The Issue The issue in this case is whether Respondent committed the acts alleged in the Administrative Complaint and if so, what penalty is appropriate.
Findings Of Fact Based upon the testimony of the witnesses and the evidence presented and the entire record in this proceeding, the following material and relevant facts are found. At no time material hereto was Respondent, Donald Clark, licensed by the State of Florida Construction Industry Licensing Board to engage in construction contracting. At no time material hereto was Cancun Development Company ever qualified or certified by any State of Florida agency as a certified contractor. With knowledge of that he was not licensed by the State of Florida to solicit, engage in, nor contract for construction work, Respondent entered into an oral agreement with homeowner Ms. Eichar to build a second-story addition to her home, located in Indian Rocks Beach, Florida, for a contract price of $30,000.00. Respondent, who was paid by Ms. Eichar a total of $25,000.00, subcontracted with Mr. Erwin, a licensed electrical contractor, to do the electrical work at the Eichar's residence for $2,364.00. Respondent, after notice, failed to attend the formal final hearing regarding this matter. The investigative and prosecution costs to the Department of Business and Professional Regulation, excluding cost associated with attorney time, were $550.00.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered by the Department as follows: Finding Respondent, Donald Clark, guilty of having violated Subsection 489.127(1)(f), Florida Statutes, as alleged in the Administrative Complaint herein filed and imposing as a penalty an administrative fine in the amount of $5,000.00. Assess costs of investigation and prosecution, excluding costs associated with an attorney's time, in the amount of $550.70. DONE AND ENTERED this 23rd day of July, 2002, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 23rd day of July, 2002. COPIES FURNISHED: Donald Clark 813 East Bloomingdale Avenue Suite 252 Brandon, Florida 32720 Brian A. Higgins, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact On August 11, 1983, petitioner, Department of Professional Regulation, Florida Construction Industry Licensing Board, issued an administrative complaint alleging that respondent, Maynard S. Moss, was a registered roofing contractor and had violated various provisions of Chapter 489, Florida Statutes, while performing four roofing jobs pursuant to contracts entered into in February, March and May, 1980, and March, 1983, respectively. According to documents on file with the official custodian of petitioner's records and introduced into evidence, respondent made application for registration as a roofing contractor with petitioner on April 25, 1974. On October 28, 1976, he filed a registration change of status application with the Department to qualify M & W Roofing, Inc. The records also reflect that his license number RC 0020412 for the year expiring June 30, 1977 was cancelled by the Department on an undisclosed date. There is no evidence that he was issued a license thereafter which was effective in 1980 or 1983.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against respondent be DISMISSED. DONE and RECOMMENDED this 9th day of November, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER 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 9th day of November, 1983. COPIES FURNISHED: Stephanie A. Daniel, Esquire 130 N. Monroe Street Tallahassee, Florida 32301 Sam E. Murrell, Jr., Esquire Post Office Box 1748 Orlando, Florida 32602 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
The Issue Whether Petitioner is entitled to licensure as a certified contractor pursuant to the "grandfathering" provisions of section 489.514, Florida Statutes.
Findings Of Fact At all times material hereto, Petitioner held a Registered Electrical Contractors license, No. 13012890, and a Registered Alarm System Contractors I license, No. 12000229, that authorized him to engage in the same in Broward County, Florida. Petitioner's licenses are active and in good standing; he has not been the subject of any complaints filed with, or discipline imposed by, the local licensing authority. Petitioner operates a business named "D" Electrician Technical Services, Inc., in Pompano Beach, Florida. In the case styled State v. Terrance Davis, Case No. 082026CCFICA, in the Circuit Court of the Seventeenth Judicial Circuit, in and for Broward County, Florida, Petitioner was charged with burglary of a structure with assault or battery and felony battery. Petitioner's unrefuted testimony was that after his arrest in October 2008, he was detained without bond pending his trial.1/ On November 17, 2009, the Florida Department of Revenue ("DOR") issued to Petitioner a Notice of Non-Compliance with Support Order and Intent to Suspend License for the nonpayment of a previously existing child support order. The notice was sent to 7906 Southwest Seventh Place, North Lauderdale, Florida 33068. At the time the notice was sent, Petitioner claims to have been detained in the Broward County jail. The criminal charge of felony battery was nol prossed on December 14, 2009. On December 15, 2009, Petitioner proceeded to trial on the remaining charge and was acquitted by a jury. On December 27, 2009, DOR issued a Notice to Suspend License for Nonpayment of Support to the Division of Professions. Said notice provided that, "[w]e gave [Petitioner] notice of nonpayment and intent to suspend license(s) more than 30 days ago. [He has] not complied with the support order, a written agreement if there is one, or timely contested the action." The notice further directed that, "[u]nder section 409.2598(5)(b), Florida Statutes, you must suspend the license, permit or certificate that allows the person to engage in an occupation, business or recreation." In January 2010, during the course of a traffic stop, Petitioner was advised by a law enforcement officer that his Florida driver's license was suspended. On February 8, 2010, Petitioner entered into a Written Agreement for Past Due Support with DOR wherein he agreed to make a lump-sum payment and additional monthly payments. DOR agreed that it would not suspend or deny his driver's license as long as Petitioner complied with the terms of the agreement. Petitioner credibly testified that thereafter, when he "resumed his Articles of Incorporation," he realized his professional licenses had also been suspended. On February 25, 2010, DOR issued a Request to Reinstate License to the Division of Professions. Said request provided as follows: The license(s) of the parent named below, was suspended for nonpayment of support. Please reinstate the license(s). The parent is paying as agreed or ordered, the circuit court has ordered reinstatement, or the parent is otherwise entitled to have the license(s) reinstated under section 409.2598(4)(b), Florida Statutes. Court Case Number: 060015893CA-06 Parent's Name: TERRENCE A DAVIS Mailing Address: 7905 SW 7th Pl, North Lauderdale, FL 33068-2123 License Number(s) and Type(s): 12000229 Reg. Alarm System Contractors I (EY), 13012890 Reg. Electrical Contractors (ER) On or about July 23, 2013, Petitioner applied for certification as an electrical contractor pursuant to the "grandfathering" provisions of section 484.514, Florida Statutes.2/ Included with Petitioner's application, was a personal financial statement wherein Petitioner itemized his assets and liabilities. Petitioner's personal financial statement concluded that his personal net worth was $56,400.00. Also included in Petitioner's application was a business financial statement for "D" Electrician Technical Services, Inc., that similarly itemized Petitioner's business assets and liabilities. Petitioner's business financial statement concluded that the business's net worth was $35,945. By a Notice of Intent to Deny, dated October 18, 2013, the Board denied Petitioner's application for two reasons: within the previous five years, Petitioner's contracting license was suspended for failure to pay child support; and Petitioner's application failed to demonstrate that he had the requisite financial stability as required by rule 61G6- 5.005(3) and requisite net worth as required by rule 61G6-5.004. Petitioner credibly testified as to the figures supporting the itemization of both his personal and business assets and liabilities and respective net worth contained in the application. Petitioner conceded that a credit report, dated July 8, 2013, documents that he had a late mortgage payment in April 2010; that in 1997, his child support arrearage was placed in collection; and that an account, with a current balance of $3110.00, was placed for collection. Petitioner contends said account concerned a one-year lease that he was unable to satisfy at the time due to his detainment for the above-noted criminal charges. Respondent presented the testimony of Clarence Kelly Tibbs. Mr. Tibbs is a state-certified electrical contractor who served on the Board for approximately 13 years. Mr. Tibbs was not on the Board at the time the Board considered and rejected Petitioner's application. The undersigned deemed Mr. Tibbs as an expert in electrical contracting. Mr. Tibbs did not testify concerning the areas of his expertise (electrical contracting), but rather, offered opinions on the propriety of the Board's denial of Petitioner's application. Mr. Tibbs testified that, "as an ex-Board member," looking at Petitioner's personal and business financials, there were several problems. After itemizing his concerns, Mr. Tibbs concluded that, "[h]owever, looking at the financials that you've got in front of me, although I have some problems with them, I could probably go ahead and approve them."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that The Department of Business and Professional Regulation, Electrical Contractor's Licensing Board, enter a final order denying Petitioner's application for licensure as a certified electrical contractor. DONE AND ENTERED this 7th day of May, 2014, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 2014.
Findings Of Fact At all times material to this proceeding Respondent was a registered building contractor in the State of Florida having been issued license number RB 0009164. At no time material to this proceeding was Domingo Alonzo (a/k/a Domingo Alonzo) registered, certified or otherwise licensed by the Florida Construction Industry Licensing Board. Respondent and Alonzo signed and submitted a proposal to Myron M. Gold and Roberta Fox for remodeling and additions to their residence located at 1550 Zuleta Avenue, Coral Gables, Florida in accordance with plans prepared by Frese - Camner Associates on file with the City of Coral Gables, Florida, File No. 2897 for a contract price of $65,940.00 with draw schedules attached. On December 6, 1982, Myron M. Gold and Roberta Fox (Homeowners) accepted the Proposal (Contract). On December 6, 1982, the Homeowners paid Respondent and Alonzo jointly $3,297.00 in accordance with the contract whereby they were to receive 5 percent of the contract amount as a down payment upon signing. The draw schedule provided for a 10 percent retainage from each draw which was to be paid to Respondent and Alonzo upon completion and the issuance of a certificate of occupancy. On December 21, 1982 the Homeowners paid Respondent and Alonzo jointly $2,025.00 which represented a draw on Schedule I - Item 3 for $1,350.00, Schedule II - Item 2 for $360.00 and Item 5 for $315.00. On December 17, 1982 the Homeowners and Respondent filed the affidavit required by ordinance with the City of Coral Gables for the purpose of having a building permit issued covering the work under the contract. 9. On January 19, 1983 Respondent using his building contractors license applied for building permit to cover the work anticipated under the contract and on the same day was issued building permit, No. 28214. Under the contract the Homeowners were to pay for the building permit and the bond required by the city. On January 26, 1983 the Homeowners paid Respondent and Alonzo jointly $3,000.00 which along with a payment on January 27, 1983 of $500.00 and January 31, 1983 of $544.60 represented a draw on Schedule I - Item 2 for $405.00, Item 5 for $1,260.00, Item 6 for $1,547.10 and Item 13 for $832.50. All payments from December 6, 1982 through January 31, 1983 under the contract by the Homeowners totaled $9,366.50 and were paid jointly to Respondent and Alonzo. On February 4, 1983 Respondent and Alonzo entered into an agreement, prepared by Myron Gold in the law office of Gold and Fox, whereby the Homeowners were to pay the balance of the funds remaining under the contract to Alonzo individually. After this date all payments were made to Alonzo. It was the Homeowners understanding after the February 3, 1983 agreement that Respondent would still be responsible for the supervision of the construction although they never saw Respondent again until October 1983. Edward Borysiewicz testified that he dealt with Respondent during March 1983 when he made the floor slab inspection on March 3, 1983 and the columns inspection on March 14, 1983. The record is clear that shortly after the agreement on February 3, 1983 Respondent no longer came to the construction site and supervised the work of Alonzo. On February 8, 1983 the Homeowners paid Alonzo $3,060.00 which represented a draw on Schedule I - Item 1 for $810.00, Item 5 for $1,417.50 and Item 13 for $832.50. On February 28, 1983 the Homeowners paid Alonzo $3,155.40 which represented a draw on Schedule I - Item 4 for $1,705.50 and $729.90 for extras apparently not covered by the contract but whether the balance of check No. 1161 (Pet. Ex. 13) of $720.00 was for payment under the contract or for extras is not shown in Petitioner's Exhibit No. 15. On March 18, 1983 the Homeowners paid Alonzo $1,000 which represented a draw on Schedule I - Item 9 for $819.00. Again whether the balance of check No. 1206 (Petitioner's Exhibit No. 13) of $181.00 is for payment under the contract or for extras is not shown in Petitioner's Exhibit No. 15. On March 21, 1983, the Homeowners paid Alonzo $6,400.00 which represented a draw on Schedule I - Items 10, 11, 12, 14 and 15. On March 21, 1983 the Homeowners paid Alonzo $2,166.90 but Petitioner's Exhibit No. 15 does not list check No. 1210 as being a payment under the contract or for extras. On March 31, 1983 the Homeowners paid Alonzo $4,230.00 which represents a draw under Schedule I - Item 7 for $2,520.00 and a payment for extras not covered under the contract in the amount of $1,710.00. On April 21, 1983 the Homeowners paid Alonzo $5,207.40 which represented a draw Schedule I - Items 1, 5, 6, 9 and 14. On June 24, 1983 the Homeowners paid Alonzo $5,788.00 which represented a draw on Schedule I - Item 12 for $667.00, Item 14 for $3,024.00 and payment for extras not under contract for $2,097.00. After March 14, 1983 Respondent was not seen on the job site and there was no longer any apparent supervision of Alonzo by Respondent. After Respondent left the job site there was no licensed building contractor involved in the construction. After Respondent left the construction site the Homeowners soon realized that Alonzo did not know how to proceed with the work and experienced problems with the pace and manner in which the work was being accomplished. On July, 1983, Alonzo stopped working altogether. Although the Homeowners were aware of the problems that Alonzo was having with the construction and that Respondent was not on the job, the record does not reflect that they ever attempted to contact Respondent after the meeting on February 3, 1983. On August 1, 1983 the Homeowners notified Respondent and Alonzo that the contract had been terminated. The Homeowners paid Respondent and Alonzo $42,174.20 total under the contract (pages 1-5, Petitioner's Exhibit No. 15) and paid Alonzo $10,766.37 for extras (Pages 6- 10, Petitioner's Exhibit No. 15). On August 31, 1983 the Homeowners paid Edward Bryant, plastering contractor the sum of $3,100.00 for plastering performed by Edward Bryant. This was for work under the contract that had not been completed or work necessary to correct problems that were already completed. Roberta Fox testified that there were no extras on plaster, however, page 7, line 11 and page 9, line 21 of Petitioner's Exhibit 15 indicates that there was extra plastering. On August 29, 1983 and September 29, 1983 the Homeowners paid Southwest Plumbing Services, Inc. the total amount of $4,875.00 for work contemplated under the contract that had not been completed or needed correction. Homeowners had paid Alonzo $3,591.00 for plumbing under the contract. Both Alonzo and Southwest Plumbing, Inc. were paid for extra plumbing not covered by the contract in the amount of $567.00 and $391.50, respectively by the Homeowners. From September 13, 1983 through June 13, 1984 the Homeowners paid Charles Brueg, Jim Brueg, Charles Buffington and Dan, Inc. the total amount of $4,192.91 for electrical work contemplated under the contract that was not completed or required correction after Alonzo left the construction site. Page 6 lines 6 and 11 of Petitioner's Exhibit No. 15 indicate that there were extras not covered by the contract. The total amount for electricity contemplated by the contract was $3,649.00. Alonzo was paid $2,627.10 under the contract and $1,710.00 for extras. The Homeowners were required to obtain the services of an air conditioning contractor to complete the work contemplated under the contract after Alonzo left the job site and as a result were required to pay Cameron, Inc., the air conditioning contract the amount of $5,181.60 between August 16, 1983 and January 24, 1984. The total amount contemplated under the contract was $3,600.00 of which $1,134.00 had been paid to Alonzo. Debris was dumped in the swimming pool requiring the Homeowners to pay $7,000 to refurbish the swimming pool. This amount included the repair contemplated under the contract and the extra work caused by Alonzo. The contract contemplated $2,300.00 for repairs of which none had been paid to Respondent or Alonzo. The Homeowners paid $1,150.00 to a painting contractor to finish the painting contemplated under the contract. Alonzo had been paid $1,125.00 for painting. (Petitioner's Exhibit No. 15) The contract provided $2,500.00 for all painting required under the contract. Respondent failed to notify the building department that he was no longer responsible for the construction. After the Homeowners terminated the contract due to Respondent's and Alonzo's nonperformance, the Homeowners had to expend a substantial amount of extra money to complete the construction. The evidence is insufficient to determine an exact or approximate amount. Roberta Fox's testimony was conflicting with regard to her understanding as to whether or not the Respondent would continue to supervise the construction after the meeting in the Homeowners' law office on February 3, 1983 when Respondent and Alonzo entered into this agreement. Myron Gold testified that it was his understanding that Respondent would continue to supervise Alonzo after the agreement. However, the Homeowners action in this regard subsequent to February 3, 1983, in making no effort to bring the matter to a "head" and requiring Respondent to supervise the work or terminate the contract and in continuing to deal with Alonzo although Homeowners were aware shortly after February 3, 1983 that Alonzo could not perform without Respondent's supervision and that they knew Respondent was not on the job, tends to show that they were aware or should have been aware that Respondent was no longer involved in the day to day supervision of the construction. Alonzo installed a fireplace pursuant to the contract that the building department determined to be a fire hazard and recommended against its use. The Homeowners applied for and were granted a "owner/builder" permit on September 1, 1983 and requested cancellation of the building permit issued to Respondent which was cancelled on September 6, 1983. They have not received a certificate of occupancy because the building department has not performed the following inspection: electrical final; plumbing final; air conditioning final; roofing final and public works final. The building department would have issued a "stop-work order" had it been aware that Respondent was not supervising the construction and would have required the Homeowners to obtain another licensed building contractor or proceed as a owner/builder. The plans prepared by Frese-Camner Associates that were made a part of the contract by reference were not introduced into evidence with the contract and thus the record is insufficient to determine what was required to meet the specifications of the plans and thereby determine if the specifications had been met. There was a permit issued for the septic tank and drain field which work was started in December, 1982. The construction of the house itself was started in January 1983. The first inspection (foundation) on the house was made by the building department of January 21, 1983.
Recommendation Based on the findings of fact and conclusions of law recited herein, it is Recommended that the Board enter a final order finding Respondent guilty of violating Section 489.129(1)(h)(k)(m), Florida Statutes (1981) and for such violations it is Recommended that the Board assess the Respondent with an administrative fine of $500.00 and suspend the Respondent's contracting license for a period of three (3) years, provided, however, that if Respondent submits to the Board competent and substantial evidence of restitution to Myron Gold and Roberta Fox within one (1) year from the date of the final order herein, then the suspension shall be stayed and Respondent placed on probation for the balance of the suspension. Respectfully submitted and entered this 6th day of February, 1986, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 84-2529 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties to this case. RULINGS ON PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3 but clarified. Adopted in Findings of Fact 4 and 5. Adopted in Finding of Fact 4. Adopted in Finding of Fact 6. Adopted in Finding of Fact 5. Adopted in Finding of Fact 9. Adopted in Finding of Fact 9. Adopted in Finding of Fact 9. Adopted in Finding of Fact 9. Adopted in Finding of Fact 10. Adopted in Finding of Fact 11. Adopted in Finding of Fact 12 except clarified as to the last date on construction site. Adopted in Finding of Fact 13. Adopted in Finding of Fact 14 but clarified. Adopted in Finding of Fact 15 but clarified. Adopted in Finding of Fact 16. Adopted in Finding of Fact 17 but clarified. Adopted in Finding of Fact 15 but clarified. Adopted in Finding of Fact 19. Adopted in Finding of Fact 20 but clarified. Adopted in Finding of Fact 21. Adopted in Finding of Fact 11. Adopted in Finding of Fact 21. Adopted in Finding of Fact 22. Adopted in Findings of Fact 22 and 23. Adopted in Finding of Fact24 but clarified to show correct amount paid under contract as indicated by Petitioner's Exhibit 15. Adopted in Finding of Fact 25 but clarified to show that extra plastering not under contract was required. Adopted in Finding of Fact 26. Adopted in Finding of Fact 26. Adopted in Finding of Fact 26. Adopted in Finding of Fact 27. Adopted in Finding of Fact 27. Adopted in Finding of Fact 27. Adopted in Finding of Fact 27. Adopted in Finding of Fact 27. Adopted in Finding of Fact 27. Adopted in Finding of Fact 28. Adopted in Finding of Fact 28. Adopted in Finding of Fact 28. Adopted in Finding of Fact 28. Adopted in Finding of Fact 29 but clarified. Adopted in Finding of Fact 30 but clarified. Rejected as immaterial. Rejected as not supported by competent substantial evidence. Rejected as not supported by substantial competent evidence. Adopted in Finding of Fact 31. Rejected as immaterial. Adopted in Finding of Fact 32 but clarified to show that the record does not support a figure that approximate $32,000.00. Rejected as not supported by substantial competent evidence even though the Homeowners' testimony supported this fact because the Homeowners' actions with regard to Respondent after February 3, 1983, was to the contrary. Adopted in Finding of Fact 33. Adopted in Finding of Fact 34. Adopted in Finding of Fact 34. Adopted in Finding of Fact 34. Adopted in Finding of Fact 35. Adopted in Finding of Fact 36. Adopted in Finding of Fact 36. RULINGS ON PROPOSED FINDINGS OF FACT SUBMITTED BY RESPONDENT: No Findings of Fact was submitted by the Respondent. COPIES FURNISHED: James Linnan, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 W. Douglas Beason Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. George J. Soler, Pro Se 3315 S.W. 96th Avenue Miami, Florida 33165
Findings Of Fact Douglas H. Gunter is a 34-year-old applicant for the unlimited electrical contractor's examination. He attended Gulf High School in New Port Richey, Florida, and took classes at Austin Community College in Austin, Texas. His college classes included courses in Business Math, Principles of Management, Principles of Microeconomics, Mathematics of Finance, Principles of Accounting I, Principles of Accounting II, and Individual Income Tax. He earned a total of 21 semester hours in the Austin Community College system. From 1972 to 1975 Mr. Gunter worked as a residential electrician. From 1975 through 1979 he was enlisted in the U.S. Navy. He completed the Navy electronics and basic electricity school, and the aviation electrician's mate school and an aviation electrician organizational maintenance course. From October 1976 through July 1979, he was assigned to the electrical instrument branch of a Naval maintenance department, where he was responsible for performing scheduled and unscheduled maintenance on U.S. Navy aircraft as an aircraft electrician. After leaving the Navy he managed all phases of his family's plumbing business, George Gunter Plumbing, Inc., which is State-certified plumbing contractor #CFC040002, from 1979 to 1983. His management duties included estimating, payroll, handling workers' compensation insurance, taxes and the ordering of supplies for jobs in both residential and commercial plumbing. Mr. Gunter possesses an electrical contractors' license in Palm Beach County, #V-16057, where he has been active as an electrical contractor for approximately three months. He also holds an electrical contractors license in Pasco County which he received in 1984, #3277, but which became inactive soon thereafter. It was briefly reactivated last year. Mr. Gunter has been engaged in electrical work for a number of companies from 1985 through the present. These included such things as the installation of a Switch Gear Computer system and energy management system in a 20,000 square foot office building in Austin, Texas; installation of panel boards and outside lighting and fire alarm system in a restaurant/office complex in Boca Raton, Florida; installation of kitchen equipment, a laundry and boiler room and controls for lighting in a Marriott Hotel; electrical work in a restaurant in Coral Springs, Florida; in a shopping center in Plantation, Florida; at an oil lube center in Margate, Florida; and a commercial jewelry store in Hollywood, Florida. The Board is satisfied that Mr. Gunter has adequate technical or field experience as an electrician (Tr. 28). The denial letter from the Board focused on whether Mr. Gunter had three years of responsible management experience or six years comprehensive, specialized training, education or experience associated with an electrical contracting business.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered by the Electrical Contractors Licensing Board denying the application of Douglas H. Gunter to sit for the examination as an unlimited electrical contractor. RECOMMENDED this 18th day of December, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 18th day of December, 1991. COPIES FURNISHED: Douglas H. Gunter 600 East River Drive Margate, Florida 33063 Clark R. Jennings, Esquire Department of Legal Affairs The Capitol Tallahassee, Florida 32399-1050 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Daniel O'Brien, Executive Director Department of Professional Regulation Electrical Contractors Licensing Board 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue By Administrative Complaint filed September 2, 1977 the Florida Electrical Contractors' Licensing Board (FECLB) seeks to revoke, annul, withdraw or suspend the state electrical contractor's certification of Michael Lang who holds certificate No. 0000227, and Lang's right to do business thereunder. As grounds therefor it is alleged that Lang pulled the permits on 5 homes under the authority of his state license where work was to be done by Blue Streak Electric in which Lang had no interest. This was alleged to constitute violation of 468.190(2)(a), (b), (c), and (d)F.S. Five witnesses, including Respondent, testified and three exhibits were admitted into evidence.
Findings Of Fact Michael T. Lang holds state electrical contractor license No. 0000227 and has been so licensed for about 3 years. He also holds Palm Beach and Broward County electrical contractor's licenses. Lang has never done any electrical contracting work under his state certificate outside Broward or Palm Beach counties. Wayne Johnson is a journeyman electrician who has been employed by Lang since about 1973. Johnson worked on numerous houses for which Lang was the contractor and served as Lang's alter ego in many business functions such as ordering supplies, submitting proposals for bids, and signing checks. In 1976 Lang encountered financial reverses due to the construction industry slump and was close to being closed down by IRS. It was difficult for him to obtain supplies with IRS attaching bank accounts and accounts receivable. Johnson formed Blue Streak Electric to perform electrical repairs on weekends and evenings to supplement his dropping income from Lang. Blue Streak was not a qualified corporate electrical contractor although Johnson and Lang had discussed the concept of qualifying Blue Streak to be able to get supplies that Lang was finding increasingly difficult to do. Before the necessary information had been submitted to qualify Blue Streak, Johnson bid on 5 house wiring jobs in Palm Beach County and obtained the contracts under Blue Streak Electric. The permits were pulled by Mike Lang Electric (Exhibits 1, 2, and 3) and under his county contractor's certificate number U8732. On the application for electrical permits (Exhibits l, 2, and 3) here involved, in the blank following "State and County Occupational License No." was entered "227". No evidence was presented regarding the occupational license number of Lang but 227 is the number of his state certification. Some two weeks after the work was commenced under the Blue Streak contract and was about fifty percent complete, the building inspectors stopped the work because Blue Streak was not a licensed electrical contractor. Johnson had been, and was at the time, a salaried employee of Lang who was supervising the work done under these contracts. Upon stopping of the work by the Palm Beach County inspectors these contracts were turned over to Mar Electric who employed Johnson to complete the work he had initially bid on. Mar visited the sites from time to time and received payment from the builder for the work performed. Lang received no income from these projects. Lang was not an officer in Blue Streak and had no financial interest in Blue Streak at any time here involved. Upon learning that Johnson had entered the bids by Blue Streak and pulled the permits under Lang's license, Lang recognized that problems could ensue but this information was received only a couple of days before the work under Blue Streak's contract was stopped. About the same time the work by Blue Streak was stopped by the inspector the IRS levied on Lang and closed his business. The Palm Beach County licensing authority took action against Lang and, in April, 1977 suspended his county electrical contractor's license for one year on the same facts here involved.
Findings Of Fact At the final hearing the following factual allegations contained in the Administrative Complaint were either stipulated to by the parties or not disputed by the Petitioner: The Respondent John W. Rohrback is a certified general contractor having been issued license numbers CC C002372, CG CA 02372, PM 0015083 and RF 0036563. The last known address of the Respondent Rohrback is 10282 N.W. 31st Street, Coral Springs, Florida 33065. The Respondent Rohrback, while doing business as Statewide Insulation and Solar Systems, Inc., failed to initially obtain building permits which are required by ordinance on the following job sites: Mrs. Blanche Nelson, 454 N.E. 4th Street, Boca Raton. Mrs. Dorothy Menzel, 784 N.E. 71st, Lot 27, Block C, Boca Harbor. Work started May 17, 1980. Permit taken out on May 19, 1980. Mrs. Meinhard, 1230 S.W. 7th Street, Lot 6, Block 29, Boca Raton Square. Work started on May 7, 1980. Permit taken out on May 19, 1980. Ms. Mary Greenhauer, 986 S.W. 14th Street, Lot 20, Block 63, Boca Raton Square. Work started on May 3, 1980. Permit issued on May 19, 1980. Although the Respondent Rohrback eventually received the permits for these projects, he also initially failed to obtain a license to do contracting in the City of Boca Raton as required by ordinance. On or about August 11, 1980, the City of Boca Raton Contractor's Board suspended the Respondent Rohrback indefinitely from doing business in the city for: using alternate materials and methods without clearance; not obtaining building permit; not filing a proper permit; and not filing proper proof of a certificate of competency. At the time of the hearing before the local contractor's board, the Respondent Rohrback had settled and obtained releases with two of the listed individuals. He was told to settle the remaining two cases, obtain releases and appear before the local Board at a later date. The Respondent appeared on the designated date and discovered that the Board had met the previous day and suspended his license. The Respondent Rohrback contacted the Boca Raton city attorney and a representative of the Department to present the signed releases and cancelled checks he eventually obtained from the four listed individuals in order to obtain a reversal of the local Board's action suspending his license. At the time of hearing, the Respondent had been unsuccessful in obtaining a reversal of the Board's decision. Additionally, the Respondent Rohrback acted as qualifying agent for D.R.K. Company from July 1, 1979 through February 1981. During this period of time, D.R.K. utilized deceptive practices in order to obtain contracts from various individuals. By certified letter dated June 12, 1980, the Respondent informed D.R.K. and pertinent licensing boards that he was withdrawing as qualifying agent for D.R.K. and Statewide Insulation and Solar Systems, Inc., and revoking any presigned permits or letters of authorization that may have been signed by John W. Rohrback. However, the Respondent did not actually attempt to revoke his authorization until October 28, 1980, when a letter was sent to Milton Rubin, administrative assistant to the Florida Construction Industry Licensing Board, outlining the problems he had encountered with D.R.K. and Statewide. On or about February 19, 1981, the Lee County Board of County Commissioners suspended the Respondent Rohrback's privilege to pull building permits.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered dismissing the Administrative Complaint filed against the Respondent John W. Rohrback in Case No. 82-2616. DONE and ORDERED this 28th day of March, 1983, in Tallahassee, Florida. SHARYN L. SMITH, 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 28th day of March, 1983. COPIES FURNISHED: Michael J. Cohen, Esquire Suite 101 Kristin Building 2715 East Oakland Park Blvd. Fort Lauderdale, Florida 33306 John W. Rohrback 10282 Northwest 31st Street Coral Springs, Florida 33065 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue At issue herein is whether or not the Respondent/Licensee, Tomas Perez, d/b/a Lifetime Chemicals of America, Inc. (Lifetime), engaged in conduct which will be set forth hereinafter in detail, which warrants the Florida Construction Industry Licensing Board (Board) to take disciplinary action respecting his license and to impose an administrative fine based on said alleged conduct.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and the entire record compiled herein, the following relevant facts are found. Tomas Perez, d/b/a Lifetime Chemicals of America, Inc. (Respondent), is a certified general contractor who holds license No. CGCA 04170, which is active. On September 24, 1975, Mr. Perez used his license to qualify Lifetime Chemicals of America, Inc., as the entity through which he would conduct his business activities (Petitioner's Exhibit 1). On August 15, 1978, Lifetime Chemicals of America, Inc. , entered into an agreement with James Laughery of Fort Myers, Florida, for a franchise agreement to use Lifetime's license in the immediate area of Fort Myers, Florida (Petitioner's Exhibit 5). That agreement provides, among other things, that Respondent Lifetime authorized James Laughery to use its license in the Fort Myers area for a fee of $50.00 per job or $1,500.00. The agreement does not provide, nor was any evidence offered to establish that Respondent Perez played any supervisory or managing role in agent Laughery's contracting activities in the Fort Myers area. During October of 1978, Mr. Andrew Szarfran entered into an agreement with Respondent's agent, Laughery, to perform certain roofing repairs to his residence for the sum of $1,000.00. Mr. Szarfran paid Laughery $500.00 and Laughery abandoned the project prior to completion (Testimony of Szarfran and Petitioner's Composite Exhibit 4). Mr. Szarfran engaged the services of another contractor to complete the project. On May 17, 1979, the Lee County Construction Board reviewed a complaint filed against Respondent by the Szarfrans. Based on that review, the Lee County Construction Board revoked Respondent's licensing privileges in the county at its June, 1979, meeting (Petitioner's Exhibits 3 and 4 and testimony of witnesses Richard M. McDole and Maxine Allred, Administrative Director of Court Enforcement and Permit Clerk, respectively, for Lee County). On or about October 17, 1978, Respondent's agent, Laughery, also entered into an agreement with Mr. and Mrs. Arthur Swanson for the erection of aluminum siding to the exterior walls of their residence for a full price of $5,000.00. The Swansons gave Respondent's agent, Laughery, a downpayment of $2,500.00 and agent Laughery abandoned the project prior to the commencement of any work (Petitioner's Exhibits 7 and 8 and testimony of Mrs. Swanson). Richard Newmes, the chief inspector for building and zoning, Cafe Coral, Florida, testified that the Construction Industry Licensing Board for Cape Coral, Florida, revoked Respondent's contractor license on January 17, 1979, based on his violation of Cape Coral Code Section 5-1/2 - 21(J), to wit: "Failure to make good faulty workmanship or materials performed or installed to evade performance of the contract or specifications as agreed upon." (Petitioner's Exhibit 9.) On or about January 4, 1979, Lifetime Chemicals of America, Inc., became aware of its agent, James Laughery's mismanagement of funds and his failure to honor contractual obligations he had entered in the Fort Myers area. Respondent and its agent Laughery therefore entered into an agreement which rendered the franchise agreement between the parties null and void. Agent Laughery, in said agreement, promised to pay, from his commissions due, monies owed to Lifetime Chemicals, Inc., which apparently was brought about due to the restitution that Lifetime Chemicals had made to customers whom agent Laughery had defaulted. As mitigating evidence, it was noted that the Respondent, Tomas Perez, was not party to or familiar with the activities and/or difficulties that the designated agent for Lifetime Chemicals of America, Inc., James Laughery, was encountering in the Fort Myers vicinity before early January, 1979. As soon as Respondent became aware of Laughery's problems, steps were immediately taken to halt such acts insofar as they related to Respondent (Testimony of Tomas Perez and Michael Arfaras).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law and the mitigating evidence which revealed that although the Petitioner is authorized and in fact holds the qualifier license of a registered entity responsible for the acts of its agents, in view of the undisputed evidence which reflects that neither Respondent Perez or Respondent Lifetime Chemicals of America, Inc., in any manner benefited from the acts of its agents and in fact attempted to thwart the illegal acts of its agent as soon as such became known, it is hereby RECOMMENDED: l. That the Respondent, Tomas Perez's Certified General Contractor's license, CGCA 04170, be placed on probation for a period of one (1) year. 2. That the Respondents, Tomas Perez and Lifetime Chemicals of America, Inc. , be issued a written letter of reprimand. RECOMMENDED this 24th day of April, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, 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 24th day of April, 1980. COPIES FURNISHED: Barry Sinoff, Esquire 2400 Independent Square Jacksonville, Florida 32202 Tomas Perez 2395 West 12th Avenue Hialeah, Florida 33010 Michael Harold Arfaras 820 S.W. 20th Avenue Miami, Florida 33135 Mr. J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. CASE NO. 79-2173 THOMAS PEREZ, CGCA 04170 Respondent. /
The Issue Whether Respondent, Ronald Mustari, violated Section 489.129(1)(r), Florida Statutes, as alleged in the Administrative Complaint and, if so, what disciplinary action should be taken against Respondent's license to practice contracting.
Findings Of Fact At all times pertinent to this proceeding, Respondent, Ronald Mustari, was a certified residential contractor, having been issued license number CR C036684 by the Florida Construction Industry Licensing Board in 1986. On or about April 29, 1991, Respondent was licensed as the qualifying agent for Whitehall Development Corporation (Whitehall Development), and served in this capacity at all times material to this proceeding. As the qualifying agent, Respondent was responsible for all of the contracting activities of Whitehall Development. Furthermore, at all times pertinent hereto, Respondent was president of Whitehall Development. On or about October 9, 1989, Whitehall Development entered into a subcontract agreement with Anchor Air Conditioning, Inc. (Anchor Air Conditioning), whereby Anchor Air Conditioning would provide services for Whitehall Development. Subsequently, a dispute arose between Anchor Air Conditioning and Whitehall Development regarding the subcontract agreement. As a result thereof, in 1993, Anchor Air Conditioning filed a civil complaint against Whitehall Development in the Manatee County Circuit Court, Case No. CA-93-4210. The complaint alleged that Whitehall Development owed money to Anchor Air Conditioning pursuant to the terms of the subcontract agreement. Whitehall Development contested liability and responded by filing counterclaims against Anchor Air Conditioning. After contesting the issue of liability for more than two years and incurring more than $20,000 in attorney fees, Respondent concluded that continuing to litigate this matter was not a viable option given Whitehall Development's insolvency at that time. Furthermore, Respondent determined that it would be futile for Whitehall Development to pursue its counterclaims in the civil matter because Anchor Air Conditioning was insolvent. On May 9, 1996, the Circuit Court for the Twelfth Judicial Circuit in and for Manatee County, Florida, entered a Final Judgment in Case Number CA-93-4210, in favor of Anchor Air Conditioning against Whitehall Development in the amount of $18,118. The Final Judgment was the result of a negotiated, stipulated Settlement Agreement entered into between Whitehall Development and Anchor Air Conditioning. Currently, Whitehall Development has no funds or assets and is no longer doing business. In 1992, and prior to Anchor Air Conditioning's filing the complaint against Whitehall Development, the Internal Revenue Service placed a lien on all property and rights to property owed to Anchor Air Conditioning. The lien was to cover outstanding assessments owed by Anchor Air Conditioning to the Department of Treasury-Internal Revenue Service for the tax periods ending December 31, 1988; December 31, 1989; and June 30, 1990. In September or October 1992, Whitehall Development received a copy of Notice of Levy dated September 25, 1992. According to the Notice of Levy, Whitehall Development was required to pay any money it owed to Anchor Air Conditioning to the Internal Revenue Service. As of June 13, 1997, this Notice of Levy remained in effect. As of the date of the final hearing in this matter, Whitehall Development has not satisfied the Final Judgment in Case No. CA-93-4210. Whitehall Development has failed to pay the funds due and owing to Anchor Air Conditioning pursuant to the Final Judgment to the Internal Revenue Service.
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 violated Section 489.129(1)(r), Florida Statutes; imposing a fine of $1,000; placing his license to practice contracting on probation, under such terms and conditions as prescribed by the Construction Industry Licensing Board; and assessing the costs associated with the investigation and prosecution of this case. DONE AND ENTERED this 13th day of August, 1997, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1997. COPIES FURNISHED: Paul F. Kirsch, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Robert E. Messick, Esquire Icard, Merrill, Cullis, Timm, Furen and Ginsburg, P.A. 2033 Main Street, Suite 600 Sarasota, Florida 34237 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Rodney Hurst, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467
