Findings Of Fact At all times material hereto, Daniel Frank Molinari (Respondent) was a certified plumbing contractor, being licensed by the Florida Construction Industry Licensing Board (CILB) and having been issued license numbers CF C021437 and CF C041671. On or about March 20, 1990, the State Attorney of Dade County, Florida charged Respondent by Information with an attempted offense against intellectual property in violation of Sections 815.04(3) and 777.04, Florida Statutes, a misdemeanor: "[Respondent] on the 19th day of February 1990 . . . willfully, knowingly, without authorization, attempt to disclose or take data, programs, or supporting documentation, to wit: The CONTENTS of a CONTRACTOR'S LICENSING EXAMINATION, which is confidential as provided by law, residing or existing internal or external to a computer, computer system, or computer network. . ." On or about July 30, 1990, Respondent pled nolo contendere to the misdemeanor charge. Based upon Respondent's plea of nolo contendere, the Dade County Judge entered a judgement finding Respondent guilty as charged, withholding adjudication and imposing costs in the amount of $300.00. In the Dade County judicial circuit, a judge usually makes a finding of guilt when a defendant pleads nolo contendere even if adjudication is withheld. Typically, items in a CILB examination are reused on subsequent exams. However, each examination must contain a certain percentage of new items. Because of Respondent's attempted act, the CILB considered the items on the contractors examination in 1990 to be compromised and, therefore, unusable for subsequent examinations. The 1990 CILB examination consisted of two hundred and twenty-one (221) items. Consequently, 221 new items had to be developed at a cost of approximately $100.00 per item. On or about June 10, 1993, Respondent submitted to the CILB a Certification Change of Status Application (Application) to activate his inactive certified plumbing contractor license (license number CF C041671). Question 7(H) of the Application inquired whether Respondent had ever "Been found guilty of any crime other than a traffic violation". He responded "no" to the question. The Application required an affirmation, and Respondent so affirmed, that "these statements are true and correct and I recognize that providing false information may result in a fine, suspension, or revocation of my contractor's license." Respondent's request for activation could have been denied if he had responded "yes" to question 7(H) of the Application.
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 Count II of the administrative complaint in DOAH Case No. 94-5259; Dismissing all counts of the administrative complaint in DOAH Case No. 95-0199; Revoking Respondent's licenses; Imposing costs for the investigation and prosecution to be determined by the construction Industry Licensing Board. DONE AND ENTERED this 29th day of August, 1995, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 29th day of August, 1995.
The Issue The issue is whether Petitioner’s application for certification as a plumbing inspector should be granted.1/
Findings Of Fact Respondent is the executive branch agency within the Department of Business and Professional Regulation (DBPR) charged, among other duties, with administering part XII, chapter 468, Florida Statutes, and issuing standard and provisional certification of plumbing inspectors. On March 8, 2013, Petitioner submitted an application to the Board for initial certification by examination as a plumbing inspector. The application included sections for Petitioner’s personal information, method of qualification for certification, employment history, education, background information, affidavits of work experience, and an affirmation by written declaration executed by Petitioner.5/ The Board has an application review committee (ARC) composed of code enforcement professionals. One of the requirements that the ARC had to determine was whether Petitioner had clearly demonstrated five years of experience related to plumbing in order to be approved for the examination. Such experience could have been broken down into having done plumbing, inspected plumbing, or performed plumbing plan reviews. Petitioner submitted several affidavits to establish the requisite five years of experience necessary to qualify for the plumbing inspector certification examination. The instructions in “Section VIII-Work Experience” provided: 6/ This section must be completed by an architect, engineer, contractor or building code administrator, who has personal knowledge of the applicant’s experience for the period of time listed below. Instructions: Provide employment verification for the years of experience required for qualification for certification. Attach additional copies of this page as necessary. Note: Local Government Employees- To qualify for the fee reduction local government employees must provide Work Experience showing current employment with a local government agency that is signed by the building code administrator. * * * Describe in detail the applicant’s duties, including hands-on, supervisory or management responsibilities. Please be specific when explaining the applicant’s duties and hands- on experience. Mr. Thorne, the current Longboat Key building official, has supervised Petitioner for approximately two years, the length of his employment with Longboat Key. Petitioner submitted an affidavit by Mr. Thorne to demonstrate Petitioner’s work experience. Mr. Thorne’s affidavit did not provide the specific duties and hands-on experience to reflect the required plumbing experience. Mr. Thorne did not provide any additional supportive information during his testimony. J. Kent Kimes, the president of Kimes Engineering/Southwest Florida Building Inspections, and Harry R. Fowler, the former Longboat Key building official, both provided affidavits purporting to support Petitioner’s application. Neither affidavit described in specific terms Petitioner’s experience, job duties or overall knowledge of the plumbing trade. The affidavits did not provide the necessary information to support Petitioner’s application, nor did they accurately reflect the time of their respective supervision of Petitioner. Petitioner is employed by a public entity, the City of Longboat Key. The Board has issued him several licenses including: “a standard plans examiner’s license with the endorsements of electric and mechanical and plans examiner;” and “a Florida standard inspector’s license . . . with the endorsements for building, commercial electric; 1 and 2 family dwelling inspector; mechanical inspector, which would be commercial; and residential electrical inspector.” However, the experience required for these licenses could not be used to appropriately demonstrate how much experience Petitioner had in the plumbing trade. At all times material, Robert McCormick was the Board’s Chairman, and a member of the ARC. Mr. McCormick is a master electrician, a certified building official, a certified building code administrator, a plans examiner, a plans inspector and a member of the Council of the American Building Officials. He was tendered as and accepted as an expert. Each construction trade has a specific and complex code of regulations. Inspectors in each category must ensure compliance with that trade’s regulations. Plumbing inspectors must be versed in both residential and commercial construction codes. The plumbing trade is, at minimum, concerned with water systems, drains, pipes, and gas. Both the ARC and the Board were looking for affidavits that showed specific expertise in the plumbing trade category, not just experience in a general sense. The Board denied Petitioner’s application for certification as a plumbing inspector because his application: [d]oes not demonstrate, affirmed by affidavit signed by an architect, engineer, contractor, or building code administrator that you have the required experience for the certification sought.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Building Code Administrators and Inspectors Board issue a final order denying Petitioner’s application for certification as a plumbing inspector. DONE AND ENTERED this 27th day of August, 2014, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 27th day of August, 2014.
The Issue Respondent was charged in a November 19, 1998, Administrative Complaint, filed December 7, 1998, with ten counts of professional violations. The statutory violations alleged are: Count I: Section 489.129(1)(a), Florida Statutes (1995), obtaining a certificate or registration as a Certified Roofing Contractor by fraud or misrepresentation; Count II: Section 489.129(1)(h)2, Florida Statutes (1995), by committing mismanagement or misconduct in the practice of contracting that caused financial harm to a customer; Count III: Section 489.129(1)(k), Florida Statutes (1995), by abandoning a construction project in which the contractor is engaged or under contract as a contractor; Count IV: Section 489.129(1)(m), Florida Statutes (1995), by committing fraud or deceit in the practice of contracting; Count V: Section 489.129(1)(n), Florida Statutes (1995), by committing incompetency or misconduct in the practice of contracting; Count VI: Section 489.129(1)(p), Florida Statutes (1995), by proceeding on a job without obtaining the applicable local building department plumbing permits and inspection; Count VII: Section 489.129(1)(p), Florida Statutes (1995), by proceeding on a job without obtaining the applicable local building department electrical permits and inspection; Count VIII: Section 489.129(1)(p), Florida Statutes (1995), by proceeding on a job without obtaining the applicable local building department framing, insulation, and/or final inspections; Count IX: Section 489.129(1)(o), Florida Statutes (1995), by committing gross negligence, repeated negligence, or negligence resulting in a significant danger to life or property; and Count X: Section 389.129(1)(c), Florida Statutes (1995), by violating any provision of Chapter 455, to wit, Section 455.227(1)(o), practicing beyond the scope permitted by law and performing professional responsibilities the licensee knows, or has reason to know, he is not competent to perform.
Findings Of Fact At all times material to the allegations of the Administrative Complaint, Respondent was a Certified Residential Contractor, having been issued license number CR C057235, by the Florida Construction Industry Licensing Board. At the time of hearing, Respondent's license had been suspended. Since January 27, 1998, Respondent also has been a Certified Roofing Contractor, having been issued license number CC C057649, by the Florida Construction Industry Licensing Board. At no time material was Respondent licensed, registered, or certified to perform electrical work. At no time material was Respondent licensed, registered, or certified to perform plumbing work. On or about February 27, 1997, Respondent entered into a $39,050.40, contract with Reuben M. Adams to restore and repair the Adamses' home at 7037 Mark Street in Jacksonville, Florida, which had been destroyed by fire on February 1, 1997. The work contracted-for included complete restoration of the living room, kitchen, two hallways, two bathrooms, four bedrooms, a laundry room, and a dining room; restoration of heat and air conditioning; and a virtually new roof. Among the electrical and plumbing restoration involved, Respondent specifically agreed to install a ceiling fan and a light kit in the living room; install a sink and faucet for the sink and a ceiling light fixture and vented range hood in the kitchen; install a ceiling light fixture in a hallway; remove floor mounted with tank commode and reinstall a floor mounted with tank commode; replace commode sink, remove and reinstall sink, install new faucet for the sink, install shower head and faucet set for bathtub, install bathroom exhaust fan and light kit for ceiling fan in the bathroom; install ceiling fan and light kit in bedrooms; replace faucet for sink and provide a shower head, faucet set and install a ceiling light fixture in the second bathroom; install a ceiling fan and light kit in the third and fourth bedrooms and dining room and hallway; install 960 square foot electrical and provide temporary utilities for dimensions of 40 feet by 24 feet by eight feet. These types of activities require electrical and plumbing licensure. On or about April 15, 1997, Respondent received and endorsed the first draw check of $22,245.23 from the Adamses. In May 1997, Respondent's site supervisor, Aaron Mitchell, requested that Mr. Adams give him $1500.00, cash to buy materials because Respondent was out of town and Mitchell could not perform the work without the materials. Mr. Adams paid this amount in cash to Mr. Mitchell but was never reimbursed by either Mr. Mitchell or Respondent. In early June 1997, the Adamses became concerned because little work had been completed on the restoration of their home. The house had been cleaned out and gutted and the slab for the room addition had been poured. Mr. Adams contacted Respondent several times about the lack of work being performed on the home. Between mid-June and early July 1997, Respondent completed the framing and installed the roof. On or about July 24, 1997, the Adamses released the second draw of $11,122.62 to Respondent, and Respondent deposited the money into his bank account. In approximately August 1997, Respondent ran electrical wire in the roof, installed electrical outlets in the walls, and completed the electrical work, including installing electrical outlets in the walls. Mr. Adams personally observed Respondent and his workers performing electrical wiring. The electrical work performed by Respondent required licensure as an electrical contractor, that a permit be obtained prior to the electrical work being performed, and that inspections of the electrical work be made before the walls were sealed up over the electrical work. Respondent failed to obtain a permit or to have an electrical inspection performed. Respondent completed the electrical work and covered up the electrical work with the walls without an inspection being performed. Respondent performed plumbing work on the Adamses' home, although he held no plumbing license. Respondent failed to pull a permit for the plumbing work and failed to call for the required inspections. Ultimately, he covered up the plumbing work with the walls without an inspection having been performed. The City of Jacksonville "red-tagged" the home for this reason. The effect of "red-tagging" was to prevent occupancy until compliance with the building code was assured. Such assurance required inspection, which in turn, ultimately required that at least the interior walls be taken down. Respondent also never obtained a framing, insulation or final inspection on the project. In October 1997, the Adamses filed complaints against the Respondent with the State Attorney's Office and the Department of Business and Professional Regulation (Case No. 97-18544). On or about October 31, 1997, Respondent signed a Letter of Intent with Mr. and Mrs. Adams agreeing to have their home ready for occupancy no later than December 1, 1997, and promising that Respondent would be responsible for all permits and inspections necessary for the project to be considered complete. At that time, Respondent apologized for all of the delays, the decline in their relationship, and the stress he had caused. Respondent and Mrs. Adams prayed together, and Respondent promised that from that day forward, the Adamses would see progress on their home every day until it was finished. Respondent did not abide by the requirements set forth in the Letter of Intent. Specifically, he never obtained the required permits and inspections. Mr. Adams confronted Respondent about the permits and the inspections, and the Respondent indicated that he had the permits at his office. He assured Mr. Adams that he was taking care of the electrical permit. In December 1997, Respondent requested that Mr. and Mrs. Adams drop their complaint with Petitioner Department of Business and Professional Regulation because he had applied for his roofing license and the complaint was holding up that roofing license being granted. Respondent told the Adamses that if they would drop their complaint, he could obtain his roofing license, which would allow him to generate money to complete their project. Around mid-January 1998, Respondent requested that the Adamses release the final construction draw and drop their complaints with Petitioner and the State Attorney. Respondent stated that if they paid him the final draw of $5,682.55, he would work every day on their project and have it ready for them to move in no later than February 4, 1998. The Adamses paid Respondent the remaining construction draw of $5,682.55, and withdrew their complaint with Petitioner. Respondent accepted the final draw on or about January 27, 1998. Respondent obtained his roofing license after the Adamses withdrew their complaint with Petitioner. After receiving the final construction draw, Respondent did minimal work on the project in January. On or about February 23, 1998, the Adamses reinstated their complaint with Petitioner against Respondent, resulting in the instant case. Respondent has not returned to work on the Adamses' project since March 1998. As of March 1998, Respondent had been paid the full contract price, but the home remained uninhabitable. The workmanship was substandard and the project was less than 100 percent complete. As a result of Respondent's unlicensed electrical and plumbing work on the Adamses' home and his covering-up his work with the walls, the Adamses were unable to obtain an inspection without the walls being taken down. This in turn, required that the walls be rebuilt. In addition to the money paid to Respondent for work improperly done or not done at all, the Adamses had to pay another builder $14,900.00, to remove the walls, re-install the electrical wiring and plumbing which had been completed or partially completed by the Respondent, and complete the renovation. Testimony of Roy Brand, Raymond Smith, and Douglas Arnold supports a finding that Respondent committed repeated negligence and created a dangerous condition when he performed electrical and plumbing work which he was not licensed to do and which he did not have the knowledge to perform. Particularly upon the testimony of Mr. Brand, it is clear that three types of very serious electrical installation errors or omissions had been performed once or more than once by Respondent. At least one of these would have been sufficient, under certain circumstances, to burn down the entire house. By installing electrical universal polyethylene boxes and using them as junction boxes, a purpose for which they were not designed, Respondent created what Mr. Brand described as "short of a 'Molotov Cocktail' that would burn your house down just about as quick." Likewise, one serious error occurred in the type of glue Respondent used on plumbing pipe throughout the home. Mr. Brand gave credible expert evidence that the construction undertaken by Respondent was undertaken for a reasonable amount of $39,050.40, and that a reasonable time to construct the entire contract would have been two and one half to three months after permitting. In addition to the money Mr. and Mrs. Adams paid to Respondent and the substitute contractor, Douglas Arnold, they incurred additional expenses and spent additional time out of their home as a result of Respondent's shoddy workmanship and unlicensed electrical and plumbing work. The Adamses also had to take out a second mortgage of $18,800.00 at 16.3 percent interest for 15 years in order to finance the repairs necessitated by Respondent's substandard and incompetent work, so that they could move back into their home. Mr. and Mrs. Adams and their child had to live somewhere during construction. Their insurance company paid them $750.00, for each of three months. However, they were unable to move back into their home from August 1997 until November 1998, as a direct result of Respondent's incompetence and misconduct.3 During this fifteen-month period, the Adamses paid $300.00 rent per month to Mrs. Adams' mother, plus an additional $100.00 per month for water and utilities, and storage fees of $119.00 per month to a storage facility for keeping their items which had not been destroyed by the fire The Adamses also incurred an additional expense of $1,500.00, for an air conditioning unit which Respondent was to have purchased under their contract with him.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board enter a final order that: Finds Respondent guilty of one violation of each of the following: Sections 489.129(1)(h)(2); (1)(k); (1)(m); (1)(n); (1)(p); (1)(o); and (1)(c), Florida Statutes (1995); Revokes Respondent's General Contractor's and Roofing Contractor's licenses; Imposes a total fine for all violations, in the amount of $30,000.00; and Requires Respondent to pay restitution to Mr. and Mrs. Adams in the amount of $49,835.00. DONE AND ENTERED this 1st day of May, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 2000.
Findings Of Fact The Respondent, Marlene E. Lutman, is a vice president of American Custom Builders, Inc. and was a vice president in 1977. Respondent holds licenses Number CR C012570 end Number CR CA12570 issued by the Petitioner Board. On September 11, 1978, Respondent submitted a certification change of status application to the Florida Construction Industry Licensing Board. This application, completed by Respondent under oath on September 7, 1978, was filed for the purpose of changing the contractor's licenses held by Respondent to add the name of American Custom Builders, Inc. to said licenses. On July 6, 1979, an Administrative Complaint was filed against Respondent, doing business as American Custom Builders, Inc., seeking to permanently revoke her licenses and her right to practice under said licenses and to impose an administrative fine in the amount of $500.00. Respondent Lutman requested an administrative hearing, which was scheduled for September 6, 1979, continued on Motion of Respondent, and held November 29, 1979. On the application completed by Respondent, Question 12(b) asked: Are there now any unpaid past-due bills or claims for labor, materials, or services, as a result of the construction operations of any person named in (i) below or any organization in which such person was a member of the personnel? Question 12(c) of the application asked: Are there now any liens, suits, or judgments of record or pending as a result of the construction operations of any person named in "(i) below" or any organization in which any such person was a member of the personnel? Respondent, as a vice president of American Custom Builders, Inc., was designated in "(i) below." She answered "no" on the application to both of the above stated questions. Respondent completed the application while she was in Florida. Prior to completing the application, Respondent spoke by telephone with John D. Cannell, an attorney in Ohio, in reference to Questions 12(b) and 12(c), supra. Cannell told Respondent that there were no unpaid bills outstanding. He said that there had been liens filed involving American Custom Builders, Inc., but that these liens had been cancelled. Cannell based his statements to Respondent upon oral assurances from personnel at the bank involved in financing the construction project associated with the liens that all liens had been paid. It was later learned that on September 7, 1978, the date Cannell told Respondent the liens had been cancelled, the liens had not been cancelled and were of record in the Recorder's Office of Geauga County, Ohio. Liens had been filed on January 6, 1978, January 23, 1978, and January 3l, 1978, by various subcontractors involved in the construction of a house owned by Winford and Sally Ferrentina. The liens were based on claims against American Custom Builders, Inc. as general contractor and the Ferrentinas as owners for unpaid labor and materials and were not satisfied of record until September 20, 1978, on which date the January 6, 1978 lien was satisfied, and March 22, 1979, on which date the other two (2) liens were satisfied. The Hearing Officer finds that Respondent Lutman did not intend to make a material false statement but negligently relied on oral representations that there were no past-due bills and no liens of record pending as a result of her construction operations. Both parties submitted proposed findings of fact, memoranda of law and proposed recommended orders, and the Petitioner Board submitted a reply memorandum. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this order they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based upon the foregoing Findings and Conclusions of Law, the Hearing Officer recommends that the Respondent, Marlene Lutman, be reprimanded. DONE and ORDERED this 1st day of February, 1980, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Jeffery B. Morris, Esquire 2400 Independent Square One Independent Drive Jacksonville, Florida 32202 Jeffrey R. Garvin, Esquire 2532 East First Street Post Office Box 2040 Fort Myers, Florida 33902 DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. DOAH CASE NO. 79-1546 Marlene Lutman, CR C012570, CR CA 12570 Respondent, /
The Issue The basic issue in this case concerns whether the Petitioners are entitled to reimbursement from the Construction Industries Recovery Fund.
Findings Of Fact On or about December 5, 1994, the Petitioners entered into a contract with an entity named James Plumbing, Inc., pursuant to which James Plumbing, Inc., agreed to perform specified plumbing work for a two-story duplex the Petitioners were building. The total contract price for the plumbing work was $10,000.00. Article 4 of the contract, titled "Progress Payments," contained the following language: On completion of rough-in plumbing $4,000.00 is due, at top out of all riser pipes and runs for plumbing an additional $4,000.00. The final payment of $2,000.00 to be paid upon final completion and hookup of all plumbing items and approval of same by City of Delray Building Department. A lien release will be required upon final payment by James Plumbing, Inc. Owner's (sic) will furnish lien release to James Plumbing, Inc., for execution. The contract described above also included language to the effect that the work to be performed under the contract would be commenced "as per owner/builder schedule," and the work would be substantially completed in the spring or summer of 1995 "as per schedule of owners." At the time of the signing of the contract described above, and at all other times material to this case, James Plumbing, Inc., was a Florida corporation that had been administratively dissolved by the Florida Department of State. At the time of the signing of the contract described above, and at all other times material to this case, an individual named James West was licensed by the CILB as a "Certified Plumbing Contractor." At the time of the signing of the contract described above, and at all other times material to this case, James West purported to be the "qualifier" for the entity known as James Plumbing, Inc. James West was the original incorporator of the corporation named James Plumbing, Inc. At all times material to this case, James West was the only person who had any ownership interest in, or had any control over the affairs of, the corporation named James Plumbing, Inc. James West, doing business under the name of the defunct corporation named James Plumbing, Inc., finished the "rough-in" in June of 1995 and finished the "top out" in March of 1996. Consistent with the terms of the contract, he was paid $4,000.00 in June of 1995 and he was paid $4,000.00 in March of 1996.1 For several reasons not material to the issues in this case, progress on other aspects of the construction project took longer than expected and in was not until the spring of 1999 that the Petitioners contacted James West to schedule the completion of the plumbing work under the contract signed in December of 1994. As a result of disagreements regarding the scheduling of the plumbing work, by letter dated April 12, 1999, the Petitioners advised James West that they had elected to terminate the plumbing contract dated December 5, 1994. Neither James Plumbing, Inc., nor James West individually ever performed the work that remained to be performed under the contract dated December 5, 1994, after the "top out" that was completed in March of 1996. In order to finish the plumbing work that remained to be done under the contract dated December 5, 1994, the Petitioners hired another plumbing contractor, Lee Wilder Plumbing, Inc. ("Wilder"). During the course of finishing the plumbing work, Wilder discovered that some of the work done by James West was incomplete and that some of the work done by James West had been done improperly and had to be redone. Wilder finished the work that remained to be done under the contract dated December 5, 1994, and also corrected the mistakes in the work that James West had done. For these services the Petitioners paid Wilder a total of $2,967.50. In order to correct the mistakes made by James West, it was also necessary to remove portions of existing interior walls and to then rebuild and paint those portions of the interior walls. This work on the interior walls cost the Petitioners an additional $1,000.00. As a result of the matters described in paragraphs 6, 7, and 8, above, the completion of the Petitioners' building was delayed. By reason of the delay, the Petitioners lost rental income in the amount of $4,350.00. The Petitioners filed a civil action in the County Court in Palm Beach County, Florida, against James West seeking to recover compensation for the harm caused by the failure of James West to properly perform his obligations under the contract of December 5, 1994. On September 3, 2002, the Petitioners obtained a final judgment against James West, individually. The judgment was in the total amount of $8,082.35, comprised of the following elements: Plumbing completion and repairs $2,967.50 Demolition and repair of walls $1,000.00 Cost of water heaters2 $400.00 Loss of rental income $4,350.00 Subtotal $8,717.50 Less $2,000.00 set off ($2,000.00) Plus prejudgment interest $1,364.85 Total Judgment $8,082.35 The final judgment includes the following language: Under the contract, work was to be completed by spring or summer, 1995. The Defendant actually finished the top-out installation in 1996 but the project was delayed due to a dispute the Plaintiffs had with the city in regard to paving an alley. The Plaintiffs contacted the Defendant in 1999 to finish the work, however, the Defendant requested additional money which he wanted up front. The Plaintiffs did not mind the additional money but objected to paying up front. They terminated the 1994 contract and hired Lee Wilder Plumbing, Inc., to complete the job of installing the fixtures. In May, 2000, the Plaintiffs discovered there was no hot water. The Defendant refused to come out and check on the problem so Lee Wilder Plumbing, Inc., was called. The evidence showed that cuts had to be made in the walls and floor to find the problem. While the Defendant asserts that the problem was crossed pipes which was easy to correct, he never came out to look at the job site. Instead, the evidence showed that there was a hot water pipe missing, that the two cold water pipes were not connected to anything and a new pipe had to be installed getting hot water to the second floor. The evidence further showed that the Defendant did all of the rough plumbing under the slab and top- out plumbing inside of the walls. Pursuant to F.S. 95.11(3)(c), the Court finds the plumbing defect to be a latent defect. Further, the Court finds that the Defendant is responsible for that latent defect. In addition to damages to correct the latent defect, the Plaintiffs seek damages for the cost of hot water heaters and loss of rent/loss of use for three months delay to correct the plumbing problem. It is well settled that the purpose of damages are (sic) to place the injured party in the position it would have been. Tucker v. John Galt Ins. Agency Corp., 743 So. 2d 108 (Fla. 4th DCA 1999). The Court finds that Plaintiffs are entitled to [re]cover the cost of repairing the latent defect in the amount of $2,967.50 and $1,000.00 for the cost of repairing the walls and floor. Further, the Plaintiffs are entitled to recover for the cost of the water heaters of $400.00 and loss of rental income for one unit at $4,350.00. In addition, the Defendant is entitled to a set off of $2,000.00, as the Plaintiffs agreed to pay the Defendant $10,000.00 for the plumbing work in which they actually paid the Defendant $8,000.00. The measure of damages is the cost to complete contract price because parties already agreed to pay contract price for completed work. American Structural Systems, Inc. v. R. B. Gay Const. Co., Inc., 619 So. 2d 366 (Fla. 1st DCA 1993). Measure of damages is contract price diminished only by damages suffered. Fleming v. Urdl's Waterfall Creations, Inc., 549 So. 2d 1057 (Fla. 4th DCA 1989). In addition to the final judgment described above, the Petitioners also received a judgment for costs against James West in the amount of $972.27. The amounts of the final judgment ($8,082.35) and the judgment for costs ($972.27) total $9,054.62. Following the entry of the judgments against James West, the Petitioners made numerous unsuccessful efforts to satisfy the judgment. Despite diligent search and inquiry, the Petitioners were never able to locate any property of James West that could be applied to the satisfaction of the judgments against James West. On or about November 27, 2002, the Petitioners signed a claim form seeking restitution from the Construction Industries Recovery Fund. Their claim was received by the CILB on or about December 3, 2002. Following consideration of the Petitioners' claim, the CILB voted to deny the claim. An order to that effect was issued and filed on January 28, 2004. In that order the CILB gave the following reasons for its denial of the claim: Upon consideration of the documentation and testimony submitted, it is ORDERED: Claimants filed to satisfy all requirements for payment from the Recovery Fund. There is no evidence in the file to support the amount of actual damages suffered. Section 489.141(2)(c), states that a person is not qualified to make a claim for recovery from the Construction Industries Recovery Fund, if such person has suffered damages as the result of making improper payments to a contractor as defined in part I of chapter 713. There is no evidence in the file that the liens filed by subcontractors were valid liens under Chapter 713, Florida Statutes. At the beginning of the final hearing the Respondent stated on the record that it was still relying on the reason set forth in subparagraph a, above, but that it was abandoning the reasons for denial set forth in subparagraphs b and c, above. The Respondent also stated on the record that it was of the view that there were two additional reasons for denying the subject claim. The two additional reasons were described as follows: That the underlying court judgment on which the Petitioners' claim is based is not a judgment based on an act that constitutes a violation of subsections (g), (j), or (k) of Section 489.129, Florida Statutes, and That the corporation for which the individual contractor purported to be the qualifier was not licensed at the time of the violations that caused financial harm to the Petitioners. The Petitioners' first notice of the CILB's change in position appears to have been when these two new reasons were stated during the opening moments of the final hearing. In its proposed recommended order the Respondent raises for the first time a third new reason for denying the subject claim. This third new reason is set forth in the underscored portion of the following language from paragraph 28 of the Respondent's proposed recommended order: 29. An asset search indicates that there are no assets from which the judgment can be satisfied. However, James West held at the time of the judgment, and still holds today, an active license. There is no proof that Petitioners exhausted all efforts and demonstrated an inability to collect the judgment as required by Rule 61G4-21.003(2), Florida administrative Code.
Recommendation In view of all of the foregoing, it is RECOMMENDED that a final order be issued in this case concluding that the Petitioners are entitled to reimbursement from the Construction Industries Recovery Fund in the amount of their final judgment and their cost judgment, for a total reimbursement amount of $9,054.62. DONE AND ENTERED this 30th day of July, 2004, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 2004.
Findings Of Fact The Respondent is a certified general contractor holding license number CG C016888. The Petitioner is an agency of the State of Florida charged with enforcing the provisions of Chapter 489, Florida Statutes, regulating the licensure and practice status and standards of building contractors in the State of Florida and enforcing the disciplinary provisions of that chapter. On December 14, 1981, Respondent contracted with Mr. and Mrs. Frank J. Sullivan to build the Sullivans a home in Sarasota County, Florida. Those parties entered into a contract whereby the Respondent was to be paid the actual cost of construction including all labor and materials plus a commission in the amount of 8 percent of the actual cost of construction, provided however, that the total contract price would not exceed $49,000, including actual costs and commission. In January, 1982, Respondent commenced work constructing the home. The Respondent worked on the home for several months and then abruptly ceased and abandoned construction without explanation on May 14, 1982. At this time the house was approximately 70 percent complete. At the time the Respondent ceased work on the project he had already been paid $47,362.29 or approximately 97 percent of the total contract price agreed to by the parties. The Sullivans thereafter had to pay $10,633.53 to subcontractors and materialmen who had been hired by the Respondent to supply labor and/or materials to the house, at the Respondent's direction, prior to his ceasing construction and leaving the job. Additionally, the Nokomis Septic Tank Company, Inc., the subcontractor who installed the septic tank, was owed $1,180.07 by the Respondent for the installation of the septic tank, which amount was to have been paid out of the total $49,000 contract price. The Respondent failed to pay Nokomis Septic Tank Company, which then filed a mechanic's lien on the property. In order to remove this cloud on their title to the property and avoid foreclosure of the lien, the Sullivans were forced to pay the $1,180.07 amount of the lien. In addition to more than $10,000 paid to subcontractors who had already performed labor or supplied materials to the job before the Respondent left it, the Sullivans had to obtain a loan from their bank in order to finish the project. The contracted for items which the Respondent had left undone (approximately 30 percent of the construction) required them to expend $18,662.04 to complete the dwelling in a manner consistent with the contractual specifications. The items which remained to be constructed or installed are listed on Petitioner's Exhibit 7 in evidence. The remaining amount of contract price which the Respondent was due upon completion of the job would have been $1,737.71. With this in mind, as well as the fact that the Sullivans had to pay in excess of $10,000 to defray already outstanding bills to subcontractors for labor and materials already furnished and then had to obtain a loan in order to pay $18,662.04 in order to complete the house, and it being established without contradiction that the Respondent was unable to make his payroll at the point of leaving the job, the Respondent obviously used substantial amounts of the funds he received from the Sullivans for purposes other than furthering the construction project for which he contracted with the Sullivans. Concerning Count II, on December 22, 1981, Frederick Berbert doing business as Venice Enclosures of Venice, Florida, contracted with Mr. Emory K. Allstaedt of Grove City, Florida, Charlotte County, to build an addition to Mr. Allstaedt's mobile home. The contract specified a price of $4,952 for which Berbert was required to construct a 12-foot by 20-foot enclosure or porch. Mr. Allstaedt never did and never intended to contract with the Respondent, Mr. Martin, rather, his contract was only with Frederick Berbert. Mr. Berbert was a registered aluminum specialty contractor in Sarasota County. He was not registered or licensed to practice contracting in Charlotte County where Mr. Allstaedt lived and where the porch was to be constructed. On December 28, 1981, the Respondent obtained building permit number 72030 from the Charlotte County Building and Zoning Department to construct a "Florida room" for Mr. Allstaedt's mobile home, the same room to be constructed by Mr. Berbert. Under Charlotte County Ordinances in evidence as Petitioner's Exhibits 13 and 13A, only a properly licensed "A", "B" or "C" contractor or a registered aluminum contractor can perform this type of job. The Respondent was appropriately licensed for this type of work in Charlotte County, but Mr. Berbert was not and thus could not obtain the permit in his own right. The Respondent's only connection with this job was obtaining the permit in his own name as contractor of record and in performing some minor work in replacing some damaged sheets of paneling shortly after the construction of the room addition and after the performance of the contract by Berbert. Though the Respondent listed himself as contractor in order to be able to obtain a building permit for the job, he never qualified as the contractor of record nor "qualified" Mr. Berbert's firm with the Construction Industry Licensing Board. Both Mr. Berbert and the Respondent were aware that Mr. Berbert could not legally perform contracting in Charlotte County at the time the Respondent obtained the building permit on Berbert's behalf.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED: That the contractor's license of Jack A. Martin be suspended for a period of ten (10) years, provided however, that if he makes full restitution to the Sullivans of all monies they expended for labor, materials and permits to enable them to complete the work he had contracted to perform, within one year from a final order herein, that that suspension be reduced to three (3) years after which his license should be reinstated. DONE and ENTERED this 27th day of April, 1984, in Tallahassee, Florida. P. MICHAEL RUFF 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 30th day of April, 1984. COPIES FURNISHED: Charles P. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Jack A. Martin 305 Park Lane Drive Venice, Florida James Linnan, Executive Director Florida Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Respondent's License as a residential pool contractor should be suspended for alleged violation of Section 468.112(7), Florida Statutes. The Respondent did not appear at the hearing although proper notice thereof had been furnished under date of February 11, 1976 to him by the hearing officer. Accordingly, the hearing was conducted as an uncontested proceeding.
Findings Of Fact Respondent has been licensed as a registered pool contractor by the Florida Construction Industry Licensing Board since June 20, 1974. The license was not renewed for 1975/76 (Exhibit 4). Respondent filed a Voluntary Petition in Bankruptcy in the U.S. District Court for the Northern District of Florida, Bankruptcy No. TBK 75-25, on March 13, 1975 (Exhibit 5).
Recommendation That the registration of William R. MacKinnon as a residential pool contractor be suspended until such time as he meets the qualifications and other requirements for renewal of registration and applies therefor. DONE and ENTERED this 5th day of April, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 1976. COPIES FURNISHED: David Linn, Esquire 217 South Adams Street Tallahassee, Florida 32301 Mr. William R. Mackinnon Route 3, Box 584C Tallahassee, Florida 32303
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend that no action be taken against the licenses of K. C. Moore as a registered builder contractor. In addition, the testimony at the hearing revealed that subsequent to the institution of this complaint that Dr. 0. Rao, M.D., did make application to the Florida Construction Industry Licensing Board for licensure as a contractor, that his application was approved, and that upon successful completion of the Board's examination he was licensed. If K. C. Moore is in fact guilty of aiding or abetting or knowingly combining or conspiring with a person to violate Part II, Chapter 468, the person with whom he combined or conspired or who he aided or abetted was Dr. John 0. Rao. Although the Board may be limited under the statutory provisions in denying Dr. Rao the license, assuming the Board rejects the Hearing Officer's Conclusions of Law and finds the facts constitute a violation of the statutory provisions, there is an absence of essential fairness to proceed against the licenses of K. C. Moore while licensing the individual with whom he contracted. The disparity in treatment of K. C. Moore and Dr. John 0. Rao is a factor which must be considered by the Board. DONE and ORDERED this 20th day of July, 1977, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 R. Stephen Miles, Jr., Esquire Mile and Cumbie Post Office Box 517 Kissimmee, Florida 32741 Mr. J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner,
Findings Of Fact At all material times, Respondent has been a registered plumbing contractor, holding license number RF 0049725. He was first licensed in October, 1985, and has practiced plumbing contracting continuously since that time. Respondent has not previously been disciplined. In early 1989, Respondent entered into a subcontract with A-1 Properties to provide various plumbing labor and materials in connection with a residential construction job on which A-1 Properties served as general contractor. The total price of the subcontract was $5100. In general, Respondent performed his work in a timely and competent manner. A minor problem arose involving gas lines that Respondent installed in the kitchen. When a representative of the gas company inspected them during construction, he objected to certain fittings. After giving Respondent a few days to change the fittings, the owner authorized the gas company to make the changes when Respondent failed to do so. The record does not disclose what, if anything, the gas company charged the owner for the work. However, the work was not extensive, and the owner withheld from Respondent only $165 to cover the anticipated invoice from the gas company. In the course of performing the plumbing work, Respondent purchased, at a cost of $2117.77, materials from Shamrock Plumbing. The dates of the invoices reflecting these purchases and the amounts of the invoices are: August 2, 1989- - $1066.57; August 12, 1989--$37.77; August 25, 1989--$814.86; and August 25, 1989--$198.57. Respondent never paid Shamrock Plumbing for these materials. The owner and A-1 Properties timely paid Respondent for all of his work. As a result of change orders, the price for the job increased by $1355.45 to a total of $6455.45. In August, as Respondent's work drew to a close, the owner and A-1 Properties paid Respondent $2337 as follows: August 25, 1989-- $700; August 29, 1989--$500; and August 30, 1989--$1137. These payments total $2337. In making the final payment to Respondent, the representative of A-1 Properties was aware that Shamrock Plumbing had sent to a Notice to Owner for the plumbing materials that Respondent had purchased. Except possibly for the $165, item, Respondent and the general contractor were in agreement, when the final payments were made in August, that Respondent had been paid substantially in full and that he would pay Shamrock Plumbing. When Respondent failed to pay Shamrock Plumbing, it recorded a Claim of Lien on September 28, 1989, against the real property and initiated an action to foreclose the lien. The owner was required to retain the services of an attorney to defend the foreclosure action, pay Shamrock: Plumbing's legal costs, and obtain a release of lien. In so doing, the owner expended a total of $3984.19, as follows: his attorney--$456; Shamrock Plumbing's attorney--$1410.42; Shamrock Plumbing's invoice--$2117.77. The owner paid his attorney by checks dated January 16 and July 31, 1990. The check to pay Shamrock Plumbing and its attorney was dated February 26, 1990. On March 12, 1990, Shamrock Plumbing executed a Release of Lien, which was recorded on April 10, 1990. Respondent has not since reimbursed the owner for his expenditure of $3984.19 because Respondent lacks the money. He applied the August, 1989, payments received for the present job to satisfy obligations arising out of other jobs. Respondent testified that his money problems began when he was not paid for work he performed on other jobs, but they were unrelated to the job involved in this case.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Construction Industry Licensing Board enter a final order finding Respondent guilty of violating Section 489.129(1)(h), assessing Respondent for the costs of the investigation and prosecution up to a maximum of $1000; placing Respondent on probation for two years; requiring Respondent to pay the owner $3984.19, plus interest at the legal rate, in restitution; and, if at the end of the two-year probation Respondent has failed to pay the owner in full, imposing an administrative fine of $1500 and suspending Respondent's license for one year. ENTERED this 20 day of May, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20 day of May, 1991. APPENDIX Treatment Accorded Proposed Findings of Petitioner 1-8 (first sentence): adopted or adopted in substance. 8 (remainder) : rejected as irrelevant. 9-12 (first sentence): adopted or adopted in substance. 12 (second sentence): adopted that Respondent accepted the final payments. Rejected as unnecessary that Respondent did-not protest the $165 retainage. 13: rejected as unnecessary. 14: first clause rejected as unnecessary. Second clause adopted. 15: rejected as unnecessary. 16-17 and 22: rejected as subordinate. 18-20: adopted or adopted in substance. 21: rejected as unnecessary. 23-24: adopted or adopted in substance. Treatment Accorded Proposed Findings of Respondent first page: adopted or adopted in substance. second page, first incomplete paragraph: rejected as irrelevant, unnecessary, and not finding of fact. second page, first complete paragraph: rejected as unnecessary and irrelevant. second page, second complete paragraph: rejected as unnecessary. COPIES FURNISHED: Jack McCray, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Daniel O'Brien, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 Attorney William S. Cummins Department of Professional Regulation 1940 North Monroe St., Suite 60 Tallahassee, FL 32399 James E. Todd, pro se 1621 Truman Rd. Orlando, FL 32807
