Findings Of Fact Respondent Henry Huggins is presently licensed by the Construction Industry Licensing Board as a certified general contractor under license number CO C003466. He first received his license in November of 1972 and has since been continuously licensed. His license was however suspended for a period of one year beginning on May 16, 1980. That suspension was by an Order of the Florida Construction Industry Licensing Board. In October of 1981 Mr. Huggins renewed his license on inactive status but changed it to active status in December 1981. His license continued to be active and he is the qualifying agent for Florida Petroleum Services, Inc., in Winter Park Florida. In the fall of 1980 Mr. Albert Dupre agreed to do some home renovation work for Dr. Charles Gill at Dr. Gill's residence located at 2193 Turkey Run, Winter Park, Florida. Mr. Dupre completed the work and shortly thereafter in the spring of 1981 he and Dr. Gill entered into another oral contract whereby Mr. Dupre would construct an upstairs addition to Dr. Gill's home. The addition included the installation of a bathroom and another bedroom. In exchange for these services Dr. Gill "traded off" dental work for Mr. Dupre's wife and agreed to pay an additional $12,000 or $13,000. At Mr. Dupre's request the construction permit for the upstairs addition was obtained by the Respondent Henry L. Huggins. At all times material Albert Dupre has held no contracting licenses authorizing him to individually perform the work called for by his agreement with Dr. Gill. During the time in question, that is April 1981, Respondent did not himself have an active contractor's license due to his suspension by the Construction Industry Licensing Board. He was authorized by the qualifying agent for Roberts Insurance Contractors to obtain building permits under the qualifying agent's license in order to undertake building projects for Roberts. Roberts Insurance Contractors was not a party to the agreement between Dr. Gill and Mr. Dupre for the up stairs addition to Dr. Gill's home. On April 7, 1981 Respondent obtained building permit number 7487 from the City of Winter Park, Florida, which authorized the construction of a bedroom and bathroom addition on the property of Dr. Charles Gill in Winter Park, Florida. Respondent obtained that permit on behalf of Mr. Dupre because of their friendship and their previous business associations dating back to the mid- 1970's Respondent did not supervise or otherwise participate in the construction of Dr. Gill's addition until the work was complete and Dr. Gill made a complaint to several regulatory bodies about Mr. Dupre's work. This complaint centered around the earlier air conditioning project; but once notified that there were difficulties concerning the project, Respondent, along with Mr. Dupre, completed all unfinished items and corrected all defects. As a result of Respondent's willingness to remedy those defects Dr. Gill has requested that all charges against Mr. Huggins here be dropped.
Recommendation Based on the foregoing Findings of Fact and Conclusions Law, it is RECOMMENDED: That the Construction Industry Licensing Board enter a Final Order suspending the license of Henry L. Huggins as a certified general contractor for a period of two (2) years from the date of the Board's Final Order. DONE and RECOMMENDED this 17th day of February, 1984, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9673 Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1984.
The Issue The issues are whether Respondent committed the several violations of Sections 489.129(1)(h)2.,(h)3.,(j),(k), and (n), Florida Statutes (1997), for the reasons stated in the respective Administrative Complaints and, if so, what, if any, penalties should be imposed. (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of contracting. Respondent is licensed as a certified general contractor pursuant to license number CG C059414. At all relevant times, Respondent was the qualifying agent for Fred T. Garrett Construction, Inc. ("FTG"). As the qualifying agent, Respondent was responsible for all of FTG's contracting activities in accordance with Section 489.1195, Florida Statutes. Respondent failed to obtain a certificate of authority for Fred T. Garrett Construction, Inc., as required by Section 489.119(2), Florida Statutes. The St. Cyr Case On or about August 21, 1998, Respondent entered into a contract with Louis L. St. Cyr to construct an addition to the residence located at 201 South Bel Air Drive, Plantation, Florida. The contract price was $50,000. Although Mr. St. Cyr paid $2,500 to Respondent, Respondent failed to commence work and canceled the project, thereby abandoning it without just cause and without proper notification to Mr. St. Cyr. The contract did not permit Respondent to keep the $2,500 paid by Mr. St. Cyr, and Respondent failed to refund the payment within 30 days after abandonment. Out of the $2,500 he received from Mr. St. Cyr, however, Respondent paid $1,600.00 to the architect before abandoning the project. Thus, the net amount that Respondent owes to Mr. St. Cyr is $900. Petitioner incurred a total of $1,092.28 in investigative costs relating to the St. Cyr case. The Forney Case On May 22, 1998, Respondent, who was doing business as FTG, entered into a contract with Mr. Warren Forney for the construction of a two-bedroom, one-bath addition to the residence located at 1698 Northeast 33rd Street, Oakland Park, Florida. The contract price was $32,500. The contract with Mr. Forney did not contain a written statement explaining the customer’s rights under the Construction Industries Recovery Fund, as required by Section 489.1425(1), Florida Statutes. On July 7, 1998, Respondent obtained permit number 98-050297 from the Oakland Park Building Department. Construction commenced on or about July 7, 1998, and continued sporadically until October 29, 1998, when Mr. Forney dismissed Respondent for failure to timely complete the project. The Oakland Park Building Department issued notices of violation against the project on August 3, September 11, and October 14, 1998, for various building code violations. Mr. Forney was forced to obtain a homeowner’s permit and subsequently hired a subcontractor to complete the work. Mr. Forney paid Respondent approximately $29,250 before relieving Respondent of his duties. To complete the project, Mr. Forney paid a total of $48,746.52, which was $15,396.52 over and above the original contract price. Petitioner incurred a total of $2,190.78 in investigative costs relating to the Forney case. The Kong Case In or around January 1998, a contractor named Lakeview Concepts hired Respondent to perform demolition work for the Kong dry cleaning store project on the property located at 5171 South University Drive, Davie, Florida. On or about June 17, 1998, permit 98-00002349 was issued to Respondent to perform alterations on commercial property located at 5171 South University Drive, Davie, Florida. Respondent, however, did not yet have a contract with the owner for this work. The next month, on or about July 30, 1998, Respondent, who was doing business as FTG, entered into a contract with Shek Kong to complete the dry cleaning store project at 5171 South University Drive, Davie, Florida, for the contract price of $22,300. Shek Kong made payments to Respondent totaling $16,000. Respondent’s work was of poor quality, however, and on or about November 6, 1998, he ceased work, though the project had not been completed. On or about November 14, 1998, Douglas Frankow, license number CB C052960, gave Mr. Kong an estimate of $20,562 to complete the project. Thereafter, on or about June 30, 1999, Mr. Kong contracted with George Settergren, another licensed contractor, to complete the project for a contract price of $27,956. On December 9, 1999, in Case No. 98-020065 08, the Circuit Court, Seventeenth Judicial Circuit, Broward County, Florida, rendered a Final Judgment against Respondent and in favor of Mr. Kong. This judgment awarded Mr. Kong the total amount of $28,693.30, plus 10 percent interest per annum. Petitioner incurred a total of $2,502.78 in investigative costs relating to the Kong case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Construction Industry Licensing Board enter a Final Order finding Respondent guilty of violating Sections 489.129(1)(h)2., (h)3., (j), (k), and (n), Florida Statutes, imposing administrative fines in the aggregate amount of $3,700, assessing investigative costs in the aggregate amount of $5,785.84, placing Respondent's license on probation for a period of four years from the date the Final Order is entered by the Board, and awarding payment of restitution to each customer as follows: (1) to Warren Forney, the amount of $15,396.52; (2) to Shek Kong, satisfaction of the unpaid civil judgment in the amount $28,693.30, plus 10 percent interest accrued thereon; and (3) to Louis L. St. Cyr, the amount of $900. DONE AND ENTERED this 15th day of February, 2002, in Tallahassee, Leon County, Florida. _________________________________ JOHN G. VAN LANINGHAM 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 15th day of February, 2002.
The Issue This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of alleged violations of Chapter 489, Florida Statutes, (1992 Supp.). Specifically, the Respondent has been charged in a four-count Administrative Complaint with violations of paragraphs (k), (m), (n) and (p) of Section 489.129(1), Florida Statutes (1992 Supp.).
Findings Of Fact Respondent is, and has been at all times material hereto, a licensed Certified General Contractor, having been issued license number CG C007303, by the State of Florida. At all times material hereto, the Respondent was licensed to contract as an individual. On September 18, 1992, the Respondent, doing business as an individual, contracted with Charles and Elba Williams (hereinafter referred to as "Customers") to reroof their dwelling and shed at 15205 SW 78 Place, Miami, Florida, for the price of Fifteen Thousand, One Hundred Seventeen dollars ($15,117.00). On October 1, 1992, the aforementioned contract was amended to provide for the payment of half of the second draw before the second stage of the project was completed, and to provide for the payment of an additional Three Hundred and Fifty One dollars ($351.00) in materials. On November 5, 1992, the aforementioned contract was amended to provide the Customers with a credit on the contract of One Thousand, Six Hundred Thirty Six dollars and Sixty Four cents ($1,636.64) for their purchase of roof shingles. The revised contract price was Sixteen Thousand and Fifty Eight dollars ($16,058.00). The Customers paid the Respondent Twelve Thousand, Two Hundred Seventy Seven dollars and Ninety cents ($12,277.90) toward the contract. After receiving a credit on the balance due on the contract, the Customers owed Two Thousand, One Hundred Forty Two dollars and Thirty Two cents ($2,142.32) to the Respondent. On September 23, 1992, the Respondent obtained roofing permit number 92-110050 for the Customers' project from the Dade County Building and Zoning Department. The Respondent worked on the Customers' roof from September 23, 1992, through November 15, 1992, when the installation of the shingles was completed. On November 19, 1992, the Respondent failed a final inspection performed on the Customers' roof by the Dade County Building and Zoning Department because the Respondent failed to supply Dade County with product approval information and manufacturer installation specifications for the ridge vent he had installed. On November 24, 1992, the Respondent again failed a final inspection performed on the Customers' roof by the Dade County Building and Zoning Department for the same reason as on November 19, 1992. The Respondent never obtained a passing final inspection on the Customers' roof from the Dade County Building and Zoning Department. On November 24, 1992, the Customers sent the Respondent a Certified letter, Return Receipt requested, informing the Respondent that the roof could not pass final inspection until Dade County was provided with the product approval information and manufacturer installation specifications for the ridge vent he had installed. On December 4, 1992, the Respondent was issued a Notice of Violation from the Dade County Building and Zoning Department for failure to provide product approval information and manufacturer installation specifications for the ridge vent that had been installed on the Customers' roof. On December 4, 1992, the Respondent was issued a Notice of Violation from the Dade County Building and Zoning Department for failure to remove construction debris from the Customers' property. The Respondent did not comply with either Dade County Notice of Violation and did not supply the Dade County Building and Zoning Department with the product approval information and manufacturer installation specifications for the ridge vent that had been installed on the Customers' roof. The Customers were left with a roof that did not comply with Dade County Code. On March 26, 1993, the Customers paid a Forty Five dollar ($45.00) renewal fee to the Dade County Building and Zoning Department and had the roofing permit renewed and reissued in their own names. On March 4, 1993, the Customers paid another contractor, Mark Mitchell, Two Hundred dollars ($200.00) to remove the ridge vent and close the hole in the roof left by the removal of the ridge vent. On March 27, 1993, after the ridge vent had been removed, the Customers paid a Special Investigator, Ken Nash, Fifty dollars ($50.00) to perform a final inspection of the roof. On March 31, 1993, Ken Nash performed a final inspection of the roof and the roof passed inspection. The Customers paid Steve Wooten Thirty dollars ($30.00) to remove construction debris left on their property by the Respondent and to bring their property in compliance with the Notice of Violation issued on December 4, 1992.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Construction Industry Licensing Board issue a Final Order in this case to the following effect: Dismissing the charges alleged in Counts I, II, and IV of the Administrative Complaint; Concluding that the Respondent is guilty of the violation charged in Count III of the Administrative Complaint; and Imposing a penalty consisting of a fine in the amount of Two Hundred Fifty dollars ($250.00) for the violation charged in Count III of the Administrative Complaint. DONE AND ENTERED this 3rd day of May, 1995 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 3rd day of May, 1995. COPIES FURNISHED: Diane Snell Perera, Esquire Department of Business and Professional Regulation 7300 North Kendall Drive, Suite 780 Miami, Florida 33156 Mr. Al C. Hufeld Post Office Box 681064 Orlando, Florida 32868-1064 Richard Hickok, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Respondent, Kenneth Welker, operates a beauty salon, Coiffures by Kenneth, at 887 Semoran Boulevard, Apopka, Florida. He is licensed as a cosmetologist by the State of Florida under License No. CL0116059, and the salon holds License No. CE0033945. Respondent was initially licensed by the State of Florida on November 19, 1980. That license expired on June 30, 1982. The initial license for the salon was issued on January 7, 1981. On November 9, 1982, Valerie Flowers, an inspector for the Board of Cosmetology, acting on information received from the Board that Respondent's licenses had not been renewed, went to Respondent's salon, where she spoke with Respondent's wife, Mary Lou Welker. At the time, there were no customers in the salon, but Respondent, his daughter Rhonda, and Mrs. Welker were there. Ms. Flowers identified herself to Mrs. Welker, told her why she was there, and asked to see the licenses for the salon and all cosmetologists working there. When she examined them, she saw that three licenses, for the salon, for Kenneth Welker, and for Rhonda Welker, had expired on June 30, 1982. The salon was operating as a beauty salon on November 9, 1982, and had been since January 14, 1981. The expired licenses were posted in the shop. Mrs. Welker told Ms. Flowers that she had submitted the application for renewal of the salon license two days before the deadline, but the renewal application was not received in the office of the Board of Cosmetology nor was a new license issued as of the time of either inspection. The applications for renewal of the two cosmetologist's licenses for Kenneth Welker and Rhonda Welker had been submitted prior to the deadline, but, because both individuals only had eight hours of continuing professional education instead of the required 16 hours, the renewal applications were returned disapproved. Both Kenneth and Rhonda Welker completed the additional eight hours of required education between November 9, 1982, and the date of Ms. Flowers' follow-up visit on November 17, 1982. On the day of the follow-up visit, Ms. Flowers noticed several customers in the salon being worked on by both Kenneth and Rhonda Welker. Kenneth Welker's cosmetologist's license was reissued on December 9, 1982, and expires on June 30, 1984. Rhonda Welker's current license was issued on January 30, 1983, and expires on June 30, 1984. Respondent, Kenneth Welker, failed to secure the required 16 hours of continuing professional education on the honest but mistaken belief that he only needed eight hours' worth. He felt that since his license was initially issued for less than two full years, he would only need the eight hours of continuing education for one year, which he had. Prior to submitting the application for renewal of the salon license, Mrs. Welker called the Board of Cosmetology and was told that she need not file a new, complete application to renew an expired license, but misconstrued this as meaning the shop could continue operating with the expired license until the new one was issued. The Board's advice permitted renewal of an expired license by the filing of a renewal application, but, during the interim, the salon could not lawfully operate. Under the above circumstances, both the salon and Respondent Welker were operating without a valid license in effect. So was Rhonda Welker.
Recommendation Based on the foregoing, it is, therefore, RECOMMENDED: That Respondent be ordered to pay an administrative fine in the amount of $200. RECOMMENDED this 30th day of September, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 30th day of September, 1983. COPIES FURNISHED: Theodore R. Gay, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Kenneth Welker 887 Semoran Boulevard Apopka, Florida 32703 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Ms. Myrtle Aase Executive Director Board of Cosmetology Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue is whether Petitioner's application for reinstatement of his license as a general contractor should be granted or denied.
Findings Of Fact Stipulated Facts Petitioner was previously issued Certified General Contractor's License number CGC42026. His license was active in the 2004 renewal cycle, became delinquent-active in the 2006 renewal cycle, and null and void at the start of the 2008 renewal cycle. Due to an executive order of the Governor relating to tropical storms, Petitioner's license became null and void on October 2, 2008. Petitioner was required to pay a renewal fee and report continuing education credit hours in order to renew his license prior to the start of the 2008 renewal cycle to avoid the license becoming null and void. Petitioner timely paid the renewal fee ($518) to renew his license. Petitioner completed and reported two continuing education hours for the reporting period ending August 31, 2008. Petitioner completed and reported 44 continuing education hours through July 5, 2011, and is currently up to date with all of his required continuing education credit hours. While Petitioner completed and reported a portion of his required continuing education hours, he did not complete and report all of his required continuing education hours to renew his license during the 2008 renewal period. This was due to financial difficulty and an inability to pay for continuing education credit hours. At present, the total hours Petitioner completed and reported would fulfill his 2006, 2008, and 2010 continuing education requirements. A license becomes null and void if it is not renewed within two years of the renewal date. Petitioner filed his application pursuant to section 455.271(6), Florida Statutes, to reinstate his Certified General Contractor's License number CGC42026. The Department entered its Notice of Intent to Deny the application. Following the Board's issuance of a Corrected Notice of Intent to Deny, Petitioner filed an Amended Petition for Formal Administrative Proceedings. The Corrected Notice stated that Petitioner's license expired due to non receipt of continuing education credits for renewal and, following the delinquency period, became null and void. The reasons for the denial set forth in the corrected notice were as follows: Applicant failed to present evidence of a good faith effort to comply with the license renewal statutes and rules and failed to present evidence that rises to the level of illness or unusual hardship that would justify the failure to renew the license. The Board approved the application of Alberto Munoz to reinstate his Certified Pool/Spa Contractor's License pursuant to section 455.271(6) at the July 14, 2011, meeting of the Board. The application filed by Mr. Munoz stated that his license had gone null and void because he failed to pay the required license renewal fee due to undue due to undue financial hardship. The Board approved the application of Edwin W. Steffen to reinstate his Certified Plumbing Contractor's License pursuant to section 455.271(6) at the August 11, 2011, meeting of the Board. The application filed by Mr. Steffen stated that his license had gone null and void because his "two cycle inactive status expired in August 2010." Further, Mr. Steffen cited financial difficulties following the "2009 market crash that hurt [him] significantly," leading him to "go back into the workforce." Neither the Department nor the Board has adopted any rules pertaining to applications to reinstate licensees pursuant to section 455.271(6) other than a Department approved application form. Facts based upon evidence of record Petitioner's Certified General Contractor's (CGC) license was active during the 2004 renewal cycle, and became delinquent-active in the 2006 renewal cycle. Petitioner was required to pay a renewal fee and report continuing education credit hours in order to renew his CGC license prior to the start of the 2008 renewal cycle to avoid the license becoming null and void. During the 2006 and 2008 renewal cycles, Petitioner worked as a construction foreman in remote encampments in Puerto Rico and in the U.S. Virgin Islands. Although these jobs were full-time, he earned very little money on these projects. During this time, Petitioner's wife and three children remained at home in Puerto Rico. He earned only enough during this time for his family to subsist. Although working in remote locations in Puerto Rico and in the U.S. Virgin Islands during this time, Petitioner insists that he always intended to return to Florida and was actively seeking work here. He did not finish working in the remote encampments until 2009. While working in the remote locations, he had no access to the Internet and relied on phone calls to friends in an attempt to find appropriate yet affordable continuing education courses. The courses he learned of were expensive at a time when he was earning little money and trying to support his family. Petitioner's testimony in this regard is deemed credible and is accepted as fact. When Petitioner submitted his application for reinstatement of his license, he included a money order for $100 as required. During this period of time, Petitioner paid his renewal fee and completed two continuing education credit hours, but was unable to afford the required number of authorized continuing education credits, and was not in a place from which he could travel to attend live courses. Petitioner made a good-faith effort to comply with the license renewal statutes and rules. He paid the renewal fee and has since completed the necessary continuing education requirements.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That the Construction Industry Licensing Board enter a final order granting Petitioner's application for reinstatement of his license as a general contractor. DONE AND ENTERED this 13th day of January, 2012, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 13th day of January, 2012.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Administrative Complaint filed by Petitioner on November 20, 1980, be dismissed by final agency order. DONE AND ORDERED this 17th day of February, 1981, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Telephone: (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 17th day of February, 1981. COPIES FURNISHED: William D. Moore, Esquire Ella Jane P. Davis, Esquire 700 Barnett Bank Building Department of Transportation Tallahassee, Florida 32301 Haydon Burns Building, MS 58 Tallahassee, Florida 32301 J. Lawrence Johnston, Esquire Post Office Box 1170 Tallahassee, Florida 32302
Findings Of Fact At all times material to these proceedings, the Respondent, ROBERT MENSCHING, was a certified residential building contractor in Florida, and held license number CR C020166. Mr. Mensching was the owner and qualifying agent for Robert Mensching Homes. On or about July 10, 1986, a written proposal was submitted by the Respondent to Mr. and Mrs. Mangiardi for the construction of a single family dwelling in Cape Coral, Florida. The construction price was $60,000.00, with an additional $500.00 for the purchase of the house plans. Mr. and Mrs. Mangiardi paid for the plans on the date of the proposal. Revisions to the proposal were submitted to the Mangiardis in September, 1986. The purchase price and the payment schedule remained the same. The proposal was accepted by the Mangiardis, and the down payment of $5,000.00 required by the contract to start construction, was given to the Respondent. Construction commenced in November 1986. By March 26, 1987, the Respondent had been paid $53,750.00 of the total construction contract price. This included the fourth draw on a five draw payment schedule. Only $6,250.00 remained to be paid by the purchasers for the last phase of construction. In April 1987, the Respondent informed Mr. Mangiardi that he would not complete the final phase of construction. The Respondent informed Mr. Mangiardi that he would pay him $5,000.00. An accounting was not given to the purchasers of the monies disbursed by the Respondent pursuant to the construction schedule. After the Respondent left the project, the Mangiardis were given notice of an outstanding lien in the amount of $963.80, which was owed to Kirkland Electric, Inc. Another Notice to Owner was filed by Wallcrafters, another subcontractor, for $5,272.50. The work completed by both subcontractors was performed during the Respondent's term as the prime contractor on the project. These two subcontractors were never paid by the Respondent out of the draws received by him for that purpose. The Respondent did not pay the $5,000.00 he told Mr. Mangiardi he would pay in April of 1987. The evidence is unclear as to whether this amount of money was a payment of liquidated damages for the breach, the balance of funds entrusted to the contractor which had not been disbursed in the preceding construction phases, or the amount of unpaid liens known to the contractor at the time of breach. The Respondent filed for bankruptcy after a judgment was entered against him in a civil action by the Mangiardis for breach of contract. A Notice of Aggravation was not submitted during the formal hearing regarding the actual damage to the licensee's customers as a circumstance to be considered in aggravation of the penalty to be assessed. A copy of the Florida Construction Industry Licensing Board's previous letter of reprimand was not presented at hearing so that the hearing officer and the Board could use the prior violation for aggravation purposes.
The Issue The issue to be resolved in this proceeding involves whether the Respondent's certification to practice contracting should be subjected to disciplinary action for alleged violations of Section 489.129(1), Florida Statutes, and, if the violations are proven, what, if any, penalty is warranted.
Findings Of Fact The Petitioner is an agency of the State of Florida charged, as pertinent hereto, with enforcing, administering, and regulating the practice standards and licensure standards for the construction industry in Florida. This authority is embodied in the various provisions of Chapters 489, 455, and 120, Florida Statutes, and rules promulgated pursuant thereto. The Respondent is a licensed general contractor in the State of Florida having been issued license number RG0060516 and is registered to conduct contracting business in his individual capacity. On July 2, 1990, a contractor, Lonnie J. Walker, notified the Building Department of the City of Tallahassee that he had withdrawn as contractor for a job located at 722 Dunn Street, in Tallahassee, Florida. He thereupon withdrew the building permit he had obtained for the work being performed at those premises. On August 8, 1990, the Respondent contracted with Mary N. Spencer, the owner, to make certain repairs at the two-unit apartment building located at 722 Dunn Street, Tallahassee, Leon County, Florida. The contract price agreed upon between the Respondent and Ms. Spencer was $867.00. The Respondent thereupon performed some of the aforementioned contracting work, consisting of repairs of various types. He was not registered to contract in Leon County, Florida, however. The Department of Growth and Environmental Management of Leon County, Florida, is responsible for issuing construction contractor licenses for the County, including for the City of Tallahassee. There was no proper building permit issued for the job and job site when the Respondent entered into the contracting work at those premises. The Respondent failed to obtain a permit for the repairs and this ultimately came to the attention of the City of Tallahassee Building Department. That agency issued a stop work order on September 5, 1990. The Respondent was not performing work pursuant to Mr. Walker's previous permit, which had been withdrawn. The Respondent was not an employee of Lonnie J. Walker, the previous general contractor for the job. The Petitioner agency submitted an affidavit after the hearing and close of the evidence, with its Proposed Recommended Order. That affidavit asserts that the Petitioner accumulated $458.10 in investigative costs and $2,491.30 in legal costs associated with the prosecution of this case, for a total alleged cost of prosecution of $2,949.40. It moves, in its Proposed Recommended Order, that payment of the costs should be made in accordance with Section 61G4-12.008, Florida Administrative Code. The request for costs was first raised as an issue in the Proposed Recommended Order submitted by the Petitioner and is advanced only in the form of a hearsay affidavit. No prior motion for costs served upon the Respondent is of record in this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Construction Industry Licensing Board finding the Respondent guilty of the violations charged in the Administrative Complaint and assessing a penalty in the form of a letter of guidance and an aggregate fine of $600.00, as described with more particularity hereinabove. DONE AND ENTERED this 9th day of March, 1994, in Tallahassee, Florida. P. MICHAEL RUFF 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 10th day of March, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-591 Petitioner's Proposed Findings of Fact 1-8. Accepted. Respondent's Proposed Findings of Fact Respondent submitted no post-hearing pleading. COPIES FURNISHED: G.W. Harrell, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Julius S. Baker, Sr. Box 253 Morrow, GA 30260 Mr. Richard Hickok Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway Suite 300 Jacksonville, FL 32211-7467 Jack McRay, Esq. General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 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. Whether the Respondent is guilty of fraud, or deceit or of gross negligence, incompetence, or misconduct in the practice of contracting, in violation of Section 489.129(1)(m), Florida Statutes.
Findings Of Fact At all times material to these proceedings, the Respondent, Tillack Ram Netram, was licensed as a certified residential contractor and held license number CR C035238. On or about November 16, 1988, a duly noticed hearing was held before the Contractors Regulatory Board of the City of Cape Coral to determine whether Respondent Netram had violated local ordinances by falsifying three certificates of occupancy in order to close real estate transactions and receive money before the residences were actually approved for occupancy by the City of Cape Coral. The incomplete permits were removed from the property prior to actual completion, and copies of falsified permits were given to the closing agent. The falsified permits showed that certificates of occupancy had been issued by the local building department when in fact, this had not occurred. All of the witnesses at the hearing were placed under oath and were subject to cross-examination by Respondent Netram's attorney, Terry Signorella. The Respondent was present at the proceeding and was allowed to present evidence and to testify in his own behalf. At the close of the evidentiary portion of the proceeding on November 16, 1988, Respondent Netram was found guilty by the local board of making misleading, deceptive, untrue or fraudulent representations in the practice of his contracting business. He committed these violations by delivering three building permits with forged signatures under the Certificate of Occupancy approval portion of the permits to Miss Peggy Burt of Stewart Title Company in Fort Myers. This conduct constitutes three violations of Section 6.10(1) of the Municipal Code. As a result of the alleged violations, Respondent's permit pulling privileges were suspended for a period of six months. An appeal was not taken of the disciplinary action. On November 15, 1988, an Information was filed against the Respondent which charged the Respondent with five counts of grand theft and scheme to defraud in connection with five separate real estate sales. At the time of hearing, these charges were still pending. The investigator for the State Attorney's offices attended the formal administrative hearing and presented a copy of his investigatory file. All of the testimony and documents presented were uncorroborated hearsay. None of the documents, including official records, were properly verified. There was no evidence submitted in mitigation or in aggravation of the penalties provided for the alleged violations.
Recommendation Because the Respondent committed the misconduct in regards to three different building permits, he should be penalized for his action as to each permit. Accordingly, it is Recommended: That the Respondent be found not guilty of having violated Section 489.129(1)(m), Florida Statutes, as set forth in paragraphs 3 and 5 of the Administrative Complaint. That the Respondent be found not guilty of having violated Section 489.129(1)(i), Florida Statutes, for the misconduct alleged in paragraph 4 of the complaint. That the Respondent be found guilty of having violated Section 489.129(1)(i), Florida Statutes, as set forth in paragraph 6 of the complaint. That the Respondent pay a fine of $1 500.00, as set forth in Rule 21E- 17.001(8), Florida Administrative Code, for his willful violation, on three occasions, of the municipal building code. DONE and ENTERED this 23rd day of February, 1990, 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 23rd day of February, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-0819 Petitioner's proposed findings of fact are addressed as follows: Accepted. Accepted. See HO #1. Rejected. Irrelevant. Not charged in the Amended Administrative Complaint. Rejected. Insufficient competent evidence provided at hearing. Accepted. Accepted except for the allegation that Respondent forged the inspector's signature. Insufficient proof. See HO #4 and #5. Rejected. Insufficient competent evidence provided at hearing. Rejected. Insufficient competent evidence provided at hearing. Accepted. See preliminary matters. COPIES FURNISHED: David M. Gaspari, Esquire Post Office Box 2069 West Palm Beach, FL 33402 Tillack Ram Netram 532 Southeast 18th Place Cape Coral, FL 33904 Fred Seely Executive Director Construction Industry Licensing Post Office Box 2 Jacksonville, FL 32202 Kenneth D. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
