The Issue The issue in this case is whether Respondent violated Sections 489.119(2), 489.124(2), 489.129(1)(n) and (p), and 489.1425(1), Florida Statutes (1999) (hereinafter, "Florida Statutes"), respectively, by: engaging in contracting as a business organization without applying for a certificate of authority through a qualifying agent and under a fictitious name; failing to notify Petitioner of the mailing address and telephone number of the certificate holder or registrant; committing incompetency or misconduct in the practice of contracting; proceeding on a job without obtaining applicable building permits and inspections; and failing to provide a written statement explaining the consumer's rights under the Construction Industries Recovery Fund (the "Fund").
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of contracting. Respondent is licensed as a contractor with license number CC C018992. At all relevant times, Respondent was registered or certified with Petitioner as the qualifying agent for Earl Benjamin and Company, Inc. ("EBCO"). As the qualifying agent, Respondent was responsible for all of EBCO's contracting activities in accordance with Section 489.1195. Respondent failed to obtain a certificate of authority from Petitioner. On April 4, 1998, EBCO entered into a contract with Mr. Joseph Chapman ("Chapman") to repair a leak in the roof of Chapman's residence at 1880 Jessica Road, Clearwater, Florida. On the advice of Mr. Dale Edwards, a representative of EBCO, Chapman entered into a second contract with EBCO to repair the entire roof for an additional cost. None of the contracts or other documentation provided by EBCO to Chapman contained a notice explaining the consumer's rights under the Fund. The contract prices for the first and second contracts were $4,500 and $7,500, respectively. After completing the work, Respondent sent another bill to Chapman for $1,750 for additional materials and repairs. Chapman paid, and Respondent accepted, $13,210 as payment in full of all amounts owed to Respondent. The checks signed by Chapman were made payable to "Earl Benjamin and Company and/or EBCO." After EBCO completed the work on the Chapman residence, the roof leaked in four places and continued to leak as of the date of hearing. Chapman contacted Respondent and other EBCO representatives repeatedly in attempt to stop the leaks. EBCO has been unable to stop the leaks in Chapman's home. The Pinellas County Building Department (the "Building Department") never performed a final inspection approving the work performed by Respondent. The Building Department issued building permit number 175919 to Respondent on April 23, 1998. On May 26, 1998, Chapman indicated to the Building Department that the roof leaked, and an inspector for the Building Department inspected the roof on the same date. The inspector found that the birdcage was not reassembled, some flashing was too short, and other eaves and rates were not constructed properly. The inspector issued a red tag for the violations. On June 16, 1998, the inspector inspected the roof again and issued a second red tag for some violations that remained uncorrected. On November 16, 1998, the inspector inspected the roof again and issued another red tag because the roof still leaked. On January 14, 1999, the inspector met with Chapman and representatives for EBCO to address the continuing problems with the roof. The inspector instructed Respondent to update his address and licensing information. On January 26, 1999, the inspector inspected the roof for the last time. The roof still leaked. On May 9, 1998, EBCO entered into a contract with Jack and Dawn Wilcox ("Wilcox") to repair the roof and install roof vents in the Wilcox residence at 247 144th Avenue, Madeira Beach, Florida. The contract price for the Wilcox job was $1,800. The Wilcoxes paid, and Respondent accepted, $1,800 as payment in full of all amounts owed to Respondent. The checks signed by the Wilcox's were made payable to "EBCO" or "EBCO Roofing." After EBCO completed the work on the Wilcox residence, the roof leaked around the vents installed by Respondent. The work performed by Respondent suffered from incompetent workmanship including ragged and non-uniform holes cut into the roof for the vents. Mr. Wilcox attempted to contact Respondent and other EBCO representatives repeatedly in an attempt to correct the leaks in the roof. No one from EBCO returned the messages from Mr. Wilcox. Mr. Wilcox attempted to physically locate Respondent at Respondent's business address, but Respondent's address was incorrect. The Wilcoxes incurred additional expenses of $1,500 to correct problems caused by Respondent. On October 24, 1998, Mr. Wilcox entered into a contract with Kurt Dombrowski Roofing Contractor ("Dombrowski") to repair the leaks in the roof and to re-install the vents in the roof. Dombrowski correctly performed the work, and Wilcox paid Dombrowski $1,500. The Wilcoxes have no further problems with the roof. Respondent never obtained a building permit for the work performed on the Wilcox roof. The Wilcox home was located within the jurisdiction of the City of Madeira Beach (the "City"). The City no longer has a building department. The Pinellas County Building Department assumed the responsibilities of the City. Respondent never obtained a building permit for the Wilcox job.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a Final Order finding Respondent guilty of violating Sections 489.119(2), 489.124(2), 489.129(1)(n) and (p), and 489.1425(1), imposing administrative fines in the aggregate amount of $3,200, requiring Respondent to pay restitution to Chapman and Wilcox in the respective amounts of $13,210 and $1,800, and requiring Respondent to pay costs of investigation and prosecution in the amount of $690.40. DONE AND ENTERED this 9th day of October, 2000, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 2000. COPIES FURNISHED: Rodney L. Hurst, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Robert A. Crabill, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-3060 Earl Henry Benjamin 9914 Connecticut Street Gibsonton, Florida 33534
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times relevant hereto, Respondent was a certified residential contractor, holding license no. CR-C018860, issued by the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board. Sometime prior to May, 1985, Respondent verbally contracted with Stavros Kountanis (Kountanis), owner of a commercial building located at 658 North Dixie Highway, New Smyrna Beach, Florida, to furnish labor and materials for work to be performed on the commercial building. The contracted work included installation of a sink, a toilet, a new back door, a dropped ceiling with light fixtures, partitioning off restrooms and covering a drain used as a grease trap with concrete. The contract price of the project, based on Respondent's calculation for labor and material, was $1,500.00 which Respondent received from Kountanis in the form of a loan. Respondent did not obtain a building, plumbing, or electrical permit for the work performed on the commercial building identified in paragraph 2 above and contracted for by the Respondent. At no time material to these proceedings was Respondent licensed other than as a certified residential contractor. Along with Respondent, Cardy Moten, Respondent's partner and Cardy Moten's helpers performed the work for which Respondent had contracted for with Kountanis. The limitations placed on Respondent's license by statute prohibited him from contracting for, or performing, the type work which he had contracted for and performed. At no time material to these proceedings was Cardy Moten or his helpers on the Kountanis job licensed to perform commercial contracting, plumbing contracting or electrical contracting. At all times material to these proceedings Sections 105.1 and 106.1, Standard Building Code, as adopted by the City of New Smyrna Beach, Florida were in full force and effect. Respondent's failure to obtain a permit to perform the work contracted for with Kountanis before performing the work was in violation of Section 106.1, Standard Building Code, as adopted by the City of New Smyrna Beach, Florida and Section 10-96, Building Regulations, New Smyrna Beach Code. Respondent was aware that Kountanis had not obtained a permit for the work which Respondent had contracted for with him. The work depicted in Petitioner's Exhibit No. 4A thru 4D was work that Respondent had contracted for and performed or performed by Cardy Moten and his helpers at Respondent's direction.
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that the Board enter a final order finding the Respondent guilty of the violations charged in the Administrative Complaint and for such violations it is RECOMMENDED that the Board suspend the Respondent's certified residential contractor's license for a period of one (1) year and assess the Respondent with an administrative fine of $500.00, stay the suspension and place the Respondent on probation for a period of one (1) year, provided the Respondent pays the $500.00 fine within ninety (90) days of the final order. Respondent's failure to pay the $500.00 fine within the time specified will result in his certified residential contractor's license being suspended for a period of one (1) year 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 25th day of November, 1986 in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-2638 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1. Adopted in Finding of Fact 1. 2. Adopted in Finding of Fact 2. 3. Adopted in Finding of Fact 3. 4. Adopted in Finding of Fact 4. 5. Adopted in Finding of Fact 7. 6. Adopted in Finding of Fact 4. 7. Adopted in Finding of Fact 5. 8. Adopted in Finding of Fact 8. 9. Adopted in Finding of Fact 6. Adopted in Finding of Fact 9. Adopted in Finding of Fact 10. Rejected as immaterial and irrelevant. Adopted in Finding of Fact 13. Rejected as immaterial and irrelevant. Rejected as immaterial and irrelevant. Adopted in Finding of Fact 13. Rulings on Proposed Findings of Fact Submitted by the Respondent Respondent did not submitted any Proposed Findings of Fact. COPIES FURNISHED: Mr. Fred L. Seely Executive Director Department of Professional Regulation Construction Industry Licensing Board Suite 504 111 East Coast Line Drive Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Lagran Saunders, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Joseph Vernon Eubank Post Office Box 9269 Glenwood, Florida 32722
The Issue Whether or not the business Respondent was associated with exceeded the scope of his contractor's license concerning the type of work undertaken, as described in the Amended Administrative Complaint, thereby violating Sections 489.129(1)(j), 489.115(1) and 489.117(2), F.S.? Whether or not Respondent failed to properly supervise the job site activities on that job, thereby violating Sections 489.129(1)(m), (j); 489.119, and 489.105(4), F.S.? Whether or not Respondent committed gross negligence, incompetence, or misconduct in connection with said job in violation of Section 489.129 (1)(m), by failure to supervise the contracting activities of the contracting business he was responsible for, so that Jorge Otero, President of Deluxe Construction Co., could obtain a building permit, exceed the scope of Respondent's license, and perform work that exhibited numerous defects? BACKGROUND AND PROCEDURE At the commencement of formal hearing, the parties stipulated ore tenus that Paragraph 6 of the Amended Administrative Complaint would be further amended to read: The business Respondent was associated with exceeded the scope of his license concerning type of work, violating Section 489.129(1)(j); 489.115(1)(b); 489.117(2). Thereafter, they entered into certain stipulated facts which are reflected among additional facts as found in this recommended order. Petitioner presented the oral testimony of Lolv Jaramillo, Herbert Gopman, Jorge Otero, and Frank Abbott, and had admitted four exhibits. Respondent presented neither oral testimony nor offered any exhibit. No transcript was provided. Respondent late-filed its post-hearing proposals, but each party's proposed findings of fact have been considered and are ruled upon in the appendix to this recommended order, pursuant to Section 120.59(2), F.S.
Findings Of Fact At all times material, Respondent was a licensed certified building contractor in the State of Florida, holding license number CB C002799 and was listed as the sole qualifying agent for Deluxe Construction Company. Deluxe could have had more than one qualifying agent but it did not. Jorge Otero was the sole owner, officer, and director of Deluxe Construction Company (Deluxe). He is not now, and never has been, a licensed contractor. Deluxe was formed in 1986, and Otero operated the company out of his home. In August 1986, Deluxe contracted with Lolv Jaramillo to remodel the Jaramillo residence in Miami for $23,800. Prior to the Jaramillo job, Deluxe had remodeled or added to several other residences. On those jobs, Respondent signed the building permit applications brought to him by Otero and made periodic inspections of the work, but Respondent never accepted any compensation from Deluxe for his services as qualifying agent of the company. Respondent was employed full-time otherwise. Before the Jaramillo job, Otero had had similar relationships with other contractors. Prior to beginning construction, Respondent met the Jaramillos at their residence at the request of Otero to discuss the possibility of the Jaramillos arranging a second mortgage through the brokerage firm which was Respondent's regular full-time employer. The Jaramillos were not told, and were not aware, that Respondent was affiliated with Deluxe. They relied on no representations of Respondent in eventually selecting Deluxe to do their construction job. The eventual contract between the Jaramillos and Deluxe was not conditioned on borrowing from Respondent's regular employer, and, in fact, the Jaramillos did not borrow from Respondent or his employer and obtained their financing elsewhere. The Jaramillos eventually instructed Otero to begin work, which he did. Otero first obtained the necessary building permit by going to the building department, filling in Respondent's contractor's license number on the application there, and signing his own name as qualifier. When Otero signed for the building permit, Respondent was out of town. Otero did not inform Respondent in advance of what he was going to do nor did Respondent discover Otero had done this until much later. On all previous contracts, Respondent had signed the permit applications and made the inspections in the manner described in finding of fact 5, supra. Respondent had done nothing to encourage Otero to think he could obtain a building permit as he did for the Jaramillo job. After Deluxe began construction at the Jaramillos' home, Otero was the sole supervisor on the job. After the Jaramillos paid Deluxe $14,000 of the contract price, they became dissatisfied with the pace and quality of the work done by Deluxe and they terminated the contract. According to Harry Gopman, structural engineer, the work done by Deluxe contained violations of local construction codes, but there is no evidence that Otero, Respondent, or anyone associated with Deluxe was convicted or found guilty of any crime. The work undertaken by Deluxe included plumbing work which Respondent was not licensed to perform. The work done by Deluxe and subcontractors under its supervision contained deviations from acceptable industry practice, including rendering a major load-carrying girder useless by penetrating it for the insertion of an air duct for the central air-conditioning system; cutting a concrete doorway lintel for insertion of another air duct, thus destroying the structural integrity of that lintel; and creating a structural hazard by placing a flat roof on the rear addition which severely "ponded" in rainstorms. From the evidence as a whole, it may be inferred that Respondent originally knew he was the sole qualifying agent for Otero/Deluxe. Otero did not affirmatively tell Respondent he had another qualifying agent for the job. However, since Otero kept telling Respondent that the Jarmillos were still having trouble getting financing, it was reasonable for Respondent to believe a building permit was not needed and construction would not begin until financing was found. It was after the commencement of construction, but prior to the termination of the contract by the Jaramillos, that Otero finally informed Respondent that he had begun work on the Jaramillo residence. It is not clear whether Respondent knew that the building permit bore his license number until after the termination of the contract. Respondent never visited the Jaramillo job site during construction. Respondent did not monitor the company finances, did not review subcontractual agreements, did not review invoices from subcontractors and materialmen, and did not call for inspections on the Jaramillo job. There is unrefuted expert testimony by Frank Abbott, architect and licensed general contractor, that a qualifying agent should do the things, but there is insufficient evidence to show that Respondent had a clear understanding that such was his position for the Jaramillo job.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Construction Industry Licensing Board enter a final order dismissing all charges against Respondent. DONE and RECOMMENDED this 31st day of August, 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 31st day of August, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0654 The following constitute rulings pursuant to S. 120.59(2), Florida Statutes, upon the parties' respective Proposed Findings of fact (FOF). Petitioner PFOF: 1-7, and 9-15. Accepted as modified to more exactly reflect the unrefuted testimony. 8. Accepted except for hearsay and subordinate and unnecessary material. Respondent's PFOF: 1-5, 7, 9. Accepted as modified to more exactly reflect the unrefuted testimony. 6. Rejected as stated. FOF 7 and 12 more correctly reflects the state of the record as a whole. 8. Rejected as stated because as stated it is a legal conclusion. A finding of fraud requires a finding of an affirmative intent which cannot be made upon the evidence presented. COPIES FURNISHED: David L. Swanson, Esquire Department of Professional Regulation 103 North Monroe Street Tallahassee, Florida 32399-0750 Lance Armstrong, Esquire 1035 Northwest 11th Avenue Miami, Florida 33136 Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Bruce D. Lamb, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
Findings Of Fact At all times relevant, Respondent was licensed as a certified building contractor holding license number CB CO24185. On or about March 14, 1983, Respondent, doing business as Duran Construction Co., contracted with Mr. and Mrs. Thomas Butler of San Mateo, Florida, to construct a room addition and freestanding carport at their residence for $6,825. Subsequently, Respondent constructed an aluminum "roof- over" by rate contract for an additional $2,000. Respondent completed the freestanding carport and aluminum roof-over projects without apparent difficulty. However, he began the room addition without obtaining the required building permit from Putnam County. 1/ He obtained an after-the-fact permit about April 21, 1983, but was issued a "correction notice" by the Putnam County Building and Zoning Department on April 22, 1983, ordering all work to cease until the cited deficiencies were corrected. 2/ The chief building inspector arranged to meet Respondent on April 214, 1983, at the construction site. The purpose of the meeting was to discuss the corrective measures required on the partially completed room addition. Respondent did not attend this meeting and did no further work on the project. His failure to attend the meeting or continue work was not explained to either the building officials or the property owner. At the time Respondent discontinued work, he had been paid $4,550 on a written contract which covered the finished carport as well as the incomplete room addition. He had also been paid $2,000 for the finished roof-over project which was the subject of an oral contract. Respondent would have been entitled to an additional $2,275 on the written contract had he completed the room addition. By letter of May 6, 1983, the Butlers' attorney advised Respondent that he would initiate legal action against him unless the project was completed by May 13, 1983. However, Mr. Butler had already applied to the Putnam County Building and Zoning Department for reissuance of the permit to himself in place of Respondent. The permit was reissued to Butler on May 6, 1983 and the project was completed without Respondent's further involvement.
Recommendation From the foregoing, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Subsection 489.129(1)(d), F.S., and suspending his contractors license for a period of four months. DONE and ENTERED this 16th day of November, 1984 in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 323301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 1984. 1/ A building permit must be obtained prior to construction. Section 106.1(a), Putnam County Building Code (PCBC). The PCBC is the Southern Standard Building Code adopted by Putnam County Ordinance 83-2. 2/ See Section 103.2, PCBC. The cited deficiencies included insufficient girder support for floor joists and inadequate roof framing with respect to rafters and beam construction. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Dean Arturo Duran 11680 N.W. 15th Lane Ocala, Florida 32675 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact At all times relevant hereto, Respondent, Roger S. Williams, held registered building contractor license number RB0026339 issued by Petitioner, Department of Professional Regulation, Construction Industry Licensing board, authorizing him to perform contracting under his individual name. Respondent, Frederick S. Schreiner, held certified general contractor's license numbers CG C004811 and CG CA04811 also issued by Petitioner authorizing him to perform contracting under his individual name and under Cape Development Corporation. Williams served as president of Architectural Builders, Inc. (ABI), a development firm located in Palm Bay, Florida. Schreiner was engaged in the contracting business generally in the Brevard County, Florida area. He has done construction work for ABI and Williams for the past eight or nine years. ABI held no licenses from either the state or local governments. On October 31, 1979, ABI entered into a construction contract with Jack and Stella Oleksy to construct a home at 842 South Becker Street, Palm Bay, Florida. The contract was approved by R. S. Williams as president of ABI. At a later undisclosed date, Williams attempted to pull a City of Palm Bay building permit on behalf of ABI. Whether the City gave formal or informal approval at that point is not clear; in any event the construction of the home began shortly thereafter. Several weeks later the City's chief building official told Williams that because he did not have local competency with the City, he could not pull a permit for a job. Williams was also advised that a recent change in state law required ABI to qualify to do business if ABI intended to construct homes within the City. When told that Frederick Schreiner would be constructing the home for ABI and that Schreiner held an appropriate license, the City official told Williams to have a construction contract executed between ABI and Schreiner to build the home. Thereafter, Schreiner pulled a permit for the job and posted it on the building site. He also gave the City a contract executed by he and ABI and which was dated November 29, 1979. During the course of the construction, Schreiner visited the building site approximately six to eight times. The work was done entirely by subcontractors who had been used on other construction jobs by Williams and Schreiner. The subcontractors were paid by ABI but worked under the supervision of Schreiner. When the job was completed Williams signed the final payment affidavit on which it was indicated that Williams was the contractor on the job. Oleksy was on the site daily to inspect the work. He complained periodically about various aspects of the job to Roger Williams. His main complaint concerned the trusses on the roof which he contended were out of alignment causing a wavy and uneven roof line. After the house was essentially completed, Oleksy lodged a complaint with Williams concerning the workmanship on the roof. Williams sent a carpenter to visit the premises who found some "variations" and worked for approximately three hours to correct the problem. He was then told by Oleksy it looked okay. Within the next few days, Oleksy again complained to Williams that the roof was wavy. Williams then sent out a roofing crew to attempt to correct the problem. After they completed their work, Williams received no further indication that the owner was unhappy. Williams later had a local relator familiar with the subdivision and an experienced carpenter who had framed more than 150 homes to view the roof. Both concluded the roof was of good workmanship and of similar quality to other homes in the neighborhood. Oleksy later filed a complaint with the City of Palm Bay concerning his roof. The City sent its chief building official to inspect the home. He described the roof as being of "poor workmanship". The same conclusion was reached by the city building inspector who also inspected the property. Because of this, the City made the notation "Hold problem roof" in its file and did not issue a certificate of occupancy to Oleksy. However, the City did not construe the roof to constitute a violation of the building code. Respondents asserted that a 1979 change in the law as to the qualification of agents caused doubt and confusion as to what was required by ABI and Williams. They also point out that if indeed a violation occurred, it was not intentional. Rather, Respondents simply desired to comply with all applicable statutes and regulations so that their construction businesses could continue to operate in a lawful manner. Other than the alleged violations herein, Respondents were not shown to have been subject to any prior disciplinary proceedings.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent, Roger S. Williams, be found guilty as charged in Count I, and be given a public reprimand. the remainder of the charges should be dismissed. It is further RECOMMENDED that Respondent, Frederick L. Schreiner, be found guilty as charged of all allegations except willfully and deliberately violating a state law, and be given a public reprimand. DONE and ENTERED this 29th day of June, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1982.
The Issue Whether Respondent's registration as a general contractor should be suspended or revoked, or the respondent otherwise disciplined, for alleged violations of Sections 468.112 (2)(a), (2)(g), and (2)(h), Florida Statutes, as set forth in the Administrative Complaint.
Findings Of Fact Petitioner Phillip H. Bare, Ocala, Florida, is registered with Respondent as a general contractor under the provisions of Chapter 468, Florida Statutes, and was so registered throughout the year of 1977. He operates under the name of American General Corporation of Florida, but that firm has not been qualified to engage in the contracting business in Florida, pursuant to Section 468.107, Florida Statutes. (Petitioner's Exhibits 1, 2, Stipulation, Testimony of Cherry) On August 15, 1977, Respondent, as president of American General Corporation of Florida, entered into a Home Improvement Installment Contract and Note with Joe Wheeler and wife, who reside at Route 2, Box 63, Live Oak, Florida. The contract provided that for a price of $4,250 Respondent would make the following property improvements on the Wheeler residence: Build 12 X 20 Room Addition and finish with paneling, ceiling tile, & all trim. Build 6 X 14 porch with top. Replace all Rotten sills. Replace all Rotten siding. Paint house with latex paint. Repair floor joist. The Wheelers made a down payment of $350 leaving an unpaid balance of $3,900. The promissory note provided for a total financed cost of $6,629.28 payable in monthly payments over a period of seven years. On August 29, 1977, the parties entered into another such contract for additional work to the residence for the price of $1,600 as follows: Install ceiling tile in (2) bed rooms and bathroom complete with trim. Install paneling in (2) bed rooms complete. Install paneling and tile board in bath. Remove old shingles and install new 235lb asphalt shingles. Install 54" kitchen sink complete and hook to water. The Wheelers paid $100 as a down payment on the work and financed the remainder with a total deferred price of $2,100 payable in 48 consecutive monthly installments. (Petitioner's Exhibits 5, 6, Testimony of E. Wheeler, J. Wheeler) Respondent subcontracted the work on the Wheeler residence to one John Compton. Respondent did not secure a Suwannee County Building Permit for the work, nor was he licensed in that county to act in the capacity of a contractor. (Testimony of Respondent, Wilson) On September 12, 1977, Mr. Wheeler signed a Customer's Completion Certificate" wherein he acknowledged that the contract work had been satisfactorily completed. Although Respondent testified that he explained the contents of the document to Wheeler at the time it was executed, Wheeler denied the same and testified that he had not read its contents prior to signing it. (Testimony of Respondent, J. Wheeler, Respondent's Exhibit 1) Prior to completion of the work, the Wheelers noted that certain deficiencies in the work existed, including a floor that "shaked" in the new addition, looseness of wall paneling, failure to replace rotten siding and lower sills, and failure to install ceiling tile in one bedroom. They spoke to workmen on the job who said that they would return and finish the work. However, nothing further was done in spite of the fact that Respondent told Mrs. Wheeler in a telephone conversation that he would be back to complete the job. As a result, Mrs. Wheeler made a complaint to Derl W. Wilson, the building official for Suwannee County. (Testimony of E. Wheeler, J. Wheeler, Wilson) Pursuant to Mrs. Wheeler's complaint, Wilson inspected the premises at some time during the month of September, 1977, and observed that the accomplished work was of a substandard nature involving various violations of the Southern Standard Building Code which had been adopted by Suwannee County in 1975. These violations, which Respondent acknowledged at the hearing to have been committed, included the following: concrete foundation blocks improperly aligned and unsupported by required concrete pad; improper spacing of floor joists at 24 inch rather required 16 inch intervals; use of one-ply instead of two-ply flooring material; failure to extend vent stack for plumbing system in kitchen to a height of 6 inches above the roof line; failure to provide a shutoff valve for cold water line under kitchen sink; failure to cover and protect splices in wiring of ceiling light fixture; failure to install ridge board for support of roof rafters; improperly installing two inch by four inch wood braces in attic; failure to connect sewer line to septic tank. Additionally, Wilson observed various instances of poor workmanship in installation of an electric wall receptacle and connection of the roof of the new addition to the existing building. Further, he noted that due to the improper spacing of floor joists, the substandard plywood flooring was not firm and constituted a safety hazard. (Testimony of Wilson, Petitioner's Composite Exhibit 3) After his inspection, Wilson wrote a letter to Respondent, dated October 18, 1977, pointing out the deficiencies in construction and advising that a complaint would be filed against him unless a building permit was obtained within ten days and the necessary corrections of deficiencies were made. Although Wilson testified that he did not hear from Respondent as a result of the letter, Respondent made several telephone calls to Wilson's office and was informed that he was on vacation. (Testimony of Wilson, Respondent, Respondent's Exhibit 7) On June 14, 1978, Respondent entered a plea of guilty in the County Court of Suwannee County, Florida to a charge of improper construction arising out of the Wheeler contract, and the Court withheld adjudication of guilt in the matter. (Petitioner's Exhibit 9) Respondent was previously convicted in the County Court of Putnam County, Florida, on August 13, 1974 of engaging in the business or acting in capacity of a contractor without being duly registered in the county pursuant to Section 468.105(2), Florida Statutes. On June 16, 1975, Respondent pleaded nolo contendere in the County Court of Alachua County, Florida to a charge arising out of his activities as a home improvement contractor. The Court withheld adjudication of guilt and placed the Respondent on probation for a period of six months and required that he "make necessary repairs to home of victim to satisfaction of Consumer Protection Section of State Attorney's Office, Eighth Judicial Circuit." (Petitioner's Exhibits 7-9) Petitioner has been a building contractor for twelve years. He testified that his subcontractor for the Wheeler job had been competent in the past and he relied on this fact in not closely inspecting the work under the Wheeler contracts. For this reason, he was unaware that the building code violations had occurred until after he had sold the Wheeler contracts and mortgages to a third party who was contacted by the Wheelers regarding the deficiencies. Respondent denied that he abandoned the work because he thought it had been completed until subsequent notification of the Wheeler complaint. He has since made attempts through Counsel to resolve the complaint by having the work performed by a contractor licensed in Suwannee County or by means of a monetary settlement. He further testified that he had inquired of Petitioner's office as to the necessity for obtaining a Suwannee County license prior to commencing the Wheeler contracts and was informed that his registration was valid for work in that county. He acknowledged that he made a "mistake" in not obtaining a building permit and in failing to supervise his subcontractor properly, but stated that the licensing rules in the various counties were "confusing." As to his prior difficulties in Putnam and Alachua Counties, Respondent testified that the Alachua matter involved a complaint raised four or five years after construction regarding quality of workmanship and that he had taken care of the matter. As to the Putnam County case, he testified that he was unaware that a building permit was necessary at the time he did the work for which he was subsequently prosecuted. It is found that Respondent's exculpatory testimony regarding his failure to obtain a building permit or county licensing, and lack of knowledge of code violations with respect to the work performed at the Wheeler residence is not credible. (Testimony of Respondent, Respondent's Exhibits 2-6)
Recommendation That Respondent's registration as a general contractor be suspended for a period of one year and that an administrative penalty in the amount of $500 be imposed, for violation of Section 468.112(2)(a), Florida Statutes. DONE and ENTERED this 23rd day of March, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 1979. COPIES FURNISHED: Barry Sinoff, Esquire 2400 Independent Square Jacksonville, Florida 32202 C. Valentine Bates, Esquire 726 NW 8th Avenue - Suite B Gainesville, Florida J. K. Linnan, Executive Director Florida Construction Industry Licensing Board Post Office Box 8621
Findings Of Fact The Respondent Frank H. Suesz is a licensed general contractor having been issued certificate number CG C020463. On July 21, 1981, the Respondent Suesz submitted an application to the Petitioner Department of Professional Regulation to take the certified contractors' examination as a general contractor. On the application, the Respondent Suesz stated that he had four (4) years of construction experience, one (1) year of on-the-job-supervisory experience, and some experience in the construction of buildings in excess of three(3) stories in height. The Respondent's work experience' was verified by Ethel C. Douglas, his mother-in-law and a building owner. Douglas' verification on the Respondent's application was notarized. The experience claimed by the Respondent on his application involved his prior position with Steel Systems Construction Company, a seller and erector of pre-engineered metal buildings. Steel Systems is owned by Richard Spinnenweber, who is also the Respondent's cousin and the complainant in this case. Steel Systems holds the franchise for American Steel Buildings while the Respondent's company, ABCO Construction, Inc., has acquired the franchise for Pre-Engineered Steel Buildings. Since the Respondent's resignation from Steel Systems, his relationship with his cousin has been anything but cordial. The Respondent and Spinnenweber have engaged in litigation concerning the termination of their former relationship and are now active business competitors through their respective companies. 1/ The Respondent's company sells and erects pre-engineered, prefabricated steel buildings that are built in a factory, shipped to the job site and erected. One witness for the Petitioner analogized the construction of these buildings to "erector sets". (See Tr. at 43) Since being certified in 1981, the Respondent's company, ABCO Construction, Inc. has successfully completed approximately 40 construction projects including a 45,000 foot roof for Pan Am at Miami International Airport, a 10,000 square foot marina warehouse in Key Largo, and has worked for the U.S. Customs Service and the Air Force. No evidence was presented that any of the Respondent's jobs completed since he became certified, were substandard or present a threat to the public health, safety and welfare. Permits were pulled on these projects and building inspections were passed when required. Prior to moving to Florida, the Respondent Suesz had varied construction experience which including supervising the construction of building additions, a shipping storage warehouse and a factory for Beckley Perforating Company, which is headquartered in Garwood, New Jersey. This testimony is corroborated by a letter dated May 13, 1982, from Frank P. Marano, President of Beckley, which also noted the Respondent's ". . .unusual competency in all areas of responsibility as to construction, maintenance and expansion." [See Petitioner's Exhibit 3(x).] Additionally, the Respondent has some construction experience in excess of three stories, which dates from his work with his father on apartment buildings located out of state. The extent of the Respondent's experience which dates from the 1940s, is set forth in detail in Respondent's Exhibit 2. Although his position at Steel Systems was primarily sales, the Respondent Suesz also worked in the field when necessary. 2/ While employed by Steel Systems, the Respondent supervised construction of two large dock roofs in 1978 and 1979, plus three buildings in 1980 and 1981 for the Homestead Tomato Packing Company, Inc. By letter dated May 13, 1982, Rosario Strano, company owner, commended the Respondent for his work and stated that he intended ". . .to negotiate with him for all future requirements for buildings, dock roofs, etc." [Petitioner's Exhibit 3(y).] In early 1989, the Respondent Suesz built an addition to the Hialeah factory of Brice-Southern, Inc. His supervision of the project included pouring and finishing the floor slab. Philip H. Brice recommended the Respondent's work via letter dated May 13, 1982, and stated ". . .that he would give him the opportunity to do our future requirements." Petitioner's Exhibit 3(z).] According to Gerald Antel, Trustee, Sunshine Skateway, the Respondent supervised the construction of a $250,000 roller rink. [Petitioner's Exhibit 3(aa).] Finally, in late 1980 and 1981, the Respondent supervised construction of a 16,800 square foot building for Woal Wholesale Plumbing Supply, Inc. His work on this project was observed and recommended by Randy S. Woal. [Petitioner's Exhibit 3(bb).]
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Administrative Complaint filed against the Respondent Frank H. Suesz, be dismissed. DONE and ORDERED this 15th day of August, 1983, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 1983.
