Findings Of Fact At all times material to this case, the Respondent, Joseph Lawton, was licensed as a registered roofing contractor in the State of Florida, holding license number RC 0052537. At all times material to this case, the Respondent was the qualifying agent for All Florida Systems located in Fort Lauderdale, Florida. The Notice of Hearing was mailed to Respondent at his last known address. Ronald Klein lives at 8245 Northwest Ninety-fifth Avenue, Tamarac, Florida. A portion of the roof on Mr. Klein's residence is flat and a portion is pitched. In the middle of August, 1987, Respondent met with Mr. Klein at the Klein residence to discuss Mr. Klein's roofing needs. Respondent told Mr. Klein during their meeting that the flat portion of his roof needed to be re-roofed and quoted a price for the work that Mr. Klein found acceptable. This was the only meeting between Mr. Klein and Respondent and was the only time Mr. Klein has seen Respondent. There was no written contract between Respondent and Mr. Klein because Respondent did not mail to Mr. Klein a written contract as he had agreed to do. On Sunday, August 30, 1987, Earl Batten, one of All Florida System's workers, re-roofed the flat portion of Mr. Klein's roof. Mr. Klein paid Mr. Batten $1,575.00 for the work pursuant to the verbal agreement between Respondent and Mr. Klein. Mr. Klein made his check payable to Earl Batten because Respondent had told Mr. Klein to pay his worker when the work was completed. Mr. Klein noted on the check that the check was in payment of work done by All Florida Systems. Respondent did not obtain the permits required by local law for the work done on the Klein residence. Because there was no agreement to the contrary, it would have been Respondent's responsibility to obtain the permits required by local law. Respondent did not obtain the inspections required by local law for the work done on the Klein residence. Because there was no agreement to the contrary, it would have been Respondent's responsibility to obtain the inspections required by local law. Mr. Klein's roof began leaking after Mr. Batten completed his work on August 30, 1987. In response to three weeks of repeated telephone calls from Mr. Klein, Respondent sent one of his supervisors to inspect Mr. Klein's roof. The supervisor told Mr. Klein that the work had to be redone because the work on the flat roof had not been properly tied into the remainder of the roofing system. Mr. Klein was further advised by the supervisor that Respondent would be in contact with Mr. Klein. After Respondent failed to respond further, Mr. Klein hired a second roofing contractor who corrected the deficient work in October of 1987 at a price of $1,377.00. Between the time Mr. Batten worked on his roof and the time the second contractor corrected the deficiencies, Mr. Klein sustained damages to his residence which required expenditures of over $1,500.00 to repair. Respondent was previously disciplined by the Construction Industry Licensing Board in Case No. 90265.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent guilty of having violated Sections 489.129(1)(d) and (m), Florida Statutes, and which imposes an administrative fine against Respondent in the amount of $5,000.00 and places Respondent on probation for a period of one year. DONE and ENTERED this 19th day of May, 1989, in Tallahassee, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1989. APPENDIX The findings of fact contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 18, 19, 20, 22 are adopted in substance; insofar as material. The findings of fact contained in paragraphs 16, 17, 21 of Petitioner's proposed findings of fact are subordinate. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph Lawton 1000 South Ocean Boulevard Apartment 6C Pompano Beach, Florida 33062 Kenneth E. Easley, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
Findings Of Fact In July, 1986, Respondent is and at all material times has been licensed as a certified roofing contractor in the State of Florida. He holds license number CC C026475. He is the qualifying agent for B & P Roofing, Inc. In July, 1986, B & P Roofing, Inc. performed a pre- closing roof inspection of the 1029 McKean residence at the request of the real estate broker handling the sale. The report, dated July 31, 1986, estimated that it would cost $1400 to reroof the flat roof areas and replace the skylights and $300 to replace some cracked tiles on the main, sloped roof. Noting that it was impossible to examine the roof membrane under the tiles, the report concludes that the repairs should be minimal. Chris and Heather Peterson purchased the 1029 McKean residence on August 9, 1986. In late December, 1986, or early January, 1987, the Petersons contacted B & P Roofing, Inc. and requested that they perform the roofing repairs identified in their earlier estimate. The parties agreed that B & P Roofing, Inc. would also replace two skylights for an additional $300. By Final Order filed on April 22, 1983, Petitioner reprimanded Respondent, as qualifying agent for B & P Roofing, Inc., for failing to obtain a permit and inspection in connection with a residential roof installation. By Final Order filed January 23, 1984, Petitioner imposed an administrative fine of $500 against Respondent, as qualifying agent for B & P Roofing, Inc., for failure to obtain building permits on three different roofing jobs. As a result of these disciplinary actions, B & P Roofing, Inc. adopted a procedure by which each job could be readily checked in the office as to whether a permit had been obtained. A chart is posted in the office and each job is marked as to whether it requires a permit and, if so, whether a permit has been issued. After the Peterson job had been obtained but before work had begun, Richard Francis Xavier McFadden, the president of B & P Roofing, Inc. noticed that the Peterson job had been posted in the office, but the "permit" column had not been checked. He asked Patricia McFadden, his wife who was performing clerical work in the office, why no permit was required for the job. She told him that she had been told by someone at the Winter Park Building Department that one was not required. Mr. McFadden immediately telephoned the Winter Park Building Department to confirm that no permit would be required for the job. He spoke with Karen Clayton, who is the secretary of the Winter Park Building and Zoning Department and handles the issuance of permits, which may be ordered by telephone. Using a Roof Work Sheet dated January 7, 1987, Mr. McFadden described the job to Ms. Clayton. Ms. Clayton placed her hand over the telephone, checked with a nearby building inspector, and informed Mr. McFadden that no permit would be necessary. In fact, the scope of the job required the issuance of a building permit. Ms. Clayton testified that she did not understand at the time that she spoke with Mr. McFadden that an existing roof was being torn off. She also testified that she had not previously heard the phrase, ??90 pound reroofing felt,!? which Mr. McFadden used to describe the job. It is apparent that Mr. McFadden accurately described the job, but Ms. Clayton misunderstood the description and gave him the wrong advice. Without a permit, B & P Roofing, Inc. began the work on or about January 17, 1987, and completed the work in late January or early February, 1987. No inspection of the job was performed by the Winter Park Building Department during the job or immediately after its completion. After Petitioner commenced its investigation, B & P Roofing, Inc., at the investigator's suggestion, obtained a permit on June 30, 1987, and the job passed a final inspection performed on that date or shortly thereafter. Respondent was never aware of the Peterson job until after it had been completed.
Recommendation In view of the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint. ENTERED this 20th day of May, 1988, in Tallahassee, Florida. ROBERT E. MEALE 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 20th day of May, 1988. APPENDIX Treatment Accorded Petitioner's Findings Adopted, except that the last two sentences are rejected as unnecessary. Adopted. Rejected as irrelevant, except that the last sentence is rejected as against the greater weight of the evidence. Poor workmanship or improper materials is generally not probative of the issues whether Respondent deliberately or through improper supervision failed to obtain a permit or inspection. The only situation in which poor workman- ship or improper materials might be relevant would be if the workmanship or material so deviated from the norm that Respondent and the employees of B & P Roofing, Inc. knew that the job could never pass an inspection. The evidence failed to prove such a deviation in this case. The testimony of Julian Garcia, Petitioner's expert witness, tended to prove such a deviation, but ultimately failed because of the inadequate familiarity of the wit- ness with the specifics of the Peterson job, such as the degree of scope present in the flat areas of the roof and the specific roofing material used in these areas. Adopted in substance. Rejected as unnecessary. First sentence is adopted. Second sentence, although strictly speaking is true, is rejected to the extent that it implies that no inspection took place. Such an implication is against the greater weight of the evi- dence. Ms. Clayton's testimony explains the omission from the record. First, the building inspector whom Rich McFadden testified performed the inspection died shortly thereafter. Second, the inspector probably had no opportunity to record it before the file was closed because the inspection likely took place on the same day or within days of the closing of the file. Ms. Clayton's candid testimony in this regard offers little basis for inferring that the absence of a record entry means no inspection took place, especially in view of the positive testimony of Mr. McFadden that he accom- panied the inspector to the house for the final inspection. Adopted, except that two telephone contacts took place before the work began. Rejected as unnecessary and against the greater weight of the evidence. Mr. and Mrs. McFadden testified in detail to the circumstances surrounding why no permit was obtained. Against such detailed testimony, Respondent's questionnaire response is entitled to little weight. Adopted. Rejected as against the greater weight of the evidence. There was an insufficient predicate for much of Mr. Garcia's testimony for the reasons set forth in paragraph 3 above. 11-12. Adopted. COPIES FURNISHED: David L. Swanson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 John Sunner, Esquire Post Office Box 1717 Casselberry, Florida 32707 Fred Seely Executive Director Construction Industry Licensing Post Office Box 2 Jacksonville, Florida 32201 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue is whether Respondent's license as a certified residential contractor should be disciplined for the reasons given in the Administrative Complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: When the events herein occurred, Respondent, Brent Somers Graham, was licensed as a certified residential contractor having been issued license no. CR C056809 by Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Board). Respondent was the licensed qualifying agent for G C Construction, Inc., whose business address is not of record. At the present time, Respondent's license is in a delinquent status. In late 1995, a major hurricane struck the Panhandle section of Florida and damaged the home of Katherine M. Cook, who lived at 741 Miracle Strip, Mary Esther, in Okaloosa County, Florida. Among other things, the hurricane lifted an 78-foot porch off of her home, and a tree fell through its roof. On January 18, 1996, Cook accepted a proposal by Respondent to repair the damage to her home for $9,000.00. A description of the work to be performed by Repondent is found on Petitioner's Exhibit 2, and it includes replacing a 78-foot by 12-foot screen porch and its roof, and other related work. Cook paid Respondent $2,700.00 as a down payment on the job on January 19, 1996. On February 8, 1996, Respondent made application for a building permit with the City of Mary Esther (City). After receiving a permit, he then commenced to work on the repairs, mostly by himself but occasionally with the assistance of a few other helpers. When the job was supposedly completed in March 1996, Cook paid Respondent another $6,200.00, or a total of $8,900.00, pursuant to the parties' agreement. Within a short time, Cook noticed that the porch roof was sagging and falling in. Efforts to reach Respondent were futile since he had disconnected his telephone and apparently left the area. She then asked that an inspector for the City, Neil Sasnett, to make an inspection of her home. Sasnett quickly discovered that Respondent had never called for an inspection by the City, although the City Code required that he do so and Cook had paid for one. This omission constituted a violation of the local building code. It can be inferred from the evidence that, given the poor workmanship on the project, as described below, the violation was intentional, especially since a licensed contractor would be expected to be aware of this requirement. Sasnett found numerous deficiencies in the work just completed by Respondent, including rafters that were notched to less than 4 inches about 3 feet inside the load bearing wall, a header on the outside bearing wall that was jointed in between the upright posts, and roofing metal panels improperly sealed. These deficiencies resulted in an unsafe roof in an uplift condition and one that would be dangerous to walk on. Because Cook lived on the Gulf of Mexico, and her home was subject to windy conditions, these deficiencies were especially egregious. All of the foregoing deficiencies constituted violations of the local building code. Cook was forced to hire a second contractor to repair the porch since Respondent had left the area. For this additional work, Cook paid an additional $15,975.00, including $3,000.00 to tear out the faulty work previously performed by Respondent. At hearing, the second contractor described Respondent's work as "very poor" and "substandard." Given this consideration, and the deficiencies described by the City's inspector, it is found that the faulty work constituted incompetency in the practice of contracting on the part of Respondent. Throughout this process, Respondent refused to contact Cook or return to her home to make the needed repairs. After the complaint was issued by the Board, however, he telephoned Cook. Although he then offered to repair the porch, which had been repaired by another contractor some 18 months earlier, his main concern was that his license might be in jeopardy because of her complaint. There is no record of Respondent having been previously disciplined by the Board. Therefore, it is fair to infer that these offenses were the first committed by Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board enter a Final Order finding that Respondent is guilty of the violations described in Counts I through IV of the Administrative Complaint. For those violations, it is recommended that Respondent's license be revoked, and that he be required to pay Katherine M. Cook $11,900.00 as restitution for her costs incurred in her dealings with Respondent. DONE AND ENTERED this 9th day of February, 1999, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 February, 1999. COPIES FURNISHED: John O. Williams, Esquire Maureen L. Holz, Esquire 355 North Monroe Street Tallahassee, Florida 32301 Brent Somers Graham 6156 White Oak Drive Flowery Brand, Georgia 30542 Rodney Hurst, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The Respondent is a registered building contractor having been issued license No. RB0032203. At all times material to this proceeding, he was the president and qualifying officer of RBR Construction Corporation. The Petitioner is an agency of the State of Florida charged with the licensing, regulation of licensure status and appropriate practice standards as pertinent hereto of construction contractors in the State of Florida. On April 11, 1979, the Respondent, doing business as RBR Construction Corporation, entered into a contract with Kathleen R. and George K. Beebe, pursuant to which he was to construct a duplex for the Beebes for a net contracted amount of $47,500. The Respondent engaged in the construction of the duplex until it was approximately 86 percent complete and then ceased all work on the project. At the time the Respondent ceased work on it, he had already received $44,290 of the contracted price. During the course of the construction, at various times, the Respondent requested and received payments or draws from the First Federal Savings and Loan Association of Broward County in the following amounts for the following purposes: Approximately $1,500 for electrical work; Approximately $1,744.32 for mill- work (cabinetry, door trim, etc.); Approximately $1,331 for installation of insulation in the duplex. The Respondent was established to have failed to pay these sums to the appropriate subcontractors who did the work. On or about March 7, 1980, the Respondent signed an affidavit required to obtain a draw payment from First Federal of Broward County. The Respondent stated in the affidavit that the millwork and trim for the duplex had been paid or would be paid from the proceeds of that draw request, which was $5,150. At the time he signed that affidavit, however, the millwork and trim had not been (as yet) paid, and they remained unpaid through the date of the hearing in the amount of $1,744.32. On or about February 13, 1980, the Respondent executed a similar affidavit in conjunction with a request for a draw payment from First Federal for the stated purpose of paying for insulation installed in the duplex. That draw amounted to $13,905. At the time he signed that affidavit, the insulation had not been paid for and remained unpaid through the date of the hearing in the amount of $1,331. On January 21, 1980, the Respondent executed a similar affidavit supporting a request for a draw payment from First Federal of Broward. In that affidavit, the Respondent affirmed that the electrical work provided for in the construction plans for the duplex had been paid for or would be paid from the proceeds of that draw request, which was in a total amount of $2,060. At the time the Respondent signed the affidavit, however, the electrical work had not yet been paid for, and it remained unpaid through the date of the hearing to the extent of $1,500.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED: That the Respondent be found guilty of violating the statutory authorities cited hereinabove in that he abandoned the subject construction project, diverted funds received for the construction of the project with the result that he could not fulfill his obligations with regard to the project, that he signed three separate false statements with respect to the construction of the project, and is guilty of misconduct in the practice of contracting. For these violations, his license should be suspended for a period of one (1) year. DONE and ENTERED this 20th day of January, 1983, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 1983. COPIES FURNISHED: John O. Williams, Esquire 547 North Monroe Street Suite 204 Tallahassee, Florida 32301 A. J. Ryan, Jr., Esquire A. J. Ryan, III, Esquire Hollywood Federal Bldg. 700 East Dania Beach Blvd. Dania, Florida 33004 James Linnan, Executive Director Construction Industry Licensing Board Dept. of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202 Samuel R. Shorstein, Secretary Dept. of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, DPR Case No. 0011535 DOAH Case No. 82-446 vs. JAMES J. RUSSO R-B-R Construction Corp. RB 0032203 1412 Washington Street Hollywood, Florida 33020 Respondent. /
Findings Of Fact The Respondent, Charles R. Boyd, was and is a certified general contractor in the State of Florida, and holds license number CG CO12754. Mr. Boyd was also the qualifying agent for Boyd-Scarp Construction Company. On May 13, 1983, the Boyd-Scarp Construction Company contracted with Paul and Debra Ciolli for the construction of a custom designed single family residence at 2385 Northeast Fallon Boulevard, Palm Bay, Florida. The contract price was $85,000. The Respondent and Thomas Scarp were equal partners in the Boyd-Scarp Construction Company and Boyd-Scarp Enterprises, Inc. Mr. Scarp was also a licensed general contractor, but was primarily responsible for financial matters in the companies, and the Respondent was primarily responsible for supervision of construction. The Respondent designed the Ciolli home, and his draftsman prepared the plans. During the course of construction, the Respondent visited the site of construction a few times (no more than once a week), but relied primarily upon his superintendents to supervise. At that time, the Boyd-Scarp Construction Company had approximately 35 homes under construction throughout Brevard County. Respondent employed several superintendents of construction at the Ciolli home. The first, Tom Wright, was having personal problems, and the Respondent fired him. The second, Rick Shite, did not do an adequate job, and the Respondent fired him. The third, Dave Bryant, left Boyd-Scarp before the home was finished. The fourth, Bill Snyder, was primarily assigned to the punch list, as was the fifth, Dave Lightholder. Mrs. Ciolli visited the construction site daily, and on several occasions noticed defects or problems in the construction. She tried each time to contact the Respondent, who was responsible for construction, but was always referred to Mr. Scarp, who was responsible for financial matters. The framing subcontractor did an inadequate job framing the walls. Many of the walls were out of square, were not plumb and true, and had discernible waves in them after the drywall was installed. Some walls had a deflection of 1/2" in four feet. The Ciolli's hid the bowed wall in the kitchen by placing the refrigerator in a spot that otherwise would not have been used for that purpose. Ceilings were one to three inches out of square with the wall. The deflection was one inch in twelve feet in the master bedroom, and one inch in four feet in the master bathroom. In the bathroom, the deflection where the ceiling met the wall on a slant prevented the later installation of squares of mirror tile. The drywall was inadequately installed. Taping and bedding was inadequately done where the drywall met the ceilings. Joints were poorly taped, or not taped at all in some cases. Nails popped loose. Some of these defects were hidden by the Ciolli's with wallpaper. The interior walls had structural cracks at load bearing points, notably located beside the fireplace, at the sliding glass doors, over windows, and below windows. The roof trusses, as installed, were inadequate: A majority of the trusses were either not anchored to the tie beam with hurricane straps, or were inadequately anchored. This was caused by a combination of improper spacing of anchors on the tie beam and variations in the spacing of the trusses. (The trusses by plan were to have been 24 inches on center.) The trusses were not installed level and plumb. Several of the trusses did not have adequate contact for purposes of load-bearing on the tie beam, and were not shimmed. One truss had been cut and had been improperly scabbed back together with smaller stock and toe nails. At least one truss showed a space between the top chord and the perpendicular support, thus making the perpendicular support inadequate as a load bearing member. Trusses over the garage were originally constructed to span 22 feet 8 inches. One foot was cut from each end, and the trusses were installed as modified, since the plans called for trusses spanning 20 feet 8 inches. It is unclear from the evidence whether the trusses had been improperly modified on site by removal of the gang nail plates, and inadequately reassembled and renailed, or were originally delivered in a defective condition. The issue is irrelevant, however, because the trusses were inadequate as installed for the reasons described above. As a result of the inadequacies in the installation of the trusses, the ridge of the main roof sags in several places, and as much as four inches in one place. Sags in the one-half inch plywood roof sheathing also exist between truss top chords. Spaces exist between the top chords of the trusses and the plywood sheathing. These warps are caused by the inadequacies of the roof trusses, and may have also been exacerbated by warping in the sheathing before or during application. As a result of the foregoing roof inadequacies, roofing nails had worked loose, shingles were beginning to pop up in places, and the roof has serious leaks. See P. Ex. 22, photograph 6. The garage roof as completed was left with an open hole in it. The hole is six inches long and one-half inch wide. During thunderstorms, water pours through the hole into the garage, and damages the wall adjoining the garage and the house. As a result of the roof inadequacies, there is dampness in ceiling areas, the ceiling finish and paint is flaking, and there is a substantial amount of mildew on walls, ceilings interfaces with floors and walls, and in closets. Without hurricane anchors, the house is unsafe in a hurricane or other storm of high wind. The back porch slab is four inches in width and does not have steel reinforcing. The plans called for a slab to have a 12 by 8 inch turn down edge with steel reinforcing (as support for future construction). Mr. and Mrs. Ciolli were concerned about these defects, and told Mr. Boyd that they did not want to close without review by an engineer. The Ciolli's were told that if they did not close, Boyd-Scarp would sue them and sell the house to someone else. The Ciollis closed. Subsequently, the Ciollis hired Paul Holmlin, and engineer and an expert in residential construction, to inspect their new residence. As a result of that inspection, Mr. and Mrs. Ciolli sued. On August 16, 1985, Mr. and Mrs. Ciolli obtained a default judgment against the Boyd-Scarp Construction Company and Boyd-Scarp Enterprises, Inc., in the amount of $36,000. The Respondent has now formed a new company, Charles Boyd Homes, Inc. In the last three years, the Respondent has been actively constructing residences with his new company. He has built 60 to 70 new homes a year for the last three years in the price range of $150,000 to $500,000. The Respondent has not paid the Ciollis judgment. The Respondent corrected some of the drywall installation deficiencies, but has not corrected the wall framing deficiencies and the roof deficiencies. The Respondent was of the opinion that the defects discussed above were cosmetic. The continuous lintel block around the perimeter was structurally sound and adequate, and had no defects. The defects discussed in findings of fact 7 through 18 constitute gross negligence and incompetence in the practice of contracting, and were the direct result of the Respondent's failure to supervise properly the work as qualifying agent. The Respondent has been a general contractor in Brevard County for fourteen years and has constructed over six hundred residences in value from $50,000 to $500,000. The Respondent was awarded the designation "Builder/Developer of the Year" by the Melbourne City Council in 1978 and 1979, first prize in the Parade of Homes in 1984, 1986, and 1987, the Merit Award for Workmanship, and first price in the Suntree Parade of Homes for the last three years. He is the Director of the Brevard County Homebuilder's Association this year. The Respondent's livelihood would be detrimentally affected if the maximum disciplinary action is imposed. The Respondent received a letter of guidance from the Department of Professional Regulation for failure to display his certification number in a telephone directory advertisement. No other discipline has been levied against the Respondent.
Recommendation Since the damage to Mr. and Mrs. Ciolli has not been remedied, it is recommended that the Department of Professional Regulation, Construction Industry Licensing Board, enter its final order suspending the license of Charles R. Boyd for a period of six (6) months, and levying a fine of $2000. DONE and ENTERED this 15th day of July, 1988. WILLIAM C. SHERRILL, JR. 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 15th day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2703 The following are rulings upon proposed findings of fact which have either been rejected or which have been adopted by reference. The numbers used are the numbers used by the parties. Findings of fact proposed by the Petitioner: 6-11. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference. The allegation that the linoleum was peeling is not in the administrative complaint. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference. 14.C. While there is clear and convincing evidence that the trusses were not uniformly 24 inches on center, the exact count of such deviations was not shown by clear and convincing evidence. There was too much conflict of expert testimony on the point. 14.F., and 25.F. There is clear and convincing evidence only that one truss chord was sawed through. The degree of spalling of exterior stucco was not proven by clear and convincing evidence. Sag of the garage roof was not proven by clear and convincing evidence. The last sentence is true, but subordinate, and is adopted by reference. 14.K. and P., 15-17, 20. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference. This proposed finding of fact is not supported by clear and convincing evidence. This proposed finding of fact is not supported by clear and convincing evidence. 21.E. This proposed finding of fact is contrary to the stipulation of the parties entered into-on the second day of the hearing. 22-24, 25.A-E, G, 26-34. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference. Findings of fact proposed by the Respondent: 2. The proposed finding that the supervisors were in constant contact with the Respondent and Mr. Scarp is not supported by credible evidence. 5-7. It is true that inspections were made by inspectors from the City of Palm Bay and the Veterans Administration. It is also true that the Respondent was not cited for any violations of any building codes, and that the VA inspector stated that the problems were cosmetic. But those inspectors evidentally did not inspect the roof and walls very closely, given the degree of the defects in those structural portions. The problems were not cosmetic. Moreover, those inspectors did not testify, and thus their observations are not evidenced in the record. The lack of hurricane anchors is a life safety defect. The truss system is structurally unsound in that it has caused the roof to warp, the shingles to deteriorate, and the roof to leak. The structure of a roof is intended not to leak. If it leaks, it is structurally unsound. The Respondent made no effective effort to correct the primary defects noted above. Had he done so, the defects would have been corrected. COPIES FURNISHED: David L. Swanson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 James L. Reinman, Esquire REINMAN, HARRELL, SILBERHORN & GRAHAM, P.A. 1825 South Riverview Drive Melbourne, Florida 32901 William O'Neill, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 =================================================================
The Issue Whether Respondent violated Sections 489.127(1)(f) and 455.227(1)(q), Florida Statutes (2004), and what discipline should be imposed.
Findings Of Fact At all times material hereto, Respondent was not licensed to engage in construction in the State of Florida. At all times material hereto, Respondent’s business did not possess a certificate of authority to practice as a contractor-qualified business. On or about October 5, 2004, Respondent contracted with Dyba to repair the roof at Dyba’s residence in Santa Rosa County, Florida. The contracted cost of these repairs was $3600, of which Respondent collected $600 from Dyba by check. On or about October 9, 2004, Respondent placed an advertisement in the Pensacola News Journal asserting that he would make repairs to kitchens, baths, decks, siding, docks, and most any hurricane damage. On June 8, 1994, Petitioner issued a Notice to Cease and Desist to Respondent for engaging in the unlicensed practice of construction contracting. The total investigative cost to the Petitioner was $166.88.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a final order finding Respondent guilty of violating Section 489.127(1)(f), Florida Statutes (2004), imposing an administrative fine in the amount of $5,000, and assessing costs of investigation and prosecution in the amount of $166.88. DONE AND ENTERED this 11th day of August, 2006, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 11th day of August, 2006. COPIES FURNISHED: Brian A. Higgins, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Douglas Claiborne DOC No. 203745 Berrydale Forestry Camp 6920 Highway 4 Jay, Florida 32565 John Thomas, Classification Officer Berrydale Forestry Camp 6920 Highway 4 Jay, Florida 32565 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 John Washington, Hearing Officer Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether or not Respondent's certified general contractor's license should be disciplined because he aided or abetted an uncertified or unregistered person, knowingly combined or conspired with an uncertified or unregistered person by allowing his certificate or registration to be used by an uncertified or unregistered person with the intent to evade Chapter 489; acted in the capacity of a contractor under an unregistered or uncertified name; engaged in fraud, deceit, or gross negligence, incompetence, or misconduct in the practice of contracting as alleged, in violation of Subsections 489.129(1)(e),(f),(g) and (m), Florida Statutes.
Findings Of Fact Petitioner is the state agency charged with the responsibility to investigate construction activities in Florida and, where indicated, to file Administrative Complaints pursuant to Chapters 489, 455 and 120, Florida Statutes, and other rules and regulations promulgated pursuant thereto. During times material, Respondent, Richard L. Melvin, was licensed as a general contractor, having been issued license number CG C022926. During times material, Respondent did not qualify Jeffrey Gaston or Tropical Exteriors & Services, Inc. (TESI), nor did said entity or contractor's name appear on Respondent's license. During times material, Jeffrey Gaston d/b/a TESI, was never licensed nor qualified to do business as a contractor in Florida. During times material, Respondent was not a licensed roofing contractor. On or about March 31, 1987, Jeffrey Gaston contracted with Deborah and Clinton Weber to repair a roof and renovate a bathroom at their residence for the sum of $5,000.00. Respondent's name, license number, address and telephone number was listed on the Gaston/Weber contract. Jeffrey Gaston d/b/a TESI entered into a contract with Wilfred Butler on January 12, 1987, to replace a back porch at his residence. Respondent's general contractor's license number was listed at the top of the agreement between Gaston-TESI/Butler. Checks drawn by Butler were made payable to Respondent/TESI. Respondent obtained a permit for Jeffrey Gaston d/b/a TESI for the Butler project. (Petitioner's Exhibit 7.) Respondent admitted to authorizing Gaston or TESI to use his name and certificate number on contracts. Respondent was aware of approximately 20 contracts and several other permits wherein Gaston/TESI obtained the contracts or permits by using Respondent's name and license number. Respondent admitted receiving approximately $2,000.00 for supervising TESI. Respondent never disassociated himself from Jeffrey Gaston until May 31, 1987. Petitioner introduced ten contracts for work in Pinellas County from December 1986 to May 1987, with Respondent's name and state certification number with Jeffrey Gaston d/b/a TESI listed as the contractor. (Petitioner's Exhibit 9.) Respondent obtained a permit for Jeffrey Gaston d/b/a TESI for the installation of aluminum soffit and fascia on the Stitches' home situated at 111 Aurora Avenue North, Clearwater, Florida. Respondent did not supervise the installation of aluminum soffit and fascia on the Stitch's residence. Respondent, as a general contractor, is responsible for all phases of work for which he contracted for and/or obtained permits. Respondent was aware that Jeffrey Gaston was not a licensed contractor in Florida. Jimmy Jimenez has never been a licensed contractor in Florida. J & J Construction Company was qualified in February 1988, under Respondent's license number, CG C022926. Thereafter, during February 1989, J & J Construction was qualified under Respondent's license number RC 0058448. Respondent did not attempt to qualify J & J Construction until he was cautioned by Petitioner's investigators Steven Pence and Dennis Force, that his construction activities amounted to "aiding and abetting an unlicensed contractor." On or about December 11, 1987, Wiley Parks, Jr., entered into a contract with J & J Construction to perform construction work and remodel a home for Parks located at 1722 West Arch Street, Tampa, Florida. In conjunction with that contract, a second contract was submitted by J & J Construction for Mr. Parks, although unbeknownst to him, which utilized Respondent's name and contractor's license number at the top of the agreement. Wiley Parks spent a great deal of his time observing the construction and remodeling work by J & J. Respondent was only seen by Wiley Parks when they met at a local bank to cash a check which represented a draw submitted by Respondent for construction work done at the Arch Street construction project. Respondent obtained a permit for the Parks job on January 6, 1988, which was prior to the time he qualified J & J Construction as the entity through which he would conduct construction business. Respondent, although required to do so, never called for a final inspection on the Parks job. The floor joists at the Parks job were disapproved by the Hillsborough County Building Department and were never repaired by Respondent. Employees of J & J were observed working at the Parks job site on January 4 and 8, 1988. Respondent was, on two occasions, the subject of prior disciplinary action by Petitioner during 1987. On one occasion, probable cause was found on August 12, 1987 and the case was closed by issuing a letter of guidance to Respondent. On the second occasion, probable cause was found on October 7, 1987. Final action was taken on February 11, 1988, whereby an administrative fine of $1,000.00 was imposed against Respondent or, alternatively, a 30-day suspension of his license. Respondent paid the administrative fine within the allotted time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent's general contractor's license number CG C022926 be REVOKED. 1/ RECOMMENDED this 26th day of March, 1990, 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 26th day of March, 1990.
The Issue The issue for determination is whether Arthur Signore committed the offenses set forth in the administrative complaints and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Arthur Signore (Respondent) was licensed by the Department of Business and Professional Regulation, Construction Industry Licensing Board (Petitioner) as a certified general contractor. He received his license in 1969, qualifying Deluccia Construction. Respondent was issued license number CG CA01004. Subsequently, in 1976, Respondent qualified Construction By Scott (CBS). He was issued license number CG CB01004. At all times material hereto, Respondent has been the qualifier of CBS, and the sole owner and president of CBS. At all times material hereto, Respondent's belief was that Petitioner permitted a general contractor to use his/her license to obtain building permits for construction projects for which the general contractor had no contracts through the business that he/she qualified. Respondent practiced his belief frequently by applying for and obtaining building permits for construction projects for which companies or individuals other than CBS had contracts. Collins Job (Case No. 97-1436) Sometime after Hurricane Andrew in 1992, Respondent made an oral agreement with Harold Bader to go into partnership with Bader and form a construction company, with Respondent qualifying the company. Respondent provided his name, his company's name (CBS), and his license number to Bader in order for the qualifying documents to be completed and submitted to the Petitioner. However, the company was not formed and the qualifying documents were never submitted. At no time material hereto was Bader licensed by the Petitioner to engage in the practice of contracting. Respondent knew or should have known that Bader was not licensed by the Petitioner. In March 1994, Thomas Sherry of American Building Industries, Inc. (ABI), began negotiating with Maria and Wayne Collins, husband and wife, for the remodeling of their home, located at 7417 SW 140th Court, Miami, Florida. On March 24, 1994, the Collins entered into a contract with ABI for the remodeling of their home at a cost of $12,500. Bader was the owner of ABI. Sherry was a salesperson for Bader. Sherry provided the Collins with a business card which showed, among other things, ABI's name, address and telephone number, and license number. The license number on the business card was Respondent's license number. All business cards were provided to Sherry by Bader. At no time material hereto, did Sherry talk with or meet Respondent. The records of the Metropolitan Dade County, Building and Zoning Department reflect, among other things, Respondent's name, his company's name (CBS) and license number on the building permit application for the construction to the Collins' home. However, the address listed for Respondent and his company was the address for ABI. Further, the said records reflect, among other things, that aforementioned information provided, as to Respondent, was used to obtain the building permit. Respondent did not complete the permit application for the building permit to remodel the Collins' home. The Collins paid $6,875 to ABI. Any and all checks were made payable to ABI. No money for the construction on the Collins' home was paid to or received by Respondent. In May 1994, problems developed on the job site between the Collins and ABI. The work performed by ABI failed numerous inspections. Mr. Collins wanted to talk with Respondent who was listed as the contractor on the permit and requested Bader to contact Respondent. Bader refused, indicating to Mr. Collins that all communication should be with him (Bader). Finally, in August 1994 the Collins fired ABI after more problems had developed. At that time ABI had completed some of the work. On August 29, 1994, Mr. Collins met with Respondent at Respondent's place of business. Prior to the meeting, Mr. Collins had called Respondent numerous times regarding his problems with ABI and Bader and requesting assistance from Respondent. Each time Respondent denied having any knowledge of the work being performed. When Mr. Collins met with Respondent, Mr. Collins discussed the problems that he had experienced with ABI and Bader. Respondent continued to deny knowing anything about the construction project but agreed to send his employees to examine the job and determine what could be done, if anything. The following day two of Respondent's workers came to the Collins' home and examined the work completed and the work remaining. Subsequently, Respondent contacted Mr. Collins. Respondent indicated to Mr. Collins that he could complete the job for $5,000. Mr. Collins refused to pay the additional monies since it would extend the remodeling cost beyond the contracted cost and since he was now directly paying the subcontractors. At no time did Respondent or his business (CBS) have a contract with the Collins. Until being contacted by the Collins, Respondent had no knowledge that Bader used his name, business name and license number to contract with the Collins and to obtain the building permit for the remodeling of their home. However, prior to being contacted by the Collins, Respondent had been contacted by other persons who had contracts with ABI, who had been informed by Bader that Respondent was the contractor for their jobs, who had problems with ABI, and who wanted assistance from Respondent. Furthermore, the building permits for the construction jobs of those persons reflected Respondent and Respondent's company as the contractor. At no time material hereto was Bader or ABI licensed by the Petitioner to engage in the practice of contracting. Respondent knew or should have known that neither Bader nor ABI was licensed by the Petitioner to engage in the practice of contracting. Respondent was placed on notice of their unlicensed activity after the contacts by the homeowners prior to the contact by the Collins. Even with the knowledge of the homeowners' complaints prior to the Collins' complaints, at no time did Respondent notify Bader to stop using his (Respondent's) name, company's name and license number. Further, at no time did Respondent notify the Metropolitan Dade County, Building and Zoning Department of Bader's misuse of his (Respondent's) name, company's name, and license number or to no longer issue permits to ABI under his (Respondent's) name, company and license. Walsh Job (Case No. 97-1435) In the Fall of 1995, Patrick and Susan Walsh entered into an oral agreement with John Petracelli for an addition to and the remodeling of their home, located at 761 Glen Ridge Road, Key Biscayne, Florida. On October 16, 1995, the Walshes entered into a verbal agreement with Petracelli for an engineer to produce a set of plans at a cost of $2,250 for the construction to their home. The Walshes paid Petracelli the $2,250 on October 16, 1995. On December 7, 1995, the Walshes entered into a written agreement with Petracelli for the construction work on their home at a cost of $84,000. Pursuant to this written agreement, the Walshes paid Petracelli $16,800 on December 7, 1995. Petracelli contacted Respondent and requested Respondent to be the contractor for the construction work on the Walshes' home. Respondent and Petracelli had met one another previously when Petracelli was a salesperson for Bader. Petracelli informed Respondent that he (Petracelli) had already told the Walshes that Respondent was the contractor. To the contrary, Petracelli had not informed the Walshes that Respondent was involved in the construction to their home. Respondent agreed to be the contractor but informed Petracelli that, until a set of plans was approved by the Village of Key Biscayne Building Division (Building Division), he could not provide Petracelli with a cost figure for the construction work. Petracelli informed Respondent that the plans were being prepared, but did not inform Respondent that the Walshes had paid for the preparation of the plans. Respondent agreed further to submit the completed plans to the Building Division for a "dry run" only. After the dry run, Respondent would provide a cost figure for the construction work. A dry run is a process in which a contractor, who has a complicated job which requires an engineer, submits a set of plans, together with an application for a building permit, to the Building Division for approval. The plans may be subject to several modifications requested by the Building Division before they are approved. As a result, the contractor does not know the estimated cost of a job until the plans have gone through the requested modifications, if any, and approved by the Building Division. After the plans are approved by the Building Division, the contractor is notified to come to the Building Division and sign for and obtain the building permit. Pursuant to the agreement between Respondent and Petracelli, on or about December 11, 1995, Respondent completed an application for a building permit for the addition to and the remodeling of the Walshes' home and gave it to Petracelli. The application reflected, among other things, CBS (Respondent's company) as the contractor, and Respondent as the qualifier. Respondent provided the application to Petracelli for the dry run process only. Further, Respondent reiterated to Petracelli that, once the plans were approved by the Building Division, he (Respondent) would meet with the Walshes and agree on a cost for the construction work on their home and that, after agreeing on the cost he (Respondent) would sign for and obtain the building permit for the construction to begin. Respondent was not aware that Petracelli and the Walshes had a signed agreement for the construction work. Petracelli submitted the plans, along with the permit application, to the Building Division for approval. The plans were modified several times to meet the approval of the Building Division, but were never approved. The Building Division considered the plans submitted to be substandard. Since no plans were approved, no building permit was issued. On or about January 3, 1996, the Walshes met at the Building Division with some of the Building Division's officials, Petracelli, and the engineer who prepared the plans. As a result of the meeting, among other things, the Walshes were able to review the permit application and discovered that Respondent, not Petracelli, was licensed and the contractor for the construction work; concluded that the engineer's work was considered so substandard by the Building Division that any modification produced by the engineer would not be approved by the Building Division; and determined that they no longer wanted Petracelli to perform the construction work on their home. Within 24 hours of the meeting, the Walshes telephoned Petracelli and terminated his services. Also, the Walshes requested the return of all of the monies paid to Petracelli by them; however, Petracelli did not return any of their money. At no time material hereto was Petracelli licensed by the Petitioner to engage in the practice of contracting. Respondent knew or should have known that Petracelli was not licensed by the Petitioner. At no time material hereto did Respondent or his company (CBS) have a contract with the Walshes. At no time material hereto did Respondent have any communication or contact with the Walshes. Biscayne Kennel Club Job (Case No. 97-2998) The Biscayne Kennel Club (BKC), located at 320 NW 115th Street, Miami Shores, Florida, was a track for greyhound racing. On October 30, 1995, the last race was run at BKC. In February 1996, the BKC sold its Pari-Mutuel license. On or about December 11, 1996, the BKC, by and through its representative, Carl Spitzer, entered into a written contract with Cuyahoga Wrecking Corporation (CWC), by and through its representative, Thomas Schwab, for, among other things, the removal of asbestos and the demolition and removal of BKC's grandstand structure and viewing area. The contract was prepared by Schwab, who had 25 years of experience in the demolition business, with 20 years of that experience in the State of Florida. All contract negotiations were between Schwab and Spitzer. At no time was the President and CEO of BKC, Kay Spitzer, involved in the contract negotiations. As to cost, the contract provided at Article 4 that the cost was $37,500 and that the $37,500 was "dedicated to the removal of the described ACM." Further, Article 4 provided that the "balance of the work to be paid for by the sale of the ferrous and non-ferrous metals by the contractor." In addition, the contract provided in Article 7 that, among other things, all permits were included in the contract price and that BKC and the "contractor" would share "equally all the proceeds of the non-ferrous metals minus whatever costs are incurred bringing it to market." The contract did not restrict or prohibit CWC from engaging the services of any individual or subcontractor to perform the work required in the contract. The grandstand structure and viewing area were one structure. Attached to the roof of the structure was a small building which was used by BKC personnel for viewing the races. The roof was the highest part of the structure, except for the small building. The distance from ground level to the top of the roof was 69 feet and 10 inches; and the top of the small building was approximately 15 feet higher than the top of the roof. CWC contracted with Sal's Abatement to perform the asbestos removal. Schwab was licensed by Dade County, Florida, as a specialty contractor. He was notified that the work for the BKC job was outside the scope of his license and that a contractor, licensed by the Petitioner, was required for the BKC job. Schwab contacted Respondent to be the general contractor. Schwab had worked with Respondent before on other, but smaller, jobs. Respondent agreed to be the general contractor in return for a percentage of the contract. Per the agreement, Respondent would obtain the necessary permits, provide the equipment necessary for the demolition, and supervise the workers on the job. On March 6, 1997, Respondent completed an application for a building permit with Miami Shores Village, Florida, for the demolition of the BKC grandstand. The application reflected Respondent's company (CBS) as the contracting company and Respondent as the qualifier. Carl Spitzer signed the permit application on behalf of BKC. On March 17, 1997, a building permit (permit number 41084) was issued by the Village of Miami Shores for the demolition of BKC's grandstand. On April 29, 1997, the cost of the permit, $566.50, was paid. At no time material hereto was Schwab or CWC licensed by Petitioner to engage in the practice of contracting. Respondent knew or should have known that neither Schwab nor CWC were licensed by Petitioner. At no time did a contract exist between Respondent or his company with BKC for the demolition job. Respondent supervised CWC's preparation of the grandstand for demolition. In preparing the grandstand for demolition, Respondent and Schwab met at the site at least 3 times to discuss the demolition and its progress. On May 16, 1997, the grandstand was scheduled to be demolished. On the morning of May 16th, as Schwab was leaving BKC, Respondent arrived. Shortly thereafter, the grandstand accidentally collapsed--the beams supporting the roof of the grandstand failed, and the roof collapsed. Two of CWC's workers were killed and three were seriously injured. After the collapse, BKC contracted with another company, Omega Contracting, to complete the demolition job. The Petitioner submitted documents reflecting that its costs of investigation and prosecution of the complaints against Respondent, excluding costs associated with attorney's time, to be $1,017.25. On May 22, 1997, pursuant to an Emergency Suspension Order, on May 22, 1997, the Petitioner suspended Respondent's license. Respondent has no prior disciplinary action taken against him by the Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board enter a final order: Dismissing all counts in Case Nos. 97-1435 and 97-1436. Finding that Arthur Signore violated Subsections 489.129(1)(c), (e), and (j), 489.1265(3), and 455.227(1)(a), Florida Statutes (1995). Revoking Arthur Signore's certified general contractor's license. Requiring Arthur Signore to pay all reasonable costs of investigation and prosecution associated with the Department of Business and Professional Regulation's investigation and prosecution of the charges set forth in the Administrative Complaint of Case No. 97-2998.3 DONE AND ENTERED this 13th day of January, 1998, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1998.
The Issue The issues to be resolved in this proceeding concern whether the Respondent should be subjected to disciplinary sanctions based upon alleged violations of Sections 489.127(1) and 489.531(1), Florida Statutes, by engaging in the business or capacity of a general contractor, and as an electrical or alarm system contractor, without being certified or registered.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating and enforcing the statutes and rules pertaining to the licensure and practice of contracting, including construction contracting and electrical contracting. The Petitioner is also charged with regulating and enforcing statutes concerning the unauthorized practice of such contracting, including practicing without proper certification or registration. At all times material hereto the Respondent, Kevin Davidson, d/b/a Wise and Davidson Construction and Davidson Contracting and Construction (Davidson or Kevin Davidson) was not licensed, certified or registered to engage in construction contracting or any electrical or alarm system contracting in the State of Florida. On or about December 21, 2004, the Respondent, doing business as Davidson Contracting and Construction, contracted with Mr. Hanson, a witness for the Petitioner, to install and erect a 50-foot by 60-foot by 17 and one-half foot airplane hanger on a concrete foundation. He also contracted to install a 200 amp electrical panel box on Mr. Hanson's property in conjunction with construction of the building. The property was located in Morriston, Florida. The contracted price for the work described was $47,597.30. Mr. Hanson paid the Respondent the total of $20,514.30 as part of the contract price. The Respondent never finished the project, but only laid the concrete foundation. At the insistence of the Respondent, Mr. Hanson rented a backhoe which the Respondent agreed to operate in constructing a driveway. The work was never finished, and Mr. Hanson had to obtain other help in constructing the driveway. The Respondent also damaged the rented backhoe while he was operating it. These factors caused Mr. Hanson an additional economic loss of $4,830.38. On or about December 13, 2004, the Respondent, doing business as Wise and Davidson Construction, contracted with Ms. Crowell, a Petitioner witness, to install and erect a 50- foot by 60-foot by 17 and one-half foot steel building on a concrete foundation, also in Morriston, Florida. The Respondent also contracted to install a 200 amp electrical panel box in conjunction of construction of that building. The total amount of the contract price was $47,047.30. Ms. Crowell paid the Respondent at least $35,251.35 in partial payment for the contract. After laying the foundation, however, the Respondent abandoned this project as well. The Respondent's abandonment of the project cost Ms. Crowell $29,943.00 in additional economic damage in order to obtain completion of the project by another contractor. The Department incurred certain investigative costs in prosecuting these two cases. It was thus proven by the Petitioner that the Department expended $510.06 for the prosecution of DOAH Case No. 06-2308. The Petitioner also established that it spent the sum of $944.13 in costs for Case No. 06-2307. This represents total investigative costs expended by the Agency of $1,454.19, for which the Petitioner seeks recovery. The Petitioner is not contending that any attorney's fees are due.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the Department of Business and Professional Regulation enter a final order determining that the Respondent has violated Sections 489.127(1)(f) and 489.531(1), Florida Statutes (2004), as alleged in the earlier-filed Administrative Compliant in Case No. 06-2308, and impose an administrative fine in the amount of $5,000.00 for the violation of Section 489.127(1)(f), Florida Statutes (2004), and an administrative penalty of $5,000.00 with regard to the electrical contracting violation, as provided for by Section 455.228, Florida Statutes (2004). It is further recommended that the final order determine that the Respondent is guilty of violating Sections 489.127(1)(f) and 489.531(1), Florida Statutes (2004), as alleged in the later-filed Administrative Complaint in Case No. 06-2307 and that an administrative fine in the amount of $10,000.00 for the violation of Section 489.127(1)(f), Florida Statutes (2004), and that an administrative penalty of $5,000.00 be imposed for the electrical contraction violation, as provided for by Section 455.228, Florida Statutes (2004). It is further recommended that costs be assessed against the Respondent for investigation and prosecution of both cases, not including costs associated with attorney's time and efforts, in the total amount of $1,454.19, payable to the Petitioner Agency. DONE AND ENTERED this 15th day of November, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 15th day of November, 2006. COPIES FURNISHED: Brian A. Higgins, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Kevin Davidson Post Office Box 131 LoveJoy, Georgia 30250 Nancy S. Terrel Hearing Officer Office of the General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the Respondent aided and abetted an unlicensed contractor by obtaining a permit for a roofing job performed by the unlicensed contractor; Whether the work on the job failed to fully comply with the local building codes; Whether the Respondent gave a guarantee on the job and thereafter failed to reasonably honor the guarantee; and Whether Respondent failed to properly supervise the job site activity.
Findings Of Fact At all times material to this action, Respondent was licensed by the Construction Industry Licensing Board as a registered roofing contractor, holding License No. RC0030450. Carol Kilgore is the daughter of Beula Relihan, who owns a rental home located at 207 East Selma in Tampa, Florida. Mrs. Relihan is 86 years old, and for several years Mrs. Kilgore has been managing the property. In early 1987, Mrs. Kilgore was involved in obtaining estimates to replace the roof at the rental home. After obtaining estimates from contractors listed in the yellow pages, which Mrs. Kilgore felt to be high, Mrs. Kilgore responded to an advertisement for roofing work located in the Money Saver. She called the number listed in the advertiser, talked to Leroy Rison, and asked him to come to the house and give her an estimate. On or about February 26, 1987, Leroy Rison and his nephew, Gary Terrell, visited Mrs. Kilgore after looking at the job site, and wrote out an estimate for replacing the roof of $1,650.00. Mr. Terrell wrote the proposal which reflected the work to be done, the price, and the proposed beginning and finishing date. However, before any contract was entered into, Mrs. Kilgore discovered that neither Rison or Terrell were licensed contractors. She explained that she wanted only a licensed contractor who could pull the permit to perform the work. Although Mr. Terrell and Mr. Rison are willing to work for a homeowner if the homeowner will obtain the permit, Mrs. Kilgore insisted that she wanted a licensed contractor. Therefore, Mr. Rison recommended the Respondent, and later called the Respondent to advise him of the job. The next day, February 27, 1987, Respondent met Mrs. Kilgore and wrote a contract proposal on a form with a printed heading "MacDill Roofing", to which in handwriting was added "& Services." Respondent operates under the name of, and is the qualifying agent for, MacDill Services. The contract prepared by the Respondent merely copied the proposal submitted by Terrell and Rison, including the same price and the same misspelled words. The contract was accepted and signed by Ms. Kilgore's mother. Mrs. Kilgore paid Respondent $650.00, with the balance to be paid upon successful completion of the contract. Work was scheduled to begin the following day, Saturday, February 28, 1987 and be completed by Monday, March 2, 1987. The following Saturday work began. Respondent obtained the permit for the job, and apparently purchased the materials and had them delivered. Leroy Rison worked on the job and hired the laborers. Gary Terrell also worked on the job. One of the men Rison hired, Earl, worked for a roofing company during the week but did not have a license. Mr. Rison could not remember the name of any of the other men who worked on the job. Leroy Rison was not an employee of MacDill Roofing or MacDill Services, but he had worked for Respondent on other occasions. Although Respondent contends that he went by the job site on three or four occasions, staying at the job site between 1 and 2 hours on each occasion, his testimony is not credible. Charles Doty, who was the tenant in the rental home, had received a leg injury which forced him to stay home during this entire period of time. The only time Mr. Doty was gone was for an hour and half on Saturday to attend a therapy session. Mr. Doty never saw Respondent on the job site, although he had heard Respondent's name mentioned by Mr. Rison. Mrs. Kilgore also visited the job site on several occasions and she never saw the Respondent at the job site. Respondent simply did not supervise the job site activities. On March 3, 1987, the roof was scheduled for final inspection by the building department. Mrs. Kilgore went to the house to wait for the building inspector. After several hours, she left to get a soft drink. She was gone only five minutes, but when she returned, she discovered that the building inspector had come and gone, and a "green tag", indicating that the house had passed inspection, had been left on the porch. Mrs. Kilgore was very upset because she felt that the roofing work had not been done properly. She went to the building supervisor at City Hall and asked him if he could send the inspector back to the house so that she could point out the problems. The building supervisor agreed to send the inspector back to the house. The building department inspector was Terry Scott. On March 3, 1987, Mr. Scott had approximately 20 or 25 inspections to do. When he first went to the house he just looked around quickly and left a green tag. He admitted that a thorough inspection was only done if a homeowner complained. When Mr. Scott returned to the house on March 3, 1987, he still did not do a thorough inspection. However, he did issue a "red tag" which listed certain deficiencies that would have to be corrected before the roof could pass inspection. The red tag required that the contractor "replace bad wood where needed and install drip-edge where needed." Normally, when a red tag is issued, the contractor corrects the deficiency and calls for another inspection. That did not occur in this case. On April 9, 1987, Inspector Scott met Mr. Park at the job-site to discuss problems with the roof. On that day, a more thorough inspection was performed. Another red tag was issued and the following deficiencies were noted: "Bad wood not replaced--Wall flashing not properly installed. Flashing around chimney not proper--Felt under drip-edge." Respondent did not correct these deficiencies and never called for another inspection. The permit expired without the roof being approved by final inspection. Although not all the deficiencies noted in the inspection constitute code violations, the Tampa Building Code does require that rotten wood be replaced and the contract specified that the rotten decking would be replaced. Nevertheless, after Respondent completed the job, rotten wood remained in place. The replacement of the rotten wood was noted in both red tags. Respondent never attempted to correct this deficiency. On the day the property initially passed inspection, March 3, 1987, Respondent called Mrs. Kilgore and requested the remaining $1,000 owed on the contract price. Mrs. Kilgore refused to pay the Respondent since she was dissatisfied with the work and the first red tag had issued. At some point, apparently after the red tag issued in April, Respondent decided that he was not going to get any more money from Mrs. Kilgore. Other than asking for the money on March 3, 1987, Respondent has not attempted to collect the remainder of the money from Ms. Kilgore; however, he has also not attempted to correct the code violations and other deficiencies. Since Respondent did not collect the remainder of the money owed, Respondent did not pay Leroy Rison, and Mr. Rison did not pay the laborers who performed the work. As the contractor on this job, Respondent had full responsibility for ensuring that the work was done properly and that the roof passed final inspection. Respondent failed to supervise the work on the job, and the re- roofing was not done in a workmanlike manner. In essence, Respondent abdicated his responsibilities as the contractor on the job, and allowed the work to be performed by unsupervised unlicensed persons. The roofing material used was supposed to be fiberglass shingle guaranteed for 20 years. There was no evidence presented that something other than the material specified was used or that the shingles were not installed in accordance with the manufacturer's specifications. The roof did not leak after the work was completed. No evidence relating to a guarantee, other than the guarantee related to the shingles, was presented. Respondent has previously been disciplined by the Construction Industry Licensing Board. On September 10, 1986, a 61 paragraph Administrative Complaint was filed against Respondent which alleged, among other things, willful violation of local law; failure to qualify a firm through which he was operating; gross negligence, incompetence, misconduct, fraud, or deceit in the practice of contracting; failure to discharge supervisory duties as a qualifying agent; and aiding and abetting an unlicensed person to evade the provisions of Chapter 489. On March 26, 1987, Respondent signed a stipulated settlement with the Department of Professional Regulation admitting to all the allegations set forth in the Administrative Complaint. The stipulated disposition was that Respondent's licensure would be suspended for two years and indefinitely thereafter until an administrative fine in the amount of $3,000 was paid. The stipulation was adopted by Final Order of the Construction Industry Licensing Board rendered June 9, 1987.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered revocation of Respondent's license as a registered roofing contractor. DONE and ORDERED this 25th day of October, 1988, in Tallahassee, Florida. DIANE A. GRUBBS 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 25th day of October, 1988. APPENDIX The following constitutes rulings on the Petitioner's Proposed Findings of Fact. 1.-4. Accepted, generally except the date of February 26, 1987 appears to be the appropriate date, rather than February 7, 1987, in that the estimate from Larry Rison was obtained one day before the contract was entered into with Respondent. Accepted, generally. Accepted as true, but unnecessary and irrelevant, since Rison and Terrell did not enter into a contract for the job. 7.-14. Accepted. 15. Accepted as true; however, the last two sentences were considered unnecessary. 16.-19. Accepted, generally. First sentence accepted, sentences two and three rejected as irrelevant to the issues in this case. Rejected as redundant and for the reasons set forth under Proposed Finding of Fact No. 6. First sentence rejected as not supported by the evidence, second sentence accepted, except as to Respondent's intent. Third and fourth sentences accepted in general. COPIES FURNISHED: Belinda H. Miller, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Francis A. Park 6109 South MacDill Avenue Tampa, Florida 33611 Lawrence A. Gonzalez Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201
