The Issue The Florida Construction Industry Licensing Board, Petitioner, by its Administrative Complaint filed May 18, 1978, seeks to revoke the Certified General Contractor's license issued to Ira L. Varnum based on allegations contained therein to the effect that he aided or abetted an uncertified or unregistered person to utilize his registration with an intent to evade the provisions of Chapter 468, Florida Statutes, which prohibits the use of a registrant's registration by an uncertified or unregistered person. Additionally, the Petitioner seeks to assess an administrative fine in the amount of $500.00 against the Respondent, Ira L. Varnum, for failure to comply with the dictates of Chapter 468, Florida Statutes.
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the following relevant facts are found: Ira L. Varnum, a Certified General Contractor, is the holder of license No. CG CA00832 and, during the times material, was a Certified General Contractor. William H. Bosely, the Chief Codes Enforcement Officer for Deerfield Beach, Florida, appeared during the course of the hearing and testified that he is the custodian of the permit applications in Deerfield Beach. Mr. Bosely issued permits to Ira L. Varnum to construct one-story, single-family residences on property located at 3275 and 3285 Southwest First Court, in West Deerfield Beach, Florida. (See Petitioner's Composite Exhibits Nos. 1 and 2.) As best as can be determined from the permits, the construction activity commenced during late December, 1977; and on January 25, 1978, Respondent, Ira L. Varnum, mailed a letter to the Deerfield Beach building department requesting that the construction activity for the properties here in question be "red-tagged" and requesting the building department to cease inspecting the construction of such properties. The properties were "red- tagged" based on these letters. (See Petitioner's Exhibits Nos. 3 and 4.) Respondent, Ira L. Varnum, is the president of Structural Concrete Forming of Florida, Inc. Respondent Varnum testified that he entered into an agreement with his son-in-law, Angel Gonzales, James Monteleone and Frank Sepe, who were in a joint venture to construct approximately one hundred houses within a subdivision in West Deerfield Beach. According to Respondent, Structural Concrete Forming of Florida, Inc., was to be the contracting entity. Mr. Gonzales was to be the supervisor and Messrs. Sepe and Monteleone were to be the owners of the project, providing all funds necessary, and the profits derived from the building activity were to be equally divided into thirds. Mr. Gonzales, a developer residing in Boca Raton, testified that he simply contracted with his father-in-law, Respondent Varnum, to pull the building permits, and he agreed to "give his father-in-law something". According to Mr. Gonzales, he paid Respondent in cash $600.00 to pull the permits for the subject houses. Mr. Gonzales testified that Messrs. Sepe and Monteleone formed A-I-A Builders, Inc., to be the contracting entity for construction of the two houses which Respondent Varnum pulled the building permits for. According to Mr. Gonzales, Respondent Varnum visited the site on no more than two occasions after the concrete slab was poured for the erection of the homes. There is no dispute but that a controversy arose when Respondent Varnum was not permitted to order supplies and materials through Structural Concrete Forming of Florida, Inc., and for disbursement of all monies through that entity. The parties were unable to resolve their differences as to which firm would order and pay for the materials, and Respondent Varnum notified the building department of the City of Deerfield Beach that all construction activity of the subject projects would be halted forthwith until further notice. (Petitioner's Exhibits Nos. 3 and 4.) Initially, the building department "red-tagged" the two projects but later decided, based on letters received from Messrs. Monteleone and Sepe and Attorney Richard R. Haas to the effect that the controversies between Respondent Varnum and Messrs. Monteleone and Sepe should be resolved either in the courts or between themselves amicably. The Department issued owner/builder permits to Mr. Monteleone and, thereafter, action resumed sometime during April, 1978. By letter dated May 1, 1978, Mr. Monteleone advised the building department of the City of Deerfield Beach that "I have relieved Structural Concrete Forming, Inc., General Contractors, of all obligations pertaining to the development of one single family residence located on Lot 155, . . ." Additionally, Respondent Varnum testified that he received no monies from Mr. Gonzales, and that the agreement between him (Varnum), Gonzales, Sepe and Monteleone centered solely around their failure to permit Varnum's contracting entity, Structural Concrete Forming of Florida, Inc., to purchase, pay for and generally be responsible for the overall supervision and control of the two projects in question. In furtherance of this agreement, which was oral, Respondent Varnum testified that he received no monetary consideration. While this entire sequence of transactions appears to be suspicious, the undersigned, based on the evidence presented, is unable to rest a conclusion based on the disputed testimony of Messrs. Gonzales, Monteleone and Sepe that the Respondent engaged in the alleged unlawful conduct. While it is difficult to fully credit the version offered by Respondent Varnum, it is difficult to rationalize the versions testified by Messrs. Monteleone and Sepe to the effect that the Respondent had no obligations and yet a letter was sent to the building department advising that any and all obligations heretofore which were being performed by Structural Concrete Forming of Florida, Inc., were being released. In view thereof, I shall recommend that the complaint allegations filed herein be dismissed.
Recommendation Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the complaint filed herein be dismissed in its entirety. RECOMMENDED this 9th day of January, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry Sinoff, Esquire 2400 Independent Square Jacksonville, Florida 32202 Norman D. Zimmerman, Esquire 737 East Atlantic Boulevard Pompano Beach, Florida 33060
Findings Of Fact Based on the evidence received at the final hearing, the following findings of fact are made. At all times material to this case the Respondent, Willie Whittington, was licensed as a certified general contractor in the State of Florida, holding license number CG C006966. At all times material to this case the Respondent was the sole qualifying agent for Whittington & Sons Builders, Inc. On May 15, 1987, Edwin W. Brown and Sandra J. Brown, husband and wife, contacted Respondent, in response to Respondent's advertising, to discuss the construction of a log house and an outbuilding on a lot owned by the Browns in Palm Beach County, Florida. The outbuilding was to be used as a combination garage and barn. During this initial meeting, the Browns described the project to Respondent. At the conclusion of the meeting on May 15, 1987, the Browns gave Respondent a $2,000.00 deposit to get started on the project. Respondent was to use that deposit to have plans drawn for the two buildings and to secure the necessary building permits. On June 23, 1987, Whittington & Sons Builders, Inc. entered into two contracts with the Browns, one for the house and the other for the outbuilding. Respondent signed both contracts on behalf of Whittington & Sons Builders, Inc. Both contracts were clear and unambiguous as to the work that was to be performed, as to the price that was to be paid for the work, and as to the schedules by which the construction draws would be made. The price for the house was set at $73,506.00. The price of the outbuilding was set at $11,665.00. Both contracts provided that construction would be completed within 130 days. On June 23, 1987, the Browns paid to Respondent the sum of $6,871.60 as required by the two contracts. Sandra Brown began keeping a log of her contacts with Respondent as of August 4, 1987, because she had experienced difficulty reaching Respondent by telephone and because no progress was being made on the project. Around August 4, 1987, Respondent told the Browns that he needed an additional $175.00 to pay to the architect to complete the plans. Because this was not provided for by their contracts, the Browns refused Respondent's request for this additional sum of money. On August 7, 1987, the Browns paid to Respondent the sum of $3,822.90 that Respondent was to use to order the logs. The building permits were not obtained until October 9, 1987. The permits were not obtained earlier than that date because Respondent did not diligently pursue his obligation to get the permits. As of early November 1987, the only work that had been done was the preparation of the lot for the foundation. On November 7, 1987, Respondent requested that the Browns advance him $5,000.00 so he could proceed with the construction. Respondent was financially unable to proceed because the Internal Revenue Service had garnished the account in which Respondent had placed the Browns' deposits. The Browns refused to advance Respondent this additional sum of money, but they remained willing to pay Respondent according to the draw schedules of the contracts. In December 1987 the Browns received a notice to owner form from Rinker Materials. In response to this notice, the Browns paid to Rinker Materials the sum of $2,664.77 and asked that no further materials be delivered on a credit basis to the job site. The Browns received a release of lien from Rinker Materials on December 28, 1987, for the materials Respondent had previously ordered on credit. In the middle of December 1987, the Browns learned that Respondent had neither ordered the logs for the construction nor determined the quantity of logs that would be required. On or about December 18, 1987, the foundation for the house was poured. Little work was done on the project between that date and January 4, 1988, the date Respondent told the Browns that his back was hurt and he could not work. The Browns filed a written complaint with the Palm Beach County Contractors Certification Board on January 8, 1988. As of January 13, 1988, Respondent was unable to account for the funds the Browns had deposited with him. At a meeting on January 19, 1988, among Respondent, the Browns, and a representative of Palm Beach County Contractors Certification Board, Respondent agreed to furnish receipts and an accounting of the construction funds by the next meeting on January 27, 1988. Respondent also agreed, during the meeting of January 19, 1988, to perform certain work on the project before the next meeting. At the next meeting, Respondent did not provide the Browns with receipts or with an accounting of the construction funds. Instead Respondent submitted a non-itemized bill in the amount of $18,131.20 for labor and materials supposedly expended by Respondent through January 27, 1988. The Browns refused to pay this bill. Respondent had worked only approximately 16 hours on the project between January 19 and January 27 and had not completed the additional work he had promised to have done January 27, 1988. The Browns fired Respondent and his company on January 27, 1988. At that time, Respondent had completed approximately 10% of the project `whereas it should have been approximately 60-70% completed. The delays by Respondent throughout his association with this project were not justified. After the Browns fired Respondent, they were forced to pay a materialman, MacMichael Lumber Company, to prevent the foreclosure of a lien against the property. This lien resulted because Respondent did not pay for certain materials he had ordered on credit before the Browns fired him. On February 4, 1988, Respondent agreed to repay the Browns the sum of $4,200.00. As of the date of the final hearing, Respondent owed the Browns $1,400.00. A subsequent contractor completed the project without undue delay in June 1988 for an additional $74,000. This price reflects changes the Browns made after the subsequent contractor began his work. Petitioner is the state agency charged with the regulation of contractors in the State of Florida. The Administrative Complaint filed by Petitioner against Respondent alleges, in pertinent part, the following: Respondent failed to perform in a reasonably timely manner, and or abandoned said job(s), in violation of 489.129(1)(m),(k). There was financial mismanagement and/or misconduct in connection with this matter, attributable either to Respondent directly, or to Respondent's failure to properly supervise, in violation of Section 489.129(1)(h) & (m), as generally exhibited by, but not limited to, the following: Subject double billed Customer on several occasions; failure to pay subcontractors and suppliers; and failure to buy materials. There was no allegation in the Administrative Complaint or evidence presented at hearing that Respondent has been the subject of prior disciplinary action. Respondent has been licensed as a certified general contractor by the State of Florida since 1973. Following receipt of the Administrative Complaint, Respondent denied the violations and timely requested a formal administrative hearing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered which finds Respondent guilty of having violated Section 489.129(1)(h), Florida Statutes and which imposes a fine against Respondent in the amount of $1,500 for such violation and which further finds Respondent guilty of having violated Section 489.129(1)(m), Florida Statutes and which imposes a fine against Respondent in the amount of $1,500 for such violation so that the total fine to be imposed against Respondent is $3,000. DONE and ENTERED this 7th day of July, 1989, in Tallahassee, Leon County, Florida. CLAUDE ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1989. APPENDIX CASE NO. 89-0743 The proposed findings of fact submitted by Petitioner are addressed as follows. Addressed in paragraph 1. Addressed in paragraph 27. Addressed in paragraph 3. 4-5. Addressed in paragraph 4. Addressed in paragraph 5. Addressed in paragraph 6. Rejected as being unnecessary to result reached. Addressed in paragraph 7. Addressed in paragraph 8. Addressed in paragraph 9. Rejected as being subordinate to the conclusions reached. Addressed in paragraph 10. 14-15. Rejected as being subordinate to the conclusions reached. Addressed in paragraph 12. Addressed in paragraph 17. Rejected as being unnecessary to result reached. Addressed in paragraph 14. Addressed in paragraph 15. Addressed in paragraph 15. Addressed in paragraph 16. 22-26. Rejected as being subordinate to the conclusions reached. Addressed in paragraph 17. Addressed in paragraph 19. Addressed in paragraph 23. Rejected as being subordinate to the conclusions reached. Addressed in paragraph 24. Rejected as being subordinate to the conclusions reached. Addressed in paragraph 22. 34-35. Rejected as being recitation of testimony and as being subordinate to the conclusions reached. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0729 Willie Whittington 342 Walker Street Greenacres City, Florida 34974 Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 Kenneth Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729 =================================================================
Findings Of Fact At all times relevant hereto, Respondent, Daniel A. Arguelles, held certified general contractor license number CG C004252 issued by Petitioner, Department of Professional Regulation, Florida Construction Industry Licensing Board. When the events herein occurred, he was qualified as an individual. He presently resides at 9455 Southwest 78th Street, Miami, Florida. Respondent's brother is J. Alejandro Arguelles. Alejandro holds an inactive contractor's license which has been delinquent since July, 1979. In June, 1984, Alejandro was contacted by an individual named Louis Taylor. Taylor told Alejandro that David Reynolds, who resided at 753 Northwest 116th Street, Miami, Florida, wished to add a room to his house. After meeting with Reynolds, Alejandro had plans for the addition prepared, provided an estimate for the job, and gave Reynolds a business card reflecting that he was a licensed general contractor. Reynolds and Alejandro then jointly executed a contract on July 26, 1985, wherein it was provided that A. Arguelles & Associates would construct the room addition for $19,000. The letterhead on which the contract was executed indicated that Alejandro was a general contractor. However, the entity "A. Arguelles & Associates" has never been qualified by any licensee to do construction work in the state. During all negotiations with Reynolds, Alejandro never mentioned that Daniel would be the contractor on the project although Alejandro did advise him that a general contractor would be required. All checks were made out to Alejandro, and Alejandro ordered all supplies and materials used on the project. In addition, Alejandro was at the job site on a regular basis. Prior to signing the contract on July 26, Daniel was approached by Alejandro and asked if he would be willing to act as contractor on the project. Daniel agreed, and thereafter pulled a job permit and used his license number on all pertinent documentation. Other than visiting the job site on a "couple" of occasions, he had no other contact with the project. He never met or had any contact with Reynolds. The actual amount of work done on the project by Alejandro and Daniel amounted to only $5,000.00 and consisted of constructing the foundation up to the tie beam. There is no evidence that this phase of the work was performed in a negligent or incompetent manner.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty as set forth in the Conclusions of Law portion of this order, and that he be fined $500.00. DONE and ORDERED this 1st day of October, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER 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 1st day of October, 1985. COPIES FURNISHED: Salvatore A. Carpino, Esquire 130 N. Monroe St. Tallahassee, FL 32301 Fred Roche, Secretary Dept. of Professional Regulation 130 N. Monroe St. Tallahassee, FL 32301 Nancy M. Snurkowski, Esquire 130 N. Monroe St. Tallahassee, FL 32301 J. K. Linnan, Executive Director Florida Construction Industry Licensing Board P. O. Box 2 Jacksonville, FL 32201 Mr. Daniel A. Arguelles 9455 S.W. 78th Street Miami, FL 33173
The Issue The Florida Construction Industry Licensing Board, Petitioner, seeks to revoke the registered contractor's license of Stephen J. Borovina, Respondent, based on allegations, which will be set forth in detail hereafter, that he engaged in conduct violative of Chapter 468, Florida Statutes. The issue presented is whether or not the Respondent aided or abetted and/or knowingly combined or conspired with Mr. Howard North, an uncertified or unregistered contractor, to evade the provisions of Chapter 468.112(2)(b), and (c), Florida Statutes, by allowing North to use his certificate of registration without having any active participation in the operations, management, or control of North's operations. Based on the testimony adduced during the hearing and the exhibits received into evidence, I make the following:
Findings Of Fact The Respondent is a certified general contractor who holds license no. CGC007016, which is current and active. On or about July 25, 1976, Mr. and Mrs. Julius Csobor entered into a contract with Mr. and Mrs. Howard North for the construction of a home in Martin County, Florida, for a total price of $35,990. Neither Mr. or Mrs. North are certified or registered contractors in the State of Florida. (Petitioner's Composite Exhibit #2). Respondent applied for and was issued a permit by the Martin County Building Department to construct a residence for the Csobors at the same address stipulated in the contract between the Csobors and the Norths, i.e., Northwest 16th Street, Palm Lake Park, Florida. (Petitioner's Composite Exhibit #1). Howard North, a licensed masonry contractor for approximately nine (9) years was contacted by the Csobors through a sales representative from a local real estate firm. It appears from the evidence that North had previously constructed a "spec" house which the local realtor had sold and thus put the Csobors in contact with Mr. North when they were shown the "spec" house built by North. Evidence reveals that North contacted Borovina who agreed to pull the permit "if he could get some work from the job and could supervise the project". Having reached an agreement on this point, North purchased the lot to build the home for the Csobors and he orally contracted with the Respondent to, among other things, pull the permit, supervise construction, layout the home and do trim and carpentry work. North paid Respondent approximately $200 to layout the home for the Csobors. By the time that North had poured the slab and erected the subfloor, the Csobors became dissatisfied with his (North's) work and demanded that he leave the project. According to North, Respondent checked the progress of construction periodically. Prior to this hearing, the Csobors had never dealt with Respondent in any manner whatsoever. According to Csobor, North held himself out as a reputable building contractor. A contractor is defined in relevant part as any person who, for compensation, undertakes to, or submits a bid to, or does himself or by others, construct, repair, etc. . . . real estate for others. . . Chapter 468.102(1), Florida Statutes. Applying this definition to the facts herein, it appears that the Respondent, at least in a literal sense, satisfied the requirements and obligations of a contractor, as defined in Chapter 468.102, Florida Statutes. Thus, he contracted with North to oversee and/or supervise the project for the Csobors which he fulfilled, according to the testimony of North. Said testimony was not refuted and thus I find that no effort was made by Respondent to evade any provision of Chapter 468, Florida Statutes. Accordingly, I shall recommend that the complaint filed herein be dismissed in its entirety.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the complaint filed herein be dismissed in its entirety. RECOMMENDED this 4th day of November, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry S. Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 Stephen J. Borovina 2347 Southeast Monroe Street Stuart, Florida 33494 J. Hoskinson, Jr. Chief Investigator 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. DIVISION OF ADMINISTRATIVE HEARINGS, DOCKET NO. 77-1442 STEPHEN J. BOROVINA, CG C007016, 2347 S. E. Monroe Street, Stuart, Florida 33494, Respondent. / This cause came before the FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD at its regular meeting on February 10, 1978. Respondent was sent the Hearing Officer's findings and recommendations and was given at least 10 days to submit written exceptions to the recommended order. Respondent was notified of the meeting so that respondent or counsel might appear before the Board. Respondent did not appear The FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD on February 10, 1978, after reviewing a complete transcript of the Administrative Hearing, by motion duly made and seconded voted to revoke the certified general contractor's license of STEPHEN J. BOROVINA. It is therefore, ORDERED that the certification of respondent STEPHEN J. BOROVINA, Number CG C007016, be and is hereby revoked. Respondent is hereby notified that he has 30 days after the date of this final order to appeal pursuant to Chapter 120, Florida Statutes, and the Florida Appellate Rules. DATED this 13th day of February, 1978. FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD BY: JOHN HENRY JONES, President ================================================================= SECOND AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD STEPHEN J. BOROVINA, CG C007016, Respondent/Appellant, vs. DIVISION OF ADMINISTRATIVE HEARINGS, DOCKET NO. 77-1442 FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner/Appellee. / This cause came before the Florida Construction Industry Licensing Board at its regular meeting on August 3, 1979. The respondent was sent the Hearing Officer's findings and recommendations and was given at least 10 days to submit written exceptions to the recommended order. Respondent was notified of the meeting so that respondent or counsel might appear before the Board. Respondent did appear. The Florida Construction Industry Licensing Board, on August 3, 1979, after reviewing a complete transcript of the Administrative Hearing, by motion duly made and seconded, voted to revoke the certified general contractor's license of Stephen J. Borovina, No. CG C007016. On February 13, 1978, the certification of respondent, Stephen J. Borovina, No. CG C007016, was revoked by order of the Florida Construction Industry Licensing Board. On April 25, 1979, the District Court of Appeal of the State of Florida, Fourth District, in Case Number: 78-527, reversed the final order of the Florida Construction Industry Licensing Board. That Court remanded the above captioned case to the Board to further consider the matter and enter such order as it may be advised in conformity with Section 120.57(1)(b)(9), Florida Statutes (1977). In accordance with the decision of the Florida District Court of Appeal, Fourth District, the Board has reconsidered the above captioned matter and finds as follows: The Board rejects the recommended order as the agency's final order. The Board adopts the first paragraph of the hearing officer's finding of fact. The Board, however, rejects the findings of fact found in the second paragraph of the hearing officer's findings. The second paragraph states as follows: A contractor is defined in relevent(sic) part as any person who, for compensation, undertakes to, or submits a bid to, or does himself or by others, construct, repair, etc. real estate for others...Chapter 468.102(1), Florida Statutes. Applying this definition to the facts herein, it appears that the Respondent, at least in a literal sense, satisfied the requirements and obligations of a contractor, as defined in Chapter 468.102, Florida Statutes. Thus, he contracted with North to oversee and/or supervise the project for the Csobors which he fulfilled, according to the testimony of North. Said testimony was not refuted and thus I find that no effort was made by Respondent to evade any provision of Chapter 468, Florida Statutes. Accordingly, I shall recommend that the complaint filed herein be dismissed in its entirety. The findings of fact found in the above-quoted paragraph were not based upon competent substantial evidence. The competent substantial evidence supports a finding that the respondent, Stephen J. Borovina, did not supervise the project and that Borovina evaded the provisions of Chapter 468, Florida Statutes. The following evidence supports the Board's position: There was no written agreement entered into between Howard North and the respondent which indicated that the respondent was to supervise the construction of the Csobors' house (T- 14); It was conceded at the hearing that the only subcontractors or draftmen who worked on the Csobors' house were contracted solely by Howard North and they had no contract whatsoever with the respondent (T-19, 25); The respondent never advised or informed Mr. and Mrs. Csobor that he was the contractor on the job. (T-51); At all times during the act of construction of the house, Mr. and Mrs. Csobor were under the impression that Howard North was the contractor (T-44-51). It is, therefore, ORDERED: That the certification of respondent, Stephen J. Borovina, Number CG 0007016, be and is hereby revoked. Respondent is hereby notified that he has thirty (30) days after the date of the Final Order to appeal pursuant to Chapter 120, Florida Statutes, and the Florida Appellate Rules. Dated this 3rd day of August, 1979. FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD BY: JOHN HENRY JONES, President
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 =================================================================
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 material to this proceeding, Respondent was a registered roofing contractor, having been issued License No. RC0034672, in the name of John M. Sneed, Beall and Associates Roofing Corp., 7650 Southwest 135th Street, Miami, Florida 33156. Sometime during the month of October, 1951, Jerry Stamos entered into an oral agreement with Bill Parry and Billy Duncan, to have Parry and Duncan reroof Stamos's home at 441 Castonia Avenue, Coral Gables, Florida. The contract price for the reroofing work was $4,000. At no time was either Duncan or Parry licensed to perform roofing work. As a result, after Mr. Stamos was unable to obtain a building permit in his own name to perform the work, Duncan contacted Respondent, and requested that Respondent pull the building permit for the job. On October 20, 1981, Respondent obtained City of Coral Gables, Department of Building and Zoning Permit No. A48375 to perform the work on the Stamos's property. At the time the building permit was pulled by Respondent, no work had commenced on the job. Duncan and Parry were paid a total of $4,000 for the job, $100 in cash; $2,000 on October 13, 1981; and an additional $1,900 on October 22, 1981. Shortly after the building permit was pulled and work had been commenced on the property by Duncan and Parry, Duncan and Parry stopped work on the roof and never returned. Respondent was on the job site on at least one occasion when work was being performed. No notice was furnished to Mr. Stamos concerning cessation of work on the project, nor was he ever given an explanation of why work stopped and was never recommenced by Parry, Duncan, or Respondent. Respondent never supervised any of the work performed by Parry or Duncan, nor did he ever call for any inspection of the project by the City of Coral Gables, Department of Building and Zoning. The South Florida Building Code, Section 3401.1(b) provides as follows: INSPECTION. The Building Officials shall be notified by the permit holder and ample time for mandatory inspections to be made as follows: At the time the anchor sheet is being mopped to non-nailable decks. At the completion of mechanically fastening the anchor sheet to nailable decks and before mopping. During the operation of shingling or tiling. Upon completion of the roof covering. On December 1, 1981, Respondent contacted the City of Coral Gables, Department of Building and Zoning, and cancelled the permit previously obtained by him on October 20, 1981. At that time, Respondent represented to city officials that construction had never started on the project, although he knew that representation to he false. The building project remained unfinished for a period in excess of ninety days before Mr. Stamos had the job finished by another contractor.
The Issue Whether Respondent abandoned a construction job, and whether Respondent failed to include a statement of consumer's rights in a contract; if so, whether (and what) discipline should be imposed against Respondent's general contractor's license.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: At all times material to the instant case, Respondent was a Florida-licensed general contractor, holding license number CGC 1509917. At all times material to the instant case, IGK held a certificate of authority authorizing it to engage in contracting in Florida through a qualifying agent. Respondent was the licensed primary qualifying agent for IGK. On or about December 20, 2007, Respondent entered into a contract to renovate Kevin Barrington's residence, located at 1315 Lenox Avenue, Miami Beach, Florida. The written contract did not contain a statement explaining a consumer's rights under the Florida Homeowners Construction Recovery Fund, as then required by section 489.1425. At hearing, Respondent produced a copy of a statement that explained a consumer's rights under the Florida Homeowners Construction Recovery Fund, and testified that he had attached this statement to the written contract. The statement produced by Respondent at hearing was dated December 24, 2011, four days after the contract was executed, and signed only by Respondent. Barrington testified that he never received the statement. The undersigned finds Barrington's testimony credible, and finds that the statement was not contained in the written contract as required by statute. Respondent has never been disciplined for a violation of section 489.1425. The initial contract price for the residential renovation totaled approximately $114,320.00. Several change orders increased the final contract price to approximately $148,603.25. On December 20, 2007, Barrington paid Respondent an initial payment of $46,968.00. Respondent began work on the renovation project in January, 2008. Barrington rented an apartment while the home was under construction. Between December, 2007, and June, 2008, Barrington made several payments to Respondent. By June, 2008, Respondent had received approximately $155,505.81, which was more than the original contract price, and more than the amount agreed to with the additional change orders. By August, 2008, Respondent was struggling financially. IGK experienced a significant decline in business and was forced to lay off employees. On August 23, 2008, Barrington sent Respondent an e-mail, stating, in part: I wanted to summarize our meeting yesterday. I appreciated your honesty, and I believe we came to a resolution that satisfies both our objectives; remodel 1315 Lenox Avenue with high quality standards in a timely manner. Due to unforeseen market conditions, we are not able to continue work within the confines of the existing contract dated 12/20/2007 between IGK and Kenneth Barrington. Therefore, we agreed to the following course of action. . . . If the stated objectives are completed on August 29th to Kenneth Barrington's satisfaction, we decided to terminate the existing contract and have my legal team draft a new contract between IGK and Ken Barrington that outlines the remaining scope of services and payment plan. The payment plan will be arranged as a loan between IGK and Ken Barrington where Ken Barrington will act as Lender and IGK as Borrower, IGK will be responsible to perform the duties outlined in the scope of services and payback monies at a specified date. Loan payments distributed to IGK are intended solely for the purpose of paying for the labor and materials used at 1315 Lenox Ave. On September 17, 2008, Respondent emailed Barrington, stating, in pertinent part: As discussed many times, I am trying to do the right thing and complete your project. However as stated before we are not in complete projects (sic) that were underbid last year. You are well aware that we came in below everyone else. At the time business was good and we could afford to work on a very low mark up. I tried...however and unfortunately the business environment has change (sic) and we can not (sic) do it any longer!!! . . . As it stands, for us to complete the project as mentioned above, we will have to receive a payment in the amount of $20,000.00. You may of course decide to hire to have some one (sic) else finish the project, by (sic) I believe your cost will be in excess of $40-$50k. By September, 2008, approximately 60 percent of the renovation project had been completed. On September 23, 2008, Respondent emailed Barrington stating, in part: Good morning Ken, We are still awaiting your decision in regards to which way your [sic] ant [sic] to go with your project. I do understand and per your advise [sic], that you are trying to hire other contractors to finish your project. However, if you decide to take/hire another contractor, you must apply for a change of contractors [sic]to, either [sic] another contractor or to yourself as a owner/contractor. No one, including yourself can do work, under our permits and/or call for inspections!!! Please refrain from trying to hire my employees to do unlicensed side jobs, they will not, and if they do they lose their jobs and/or be liable for prosecution by the state/county for working without a license and permit. Respondent, having indicated to Barrington that he needed more money to complete the project, and expressing a willingness to complete the renovation project, was clearly awaiting Barrington's decision as to the renegotiation of the contract. Barrington began to interview other contractors in October, 2008. On October 10, 2008, Barrington sent Respondent Change of Contractor forms to sign and have notarized. On October 14, 2008, Respondent signed the forms and had them notarized. Also on October 14, 2008, Barrington sent Respondent a letter, stating, in pertinent part: I, Ken Barrington, property owner of 1315 Lenox Ave [sic], Miami Beach, FL 33139, am notifying you that your services are hereby terminated from our project/permit #s: B08014536, B0801910, B0804552, BE080944, BE082572, BMS0801808. You are being terminated because: You have acknowledged that you are no longer capable of completing the project according to our agreed upon contract. You are no longer authorized to enter my property. On or about November 11, 2008, Barrington entered into a contract with a new contractor, Strategic Engineering, to complete the renovation project. The renovation project was complete by July, 2009, when Barrington was able to move into his home. Respondent and Barrington began to communicate again around this same time. Respondent informed Barrington that Respondent could return to work on the home, but that IGK was filing for bankruptcy. Respondent suggested that a Mutual Release be executed. On September 23, 2009, Barrington and IGK entered into a Mutual Release, intended to effect the elimination of any obligations by either party. Respondent never expressed any intention to abandon the project; rather, Barrington terminated Respondent shortly after Respondent expressed a willingness to complete the project despite his financial difficulties. During the time when Respondent was awaiting Barrington's decision as to the offer to renegotiate the contract price, Barrington elected to terminate Respondent, and did so. Barrington also forbade Respondent from entering the property. Thus, Respondent's separation from the project was caused by Barrington's actions, not by his own volition.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board issue a Final Order: (1) dismissing Counts Two and Three of the Administrative Complaint; (2) finding Respondent guilty of violating section 489.129(1)(i), by failing to comply with section 489.1425, Florida Statutes, as alleged in Count I of the Administrative Complaint; (3) fining him $250.00 for having committed this violation; and (4) ordering him to reimburse the Department for investigative and prosecutorial costs related to this violation. DONE AND ENTERED this 10th day of November, 2011, in Tallahassee, Leon County, Florida. S JESSICA ENCISO VARN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 2011.
