The Issue Whether Jose Ramone Garcia obtained a building permit for the purpose of aiding an uncertified or unregistered person to evade the provisions of Part 2, Chapter 468, Florida Statutes.
Findings Of Fact Jose Ramone Garcia holds a license as a general contractor issued by the Florida Construction Industry Licensing Board and is licensed as doing business as Gabros Construction. Jose Ramone Garcia, on or about April 26, 1974, obtained a building permit No. 74-1006 issued by Collier County Building Department to build a home at 378 Seabee Avenue, Vanderbilt Beach, Florida. The home at 378 Seabee Avenue, Vanderbilt Beach, Florida, was built by Roger Dulaney, an unlicensed person, who had contracted verbally to build said home with Mr. William E. Young, the owner of the real property. Jose Ramone Garcia obtained the building permit No. 74-1006 with money given to him by Roger Dulaney, but Jose Ramone Garcia did not receive any compensation for his assistance to Roger Dulaney. Jose Ramone Garcia did not contract with William E. Young to build the home at 378 Seabee Avenue, Vanderbilt Beach, Florida. Jose Ramone Garcia did not contract with any of the subcontractors or materialmen for services or goods used in the construction of the home at 378 Seabee Avenue, Vanderbilt Beach, Florida. Jose Ramone Garcia was frequently at the construction site at 378 Seabee Avenue and did oversee the construction which Dulaney directed. Garcia did insure that all construction work done was in accordance with the specifications and plans and the building code of Collier County. All work on the home at 378 Seabee Avenue was inspected and approved by the building authorities of Collier County. With several minor adjustments, the construction was acceptable to the owners. The major problem involved with the house constructed at 378 Seabee Avenue involved the contract price of the home arrived at between Dulaney and Young. Garcia did not negotiate the contract of the construction of the house at 378 Seabee Avenue and had no knowledge of the contract price. The dispute between Dulaney and Young resulted in court action between these parties which resulted in a judgment by the court in the favor of Dulaney. Jose Ramone Garcia has been unable to obtain a building permit as a contractor in Collier County since the filing of the Administrative Complaint in January, 1976. Garcia currently resides in Collier County.
Recommendation Because the licensing privilege of Garcia has already been effectively suspended for 14 months, which is a substantial period of suspension, the Hearing Officer does not feel that a further suspension would be of any benefit. The Hearing Officer would recommend that a civil penalty of $500 be assessed against Garcia based upon the foregoing findings of fact and conclusions of law. DONE and ORDERED this 29th day of March, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry S. Sinoff, Esquire Jacobs, Sinoff, Edwards, Alford & Burgess Post Office Drawer I Fernandina Beach, Florida 32034 Jose Ramone Garcia 9341 S. W. 38th Street Miami, Florida J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211
Findings Of Fact Harry L. Wilson is the holder of a registered roofing contractor's license from the Florida Construction Industry Licensing Board. The license, Number RC 0041328, was first issued in March of 1982. The license was issued in the name of Harry L. Wilson Roofing, 1943 Hardy Street, Jacksonville, Florida, with the Respondent as qualifier. The Respondent has been the qualifier of Harry L. Wilson Roofing at all times relevant to this proceeding. On December 6, 1984, the Respondent and Robbie L. Hicks, entered into a written contract (Petitioner'S Exhibit 2). Pursuant to this written contract (hereinafter referred to as the "Contract"), the Respondent agreed to perform the repair work specified in the Contract in a "professional manner" and Ms. Hicks agreed to pay the Respondent $2,395.00. The property to be repaired is rental property owned by Ms. Hicks. The property is located at 1508 Eaverson Street, Jacksonville, Florida. The Respondent commenced work sometime during the early part of 1983. Shortly after commencing work, however, the Respondent and Ms. Hicks began having disagreements as to the work to be performed and the quality of the Respondent's work. These disagreements continued after the Respondent completed the work in November of 1983. Ms. Hicks testified that the work that the Respondent completed was done in an unprofessional manner and that the Respondent had not completed all of the work that he had agreed to perform. In particular, Ms. Hicks testified that the Respondent had failed to paint the interior of the house beige as required by the Contract, had failed to remove saw dust and other debris from the house following completion of the work, had failed to finish cabinets installed in the house, had failed to repair screens and generally had not performed in the manner he had agreed to perform. Ms. Hicks paid the Respondent all but $410.00 of the contract price. The Respondent testified that all off the work called for pursuant to the Contract had been performed. According to the Respondent, he had performed some work not required by the Contract and had not performed other work requested by Ms. Hicks because the work was beyond the scope of the Contract. The Respondent also stated that the work which Ms. Hicks expected would have cost considerably more than the price agreed upon in the Contract. The Respondent did not perform all of the work specified in the Contract in a "professional manner" as required by the Contract. Based upon the testimony of Mr. Claude Bagwell, Deputy Chief, Building and Zoning, Inspection Division of the City of Jacksonville, it is clear that no permit was issued by the City of Jacksonville to perform the work required by the Contract. The only permits issued with regard to Ms. Hicks' rental property was a permit issued in 1961 and the original building permit issued in 1949. Additionally, due to the fact that no Florida registered roofing contractor's license in the name of "Harry L. Wilson Roofing" had been filed with the City of Jacksonville, no permit could be issued to Harry L. Wilson Roofing with regard to the Contract. The Respondent admitted that he had not obtained a permit to perform the work required by the Contract. The Respondent indicated that he had not obtained a permit because he was not aware that one was required in order to perform the work. He did indicate that he had obtained permits to perform other jobs. The Respondent could not, however, have obtained permits for other jobs because no license issued in the name of Harry L. Wilson Roofing had been filed with the City of Jacksonville. The Respondent did take the examination required in order to obtain a registered roofing contractor's license. The Petitioner suggested in its Proposed Findings that the "permit requirement was explained" when the Respondent took the exam. No evidence to support such a finding was presented at the hearing. The Respondent in entering into the Contract clearly used the name "Wilson Recycling". Nowhere on the Contract is the name "Harry L. Wilson Roofing" used. The Respondent ultimately admitted that no Florida license authorizing the use of the name "Wilson Recycling" had been obtained by him. The Respondent, however, when initially asked whether a Florida license in the name of "Wilson Recycling" had been obtained indicated that such a license had been issued. On further examination, however, the Respondent testified that an occupational license in the name of "Wilson Recycling' had been obtained by him and not a Florida license. The work to be performed pursuant to the Contract was beyond the scope off the Respondent's license. As pointed out by Mr. Bagwell the work to be performed pursuant to the Contract would require licensure as a registered residential contractor or more.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That count I of the Administrative Complaint filed against the Respondent be dismissed. It is further RECOMMENDED: That Respondent be found guilty of violating Section 489.129 (1)(g), Florida Statutes (1983), by contracting in a name other than the name as set forth on the Respondent's license. It is further RECOMMENDED: That Respondent be found guilty of violating Section 489.129(1)(j), Florida Statutes (1983), by failing in a material respect to comply with the provisions of Section 489.119(2) and(3), Florida Statutes (1983), in that the Respondent failed to qualify the business name "Wilson Recycling" with the Construction Industry Licensing Board. It is further RECOMMENDED: That Respondent be found guilty of violating Section 489.129(1)(j), Florida Statutes (1983), when he failed in a material respect to comply with the provisions of Section 489.117(2), Florida Statutes (1983), by contracting to perform and actually performing work beyond the scope of his Florida contracting license. It is further RECOMMENDED: That Petitioner suspend Respondent's roofing contractor's license for a period of three (3) months. DONE and ENTERED this17th day of December, 1984, in Tallahassee, Florida. LARRY J. SARTIN 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 17th day of December, 1984. COPIES FURNISHED: H. Reynolds Sampson, Esquire Staff Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harry L. Wilson 1943 Hardee Street Jacksonville, Florida 32209 Mr. Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact At all times material hereto, Respondent was the holder of general contractor's license number CG C007235, and certified residential contractor's license number CR C006769. On or about January 6, 1976, Respondent entered into a Building Agreement with Walter and Ellen Scott (hereinafter "owners") for construction of a residence to be located at 10244 Deerwood Club Road in Jacksonville, Duval County, Florida. Among the provisions contained in this agreement was the following: [Respondent] will construct house for actual Construction Costs plus $10,000 profit. Addendum to contract Number 19 contains construction estimate sheet and allowance sheet which is guaranteed by [Respondent] not to exceed $85,000, plus $10,000 profit. All construction costs above $85,000 will be absorbed by contractor resulting from faulty workmanship or incorrect overall estimate. Additional costs resulting from exceeding allowances or phases not covered by estimate, (Wallpaper, Light fixtures, etc.), will be paid by purchaser. [Respondent] will be compensated at $2,500.00 out of each of the last four construction draws. Purchaser will be refunded in difference of construction under $85,000.00. Purchaser has the right to examine cost of construction at any stage to determine how close cost [sic] are running to estimate. (Emphasis added.) In addition, the Building Agreement contains a listing of allowances for various items such as carpet, flooring, wallpaper, doors, fireplaces, appliances, plumbing fixtures, wiring and windows. These provisions of the contract deal with standard items to be included in the construction, absent some request and agreement between the parties to specific changes. With respect to changes, the agreement provides specifically that: Should the Purchaser at any time during the progress of said residence require any alterations to or deviations from, additions to, or omissions, in said Agreement, which are acceptable to the Contractor, they shall have the right and power to make such change or changes when practicable, and the same shall in no way make void the Agreement; but the differences shall be added to, or deducted from the amount of the Agreement as the case may be, by a fair and reasonable evaluation . . . (emphasis added.) Finally, the Building Agreement also provides that Respondent was to use his best effort to deliver the completed residence on or about 180 days from the start of construction, which, by terms of the agreement, is defined as the date on which footings are poured or the day rough plumbing was begun. Although Respondent obtained a building permit for construction of the residence, from the City of Jacksonville, Florida, dated February 5, 1976, there is nothing in the record of this proceeding on which a firm determination can be made as to when construction actually started. Although the actual starting date for construction is unclear, it is obvious from the record that Respondent and the owners began to experience problems from the outset. The owners received a notice of lien soon after the slab for the residence was poured. In addition, there appears to have been some miscalculation with respect to the size of the slab for the structure to which some additions had to be made. Respondent apparently failed to pay for the initial treatment for subterranean termites at the time of the pouring of the slab, and the termite bond on the residence was cancelled. In addition, the slab appears to have been poured in such a fashion as to require adjustments in the construction of the driveway to avoid rainwater runoff entering the residence. One of the more difficult problems in the initial stages of construction involved leaks in the roof of the structure. When it appeared that efforts to repair the leaks had not been entirely successful, the owners requested that Respondent delay work on the interior in order that repairs on the roof might be accomplished before proceeding in order to avoid interior damage. After an extended delay occasioned by an unusual period of dry weather which prevented a determination as to whether the roof would continue to leak, work on the interior was recommenced, only to discover that the roof had not been sufficiently repaired. As a result of continuing problems with the roof, work which had been completed in the interior of the structure was damaged by rainwater. In fact, as of the date of final hearing in this cause, it appears that final repairs to the roof had still not been accomplished. It appears from the record that construction delays attributable to roof leaks in the residence set the tone for the remainder of the business dealings between Respondent and the owners. From this point forward, the relationship between Respondent and the owners became virtually adversary in tone. This state of affairs was complicated by an extensive series of changes or substitutions in the original plans and specifications by the owners. As indicated above, the original Building Agreement contained provisions concerning allowances for various portions of the work, and optional items which could be added at additional charge to the owner. Unfortunately, the record is unclear as to exact dollar amounts attributable to extras selected by the owners, as well as to amounts actually received by Respondent in the course of construction draws on the original contract. However, it is clear that extras selected by the owners totalled between $20,000 and $25,000. These items, which were not contained in the original contract, included ceramic tile flooring; double oven; wooden window frames; extensive extra bricking work, including brick more expensive than that described in the original contract; a larger driveway; burglar alarms; simulated marble vanities, tubs and sinks instead of cast iron fixtures as originally contemplated; crown moldings and interior door moldings throughout the interior of the residence; more expensive plumbing fixtures; extensive parquet flooring; larger closet areas; and extensive changes in the location of plumbing fixtures and electrical outlets. In addition, what appears from the evidence to have been a handmade stairway was substituted at an additional cost of approximately $5,000. The construction of the staircase not only included additional expense, but for some reason not entirely apparent from the record, caused additional delay in construction of other areas in the residence. Respondent apparently did not maintain a separate checking account for construction draws on this project, instead comingling disbursements on the construction loan with other funds in his general checking account. Additionally, no documentation was submitted by either Petitioner or Respondent to establish dates on which draw requests were either submitted by Respondent to the owners or the financial institution financing construction, or the dates on which any such draw requests were funded, either in whole or in part. As a result, it is virtually impossible from the record in this proceeding to determine the basis for disbursements from the construction loan account, or the disposition of those sums once disbursed. Although there was some general testimony about the filing of liens by various subcontractors, no documentation of these liens was submitted into evidence. What is, however, apparent from the record is that in early 1977, almost one year after initial disbursement of construction funds to Respondent, almost the entire $95,000 constituting the construction account was depleted. At that time the residence was approximately 90 percent complete. Thereafter, by Agreement dated February 18, 1977, Respondent and owners agreed that an additional $25,000 would be necessary to complete construction of the residence. Respondent acknowledged that he was in default under the terms of the original Building Agreement, and agreed to reimburse owners for the additional $25,000 needed to complete construction of the residence, subject to certain adjustments. Respondent agreed to complete construction of the residence within 40 days, and further agreed that the financial institution holding the mortgage on the residence was authorized to disburse the additional $25,000 directly to subcontractors, materialmen and laborers for work performed for services rendered on the property. Respondent executed a note in the amount of $25,000, secured by certain property belonging to him as evidence of his obligation to complete construction. However, shortly after execution of the February, 1977, Agreement, Respondent and owners had a dispute over payment of certain laborers. As a result, Respondent was advised by owners not to return to the job site. After this notification, evidence in the record establishes that Respondent contacted the financial institution which held the mortgage on the property and advised them that he would not be completing construction of the residence. It is clear from the record that the owners had more than ample cause for dissatisfaction with both the quality of workmanship and the timeliness with which work was performed by Respondent. Those matters are not, however, at issue in this proceeding. It is also abundantly clear that both Respondent and owners conducted their dealings with one another in a most informal fashion. With the exception of the original Building Agreement, and the February, 1977, agreement, most of the dealings between Respondent and the owners were verbal. Additionally, the absence of detailed documentary evidence makes resolution of many of the factual disputes in this proceeding difficult at best. However, the record clearly establishes that Petitioner failed to request that official notice be taken of any of the provisions of the building codes or other laws of the City of Jacksonville, and that none of these codes or laws were offered into evidence in this proceeding. As a result, a motion to dismiss that portion of the Administrative Complaint alleging violation of applicable building codes was granted by the Hearing Officer at the close of Petitioner's case. Further, although the owner testified as to his belief that certain building materials were "floating" between the project which is the subject of this proceeding and other projects being constructed by Respondent, there is no direct evidence to establish that Respondent, in fact, diverted any funds or property improperly. Finally, as to the question of abandonment, it appears from the record that the owner dismissed the Respondent prior to the expiration of the 40-day period contemplated in the February, 1977, Agreement, and that Respondent advised both the owner and the financial institution financing construction of the project that he would not complete construction of the residence as contemplated in the various agreements between the parties.
The Issue DOAH Case No. 89-3902, the Barona and Carrow Complaints Whether Respondent violated Florida Statutes Section 489.129(1)(d), by willfully or deliberately disregarding and violating the applicable building codes or laws of the state or of any municipalities or counties thereof. Whether Respondent violated Florida Statutes Section 489.129(1)(m), by being guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. DOAH Case No. 90-1900, the Grantz, Victor, Beckett, Maffetonne, and Wolfe Complaints Whether Respondent violated Sections 489.129(1)(m), (j), and 489.105(4), and 489.119, Florida Statutes, by being guilty of gross negligence, incompetence, and/or misconduct. Whether Respondent violated Sections 489.129(1)(h), (m), (j), and 489.119, and 489.105(4), Florida Statutes, by being guilty of financial mismanagement or misconduct. Whether Respondent violated Section 489.129(1)(d), Florida Statutes, by wilful or deliberate violation or disregard of applicable local building codes and laws. Whether Respondent violated Sections 489.129(1)(m), (j), 489.119, and 489.105(4), Florida Statutes, by failing to properly supervise contracting activities he was responsible for as qualifying agent, which supervisory deficiency also reflected gross negligence, incompetence, or misconduct Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor. Whether Respondent violated Sections 489.129(1)(m), and (j), Florida Statutes, by giving a guarantee on a job to a consumer and thereafter failing to reasonably honor said guarantee in violation of Florida Statutes. DOAH Case No. 90-1901, the Klokow Complaint Whether Respondent violated Section 489.129(1)(d), Florida Statutes, by wilfully or deliberately disregarding and violating the applicable building codes or laws of the state or any municipalities or counties thereof. Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being guilty of fraud or of gross negligence, incompetency, or misconduct in the practice of contracting. DOAH Case No. 90-1902, the Meister Complaint Whether the Respondent violated Section 489.129(1)(n), Florida Statutes, by failure to obtain a permit. DOAH Case No. 91-7493, the Antonelli Complaint Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. DOAH Case No. 91-7951, the Insurance, Palomba, Romanello and Marin Complaints The Insurance Complaint Whether Respondent violated Section 489.129(1)(c), Florida Statutes, by violating Section 455.227(1)(a), Florida Statutes, by making misleading, deceptive, untrue, or fraudulent representations in the practice of his profession. Whether Respondent violated Section 489.129(1)(d), Florida Statutes, by wilfully or deliberately disregarding and violating the applicable building codes or laws of the state or any municipalities or counties thereof. Whether Respondent violated Section 489.129(1)(c), Florida Statutes, by violating Section 455.227(1)(b), Florida Statutes, by intentionally violating a Board rule. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. The Palomba Complaint Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. The Romanello Complaint Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. The Marin Complaint Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. DOAH Case No. 92-0370, the Pappadoulis Complaint Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing financial misconduct. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by committing gross negligence, incompetence and misconduct in the practice of contracting.
Findings Of Fact Pre-Hearing Admissions 3/ Admissions Applicable to All Cases Respondent is currently licensed as a contractor by the Florida Construction Industry Licensing Board. Respondent's current license number from the Florida Construction Industry Licensing Board is CG C040139. Respondent is licensed by the Florida Construction Industry Licensing Board as a certified general contractor. Respondent holds Florida Certified Roofing License No. CC-042792. Respondent is the qualifying agent for Tropical Home Industries, Inc. As qualifying agent for Tropical Home Industries, Inc., Respondent is responsible for all work performed. DOAH Case No. 89-3902 Respondent was licensed as set forth in items 1, 2, 3 and 4 above at the time of the job alleged in the Administrative Complaint. Exhibit "A", attached to the Request for Admissions 4/ is a true and correct copy of the contract between Sarah S. Carrow and the firm Respondent qualified at the time the contract was executed. As a qualifier for Tropical Home Industries, Inc., Respondent was responsible in his capacity as a certified general and roofing contractor for all work performed by Tropical Home Industries, Inc., pursuant to its contract with Sarah S. Carrow. Pursuant to the contract between Sarah S. Carrow and Tropical Home Industries, Inc., all work under said contract was to be completed in three (3) to six (6) weeks. Respondent, acting through Tropical Home Industries, Inc., failed to complete all work under the contract with Sarah S. Carrow within six (6) weeks after work was commenced. Respondent, acting through Tropical Home Industries, Inc., failed to obtain a final inspection of the work under the contract with Sarah S. Carrow prior to the building permit's expiration date. Broward County, Florida, has adopted the South Florida Building Code as its local ordinance governing residential construction. Respondent's failure to obtain a timely final inspection of the work performed pursuant to the contract between Tropical Home Industries, Inc., and Sarah S. Carrow is a violation of Section 305.2 of the South Florida Building Code. Section 1405.1 of the South Florida Building Code requires installation of either a window or vent fan in each bathroom. Section 3407.9(a) of the South Florida Building Code requires that flashing be installed on plumbing vent pipes which are installed through the roof. Any problems or deficiencies in the work performed by Tropical Home Industries, Inc., pursuant to its contract with Sarah S. Carrow were caused by employees and/or subcontractors of Tropical Home Industries, Inc. DOAH Case Nos. 89-3902, 90-1900, 90-1901, and 90-1902 DOAH Case No. 89-3902 The Baronas' house is located at 1251 Westchester Drive East, West Palm Beach, Florida 33417. Respondent contracted with the Baronas as the qualifying agent of Tropical Home Industries, Inc. The Baronas' house is located within Palm Beach County. Palm Beach County is the appropriate Building Department under which all inspections were to have been performed. DOAH Case No. 90-1901 On or about December 5, 1988, Respondent contracted with Mel Klokow, acting for Linda Klokow ("Klokow"), for the renovation of a screen porch with a roof to her home. Respondent contracted with Klokow as a qualifying agent of Tropical Home Industries, Inc. Permit No. 88-8085 was issued by the local building department. The work at the Klokow residence did not pass final inspection. DOAH Case No. 90-1902 In December of 1987, Respondent contracted to close in a screen porch for Janet Meister ("Meister"). Respondent contracted with Meister as the qualifying agent for Tropical Home Industries, Inc. Respondent failed to obtain a permit for the work performed at the Meister's. Respondent's failure to obtain a permit for the Meister job violated local building codes and Section 489.129(1)(n), Florida Statutes. DOAH Case No. 90-1900 The Grantz home is located at 10878 Granite Street, Boca Raton, Florida. The approximate amount of the contract price with the Grantz was $1,890.00. Respondent contracted for the Grantz job as a qualifying agent of Tropical Home Industries, Inc. Respondent began work at the Grantz residence on or about May 10, 1989. The work at the Grantz residence failed final inspection on July 12, 1989. Respondent wilfully violated applicable local building codes and laws on the Grantz project. Respondent wilfully disregarded local building codes and laws in connection with the Grantz project. Respondent deliberately violated applicable local building codes and laws in connection with the Grantz project. Respondent deliberately disregarded applicable local building codes and laws in connection with the Grantz project. On or about April 12, 1989, and April 17, 1989, Respondent contracted with Stephen Victor ("Victor") to install sliding glass doors at his home. The Victor residence is located at 9768 Majorca Place, Boca Raton, Florida. The contract price with Victor was $3,293.00. Respondent contracted with Victor as a qualifying agent of Tropical Home Industries, Inc. Victor paid a total deposit of $670.00 to Respondent. Respondent never began work at the Victor residence. On or about April 17, 1989, Respondent contracted with Vinton Beckett ("Beckett") to install windows at her home. The Beckett residence is located at 2501 N.W. 41st Avenue, Unit 302, Lauderhill, Florida. The contract price with Beckett was $1,684.00. Respondent contracted with Beckett as a qualifying agent of Tropical Home Industries, Inc. On or about October 29, 1988, Respondent contracted with Thomas and Sherry Maffetonne (the "Maffetonnes") to construct a patio enclosure at their home. The Maffetonne's residence is located at 22980 Old Inlet Bridge Drive, Boca Raton, Florida. The contract price for the work to be performed at the Maffetonnes was $4,350.00. Respondent contracted with the Maffetonnes as a qualifying agent for Tropical Home Industries, Inc. A five-year warranty on materials was given by Respondent for the work to be performed at the Maffetonne's. A one-year warranty on labor was given by Respondent for the work performed at the Maffetonne's. On or about June 6, 1989, Respondent contracted with Mr. and Mrs. Morton Wolfe (the "Wolfes") to install windows at their home. The Wolfe's residence is located at 7267 Huntington Lane, #204, Delray Beach, Florida. Respondent contracted with the Wolfes as the qualifying agent of Tropical Home Industries, Inc. Respondent failed to obtain a timely permit or call for required inspections at the Wolfe residence. DOAH Case No. 91-7951 On June 21, 1990, Tropical's general liability insurance coverage (policy number 891006GL327), produced by Steven Adams and Associates, Inc., (hereinafter "Adams and Associates") and afforded by Guardian P & C Insurance Company, expired. On July 17, 1990, Tropical issued a check to Adams and Associates in the amount of $2,475.00 to obtain general liability and workers' compensation insurance. Upon receipt of the check, Adams and Associates issued a Certificate of Insurance to the Davie (Florida) Building Department indicating that Tropical had general liability (policy number GL 235810) and workers' compensation insurance in force through July 17, 1991. After said Certificate of Insurance was issued, Tropical stopped payment on the check issued to Adams and Associates. Tropical failed to issue an additional check or remit payment of any kind, resulting in both the general liability and workers' compensation insurance being canceled, effective July17, 1990. In September of 1990, a Certificate of Insurance was submitted to the Davie Building Department indicating that Tropical had general liability insurance in effect from September21, 1990, until September 21, 1991. Said certificate had been altered in that the issue, effective, and expiration dates had been updated to reflect that the policy coverage was current and in force. The policy listed on the certificate (number 891006GL327, produced by Adams and Associates with coverage being afforded by Guardian P & C Insurance Company) expired on June21,1990, and was never renewed or kept in force after that date. The Davie Building Department had no other certificates or records indicating that Tropical had insurance coverage. Between July 17, 1990, and April 8, 1991, Tropical obtained five (5) building permits from the Davie Building Department. At no time during the aforementioned period did Tropical have general liability insurance, thereby violating Section 302.1(b) of the South Florida Building Code which requires that building permit applicants be qualified in accordance with PartI of Chapter 489, Florida Statutes. Licensees are required to maintain public liability insurance at all times as provided by rules promulgated pursuant to Part I of Chapter 489, Florida Statutes. Construction Industry Licensing Board records indicate that Tropical has general liability insurance coverage through Equity Insurance (hereinafter "Equity") of Hollywood, Florida. Effective June 8, 1988, Tropical's insurance with Equity was canceled. On February 20, 1991, Tropical entered into an agreement with Michael and Margaret Palomba (hereinafter "Palombas") to perform enclosure and remodeling work at the Palombas' residence located at 130 North East 5th Court, Ft. Lauderdale, Florida 33334. The approximate contract price was $11,978.00. On March 13, 1991, Tropical received a $2,994.50 deposit from the Palombas. On March 25, 1991, Tropical obtained a permit for the project from the Broward County Building Department. Subsequent to receiving the permit, Tropical removed an interior closet from the area that was to be remodeled. Subsequent to receiving the permit, Tropical removed interior plaster from the area that was to be remodeled. Subsequent to receiving the permit, Tropical removed exterior doors from the area that was to be remodeled. Tropical then stopped work stating that rotten wood had been discovered, and requested an additional $2,800.00 to continue with and complete the project. Tropical refused to perform any additional work without the Palombas agreeing to the added cost. Tropical failed to continue with the project pursuant to the original agreement. Tropical refused to continue with the project pursuant to the original agreement. Tropical failed to return any monies to the Palombas. In May 1991, the Palombas hired a second contractor, Dan Sturgeon, to complete the project for $13,830.00. On or about July 11, 1990, Tropical entered into an agreement with Don Romanello (hereinafter "Romanello") to construct a screen room on an existing slab at Romanello's residence located in Boca Raton, Florida. The contract price was $9,500.00. Tropical received $4,800.00 in payments from Romanello, but failed to obtain a permit or perform any work pursuant to the agreement. Tropical has failed to return any portion of Romanello's payments. Tropical refused to communicate with Romanello. Based on the preceding, Tropical committed misconduct in the practice of contracting. On or about June 23, 1990, Tropical entered into an agreement with Marcelina Marin (hereinafter "Marin") to construct a screen room at Marin's residence located in Broward County, Florida, for $4,021.00. Tropical received a $2,000.00 deposit from Marin at the time the agreement was entered into. Tropical failed to perform any work under the terms of the agreement. Tropical has failed to return Marin's deposit. Tropical has refused to return Marin's deposit. Based on the preceding, Tropical committed misconduct in the practice of contracting. DOAH Case No. 91-7493 On July 2, 1988, Respondent contracted with Anthony Antonelli ("Antonelli") to construct an aluminum roof over the patio and gutters of his residence at 9303 Laurel Green Drive, Boynton Beach, Florida. The price of the contract was $2,016.00. Antonelli paid a deposit of $500.00 to Tropical Home Industries. Respondent informed Antonelli that he would not be able to perform the work at the contracted price. Respondent never performed any work at the Antonelli's home. Respondent canceled the contract with Antonelli. Respondent failed to return the deposit paid by Antonelli to Tropical Home Industries. Testimony at Final Hearing Facts Applicable to All Cases Respondent is, and has been at all times hereto, a certified general and roofing contractor in the State of Florida, having been issued license number CG C040139 and CC 2042792. For all contracts and jobs referenced in all of the administrative complaints in these consolidated cases, Respondent acted through the contracting business with which he was associated and for which he was responsible in his capacity as a licensed contractor. DOAH Case No. 89-3902, The Barona and Carrow Complaints Respondent contracted with Rhonda Barona to build an addition to her home at 1251 Westchester Dr. East., West Palm Beach, Florida, for approximately $5,124. The work performed at the Barona residence took an unreasonable amount of time to complete. The permit issued to perform the work at the Barona residence was canceled and Respondent failed to obtain a final inspection. Respondent contracted with Sarah Carrow to build an addition at her home located at 1421 N. 70th Avenue, Hollywood, Florida, for approximately $14,460.60. Respondent allowed the permit to expire and failed to obtain required inspections at the Carrow residence. Respondent failed to fully comply with applicable local codes by failing to install a window or vent fan in the bathroom. DOAH Case No. 90-1900, The Grantz, Victor, Beckett, Maffetonne and Wolfe Complaints On or about March 31, 1989, Respondent contracted with John and Lori Grantz to install windows at 10878 Granite Street, Boca Raton, Florida, for the amount of $1,890.00. Work at the Grantz residence began on or about May 10, 1989. At the time work began, no permit had been obtained. A late permit was obtained on June 15, 1989, in violation of local codes. The work performed by Respondent at the Grantz residence failed final inspection on July 12, 1989, because the structure was not constructed as for the intended use. The windows which were installed were designed as a temporary structure, removable in cases of severe weather and not as a permanent enclosure. On or about April 12, 1989, and April 17, 1989, Respondent contracted with Stephen Victor ("Victor") to install sliding glass doors and windows at 9768 Majorca Place, Boca Raton, Florida, for the total amount of $3,293.00. Victor paid Tropical a total deposit of $670.00, but work never began. On or about April 17, 1989, Respondent contracted with Vinton Beckett ("Beckett") to install windows at 2501 N.W. 41st St., Unit 808, Lauderhill, Florida, in the amount of $1,684. A five-year warranty on materials and a one-year warranty on labor were provided to Beckett by Tropical. Respondent failed to obtain a timely permit or call for required inspections in violation of local law. Respondent failed to correct defects and deficiencies in the work performed at the Beckett residence in a reasonable amount of time. On or about October 29, 1988, Respondent contracted with Thomas and Sharee Maffetonne to construct a patio enclosure at 22980 Old Inlet Bridge Drive, Boca Raton, Florida, for the amount of $4,350.00. A five-year warranty on materials and a one-year warranty on labor were given. Respondent failed to correct defects and deficiencies in the work on the Maffetonne residence in a reasonable amount of time. On or about June 6, 1989, Respondent contracted with Morton Wolfe to install windows at 7267 Huntington Lane, #204, Delray Beach, Florida, for the amount of $1,668.13. Respondent failed to obtain a timely permit or call for required inspections at the Wolfe residence in violation of local codes. DOAH Case No. 90-1901 The Klokow Complaint On or about December 5, 1989, Respondent contracted with Mel Klokow, acting for Linda Klokow, for the construction of a screen porch with a roof to her home at 5292 N.E. 10th Terr., Ft. Lauderdale, Florida, for the sum of $4,473.00. Permit number 88-8085 was issued by the local building department. The work performed at the Klokow residence initially failed to pass the final inspection, and the Respondent failed to return to correct the code violations in a reasonable amount of time. DOAH Case Number 90-1902 The Meister Complaint In December of 1987, Respondent contracted to close in a screen porch for Janet Meister. Respondent failed to obtain a permit for the work performed, which is a violation of local building codes. DOAH Case Number 91-7493 The Antonelli Complaint On July 2, 1988, Respondent contracted with Anthony Antonelli ("Antonelli") to construct an aluminum roof over the patio and gutters at his residence at 9303 Laurel Green Drive, Boynton Beach, Florida. The price of the contract for the work to be performed at the Antonelli residence was $2,016.00. Antonelli remitted a deposit of $500 to the Respondent. Respondent informed Antonelli that he would not be able to perform said job for the contracted price and no work ever began. Respondent canceled the contract with Antonelli and failed to return the deposit to Antonelli. DOAH Case Number 91-7951 The Insurance, Palomba, Romanello and Marin Complaints On June 21, 1990, Tropical's general liability insurance coverage, policy number (891006GL327), produced by Stephen Adams & Associates, Inc., ("Adams & Associates") and afforded by Guardian Property & Casualty Company, expired. On July 17, 1990, Tropical issued a check to Adams & Associates in the amount of $2,475.00 to obtain and/or renew general liability and workers' compensation insurance. Upon receipt of the check, Adams & Associates issued a certificate of insurance to the Davie Building Department in Davie, Florida, indicating that Tropical had general liability (policy number 235810) and workers compensation insurance in force through July 17, 1991. After said certificate of insurance was issued, Tropical stopped payment on the check issued to Adams & Associates. Tropical failed to issue an additional check or remit payment of any kind resulting in the general liability and workers compensation insurance being canceled, effective July 17, 1990. In about September 1990, a certificate of insurance was submitted to the Davie Building Department indicating that Tropical had general liability insurance in effect from September 21, 1990, until September 21, 1991. Said certificate had been altered in that the issue, effective and expiration dates had been updated to reflect that the policy coverage was current and in force. The policy listed on the certificate (number 891006GL327), produced by Adams & Associates and afforded by Guardian Property & Casualty Company, expired on June 21, 1990, and was never renewed or kept in force after that date. The Davie Building Department has no other certificates or records indicating that Tropical has insurance coverage. Between July 17, 1990, and April 8, 1991, Tropical obtained five (5) building permits from the Davie Building Department. At no time during the aforementioned period did Tropical have general liability insurance thereby violating Section 302.1(b) of the South Florida Building Code which requires that building permit applicants be qualified in accordance with Part I of Chapter 489, Florida Statutes. Licensees are required to maintain public liability insurance at all times as provided by rules promulgated pursuant to Part I of Chapter 489, Florida Statutes. Construction Industry Licensing Board ("CILB") records indicate that Tropical has general liability insurance coverage through Equity Insurance Company ("Equity") of Hollywood, Florida. Effective June 8, 1988, Tropical's insurance with Equity was canceled. On February 20, 1991, Tropical entered into an agreement with Michael and Margaret Palomba (the "Palombas") to perform enclosure and remodeling work at the Palomba's residence located at 130 N.E. 5th Ct., Ft. Lauderdale, Florida 33334. The approximate contract price was $11,978.00. On March 13, 1991, Tropical received a $2,994.50 deposit from the Palombas. On March 25, 1991, Tropical obtained a permit for the project from the Broward County Building Department. Subsequent to receiving the permit, Tropical removed an interior closet and exterior doors from the area that was to be remodeled. Tropical then stopped work stating that rotten wood had been discovered, and requested an additional $2,800.00 to continue with and complete the project. Tropical refused to perform any additional work without the Palombas agreeing to the added cost. Tropical failed or refused to continue with the project pursuant to the original agreement and failed to return any monies to the Palombas. In May, 1991, the Palombas hired a second contractor, Dan Sturgeon, to complete the project for $13,000.00. 156. Based on the foregoing, Tropical committed misconduct in the practice of contracting. On or about July 11, 1990, Tropical entered into an agreement with Don and Norma Romanello (the "Romanellos") to construct a screened room on an existing slab at the Romanello's residence located in Boca Raton, Florida. The contract price was $9,500. Tropical received a $4,800.00 payment from the Romanellos but failed to perform any work pursuant to the agreement. Tropical has failed or refused to return any portion of the Romanellos payments and has refused to communicate with the Romanellos. Based on the preceding, Tropical committed misconduct in the practice of contracting. On or about June 23, 1990, Tropical entered into an agreement with Marcelina Marin to construct a screened room at Marin's residence located in Broward County, Florida for $4,021.00 Tropical received a $2,000.00 deposit at the time the agreement was entered into. Tropical failed to perform any work under the terms of the agreement, and has failed or refused to return Marin's deposit. Based on the preceding, Tropical committed misconduct in the practice of contracting. DOAH Case Number 92-0370 The Pappadoulis Complaint On or about February 11, 1990, the Respondent contracted with John Pappadoulis ("Pappadoulis") to remodel a Florida room for the agreed upon amount of $11,448.00 at his residence located at 983 Southwest 31st Street, Fort Lauderdale, Florida. Respondent received a deposit of $648.00, but never obtained a permit nor began work. The Respondent failed or refused to return Pappadoulis' deposit. John Pappadoulis has since passed away. Aggravating and Mitigating Circumstances Monetary Damages Several of the customers in these cases suffered monetary damages. The Baronas had to hire an attorney to deal with the Respondent. The Baronas also incurred additional costs in the work they performed to complete the contract. John and Lori Grantz also suffered monetary damages due to their dealings with the Respondent. The work at the Grantz residence was never completed by the Respondent. The Respondent filed a lien on the Grantz property and also filed a lawsuit to receive the full amount of the contract price. The Grantz had to hire an attorney to obtain legal advice and to defend the lawsuit. The Grantz prevailed in that lawsuit and a judgment was entered requiring the Respondent to refund the $500.00 cash deposit. The Grantz also spent at least $150.00 on attorney fees. The deposit money was never returned and none of their costs were ever reimbursed by the Respondent. Steven Victor also sustained monetary damages in his dealings with the Respondent. Victor paid the Respondent $670.00 as a deposit. No work was ever performed. After requesting the return of his deposit money and failing to receive it, Victor filed a civil action against the Respondent. Judgment was entered in favor of Victor, but the judgment was never paid. The Maffetonnes also sustained monetary damages in their dealings with the Respondent. The Respondent agreed to refund a portion of the contract money to the Maffetonnes due to a problem with the carpet he installed incorrectly, but failed to ever refund any money. The Maffetonnes therefore paid for goods which were defective, and never received a compensatory credit. Klokow also sustained monetary damages in his dealings with the Respondent Because of continuing roof problems, Klokow had to hire an independent roofing expert to inspect the roof and prepare a report. Mr. and Mrs. Palomba also sustained monetary damage due to their dealings with the Respondent. When the Respondent abandoned the Palomba job, the Palombas were forced to hire a second contractor at a higher contract price. The Respondent's actions also caused monetary damages to Antonelli, Pappadoulis, Marin, and Romanello. In each case, the homeowner paid a deposit to the Respondent, and the Respondent failed to ever perform work or return any of the deposit money. The Antonellis paid $500.00, Pappadoulis paid $648.00, Marin paid $2,000.00, and Romanello paid $4,800.00. Actual Job-Site Violations of Building Codes or Conditions Exhibiting Gross Negligence, Incompetence, or Misconduct by the Licensee Several of the jobs involved in these cases had actual job site violations of building codes or conditions which exhibited gross negligence, incompetence, or misconduct by the Respondent which had not been resolved as of the date of the formal hearing. At the Barona residence, the framing inspection failed twice before finally being passed a third time; the lath inspection failed three times before finally passing on the fourth time; and the final inspection failed and was never satisfactorily completed by the Respondent. At the Carrow residence, the Respondent failed to install a window or vent fan in the bathroom of the room addition which he installed. In addition to the building code violation, the work performed was incompetent as the structure installed leaked for many months. Further, the original permit expired prior to a final inspection ever being obtained. At the Grantz residence, the Respondent exhibited incompetence and misconduct by installing windows that he knew or should have known were unsuitable for the purposes specified by the customer. Severity of the Offense The large number of violations established in these cases indicates that the Respondent is a serious threat to the public. These violations establish that the Respondent had a pattern of failing to conduct any meaningful supervision of work in progress. And perhaps most serious of all is his frequent act of soliciting deposits for projects he apparently had no intention of even beginning, much less finishing. This latter practice borders on constituting some form of larceny. Danger to the Public The Respondent is a danger to the public in two ways. First, he is a financial threat to the public, most significantly by his practice of taking deposits for jobs he apparently did not intend to perform. Second, he is a threat to public safety, because the work he performs is often done in a haphazard, careless manner. The Number of Repetitions of Offenses As is obvious from the findings of fact and conclusions of law in this Recommended Order, the Respondent is guilty of numerous repeated offenses which occurred over a period of approximately three years. The Respondent's numerous offenses are indicative of an attitude of contempt or disregard for the requirements of the applicable rules and statutes. Number of Complaints Against Respondent The charges in these cases are based on fifteen separate customer complaints to the Department of Professional Regulation regarding the Respondent. Further, the Palm Beach County Construction Industry Licensing Board received four complaints from homeowners regarding the Respondent 5/ and the Broward County Consumer Affairs Department received twenty-nine complaints regarding the Respondent. 6/ Such a large number of complaints indicates that the Respondent's shortcomings were not isolated events, but represent a recurring problem. The Length of Time the Licensee Has Practiced The Respondent was first licensed as a state general contractor in 1987. He obtained his roofing contractor license shortly thereafter. The Respondent's licenses were placed under emergency suspension in August of 1991. Damage to the Customers The damages, monetary and otherwise, suffered by the Respondent's customers has already been addressed. In addition, all of the Respondent's customers mentioned in the findings of fact suffered a great deal of aggravation, stress, and frustration in dealing with the Respondent. Penalty and Deterrent Effect In these cases, the proof submitted demonstrates that no penalties short of revocation of the Respondent's licenses and imposition of the maximum amount of fines will act as a deterrent to the Respondent and others and as appropriate punishment for the many violations established by the record in these cases. Efforts at Rehabilitation There is no persuasive evidence in the record of these cases that the Respondent has become, or is likely to become, rehabilitated. To the contrary, the greater weight of the evidence is to the effect that the Respondent is unwilling or unable to conform his conduct to the requirements of the statutes and rules governing the practice of contracting.
Recommendation Based upon the foregoing findings of fact and conclusions of law, IT IS RECOMMENDED: That the Respondent be found guilty of all of the violations charged in each Administrative Complaint and Amended Administrative Complaint as noted in the conclusions of law, and that the Respondent be disciplined as follows: The Respondent be required to pay an administrative fine in the amount of $5,000.00 for each of the twenty-nine counts of violations charged and proved, for a grand total of $145,000.00 in administrative fines; The Respondent's license numbers CG C040139 and CC C042792 be revoked; and The Respondent be required to pay restitution to the following Complainants in the following amounts: Steven Victor - $670.00; John Grantz - $650.00; Don Romanello - $4,800.00; Marcelina Marin - $2,000.00; Anthony Antonelli - $500.00; John Pappadoulis' next of kin - $648.00. All restitution shall earn 12% interest per annum from the date the Complainants paid their deposit to Respondent. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 21st day of October, 1992. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 1992.
Findings Of Fact Respondent Jean P. Pittenger is a licensed general contractor holding license number CGC010323 issued by the Florida Construction Industry Licensing Board and is a licensed real estate broker-salesman, holding license number 0341210. Respondent Lan Thi Tran also known as Marie J Pittenger; is a licensed real estate salesman, holding license number SLO216661. Respondent LeRoy G. Bailey is a real estate broker in the State of Florida, holding license number BKO184114. On or about December 11, 1981, the Respondents Pittenger and Tran solicited and obtained Louis and Lamquet DeWinter and J. M. Demeulemeister as purchasers and joint venturers for the purchase of a certain piece of real property in Collier County, and for the construction of a house thereon. The Respondent Pittenger was the President and qualifying agent for his construction company known as "The Pittenger Company," d/b/a Real Estate Technology Group. Jean Pittenger entered into the joint venture agreement with Louie Philippe DeWinter and the others, as president of that entity. Pursuant to this agreement, DeWinter agreed to purchase a lot at Site 51, Block A, The Pelican Bay, Unit 1, a recorded subdivision in Collier County, Florida, and Respondent Jean Pittenger agreed to construct a first-class residence" on the property for purposes of investment and resale. Respondent Jean Pittenger never qualified his company or the joint venture entity under which he intended to undertake to construct the house with the Florida Construction Industry Licensing Board. In connection with the joint venture, the DeWinters gave to Marilyn Evanish of Coral Ridge-Collier Properties, Inc., a $17,000 earnest money deposit in accordance with the sales contract calling for DeWinter to purchase the property at a total of $170,000. The DeWinters' also paid $15,000 for architectural services and $13,151 for advance construction costs, attorney's fees and the like to Respondents' Pittenger and Tran. The DeWinters' made these disbursements from their own funds in trust and reliance upon the statements, actions and representations of Respondents' Pittenger and Tran to the effect that an architect would be retained to design the residence to be built, and that construction permits would be obtained and construction would `begin at a time certain. Thereafter, on or about April 14, 1982, Pittenger and Tran, unilaterally terminated the professional services of the architect and abandoned the joint venture agreement and the construction of the residence without explanation to their fellow joint venturers, the DeWinters, who were the owners of the lot upon which the residence was to be constructed. Respondent Pittenger never returned to complete construction. This unilateral action by the Respondents resulted in the DeWinters losing the use and benefit of approximately $28,151 which they had paid to those Respondents for architectural services and construction costs, which services were never performed. Louis DeWinter made demand on the Pittengers for return of the funds. Respondents' Pittenger and Tran, however, failed to justify the abandonment of construction of the dwelling, and failed and refused to account for the funds or what services, if any, had been purchased with the funds provided them by DeWinter for development of the property. Respondents' Pittenger and Tran utilized the $13,151 for their own use and benefits or in any event, for a use and benefit not intended by their joint venture partners and clients, the DeWinters. An indefinite portion of the $15,000 attributable to architectural services was apparently paid to the architect engaged to design the house; but in any event, Pittenger and Tran terminated the professional services of the architect before he completed his design and failed to account for or deliver the $13,151 entrusted to them by the DeWinters and intended for initiation of construction. The evidence does not clearly establish what became of the $15,000 advance for architectural services, but the DeWinters never received the benefit of any architectural services purchased. On or about March 24, 1982, Respondents' Jean P. Pittenger and Lan Thi Tran solicited and obtained $5,000 from the DeWinters supposedly for the purpose of purchasing real property in Bonita Springs, Florida, for investment and resale. The DeWinters' gave $5,000 to Respondents' Jean P. Pittenger and Lan Thi Tran in trust and reliance upon the acts, representations and statements of those Respondents which were made in order to induce the DeWinters' to deliver the $5,000 to them. Thereafter, those Respondents refused and neglected to account for or deliver to the Dewinters the $5,000 after demand and they never used that sum to purchase any property on behalf of the DeWinters, their clients. On or about April 22, 1982, Respondents' Pittenger and Tran solicited and obtained a sales contract on a restaurant known as "The Elephant Walk." The property was owned by Hospitality-Condo Inn, Inc. (seller) and was listed by the real estate brokerage known as Tri-Dynamics Realty of Florida, Inc., which was the brokerage of Respondent LeRoy Bailey, who is also the President of Hospitality-Condo Inn, Inc. The property was sold to Gerlanelie, Inc. by Lee Nichols Realty, Inc., the "selling broker," pursuant to that contract. Gerlanelie, Inc., was owned by the DeWinters and Respondent Tran who in effect were the purchasers of the property. Respondent Tran was the real estate salesperson who secured and negotiated the purchase from Mr. Bailey's corporation, at which time she was a salesman for Lee Nichols Realty, Inc., the selling broker. In executing the contract, the DeWinters acted upon the advice and representations of the Pittengers, who represented that the purchase price of $850,000 was a reasonable price and- knowing that the DeWinters were foreign nationals and uninitiated in the legal aspects of real estate transactions in Florida, represented to them that it was illegal under Florida law to counter- offer for less than that purchase price, which representation the DeWinters apparently believed. At the closing, the DeWinters executed documents assigning their beneficial interests back to the sellers Bailey and Hospitality Condo-Inns Inc., as collateral and security for the mortgage and promissory note obligations by which they were to pay the purchase price, to which obligations they both corporately and personally obligated themselves. Additionally, the Respondents' Pittenger and Tran agreed to share and participate in the mortgage payments, by which $728,000 of the purchase price was to be paid, as an inducement to get the Dewinters to enter into the sales contract and close the transaction. In connection with the purchase and renovation of the restaurant, the Respondents, Pittenger and Tran solicited and obtained $104,795 from the DeWinters between May 17, 1982 and July 10, 1982. Respondent Jean Pittenger, who was to do the construction work for the renovation, originally represented that the construction work would cost no more than $75,000. In any event, very little renovation work was completed by the Respondent Pittenger, and he and Respondent Tran abandoned the project, leaving $70,000 in unpaid, recorded mechanics' and materialmens' liens and approximately $30,000 in unpaid bills for food, liquor and other expenses, which were in large part incurred by Respondents' Pittenger, Tran and their invited guests and business associates. This $30,000 amount had to be paid by the DeWinters through a loan and they had to pay the $70,000 liens as well. As a result of this unforeseen, massive expense, the DeWinters were unable to meet their August, 1982, mortgage payment, although in the first full month of operation they had grossed approximately $60,000 with the restaurant operation and it appeared to be a very viable business. Additionally, Respondents' Pittenger and Tran failed to pay their share of the mortgage payments, notwithstanding their promise to the DeWinters that they would participate in making the mortgage payments as inducement to the DeWinters entering into the purchase transaction in the first place. In any event, Respondents' Pittenger and Tran abandoned the project and left the state and were last known to be in the Atlanta, Georgia area. They thus deprived the DeWinters of the vast majority of the $104,795 to have been used to pay for renovation on their restaurant, the $70,000 in addition to that required to discharge the liens and the $30,000 expended to pay various expenses incurred by those Respondents. The former owner and mortgagee, Respondent LeRoy G. Bailey advised the DeWinters during the initial month of operation of the restaurant after the sale, that Pittenger and Tran were not to be trusted, and that they should remove them from management of the restaurant and seek legal counsel, which the DeWinters did. Respondent Bailey additionally cooperated with the DeWinters, attempting to help them make the business a successful operation, but in the ends due to the perfidy of Pittenger and Tran, and the severe financial hardship it caused the DeWinters, the DeWinters were forced to assign all of their right, title and interest in the restaurant back to Respondent Bailey, at the point of the restaurant's mortgage becoming in default, as they had earlier agreed to do. Mr. Bailey employed the DeWinters in a management capacity for a short time after the assignment, but then discharged them and operated the restaurant himself for a time until he ultimately sold it. In any event, it was not established that Bailey entered into any conspiracy or scheme with Pittenger and Tran to attempt to defraud the DeWinters, or otherwise engage in any dishonest dealing by trick, scheme, device or otherwise at the expense of the DeWinters. The financial and legal problems which befell the DeWinters were due to their naive reliance on the representations, promises and statements made by Jean Pittenger and Lan Thi Tran, his wife. All their agreements with Bailey were entered into with counsel present and upon advice of counsel. The DeWinters knew at the closing of the transaction that they had executed an assignment, in the nature of a deed in lieu of foreclosure, back to Bailey, which would be exercised should the mortgage become in default.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of records the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the charges against the Respondent LeRoy G. Bailey be DISMISSED and it is further, RECOMMENDED that all licenses issued by the Construction Industry Licensing Board to Jean P. Pittenger be REVOKED and that he be fined the amount of $5,000. It is further RECOMMENDED that the licenses of Jean P. Pittenger and Lan Thi Tran, also known as Marie J. Pittenger, issued by the Florida Real Estate Commission be REVOKED, and that they each be fined in the amount of $6,000. DONE and ENTERED this 20th day of November, 1985 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 20th day of November, 1985. APPENDIX TO RECOMMENDED ORDER, CASE NOs. 84-0311 AND 84-1112 Petitioner's Proposed Findings of Fact Accepted. 4. Accepted. Accepted. 5. Accepted. Accepted. 6. Accepted. Respondent's Proposed Findings of Fact Accepted. 5. Accepted. Accepted. 6. Accepted. Accepted. 7. Accepted. Accepted. 8. Accepted. COPIES FURNISHED: James H. Gillis, Esquire Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Wesley A. Lauer, Esquire ACKERMAN, BAKST, GUNDLACH, LAUER & ZWICKEL, P.A. 515 North Flagler Drive Orlando, Florida 32802 Jean P. PITTENGER and Lan Thi Tran 235 Tallwood Terrace Roswell, Georgia 30075 James Linnan Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Harold Huff, Executive Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The Florida Construction Industry Licensing Board (Petitioner herein) seeks to revoke Carroll L. Mozingo's (Respondent herein) license to practice as a registered general contractor based on allegations which will be set forth hereinafter in detail that he diverted funds in violation of Chapter 468.112(2)(e), Florida Statutes. Based upon my observation of the witnesses and their demeanor while testifying and the entire record compiled herein, I make the following:
Findings Of Fact The Respondent is a registered general contractor, who holds current license no. RG0015876. On September 7, 1976, Respondent entered into a contract with Robert Johnson and his wife Sandra Johnson for a room addition and patio to their house located at 197 North Roscoe Blvd., Ponte Vedra Beach, Florida. The full amount of the contract plus agreed upon extras amounted to $9,640.00. (Petitioner's Composite Exhibit Number 2) Respondent applied for and obtained a building permit for the construction of the Johnson's addition on or about September 27, 1976, and construction commenced shortly thereafter. (Petitioner's Exhibit Number 1) Donald Jermaine, a St. Johns County field inspector, testified that he conducted inspections on the subject job and noted numerous violations of the St. Johns County Building Code. He coordinated the inspections for this project up until the time it was abandoned by Respondent during mid February, 1977. At the time of abandonment, the owner, Robert Johnson, had paid a total amount of $11,021.96 to Respondent and/or various suppliers. To complete the job as contracted by the parties (Johnson and Mozingo) Messr. Johnson had to pay Proctors Construction Company $2,800.00, an electrical contractor $369.00 and a plumbing contractor $520.00 for a total expenditure over and above the above referenced contract amount of $3,689.00. He testified that no additional work was done to his home. The Respondent testified that he expended $7,458.00 for materials on the Johnson project and was unable to complete it because his mortgage payments were delinquent and he was not receiving any additional monies from Messr. Johnson to fulfill his obligations. He testified that he was unable to work at night and therefore had to seek other employment with another contractor. The above explanation by the Respondent which led to his abandonment of the subject project does not excuse him from his contractual obligations to either fulfill the contract as agreed upon or to seek a renegotiation based on additional costs and/or unexpected circumstances. This was not done nor was any other explanation given as to where the additional monies in excess of $4,000.00 was spent. I therefore conclude that he engaged in a diversion of funds as alleged in the administrative complaint filed by the Petitioner on May 27, 1977. I shall so recommend.
Recommendation Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the Respondent's general contractor's license be suspended for a period of two years. RECOMMENDED this 2nd day of December, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 C. H. Hoskinson, Chief Investigator Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211 Carroll L. Mozingo 1909 Ed Johnson Drive Jacksonville, Florida 32218 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. DIVISION OF ADMINISTRATIVE HEARINGS, DOCKET NO. 77-1095 CARROLL L. MOZINGO dba CARROLL CONSTRUCTION COMPANY, RG 0015876, 1909 Ed Johnson Drive, Jacksonville, Florida 32218, Respondent. /
The Issue At issue in this proceeding is whether the decision of the Florida Housing Finance Corporation (“Florida Housing”) to award State Apartment Incentive Loan (“SAIL”) funding to Intervenor, La Joya Estates, Ltd. (“La Joya”), pursuant to Request for Applications 2015-112 (the “RFA”) was contrary to the agency’s governing statutes, rules, policies, or the RFA specifications.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following Findings of Fact are made: Douglas Gardens is a Florida limited partnership based in Coconut Grove, Florida, that is in the business of providing affordable housing. Florida Housing is a public corporation organized pursuant to chapter 420, Part V, Florida Statutes. For the purposes of this proceeding, Florida Housing is an agency of the State of Florida. Florida Housing has the responsibility and authority to establish procedures for allocating and distributing various types of funding for affordable housing. One of the programs administered by Florida Housing is the SAIL program, created in section 420.5087, Florida Statutes. Florida Housing has adopted Chapter 67-60, Florida Administrative Code, which governs the competitive solicitation process for several programs, including the SAIL program. Other administrative rule chapters relevant to the selection process are chapter 67-48, F.A.C., which governs competitive affordable multifamily rental housing programs; chapter 67-21, Florida Administrative Code, which governs multifamily mortgage revenue bonds ("MMRB") and non-competitive housing credits; and chapter 67-53, Florida Administrative Code, governing compliance procedures. Applicants for funding, pursuant to the RFA, are required to comply with provisions of the RFA and the applicable rule chapters. La Joya is a Florida limited partnership based in Miami, Florida, and is also in the business of providing affordable housing. On October 9, 2015, Florida Housing issued the RFA, seeking applications from developers proposing to construct multifamily housing for families and for the elderly. The RFA outlined a process for the selection of developments to share the estimated $49 million in funding for eligible applicants. Among the stated goals of the RFA is to fund one new construction development serving the elderly in a large county, with priority given to the highest ranked eligible new construction application for the elderly that is located in Miami-Dade County. The RFA provides that if there are no eligible Miami-Dade County applications that qualify, then the highest ranking eligible new construction development serving the elderly in Broward County will be selected. A total of 23 applications were filed in response to the RFA. On November 9, 2015, Douglas Gardens timely submitted its Application, numbered 2016-177BS, seeking $5,781,900 in SAIL funding to assist in the development of a proposed new construction development for the elderly in Broward County. Douglas Gardens’ was the only “new construction” application submitted for Broward County. Also on November 9, 2015, La Joya timely filed its Application, numbered 2016-178S, seeking $5,778,100 in SAIL funding to assist in the development of a proposed new construction development for the elderly in Miami- Dade County. La Joya’s was the only application submitted for Miami-Dade County in any development category. The executive director of Florida Housing selected a review committee to review and score the applications. The review committee issued a recommendation of preliminary rankings and allocations. Florida Housing’s Board of Directors approved these recommendations on December 11, 2015. The Board of Directors found both La Joya and Douglas Gardens eligible for funding, but awarded funding to La Joya on the basis that it was the highest ranked, eligible, elderly, new construction application located in Miami-Dade County. On December 16, 2015, Douglas Gardens timely filed a notice of intent to protest. On December 28, 2015, Douglas Gardens timely submitted a Formal Written Protest and Petition for Administrative Hearing. The RFA awarded up to 18 “proximity points” to an applicant based on its project’s location in relation to transit and community services such as grocery stores, medical facilities, and pharmacies. The RFA required each applicant to submit a “Surveyor Certification” form, which included longitude and latitude coordinates corresponding to the location of the proposed development site and the site’s proximity to listed services that would presumably serve the proposed development. Each applicant was required to retain a Florida licensed surveyor to prepare and submit the Surveyor Certification form and to sign the form attesting, under penalty of perjury, that the information on the form is true and correct. In the bottom left hand corner of each page of the form is a blank line on which the applicant or surveyor was to indicate the RFA number for which the form was being submitted. Beneath the blank line is a parenthetical indicating the identification number of the form, e.g., (Form Rev. 07-15). Section Four A.6.a.(1) of the RFA provided the following regarding the Surveyor Certification form: In order to meet the Mandatory requirement and be eligible for proximity points, all Applicants must provide an acceptable Surveyor Certification form, (Form Rev. 07- 15), as Attachment 14 to Exhibit A, reflecting the information outlined below. The Surveyor Certification form (Form Rev. 07-15) is provided in Exhibit B of this RFA and on the Corporation’s website Note: The Applicant may include the Florida Housing Surveyor Certification form that was included in a previous RFA submission for the same proposed Development, provided (i) the form used for this RFA is labeled Form Rev. 07-15, (ii) other than the RFA reference number on the form, none of the information entered on the form and certified to by the signatory has changed in any way, and (iii) the requirements outlined in this RFA are met. The previous RFA number should be crossed through and RFA 2015-112 inserted. If the Applicant provides any prior version of the Surveyor Certification form, the form will not be considered. (Emphasis added). Section Three C.1. of the RFA provided that Florida Housing reserved the right to waive “Minor Irregularities” in the applications. Florida Administrative Code Rule 67-002(6) defines “Minor Irregularity” as variation in a term or condition of an Application pursuant to this rule chapter that does not provide a competitive advantage or benefit not enjoyed by other Applicants, and does not adversely impact the interests of the Corporation or the public. Florida Administrative Code Rule 67-60.008 titled “Right to Waive Minor Irregularities,” provides as follows: The Corporation may waive Minor Irregularities in an otherwise valid Application. Mistakes clearly evident to the Corporation on the face of the Application, such as computation and typographical errors, may be corrected by the Corporation; however, the Corporation shall have no duty or obligation to correct any such mistake. La Joya submitted a Surveyor Certification form as Attachment 14 of its Application. The identification number in the parenthetical in the bottom left hand corner was “(Form Rev. 10-14)” rather than the specified “(Form Rev. 07-15).” Form Rev. 10-14 was the Surveyor Certification form used for 2014 applications. The only difference between Form Rev. 10-14 and Form Rev. 07-15 is that the latter contains a revised list of location coordinates for several Sun Rail stations in the Orlando area. This difference was of no matter to the RFA under discussion. For the substantive purposes of this RFA, the forms were identical. If La Joya’s Surveyor Certification form had not been considered and not scored, La Joya would have been ineligible for funding and Douglas Gardens would have been selected as the applicant meeting Florida Housing’s goal of funding one new construction development for elderly residents in a large county. Heather Boyd, multifamily loan manager for Florida Housing, sat on the review committee and was assigned to score the proximity portion of the applications. Based on the distances provided in the Surveyor Certification form, Ms. Boyd awarded La Joya a total of 11.5 proximity points as follows: 5.5 points for proximity for Public School Bus Rapid Transit Stop, 3 points for proximity to a Grocery Store, and 3 points for proximity to a Medical Facility. (La Joya also included coordinates for a Public School, but the proposed elderly development was not eligible for Public School proximity points.) To be considered eligible for funding, an applicant needed to receive at least 10.25 proximity points, including at a minimum 2 points for Transit Services. No issue was raised as to the accuracy of the information submitted by La Joya or of Ms. Boyd’s calculation. If it was permissible to consider La Joya’s Surveyor Certification form, then La Joya satisfied the proximity requirements in the RFA and was properly awarded funding. If La Joya’s Surveyor Certification form had been rejected, La Joya would not have been awarded funding and Douglas Gardens would have been awarded funding. Florida Housing’s decision to award funding to La Joya was based in part on Ms. Boyd’s scoring of the Surveyor Certification form and reflected the agency’s support of Ms. Boyd’s action. However, during the pendency of Douglas Gardens’ protest, Florida Housing changed its position and determined that La Joya’s Surveyor Certification form should not have been considered, based on the mandatory language of section Four A.6.a.(1) of the RFA. Ms. Boyd testified that she did not notice that La Joya’s Surveyor Certification form was a prior version and that she scored it as if it were the current version. She testified that she should not have scored the form “[b]ecause it specifically says in the RFA, if they do not have the correct form, they will not be considered.” Jean Salmonsen, housing development manager, acted as a backup to Ms. Boyd in reviewing the Surveyor Identification forms and verifying the award of proximity points. Ms. Salmonsen testified that she, too, missed the fact that La Joya had filed the wrong version of the form and that she would have rejected the form had she correctly recognized it. Evidence presented at the hearing indicated that in January 2016, Ms. Salmonsen had in fact disqualified an application in a different RFA for submitting the 2014 version of the Surveyor Identification form. Several valid policy reasons were cited for the RFA’s requirement that applicants use only the current version of the Surveyor Identification form. Ken Reecy, Florida Housing’s Director of Multifamily Programs, testified that it is important to apply the rules and RFA criteria in a consistent manner because of the tremendous volume of applications the agency receives. Mr. Reecy stated, “For like criteria, yes, consistency. We live and die by consistency, frankly.” As to the Surveyor Certification form specifically, Mr. Reecy explained that over the years Florida Housing had used a number of different forms with different contents. Allowing applicants to submit different forms would add to the difficulty of scoring the hundreds of applications received from around the state. Uniformity and consistency as to applicant submissions allow Florida Housing to process all of these applications in a cost efficient manner. Though he expressed his concern with consistency of review and ensuring that all applicants provide the same information as reasons for rejecting La Joya’s submission of the 2014 Surveyor Certification form, Mr. Reecy conceded that one of the reasons Florida Housing moved away from the previous rigid Universal Application Cycle allocation process was to allow for flexibility in determining that insignificant scoring errors need not be the basis for disqualifying an otherwise acceptable application. Florida Housing’s recent adoption in 2013 of the “Minor Irregularity” rule is further indication of its intent to employ more flexible evaluation criteria than it has in the past. See Findings of Fact 14 and 15, supra. Mr. Reecy acknowledged that in the instant case, the substance of the 2014 and 2015 Surveyor Certification forms was identical, and that the information provided by La Joya using the 2014 form was the same information required by the 2015 form.
Recommendation Based on the foregoing, it is RECOMMENDED that a final order be entered by the Florida Housing Finance Corporation dismissing the Formal Written Protest and Petition for Administrative Hearing filed by Douglas Gardens V, Ltd., and finding that La Joya, Ltd. is eligible for funding under Request for Applications 2015-112. DONE AND ENTERED this 29th day of February, 2016, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of February, 2016.
