Findings Of Fact The Petitioner is the Department of Professional Regulation. The Respondent is John W. Hammel, holder at all times pertinent to these proceedings of certified general contractor license number CG-CA16780 issued by the Petitioner. His address of record is Dania, Florida. On or about June 17, 1986, the Respondent entered into a contract with a property owner named Vance Lee. The Respondent agreed to remodel Lee's duplex housing unit for the total sum of $15,200 and, in effect, turn the duplex into a four unit complex. The parties agreed the total sum would be paid in four installments. The owner was originally assured by the Respondent that all construction could be completed within six weeks of contract execution. Shortly after August 4, 1986, and after receipt from the owners of all amounts to be paid under the contract, except the final payment due upon project completion of $1,500, the Respondent left the construction site. At that time, approximately thirty percent of the required construction remained uncompleted. As a result of pressure by the owner and the filing of the administrative complaint in this cause, he has worked there since that time on a "spasmodic" basis. One day of work every two months reflects the average record of the Respondent's efforts to complete construction activities. At the hearing held in this cause, the Respondent admitted he had not completed the construction job in a timely and reasonable manner and that twenty to twenty-five percent of the construction job was still uncompleted. Among the tasks, at time of hearing, yet to be completed were some plumbing installations (including a missing hot water heater), a fire wall between two units, an uncompleted ceiling in one of the units, and certain landscaping requirements related to the front drive of the building. The Respondent's explanation, offered in mitigation of his failure to complete the construction job in a timely and reasonable manner, is that his business partner quit and left Respondent with the sole responsibility for completion of eight other jobs. Due to financial problems, he has been working his way through those jobs in chronological order. The job which is the subject of this proceeding was the last job taken before the partner departed and hence is the last to be completed. As a result of the Respondent's failure to timely complete the project, the building permit expired, resulting in the issuance of a violation citation by the local city government. At hearing, Respondent represented that he would complete the contract at issue, and requested leave to submit a post hearing mitigation exhibit to demonstrate completion of the project. With Petitioner's agreement, Respondent was granted leave until May 2, 1988 to file his exhibit. The exhibit was untimely, mailed approximately three days after the required date for filing, but the Petitioner waived objection to the late filing. The exhibit established that Respondent completed construction on the project to the satisfaction of the property owner after the hearing had in this cause. Further, the exhibit established that a certificate of occupancy for the premises, denoting completion in accordance with local governmental building requirements, had been issued by the City of Fort Lauderdale. As an additional mitigation gesture, the Respondent waived his right to receipt of the remaining payment of $1,500 from the property owners.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered assessing the Respondent an administrative penalty of $500 in accordance with disciplinary guidelines set forth in section 21E-17.001(19), Florida Administrative Code. DONE AND RECOMMENDED this 27th day of May, 1988, in Tallahassee, Leon County, Florida. DON W. 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 27th day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 5310 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. PETITIONER'S PROPOSED FINDINGS Included in finding number 2. Included in finding number 3. Included in finding number 4. Included in finding number 4. Included in finding number 7. Included in findings 4, 5, 6, 8, 9 and 10. Rejected as a conclusion of law. Rejected as a conclusion of law. COPIES FURNISHED: Michael J. Cohen, Esquire 517 South West First Avenue Ft. Lauderdale, Florida 33301 Mary E. Hammel, Esquire 501 South East 12 Street Ft. Lauderdale, Florida 33316 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely Executive Director Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201
The Issue The basic issue in this case concerns whether the Petitioners are entitled to reimbursement from the Construction Industries Recovery Fund.
Findings Of Fact On or about December 5, 1994, the Petitioners entered into a contract with an entity named James Plumbing, Inc., pursuant to which James Plumbing, Inc., agreed to perform specified plumbing work for a two-story duplex the Petitioners were building. The total contract price for the plumbing work was $10,000.00. Article 4 of the contract, titled "Progress Payments," contained the following language: On completion of rough-in plumbing $4,000.00 is due, at top out of all riser pipes and runs for plumbing an additional $4,000.00. The final payment of $2,000.00 to be paid upon final completion and hookup of all plumbing items and approval of same by City of Delray Building Department. A lien release will be required upon final payment by James Plumbing, Inc. Owner's (sic) will furnish lien release to James Plumbing, Inc., for execution. The contract described above also included language to the effect that the work to be performed under the contract would be commenced "as per owner/builder schedule," and the work would be substantially completed in the spring or summer of 1995 "as per schedule of owners." At the time of the signing of the contract described above, and at all other times material to this case, James Plumbing, Inc., was a Florida corporation that had been administratively dissolved by the Florida Department of State. At the time of the signing of the contract described above, and at all other times material to this case, an individual named James West was licensed by the CILB as a "Certified Plumbing Contractor." At the time of the signing of the contract described above, and at all other times material to this case, James West purported to be the "qualifier" for the entity known as James Plumbing, Inc. James West was the original incorporator of the corporation named James Plumbing, Inc. At all times material to this case, James West was the only person who had any ownership interest in, or had any control over the affairs of, the corporation named James Plumbing, Inc. James West, doing business under the name of the defunct corporation named James Plumbing, Inc., finished the "rough-in" in June of 1995 and finished the "top out" in March of 1996. Consistent with the terms of the contract, he was paid $4,000.00 in June of 1995 and he was paid $4,000.00 in March of 1996.1 For several reasons not material to the issues in this case, progress on other aspects of the construction project took longer than expected and in was not until the spring of 1999 that the Petitioners contacted James West to schedule the completion of the plumbing work under the contract signed in December of 1994. As a result of disagreements regarding the scheduling of the plumbing work, by letter dated April 12, 1999, the Petitioners advised James West that they had elected to terminate the plumbing contract dated December 5, 1994. Neither James Plumbing, Inc., nor James West individually ever performed the work that remained to be performed under the contract dated December 5, 1994, after the "top out" that was completed in March of 1996. In order to finish the plumbing work that remained to be done under the contract dated December 5, 1994, the Petitioners hired another plumbing contractor, Lee Wilder Plumbing, Inc. ("Wilder"). During the course of finishing the plumbing work, Wilder discovered that some of the work done by James West was incomplete and that some of the work done by James West had been done improperly and had to be redone. Wilder finished the work that remained to be done under the contract dated December 5, 1994, and also corrected the mistakes in the work that James West had done. For these services the Petitioners paid Wilder a total of $2,967.50. In order to correct the mistakes made by James West, it was also necessary to remove portions of existing interior walls and to then rebuild and paint those portions of the interior walls. This work on the interior walls cost the Petitioners an additional $1,000.00. As a result of the matters described in paragraphs 6, 7, and 8, above, the completion of the Petitioners' building was delayed. By reason of the delay, the Petitioners lost rental income in the amount of $4,350.00. The Petitioners filed a civil action in the County Court in Palm Beach County, Florida, against James West seeking to recover compensation for the harm caused by the failure of James West to properly perform his obligations under the contract of December 5, 1994. On September 3, 2002, the Petitioners obtained a final judgment against James West, individually. The judgment was in the total amount of $8,082.35, comprised of the following elements: Plumbing completion and repairs $2,967.50 Demolition and repair of walls $1,000.00 Cost of water heaters2 $400.00 Loss of rental income $4,350.00 Subtotal $8,717.50 Less $2,000.00 set off ($2,000.00) Plus prejudgment interest $1,364.85 Total Judgment $8,082.35 The final judgment includes the following language: Under the contract, work was to be completed by spring or summer, 1995. The Defendant actually finished the top-out installation in 1996 but the project was delayed due to a dispute the Plaintiffs had with the city in regard to paving an alley. The Plaintiffs contacted the Defendant in 1999 to finish the work, however, the Defendant requested additional money which he wanted up front. The Plaintiffs did not mind the additional money but objected to paying up front. They terminated the 1994 contract and hired Lee Wilder Plumbing, Inc., to complete the job of installing the fixtures. In May, 2000, the Plaintiffs discovered there was no hot water. The Defendant refused to come out and check on the problem so Lee Wilder Plumbing, Inc., was called. The evidence showed that cuts had to be made in the walls and floor to find the problem. While the Defendant asserts that the problem was crossed pipes which was easy to correct, he never came out to look at the job site. Instead, the evidence showed that there was a hot water pipe missing, that the two cold water pipes were not connected to anything and a new pipe had to be installed getting hot water to the second floor. The evidence further showed that the Defendant did all of the rough plumbing under the slab and top- out plumbing inside of the walls. Pursuant to F.S. 95.11(3)(c), the Court finds the plumbing defect to be a latent defect. Further, the Court finds that the Defendant is responsible for that latent defect. In addition to damages to correct the latent defect, the Plaintiffs seek damages for the cost of hot water heaters and loss of rent/loss of use for three months delay to correct the plumbing problem. It is well settled that the purpose of damages are (sic) to place the injured party in the position it would have been. Tucker v. John Galt Ins. Agency Corp., 743 So. 2d 108 (Fla. 4th DCA 1999). The Court finds that Plaintiffs are entitled to [re]cover the cost of repairing the latent defect in the amount of $2,967.50 and $1,000.00 for the cost of repairing the walls and floor. Further, the Plaintiffs are entitled to recover for the cost of the water heaters of $400.00 and loss of rental income for one unit at $4,350.00. In addition, the Defendant is entitled to a set off of $2,000.00, as the Plaintiffs agreed to pay the Defendant $10,000.00 for the plumbing work in which they actually paid the Defendant $8,000.00. The measure of damages is the cost to complete contract price because parties already agreed to pay contract price for completed work. American Structural Systems, Inc. v. R. B. Gay Const. Co., Inc., 619 So. 2d 366 (Fla. 1st DCA 1993). Measure of damages is contract price diminished only by damages suffered. Fleming v. Urdl's Waterfall Creations, Inc., 549 So. 2d 1057 (Fla. 4th DCA 1989). In addition to the final judgment described above, the Petitioners also received a judgment for costs against James West in the amount of $972.27. The amounts of the final judgment ($8,082.35) and the judgment for costs ($972.27) total $9,054.62. Following the entry of the judgments against James West, the Petitioners made numerous unsuccessful efforts to satisfy the judgment. Despite diligent search and inquiry, the Petitioners were never able to locate any property of James West that could be applied to the satisfaction of the judgments against James West. On or about November 27, 2002, the Petitioners signed a claim form seeking restitution from the Construction Industries Recovery Fund. Their claim was received by the CILB on or about December 3, 2002. Following consideration of the Petitioners' claim, the CILB voted to deny the claim. An order to that effect was issued and filed on January 28, 2004. In that order the CILB gave the following reasons for its denial of the claim: Upon consideration of the documentation and testimony submitted, it is ORDERED: Claimants filed to satisfy all requirements for payment from the Recovery Fund. There is no evidence in the file to support the amount of actual damages suffered. Section 489.141(2)(c), states that a person is not qualified to make a claim for recovery from the Construction Industries Recovery Fund, if such person has suffered damages as the result of making improper payments to a contractor as defined in part I of chapter 713. There is no evidence in the file that the liens filed by subcontractors were valid liens under Chapter 713, Florida Statutes. At the beginning of the final hearing the Respondent stated on the record that it was still relying on the reason set forth in subparagraph a, above, but that it was abandoning the reasons for denial set forth in subparagraphs b and c, above. The Respondent also stated on the record that it was of the view that there were two additional reasons for denying the subject claim. The two additional reasons were described as follows: That the underlying court judgment on which the Petitioners' claim is based is not a judgment based on an act that constitutes a violation of subsections (g), (j), or (k) of Section 489.129, Florida Statutes, and That the corporation for which the individual contractor purported to be the qualifier was not licensed at the time of the violations that caused financial harm to the Petitioners. The Petitioners' first notice of the CILB's change in position appears to have been when these two new reasons were stated during the opening moments of the final hearing. In its proposed recommended order the Respondent raises for the first time a third new reason for denying the subject claim. This third new reason is set forth in the underscored portion of the following language from paragraph 28 of the Respondent's proposed recommended order: 29. An asset search indicates that there are no assets from which the judgment can be satisfied. However, James West held at the time of the judgment, and still holds today, an active license. There is no proof that Petitioners exhausted all efforts and demonstrated an inability to collect the judgment as required by Rule 61G4-21.003(2), Florida administrative Code.
Recommendation In view of all of the foregoing, it is RECOMMENDED that a final order be issued in this case concluding that the Petitioners are entitled to reimbursement from the Construction Industries Recovery Fund in the amount of their final judgment and their cost judgment, for a total reimbursement amount of $9,054.62. DONE AND ENTERED this 30th day of July, 2004, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH 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 30th day of July, 2004.
The Issue Whether or not Respondent engaged in gross negligence, incompetency and misconduct in reroofing the Beetham residence during August 1986 and, if so, what administrative penalty should be imposed.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, the following relevant factual finding are made: Respondent, Robert L. Cochran, is a licensed roofing contractor having been issued license no. RC-0032408. On April 1, 1986, Respondent agreed to reroof the home of Hugh E. Beetham, situated at 2406 Calamonga Lane in Sarasota, Florida for $3,600.00. On April 3, 1986, Beetham paid Respondent $2,000.00 and paid the balance to him by installing carpet in Respondent's home in accordance with Respondent's directions. Respondent removed Beetham's old roof during April, 1986, and laid tar paper over the structure. Respondent did not retile Beetham's roof until August, 1986. David H. Gracey, who was received as an expert in roofing construction and systems, inspected Beetham's roof on August 26, 1987, to determine its condition by comparing existing features with the building code and the prevailing standards of roofing practice in Florida. Respondent used a cement tile to reroof Beetham's home. In doing so, Respondent did not comply with the local building code as follows: The tile head lap was insufficient and was laid with excess exposure, causing courses to be stretched which resulted in the roof being approximately 2 courses short or 230 less tile than should have been installed. Tile bed mortar was inadequate in size and placement causing excessive loose tile. Nearly 354 of 904 tiles or approximately 39.2% were loose presenting a safety hazard both in continued slippage and wind-borne tile in severe weather. Improper counterflashing detail at the chimney and gable with an unsuccessful attempt to seal the gable opening by the use of mortar. Detailing of the valleys were shoddy and misal igned. Tiles laid at the end of the house were uneven and created a safety hazard. Based on the numerous deficiencies found by Gracey during his inspection of Beetham's roof, the only means by which the roof could be corrected would be to remove all existing tile and mortar and redo the entire roof. /1
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order as follows: Impose an administrative fine against Respondent in the amount of $750.00 payable to Petitioner within thirty (30) days following the entry of the final order. Place Respondent's license number RC-0032408 on suspension for a period of three (3) months with the further proviso that suspension be suspended for a period of forty- five (45) days during which time Respondent shall be allowed an opportunity to reroof the Beetham's home in accordance with the applicable building codes and provided such reroofing occurs, that the entire period of suspension be suspended./2 RECOMMENDED this 1st day of June, 1989, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 1st day of June, 1989.
The Issue Whether Respondent committed the violations alleged in the Amended Administrative Complaint? If so, what punitive action should be taken against Respondent?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Respondent is a plumbing contractor. He is now, and has been at all times material to the instant case, licensed to engage in the plumbing contracting business in the State of Florida. His license number is CF C020307. At all times material to the instant case, Respondent was the primary qualifying agent for A'Aabbott, a plumbing contracting business located in Fort Lauderdale, Florida. In August of 1992, A'Aabbott entered into a written contract (Contract) with Nereo Agostinelli in which it agreed, for $3,225.00, "[t]o furnish labor and materials to install [on Agostinelli's property in Plantation, Florida a] 600 sq. ft. drain field to all codes at standard practice." Respondent signed the Contract on behalf A'Aabbott. His license number, however, was not written or otherwise displayed on the Contract. The Contract contained the following warranty provision: "3 year conditional warranty-must upkeep interior plumbing." Agostinelli paid the $3,225.00 Contract price by check. A'Aabbott thereafter installed a 600 square foot drain field on Agostinelli's property, as it had agreed to do. Approximately two days after it had been installed (which was within the three-year warranty period), the system failed and raw sewage backed up into Agostinelli's residence on the property. The system failed because pipe that A'Aabbott had installed as part of the project had been cracked during installation by a large rock and had become clogged with soil and therefore could not carry effluent to the drain field. The "interior plumbing" that Agostinelli was required maintain as a prerequisite to his receiving the benefit of the Contract's "3 year conditional warranty" did not cause the failure of the system. Agostinelli made numerous attempts to contact A'Aabbott and request that it fix the problem, as A'Aabbott was required to do under the Contract. When Agostinelli spoke with Respondent, Respondent told him that A'Aabbott had no intention of doing anything further for him. Although A'Aabbott was made aware of the system's failure, it failed to take any action to repair the system. Sewage continued to back up into Agostinelli's residence. On three occasions, Agostinelli had Raider Rooter Sewer and Drain Cleaning, Inc., (Raider Rooter) come to his residence and remove sewage. The total cost to Agostinelli of Raider Rooter's services was $355.00. Agostinelli would not have incurred these costs had the system installed by A'Aabbott not failed. Having been unsuccessful in his efforts to have A'Aabbott honor its warranty under the Contract, Agostinelli contracted with B and N Dozing and Bobcat Service (B and N), on or about March 23, 1993, to make the necessary repairs to the system. He paid B and N $670.00 to make these repairs. There have not been any problems with the system since it was repaired by B and N.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order: (1) finding Respondent guilty of the violations of Chapter 489, Florida Statutes, alleged in Counts I and II of the Amended Administrative Complaint, and (2) fining Respondent $1,100.00 for having committed these violations and requiring him to pay $1,025.00 to Agostinelli in restitution and to reimburse the Department for all reasonable costs associated with the Department's investigation and prosecution of the charges set forth in the Amended Administrative Complaint. DONE AND ENTERED this 16th day of July, 1997, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 16th day of July, 1997.
The Issue Whether respondent's license as a certified general contractor should he disciplined on charges of abandonment, diversion, violation of applicable building codes, improper qualification of companies under whose name he was conducting business, and continued misconduct in the practice of contracting, in violation of Chapter 489, Part I, Florida Statutes.
Findings Of Fact At all times relevant to the charges, respondent was a certified general contractor holding license no. CG C015937. He now resides at 1210 Old Boynton Road, Apartment 113, Boynton Beach, Florida. (Testimony of respondent; P-1) I. Count I: Abandonment of a Construction Project On or about October 30, 1980, respondent, d/b/a P & R Construction, a subsidiary of New Visions, Inc., entered into a contract with Mr. and Mrs. A. J. Ervin to construct a bathroom addition to their residence located at 1119 Lake Terrace, No. 101, Boynton Beach, Florida, for the sum of $4,500. (Testimony of respondent) Respondent was the contractor of record for this project. He pulled the required building permit, hired the subcontractors, and supervised the project. Robert Popiel, owner of New Vision, Inc., kept the company's books, paid bills, and handled sales. (Testimony of respondent; P-9) In June of 1981, respondent abandoned the construction project, leaving it uncompleted. Neither the bathroom door nor the shower door had been installed; exterior stucco beneath the bathroom window (which had been removed to repair a leak) had not been replaced; and the bathroom floor was unfinished. Final inspections had not been made and a certificate of occupancy had not been obtained. During the next four or five months, Mr. Ervin tried, unsuccessfully, to locate respondent and persuade him to return and complete the project. Eventually, Mr. Ervin hired another contractor and paid him $500 to complete the unfinished work. (Testimony of Ervin, respondent) When respondent abandoned the project, the plumbing (Archie's Plumbing), roofing (Modern Roofing), and electrical (Jerry's Electric) subcontractors, who had performed work and furnished materials for the project, were left unpaid. The improvements were thus subject to the placement of contractors' liens. The subcontractors were owed a total of $2,107.21, although they eventually settled with the owner for a total payment of $1,100. (Testimony of Ervin, Yedvarb, Grummer) Moreover, when respondent abandoned the project, there were leaks in the roof, where the bathroom joined the existing structure, and leaks below the bathroom window. (Testimony of Ervin) During this time, respondent was undergoing a divorce and moving from one motel to another. Mr. Ervin tried repeatedly to contact him, but respondent neither returned his phone calls nor answered his messages. Despite the best efforts of Mr. Ervin, respondent was nowhere to be found. II. Count II: Diversion of Monies Respondent did not receive a fixed salary from New Visions, Inc. Periodically, he would be paid by simply withdrawing funds from the company. During the time in question, New Vision, Inc., had four construction projects underway and respondent withdrew approximately $500. (Testimony of respondent, Popiel) The various New Vision, Inc., projects, including the Ervin project, were apparently underbid. Subcontractors were paid by Mr. Popiel out of incoming funds. But both he and respondent realized that the incoming money under the various contracts would be insufficient to pay all subcontractors for work performed. (Testimony of respondent, Popiel) Respondent was aware that the Ervin project was "running close" and that it "was probably running over" the contract price. (TR-53) It has not been shown that respondent diverted funds received for the completion of the Ervin project and that, as a result of such diversion, he was unable to complete the work. The subcontractors were not paid because the Ervin project incurred costs which exceeded the contract price. And, since New Vision, Inc., was experiencing similar difficulties elsewhere, it had insufficient funds to cover the excess costs of the Ervin project. (Testimony of respondent, Popiel; P-9, p. 32) III. Count III: Deliberate Violation of Building Code The Department alleges that respondent violated the applicable building code (Section 105.1, City of Boynton Beach Code of Ordinances) by covering the roof before the proper city inspection had been made. Pursuant to this code, it was respondent's duty to order the flat roof sheathing inspection; but it was the roofing contractor's responsibility to obtain the "tin tag" inspection before covering the roof. This is an inspection which is required to ensure that the base sheet or black felt is properly installed. Even though it was the roofing contractor's duty to call for such an inspection, the general contractor remained responsible for the entire project. (Testimony of Howell, respondent) In this case, respondent called for the sheathing inspection but the roofing contractor laid the felt and covered the roof without first calling for the requisite tin tag inspection. The building code violation was thus primarily the fault of the roofing contractor and only secondarily, or derivatively, the fault of the respondent. No evidence was presented to show that respondent approved, or knew, in advance, of the roofing contractor's failure to call for the tin tag inspection. Respondent's failure to ensure that the roofing contractor called for the required inspection cannot, without more, support a conclusion that respondent knowingly and deliberately violated an applicable building code. (Testimony of Howell, respondent) IV. Count IV: Acting in a Capacity of a Contractor Under a Name Other Than as Certified Respondent, d/b/a P & R Construction, a subsidiary of New Vision, Inc., contracted for and constructed a bathroom addition to the Ervin residence. However, neither company was qualified with the Construction Industry Licensing Board. V. Count V: Misconduct in the Practice of Contracting In this count, the Department alleges that, by virtue of the misconduct alleged in Counts I through IV, respondent is guilty of "misconduct in the practice of contracting." No additional acts of respondent were complained of or alleged. It follows that respondent can be found guilty of this charge only to the extent he is found guilty of the charges contained in Counts I through IV. VI. Mitigation There is no evidence that respondent has ever before been the subject of a disciplinary proceeding brought by the Construction Industry Licensing Board. He has worked in construction most of his life and this is the only business he knows. It is his livelihood, and, in his words, the only way "I can make a decent living." (TR-134) He is 59 years old. His goals are modest and tempered by experience: I'm just a small, small operator, and I work to make a living. I'm not going to get rich. I'm too old to get rich. Those things, thirty years ago I had that in mind. TR-134. He now realizes, better than before, the value of his contractor's license. His misconduct in connection with the Ervin project occurred when he was in the midst of a divorce and a personal ordeal. In his own words: And I bounced from place to place. I bounced off the bottom. I was living down at a flea bitten motel here. The roaches were so thick that I never thought I'd survive it. So now I guess--now I got married last September and I guess I'm getting to appreciate things which I took for granted before. I'm just getting so I appreciate them now and what-- you know, what I got and what I can do. TR-136 He admits that he did not fulfill his responsibilities from the Ervin project and understands better the hardships which his conduct imposed on Mr. Ervin.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Construction Industry Licensing Board impose a $1,000 fine against respondent for violating Section 489.129(1)(g), (k) , and (m), Florida Statutes. DONE and ENTERED this 7th day of November, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. 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 7th day of November, 1983.
The Issue Respondent was charged in a November 19, 1998, Administrative Complaint, filed December 7, 1998, with ten counts of professional violations. The statutory violations alleged are: Count I: Section 489.129(1)(a), Florida Statutes (1995), obtaining a certificate or registration as a Certified Roofing Contractor by fraud or misrepresentation; Count II: Section 489.129(1)(h)2, Florida Statutes (1995), by committing mismanagement or misconduct in the practice of contracting that caused financial harm to a customer; Count III: Section 489.129(1)(k), Florida Statutes (1995), by abandoning a construction project in which the contractor is engaged or under contract as a contractor; Count IV: Section 489.129(1)(m), Florida Statutes (1995), by committing fraud or deceit in the practice of contracting; Count V: Section 489.129(1)(n), Florida Statutes (1995), by committing incompetency or misconduct in the practice of contracting; Count VI: Section 489.129(1)(p), Florida Statutes (1995), by proceeding on a job without obtaining the applicable local building department plumbing permits and inspection; Count VII: Section 489.129(1)(p), Florida Statutes (1995), by proceeding on a job without obtaining the applicable local building department electrical permits and inspection; Count VIII: Section 489.129(1)(p), Florida Statutes (1995), by proceeding on a job without obtaining the applicable local building department framing, insulation, and/or final inspections; Count IX: Section 489.129(1)(o), Florida Statutes (1995), by committing gross negligence, repeated negligence, or negligence resulting in a significant danger to life or property; and Count X: Section 389.129(1)(c), Florida Statutes (1995), by violating any provision of Chapter 455, to wit, Section 455.227(1)(o), practicing beyond the scope permitted by law and performing professional responsibilities the licensee knows, or has reason to know, he is not competent to perform.
Findings Of Fact At all times material to the allegations of the Administrative Complaint, Respondent was a Certified Residential Contractor, having been issued license number CR C057235, by the Florida Construction Industry Licensing Board. At the time of hearing, Respondent's license had been suspended. Since January 27, 1998, Respondent also has been a Certified Roofing Contractor, having been issued license number CC C057649, by the Florida Construction Industry Licensing Board. At no time material was Respondent licensed, registered, or certified to perform electrical work. At no time material was Respondent licensed, registered, or certified to perform plumbing work. On or about February 27, 1997, Respondent entered into a $39,050.40, contract with Reuben M. Adams to restore and repair the Adamses' home at 7037 Mark Street in Jacksonville, Florida, which had been destroyed by fire on February 1, 1997. The work contracted-for included complete restoration of the living room, kitchen, two hallways, two bathrooms, four bedrooms, a laundry room, and a dining room; restoration of heat and air conditioning; and a virtually new roof. Among the electrical and plumbing restoration involved, Respondent specifically agreed to install a ceiling fan and a light kit in the living room; install a sink and faucet for the sink and a ceiling light fixture and vented range hood in the kitchen; install a ceiling light fixture in a hallway; remove floor mounted with tank commode and reinstall a floor mounted with tank commode; replace commode sink, remove and reinstall sink, install new faucet for the sink, install shower head and faucet set for bathtub, install bathroom exhaust fan and light kit for ceiling fan in the bathroom; install ceiling fan and light kit in bedrooms; replace faucet for sink and provide a shower head, faucet set and install a ceiling light fixture in the second bathroom; install a ceiling fan and light kit in the third and fourth bedrooms and dining room and hallway; install 960 square foot electrical and provide temporary utilities for dimensions of 40 feet by 24 feet by eight feet. These types of activities require electrical and plumbing licensure. On or about April 15, 1997, Respondent received and endorsed the first draw check of $22,245.23 from the Adamses. In May 1997, Respondent's site supervisor, Aaron Mitchell, requested that Mr. Adams give him $1500.00, cash to buy materials because Respondent was out of town and Mitchell could not perform the work without the materials. Mr. Adams paid this amount in cash to Mr. Mitchell but was never reimbursed by either Mr. Mitchell or Respondent. In early June 1997, the Adamses became concerned because little work had been completed on the restoration of their home. The house had been cleaned out and gutted and the slab for the room addition had been poured. Mr. Adams contacted Respondent several times about the lack of work being performed on the home. Between mid-June and early July 1997, Respondent completed the framing and installed the roof. On or about July 24, 1997, the Adamses released the second draw of $11,122.62 to Respondent, and Respondent deposited the money into his bank account. In approximately August 1997, Respondent ran electrical wire in the roof, installed electrical outlets in the walls, and completed the electrical work, including installing electrical outlets in the walls. Mr. Adams personally observed Respondent and his workers performing electrical wiring. The electrical work performed by Respondent required licensure as an electrical contractor, that a permit be obtained prior to the electrical work being performed, and that inspections of the electrical work be made before the walls were sealed up over the electrical work. Respondent failed to obtain a permit or to have an electrical inspection performed. Respondent completed the electrical work and covered up the electrical work with the walls without an inspection being performed. Respondent performed plumbing work on the Adamses' home, although he held no plumbing license. Respondent failed to pull a permit for the plumbing work and failed to call for the required inspections. Ultimately, he covered up the plumbing work with the walls without an inspection having been performed. The City of Jacksonville "red-tagged" the home for this reason. The effect of "red-tagging" was to prevent occupancy until compliance with the building code was assured. Such assurance required inspection, which in turn, ultimately required that at least the interior walls be taken down. Respondent also never obtained a framing, insulation or final inspection on the project. In October 1997, the Adamses filed complaints against the Respondent with the State Attorney's Office and the Department of Business and Professional Regulation (Case No. 97-18544). On or about October 31, 1997, Respondent signed a Letter of Intent with Mr. and Mrs. Adams agreeing to have their home ready for occupancy no later than December 1, 1997, and promising that Respondent would be responsible for all permits and inspections necessary for the project to be considered complete. At that time, Respondent apologized for all of the delays, the decline in their relationship, and the stress he had caused. Respondent and Mrs. Adams prayed together, and Respondent promised that from that day forward, the Adamses would see progress on their home every day until it was finished. Respondent did not abide by the requirements set forth in the Letter of Intent. Specifically, he never obtained the required permits and inspections. Mr. Adams confronted Respondent about the permits and the inspections, and the Respondent indicated that he had the permits at his office. He assured Mr. Adams that he was taking care of the electrical permit. In December 1997, Respondent requested that Mr. and Mrs. Adams drop their complaint with Petitioner Department of Business and Professional Regulation because he had applied for his roofing license and the complaint was holding up that roofing license being granted. Respondent told the Adamses that if they would drop their complaint, he could obtain his roofing license, which would allow him to generate money to complete their project. Around mid-January 1998, Respondent requested that the Adamses release the final construction draw and drop their complaints with Petitioner and the State Attorney. Respondent stated that if they paid him the final draw of $5,682.55, he would work every day on their project and have it ready for them to move in no later than February 4, 1998. The Adamses paid Respondent the remaining construction draw of $5,682.55, and withdrew their complaint with Petitioner. Respondent accepted the final draw on or about January 27, 1998. Respondent obtained his roofing license after the Adamses withdrew their complaint with Petitioner. After receiving the final construction draw, Respondent did minimal work on the project in January. On or about February 23, 1998, the Adamses reinstated their complaint with Petitioner against Respondent, resulting in the instant case. Respondent has not returned to work on the Adamses' project since March 1998. As of March 1998, Respondent had been paid the full contract price, but the home remained uninhabitable. The workmanship was substandard and the project was less than 100 percent complete. As a result of Respondent's unlicensed electrical and plumbing work on the Adamses' home and his covering-up his work with the walls, the Adamses were unable to obtain an inspection without the walls being taken down. This in turn, required that the walls be rebuilt. In addition to the money paid to Respondent for work improperly done or not done at all, the Adamses had to pay another builder $14,900.00, to remove the walls, re-install the electrical wiring and plumbing which had been completed or partially completed by the Respondent, and complete the renovation. Testimony of Roy Brand, Raymond Smith, and Douglas Arnold supports a finding that Respondent committed repeated negligence and created a dangerous condition when he performed electrical and plumbing work which he was not licensed to do and which he did not have the knowledge to perform. Particularly upon the testimony of Mr. Brand, it is clear that three types of very serious electrical installation errors or omissions had been performed once or more than once by Respondent. At least one of these would have been sufficient, under certain circumstances, to burn down the entire house. By installing electrical universal polyethylene boxes and using them as junction boxes, a purpose for which they were not designed, Respondent created what Mr. Brand described as "short of a 'Molotov Cocktail' that would burn your house down just about as quick." Likewise, one serious error occurred in the type of glue Respondent used on plumbing pipe throughout the home. Mr. Brand gave credible expert evidence that the construction undertaken by Respondent was undertaken for a reasonable amount of $39,050.40, and that a reasonable time to construct the entire contract would have been two and one half to three months after permitting. In addition to the money Mr. and Mrs. Adams paid to Respondent and the substitute contractor, Douglas Arnold, they incurred additional expenses and spent additional time out of their home as a result of Respondent's shoddy workmanship and unlicensed electrical and plumbing work. The Adamses also had to take out a second mortgage of $18,800.00 at 16.3 percent interest for 15 years in order to finance the repairs necessitated by Respondent's substandard and incompetent work, so that they could move back into their home. Mr. and Mrs. Adams and their child had to live somewhere during construction. Their insurance company paid them $750.00, for each of three months. However, they were unable to move back into their home from August 1997 until November 1998, as a direct result of Respondent's incompetence and misconduct.3 During this fifteen-month period, the Adamses paid $300.00 rent per month to Mrs. Adams' mother, plus an additional $100.00 per month for water and utilities, and storage fees of $119.00 per month to a storage facility for keeping their items which had not been destroyed by the fire The Adamses also incurred an additional expense of $1,500.00, for an air conditioning unit which Respondent was to have purchased under their contract with him.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board enter a final order that: Finds Respondent guilty of one violation of each of the following: Sections 489.129(1)(h)(2); (1)(k); (1)(m); (1)(n); (1)(p); (1)(o); and (1)(c), Florida Statutes (1995); Revokes Respondent's General Contractor's and Roofing Contractor's licenses; Imposes a total fine for all violations, in the amount of $30,000.00; and Requires Respondent to pay restitution to Mr. and Mrs. Adams in the amount of $49,835.00. DONE AND ENTERED this 1st day of May, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 1st day of May, 2000.
Findings Of Fact At all material times, the Respondent Morris Marder was a registered building contractor, having been issued license number RB 0004509. On March 4, 1980, the Respondent Marder contracted with Erwin and Joan Ravich to convert the garage of the Ravich home into a family room. The March 4, 1980 contract between the Raviches and Marder, who was also doing business as "Home Remodeler Morris Marder", 1/ was signed by the Raviches and accepted by M. Marder. An undated addendum to the contract, which was prepared by the Raviches' attorney, was signed by the Raviches and Dan Rossman, a salesman and contract estimator for the Respondent Marder. However, no evidence was presented that the Respondent Marder had knowledge of or signed the addendum, which required completion of the project by an unspecified date. The execution of the addendum delayed beginning construction on the project until May of 1980. The Respondent Marder subcontracted the performance of work on the Ravich job to Ken Nieset, who with his brother, Steve, a licensed general contractor, was doing business as Brothers Two Construction. During the course of the project, Nieset received three of the four payments made under the contract directly from the Raviches. Although Nieset worked for the Respondent previously, he was neither Marder's foreman nor employee. When additional subcontractors were required, they were hired for the Ravich job by Nieset. The Raviches paid a total of $9,190 under the contract. The first payment of $1,190 was made directly to Home Remodeler on May 3, 1980, the approximate date that work on the project actually began. A partial release of lien was furnished by Morris Marder to Erwin Ravich on May 6, 1980 based on the first payment. The second payment was made by Erwin Ravich on June 20, 1980 for $2,500. This check was made payable to Ken Nieset per authorization of lien furnished on June 20, 1980, in connection with the second payment. 2/ On June 27, 1980 and July 11, 1980, checks were issued to Ken Nieset by the Raviches for $3,500 and $2,000, respectively. The Raviches' received a release of lien for $2,000 from Nieset, but did not obtain a release of lien for the $3,500 payment. The release of lien for the $2,000 payment executed by Nieset did not involve Home Remodeler or the Respondent Marder. After receiving payments totaling $5,500 directly from the Raviches, Nieset abandoned the project. During the course of the Ravich job, the Respondent Marder employed Jorge Gamez, a draftsman/supervisor, who he believed was supervising the Ravich job. However, Gamez' involvement with the job was limited to drawing the plans and did not include supervising construction, since he was not a licensed general contractor. King Cole Plumbing, a state licensed contractor, subcontracted with Nieset to install the plumbing and septic tank at the job site. When King Cole left the job, the rough plumbing was installed and all that remained on the job was interior finishing. The septic tank with an appropriate cover was in place and all work performed by King Cole had passed inspection. The septic tank cover originally agreed to by the parties was required to be changed to a heavier type when the Raviches altered their plans and decided to continue using their driveway. This change resulted in a $512 charge from Sun Gold Industries, who supplied the new cover. Additionally, the original contract was modified to add higher grade plumbing fixtures, lighting fixtures, and tile. In August, 1980, the Respondent Marder entered Saint Frances Hospital for treatment of phlebitis. At the same time, Rossman, Marder's employee, left for vacation in California for seven to eight weeks. As a consequence, the Ravich job was delayed and an unauthorized payment of $2,500 to Nieset was made without securing the approval of the Respondent Marder or Rossman. The Respondent Marder calculated that approximately $2,000 was due as the balance of the job and an added $1,500 was due for extras to the contract. Faced with a substantial loss, the Respondent Marder contacted the Raviches and their attorney in August, 1980, and offered to finish the job and pay for the specified extras in return for Ravich placing $4,500 in escrow with his attorney. Ravich's attorney declined the Respondent's offer and ordered him off the job site. Subsequently, Dade County cancelled the Respondent's building permits, which effectively prohibited him from completing the work at the site. Subsequently, a lien was filed against the Ravich job by King Cole Plumbing for nonpayment of monies due from Ken Nieset. The lien was determined to have been filed in violation of Florida's Mechanics Lien Law and was voluntarily removed. The work performed by the Respondent and his subcontractors prior to being ordered off the job was satisfactory and passed periodic inspection by the Dade County Building Department. The charges in this administrative proceeding formed the basis of action taken against the Respondent by the Dade County Division of Construction Trades Qualifying Board on September 11, 1981, which resulted in revocation of the Respondent's certificate as a subgeneral building contractor in Dade County. The Respondent Marder has been in the construction business since 1954 and licensed as a general contractor in Florida since 1968. Other than the instant case, the Respondent has never been forced off a job. He has been in business in South Florida for many years and has been involved in thousands of construction jobs.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Petitioner Construction Industry Licensing Board enter a Final Order suspending the Respondent's license for a period of six (6) months. DONE and ENTERED this 27th day of September, 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 27th day of September, 1983.
The Issue Whether petitioner should take disciplinary action against respondent for the reason alleged in the administrative complaint?
Findings Of Fact Respondent acknowledges the accuracy of the allegations in the first seven paragraphs of the administrative complaint, including the allegation that he holds a certified residential contractor's license, No. CR C027268. He has been licensed in Florida continuously since October of 1983. Petitioner's Exhibit No. 1. On August 14, 1986, respondent Stratton, doing business as Stratton Construction Company, executed a written contract with Aaron Lee and Valerie Patrice Cobb to renovate their home at 5017 Pearl Street in Jacksonville, Florida. He had actually begun work nine days earlier. The contract contemplated installation of a pier under an unsupported sill end, replacement of 17 windows and two doors, hanging a screen door and a storm door, shortening and capping the chimney, adding a roof over the front stoop, reshingling the entire roof, painting the outside of the house, and putting hose bibbs in the front and the rear of the house. In addition, the contract called for extensive work inside the house, replacement of sheetrock, installation of insulation, congoleum, carpeting, paneling, cabinets, new kitchen and bedroom appliances, a new central heating system, and numerous other improvements and repairs. The contract price totalled $18,600, including $2,071 for a utility room. ("Remove back porch and drop flooring to allow enough height to construct 8 foot by 8 foot utility room ... inside walls unfinished ...") Petitioner's Exhibit No. 1. Exclusive of plumbing, electrical, heating, and the utility room, the value of the repairs and renovations exceeded $200.00. As "Stratton Const." respondent contracted with Williams Plumbing Co., Inc. (Williams) on September 8, 1986, to re-pipe, install a working machine drain and furnish a water closet. Respondent's Exhibit No. 3. Respondent or Williams on his behalf obtained a plumbing permit from the City of Jacksonville, No. 25997, at or about the time Williams began work, but Williams "left town" (T.43) before the project was inspected by the City. On October 2, 1986, respondent contracted with Wayne Conn Plumbing (Conn) to do additional plumbing work. In order to obtain a plumbing permit for the additional work, respondent cancelled the first permit. (T.34) The same day he signed the contract with Conn, respondent obtained a second plumbing permit, No. 28215. Respondent's Exhibit No. 1. Conn finished the plumbing work, and it passed inspection by the City. Earlier, on September 5, 1986, respondent or a subcontractor obtained a City permit authorizing electrical work at 5017 Pearl Street. On October 8, 1986, respondent or a subcontractor obtained a mechanical permit for the house's new heating system. In due course, the work authorized by these permits passed City inspections. Petitioner's Exhibit No. 7. Before he began work on the Cobb's house, Mr. Stratton had only built new homes in Florida. He was unaware of any requirement to obtain a permit to effect repairs to the interior of a house other than those he did in fact obtain. He was aware, however, of the need to secure a building permit for construction of the utility room, involving, as it did, alterations to the foundation. Nevertheless, he only applied for this permit on June 11, 1987, long after the work had been completed, and after he had become embroiled in a dispute with the Cobbs. Jacksonville's Building Code, Part 4, makes it unlawful to begin work to contract, enlarge, alter, repair, move, remove or demolish a building or structure, or a part thereof ... without having first filed an application with and obtained a permit therefor from the Building official, except that, for general maintenance or repairs, not involving replacement of components specifically requiring permits, which do not change the occupancy or affect the electrical, plumbing or mechanical systems, the value of which does not exceed two hundred dollars ... no permit shall be required ... Petitioner's Exhibit No. 4, p. 5. In beginning work without a permit to remove the back porch or to replace it with a utility room or to effect general repairs the value of which exceeded two hundred dollars, respondent violated applicable provisions of a local building code. The evidence suggested that the requirement that contractors obtain permits to effect general repairs with a value in excess of two hundred dollars is more honored in the breach than in the observance. In fact, respondent testified that somebody told him no permit is needed "if you don't change the size of the building," (T.46) i.e., alter the foundation. The Building Code also calls for mandatory inspections of foundations and framing as they are completed, but a building inspector testified that inspection of pre-formed concrete piers like those on which the utility room stands would have been foregone. Because the addition stood on (new) piers and because its interior walls remained unfinished, it was possible for the City to inspect both the foundation and the framing, even after the work was finished. John Carlton Sturdevant, a field inspector for Jacksonville's Building and Zoning Department, saw nothing wrong with the framing, nor was there evidence of any problem with the foundation.
