Findings Of Fact On October 30, 1981, Petitioner applied for a CON to establish an ambulatory surgical center in an existing building it owned at 5975 Southwest Eighth Street, Miami, Florida. Petitioner had operated a free-standing ambulatory surgical center at that location since January, 1979. It sought a CON (a prerequisite to obtaining a license from DHRS) in order to serve Medicare and Medicaid patients. (R-1, R-2) On February 19, 1982, after receiving additional information and holding a public hearing on the application, DHRS issued CON No. 1956, authorizing the requested ambulatory surgical center, at a cost of $278,000. The first page of the CON designated February 18, 1983, as the "Termination Date." (R-9) The second page of the CON provided Petitioner with actual notice of the statute and rule governing expiration and extension of CONs: A Certificate of Need shall terminate 1 year after the date of issuance unless the appli- cant has commenced construction, if the project provides for construction, or in- curred an enforceable capital expenditure commitment for projects not involving con- struction, or unless the certificate of need validity period is extended by the Department for an additional period of up to 6 months, upon showing good cause by the applicant for the extension. The Department shall monitor the progress of the holder of the certificate of need in meeting the timetable for project development specified in the application and may revoke the certificate of need after consideration of recommendations of the health systems agency, if the holder of the (R-9) certificate of need is not meeting such timetable and is not making a good faith effort to meet it. Rule 10-5.13(2)[sic] Florida Adminis- trative Code, states: An applicant desiring a 6 months validity extension to a certificate of need shall submit such request to the Department, in writing; not later than 15 days prior to the certificate termination date providing docu- mentation of good cause upon which such request is based. Good cause by the appli- cant in support of a request [sic) for a validity time period extension is documenta- tion that each of the following has been satisfied: If applicable a site has been firmly secured. Project financing has been firmly se- cured. For projects involving construction, final construction plans for the proposed project have been submitted for review by the Office of Licensure and Certification of the Department unless the applicant can document that the submission of such final construc- tion plans for review was precluded by cir- cumstances beyond his control. For projects not involving construction, the applicant has been - precluded from incur- ring an enforceable capital expenditure commitment by factors beyond his control. After granting the CON, DHRS set up a routine monitoring schedule with specific dates (4, 8, and 12 months from issuance of the CON) by which Petitioner was to submit status reports on the proposed project. (R-10) By letter dated June 4, 1982, DHRS asked Petitioner to complete and return the first monitoring report on the project. Petitioner completed and returned the report on June 28, 1982. (R-10) On September 29, 1982, officials (including a medical facilities architect) from DHRS' Office of Licensure and Certification, Plans and Construction Section, located in Jacksonville, Florida inspected Petitioner's facility. By letter dated February 1, 1983, George E. Hapsis, the medical facilities architect informed Petitioner that "[the building was found to contain many deficiencies that in its present state would prevent licensing by the state." (R-10) He then identified 102 separate deficiencies and asked to be notified when they were corrected. On February 18, 1983 (the expiration or termination date of CON No. 1956); HRS' Office of Community Medical Facilities (which processes CONs), received Petitioner's request for an extension of CON No. 1956. The reasons given were that Petitioner had recently received the results of the site inspection and needed additional time to comply with DHRS' recommendation. It also advised DHRS that "[i]n the very near future, you will receive new plans of all necessary construction and remodeling to fully meet requirements. " (R-10) DHRS agreed to the request. By letter dated February 23, 1983, it grant a six-month extension of CON No. 1956, setting a new termination date of August 18, 1983, and warned Petitioner: Please be advised that the project must be under physical and continuous construction prior to the new termination date to have a valid and continuing Certificate of Need. (R-9) On July 18, 1983 (17 months from issuance of the CON and one-month prior to expiration to the six-month extension), DHRS sent Petitioner a request for specific information. The request reminded Petitioner of the August 18, 1983 termination date; referenced the provisions of Chapter 381 (concerning expiration of CONs if construction not commenced within 12 months, and authorizing an extension of up to six months); and asked for information on whether construction, if any was involved, had commenced. "Commenced construction" was explained as initiation of continuous construction activity beyond site preparation, associated with erecting or renovating a health care facility. If no construction was involved, DHRS asked for documentation as to whether enforceable capital expenditure commitments had been made for the project. By letter dated July 28, 1983, Petitioner replied to DHRS' request; stating that most of the 102 deficiencies were minor and "being worked on" and that, as to the other DHRS recommendations, "a few alterations and an addition are necessary, also we are working on it step by step." (R-10) Petitioner asserted that it was unable to submit the exact cost of the proposed work and that it deserved an extension of its CON. On August 15, 1983, three days before the final termination date of CON No. 1956, DHRS received a letter from Petitioner, asking, once again, for an extension of its CON. It stated that it was "doing some work" on the inspection recommendations, buying equipment, and working with the City of Miami regarding zoning. (R-10) On September 27, 1983, Nathaniel W. Ward, Jr., a medical facilities. consultant with DHRS, replied to Petitioner's letter: Please excuse our delay in answering your letter of August 12, 1983. It was placed in the file as a determination was made that you did not need an extension. If you have commenced [sic] construction at the end of the one-year period, then you will continue to have a valid Certificate of Need as long as you continue to construct to license the facility. (R-10) (Mr. Ward was apparently unaware of or overlooked, the fact that Petitioner had already been granted a six-month extension of its CON; under Section 381.494(8)(f), Florida Statutes, no further extension could have been granted. Further evidence of Mr. Ward's misapprehension was his statement that if construction had commenced at the end of the one-year, the CON would continue to be valid. If construction had indeed, commenced at the end of the one-year period, the original six-month extension would have been unnecessary.) Subsequently, Petitioner submitted preliminary construction drawings to DHRS' Office of Licensure and Certification in Jacksonville, which reviews preliminary drawings, makes recommendations prior to submittal of final drawings, and licenses health care facilities. After review of the preliminary drawings, that office gave Petitioner extensive comments on the drawings and withheld approval. As of May 2, 1984, Petitioner's preliminary drawings had not yet been approved by DHRS and no final construction drawings for the proposed facility had been received by the Office of Licensure and Certification. On May 16, 1984, nine months after the final termination date of CON No. 1956 (including the six-month extension), Wayne McDaniel, CON Monitoring Supervisor for DHRS, and Keith Matherene, a medical facilities consultant, inspected the site of the proposed facility. During their two-hour site visit, Vincent Pino, owner of corporate Petitioner, admitted that he (Petitioner) had, as yet, made no modifications to the existing structure since he had decided to redesign the project and had submitted new plans to the Office of Licensure and Certification. There was no evidence of any physical modifications having been made to the existing structure. Before leaving, Mr. McDaniel told Mr. Pino he would be given several days to provide written information on any extenuating circumstances which might explain the delay in construction. By letter dated June 7, 1984, after having received no response from Petitioner, DHRS declared CON No. 1956 null and void for noncompliance with Section 381.493(3)(g), Florida Statutes. Petitioner's failure to commence construction was due at least in part, to its unsuccessful efforts to obtain additional parking space for the proposed facility. Additional parking space was a zoning requirement which had to be met before a building permit could be issued. Petitioner signed contracts with two nearby landowners in an attempt to gain the necessary parking space, but the landowners failed to perform. After receiving DHRS' June 7, 1984 notice, Petitioner suspended its efforts to obtain additional parking.
Recommendation Based on the foregoing, it is RECOMMENDED: That DHRS enter a final order declaring CON No. 1956 null and void for failure to satisfy statutory and rule criteria for its continuing validity. DONE and ORDERED this 22nd day of August, 1985, 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 22nd day of August, 1985.
Findings Of Fact Respondent is a certified building contractor having been issued license number CB CA03134. At times material herein, the Respondent was the qualifier for and conducted his contracting business through the entity doing business as A-1 Builders, Inc. On June 29, 1981, A-1 Builders, Inc., entered into a contract with Albert E. and Helen E. Chaloux to construct a residence in Sebastian, Florida, for the sum of $53,158.00 (Petitioner's Exhibit 5). The Chalouxs paid the Respondent a $4,000.00 deposit to commence construction (Petitioner's Exhibit 6 and TR pages 8-9). Respondent did not commence construction of the Chaloux residence nor did he return any portion of the tendered $4,000.00 deposit. On February 24, 1981, A-1 Builders, Inc., entered into a contract with Jeffrey and Linda Ferris to construct a residence in Sebastian, Florida, for the sum of $32,849.00 (Petitioner's Exhibit 1). Respondent completed the Ferris residence during July 1981 and A-1 Builders, Inc., through the person of the Respondent, received full payment at the closing (Petitioner's Exhibit 2). At closing, Respondent transmitted a warranty deed to the Ferrises stating that the property was being delivered to them without any encumbrances (Petitioner's Exhibit 3). At the time of closing, Respondent, through the qualifying entity A-1 Builders, Inc., owed several suppliers and contractors monies for material and services which were furnished for the completion of the Ferris residence and remained unpaid. Specifically, Respondent owed the following suppliers and subcontractors monies: Colkitt Sheet Metal and Air Conditioning, Inc. - $1,500.00 (Petitioner's Exhibits 10-11); Russell Concrete, Inc. - $421.20; and White Drywall - $1,634.00 (Petitioner's Exhibit 7). RESPONDENT'S POSITION Respondent acknowledged that he received a $4,000.00 deposit from the Chalouxs and that he did not commence construction as agreed. However, Respondent urges that A-1 Builders underwent financial difficulties based upon unwarranted newspaper accounts and malicious prosecution by the local State Attorney's office and the Petitioner's investigator which forced him near bankruptcy. Respondent did spend some money toward the initial phases of commencing construction for the Chalouxs which consisted primarily of he payment of monies toward the filing of an application fee for the Chalouxs to obtain financing, the preparation of plans and drawings and some unspecified costs respecting the site preparation for the Chaloux residence. Respecting the allegation that Respondent falsely indicated that there were no encumbrances on the Ferris residence, Respondent's only position is that he was forced to foreclose on certain homes and that the various liens and claims of liens which have been filed by the above-referenced suppliers and subcontractors are being paid as monies are received from the foreclosures.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby, RECOMMENDED that the Respondent's certified building contractors' license number CB CA03134 be REVOKED. DONE AND ENTERED this 12th day of April 1984 in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of April 1984.
The Issue The issue is whether Respondent's license as a registered building contractor should be disciplined for the acts alleged in the Administrative Complaint, as amended?
Findings Of Fact Respondent, Robert Tucker, is a registered building contractor holding State of Florida license number RB 0033063 (Ex. 7). Respondent was licensed as a building contractor by the State of Florida in September 1978, and has remained licensed at all times material hereto (Ex. 7). Since September 20, 1978, Respondent has held a local Building Contractor's License issued by the Leon County Contractor Licensing and Examination Board (Ex. 7). Respondent's license with the Department has been delinquent since July 1, 1985 (Ex. 7). In July 1983, Respondent made an oral agreement with Violet Gladieux to erect a carport for her at a cost of $1,350 (Ex. 3). Ms. Gladieux's residence is located at 2321 Belle Vue Way, within the city limits of Tallahassee. Jay Gladieux, Jr. became acquainted with Mr. Tucker from his position as an employee of Mr. Tucker on a prior construction project. Mr. Gladieux introduced his mother, Ms. Gladieux, to Mr. Tucker for the carport construction. It was orally agreed that Ms. Gladieux would pay Mr. Tucker for supplies as they were needed. Mr. Tucker began erection of the carport approximately one week after July 11, 1983, when he received the first payment of $300. On July 29, 1983, Mr. Tucker received final payment of $350 so that he could complete the carport (Ex. 3). Approximately two weeks after July 29, 1983, Respondent completed the carport. A permit for the erection of the carport was required by Section 7-63, Buildings and Construction Regulations (The Building Code) of the City of Tallahassee. The language of that ordinance has not changed since 1957 (Ex. 1). No building permit was ever obtained by Mr. Tucker for erection of the carport. Approximately two weeks after completion of the carport, it collapsed after a heavy rainfall (Ex. 4 and 5). Mr. Tucker returned to repair the damaged carport. He erected center studs and was to return later to complete the damage repair. Mr. Tucker has failed to return to complete the damage repair after requested to do so by Jay Gladieux. When an administrative complaint has been filed against a contractor, personal service of the complaint is attempted upon the contractor at his last address of record. If personal service cannot be effectuated at the contractor's last address of record, further attempts are made to locate the contractor. The building departments, both City and County, the telephone company, utility company and post office are contacted. The building departments are contacted to determine if the contractor has obtained any permits, for the permits would list the contractor's address. The telephone company is contacted for prior and new telephone listing(s) with address(es). The post office is contacted for forwarding address(es). The utility company is contacted for new utility service which would contain a new address (es). If the contractor cannot be located after using these avenues, a diligent search affidavit is executed by the investigator who is attempting to serve the contractor. In September 1978 and at all times pertaining to the construction of the carport, Respondent's address of record with the Department was 1515-21 Paul Russell Road and P.O. Box 20234, Tallahassee, Florida. Respondent had not notified the Department of Professional Regulation, Construction Industry Licensing Board of any change in his address (Ex. 7), other than by the new address revealed on the Election of Rights form he filed in response to the administrative complaint. The Department attempted to personally serve Mr. Tucker at his listed address and could not locate him there. On May 21, 1984, Robert E. Connell, an investigator for the Department of Professional Regulation, executed a diligent search affidavit concerning service of the Administrative Complaint upon Mr. Tucker in this proceeding (Ex. 8).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent be found guilty of the charges in count one of the Administrative Complaint, as amended; that counts two and three be dismissed; and that he be fined $250.00. DONE AND ORDERED this 4th day of April 1986 in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY,JR., Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of April 1986. COPIES FURNISHED: Mr. James Linnan Executive Director Construction Industry Licensing Board P.O. Box 2 Jacksonville, Florida 32202 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Errol H. Powell, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Robert Tucker P.O. Box 10218 Tallahassee, Florida 32302
The Issue The issues in this case are whether Respondent, August T. Nocella, committed the violations alleged in the Administrative Complaint and, if so, what discipline is appropriate.
Findings Of Fact Petitioner, the Pinellas County Construction Licensing Board (Board), is the agency within Pinellas County, Florida, authorized under Chapter 89-504, Laws of Florida, as amended, to regulate and discipline the licenses of, among others, certified aluminum contractors. Respondent, August T. Nocella (Respondent), is, and has been at all times material hereto, a certified aluminum contractor in Pinellas County, Florida, having been issued license C-3197. At times relevant to this proceeding, Respondent was doing business as Allied Aluminum, located in St. Petersburg, Florida. In 1997, Ms. Mary J. Pugh had a small screened porch added to her house located at 12855 Gorda Circle West. Approximately two years later, in July 1999, the porch was damaged or destroyed by a storm. Thereafter, Ms. Pugh requested and received a proposal from Allied Aluminum to repair or rebuild the screened porch. On September 1, 1999, Respondent entered into a contract with Ms. Pugh to repair or reconstruct the previously existing screened porch. The contract provided that Respondent would install a new aluminum roof to replace the damaged existing screened porch roof, install gutters and trim, replace 13 feet of valance, replace the screen, and install a new wall front. The contract noted that a riser wall was required for "proper roof pitch." The contract price was $2,300.00, with $1,000.00 to be paid as a down payment and the remaining $1,300.00 to be paid upon completion of the project. Ms. Pugh paid Allied Aluminum in accordance with the terms of the contract. She made the first payment of $1,000.00 on September 1, 1999, and made the final payment of $1,300.00 on September 22, 1999, upon Respondent's completing the job. On or about September 16, 1999, Respondent obtained a permit for the repair or reconstruction of the screened porch at Ms. Pugh's house. Respondent began the project on or about September 15, 1999, and completed the job on September 22, 1999. Section 105.6 of the Standard Building Code, 1997 Edition, as amended,(Standard Building Code) requires local building officials, "upon notification from the permit holder or his agent," to make a final inspection of a building after the building is completed and ready for occupancy. In order to comply with the Standard Building Code, it was the responsibility of the permit holder, in this case, Respondent, to call local officials for a final building inspection. Upon completion of the inspection, a building official would then notify the permit holder of "any violations which must be corrected in order to comply with the technical codes." Respondent failed to notify building officials that the Pugh project was completed and ready for occupancy and, thus, ready for final inspection by appropriate building officials. As a result of Respondent's failure to call for a final inspection, building officials never inspected Respondent's work on Ms. Pugh's screened porch and made no determination as to whether the project complied with the applicable technical codes. In July 2000, during a storm, the roof of Ms. Pugh's screen porch collapsed. Relying on statements of unnamed contractors, Ms. Pugh believes that the roof collapsed because it did not have the proper pitch. Respondent attributes the collapse of the roof to the gutters being blocked with leaves. Despite these assertions no evidence was presented at hearing to establish the cause of the roof's collapsing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Pinellas County Construction Licensing Board enter a final order: (1) finding that Respondent failed to obtain a satisfactory inspection as alleged in Count One, and is guilty of the offenses described in Chapter 89-504, Subsections 24, (2)(d), (j), and (n), Laws of Florida; (2) imposing an administrative fine of $1,000.00 for the foregoing offenses; and (3) dismissing Count Two of the Administrative Complaint. DONE AND ENTERED this 28th day of December, 2001, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (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 28th day of December, 2001. COPIES FURNISHED: Don Crowell, Esquire Pinellas County Construction Licensing Board 310 Court Street Clearwater, Florida 33756 Rodney S. Fischer, Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road Suite 102 Largo, Florida 33773-5116 August T. Nocella 1017 Robinson Drive, North St. Petersburg, Florida 33710
Findings Of Fact Prior to March of 1981, Maxmedia held permits 8463-6 and 8462-6 issued by the Department for signs on property leased from Lust Industries located approximately at the intersection of U.S. 17/92 and Virginia Avenue in the city of Orlando, Florida. On March 23, 1981, Maxmedia advised the Department that the sign for which it held the above permits had been dismantled, and permits numbered 8463-6 and 8462-6 were returned to the Department for cancellation. On March 18, 1981, the Department received the application of Lust Industries for a sign at the location where the Maxmedia sign had been permitted, to be erected on property owned by Lust Industries. This application contained several irregularities, and the Department accepted it as an application only for the south face of the proposed sign. On May 27, 1981, the Department received the application of Lust Industries for the north face of this sign. The requested permits were issued by the Department on May 27, 1981. On February 24, 1981, Maxmedia executed a lease to property located approximately 30-50 feet south of the Lust Industries property. The term of this lease was to run from April 1, 1981 to April 1, 1984. On March 21, 1981, the Department received an application from Maxmedia for permits to erect signs at the location 30-50 feet south of the location owned by Lust Industries where Maxmedia had permits until it surrendered them. These permits were denied by the Department because of the permit application already received from Lust Industries for a sign 30 to 50 feet to the north. On March 23, 1981, Maxmedia applied to the city of Orlando for a building permit to erect the sign at its leased location south of the Lust Industries property, and this permit was issued to Maxmedia by the city. In January or February, 1981, Lust Industries had applied to the city of Orlando for a permit to build a sign on property near the sign of Maxmedia which was dismantled in March of 1981, but the requested city permit was denied because of the proximity of this location to the Maxmedia sign. After, the Maxmedia sign had been taken down, Lust Industries again applied for a city of Orlando building permit, but this was after the city permit had already been issued to Maxmedia; thus, the city again denied a permit to Lust Industries due to the existence of the outstanding permit held by Maxmedia. In May or June of 1981, after having received a building permit from the city of Orlando, and after having leased the property, Maxmedia proceeded to erect the sign 30-50 feet south of the Lust Industries property. It is this sign that is the subject of the Department's violation notice issued on June 30, 1982. It is the existence of this sign of Maxmedia, permitted by the city of Orlando, and erected on land currently leased, that prevents Lust Industries from obtaining the city of Orlando building permit it needs in order to be able to erect a sign 30 to 50 feet to the north. Thus, the Department seeks to revoke the state permits it issued to Lust Industries which violate the harmony of regulations provisions of the statutes and rules.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue its Final Order revoking the permits held by Lust Industries, dismissing the Notice of Violation against Maxmedia, Inc., and granting the application of Maxmedia, Inc., for permits as requested in its application received on March 24, 1981. THIS RECOMMENDED ORDER entered on this 18th day of April, 1984, in Tallahassee, Florida. WILLIAM B. THOMAS 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 18th day of April, 1984. COPIES FURNISHED: Charles G. Gardner, Esquire Haydon Burns Building, M. S. 58 Tallahassee, Florida 32301-8064 William F. Poole IV, Esquire 644 West Colonial Drive Orlando, Florida 32802 Gerald S. Livingston, Esquire P. O. Box 2151 Orlando, Florida 32802 Paul N. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
