The Issue The issue in this case is whether disciplinary action should be taken against Respondent's contractor's license based upon the alleged violations of Sections 489.129(1)(h) and (m), Florida Statutes, set forth in the Administrative Complaint.
Findings Of Fact Based upon the oral and documentary evidence adduced at the hearing and the entire record in this proceeding, the following findings of fact are made. At all times pertinent to this proceeding, Respondent was licensed by the Construction Industry Licensing Board (the "Board") as a certified general contractor having been issued License No. CG C024612. Respondent has been a licensed contractor since 1983. On May 3, 1991, the Board filed a Final Order in Board Case Nos. 89-009986 and 89-013330 imposing a reprimand against Respondent. The Final Order was issued as part of the settlement of an amended administrative complaint filed against Respondent by Petitioner regarding certain unrelated transactions. Respondent was the qualifying agent for Willie William Construction Company, Inc. until October 1985. At that time, as a result of a corporate name change, Respondent became the qualified agent for Ashar Construction Company. On February 21, 1985, the Unsafe Structures Board of the Building and Zoning Department for Dade County advised Ruby Delancy that a hearing would be conducted on March 12, 1985 to determine whether a one story framed residence that Mrs. Delancy owned at 1005 NW 58th Street in Miami (the "House" or the "Property") should be demolished. The Notice indicated that the structure was "open, vacant, vandalized, filled with combustible materials; posing a serious fire hazard. Structure is a danger to human life and public welfare." The Notice estimated the present value of the building at $16,080 and the estimated cost of repairs at $51,120. The County's records indicate that a Notice of Violation regarding the Property had been issued to the owner on October 31, 1984. Facing imminent demolition of the House, Mrs. Delancy began to investigate possible ways to get the House repaired. She filed an application with the City of Miami for a low income, low interest loan that was funded through Federal HUD Community Development Funds. Her efforts to obtain funding to repair the House, delayed the proceedings that had been initiated to demolish the structure. In September of 1985, the City approved Mrs. Delancy for a grant of $10,000 and loan of $20,000 to repair the House. Mrs. Delancy has no other funds to pay for repairs to the Property other than the $30,000 she was obtaining through the City Program. Under the City's program, Mrs. Delancy was responsible for selecting a contractor. Mrs. Delancy contacted Respondent, who inspected the Property and prepared a construction estimate which was submitted to the City. Respondent entered into a contract (the "Contract") dated September 20, 1985 with Mrs. Delancy for home improvement work on the House. The total contract price was $29,870, which was to be paid in two installments: $10,835 on or before December 31, 1985 and a final payment of $19,035 on or before March 3, 1986. The evidence established that Respondent was initially reluctant to enter into the Contract and at least two other contractors refused to undertake the work given the limited funds available. However, Respondent agreed to take the job because of Mrs. Delancy's insistence and because of Respondent's sympathy for Mrs. Delancy's desperate situation in view of the imminent demolition of the House. The evidence also established that Mrs. Delancy requested Respondent to undertake additional work and/or services that were beyond the scope of the Contract. Among the extra items undertaken by Respondent was replacement of the floor in the family room. Additional expenses were also incurred because of unanticipated problems encountered during the renovation. For example one side of the house gave way during the renovation work. Upon investigation, it was discovered that there was no footing. Respondent was required to shore up that side of the House. In addition, the electrician was unable to get a meter because there was an outstanding electric bill for the Property. Respondent paid the old bill in order to get the meter connected. Similarly, she paid the gas company to get the stove hooked up. It does not appear Respondent received any additional compensation for the extra work. Except for $345 that Respondent paid for utilities on behalf of Mrs. Delancy, the evidence at the hearing was insufficient to place a dollar value on these extra services and expenses. The first installment under the Contract of $10,835 was paid to Respondent on or about December 31, 1985. In approximately January of 1986, Mrs. Delancy's son, Gerald Delancy, who had been living out of the state, returned to Miami and became involved in overseeing the construction on behalf of his mother. Gerald Delancy was not pleased with the quality of the construction and a great deal of tension developed between Gerald Delancy and Respondent. The final payment request form was submitted on February 20, 1986. Mrs. Delancy signed a document (the "Certificate of Completeness") indicating that the work was completed and the final payment was made to Respondent by the City on March 3, 1986. Gerald Delancy was present when his mother signed the Certificate of Completeness. She signed this Certificate against the advice of her son. At the time the document was signed, Respondent agreed in principal to complete any remaining work. The City Inspection Form which was posted on the project fails to indicate that a final inspection approval was obtained from the City. In addition, the evidence established that required roof inspections were not obtained prior to the final structural inspection. Gerald Delancy prepared a punch list of items which he felt were incomplete and submitted it to Respondent. It does not appear that this list was prepared until July of 1986. Because of the dispute between Respondent and Gerald Delancy as to what was required under the Contract, a copy of the punch list was also sent to the City. The punch list prepared by Gerald Delancy included a number of items which were beyond the scope of the Contract. For example, with respect to the plumbing, the complaints included the following: the water pressure was to low on the water line, the kitchen sink was too small, and the bathroom vanity was substandard. The Contract did not provide for a bathroom vanity. There were also complaints about ants and roaches and "missing shower rods and towel racks" even though these items were not specifically included within the Contract between Respondent and Mrs. Delancy. The City sent its estimator to the House to review the punch list items. The City's estimator felt that Respondent should provide another coat of paint and should complete some other minor repair work, but the estimator did not concur in many of Gerald Delancy's complaints. The City's rehabilitation estimator met with Respondent and Gerald Delancy at the House on July 15, 1986. At that meeting, Respondent agreed to correct certain matters and asked for one month to complete the work. On August 1, 1986, the work was not completed and Respondent requested an additional 30 days. On August 13, 1986, Respondent stated that she did not have the money to complete the work. According to the City's estimator, the cost to repair the construction deficiencies he noted would be approximately $2,500 to $3,000 as of the date of the hearing. During this period in August, Respondent did send some workers back to the house to complete some additional work. A dispute arose between those workers and Gerald Delancy. The exact nature and reasons for this dispute are not clear. Ultimately, Gerald Delancy refused to allow the workers to perform any work because he did not feel he received adequate answers to his inquiries as to the nature of the work they intended to perform. After the City refused to concur in all of his complaints, Gerald Delancy hired a building inspection company. He paid that company $534 and it rendered a report dated August 4, 1986 which detailed many other deficiencies in the construction. It is not clear whether this report was ever presented to Respondent. On or about November 3, 1986, Mrs. Delancy, at the urging of her son, filed a lawsuit against Respondent. On or about August 8, 1989, Mrs. Delancy obtained a final default judgement against Respondent in the amount of $65,000 plus costs of $102.50. Respondent claims that she was unaware of the lawsuit and the default final judgement until Petitioner's investigator questioned her about it on September 25, 1990. As of the date of the hearing in this case, Respondent has not appealed the judgement nor has she attempted to have it set aside or vacated. In addition to alleged construction defects, the default judgement included claims against Respondent for allegedly mishandling certain household goods and other property owned by Mrs. Delancy. The evidence presented in this case was confusing and inconclusive as to the nature and justification for these claims by the Delancys for property which Respondent was allegedly storing for Mrs. Delancy. Apparently, Respondent agreed to assist Mrs. Delancy by moving some of the furniture out of the house and placing it in storage during construction. The contract did not require Respondent to provide any moving or storage services and there is no evidence that Respondent was paid for this work. Some or all of the property that was moved out of the house was lost, stolen or destroyed. There is a dispute between the parties as to circumstances surrounding the loss of this property. The evidence presented in this case was insufficient to establish what happened to the property, who was responsible for it and/or how much it was worth. It does appear that the default judgement against Respondent includes a very high assessment for the property involved. However, as noted above, that judgement has not been vacated or appealed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing Count I of the Administrative Complaint, finding the Respondent guilty of having violated Section 489.129(1)(m), Florida Statutes, as alleged in Count II of the Administrative Complaint, and imposing the following disciplinary action against the Respondent: Imposition of an administrative fine of $1,000. Suspension of the Respondent's license for a period of one year, followed by two years probation under such terms as may be imposed by the Board. DONE and ENTERED this 22nd day of August, 1994, at Tallahassee, Florida. J. STEPHEN MENTON 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 August, 1994. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 93-6438 Only Petitioner submitted a proposed recommended order. The following rulings are made with respect to the proposed findings of fact submitted by Petitioner. The Petitioner's Proposed Findings of Fact Adopted in substance in Findings of Fact 1. Adopted in substance in Findings of Fact 2. Adopted in substance in Findings of Fact 7 and 8. Adopted in substance in Findings of Fact 4, 11, and 12. Adopted in substance in Findings of Fact 3 through 9. Adopted in substance in Findings of Fact 10. Subordinate to Findings of Fact 14 through 18. Subordinate to Findings of Fact 18. Subordinate to Findings of Fact 16 through 18. Subordinate to Findings of Fact 17. Adopted in substance in Findings of Fact 20. Subordinate to Findings of Fact 20. Adopted in substance in Findings of Fact 20. Adopted in substance in Findings of Fact 20. Rejected as unnecessary. Adopted in substance in Findings of Fact 21 and 22. Subordinate to Findings of Fact 21. Subordinate to Findings of Fact 22. Subordinate to Findings of Fact 21 and 22. Subordinate to Findings of Fact 21 and 22. Adopted in substance in Findings of Fact 1. COPIES FURNISHED: Theodore R. Gay, Esquire Dept. of Bus. and Prof. Reg. 401 NW 2nd Ave., Ste N-607 Miami, FL 33128 Agnes Sangster 9925 NW 25th Ave. Miami, FL 33147 Jack McRay Acting General Counsel Dept. of Bus. and Prof. Reg. 1940 N. Monroe St. Tallahassee, FL 32399-0792 Richard Hickok, Exec. Dir. Construction Industry Licensing 7960 Arlington Expressway, Ste 300 Jacksonville, FL 32211-7467
Findings Of Fact Following an April, 1985 inspection of the ACLF known as Family Affairs, Respondent timely obtained certificates for its two employees viz. Elinore Kolligs and Kathy Cisterna showing them free from communicable diseases and presented these certificates at the follow up inspection to satisfy the cited deficiency. Those two employees were employed during the April, 1986 annual inspection which resulted in a repeat citation for the same alleged violation, i.e. no certification that the employees were free from communicable disease. There is no requirement that employees of an ACLF obtain certificates annually that they are free from communicable diseases. The fact that documentation had been provided to DHRS following the April, 1985 inspection that these same employees cited in 1986 were free from communicable diseases should have carried over to the 1986 inspection. Exhibit 3 lists three employees under ACLF 26, the third being Virginia Sumter who worked as a volunteer at the facility. Ms. Sumter was a former resident at the facility who had provided a certificate that she was free of communicable diseases when she entered as a resident. In this connection during the proceedings Respondent inquired of Petitioner's witness if non-paid volunteers required certificates showing them free from communicable diseases and the response was in the affirmative. When asked if this also applied to Boy or Girl Scouts who worked at the ACLF as volunteers no satisfactory answer was forthcoming. One of the two uncorrected violations listed in the Administrative Complaint dated March 19, 1987 is that Respondent had six residents when the facility was licensed for only five (ACLF 2). This violation was noted at the April 14 inspection and also at a follow up inspection on July 14, 1986. The house in which this facility is located is large and on a minimum square feet per resident basis can accommodate nine residents. On March 18, 1986, before the April, 1986 inspection, Respondent obtained zoning approval from the City of Clearwater to increase the capacity of the ACLF to seven persons (Exhibit 15). Respondent had also communicated with the ACLF Program Manager in Petitioner's Jacksonville office and had been assured that her application to increase the licensed capacity to six residents would be approved. By letter dated May 14, 1986, (Exhibit 10) Respondent was advised by Petitioner that at the time of the April 14, 1986 survey an appraisal for the application to increase licensed capacity from five to six was conducted and the facility met all standards related to the increase. By letter dated May 29, 1986, Petitioner acknowledged that notice of approval of the application to increase the licensed capacity had been received and a recommendation approving the increase had been forwarded to the Office of Licensure and Certification in Jacksonville, Florida (Exhibit 16). By letter dated July 21, 1986, Respondent was issued a new license authorizing six residents at the facility. During the survey conducted on April 14, 1986 the facility did not have a week's supply of non-perishable food on hand as required (ACLF 67) and this deficiency remained uncorrected at the follow up inspection on July 14, 1986. Respondent acknowledged that during that period Mrs. Kolligs' daughter was injured in an accident, that Mrs. Kolligs devoted much time to her daughter and authorized the cook to use the emergency supplies if necessary due to the curtailment of Mrs. Kolligs' shopping time. Subsequent to the July, 1986 re-inspection Mrs. Kolligs sold the facility and no longer operates this ACLF.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Respondent, Raymond F. Cay was licensed as a barber in the state of Florida and licensed to operate a barbershop in the state of Florida, holding license numbers BB00014055 and B50007436, respectively. At all times material to this proceeding, Respondent was owner of the barbershop, Cay's Hairstylist (Cay's), located at 1349 Cassat Avenue, Jacksonville, Florida 32205. On April 14, 1987, Petitioner conducted a routine annual inspection of Cay's as required by rule and noted certain deficiencies which if proven could have resulted in Respondent's licenses being revoked, suspended or otherwise disciplined. However, there was insufficient evidence to show that these allegations of deficiencies were ever proven in a formal proceeding or admitted to by Respondent in an informal proceeding under Chapter 120, Florida Statutes. In fact, there was insufficient evidence to show that any disposition had been made by the Petitioner on these alleged deficiencies. On March 11, 1988, Petitioner again conducted a routine annual inspection of Cay's and again noted certain deficiencies which were the basis of the Second Amended Complaint. There was insufficient evidence to show that there was excessive hair on floor or that the back of the bars, chairs or furniture were not maintained in a safe and sanitary manner or that the shop and equipment were dirty on March 11, 1988 when the inspector visited Cay's. Although all of the barbering tools were not totally immersed in a disinfectant solution on March 11, 1988 when the inspector visited Cay's, there was insufficient evidence to show that that portion of the barbering tool (including brushes) which comes in contact with the patrons, was not sufficiently immersed in a proper disinfectant solution to allow proper sanitation. Although there were no sanitary towels in the bathroom on March 11, 1988 when the inspector visited Cay's, there was insufficient evidence to show that the bathroom was dirty. Sanitation rules were improperly displayed in Cay's on March 11, 1988 when the inspector visited. The only license not displayed on March 11, 1988 when the inspector visited Cay's was Ms. Delp's, and she was currently on leave and not working even though she was in the shop shampooing her hair on that day. On November 22, 1988, Petitioner conducted a re-inspection of Cay's and the inspector noted certain deficiencies which if proven could result in Respondent's licenses being revoked, suspended or otherwise disciplined. However, these alleged deficiencies were neither made a part of the Second Amended Administrative Complaint nor was there any evidence that these alleged deficiencies were ever proven or that they formed the basis for any disciplinary action taken by the Petitioner.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Board enter a Final Order DISMISSING the Second Amended Administrative Complaint filed herein. RESPECTFULLY submitted and entered this 24th day of March, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-4180 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statute, on all of the Proposed Findings of Fact submitted by Petitioner in this case. Respondent did not submit any Proposed Findings of Fact and Conclusions of Law. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1. Treated as a conclusion of law rather than a finding of fact. 2.-3. Adopted in Finding of Fact 1. 4. Adopted in Finding of Fact 2. 5.-6. Subordinate to facts actually found in this Recommended Order. 7. Treated as a conclusion of law rather than a finding of fact. 8.-0. Subordinate to facts actually found in this Recommended Order. Adopted in Finding of Fact 4. Subordinate to facts actually found in this Recommended Order. COPIES FURNISHED: Myrtle Aase, Executive Director Barber's Board 130 North Monroe Street Tallahassee, Florida 32399-0750 Kenneth Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 E. Renee Alsobrook, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 P. W. Cay, Qualified Representative 1349 Cassat Avenue Jacksonville, Florida 32205 Raymond F. Cay 1349 Cassat Avenue Jacksonville, Florida 32205
The Issue Whether Respondent unlawfully discriminated against Petitioner.
Findings Of Fact For many years Mark Dunning Industries, Inc. (MDI), held the contract for trash removal and processing for Naval Air Station, Pensacola, Florida (NAS Pensacola). In the summer of 1995, the contract for these services, for a period beginning January 1996, were the subject of a bid solicitation. The apparent winner of the bid was Ohio Disposal Systems, Inc (ODSI). This bid was contested by MDI. Ultimately, ODSI prevailed in the bid contest and was selected to perform the contract. Performance was to begin on January 1, 1996, however, ODSI was not informed that it was to be the contractor until early December 1995. Petitioner was born on July 12, 1922. He is a U.S. citizen from Puerto Rico, and of Hispanic origin. Petitioner first came to be employed by MDI in the summer of 1994. Petitioner worked on the "hill," which is an elevated portion of the trash dump on board NAS Pensacola. It was his job to weld broken equipment. He also operated two kinds of equipment: a Bobcat, which is a small front-end loader, and a backhoe with a dozer blade mounted on the front. Petitioner was paid about $16.00 per hour as a welder. Victor Cantrel, Petitioner's friend, commenced employment with MDI in July 1995. He worked on the "hill" and also drove the Bobcat and the back-hoe. He would utilize this equipment to push trash into a compactor. In trash-handling parlance, he was known as a "hill man." He was not a welder. He worked closely with Petitioner. Mr. Cantrel was born on June 25, 1972, and is Anglo- American. He was paid about $9.00 per hour. The supervisor of Petitioner and Mr. Cantrel, during the latter months of 1995 while they were working for MDI, was Thomas Lucky. The principal of ODSI was Vince Crawford. On or about December 28, 1995, at the end of the workday, Mr. Lucky informed the employees, including Petitioner, Mr. Cantrel, and a number of trash truck drivers, that there was to be a meeting in the company office near the "hill." Present at the meeting in the office, which commenced around 6:30 p.m., was Petitioner, Mr. Cantrel, Mr. Lucky, several truck drivers, Mr. Crawford, and his wife Cathy. Mr. Crawford informed the assembled employees that he was bringing in all new equipment; that because there would be new equipment, the new employees of ODSI would be able to work 40 hours per week; and that due to the requirement to get his company in shape in time to meet the January 1, 1996, deadline, many of the employees of MDI would be offered jobs with ODSI. After revealing these preliminary matters, Mr. Crawford asked a man named Lee what he did at MDI; this man said that he was a truck driver. Mr. Crawford told him that he was hired with the new company. Then he asked Mr. Cantrel what he did; he said he drove the Bobcat. Mr. Crawford said, "Recycle, huh. You are hired." Mr. Cantrel subsequently filed an employment application. However, he knew that after the announcement at the meeting, he was going to work for ODSI. When Mr. Crawford inquired of two more people, they both responded, "truck driver," and Mr. Crawford informed them that they were hired. When he asked Petitioner, Petitioner said, "Welder." Mr. Crawford then said, "We don't need no welders here." This was the first and last encounter Petitioner had with Mr. Crawford. The next day Petitioner arrived at work at the usual time and was informed that he no longer was employed at that facility. On January 2, 1996, Petitioner presented an employment application to the office at ODSI seeking employment as a "Welder and/or Heavy Equip. Opr." He never received a response. No evidence was adduced that at that time there were job openings for a "welder and/or heavy equipment operator." Additionally, according to Petitioner, no one from ODSI informed Petitioner that he was not qualified. No evidence was adduced at the hearing which indicated that Mr. Crawford noticed that Petitioner was 73 years of age, or that he was a Puerto Rican, or that he was of Hispanic origin. The unrebutted evidence demonstrated that Petitioner was not hired, at the time jobs were available, because Mr. Crawford was bringing in new equipment. New equipment does not require frequent welding and, therefore, Mr. Crawford did not need a welder.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered finding Respondent committed no unlawful employment practice. DONE AND ENTERED this 28th day of March, 2002, in Tallahassee, Leon County, Florida. 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 day of March, 2002. COPIES FURNISHED: Bruce Committe, Esquire 17 South Palafox Place, Suite 322 Pensacola, Florida 32501 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 H. William Wasden, Esquire Pierce, Ledyard, Latta, Wasden & Bowron, P.C. Post Office Box 16046 Mobile, Alabama 36616 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations that the Respondent has violated Rule 21F-20.002, Florida Administrative Code, and Sections 477.0265(1)(c) and 477.029(1)(i), Florida Statutes (1985). At the hearing the Petitioner presented the testimony of two witnesses and offered one exhibit into evidence. Thereafter, the Respondent testified in her own behalf. At the conclusion of the evidentiary portion of the hearing, the parties advised the Hearing Officer that they did not intend to obtain a transcript of the proceedings. A deadline of 10 days from the date of the hearing was established for the submission of the parties' proposed recommended orders. The hearing concluded with the presentation of oral argument by counsel for both parties addressed primarily to the issue of the appropriate penalty. As of the date of this recommended order, neither party had filed a proposed recommended order.
Findings Of Fact The Respondent is licensed to practice cosmetology and to operate a cosmetology salon in the State of Florida, having been issued license numbers CL 0163833 and CE 0041166. At all times material hereto, the Respondent has been the owner of a cosmetology salon named All Around Hair Stylist, located at 5567 Moncrief Road, Jacksonville, Florida 32209. An inspection of the premises of All Around Hair Stylist was conducted on August 29, 1987, by one of the Petitioner's inspectors. At that time the salon was in substantial disarray. Among the conditions in existence in the salon at that time were the following: The container for soiled linens contained trash other than linens. Bags of overflowing trash were in the service area and in the back of the premises. Hair was all over the back room floor that one had to pass through to get to the shampoo bowl and restroom. Food scraps were left in the back room. The salon had an objectionable odor. The floors were filthy and littered with hair, trash, dust, and dirt. The shampoo bowls were not clean. The door leading to the restroom had no handle and a rug jammed against the door made it very difficult to open. The restroom had a very unpleasant odor. There was a hole in the wooden floor. The pipes to the sink did not work properly and water from the sink would pour onto the floor. The restroom did not have a waste receptacle, paper towels, or soap. There was no ventilation in the restroom. The service area was quite cluttered. The brushes and combs were full of hair. A reinspection was done on December 3, 1987. At that time there were still some shortcomings in the condition of the premises, but substantial improvements had been made. Shortly before the hearing, another reinspection was done. At the time of the second reinspection, the premises were "spotless." Approximately a week or ten days before the August 29, 1987, inspection, the Respondent's premises were vandalized. The vandals broke into the building and once inside they broke the sink, the pipes to the sink, the water heater, and various other things in the salon. The vandals also made quite a mess inside the premises by doing such things as taking supplies out of drawers and dumping garbage on the floor. At the time of the August 29, 1987, inspection the Respondent had not yet been able to repair all of the damage caused by the vandals or clean up all of the mess caused by the vandals. The Respondent did not receive a settlement check from her insurance company until sometime after August 29, 1987, and due to her economic circumstances she was not able to begin to repair the damage caused by the vandals until she received the insurance settlement. Since August 29, 1987, the Respondent has repaired all of the damage to the premises and has made other substantial improvements to the premises. The Respondent's premises are in a low rent neighborhood. Many of her customers are in low income brackets. Accordingly, the Respondent charges lower than usual prices for her services and does not earn a large income from the business.
Recommendation Based on all of the foregoing, it is recommended that the Board of Cosmetology enter a final order in this case finding the Respondent guilty of violating Section 477.029(1)(i), Florida Statutes, and imposing a penalty consisting of a reprimand and an administrative fine in the total amount of one hundred dollars ($100.00) DONE AND ENTERED this 18th day of March, 1988, 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 18th day of March, 1988. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Chief Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 R. Lee Utley, Jr., Esquire 331 East Bay Street Jacksonville, Florida 32202 Myrtle Aase, Executive Director Board of Cosmetology Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issues are whether Respondent is guilty of making misleading, deceptive, or fraudulent representations in or related to the practice of contracting, in violation of Section 289.129(1)(c), Florida Statutes; mismanagement or misconduct in the practice of contracting that causes financial harm to a customer, in violation of Section 489.129(1)(h)2, Florida Statutes; failing to comply with any of the provisions of Chapter 489, Part I, or a rule or lawful order of the Construction Industry Licensing Board, in violation of Section 489.129(1)(j), Florida Statutes; abandoning a construction project, in violation of Section 489.129(1)(k), Florida Statutes; committing fraud or deceit in the practice of contracting, in violation of Section 489.129(1)(m), Florida Statutes; two counts of committing incompetency or misconduct in the practice of contracting, in violation of Section 489.129(1)(n), Florida Statutes; and failing to satisfy, within a reasonable time, a civil judgment obtained against him, or a business entity that he has qualified, and related to the practice of contracting, in violation of Section 489.129(1)(r), Florida Statutes. If Respondent is guilty of any of these violations, an additional issue is what penalty should be imposed.
Findings Of Fact Respondent is a certified general contractor, holding certificate number CR C016649. He has been continuously certified since 1980 and has been licensed since 1988 as the qualifier of Dunbar Development, Inc. On August 19, 1994, Carla and Vernon Prevatt entered into a contract with Dunbar Development, Inc., for the construction of a residence. The contract calls for Dunbar Development, Inc. (Dunbar), to construct the "Horizon" model home on two platted lots for the sum of $73,395 plus an additional $7400 for Addendum 2. The contract permits Dunbar to cancel the contract if the Prevatts timely apply for a mortgage, but are denied. However, in such event, the contract requires Dunbar to return to the Prevatts all of their money. The contract acknowledges that the Prevatts paid Dunbar the sum of $1500 at the time of entering into the contract. A handwritten note states: "June 06, 1995—Rec'd $17,000.00 ck no. 16655 to initiate construction application for permits & building." Although the contract was originally signed by John Danzy, as "authorized representative" for Dunbar, this handwritten note bears the initials, "WB." The contract does not contain Respondent's certificate number. The contract does not contain a completion date. The contract provides that Dunbar will "commence construction . . . after full down payment and mortgage financing is received" and "will complete the same as soon as practicable, subject to the availability of labor and supplies [and] delays not within the control of [Dunbar]." Another clause in the contract states that Dunbar shall complete construction within two years of the date of the contract. On August 30, 1994, the Prevatts applied for a construction mortgage loan with the First Bank of Clewiston. The bank processed the loan application without any delays or problems. However, there was a substantial delay not attributable to the Prevatts or Respondent in obtaining an appraisal. The appraiser completed the appraisal before March 5, 1995, but probably not much prior to that date. By letter dated March 5, 1995, from Dunbar's financial officer to the Prevatts, Dunbar acknowledged the receipt of the appraisal and proposed a draw schedule totaling $80,795. The first payment under the draw schedule was $18,500 for "applicable fees and permits, plus, the plylon engineered foundation and engineered septic field construction initiation." The policy of First Bank of Clewiston is to match the value of the work to the payments to the contractor. The first payment due under Dunbar's draw schedule called for a payment substantially in excess of the value of the goods and services rendered. However, the bank acceded to the schedule and delivered a check dated June 6, 1995, in the amount of $17,000 payable jointly to the Prevatts and Dunbar. As Dunbar had done with the $1500 down payment received at the time of the execution of the contract, Dunbar deposited the $17,000 check and received payment of these funds. On behalf of Dunbar, Respondent hired Johnson-Prewitt & Associates, Inc., in early November 1995, to prepare the engineering drawings for the septic tank and foundation. These materials are specific to the Prevatts' homesite. By invoice dated November 13, 1995, Johnson-Prewitt & Associates, Inc., invoiced Respondent at Dunbar a total of $1700 for the completed work. After a credit of $700, the outstanding balance was $1000, which remains unpaid. From 1994 through 1995, Respondent, on behalf of Dunbar, provided information to Alpha Engineering, which was retained to prepare the plans for the Horizon model that the Prevatts were building. Most of this work was for the prototype Horizon home, but the work reflected by an invoice dated March 16, 1996, was exclusively for the home to be built for the Prevatts. Respondent and Dunbar never paid this invoice and never picked up the plan revisions that were the subject of this invoice. In fact, Respondent and Dunbar never commenced construction of the Prevatts' home and refused to return any portion of the $18,500 that the Prevatts paid to Dunbar. Although the bank never made any additional disbursements, the Prevatts nevertheless owed the bank the $17,000 disbursed as the first draw and, at the time of the hearing, had paid the sum of $6522.96 in interest and closing costs on this loan. With two checks totaling $2800 that, in June 1995, Yvonne Bushnell delivered to Respondent, on behalf of Dunbar, Ms. Bushnell entered into a contract with Dunbar for the construction of a residence. After Dunbar declined to construct a house or return the money, Ms. Bushnell filed an action against Respondent and Dunbar in Lee County Court on January 31, 1997. On March 12, 1997, the court entered a default judgment against Dunbar Developing, Inc., for the sum of $2800 and costs of $79.50. Following entry of the judgment, on September 14, 1998, Ms. Bushnell and Respondent agreed to settle the matter with the payment of $1600. However, upon payment of only $800, Respondent obtained Ms. Bushnell's signature on a letter dated September 14, 1998, to Petitioner acknowledging the full settlement of the case. Respondent then proceeded to obtain court issuance of a satisfaction when Ms. Bushnell refused to sign a satisfaction, absent payment of the remaining $800. By Order to Set Aside Settlement Agreement entered November 24, 1998, the court reinstated the original judgment. The judgment remains unsatisfied.
Recommendation It is RECOMMENDED that the Construction Industry Licensing Board enter a final order revoking Respondent's certificate as a general contractor and imposing an administrative fine against him of $4000. DONE AND ENTERED this 6th day of May, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 6th day of May, 1999. COPIES FURNISHED: Paul F. Kirsch, Senior Attorney Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 P. Michael Villalobos Sussman Law Group, P.A. 1375 Jackson Street, Suite 201 Fort Myers, Florida 33901 William Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Rodney Hurst, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467
