The Issue Whether Respondent performed an act which assisted an entity in engaging in the prohibited uncertified and unregistered practice of contracting or whether he abandoned a construction project in which he was engaged or under contract as a contractor, in violation of section 489.129(1), Florida Statutes, as set forth in the Administrative Complaint, and, if so, what is the appropriate sanction.
Findings Of Fact The Board is the state agency charged with regulating the practice of construction contracting pursuant to section 20.165 and chapters 455 and 489, Florida Statutes. At all times material to this proceeding, Mr. Requejo was licensed as a certified general contractor in the state of Florida, having been issued license number CGC 1504266. Mr. Requejo’s address of record is 15941 Southwest 53rd Court, Southwest Ranches, Florida 33331. At all times material to this proceeding, Mr. Requejo was the primary qualifying agent of Recol, Inc. Mr. Andre Chestnut was formerly a registered contractor in the state of Florida. He testified credibly that he used to have nine licenses. At all times relevant to this case, he held no state licensure as a contractor. Consistent with Department records, he testified that his license had been revoked sometime around August 2003. USA Screens was incorporated in December 2011 to perform “any and all lawful business,” with Mr. Chestnut as the incorporator, registered agent, and president. Records of the Department contain no evidence that USA Screens, Inc., has ever been qualified by a licensed contractor or had an active license as a construction business. Ms. Carmen Goehrig owned real property at 6300 Pinehurst Circle East in Tamarac, Florida. She wished to install a screen enclosure on the property. On January 21, 2012, she entered into a construction contract with USA Screens, Inc., signed by Mr. Chestnut. This constituted the practice of contracting by Mr. Chestnut and USA Screens, Inc. Mr. Chestnut testified that he had been working in conjunction with Mr. Requejo on various projects for the past nine years. He credibly testified that he received the template for the contract he entered into with Ms. Goehrig from Mr. Requejo. That contract template contains the full name and address for both Recol, Inc., and USA Screens, Inc., at the top of the contract in large type, but shows only one contractor’s license number, that of Mr. Requejo, under the address for Recol, Inc. No contractor’s license number is shown under the USA Screens, Inc., address. Having worked with Mr. Chestnut for nine years, and having prepared the template contract that they used for common projects, Mr. Requejo had reasonable grounds to know that USA Screens, Inc., was uncertified and unregistered, as suggested by the contract itself. The contract mentioned that it was contingent upon both homeowner association and government approvals, and included a handwritten provision that there would be “no material purchases until association approval.” Ms. Goehrig signed two checks to USA Screens, Inc.: the first in the amount of $500.00 for the application; the other in the amount of $3,000.00 for materials. Both checks were cashed on January 24, 2012. On February 14, 2012, Mr. Requejo, d/b/a Recol, Inc., timely filed building permit application 12-636 for construction of the screen enclosure at 6300 Pinehurst Circle East with the city of Tamarac, using his general contractor’s license number. Recol, Inc., is listed as the general contractor in the city’s records. In filing for a permit from the city of Tamarac for the construction, Mr. Requejo assisted USA Screens, Inc., and Mr. Chestnut in engaging in the prohibited uncertified and unregistered practice of contracting. Mr. Claudio Grande is the chief building official for the city of Tamarac. He oversees permitting and is the custodian of records. He testified that permit 12-636 was denied due to zoning restrictions and structural issues. Mr. Chestnut testified that he made numerous calls trying to get the permit approved. He testified that the problem was that the screen enclosure encroached on a utility easement. As Mr. Goehrig testified: They applied for the permit. He showed us the drawings, Andre, and to my knowledge, submitted the permit application. And then we noticed that the second check was cashed, so we started calling him about that. And all he would say is, “Don’t worry, don’t worry, don’t worry.” And then the permit was denied and then we went back and tried to do something to get it approved and it was denied. And then zoning finally denied it again. So three times, we tried to fix it to make it work. And we finally, you know, the zoning department finally came down and said, “No, end of story, no good.” So we went to him and said, “Okay, we can’t get the permit, please just give us our money back and we’ll go on our way.” And of course, his answer was, “No, you’re not getting any money back, I spent your money, goodbye.” After the permit was finally denied and Mr. Chestnut refused to return their money, the Goehrigs contacted Mr. Requejo to get their money back, again to no avail. It was not shown that the project was terminated without just cause or that it was terminated without proper notification to Ms. Goehrig. It is clear from the filed complaint, as well as the testimony that Ms. Goehrig was aware that the project could not be permitted, and sought a return of the money that had been paid. “The permit was denied and [Chestnut] refuses to refund our deposit.” The Department failed to prove that Mr. Requejo abandoned a construction project in which he was engaged or under contract as a contractor. Prior Discipline On February 13, 2013, a Final Order Adopting Settlement and Vacating Prior Orders was filed by the Board. The Order incorporated a settlement agreement imposing discipline for allegations in several earlier Administrative Complaints. The October 2012 settlement agreement required the payment of fines, investigatory costs, and restitution to six individuals, as well as continuing education and a six-year period of probation. The Order constitutes prior discipline within the meaning of the disciplinary guidelines.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board enter a final order finding Mr. Antonio L. Requejo in violation of section 489.129(1)(d), Florida Statutes; suspending his contractor’s license for a period of six months, followed by a period of probation deemed advisable by the Board; imposing a fine of $7,000.00; and directing that he make restitution in the amount of $3,500.00 to Carmen Goehrig. DONE AND ENTERED this 17th day of March, 2016, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 2016. COPIES FURNISHED: Sorin Ardelean, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 (eServed) Antonio L. Requejo 11826 B. Miramar Parkway Miramar, Florida 33025 Daniel Biggins, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 (eServed) William N. Spicola, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 (eServed)
Findings Of Fact Respondent, Susan Shilling Howell, was first licensed as a registered building contractor in Florida in October, 1981. License Number RB 0040698 was issued to her, qualifying M. B. Howell Homes, located at 2601 Dale Avenue, Panama City Beach, Florida, 32404. This license expired on June 30, 1983 and no address changes were made to the records pertinent to it during period of activity, nor has it been renewed since it expired. On March 23, 1983, William Carrier and J. Paula Carrier, his wife, entered into a contract with Respondent and her husband, M. B. Howell, to purchase a house, constructed by their company, located in Bay County, Florida. Closing was scheduled for some time in April, 1983, but because the house was not completed sufficiently to satisfy the Carriers, the closing was delayed and they did not move in until sometime in June, 1983. Even at that point, there remained a substantial list of discrepancies which required correction by the builder. These included such things as: a badly poured driveway - this was replaced by Respondent once, but when found to be still unsatisfactory, Respondent refused to correct. poor interior painting, poor exterior painting, and a damaged tub in the bathroom. Mr. Carrier contacted Respondent regarding these discrepancies right after he moved in. Both Respondent and her husband, the actual builder, came to the house and looked at the items and while a few of the minor discrepancies were corrected, the major ones were not. In Carrier's estimation, 80 percent of the problems were not fixed. Though he asked Respondent to come back and fix the items several times, with the last request by letter dated October 18, 1983, no one did and on November 14, 1983, he asked another contractor to come in and make the necessary repairs. During all this time, Respondent and M. B. Howell Homes were using the address, 126 Rose Coral Drive, (their home), as their place of business. On January 12, 1984, Respondent went to the Bay County Building Office and purchased a building permit in the name of M. B. Howell Homes, listing herself as contractor and her expired license on the application form along with the address, 126 Rose Coral Drive, as the business address. Permit Number 9472 was issued. This entire transaction was observed by Elizabeth O'Connor, a permit clerk, who recognized Respondent as the applicant. Thereafter, on March 15, 1984, Respondent again applied for a building permit for M. B. Howell Homes, at the same office, this time dealing directly with Ms. O'Connor. Again she listed her expired license number and the above address on the application form and was issued permit 9733. On both occasions, her license had expired and had not been renewed and she made no mention of the fact that the license was delinquent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that, the registration of Respondent, SUSAN SHILLING HOWELL, as a registered building contractor in Florida be revoked. RECOMMENDED in Tallahassee, Florida, this 8th day of March, 1985. ARNOLD H. POLLOCK 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 8th day of March, 1985. COPIES FURNISHED: W. Douglas Beason, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Susan Shilling Howell 126 Rose Coral Drive Panama City Beach, Florida 32407
Findings Of Fact At all times relevant hereto, Respondent, Roger S. Williams, held registered building contractor license number RB0026339 issued by Petitioner, Department of Professional Regulation, Construction Industry Licensing board, authorizing him to perform contracting under his individual name. Respondent, Frederick S. Schreiner, held certified general contractor's license numbers CG C004811 and CG CA04811 also issued by Petitioner authorizing him to perform contracting under his individual name and under Cape Development Corporation. Williams served as president of Architectural Builders, Inc. (ABI), a development firm located in Palm Bay, Florida. Schreiner was engaged in the contracting business generally in the Brevard County, Florida area. He has done construction work for ABI and Williams for the past eight or nine years. ABI held no licenses from either the state or local governments. On October 31, 1979, ABI entered into a construction contract with Jack and Stella Oleksy to construct a home at 842 South Becker Street, Palm Bay, Florida. The contract was approved by R. S. Williams as president of ABI. At a later undisclosed date, Williams attempted to pull a City of Palm Bay building permit on behalf of ABI. Whether the City gave formal or informal approval at that point is not clear; in any event the construction of the home began shortly thereafter. Several weeks later the City's chief building official told Williams that because he did not have local competency with the City, he could not pull a permit for a job. Williams was also advised that a recent change in state law required ABI to qualify to do business if ABI intended to construct homes within the City. When told that Frederick Schreiner would be constructing the home for ABI and that Schreiner held an appropriate license, the City official told Williams to have a construction contract executed between ABI and Schreiner to build the home. Thereafter, Schreiner pulled a permit for the job and posted it on the building site. He also gave the City a contract executed by he and ABI and which was dated November 29, 1979. During the course of the construction, Schreiner visited the building site approximately six to eight times. The work was done entirely by subcontractors who had been used on other construction jobs by Williams and Schreiner. The subcontractors were paid by ABI but worked under the supervision of Schreiner. When the job was completed Williams signed the final payment affidavit on which it was indicated that Williams was the contractor on the job. Oleksy was on the site daily to inspect the work. He complained periodically about various aspects of the job to Roger Williams. His main complaint concerned the trusses on the roof which he contended were out of alignment causing a wavy and uneven roof line. After the house was essentially completed, Oleksy lodged a complaint with Williams concerning the workmanship on the roof. Williams sent a carpenter to visit the premises who found some "variations" and worked for approximately three hours to correct the problem. He was then told by Oleksy it looked okay. Within the next few days, Oleksy again complained to Williams that the roof was wavy. Williams then sent out a roofing crew to attempt to correct the problem. After they completed their work, Williams received no further indication that the owner was unhappy. Williams later had a local relator familiar with the subdivision and an experienced carpenter who had framed more than 150 homes to view the roof. Both concluded the roof was of good workmanship and of similar quality to other homes in the neighborhood. Oleksy later filed a complaint with the City of Palm Bay concerning his roof. The City sent its chief building official to inspect the home. He described the roof as being of "poor workmanship". The same conclusion was reached by the city building inspector who also inspected the property. Because of this, the City made the notation "Hold problem roof" in its file and did not issue a certificate of occupancy to Oleksy. However, the City did not construe the roof to constitute a violation of the building code. Respondents asserted that a 1979 change in the law as to the qualification of agents caused doubt and confusion as to what was required by ABI and Williams. They also point out that if indeed a violation occurred, it was not intentional. Rather, Respondents simply desired to comply with all applicable statutes and regulations so that their construction businesses could continue to operate in a lawful manner. Other than the alleged violations herein, Respondents were not shown to have been subject to any prior disciplinary proceedings.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent, Roger S. Williams, be found guilty as charged in Count I, and be given a public reprimand. the remainder of the charges should be dismissed. It is further RECOMMENDED that Respondent, Frederick L. Schreiner, be found guilty as charged of all allegations except willfully and deliberately violating a state law, and be given a public reprimand. DONE and ENTERED this 29th day of June, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1982.
Findings Of Fact At all times pertinent to the allegations contained in the Administrative Complaint filed herein, Petitioner was licensed as a general contractor in Florida, holding license number CG CO20660, under which license he had qualified Custom Retail Contractors, Inc., and the Petitioner, Construction Industry Licensing Board, (Board), was the state agency charged with regulating the practice of contracting. On February 12, 1986, the Board entered a Final Order in its case number 0058164 in which it suspended Respondent's license to practice contracting for five years. This action was based on a finding that Respondent had violated several sections of the Standard Building Code in a contract to build several commercial buildings in Largo, Florida, and also had exhibited gross negligence or incompetency in several aspects of the job. Respondent was first made aware of the action of the Board in late March or early April, 1986 when his attorney, Mr. Gordon, told him he had received a copy of the Final Order. At that point, Respondent did not know there had been a hearing on his case, though he knew an action had been filed. Correspondence extracted from the files of DPR relating to Respondent, indicates that between March 11, 1986 and June 25, 1986, several phone calls and letters were exchanged between DPR legal personnel and Respondent's counsel regarding whether Respondent had been given notice that the initial Administrative Complaint against him had been filed. The complaint had been served by an investigator with DPR on Mr. Gordon who declined to accept service since he was counsel for Respondent's corporation and not Respondent, individually. The evidence further indicates that subsequent pleadings in that case were misdirected and misaddressed due to faulty addresses used by the Department which included erroneous street addresses and erroneous ZIP codes. The upshot of all this was that Respondent failed to submit an Election of Rights regarding the initial Administrative Complaint, and, after numerous attempts at communication by DPR, which included the posting of a notice of the Board hearing in the Clearwater, Florida newspaper, the Board ultimately held Respondent in default and entered the Final Order suspending his license as described above. In the Spring of 1986, however, while the communication and correspondence between DPR and Mr. Gordon was going on, Respondent was led to believe, he contends, that the Final Order was not dispositive of his status, that the status of his license was still undecided, and that he could continue to practice his profession. His reliance on advice of counsel was misplaced and works to his detriment here as it does not excuse his improprieties. Consistent with that understanding, on May 1, 1986, Respondent entered into a contract with Mr. Clarence P. Foster, owner of Clarence's, a lounge, restaurant and package store located in Clearwater, Florida, to remodel a patio outside the facility. Work was to include pouring a concrete slab in the drive- thru, constructing a block wall around the patio, installing lattice panels on top of the block wall, and placing planter boxes on two of the walls. The total contract price was $4,730.00 and on May 15, 1986, the manager of Clarence's issued a check in the amount of $1,730.00 payable to Tom Morgan, Respondent's associate. At the time of Respondent's negotiations with Mr. Foster, Mr. Foster indicated he was utilizing a contractor for the complete remodeling of his facility who did not want to do the patio work, and Respondent agreed to do it. After their contract was signed, Respondent dealt with Mr. Foster's manager who showed him the plans for the entire remodeling which, according to Respondent, included the patio. They were stamped by the contractor and had a permit number on them. Respondent contends he asked if that indicated permit included the entire project and claims he was told it did. Respondent also claims he advised Foster's manager that there was some problem with his contractor's license but was assured that the master permit already issued would cover any work done by him under the terms of the individual contract. After receiving the down payment from the manager, Respondent purchased the required materials, paying cash therefore, and started work. Respondent relates that at the very beginning, a violation was written by building inspectors for the failure of the electrical contractor to procure a permit for his portion of the work. When this was done, the contractor immediately got the required permit after the fact and continued with his work. This concerned the Respondent, however, and he requested the manager to bring the existing permit for the remodeling around to the area where Respondent was working where he posted it and covered it with cellophane. When the inspector subsequently came by to check Respondent's work, he asked where the permit for that portion of the construction was and Respondent pointed to the master permit. The inspector then indicated that that permit was only for exterior siding and when Respondent protested that decision, called his office and verified that fact. Upon being advised of this development, Respondent then took the plans he had been furnished and a copy of the permit to the building office and asked the clerk on duty what he had to do. According to Respondent, he was advised that he needed to get more plans prepared with a certificate that the work already done had been done to code. Respondent relates that in response to these instructions, he procured an architect to come and look at the job as it then stood. The architect reportedly thereafter drew up plans and certified the quality of the work already accomplished by Respondent and Respondent allegedly took this information to the building department where, on June 25, 1986, he applied for a building permit to do the work. At that time, according to Respondent, he advised the clerk he had a problem with his license and that all he wanted was a supplemental permit to finish the job. Approximately two weeks later, when passing the County building, Respondent stopped in at the building department office to check on the status of his permit. It was at this point that he first discussed the matter with Mr. Palmer, the plans examiner, who told him that his license had been suspended and that he could not receive a permit to do the work requested. Respondent returned to Mr. Foster and explained the situation to him. Mr. Foster turned the matter over to his manager who arranged for someone else to get the permit and complete the job. Respondent contends he was not trying to trick anyone or to contract without a license. He claims that at the time he entered into the agreement with Mr. Foster, he was unsure of the status of his license and he thought he had made that clear to everyone, including Mr. Foster and the people at the building office. Respondent contends that in his dealings with Foster he was attempting to deal as a subcontractor and not as a general contractor. The fact is, however, that the contract he entered into was a separate contract with Mr. Foster and failed to indicate any reference to subcontractor status. The agreement called for Respondent to be paid directly by Foster and not by the general contractor and his claim is, therefore, not believed. Respondent's protestations in this regard are without merit. Further, his story regarding the permit status is equally as unbelievable. As a qualified contractor, Respondent knew, or should have checked on, the limits of the permit issued and whether it would cover the work he was to do. Reliance on the representations of the non-contractor manager of Mr. Foster's facility as to the status of the permit was unreasonable and constituted gross negligence. Consequently, he was thereafter operating in violation of the local law which required a permit for this work. As a result of the ongoing negotiations between Respondent's counsel and counsel for the Board, on July 10, 1986, after the contract between Mr. Foster and Respondent had been entered into, Respondent and the Board entered into a Settlement Stipulation which called for amendment of the Final Order entered in the prior case and which provided for the payment of a fine of $1,000.00 within 30 days with the further stipulation that when the fine was paid, the previously imposed five year suspension would be set aside. In the event the fine was not paid, however, then the Respondent's license was to be relinquished to the Board. The Amended Final Order was sent by certified mail to the Respondent but was unclaimed because the address used by the Department was, again, incorrect. It must also be noted, however, that at the time the Board agreed to the settlement stipulation, it had available to it the report of investigation relating to the current Administrative Complaint. The Board either failed to consider it or chose to ignore it when it agreed upon a settlement to the former Administrative Complaint. It is also noted that the Board was aware of the difficulties involving service of process as early as August, 1986. At that time, Respondent received a certified letter from the Board Attorney indicating that final action on his license would be taken by the Board at its September, 1986 meeting in Ft. Lauderdale. Respondent attended that meeting where, after discussion, counsel for the Board convinced the Board to reopen the case due to the questions involving proper service of its former actions. A year later, in July, 1987, Respondent was advised that the reopened case would again be considered at the Board's meeting in Tampa, and at the 1987 meeting of the Board, it entered its Amended Final Order. Though regrettable, these factors are not controlling and do not affect this current action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that the Respondent's license as a general contractor in Florida be suspended for two years. RECOMMENDED this 11th day of July, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 11th day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1999 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. For the Petitioner: 1 - 2. Accepted and incorporated herein. 3. Accepted and incorporated herein. 4 - 5. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. 10 - 13. Accepted and incorporated herein. Accepted that Palmer refused to issue the permit because Respondent's license had been suspended. Accepted and incorporated herein. Rejected that Respondent willfully violated local building code. Evidence shows more of gross negligence than willfulness. Accepted. For the Respondent: No submittal. COPIES FURNISHED: Belinda Miller, Esquire, Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0758 Fred H. Moore 12687 - 97th Street, North Largo, Florida 34643 Fred Seely, Executive Director DPR, Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
