Findings Of Fact Respondent holds certification with the Florida Construction Industry Licensing Board as a general contractor and a registered roofing contractor, having been issued license numbers CG C009484 and RC0043155, respectively. Tate has qualified a company known as Allstate Roofing and Construction, Co., under the terms of the aforementioned licenses, and at times relevant to this inquiry, operated under that company name. On February 17, 1983, respondent through his business name, Allstate Roofing and Construction, contracted with Wayne Lackey to furnish the necessary labor and materials to build a 28' by 78'brick-veneered housing shell in Clay County, Florida. The specified amount of the contract was $34,365 to be paid in four equal draws, or installments, in the amount of $8,591.25, following the completion of work related to each of the phases. In accordance with the contract terms, Lackey paid the respondent three draws in the amount of $8,591.25, upon assurances that respondent had satisfied the expenses related to subcontractors, suppliers, and materialmen. Respondent requested advance payment of the final draw and indicated to Lackey that this money was to be used to pay for materials related to the construction of the housing shell. Lackey complied with this request and made two advanced payments on the fourth draw in the amount of $2,700 and $500. The total amount of the three draws and the advance payments related to the fourth draw was $28,973.75. At the point of paying the advance on the fourth draw, Tate had also told Lackey that all subcontractors, materialmen and suppliers had been paid, and indicated to Lackey that a written lien affidavit acknowledging that all the costs had been satisfied would be provided to Lackey at the conclusion of the construction. While respondent was still obligated under the terms of the contract, Lackey began to receive phone calls and statutory notices of intentions on the part of materialmen, subcontractors and suppliers indicating that they would lien the homesite of the owner, Lackey. These demands were made on the basis that several of these claimants had not been paid for services or' supplies. When Lackey confronted the respondent, the respondent initially told Lackey to ignore those notices and that they had been paid on checks drawn on the Allstate account. In fact, the claimants had either not been paid, or had been paid with checks upon which insufficient funds were available to honor the checks drawn on respondent's business account. Under the circumstances, the claimants continued to press Lackey for satisfaction of their claims for labor and supplies. As a consequence the Lackey's had to expend money of their own to satisfy the contract conditions on the subject of costs for services by subcontractors, materialmen, and suppliers. These costs should have been defrayed by respondent pursuant to the terms of the contract. Some of the expenses, which are recounted below, were expenses incurred prior to the respondent's entitlement to his fourth draw. Payments by the owners to the claimants are as follows: Acorn Windows Mr. Silvers, carpenter Mr. Bruning for fill material Joe Williamson, brickmason & concrete =$1,875.50 =$1,183.57 =$ 551.00 =$1,100.00 Taylor Concrete =$1,629.85 Mr. Karneol, clean-up =$ 200.00 United Electric =$1,523.00 SUBTOTAL PAID BY CHECK BY THE LACKEYS =$8,060.92 Cash payments for which receipts were given: Williamson =$1,000.00 United Electric =$ 800.00 door hardware =$ 136.08 TOTAL EXPENDITURE BY THE OWNERS =$10,003.00 When the amount paid by the Lackeys to subcontractors, materialmen, and suppliers is added to the $28,973.75 paid directly to the respondent, the expenditure on the part of the Lackeys' was $38,976.75. Respondent is due credits for extras in the amount of $200 for rear concrete slab, $160 for extra brick, and $70 for an interior door. That sum of $430 when subtracted from the overall payments of the Lackeys leaves $38,546.75 expended by the Lackeys, which exceeds the agreement, or contract price, between the respondent and the Lackeys by $4,181.75. From the facts presented, it is evident that the Lackeys did not receive the performance from the respondent which they were entitled to under the terms of the contract, and as a consequence, had to pay an additional $4,181.75 above the contract price, before receiving what they had bargained for. This was at some considerable inconvenience in time as well as money. The proof is not clear on whether the respondent diverted monies or property which he had received to carry out the contract with the Lackeys into some other pursuit or whether respondent made a bargain with the Lackeys which could not be concluded with the amount of available funds which the respondent had accepted by contract as being sufficient for the Lackeys to perform their obligation under the contract.
Findings Of Fact During the applicable time period, the Respondent was a certified building contractor in the state of Florida and held license number CB C026049. On or about January 6, 1986, the Respondent was hired by West Coast Remodeling & Construction Company. The Respondent was hired as an employee to supervise a building project based on a contract between West Coast and Clarence Harrod for the building of a quadriplex in Rotunda West, Florida. On January 17, 1986, the Respondent applied for a building permit for the Harrod project. The Respondent represented on the permit that he was the builder on the project instead of West Coast, who had the written contract with Harrod. Neither of the principals in West Coast, Gunnar Jacobsen or Gerald Hanley, held a building contractor's license and a licensed contractor was necessary to obtain the permit for the project. After the application for the permit was completed, but before the building permit was issued, the Respondent received a document from West Coast evidencing that the Harrod contract was assigned to him as an individual. At the time the Charlotte County Building Permit was actually issued, the Respondent was the assignee of the Harrod contract. Although the assignment was in effect on January 22, 1986, West Coast continued to receive the funds from Mr. Clarence Harrod, who was not notified of the assignment of the contract. The Respondent either allowed or acquiesced in the continued management of the project and the building funds by West Coast until April 15, 1986. Sometime between January 17, 1986, and January 31, 1986, the Respondent became a shareholder in West Coast. By April of 1986, the Respondent was a corporate officer and had a one-third interest in the corporation. The corporation had three shareholders: the Respondent, Gunnar Jacobsen, and Gerald Hanley. Although all three men were corporate officers, the Respondent was to supervise new construction projects, Jacobsen was to handle administrative affairs and solicit new work, and Hanley was to supervise the remodeling jobs obtained by Jacobsen. In April of 1986, the Respondent determined that there were insufficient funds in the corporate accounts to complete the Harrod project if overhead costs were not reduced immediately. This insight was acquired by the Respondent around the same time the following events occurred: A. Mr. Harrod complained in early April that the job was taking too long. The project was still in the framing stage, and Mr. Harrod was asked for $15,000 of the $25,184.44 draw which was set aside in the contract for the drywall phase of the project. B. Smaller projects that West Coast had in progress, such as three concrete jobs, were found to be unprofitable by the principals in the company. C. Jacobsen was complaining to the Respondent and Hanley, the other two corporate officers, that framing costs were too high on the Harrod project. D. The Respondent and Hanley had decided, between themselves, that Jacobsen was not earning his salary with the corporation because he was not acquiring the new remodeling jobs for the company that he was supposed to under their business arrangements. On April 15, 1986, Hanley and the Respondent locked Jacobsen out of the corporate offices and removed all the money in the corporate accounts, including the money involved in the Harrod project. On April 22, 1986, an agreement was signed by Jacobsen, Hanley, and Respondent which dissolved their business relationships. Pursuant to the agreement, the Respondent resigned his position as an officer in West Coast and assigned his stock in the corporation to Jacobsen. The Respondent and Hanley were also required to make an accounting of the corporate funds removed from the corporate accounts on April 15, 1986. The agreement does not reveal whether the Harrod project was to remain with West Coast or the Respondent. However, the project did remain with West Coast, and the Respondent contacted the Charlotte County Building Department to remove his name from the building permit effective 8:00 a.m., April 23, 1986. When the business relationship between the corporate principals was dissolving in April, the Respondent had contact with Mr. Clarence Harrod. He did not tell the owner about the assignment of the contract to him on January 22, 1986, nor did he advise the owner of the cost overruns which he now asserts were a reason for his resignation from the corporation. The documents attached to the April 22, 1986, agreement reveal that the Respondent was aware of the need for two releases of lien totalling $40,185 on the Harrod project at the time he left the corporation and allowed the corporation to take back and continue with the Harrod project. The Respondent appears to have commingled corporate funds with the Harrod project funds when the funds were under his and Hanley's joint control. During the seven days the Respondent and Hanley had joint control of the $11,611.88 seized from West Coast, the Respondent was paid $2,026.30 and Hanley was paid $2,633. On April 22, 1986, $5,281.97 was returned to West Coast with a list of acknowledged outstanding bills totalling $1,711.17. During the period of time between the assignment of the Harrod project to the Respondent on January 22, 1986, and the takeover of the project by West Coast on April 22, 1986, the Respondent accepted his legal responsibilities as a licensed contractor only on the occasions where it best served his most immediate personal interests.
The Issue The issue in the case is whether the Respondent violated Subsections 489.129(1)(g)2., 489.129(1)(j), 489.129(1)(i), 489.129(1)(m), and 489.129(1)(o), Florida Statutes (2002), as alleged in the Petitioner's Administrative Complaint, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is a state agency charged with the licensing and regulation of building contractors pursuant to Chapter 489, Florida Statutes. The Respondent is a Florida State Certified Building Contractor who holds license number CBC053702. On December 9, 2002, Mack Hayes entered into a contract with "McKay Engineering/Construction" to build an addition to the Hayes residence located at 3011 East Deleuil Avenue in Tampa, Florida. Although the contract refers to McKay Engineering/Construction rather than McKay Engineering Services, Inc., subsequent change orders to the contract show the Respondent's license number in the letterhead. In correspondence to the Petitioner, the Respondent also acknowledged that he was the contractor on the Hayes project. The Hayes contract did not contain a statement explaining the consumers' rights under the Construction Industries Recovery Fund. Counsel for the Petitioner, however, stated that Mr. Hayes remains eligible for assistance from the Fund. The original contract price for the construction was $54,700. Change orders created an adjusted price of $57,450. During the course of the construction, Mr. Hayes made four payments to the Respondent totaling $49,000. Not long after the construction commenced in January 2003, Mr. Hayes and his wife became frustrated with the slow pace of the construction. Mr. Hayes originally understood that the work would take about 90 days. Instead, the construction remained uncompleted after nine months. In July 2003, the pace of work on the Hayes' addition slowed substantially and in October, the Respondent ceased work altogether. The Respondent ceased work on the project despite the fact that he had not been fired or otherwise given a reason to cease work. In order to facilitate progress on the construction, Mr. Hayes paid the air conditioning subcontractor $1,836, the electrical subcontractor $1,000, and the stucco subcontractor $800, even though it was the Respondent's responsibility under the parties' contract to pay the subcontractors. The Respondent's construction of the new roof of the residence was of particular concern to Mr. Hayes. The tie-in of new roof framing with the existing roof was misaligned and otherwise improperly installed which caused the new roof to sag. The records of the City of Tampa indicate that the Respondent did not obtain a permit from the City for the roofing work at the Hayes residence. In an attempt to repair the roof, large holes were cut in the ceiling to gain access for cutting some of the rafters. The holes in the ceiling were not repaired by the Respondent. The plywood and other wood used on the unfinished eaves was left exposed to weather for months, which has resulted in water damage to the wood that will necessitate that it be replaced. Mr. Hayes obtained cost estimates from two other contractors to repair the roof, gables, and eaves installed by the Respondent. One estimate was $17,490 (including materials) and the other estimate was $15,550 (without materials). Numerous aspects of the construction project were never started or were started and then abandoned, including the gables and eaves, the door trim and hardware, internal electrical box, attic access, plumbing, and front trim. Mack Hayes paid $2,500 to Ezekial Bain and $2,500 to Drains, Etc. to finish some of this work after the Respondent abandoned the project. Taking into account the adjusted contract price of the construction, the amount paid to the Respondent by Mr. Hayes, the direct costs paid to subcontractors by Mr. Hayes, and the reasonable estimated costs for repair of the roof, gables, and eaves, the total financial damages that the Respondent caused to Mr. Hayes is $17,676. The Petitioner did not present expert testimony regarding the competency of the Respondent as a building contractor. Without such testimony, the record evidence is not sufficient to clearly and convincingly demonstrate that the problems associated with this particular project were due to incompetence. The problems could have been caused solely by the Respondent's mismanagement and misconduct. The Petitioner incurred investigative costs of $817.66 for the investigation and prosecution of this case.
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 requiring: that the Respondent pay financial restitution to the Hayes of $17,676; that the Respondent obtain seven hours of continuing education in the area of Chapter 489, Part I, Florida Statutes, in addition to the hours required for renewal of the Respondent's certification; that the Respondent's license be suspended for two years; and that the Respondent reimburse the Petitioner for its investigative costs of $817.66. DONE AND ENTERED this 18th day of July, 2005, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 18th day of July, 2005. COPIES FURNISHED: Brian Elzweig, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Curt L. McKay 9726 Timmons Loop Thonotosassa, Florida 33592 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Tim Vaccaro, Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent committed the violations alleged in the Amended Administrative Complaint issued against him and, if so, what disciplinary action should be taken.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement and clarify the facts to which the parties stipulated at the outset of the final hearing (Parties' Stipulations)2: The contract referenced in the Parties' Stipulations (Building Contract) was signed by Mr. Stasinos (on behalf of ICC) and Mr. Skiera (on behalf of himself and his wife) on June 29, 2000. The home that ICC agreed to build for the Skieras (Skiera Residence) was described in the Building Contract as a "[c]ustom two-story residence with detached garage and riding cor[r]al for a total of 5,370 square feet." It was to be constructed on a tract of land owned by the Skieras in Boynton, Beach, Florida. The Building Contract provided for the following allowances: $20,000.00 for "electrical"; $17,000.00 for "plumbing"; $15,000 for "HVAC"; a "door hardware allowance" of "$50.00 per [interior] door"; $6,000.00 for a "stacked stone veneer" exterior; an "entry door hardware allowance" of "$100.00 per door"; $15,000.00 for "kitchen cabinetry and vanity"; $8,000.00 for "counter tops and vanity tops"; $9,000.00 for "landscaping," including "trees, shrubs, sod, automatic time clock, [and an] operated irrigation system with rain sensor"; and $7,000 for "driveways, walkways, [and] flatwork." There was no written statement in the Building Contract explaining a consumer's rights under the Construction Industries Recovery Fund, as then required by Section 489.1425, Florida Statutes. The Building Contract contained a "[p]ayment [d]raw [s]chedule," which provided as follows: Upon execution of contract: 10%- $36,608.00 Thereafter, progress payments based on schedule of values. This "schedule of values" (referred to in the "[p]ayment [d]raw [s]chedule") contained the following "scheduled values" (excluding change orders): 1. Permits $21,600.00 2. Clearing/Grading/Fill $10,800.00 3. Foot'gs. Undgr Plumb, Soil Treatmt $23,000.00 4. Foundation/Slab poured $32,760.00 5. Exterior Walls/Tie Beam $26,600.00 6. Roof Trusses $26,600.00 7. Roof Sheathing/Felt $19,400.00 8. Interior Framing Complete $14,000.00 9. Windows/Exterior Door Frames Set $14,400.00 10. 2nd Plumbing/Tub Set $7,200.00 11. Wiring Rough-In $14,400.00 12. HVAC Ducts Installed $7,200.00 13. Roof Shingles/Tiles Installed $14,400.00 14. Insulation (wall & ceiling) $4,200.00 15. Exterior Trim/Soffits $11,800.00 16. Drywall Hung $14,400.00 17. Drywall Finish $10,800.00 18. Interior Trim/Interior Doors Installed $13,400.00 19. Interior Paint $8,800.00 20. Siding/Stucco $14,400.00 21. Exterior Paint Complete $8,800.00 22. Exterior Doors & Garage Door Install $6,200.00 23. Cabinets/Countertops Installed $10,000.00 24. Plumbing Finish $3,600.00 25. Electrical Finish $5,600.00 26. HVAC-Compressor/A.H. Installed $10,920.00 27. Driveway/Walks Installed $3,600.00 28. Landscaping/Irrigation $7,200.00 There were six separate change orders. They were dated August 20, 2000 (Change Order No. 001), August 29, 2000 (Change Order No. 002), September 26, 2000 (Change Order No. 003), October 15, 2000 (Change Order No. 004), October 15, 2000 (Change Order No. 005), and November 10, 2000 (Change Order No. 006). As of December 21, 2000, ICC had been paid in full for all six change orders, as well as for items 1 through 8 on the "schedule of values." As of February 27, 2001, ICC had received additional monies from the Skieras: payment in full for items 9 through 12 and 15 on the "schedule of values" and partial (50 percent) payment for items 13 and 20 on the "schedule of values." As of April 10, 2001, ICC had been paid a total of $287,966.20 (all from the proceeds of a mortgage loan the Skieras had obtained from Admiralty Bank) for work done on the Skiera Residence. On May 1, 2001, the Skieras paid ICC an additional $16,800.00 for drywall work, bringing the total amount of payments that ICC had received from (or on behalf of) the Skieras, as of that date, to $304,766.20. The Skieras made no further payments to ICC. The "eight valid claims of lien" referenced in the Parties' Stipulations were filed by eight different subcontractors, all of whom had been hired by ICC to work on the Skiera Residence: Boca Concrete Pumping, Inc.; Gulf Stream Lumber Company; L & W Supply Corp., d/b/a Seacoast Supply; Waste Management of Palm Beach; B.T. Glass & Mirror, Inc.; Boca Raton Decorating Center Company; American Stairs; and Broten Garage Door Sales Inc.3 Boca Concrete Pumping was the "very first" subcontractor to work on the construction of the Skiera Residence. It did the "slab work, the foundation" (referenced in item 4 of "schedule of values"). Its lien was recorded on December 6, 2000. The lien was in the amount of $1,001.25, and it indicated, on its face, that it was for unpaid "concrete pumping" that had been furnished between September 8, 2000, and September 22, 2000. A satisfaction of this lien, dated March 8, 2001, was filed March 24, 2001. Gulf Stream Lumber's original lien was recorded February 15, 2001. It was in the amount of $67,872.59, and it indicated, on its face, that it was for unpaid "building material" that had been furnished between August 15, 2000, and January 24, 2001. An amended claim of lien was recorded May 3, 2001, in the amount of $36,530.59 for unpaid "building material" that, according to the lien, had been furnished between August 25, 2000, and March 27, 2001. A satisfaction of the original lien and amended claim of lien, dated November 30, 2001, was filed December 5, 2001. The liens were satisfied, pursuant to the terms of a Settlement Stipulation, upon the Skieras' payment of $39,579.28 to Gulf Stream Lumber. L & W Supply's lien was recorded April 30, 2001. It was in the amount of $4,536.98, and it indicated, on its face, that it was for unpaid "building materials [and] related items" that had been furnished between December 16, 2000, and January 30, 2001. A satisfaction of this lien, dated October 11, 2001, was filed November 7, 2001. The lien was satisfied by the payment of $10.00 "and other good and valuable consideration" (which was the payment of an additional $2,850.00 by check dated October 11, 2001). Waste Management of Palm Beach's lien was recorded May 31, 2001. It was in the amount of $1,665.89, and it indicated, on its face, that it was for unpaid "[w]aste [r]emoval [s]ervices" that had been furnished between August 30, 2000, and April 5, 2001. A satisfaction of this lien, dated October 19, 2001, was filed November 13, 2001. B.T. Glass & Mirror's lien was recorded June 29, 2001. It was in the amount of $3,560.00, and it indicated, on its face, that it was for an unpaid "glass/mirror package" that had been furnished between May 3, 2001, and May 31, 2001. A satisfaction of this lien, dated October 19, 2001, was filed November 13, 2001. The lien was satisfied by the payment of $1,600.00 (by check dated November 10, 2001), plus an agreement to provide "$2,000.00 in gazebo or arbor products from the Hitching Post," the Skieras' family business. Boca Raton Decorating Center's lien was recorded May 19, 2001. It was in the amount of $1,218.79, and it indicated, on its face, that it was for unpaid "paint, sealers [and] sundries" that had been furnished between May 1, 2001, to May 2, 2001. A satisfaction of this lien, dated October 11, 2001, was filed November 7, 2001. American Stairs' lien was recorded August 16, 2001. It was in the amount of $4,188.00, and it indicated, on its face, that it was for unpaid "[s]tairs and [r]ailings" that had been furnished between June 8, 2001, and June 15, 2001. A satisfaction of this lien was executed on October 15, 2001. Broten Garage Door Sales' lien was recorded September 5, 2001. It was in the amount of $3,214.00, and it indicated, on its face, that it was for the unpaid "sale and installation of garage doors and openers," which took place between June 25, 2001, and July 17, 2001. A satisfaction of this lien, dated January 31, 2002, was filed on February 5, 2002. At a meeting "in the early part of August [2001]" attended by Respondent, Mr. Stasinos, the Skieras, and the president of the bank from which the Skieras had borrowed the money to pay for the construction of their residence, Respondent announced that, on behalf of ICC, "he was filing [for] bankruptcy."4 ICC stopped working on the Skiera Residence after this meeting. At the time, the Skiera Residence was approximately 70 to 80 percent completed (and the Skieras had paid ICC a total of $304,766.20, or approximately 80 percent of the total contract price (including change orders) of $378,286.205). In addition to paying $57,316.62 to satisfy the "eight valid claims of lien" referenced in the Parties' Stipulations, the Skieras paid approximately an additional $57,000.00 to other subcontractors who provided goods and/or services "needed to complete the house." The $10,000.00 check referred to in the Parties' Stipulation 14 (that the Skieras received from Andover Construction, Inc.) did not "represent any kind of final settlement" between the Skieras and ICC. The October 4, 2001, Certificate of Occupancy for the Skiera Residence referred to in the Parties' Stipulations indicated, on its face, that ICC was the contractor, notwithstanding that ICC had abandoned the project "in the early part of August [2001]." Respondent has been a Florida-licensed general contractor since July 29, 1987. In his capacity as ICC's licensed qualifier, he has previously (by Final Order filed in DBPR Case Nos. 2001-03283 and 2001-03284 on December 23, 2003) been found guilty of, and disciplined for, violating (in connection with two residential construction projects undertaken by ICC for A. Richard Nernberg) the same subsections of Section 489.129(1), Florida Statutes (Subsections (1)(g), (i), and (m)) that he is accused of violating in the instant case. In these prior disciplinary proceedings, Respondent's license was suspended for two years, and he was fined $6,000.00 and required to pay $958.30 in investigative costs. Administrative complaints were also filed against Respondent in DBPR Case Nos. 94-15958 and 97-17352. Both of these cases were resolved by settlement stipulations in which Respondent "neither admit[ted] [nor] denie[d] the allegations of fact contained in the [a]dministrative [c]omplaint[s]."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board issue a Final Order: finding Respondent guilty of violating Section 489.1425(1), Florida Statutes, as alleged in Count I of the Amended Administrative Complaint, and fining him $1,000.00 for this violation; (2) finding Respondent guilty of the violation of Section 489.129(1)(g)1., Florida Statutes, relating to Boca Concrete Pumping's December 6, 2000, $1,001.25 lien, alleged in Count II of the Amended Administrative Complaint, and taking the following disciplinary action against him for this violation: suspending his license for four years (with such suspension to run consecutively with his current suspension); (b) fining him $5,000.00; (c) requiring him to pay restitution in the amount of $1,001.25 to the Skieras; and (c) ordering him to reimburse the Department for all reasonable investigative and prosecutorial costs (excluding costs related to attorney time) incurred by the Department; and (3) dismissing all other charges in the Amended Administrative Complaint. DONE AND ENTERED this 8th day of May, 2007, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 8th day of May, 2007.
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaints filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent was licensed as a certified general contractor in the State of Florida, having been issued license number CG C000942. At all times material hereto, Respondent was the licensed qualifying agent for Twenty First Century Construction Management, Inc. On September 5, 1992, Willie Janes, doing business as Janes Roofing Contractor, entered into a contract with Debourah Benjamin to replace the roof at her residence located in Margate, Florida. The contract price was $6,748, but Janes later agreed to do the work for $6,248, which was all Benjamin's insurance company would pay. On November 26, 1992, Benjamin gave Janes a check in the amount of $2,200 as a down payment on the work. The check was payable to Willie Janes. At the time Janes entered into his contract with Benjamin, his local roofing license had expired, and he was not licensed as a roofing contractor by the State of Florida. Respondent applied for the roofing permit for the Benjamin job. The City of Margate Building Department issued permit number 11525-R by and through Respondent's licensure on December 3, 1992. Janes commenced work on the Benjamin project on November 26, 1992. On December 8, 1992, the City of Margate Building Department performed a tin tag inspection of the work done by Janes. The work failed the inspection that day but passed two days later. On January 11, 1993, Benjamin issued a second check, in the amount of $2,300, payable to Willie Janes, for the purchase of roof tile. Janes did not order and did not pay for the roof tile until approximately June 25, 1993. The tile was delivered to Benjamin's residence a few days later and placed on the roof for installation but Janes did not return to the project site. The amount of tile delivered to Benjamin's residence was not sufficient to cover the entire roof. On approximately June 25, 1993, Benjamin noticed for the first time that the name of the company on the permit posted at her residence was Twenty First Century Construction. Neither the Respondent nor Twenty First Century Construction Management, Inc., had any involvement in Benjamin's project other than obtaining the building permit. Benjamin contacted the building department which issued the permit and was referred to Petitioner. An employee of Petitioner advised her that the qualifier for Twenty First Century Construction was Respondent. Benjamin had never heard of Respondent at the time. Benjamin contacted Respondent by telephone several times about completing the work commenced by Janes. Respondent repeatedly promised to finish the roof but never did. Benjamin next contacted the Margate Police Department to report the activities of Respondent and Janes. On September 3, 1993, Officer Liberatori of the Margate Police Department spoke to Respondent by telephone, and Respondent promised to complete the work within 30 days. However, Respondent did nothing to complete the work. The last inspection performed on the Benjamin project under permit number 11525-R was the dry-in inspection performed on February 8, 1993. Permit number 11525-R expired on July 8, 1993. In December 1993 Benjamin had the project completed by another contractor. On November 16, 1992, Delos and Barbara Johnson entered into a written contract with Respondent to remodel a porch enclosure at the Johnson residence in Coral Springs, Florida, for a contract price of $10,250. The Johnsons made three payments to Respondent: $1,000 on September 28, 1992; $5,000 on November 17, 1992; and $3,000 on December 2, 1992. On October 12, 1992, Respondent applied for a building permit from the City of Coral Springs for the Johnson remodeling. The City of Coral Springs issued permit number 920004472 by and through Respondent's licensure on November 30, 1992. When the City of Coral Springs issues a building permit, it provides with the permit a list of the required inspections. Respondent proceeded with the construction until December 2, 1992, when he received the third payment. Thereafter, Respondent ceased all construction activities on the Johnson project. Shortly thereafter, the Johnsons learned from the Coral Springs Building Department that their remodeling project had failed to pass the required inspections. When they confronted Respondent regarding his failure to obtain the required inspections, he represented to them that he had made a videotape of all the work he performed, that he himself was a building inspector and could inspect his work, and that he could get a special inspector to inspect the project from the videotape. At no time material hereto was Respondent a certified building inspector. Videotaping a construction project in lieu of obtaining required inspections is not permitted under the South Florida Building Code nor is it permitted by the City of Coral Springs Building Department. Of the required nine inspections for the project, Respondent only obtained three inspections. Of those three, he only passed two. Respondent's failure to obtain the required inspections constitutes a violation of the South Florida Building Code, the minimum standard required for any type of building construction in South Florida. A contractor's failure to adhere to that minimum standard causes harm to the public from deteriorating construction. The Johnsons and the City of Coral Springs Building Department gave Respondent an opportunity to obtain and pass the required inspections and complete the construction project. When Respondent declined to do so, the attorney hired by the Johnsons discharged Respondent. The Johnsons had paid approximately 90 percent of the money they had saved for the porch enclosure to Respondent, and they could not afford to continue with the construction project using the services of another contractor until November 1994. Rick Hugins of Hugins Construction Corp., the remedial contractor, needed to pass the required inspections that Respondent had neglected in order to be permitted by the City of Coral Springs Building Department to complete the project. Work that needed to be inspected was concealed by subsequently- installed construction materials which had to be removed in order that the required inspections could be performed. Numerous code violations were discovered in the concealed work. The work performed by Respondent was below industry standards. The Johnsons paid Hugins Construction Corp. $10,000 to correct the code violations, to pass the required inspections Respondent had missed, and to complete the project. Hugins completed the project by January 23, 1995. Respondent has been previously disciplined by Petitioner on charges of assisting unlicensed activity and of failing to notify Petitioner of his current mailing address and telephone number. That discipline included the payment of an administrative fine and an assessment of costs associated with that investigation and prosecution.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the allegations contained in Counts I and III of the Administrative Complaint filed against him in DOAH Case No. 97- 1365, finding Respondent guilty of the allegations contained in Counts I and II of the Administrative Complaint filed against him in DOAH Case No. 97-1368, requiring Respondent to pay restitution to the Johnsons, assessing against Respondent the costs of investigation and prosecution through the time the final order is entered, and revoking Respondent's certification as a general contractor in the State of Florida. DONE AND ENTERED this 10th day of July, 1998, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 1998. COPIES FURNISHED: Dorota Trzeciecka, Esquire Department of Business and Professional Regulation 401 Northwest Second Avenue, No. N-607 Miami, Florida 33128 Edward Conrad Sawyer, Esquire 1413 North 58th Avenue Hollywood, Florida 33021 Rodney Hurst, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the Respondent was validly disciplined by a local government, which causes the Respondent to be in violation of Section 489.129(1)(i), Florida Statutes (1985). Whether the Respondent failed to perform the contracting job alleged in the Administrative Complaint in a reasonably timely manner, or abandoned the job, in violation of Section 489.129(1)(m), (k), Florida Statutes (1985). Whether the Respondent exhibited financial mismanagement, misconduct or diversion, in violation of Section 489.129(1)(h), (m), Florida Statutes (1985). Whether the Respondent committed gross negligence, incompetence or misconduct in connection with the job alleged in the Administrative Complaint, in violation of Section 489.129(1)(m), Florida Statutes (1985).
Findings Of Fact At all times material to these proceedings, the Respondent, Charles R. Schelah was licensed as a certified general contractor in Florida, and held license number CG C016841. Mr. Schelah was the qualifying agent for Schelah Construction, Inc. On March 11, 1986, Schelah Construction, Inc., entered into a contract with Moner F. Green and Karen L. Green to construct a residence in Prairie Creek Park, Charlotte County, Florida A copy of the contract is Petitioner's Exhibit Pursuant to the written agreement, construction would occur as per the signed construction drawings. The total contract price was to be $102,775.00. This quote was contingent upon a construction start on or before March 15, 1986. After that date, increases in supply and labor costs would be borne by the owners, Mr. and Mrs. Green. The contract further stated that there is no specific completion date, that an expected completion date was August 30, 1986. Construction began on the residence on April 4, 1986. Three revisions of the drawings were completed by the owner before a building permit was requested by the Respondent Schelah. Throughout the progress of construction, major and minor revisions were made by the owners. Many of these revisions delayed construction as the Respondent was required to obtain new special order materials and retrofit many of the changes into the existing construction phase. The Respondent recollected that thirty-five revisions were made to the construction plans by the owners during various phases of construction. In September 1986, the owners began to frequently telephone the Respondent in order to urge him to quickly complete the project as the owners were now required to pay the savings and loan association mortgage installments. The Respondent did not return the telephone calls. A letter was sent to the Respondent by the owners' attorney on November 3, 1986, notifying him that he needed to resume his responsibilities at the construction site. The Respondent did not reply to this letter. On November 7, 1986, the Respondent was removed as contractor of record by the owners. All but the final draw from the savings and loan had been given to the Respondent before his removal. After the Respondent was removed from the project, the owners were given notice of the following liens: $2,750.55 to Pre-Hung Doors of Florida for supplies delivered in August 1986; $700.00 to Paul Hartt Plastering and Stucco, Inc. for work completed in September 1986. The work completed by both subcontractors was performed during the Respondent's term as the prime contractor on the project. These two contractors were never paid by the Respondent out of draws received by him for that purpose through October 1986. These subcontractors, as well as others, testified that they were unable to communicate with Respondent after September 1986. The final draw from the savings and loan in the amount of $19,618.97, was used by the owners to complete the project themselves. The proof of payment submitted by the owner, Mr. Green, at hearing for completion under the direct contract was $6,149.14, in Respondent's Exhibit 14. The residence was completed by the owners in December 1986. Mr. Green, the owner, filed a complaint with the Charlotte County Building Board on October 29, 1986, alleging that the Respondent refused to call him, and was dragging completion of the job for unknown reasons hearing was held on February 19, 1987. At the conclusion of the hearing, the Charlotte County Building board suspended the permitting privileges of Schelah Construction, Inc., until such time as all jobs in progress were finished. During the administrative hearing, the Respondent admitted that a twenty-one day delay on the Green project occurred when he was unable to acquire a sheetrock hanger who would go to the hinterlands (Prairie Creek Park) where the residence was being built. He contends however, that the additional time delays were a result of changes in supply orders due to the changes made by the owners, and the requirement that subcontractors be rescheduled to accommodate these changes. Petitioner's experts in construction practices within Florida, Mr. Bernard Verse and Mr. Stanley Ink, were unable to render an opinion that the Green Construction project had been abandoned by Respondent Schelah, or that there had been a diversion of funds. However, Mr. Ink did render an opinion that the project was not completed in a reasonably timely manner, that the Respondent is guilty of financial mismanagement, and that the Respondent committed gross negligence, incompetence or misconduct on the job in that the Respondent did not use due diligence in completing the job, staying on the job, and paying the subcontractors as the contractor should. Mr. Verse opined that the Respondent committed financial mismanagement and gross negligence in the practice of contracting. It was gross negligence not to maintain contact with clients. The Respondent's own expert in construction practices in the Punta Gorda area, Mr. Larry Deirmeyer, noted that it is difficult to acquire unscheduled building supplies in the Punta Gorda area if a contractor runs a small construction company because the supply houses are in Fort Myers, where rapid growth is occurring. In addition, it is difficult to get subcontractors to work on construction in areas like Prairie Creek Park, which is remote from the developed areas of Charlotte County. After Mr. Deirmeyer was admitted as an expert in construction practices, the Hearing Officer learned that he had built a custom home for the owner Moner Frank Green in 1980. Mr. Green's removal of Mr. Deirmeyer's company from the construction project during the last draw of that project, and his continuous changes in those plans were not considered by the Hearing Officer in this case except for the purpose of weighing Mr. Deirmeyer's independence as an expert witness. Another expert witness in construction practices presented by the Respondent was James Anderson, a state certified contractor from the Port Charlotte area. Mr. Anderson acknowledged the local builder supply problem and rendered the opinion that nine months was a reasonable period of time in which to complete the Green project, based upon the construction plans, the change orders, and the travel required to the project, which is not in the immediate Port Charlotte area. The Respondent Schelah did not maintain communication with the owners regarding the progress of the project, even though he was telephoned repeatedly and received written communication from the Green's attorney. This failure to maintain communication resulted in the Respondent's dismissal from the project. The County's Building Director's requests for communication were also refused by the Respondent.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Respondent be found not guilty of having violated Section 489.129(1)(i), Florida Statutes, as alleged in paragraph five of the administrative complaint. That the Respondent be found not guilty of having violated Sections 489.129(1)(m) and (k), Florida Statutes, as alleged in paragraph six of the administrative complaint. That the Respondent be found not guilty of having violated Sections 489.129(1)(h) and (m), Florida Statutes, as alleged in paragraph seven of the administrative complaint. That the Respondent be found guilty of having violated Section 489.129(1)(m), Florida Statutes, as alleged in paragraph ten of the administrative complaint in regard to misconduct by the Respondent on the Green project. That the penalties assessed against the Respondent not include an aggravation of penalties under Rule 21E-17.002, Florida Administrative Code, and that the Respondent pay a fine of $750.00, as set forth in Rule 21E-17.001(5), Florida Administrative Code. DONE and ENTERED this 9th day of June, 1989, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 9th day of June, 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 88-3442 Petitioner's proposed findings of fact are addressed as follows: Accepted. Accepted. See HO #1. Accepted. See HO #1. Rejected as to location of project. The rest is accepted. See HO #2. Accepted. Accepted. See HO #2. Accepted. See HO #4. Accepted. See HO #4. Accepted. See HO #4. Accepted. See HO #5. Accepted. See HO #4. Accepted. See HO #5. Accepted. See HO #6. Accepted. Accepted. See HO #9. Accepted. See HO #9 and #10. Accepted. See HO #10. Accepted. Accepted. See HO #13. Accepted. Accepted. Rejected. See HO #13 and #11. Rejected. See HO #11. Accepted. See HO #11. Accepted. Accepted. Accepted. See HO #14. Accepted. See HO #3 and #8. Accepted. See HO #7. Respondent's proposed findings of fact are addressed as follows: Accepted. See HO #1. Accepted. See HO #2. Accepted. See HO #3 and #4. Accepted. See HO #13. Accepted. See HO #5. Accepted. See HO #6. Accepted. See HO #6. Accepted. See HO #7. 9. Accepted. See HO #9, #10, #11, #12 and #13. 10. Rejected. Irrelevant to this proceeding. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0729 John Charles Heekin, Esquire 21202 Olean Boulevard, Suite C-2 Port Charlotte, Florida 33952 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0729 Fred Seely, Executive Director Florida Construction Industry Licensing Board 111 East Coastline Drive Post Office Box 2 Jacksonville, Florida 32202
Findings Of Fact Notice in this case was given as required on May 2, 1977. Paul Slivyak holds registered residential contractor's license RR 0000896 issued by the Florida Construction Industry Licensing Board. Slivyak is the qualifying licensee for Allcraft Construction Company, Inc., a Florida corporation solely owned by Paul Slivyak. Gussie Hailey identified a contract between Allcraft Construction Company, Inc., to her husband, Willie Hailey, for repairs to the interior of their residence caused by fire. See Exhibit 1. She also identified a cancelled check payable to Allcraft Construction Company signed by her in the amount of $1,700 as the initial payment to Allcraft Construction Company, Inc., under the terms of the contract. The only work performed by Allcraft Construction Company, Inc., on the Hailey residence pursuant to the contract was the removal of a portion of the burned interior of the Hailey hone. Gussie Hailey identified a photograph of the material removed from the hone as it was left in her back yard by the workmen. The total work performed by Allcraft Construction Company, Inc., on the contract was performed by two young men who worked one half day. The photograph and check identified by Mrs. Hailey were received as composite Exhibit 2. After the failure of Allcraft Construction Company, Inc. to complete the work called for under the contract, the Haileys had to additionally pay approximately $4,000 to complete the job in addition to the $1,700 paid to Allcraft Construction Company, Inc. Marjorie Kneski, the wife of Mr. Joseph Kneski, identified a contract between Allcraft Construction Company, Inc., and she and her husband for the construction of an addition to their home. See Exhibit 3. She also identified a cancelled check payable to Allcraft Construction Company in the amount of $700, initial payment to Allcraft Construction Company pursuant to the contract for the construction work to be performed. After waiting two or three weeks for Allcraft Construction Company to begin work, the Kneskis became concerned and contacted the Better Business Bureau. The Better Business Bureau contacted the Florida Construction Industry Licensing Board investigator in the area. The Better Business Bureau also informed Mr. Kneski that the business reputation of Allcraft Construction Company, Inc. , was of such a nature that care should be exercised in dealing with the company. Mr. Kneski contacted Allcraft Construction Company, Inc., and advised them that he wanted his money back in that they had not started work under the contract. The Kneskis never received any of their money back from Allcraft Construction Company. The investigator for the Florida Construction Industry Licensing Board contacted Slivyak regarding the Kneski's complaint. Slivyak told the investigator that he had used the money received from the Kneskis to pay a portion of his income taxes and no longer had the money. Kneski also identified a letter received by him from Jack A. Nants, Attorney at Law, representing Allcraft Construction Company, Inc. This letter (Exhibit 5) recognizes and ratifies the contract entered into in behalf of Allcraft Construction Company, Inc., by Doug Fioto, but indicates the intention of Allcraft Construction Company, Inc. , to retain the initial $700 received from the Kneskis as liquidated damage if Allcraft Construction Company, Inc., was not allowed to perform under the contract. The contract does not contain a liquidated damage provision.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Florida Construction Industry Licensing Board revoke the registered residential contractor's license of Paul Slivyak, No. RR 0000896. DONE and ORDERED this 19th day of July, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Barry Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 Mr. Paul Slivyak 502 South Lake Formosa Drive Orlando, Florida 32803 Mr. J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211
The Issue Whether Respondent's license as a certified roofing contractor in the state of Florida should be revoked, suspended or otherwise disciplined under the facts and circumstances of this case.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, Respondent, Christopher G. Coxon, held a license as a certified roofing contractor, number CGC029604. On or about November 15, 1988, Respondent entered into a written contract with John DeCarlucci to repair a leak in the roof of DeCarlucci's residence at 1717 North Oregon Circle, Tampa, Florida. The contract amount was $400.00, of which Respondent was paid $200.00 by DeCarlucci on November 16, 1988. The Respondent gave DeCarlucci a one-year warranty on his work. The balance owed on the contract was to be paid upon satisfactory completion of the job. Respondent commenced work on the DeCarlucci residence on November 16, 1988. On November 16, 1988 Respondent removed two rows of roofing tile from DeCarlucci's roof while attempting to repair the leak in the roof. The Respondent carried these roofing tiles away from DeCarlucci's residence on November 16, 1988 and has never returned these roofing tiles or provided DeCarlucci with any replacement roofing tiles. On November 23, 1988 the area of the roof that Respondent had attempted to repair leaked. As a result of several telephone calls to Respondent from DeCarlucci, the Respondent returned to the job site on November 26, 1988 and December 7, 1988, and whatever repairs the Respondent attempted on those dates failed in that the roof continues to leak. After December 7, 1988 the Respondent did not return to the job site. DeCarlucci attempted to reach Respondent through the remainder of December 1988 and January and February 1989 by telephone and a certified letter but to no avail. As a result of DeCarlucci filing a complaint with the City of Tampa Building Department on January 5, 1989, the job site was inspected by the construction inspector for the building department and the project cited for violation of the building code. Respondent was notified of the complaint and building code violation. The Respondent was given until February 14, 1989 to correct the leakage and to replace the missing roofing tiles. As a result of Respondent's failure to take any corrective action toward repairing the roof or replacing the missing roofing tiles, the DeCarlucci complaint was filed with the City of Tampa Unified Construction Trades Board for disciplinary action. The Respondent subsequently returned the $200.00 to DeCarlucci that he had received from DeCarlucci on the contract price on November 16, 1988. In its complaint against the Respondent the City of Tampa Unified Construction Trades Board alleged that Respondent's failure to properly repair the roof was a violation of Section 101.1-Covering, Standard for the Installation to Roof Coverings, 1985, edition, Southern Building Code Congress International, Inc., and Section 25-101(5)(10) and (22) Grounds for Disciplinary Action, Penalties, City of Tampa, Building and Construction Regulations. Respondent was duly notified of the hearing to be held on April 4, 1989 on the allegations. At the hearing on April 4, 1989 the Respondent was found to have violated those sections set forth in Finding of Fact 13 and by unanimous decision the Board ordered Respondent to cease all construction activity and revoked the Respondent's permitting privilege. At no time material to this proceeding, has the Respondent made restitution to DeCarlucci for the missing roofing tiles or the cost of labor and materials for installing such tiles. While Section 489.129(1), Florida Statutes, provides for the assessment of costs associated with the investigation and prosecution of a case, there was no evidence presented by the Department as to the amount of those costs.
Recommendation Upon consideration of the foregoing findings of fact and conclusions of law and disciplinary guidelines set forth in Rule 21E-17.001, Florida Administrative Code, it is accordingly, RECOMMENDED: That the Board enter a Final Order finding Respondent, Christopher G. Coxon guilty of violation of Section 489.129(1)(d)(i) and (m), Florida Statutes, and for such violation revoke his license as a certified roofing contractor. DONE and ENTERED this 2nd day of January, 1992, in Tallahassee, Florida. WILLIAM R. CAVE 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 2nd day of January, 1992. APPENDIX The following constitutes my specific rulings pursuant to Section 120-59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in the case. Rulings on Proposed Finding of Fact Submitted by the Petitioner Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed findings of fact: 4-6(1); 7-8(2); 9-10(3); 11(4); 13-16(5); 17-18(3); 19(6); 20-21(7); 22-23(8); 24-26(9); 27 28(10); 29-30(11); 31(12); 32(16); 33(13); 34(14); and 35- 36(15). Proposed findings of fact 1-3 are covered in the Preliminary Statement. Proposed finding of fact 12 is rejected as not being supported by competent substantial evidence in the record. See proposed findings of fact 20 and 21 and finding of fact 7. Rulings on Proposed Findings of Fact Submitted by the Respondent The Respondent did not submit any proposed findings of fact. COPIES FURNISHED: Craig M. Dickinson, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Christopher Coxon 554 Carson Drive Tampa, FL 33615 Daniel O'Brien, Executive Director Construction Industry Licensing Board P.O. Box 2 Jacksonville, FL 32202 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
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
Findings Of Fact At all times material here to, Respondent was licensed as a certified general contractor, having been issued license number CG C009484 by the State of Florida. At all times material hereto, Respondent qualified Allstate Roofing & Construction Company with the Florida Construction Industry Licensing Board. Since March 1983, Respondent has also been licensed as a registered roofing contractor and qualifies Allstate Roofing & Construction Company with the Florida Construction Industry Licensing Board under license number RC 0043155. On March 27, 1981, as the qualifier for Allstate Roofing & Construction Company, Respondent entered into a contract with Joe Hill to reroof Hill's home for the contract price of $2,214.10. The contract further provided that workmanship would be unconditionally guaranteed for a period of five years. Respondent in turn entered into a subcontract on April 8, 1981, whereby A & A Roofing Co. subcontracted with Allstate Roofing & Construction Company to perform the work required on the Hill roof for the sum of $1,950, which contract also carried a five-year workmanship unconditional guarantee. In the meantime, Hill and his wife obtained a second mortgage on their home to pay for the replacement of the existing roof, and the mortgage company paid Respondent directly. The subcontractor with whom Respondent contracted for the work on the Hill home was a registered roofing contractor. The existing roof on the Hill home was gravel. Under the contract for replacing the roof on the Hill hoine, asphalt shingles were installed on the portion of the roof which is slanted, and new gravel and tar were installed on the portion of the roof which is flat. After the roof was completely replaced, Hill contacted Respondent to report leaks in the flat part of the roof. In response to that complaint, someone came to the Hill residence and repaired the areas where leakage was reported. Since the roof leaked again, Hill contacted Respondent, and Mr. Davis of A & A Roofing Co. reported to the Hill residence and worked on the roof. In January 1983, Hill's wife contacted Respondent regarding her leaky roof, and once again someone was sent to the Hill residence to effectuate repairs. Although the Hills testified at the formal hearing that the roof still leaked, no evidence was presented to show the precise location of any leak in order o ascertain if the leak was a new" leak or an "old" leak. Both Mr. and Mrs. Hill do admit, however, that Respondent has responded to their complaints every time they have contacted him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty of the allegations contained in the Administrative Complaint filed herein and further dismissing the Administrative Complaint against him. DONE and RECOMMENDED this 20th day of October, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 1983. COPIES FURNISHED: Stephanie A. Daniel, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Clarence. S. Tate 8282 Westernway Circle, Suite 103 Jacksonville, Florida 32216 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
