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 presented for decision herein is whether or not the Respondent, Morton Schultz, failed to supervise, direct, inspect and control all work on a construction project for which he was the qualifying agent and whether he made misleading and deceptive representations in contracting in violation of Sections 489.129(4)(c), (d) and (j), Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, Respondent's written response filed herein and the entire record compiled, I hereby make the following relevant factual findings. By its Administrative Complaint dated September 17, 1981, Petitioner seeks to take disciplinary action against Respondent as licensee and against his licenses as both a registered general contractor and registered pool contractor. During times material herein, Respondent was the qualifying agent for National Builders, Inc., and is the holder of license number CG C001944. On September 15, 1980, Respondent, as qualifying agent for National Builders, Inc., contracted to build a five-story condominium in Miami Beach, Dade County, Florida, with Joel Amstell d/b/a Amstell, Inc. Pursuant to the contract, Mr. James Rosen was to be the on-site supervisor for National Builders. (Petitioner's Exhibit 2) Mr. Rosen is not a registered or licensed contractor. The contract price for the construction of the condominium herein was $328,000 including all labor and materials. Additionally, the job was to be bonded and the premium for issuance of the bond was to be borne by National Builders, Inc. (Petitioner's Exhibit 2, paragraph, 3) Pursuant to the contract, the entire job will be finished six months after the pilings are in place. If the job takes longer, the interest charge paid by the developer to the lender will be deducted from the amount due National Builders, Inc. If the job is finished in less than six months, half the interest the developer saves will be paid to National Builders, Inc. (Petitioner's Exhibit 2, page 2) The pilings were completed and erected at the end of January, 1981. The project was not completed at the end of July, 1981 as is set forth in the contract. Mr. Amstell made repeated requests for Respondent to spend some time on this project to supervise or otherwise see that the project was completed as agreed. Despite Mr. Amstell's repeated prodding of Respondent, Respondent refused to spend any time on the project and demanded an increase in the contract price to complete the project. At that point, Mr. Amstell attempted to get the bonding company to complete the construction for the building and, at that point, found that the project was not bonded as Respondent agreed pursuant to the contract. (Testimony of Amstell, TR. p. 13) Respondent failed to perform the duties required of a qualifying agent in that he failed to supervise, direct, inspect and control the progress of the work on this project. (TR. pp. 15-18 and 34-38) To complete construction of the project, owner Amstell expended an additional $108,000. This figure was not caused by any changes or other deviations from the drawings and plans which were submitted to Respondent and which he (Respondent) agreed to perform. Supervisor Rosen left the project during June of 1981. From the period January through June of 1981, supervisor Rosen saw Respondent on the construction site no more than three times. Supervisor Rosen concluded that Respondent failed to provide him with the guidance and assistance he needed to complete this project as agreed. At the time that Respondent left the project, the beams and walls were not properly aligned as agreed and owner Amstell had to expend monies to paint the building adjacent to his building due to the fact that concrete had spilled on the property next door and was never cleaned as promised by Respondent.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED that Respondent's registered general contractor's license number CG C001944 be REVOKED. RECOMMENDED this 25th day of January, 1985, in Tallahassee, Florida. JAMES E. BRADWELL 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 25th day of January, 1985.
Findings Of Fact At all times relevant hereto, Respondent, Roger S. Williams, held registered building contractor license number RB0026339 issued by Petitioner, Department of Professional Regulation, Construction Industry Licensing board, authorizing him to perform contracting under his individual name. Respondent, Frederick S. Schreiner, held certified general contractor's license numbers CG C004811 and CG CA04811 also issued by Petitioner authorizing him to perform contracting under his individual name and under Cape Development Corporation. Williams served as president of Architectural Builders, Inc. (ABI), a development firm located in Palm Bay, Florida. Schreiner was engaged in the contracting business generally in the Brevard County, Florida area. He has done construction work for ABI and Williams for the past eight or nine years. ABI held no licenses from either the state or local governments. On October 31, 1979, ABI entered into a construction contract with Jack and Stella Oleksy to construct a home at 842 South Becker Street, Palm Bay, Florida. The contract was approved by R. S. Williams as president of ABI. At a later undisclosed date, Williams attempted to pull a City of Palm Bay building permit on behalf of ABI. Whether the City gave formal or informal approval at that point is not clear; in any event the construction of the home began shortly thereafter. Several weeks later the City's chief building official told Williams that because he did not have local competency with the City, he could not pull a permit for a job. Williams was also advised that a recent change in state law required ABI to qualify to do business if ABI intended to construct homes within the City. When told that Frederick Schreiner would be constructing the home for ABI and that Schreiner held an appropriate license, the City official told Williams to have a construction contract executed between ABI and Schreiner to build the home. Thereafter, Schreiner pulled a permit for the job and posted it on the building site. He also gave the City a contract executed by he and ABI and which was dated November 29, 1979. During the course of the construction, Schreiner visited the building site approximately six to eight times. The work was done entirely by subcontractors who had been used on other construction jobs by Williams and Schreiner. The subcontractors were paid by ABI but worked under the supervision of Schreiner. When the job was completed Williams signed the final payment affidavit on which it was indicated that Williams was the contractor on the job. Oleksy was on the site daily to inspect the work. He complained periodically about various aspects of the job to Roger Williams. His main complaint concerned the trusses on the roof which he contended were out of alignment causing a wavy and uneven roof line. After the house was essentially completed, Oleksy lodged a complaint with Williams concerning the workmanship on the roof. Williams sent a carpenter to visit the premises who found some "variations" and worked for approximately three hours to correct the problem. He was then told by Oleksy it looked okay. Within the next few days, Oleksy again complained to Williams that the roof was wavy. Williams then sent out a roofing crew to attempt to correct the problem. After they completed their work, Williams received no further indication that the owner was unhappy. Williams later had a local relator familiar with the subdivision and an experienced carpenter who had framed more than 150 homes to view the roof. Both concluded the roof was of good workmanship and of similar quality to other homes in the neighborhood. Oleksy later filed a complaint with the City of Palm Bay concerning his roof. The City sent its chief building official to inspect the home. He described the roof as being of "poor workmanship". The same conclusion was reached by the city building inspector who also inspected the property. Because of this, the City made the notation "Hold problem roof" in its file and did not issue a certificate of occupancy to Oleksy. However, the City did not construe the roof to constitute a violation of the building code. Respondents asserted that a 1979 change in the law as to the qualification of agents caused doubt and confusion as to what was required by ABI and Williams. They also point out that if indeed a violation occurred, it was not intentional. Rather, Respondents simply desired to comply with all applicable statutes and regulations so that their construction businesses could continue to operate in a lawful manner. Other than the alleged violations herein, Respondents were not shown to have been subject to any prior disciplinary proceedings.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent, Roger S. Williams, be found guilty as charged in Count I, and be given a public reprimand. the remainder of the charges should be dismissed. It is further RECOMMENDED that Respondent, Frederick L. Schreiner, be found guilty as charged of all allegations except willfully and deliberately violating a state law, and be given a public reprimand. DONE and ENTERED this 29th day of June, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1982.
The Issue Whether Respondent violated provisions of Chapter 75-489, Laws of Florida, as amended, as more specifically alleged in Administrative Complaint dated February 10, 1992.
Findings Of Fact At all times relevant hereto Respondent was licensed by Petitioner as a certified building contractor having been issued license C-608, and was qualifying agent for Bay City Builders, Inc. Bay City Builders, Inc., entered into a contract to add four bedrooms and two baths to a residence in Dunedin, Florida, being used as an Adult Congregate Living Facility (ACLF) (Exhibits 1 and 2), at a price of $32,000. The contract provided, inter alia, that the contractor would provide all permits and fees directly associated with the project. Upon signing the original contract on September 26, 1991, the owner paid Bay City Builders $3200 (Exhibit 3). On October 8, 1991, the owner paid Bay City Builders an additional $7200 (Exhibit 3) when the plans were presented to the owner. Prior to the issuance of the permit for this project, Bay City Builders poured the footing for the building addition. The permit application was signed by Respondent. After entering into the contract, Bay City Builders found there was an impact fee involved, the project was never completed and was subsequently abandoned. Bay City Builders prepared a second contract for this project which increased the price to $41,789 (Exhibit 5) and presented this to the owner who did not accept the new contract. Respondent admits that he was the qualifying contractor for Bay City Builders, and the permit was pulled under his license, but contends he had nothing to do with the financial arrangements between Bay City Builders and the owner. Respondent was paid a flat fee by Bay City Builders for obtaining permits under his license for work Bay City Builders contracted to perform. He occasionally visited the sites where work was being performed by Bay City Builders. Bay City Builders is not licensed. The permit for the ACLF addition was applied for on November 1, 1991, but was not issued by the City of Dunedin until February 13, 1992 (Exhibit 6). It could have been picked up any time after November 30, 1991. On September 5, 1991, Bay City Builders entered into a contract with an owner living in Seminole, Florida, to replace the roof over a rear porch of this residence for a total price of $900. (Exhibit 8) This was a flat roof, and the initial intent was to replace the tar and gravel roof with tar and gravel. At the time construction started on September 11, 1991, the person doing the installation used a rubberized roof, which was satisfactory to the owner and gave the owner a 5 year unconditional warranty. Respondent's license does not authorize him to reroof an existing building, and no permit was applied for to perform this job. No certified roofer was engaged to do this reroofing, the rubberized compound applied to the roof was improperly applied and the roof started leaking when the first rain came. Workers from Bay City Builders came to the residence several times to attempt to patch the leaks, but the leaks persisted. Ultimately, the owner had to employ a qualified roofing contractor to redo the roof. While Bay City Builders was attempting to stop the leaks, the ceiling over the porch was also ruined and had to be replaced. In his testimony, Respondent admitted that he was the sole qualifying contractor for Bay City Builders, that his function was to give Bay City Builders a price estimate for the work intended, including the ACLF addition, but the owner of Bay City Builders entered into a contract for $5000 less than Respondent's estimate for the ACLF. Respondent also acknowledged that Bay City Builders, acting under Respondent's license, entered into contracts for some 150 jobs, but that Respondent was told or learned of only 60 of these projects. Respondent was paid a fixed fee by Bay City Builders for each permit obtained, and he prepared estimates of cost.
The Issue Whether Respondent engaged in the business of contracting without being registered or certified, in violation of Subsection 489.127(1)(f), Florida Statutes (2004),1 as charged in the Administrative Complaint; and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence in this proceeding, the following facts are found: Petitioner is the state agency charged with the responsibility and duty to prosecute administrative complaints, pursuant to Section 20.165 and Chapters 120, 455, and 489, Florida Statutes. Petitioner is authorized to prosecute administrative complaints against unlicensed persons or business organizations, who engage in the business or act in the capacity of a contractor without being registered or certified. At all times material hereto, Respondent, personally, was not licensed to engage in construction contracting in the State of Florida. At all times material hereto, Rentaman or Rentaman Construction/Remodeling did not possess a certificate of authority to practice as a contractor qualified to do business in Florida. At all times material hereto, Timothy Lee Allen was not licensed to engage in construction contracting in the State of Florida. Beginning sometime in 2003 until September 30, 2005, Petitioner, doing business as Rentaman, operated as a sole proprietor under an occupation license in Seminole County. In October 2004, Timothy L. Allen entered into an agreement with Respondent to purchase her trailer, tools, and the right to use her business name in Polk County. Respondent was to receive a five percent commission on any job in which she assisted Allen, including bookkeeping, preparing invoices, and drafting contracts. Allen set up a business in Polk County, using the name Rentaman Construction and Remodeling in October 2004. In early November 2004, Allen negotiated with James and Diandria Mason to do repair/remodeling work on their home in Mulberry, Polk County, Florida. Respondent was contacted and brought in to negotiate the contract with the Masons. On or about November 11, 2004, Respondent, doing business as Rentaman Construction/Remodeling, contracted with James and Diandria Mason to, inter alia, frame the back door and replace the subflooring in the Mason's Mulberry, Florida, mobile home for $1,650.00. The entire second page of the contract was handwritten by Respondent. The first page included a handwritten workmanship warranty, written and initialed by Respondent. The contract included the sentence: "I[the owners] have reviewed and accept the terms and conditions of Sale as presented to me by Debi Gold, an agent of Rentaman." Mason paid Respondent $1,100 cash, as a deposit for the construction project. Allen was placed in charge of the work, but failed to complete the contract with the Masons. The evidence is clear and convincing that Respondent engaged in the business or acted in the capacity of a contractor in November 2004, in Polk County, without being registered or certified. The total investigative costs to Petitioner, excluding costs associated with any attorney's time, was $762.43.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered as follows: Finding Respondent guilty of having violated Subsection 489.127(1)(f), Florida Statutes, as alleged in the Administrative Complaint, and imposing as a penalty an administrative fine in the amount of $5,000.00. Assessing costs of investigation and prosecution to Respondent, excluding costs associated with an attorney's time, in the amount of $762.43. DONE AND ENTERED this 6th day of February, 2007, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 6th day of February, 2007.
