nailed pieces of plywood over the holes where the air conditioning units had been. The roof leaked and caused damage to interior panelling. A.A. did none of the work on the bathroom that had been contracted. Mr. and Mrs. Williams attempted to get A.A. to come back and finish the work or to correct defective work on two occasions. On two separate occasions, a representative of A.A. promised to return to the job site to complete the work and to correct defective work. A.A. did not return to the job site and made no further effort to complete or correct the work on the subject property. Mr. and Mrs. Williams will have to expend approximately $6,000 to repair the roof and interior of the house as a result of A.A.'s failure to perform its contractual duties. In negotiating the contract with A.A., the owners dealt with Christine McDonough, who was a corporate officer of A.A. and who had the authority to bind A.A. as a party to the contract. A building permit was required by the City of Fort Pierce Building Code for the construction contemplated by the subject contract. No permit was obtained by A.A. The Respondent did not supervise any of the work performed on the subject property by A.A.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent be ordered to pay a fine in the amount of $2,250.00 to the Florida Construction Industry Licensing Board and pay restitution to Janice Williams and Anthony Williams, Sr., in the amount of $6,000. DONE AND ENTERED this 28th day of April, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida
The Issue Whether Respondent, a certified general contractor, is guilty of pulling permits for construction projects not supervised by Respondent, and, if so, the appropriate disciplinary action which should be taken by the Board.
Findings Of Fact At all times material hereto, Respondent was the holder of Certified General Contractor's License No. CG C005204 issued by the Board. Although this license was active at the time the Administrative Complaint was filed, Respondent has placed it on an inactive status until June 30, 1981. (Stipulation, Testimony of Respondent) As to Amiguet Construction Project During 1976, Jose Amiguet entered into a contract with San Pedro Construction Inc. for the construction of an addition to his existing residence located at 1409 Granada Boulevard, Coral Gables, Florida. (Stipulation, Petitioner's Exhibit 1) Since San Pedro Construction Inc. was not properly licensed as a building contractor, it was not qualified to apply for and obtain a Coral Gables building permit to undertake this residential addition. Therefore, on January 12, 1977, pursuant to an agreement with Jose San Pedro, representative of San Pedro Construction Inc., the Respondent applied and obtained the required Coral Gables building permit under his on name. (Stipulation, Testimony of Respondent, Charles Kozak, Petitioner's Exhibit 1) The Respondent did not participate in, manage, or supervise, in any manner, the construction of the Amiguet residential addition by San Pedro Construction Inc. Jose Amiguet neither knew the Respondent, nor had any dealings with him during the construction work. (Stipulation, Testimony of Respondent) Final inspection of the Amiguet construction project has not been conducted by the Coral Gables building inspection department since the required documentation concerning sidewalk improvements and subcontractors used has not yet been submitted. The actual construction work has, however, been completed, to the satisfaction of Jose Amiguet. (Testimony of Charles Kozak, Respondent) Respondent made an effort to assist Jose Amiguet in obtaining the final inspection and clearance by the city building inspection department. However, since Respondent did not supervise the subcontractors' work, he cannot truthfully complete the required documents. He has, therefore, offered to (1) pay for the additional costs associated with obtaining the necessary final inspection, and (2) transfer to Jose Amiguet the right to receive, after final inspection, the refund of the contractor's performance bond in the amount of approximately $400-$500. (Testimony of Respondent) As to the Shaw Construction Project During July, 1977, and on February 8, 1978, James L. Shaw entered into separate contracts with San Pedro Construction Inc. for the construction of residential improvements at 836 Obispo Avenue, Coral Gables, Florida. The final contract was in the amount of $16,700.00. (Stipulation, Testimony of Respondent, James L. Shaw, Petitioner's Exhibit 4) Since San Pedro Construction Inc. was an unlicensed contractor, Respondent, on November 15, 1977, pursuant to an agreement with that company, applied for and obtained the required Coral Gables building permit. (Stipulation, Testimony of Respondent, James L. Shaw, Petitioner's Exhibit 4) The Respondent did not participate in, manage, or supervise in any manner the construction of the Shaw residential improvements by San Pedro Construction Inc. James Shaw neither knew Respondent, nor had any dealings with him during the construction work. (Stipulation, Testimony of Respondent) On or about April, 1978, the lending institution for the Shaw project, and James Shaw stopped making construction payments to San Pedro Construction Inc., due to its failure to proceed on and abandonment of the project. (Testimony of James Shaw, Charles Kozak) On June 20, 1978, James Shaw obtained an "owner-builder" permit from the City of Coral Gables and incurred the following costs in order to complete the construction project as originally planned: $12,000 for labor and materials, and $625.00 for architectural services. Inasmuch as approximately, $10,128.00 had earlier been paid to San Pedro Construction Inc. for the construction project, the total cost of the project to James Shaw was approximately $22,753.00-$6,053.00 in excess of the original contract price. (Testimony of James Shaw and Respondent) San Pedro Construction Inc. is no longer in business, and the whereabouts of its owner, Jose San Pedro, is unknown. (Testimony of Respondent) As with the Amiguet construction project, final inspection of the Shaw project cannot be conducted until missing documentation relative to sidewalk improvements and subcontractors involved is supplied. In an effort to assist James Shaw, the Respondent has offered to transfer to Shaw the right to receive, after final inspection, the refund of the contractor's performance bond in the amount of approximately $400-$500. (Testimony of Charles Kozak and Respondent) At all times material hereto, the Respondent was aware that it was unlawful, under both state law and the Code of Metropolitan Dade County, to aide an unlicensed contractor in evading the contractor licensing law, and to use one's license to pull permits for projects not supervised by the licensee. (Stipulation, Testimony of Respondent, Petitioner's Exhibit 1) The Metro Dade Construction Trades Board heard the complaint against the Respondent and found prima facie evidence and probable cause to refer the matter to the Florida Construction Industry Licensing Board (Stipulation) Notwithstanding the evidence presented, the Administrative Complaint and the Board's counsel at hearing limited the amount sought for restitution purposes to $5,300.00, provided both the performance bonds are refunded to the benefit of Jose Amiguet and James Shaw. (Administrative Complaint, statement of Board's Counsel) Respondent regrets having taken the actions complained of in the Board's Administrative Complaint, and now more fully understands the resulting burdens which have been placed on Jose Amiguet and James Shaw. (Testimony of Respondent)
Recommendation Guilty, as charged. Respondent's certified general contractor's license should be suspended until such time as full restitution is made to the persons damaged by his actions.
Findings Of Fact At all times relevant to this proceeding, the Respondent was licensed as a contractor by the Florida Construction Industry Licensing Board. His license for the 1979-1981 license period had not been renewed at the time that the hearing was conducted, and he was therefore delinquent. [This finding is determined from Petitioner's Exhibit 1.] During June, 1977, the Respondent entered Into a contract with Emily D. Wohanka and Ruby Sue Dennard. Ms. Wohanka and Ms. Dennard, who are sisters, agreed to purchase a lot in Satellite Beach, Florida, and the Respondent agreed to construct a single-family dwelling on the lot. The parties agreed to an addendum to the contract during July or August, 1977. The addendum included some specifics with respect to construction and provided: Home will be complete and ready for occupancy within a reasonable period of time--normally three to five months. [This finding is determined from Petitioner's Exhibits 8 and 9, and the testimony of Wohanka and Jordan.) The lot which Ms. Wohanka and Ms. Dennard purchased was not cleared until December, 1977. No progress on construction was made during January or February, 1980. The Respondent obtained a building permit from the City of Satellite Beach, Florida, on February 20, 1978. Construction work commenced in either March or April, 1978. By June, 1978, Ms. Wohanka became concerned that work was commencing too slowly. She told the Respondent that she needed to move in by the end of July. Respondent told her that it was probable that construction would not be completed until mid-August. By September, the project was still not completed. Ms. Wohanka tried to reach Respondent by telephone, but he would not return her calls. She tried to locate him at home, but no one would answer the door. She complained to the building official in the City of Satellite Beach, but the building official had similar problems reaching the Respondent. Ms. Wohanka also complained to N. M. Jordan, the real estate agent who had negotiated the contract. Ms. Jordan was able to locate the Respondent, and the Respondent told Ms. Jordan that he could not complete the project because he was losing money. In late September or early October, Ms. Wohanka and her sister located the Respondent at his home. The Respondent was just walking out of the front door when they arrived. The Respondent told them that he could not discuss the matter, that he had turned it over to Ms. Jordan, and that he was not a part of it anymore. [This finding is determined from Petitioner's Exhibits 2 and 3; and from the testimony of Wobanka, Hijort, and Jordan.] When Ms. Wohanka contacted the Respondent in late September or early October, no work had been done on the project for at least a month, and the house was not completed. Light fixtures, appliances, and air conditioning had not been installed. Cabinets and other fixtures were stored in a bathroom. Inside doors had not been installed. Flooring was not completed. No sidewalks or concrete driveway had been constructed. There had been no landscaping or sodding, and the sprinkler system had not been installed. The plumbing was not operational. Ms. Wohanka contracted with a new builder to complete the project. She was able to move into the residence on December 28, 1978, but work was not finally completed until late January, 1979. Additional expenses beyond those agreed to by the Respondent were incurred by Ms. Wohanka. The Respondent had drawn on a construction loan; but, there is no evidence in the record that the Respondent used these funds for any purposes other than the construction of the dwelling. [This finding is determined from the testimony of Wohanka.] During July, 1977, the Respondent entered into a contract with James and Eleanor A. Lawrence. The Lawrences agreed to purchase a lot in Satellite Beach, Florida, and the Respondent agreed to construct a duplex dwelling on the lot. The Respondent obtained a building permit from the City of Satellite Beach on February 22, 1978. Unknown problems developed, and the project was not being completed. The Satellite Beach building official had difficulty locating the Respondent, but he was ultimately assured by the Respondent that the project would be completed. The Respondent told the realtor who negotiated the contract, Ms. Jordan, that he could not complete the 3 reject because he was losing money. The Lawrences did not testify at the hearing, and specifics regarding their relationship with the Respondent are not known. It is not known whether the Respondent abandoned the project uncompleted without notifying the Lawrences, or whether some agreement was made between them regarding completion of the project. There is no evidenced that the Respondent diverted any funds from the project. [This finding is determined from the testimony of Hjort and Jordan.] No building codes from the City of Satellite Beach were received into evidence. There is no evidence in the record from which it could be concluded that the Respondent violated any provisions of the building codes in either the Wohanka or Lawrence transactions.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent James W. Geary presently holds certified general contractor's license number CG C005775. Respondent Geary apparently entered into a contract with Phillip Smith to add a screened porch to the Smith residence. Neither the contract nor the testimony of Mr. Smith were made available to the undersigned Hearing Officer. Respondent had difficulty obtaining a roofer and completion of the project was therefore delayed. During the interim, the interior of the Smith's living room suffered water damage. After receiving a complaint from the Smiths, Mr. Robert Jahn, Chief Building Official for the City of Tamarac, personally inspected the Smith project. He found that the water damage was caused by the uncompleted work of respondent and certain violations of the Southern Florida Building Code. Jahn did not know how long the project had not been worked on, but Smith told him he had tried for about one month to get respondent to return to correct the situation. Respondent testified that when he sent a man to the Smith residence to install the roof columns, Smith chased the man off the job. Upon the delivery of certain supplies for his projects, respondent Geary, d/b/a First Triangle Corporation, wrote two checks in the total amount of $391.41 payable to Rinker Materials. (Exhibit 1) These checks were offered for payment by Rinker, and were returned due to insufficient funds. The former credit manager of Rinker Materials did not know whether anyone from Rinker had contacted respondent about the checks. Respondent testified that no one from Rinker had informed him that the checks were dishonored. However, respondent did receive notice from his bank that the checks had been returned. He was changing banks about the same time and felt that the bank had made mistakes in the past. He felt that the checks were good when issued and he therefore did not put much reliance upon the notices received from the bank. Respondent testified that he is ready, willing and able to honor the checks written to Rinker Materials. Respondent Geary apparently entered into a contract with Richard Decker for the addition of a five by eleven foot bathroom to the Decker's residence. Neither the contract, the plans or specifications nor the testimony of Mr. Decker were offered into evidence at the Hearing. Respondent felt there were no deviations between the finished product and the job specifications, and that, even if there had been, there was no way he could put a five foot vanity into the project without violating the applicable building code. The field investigator for petitioner's District No. 10 found deviations from the plans with regard to the size of the vanity, the bathroom door and the illumination. He found that the Deckers had not indicated their approval of such deviations by placing their initials on the plans or specification. The South Florida Building Code (302.2(b)) provides that when the cost of a job is over $5,000.00, the permit applicant must present plans signed and sealed by a registered architect or engineer. A larger permit fee is also required for jobs costing over $5,000.00. On or about April 9, 1976, respondent Geary applied to the City of Tamarac for two building permits. (Exhibit 2). While blueprints were submitted, no plans signed and sealed by a registered architect Or engineer were submitted. From the square footages contained on the right hand column of the application, Chief Building Official Jahn determined that the value of the two projects were $7,300.00 and $6,620.00. The contract prices for these projects were approximately $8,000.00 and $10,000.00. There was no conclusive testimony as to who supplied the footage information on these applications, It was respondent's opinion that the actual costs of these projects did not exceed $5,000.00. Respondent apparently entered into a contract with Daniel Salzman for some project, and then entered into a second contract for the construction and installation of a fence and a trellis. For this second project, respondent received a deposit of $825.00. The first job was never completed by respondent and respondent never began work on the fence and trellis project. Respondent admitted that some $500.00 was due Mr. Salzman as a refund for the second project. He testified that he instructed Mr. Salzman to have the work on the first project completed by someone else and then to send respondent the bill for the same. Respondent has not heard from Salzman regarding this matter. By letter dated November 20, 1976, Chief Building Official Jahn notified respondent that "No further building permits [would] be issued to First Triangle Builders with you as their qualifier because of numerous complaints and unfinished projects." As indicated in the Introduction, petitioner filed an administrative complaint against respondent seeking to revoke his license for violations of certain ordinances and Florida Statutes S468.112(2). The cause was referred to the Division of Administrative Hearings for the appointment of a Hearing Officer, and the undersigned was designated to conduct the hearing.
Recommendation Based upon the findings of fact and conclusions of law recited above, as well as the seriousness of the offenses of which respondent has been found guilty, It Is recommended that respondent's certified general contractor's license number CG C005775 be revoked. Respectfully submitted and entered this 18th day of July, 1977, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (488-9675) Area Code 904 COPIES FURNISHED: Barry Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 Mr. James W. Geary 4370 Northwest 32nd Court Lauderdale Lakes, Florida Wallace Norman Construction Industry Licensing Board 305 South Andrews Avenue Ft. Lauderdale, Florida 33301 J. K. Linnan, Executive Director Construction Industry Licensing Board Post Office Box 8621 JacksonvIlle, Florida 32211
Findings Of Fact The Respondent is licensed as a general contractor in the State of Florida and registered with the Florida Construction Industry Licensing Board. That agency is the agency charged with regulating the practice of contracting in the State of Florida and with monitoring the compliance of licensees with the various provisions of Chapter 489, Florida Statutes, and pertinent rules relating to licensure standards and practice standards of contractors. On April 23, 1980, one Terry Burch and Jim Goodman were operating a construction business under the fictitious name of "T. J. Associates." Neither Terry Burch or Jim Goodman, nor the entity known as T. J. Associates, was qualified or licensed with the Florida Construction Industry Licensing Board at that time, nor at times subsequent thereto which are pertinent to this proceeding. On April 23, 1980, T. J. Associates entered into a written contract with homeowners Florence Martin and her husband to remodel their home at 120 Broadview Avenue, Winter Park, Florida. The original contract was for $26,615.00 with various addenda to that contract, such that the total net contract price, with modifications, ultimately reached $40,597.00. Both the contract and the modification agreements were signed by the Martins and Terry Burch of T. J. Associates. The Respondent, Steven Shields, was not a party to any of these agreements. Mr. Burch and Mr. Goodman of T. J. Associates, obtained the Martin contract entirely through their own efforts and after obtaining the signed contract, approached the Respondent, Steven Shields, to ask him to draft blueprints for the job, also proposing that the three of them enter into some sort of partnership or other business arrangement. During the meeting at which this business was discussed, it was revealed to the Respondent that T. J. Associates was unlicensed with the Florida Construction Industry Licensing Board and the three men agreed that they would obtain proper application documents from the Board's office in Orlando for filing so as to properly qualify the company. In the meantime, the Respondent agreed to obtain from the City of Winter Park Building Department, the necessary building permits and did so. The Respondent was ultimately paid $600.00 by T. J. Associates for labor he performed on the subject project and for obtaining a building permit in his own name. The Respondent ultimately decided not to enter into a business relationship with T. J. Associates, Burch and Goodman. He did, however, work on the "Martin project" as a sort of job supervisor or foreman, performing some labor on the job and going to the job site on possibly two or three occasions during the course of the construction effort of T. J. Associates. The Respondent initially intended to use his contractor's license to properly qualify T. J. Associates with the Board and obtain the papers to do so, but after he did not enter the formal business relationship with T. J. Associates, neglected to do so, nor did T. J. Associates make any further effort to qualify itself as a contracting entity with the Florida Construction Industry Licensing Board. The Respondent did obtain the building permit for T. J. Associates for the Martin job on May 13, 1980, and obtained it under his individual name and contractor license number. T. J. Associates worked on the Martin job from May 6, 1980, to July 16, 1980. On July 16, 1980, after a dispute regarding the quality of the paint work and other matters, T. J. Associates and the Respondent stopped all work. At the time of the stoppage, the work was 90 percent complete. At the time the work was stopped, no more money was due to T. J. Associates for work already performed. The Martins, at that point, had paid T. J. Associates $35,900.00. The Martins had however, upon advice of their attorney, withheld sufficient funds at the point of cessation of work by T. J. Associates, to enable them to pay for the completion of the job by other labor and materialmen. Three subcontractors had been hired or contracted with by T. J. Associates for work which was performed by them on the Martin job. Those three subcontractors, Mr. Anthony Costa, Mr. Clyde Ray and Mr. Michael Ellis, had performed work for which they were owed, respectively, $531.00, $550.00 and $130.00. None of those three subcontractors have, as yet, been paid for these amounts. They repeatedly attempted to obtain payment from T. J. Associates, but were given no satisfaction in that regard. The Respondent never entered into any agreement or hiring arrangement with the three subcontractors involved, nor did the Respondent ever have possession or control of any funds paid from the Martins to T. J. Associates from which the subcontractors should have been paid. The Respondent only received the above- mentioned $600.00 from T. J. Associates for his services.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the Respondent be found guilty of a violation of Section 489.129(1)(e) and (k), in that he aided and abetted an uncertified, unregistered person to evade the act and violated Subsection (k) by abandoning the project without just cause. The remaining charges in the Administrative Complaint should, however, be dismissed. In view of the violations proven, an administrative fine of $500.00 and a three (3) month suspension of his license, followed by a one (1) year period of probation is warranted. DONE and ENTERED this 22nd day of August, 1983, in Tallahassee, Florida. P. MICHAEL RUFF 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 22nd day of August, 1983. COPIES FURNISHED: Douglas A. Shropshire, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Charles E. Hoequist, Esquire 301 North Ferncreek Orlando, Florida 32803 James Linnan, Executive Director Florida Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts were found: At all times material to these proceedings, the Respondent, Victor S. Davis, held a registered general contractor's license, numbered RG 0013635 issued by the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board in April, 1973. At all times material to these proceedings, Respondent's general contractor's license, number RG 0013635, was in a delinquent status and had been in a delinquent status since July 1, 1977. Respondent failed to renew his license after June 30, 1975 but in May, 1976 made application to reinstate license number RG 0013635 which was approved and reinstated on an active status by Petitioner in May, 1976 and issued to Respondent, Victor S. Davis, qualifying Conch Construction Corp., of Key West, Florida. There was no evidence that the reinstated license was issued for Monroe County, Florida or that Respondent ever held a certificate of competency for Monroe County, Florida. At all times material to these proceedings, Respondent was an officer (Secretary) of Classic Marketing and Development, Inc. (Classic). On July 28, 1983, the Respondent, as Secretary of Classic, entered into a contract with William Dees to construct a shell home on the Dees' property located at Lot 14, Block 7, Breezeswept Estates, Ramrod Key, Florida for a contract price of $27,000.00. On September 13, 1983, William Dees applied for and obtained building permit No. 10902-A as owner/builder for the construction of the Dees's home. Construction of the Dees home began on or about September 13, 1983. Gregory H. O'Berry, President of Classic had knowledge of, and approved of, Respondent entering into contracts for construction of homes in Monroe County, Florida, including the contract with Dees. O'Berry was aware that Respondent did not hold a certificate of competency in Monroe County, Florida and that Respondent's registered general contractor's license did not cover contracting in Monroe County, Florida. O'Berry understood that Phillip A. Braeunig, a properly licensed general contractor in Monroe County, Florida, was acting as the general contractor for Classic- in the construction of homes by Classic, including the construction of the Dees home. Braeunig did not act as general contractor on the construction of the Dees' home. Respondent supervised the contraction of the Dees' home, until Respondent abandoned the construction of the Dees' home, and in performing these supervisory duties fulfilled the responsibilities of a general contractor. No other officer or authorized agent of Classic had any responsibility for the supervision of, or acted in any manner as a general contractor, in the construction of the Dees' home. Braeunig prepared and submitted to Respondent an application to qualify Classic with Petitioner using Braeunig's license but this application was never filed with Petitioner during- anytime material to these proceedings. Classic was never qualified by anyone, including Respondent or Braeunig, at any time material to these proceedings. Braeunig~acted as general contractor for Classic on the Conti home, which was in the beginning stages of Classic and prior to the Dees' job. Braeunig was brought into Classic for the purpose of acting as general contractor because of the Respondent's invalid license.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Board enter a final order Dismissing Count I of the Amended Administrative Complaint filed against the Respondent. It is further RECOMMENDED that the Board enter a final order finding Respondent guilty of the violation charged in Count II of the Amended Administrative Complaint and for such violation it is RECOMMENDED that the Board suspend the Respondent's registered general contractor's license for a period of two (2) years and assess the Respondent with an administrative fine of $500.00, stay the suspension and place Respondent on probation for a period of two (2) years, provided the Respondent pays the $500.00 fine within ninety (90) days. Respondent's failure to pay the $500.00 fine within the time specified will result in his registered general contractor's license being suspended for a period of two (2) years with the requirement that when the fine is paid and the suspension lifted, the Respondent must appear before the Board for reinstatement of his license. Respectfully submitted and entered this 3rd of December, 1985, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1985. APPENDIX Department of Professional Regulation, Construction Industry Licensing Board v. Victor S. Davis, Division of Administrative Hearings Case No. 85-1963 Ruling on Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact No. 1 except for the statement that "Respondent's license was issued for Okaloosa County only" which is rejected as not being based upon competent substantial evidence. Hearsay alone is not sufficient to support a finding of fact. Adopted in Finding of Fact No. 1 except for statement that "said license has been delinquent since July, 1981" which is rejected as being contrary to the evidence in Petitioner's Exhibit No. 1 which shows delinquent status as of July 1, 1977. Adopted in Finding of Fact No. 3. Rejected as a conclusion of law rather than a proposed finding of fact. Considered as background information and not as a finding of faet. Adopted in Finding of Fact No. 4. Adopted in Finding of Fact No. 5. Adopted in Finding of Fact Nos. 4 and 5. Adopted in Finding of Fact Nos. 5 and 7. Adopted in Finding of Fact No. 5. Adopted in Finding of Fact No. 6. Adopted in Finding of Fact No. 6. Adopted in Finding of Fact No. 9. Adopted in Finding of Fact No. 9. Adopted in Finding of Fact No. 9. Adopted in Finding of Fact No. 9. Adopted in Finding of feet No. 10 Adopted in Finding of Fact No. 10 Rejected as a conclusion of law rather than a proposed finding of fact. Respondent did not submit Proposed Findings of Fact. COPIES FURNISHED: James Linnan, Executive Director Department of Professional Regulation Construction Industry Licensing Board P. O. Box 2 Jacksonville, FL 32202 Nancy M. Snurkowski, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Victor S. Davis 2169 North Hercules Avenue Clearwater, FL 33575 and 6290 Sandcrest Circle Orlando, FL 32819
