The Issue The issues in this proceeding are whether the Respondent has violated provisions of the Florida Construction Industry Licensing Law, and, if so, what disciplinary action should be taken. The administrative complaint specifically charges Respondent with aiding an unlicensed person to evade provisions of the contracting licensing law, conspiring with an unlicensed person to allow his license to be used to evade provisions of the law, acting as a contractor under a name other than as appears on his registration, and failing to properly qualify a company under which he was doing business. Respondent denies the allegations.
Findings Of Fact At all times material to this proceeding, the Respondent has been duly licensed by the Petitioner as a building contractor. On March 23, 1980, Nettie Wilkes entered into a contract with Rado Construction, Inc. The contract was for Rado to enclose a carport at Wilkes' residence and to do other work incident to that renovation. The contract provided that work would commence on April 10, 1980, and be completed approximately 21 to 30 days from the start. The total contract price was $5,700, and Mrs. Wilkes gave Rado a $1,500 down payment. Donald W. Gray negotiated the contract on behalf of Rado with Wilkes. Gray appears to be the principal party in Rado Construction. Gray contacted James Neilan and Jerry Polk about performing the work on the Wilkes project. Gray did not show Polk a copy of the contract with Wilkes, and he led Polk to believe that considerably less work would need to be performed than was required under the contract. Although Polk had a local occupational license as a carpenter, he was not a licensed contractor, and was not able to obtain a building permit for the work. Neilan and Gray were also unlicensed and unable to obtain a permit. Polk assumed that he would be working for Gray in a subcontracting capacity. Polk had performed considerable carpentry work on a subcontracting basis for the Respondent. Polk felt that the Respondent might help him obtain a permit. Polk approached the Respondent about the Wilkes' project. He told the Respondent the scope of the project as it bad been related to Polk by Gray. He did not advise the Respondent of the involvement of Gray or of Rado Construction. Polk initially asked the Respondent if the Respondent would be able to do the job and the Respondent indicated that he could not. Polk and the Respondent discussed the job on a casual basis and the discussion ended. Several days later, Polk returned to the Respondent's office and asked the Respondent if the Respondent could obtain the building permit and allow Polk to perform the work on a subcontractor basis. Respondent drew up some plans about the project. He agreed to Polk's proposal. The Respondent filed an application with the building inspection department of the City of Orlando for a building permit on April 15, 1980. A permit was issued by the city on that same date. Respondent had estimated the cost of the project, based upon his discussion with Polk, as being approximately $2,000. The Respondent delivered the permit to Polk and advised Polk that he would be inspecting the project periodically. Polk posted the permit at the Wilkes' property and worked together with James Neilan on the project. The work did not commence as scheduled in the contract between Rado Construction and Mrs. Wilkes, but it did commence sometime after April 15, 1980. As the project went on, Gray would from time to time visit the site and advise Polk and Neilan of additional work that would need to be performed that Polk had not known about earlier. Polk did not know that considerable masonry work would be required. He was not qualified to do masonry work, but he attempted to perform it. As the work went on, Polk became more and more dissatisfied, and ultimately concluded that what had been described to him as a one and one-half week job for two people was in reality a two-week job for ten men. Polk ultimately removed the permit from the premises and abandoned his work there. Approximately four days after he obtained the building permit for Polk, the Respondent visited the job site. He observed that no work had commenced and he contacted Polk. Polk erroneously advised the Respondent at that time that the project had been abandoned and that the permit would not be utilized. Respondent heard nothing more about the project for approximately four weeks. Mrs. Wilkes eventually became dissatisfied with the nature of the services that were being performed on her property. When Polk abandoned further work, she contacted the building permit officials and was advised that the Respondent, not Rado Construction, had obtained the permit. She contacted the Respondent and advised him of what had occurred. The Respondent promptly visited Mrs. Wilkes at her home. He was surprised and appalled to find that very poor work had been performed in a very sloppy manner. He discussed the matter at length with Mrs. Wilkes and learned for the first time of Gray's involvement in the project. He advised Mrs. Wilkes that he would not be able to do the job, but he gave her a check for $600 which she told him would be sufficient to complete the project. Respondent also provided laborers to perform cleanup work at the site, and hired a subcontractor to pour a driveway. Respondent expended approximately $1,000 to complete the project for Mrs. Wilkes. The Respondent located Gray, and in an unpleasant confrontation, obtained a promissory note from Gray for $1,000 to compensate the Respondent for his expenditures. The Respondent ultimately accompanied Mrs. Wilkes to a first meeting of creditors at Gray's bankruptcy proceedings. The Respondent has not previously or subsequently engaged in business in the manner that he did in this transaction. He is a reputable contractor and is contrite about the role that he played in the transaction.
Findings Of Fact On August 11, 1983, petitioner, Department of Professional Regulation, Florida Construction Industry Licensing Board, issued an administrative complaint alleging that respondent, Maynard S. Moss, was a registered roofing contractor and had violated various provisions of Chapter 489, Florida Statutes, while performing four roofing jobs pursuant to contracts entered into in February, March and May, 1980, and March, 1983, respectively. According to documents on file with the official custodian of petitioner's records and introduced into evidence, respondent made application for registration as a roofing contractor with petitioner on April 25, 1974. On October 28, 1976, he filed a registration change of status application with the Department to qualify M & W Roofing, Inc. The records also reflect that his license number RC 0020412 for the year expiring June 30, 1977 was cancelled by the Department on an undisclosed date. There is no evidence that he was issued a license thereafter which was effective in 1980 or 1983.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against respondent be DISMISSED. DONE and RECOMMENDED this 9th day of November, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER 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 9th day of November, 1983. COPIES FURNISHED: Stephanie A. Daniel, Esquire 130 N. Monroe Street Tallahassee, Florida 32301 Sam E. Murrell, Jr., Esquire Post Office Box 1748 Orlando, Florida 32602 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
Findings Of Fact At all times material to these proceedings, the Respondent, David R. Knight, held a registered general contractor's license numbered RG 007907 issued by the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board initially in July, 1968. Respondent's license is presently in an inactive status for failure to renew but renewal can be accomplished by Respondent paying the required renewal fee only. On May 13, 1983, Respondent contracted with Joseph Cobb to remodel a house in Milton, Florida. The contract price was $23,800.00. The Respondent began the remodeling and when the project was approximately 50 percent completed, left the site. Joseph Cobb, on numerous occasions, offered to work with the Respondent in any way to finish the project, but the Respondent failed to return. Joseph Cobb paid Respondent $19,100.00 from May 14, 1983 through June 23, 1983. In addition, although the contract required Respondent to pay for all supplies and materials, Cobb paid $2,300.98 for supplies and material used in the remodeling. Respondent failed to pay Gary Rich Plumbing for the plumbing work done on the Cobb residence. Joseph Cobb was forced to pay Gary Rich $1,200.00 in order to avoid a lien being filed on his home. Respondent was not licensed to contract in Milton, Santa Rosa County, Florida, when he contracted with Joseph Cobb to perform remodeling. In June, 1982, Respondent contracted with Pearlie Rutledge to remodel a house at 608 North D Street, Pensacola, Florida, Escambia County. The contract price was $17,000.00. The Respondent began the construction without obtaining a building permit which is in violation of Section 106 Standard Building Code as adopted by the City of Pensacola Ordinance 81-83. Respondent deliberately and in a hurry left the site of construction when the building inspector appeared on the job. The Respondent was not licensed in Escambia County or the City of Pensacola to practice contracting. Pearlie Rutledge paid Respondent $5,000.00 which the Respondent failed to return when the remodeling was stopped by Charles Humphreys, Housing Inspector for the City of Pensacola. Pearlie Rutledge obtained a Final Judgement against the Respondent for $4,557.00 which has not been paid by the Respondent. Respondent's "81-82' and "82-83", Okaloosa County Occupational License was issued to David Knight doing business as "Your Way Construction." However, there was no evidence presented at the hearing that Respondent ever contracted in the name of "Your Way Construction." In fact there is evidence that during the year 1983 he contracted with Cobb as David Knight, General Contractor and not as David Knight, General Contractor, d/b/a Your Way Construction. (See Petitioner's Exhibit No. 1.)
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Board enter a final order Dismissing Counts II, V and VI of the Administrative Complaint filed against the Respondent. It is further RECOMMENDED that the Board enter a final order finding Respondents guilty of the violation charged in Counts I, III and IV of the Administrative Complaint filed against the Respondent and for such violation it is RECOMMENDED that the Board revoke the Respondent's registered general contractor's license numbered RG 0007907, to practice contracting in the State of Florida Respectfully submitted and entered this 9th day of January, 1986, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 9th day of January, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 84-3836 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 Petitioner to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Exhibit 1). 3. Adopted in Finding of Fact 3. 4. Adopted in Finding of Fact 4. 5. Adopted in Finding of Fact 5. 6. Adopted in Finding of Fact 6. 7. Adopted in Finding of Fact 7. 8. Adopted in Finding of Fact 8. 9. Adopted in Finding of Fact 9. 10. Adopted in Finding of Fact 10. 11. Adopted in Finding of Fact 11. 12. Adopted in Finding of Fact 12. Adopted in Finding of Fact 2 except for contract amount which should have been $23,800. (See Petitioner's Respondent Did Not Submit Any Proposed Findings of Fact COPIES FURNISHED: James Linnan, Executive Director Department of Professional Regulation Construction Industry Licensing Post Office Box 2 Jacksonville, Florida 32202 Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. David R. Knight 1215 East Hayes Street Pensacola, Florida 32503
The Issue Whether Respondent committed the offenses described in the administrative complaints filed against him? If so, what discipline should he receive?
Findings Of Fact Based upon the record evidence, the Hearing Officer makes the following findings of fact: General Information Edward Ryan is now, and has been since October, 1973, licensed as a Building Contractor by the State of Florida. He holds license number CB 0006481. Ryan has previously been disciplined by the Florida Construction Industry Licensing Board (Board). In July, 1987, prior to the issuance of the instant administrative complaints, he received a letter of reprimand from the Board. The Department of Professional Regulation has recently received additional complaints concerning Ryan. These complaints are currently under investigation. Ryan has been the qualifying agent for Gulf Chemical Contractors, Inc. (Gulf) since August, 1982. All ten of the instant administrative complaints involve projects undertaken by Gulf in Dade County, Florida. The South Florida Building Code (Code) has been adopted as the building code for both the incorporated and unincorporated areas of Dade County. The Code provides in pertinent part as follows with respect to the requirement of permits: It shall be unlawful to construct, enlarge, alter, repair, move, remove or demolish any building structure, or any part thereof; or any equipment, device or facility therein or thereon; or to change the Occupancy of a building from one use Group to another requiring greater strength, means of egress, fire and sanitary provisions; or to install or alter any equipment for which provision is made or the installation of which is regulated by this Code; without first having filed application and obtained a permit therefor, from the Building Official, validated by payment there for. EXCEPTION: No permit shall be required, in this or any of the following Sections, for general maintenance or repairs which do not change the Occupancy and the value of which does not exceed one hundred dollars ($100.00) in labor and material as determined by the Building Official. The Code further requires that the permit holder or his agent notify the Building Official of the completion of the project and call for an inspection of the work completed. Another requirement of the Code is that products such as air vent systems receive official approval from the appropriate Building Official prior to their installation. An experienced building contractor like Ryan doing business in Dade County should be aware of these requirements and should know that it is the responsibility of the general contractor of a project to make sure that these requirements are met. Case No. 89-2204 On May 2, 1987, Helana Lau and her husband entered into a written contract with Gulf. Gulf agreed to perform work on the Lau residence located at 2400 S.W. 15th Street in Miami, Florida, for which it was to be paid, pursuant to the terms of the contract, $11,450.00 by the Laus. The work that was to be performed on the structure included, among other things, the replacement of the roof and "any rotted wood on facia and soffits" and the installation of a "filter vent system." Gulf installed an aluminum air vent system for the Laus. The product used by Gulf had not received official approval prior to its installation as required by the South Florida Building Code. Furthermore, it posed a potential safety hazard. No official inspection of the contract work performed by Gulf on the Lau residence has ever been requested, notwithstanding that Gulf has long since terminated its work in connection with the project and vacated the jobsite. Case No. 89-2205 On December 29, 1986, Marvin Lichtenstein entered into a written contract with Gulf. Gulf agreed to texture coat Lichtenstein's home located at 2080 N.E. 171st Street in North Miami Beach, Florida. Pursuant to the terms of the contract, Gulf was to be paid $4,000.00 by Lichtenstein for performing this work. The contract contained a handwritten notation that "finances will be appr 10-11%" and that therefore Lichtenstein would have "a monthly payment of appr $71 or less" on the unpaid balance, which was $3,900.00. The contract also contained the following provision, which unlike the aforementioned notation was printed: This is an agreement by the parties mentioned herein to enter into an installment loan contract. The Purchaser requests that the Seller and the Seller's agents make the appropriate inquiries into the Purchaser's credit history and into the condition of the Title of the Property to be encumbered. The purpose of these inquiries is to see if the Seller may be able to arrange financing of the unpaid cash balance and what the terms of that financing may be. The purchaser agrees to accept any Home Improvement Contract presented by or thru the Seller, that has an interest rate less than the maximum current interest mentioned in the Florida Retail Installment & Sales Acts. The Purchaser agrees that all cost incurred by the Seller in connection with the payment plan will be paid by the Purchaser if the Purchaser refuses to accept that Home Improvement Contract. The work was performed by Gulf on the Lichtenstein home during the second week of January, 1987. Although a permit was required under the Code, it was not obtained prior to the commencement of the project or at any time thereafter. Furthermore, no official inspection of the work completed by Gulf has been requested. Following the completion of the work, Lichtenstein received from AmSav Financial, Inc., an Advance Notice of Acceptance and Intent to Purchase an FHA Title I Note. The document, which was dated January 14, 1987, provided Lichtenstein with the following information: We have found your credit to be satisfactory for a loan in the amount of $3,900.00 for a period of 60 months. Interest at a rate of 14.50% will be charged on the unpaid principal balance. Monthly payments will be $92.82. It is our intention to disburse the funds to the above mentioned dealer [Gulf] when all necessary documents, including a completion certificate indicating the work has been satisfactorily completed are received in proper order; but not earlier than six days from this date. It is not our policy to inspect all improvement projects we finance, so we want you to know that the selection of the contractor and the acceptance of workmanship and materials is your responsibility. You should insist on a copy of all instruments you sign and you should not sign the completion certificate until the contract has been fulfilled to your satisfaction. Contractors are not permitted to give cash rebates from the proceeds of this transaction nor are they permitted to make any payments for you nor any other type of incentive to buy. This commitment is good for 60 days only. If you have any questions regarding this transaction, or if we can be helpful in any way, please let us hear from you within six days from this date. Lichtenstein refused to accept this financing arrangement and, because he was dissatisfied with the work Gulf had done, withheld payment. He eventually settled this dispute with Gulf and paid the company $2,500 in accordance with the terms of the settlement agreement. Case No. 89-2206 On or about July 11, 1987, Al Childress, the supervisor of the Code Enforcement Section of the Dade County Building and Zoning Department, received a complaint regarding work purportedly done by Gulf on the Rojas residence located at 18105 N.W. 5th Court in Dade County, Florida. Childress thereafter inspected the premises and discovered that a three-ton air conditioning unit had been installed without a permit first having been obtained. He further ascertained that no formal inspection of the installed unit had been requested. Childress subsequently issued Gulf citations for "unlawfully commencing work on a[n] air conditioning installation without a permit" and "unlawfully contracting for work outside the scope of the certificate of competency." Case No. 89-2207 On January 12, 1987, Bryan Bitner entered into a written contract with Gulf. Gulf agreed to remodel and renovate the kitchen and other parts of the Bitner residence located 571 N.E. 175th Terrace in North Miami Beach, Florida. Pursuant to the terms of the contract, Gulf was to be paid $10,216 by Bitner. Work on the project began on February 14, 1987, and ended on April 20, 1987. Although given the opportunity to do so by Bitner, Gulf failed to finish the work it had agreed to perform and, without justification or notice, abandoned the project after having completed only 70% of the kitchen cabinetry work specified in the contract. Neither before nor after the commencement of work on the project were the required building, electrical and plumbing permits obtained. No official inspections of the work done in connection with the project have been requested. Case No. 89-2208 On December 19, 1985, Anthony and Anna Rabeck entered into a written contract with Gulf. Gulf agreed to perform roofing work on the Rabeck's home located at 447 East 7th Street in Hialeah, Florida, for which it was to be paid, pursuant to the terms of the contract, $2,792.00 by the Rabecks. Gulf thereafter subcontracted with Louis Rusty Gordon of Rusty's Roofing to perform work on the project. Gordon performed the work, but was not paid the $600.00 Gulf had agreed to pay him. He therefore filed a lien on the Rabeck's residence in the amount of $600.00 and filed a complaint against Gulf and the Rabecks in Dade County Circuit Court seeking a $600.00 judgment against them. Gordon was ultimately paid the $600.00 by the Rabecks. A roofing permit was never obtained for the work that was done on the Rabeck residence. Furthermore, no official inspection of the work has ever been requested. Case No. 89-2209 On February 21, 1987, James Cox entered into a written contract with Gulf. Gulf agreed to texture coat and to add a screened porch to the Cox residence located at 11621 S.W. 183rd Street in Dade County, Florida. For this work, Gulf was to be paid, pursuant to the terms of the contract, $5,700.00 by Cox. The texture coating was completed in late March, 1987. The screened porch was finished in early April, 1987. Upon completion of the entire project, Cox paid Gulf in full in accordance with their contractual agreement. Although a permit was necessary to commence the work on the Cox residence, it was never obtained. In addition, no one requested that the completed work be officially inspected. The screened porch was constructed by a subcontractor, Steve Buzzella. Prior to his undertaking this project, Gulf had agreed to pay him $2,200.00 for such work. Although he satisfactorily completed the project, Gulf did not pay him for his work. Consequently, he filed a lien on the Cox residence in the amount of $2,200.00. Buzzella has yet to be paid the money he is owed by Gulf and the lien remains in effect. Cox has retained legal counsel to assist him in connection with this matter and has already paid $175.00 in legal fees. Case No. 89-2210 On June 30, 1986, Adele Spiegel and her husband David entered into a written contract with Gulf. Gulf agreed in the contract to, among other things, texture coat the Spiegels' residence located at 7380 S.W. 116th Terrace in Dade County, Florida. Pursuant to the terms of the contract, Gulf was to be paid $4,500.00 by the Spiegels. The contract further provided that the Spiegels were to receive a "15 year warr[anty] on [the] tex[ture] coat[ing]" work. It also contained the following provision: Contractor guarantees that all materials furnished by it will be of standard quality, type and condition, free from defects, and will be installed, built or applied in a good workmanlike manner; said labor and materials guaranteed against structural and material defects. Gulf completed the project without obtaining the required permit. Furthermore, no official inspection of the completed project was ever requested. The Spiegels paid Gulf in full for the work it had done. The last of their payments was made on July 10, 1986, following the completion of the project. After this final payment was made, "dark stains" appeared on portions of the texture coating that had been applied to the gable end of the Spiegels' roof. In addition, some of the texture coating started to peel and crack. These problems were caused by the improper application of the texture coating. The Spiegels have advised Gulf of these problems. They have made numerous efforts to have Gulf honor its fifteen-year warranty and correct these problems. These efforts have been to no avail. Gulf has yet to take any corrective action, notwithstanding its obligation to do so under the warranty it gave the Spiegels. Case No. 89-2211 On February 18, 1985, Angelo Bertolino entered into a written contract with Gulf. Gulf agreed to texture coat Bertolino's residence located at 11730 S.W. 175th Street in Dade County, Florida. For this work, Gulf was to be paid, pursuant to the terms of the contract, $3,000.00 by Bertolino. Bertolino received from Gulf, as part of their agreement, a fifteen-year warranty on the texture coating similar to the one that the Spiegels were given. Assurances were given to Bertolino that any warranty work that was necessary would be done by Gulf. The Bertolino home was texture coated shortly after the contract was signed. In July, 1987, the texture coating began to crack and peel. Bertolino immediately contacted Gulf to apprise it of the situation and to request that it perform the necessary repairs in accordance with the terms of the warranty it had given him. Receiving no response from Gulf to this initial request, he telephoned the company's offices on almost a daily basis until September, 1987, when a Gulf representative came to his home and did some corrective work. A month later, the area that had purportedly been repaired started to again crack and peel. Bertolino has made Gulf aware of the situation and has sought on numerous occasions to have the company perform the warranty work necessary to correct these problems. Gulf has ignored these requests and failed to honor the warranty it gave Bertolino. Case No. 89-2212 On January 6, 1988, Edward Baum entered into a written contract with Gulf. Gulf agreed to texture coat Baum's residence located at 10921 S.W. 120th Street in Dade County, Florida. For this work, Gulf was to be paid, pursuant to the terms of the contract, $3,200 by Baum. The project was completed on January 13, 1988. Upon completion of the work, Baum paid Gulf in full. Textured Coatings of America, Inc. (TCA) supplied Gulf with $583.28 of materials that were used to complete the project. The materials were supplied on credit. Because it had not received payment for these materials, TCA, on March 4, 1988, after giving due notice to Gulf and Baum, filed a lien on Baum's residence in the amount of $583.28. TCA has yet to be paid for these materials and the lien is still in effect. Case No. 89-2213 On February 17, 1987, James Harris entered into a written contract with Gulf. Gulf agreed to install new windows in Harris' residence located at 9730 S.W. 167th Street in Dade County, Florida, for which it was to be paid, pursuant to the terms of the contract, $2,503.20 by Harris. The windows were installed in one day. Although one was needed, no permit was obtained prior to the completion of the project. Furthermore, no official inspection of the completed work has ever been requested. The windows were not installed properly. As a result, they do not close and lock as they should. Harris must put cement blocks on the outside ledges in front of some of the windows and then tape these windows shut to prevent them from falling open. Harris has unsuccessfully sought to have Gulf repair the windows.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Construction Industry Licensing Board enter a final order (1) finding Respondent guilty of the violations described in paragraph 7, 8, 11, 12, 14, and 16-24 of the foregoing Conclusions of Law; (2) revoking his license as punishment for these violations; and (3) dismissing the charges against Respondent discussed in paragraphs 9, 10, 13, and 15 of the foregoing Conclusions of Law. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 8th day of September, 1989. STUART M. LERNER 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 8th day of September, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 89-2204 THROUGH 89-2213 The following are the Hearing Officer's specific rulings on the Proposed Findings of Fact submitted by the Department: 1-12. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. First sentence: Accepted and incorporated in substance; second sentence: Rejected as not supported by persuasive competent substantial evidence inasmuch as it suggests that Lichtenstein was obligated to, and did, make monthly payments of $92.82. Rejected for the same reason as 13, second sentence, above. 15-16. Accepted and incorporated in substance. First sentence: Accepted and incorporated in substance; second sentence: Rejected as not supported by persuasive competent substantial evidence to the extent that it asserts that Rojas "had hired Gulf to install an air conditioning unit." Insofar as it describes the complaint received by Childress, it has been accepted and incorporated in substance. Rejected as not supported by persuasive competent substantial evidence inasmuch as it indicates that the work on the Rojas residence was performed by Respondent. First and second sentences: Accepted and incorporated in substance; third sentence: Rejected as more in the nature of argument than a finding of fact. First sentence: Rejected for the same reason as 18 above; second sentence: Accepted and incorporated in substance. Rejected for the same reason as 18 above. 22-28. Accepted and incorporated in substance. Rejected as beyond the scope of the charges to the extent that it addresses the quality of the work that was completed. In all other respects, this proposed finding has been accepted and incorporated in substance. First sentence: Accepted and incorporated in substance; second sentence: Rejected as not supported by persuasive competent substantial evidence. 31-32. Accepted and incorporated in substance. 33-34. Rejected as not supported by persuasive competent substantial evidence inasmuch as both of these proposed findings are based upon the premise that the Rabeck's paid Gulf in full. 36-44. Accepted and incorporated by reference. 45. Rejected as unnecessary, except for the last sentence, which has been accepted and incorporated in substance. 46-62. Accepted and incorporated in substance. 63. Rejected as unnecessary except to the extent it references the lien filed against the Baum residence. Insofar as it addresses said lien, it has been accepted and incorporated in substance. 65-66. Accepted and incorporated in substance. 67. First sentence: Rejected as unnecessary; second and third sentences: Accepted and incorporated in substance. 68-71. Accepted and incorporated in substance. COPIES FURNISHED: Gregory A. Victor, Esquire Jan L. Darlow, Esquire William Burke, Esquire Bayview Executive Plaza 3225 Aviation Avenue, Suite 400 Miami, Florida 33133 Edward Ryan 169 Lincoln Road Miami Beach, Florida 33139 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
The Issue Whether the certified general contractor's license of W. Bert Jones should be revoked.
Findings Of Fact By an Administrative Complaint filed October 27, 1976, the Florida Construction Industry Licensing Board sought to revoke the general contractor's license of W. Bert Jones alleging that the Respondent contractor entered into a contract with Mrs. Barbara Loewe to renovate her home and to add a room onto the back of the house; that the Respondent contractor was paid in full the contract price but the job was not completed and there were numerous building code violations. Respondent requested an administrative hearing. Pursuant to written agreements entered into between the Respondent and Mrs. Barbara Loewe of Tampa, Florida, Respondent agreed to renovate Mrs. Loewe's home and to add a room onto the back of the house. Mrs. Loewe, either by paying the Respondent directly or paying material suppliers, paid the full contract price. In June or July of 1975 the Respondent left the job contracted for partially or wholly incompleted as follows: the ceiling of the kitchen and drywall were in complete and the kitchen was not painted; the guest bathroom was not trimmed; two back rooms were incomplete. Inasmuch as the ceiling was left undone, it was not trimmed, the drywall was incomplete, the doorways were left uninstalled, and the paneling was incomplete; the bathroom had no toilet, no sink and no trim on the tub; in the master bedroom the ceiling was left sagging, there was no insulation in ceiling or walls, the door was untrimmed, siding was left partially undone and the windows weren't trimmed; holes were left unrepaired around the pipes in the home. The sum of Five Thousand Dollars ($5,000) was paid by St. Paul Fire and Marine Insurance Company in full settlement of the claims arising under the general contractor's bond. Additional money, approximately Thirty-Five Hundred Dollars ($3,500), was spent by Mrs. Loewe in addition to the Five Thousand Dollars ($5,000.00) received from the bonding company in order to complete the jobs contracted for. Although there were minimum changes In the job as originally contracted for, work is still going on to complete the original work contracted for by the Respondent. The building inspector for the City of Tampa Building Bureau, Tom Burgoyme, inspected the job site on several occasions during the progress on the work contracted for between Mrs. Loewe and the Respondent. He found building code violations and submitted a list of corrections to the Respondent, Mr. Jones, which were not remedied. A number of problems arose during the construction work, some of which was not the fault of the Respondent. Another contractor was involved in the work on the project. Funds in excess of the purchase price were paid to the Respondent and funds in excess of Eighty-Five Hundred Dollars ($8,500) were needed or will be needed to complete the project.
Recommendation Revoke the general contractor's license of Respondent, Number C GC007323. DONE and ORDERED this 7th day of April, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211 Barry Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 W. Bert Jones 2300 Greenlawn Street Brandon, Florida 33511
The Issue The issues presented in this case concern certain allegations made by the Petitioner against the Respondent through an Administrative Complaint. In particular, it is alleged that on or about April 23, 1980, the Respondent's contractor's license issued by the Petitioner was suspended and subsequent to that time, the Respondent continued to perform contracting services through a company, David H. Hamilton, Inc., a corporation which was not properly qualified by the Petitioner to provide contracting services. It is further alleged by the Petitioner that the Respondent obtained building permits Nos. S2740-80B 1/ and 3214-80B from the Osceola County Building Department with the use of another contractor's license, namely: Louie S. Winchester, license #RR003839. For the reason of these facts, the Petitioner alleges that the Respondent has violated Subsection 489.127(1)(e), Florida Statutes, in that he attempted to use a suspended registration. It is further alleged, based upon the facts as reported in this Issues statement, that the Respondent has violated Subsection 489.129(1)(g), Florida Statutes, by acting in a capacity as a contractor under a certificate of registration not in his name. Finally, it is alleged, based upon the facts as reported hereinabove, that the Respondent has violated Subsection 489.129(1)(j), Florida Statutes, by failing to comply with Subsection 489.119(2), Florida Statutes, by not properly qualifying a corporation under which he performed contracting services.
Findings Of Fact The case presented concerns license disciplinary action by the Petitioner, State of Florida, Department of Professional Regulation, Florida Construction Industry Licensing Board, against the Respondent, David H. Hamilton, who holds a residential contractor's license issued by the Petitioner, #RR0014037. The prosecution of this action is through the offices of the Department of Professional Regulation and the outcome of the matter could lead to the revocation, suspension or other disciplinary action against the Respondent, in keeping with the provisions of Chapter 489, Florida Statutes. This case was presented before the Division of Administrative Hearings following a decision on the part of the Respondent to request a formal hearing pursuant to Subsection 120.57(1), Florida Statutes. The facts reveal that a Final Order of the Florida Construction Industry Licensing Board was issued on April 23, 1980, and this order established disciplinary action against the current license of David H. Hamilton. (A copy of this Final Order may be found as a part of the record in this proceeding and official recognition of that Final Order is made by the Recommended Order process.) This Final Order was entered after review of a Recommended Order of a Division of Administrative Hearings' Hearing Officer. By the terms of the Final Order, Hamilton's license was suspended "until such time as his Lake County Certificate of Competency is reinstated by the Lake County Board of Examiners." This contingency referred to the fact that the Respondent had his Lake County Certificate of Competency Card removed prior to the entry of the April 23, 1980, order of the Construction Industry Licensing Board. On September 2, 1980, at a time when the Respondent's residential contractor's license was under suspension by the State of Florida, the Respondent through a corporation applied to the Osceola County Building Department for a building permit to construct a residence in Osceola County, Florida. This permit number was #2740-80B. The permit was issued on September 4, 1980, and was granted in the name of David Hamilton, Inc., a corporation in which the Respondent was a principal. To obtain the permit in the sense of an effort to meet the requirements that the permit be applied for by a licensed Florida contractor, the Respondent used the registered residential contractor's license of one Louie Stevens Winchester who held license #RR003839 issued by the Florida Construction Industry Licensing Board. On the occasion of the issuance of the permit by Osceola County, Winchester was an officer of David Hamilton, Inc. Through the action of "pulling" this permit and the utilization of the permit in his construction of the residence, the Respondent was acting in the capacity of contractor under Winchester's license and the offices of the corporation, as opposed to the Respondent's suspended license. Prior to the request for permit, neither Hamilton nor Winchester had attempted to properly qualify David Hamilton, Inc., as a contracting corporation with the Florida Construction Industry Licensing Board. In this case, to properly qualify the corporation, it would have entailed the use of Winchester as the qualifying agent, in view of the fact that Winchester still held a valid contractor's license from the Florida Construction Industry Licensing Board. No effort was made to qualify David Hamilton, Inc., in its own right, through the agency of Winchester, until some time shortly beyond December 1, 1980. On October 28, 1980, the Respondent in his individual capacity, that is to say unconnected with his business pursuits as David Hamilton, Inc., went to the Osceola Building Department and applied for the issuance of a building permit for a home remodeling project for a customer of his. The permit in question on this occasion was #3214-80B. That permit was issued on October 29, 1930, and was used by the Respondent in his building project. An official in the Osceola County Building Department had checked with an employee in the Lake County Building Department on the status of Hamilton's rights to be employed as a building contractor in Lake County, Florida, and was informed that Hamilton's status in Lake County was acceptable. Based upon these representations, the Osceola County employee issued the permit discussed in this paragraph to Hamilton. The Osceola County employee also asked that the Lake County employee formally confirm Hamilton's status. The correspondence in response to Osceola County employee, John Pate, Assistant Building Director, as issued by an official in Lake County, one Herb Dudgeon, may be found as Petitioner's Exhibit No. 3. This letter was received by Pate after the permit was issued. That correspondence indicates that Hamilton had been given the privilege of reinstating his Lake County Competence Card, contingent upon "providing bond, insurances, occupational license, etc.," which had not been received by Lake County as of the date of the correspondence. The correspondence goes on to mention that the State, meaning the Florida Construction Industry Licensing Board, was waiting for confirmation of the completion of the contingencies referred to. Subsequent to this correspondence, the Respondent having completed all the necessary steps for reinstatement of the Lake County Competency Card, had his license suspension removed and was reinstated by the Florida Construction Industry Licensing Board, as verified by that body.
Recommendation Based upon a full consideration of the findings of fact and conclusions of law reached herein, it is RECOMMENDED: That the Florida Construction Industry Licensing Board issue a Final Order which absolves the Respondent of any responsibility for a violation of Subsection 489.127(1)(e), Florida Statutes (1980); that finds the Respondent in violation of Subsection 489.129(1)(g), Florida Statutes (1979), and imposes a penalty of a 60-day suspension; and that finds the Respondent in violation of Subsection 489.129(1)(j), Florida Statutes (1979), and imposes a suspension of 60 days to run concurrently with the other suspension in this paragraph of recommendation. 2/ DONE and ENTERED this 13th day of November, 1981, in Tallahassee, Florida. CHARLES C. ADAMS, 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 13th day of November, 1981.
Findings Of Fact The Respondent is licensed as a general contractor in the State of Florida and registered with the Florida Construction Industry Licensing Board. That agency is the agency charged with regulating the practice of contracting in the State of Florida and with monitoring the compliance of licensees with the various provisions of Chapter 489, Florida Statutes, and pertinent rules relating to licensure standards and practice standards of contractors. On April 23, 1980, one Terry Burch and Jim Goodman were operating a construction business under the fictitious name of "T. J. Associates." Neither Terry Burch or Jim Goodman, nor the entity known as T. J. Associates, was qualified or licensed with the Florida Construction Industry Licensing Board at that time, nor at times subsequent thereto which are pertinent to this proceeding. On April 23, 1980, T. J. Associates entered into a written contract with homeowners Florence Martin and her husband to remodel their home at 120 Broadview Avenue, Winter Park, Florida. The original contract was for $26,615.00 with various addenda to that contract, such that the total net contract price, with modifications, ultimately reached $40,597.00. Both the contract and the modification agreements were signed by the Martins and Terry Burch of T. J. Associates. The Respondent, Steven Shields, was not a party to any of these agreements. Mr. Burch and Mr. Goodman of T. J. Associates, obtained the Martin contract entirely through their own efforts and after obtaining the signed contract, approached the Respondent, Steven Shields, to ask him to draft blueprints for the job, also proposing that the three of them enter into some sort of partnership or other business arrangement. During the meeting at which this business was discussed, it was revealed to the Respondent that T. J. Associates was unlicensed with the Florida Construction Industry Licensing Board and the three men agreed that they would obtain proper application documents from the Board's office in Orlando for filing so as to properly qualify the company. In the meantime, the Respondent agreed to obtain from the City of Winter Park Building Department, the necessary building permits and did so. The Respondent was ultimately paid $600.00 by T. J. Associates for labor he performed on the subject project and for obtaining a building permit in his own name. The Respondent ultimately decided not to enter into a business relationship with T. J. Associates, Burch and Goodman. He did, however, work on the "Martin project" as a sort of job supervisor or foreman, performing some labor on the job and going to the job site on possibly two or three occasions during the course of the construction effort of T. J. Associates. The Respondent initially intended to use his contractor's license to properly qualify T. J. Associates with the Board and obtain the papers to do so, but after he did not enter the formal business relationship with T. J. Associates, neglected to do so, nor did T. J. Associates make any further effort to qualify itself as a contracting entity with the Florida Construction Industry Licensing Board. The Respondent did obtain the building permit for T. J. Associates for the Martin job on May 13, 1980, and obtained it under his individual name and contractor license number. T. J. Associates worked on the Martin job from May 6, 1980, to July 16, 1980. On July 16, 1980, after a dispute regarding the quality of the paint work and other matters, T. J. Associates and the Respondent stopped all work. At the time of the stoppage, the work was 90 percent complete. At the time the work was stopped, no more money was due to T. J. Associates for work already performed. The Martins, at that point, had paid T. J. Associates $35,900.00. The Martins had however, upon advice of their attorney, withheld sufficient funds at the point of cessation of work by T. J. Associates, to enable them to pay for the completion of the job by other labor and materialmen. Three subcontractors had been hired or contracted with by T. J. Associates for work which was performed by them on the Martin job. Those three subcontractors, Mr. Anthony Costa, Mr. Clyde Ray and Mr. Michael Ellis, had performed work for which they were owed, respectively, $531.00, $550.00 and $130.00. None of those three subcontractors have, as yet, been paid for these amounts. They repeatedly attempted to obtain payment from T. J. Associates, but were given no satisfaction in that regard. The Respondent never entered into any agreement or hiring arrangement with the three subcontractors involved, nor did the Respondent ever have possession or control of any funds paid from the Martins to T. J. Associates from which the subcontractors should have been paid. The Respondent only received the above- mentioned $600.00 from T. J. Associates for his services.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the Respondent be found guilty of a violation of Section 489.129(1)(e) and (k), in that he aided and abetted an uncertified, unregistered person to evade the act and violated Subsection (k) by abandoning the project without just cause. The remaining charges in the Administrative Complaint should, however, be dismissed. In view of the violations proven, an administrative fine of $500.00 and a three (3) month suspension of his license, followed by a one (1) year period of probation is warranted. DONE and ENTERED this 22nd day of August, 1983, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 1983. COPIES FURNISHED: Douglas A. Shropshire, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Charles E. Hoequist, Esquire 301 North Ferncreek Orlando, Florida 32803 James Linnan, Executive Director Florida Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact At all times relevant hereto, respondent, George E. Feld, held certified general contractor license number CG C021801 issued by petitioner, Department of Professional Regulation, Florida Construction Industry Licensing Board. Feld has been a licensed contractor in Florida since June 1982. He has qualified George E. Feld and Associates, Inc. under his license and operates the business at 2131 Northeast 205th Street, North Miami Beach, Florida. After submitting the low bid, on or about March 1, 1985 George Feld and Associates, Inc. entered into a contract with the City of Tamarac to construct a 5,500 square foot recreation building for the City. The negotiated contract price was $195,950. The contract called for commencement of the project within ten days after the contract was signed and completion by July 27, 1985. Sometime prior to March 20, 1985, Feld met one David P. McCall and Marvin Weiss at a motel in North Miami. McCall was interested in doing work on the Tamarac project. He gave Feld a business card with the name "Arrow Head Development Corporation, Inc." printed on it, and which stated the firm was "state certified" and "licensed" as a general contractor. Feld also noted that Weiss held a general contractor's license, and he assumed that McCall and Weiss were working together. Relying on McCall's card, and later representations by McCall, but without checking with petitioner's office to verify if McCall or Arrow Head were licensed or qualified, Feld agreed to subcontract out the shell and sewer work on the Tamarac project to Arrow Head. To this end, Feld and Arrow Head entered into two contracts on March 20, 1985, for Arrow Head to perform the shell and sewer work. On June 21, 1985 McCall submitted a written "proposal" to Feld for the shell work on the job. The proposal had the following words and numbers typed on its face: "State License Number: #CGC 05961." It was not disclosed whose license number this was. Although McCall denied typing this document (because he does not personally know how to type), he did not deny that it was placed on the document at his direction or with his knowledge. It was not until sometime later that Feld learned that Arrow Head was not qualified by any licensee. Because of his mistaken belief that Arrow Head was qualified, Feld had never qualified that firm. Even so, there was no evidence that Feld intended to allow an unqualified firm to perform the work. Work proceeded on a timely basis as required by the contract. Feld visited the job site daily, and supervised all activities, including those performed by McCall. He routinely inspected the work, verified that it was being done according to specifications, and made corrections where needed. The job specifications called for trusses that were over forty feet in length. Because of this, and pursuant to the South Florida Building Code (Code), it was necessary for the City to hire an engineer to oversee their installation. The City hired one George Fink as engineer to supervise this phase of the project. However, Fink's responsibility was limited to just that, and once the installation was completed, Feld resumed responsibility for the remainder of the job. Trusses are a manufactured roof member and may vary in length, height and pitch. In this case, they were designed in the form of a cathedral roof, and were in excess of forty-seven feet in length. Further, because of the building's design, there were a number of trusses to be installed. The installation of the trusses was begun around 9:00 a.m. on Friday, June 27, 1985 and finished by 2:00 p.m. that same day. As required by the Code, Fink was present and supervised the installation of the trusses on the top of the shell. He confirmed at hearing that they were properly installed. The problem herein arose early that day when Fink had noticed that the building plans did not provide for lateral bracing of the trusses. However, according to Fink, this was not unusual since plans do not normally provide for lateral bracing. Even so, Fink told an unnamed person who "appeared to be the fellow running the erection crew" that lateral bracing should be added to the center and two side core members and that the four trusses on each end needed additional bracing. Fink also suggested to this unnamed individual that sheathing be added "as soon as possible" to the top and outside of the trusses to give added stability and protect them from wind damage and the like. In this regard, at hearing Fink conceded that it was "reasonable" for a contractor to erect trusses one day, and to place sheathing on them the following work day. Fink thought sheathing to be particularly necessary on this job since the trusses were high pitched," "long in length," and there were "no gables or anything in between to ... add any other support." By the end of the work day, the crew had placed the proper bracing on the trusses. However, no sheathing was applied. According to Fink, who was accepted as an expert in this proceeding, a prudent and competent contractor would be aware of the need for sheathing and added bracing because of the potential hazard of high winds caused by late afternoon thunderstorms in South Florida. By failing to place sheathing on the roof, Fink opined that Feld was grossly negligent and incompetent in the practice of construction on the Tamarac project. Sometime on late Sunday night or early Monday morning, most of the trusses on the roof collapsed. Some fell on an electrical wire running to the building. However, no injuries occurred. Only five trusses on the north side of the building remained in place. The City of Tamarac then filed a complaint with petitioner against Feld. The cause of the collapse was not disclosed, and even Fink was unable to state that the lack of sheathing was the cause of the accident. There was no evidence that strong winds or thunderstorms occurred on the night the trusses fell, or that bad weather was predicted when the work day ended on Friday afternoon. Feld acknowledged that no sheathing was placed on the trusses. He attributed this to the fact that the construction crew stopped work at 3:30 on Friday afternoon, and did not return to the job site until the following Monday morning. He intended to install the sheathing the following Monday but by then it was too late. This was in accord with the standard enunciated by Fink that it was not unreasonable for a contractor to erect trusses one day, and to place sheathing on them the following work day. Feld also stated that he was well aware of the need for bracing and sheathing on trusses by virtue of his long experience in the construction business. Feld hinted, but did not prove, that McCall may have been responsible for the accident because of bad blood between the two. In any event, he doubted that wind would have caused the trusses in question to fall. Finally, Feld pointed out that, even though city inspectors were present, no one had come to him on Friday afternoon and said the trusses might collapse over the weekend without sheathing. Feld is a graduate of the University of Buenos Aires with a degree in architecture, and has been engaged in the construction/architecture business for twenty-two years. He presently is an instructor of construction at Miami-Dade Community College. There is no evidence he has ever been the subject of a disciplinary action by the Board on any other occasion.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the administrative complaint against George E. Feld be DISMISSED, with prejudice. DONE AND ORDERED this 9th day of April, 1987, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 9th day of April, 1987.
The Issue Whether the Petitioner violated Section 489.129(1)(a), Florida Statutes, by obtaining licensure by fraud or misrepresentation.
Findings Of Fact The Petitioner is the state agency responsible for licensure of certified general contractors. The Respondent Lawrence I. Paul, III, ("Respondent") is a licensed general contractor, holding State of Florida licenses GC C046485 and CG CA46485. On or about December 12, 1988, the Respondent submitted his application to the Department of Professional Regulation seeking leave to take the examination for certification as a general contractor. The Respondent subsequently took and passed the certified general contractors examination. In his application, the Respondent states that he is qualified to take the examination by virtue of having four years of proven experience as a workman or foreman of which at least one year was as a foreman. On the experience verification form submitted to the DPR as part of his application the Respondent states that from January, 1977 to January, 1980, he had been employed as a construction workman and that from January 1980 to January 1981 he had been employed as a construction foreman. The application includes an experience verification form executed by the Respondent and Paula Wisnik, a New York licensed architect. The form indicates that the Respondent had experience in steel erection form work, masonry walls, concrete slabs, footings, site work, excavation, rebar, trusses, and floor and ceiling joists, in single family residences, strip stores and high rise condominiums ten stories and higher. The experience verification form executed by Ms. Wisnik and the Respondent states as follows: I have read the CANDIDATE INFORMATION BOOKLET and reviewed the experience requirements and understand that any false information provided on this form may subject the person(s) signing below to disciplinary action and possible loss of license. I understand that DIRECT KNOWLEDGE does NOT mean that I am relying on a statement from the applicant that he has met the requirements. Ms. Wisnik has no direct knowledge of the Applicant's experience or of the applicant personally. Her knowledge was based upon information provided to her by Peter Wendt, another licensed architect. The Respondent originally sought to have Mr. Wendt complete the experience verification form. Mr. Wendt forwarded the form to Ms. Wisnik and she subsequently signed the document. Mr. Wendt has no direct personal knowledge of the Respondent's experience as set forth on the experience verification form. Mr. Wendt did not meet the Respondent until the Respondent's move to Florida, which occurred subsequent to the period of employment identified in the application. The greater weight of the evidence establishes that at the time the application was completed, the Respondent did not have the claimed four years of proven experience as construction worker or foreman. The Respondent's application states that first he became employed in the construction trade in January, 1977. In fact, he became employed full time in late December, 1978, with Paul Brothers, Inc., a family owned fire restoration business in Philadelphia. He worked primarily as a salesman and estimator with Paul Brothers until June, 1982, a period of approximately three and one-half years. Although there were periods when the Respondent worked on- site, it was not his primary responsibility throughout the employment period.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Professional Regulation, Construction Industry Licensing Board, enter a Final Order revoking the licensure of Lawrence I. Paul, III, as a certified general contractor, license numbers GC C046485 and CG CA46485. DONE and RECOMMENDED this 19th day of October, 1992, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 19th day of October, 1992. APPENDIX TO CASE NO. 92-0193 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 1. The proposed finding is modified to reflect that the Respondent did not hold the licenses prior to examination. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 5. Rejected, illogical and unsupported by evidence. 6-7. Rejected, not supported by credible and persuasive evidence. COPIES FURNISHED: Daniel O'Brien, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Robert G. Harris, Esq. Senior Attorney Dept. of Professional Regulation 2295 Victoria Avenue #263 Fort Myers, Florida 33901 Timothy J. Murty, Esq. 1633 Periwinkle Way, Suite A Sanibel, Florida 33957 Wellington H. Meffert, II Chief Construction Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0750
The Issue The issue for consideration was whether Respondent's license as a registered residential contractor should be disciplined because of the alleged misconduct outlined in the two Administrative Complaints filed in this case.
Findings Of Fact At all times pertinent to the Administrative Complaint filed herein, Respondent was a registered residential contractor in the State of Florida having been issued license number RR 0010134. Michael P. Freeman (a/k/a Dennis Freeman) was at no time material to the allegations considered herein a registered, certified, or otherwise licensed individual on record with CILB in Florida. In July 1983, Respondent and Dennis Freeman agreed to form a corporation for the purpose of home construction in Florida to be known as D & S Homebuilders, Inc. (D & S). The officers of this corporation were to be: President S. A. Stone (Respondent) Vice President Dennis Freeman Sec. Treas. Kristina Freeman The letter from Respondent to his attorney, drafted and written by Ms. Via, but signed by Respondent, requesting that the corporation be established, provided that Freeman was to be responsible for all materials, maintenance, labor, bills, etc., and Respondent was to be responsible only for the "quality of work." This letter served as an agreement between Freeman and Stone which was to be separate and apart from the Articles of Incorporation. Respondent was to receive a 7% commission on "all labor done or any type of construction by Mr. Freeman or D & S Homebuilders . . .", and through his Exchange Realty office, was to receive a 5% commission on all sales of property from the corporation or Mr. Freeman. D & S was organized as a corporation until November 21, 1984, when it was involuntarily dissolved for failure to file an annual report. Though the corporation was formed and a Corporate Charter issued, and this action was taken at the request of the Respondent, the corporation was formed in the attorney's name. Neither Respondent nor the Freemans ever officially took over as officers or directors. In short, the corporation while legally born, never breathed. At no time during its life and during the period relative to the allegations contained in the Administrative Complaint herein, did the Respondent qualify the corporation with the Florida Construction Industry Licensing Board. In addition to sending the letter to the attorney requesting that the corporation be established, Mr. Stone, on November 1, 1983, entered into a handwritten agreement with Mr. Freeman, also drawn by Ms. Via, which called for the use of his license: for Freeman to pay Respondent an additional $500.00 for the use of the license on each job over $5,0000.00 and for Freeman to "be solely responsible for anything that might arise against S. A. Stone's license." The first payment was to be made on December 1, 1983, and the agreement was to last through November 1, 1984. Stone never got any financial benefit from his relationship with Freeman. The agreement mentioned above was entered into at the behest of the then Chief of Police in Chiefland, Mr. Underwood, who requested that Respondent do anything he could to keep Freeman, who was then under investigation for other misconduct in the area. Mr. Underwood corroborates this. Pursuant to this request, when Respondent suggested an arrangement with Freeman, Freeman insisted that the agreement be in writing. Stone contends that at no time did he ever intend for the agreement to be permanent nor did he ever intend to make any money out of it. He says he knew it was illegal and he entered it solely because of the request from the police. He contends, and there is no evidence to contradict his contention, that at no time did he ever receive any money from Freeman as a result of this agreement nor from the formation of D & S. On July 26, 1983, Respondent executed an authorization for Dennis Freeman to act as his authorized agent to pull permits on his behalf at the Levy County Building Department. No mention was made on this form of D & S Homebuilders, Inc. The form was prepared by Mrs. Nancy Gilbert, the administrative assistant to Mr. Davis, the Levy County Building Official. At the time in question, Mr. Stone had introduced Mr. Freeman, his agent, to pull permits and Ms. Gilbert prepared the document to do what Mr. Stone wanted. The document is written in plural terms for repeated uses. Mr. Stone contends that his intention at the time was for it to be used for a single operation and that he failed to notice the erroneous pluralism, but other evidence of record disproves this contention. While it is not the policy of the Building Office to prepare these authorizations for contractors, it is a normal practice in Levy County and other counties throughout the State to allow agents to pull permits on the license of their prime contractor or employer as was done here. There is no evidence that the Bell job, which was for the most part accomplished by Respondent, was not satisfactory. Here, the work progressed smoothly and was properly completed, but based on his dissatisfaction with Freeman's performance during this job, he indicated to Freeman that there would be no further relationship between them. Nonetheless, the authorization was not revoked and Stone signed the permit application for the Reagan house as seen below. Without that authorization, the Building Office would not have allowed Freeman to obtain any of the building permits utilized for the other construction projects referenced in the Administrative Complaint. In July 1983, the Fumeas entered into a handwritten contract with Freeman, drafted by Kristina Freeman for the construction of a house for Bertha Reagan, Mrs. Fumea's mother. The contract had a price of $24,000.00. The Fumeas were to receive $10,000.00 for their land on which the house was to be built and Freeman was to receive a $14,000.00 loan from Mrs. Reagan for materials to build the house in question. When the house was sold, the initial $24,000.00 was to be returned to Mrs. Reagan. Any profit was to be divided 40% to Mrs. Reagan, 40% to the Freemans, and 20% to the Fumeas. The contract also called for the construction of a second house upon completion of the first. By check, dated June 9, 1983, Mrs. Reagan provided Freeman with the $14,000.00 to be secured by a second mortgage on the property executed by both Freemans in favor of Bertha Reagan. Thereafter, on August 24, 1983, Respondent, acting for D & S and S. A. Stone and Dennis Freeman, applied for a construction permit to build a residence for Mrs. Reagan as called for. In support of that application, Mr. Stone also furnished an affidavit to the effect that he was the qualifying contractor for residential building for D & S in Levy County. That same day, a building permit was issued to D & S, S. A. Stone, and Dennis Freeman for construction of the house in question. Somewhat later, in August or September, 1983, Freeman began construction of the house. During their negotiations, Freeman had indicated that Respondent was his associate. Nonetheless, it was Freeman who did all the work but in September or October 1983, he quit work on the project. At that point the foundation, the floor, and the 2 x 4 framing was in. No roof, no plumbing, and no electrical work had been installed. Mr. Fumea kept calling Freeman who repeatedly promised to finish work on the property by December 1983, but never did. The house was finally completed by another builder, David Allen, in 1984, for $21,000.00 additional. Allen was unable to complete the work started by Freeman and had to tear it down. Only the original footing was utilized. Neither Mr. or Mrs. Fumea ever dealt with or saw Stone, nor at any time during the period of difficulty with the construction was any attempt made to contact him. The reasoning was that even though Freeman had indicated Stone was the "S" in D & S before the work started, they did not believe Stone had anything to do with the contract. The Fumea's knowledge of Respondent's relationship with D & S was based solely on Freeman's representations. They never dealt with Stone, never saw him at the job, nor did they complain to him when the work was not completed even though Chiefland is a small town and it would be easy to contact him. Somewhat later, on September 7, 1983, Michael (Dennis) and Kristina Freeman entered into a contract with Herman R. and Verenia A. Matthews for the construction of a home in Levy County for a contract price of approximately $21,061.45 which included $17,061.45 which was then owed to the Matthews by Freeman. Freeman was to build them a house on a lot they owned across from their residence for an investment. The $17,641.00 was made up of several loans by the Matthews to Freeman. At this time, the Matthews did not know of D & S. The loans in question had been granted on the basis of a personal friendship between the Matthews and Freeman. At the time, the Matthews were in Michigan and the loans were not secured nor was interest involved. In addition to the $17,061.45 already advanced, the Matthews were to pay an additional $4,000.00 and any sums received from the cutting of timber on the property was to also be paid to Freeman. On or about October 12, 1983, Michael Freeman, acting for D & S, applied for a construction permit to build the Matthews' house. Attached to the application was an undated, unnotarized affidavit signed by Michael Freeman indicating he was qualifying contractor for D & S. Pursuant to the application, that same day, a building permit for the construction in question, was issued. Actually, construction had started without the benefit of a permit in early September, 1983. On September 9, 1983, the Matthews gave Freeman a $1,000.00 check with second and third payments of $1,000.00 each being paid on September 22, 1983. On October 17, 1983, Mrs. Matthews gave Freeman a check for $7,000.00 of which $1,000.00 was the remaining amount due on the $4,000.00 balance and $6,000.00 was an unsecured loan. This loan was repaid immediately with an exchange check, post-dated to October 24, 1983, in the amount of $6,000.00 drawn on the account of D & S by Michael Freeman. When the Matthews ultimately deposited the check, however, it was dishonored due to insufficient funds and the $6,000.00 loan was never repaid. The Matthews first found out about D & S Homebuilders, Inc. when the Freemans in late August or September, 1983, indicated they had incorporated. Mrs. Matthews had never met the Respondent nor been aware that Respondent might be involved in the construction. Freeman had represented himself as a licensed contractor and had told the Matthews that he had rented space in Respondent's office. At no time, however, did he say that Respondent was involved in the business. On November 14, 1983, Mrs. Matthews gave a check in the amount of $7,000.00 to Kristina Freeman, as a loan to D & S since she had been told that the company was haying trouble paying its bills. This loan was never repaid. By this time, the Matthews knew well that Freeman was in financial difficulties and did not have any money, so they did not ask for their loan back. In addition, on December 2, 1983, Mrs. Matthews gave Michael Freeman a check for $850.00 as a loan for payroll and on December 12, 1983, gave him a check for an additional $200.00 as a loan to assist him to buy property on which he was to build a house for Mr. Piperski. Neither of these latter two loans were ever repaid. The house to be built for the Matthews was never completed by Freeman or D & S. Work stopped sometime in November 1983. After Freeman went to jail in January 1984, Mrs. Matthews had it finished by someone else. The home was completed by this second contractor in April 1984 and the Matthews now live in it. In addition to the amounts set out above, the Matthews also paid an additional $7,034.00 for materials and $6,590.00 for labor to complete the property. On top of this, they also paid $1,200.00 to RocLen Refrigeration for a dishonored check issued by Kris Freeman on the D & S account in January 1984 for the heating and air conditioning system. They also paid off a claim of lien in the amount of approximately $3,600.00 filed by McCoy Building Supply Center for building materials ordered by D & S for the property; approximately $240.00 to Arrington Tru-Value Hardware for miscellaneous building materials ordered by D & S for the property; and approximately $875.00 to satisfy a claim of lien filed by Keller Building Products of Ocala, based on a contract with D & S for miscellaneous building materials on the property. Mrs. Matthews did not contact Respondent about the house because as far as she was concerned, he had nothing to do with it. Freeman had told her that D & S was owned by Freeman and his wife, most of the checks she gave to D & S were made out to Freeman and endorsed by either Freeman or his wife. All cash paid into the D & S account was done through dealings with one or the other of the Freemans, and she never dealt at all with Stone. On November 25, 1983, Michael Freeman, acting for D & S, submitted a proposal to Charles Treis for the construction of a home on property in Chiefland, Florida, for a price of $14,000.00 plus a travel trailer valued at $3,000.00. On the same day, Freeman and Treis entered a standard form agreement for the construction of this home by D & S for the amount stated, payments to be made of $5,000.00 as of signing $5,000.00 upon "rough in," and $4,000.00 plus the travel trailer upon completion of specified work. Construction was to begin on November 28, 1983, and was to be completed within 60 days. The contractor was to complete the house except for painting and staining, heating and air conditioning, floor covering, and appliances. Interior trim and doors were to be supplied by the contractor for, installation by the owner. That same day, Mr. Treis gave a check in the amount of $5,000.00 to Michael Freeman as the first payment on account in accordance with the terms of the contract. This contract was amended on January 10, 1984 when Freeman agreed to install floor covering, build cabinets for the kitchen, install interior trim and doors, and paint and stain. the interior and exterior. He was also to supply wood ceiling in the living room area and kitchen and in return therefor, was to be paid $2,000.00 plus a travel trailer. On December 20, 1983, Michael Freeman, on behalf of D & S, applied for a construction permit to build the Treis house and that same day a building permit was issued to D & S. On January 6, 1984, Mr. Treis gave two checks to Mr. Freeman, one for $1,000.00 and one for $6,000.00 additional draws against the contract price. In mid-January 1984, after the foundation was poured and the interior and exterior walls were partially erected, D & S ceased all construction activity because Freeman had been arrested and jailed in Marion County. At this point, the roof had not been installed nor were doors and windows in place. No one from D & S ever returned to complete his own construction. On January 16, 1984, Mr. Treis paid Suwannee Valley Precast Company in the amount of $540.00 for a 900 gallon septic tank ordered by Mike Freeman at D & S. This bill was supposed to have been paid out of the first draw Treis gave Freeman but was not. To avoid a lien being filed against his property, Mr. Treis paid off the amount in question. Mr. Treis also paid $710.33 to Sunshine Concrete and Building Supply for materials ordered by D & S and $189.00 to Lindsey Brothers Construction for labor for laying the foundation walls, also procured by Freeman for D & S. In addition, Mr. Treis paid Harcan Lumber the amount of $4,500.00 for bad checks that Michael Freeman had written in payment for materials to go into the Treis property. As a result of all these additional debts, Mr. Treis was required to sell the property to pay off the creditors not paid by D & S. Mr. Stone was not present at any time during the transactions described regarding Mr. Treis, and Freeman made no mention of him. In fact, Mr. Treis did not know anything about Mr. Stone. It was only after Mr. Treis found out that Freeman was in jail that he had any contact with Stone. Toward the end of January 1984, when he found out that the "S" in D & S was Respondent, Treis and a friend went to Stone's office to find out what Stone intended to do about the property. Stone indicated he was not responsible for anything that Freeman did and that he would not honor the contract that had been entered into with D & S. At some time prior to November 26, 1983, in response to an advertisement placed in the Chiefland newspaper by D & S, Howard Robinson contacted Freeman to obtain an estimate for the construction of a home in Levy County. During the contract negotiations, Freeman provided Robinson with a D & S business card which bears only Freeman's name. Robinson is a resident of Largo but owns property in Levy County. On November 26, 1983, Mr. and Mrs. Robinson, entered into a contract with D & S which was signed by Michael Freeman, for the construction of a home for the price of $16,900.00. Payments were to be made one-third upon acceptance of the contract, one-third upon "rough-in" inspection, and one a third upon completion. The owner was to install floor coverings, heating and air-conditioning and appliances, and the contractor was to provide a one year warranty on construction. Construction was to begin by November 29 and the house was to be completed within 60 days. Three days later on November 29, 1983, Mrs. Robinson issued a check in the amount of $5,633.33 to D & S Homebuilders, Inc. as the first payment for the construction of their home. This check was endorsed by Michael Freeman for D & S. It should be noted here that, as previously, the business card given to Mr. Robinson by Freeman at the time of their first meeting reflects only Freeman's name, not that of Respondent. After the contract was executed, Mr. Robinson returned to Largo and did not come back to Levy County until January 1984. On December 22, 1983, Mr. Freeman came to Largo to see the Robinsons for purpose of securing the second draw. At that time, he indicated the foundation and slab had been poured and that walls erected and the roof trusses were to be installed the following day. Based on these representations, Mrs. Robinson issued another check for $5,633.33 to Freeman for the second draw under the contract even though the second draw was not due until after erection of the roof trusses. As inducement to pay prior to the time called for in the contract, Freeman agreed to amend the contract to provide air conditioning and heating, furnish the floor covering, and build a 10 x 12 foot pump house. After paying these additional sums, Mr. Robinson found out that construction on his house had not been started even though Freeman had indicated that it had. Therefore, in January 1984, Mr. Robinson made his first trip back to Chiefland since the signing of the contract to visit the construction site and discovered that the only work accomplished had been the digging of a footer. On or about January 10, 1984, Freeman, on behalf of D & S, applied for a building permit to construct the property in question and this permit was issued that same day. The only construction accomplished on Robinson's property was an oversized footer, approximately three feet wide and four or five feet deep, out of which the steel company had already taken the steel originally installed. Even after this however, Mr. Robinson did not contact Respondent because his dealings had always been with Freeman and he had never seen nor talked to Stone. Neither Stone or any of his agents or employees has ever contacted Mr. Robinson concerning either completing the construction or repaying the money paid under the contract. The only thing Mr. Robinson has ever been reimbursed with was a $300.00 payment from the County when Mr. Freeman was on a work- release program while in jail. In November 1983, Mitchell Piperski saw an ad in the paper for a home built by Mr. Freeman. This ad was in the name of D & S Builders and Mr. Piperski contacted Freeman at the phone number in the ad. Freeman thereafter came to Piperski's house and they discussed the possible construction of a home for the Piperskis. As a result of these discussions, Mr. Piperski, on December 19, 1983, entered into a contract with D & S signed by Michael and Kris Freeman for the construction of a home in Chiefland for a contract price of $16,500.00. Since Mr. Piperski did not have a lot on which to build the house, Freeman took him a see a lot which he said he, Freeman, owned. The lot in question was a five acre corner and when Piperski said he did not need so much land, Freeman said he would keep one half. Since, however, the two parties could not agree on the property, Piperski purchased a lot from someone else. A short time thereafter, the Freemans came to the Piperskis and indicated they would be in financial difficulty if the Piperskis did not buy their property and as a result, the Piperskis agreed to allow Freeman to build the house on the property which, by warranty deed on December 19, 1983, Freeman conveyed to the Piperskis. At closing Freeman was paid $5,000.00 called for upon acceptance of the contract, and $12,500.00 for the lot. During the negotiations, Freeman had told Mr. Piperski that there were three people involved in D & S. These three were Freeman, his wife, Kris, and someone else, undisclosed, who was in the real estate business. Mr. Piperski had known Stone from the lodge to which they both belonged but he had no idea that Stone was the "S" in D & S. No work on the construction of the Piperski house was ever accomplished. When Piperski called the building department, he was told that Freeman could no longer build homes because Mr. Stone had pulled the authorization for him to use Stone's license. This disclosure was made to Mr. Piperski on January 8, 1984. Prior to that date and all through the negotiations, he had no idea that Stone was involved in the transaction. That afternoon, Mr. Piperski went to a lawyer about the situation and the lawyer called Stone. When Piperski asked Stone for his $5,000.00 back, Mr. Stone said he would allow Freeman to use his license to complete the house. Notwithstanding this promise by Stone, Freeman never made any effort to secure a permit to begin construction. Mr; Piperski did not contact Stone again after that one instance because he felt Stone knew what the situation was and what had to be done. Stone, on the other hand, did not contact Piperski either, nor did Freeman, and at no time was Piperski reimbursed the $5,000.00 deposit he made under the terms of the contract. On January 9, 1984, Stone wrote to Mr. A1 Simmons, the attorney who formed the corporation known as D & S Homebuilders, Inc. In this letter Stone recalled that Simmons had formed the corporation in which Freeman was President, his wife was Secretary/Treasurer, and he, Respondent, was Vice-President. Stone also cited that there was a communications gap between Freeman and himself and as a result, asked how he could be removed as an officer of the corporation. Stone indicated that he was "going to notify the County that I am no longer going to authorize the use of my license as D & S Homes." At the bottom of the letter, he states that it constitutes official notification to Freeman and to Mr. Davis, the building official, that his license is no longer to be used under D & S Homes. By this letter, Mr. Stone recognized that as of January 9, 1984, he was still a part of D & S Homes and was aware of the use of his license by D & S under the authorization given earlier in the year. It has already been found that in November 1983, Stone and Freeman entered into an agreement for Freeman to pay Stone for the use of his license by D & S Homes. It is also noted, however, that on January 5, 1984, approximately two months later, Mr. Stone wrote to Freeman indicating his dissatisfaction with the way Freeman was managing the company and because of Freeman's failure to communicate with Stone in response to inquiry. In this letter, he makes it very clear to Freeman that if Freeman does not keep in touch, he will terminate the relationship that he has with D & S. By so doing, Stone puts to rest any question that he was still a part of D & S and agreed to Freeman's using his license for construction by that firm as late as January 5, 1984 - well after the contracts described above were entered into by Freeman. D & S had a checking account with the Bank of Florida in Chiefland on which both Respondent and Freeman were authorized to write checks. In October 1983, Mr. Freeman drafted a check to Exchange Realty, which is owned by Respondent, in the amount of $500.00 which bears the notion, "commission on burnout." This check was deposited to the account of Exchange Realty. The handwriting on the endorsement appears to be that of Penny Via as does the name of the payee. On October 24, 1983, Mr. Stone wrote a check, apparently on a counter check payable to Exchange Realty in the amount of $500.00. Again, this check is endorsed for deposit to the account of Exchange Realty and not only the endorsement but also the check itself, with the exception of the signature, appears to be drawn in the handwriting of Ms. Via. While offered to show Respondent's receipt of benefit from his association with D & S, this evidence does not do so. Respondent knew of this account, nonetheless, and agreed to be a signatory on it so that he could work on the account when Freeman was out of town. After a short period, however, he took his name off the account though he cannot remember when that was. Respondent's contention that he had little if any connection with the actual construction work accomplished by Freeman under the D & S banner is supported by the testimony of Earl Jones, a plumber, who did the plumbing work on some of the houses constructed by Freeman during the Summer of 1983. Jones was hired by Freeman who, at the time, advised him that he was a general contractor and owned the business. Freeman admitted that he was a friend of the Respondent but during the whole period of his association with D & S, Jones never dealt with Stone and he feels that his employer was Freeman, not Stone. During the period of their association, Jones had no contact at all with Respondent. All bills for services rendered were sent directly to Freeman. Andrew Sension, an electrical contractor, met Freeman when Freeman solicited bids for the drawing of house plans. Thereafter, Sension drew five house plans for Freeman through D & S and also did some electrical work. At that time, Freeman indicated that he and his wife owned D & S and throughout their relationship, Sension assumed that Freeman was licensed. He has, however, worked for Respondent but never any project where Freeman and Respondent were involved together. To his knowledge, Respondent had a good reputation in the County as a contractor. Respondent has lived in Chiefland for approximately 15 years and is licensed as a contractor in both Florida and Virginia where he operated as a general contractor for 10 or 11 years before coming to Florida. In addition, he worked as a contractor in Ft. Lauderdale for 5 or 6 years and in all his construction history, never had any disciplinary action taken against him. Stone met Freeman some time in the middle of 1983 when Freeman came to his real estate office to buy a lot to build on. Later on, Freeman came back and said his brother an attorney, had suggested he contact Stone to form a corporation to build homes. At the time, Freeman, whose real name was Michael, was using the name Dennis Freeman, actually the name of his brother. When Stone checked Freeman's reputation out with the credit bureau, he checked the name, Dennis Freeman, and found that there was no adverse comments recorded. He did not know at the time that he was checking the record of a different individual. Nonetheless, satisfied with the results of his inquiry, and willing to go into the proposition suggested by Freeman, the parties made an appointment with attorney Simmons to form a corporation. Stone contends, and Simmons concurs, that though the corporation was formed, it never became operative because while formed in the name of Simmons for incorporation purposes, the transfer of authority to the true officers, Stone, Freeman, and Freeman's wife, was never accomplished. Were this all there were to it, there would be little difficulty in accepting Stone's exculpatory rationale. The fact remains, however, that his conduct and communications with his attorney in January 1984, several months after the corporation was formed, clearly reveals that though the official transfer of names never took place, he was well aware that D & S was active, that Freeman was building homes under the D & S banner, and that Freeman was using his, Stone's license, to do so with Stone's permission. The letter of January 9, 1984, to the lawyer clearly defeats Stone's contention that he felt the authorization for Freeman to pull permits was a one time proposition. If that were the case, he would not have indicated in these later communications that he was aware of what was going on and wished it stopped as of that time. There is no doubt that Respondent never met Mrs. Reagan, the Fumeas, the Matthews, the Robinsons, Mr. Treis, or the Piperskis in the capacity of a contractor. None of the people ever indicated that they dealt with Stone. Respondent admits that his contractor's license was withdrawn by the County but contends that this action was taken at a meeting to which he was not invited and did not attend. He did pot know of the action taken, he claims, until he read it in the newspaper. There is no evidence to contradict this. He firmly believes that his problem with the County is the direct result of the fact that he failed to contribute Mr. Davis' church when asked-to do so at the time he executed the general authorization for Freeman to use his license. Whether Mr. Davis is the complainant and the cause of the disciplinary action being taken here is immaterial however, and in any case, there is no evidence to support Respondent's contention. As for Freeman, on January 30, 1984, he entered a guilty plea to one count of a third degree felony by failing to redeliver and one count of a third degree felony by forgery and committing grand theft. Thereafter, he was found guilty of the charges and placed on probation for two years.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is, therefore RECOMMENDED that the Administrative Complaint in DOAH Case No. 85-1468 be dismissed. It is further recommended that based on the violations established in DOAH Case No. 85-0690, Respondent's license as a registered general contractor be suspended for six months and that thereafter Respondent be placed on probation for a period of three years. RECOMMENDED in Tallahassee, Florida this 16th day of January, 1986. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of January, 1986. COPIES FURNISHED W. Douglas Beason, Esquire 130 N. Monroe Street Tallahassee, Florida 32301 Jeffrey J. Fitos, Esquire 1 East Silver Springs Blvd. Ocala, Florida 32670 James Linnan Executive Director Construction Industry Licensing Board P. O. Box 2, Jacksonville, Florida Fred Roche Secretary Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.57(2), Florida Statutes, on all Proposed Findings of Fact submitted by parties to this case. RULINGS ON PETITIONER'S SUBMISSION 1. Adopted in Findings of Fact 1 and 3. 2 · Adopted in Finding of Fact 1. Adopted in substance in Finding of Fact 7. Sentence 1 through 3 are irrelevant. Sentence 4 is accepted as to it relates to the letter being prepared by the building department but rejected as to this being done at Respondent's request. Adopted in Finding of Fact 2. Adopted in Finding of Fact 2. Adopted in Finding of Fact 2. Adopted in Finding of Fact 2. Adopted in Finding of Fact 2. 1O. Adopted in Finding of Fact 4. 11. Adopted in Finding of Fact 4. 12. Adopted in Finding of Fact 4. 13. Adopted in Finding of Fact 4. 14. Adopted in Finding of Fact 2. 15. Adopted in Finding of Fact 10 16. Adopted in Finding of Fact 10. Adopted in Finding of Fact 12, except for the first sentence which is irrelevant. Adopted in Finding of Fact 11. Adopted in Finding of Fact 12. Adopted in Finding of Fact 12, except for the last sentence which implied Freeman signed as affiant when in fact he signed as a witness. Adopted in Finding of Fact 12. Adopted in Finding of Fact 15. Sentence 1 rejected as contra to the evidence. Sentence 2 adopted in Finding of Fact 13. Adopted in Finding of Fact 14. Rejected as irrelevant and misleading. There is no indication in the record that Respondent knew of this contract or that any demand for reimbursement was made upon him. Adopted in Finding of Fact 17. Adopted in Finding of Fact 17 and 22, except for sentences 3 & 4, which are rejected as irrelevant. Rejected as irrelevant and inaccurate. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Adopted in Finding of Fact 19. Adopted in Finding of Fact 19. Adopted in Finding of Fact 20. Adopted in Finding of Fact 20. Adopted in Finding of Fact 24. Adopted in Finding of Fact 24. Adopted in Finding of Fact 24. Adopted in Finding of Fact 24. Adopted in Finding of Fact 24. Rejected as irrelevant. Adopted in Finding of Fact 24. Rejected as irrelevant. Adopted in Finding of Fact 24. Rejected as irrelevant. Adopted in Finding of Fact 24. Adopted in Finding of Fact 26. Adopted in Finding of Fact 26. Adopted in Finding of Fact 26. Adopted in Finding of Fact 28. Adopted in Finding of Fact 28. Adopted in Finding of Fact 29. Adopted in Finding of Fact 30. Adopted in Finding of Fact 30. Adopted in Finding of Fact 30. Adopted in Finding of Fact 30. Adopted in Finding of Fact 31. Adopted in Finding of Fact 32. Adopted in Finding of Fact 32. Adopted in Finding of Fact 35, except that November 6 in the proposal should be November 26. Adopted in Finding of Fact 35. Adopted in Finding of Fact 35. Adopted in Finding of Fact 34. Adopted in Finding of Fact 34 and 35. Adopted in Finding of Fact 36. Adopted in Finding of Fact 36. Adopted in Finding of Fact 36. Adopted in Finding of Fact 37. Adopted in Finding of Fact 38. Adopted in Finding of Fact 39. Adopted in Finding of Fact 41. Accepted but not adopted as irrelevant. Adopted in Finding of Fact 41. Adopted in Finding of Fact 43. Adopted n Finding of Fact 45 and 46, except that it was the building office that advised Piperski that Freeman did not have a permit, not Respondent. Adopted in Finding of Fact 46. Adopted in Finding of Fact 62. Adopted in Finding of Fact 62. RULINGS ON RESPONDENT'S SUBMISSION Adopted in Finding of Fact 1. Sentence 1 through 3 adopted in Finding of Fact 7. Sentence 4 rejected as contra to the weight of the evidence. Sentence 5 and 6 adopted in Finding of Fact 8. Sentences 1 and 2 adopted in Finding of Fact 9. Sentences 3 through 5 rejected as contra to the weight of the evidence. Sentences 1 and 2 adopted in Findings of Fact 26- 29. Sentence 3 rejected as not being a Finding of Fact but a Conclusion of Law. Sentence 1 rejected as contra to the evidence. Mrs. Reagan did not sign the contract. Mrs. Fumea did. Sentence 2 adopted in Finding of Fact 15. Sentence 3 adopted in Finding of Fact 12. Sentence 4 adopted in general. Sentences 1 and 2 adopted in Finding of Fact 17, 35 and 41. Sentence 3 rejected by contra to the weight of the evidence. Sentence 4 is rejected as irrelevant. Sentence 5 is ejected as contra to the weight of the evidence in that he failed to show the proper concern for the use of his licenses. Rejected as irrelevant to the issues herein. 8 and 9. Adopted in Finding of Fact 4. Adopted in Finding of Fact 62. Adopted as a general fact. Adopted in Finding of Fact 61. Adopted in Findings of Fact 52-55.
