Findings Of Fact At all times pertinent to the allegations contained herein, Respondent was licensed by the State of Florida as a registered real estate broker under license #0001869, which was issued to him as a broker in care of American Heritage Realty, Inc., 102 East Leeland Heights Boulevard, Lehigh, Florida 33936. At all times pertinent to the allegations contained herein, Respondent owned American Heritage Builders, Inc. (AHB). Rudolph L. Ferster, a certified contractor, served as vice-president in charge of construction for American Heritage Builders, Inc., from August 1978 until October 13, 1984. As a licensed contractor, he qualified American Heritage Builders as a residential contractor in the State of Florida. During the time he was with AHB, he supervised the construction of nearly 100 houses for the company. Most of these houses were one of four basic models. When Mr. Ferster left his association with AHB, another contractor, Warren Fuller, had been hired by Respondent to work with the company. He does not know whether Mr. Fuller ever qualified AHB or not. On January 23, 1983, employees of the Respondent entered into a contract with William D. Thomas for the construction and purchase of a lot and house to be constructed thereon by AHB. Contract price was $30,737 for the entire package and Mr. Thomas put down a $4,000 deposit. The balance of $26,737 was to be paid at the start of construction which, in the contract, was stated to be April 15, 1983. The Administrative Complaint alleges that Respondent delayed construction of the Thomas property for over two years and then abandoned it, causing a $6,000 plus loss to Mr. Thomas. The Thomas property was contracted initially to be a shell home. Mr. Thomas was going to do much of the work himself. When Respondent could no longer do the work due to the lack of licensure status, Mr. Thomas contracted with Fred D. Elliott, a certified residential contractor to complete the property which at the time was 50 percent done. Respondent took Mr. Elliott to Mr. Thomas with whom Elliott made an agreement directly. At that time, Mr. Thomas still owed approximately $8,000 on the work agreed upon in the original contract. The additional $6,000 alleged in the Administrative Complaint was for work agreed upon by Mr. Thomas over and above that called for in the initial contract and was in no way connected to the work left undone by Respondent. On January 30, 1984, employees of the Respondent entered into a similar contract with Clarence and Lillian Tap for the construction and purchase of a house and lot in Lehigh Acres to be built by AHB. Mr. Tap intended to pay cash for his purchase and agreed to the construction of a residence on a particular lot which had been shown to him by Respondent's employees. Several days after signing the contract, however, Respondent's employees telephoned him telling him that though the lot he had selected was not available, he could have the lot next door. Since the lot he had selected was a corner lot and the lot subsequently offered was an interior lot, he rejected this offer and Respondent's employees offered to show him other lots with the caveat that if the new lot he selected was more expensive than the original, he would have to pay the difference. Mr. Tap agreed and selected a new lot for an additional cost of $2,500. The original contract was for a total purchase price of $34,995 with $18,250 to be paid down at start of construction on March 1, 1984, and three additional payments to be made periodically at various stages of construction. When the new lot was decided upon, however, a new contract was drawn up and signed by the parties which reflected the new purchase price. It also called for Mr. Tap to apply for a mortgage in the amount of $8,500 with appropriate adjustments to other cash payments. At the time, Mr. Tap was not sure he would be able to make the total cash payment called for since his prior owned mobile home had not yet sold. Because of this development regarding the application for mortgage, Respondent included this parcel in the security given for his half million dollar line of credit with Florida Federal Savings and Loan. As Mr. Tap was not going to make the total cash payment, Respondent would need to secure a fund draw from Florida Federal in order to complete construction. This created a substantial problem not only for Respondent, but for Tap as well. The Taps did not have to take out a mortgage after all, but were able to pay cash for the entire property when it was completed. However, because of financial difficulties that had come up between Respondent and Financial Federal by that time, the lending institution was unwilling to release the Tap property from its security agreement even though Respondent was willing to pay the entire amount due on that property. When the Taps could get no satisfaction from Respondent, they hired an attorney who got him to sign a warranty deed in favor of the Taps, transferring title to the property in question. At the time, Respondent and the Taps' attorney both knew that there was still a security interest in the property in the hands of Florida Federal but Respondent was of the opinion, based on conversations and correspondence he had with the institution, that they were going to release the Tap property. As a result, he signed the warranty deed and advised the Taps at the time that they should receive their copy of the deed within four to six weeks. This time was supposedly sufficient to allow payment of the outstanding obligation to Florida Federal and Florida Federal's recordation of the deed from AHB to the Taps. However, Florida Federal refused to release the Taps' property and has subsequently initiated foreclosure action against it to recover the $30,400 they claim to be due and owing on that section of the line of credit. Mr. Tap has offered to pay the entire $30,400 to Florida Federal in addition to the full amount of the contract price he has already paid to Respondent, but Florida Federal refuses to accept any partial payment. Instead, it insists upon satisfaction of the entire line of credit which now is approximately $200,000. On April 17, 1984, employees of the Respondent entered into a contract with Davis and Reba Williamson as purchasers of a new house to be constructed by AHB on a lot already owned by the Williamsons which they had purchased separately from the Lehigh Corporation for $8,000. Mr. Williamson paid AHB approximately $12,000 down payment on a home to cost $34,245. The house was not completed until October 1985, at which time the Williamsons took possession. They noticed that mechanics' liens had been placed on the property but these were satisfied by the Respondent with funds coming from Financial Federal prior to the Williamsons taking possession. It would appear that the liens were the result of the failure of the actual building contractor, Mr. Price, of New Homes of Lee County, to pay suppliers and subcontractors. When Mr. Williamson looked at the permit posted outside the construction, he first learned AHB was not actually doing the construction. Prior to that time, though Respondent, Mr. Anglickis had not so represented, Williamson had assumed AHB was the actual constructor. When Mr. Williamson spoke with Mr. Price about the liens, he was advised that the construction had stopped because Respondent owed Price money. Respondent denies this and there is no evidence presented by either side to establish the truth of that allegation. The house was subsequently completed by Mr. Williamson acting as his own contractor and hiring subcontractors to do the actual work through the assistance of Mr. Ohlhausen, the DPR investigator, to whom he had complained previously. The materialmen and subcontractors were paid by Mr. Anglickis who issued funds from the construction loan. No additional funds were required of Mr. Williamson. Respondent did not do the final construction to complete the property because, not being a licensed contractor, he could not lawfully do so. On July 26, 1984, the employees of the Respondent entered into a contract with Samuel J. and Dorothy Sapp to construct a house on a lot already owned by the Sapps for a total price of $56,347. The contract called for the Sapps to apply for a mortgage in the amount of $36,000. To facilitate the transaction, the Sapps conveyed the lot they owned to AHB. Respondent admits the home was not built even though the lot was conveyed and Mr. Sapp paid in a deposit of $21,324. When the property was not constructed, Respondent reimbursed Mr. Sapp in the amount of $20,000 which constituted his deposit minus certain expenses incurred for such things as survey fee, attorney fee, mortgage fees and the like. Respondent claims that prior to 1978 when Mr. Ferster came on board, there had always been a licensed contractor to qualify AHB. Initially, upon first purchasing the business, Respondent used all licensed contractors who had worked for the corporation when it was owned by Lehigh Corporation. Respondent assumed that the contractors he utilized were doing the same thing for him as the owner of the corporation in order to keep matters legal as they had done when the corporation was owned by Lehigh Corporation, and for many years this was the case. Mr. Ferster maintained AHB as a qualified contractor until he left in 1984. It was at point that the new contractors utilized by Respondent, Mr. Price in particular, failed to qualify the corporation with their licenses. However, Respondent contends, and the evidence seems to establish, that at no time did Respondent ever represent himself as a licensed contractor to the buyer of the homes in question here. In fact, he did not even speak with them until well after the contracts were signed by the purchasers and his signature appearing thereon in each case is an ex post facto action on his part. The problems which confront Respondent herein deal with his relationship with Florida Federal with whom he had established a half million dollar line of credit. Just about the time these current houses were coming up for construction, Respondent's relationship with Florida Federal deteriorated. It well may be that his financial arrangements with the institution were less than satisfactory. Evidence of this was not forthcoming from either party. However, it has been shown that each of the properties in question was made a part of the security for Respondent's line of credit which had fallen delinquent. Florida Federal indicated its intention to foreclose and, with few exceptions, took the position that the mortgage which it held on Respondent's properties did not provide for releases of individual parcels. Though this may have been the case, and the mortgage was not introduced, Respondent testified, and there is no reason to disbelieve him, that prior to the time in question, as a practice, Florida Federal did release individual parcels upon payment of the amount represented as the construction loan in each case. Respondent assumed that this practice would continue but in the case of the Sapps' property, it did not. Respondent has, from the very beginning, made a good faith effort to secure the release of the Taps' property which should not have been made a portion of the security in the first place. The Williamson property was released and they acquired a clear title to it. When the Tap property was completed and ready for closing, Mr. Tap brought the $8,500 still outstanding with him to the closing. Florida Federal, however, would not accept this money because it was not the full payoff on Respondent's construction loan. While Respondent brought with him the amount he thought was due, the figure was wrong and Florida Federal would not accept the amount offered since both his amount and the $8,500 Tap payment still did not constitute the full amount due under the construction loan. Thereafter, Florida Federal would not accept the correct amount due on this particular property even though Respondent offered and had available to him sufficient funds to make the full payment. The $500,000 line of credit was not renewed by the Respondent at his own choice when it became time for the rollover. However, because there were still four homes still in work, Respondent offered to roll over a lesser amount, $161,000, which was agreed upon by Florida Federal by letter dated March 14, 1985. At the time of this letter, Mr. Tap's property had been completed three months previously and Respondent had given Tap a warranty deed. Respondent asked Florida Federal on an almost daily basis for the payoff on the Tap loan so that he could have that portion of the mortgagee released. However, he was never given it. At the time, Respondent was working with Florida Federal to get as many properties released as he could and though Florida Federal verbally agreed to work with Respondent, it appears he never got any cooperation. In fact, by letter dated April 3, 1985, Financial indicated that if the unpaid principal balance was not paid in full by April 13, 1985, foreclosure action would be initiated. When Respondent received this letter he immediately called Florida Federal. He was advised orally that he could have a second chance and that papers would be forwarded for him to sign, but he never received them. Instead, on April 18, 1985, he received a letter stating that he had failed to meet the terms and conditions of the previous offer and that it was rescinded. Respondent wrote back on April 24 protesting the decision and alleging a mistake. Nothing was done until July 17, almost three months later, when he was again advised in writing that the bank would consider a proposal from him. Respondent responded quickly and on August 27, received a reply from the bank apologizing for the failure to respond to his proposal and indicating that the matter was still open for negotiation. Nonetheless, Mr. Tap has still not been given the opportunity to pay off his property. Florida Federal refuses to accept any pay off for individual homes unless the entire line of credit is paid in full. During the period of these negotiations, Florida Federal accepted two other loans for Respondent's line of credit but has refused to advance any funds under these loans. One of these is the Sapp house. Florida Federal took the Sapp lot previously deeded to AHB as security for the line of credit and refuses to release it though no funds have been advanced for any construction on that lot. Respondent, in addition to reimbursing Mr. Sapp $20,000 of his deposit, has offered payment for the lot or an exchange of lots, but Mr. Sapp has declined. With regard to the Tap house, covered by a $30,400 construction loan, Respondent has offered Florida Federal $50,000 in cash to release this property but the institution refuses insisting that the full line of credit be paid off. Respondent contends that he has never received a complaint from Mr. Williamson or any of the other individuals listed in the Administrative Complaint. This is so found. Charles Matheny, assistant to the President of Lehigh Corporation, the developer of Lehigh Acres, has known the Respondent for nearly 19 years, having first met him when Respondent worked for the corporation in advertising and promotion. Respondent left Lehigh Corporation at some point in the interim. When he did so, he purchased certain assets of the corporation which included the name American Heritage Builders, Inc., and the model site owned by the corporation. At that point, Respondent went in business for himself and started American Heritage Realty in order to market the property and homes he built. According to Mr. Matheny, Respondent was active in little league in years past though he had, at the time, no children of his own, and when doing so, was instrumental in molding the character of the children who played for him for the better. Respondent has also been active in the junior Chamber of Commerce and reportedly was President of the statewide organization. He has also been active in other community activities such as the local Chamber of Commerce and the Community Day Care Center. He is known to be quite charitable and devotes a considerable amount of time and money to charitable activities. As Mr. Matheny knows it, Respondent's reputation for truth and honesty in the community is good. He has never heard any reports to the contrary. Respondent was interviewed by Mr. Ohlhausen in 1984 in regard to a complaint filed by the Construction Industry Licensing Board relating to Respondent serving as a contractor without a license. When Ohlhausen advised Respondent he was operating in violation of the law, Respondent appeared not be to aware of this. When so advised, he immediately agreed to sign a cease and desist agreement and stopped all further construction activity. He cooperated fully with efforts of the Department to get the properties completed and in the hands of the owners.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is, therefore: RECOMMENDED that the Administrative Complaint against Respondent herein be dismissed. RECOMMENDED in Tallahassee, Leon County, Florida, this 20th day of April, 1988. ARNOLD H. POLL0CK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9765 Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 1988. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 87-2619 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. By the Petitioner 1 - 4. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as contra to the weight of the evidence. Accepted and incorporated herein. Rejected as contra to the weight of the evidence. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Irrelevant. By the Respondent Not a Finding of Fact. Not a Finding of Fact - more a comment on the pleadings. 3 - 4. Accepted and incorporated herein. 5a. Accepted and incorporated herein. 5b. Accepted and incorporated herein. 5c. Accepted and incorporated herein. 5d. Accepted and incorporated herein. 5e. Accepted and incorporated herein. 5f. Accepted and incorporated herein. 5g. Accepted and incorporated herein. 6. Accepted and incorporated herein. COPIES FURNISHED: James H. Gillis, Esquire DPR, Division of Real Estate Post Office Box 1900 Orlando, Florida 32801 Howard Anderson, Esquire Post Office Box 767384 Roswell, Georgia 30076-7384 Darlene F. Keller Acting Executive Director DPR, Division of Real Estate Post Office Box 1900 Orlando, Florida 32801 William Bilenky, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether the Respondent's license as a registered general contractor should be disciplined?
Findings Of Fact The Respondent is a registered general contractor in the State of Florida. His license is number RG 0001015. At all times material to this case, the Respondent has held license number RG 0001015. The Respondent has been in the construction business for 51 to 52 years. During the Fall of 1985, Mr. Edward J. Ashley discussed a construction project at Mr. and Mrs. Ashley's residence with the Respondent. The Ashley's residence is located at 2353 Hampshire Way, Tallahassee, Florida. The Ashleys and the Respondent, on behalf of Big Bend Builders Corp., Inc., agreed on the construction work to be performed and the price to be paid for the work. The agreement was memorialized on October 7, 1985, (hereinafter referred to as the "Proposal"), by the Respondent and presented to the Ashleys. Pursuant to the agreement between the Ashleys and the Respondent, Big Bend Builders Corp., Inc., was to construct a room addition to be used as a porch in the back of the existing residence, extend a master bedroom and bathroom, replace the tile in the bathroom, remove a partition between the kitchen and the living room and replace the existing roof with fiberglass shingles with a 20-year warranty. The Ashleys agreed to pay the Respondent's corporation $28,300.00 in consideration of the work to be performed. The Proposal presented to the Ashleys by the Respondent was never signed by the Ashleys but they did agree verbally to the work to be performed. The Ashleys and the Respondent agreed verbally that the construction price would be paid in two installments. One installment was to be made when half the construction was completed and the other half was to be paid when the construction was completed. The Ashleys made the first payment on December 5, 1985. The payment was for $14,000.00. Although the project was not completed, the Ashley's made a partial payment of $6,000.00 on January 10, 1986. The second payment was made earlier than agreed upon at the request of the Respondent. The Respondent told the Ashleys that the payment was needed so that the project, which was already late, could be completed. The Ashleys and the Respondent agreed verbally that the construction would be completed by December 15, 1985. Construction began at the Ashleys on November 14, 1985. On November 22, 1985, the concrete slab for the addition to the Ashley's home was poured in the morning. That afternoon a hurricane struck and rain associated with the hurricane washed away the top layer of concrete. The loss of the top layer of concrete caused the slab to be rough and uneven. It was especially unsightly in the area where the new room was being added as a porch. The Ashleys planned to leave this area uncovered. When they complained to the Respondent he told them not to worry, that he would take care of it. It was not repaired, however. The slab was also uneven in the bathroom and approximately 1 and 1/2 inches higher than the existing slab in the master bedroom. These problems were also not corrected. The area where the new slab joined the existing slab in the master bedroom was ground down but a bump still remains. The trusses of the addition to the residence were higher than the existing trusses. Although some of the problems associated with this problem were corrected, there remains a bump on the roof of the addition. The wall between the bathroom and the master bedroom did not match the existing wall. This problem was not corrected and is still visible. The Respondent filed an application for a building permit with the City of Tallahassee on November 12, 1985. The permit was issued on November 13, 1985. The Respondent was required to arrange slab, framing, and insulation inspections and a final inspection of the construction at the Ashley's residence. The Respondent had the slab inspection completed on November 19, 1985. The framing inspection was conducted on December 11, 1985, by Mr. Rackley. The construction did not pass this inspection because there was no "header" over one door and the ceiling joists were not adequately attached. It was the Respondent's responsibility to correct the problems found as a result of the framing inspection before proceeding with construction. The fact that the construction failed the framing inspection was noted on the copy of the building permit which is displayed at the construction site. Ms. Ashley was the only person present during the inspection other than the inspector. On December 17, 1985, Mr. Rackley saw the Respondent at a party and mentioned the door header and the failure of the residence to pass the framing inspection. The ceiling joists were not mentioned. At the time the framing inspection was completed, the construction was 40 to 50 percent complete. By letter dated February 12, 1986, Mr. Rackley asked the Respondent why the Respondent had not requested a re-inspection. The Respondent proceeded with construction without passing a framing inspection. Therefore, in the February 12, 1986 letter from Mr. Rackley the Respondent was directed to uncover the areas which had failed the inspection so that they could be re-inspected. The Respondent did not respond to Mr. Rackley's letter of February 12, 1986. Therefore, on February 24, 1986, the Respondent was contacted by Mr. Rackley by telephone. The Respondent agreed to open the areas necessary to complete the framing inspection. On February 26, 1986, the framing inspection was completed. An opening had to be cut in the existing roof for the inspection to be completed. The Respondent did not fail to arrange a re-inspection of the property in order to hide anything or cover-up improper work. The construction passed the insulation inspection. No final inspection of the construction has ever been requested or completed. As a part of the Respondent's agreement with the Ashleys, the Respondent was to remove the roof on the existing structure and cover it and the new roof with fiberglass shingles with a 20-year life. The shingles used by the Respondent were Temko shingles. Manufacturers of roofing materials generally recommend how to apply their products in writing. Therefore, Temko included instructions for the application of the shingles used by the Respondent. The instructions were written on the paper used to wrap the bundles of shingles. In order for the manufacturer's guarantee of the Temko shingles to be effective, the shingles must be installed according to the manufacturer's instructions. The Southern Building Code, which applies in Leon County, also requires that manufacturer's instructions be complied with. The following pertinent instruction, among others, was included with the shingles used on the Ashley's residence: LOW SLOPE APPLICATION: On pitches of 2" per foot to 4" per foot, provide a double underlayment of asphalt saturated felt by applying a 19" wide felt strip along the eaves and over this apply a full 36" wide sheet. Continue with full 36" wide sheets, lapping each 19" over the preceding course. If winter temperatures average 25 F or less, thoroughly cement the felt to each other with Temko plastic cement from eaves and rakes to a point a [sic] least 24" inside the inside wall line of the building. This instruction is consistent with roofing industry standards. The roof of the Ashley's residence pitches at 2" to 2 1/2" per foot. Therefore, the Respondent should have applied two layers of felt to the roof as specified in the "Low Slope Application" instruction. The Respondent's crew, however, only applied one layer of felt to the Ashley's roof. The instructions for the shingles also specified that each shingle be attached with four nails placed in a particular pattern. The Respondent's crew did not follow these instructions. Along the edges of the roof, the felt should have been cemented to the roof. It was not, however. Shingles placed in the valleys on the roof were not attached in any manner to the roof. The manner in which the roof was installed was incompetent. After the roof was placed on the Ashley's residence, water leaked in at several locations. The Respondent did not return the Ashley's telephone call. One of the Respondent's work crew when informed about the leaks told Mr. Ashley that the roof was not leaking; that it was blowing in from outside. Some of the problems with the roof were corrected by the Respondent. They were corrected, however, only after a building inspector was called in by the Ashleys. Even then, the leaks did not stop. The Ashleys subsequently paid another contractor $560.00 to correct problems with the roof. Throughout the period of time that the Respondent's crew worked at the Ashley's residence, whenever a problem arose, the Ashleys would be told not to worry about the problem; that it would be taken care of. Many of the problems, however, were not taken care of by the Respondent. Throughout the period of time that work was being performed at the Ashley's residence, there were numerous times when no one would perform any work at the Ashley's. Weeks would often go by without the Ashley's seeing the Respondent and without the Respondent's presence at the Ashley's. During the period that work was being performed at the Ashley's residence, there was a great deal of rain and the temperature dropped below 40 degrees. These weather conditions slowed progress on completing the job. These weather condition were not unique, however, and the Respondent admitted that he knew it rains and gets cold often during the period of time involved in this proceeding. One weather problem that the Respondent could not have reasonably foreseen was the hurricane which struck Tallahassee on November 22, 1985. As a result of damage to property caused by the hurricane, roofing and other materials were more difficult to obtain. Rain associated with the hurricane washed away the top layer of the concrete from the slab that was poured the day the hurricane struck. The Respondent checked with the weather service that morning. Based upon the projected weather, the hurricane was headed away from Tallahassee and rain was not expected until that afternoon. The concrete was poured in the morning and would have been dry before the afternoon. The weather forecast was incorrect, however, and the rain struck earlier than expected. After work had commenced on the Ashley's residence, the agreement was modified. The Respondent indicated that he could not do the tile work in the bathroom. Therefore, the agreed upon price for the project was reduced by $2,000.00. The Ashleys also had the Respondent perform other work not originally agreed upon; 2 skylights and a door were added and additional brick work was performed. These changes caused some delay in completion of the project. The evidence did not prove, however, that all of the delay was attributable to the changes in the work to be performed. Much of the delay was caused by the fact that the Respondent's crew simply did not show up to work at the Ashley's residence. The delays in completing construction at the Ashley's residence were on the whole not reasonable. Although days were lost because of weather conditions, including the hurricane, and changes in the work to be performed, the days that no work was performed were not reasonable or caused by these factors. The Respondent failed to properly supervise the work performed at the Ashley's residence. Although the Respondent indicated that he relied upon the men who worked for him, he was ultimately responsible for the proper completion of the project. The project was not completed and some of the work performed was not performed in a satisfactory manner. The Respondent was not allowed to complete the project. The Ashleys eventually got so fed up with the Respondent's failure to correct problems and to complete the project that they would not allow the Respondents onto the property. Sometime after 1981, the Respondent received forms from the Petitioner which could be used to register his contracting license in the name of Big Bend Builders Corp., Inc. He asked his former attorney to complete the forms for him. The forms were completed and placed in the Petitioner's mail. The Respondent's license has not been registered in the name of Big Bend Builders Corp., Inc. The Respondent believed that his license was being switched to the corporate name. He knew or should have known that the change had not been completed because he did not receive a copy of a license with the corporate name. The Respondent's license had previously been held in a corporate name. The heading of the Proposal indicates that it is a proposal of "Big Bend Builders Corp., Inc." The Proposal was signed by the Respondent and was also signed "Big Bend Builders Corp., Inc. by Welton Smith." Mr. Ashley understood that the agreement he was entering into was with Big Bend Builders Corp., Inc. The two payments made by the Ashleys were made by checks. The checks were made out to Big Bend Builders Corp., Inc. The building permit on the Ashley's residence was applied for and issued in the name of Big Bend Builders Corp., Inc. Big Bend Builders Corp., Inc., was not qualified with the Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent be found guilty of violating Sections 489.129(1)(d), (g), (j) and (m) and 489.119, Florida Statutes (1985). It is further RECOMMENDED: That the Respondent be required to pay an administrative fine of $2,000.00. DONE and ENTERED this 2nd day of September, 1987, in Tallahassee, Florida. LARRY J. SARTIN 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 2nd day of September, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2641 The parties have submitted proposed findings of fact. It has been generally noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1 and 2. 2 56. 3 4. 4 5. 5-6 6. 7 7. 8 18. 9-10 18 and 61. 11-12 10. 13 39 and 41. 13 The first sentence is hereby accepted. The second sentence is not supported by the weight of the evidence. This state- ment was made to the Ashleys but in regard to the problems they had with their roof. 14 43. 15-16 44. 17 21. 18 21, 23 and 25. The building inspector informed the Respondent of the failed framing inspection on December 17, 1985, and not December 7, 1985. 19 28. 20 26. 21 33 and 34. 22 Hereby accepted. 23 37 and 38. 24-25 Hereby accepted. 26 38. 27 37. 28-29 39. 30 38-39 and 42. 31-35 Cummulative. 36-37 57. Respondent's Proposed Findings of Fact 1 Hereby accepted. 2 2. 3 28 and 29. There was no "final inspection" performed on the project. There was a final framing inspection, however, that indicated that the work that originally failed the inspection had been performed correctly. 4-7 These proposed findings of fact are not supported by the weight of the evidence. 47-48 and 50. The last sentence is not supported by the weight of the evidence. Not supported by the weight of the evidence. 10-11 Hereby accepted. 12 62. The last sentence is not supported by the weight of the evidence. COPIES FURNISHED: Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph Sole, Esquire General Counsel Department of Professional Regulation Tallahassee, Florida 32399-0750 W. Douglas Beason, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Elwin Thrasher, Jr., Esquire 908 North Gadsden Street Tallahassee, Florida 32303
The Issue Whether petitioner Department of Professional Regulation, Florida Construction Industry Licensing Board, ("Department") should revoke, suspend, or otherwise discipline respondent David L. Mormann's registered residential contractor's license on charges that he (1) was the subject of disciplinary action by a local board; (2) willfully or deliberately disregarded and violated local building codes or laws; (3) failed to comply in a material respect with the provisions of Chapter 489, Florida Statutes; and (4) acted in the capacity of a contractor under a name other than on his license. Whether the Department should revoke, suspend, or otherwise discipline respondent John S. Brengle's registered general contractor's license on charges that he (1) knowingly combined or conspired with an unregistered or uncertified person by allowing such person to use his registration with the intent to evade the provisions of Chapter 489, Florida Statutes; (2) acted under a name other than on his registration, with the intent to evade the provisions of Chapter 489, Florida Statutes; (3) failed to comply in a material respect with the provisions of Chapter 489, Florida Statutes; and (4) aided or abetted an unregistered or uncertified person to evade the provisions of Chapter 489, Florida Statutes.
Findings Of Fact Revocation of Respondent Mormann's Local License At all times material hereto, respondent Mormann was licensed as a registered residential contractor, having been issued license no. RRA031419 and RR0031419 by the State of Florida. At all times pertinent to the charges, neither respondent Mormann nor respondent Brengle qualified a business known as "Dave Mormann and Associates" with the Florida Construction Industry Licensing Board. (P-1) At all times material hereto, respondent Brengle was licensed as a registered general contractor, having been issued license no. RG0002370 by the State of Florida. (P-2) On October 17, 1979, Nelson A. Perez Electric Co. obtained a final judgment for $1,841.96 (including court costs) against Erection and Maintenance Co., Inc., in the County Court of Hillsborough County, Florida. Respondent Mormann was the qualifying agent for Erection and Maintenance Co., Inc. The judgment arose out of respondent Mormann's construction activities and his failure to pay for labor and materials. (Testimony of Perez, P-1, P-7) On October 22, 1979, Nelson A. Perez Electric Co. obtained a second judgment for $1,742 (including court costs) against respondent Mormann in the County Court of Hillsborough County, Florida. This judgment also arose out of respondent's construction activities and his failure to pay for labor and materials. (Testimony of Perez, P-8) These two judgments were not (and have never been) satisfied by respondent. On October 7, 1981, respondent Mormann and his attorney met with Mr. Perez and agreed on a payment schedule for satisfying the judgments. On that date, respondent Mormann paid Mr. Perez $500 and, under the terms of the payment plan, was required to pay him $374.10 monthly, until the judgments were satisfied. Respondent Mormann made one payment on November 7, 1981, and then stopped making payments. (Testimony of Perez) Under the provisions of Section 45-78, City of Tampa Code, default by a contractor in payment for labor or materials resulting in a judgment being obtained or filed against the contractor, with the judgment remaining unsatisfied for a period of 60 days or more, is a basis for revocation or suspension of a contractor's local license, or certificate of competency. (P- 10, P-11) On October 7, 1980, Reggie Fernandez, the Acting Chief Building Inspector for the City of Tampa Department of Housing, Inspection and Community Services, Inspectional Services Division, issued a Citation, by certified mail, charging respondent Mormann with violating Section 45-78(i), City of Tampa Code, for his default in payment for labor and materials which resulted in a judgment remaining unsatisfied for 60 days or more. The Citation further advised that the Discipline Committee for the City of Tampa Unified Construction Trades Board was being notified of the charge, that respondent Mormann had ten days to file an answer with the Discipline Committee of the Construction Trades Board showing cause why his license should not be suspended or revoked, and that, upon failing to timely answer the complaint, the charges could be deemed admitted and his license would be automatically suspended, pending any hearing that the Discipline Committee, in its discretion, might order. Respondent Mormann received the Citation on October 10, 1980. (P-11) Respondent, however, failed to file an answer or any other response to the Citation. (Testimony of Anderson, P-12) On October 21, 1980, the Discipline Committee considered the charges filed against respondent Mormann, who did not appear, and voted to recommend that the Unified Construction Trades Board revoke his local contractor's license for failure to show cause why his license should not be revoked for violation of Section 45-78, City of Tampa Code. (P-12) At its November 5, 1980, meeting, the City of Tampa Unified Construction Trades Board adopted the Discipline Committee's recommendation and revoked respondent Mormann's local license. (P-13) Respondent did not receive advance written notice of the meetings held by the Discipline Committee or the Construction Trades Board relating to the charges against him. (Testimony of Mormann, Anderson) On October 21, 1981, almost a year later, respondent Mormann wrote Mr. Fernandez, the official who issued the Citation, acknowledging that his license had been suspended because of the two Nelson Perez Electric Company judgments. He attached a copy of the payout agreement which he had negotiated with Mr. Perez and explained that, because of health problems during the year, he had been unable to do anything about this matter and asked what procedures to follow to regain his local license. (P-14) At its January 12, 1982, meeting, the Unified Construction Trades Board reviewed the payment agreement attached to respondent Mormann's letter but refused to reinstate his local license until the judgments were fully satisfied. (P-15) Construction of D. J.'s Oyster Bar II On August 3, 1981, respondents Mormann and Brengle executed a document titled "Joint Venture Agreement" for the purpose of contracting to remodel the Jack-in-the-Box restaurant and converting it to D. J.'s Oyster Bar II, at 2920 East Busch Boulevard, Tampa, Florida. Under this agreement, the joint venture was named "Dave Mormann and Associates." Dave Mormann was to provide financing, construction equipment, and tradesmen for carpentry, masonry, and labor; respondent Brengle was to provide expertise and job management, trucks and equipment, insulation and sound-proofing, and subcontract management. Respondent Mormann was to carry out fiscal responsibilities and, where designated, act as job-site superintendent while respondent Brengle was to oversee construction and "inspect at each required building inspection." (Testimony of Mormann, Brengle; R-1) A month later, on September 2, 1981, respondent Mormann, under the name of Dave Mormann and Associates, contracted with Don Hulling and D. J.'s Oyster Bar II, Inc., as owners, to remodel the Jack-in-the-Box restaurant and convert it to D. J.'s Oyster Bar II, a commercial structure. The contract price was $45,700. (Testimony of Hulling; P-3) Respondent Mormann, who negotiated the construction contract, lead owner Hulling to believe that he (respondent Mormann), and another person would be the contractors responsible for the project. He assured the owner, however, that he (respondent Mormann), would be the on-site job foreman. (Testimony of Hulling) Respondent Mormann was licensed by the Florida Construction Industry Licensing Board only as a registered residential contractor. He could thus engage only in residential contracting and could do so only in the local jurisdiction whose licensing requirements he had met. 489.117(2), Fla.Stat. (1979). At the time that respondent Mormann executed and performed the contract to convert the Jack-in-the-Box restaurant to D. J.'s Oyster Bar II, his local contractor's license or certificate of competency, had been revoked. On or about October 15, 1981, respondent Brengle, a registered general contractor holding a valid local license, applied for and obtained building permit no. B-59458 authorizing conversion of the Jack-in-the-Box restaurant to D. J.'s Oyster Bar II. The permit identified Brengle and Sons, Inc., a company qualified by respondent Brengle with the Florida Construction Industry Licensing Board, as the contractor of record. (P-17) Owner Hulling, who seldom visited the construction site during the day, observed respondent Brengle working on the site once while the insulation was being installed, and once or twice before and after the insulation was installed. However, respondent Mormann is the person whom he dealt with concerning the construction project. He paid respondent Mormann $62,940.64 for work performed pursuant to the construction agreement. Itemized invoices were submitted to the owner under the name of "Dave Mormann, General Contractor." Owner Hulling also paid respondent Mormann $3,559.32 for additional work performed at D.J.'s Oyster Bar II after the completion of the project. Neither owner Hulling, nor the financing institution, paid respondent Brengle directly for any work that he performed on the property. (Testimony of Hulling; P-4, P- 5) Respondent Brengle furnished and installed the insulation at D. J.'s Oyster Bar II. (Testimony of Brengle) It was respondent Mormann who paid respondent Brengle for his services. He paid respondent Brengle a total of $950--$250 on November 20, 1981, $200 on December 10, 1981, and $500 on February 8, 1982. (Testimony of Brengle) Respondent Mormann selected and hired Terry Goins Plumbing Company, the plumbing subcontractor for the construction project. He led Terry Goins, the plumbing company owner, to believe that he (respondent Mormann) was the contractor in charge of the project. Respondent Mormann provided project specifications to Goins, supervised his work, and paid him for his services. 2/ Mr. Goins was at the construction site 22 to 25 working days--one-third of the period the project was under construction. He never saw respondent Brengle on the project site. (P-20) Respondent Brengle testified that he was on-site two or three times a week and that he, rather than respondent Mormann, actually supervised the construction project. This testimony is inconsistent with respondent Mormann's initial assurances to owner Hulling (to the effect that he, respondent Mormann, would be responsible for supervising the project); is contrary to the testimony of Mr. Goins; and--considering respondent Brengle's interest in the outcome of this case--is rejected as unworthy of belief. In fact, it was respondent Mormann who directed and supervised the construction project, and it was he who was responsible for its completion. He negotiated the construction contract, selected and hired at least one subcontractor, supervised the work in progress, reported to the owner on the project's status, executed all contractor's affidavits (which incorrectly identified him as a general contractor), applied for and accepted construction draws, and paid subcontractors for labor and materials furnished. (Testimony of Goins, Hulling; P-5a-c) The remodeling and conversion of the Jack-in-the-Box restaurant, begun in late October, 1981, was completed, to the owner's satisfaction, by January 17, 1983. (Testimony of Hulling) Subsequent to the completion of the project, respondent Mormann filed for bankruptcy under the federal bankruptcy laws.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondents' registered contractor's licenses be suspended for a period of two years for multiple violations of Chapter 489,Florida Statutes. DONE and ENTERED this 3rd day of October, 1983, 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 24th day of October, 1983.
