Findings Of Fact The Respondent, Sergio J. Alcorta (Alcorta), is licensed by the Department of Business and Professional Regulation (Department) as a professional engineer, license number PE 0014464. Alcorta is not licensed by the Department as a contractor. Alcorta has a company called mrf building systems, inc. Alcorta d/b/a mrf building systems, inc. is not listed in the records of the Contractors Section, Dade County Building and Zoning Department as a certified contractor doing or contracting for work in the building trades in Dade County. Hurricane Andrew, which hit the Miami area in August, 1992, damaged the home of Kenneth and Elizabeth Quinn. A friend of the Quinns referred them to Alcorta for assistance. By letter dated September 15, 1992, Alcorta outlined a discussion he had with the Quinns. The letter stated: Per our discussion, I will assist you in dealing with your insurance carrier and other construction workers to ensure that all hurricane damages are accounted for and the work is properly performed. I will prepare an initial damage evaluation report of all damages for the insurance adjuster and facilitate on your behalf the transfer of funds from your mortgage holder to you and to any pertinent party. My fees will be $150 for the initial evaluation and $500 at the end of construction work where you require my assistance. By letter dated September 16, 1992, Alcorta advised the Quinns of his findings concerning the damage to their residence. The engineer's report was prepared on the letterhead of Nu-Tech Engineering Services. Alcorta contacted a general contractor to see if the contractor could perform the work required to repair the Quinn's house. The contractor advised Alcorta that only a roofing permit would be required for the job and that because of the work he was already committed to do, he did not know when he could complete the repairs. Alcorta and Mr. Quinn signed a proposal on mrf building systems, inc. letterhead dated September 29, 1992. The proposal provided: We propose to furnish all materials, labor, tools, and equipment to repair the storm damaged dwelling at the above referenced location as follows: Roof recovering with shingles and ply- wood sheathing repairs $7,500. Structural repairs to concrete columns, stucco repairs as necessary $2,500 Enclosing terrace with new exterior walls and french doors $7,500 Retiling terrace room and pool area $2,000 Securing cabinets and other interior damage $1,000 Removal, installation of solar collector $500 New terrace central air conditioner $2,000 Exterior fencing $3,000 Total repair estimate $26,000 TERMS: One third down payment upon execution of the contract. Partial payments upon completion of work segments. Estimated time for completion of job: 21 days. On mrf building systems, inc.'s letterhead dated September 30, 1992, Alcorta provided Ms. Quinn with an estimate for interior painting, taking off the roof mounted solar collector and reinstalling it on the new roof, replacing roof insulation, structural epoxy repair, and replacing torn vent screens. Alcorta was paid approximately $14,650 by the Quinns on this project. Alcorta in turn paid for some of the materials and labor used on the project. The checks from the Quinns were made payable to Alcorta, not to mrf building systems, inc. By letter dated October 2, 1992, on mfr building systems, inc., letterhead, Alcorta forwarded a copy of the contract with the Quinns to the Quinn's mortgage company advising them that the Quinns had given him a down payment of $4,000 and listing the anticipated completion dates for the various tasks to be performed. Alcorta bought supplies and had laborers come to the site to perform work. There was no licensed contractor on the job. The only building permit pulled on the project was obtained by Elizabeth Quinn, the homeowner. The building permit did not carry the disclosure statement required by Section 489.103(7), Florida Statutes. Alcorta witnessed Ms. Quinn's signature on the application for building permit. Alcorta did not advise the Quinns that they were to act as contractors per Section 489.103(7), Florida Statutes. The Quinns did not supervise the construction on the project but relied on Alcorta to supervise the work. Alcorta was not an employee of the Quinns. The Quinns experienced problems with the roofing work performed pursuant to the contract with mrf building systems, inc. The roof leaked, requiring the Quinns to have the roof replaced at a cost of $10,000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Sergio J. Alcorta violated Section 489.127(1)(f), Florida Statutes (1992 Supp.), and assessing an administrative penalty of $3,000. DONE AND ENTERED this 20th day of November, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 1996. COPIES FURNISHED: Donna Bass, Senior Attorney Department of Business and Professional Regulation Division of Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 Mr. Sergio J. Alcorta Nisky Center, Mail Box 401 Charlotte Amalie St. Thomas, Virgin Islands 00802 Lynda Goodgame, Genral Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue presented for decision herein is whether or not Respondent's certified general contractor's license should be revoked, suspended, or otherwise disciplined based on conduct set forth in two Administrative Complaints filed herein dated March 14 and July 19, 1984.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. At all times material hereto, Respondent was a certified general contractor in Florida and has been issued license number CGC 015834. 3/ (Petitioner's Exhibit 1) Petitioner is an agency of the State of Florida responsible for enforcing the provisions of Chapter 489, Florida Statutes, relating to the imposition of licensure standards and standards for the practice of contracting. During times material hereto, Respondent was a full-time employee of the Metropolitan Dade County Aviation Authority. At no time during his employment with the authority did Respondent advise the Dade County Aviation Authority that he was performing work outside the scope of his employment while on County time. When confronted with the results of an investigation undertaken by the Dade County Attorney's Office in June of 1983 with regard to his (Respondent's) possible violation of the Code of Metropolitan Dade County, Respondent resigned from his position with the County. (Tr. pages 101-102) DOAH CASE NO. 84-1298 During late February, 1983, Albert Kairy contracted with an unlicensed contractor for the closure of a carport at his residence located in North Miami, Florida. After observing Respondent's classified advertisement in a local flier, Kairy contacted Respondent with regard to preparing necessary blueprints for the enclosure. Kairy contracted with Respondent to prepare both the blueprints and to supervise the activities of the unlicensed contractor. The contract amount was $400. On February 25, 1983, Kairy received an owner/builder permit for the carport enclosure from the City of North Miami. (Tr. pages 7-10, 93) Subsequently, problems began to develop with work performed by the unlicensed contractor and Respondent persuaded Kairy to dismiss that individual and to retain him as the contractor. On March 7, 1983, Respondent entered into a contract with Kairy to construct a room addition to the residence. (Petitioner's Exhibit 2) The project was to be completed pursuant to plans and specifications approved by the City of North Miami. The contract called for a bedroom addition; an additional bathroom and a utility room. The contract included extending the carport wall approximately 101 feet. The contract price was $14,500 which included an advance of $2,500. On March 12, 1983, Respondent entered into a second construction contract with Kairy. (Petitioner's Exhibit 3, Tr. 19) The contract price was $15,000. Except for the increase in the contract price, Kairy was led to believe that the terms and conditions of the second contract were substantially similar to the contract previously executed by the parties on March 7, 1983. However, Respondent reduced the extension of the carport wall to 10 feet and Respondent did not inform Kairy of this reduction. (Tr. page 48) The contract called for draw payments as follows: $4,000 as a downpayment/advance; $3,000 upon completion of slab and block walls; $1,500 upon completion of piping and tie-columns; $2,500 upon completion of partition and drywall; $3,000 upon completion of the roof, and $1,000 upon completion of the job. (Petitioner's Exhibit 3) Respondent subsequently applied for a permit from the City of North Miami. The City of North Miami denied Respondent's application because Respondent failed to comply with the Dade County licensing requirements. (Tr. pages 21-22) Although Respondent acted in the capacity of a general contractor, he (Respondent) requested that Kairy obtain a owner/builder permit. Upon applying for the owner/builder permit, the City cancelled the original permit for the carport enclosure. (Tr. page 94) Kairy obtained the owner/builder permit pursuant to Respondent's assurances the permit would be properly transferred to Respondent's contracting license. The City provided Kairy with a "hold harmless letter" for Respondent to execute. (Petitioner's Exhibit 4) Upon presentation of that letter by Kairy to Respondent, Respondent refused to execute the "hold harmless letter." (Tr. pages 22-24) Subsequently, Kairy and Respondent executed an addendum to the construction contract. The addendum involved changing the enclosures roof structure from shingle to barrel tile. This change involved a price difference of $1,950 and increased the total contract price to $16,950. (Petitioner's Exhibit 5, Tr. pages 31-32) The addendum was executed after completion of the tie-beam and tie- column portion of the construction project. Pursuant to the terms and conditions of the March 12, 1983 construction contract, Kairy provided Respondent with the following amounts: $4,000 as an advance/downpayment on March 21, 1983; ($2,500 under the March 7 contract plus an additional $1,500); $3,000 upon completion of the slab and block work; $400 for preparation of the original set of plans; $500 toward tinted windows; $1,500 upon completion of the tie-beam and tie- column; $1,500 as an advance on the barrel tile roof; and $1,500 as an advance upon the completion of the roofs. (Petitioner's Exhibit 6) Kairy paid Respondent a total of $12,400 on the total contract price of $16,950 or approximately 73 percent of the contract price. Kairy timely remitted to Respondent installment payments for the slab and block work, tie- beam and tie-columns and advanced Respondent $3,000 towards completion of the roof. During April, 1983, Respondent commenced construction for enclosing the roof structure. Respondent ceased all construction activity upon being informed (by Kairy) that he would no longer pay Respondent in cash. (Tr. page 44) Respondent refused to accept payment in any form other than cash and offered no explanation, reason or excuse to Kairy for the cessation of work on this project. Kairy offered several reasons for his refusal to pay contract installments in cash. First, Respondent refused to execute the hold harmless letter provided by the City of North Miami and Respondent failed to properly supervise the construction activities by, among other things, disappearing from the project for a period of approximately three weeks. Finally, Respondent requested additional advances on the contract while the project was not progressing as scheduled. (Tr. pages 28, 44-46) Respondent did not return to the construction site after Kairy refused cash payments. On July 20, 1983, Respondent's roofing subcontractor filed a claim of lien against Kairy's property in the amount of $1,210. (Petitioner's Exhibit 8) Respondent has failed to satisfy the claim of lien and Kairy is in the process of satisfying that claim. (.Tr. page 54) Respondent also failed to pay an electrical subcontractor for services provided in the amount of $965. (Petitioner's Exhibit 7) Again, Kairy is currently in the process of satisfying that debt and Respondent refuses to honor that obligation. (Tr. 57) Kairy reimbursed the plumbing subcontractor in the amount of $675 after Respondent's personal check was returned due to insufficient funds. (Tr. page 62 and Petitioner's Exhibit 9) On April 1, 1983, the City of North Miami Building Department inspected the foundation and slab. On April 18, 1983, the Building Department inspected the tie-beam and columns. On May 6, 1983, the City of North Miami Building Department performed a tin-cap inspection on the enclosure roof. The City of North Miami Building Department estimated the actual construction completed when Respondent left the project and determined that it was approximately 70 percent complete. Completed construction included the slab, foundation, walls and tie-beam. Little interior construction work had been performed and drywall and partition walls were only partially complete. Kairy has either expended or will be required to expend the following sums in connection with the contract with Respondent: $12,400 - the amount paid directly to Respondent; $1,210 - the amount of the roofer's lien; $965 representing the amount owed to the electrician; and $675 representing the amount Kairy paid the plumbing subcontractor for a total of $15,250. 4/ Although Respondent completed approximately 70 percent of the actual construction, Kairy will correspondingly be required to expend approximately 90 percent of the contract price over and above monies paid to Respondent to complete this project. DOAH CASE NO. 84-3202 On May 12, 1983, the City of Miramar issued William Borden an owner/builder permit for the construction of a four-bedroom, three-bath home to be located in Miramar, Florida. (Petitioner's Exhibit 8) Between May and October, 1983, the Bordens performed the site preparation necessary for pouring the building's foundation and slab. After observing Respondent's classified advertisement in a local flier, the Bordens contacted Respondent with regard to the construction of their home. (Tr. page 16) On November 11, 1983, Respondent contracted with the Bordens to provide certain contracting services relative to the construction of their home. The Bordens contracted Respondent to pour the foundation and slab, perform the block work, frame and pour the tie-beam and tie-columns. (Petitioner's Exhibit 3, Tr. pages 18-20) The Bordens were to complete all of remaining construction of their home) The contract price was approximately $16,810. On October 17, 1983, the City of Miramar issued William Borden an owner/builder permit. (Petitioner's Exhibit 7) William Borden was to install the rough plumbing prior to Respondent pouring the foundation and slab. (Tr. 33) Due to certain time constraints, Respondent offered to install the rough plumbing. On October 25, 1983, Respondent received $475 from the Bordens toward installation of the rough plumbing. Respondent failed to subcontract the installation of the rough plumbing and failed to obtain the necessary building permit. On November 8, 1983, the Bordens provided Respondent an additional $470 representing final payment for installation of the rough plumbing. (Petitioner's Exhibit 4) On November 1, 1983, Mr. Bill Lafferty, chief building and mechanical inspector for the City of Miramar, performed an inspection of the rough plumbing work performed for the Bordens by Respondent. Lafferty determined that Respondent had failed to install the rough plumbing in accordance with provisions of the South Florida Building Code as adopted by the Broward County Code. As a consequence, Lafferty required Respondent to remove and reinstall the rough plumbing in accordance with applicable building code provisions. On November 7, 1983, Lafferty reinspected and approved the rough plumbing as reinstalled by Respondent. (Tr. pages 51-55) Respondent reinstalled rough plumbing at the Borden residence during the first week of November, 1983. Respondent did not obtain a building permit prior to reinstalling the rough plumbing. On November 16, 1983, the City of Miramar levied against Respondent a fee totalling $163.45. Part of that levy included $63.45 for renewal of the building permit and reinspection fee, and the remaining $100 represented a fine against Respondent for failing to properly obtain a building permit. (Tr. pages 58, 64 and Petitioner's Exhibit 7) On November 10, 1983, Salvatore Jenco, structural building inspector for the City of Miramar Building Department, inspected and approved the footing slab for the Borden residence. Subsequently, Respondent poured the concrete slab and foundation. Respondent did not obtain the requisite building permit prior to proceeding with construction. Respondent could not properly proceed with construction pursuant to William Borden's owner/builder permit. On November 11, 1983, inspector Jenco reinspected the concrete slab and foundation as poured by Respondent. As a result of that inspection, Jenco ordered all construction activities to be stopped at the Borden project. Specifically, Respondent materially deviated from the architect's plans and specifications by failing to pour a monolithic (continuous) slab and foundation for the Borden residence. As result of that deviation, the structural integrity of the building was compromised. (Tr. pages 71-73) Construction activity at the Borden residence was halted approximately three weeks while the Borden's architect developed a new set of blueprints. After the City approved the revised blueprints, Respondent began laying blocks and framing the tie-beam. Subsequently, Respondent requested Sunshine Concrete Company to commence pouring the tie-beam. The concrete company requested payment in cash due to the fact that Respondent had previously tendered a check to Sunshine Concrete Company which was returned due to insufficient funds. When informed of the concrete company's demands, the Respondent ordered the company to cease pouring the tie-beam. Upon being informed the tie-beam required a continuous pour, Respondent left the construction site and the Bordens were required to directly reimburse the concrete company. Respondent abandoned the project and has not returned to the construction site. Respondent owes the Bordens approximately $4,696 in reimbursed expenses. (Tr. pages 40-42) Respondent's Defense In DOAH Case No. 84-1298, Respondent did not offer any testimony to refute or otherwise rebut the allegations set forth in the Administrative Complaint. Respondent refused to be placed under oath when he made statements as to his position in Case No. 84-3202.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent's certified general contractor's license be suspended for a period of two (2) years. Additionally, Respondent shall pay to the Construction Industry Licensing Board an administrative fine in the amount of $2,500. However, if Respondent provides the Construction Industry Licensing Board with sufficient evidence indicating settlement and satisfaction of the existing disputes between Mr. Albert Kairy and Mr. and Mrs. William Borden, the suspension shall be reduced to one (1) year after which time it is recommended that his license be reinstated. RECOMMENDED this 8th day of May, 1985, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 9th day of May, 1985.
Findings Of Fact At all times material hereto, Respondent was licensed by the Construction Industry Licensing Board as a registered roofing contractor (RC- 0034055), building contractor (CB-C033206), and certified roofing contractor (CC-C035625). At the time of hearing, license RC-0034055 had expired and was no longer in effect. Although Petitioner introduced a "certification of licensure", executed by its custodian of records which purports to establish prior disciplinary action by the Construction Industry Licensing Board against Respondent, said certification references license number CG-C024378. There is no documentation in the record to establish that Respondent has license number CG-C024378, and in any event if this is, in fact, his license, this case does not involve license number CG-C024378. The records' custodian was not present to testify or to be cross-examined, and therefore this apparent discrepancy in the certification is unexplained. Further, the only documentation introduced to support prior disciplinary action by the Board against one of Respondent's licenses, is a certified copy of an order dated August 7, 1985 (Case No. 0051210), but this case involves license RC-0034055, which expired in July 1987 and is no longer in effect. Therefore, it has not been established by evidence in this record that Respondent has previously been subject to disciplinary action by the Construction Industry Licensing Board concerning his current valid licenses, CB- C033206 and CC-C035625. Respondent was the qualifying agent at all times material hereto, of Unique Construction, Inc., 1302 North Clearview Avenue, Tampa, Florida. On February 25, 1986, George Katsarelis entered into a sales contract with Unique Construction, Inc., to reroof his entire house at 6 Venetian Court, Tarpon Springs, Florida. Respondent was not present when the contract was executed, and had not met Katsarelis at the time work commenced on the job. Katsarelis specified to the salesman representing Unique Construction, Inc., that he wanted to be sure all required local permits were pulled for this job. Work on the Katsarelis roof began within only a few days of the execution of the sales contact. Crews from Unique Construction tore off approximately 80% of the Katsarelis roof before a City of Tarpon Springs building inspector stopped work on the job because no permit had been obtained. Thereafter, it took two days for Unique to put a temporary cover over Katsarelis' uncovered roof while a permit was being obtained. A permit was finally obtained on March 19, 1986, and the work was completed. Katsarelis paid Unique Construction, Inc., $7,000, the full contract amount, for reroofing of his home. Between February 25, 1986, and December 1987, Katsarelis had to repeatedly call Unique Construction since his roof leaked every time it rained. A ten foot ceiling section in his Florida room eventually caved in due to these leaks. In December 1987, Respondent came to Katsarelis' home for the first time and decided to reroof the whole house for a second time. No additional payment was required or made by Katsarelis for this second reroofing job. After a hard rain in April 1988 his roof again leaked, and within a week prior to hearing, Respondent made a third attempt to correct Katsarelis' leak problem. According to expert testimony and evidence offered at hearing by Owen Baynard, who was accepted as an expert in roofing, work performed by Unique Construction on the Katsarelis roof was incompetent and the result of a lack of proper supervision of the work crews by the qualifying agent, Respondent. The job fails to meet the standards of local building practices. There was improper and insufficient preparation of the roof surface, a lack of adequate adhesive, nailing, and mopping to meet Sections 101, 107, 109 and 113 of the Southern Standard Building Code Roof Coverings standards, applicable in this case. The only way to remedy Katsarelis' continuing leak problem is to completely redo all work done by Unique Construction on his roof, and completely reroof his house in a workmanlike manner. As qualifying agent for Unique, Respondent was responsible for beginning work on Katsarelis' roof without obtaining or assuring that someone else had obtained a local permit for the job. A permit was not posted on the site when this work began, in violation of local building code requirements. Respondent failed to obtain required local building department inspections on the job. Respondent's actions on the Katsarelis job, as qualifying agent and in actions taken personally on two occasions to correct continued leakage, were incompetent and of substandard quality. On December 17, 1986, Lawrence E. Burkett entered into a sales contract with Unique Construction, Inc., to reroof his home on 62nd Avenue, N.E., in St. Petersburg, Florida. Work commenced shortly after this contract was executed, and upon completion Burkett paid Unique $3,657, the contract amount. Respondent admits that leaks continued to exist in Burkett's roof for nine or ten months after Unique's crews worked on his roof. Finally, on September 16, 1986, Unique's crew replaced a section of roof and this corrected the leaking. In an attempt to correct or prevent damage from leakage, Unique's crews installed pans between Burkett's drop ceiling and the roof to catch water which was leaking into his Florida room. A permit was not posted on the Burkett job, but the record does not establish whether a local permit for this job was required to be posted. On or about February 23, 1987, Respondent was issued a letter of reprimand by the United Construction Trades Board of the City of Tampa. However, no action was taken against his local certificate. This reprimand resulted from a roofing job performed by Respondent on the home of Gerald T. Minnick in late 1986. Repeated attempts by Respondent to correct leakage in the Minnick roof failed.
Recommendation Based upon the foregoing, it is recommended that the Construction Industry Licensing Board enter a Final Order suspending Respondent's licenses numbered CB-C033206 and CC-C035625 for a period of six (6) months and imposing an administrative fine of $2,500; provided that after the expiration of thirty (30) days from the issuance of the Final Order if Respondent pays said fine in full, his license shall be immediately reinstated. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 5th day of August, 1988. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 Filed with the Clerk of the Division of Administrative Hearings this 5th day of August, 1988. COPIES FURNISHED: David Bryant, Esquire 220 East Madison Street Tampa, Florida 33602 William E. Whitlock, III, Esquire 116 East 3rd Avenue Tallahassee, Florida 32303 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
The Issue Whether Petitioner is entitled to licensure as a Certified Building Contractor or Residential Contractor.
Findings Of Fact Petitioner is a 44-year-old male. He was born and raised in Tallahassee, Florida. He is a high school graduate. Petitioner passed the examination for licensure as a certified building contractor. This is a comprehensive examination that is designed to test knowledge in all aspects of the construction industry. Passing it is a mandatory prerequisite before an application can be considered by the Florida Construction Industry Licensing Board (FCILB). However, passing the examination does not eliminate or modify the statutory or rule experience requirements. Petitioner submitted his application for a certified building contractor license on or about March 24, 2008. By letter of May 2, 2008, the Department of Business and Professional Regulation requested additional information. Petitioner then provided a revised affidavit from Chad Banks, a certified building contractor, and a letter from the Maintenance Construction Chief of the City of Tallahassee’s Gas Utility Department, each containing more detailed information about Petitioner’s experience. These items were received by Respondent on May 23, 2008. It is not clear whether Petitioner requested and was granted a continuance of his appearance with regard to the instant license application at an earlier FCILB meeting, but on January 15, 2009, the full Board considered Petitioner’s application at a duly-noticed public meeting in Altamonte Springs, Florida. At that time, Petitioner was present. During his appearance before the full Board on January 15, 2009, Petitioner was very nervous, but he believes that one of the Board members offered him, or at least asked him if he would accept, a residential contractor’s license in place of a certified building contractor’s license, and that he answered that he would accept such a license, only to have that “offer and acceptance” voted down by the full Board. However, Petitioner does not rule out the possibility that the vote taken at the meeting was actually with regard to denying the certified building contractor license for which he had applied. There is no evidence that Petitioner has ever submitted an application for a residential contractor’s license. By a Notice of Intent to Deny, dated March 16, 2009, and mailed March 24, 2009, the FCILB formally denied Petitioner’s application for a certified building contractor License stating: The applicant failed to demonstrate the required experience, pursuant to Section 489.111, Florida Statutes and Rule 61G4- 15.001, Florida Administrative Code. Petitioner seeks licensure as one who has four years of active experience and who has learned the trade by serving an apprenticeship as a skilled worker or as a foreman, at least one year of which experience is as a foreman. Petitioner has never worked as a full-time employee of a commercial or residential contractor. Petitioner got early experience in construction working around eight rental properties owned by his father. He performed light carpentry, deck construction, general handyman repairs, and some plumbing and roofing when he was approximately 16 to 21 years of age. However, Petitioner essentially relies on a work history that includes working as a plumber for Jim Bennett Plumbing from 1987 to 1993; as a foreman for the City of Tallahassee Gas Department from 1995 to 2005; as a “contractor trainee” for Chad Banks from 1999 to 2002; as having volunteered as superintendent for Gulf Coast Painting from 2003 to 2007; and as a maintenance man for the City of Tallahassee Parks Department from 2006 to 2007. Petitioner’s dates of employment overlap, because his volunteer experience was acquired mostly on weekends, holidays, in hours after he had already completed a full work day for the City of Tallahassee, or on “time off” from his regular employments with the City. Petitioner is a hard worker and wanted to learn the construction trade, but his volunteer construction jobs were intermittent, and he provided no clear assessment of the number of hours per week or month that he put in for any of them. From 1987 to 1993, Petitioner worked for Jim Bennett Plumbing. He started as a plumber’s helper and progressed to greater responsibility. In that position, he acquired a wide range of experience in plumbing for some residential, but mostly commercial, buildings. During this period, he also did some light cosmetic carpentry and tile work to restore building parts damaged by the installation of plumbing apparatus. Much of Petitioner’s construction experience relates to his association with Chad Banks, who testified that at all times material, Petitioner had “hands on” experience, working for him and that Petitioner was a competent worker. Petitioner has never been a “W-2 employee” of Mr. Banks, but there is no specific statutory or rule requirement that the experience necessary to qualify for the certified building contractor or the residential contractor license must be as a “W-2 employee.” Cf. Conclusions of Law. Mr. Banks was not licensed as a certified building contractor until 1999. Petitioner did some work for Mr. Banks when Mr. Banks was working as a sub-contractor on commercial projects (specifically one or more Super-Lube buildings) prior to Mr. Banks obtaining his certified building contractor’s license in 1999. Most of this employment involved pouring concrete slabs. Petitioner claims experience in “elevated slabs,” limited to the construction of a single Super-Lube building, which Petitioner described as laying a slab below ground level for mechanics to stand on and an at-ground level slab for cars to drive onto the lift for an oil change. He described no truly “elevated” slabs or floors above ground level on this project, and Petitioner’s and Mr. Banks’ testimony was vague as to Petitioner’s responsibilities on this project and as to the project’s duration. The general contractor on this project for whom Mr. Banks “subbed” did not testify. From this, and other employments, Petitioner has experience pouring foundation slabs, but he has never worked on a foundation slab in excess of 20,000 square feet. Petitioner also assisted in Mr. Banks’ construction of some rental sheds, but it is unclear if this was before or after Mr. Banks was licensed. Petitioner worked for Mr. Banks d/b/a C. B. Construction, Inc., in a volunteer capacity on exclusively residential construction from 1999 to 2002, and again from February 2004 to March 2008. During these periods, Petitioner and Mr. Banks considered Petitioner a “contractor trainee,” but Petitioner’s work for Mr. Banks was neither exclusive nor continuous; both men described it as “volunteer” work; and some of it seems to have amounted to Petitioner's looking over work done personally by Mr. Banks and having Mr. Banks explain to him, via a plan sheet, what Mr. Banks had already done personally. There is no evidence that during this time frame Petitioner worked for Mr. Banks as a foreman. Petitioner has the ability to “read” many types of construction “plans.” Petitioner has experience with slab footers, but he has not constructed red iron structural steel qualified for framing a building. Petitioner has experience in decorative masonry walls, but he has not constructed structural masonry walls of a type that would support framing members of a building or other vertical construction. Petitioner also worked for the City of Tallahassee as a “W-2” employee, mostly as a foreman overseeing a crew of four workers, from 1995 to 2005. In that capacity, he worked on a church, but the church itself had been constructed several years previously, and Petitioner’s crew’s contribution was tying-in several gas lines during a roadway development project and keeping all the utilities up and running during the project, while a private contractor worked on the church. With regard to the foregoing project and many others for the City Utilities Department, Petitioner directed a crew that built sidewalks and gutters or that tied these features into existing roadways and driveways. In that capacity, he often coordinated activities with residential contractors. Over his ten years’ employment with the City Utilities, Petitioner also directed a crew that exclusively created underground vaults for the housing and shelter of utility apparatus. However, none of his endeavors for the City Utilities involved vertical structural construction for floors above ground. Petitioner has also built new gas stations for the City’s natural gas vehicles, and has erected pre-fab utility buildings, including much slab work, but the nature and duration of these endeavors is not sufficiently clear to categorize them as qualifying him for the certified building contractor license. Most of Petitioner’s experience with the City, as substantiated by the letter of the City Utilities Maintenance Construction Chief, Mr. Lavine, has been in the construction of driveways, roads, gutters, storm drains, sidewalks, culverts, underground utility structures, plumbing and gas lines. While it is accepted that Petitioner has worked on such projects, this type of work more properly falls in the categories of “plumbing contractor” or “underground utility contractor” and Mr. Lavine was not demonstrated to have any certification/licensure in a category appropriate to Petitioner’s application. (See Conclusions of Law.) Sometime after 2005, for approximately a year, Petitioner was employed by the City of Tallahassee Parks and Recreation Department and in that capacity participated in at least one construction of a dugout and a concession stand at one of its playgrounds. He also did repairs on several dugouts and concession stands, but this latter work would not be classified as “structural” construction. Petitioner’s experience in precast concrete structures is limited to his work with gas utility structures, but does not include work on precast tilt walls, which are the type of walls that are constructed off-site, delivered to the job site, placed on the slab foundation, and raised in place as part of an on- going commercial building project. Petitioner has no experience in column erection. “Columns” in this context within the construction trade refers to supports for upper level structural members, which would entail vertical construction. Petitioner’s experience in concrete formwork does not include experience in the structurally reinforced concrete formwork that would be used in vertical buildings, such as all floors above ground level. FCILB’s Chairman testified that the Board interprets the type of experience necessary to comply with the statutes and rules, more particularly Florida Administrative Code Rule 61G4- 15.001(2), to be “structural experience.” There is no affirmative evidence that Petitioner has ever notified the Clerk of the Agency that he was relying on a right to a default license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Construction Industry Licensing Board enter a Final Order denying Petitioner’s application for licensure as a Certified Building Contractor. DONE AND ENTERED this 24th day of November, 2009, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 24th day of November, 2009.
The Issue The issue for consideration in this hearing is whether Respondent's license as a certified building contractor should be disciplined because of the matters set out in the Administrative Complaint.
Findings Of Fact At all times pertinent to the allegations herein, Petitioner was the state agency responsible for the regulation of the construction industry in Florida. Respondent, David P. Miller, was licensed as a certified building contractor under license number CB C039127 and was doing business as Great Southern Construction and Development, Inc. On March 14, 1988, Robert Crowley, a semi-retired real estate broker and promoter, and Treasurer of Enterprise Industrial Park, Inc., (EIP), entered into contracts with the Respondent to construct three buildings, A, B, and H, for it within the park boundaries. Building A was to house offices and retail space; building B was to house warehouse and offices; and building C was to house garage space. The construction was to be financed by an infusion of shareholders' money and by a construction loan from the Southland bank in the amount of $375,000.00. The loan was ultimately increased to $614,000.00 so that EIP could begin development of phase II of the park. The contracts provided for Respondent to be paid $110,000.00 for Building A, $67,000.00 for Building B, and $52,807.00 for Building H. The loan was obtained in phases. The developers had outlined the project to bank officials who approved it, initially, for development of the park and construction of four buildings. Phase one was to include the roadway and one building. When that was completed, the other buildings were to be erected. Site preparation was accomplished by John T. Day. Most of the site preparation was completed before Respondent started construction. Thereafter, as work progressed, Respondent periodically certified to the bank what work had been done and that suppliers had been paid. Upon receipt of that certification, the bank would issue a check for the appropriate amount to EIP which would, thereafter, issue its own check to Respondent. There was an exception, however, in the case of payments to Ludwig Steel. Whereas that supplier would bill Respondent for small items delivered, it demanded payment by cashiers' check upon delivery for major structural steel fabrications. These checks, for steel for Buildings A and B, were for $18,511.84 and $17,716.84, were issued by Southland Bank, at the request of EIP. During the course of his performance of the contracts for the construction of Buildings A, B, & H, Respondent executed several of the above mentioned certification forms. For Building H: These included: a. August 30, 1988 $ 9,505.00 b. October 4, 1988 9,505.00 c. October 17, 1988 9,505.00 d. December 28, 1988 11,881.50 e. January 31, 1989 9,437.50 TOTAL $49,834.00 Prior to these certificates, the bank also released $90,000 in advances for start up costs and the loan in March, April and May, 1988. In addition to the certificates listed above, Respondent also signed certificates for Building A totalling $91,446.00 as follows: a. August 30, 1988 $ 19,800.00 b. October 4, 1988 19,800.00 c. October 17, 1988 19,800.00 d. December 28, 1988 24,750.00 e. January 31, 1989 7,296.00 TOTAL $ 91,446.00 Respondent also signed additional certificates for Buildings B as follows: a. December 28, 1988 $ 46,642.00 b. January 31, 1989 28,031.00 c. March 1, 1989 28,031.00 TOTAL $102,704.00 These certificates were also signed by the architect, Mr. Wilcockson. In fact, they were not correct in that not all the work had been done and not all suppliers had been paid. Respondent admits to falsely signing the certificates but claims he was urged to do so by representatives of EIP who indicated to him it was just a routine procedure. Consequently, even knowing the certificates were not accurate, he signed them because he wanted to get paid. It is found, however, that Respondent has been a licensed contractor for a number of years and knew the implications of his actions. His attempts at justification for his actions are neither credible nor impressive. Construction progressed satisfactorily and without major problems up to the time for the last draw. At that point, the bank declined to issue a check to EIP for the construction of Building C, also to be erected on the site, when it became aware that numerous liens had been filed by subcontractors and materialmen indicating Respondent's failure to make satisfactory payment for buildings A, B, and H. These liens included claims by: American Roll-Up Door Co. $ 3,630.00 B & B Painting Contractors 3,020.00 Blackton, Inc., 5,820.73 Brownie Septic Tank Contractors #1 1,025.00 Brownie Septic Tank Contractors #2 1,025.00 Brownie Septic Tank Contractors #3 1,635.00 Don Alan Dinora 930.00 Energy Savings Systems, Inc. 10,750.00 Florida Mining & Materials 2,388.31 Mid Florida Air Conditioning, Inc. 3,982.00 Neeley-Built Structures, Inc., 4,995.78 Residential Building Supply 7,857.11 Total $47,058.93 Mr. Crowley claims the above liens were satisfied by EIP, and it is so found. He claims EIP also paid some subcontractors who did not file liens because of a desire to help small contractors who otherwise would not have been paid. No figures were available to support that latter claim, however, and it is not considered to be probative of any issue. It is found, however, that Respondent paid Neeley-Built the amount of $4,995.78 and the claim of lien form included within Petitioner's exhibit of filed liens refers to property other than that in issue here. In addition, the $10,750.00 lien of Energy Savings Systems is not totally attributable to services or materials for the instant project. It is estimated that 60 percent of that amount relates to work done outside the three contracts in issue here. Further, only $1,700.00 of the lien of Residential Building Supply relates to material provided for the work done by Respondent under these contracts. The balance relates to work done outside the original contract limits. Over the course of the contracts, EIP paid Respondent, in addition to a deposit of $25,786,99 for Bldgs. A & H, the sums below, for a total of $259,006.72 for Bldgs. A, B, & H: a. Aug. 31, 1988 $19,800.00 for Bldg. A b. Aug. 31, 1988 9,505.00 for Bldg. H c. Oct. 05, 1988 10,793.16 for Bldg. H & A d. Oct. 17, 1988 29,305.99 for Bldg. A & H e. Dec. 14, 1988 19,000.00 f. Dec. 29, 1988 49,417.06 g. Feb. 06, 1989 7,296.00 for Bldg. A h. Feb. 06, 1989 28,310.00 for Bldg. B i. Feb. 06, 1989 9,473.50 for Bldg. H j. Feb. 10, 1989 2,350.00 for misc. k. Feb. 15, 1989 20,000.00 l. Mar. 03, 1989 28,031.00 for Bldg. B In addition to those payments, EIP also paid $16,000.00 to Benson Drywall on December 12, 1988 at the request of Respondent. The total paid by EIP, either to or on behalf of the Respondent, was: $ 25,786.00 deposit 233,280.72 to Great Southern 16,000.00 Benson Drywall 36,228.68 Ludwig Steel $311,295.40 TOTAL Mr. Crowley was not the main source of corporate funds. The President of the company is a Mr. Nelson who was the "money man." Contractor selection was by agreement between Nelson and Crowley, but Crowley was the supervisor of the contracts and did most of the negotiating with Respondent. The work stipulated in the contracts between EIP and Respondent was not the only work called for in their relationship. The contracts provided for the basic construction but Mr. Crowley requested Respondent to perform additional work in or around buildings A, B, and H, which included: Tenant improvements in buildings A and B valued at $23,000 excluding labor; Additional site work including electrical, telephone, grading and filling, berm modification, concrete sidewalks and parking buffers, and repair of damaged concrete (all but the repair of concrete was the result of the failure of the original site preparation contractor to properly complete his work); Negotiations and discussions with Volusia County regarding the sewer/septic system necessary for the project. In addition to the $23,000.00 for tenant improvements mentioned in the paragraph next above, Respondent also paid out of pocket to the following contractors and suppliers for work outside the scope of the original contracts: a. Ludwig Metal Buildings $ 3,000.00 b. Concrete 3,840.00 c. John Bates & family 6,497.73 d. Four Seasons 1,190.00 e. Will Cox 975.00 f. Riley 3,100.00 All Star Electric 4,705.32 Jerry's Concrete Service 1,350.00 TOTAL $24,658.05 Though the contracts referenced in this proceeding pertain to construction of Buildings A, B, & H, Respondent was also retained to erect a metal building to be designated C. Respondent received a total of $253,000.00 from EIP to construct those buildings for which he had the initial contracts and also to put up the metal building, C. The cost to complete Building C was $45,500.00 but EIP had remaining only slightly over $6,000.00 to pay for that work. Respondent did substantial work for EIP which was over and above the services called for under the contracts for Buildings A, B, & H as amended by the change orders for which he was not paid because Mr. Crowley advised him no additional monies were available. For example, he and his brother, Thomas, did additional site work valued by him at $24,260.00; and additional labor and services on the septic and sewer system problems valued by him at $5,600.00 and for tenant improvement, valued by him at $5,000.00. Here, however, it must be noted that the figures cited are not documented by any supporting material and contain significant amounts for his labor which he priced at $90.00 per hour. Mr. Miller, during his relationship with EIP, purchased a 10 percent interest in the firm. He originally filed his own lien on the property for $80,364.00 based on the contracts he had in hand and the site work which he valued at $18,000.00. He claims he subsequently withdrew his lien without being paid so that the limited funds available could be used to pay the subcontractors. No corroborating evidence on this point was introduced, however. Mr. Miller's contracting license was, subsequent to the incidents herein, placed in inactive status and currently remains so. He is not now engaged in contracting and claims he does not intend to do so in the future. His motivation in contesting the allegations against him is, he claims, solely to clear his good name and reputation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED THAT the Respondent, David P. Miller, d/b/a Great Southern Construction and Development, Inc. pay an administrative fine of $3,750.00 and be reprimanded. RECOMMENDED this 9th day of November, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 9th day of November, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-7413 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. Accepted and incorporated herein. Accepted. & 6. Accepted and incorporated herein. 7. - 14. Accepted and incorporated herein. 15. - 17. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. & 21. Accepted and incorporated herein. 22. - 24. Accepted and incorporated herein. 25. & 26. Accepted. FOR THE RESPONDENT: Accepted and incorporated herein. & 3. Accepted and incorporated herein. Rejected as the total amount paid by EIP for the buildings constructed by Respondent. The figure is somewhat higher due to deposit and amounts paid to suppliers by EIP. Accepted and incorporated herein. * At this point, Respondent's proposed Findings of Fact become misnumbered. There are two numbers 5. The subsequent numbers are as reflected in Respondent's submittal. 5. - 9. Accepted and incorporated herein. 10. - 12. Accepted and incorporated herein. 13. - 15. Accepted and incorporated herein. 16. Accepted. 17 & 18. Accepted. Alleged but not proven. Accepted. Rejected as contra to the weight of the evidence. Accepted and incorporated herein. COPIES FURNISHED: Tracy Sumner, Esquire William S. Cummins, Esquire Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kurt R. Borglum, Esquire 366 East Graves Avenue, Suite B Orange City, Florida 32763 Jack McRay General Counsel Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Daniel O'Brien Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
The Issue Whether Respondent violated provisions of Chapter 75-489, Laws of Florida, as amended, as more specifically alleged in Administrative Complaint dated February 10, 1992.
Findings Of Fact At all times relevant hereto Respondent was licensed by Petitioner as a certified building contractor having been issued license C-608, and was qualifying agent for Bay City Builders, Inc. Bay City Builders, Inc., entered into a contract to add four bedrooms and two baths to a residence in Dunedin, Florida, being used as an Adult Congregate Living Facility (ACLF) (Exhibits 1 and 2), at a price of $32,000. The contract provided, inter alia, that the contractor would provide all permits and fees directly associated with the project. Upon signing the original contract on September 26, 1991, the owner paid Bay City Builders $3200 (Exhibit 3). On October 8, 1991, the owner paid Bay City Builders an additional $7200 (Exhibit 3) when the plans were presented to the owner. Prior to the issuance of the permit for this project, Bay City Builders poured the footing for the building addition. The permit application was signed by Respondent. After entering into the contract, Bay City Builders found there was an impact fee involved, the project was never completed and was subsequently abandoned. Bay City Builders prepared a second contract for this project which increased the price to $41,789 (Exhibit 5) and presented this to the owner who did not accept the new contract. Respondent admits that he was the qualifying contractor for Bay City Builders, and the permit was pulled under his license, but contends he had nothing to do with the financial arrangements between Bay City Builders and the owner. Respondent was paid a flat fee by Bay City Builders for obtaining permits under his license for work Bay City Builders contracted to perform. He occasionally visited the sites where work was being performed by Bay City Builders. Bay City Builders is not licensed. The permit for the ACLF addition was applied for on November 1, 1991, but was not issued by the City of Dunedin until February 13, 1992 (Exhibit 6). It could have been picked up any time after November 30, 1991. On September 5, 1991, Bay City Builders entered into a contract with an owner living in Seminole, Florida, to replace the roof over a rear porch of this residence for a total price of $900. (Exhibit 8) This was a flat roof, and the initial intent was to replace the tar and gravel roof with tar and gravel. At the time construction started on September 11, 1991, the person doing the installation used a rubberized roof, which was satisfactory to the owner and gave the owner a 5 year unconditional warranty. Respondent's license does not authorize him to reroof an existing building, and no permit was applied for to perform this job. No certified roofer was engaged to do this reroofing, the rubberized compound applied to the roof was improperly applied and the roof started leaking when the first rain came. Workers from Bay City Builders came to the residence several times to attempt to patch the leaks, but the leaks persisted. Ultimately, the owner had to employ a qualified roofing contractor to redo the roof. While Bay City Builders was attempting to stop the leaks, the ceiling over the porch was also ruined and had to be replaced. In his testimony, Respondent admitted that he was the sole qualifying contractor for Bay City Builders, that his function was to give Bay City Builders a price estimate for the work intended, including the ACLF addition, but the owner of Bay City Builders entered into a contract for $5000 less than Respondent's estimate for the ACLF. Respondent also acknowledged that Bay City Builders, acting under Respondent's license, entered into contracts for some 150 jobs, but that Respondent was told or learned of only 60 of these projects. Respondent was paid a fixed fee by Bay City Builders for each permit obtained, and he prepared estimates of cost.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent, Ramiro Palma, be found guilty as charged in the Administrative Complaint dated August 31, 1981. It is further RECOMMENDED that Respondent's registered building contractor's license be suspended for one year after the date of the final order entered in this proceeding and that Respondent pay a $1000 administrative fine. DONE and ENTERED this 3rd day of February, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1982.
