The Issue Whether petitioner should be removed from the Florida Retirement System, as of July 1, 1979, on grounds of ineligibility.
Findings Of Fact Petitioner, a licensed attorney, practices law in Clewiston, Hendry County, Florida. Since at least September 1, 1970, he has continuously engaged in the private practice of law in Clewiston. On September 1, 1970, the Glades County School Board ("School Board" or "Board") hired him as the School Board attorney, a position which he continues to hold. This is a part-time position, since the Board has no need for a full-time attorney. The School Board is headquartered at Moore Haven, 16 miles northwest of Clewiston, in neighboring Glades County. The terms and conditions of petitioner's employment with the School Board have remained virtually unchanged since he was originally hired. Each year, the School Board sets his salary consisting of a monthly retainer or salary, plus a fixed amount per hour for any additional professional services or litigation required by the School Board. For the 1979-80 school year, the Board set his salary or retainer--terms which the School Board used interchangeably-- as shown by the Minutes of the July 11, 1979, meeting: 3. SALARY/SCHOOL BOARD ATTORNEY - 1979-80 Chairman Hilliard opened the floor for discussion on the salary for the school board attorney for the 1979-80 school year. After some discussion between the board and Mr. Potter, the board proposed a retainer of $750.00 per month. (annual salary of $9,000.00) plus $50.00 per hour for additional pro fessional services or litigation required by the board. ON MOTION by Sapp, seconded by Johnson, the board approved this pro- posal for school board attorney for the 1979-80 school year. (Vote: Arnold, yes; Johnson, yes; Taylor, yes; Sapp, yes; Hilliard, yes.) His salary is paid from the School Board's regular employee salary account. But as the School Board's attorney, unlike other School Board employees, he does not accrue annual leave, sick leave, or pay during vacations, holidays or illness, though when he is sick or on vacation, there is no adjustment to his salary. He is reimbursed for work-related travel and meals at the rates provided by Section 112.061, Florida Statutes (1983), and is covered by the School Board's group health and life insurance, and Workers' Compensation. Since 1970, the Board has withheld his Social Security contributions from his fixed monthly salary payments; has paid the employer's Social Security contributions on his salary payments; and has annually reported his monthly salary payments on Internal Revenue Service Form W-2. To this extent, the School Board considered him an employee and treated him the same as it treated its other employees. The legal services which he furnished the School Board are described in his employment agreement and the School Board's job description for the position: TYPICAL DUTIES: Attend all regular Board meetings and such special meetings as deemed advisable by Board Chairman or Superintendent. Be available for routine telephone or personal consultations with Board Chairman, Superintendent and Staff members. Perform legal research. Prepare or approve leases or agreements prior to execution by Board. Prepare and prosecute law suits in behalf of Board and defend law suits against Board, including any actions against Superintendent, Staff or other school district employees allegedly arising etc., unless special counsel is deemed necessary by Board Attorney with Board's concurrence. Attend the quarterly seminars/meetings of Florida School Board Attorneys Association; and any other approved by Board. Represent Board and/or Superintendent in personnel matters where appropriate, as well as student discipline matters. School Board meetings, held monthly, last approximately one and one-half hours. Litigation, although described as a typical duty, is considered extra work, and an hourly rate is charged over and above the monthly salary. Petitioner agrees that he would not knowingly accept any new clients which would cause a conflict of interest with his School Board employment. Although he has been free to turn down work assigned by the School Board, he never has--at least through 1976. As explained by Mr. Strope, Superintendent of Schools from 1968 to 1976, although petitioner was free to turn down work, he "shouldn't have." Petitioner is not required to maintain any set office hours, and his monthly salary does not vary with the number of hours' work. He is not furnished office space by the School Board. The majority of his legal work for the Board is performed at his private law office, in Clewiston. The cost of operating his law office is not a budget item in the School Board's budget. Under his employment arrangement with the School Board, he furnishes all personnel, equipment, and facilities needed to perform his services. He is responsible for supervising the secretaries who work in his private office. Occasionally, when he is at School Board headquarters in Moore Haven he will ask a School Board employee to type a document. At his request, however, the School Board will furnish him pencils, legal pads, legal periodicals and stationery. It also pays for his travel; for per diem expenses incurred while attending legal seminars or meetings; and for long distance telephone calls made in connection with his School Board employment. He is neither responsible for, nor supervises, any employee of the School Board. The School Board does not furnish him any legal secretaries or part-time attorney assistants. He has not shown what percentage, or amount, of his working hours are devoted to performing legal services for the School Board, as opposed to legal services which he performs for his other clients. Other than assigning specific legal tasks, the School Board exercises no more control over the means, methods, and manner by which petitioner performs the legal work given him than is ordinarily exercised by any client over an attorney. Because of ethical constraints and the nature of legal work, petitioner must exercise independent professional judgment. Since September 1, 1970 2/, petitioner has been enrolled in the FRS. This was accomplished by his filling out a prescribed form which the School Board then filed with the Division. The Board then began reporting him on its employee rolls. There is no evidence that the initial FRS entry form, filed with the Division, described petitioner's work duties or the nature of his employment with the School Board. Both the Board and the Division enrolled him in the FRS, believing that he was eligible for membership. The Division did not question or investigate the nature of his employment relationship with the Board until 1983. From his initial enrollment until January 1, 1975, when FRS became a non-contributory system, petitioner contributed one-half of the the required FRS contribution, while the School Board contributed the other half. Since January 1, 1975, the School Board has contributed 100 percent of his contributions to FRS. During the 1970s petitioner's membership in the FRS prevented him from participating in any other tax sheltered retirement plan. 3/ Since July 1, 1979, the Division has, by rule, given notice that consultants and other professional persons contracting with public employers are, ordinarily, ineligible for membership in the FRS. All public employers, including the School Board, have been asked to remove such persons from their retirement payrolls. Since at least July 8, 1981, petitioner was on notice that his status as an employee, and his eligibility for continued membership in the FRS, were in question. Both the parties stipulate that part-time electricians, plumbers, painters, combustion engine mechanics, air conditioning mechanics, janitors or sewage plant operators (and even other occupations) employed in 1983 by the Glades County School Board on a year-round salary basis (i.e., at least 10 consecutive months), and paid out of the School Board's regular salary and wage account, would be mandatory members of FRS by statute. (Prehearing Stip., para. E. 6)
Recommendation Based on the foregoing, it is RECOMMENDED: That the Division enter an order removing petitioner from membership in the Florida Retirement System, as of July 1, 1979; and That the Division return to petitioner and the School Board their respective FRS contributions, mistakenly made to his account. DONE and RECOMMENDED this 14th day of February, 1984, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 1984.
The Issue This is a license discipline proceeding in which the Petitioner seeks to have disciplinary action taken against the Respondent on the basis of alleged violations of various specified provisions of Section 489.129(1), Florida Statutes. The allegations are set forth in a seven count Administrative Complaint.
Findings Of Fact At all times pertinent to this proceeding, Respondent was a Certified General Contractor, having been issued license number CG C046419, by the Florida Construction Industry Licensing Board. At all times pertinent to this proceeding, Respondent was licensed in an individual capacity and thereby responsible for all his contracting activities. On June 6, 1993, Respondent, doing business as Universal General Contractors, entered into a construction contract with the Fagnanis for the remodeling of a bathroom in their residence located at 3440 Northeast 170th Street, North Miami Beach, Florida 33160. The contracted price was three thousand eight hundred dollars ($3,800,00). The Fagnanis paid at least two thousand seven hundred dollars ($2,700.00) to the Respondent as payment toward the contracted work. The written contract between the Respondent and the Fagnanis did not include the Respondent's contractor's license number. That written contract had printed on it the business name "Universal General Contractors." When they entered into the contract, the Fagnanis thought they were doing business with a company named "Universal General Contractors." At no time material hereto was Respondent registered with the Construction Industry Licensing Board as the licensed qualifier for Universal General Contractors. Construction commenced on or about August 20, 1993. Respondent failed to obtain a building permit or inspections for the Fagnani project. Shortly after commencing the project, Respondent informed the Fagnanis he had to go to Boca Raton for an estimate, but would return to finish the project. Respondent failed to return to finish the Fagnani project. Respondent abandoned the Fagnani's project without just cause or notification to the Fagnanis. Respondent did not respond to any attempts by the Fagnanis to contact him concerning the completion of their project. At the time Respondent abandoned the project the work was not complete. At the time of abandonment, the percentage of work completed was substantially less than the percentage of the contract price paid by the Fagnanis. On December 28, 1993, as a result of Respondent's failure to complete the project, the Fagnanis filed a civil suit against Respondent in Case Number 93-16225 SP23(03), County Court in and for Dade County, Civil Division. On January 11, 1994, Respondent was properly served with notice of the civil suit. On January 27, 1994, a Default Final Judgment was entered against Respondent in favor of the Fagnanis. The Default Final Judgment entered against Respondent in the case was in the principal amount of two thousand five hundred dollars ($2,500.00) and costs of one hundred nine dollars ($109.00) for a total amount of two thousand six hundred nine dollars ($2,609.00), and bore interest at the rate of 12 percent per year. The Default Final Judgment is related to Respondent's practice of contracting. To date, Respondent has failed to satisfy the terms of the Default Final Judgment. Respondent failed to satisfy the terms of the Default Final Judgment within a reasonable time. Respondent's incompetence and misconduct in overseeing the contracting and financial activities of his construction practice has resulted in a two thousand six hundred nine dollar ($2,609.,00) loss to the Fagnanis. The Respondent has been the subject of prior disciplinary action by the Construction Industry Licensing Board. In two prior cases (DBPR Case Nos. 93-12155 and 94-04871) the Board has issued final orders finding the Respondent guilty of several provisions of the statutes regulating contractors. Several of the prior violations are of the same type as the violations at issue in this case.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case to the following effect: Adopting the foregoing findings of fact and conclusions of law and concluding that the Respondent is guilty of the violations alleged in all seven counts of the Administrative Complaint; Revoking the Respondent's license; Ordering the Respondent to pay administrative fines in the total amount of twenty-five thousand dollars ($25,000.00); Ordering the Respondent to pay restitution to Mr. and Mrs. Fagnani in the amount of two thousand six hundred nine dollars ($2,609.00); and Ordering the Respondent to pay the costs incurred in the investigation and prosecution of this proceeding in an amount to be determined by the Construction Industry Licensing Board. DONE AND ENTERED this 22nd day of April, 1997, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1997.
Conclusions BRUCE ELLIOT ESQUINALDO, JR., ("Respondent"), and the DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION ("Department"), stipulate and agree to the following Stipulation and to the entry of a Final Order of the Florida Construction Industry Licensing Board ("Board"), incorporating this Stipulation and the agreement in this matter. STIPULATED FACTS 1. At all times material hereto, Respondent was a Certified Pool Contractor in the State of Florida, having been issued license number CP C050527. 2. Respondent was charged by Administrative Complaints filed by the Department and properly served upon Respondent with 21 violations of Chapters 455 and 489, Florida Statutes, and the rules enacted pursuant thereto. True and correct copies of the Administrative Complaints are attached hereto and incorporated by reference as composite Exhibit "A." 3. Respondent neither admits nor denies the allegations of fact contained in the Administrative Complaints attached hereto as composite Exhibit "A." STIPULATED CONCLUSIONS OF LAW 1. Respondent, in his capacity as a licensed Contractor, admits that in such capacity he is subject to the provisions of Chapters 455 and 489, Florida Statutes, and the jurisdiction of the Department and the Board. 2. Respondent admits that the facts set forth in the Administrative Complaints, if proven, constitute violations of Chapter 489, Florida Statutes, as alleged in the Administrative Complaints attached hereto as composite Exhibit "A." STIPULATED DISPOSITION 1. In order to facilitate this settlement, with regard to DBPR case number 97-14575/DOAH case number 9$8-3713/Jovellar, and DBPR case number 98-02110/DOAH case number 99-2655/Quadri, the Department agrees to withdraw its recommendation that a penalty be assessed against the Respondent consistent with the Administrative Law Judge’s Recommended Order, and the Respondent agrees to withdraw his Exceptions to the Recommended Order. 22 2. The following charges contained in the Administrative Complaints, attached hereto as composite Exhibit “A” shall be dismissed: DBPR case number 98-21934/Lopez Count III, and DBPR case number 99-05645/Rodriguez Count I and Count IT. 3. Respondent shall abide by Chapters 455 and 489 Florida Statutes, and the rules promulgated pursuant thereto. 4, Respondent shall pay Fifteen Thousand, Five dollars and Twenty Four cents ($15,005.24) to the Construction Industry Licensing Board. Of said payment, Six Thousand, Four Hundred Fifty dollars ($6,450.00) shall be allocated to the payment of a fine and Eight Thousand, Five Hundred Fifty Five dollars and Twenty Four cents ($8,555.24) shall be allocated to the payment of the Department's costs. Said payment shall be in the form of a cashier's or certified check and shall be made payable to the Florida Construction Industry Licensing Board. Said payment shall be returned to the Department along with this Stipulation for presentation to the Board. The monies paid pending approval of this Stipulation by the Board shall be refunded to Respondent 4£ the Board rejects this Stipulation. 5. Respondent shall submit to the Executive Director of the Florida Construction Industry Licensing Board, proof of having satisfied the Final Judgments obtained by (1) Robert R. Bollard, in the amount of One Thousand, One Hundred Five dollars ($1,105.00), in DBPR case number 99-09009, and (2) Dennis Ryan in the amount of 23 Four Hundred Four dollars and Fifty Two cents ($404.52), in DBPR case number 99-00117. Respondent shall also submit proof to the Executive Director of the Florida Construction Industry Licensing Board, of having also made restitution to Karen and Joseph De Leonardo in the amount of One Hundred Sixty Nine dollars and Sixty cents ($169.60), in DBPR case number 99-08509. Such proof shall be provided within ninety (90) days of the filing of the Final Order in this matter. To assure payment of the Final Judgments and restitution, it is further ordered that all of Respondent's licensure to practice contracting shall be suspended with the imposition of the suspension being stayed for ninety (90) days following the filing of the Final Order in this matter. If the ordered payments and proof of having made said payments are in compliance with the terms set forth above, the suspension imposed shall not take effect. However, should payment, or proof of payment not be timely made, the stay shall be lifted and Respondent's license shall be immediately suspended. Upon payment of the Final Judgments and restitution in full, and proper submittal of proof of making such payments, the suspension imposed shall be lifted. 6. Respondent shall be on probation for three (3) years from the date of filing of the Board's Final Order in this matter. Respondent shall appear before the Probation Committee of the Board at such times as directed by the Executive Director, or as specified in the Final Order entered in this action. In connection with each probation appearance, Respondent shall answer questions under oath 4 24 and shall provide copies of all construction related monthly bank statements, financial statements reflecting a minimum net worth requirement as reflected in Rule 61 G4-15.005(3) (a), F.A.C., permit applications, contracts, and operations questionnaires since the entry of the Final Order in this matter if it is the first probation appearance or since the last probation appearance if it is other than the first probation appearance. In addition, the Respondent shall provide such other information and documentation as is requested by the Department, the Board or the Probation Committee. The Respondent shall forward said documentation to the Board in advance of the probation appearance. As a special condition of probation, the Respondent will, during the probation period, take corrective action and = obtain acknowledgements of satisfaction and/or proof from the applicable building departments, that the following projects and/or permits have been satisfactorily completed: DBPR case number 99-08509/DeLeonardo, DBPR case number 99~-08265/Pacheco, DBPR case number 99-10077/Toro, DBPR case number 99-00117/Ryan, and DBPR case number 99- 05645/Rodriguez. However, the Respondent shall not be required to meet any additional requirements for pool barriers imposed effective October 1, 2000, by Chapter 2000-143, Laws of Florida. Respondent shall initiate such corrective action prior to his first probation appearance. Further, the Respondent shall provide proof to the Board or the Probation Committee that documents the status of the corrective action taken in each of the projects identified above. 5 25 The Respondent shall forward such proof to the Board in advance of the probation appearance and such proof shall be in a form acceptable to the Probation Committee. The burden shall be solely upon Respondent to remember the requirement for said appearance, and to take the necessary steps in advance of said appearance to contact the Board office and ascertain the specific time, date, and place of said appearance. The Respondent shall not rely on getting notice of said appearance from the Board or Department. Should Respondent violate any condition of this probation, it shall be considered a violation of Section 489.129(i), Florida Statutes, and shall result in further disciplinary action by the Board. Should Respondent's license to practice contracting be suspended or otherwise placed on inactive status, or if Respondent leaves the practice of contracting for thirty (30) days or more, the probation period shall be tolled, and shall resume running at the time Respondent reactivates the license and/or returns to the active practice of contracting, and Respondent shall serve the time remaining in the term of probation. To ensure successful completion of probation, the Respondent's licensure to practice contracting shall be suspended for the three (3) year period of probation, with the suspension stayed for the three (3) year period of probation. The time of the suspension and the stay shall run concurrently with the period of probation, except as provided otherwise in the Final Order. If the Respondent 6 26 successfully completes probation, the suspension shall terminate. If the Respondent fails to comply with the requirements set forth in the Final Order imposed in this case, or fails to make satisfactory appearances as determined by the Board, the stay shall be lifted. Once the stay is lifted, the Respondent shall. remain in suspended status unless and until a further stay is granted by the Board. 7. It is expressly understood that this Stipulation is subject to the approval of the Board and the Department. In this regard, the foregoing paragraphs (and only the foregoing paragraphs of the Stipulated Facts, Stipulated Conclusions of Law and Stipulated Disposition) shall have no force and effect unless a Final Order incorporating the terms of this Stipulation, is entered by the Board. 8. Should this Stipulation be rejected, no statement made in furtherance of this Stipulation by the Respondent may be used as direct evidence against the Respondent in any proceeding. 9. Respondent and the Department fully understand that this Stipulation and subsequent Final Order incorporating same will in no way preclude additional proceedings by the Board and/or the Department against the Respondent for acts or omissions not specifically set forth in the Administrative Complaints attached as composite Exhibit "A" herein. 10. Upon the Board's adoption of this Stipulation, Respondent expressly waives all further procedural steps, and expressly waives all rights to seek judicial review of or to otherwise challenge or 7 27 contest the validity of the Stipulation of Facts, Conclusions of Law, the Stipulated Disposition, and the Final Order of the Board incorporating said Stipulation, or any part thereoz. 11. Upon the Board's adoption of this Stipulation, Respondent waives the right to seek any attorney's fees or costs from the Department in connection with this disciplinary proceeding, and the Department waives the right to seek any additional fees or costs from the Respondent in connection with this disciplinary proceeding. 12. Upon the Board's adoption of this Stipulation, Respondent understands and agrees that this Stipulation constitutes disciplinary action within the meaning of Section 455.227(1)(f) and 489.129, Florida Statutes. 13. This Stipulation is executed by the Respondent for the purpose of avoiding further administrative action with respect to this cause. In this regard, Respondent authorizes the Board to review and examine all investigative file materials concerning Respondent prior to or in conjunction with consideration of the Stipulation. Should this Stipulation not be accepted by the Board, it is agreed that presentation to and consideration of this Stipulation and other documents and matters by the Board shall not unfairly or illegally prejudice the Board or any of its members from further participation, consideration or resolution of these proceedings. Further, if necessary, and in order to facilitate 28 consideration of this Stipulation, the Respondent waives the requirement that the cases referenced above be heard at Final Action by a quorum of the Florida Construction Industry Licensing Board. ASKaay of WA 2000. SIGNED this QUINALDC, JR. STATE OF FLORIDA COUNTY OF Leéors The Forsgoing instrument was acknowledged before me this ag day of te "4 2000, by BRUCE ELLIOT ESQUINALDO, JR. who is ho did take an oath. eae. 67-4Skh- O ; . hit, Shiney B Walker My Commission Expires: * Bak My Commission CC873206 “yma” Expires September 22, 2003 , 2000. DSP/ms ESQUINALDO 9/20/00 s-const.stp 29
Findings Of Fact Based on the evidence presented at hearing, the following facts are determined: The BOARD is the state agency charged with the duty to license, regulate, and discipline construction industry contractors pursuant to Chapter 489, Part I, Florida Statutes (1979). VARNUM is a licensed, certified general contractor holding two currently active licenses, CG C000832 and CG CA00832 (Prehearing Stipulation). Here, the BOARD seeks to discipline VARNUM'S licenses on the ground that he submitted to the BOARD a false, erroneous, and misleading Change of Status Application ("Application") which failed to disclose outstanding judgments and liens; VARNUM claims that he either did not know of the outstanding judgments and liens, or that he reasonably believed that they had been satisfied prior to the filing of this Application. (Prehearing Stipulation, Testimony of Varnum). On September 28, 1978, VARNUM filed his Application with the BOARD. The purpose of the Application was to qualify, under his licenses, a corporation known as General Contractors of Florida, Inc.; Richard Gale was identified as its president, VARNUM, its executive vice president. Within the Application, VARNUM answered the following questions in the negative: "12(b) 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 any such person was a member of the personnel? Yes ( ) No (x) * * * "(c) 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? Yes ( ) No (x)" * * * "(d) Are there now any liens of record by the U.S. Internal Revenue Service or the State of Florida Corporate Tax Division against any person named in (i) below or any organization in which any such person was a member of the personnel? Yes ( ) No (x)" Paragraph 12(i), referenced in Questions 12(b) through (d) contained the name "Ira L. Varnum", Respondent. (Testimony of Norman: P.E. 4.) By executing, under oath, the Application, VARNUM expressly vouched for the truth and accuracy of his statements and answers contained therein. The Application expressly warns that "[a]ny wilful falsification of any information contained herein is grounds for disqualification." (P.E. 1.) From 1969 through 1976, VARNUM engaged in contracting under the following business entities: All Florida Builders Diversified, Inc. Varnum Enterprises, Inc. Varnum & Associates, Inc. Structural Concrete Forming, Inc. Ira L. Varnum & Co. (a partnership) Oakridge Construction Co., Inc. General Contractors of Florida, Inc. Since 1976, VARNUM engaged in contracting under the name of "Structural Concrete Forming of Florida, Inc.,"; this has been an active corporation with a gross income of 1.5 to 2 million dollars during the last two years. (Testimony of Varnum, Norman, Gale.) The following tax liens or civil judgments, arising out of VARNUM's prior construction operations, were extant and of record at the time the Application was filed, but were not disclosed by VARNUM in his answers to Questions 12(b) through (d): JUDGMENT OR DEBTOR LIEN CREDITOR DATE RECORDED AMOUNT Judgments: Structural Concrete Forming of Florida, Inc. Jiffy Johns, Inc. 6/1/77 $ 79.92 plus costs, $14.00 All Florida Builders Diversified Morgan Driveway 7/15/74 $ 147.95 Tax Liens: Structural Concrete Forming, Inc. U.S. Internal Revenue Service 2/11/76 $ 5,002.37 Ira Ira L. L. Varnum Varnum and and Co. U.S. Internal Revenue Service 8/3/73 $18,100.25 Ira Ira L. L. Varnum Varnum and and Co. U.S. Internal Revenue Service 3/19/74 $ 5,061.86 Ira Ira L. L. Varnum Varnum and and Co. U.S. Internal Revenue Service 3/22/73 $13,041.17 All Florida Builders U.S. Internal 8/29/73 $30,721.59 Diversified, Inc. Revenue Service All Florida Builders Diversified U.S. Internal Revenue Service 7/27/73 $ 2,404.94 All Florida Builders Diversified U.S. Internal Revenue Service 8/30/73 $21,747.76 All Florida Builders Diversified U.S. Internal Revenue Service 3/20/73 $10,161.41 Varnum Enterprises, Inc. Florida Division of Labor and Employment Opportu- nities 3/11/71 $ 2,700.00 plus int. & penalties Varnum and Associates, Inc. Florida Division of Labor and Employment Opportunities 8/4/70 $ 4,380.88 plus int. & penalties Structural Concrete Forming, Inc. Florida Division of Labor and Employment Opportunities 2/12/75 $ 649.57 plus int. The Jiffy Johns, Inc., judgment was paid by VARNUM prior to filing his Application on September 28, 1978, although the Satisfaction of Judgment was not executed until June 22, 1979, and recorded on June 25, 1979. The Burroughs Corporation may also have held a judgment against Varnum Enterprises, dated May 25, 1973; however, the copy introduced into evidence is illegible and, therefore, cannot support an affirmative finding. (Testimony of Norman, Varnum; P.E. 2, 3, 4, 7, 8, 9, 10, 11, 12, 13, 14; R.E. 2.) VARNUM did not willfully or knowingly falsify or fail to disclose the existence of the outstanding judgments and tax liens when he completed his Application. He believed that those judgments and liens had been satisfied years earlier, and had no reason to believe otherwise. When the tax liens were initially filed, he had turned them over to his attorney, Paul Mueller, for handling. Mueller had been resident agent for many of VARNUM's construction companies and VARNUM retained him to perform business-related legal services. VARNUM had reason to believe that the judgments and liens filed several years earlier had been handled and satisfied by Mueller, in accordance with VARNUM's instructions. The holders of those judgments and liens have not made an effort to collect or enforce them against VARNUM. VARNUM's assertion that he believed there were no outstanding judgments or liens against him at the time of his Application is buttressed by his experience in refinancing and subsequently selling his residence in 1978. Although one Federal tax lien and several other judgments and claims were satisfied and paid-off at the time of these two separate mortgage transactions, the judgments and liens here in question did not surface, were apparently unknown to the parties, and were not noted or included in the closing statement and title insurance policy accompanying the mortgages and sale. (Testimony of Varnum; R.E. 1, 3, 4.) Furthermore, since 1976 VARNUM has conducted in the same community a construction business under the name of "Structural Concrete Forming of Florida, Inc." That company has enjoyed a good credit rating with its suppliers, and has had no judgments or tax liens filed against it. The holders of the judgments and liens here in question never contracted the company to discuss, or seek collection of these outstanding claims. (Testimony of Gale, Varnum). VARNUM has filed proposed findings of fact and conclusions of law. Findings of Fact Nos. 9, 10, 11, 12, 16, 17, 18, 21, 22, 23, 24, 25 and 28 are hereby adopted. To the extent that his proposed findings of fact are not adopted herein, they are specifically rejected as being either irrelevant to the issues in this cause or as not having been supported by the evidence.
Conclusions Although Respondent made a false background on his Application--that there were no outstanding liens or judgments against him--the Petitioner Licensing Board, failed to establish that Respondent knew, or should have known that the statement was false. To the contrary, the evidence shows that Respondent made the false statement innocently, and upon a reasonable belief that it was true. Respondent is, therefore, not guilty of the charges, and the Board's Second Amended Administrative Complaint should be DISMISSED.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Second Amended Administrative Complaint filed against VARNUM be DISMISSED. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 15th day of October, 1980. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1980.
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
