The Issue Whether Respondent, a registered general contractor, (1) unlawfully and willfully committed fraud and theft, violated the Fictitious Name Statute, and violated Municipal and County Contractor Licensing Ordinances, and (2) violated other provisions of the Construction Industry Licensing Law relating to the name under which a qualifying agent may engage in business.
Findings Of Fact At all times material hereto, Respondent was the holder of Registered General Contractors License No. RG0013533 issued by the Board to Respondent, d/b/a Deltec Construction Co. (Stipulation of counsel). Respondent is a fifty-five year old general contractor who has worked in construction for thirty-seven years, and has never been disciplined for misconduct associated with construction activities. (Testimony of Respondent) Respondent, at all times material hereto, did not qualify or license with the Board Trendway Construction Co., Trendway Construction Inc., or Trend- Tech Construction Co. (Testimony of Respondent, P.E. 1, 2, 3) Respondent's Business Activities in Daytona Beach, Florida On May 24, 1978, Respondent, d/b/a Deltec Construction Co., contracted with Darcy A. Vernier to assist him in the formation and operation of a corporation to be known as Trendway Construction Inc. In exchange for $8,500.00, Respondent agreed to provide a broad range of business assistance, expertise, training, and equipment to Trendway Construction, Inc. Vernier was designated General Manager and President of the new Company, and agreed to be individually responsible for its overall management. Although the long-term goal of the new Company was to perform general contracting, Vernier and Respondent envisioned that the Company would first gain necessary knowledge and experience by limiting its construction work to masonry and flat concrete construction projects. Profits were to be equally divided between Respondent (Deltec) and Vernier (Trendway), and, as subsequently amended, the Corporation was to be wholly owned by Vernier. (Testimony of Vernier, Respondent, P.E. 4) Prior to executing the contract, Vernier met with Respondent and discussed their proposed business venture on three separate occasions during a ten-day period. Vernier had his attorney review the contract prior to his signing, and fully understood its provisions. The proposed contract was modified, at Vernier's request, to ensure that Vernier would be the sole owner of the Corporation. (Testimony of Vernier) Prior to executing the contract, Respondent took Vernier to observe a masonry or flat concrete construction job in Ormond Beach, which he had recently completed d/b/a Deltec Construction Co. (Testimony of Vernier, Respondent) On July 6, 1978, pursuant to his contractual obligation, Respondent paid $250.00 for and obtained a Masonry Sub-Contractor's License, in Vernier's name, from the Building Department of the City of Daytona Beach. (Testimony of Respondent, Holmes, Vernier) Conflicting evidence was presented on whether, in order to do sub- contracting, masonry and flat concrete work within the City of Daytona Beach, a sub-contractor must also secure a certificate of competency or license from Volusia County under Ordinance 69-3. By stipulation, the testimony of Fred Holmes, Building Official with the City of Daytona Beach, was subsequently taken by deposition and submitted to determine this question. However, the testimony of Holmes is inconclusive, conflicting and unclear. (Testimony of Respondent, Vernier, Holmes, P.E. 7) Respondent did not represent to Vernier that Deltec Construction Co.'s licenses could be used by Vernier d/b/a Trendway Construction, Inc., and that no further licenses would be necessary. Vernier testified that Respondent made such representation, and Respondent denied it. Vernier's testimony is inconsistent with the express contractual provision which required Respondent to affirmatively secure "initial licensing" for Trendway Construction, Inc. Furthermore, Vernier's demeanor as a witness reflected a level of bitterness and hostility toward Respondent which may have influenced his recollection. (Since his construction company failed, Vernier had demanded Respondent return his money and filed a civil suit for such purpose.) In contrast, Respondent's unequivocal testimony on this question is buttressed by his consistent actions in securing an additional license for the Company from the City of Daytona Beach), and his subsequent action in attempting to secure a local license for another company under a contract markedly similar to the one between Vernier and Respondent, post. (Testimony of Respondent, Vernier, Garr, Fortner) Respondent was aware, however, that the Company would eventually have to acquire a license from Volusia County; he concluded, though, that his contractual obligations to secure "initial licensing" encompassed only the license required by the City of Daytona Beach. (Testimony of Respondent) Trendway Construction, Inc., was never organized as a corporation as envisioned by the contract between Respondent and Vernier. Soon after the contract was signed, serious business disagreements arose between Respondent and Vernier. Vernier, then, unilaterally moved the business, including its equipment, furnishings, office forms, and principal employee from Daytona Beach and relocated in another community. From the execution of the contract to Vernier's ultimate closing of the business, Respondent never received any profits from its operation, and his non-participation in the business operations was acknowledged by Vernier. During September or October, 1978, Vernier changed the name of the Company to Pelican Construction Co. During its existence, Trendway Construction was not registered as a fictitious name with the Clerk of the Circuit Court of Volusia County. (Testimony of Respondent, Vernier) Respondent's Business Activities in Ocala, Florida During September and October, 1978), Respondent operated a duly licensed masonry and flat concrete construction business known as Deltec Construction Co., in Ocala, Florida. (Testimony of Garr, Fortner, Respondent) On October 5, 1978, Respondent d/b/a Deltec Construction Co. contracted with Albert W. Latham to assist in the formation and operation of a corporation to be known as Trendway Construction, Inc. (In the Daytona Beach transaction, Trendway Construction Co. had never been incorporated by Vernier, and he had subsequently changed the Company's name, infra.) In exchange for $8,500.00, Respondent agreed to provide business assistance, expertise, training and equipment to Trendway Construction, Inc. Albert Latham was designated as General Manager and President of the newly formed Company, and agreed to be individually responsible for its general overall management. Although general construction was the Company's long-term objective, the parties invisioned that necessary knowledge and experience would be acquired by limiting their initial work to sub-contracting masonry and flat concrete construction projects. Profits were to be equally divided between Respondent and Latham, and 60 percent of the capital stock of the corporation was to be owned by Latham--the remaining 40 percent, by Respondent. (Testimony of Respondent, P.E. 13) On October 23, 1978, Trendway Construction, Inc., was officially organized and formed pursuant to the contract between Respondent and Latham. (P.E. 9) Under the contract between Respondent and Latham, Respondent was obligated to secure initial licensing for the new Company, Trendway Construction, Inc. Because Trendway Construction, Inc., was going to initially engage only in masonry and flat concrete sub-contracting work, the only license required was a certification of competency from the City of Ocala. Respondent made reasonable, diligent and earnest efforts to obtain the required certification from the City. First, he tried to apply for the license on behalf of Trendway Construction, Inc. But, since Latham owned a controlling interest in the Company, and was apparently considered its owner, City Building Department officials insisted that Latham must apply for the license on behalf of the Company. Respondent then obtained and delivered to Latham the necessary application forms and character reference letters, set up appointments for Latham at the Building Department, and repeatedly reminded him of the need to secure the local certification. Despite Respondent's efforts, Latham procrastinated, and failed to obtain from the City of Ocala the required license for Trendway Construction, Inc. It is probable that if proper application had been made for the license, it would have been issued to Latham d/b/a Trendway Construction, Inc., upon payment of the application fee and proof of insurance. (Testimony of Respondent, Garr, Fortner, P.E. 13) After formation of the Corporation, Respondent continued to provide assistance to Latham and Trendway Construction, Inc., but he did not dictate what construction work would be done or whore it would be undertaken. Latham directed two construction work crews and made those decisions. Nevertheless, Respondent warned Latham that no construction work should be undertaken within Ocala until the necessary City certification was obtained. (Testimony of Respondent) On October 24, 1978, Trendway Construction, Inc., poured a driveway slab for Herbert Adams at 2332 East Silver Spring Boulevard, Ocala, Florida, for $668.72. Adams dealt only with Jack Cook, an employee of Trendway, and neither knew nor had any dealings with Respondent. (Testimony of Adams, Garr) The name of "Trendway Construction, Inc.," has not been registered with the Clerk of the Circuit Court of Marion County, Florida. (Testimony of Respondent) Respondent did not attempt to mislead Latham by representing that Trendway Construction, Inc., could operate under Deltec's local or state licenses. (Testimony of Respondent) There was no evidence that Respondent mislead or misrepresented any material fact to Latham or failed to diligently carry out his obligations under their contract; neither was any evidence presented to show Latham was dissatisfied, in any manner, with Respondent's contractual performance. Respondent's Business Activities in Gainesville, Florida Respondent sold a construction business to Valentine Webber of Gainesville, Florida, for $8,500.00. (Testimony of Respondent)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Board find Respondent Not Guilty of the charges contained in its Administrative Complaint, and that the Complaint be DISMISSED. DONE and ENTERED this 11th day of June, 1980, in Tallahassee, Florida. R. L. CALEEN JR., Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 904/488-9675
Findings Of Fact On July 31, 1987, a sign owned by Hodessa Corporation for whom Gia Associates is the agent was located on the right-of-way of U.S. 19 in Pasco County, .3 mile north of Floramar. When erected by the sign company some months earlier the sign was located in a legal location and not on the right-of-way of U.S. 19. Considerable construction work was being done on the property owned by Hodessa. Upon completion of the parking lot the sign was moved by the construction workers onto the right-of-way of U.S. 19. As soon as this error was discovered by Respondent the sign was relocated to its proper position.
The Issue The issue is whether Respondent undertook to act as a contractor without a license as charged in the Administrative Complaints, and if so, what disciplinary action should be taken.
Findings Of Fact Pursuant to Section 20.165, the Division of Professions is a subordinate unit of the Department of Business and Professional Regulation (the Department). The Department provides administrative support, including prosecutorial support to the Construction Industry Licensing Board (the Board), which is also located within the Department. Mr. Grandmont is not currently licensed as a State Registered or State Certified Contractor in this state, nor has he ever been licensed by the Board. Mr. Grandmont's last known address is 355 China Berry Circle, Davenport, Florida. He was provided notice of the hearing at that address, and at 7733 Park Road, Charlotte, North Carolina 28210, which is the address he used when demanding a hearing on disputed facts in two of these cases. In DOAH Case No. 06-3279, he provided no address in his demand for a hearing. All attempts by U. S. Mail to notify Mr. Grandmont of the hearing, were returned. Mr. Grandmont is deemed to have known of the time, date, and place of the hearing, and is deemed to have waived his appearance at the hearing. On November 11, 2005, subsequent to Hurricane Wilma, Robert L. Coe, of Lake Worth, Florida, was contacted by Mr. Grandmont, who offered to repair his damaged mobile home. He provided a written estimate of $10,500. The estimate contained a list of 11 items requiring repair, and stated that he would accomplish the repair of them. He demanded a $4,200 down payment, which Mr. Coe provided in a draft drawn on Fidelity Cash Reserves, and dated November 11, 2005. Mr. Coe never saw Mr. Grandmont again. The repairs set forth in the written estimate were not accomplished. The draft, however, was negotiated by Mr. Grandmont. On November 12, 2005, subsequent to Hurricane Wilma, Joseph Webster, of Lake Worth, Florida, was contacted by Mr. Grandmont, who offered to repair his damaged residence. Mr. Grandmont discussed charging $13,500 in return for repairing Mr. Webster's residence. After negotiations, Mr. Grandmont agreed to do it for $11,500. No written estimate or contract was prepared. Mr. Grandmont demanded $5,750 payment in advance. Mr. Webster rounded off the down payment to $6,000 and presented Mr. Grandmont an official check of the Taunton Federal Credit Union, of Taunton, Massachusetts, for that amount. The check was negotiated by Mr. Grandmont, but the promised repairs were not accomplished. On November 4, 2005, subsequent to Hurricane Wilma, Ella Arseneau, of Lake Worth, Florida, was contacted by Mr. Grandmont, who offered to replace her roof. He provided an estimate of $5,500 in return for repairing Ms. Arseneau's residence. He demanded that she pay $3,500 in advance, which Ms. Arseneau provided by presenting Mr. Grandmont a check for $3,500, drawn on an account in Wachovia Bank. The check was negotiated by Mr. Grandmont, but the roof was not repaired as promised. Mr. Coe is 78 years of age, Mr. Webster is 85, and Ms. Arseneau is 77.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation impose a fine upon Clifford Grandmont in the amount of $30,000. DONE AND ENTERED this 28th day of November, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 28th of November, 2006. COPIES FURNISHED: Brian A. Higgins, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Clifford Grandmont 7733 Park Road Charlotte, North Carolina 28210 Nancy S. Terrel, Hearing Officer Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Simone Marstiller, Secretary Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
