The Issue The basic issue in this case is whether the Respondent's license as a certified general contractor should be revoked or suspended, or some other discipline imposed, for the reasons alleged in a multi-count Administrative Complaint. The essential allegations of the Administrative Complaint may be summarized as follows: Count One--failure to properly qualify a company under which Respondent was doing business and acting in a name other than that on his license; Count Two--abandoning a construction project without just cause and willful or deliberate disregard and violation of applicable local building codes; Count Three-- diverting funds received for the completion of a specified construction project when as a result of the diversion the contractor is unable to fulfill the terms of his contract.
Findings Of Fact Based on the admissions and stipulations of the parties, on the exhibits received in evidence, on the testimony of the witnesses at the hearing, and on matters officially recognized, I make the following findings of fact: Admitted and stipulated facts The Respondent is a certified general contractor, having been issued license number CG C007067. The Respondent's last known address is DeMaria & Sons Construction Company, Inc., 4451 N.E. 16th Avenue Fort Lauderdale, Florida 33334. On July 14, 1982, Respondent, doing business as Big D Construction, contracted with Jolly Libo-on of 312 S.E. 22nd Street, Fort Lauderdale, Florida, to build an addition to Libo- on's house for a contract price of $17,500.00. At all times material herein, Respondent qualified DeMaria & Sons Construction Company, Inc. At no time did Respondent properly qualify, nor did any licensed contractor properly qualify, Big D Construction. The Respondent began work on Libo-on's house on August 23, 1982, and continued construction until at least the last week of September of 1982. Libo-on has paid the Respondent $13,500.00 as called for by their contract. The following subcontractors or suppliers filed claims of lien against Libo-on's property because of Respondent's failure to pay them for services or supplies: Minute Men Associates, Inc. $1,752.47 Apachee Roofing 885.00 Meekins, Inc. 439.53 Greenlee Plumbing Service, Inc. 795.00 Total liens $3,862.00 7. The Respondent has not satisfied the liens filed against Libo-on's property, but the liens were later satisfied by Libo- on. Other relevant facts established by the evidence of record After September 27, 1982, the only work performed by or on behalf of the Respondent at the Libo-on residence was by employee Shawn Brannigan on November 16, 1982, and by employee Bob Walters on November 21, 1982. The work performed by Brannigan and Walters in November was de minimis in nature and did not significantly advance the completion of the contract. From September 27 through November 25, 1982, Libo-on called the Respondent by telephone on a daily basis to inquire about why no work was being done on the project. The Respondent would promise that someone would come the next day, but with the exception of the de minimis efforts on November 16 and 21, no work was done on the project after September 27, 1982, by or on behalf of the Respondent. Libo-on quit trying to make telephone calls to the Respondent after the Respondent told Libo-on on the telephone that he had reached a wrong number. The Respondent's services were terminated on December 7, 1982, via letter from Libo-on's attorney, Linn Brett. At no time prior to the termination of his services did the Respondent inform the Libo-ons that he could not do any more work nor did the Libo-ons dismiss him from the work at any earlier date. At the time Respondent's services were terminated, the addition was approximately 75 per cent completed. In addition to the subcontractors and suppliers listed in paragraph 6 above, the Respondent also failed to pay the sum of $2,393.00 which was due to International Drywall Systems, a subcontractor who provided services and supplies on the Libo-on project. Abandonment of a construction project constitutes a violation of Broward County Ordinance 78-9, Section 9-14(b)(8). Libo-on paid the lienors $3,441.00 in satisfaction of the liens. Libo-on contracted with Robert Hobart to finish the construction, at an additional cost of $4,000.00. Libo-on paid $2,200.00 for lawyers fees, $3,441.00 for liens, and $4,000.00 to Mr. Hobart. These costs minus the $4,000.00 remaining under the Respondent's contract resulted in Libo-on expending $5,641.00 above the original contract price. Of the $13,500.00 which was paid to him by Libo-on, the Respondent can establish that he spent only approximately $9,000.00 on the project. The Respondent was unable to complete the project because he did not have on hand the money to pay the subcontractors and suppliers.
Recommendation On the basis of all of the foregoing, it is recommended that the Construction Industry Licensing Board issue a Final Order suspending the Respondent's license for a period of five years and providing further that the suspension will be reduced to one year upon the Respondent's demonstrating to the Board that he has made restitution to Libo-on in the amount of $5,641.00. DONE AND ORDERED this 30th day of October, 1985, at Tallahassee, Florida. MICHAEL M. PARRISH 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 30th day of October, 1985. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-4450 The following are my specific rulings on the proposed findings of fact submitted by both parties to this case. Rulings on proposed findings of fact submitted by the Petitioner: The findings of fact included in this Recommended Order include the substance of all of the proposed findings of fact submitted by the Petitioner with certain minor modifications and additions in the interest of clarity and accuracy. Rulings on proposed findings of fact submitted by the Respondent: The unnumbered paragraphs of the Respondent's letter of October 22, 1985, have comments, arguments, legal conclusions, and factual assertions all interspersed. Nothing in the letter constitutes a proposed finding of fact per se. Were it not for the fact that the Respondent is unrepresented by counsel, I would decline to attempt to address the issues raised in the Respondent's letter of October 22, 1985, due to both its tardiness and its failure to separately state proposed findings and proposed conclusions. Nevertheless, giving the Respondent more process than is perhaps his due, I have specifically ruled on each of the contentions which relates to factual matters and have also attempted to address his legal contentions. In the rulings below I have referred to the unnumbered paragraphs in the order in which they appear on each page of the letter. Page one, first paragraph: No ruling required. Page one, second paragraph: No ruling required. Page one, third paragraph: Respondent's version of the facts on this issue is rejected for several reasons, including the following: (1) competent substantial evidence supports the finding that from September 27 until December 7, 1982, only "token" or "de minimis" work was performed on the Libo-on project, and (2) the Respondent did not offer into evidence the documentation mentioned in this paragraph. Page one, fourth paragraph: There is competent substantial evidence for the Petitioner's version of the finding addressed by this paragraph. The Libo- on testimony on this subject is not hearsay. Page one, fifth paragraph: To the extent that in this paragraph the Respondent attempts to dispute the fact that he abandoned the Libo-on project, such a finding is rejected because the persuasive competent substantial evidence compels an opposite finding. Page one, sixth paragraph: With regard to the issue of the percentage of completion of the project at the time the Respondent abandoned it, there is conflicting evidence. The more persuasive evidence is that the project was approximately 75 percent completed. Page one, seventh paragraph (which also continues at top of page two): This paragraph contains a mixture of legal and factual contentions. With regard to the factual contentions it is sufficient to note that the greater weight of the evidence supports a finding that the amount paid to Hobart to finish the work on the Libo-on project was a reasonable amount because, in fact, it was exactly the same amount that remained to be paid to the Respondent on his unfinished contract. No one is trying to charge the Respondent for additional work that was not in his contract. The amount to which the Libo-ons are entitled in restitution is the sum of their expenses incurred for legal fees and for obtaining satisfaction of liens placed against their property because of the Respondent's failure to pay subcontractors and suppliers. Page two, first full paragraph: The Respondent's contentions in this paragraph are contrary to the persuasive competent substantial evidence. These contentions are also contrary to Respondent's admission at hearing that he could account for only approximately $9,000.00 of the $13,500.00 he was paid by the Libo-ons. Page two, second full paragraph: This paragraph requires no comment other than to note that there is a significant difference between imposing a fine and providing for a reduced suspension in the event of restitution. Page two, third full paragraph: Contrary to the Respondent's assertion, there is persuasive competent substantial evidence to establish the amount of the financial injury suffered by the Libo-ons as a result of the Respondent's misconduct. Page two, last paragraph: No ruling required. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Senior Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Vincent A. DeMaria 4451 N.E. 16th Avenue Fort Lauderdale, Florida 33334 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Salvatore A. Carpino General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
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
The Issue The issue for disposition is whether, as alleged in the Administrative Complaint, Respondent committed various violations of Chapter 489, F.S., regulating the practice of contracting, by failing to complete a roofing job which he had agreed to perform.
Findings Of Fact At all times relevant, Michael W. Ballans was licensed by the State of Florida as a certified building contractor, holding License Number CB C036542. He qualified as an individual doing business at 1107 Oregon Avenue, St. Cloud, Florida 32769. On April 6, 1988, H. Earl Fisher signed his acceptance of a written proposal by Michael Ballans for Ballans to install a new roof on Fisher's double-wide trailer at 7650 E. Irlo Bronson Memorial Highway, in St. Cloud, Florida. The price for the job was $1,575.00, for supplies and labor. Fisher made an initial payment of $1,018.00 on June 6, 1988. Materials were delivered to the job site, but Ballans never commenced work. Fisher contacted Ballans four or five times to try to get him to do the job or to get someone else to do it. Ballans never returned the funds and at one point told Fisher that he could not do the work because he lost his insurance. Fisher did not agree to do the work himself and told Ballans he wanted the money back and the materials removed from his property. Stanton Alexander was qualified as an expert in construction industry contracting, including roofing. He has practiced in the profession for approximately thirty years. He served two terms on the construction industry licensing board, including a term as chairman. He has testified in the past as an expert in construction industry practices. A contractor terminates his responsibility under a contract after payment and final inspection and a certificate of occupancy has been issued. Until then, he is responsible for completion of the job. Proper procedure when a contractor becomes unable, to complete a job is to refund the money and remove the materials or to get permission from the building department and owner to bring in another contractor to complete the work. Michael Ballans did neither, and simply abandoned the job. This deviation from the standards of construction industry practice constitutes incompetency or misconduct.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED That a Final Order be entered finding Michael W. Ballans guilty of violations alleged in Counts I, II and IV of the Administrative Complaint, and imposing a fine of $500.00. DONE AND RECOMMENDED this 16th day of April, 1990, in Tallahassee, Leon County, Florida. MARY CLARK 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 16th day of April, 1990. COPIES FURNISHED: Jack L. McRay, Esquire Dept. of Professional Regulation 1940 N. Monroe St., Suite 60 Tallahassee, FL 32399-0792 Michael W. Ballans 2314 Knob Hill Drive, Apt. #12 Okemos, Michigan 48864 Kenneth D. Easley, General Counsel Dept. of Professional Regulation 1940 N. Monroe St., Suite 60 Tallahassee, FL 32399-0792 Fred Seely, Executive Director DPR-Construction Industry Licensing Board P.O. Box 2 Jacksonville, FL 32202
Findings Of Fact The Respondent, Paul K. Scapecchi, is a registered general contractor in the State of Florida, holding license number RG 0015926, and a registered roofing contractor, holding license number RC 0031048. The Respondent is the qualifier for Paul's Construction Company, which is the Respondent's firm. Edwin Schmid is a resident of West Germany who vacations in North Florida, and who testified by deposition which was received in evidence as Exhibit 1. He owns six parcels of real estate, or lots adjacent to each other, including Lot 19, Bon Bay Estates, in Santa Rosa County, Florida, which he purchased in approximately February, 1980. Edwin Schmid intended to have a home constructed on Lot 19 to be used as rental property. Subsequently, Edwin Schmid was introduced to the Respondent and the Respondent's father, Walter Scapecchi, by Lee and Carolyn Swigger. The Swiggers had become friendly with Edwin Schmid because Carolyn Swigger speaks German. Thereafter, Edwin Schmid contracted with the Respondent and Walter Scapecchi to have his home built on Lot 19 in Bon Bay Estates. This contract was in written form and dated March 21, 1981. Although Walter Scapecchi signed this contract "doing business as Paul's Construction Company," as contractor, the Respondent admitted that the contract was with himself, and that his father was merely an employee of the firm. The initial contract with Edwin Schmid in which the price was set at $36,000 was participated in by both the Respondent and his father. Edwin Schmid dealt with the Respondent directly on several occasions, but the business card he had been given showed Walter Scapecchi's name written in by hand over the Respondent's name. The deposit check written by Edwin Schmid was made payable to Walter Scapecchi in the amount of $8,000. Walter Scapecchi is not licensed to engage in the business of general contracting, but was so engaged, aided and assisted by his son, the Respondent. The deposit check for $8,000 was to be used to cover the digging of the foundation, the necessary fill, the pouring of the concrete foundation, a culvert for the driveway, and electrical service, which was to have been completed by April 10, 1981, pursuant to the contract. A second payment of $10,000 was to have been made on April 10, 1981. On April 10, 1981, however, no work had yet been done, and none was done until March of 1982, nearly one year later. The work done in March 1982 consisted only of placing foundation markers. The Respondent admitted that the work of placing foundation markers did not cost anything near the $8,000 paid, and that he did not request the second payment of $10,000 because the work done did not exhaust the initial payment. Nevertheless, no part of the $8,000 initial payment was refunded to Edwin Schmid. Throughout the period of time after the contract was executed in March of 1981, Edwin Schmid wanted the Respondent to complete the construction pursuant to the contract. At one point after the first year had elapsed without any substantial work being done, Edwin Schmid attempted to effect a new contract with the Respondent that required the initial work for which he had already paid $8,000 to be completed. The Respondent agreed to this, but did not perform any more work at the construction site. The Respondent admits that he has not performed as required by the contract. He contends this was due to personal financial problems. Other excuses for the Respondent's nonperformance included his underestimation of the amount of fill required, heavy rains which caused delays, and State of Florida requirements. Nevertheless, work was not begun for nearly one year after the contract, contrary to the agreement, and only a minimal amount of work was done as of the date of the hearing. The Respondent moved out of the State of Florida in February of 1982, without notifying Edwin Schmid.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent, Paul K. Scapecchi be found guilty of violating Sections 489.129(1)(e), (f), (h), (j) and (k), Florida Statutes, and that licenses numbered RG 0015926 and RC 0031048 held by Paul K. Scapecchi be REVOKED. THIS RECOMMENDED ORDER entered this 27th day of September, 1983. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1983. COPIES FURNISHED: Douglas A. Shropshire, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Paul K. Scapecchi 133F 25th Court, N.W. Birmingham, Alabama 35215 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
The Issue Whether Respondent, a certified general contractor in the State of Florida, violated various provisions of the contracting laws related to five different construction projects and, if so, what disciplinary action should be taken against him, if any?
Findings Of Fact At all times material hereto, Respondent has been licensed as a Certified General Contractor, holding license numbers CG C008004 and CG CA08004. At all times material hereto, Respondent was the qualifying agent for Asher Melzer Construction Corporation (hereinafter "AMCC"). DOAH CASE NO. 86-4732 At all times material hereto, Mr. and Mrs. Victor M. Franzese resided at 8880 Southwest 182nd Terrace, Miami, Florida 33157. On March 29, 1985, the Franzeses contracted with AMCC to construct a home in the Cutler Glen development for $279,000. The Franzeses made payments to AMCC totalling $32,901. Construction of the Franzese residence began almost immediately after the contract was signed. However, after the foundation was poured and the walls were put up, AMCC abandoned the project. During the time that the initial work was performed, Victor Franzese stopped by the construction site almost every day. Although he met the foreman on the job, he never met with, spoke to, or heard of the Respondent. Throughout the fall of 1985, Franzese wrote to Asher Melzer, the owner of AMCC, regarding the lack of work at the construction site. He received no responses to his letters. In January of 1986, Melzer indicated to Franzese that the roof trusses which had been lying on the ground at the Franzese project for many months would be installed. Franzese hired an engineer to inspect the trusses due to their obviously-deteriorated condition. The engineer reported that the trusses would need substantial bracing in order to be used. Additionally, a Dade County structural engineer told Franzese and Melzer after inspecting the trusses that no matter what bracing was added, the trusses would never pass inspection. AMCC did not begin construction again, and a foreclosure action was brought by Amerifirst Savings & Loan Association against Melzer, AMCC, the Franzeses, and others. The Franzeses lost all rights to the property which their house was being built on and lost all of the money which they had paid AMCC. During the entire time that the Franzeses were dealing with AMCC, they never heard of, spoke to, or saw the Respondent. The Franzeses lost approximately $38,000 in their dealings with AMCC. At all times material hereto, Mr. and Mrs. James R. Cross were the owners of property located at 9990 Southwest 127th Terrace, Miami, Florida. On March 25, 1985, the Crosses contracted with AMCC to construct a home on their property. The total contract price including extras subsequently agreed upon was approximately $152,400. The Crosses paid AMCC approximately $29,000 in deposit and draw monies. Although AMCC began construction of the Cross residence, the project was only completed through the tie beam phase. During the time that construction was being performed, James Cross visited the construction site on a daily basis. Although he met the foreman at the job site, he never spoke to, heard of, or met the Respondent. Construction at the Cross project ceased on approximately September 11, 1985, and was never resumed by AMCC. By that time, Cross had begun receiving Notices to Owner that liens would be placed on his property for failure to be paid by AMCC, and one lien had already been placed. The liens placed on his property were from the architect Ronald J. Dorris, Rinker Construction Company, ASP Construction Equipment Company, and Distrito Trucking Corporation. After receiving the first Notice to Owner, Cross contacted AMCC. He was told not to worry, that things would be taken care of by AMCC. All of the subcontractors and materialmen who filed liens on the Cross property were to have been paid by AMCC pursuant to the contract between the Crosses and AMCC. AMCC never provided the Crosses with any money nor posted any bonds to clear the liens. In fact, Melzer gave the Crosses a check to pay one of the liens, but the check bounced. Melzer never attempted to repay the money to them, and they were forced to pay off these liens personally for a total amount of $4,666. While James Cross was attempting to have AMCC pay the liens which were placed on his property, he never spoke to or heard from the Respondent. On December 7, 1985, after no work had been performed on the project for over 90 days, Cross served notice on AMCC that he considered the project abandoned. Cross hired another general contractor to complete the project and paid approximately $14,000 more than the original contract price to finish the project. During Cross' visits to the project, it did not appear that anyone was in control. Concrete blocks were being cemented into places where sliding glass doors were supposed to be placed, and windows were being built at improper sizes. Dade County, Florida, follows the South Florida Building Code as well as Chapter 10 of the Dade County Code, which regulates the conduct of contractors doing construction work within the limits of Dade County and all municipalities. In reference to the Cross project, Respondent obtained a permit for the construction. However, that permit did not include any plans for mechanical work, and no mechanical permit for the air conditioning system was ever obtained. Additionally, although an electrical permit was obtained, no inspections were ever called for by Respondent or anyone else. It is a violation of the South Florida Building Code and a violation of Dade County Code Chapter 10 to perform work without a permit, and it is the obligation of the qualifying agent pursuant to Chapter 10 to supervise, direct, and to control all work that is done under any permits that he has obtained The failure to obtain a mechanical permit for the Cross project indicates that Respondent was improperly supervising the job site activities. The numerous liens placed on the Cross property by subcontractors and materialmen indicate that there was a lack of supervision by Respondent. Under the Dade County Code, such actions would be considered diversion of funds. At all times material hereto, Mr. and Mrs. Mark E. Demsky resided at 7601 Southwest 162nd Street, Miami, Florida 33157. On May 16, 1985, the Demskys entered into a contract with AMCC to construct a home in the Cutler Glen development for $221,000. The Demskys paid AMCC a total of $28,000 towards the construction of that home. Work at the construction site began in late July or early August of 1985. Mark Demsky was concerned that the project did not begin immediately after the deposit money was paid and spoke to Melzer several times. When the work finally began, it proceeded very slowly. Although Demsky continued to ask questions regarding the pace of the work, he received only excuses from Melzer. Construction ceased after the foundation was poured. Construction ceased completely by December of 1985. By that time, numerous liens had been placed on the Demsky property. Because no money was placed in an escrow account at the beginning of construction, Demsky had required that Melzer sign a letter agreement on July 9, 1985, allowing Demsky to rescind the contract with 45-days notice prior to the closing. By March 18, 1986, after no work had been performed for over a three-month period, Demsky exercised that right of rescission and attempted to obtain the $28,000 deposit money he paid Melzer. Melzer gave Demsky a promissory note in the amount of $28,000 and executed a Release of Contract for Sale and Purchase. Although the promissory note from AMCC and Melzer became due on September 18, 1986, the Demskys have never received any payments on that promissory note. They filed suit to recover the $28,000 and received a final judgment against Melzer and AMCC for repayment of the promissory note, which final judgment remains unsatisfied. During the time that construction was being performed at the Demsky project, Mark Demsky visited the construction site almost every day. Although he met one of the supervisors on the job, and some of the workers, Demsky never met with, heard of, or spoke to the Respondent. Additionally, during all of the time that problems arose at the construction site and during the time that the job was abandoned, Demsky never heard from or spoke to the Respondent. The Demskys lost a total of approximately $29,250 in their dealings with AMCC. DOAH CASE NO. 88-5764 At all times material hereto, Mr. and Mrs. Calvin W. Tinsley resided at 14123 Southwest 66th Street, Miami, Florida. They now reside at 585 Shadowwood Lane, Titusville, Florida. On October 2, 1984, the Tinsleys contracted with AMCC to construct a home in the Cutler Glen development for $242,908. The Tinsleys paid AMCC approximately $32,000 in deposit money. Although the contract was signed in October of 1984, construction did not begin until February of 1985. The Tinsleys immediately noticed that things were not proceeding on schedule and the work was taking longer than promised. After a while, the subcontractors were placing liens on the Tinsley property. During all of the conversations with Melzer regarding the construction project, Calvin Tinsley never spoke to, heard of, or met with the Respondent. In fact, Calvin Tinsley believed that Asher Melzer was the general contractor for AMCC. Amerifirst Savings & Loan Association filed a foreclosure action against AMCC and Melzer, as well as the Tinsleys. A final summary judgment was entered against the Tinsleys, and their property was sold at an auction. The Tinsleys never recovered any of the $32,000 deposit money they paid AMCC. DOAH CASE NO. 89-0133 At all times material hereto, Mr. and Mrs. Warren W. Lovell, Jr., resided in Miami, Florida. They now reside at 16630 Southwest 87th Place, Miami, Florida 33157. On February 8, 1985, the Lovells contracted with AMCC to construct a home in Cutler Glen development for $195,000. The Lovells paid AMCC a total of $168,000 for the work which was performed at 16630 Southwest 87th Place in Miami. In August of 1985, construction stopped on the Lovell project for at least three months. Numerous liens had been placed on Lovell's property as well as the other properties within Cutler Glen. Lovell attempted to help Melzer complete the Cutler Glen project and arranged a meeting among Melzer and many of the homeowners and subcontractors. During this period of time, as well as when the construction was being performed, Lovell never met with, spoke to, or heard of the Respondent. In order to help AMCC begin construction again, Lovell released the claims of lien which he had placed on four homes owned by AMCC in the Cutler Glen development. Unfortunately, Lovell's efforts proved fruitless, and AMCC was never able to complete the development. Lovell ultimately had to pay to have the claims of liens which had been placed on his property released. Lovell then had to pay the subcontractors approximately $30,074 to complete his house. In 1986, Lovell discovered that the mortgage he had entered into with Melzer on the Lovell property was not a first mortgage as Melzer had represented. Lovell discovered that there were two previous mortgages filed on his property that were superior to his mortgage. Lovell was forced to pay an additional $70,000 to satisfy those mortgages to obtain title to his property. At the time those mortgages were discovered, Lovell had already paid $168,000 to AMCC for the construction of his house and the purchase of the property. In exchange for Lovell paying off the prior mortgages, Melzer gave Lovell three promissory notes totalling $70,000. These notes are past due and have not been paid, even in part. Lovell's out-of-pocket costs to complete his house were approximately $87,500.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered as follows: Finding Respondent guilty of the statutory violations as set forth above; Permanently revoking Respondent's license numbers CG C008004 and CG CA08004; Requiring Respondent to pay a civil fine to Petitioner in the amount of $5,000 within 30 days from the entry of the Final Order; Requiring Respondent to make partial restitution to each of the homeowners involved in this proceeding in the amount of $11,000 each to the Franzeses, to the Crosses, to the Demskys, to the Tinsleys, and to the Lovells for a total of $55,000 within 30 days from the entry of the Final Order; and Requiring that Respondent pay such civil fine and such partial restitution prior to any application for relicensure by Respondent being approved. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 22nd day of November, 1989. LINDA M. RIGOT 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 22nd day of November, 1989. COPIES FURNISHED: Jan L. Darlow, Esquire Rapheal M. Prevot, Jr., Esquire Department of Professional Regulation Adorno, Zeder, Allen, Yoss, Bloomberg & Goodkind, P. A. Bayview Executive Plaza 3225 Aviation Avenue, Suite 400 Miami, Florida 33133 Nicholas A. Mascioli 18750 Southwest 207th Avenue Miami, Florida 33187 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 APPENDIX TO RECOMMENDED ORDER, CASE NOS. 86-4732, 88-5764 and 89-0133 Petitioner's proposed findings of fact numbered 1, 3-10, 13-19, 22-27, 30-33, and 36-40 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 2 has been rejected as being unnecessary for determination of the issues in this cause. Petitioner's proposed findings of fact numbered 11, 12, 20, 21, 28, 29, 34, 35, and 41-47 have been rejected as not constituting findings of fact but rather as constituting recitations of the testimony, conclusions of law, or argument of counsel.
The Issue Whether Respondent committed the violations alleged in the administrative complaint; and, if so, what penalty should be imposed.
Findings Of Fact At all times material to the allegations of this complaint, the Respondent, Joseph Marcelin, was a certified residential contractor, license number CR C028352. Respondent’s place of business and residence are in Dade County, Florida. The Petitioner is the state agency charged with the responsibility of regulating and disciplining licensed contractors. On May 14, 1988, the Construction Industry Licensing Board entered a final order approving a settlement stipulation regarding Case no. 74860 against this Respondent. This final order directed Respondent to adhere to and abide by all of the terms and conditions of the stipulation. The stipulation required the Respondent to not violate the provisions in Chapters 455 and 489, Florida Statutes, in the future; required Respondent to honor a settlement in a civil matter; required Respondent to pay a fine in the amount of $500.00; suspended Respondent’s license for thirty days; and required Respondent to affirmatively demonstrate compliance with the stipulation in order to have his license reinstated. A second final order entered by the Board on May 14, 1988, approved a settlement stipulation regarding Case no. 77499. This final order also directed Respondent to comply with the stipulation applicable to that case. In Case no. 77499, the stipulation required Respondent to abide by a civil settlement; imposed a fine in the amount of $500.00; suspended Respondent’s license for thirty days; and placed the burden on Respondent to demonstrate he had met the terms of the stipulation. As to both cases referenced above, Respondent admitted the allegations of the administrative complaints which, in pertinent part, claimed Respondent had assisted an unlicensed person or entity to perform contracting services thereby aiding and abetting an unlicensed person to evade the provisions of Chapter 489, Florida Statutes. On April 2, 1993, Respondent executed a certification change of status form which was submitted to the Department. Such form was completed for the purpose of qualifying as an individual for licensure and sought to reinstate a delinquent license or change from inactive to active. In the course of completing the change of status form Respondent was required to answer a series of questions by checking either the “yes” or “no” column. In response to the question as to whether Respondent had “been charged with or convicted of acting as a contractor without a license, or if licensed as a contractor in this state or any other state, had a disciplinary action (including probation, fine or reprimand) against such license by a state, county or municipality?,” he answered “no.” Such answer was false. Further such answer was made under with the following affirmation: I affirm that these statements are true and correct and I recognize that providing false information may result in a FINE, SUSPENSION, OR REVOCATION of my contractor’s license. [Emphasis in original.] Thereafter, the Department notified the Respondent that his license would not be issued as he had failed to demonstrate satisfaction of a civil judgment and had not submitted an explanation of the disciplinary action from 1988. Respondent eventually resolved issues of licensure with the Department and, on September 15, 1993, was authorized to practice contracting. Prior to his license being reinstated, Respondent performed the following: on April 7, 1993, Respondent obtained a building permit for construction work at the home of Eduardo Bovea. This permit, no. 93181501, indicated Respondent as the contractor of record for the project. On the permit application Respondent represented himself as the licensed building contractor for the Bovea project to the Metropolitan Dade County building and zoning department. Respondent did not have a contract with Bovea for the construction work to be performed on the Bovea home. In fact, the contract was between Bovea and Lou Greene Construction. The Boveas paid monies to Rodney Salnave, who claimed to be a representative for Lou Greene Construction. Rodney Salnave was not Respondent’s employee, and was not licensed as a contractor. The Respondent did not talk to the Boveas regarding the contract, the scope of the work to be done, or the contract price for the work. All discussions regarding the work at their home (and payments for same) were between Rodney Salnave and the Boveas. The permit for the Bovea project represented the amount of the work to be $2,000.00. In fact, the contract price for the work was $4,500.00. Respondent misrepresented the value of the work for the Bovea project. As of September 26, 1993, Respondent admitted he was involved with seventeen contracting jobs. Just eleven days after having his license reinstated, and while being employed in a full-time (8:00 a.m. to 5:00 p.m.) job with Dade County, Respondent had contracting responsibility for seventeen jobs. In reality, Respondent had made a deal with an unlicensed person, Denis Joseph, to pull permits for him. The jobs were for persons who, in some instances, Respondent had never met. For example, Mr. Joseph pulled a permit for work to be performed on a home owned by Ed Davis. The contract for the work was between Mr. Davis and a Mr. Sutton, an unlicensed contractor, but with the approval of Respondent, Mr. Joseph obtained a permit for the Davis job. A second job was for Bertha Joseph. In this instance, Mr. Joseph completed the permit application which Respondent signed thereby allowing Mr. Joseph to obtain the permit for the project. By signing the permit, Respondent represented himself to be the contractor for the job. In truth, the homeowner had contracted with Denis Joseph for the work to be done, but the project was completed by Emanuel Gideon, an unlicensed contractor. Respondent admitted receiving payments from Denis Joseph. Respondent admitted he was not actively involved with the Bertha Joseph project. In September, 1993, Eric Wardle, an investigator with the Dade County building and zoning department, interviewed Respondent regarding claims that he was obtaining permits for unlicensed contractors. According to Mr. Wardle, Respondent admitted he pulled permits for unlicensed contractors after Hurricane Andrew because they were trying to make a living. At hearing Respondent disputed the accuracy of Mr. Wardle’s investigation but admitted he would have told him “anything just for him to get away from me.” Respondent’s explanation at hearing was not persuasive.
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 revoking Respondent’s contractor license and imposing an administrative fine in the amount of $8,500.00. DONE AND ENTERED this 16th day of May, 1997, in Tallahassee, Florida. J. D. PARRISH 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 COPIES FURNISHED: Bruce M. Pasternack, Esquire Raymond L. Robinson, P.A. 1501 Venera Avenue, Suite 300 Coral Gables, Florida 33146 Joseph Marcelin 16561 Southwest 144th Court Miami, Florida 33177 Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1997. Rodney Hurst, Executive Director Department of Business and Professional Regulation/CILB 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Northwood Centre Tallahassee, Florida 32399-0792
