The Issue Whether Respondent committed the offenses set forth in the Administrative Complaints and Amended Administrative Complaints and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Respondent was licensed by Petitioner as a certified residential contractor, having been issued license number CR C040917. He has been licensed since March 16, 1987. Respondent was the qualifying agent of KM Homes, Inc. (KMH) from June 10, 1995 through March 13, 1997, more than one year but less than two years. On or about February 3, 1997, KMH filed a voluntary bankruptcy petition under Chapter 7 in the U.S. Bankruptcy Court, Southern District of Florida, Case No. 97-30498, with an estimate of assets of less than $50,000.00 and an estimate of liabilities of between $1 million and $10 million. The petition was signed by Kenneth H. Maltz, as president of KMH. On or about February 4, 1997, the next day, Kenneth H. Maltz and his wife, Susan Maltz, filed a joint voluntary bankruptcy petition under Chapter 7. Case No. 01-3827PL On or about April 28, 1996, KMH contracted with Daniel L. Simons and Carol L. Stefanski for the sale of a lot to Simons and Stefanski and for construction of a house on the lot. The contract price for the lot was $45,000.00 and for the construction of the home was $141,000.00, totaling $186,000.00. Respondent's license number did not appear in the contract. In accordance with the contract, Simons and Stefanski made the following payments to KMH: on or about April 28, 1996, $5,000.00; on or about August 21, 1996, $40,000.00; and on or about August 30, 1996, $42,229.60 and $747.00, through their lender, First Federal Savings of the Palm Beaches, pursuant to an August 21, 1996, mortgage loan of $128,000.00. The payments totaled $100,976.60. KMH applied for a building permit from Martin County to build the home for Simons and Stefanski. Respondent's license number appeared on the application. The building permit was never obtained. Beginning on or about August 27, 1996, and at various times thereafter, until approximately January 9, 1997, the lot was cleared and fill was delivered to the lot by KMH's subcontractor, Tideway Construction Company, Inc. (Tideway). The work by Tideway was the only work performed by KMH pursuant to the contract with Simons and Stefanski. KHM did not pay Tideway and Tideway recorded a lien on the lot for $4,084.00. KMH failed to remove Tideway's lien. On or about November 23, 1997, Tideway filed suit to foreclose its lien. Sometime in May 1998, Tideway released the lien in exchange for payment from Simons and Stefanski in the amount of 65 percent of the lien amount. Simons and Stefanski's lender paid the 65 percent from additional funds the lender loaned to Simons and Stefanski to enable them to complete their home. Tideway wrote off the remaining 35 percent. KMH never explained to Simons and Stefanski why it did not complete their home. KMH's trustee in the bankruptcy never offered to complete the work. Simons and Stefanski never fired KMH, never denied KMH access to the property to perform work, and never refused to pay KMH monies due under the contract. Simons considered KMH to have abandoned the job. Simons and Stefanski filed a proof of claim in KMH's bankruptcy for an unsecured non-priority claim in the amount of $58,000.00. They received nothing from the bankruptcy action. In the latter part of 1998, Simons and Stefanski had their home completed by another contractor, Murex, for $143,270.00. The house that Murex completed for Simons and Stefanski was essentially the same house that KMH was to construct, except that the roof structure was different and the garage and back porch were a little larger. KMH never provided Simons and Stefanski with notification of the Construction Industries Recovery Fund. Simons and Stefanski never had any direct dealings with Respondent personally. They attempted to sue Respondent but were unsuccessful. As of November 15, 2001, Petitioner's costs of investigation and prosecution for Case No. 01-3827PL, excluding costs associated with an attorney's time, totaled $457.88. Case No. 01-3828PL On or about June 6, 1996, KMH contracted with Carol Morris for construction of a house on a lot owned by Morris. The contract price for the construction of the house was $287,940.00. Respondent's license number did not appear in the contract. In accordance with the contract, Morris made the following payments to KMH: on or about February 28, 1996, $1,000.00; on or about June 10, 1996, $27,000.00; and on or about August 2, 1996, $109,240.00. The payments totaled $137,240.00. Morris obtained a mortgage loan in the amount of $150,000.00 from First Bank of Florida to finance part of the contract price. On or about September 17, 1996, KMH applied for a building permit from Palm Beach Gardens to construct the home for Morris. Respondent's license number appeared on the application. On or about September 26, 1996, the building permit was approved and issued, bearing building permit number 28644. From approximately September to December 1996, KMH performed work pursuant to the contract and thereafter, did not perform any more work on the home. KMH failed to complete the construction of Morris' home. KMH never explained to Morris why it did not complete her home. KMH's trustee in the bankruptcy never offered to complete the work. Morris never fired KMH, never denied KMH access to the property to perform work, and never refused to pay KMH monies due under the contract. Morris considered KMH to have abandoned the job. KMH's subcontractors/material suppliers recorded liens on Morris' property. The subcontractors/material suppliers recorded liens were as follows: on December 12, 1996, Tideway for $8,438.00; on January 16, 1997, Buckeye Plumbing, Inc. (Buckeye Plumbing) for $3,676.00; on January 22, 1997, Tarmac Florida, Inc. (Tarmac) for $6,296.40; on January 23, 1997, Electrical Express, Inc. (Electrical Express) for $450.00; on February 13, 1997, E. M. Brandon, Inc. (Brandon) for $2,164.00; on February 18, 1997, Tom Rawn Masonry, Inc. (TR Masonry) for $16,454.00; and on April 3, 1997, Spacerace Enterprises, Inc. (Spacerace) for $7,850.00. Morris paid KMH for all the work or materials pertaining to the liens. KMH failed to remove any of the liens. Morris never paid any monies directly to the lien holders to remove any of the liens. However, Morris' lender, First Bank of Florida, assisted her with the resolution of the liens, including allowing its attorney to act as Morris' representative in resolving the liens. In May 1998, Tideway released its lien in exchange for payment by Morris' lender in the amount of 65 percent of the lien amount. Tideway wrote off the remaining 35 percent. The evidence is unclear as to whether Morris was obligated to repay the lender. Buckeye Plumbing, Electrical Express, TR Masonry, Inc., and Spacerace never received any money on their liens and the entire amount of their liens was a complete loss. Tarmac sued to foreclose on its lien, but ultimately dismissed its lawsuit and wrote off the amount of its lien as a bad debt. No testimony was presented regarding the final result of the lien held by Brandon. Morris obtained the services of another contractor, Home Work Group, Inc. (Home Work), to complete the construction of her home. Morris used the original mortgage loan of $150,000.00, a shortfall loan from the same lender in the amount of $45,000.00, and her savings of approximately $43,000.00, to pay Home Work. On or about September 1998, Home Work completed the construction of Morris' house, which was essentially the same as the house which was to be constructed by KMH. Morris received notification of KMH's bankruptcy by mail. She filed a complaint with the bankruptcy court objecting to KMH's discharge. The bankruptcy court eventually dismissed Morris' complaint. Sometime during the year 2000, Morris received $900.00 from KMH's bankruptcy. KMH never provided Morris with notification of the Construction Industries Recovery Fund. During the transaction between KMH and Morris, she knew Respondent as the construction manager for KMH. As of November 15, 2001, Petitioner's costs of investigation and prosecution for Case No. 01-3828PL, excluding costs associated with an attorney's time, totaled $478.70. Case No. 01-3829PL On or about February 23, 1996, KMH contracted with Fred W. Connell, Jr., and his wife, Celia M. Connell, for construction of a house on a lot that the Connells would purchase separately, not as a part of the contract. The contract price for the construction of the house was $258,870.00, which included $18,000.00 for a swimming pool. Respondent's license number did not appear in the contract. In accordance with the contract, the Connells made the following payments to KMH: on or about February 23, 1996, $5,000.00; on or about February 29, 1996, $30,000.00; on or about November 7, 1996, $8,687.00; on or about November 25, 1996, through their lender, First Bank of Florida, pursuant to a mortgage loan, $33,541.00; and on or about December 16, 1996, $24,393.00. The payments totaled $101,621.00. KMH applied for a building permit from the City of North Palm Beach to construct the home for the Connells. Respondent's name and license number appeared on the application. On or about November 5, 1996, the building permit was approved and issued, bearing building permit number 96-01386. From approximately November to December 1996, KMH performed work pursuant to the contract and thereafter, did not perform any more work on the home. KMH failed to complete the construction of the Connells' home. In December 1996, the City of North Palm Beach issued a stop work order due to voids in the concrete walls that made, according to the City of North Palm Beach, the structure of the house unsafe. After the issuance of the stop work order, KMH failed to resume work on the house. KMH never explained to the Connells why it did not complete their home. The Connells fired KMH only after they received notification of KMH's filing for bankruptcy. KMH's trustee in the bankruptcy never offered to complete the work. The Connells considered KMH to have abandoned the job. KMH's subcontractors/material suppliers recorded liens on the Connells' property. The subcontractors/material suppliers and recorded liens were as follows: on January 16, 1997, Palm Beach Masonry (PB Masonry) for $12,125.00; on January 17, 1997, Sasso Air Conditioning, Inc. (Sasso Air) for $550.00; on January 22, 1997, Tarmac for $4,239.21; on January 28, 1997, CPS Construction, Inc. (CPS Construction) for $2,580.00; on January 31, 1997, Gulf Stream Lumber Company (Gulf Stream Lumber) for $19,461.00; and on March 24, 1997, Waste Management of Florida, Inc. (Waste Management) for $276.50. The Connells paid KMH for all the work or materials pertaining to the liens. KMH failed to remove any of the liens. The Connells paid its lender, First Bank of Florida, $25,000.00 in exchange for the lender's assistance in resolving the liens. PB Masonry and Waste Management never received any money on their liens and the entire amount of their liens was a complete loss. On or about August 4, 1997, Sasso Air gave a partial release of its lien in return for payment in the amount of $275.00. Tarmac's notice to owner was untimely, so it chose to not pursue foreclosure proceedings and instead wrote the amount of its lien off as a bad debt. On or about November 11, 1997, Gulf Stream Lumber released its lien in return for payment of $5,000.00 from First Bank of Florida. On May 13, 1997, CPS Construction released its lien in exchange for payment from the Connells in the amount of $2,500.00. On or about April 22, 1997, the Connells obtained the services of another contractor, Villafranca Design and Development, L.C. (Villafranca Design), to complete the construction of their home for $221,000.00. The Connells, through their lender, paid Villafranca Design. Their home was completed shortly before Christmas 1997. The house completed by Villafranca Design was essentially the same as the house which was to be constructed by KMH. Because KMH failed to complete the Connells' home, the Connells, their two children and their two dogs were forced to live on the Connells' boat and to store their furniture for almost a year. During that year, the Connells had to pay dockage fees to live on their boat and storage fees for their furniture. The Connells estimate that the difference in the contract price of their home with KMH and what they eventually paid for their home was conservatively $100,000.00. The Connells did not receive any money from KMH's bankruptcy. KMH never provided the Connells with notification of the Construction Industries Recovery Fund. During the transaction between KMH and the Connells, the Connells knew Respondent as someone who worked in the KMH office. As of November 15, 2001, Petitioner's costs of investigation and prosecution for Case No. 01-3829PL, excluding costs associated with an attorney's time, totaled $519.43. Case No. 01-3830PL On or about September 19, 1996, KMH contracted with William and Iceline Chang for the construction of a house on the lot owned by the Changs. The contract price for the construction of the home was $205,620.00. Respondent's license number did not appear in the contract. In accordance with the contract, the Changs made the following payments to KMH: on or about September 16, 1996, $10,000.00; and on or about October 10, 1996, $10,620.00. Pursuant to a change order for additional site preparation and fill, on or about October 7, 1996, the Changs paid KMH $9,400.00. On or about December 16, 1996, KMH applied for a building permit from Palm Beach County to build the Changs' home. Respondent's license number and Respondent's name as the qualifying agent for KMH appeared on the application. The building permit was never obtained due to KMH's failing to submit the construction plans to Palm Beach County's building department. On December 13, 16, and 19, 1996, the Changs' lot was cleared and fill was delivered to the lot by KMH's subcontractor, Tideway. The work by Tideway was the only work performed by KMH pursuant to the contract with the Changs. KHM did not pay Tideway and Tideway recorded a lien on the lot for $10,900.00. KMH failed to remove Tideway's lien. On or about June 6, 1997, Tideway agreed with the Changs to release the lien in exchange for payment from them in the amount of $9,810.00. The Changs paid Tideway in six monthly installments, June through November 1997, of $1,635.00. On or about November 26, 1997, Tideway gave the Changs a release of its lien. KMH never explained to the Changs why it did not complete their home. KMH's trustee in the bankruptcy never offered to complete the work. The Changs never fired KMH, never denied KMH access to the property to perform work, and never refused to pay KMH monies due under the contract. The Changs considered KMH to have abandoned the job. The Changs had their home completed by another contractor, Villafranca Design, for $203,500.00. Villafranca Design submitted the same construction plans to Palm Beach County's building department that KMH was to use to construct the Changs' home. On or about May 7, 1997, a building permit was issued, bearing permit number B97012080. The house that Villafranca Design completed for the Changs was essentially the same house that KMH was to construct. On or about February 26, 2000, the Changs received $643.29 from KMH's bankruptcy. KMH never provided the Changs with notification of the Construction Industries Recovery Fund. The Changs never had any direct dealings with Respondent personally. As of November 15, 2001, Petitioner's costs of investigation and prosecution for Case No. 01-3830PL, excluding costs associated with an attorney's time, totaled $714.11. Case No. 01-3831PL On or about July 30, 1996, KMH contracted with Harold and Jean Bell to sell them a lot and construct a house on the lot. The contract price for the lot was $53,000.00 and the construction of the home was $186,000.00, totaling $239,000.00. Respondent's license number did not appear in the contract. In accordance with the contract, on or about August 1, 1996, the Bells paid a deposit of $5,000.00 to KMH. On September 19, 1996, the Bells paid, as closing costs, $67,147.63 to Universal Land Title, Inc., which included the cost for the lot and an additional deposit toward construction in the amount of $13,600.00. Subsequently, the Bells received a deed to the lot. KMH never obtained a building permit to construct the house. On or about December 11, 1996, the Bells' lot was cleared and fill was delivered to the lot by KMH's subcontractor, Tideway. The work by Tideway was the only work performed by KMH pursuant to the contract with the Bells. KHM did not pay Tideway, and Tideway recorded a lien on the lot for $3,688.00. KMH failed to remove Tideway's lien. Tideway never received any money on its lien and the entire amount of its lien was a complete loss. KMH never explained to the Bells why it did not complete their home. KMH's trustee in the bankruptcy never offered to complete the work. The Bells never fired KMH, never denied KMH access to the property to perform work, and never refused to pay KMH monies due under the contract. The Bells considered KMH to have abandoned the job. The Bells had their home, with extras, completed by another contractor, Villafranca Design, for approximately $208,000.00. On or about August 2, 2000, the Bells received $996.95 from KMH's bankruptcy. KMH never provided the Bells with notification of the Construction Industries Recovery Fund. On October 1, 2002, Mr. Bell obtained a civil judgment against KMH in the amount of $24,199.64, plus costs of $264.75; prejudgment interest of $21,664.88; and attorney's fees of $2,395.00, totaling $48,524.27. The Bells never had any direct dealings with Respondent personally. As of November 15, 2001, Petitioner's costs of investigation and prosecution for Case No. 01-3831PL, excluding costs associated with an attorney's time, totaled $305.84. Case No. 01-3832PL On or about May 26, 1996, KMH contracted, in a revised contract, with Erol and Yildiz Aksoy for the sale of a lot and construction of a house on a lot. The contract price for the lot was $58,000.00 and construction of the house was $242,000.00, totaling $300,000.00. The revised contract entered into evidence at hearing was incomplete. No determination could be made as to whether Respondent's license appeared in the revised contract. In accordance with the contract, the Aksoys made the following payments to KMH: on or about October 28, 1994, $1,000.003; on or about June 5, 1996, $23,000.00; on or about August 14, 1996, $12,545.00; on or about October 4, 1996, $21,800.00; on or about October 17, 1996, $1,323.00; on or about November 2, 1996, $21,800.00; on or about November 20, 1996, $7,123.00 and $21,800.00; on or about November 22, 1996, $21,800.00; on or about December 13, 1996, $21,800.00; and on or about January 2, 1997, $21,800.00 and $5,000.00. The payments totaled $180,791.00. On or about July 26, 1996, KMH executed and delivered a deed to the Aksoys for the lot. KMH performed work pursuant to the contract, but only performed 55 percent to 60 percent of the construction contracted for. After January 1997, KMH failed to perform any further work on the Aksoys' home. KMH failed to complete the construction of Aksoys' home. KMH never explained to the Aksoys why it did not complete their home. KMH's trustee in the bankruptcy never offered to complete the work. The Aksoys never fired KMH, never denied KMH access to the property to perform work, and never refused to pay KMH monies due under the contract. The Aksoys considered KMH to have abandoned the job. The Aksoys filed a proof of claim in KMH's bankruptcy for an unsecured non-priority claim in the amount of $85,000.00. Sometime in the years 2000 or 2001, they received $918.00 from the bankruptcy action. KMH's subcontractors/material suppliers recorded liens on the Aksoys' property. The subcontractors/material suppliers and recorded liens were as follows: on January 8, 1997, Buckeye Plumbing for $2,570.00; on January 14, 1997, J. W. Hodges Drywall Textures, Inc. (Hodges Drywall) for $3,500.00; on January 15, 1997, Griffin & Wilson Stucco, Inc. (GW Stucco) for $6,040.00; on January 16, 1997, Gallina Electric, Inc. (Gallina Electric) for $3,732.00; on January 17, 1997, Sasso Air for $2,925.00; on January 21, 1997, K. D. Installation, Inc. (KD Installation) for $2,789.00; and on February 5, 1997, Macshmeyer Concrete Company of Florida, Inc. (Macshmeyer Concrete) for $5,814.00. The Aksoys paid KMH for all the work or materials pertaining to the liens. KMH failed to remove any of the liens. The Aksoys paid the lien holders to remove the liens, as follows: on or about February 18, 1997, $2,570.00 to Buckeye Plumbing; on or about April 7, 1997, $1,400.00 to Hodges Drywall, with the remaining unpaid amount ($2,100.00) being a loss for the company; on or about August 6, 1997, $7,760.10 to GW Stucco, which included additional monies for attorney's fees; on or about March 12, 1997, $1,866.00 to Gallina Electric; on or about April 7, 1997, $2,975.00 to Sasso Air; $1,500.00 to KD Installation (date of payment unknown); on or about March 12, 1997, $2,616.00 to Macshmeyer Concrete. The Aksoys also paid for work for which another KMH subcontractor, Spacerace Enterprises, Inc., claimed that KMH had failed to pay. On or about February 18, 1997, the Aksoys obtained the services of another contractor, Villafranca Design, to complete the construction of their home. The Aksoys paid Villafranca Design $145,250.00. In or around May 1997, Villafranca Design completed the construction of the Aksoys' house, which was essentially the same as the house which was to be constructed by KMH. KMH never provided the Aksoys with notification of the Construction Industries Recovery Fund. The Aksoys never had any direct dealings with Respondent personally. As of November 15, 2001, Petitioner's costs of investigation and prosecution for Case No. 01-3828PL, excluding costs associated with an attorney's time, totaled $606.48. Case No. 01-3833PL On or about December 11, 1995, KMH contracted with Milo and Jerolene Glass for construction of a house on a lot owned by the Glasses. The contract price for the construction of the house was $395,795.00. Respondent's license number did not appear in the contract. In accordance with the contract, the Glasses made the following payments to KMH: on or about November 13, 1995, $1,000.00; and on or about December 11, 1995, $39,079.00. The payments totaled $40,079.00. On or about May 21, 1996, KMH applied for a building permit from Palm Beach County to construct the home for the Glasses. Respondent's name as the qualifying agent for KMH and license number appeared on the application. Sometime thereafter in 1996, the building permit was approved and issued, bearing building permit number B96019588. From approximately November 1996 to January 1997, KMH performed work pursuant to the contract, but thereafter, did not perform any further work on the home. KMH failed to complete the construction of the Glasses' home. At the time KMH stopped working on the Glasses' home, a substantial amount of work remained to be completed. Furthermore, much of KMH's work had to be repaired or corrected. KMH never explained to the Glasses why it did not complete her home. KMH's trustee in the bankruptcy never offered to complete the work. The Glasses never fired KMH, never denied KMH access to the property to perform work, and never refused to pay KMH monies due under the contract. The Glasses considered KMH to have abandoned the job. KMH's subcontractors/material suppliers recorded liens on the Glasses' property. The subcontractors/material suppliers and recorded liens were as follows: on January 17, 1997, Sasso Air for $925.00; on January 23, 1997, Electrical Express for $750.00; and on January 28, 1997, R J G Masonry, Inc. (RJG Masonry) for $8,353.99. KMH failed to remove any of the liens. The evidence is unclear as to whether the Glasses paid KMH for all the work or materials pertaining to the liens. The Glasses paid to remove the liens. The Glasses paid the following: $925.00 to Sasso Air for which they received a final waiver of lien dated July 8, 1999; on or about February 14, 1997, $750.00 to Electrical Express for which they received a release of lien dated June 2, 1997; and on or about January 24, 1997, $8,353.99 to RJG Masonary. The Glasses did not obtain the services of another contractor to complete the construction of their home. Contractors whom they approached were very reluctant or unwilling to take over the project. Finally, the Glasses, who had prior experience as owners of other construction projects, became their own contractors and completed their home. They also received the assistance of a contracting firm, but the Glasses handled all the disbursements of funds to the suppliers for labor and materials. By September 2000, the Glasses had substantially completed their home and were living in it. At the time of the hearing, they had sold the house and moved to another location in Florida. The Glasses estimate that they expended $1,239,487.78 in the construction of their home. They maintain that this cost does not include approximately $80,000.00 that the Glasses claim that their original lender paid to KMH without their authorization. The amount paid by the Glasses exceeds the contract price because (1) KMH underbid the job; (2) the Glasses spent substantial sums to repair or correct KMH's work, which the Glasses estimate conservatively to be more than $200,000.00; and (3) the Glasses spent substantial sums on upgrades of contract allowance items. The Glasses received approximately $1,000.00 from KMH's bankruptcy. KMH never provided the Glasses with notification of the Construction Industries Recovery Fund. After the bankruptcy, Mrs. Glass contacted Respondent and requested the construction plans for the home. Respondent indicated that he did not have the plans. Mrs. Glass contacted Respondent again and he indicated that he may be able to locate the plans. Subsequently, Respondent contacted the Glasses and indicated that he had located the plans. The Glasses went to Respondent's place of business to retrieve the plans. After providing the plans, Respondent requested the Glasses to hire him to complete their home. The Glasses declined Respondent's offer because they considered Respondent's cost estimate to be too high and because of Respondent's association with KMH. As of November 15, 2001, Petitioner's costs of investigation and prosecution for Case No. 01-3833PL, excluding costs associated with an attorney's time, totaled $628.33. Case No. 01-3834PL On or about December 8, 1995, KMH contracted with Suzanne Beck for construction of a house on a lot that Beck would acquire at a later date (in 1996), not as a part of the contract. The contract price for the construction of the house was $133,500.00. Respondent's license number did not appear in the contract. In accordance with the contract, Beck made the following payments to KMH: on or about December 8, 1995, $5,000.00; on or about July 31, 1996, $8,350.00 and 5,643.09; on or about August 7, 1996, $5,030.88; on or about September 4, 1996, $12,051.05; on or about September 18, 1996, $12,051.05; on or about October 1, 1996, $12,051.05; on or about October 11, 1996, $12,051.05; on or about November 7, 1996, $12,051.05; and on or about November 26, 1996, $12,051.05 and $12,051.05. The payments totaled $108,381.32. KMH applied for a building permit from the Town of Jupiter to construct the home for Beck. Respondent's name and license number appeared on the application as the contractor. On February 12, 1996, the building permit was approved and issued, bearing building permit number 96-29588. From approximately August to December 1996, KMH performed work pursuant to the contract and thereafter, did not perform any more work on the home. KMH failed to complete the construction of the Beck's home. KMH never explained to Beck why it did not complete her home. Around the end of December 1996 or in January 1997, Beck notified KMH that she was taking over the project. Progress by KMH had been slow and Beck discovered that KMH had closed the doors of its business for a second time and was not paying its subcontractors. Beck considered KMH to have abandoned the job. She obtained an owner's building permit and completed the project, making payments directly to the suppliers of labor and materials. On February 7, 1997, Beck obtained a certificate of occupancy from the Town of Jupiter. KMH's subcontractors/material suppliers recorded liens on the Beck's property. The subcontractors/material suppliers and recorded liens were as follows: on January 6, 1997, American Aluminum and Insulation FireProofing Company, Inc. (American Alum.) for $385.00; on January 6, 1997, Buckeye Plumbing for $2,625.00; on January 14, 1997, Hodges Drywall for $8,280.00; on January 14, 1997, Rizzo Tile & Marble, Inc. (R Tile & Marble) for $1,870.70; on January 15, 1997, James M. Webster d/b/a Rain Flow of South Florida (Rain Flow) for $75.00; on January 17, 1997, K. D. Installation, Inc. (KD Installation) for $520.40; on January 17, 1997, Q. C. Cabinet Systems, Inc. (QC Cabinets) for $3,207.00; on January 17, 1997, Paul Temple Painting (PT Painting) for $2,534.75; on January 17, 1997, Sasso Air for $3,360.00; on January 28, 1997, James Velix Bobcat Service (Bobcat Service) for $1,450.00; on February 4, 1997, Tideway for $279.00; on February 7, 1997, Florida Builder Appliances, Inc. (Builder Appliances) for $2,936.20; on February 7, 1997, Mc D Sprinklers, Inc. (McD Sprinklers)for $1,275.00; on February 11, 1997, Builder Direct Carpet Sales (Direct Carpet) for $1,959.26; and on February 12, 1997, Pollard Electric, Inc. (Pollard Electric) for $3,640.00. Beck paid KMH for all the work or materials pertaining to the liens. KMH failed to remove any of the liens. Beck paid to remove the liens as follows: on or about June 18, 1997, $2,625.00 to Buckeye Plumbing; on or about March 9, 1999, $10,125.00 to PT Painting, Hodges Drywall, R Tile & Marble, and Direct Carpet; and on or about October 19, 1999, $3,360.00 to Sasso Air. Hodges Drywall released its lien for $4,000.00 and the remaining amount of its lien was not paid, which represents a loss to the company. Builder Appliances, Rain Flow, McD Sprinklers, QC Cabinets, and Tideway did not receive payment from any source and the entire amounts of their liens were complete losses. After Beck took over construction of her home from KMH, she spent $19,203.00 to complete the home. Beck did not receive any money from KMH's bankruptcy. KMH never provided Beck with notification of the Construction Industries Recovery Fund. During the transaction between KMH and Beck, she met with Respondent at the job-site on one occasion to discuss some aspects of the project with which she was dissatisfied. Beck had expressed her dissatisfaction in a letter to KMH's owner. As of November 15, 2001, Petitioner's costs of investigation and prosecution for Case No. 01-3834PL, excluding costs associated with an attorney's time, totaled $534.57.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Construction Industry Licensing Board enter a final order: Dismissing the following counts: Count I of Case Nos. 01-3828PL, 01-3831PL, and 01-3833PL. Count IV of Case No. 01-3832PL. Finding that Glenn L. Mustapick committed all other violations in the counts of Case Nos. 01-3827PL, 01-3828PL, 01-3829PL, 01-3830PL, 01-3831PL, 01-3832PL, 01-3233PL, and 01-3834PL. Imposing a $25,000.00 administrative fine. Requiring Respondent to pay restitution not exceeding $25,000.00. Assessing $4,245.34 in costs for investigation and prosecution, excluding costs associated with an attorney's time, by the Department of Business and Professional Regulation, Construction Industry Licensing Board. Revoking the certified residential license, CR C040917, of Glenn L. Mustapick. DONE AND ENTERED this 3rd day of May, 2002, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 3rd day of May, 2002.
The Issue The issue for determination at the final hearing was whether Respondent committed the allegations contained in the Administrative Complaint, specifically: (1) misconduct in the practice of architecture, and/or; (2) violation of a rule adopted pursuant to Chapter 481, Florida Statutes (1983).
Findings Of Fact At all times material to this proceeding, the Respondent, John H. Vongunten, has been a registered architect in the State of Florida, having been issued license number AR- 0006074 which expires on January 31, 1987. The Respondent graduated third in a class of 600 from the University of Pennsylvania. While attending the University of Pennsylvania, Respondent received several honors, including the John Stewardson Memorial Scholarship, was runner-up for the Rome prize, and was Phi Beta Kappa in architecture. Respondent first registered as an architect in Kansas in 1949 and in Florida and Ohio in 1956. Respondent is a member of the American Institute of Architects, the American Registered Architects, and the Guild for Religious Architecture. During his career, Respondent has worked as an assistant on a project with Frank Lloyd Wright, completed 56 churches, 23 automobile agencies, 15 industrial projects and 4 health care facilities. Respondent's background also includes a brief military career where he served as a carrier based fighter pilot, flew with the Blue Angels and received the Navy Cross for service during World War II. The Respondent was employed by Hunton, Shivers, Brady, Associates, P.A. from 1981 until his termination in September of 1984. The Respondent was assigned to provide services to the joint venture of Medical Facilities Consultants (MFC), of which Hunton, Shivers, Brady Associates, P. A. took part. MFC is an architectural firm under contract with the Florida Department of Health and Rehabilitative Services (HRS) to review design plans for health care facilities. Pursuant to its contract with HRS, MFC was required to provide consultative services and perform detailed analysis of proposed medical facilities construction projects and to determine compliance with state licensure standards with respect to architectural, mechanical, electrical and structural engineering disciplines. MFC is a joint business venture which combined the efforts of the architectural firm of Hunton, Shivers and Brady Associates, P.A. and Tilden, Lobnitz and Cooper, Inc. Consulting Engineers. Tom R. Hunton was designated as the representative of the firm to act as contract administrator with HRS for non-technical matters related to administration and work flow. Mr. Hunton was the only individual with complete authority to sign documents and bind the firm in matters relating to the contract. MFC is business operations consisted solely of its work for HRS. The Respondent was employed by MFC as senior architect in charge of the review process. Respondent reviewed the architectural portion of all plans that came in the office; other employees reviewed mechanical and electrical aspects of the plans. Respondent, as senior architect, was the coordinator between mechanical, electrical and architectural. The review process consists of three (3) primary stages of plan submittal to HRS. The first stage is the furnishing of schematic plans. Schematic plans are not very detailed and may consist of single line drawings of the proposed facility. The second stage is much more detailed and is called the submission of preliminary plans. Walls with elevations and other details are shown in this second stage of review of the "design development drawings." The third and final phase is the construction documents review stage. At this stage, there is a full list of plans, including architectural, engineering, landscaping and civil engineering portions of the project. Under a typical review, the design professionals seeking to build the project submit the plans to HRS through the plans and construction section of the Office of Licensure and Certification located in Jacksonville. The plans are thereafter passed on to MFC for their review of the plans pursuant to the previously mentioned contract. MFC provides assistance in all these stages of the review process. MFC then reviews the plans and submits a report to HRS which recommends approval or disapproval and may contain comments about the project. The Office of Licensure and Certification then decides to approve the project or to disapprove it. HRS receives plan review fees as a part of the plan review process. Requests for official plan review fees are made in writing by Mr. Rosenvold. MFC principals and employees generally do not have direct contact with the design professionals. However, at the schematic plans stage, often a meeting is held at the HRS office in Jacksonville between HRS officials, MFC and the design professionals. MFC officials were instructed by Richard Rosenvold, administrator for the Plans and Construction Section, not to contact the design professionals without prior approval of the Office of Licensure and Certification. During the summer of 1984, MFC was employed to review the design documents for a health-care project known as "The Cloisters of Deland" to be built in Deland by the firm of MacMahon-Cajacob Associates. The Cloisters of Deland is planned as a retirement community on an eleven and one-half acre site in downtown Deland. A multi-story building is projected to house general-use facilities on the first floor including administration, food service and activity areas, and a 60-bed skilled nursing facility on the entire second floor. The remaining 6 floors are projected to contain apartments. HRS is required to review the nursing home portion of the project. When HRS submits plans for review to MFC, MFC generally has 30 days in which to respond. An architectural review, a mechanical review, an electrical review and a fire protection review is completed. After these reviews are completed, Tom Hunton reviews the comments, if any, and signs off on a package which is sent to HRS recommending approval or disapproval and including comments. The Cloisters project was scheduled to be returned to HRS by MFC on or before August 31, 1984. Tom Hunton signed off on the The Cloisters of Deland project on August 29, 1984 recommending disapproval. Contrary to normal procedure, the disapproval package signed by Mr. Hunton was not mailed immediately to HRS, but was held up by Respondent. In the review process, it was Respondent's job to review the comments of the architect, the mechanical engineer and electrical engineer, mark the comments approved or disapproved, and give the package to Hunton. When Hunton signed off on The Cloisters project on August 29, 1984, it was disapproved in all three categories: architectural, electrical and mechanical. The Cloisters project package was not mailed out immediately after Hunton signed it because Respondent kept it in his office for an undetermined reason. On September 5, 1984, the Respondent telephoned Mr. MacMahon (supervising architect for The Cloister project) in Deland and advised him that the construction documents of The Cloisters of Deland had been reviewed and that they contained numerous violations and would be disapproved by the Office of Licensure and Certification. The Respondent advised Mr. MacMahon that he was in a position to assist them in making corrections that would avoid disapproval. The Respondent advised that he had a team of "moonlighters" available to assist them at the rate of $100 an hour per man. Respondent told MacMahon that the moonlighting service would be a way to get contingency approval, and thus, avoid rejection and considerable loss of time. Because Mr. MacMahon was planning to leave town for a short period of time, he asked his partner, Alan Cajacob, to handle the matter with Respondent. On September 6, 1984, Respondent and Mr. Cajacob spoke on the telephone. Respondent suggested a meeting to discuss the situation concerning problem areas in the plans. Mr. Cajacob was interested in finding out what the comments or problem areas found in the plans by the reviewers were; he, therefore, agreed to a meeting. The Cloisters project was under construction and time was critical to the project. Thereafter, a meeting was held on Saturday, September 8, 1984, between Mr. Cajacob, the Respondent, and Mr. Carl Stanton. Mr. Cajacob invited Mr. Stanton (supervisor and project manager of construction at The Cloisters) to attend the meeting because Stanton was thoroughly knowledgeable about the project. Mr. Cajacob anticipated that Respondent would bring a list of the deficiencies or comments from the reviewing team to the meeting for discussion. However, Respondent advised Cajacob that it was his intention to obtain a clean set of construction documents and have them marked up in red pencil with comments from a team of people who could review them quickly over the weekend. Respondent told Mr. Cajacob that his reviewing team consisted of mechanical and electrical personnel who had previously worked as reviewers for HRS for these types of plans. The Respondent repeated his assertion that his moonlighting team could avoid a complete turndown of the construction documents and obtain a conditional approval of the plans. This could be accomplished because with the comments, changes in the construction documents could be made and inserted so that costly delay would be-avoided. Therefore, Cajacob gave the Respondent a "clean" set of plans. At the conclusion of the September 8th meeting, Respondent asked Cajacob for a total of one thousand dollars ($1,000). The Respondent wanted five hundred dollars ($500) "up front" money as a retainer to pay for his time and the time and expenses of his moonlighting team. In addition, he wanted $500 which would be due the following day when he returned with the marked set of drawings. Mr. Cajacob advised the Respondent that he could not produce that amount without the approval of the project owner and that he would need an invoice from Respondent to support his request. The Respondent then left the office with an unmarked set of drawings and stated that he would contact Mr. Cajacob later after he had spoken with his team members. Before leaving, Respondent told Cajacob and Stanton that their meeting should be held in confidence. At this point, Cajacob began to have his doubts about the propriety of the conversation but decided that he would contact HRS on that Monday and determine whether the Respondent's proposal was an appropriate way to proceed. Later that day, the Respondent telephoned Mr. Cajacob at home and advised him that without the full $1,000 up front, the moonlighting team could not provide the services they were offering. During this telephone conversation, Mr. Cajacob refused to provide the $1,000 up front and asked the Respondent to return the plans so that the normal procedure could be followed. At that point, Mr. Cajacob began to feel nervous and uneasy about the Respondent's proposal The following Monday or Tuesday, Mr. Cajacobe received a note from his secretary stating that Respondent had called and that the plans had been dropped off at a nearby Holiday Inn. Mr. Cajacob's secretary picked up the plans. After the return of the plans, Cajacob received several telephone calls and at least one letter from Respondent stating each time that he (Respondent) was very sorry, he had made a terrible mistake and requesting that Cajacob forgive him. On September 10, 1984, Mr. Cajacob, after discussing the incident with his partner, Mr. MacMahon, called Mr. Rosenvold in Jacksonville and apprised him of Respondent's contact. Thereafter, Mr. Rosenvold called Mr. Hunton and advised him of the complaint that Respondent had contacted the firm of MacMahon and Cajacob in Deland. At Rosenvold's request, Hunton investigated it. On Tuesday, September 11, 1984, Hunton and the surviving partner, Brady, met with Respondent and, effective September 12, temporarily suspended him while the matter was being investigated. The Respondent was terminated on September 18, 1985. Respondent's moonlighting team consisted of himself, and two other people who were going to review the electrical and mechanical aspects of the plans. The moonlighting team would have based their work on their own knowledge and Respondent did not intend to let them use the list of comments prepared by the MFC Reviewing Team. Respondent did not advise Hunton or Mr. Rosenvold that he intended to contact MacMahon or Cajacob regarding The Cloisters. Likewise, neither Hunton nor Mr. Rosenvold authorized the contact with MacMahon and Cajacob. After a turn-down or disapproval from HRS, the design professionals may resubmit new plans directly to HRS in Jacksonville. The instance of turn-downs in plans is rare. Only about 10%-15% of plans reviewed by MFC are disapproved. The Cloisters of Deland project had been disapproved five (5) times previously.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is recommended that: Respondent be found guilty of a violation of §§481.225(1)(i) and (j), Florida Statutes (1983); and that, Respondent's license to practice architecture be suspended for a period of one year and that an administrative fine of $1,000 be assessed. DONE and ORDERED this 9th day of January, 1986 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1986. COPIES FURNISHED: Wings Slocum Benton, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Joseph A. Scarlett, Esquire Joseph R. Clark, Esquire 208 West Howry Avenue Deland, Florida 32720 Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 J. W. Hendry Executive Director Board of Architecture Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 APPENDIX The following are my specific rulings on the proposed findings of fact submitted by the parties in this case. Petitioner's Findings of Fact Paragraph Ruling Accepted; see R.O. paragraph 1. Accepted; see R.O. paragraphs 3 & 4. Accepted; see R.O. paragraphs 3 & 4. Accepted; see R. O. paragraph 5. Accepted; see R.O. paragraph 8. Accepted; see R.O. paragraphs 6 & 7. Accepted; see R.O. paragraph 8. Accepted; see R. O. paragraph 4. Accepted; see R. O. paragraph 3. Rejected as irrelevant. Accepted; see R. O. paragraph 8. Accepted; see R.O. paragraph 8.I Accepted; see R.O. paragraph 8. Accepted; see R.O. paragraph 9. Accepted; see R.O. paragraph 9. Accepted; see R.O. paragraph 13. Accepted; see R.O. paragraph 14. Accepted; see R.O. paragraph 8. Accepted; see R.O. paragraph 7. Partially accepted; see R.O. paragraphs 11 and 12; matters not contained therein are rejected as subordinate. Accepted; see R.O. paragraph 12. Rejected as not supported by credible evidence. Accepted; see R.O. paragraph 12. Accepted; see R.O. paragraph 12. Accepted; see R.O. paragraph 11. Accepted; see R.O paragraph 12. Accepted; see R.O. paragraphs 11 and 12. Accepted; see R.O. paragraph 13. Rejected as subordinate. Partially accepted; see R.O. paragraph 14. Matters not included therein are rejected as subordinate and unnecessary. Accepted; see R.O. paragraph 14. Not included in R.O. because subordinate. Not included in R.O. because subordinate. Rejected as subordinate. Not included in R.O. because subordiante. Accepted; see R.O. paragraph 13. Accepted; see R.O. paragraph 14. Not included in R. O. because subordinate. Not included in R.O. because subordinate. Accepted; see R.O. paragraph 15. Accepted see R.O. paragraph 15. Accepted; see R.O. paragraph 14. Partially accepted; see R.O. paragraph 16. Matters not included are considered subordinate. Accepted; see R.O. paragraph 16. Accepted; see R.O. paragraph 16. Accepted; see R.O. paragraph 16. Accepted; see R.O. paragraph 17. Accepted; see R.O. paragraph 17 Not included in R.O. because subordinate. Accepted; see R.O. paragraph 18. Accepted; see R.O. paragraph 18. Not included in R.O. because subordinate. Not included in R.O. because subordinate. Accepted; see R.O. paragraph 19. Accepted; see R.O. paragraph 19. Accepted; see R.O. paragraph 20. Not included in R.O. because subordinate. Not included in R.O. because subordinate. Accepted; see R.O. paragraph 21. Partially accepted; see R.O. paragraph 21. Matters not included therein are considered subordinate. Rejected as irrelevant. Rejected as irrelevant. Rejected as a recitation of testimony Rejected as not supported by credible evidence. Rejected as a recitation of testimony Rejected as a recitation of testimony Rejected as not supported by credible evidence. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Accepted; see R.O. paragraphs 13, 16 and 23 Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Accepted; see R.O. paragraph 17. Rejected as subordinate. Partially accepted; see R.O. paragraph 17. Matters not included therein are rejected as subordinate and irrelevant. Accepted; see R.O. paragraph 16. Partially accepted; see R.O. paragraphs 13 and 16. Matters not included therein are rejected as irrelevant and subordinate. Accepted; see R.O. paragraph 24. Rejected as recitation of testimony. Accepted; see R.O. paragraph 24. Accepted; see R.O. paragraph 24. Accepted; see R.O. paragraph 22. Accepted; see R.O. paragraph 22. Rejected as irrelevant, subordinate and cumulative. Rejected as subordinate and irrelevant. Rejected as irrelevant. Accepted; see R.O. paragraph 25. Rejected as recitation of testimony and a conclusion of law. Rejected as a recitation of testimony and a conclusion of law. Partially accepted; although Respondent did teach a course in architectural ethics, at one point in his career, there was no evidence to indicate the specific content of the course on whether "conflicts of interest" were covered. RESPONDENT'S FINDINGS OF FACT Paragraph Ruling Accepted; see R.O. para. 4. Accepted; see R.O. paras. 4 and 9. Accepted; see R.O. para. 13. Accepted; see R.O. paras. 7. Accepted; see R.O. paras. 6, 7 and 14. Accepted; see R.O. para. 4. Accepted; see R.O. para. 5. Accepted; see R.O. paras. 7 and 10. Accepted; see R.O. paras. 7, 11 and 12; Partially accepted; see R.O. paras. 9 and 12. Matters not included therein are rejected as not supported by credible, competent and substantial evidence. Accepted; see R. O. paras. 13 and 14. Partially accepted; see R. O. paras. 15, 16, 17 and 18. Matters not included therein are rejected as subordinate. Rejected as argument and not supported by the evidence. Partially accepted; see R. O. para. 22. Matters not included therein are rejected as argument and subordinate. Accepted, but considered as a conclusion of law.
Findings Of Fact Petitioner is the Department of Professional Regulation. Respondent is Denfield Lionel Kirby, at all times pertinent to these proceedings holder of certified general contractor license CG-C024695, issued by Petitioner. His address of record is Miami, Florida. In 1985, Fitzgerald McCoy and his wife had plans prepared by an architect for construction of a second story addition to their home in Miami, Florida. On October 31, 1985, a building permit for construction was obtained in the name of McCoy's wife, who is the owner of the house. Commencement of construction was stymied because the McCoy's contractor of choice was unlicensed. They eventually met and began discussions with the Respondent. On April 16, 1986, Respondent prepared and signed an agreement with the wife, Gwendolyn G. McCoy. The agreement provided that Respondent would build the addition to the single family dwelling for a total sum of $57,048. Further, the agreement provided construction would be in accordance with the owner's previously drawn architectural plans as revised by an architect named Edna L. Mingo, an acquaintance of Respondent. Payment terms of the agreement provided Respondent would be paid one third of the total amount at the beginning of construction and one third when the roof to the addition was "dried in" and installation of windows completed. The final one third of the total contract amount would be paid to the Respondent upon the completion of the project. This payment schedule was abandoned by mutual parol agreement of the parties when, upon execution of the agreement, the McCoys were unable to provide the initial one third payment required by the contract to start construction. At that time, the parties orally agreed that Respondent would commence work on the project upon payment of $5,000 to him by Mr. and Ms. McCoy. They made this payment on April 16, 1986, the same date the written agreement was executed. Construction activities commenced shortly thereafter pursuant to the building permit previously issued in the name of Ms. McCoy. Respondent eventually had this permit transferred to his name in May, 1986. The McCoys continued to live in the residence while construction was in progress. During this time, Respondent generally appeared at the work site merely to ascertain if workmen were present. After making this check, he would leave. As the building process continued, extensive damage occurred to portions of the existing structure from rainwater which blew into the residence. On one occasion, the ceiling to the McCoy's bed room caved in on them. The water damage was the direct result of the Respondent's failure to provide adequate protection to the existing structure from rainstorms during construction of the second floor roof over a portion of the residence. At one point in the construction activity, workmen discovered the presence of termites in the rafters to the original roof of the McCoy dwelling. One of the rafters was replaced and the others were braced with new wood. After receipt of payments totalling approximately $35,233.19, the Respondent took a respite from the project. His departure, due to the inability of the McCoys to provide further construction funds at the time, occurred around August 15, 1986. Eventually, the McCoys acquired more funds and, on October 20, 1986, gave the Respondent a check for $20,000. After receipt of the $20,000 payment, the Respondent's workmen were involved in minimal activities on the site in October and December of 1986. Because of proximity to the Christmas season, both parties evidenced very clear recollections of activities on the job around December 15, 1986. At that time, the Respondent requested, and received, another check for $3,000 from the McCoys. He received another check for $1,500 on January 20, 1987. Work by Respondent on the McCoy project after receipt of this payment was sporadic and the relationship between the parties steadily deteriorated. By Respondent's own admission, it is established that his last expense payment or other involvement in the project occurred in May, 1987. During the process of construction, the McCoys wrote successive checks to Respondent in varying amounts which he accepted. Those checks and dates of issuance are as follows: May 2, 1986 $ 4,000 May 21, 1986 $11,000 June 11, 1986 $ 5,000 June 20, 1986 $ 5,000 August 26, 1986 $ 5,233.19 October 20, 1986 $20,000 December 15, 1986 $ 3,000 January 20, 1987 $ 1,500 Per stipulation of the parties at hearing, the foregoing amounts plus the original payment of $5,000 resulted in a grand total of payments to Respondent in the amount of $59,733.17. Respondent's request for the payments, and the McCoy's acquiescence in making them, constituted a continuing parol amendment of the payment terms and amount of the original contract. At time of hearing, a milieu of tasks required by the original agreement to be performed by the Respondent, inclusive of requirements set forth in the plans referenced in that document, either remained unaccomplished, or had been accomplished by the McCoys at additional expense with third parties. Among those tasks were: Installation of mirrors in bath rooms. Installation of wood base boards. Installation of closet rods and shelving. Installation of guard rail to the stairway. Painting of the house's interior and exterior. Completion of plastering of the bathrooms. Although the project was approximately eighty percent complete upon the cessation of all work, testimony of the Petitioner's expert, James Rodgers, establishes that much of the construction completed by Respondent's workmen was not in accordance with the requirements of the plans referenced in the agreement. Among such items are: Substitution of glass panes for glass blocks. Improper construction of the upper level overhang. Stairway risers are not uniform in height. All walls of the second floor addition are uneven and out of plumb. The bedroom floor in the northwest corner of the second floor slants excessively toward the northwest corner. Wood exterior paneling is slanted at a 10 degree angle instead of the required 45 degree angle. The stair landing is six inches less in width than required by plans. Further, the landing (5 ft. 10 in. x 2 ft. 6 in.) is dangerous in that it is supported with only one joist at each end, instead of one every 24 inches. The testimony of Petitioner's expert also established that an expenditure of approximately $51,205 would be required to simply repair or correct improper construction in order to have a final product which is in accordance with the plans referenced in the initial agreement. The McCoys paid certain expenditures for which Respondent, under terms of the agreement, was to have assumed financial responsibility. Included in these items are: Bathroom tiles. Plumbing expenses. Painting expenses. The record is devoid of any evidence that the Respondent conducted any examination of the existing structure prior to contracting with the McCoys or initiation of construction on the project. Further, by the Respondent's own admission, it is established that he did not see the plans referenced in the written contract between the parties until several weeks after the construction was initiated. He proceeded with construction activities on the basis of a "concept". Based on the demeanor of the Respondent, his testimony that the McCoys agreed to pay for "extras" resulting from the plans which were revised by Edna Mingo is not credited. The original written agreement between the Respondent and Ms. McCoy, executed on April 16, 1986, incorporated these revised plans. By his own admission, the Respondent had completed these "extras" before the middle of August of 1986. He did not discuss this problem with the McCoys until sometime between November of 1986 and January of 1987. The Respondent did not espouse a total cost amount attributable to the "extras" until the final hearing held in this cause. Further, Respondent's testimony that the McCoys agreed to pay additional costs resulting from the plans was not supported by testimony of any other witness. The plans, as revised by Edna Mingo, depicted existing centers in the ceiling of the original structure as being 12 inches apart, when, in reality, they were 28 inches apart. These centers were required, by the revised plans, to be extended in order to support the overhang of the second floor addition. The Respondent discovered the disparity regarding the spacing of centers in the course of construction, but he failed to correct the problem with the result that the overhang will eventually sag. At hearing, the Respondent confirmed that numerous punch list items had not been completed. He stated his willingness to have these tasks completed if the McCoys would allow entry to the premises for personnel performing these tasks.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Construction Industry Licensing Board enter a final order finding the Respondent guilty of the commission of gross negligence in the practice of contracting in violation of subsection 489.129 (1)(m), Florida Statutes. The penalty of permanent revocation suggested by the Petitioner is outside the maximum range set forth in subsection 21E-17.001 (19), Florida Administrative Code, and also appears overly harsh in view of the informal atmosphere which surrounded the contractual arrangements in this case. This is particularly so in view of the apparently previously unblemished record of the Respondent. The nature and extent of neglect in this case does, however, dictate imposition of a firm penalty. As required by subsections 21E-17.002(1) and (2), Florida Administrative Code, the aggravating circumstances in this situation, namely the additional cost to be endured by the owners to correct errors by the Respondent, justify the recommendation that the Respondent's license be suspended for a period of three years and that he be assessed an administrative penalty of $2,500. DONE AND RECOMMENDED this 28th day of April, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 28th day of April, 1988. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. PETITIONER'S PROPOSED FINDINGS Petitioner's proposed findings consisted of 2 numbered paragraphs and 14 unnumbered paragraphs. Two of the unnumbered paragraphs have multiple numbered subdivisions. Numbers 3-14 have been applied to the unnumbered paragraphs and the numbered sub-paragraphs are redesignated with arabic letters. Included in finding number 2. Included in finding number 11. Included in part in findings numbered 4, 5, and 17. The remainder is rejected as unnecessary for the result reached. Included in findings 11 and 17. Rejected as unnecessary for the result reached. Included as to amount of pay in finding number 11. Remainder rejected as not supported by the weight of the evidence. There appears to be a typographical error in this proposed finding by Petitioner. As to an amount of $15,000 in extras claimed by the Respondent, this proposed finding is treated in finding number 18. Rejected as not necessary for the result reached. Rejected as not necessary. Included in finding number 18. Rejected as not necessary for the result reached. Rejected as unnecessary. Included in findings numbered 14 and 15. Included in finding number 14. a) rejected as unnecessary. rejected as unnecessary. included in finding number 7. rejected, these were not the Respondent's responsibility. included in finding number 19. included in finding number 14. rejected as redundant. Included in finding number 15. Included in part in finding number 20. Remainder rejected as redundant. RESPONDENT'S PROPOSED FINDINGS Included in finding number 2. Included in finding number 3. Included in finding number 3. Included in finding number 3. Included in finding number 3 and 4. Rejected as unnecessary to result reached. Included in finding number 4. Included in finding number 4. Included in part in finding number 17, Remainder Rejected as unnecessary. Rejected as unnecessary. Included in findings numbered 5 and 9. Included in finding number 5 as to permit transfer. Included in finding number 9. Rejected as unnecessary for the result reached. Included in finding number 9 as to payment amount, remainder rejected as unnecessary to result reached. Rejected as unnecessary. Included in finding number 11. Included in finding number 10. Included in finding number 11. Included in finding number 10. Rejected as unnecessary. Included in part in findings numbered 14 and 15. Included in finding number 20. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. COPIES FURNISHED: Lee Sims, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 R. Daniel Koppen, Esquire 700 Northeast 90th Street Miami, Florida 33138-3206 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely Executive Director Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 =================================================================
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding, the respondent James A. Riley was a certified building contractor in Florida, having been issued license number CB-C029035. On or about April 23, 1985, Marion Smith entered into a contract with William Ross to remodel two duplexes in Lakeland. At that time, Mr. Ross held himself out to Ms. Smith as a licensed contractor. Ms. Smith agreed to pay Mr. Ross $9,975.00 for the remodeling work, which included reroofing, painting inside and out, porch screening, redoing inside walls and bathrooms, and certain kitchen work. By Application for Permit dated April 23, 1985, and received by the City of Lakeland Building Inspection Division on April 24, 1985, James Riley requested a building permit to do certain work at the residence of Marion Smith. The description of the work to be done was "reroof - replace doors - panel - drywall - window - repair floor, etc., kitchen - bath, bedrooms, paint house." The permit application also stated that the work was to be done by "Riley Const." and that the name of the architect, designer or applicant was James Riley. Marion Smith never met or spoke with James Riley until August of 1985. William Ross commenced work on the duplexes within a week of the time that the April 23, 1985, contract was signed. He last worked on the project in June of 1985, after Marion Smith had paid him in full. At the time Mr. Ross left the project in June, the entire insides of the duplexes were incomplete. Mr. Ross was never licensed as a contractor in Florida, nor was he registered as a contractor in the City of Lakeland. Marion Smith learned from City of Lakeland officials that it was James Riley who had pulled the permit for work on her duplexes. On or about August 24, 1985, she and respondent Riley entered into an agreement whereby respondent agreed to complete the work and furnish all labor and materials. The agreement states that "We value this work at $3,200.00 to be paid by William Ross..." The agreement further provides that work will be started on August 27, 1985, and completed on or before October 7, 1985. Respondent Riley began work, plastered the ceilings and started to paint the walls. He last worked on the duplexes in October of 1985, leaving incomplete the bathroom work, the kitchen cabinet work, electrical fixture work and the remainder of the wall painting. Thereafter, Marion Smith had to employ others to complete the work originally contracted for by Mr. Ross and which respondent Riley subsequently agreed to complete. She paid approximately $3,500.00 to have the unfinished work completed. One of the duplexes was completed in December of 1985, and the other was completed sometime in 1986. Respondent Riley testified that he did not complete the work on the Smith duplexes because Ms. Smith took the keys away from him when she became dissatisfied that he was not finishing the job fast enough. He admits that he was only working part time on that project. Marion Smith's mother testified that respondent Riley told her he could not finish the work because Marion Smith never gave him any money. Two disciplinary actions have been brought against respondent Riley's registration as a contractor by the City of Lakeland. His registration with the City has been suspended twice for thirty days each time.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that respondent James A. Riley be found guilty of violating Section 489.129(1)(e),(i),(j),(k) and (m), Florida Statutes, that his certification as a building contractor be suspended for a period of eighteen (18) months, and that an administrative fine of $1,500.00 be imposed. It is further RECOMMENDED that, should respondent provide written proof to the Board, within six (6) months of the date of the Final Order in this cause, that he has relieved Marion Smith of the additional monetary damages incurred to complete the construction work on the duplexes, the period of suspension be shortened to a period of six (6) months from the date such written proof is provided. Respectfully submitted and entered this 30th day of June, 1988, in Tallahassee, Florida. COPIES FURNISHED: Fred Seely, Executive Director DPR, Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Jack M. Larkin, Esquire 806 Jackson Street Tampa, Florida 33602 James A. Riley 1934 Lake Parker Drive West Lakeland, Florida 33805 DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1988.
