The Issue Whether Respondent, a licensed general contractor, committed the violations alleged in the three-count Administrative Complaint filed by Petitioner and the penalties, if any, that should be imposed.
Findings Of Fact Respondent is the agency of the State of Florida with the responsibility to regulate building contracting. At all times relevant to this proceeding, Respondent has been licensed as a certified general contractor, having been issued license number CG C058340 in 1996. At all times relevant to this proceeding, Ms. McKinney owned and resided in a house (the House) in Opa Locka, Florida. Ms. McKinney’s mother, Mattie P. Mathis, also lived in the House. In 2001, Ms. McKinney solicited bids for an addition she wanted to put on the House. Ms. McKinney and her mother, Ms. Mathis, planned to pay for the addition with life insurance proceeds on the life of Ms. Mathis’s deceased daughter (Ms. McKinney’s sister). On the recommendation of a colleague at her work, Ms. McKinney asked Willie Muse, Jr., to bid on the work. Based on the bids she received, Ms. McKinney hired Mr. Muse to construct the addition to the House. Ms. McKinney told Mr. Muse that she wanted all work to comply with all applicable permitting requirements and laws. Mr. Muse represented to Ms. McKinney that he would get the necessary building permits and that the work would comply with all applicable laws. On July 18, 2001, Ms. McKinney and Ms. Mathis entered into a written contract with Mr. Muse whereby Mr. Muse agreed to construct the addition for the sum of $45,000.00. Mr. Muse has never been licensed as a general contractor in Florida. Ms. McKinney thought Mr. Muse was a licensed contractor and would not have entered into a contract with him if she had known that he was not licensed. Pursuant to the contract, Ms. McKinney and Ms. Mathis paid Mr. Muse the following amounts on the following dates: $6,000.00 on July 20, 2001; $7,500.00 on October 10, 2001; and $13,500.00 on November 2, 2001; for a total of $27,000.00. On or about August 21, 2001, Mr. Muse brought to Ms. McKinney a building permit application form for her to sign. The application form had been filled out before Mr. Muse presented it to Ms. McKinney. Respondent was not present when Mr. Muse presented the form to Ms. McKinney. Respondent’s name, signature, and contractor’s license number appeared on the application form when Mr. Muse presented the form to Ms. McKinney. Ms. McKinney signed the form on August 21, 2001. Ms. McKinney saw Respondent’s name for the first time when she read the building permit application form. Prior to that time, Ms. McKinney and Ms. Mathis had never known or heard of Respondent. At all times relevant to this proceeding, Respondent knew that Mr. Muse was not a licensed contractor. Mr. Muse submitted the building permit application form to the Miami-Dade County Building Department (Building Department), which issued a building permit for the work on the House on October 5, 2001. Mr. Muse commenced working on the House in October 2001, but he never finished. After he received the payment in November 2001, Mr. Muse stopped working on the House for an extended period of time. During that time, Ms. McKinney attempted on several occasions to persuade Mr. Muse to resume work on the House. Prior to stopping work on the House, Mr. Muse removed a portion of the roof of the existing structure, which exposed the interior of the House to the elements. That exposure resulted in extensive damages to the House, including the collapse of the kitchen ceiling from water intrusion. By letter dated April 15, 2002, the Building Department advised Ms. McKinney that her building permit would expire in approximately 30 days. That letter prompted Ms. McKinney to contact the Building Department, where she was told that Respondent was her contractor, not Mr. Muse. Ms. McKinney secured information (from the face of the building permit) that enabled her to contact Respondent’s mother.3 That contact resulted in two meetings between Ms. McKinney and Respondent towards the end of April 2002. During the first meeting, Ms. McKinney related to Respondent the history of the project, including the amounts that had been paid to Mr. Muse. She also showed him the work that had been done and the damages that had occurred. During the second meeting, Mr. Muse was in attendance. Ms. McKinney, Ms. Mathis, and Respondent reached a verbal understanding that was not reduced to writing. They agreed that Respondent would finish the work on the House for the unpaid balance of the contract price $45,000.00 less $27,000.00 paid to Mr. Muse, which equals $18,000.00.4 The parties agreed that Respondent would pay for labor and that Ms. McKinney and Ms. Mathis would pay material suppliers directly and receive credit toward the contract price for such payments. The parties contemplated that Mr. Muse would perform most of the labor because of the monies he had already received. On the basis of the verbal contract, Respondent resumed the work on the House. On June 12, 2002, Respondent presented a draw request for $3,500.00 for electrical, plumbing, and roofing work that had been performed. Ms. Mathis wrote Respondent a check in the amount of $3,500.00 for that work. Ms. McKinney was opposed to paying Respondent the sum of $3,500.00 because she believed he had not completed the work for which he was billing. Ms. Mathis paid that sum despite Ms. McKinney’s opposition. At some undetermined time following June 12, 2002, Ms. McKinney told Respondent that she did not want Mr. Muse working on the House. Respondent then asked to be paid in advance for work to be done on the House because he would have to pay his laborers. Ms. McKinney and Ms. Mathis would not agree to payment in advance. In July 2002, the project was not complete and Respondent’s progress on the work on the House became unsatisfactory to Ms. McKinney. On October 14, 2002, Ms. McKinney filed a complaint against Respondent with Petitioner, claiming, among other things, that Respondent had abandoned the project. Her complaint alleged that work ended on the project in July 2002. At some undetermined time between June and October 2002, Ms. McKinney filed a criminal complaint against Mr. Muse, which resulted in criminal misdemeanor charges being filed against him in Miami-Dade County Court. After she filed the criminal complaint against Mr. Muse, Ms. McKinney told Respondent that she wanted to wait to proceed with the project until she knew what was going to happen with her criminal complaint. In the criminal proceeding, the Court ordered Mr. Muse on April 11, 2003, to pay restitution to Ms. McKinney in the amount of $16,008.04, payable in monthly installments of $300.00. On March 2, 2004, the Court reduced the amount of restitution to $4,000.00, payable in monthly installments of $50.00 beginning April 1, 2004. As of the date of the final hearing in this proceeding, Mr. Muse had paid Ms. McKinney restitution in the total amount of $750.00. As part of the criminal proceeding, Respondent was asked to give his opinion as to the value of the work completed by Mr. Muse and his estimated cost of completing the work. Respondent valued the work completed by Mr. Muse at $14,073.75 (labor and materials). Respondent estimated that it would cost $22,200.00 to complete the project. Both estimates were dated March 23, 2003. On October 1, 2003, Theodore R. Gay, Assistant General Counsel for Petitioner wrote Ms. McKinney the following letter pertaining to the complaint she had filed in October 2002: The Legal Department has evaluated your complaint against the above named contractor [Respondent]. After reviewing the evidence gathered during the investigation of the referenced matter, we have determined that in accordance with the rules and policies of the Construction Industry Licensing Board, this case is appropriately closed with the issuance of a Letter of Caution to the contractor. Because this case has been dismissed without a finding of probable cause, the file will remain confidential and exempt from the public records. On January 6, 2004, Ms. McKinney wrote Mr. Gay a letter that provided, in part, as follows: This letter is a request to re-open the case [against Respondent] because as prior conversation (sic) when I spoke to you in late August 2003 or early September 2003, I informed you that Mr. Jones told me that he would help me as much as possible to complete the construction on my property. Since your letter that stated you didn’t find any error on Mr. Jones’ behalf, I have not heard or seen him since October 2003, nor has any work been performed on my property. . . . Respondent came back to the House after October 2003 and talked to Ms. McKinney about the work. Ms. McKinney told him that she would pay up to a total of $45,000.00 for the work, but that she would not pay above that figure. Because of the estimate Respondent provided in the criminal proceeding dated March 23, 2003, Ms. McKinney believed that Respondent wanted $22,0000.00 to complete the work. However, Respondent never told her that he would not complete the work for a sum equal to $45,000.00 less the sums that had already been paid. Ms. McKinney would not pay Respondent for work until after the work was completed. After Mr. Gay’s letter dismissing the complaint that Ms. McKinney had filed, Respondent did no further work on the House, but he did have further conversations about the project. Ms. McKinney and Respondent could not agree on payment terms for Respondent to complete the project. Ms. McKinney testified that she did not fire Respondent. However, it is clear that she would not let Mr. Muse do further work on her house and she would not pay Respondent until after the work had been done. Ms. McKinney changed the terms of her verbal contract with Respondent by prohibiting Mr. Muse from working on the project. In November 2003, Ms. McKinney and Ms. Mathis had an argument over the money that had been spent on the house. Ms. McKinney talked to Respondent about his helping her obtain a mortgage on the house to pay for the balance of the work on the House. Ms. McKinney told Respondent that she did not want Respondent to ask her mother for any more money. Ms. McKinney told Respondent that she would use him as the contractor to complete the work if she obtained the financing. Ms. McKinney was unable to get the financing due to the condition of the House. The permits obtained by Respondent are still valid. Ms. McKinney has hired various workers on her own in an effort to complete the work on the House. As of the final hearing, the work on the House had not been completed. As of May 19, 2005, Petitioner’s costs of investigation and prosecution of this case, excluding costs associated with attorney time, totaled $920.29.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order that adopts the Findings of Facts and Conclusions of Law set forth in this Recommended Order. It is further recommended that the Final Order: Find Respondent guilty of the violation alleged in Count I of the Administrative Complaint and impose against him an administrative fine in the amount of $2,500.00; Find Respondent guilty of the violation alleged in Count II of the Administrative Complaint, but impose no additional administrative fine for that violation; Find Respondent not guilty of the violation alleged in Count III of the Administrative Complaint; Order that Respondent be jointly and severally liable to Ms. McKinney and Ms. Mathis with Mr. Muse for restitution in the amount of $4,000.00, minus $750.00 paid by Mr. Muse; and Order Respondent to pay costs of investigation and prosecution of this matter in the amount of $920.29. DONE AND ENTERED this 10th day of August, 2005, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 10th day of August, 2005.
The Issue The issue is whether respondent's license as a registered roofing contractor should be disciplined for the reasons set forth in the administrative complaint.
Findings Of Fact Based upon the entire record, the following findings of fact are determined: At all times relevant hereto, respondent, Raymond D. Simmons, was licensed as a registered roofing contractor having been issued license number RC 0055320 by petitioner, Department of Professional Regulation, Construction Industry Licensing Board (Board). He has been licensed as a roofing contractor since November 1987. The Board's official records reflect that on July 1, 1991, the license was placed on the delinquent status for non-renewal and is now considered "invalid." 1/ When the events herein occurred, respondent was the qualifying agent for Simmons and Sons Plumbing and Roofing, Route 1, Box 191 (County Road 225), Waldo, Florida. Except for this action, there is no evidence that respondent has ever been disciplined by the Board. On May 3, 1988, respondent submitted a proposal to Charles and Thea Ansman to repair the roof on their home located at 5132 N. W. 29th Street, Gainesville, Florida. With minor modifications, the proposal was accepted by the Ansmans on May 10, 1988. According to the agreement, respondent was to perform the following services: Tear off old shingles dry-in with 15 lb. felt and replace with Corning Owens 20 year fungus resistant shingles. Replace all plumbing stacks and ease drips. Will replace back porch with 3-ply build-up roof will coat it with roof coating 10 year warranty on workmanship 20 year manufactor [sic] on shingles and build-up roof. Will replace all wood that needs to be replaced. Although the agreement does not specifically refer to ridge vents, the parties also agreed that respondent would install a ridge vent on the home. On May 16, 1988, respondent made application for a building permit from the City of Gainesville to "reroof" the Ansman's home. The permit was issued on May 20, 1988, in the name of Simmons & Sons Plumbing and Roofing. Respondent commenced work on the project on May 16 and continued the work over a period of several days. During this period of time, respondent was frequently on the job site overseeing the work. Indeed, Thea Ansman said respondent was at her home approximately half of the time while the repairs were being made. Thus, while respondent undoubtedly supervised the job, for the reasons stated in findings of fact 6 and 7, he nonetheless failed to "properly" supervise the work. On May 20, 1988, Thea Ansman paid respondent in full for the work. Although the job was not finished, respondent told Mrs. Ansman he would return the next day to complete the work. When respondent failed to return, the Ansmans repeatedly telephoned him during the next few months, but respondent either refused to speak with the Ansmans or told them he would return within a few days. However, the work was never finished and respondent never returned to the job site. While inspecting the roof one day, Charles Ansman noted that the roof trusses, an intregal part of the load bearing capacity of the structure, were cut at their peaks. The depth of the cuts was between one and two inches and was apparently the result of a saw-blade not set at the proper height when the ridge vent was installed. Sometime in July or August 1988 Charles Ansman discussed the damage with respondent and requested that respondent repair the same. Respondent refused to do so on the ground he was not responsible for the damage. Ansman then filed a complaint with the City of Gainesville Building Department. On September 9, 1988, a city building inspector inspected the home and confirmed that virtually every truss was cut and that the integrity of the roof was in jeopardy. He also observed that the soffits were improperly installed in some cases, and in others, were missing altogether. A notice of violation was then issued by the city on October 3, 1988, charging respondent with violating the Standard Building Code in two respects. More specifically, it was charged that respondent's workmanship violated sections 1701.1.1 and 1708.2.1 of the 1985 Standard Building Code, as amended through 1987. These sections pertain to the quality and design of wood trusses and the design of trussed rafters, respectively. At a hearing before the city's Trade Qualifying Board, respondent admitted his workers had violated the cited sections and caused the damage to the trusses. However, respondent denied liability on the theory that the workers, and not he personally, had negligently damaged the house. Respondent was thereafter issued a letter of reprimand for his actions. In order to recover their damages, which included the replacement of all damaged trusses, the Ansmans filed suit against respondent in Alachua County small claims court. On April 18, 1989, they received a judgment in the amount of $1,050. The judgment was eventually satisfied but only after the Ansmans threatened to levy on respondent's real property located in Alachua County. In preparation for the suit, the Ansmans obtained an engineering report which corroborates the findings made by the city building inspector concerning the damage and negligence on the part of respondent's work crew. By allowing the work to be performed in that manner, respondent was incompetent and committed misconduct in his practice of contracting. However, there is no evidence that respondent was grossly negligent during his supervision of the job. Respondent did not appear at hearing. However, prior to hearing he spoke to the city building inspector and acknowledged that the roof trusses were damaged as the result of negligence on the part of his crew. He also admitted this during the final hearing on the small claims action. At the same time, he denied that his workers had ever touched the soffits. This assertion, however, is rejected as not being credible.
Recommendation Based upon the foregoing findings of facts and conclusions of law, it is, recommended that respondent be found guilty of violating Subsection 489.129(1)(m), Florida Statutes (1987), and that he pay a $1000 fine and his license be suspended for one year. RECOMMENDED this 16th day of December, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 1991.
Findings Of Fact The Respondent is a registered building contractor, having been issued license number RB 0010555. On December 12, 1980, Benjamin Kyler entered into a contract with Sweet E. Glover to construct a house for her at 2020 Southwest First Street, Ocala, Florida. At no time material hereto was Benjamin Kyler properly licensed to perform contracting in the State of Florida. The Respondent obtained the building permit to enable Benjamin Kyler to perform the construction contract with Sweet Glover. Benjamin Kyler received approximately $1,650, but he performed only a minimal amount of construction on the Glover residence. The Respondent knew that Benjamin Kyler was engaged in the construction of a residence for Sweet Glover, and the Respondent also knew that Benjamin Kyler was not licensed to contract in the State of Florida. The Respondent was paid a fee for pulling the building permit for Benjamin Kyler.
Recommendation From the foregoing Findings of fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Isaac Butler, be found guilty of violating Section 489.129(1)(e) and 489.129 (1)(f), Florida Statutes, and that his license be revoked. THIS RECOMMENDED ORDER entered on this 1st day of February, 1983. WILLIAM B. THOMAS, 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 1st day of February, 1983. COPIES FURNISHED: John O. Williams, Esquire 547 North Monroe Street Suite 204 Tallahassee, Florida 32301 Mr. Isaac Butler RFD 1, Box 752 Anthony, Florida 32617 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
