The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent has been certified by Petitioner as a building code administrator in the State of Florida. On April 5, 1993, Respondent began his employment with Metropolitan Dade County, Florida, as the permit control division chief in the County's Department of Building & Zoning, now known as the Department of Planning, Development and Regulation. Carlos Bonzon was the head of the County's Department of Building & Zoning and also served as the County's Building Official. The Port of Miami is another department within Metropolitan Dade County. At all times material hereto, Carmen Lunetta was the head of that department. The County desired to expand Terminals 8 and 9 at the Port of Miami to accommodate a Carnival Cruise Lines mega-cruise ship, anticipated to arrive in March 1996. The County was concerned that if it could not offer the taller terminal required for such a large ship, the ship would utilize Port Everglades instead of the Port of Miami. For purposes of construction, Terminals 8 and 9 were "threshold" buildings. A threshold building is one which is of such magnitude or complexity that the construction requires continuous inspections. Those continuous inspections are performed by the on-site "threshold inspector," the engineer of record, who keeps a log of the on-going inspections. The expertise required of a threshold inspector is beyond that of most County field inspectors. When a threshold inspector is involved, the County's inspectors check to make sure the log is being kept up-to-date and on-site. On January 27, 1995, a pre-submittal meeting was attended by representatives of Dade County, of the architect, and of the engineer. Respondent was one of the attendees. The meeting was chaired by Jose Cueto, the "special assistant" to Bonzon. Saul Suarez, the project architect, explained the project, and Cueto advised the attendees that the construction needed to begin even without the County's approval of building plans and the issuance of a permit and that County inspectors would perform "courtesy inspections" to make sure the work was being performed according to the architectural plans. Further, the inspectors were not to stop the construction work although there were no approved plans and no permit. While the South Florida Building Code does not provide for courtesy inspections, it was understood that the courtesy inspections referred to by Cueto were the same as "field visits." In a field visit a County inspector will travel to the job site, observe the construction, and meet with the contractor, engineer, or architect to discuss any concerns they may have. A field visit is not an official inspection required by the South Florida Building Code. Construction work began on Phase I, the foundation for Terminals 8 and 9. By letter dated February 10, 1995, Port Director Lunetta wrote to Building & Zoning Department Director Bonzon, confirming Lunetta's understanding that Bonzon's Department had issued a "conditional permit" for the project, allowing the construction to proceed during the review of construction documents "for the work being performed at this time." By letter dated June 29, 1995, Port Director Lunetta again wrote to Director Bonzon, confirming Lunetta's understanding that Bonzon's Department had issued a "conditional permit" for Phase II of the project, allowing construction to proceed during the review of construction documents "for the work being performed at this time." There is no such permit as a conditional permit under the South Florida Building Code. In July 1995 Cueto conducted a meeting regarding Phase II, the superstructure, which was attended by Respondent and other Building & Zoning Department representatives, the architect, and Port of Miami representatives. Cueto acquainted the attendees with Phase II of the construction and advised that the work would exceed the drawings and approved plans. Cueto outlined the procedures which were set up by Director Bonzon and specified that, in addition to the threshold engineer's inspection, County inspections were to be performed only by the Chief Inspector in each of the trades since the chief inspectors would have the most experience. Cueto also advised that he personally would be in charge of coordinating inspections and plans review as a result of the procedures established by Director Bonzon for the project. As the head of the Department of Building & Zoning and as the County's Building Official, Bonzon had the authority to re-assign duties for the Department's employees. Although Cueto was not certified to review plans and had had no authority over the County's plans review and inspection processes, Respondent and the others attending the January 1995 meeting and the July 1995 meeting understood that Bonzon had delegated to Cueto the responsibilities for ordering inspections and overseeing the processing of the building plans for the project. On July 7, 1995, a building permit was issued for the project. The permit was restricted to "foundation only." Throughout 1995 County inspectors visited the job site. They viewed the construction and verified that the threshold inspection log was on-site and up-to-date. The inspections were not recorded as official inspections because the County's computer would not accept inspection entries before a permit had been issued. The inspectors kept notes regarding their courtesy inspections or field visits. All mandatory inspections under the South Florida Building Code were conducted, both before and after the issuance in July 1995 of the building permit with the restriction limiting construction to foundation only. At the end of 1995 the County re-organized some of its departments, including the Building & Zoning Department. Director Bonzon and his special assistant Jose Cueto were transferred to the transportation department, and Bonzon was no longer the County's Building Official. On January 10, 1996, Respondent was certified by the Secretary of the Dade County Board of Rules and Appeals, subject to approval by the Certification Subcommittee at the January 30, 1996, meeting, to become the County's Building Official. As of that date, Respondent considered himself to have assumed the duties of that office. He did not also become the head of the Department; he remained in his position as Permit Control Division Chief. In either the first or second week of January, Respondent went to the offices of Bonzon and Cueto, who were in the process of moving to their new offices, to say good-by. In Cueto's office, Respondent saw a set of building plans lying on Cueto's window ledge. He asked if those were the plans for Terminals 8 and 9, and Cueto answered in the affirmative. Respondent took the plans and personally delivered them to the Chief Construction Plans Examiner, Frank Quintana. He directed Quintana to do whatever was necessary to expedite the County's review of those plans. Quintana divided the required two sets of plans so two reviewers could be processing them at the same time and personally took them from reviewer to reviewer in order to expedite them as quickly as possible. The expedited review process Respondent directed to occur resulted in the foundation- only restriction being removed from the permit on February 6, 1996. On that date, the construction at Terminals 8 and 9 was 85 to 95 percent complete. Prior to the removal of the foundation-only restriction from the permit on February 6, subcontracting permits for mechanical, electrical, and plumbing work had not been, and could not have been, issued. Respondent immediately reported his discovery of the plans in Cueto's office and his decision to expedite their review to his superiors, Guillermo Olmedillo and Ray Villar. Respondent did not order the construction stopped. He knew that the threshold inspector had been performing on-going inspections, the architect had been regularly on-site, and that County inspectors had been visiting the job site on a regular basis. He also knew that all mandatory inspections had been conducted on schedule. He had no reason to believe that any of the construction was unsafe or that there was any danger to the public as a result of the construction having proceeded without proper permitting. He believed that the work itself was in compliance with the South Florida Building Code. On January 18, 1996, the project architect forwarded to Respondent a request that certain mandatory inspections be made. On January 20, Respondent ordered those inspections to be made. Those were the only inspections which Respondent ordered to be performed. In early March shop drawings were reviewed for a pre- fabricated stairwell. Although the stairs were safe for use by the construction workers, the County reviewer questioned the adequacy of the stairs for use by the public using the terminals. Based upon his concerns, repairs were made to the stairs to strengthen them, and they were subsequently approved as complying with all requirements to insure the public's safety. On March 8, 1996, a temporary certificate of occupancy was issued for Terminals 8 and 9. There was never any danger to the public as a result of the construction of Terminals 8 and 9.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent not guilty and dismissing the Administrative Complaint filed against him in this cause. DONE AND ENTERED this 18th day of December, 1998, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1998. COPIES FURNISHED: Diane Snell Perera, Esquire Seymour Stern, Esquire Department of Business and Professional Regulation 401 Northwest Second Avenue, Suite N607 Miami, Florida 33128 Gary B. Goldman, Esquire Law Offices of Gary B. Goldman 20700 West Dixie Highway, Suite 100 North Miami Beach, Florida 33180 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ila Jones, Executive Director Building Code Administrators and Inspectors Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Respondent, Eugene Amrhein, is a certified roofing contractor, license number CC C020238, and was the qualifying agent for Knight Roofing, Inc. at all times relevant to these cases. On or about December 16, 1982, Respondent, conducting business through Knight Roofing Inc., contracted with Evelyn Nickerson for reroofing of a home at 707 N.E. 7th Street, Fort Lauderdale, Florida for a contract price of $1,485. She gave Respondent a downpayment of $785, and upon completion of the project paid the balance of $700. Respondent commenced work on the project without obtaining a permit, as required by Section 301.1(k), South Florida Building Code. Respondent also failed to obtain an inspection as required by Section 305.2(a), of this code. On or about March 10, 1981, Respondent conducting business through Knight Roofing, Inc., contracted with Judevilla Geria for the rebuilding of an existing flat tile roof for a contract price of $4,100. Respondent did not obtain the required building permit, in violation of Section 301.1(k), South Florida Building Code. Respondent did not perform the work contracted in that only a coat of paint was applied. He failed to rebuild the existing roof by recementing each tile, replacing rotten lumber, soffitt and fascia, nor did he replace approximately 50 tiles as required by the contract. However, Respondent has honored his warranty to Geria to the extent of repairing four leaks that developed subsequent to the work. On or about June 29, 1982 Respondent contracted with Golda Oxenberg to waterproof a roof at 3253 Foxcroft Road, Miramar, Florida. The contract price was $1,000. The project was completed and Respondent was paid in full. The Respondent violated Section 301.1(k), South Florida Building Code by failing to obtain a permit for this project. On or about August 22, 1983, Knight Roofing Inc., contracted with Joseph Castellano to repair the roof of a home at 1215 1st Street, Indian Rocks Beach, Florida. The contract price was $600, and included a two-year warranty. At no time was a licensed roofer present at the job site. David Ness, then an unlicensed individual, contracted for the work, performed the work, and received the payments. At no time did the Respondent supervise the work on the Castellano home. After completion, the roof began to leak. Respondent has not repaired the leak, despite his warranty. Respondent violated Section 108.2(d), Standard Building Code (adopted by Indian Rocks Beach Ordinance 291) by failing to obtain required inspections. However, no evidence was presented to show that Respondent violated Section 108.2(b), Standard Building Code, since a permit was obtained. Respondent has moved, but failed to notify the Construction Board of his new address as required by Rule 21E- 15.07, F.A.C. On March 7, 1984, Respondent contracted with Ralph Huff for roofing work at 3210 N.E. 9th Avenue, Pompano Beach, Florida. The contract price was $5,725, and the work was completed. Respondent admitted at hearing that he failed to follow up on his warranty agreement. Respondent did not violate Section 305.2(a), South Florida Building Code since a final inspection was obtained on October 25, 1984.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a Final Order revoking Respondent's license. DONE and ENTERED this 25th day of June, 1985 in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 25th day of June, 1985. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 William F. Beggs, Esquire BEGGS and VECCHIO 3012 East Commercial Boulevard Fort Lauderdale, Florida 33308 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee Florida 32301 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville Florida 32202
Findings Of Fact At all times relevant hereto, Respondent, Benjamin J. Eigner, held certified general contractor's license number CG C001534 issued by Petitioner, Department of Professional Regulation, Construction Industry Licensing Board. In 1980, Respondent was employed by the City of Tamarac as its chief building official. In that position his major function was to administrate and supervise employees who enforced the South Florida Building Code and the Code of Ordinances of the City of Tamarac. (Respondent's Exhibit 2). His duties included, inter alia, the review of qualifications and issuance of certificates of competency to contractors who wished to work within the City. On or about February 7, 1980, the Broward County Grand Jury issued a true bill or indictment against Respondent charging him with having solicited a bribe in his capacity as chief building official for the City of Tamarac. On or about July 3, 1980, Respondent entered a plea of nolo contendere in Broward County Circuit Court to the charge of bribery. Adjudication of guilt and imposition of sentence was withheld, and Respondent was placed on probation for a period of five years. As a special condition, Respondent was also required to spend one year in the Broward County Jail. (Respondent's Exhibit 1). Because of health problems, Respondent was medically discharged from serving the remainder of his one year incarceration on January 26, 1981.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty as charged in the Administrative Complaint and that his certified general contractor's license be suspended for a period of nine months from the date of the final order entered herein after which time it shall be automatically reinstated. DONE and ENTERED this 22nd day of October, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1981. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Myron B. Berman, Esquire P. O. Box 1113 North Miami Beach, Florida 33160 Mr. Benjamin J. Eigner 7850 Beechfern Circle Tamarac, Florida 33321
Findings Of Fact Based upon the record evidence, the Hearing Officer makes the following findings of fact: Martin Gold is now, and has been since July, 1986, licensed by Petitioner as a Registered Specialty Contractor authorized to do painting and waterproofing work in Dade County. He holds license number RX 0051718, which expires June 30, 1989. Since receiving his license he has been disciplined twice by the Florida Construction Industry Licensing Board. Gold is the President of Team Leisure Corp., a construction company, and is also its "qualifying agent." On August 14, 1986, Team Leisure Corp. entered into a written contract with Terry Dudley and his wife, Patricia, in which it agreed, for $12,000, to build a two-room, 27-foot by 13- foot addition to the Dudley home located at 15510 Leisure Drive in Dade County and to install new windows in the existing structure. According to the terms of the agreement, Team Leisure was to do "no painting." In his capacity as President of Team Leisure Corp., Gold hired William Sernaker to directly oversee the completion of the construction work specified in the Dudley contract. At the time, Sernaker was licensed as a general contractor in Dade County. As part of his arrangement with Gold, Sernaker assumed responsibility for ensuring that all work permits and inspections necessary to complete the Dudley project were obtained. On September 4, 1986, Sernaker obtained a building permit for the Dudley project. Thereafter, work on the project commenced. The foundation for the addition was laid and, on September 10, 1989, it passed the inspection of James Tucker, a Dade County building inspector. Fifteen days later, Tucker conducted a tie beam inspection. This phase of the project also received his formal approval. Sernaker obtained a roofing permit on October 14, 1986. The exterior of the roof was inspected by Russell Bergsma, another Dade County building inspector, on October 21, 1986. It too passed inspection. An electrical permit was obtained for the Dudley project on November 17, 1986, by Robins Electric, a subcontractor. When the electrical work was initially inspected by Grant Morse, another Dade County building inspector, it was rejected because there were a "few outlets missing." The record is unclear as to the results of any subsequent electrical inspections. Morse also conducted an inspection of the framing work done on the Dudley project. He did so on or around November 21, 1986. In his view, the framing was "not to code." Accordingly, he left a "tag" at the job site on which he gave the following written explanation for his rejection of the framing work: All window bucks must be tight with caulking, no gaps. When the stucco meets the window frame, it should be set back at approximately a 45-degree angle at a width of one quarter to provide a groove to be filled with caulking. Continuous back bed of caulking must be maintained. A follow-up inspection of the framing work was performed by Bergsma on December 1, 1986. In Bergsma's opinion, while some corrections had been made, deficiencies remained. He therefore issued another rejection. A third framing inspection was conducted on December 3, 1986. Tucker was the inspector who performed this inspection. He approved the work that had been done. Prior to this inspection, Gold had paid another contractor $600 to "redo" the framing. This additional expense was not passed on to the Dudleys. Morse attempted to conduct a final building inspection on December 22, 1989. He was unable to do so, however, because "[n]o one was home." From the outset, Gold kept abreast of the progress that was being made on the Dudley project by communicating with Sernaker. He also visited the job site on at least a weekly basis. Gold also heard from the Dudleys concerning the status of the project. The Dudleys closely monitored the work of Sernaker and his crew. If the work was not done to their satisfaction, they expressed their disapproval to Sernaker and, if he did not rectify the matter, they complained to Gold over the telephone. The following were among the complaints made by the Dudleys: the foundation was not level; the roof did not contain any fiberglass material; the window frames did not fit properly; the wood used for the open beam ceilings had cracks in it and was unsightly; the walls in the den were not level and had cracks in them; the linoleum on the Dudleys' screened-in porch was ripped by workers putting up a wall; the outside stucco was cracking and peeling; and trash was left on the property. An effort was made to address the Dudleys' concerns. For instance, in response to the Dudleys' complaints, a "thin cap" was placed over the foundation to make it level. The roof was redone with fiberglass material. The Dudleys were reimbursed for the linoleum they needed to replace on their porch. A contractor was hired to correct the framing problem. Nonetheless, the Dudleys became increasingly dissatisfied with Team Leisure Corp.. Sometime shortly before January 6, 1987, they became so dissatisfied that they ordered Sernaker and his crew off their property and refused to make any additional payments. Following this incident, Gold met with the Dudleys and attempted to mollify them. This was his first face-to-face meeting with them. He offered to send another contractor to the Dudleys' home to perform the work the Dudleys believed needed to be done to satisfactorily complete the project. The Dudleys accepted this offer. On January 6, 1987, Gold sent the Dudleys a letter which read as follows: As per our mutual agreement, these are the items you requested be taken care of. Once taken care of, you agree to sign completion certificate so we can be funded. COMPLETED (please check upon satisfaction) 1.) Touch up outside windows. 2.) Windows to be locked in. 3.) Walls in den to be taken down and leveled out. 4.) Frame around closet door. 5.) Fix two windows; replace concrete in doors and windows. 6.) Clean up. 7.) Replace vinyl, in rear den. 8.) $100.00 dollars to Mrs. Dudley, for clean-up. 9.) 10 year guarantee- roof and release of lien [sic]. 10.) Concrete over build. 11.) Crack under window sill. 12.) Nail in door frame. 13.) Gaps in drywall bedroom. 14.) Stucco cracking outside. 15.) Electrical inspection. (not to be Mike Charles.) Accepted and Approved: x x After receiving this letter, Mr. Dudley checked all but items 2, 5, 6, 8, and 9 on the letter's "completion certificate." Neither he nor his wife, however, signed this "completion certificate." Although the cracks in the outside stucco had been repaired at the time Dudley checked item 14, the stucco subsequently started cracking again. A final building inspection of the Dudley project was conducted by Tucker on January 13, 1989. The project was "turned down" by Inspector Tucker because it was unpainted. Under their contractual agreement, the Dudleys, not Team Leisure Corp., were responsible for the painting of the project. The painting was not done because the Dudleys noticed cracks reappearing in the outside stucco. On or around March 4, 1987, Mr. Dudley telephoned Inspector Bergsma and asked him to conduct an informal field inspection of the project. Bergsma complied with Dudley's request. When he arrived at the Dudley home, Dudley showed him a "gap on the rear of the house ... where the two roofs are at different levels and come together." Bergsma told Dudley that "[i]t didn't belong there" and that it would have to be eliminated if the structure was to pass a final building inspection. As of the date of the hearing, the structure had not passed such an inspection. Team Leisure Corp. received $10,200 for the work done in connection with the Dudley project. The remaining $1,800 of the $12,000 that the Dudleys were to pay pursuant to the contract was held in escrow by a bank. Ultimately, this $1,800, along with approximately an additional $500 from Team Leisure Corp., was given to the Dudleys as part of a settlement between them and Team Leisure Corp.. The money was to be used by the Dudleys to pay another contractor to complete the project to their satisfaction.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Construction Industry Licensing Board enter a final order (1) finding Respondent guilty of contracting outside the scope of his license in violation of Section 489.129(1) (j) , Florida Statutes; (2) imposing a $750 administrative fine upon Respondent for said violation, and (3) dismissing the remaining charges against Respondent set forth in the instant administrative complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of May, 1989. STUART M. LERNER 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 30th day of May, 1989. COPIES FURNISHED: Elizabeth Alsobrook, Esquire Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 323399-0792 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Carlos Garcia, Esquire 8603 Dixie Highway Suite 400 Miami, Florida 33143 =================================================================
The Issue Whether Petitioner is entitled to be certified by endorsement as a standard building inspector.
Findings Of Fact Respondent is the agency of the State of Florida that certifies standard building inspectors pursuant to the provisions of Part XII of Chapter 468, Florida Statutes (consisting of Sections 468.601 - 468.633). By application dated November 7, 1996, Petitioner applied for certification as a building inspector. This application contemplated that Petitioner would sit for the certification examination. Respondent determined that Petitioner was qualified to sit for the Principles and Practice portion and the Technical portion of the certification examination. Petitioner did not achieve a passing score on the certification examination. Consequently, his application for certification was rejected. By application dated December 22, 1997, Petitioner applied for certification as a building inspector without having to take the licensure examination. This was properly construed by Respondent to be an application for certification by endorsement. Petitioner requested Respondent to waive the certification examination pursuant to the provisions of Section 468.613, Florida Statutes, which provide as follows: The board shall examine other certification of training programs, as applicable, upon submission to the board for the consideration of an application for certification by endorsement. The board shall waive its examination, qualification, education, or training requirements to the extent that such examination, qualification, education, or training requirements are determined by the board to be comparable with those established by the board. By his application dated December 29, 1997, Petitioner sought certification based upon his qualifications1 and upon what his counsel referred to as "substantially equivalent" exams. The "substantially equivalent" exams to which counsel for Petitioner referred were to the examinations Petitioner passed in order to be licensed as a general contractor and as a roofing contractor. Petitioner's application reflects that he passed licensure examinations during 1983 in Broward County and in Dade County in the general contractor category. Petitioner passed a similar examination in Palm Beach County, Florida, in 1986. Part XII of Chapter 468, Florida Statutes, was created by Chapter 93-166, Laws of Florida. Prior to 1993, there was no state-wide certification of building inspectors. There was no evidence as to the contents of the examinations Petitioner passed in 1983 and 1986, and there was no evidence as to the contents of the certification examination administered by Respondent to candidates for certification as building inspectors. Consequently, there is no basis upon which a comparison of these examinations can be made.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's application for certification by endorsement be denied. DONE AND ENTERED this 21st day of April, 1999, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 21st day of April, 1999.
Findings Of Fact The foregoing findings of fact 1, 2, and 3 are incorporated herein by reference as if fully set forth anew. On January 8, 1987, the Respondent was found guilty of violating Sections 489.129(2), 489.129(3), and 489.129(1)(g) Florida Statutes, by the Construction Industry Licensing Board in DPR Case No. 60987, DOAH Case No. 88- 0002. The Respondent was not present at that Board meeting. He asserted this was due to lack of timely notice of the Board's meeting. Respondent was fined $1,000 by the Final Order of the aforementioned Board filed/served on February 20, 1987. The Respondent has failed to pay the fine. Respondent has not appealed the final order or fine. Respondent expressed himself at formal hearing as intending never to pay the lawfully imposed fine.
Conclusions The foregoing Conclusion of Law 14 is adopted and incorporated herein as if fully set forth anew. Respondent is charged with gross negligence, incompetence or misconduct in the practice of contracting pursuant to Section 489.129(1)(m), Florida Statutes, for failure to pay his $1,000 fine pursuant to the Board's February 20, 1987 final order. However, Petitioner has cited no statutory or rule authority which labels a licensee's refusal to pay a fine or obey a final order of the Construction Industry Licensing Board as gross negligence, incompetence, or misconduct in the practice of contracting. (Emphasis supplied, see definition of "contracting" at Section 489.105, Florida Statutes). Without such authority, the factual allegations of the administrative complaint, although proved, support no conclusion that a statute or rule has been violated. Petitioner's recourse lies not in this forum but in enforcement, execution, and collection actions in Circuit court.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The Construction Industry Licensing Board enter its final order dismissing the charge of a violation of Section 489.129(1)(m). DONE and RECOMMENDED this 30th day of September, 1988, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 88-0275, 88-0732 The following constitute rulings pursuant to Section 120.59(2), Florida Statutes, upon the parties' respective Proposed Findings of Fact (PFOF). DOAH CASE NO. 88-0275 Petitioner's PFOF have been accepted with certain modifications for greater clarity and to conform to the record as a whole. Respondent's Closing Statement is accepted in part in FOF 9. The remainder is rejected as mere argument or as based upon hearsay not properly in the record. DOAH CASE NO. 88-0732 Petitioner's PFOF have been accepted with certain modifications for greater clarity and to conform to the record as a whole. Respondent's Closing Statement is mere legal argument addressing the underlying facts of the previous final order finding Respondent guilty of certain violations and assessing a $1,000 fine. Absent a timely appeal, these matters are immaterial and rejected. These proposals are also rejected as mere argument. COPIES FURNISHED: Fred Seely, Executive Director Construction industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 G. W. Harrell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 David L. Norris 3144 Northwest 39th Court Lauderdale Lakes, Florida 33309 Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue DOAH Case No. 89-3902, the Barona and Carrow Complaints Whether Respondent violated Florida Statutes Section 489.129(1)(d), by willfully or deliberately disregarding and violating the applicable building codes or laws of the state or of any municipalities or counties thereof. Whether Respondent violated Florida Statutes Section 489.129(1)(m), by being guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. DOAH Case No. 90-1900, the Grantz, Victor, Beckett, Maffetonne, and Wolfe Complaints Whether Respondent violated Sections 489.129(1)(m), (j), and 489.105(4), and 489.119, Florida Statutes, by being guilty of gross negligence, incompetence, and/or misconduct. Whether Respondent violated Sections 489.129(1)(h), (m), (j), and 489.119, and 489.105(4), Florida Statutes, by being guilty of financial mismanagement or misconduct. Whether Respondent violated Section 489.129(1)(d), Florida Statutes, by wilful or deliberate violation or disregard of applicable local building codes and laws. Whether Respondent violated Sections 489.129(1)(m), (j), 489.119, and 489.105(4), Florida Statutes, by failing to properly supervise contracting activities he was responsible for as qualifying agent, which supervisory deficiency also reflected gross negligence, incompetence, or misconduct Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor. Whether Respondent violated Sections 489.129(1)(m), and (j), Florida Statutes, by giving a guarantee on a job to a consumer and thereafter failing to reasonably honor said guarantee in violation of Florida Statutes. DOAH Case No. 90-1901, the Klokow Complaint Whether Respondent violated Section 489.129(1)(d), Florida Statutes, by wilfully or deliberately disregarding and violating the applicable building codes or laws of the state or any municipalities or counties thereof. Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being guilty of fraud or of gross negligence, incompetency, or misconduct in the practice of contracting. DOAH Case No. 90-1902, the Meister Complaint Whether the Respondent violated Section 489.129(1)(n), Florida Statutes, by failure to obtain a permit. DOAH Case No. 91-7493, the Antonelli Complaint Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. DOAH Case No. 91-7951, the Insurance, Palomba, Romanello and Marin Complaints The Insurance Complaint Whether Respondent violated Section 489.129(1)(c), Florida Statutes, by violating Section 455.227(1)(a), Florida Statutes, by making misleading, deceptive, untrue, or fraudulent representations in the practice of his profession. Whether Respondent violated Section 489.129(1)(d), Florida Statutes, by wilfully or deliberately disregarding and violating the applicable building codes or laws of the state or any municipalities or counties thereof. Whether Respondent violated Section 489.129(1)(c), Florida Statutes, by violating Section 455.227(1)(b), Florida Statutes, by intentionally violating a Board rule. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. The Palomba Complaint Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. The Romanello Complaint Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. The Marin Complaint Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. DOAH Case No. 92-0370, the Pappadoulis Complaint Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing financial misconduct. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by committing gross negligence, incompetence and misconduct in the practice of contracting.
Findings Of Fact Pre-Hearing Admissions 3/ Admissions Applicable to All Cases Respondent is currently licensed as a contractor by the Florida Construction Industry Licensing Board. Respondent's current license number from the Florida Construction Industry Licensing Board is CG C040139. Respondent is licensed by the Florida Construction Industry Licensing Board as a certified general contractor. Respondent holds Florida Certified Roofing License No. CC-042792. Respondent is the qualifying agent for Tropical Home Industries, Inc. As qualifying agent for Tropical Home Industries, Inc., Respondent is responsible for all work performed. DOAH Case No. 89-3902 Respondent was licensed as set forth in items 1, 2, 3 and 4 above at the time of the job alleged in the Administrative Complaint. Exhibit "A", attached to the Request for Admissions 4/ is a true and correct copy of the contract between Sarah S. Carrow and the firm Respondent qualified at the time the contract was executed. As a qualifier for Tropical Home Industries, Inc., Respondent was responsible in his capacity as a certified general and roofing contractor for all work performed by Tropical Home Industries, Inc., pursuant to its contract with Sarah S. Carrow. Pursuant to the contract between Sarah S. Carrow and Tropical Home Industries, Inc., all work under said contract was to be completed in three (3) to six (6) weeks. Respondent, acting through Tropical Home Industries, Inc., failed to complete all work under the contract with Sarah S. Carrow within six (6) weeks after work was commenced. Respondent, acting through Tropical Home Industries, Inc., failed to obtain a final inspection of the work under the contract with Sarah S. Carrow prior to the building permit's expiration date. Broward County, Florida, has adopted the South Florida Building Code as its local ordinance governing residential construction. Respondent's failure to obtain a timely final inspection of the work performed pursuant to the contract between Tropical Home Industries, Inc., and Sarah S. Carrow is a violation of Section 305.2 of the South Florida Building Code. Section 1405.1 of the South Florida Building Code requires installation of either a window or vent fan in each bathroom. Section 3407.9(a) of the South Florida Building Code requires that flashing be installed on plumbing vent pipes which are installed through the roof. Any problems or deficiencies in the work performed by Tropical Home Industries, Inc., pursuant to its contract with Sarah S. Carrow were caused by employees and/or subcontractors of Tropical Home Industries, Inc. DOAH Case Nos. 89-3902, 90-1900, 90-1901, and 90-1902 DOAH Case No. 89-3902 The Baronas' house is located at 1251 Westchester Drive East, West Palm Beach, Florida 33417. Respondent contracted with the Baronas as the qualifying agent of Tropical Home Industries, Inc. The Baronas' house is located within Palm Beach County. Palm Beach County is the appropriate Building Department under which all inspections were to have been performed. DOAH Case No. 90-1901 On or about December 5, 1988, Respondent contracted with Mel Klokow, acting for Linda Klokow ("Klokow"), for the renovation of a screen porch with a roof to her home. Respondent contracted with Klokow as a qualifying agent of Tropical Home Industries, Inc. Permit No. 88-8085 was issued by the local building department. The work at the Klokow residence did not pass final inspection. DOAH Case No. 90-1902 In December of 1987, Respondent contracted to close in a screen porch for Janet Meister ("Meister"). Respondent contracted with Meister as the qualifying agent for Tropical Home Industries, Inc. Respondent failed to obtain a permit for the work performed at the Meister's. Respondent's failure to obtain a permit for the Meister job violated local building codes and Section 489.129(1)(n), Florida Statutes. DOAH Case No. 90-1900 The Grantz home is located at 10878 Granite Street, Boca Raton, Florida. The approximate amount of the contract price with the Grantz was $1,890.00. Respondent contracted for the Grantz job as a qualifying agent of Tropical Home Industries, Inc. Respondent began work at the Grantz residence on or about May 10, 1989. The work at the Grantz residence failed final inspection on July 12, 1989. Respondent wilfully violated applicable local building codes and laws on the Grantz project. Respondent wilfully disregarded local building codes and laws in connection with the Grantz project. Respondent deliberately violated applicable local building codes and laws in connection with the Grantz project. Respondent deliberately disregarded applicable local building codes and laws in connection with the Grantz project. On or about April 12, 1989, and April 17, 1989, Respondent contracted with Stephen Victor ("Victor") to install sliding glass doors at his home. The Victor residence is located at 9768 Majorca Place, Boca Raton, Florida. The contract price with Victor was $3,293.00. Respondent contracted with Victor as a qualifying agent of Tropical Home Industries, Inc. Victor paid a total deposit of $670.00 to Respondent. Respondent never began work at the Victor residence. On or about April 17, 1989, Respondent contracted with Vinton Beckett ("Beckett") to install windows at her home. The Beckett residence is located at 2501 N.W. 41st Avenue, Unit 302, Lauderhill, Florida. The contract price with Beckett was $1,684.00. Respondent contracted with Beckett as a qualifying agent of Tropical Home Industries, Inc. On or about October 29, 1988, Respondent contracted with Thomas and Sherry Maffetonne (the "Maffetonnes") to construct a patio enclosure at their home. The Maffetonne's residence is located at 22980 Old Inlet Bridge Drive, Boca Raton, Florida. The contract price for the work to be performed at the Maffetonnes was $4,350.00. Respondent contracted with the Maffetonnes as a qualifying agent for Tropical Home Industries, Inc. A five-year warranty on materials was given by Respondent for the work to be performed at the Maffetonne's. A one-year warranty on labor was given by Respondent for the work performed at the Maffetonne's. On or about June 6, 1989, Respondent contracted with Mr. and Mrs. Morton Wolfe (the "Wolfes") to install windows at their home. The Wolfe's residence is located at 7267 Huntington Lane, #204, Delray Beach, Florida. Respondent contracted with the Wolfes as the qualifying agent of Tropical Home Industries, Inc. Respondent failed to obtain a timely permit or call for required inspections at the Wolfe residence. DOAH Case No. 91-7951 On June 21, 1990, Tropical's general liability insurance coverage (policy number 891006GL327), produced by Steven Adams and Associates, Inc., (hereinafter "Adams and Associates") and afforded by Guardian P & C Insurance Company, expired. On July 17, 1990, Tropical issued a check to Adams and Associates in the amount of $2,475.00 to obtain general liability and workers' compensation insurance. Upon receipt of the check, Adams and Associates issued a Certificate of Insurance to the Davie (Florida) Building Department indicating that Tropical had general liability (policy number GL 235810) and workers' compensation insurance in force through July 17, 1991. After said Certificate of Insurance was issued, Tropical stopped payment on the check issued to Adams and Associates. Tropical failed to issue an additional check or remit payment of any kind, resulting in both the general liability and workers' compensation insurance being canceled, effective July17, 1990. In September of 1990, a Certificate of Insurance was submitted to the Davie Building Department indicating that Tropical had general liability insurance in effect from September21, 1990, until September 21, 1991. Said certificate had been altered in that the issue, effective, and expiration dates had been updated to reflect that the policy coverage was current and in force. The policy listed on the certificate (number 891006GL327, produced by Adams and Associates with coverage being afforded by Guardian P & C Insurance Company) expired on June21,1990, and was never renewed or kept in force after that date. The Davie Building Department had no other certificates or records indicating that Tropical had insurance coverage. Between July 17, 1990, and April 8, 1991, Tropical obtained five (5) building permits from the Davie Building Department. At no time during the aforementioned period did Tropical have general liability insurance, thereby violating Section 302.1(b) of the South Florida Building Code which requires that building permit applicants be qualified in accordance with PartI of Chapter 489, Florida Statutes. Licensees are required to maintain public liability insurance at all times as provided by rules promulgated pursuant to Part I of Chapter 489, Florida Statutes. Construction Industry Licensing Board records indicate that Tropical has general liability insurance coverage through Equity Insurance (hereinafter "Equity") of Hollywood, Florida. Effective June 8, 1988, Tropical's insurance with Equity was canceled. On February 20, 1991, Tropical entered into an agreement with Michael and Margaret Palomba (hereinafter "Palombas") to perform enclosure and remodeling work at the Palombas' residence located at 130 North East 5th Court, Ft. Lauderdale, Florida 33334. The approximate contract price was $11,978.00. On March 13, 1991, Tropical received a $2,994.50 deposit from the Palombas. On March 25, 1991, Tropical obtained a permit for the project from the Broward County Building Department. Subsequent to receiving the permit, Tropical removed an interior closet from the area that was to be remodeled. Subsequent to receiving the permit, Tropical removed interior plaster from the area that was to be remodeled. Subsequent to receiving the permit, Tropical removed exterior doors from the area that was to be remodeled. Tropical then stopped work stating that rotten wood had been discovered, and requested an additional $2,800.00 to continue with and complete the project. Tropical refused to perform any additional work without the Palombas agreeing to the added cost. Tropical failed to continue with the project pursuant to the original agreement. Tropical refused to continue with the project pursuant to the original agreement. Tropical failed to return any monies to the Palombas. In May 1991, the Palombas hired a second contractor, Dan Sturgeon, to complete the project for $13,830.00. On or about July 11, 1990, Tropical entered into an agreement with Don Romanello (hereinafter "Romanello") to construct a screen room on an existing slab at Romanello's residence located in Boca Raton, Florida. The contract price was $9,500.00. Tropical received $4,800.00 in payments from Romanello, but failed to obtain a permit or perform any work pursuant to the agreement. Tropical has failed to return any portion of Romanello's payments. Tropical refused to communicate with Romanello. Based on the preceding, Tropical committed misconduct in the practice of contracting. On or about June 23, 1990, Tropical entered into an agreement with Marcelina Marin (hereinafter "Marin") to construct a screen room at Marin's residence located in Broward County, Florida, for $4,021.00. Tropical received a $2,000.00 deposit from Marin at the time the agreement was entered into. Tropical failed to perform any work under the terms of the agreement. Tropical has failed to return Marin's deposit. Tropical has refused to return Marin's deposit. Based on the preceding, Tropical committed misconduct in the practice of contracting. DOAH Case No. 91-7493 On July 2, 1988, Respondent contracted with Anthony Antonelli ("Antonelli") to construct an aluminum roof over the patio and gutters of his residence at 9303 Laurel Green Drive, Boynton Beach, Florida. The price of the contract was $2,016.00. Antonelli paid a deposit of $500.00 to Tropical Home Industries. Respondent informed Antonelli that he would not be able to perform the work at the contracted price. Respondent never performed any work at the Antonelli's home. Respondent canceled the contract with Antonelli. Respondent failed to return the deposit paid by Antonelli to Tropical Home Industries. Testimony at Final Hearing Facts Applicable to All Cases Respondent is, and has been at all times hereto, a certified general and roofing contractor in the State of Florida, having been issued license number CG C040139 and CC 2042792. For all contracts and jobs referenced in all of the administrative complaints in these consolidated cases, Respondent acted through the contracting business with which he was associated and for which he was responsible in his capacity as a licensed contractor. DOAH Case No. 89-3902, The Barona and Carrow Complaints Respondent contracted with Rhonda Barona to build an addition to her home at 1251 Westchester Dr. East., West Palm Beach, Florida, for approximately $5,124. The work performed at the Barona residence took an unreasonable amount of time to complete. The permit issued to perform the work at the Barona residence was canceled and Respondent failed to obtain a final inspection. Respondent contracted with Sarah Carrow to build an addition at her home located at 1421 N. 70th Avenue, Hollywood, Florida, for approximately $14,460.60. Respondent allowed the permit to expire and failed to obtain required inspections at the Carrow residence. Respondent failed to fully comply with applicable local codes by failing to install a window or vent fan in the bathroom. DOAH Case No. 90-1900, The Grantz, Victor, Beckett, Maffetonne and Wolfe Complaints On or about March 31, 1989, Respondent contracted with John and Lori Grantz to install windows at 10878 Granite Street, Boca Raton, Florida, for the amount of $1,890.00. Work at the Grantz residence began on or about May 10, 1989. At the time work began, no permit had been obtained. A late permit was obtained on June 15, 1989, in violation of local codes. The work performed by Respondent at the Grantz residence failed final inspection on July 12, 1989, because the structure was not constructed as for the intended use. The windows which were installed were designed as a temporary structure, removable in cases of severe weather and not as a permanent enclosure. On or about April 12, 1989, and April 17, 1989, Respondent contracted with Stephen Victor ("Victor") to install sliding glass doors and windows at 9768 Majorca Place, Boca Raton, Florida, for the total amount of $3,293.00. Victor paid Tropical a total deposit of $670.00, but work never began. On or about April 17, 1989, Respondent contracted with Vinton Beckett ("Beckett") to install windows at 2501 N.W. 41st St., Unit 808, Lauderhill, Florida, in the amount of $1,684. A five-year warranty on materials and a one-year warranty on labor were provided to Beckett by Tropical. Respondent failed to obtain a timely permit or call for required inspections in violation of local law. Respondent failed to correct defects and deficiencies in the work performed at the Beckett residence in a reasonable amount of time. On or about October 29, 1988, Respondent contracted with Thomas and Sharee Maffetonne to construct a patio enclosure at 22980 Old Inlet Bridge Drive, Boca Raton, Florida, for the amount of $4,350.00. A five-year warranty on materials and a one-year warranty on labor were given. Respondent failed to correct defects and deficiencies in the work on the Maffetonne residence in a reasonable amount of time. On or about June 6, 1989, Respondent contracted with Morton Wolfe to install windows at 7267 Huntington Lane, #204, Delray Beach, Florida, for the amount of $1,668.13. Respondent failed to obtain a timely permit or call for required inspections at the Wolfe residence in violation of local codes. DOAH Case No. 90-1901 The Klokow Complaint On or about December 5, 1989, Respondent contracted with Mel Klokow, acting for Linda Klokow, for the construction of a screen porch with a roof to her home at 5292 N.E. 10th Terr., Ft. Lauderdale, Florida, for the sum of $4,473.00. Permit number 88-8085 was issued by the local building department. The work performed at the Klokow residence initially failed to pass the final inspection, and the Respondent failed to return to correct the code violations in a reasonable amount of time. DOAH Case Number 90-1902 The Meister Complaint In December of 1987, Respondent contracted to close in a screen porch for Janet Meister. Respondent failed to obtain a permit for the work performed, which is a violation of local building codes. DOAH Case Number 91-7493 The Antonelli Complaint On July 2, 1988, Respondent contracted with Anthony Antonelli ("Antonelli") to construct an aluminum roof over the patio and gutters at his residence at 9303 Laurel Green Drive, Boynton Beach, Florida. The price of the contract for the work to be performed at the Antonelli residence was $2,016.00. Antonelli remitted a deposit of $500 to the Respondent. Respondent informed Antonelli that he would not be able to perform said job for the contracted price and no work ever began. Respondent canceled the contract with Antonelli and failed to return the deposit to Antonelli. DOAH Case Number 91-7951 The Insurance, Palomba, Romanello and Marin Complaints On June 21, 1990, Tropical's general liability insurance coverage, policy number (891006GL327), produced by Stephen Adams & Associates, Inc., ("Adams & Associates") and afforded by Guardian Property & Casualty Company, expired. On July 17, 1990, Tropical issued a check to Adams & Associates in the amount of $2,475.00 to obtain and/or renew general liability and workers' compensation insurance. Upon receipt of the check, Adams & Associates issued a certificate of insurance to the Davie Building Department in Davie, Florida, indicating that Tropical had general liability (policy number 235810) and workers compensation insurance in force through July 17, 1991. After said certificate of insurance was issued, Tropical stopped payment on the check issued to Adams & Associates. Tropical failed to issue an additional check or remit payment of any kind resulting in the general liability and workers compensation insurance being canceled, effective July 17, 1990. In about September 1990, a certificate of insurance was submitted to the Davie Building Department indicating that Tropical had general liability insurance in effect from September 21, 1990, until September 21, 1991. Said certificate had been altered in that the issue, effective and expiration dates had been updated to reflect that the policy coverage was current and in force. The policy listed on the certificate (number 891006GL327), produced by Adams & Associates and afforded by Guardian Property & Casualty Company, expired on June 21, 1990, and was never renewed or kept in force after that date. The Davie Building Department has no other certificates or records indicating that Tropical has insurance coverage. Between July 17, 1990, and April 8, 1991, Tropical obtained five (5) building permits from the Davie Building Department. At no time during the aforementioned period did Tropical have general liability insurance thereby violating Section 302.1(b) of the South Florida Building Code which requires that building permit applicants be qualified in accordance with Part I of Chapter 489, Florida Statutes. Licensees are required to maintain public liability insurance at all times as provided by rules promulgated pursuant to Part I of Chapter 489, Florida Statutes. Construction Industry Licensing Board ("CILB") records indicate that Tropical has general liability insurance coverage through Equity Insurance Company ("Equity") of Hollywood, Florida. Effective June 8, 1988, Tropical's insurance with Equity was canceled. On February 20, 1991, Tropical entered into an agreement with Michael and Margaret Palomba (the "Palombas") to perform enclosure and remodeling work at the Palomba's residence located at 130 N.E. 5th Ct., Ft. Lauderdale, Florida 33334. The approximate contract price was $11,978.00. On March 13, 1991, Tropical received a $2,994.50 deposit from the Palombas. On March 25, 1991, Tropical obtained a permit for the project from the Broward County Building Department. Subsequent to receiving the permit, Tropical removed an interior closet and exterior doors from the area that was to be remodeled. Tropical then stopped work stating that rotten wood had been discovered, and requested an additional $2,800.00 to continue with and complete the project. Tropical refused to perform any additional work without the Palombas agreeing to the added cost. Tropical failed or refused to continue with the project pursuant to the original agreement and failed to return any monies to the Palombas. In May, 1991, the Palombas hired a second contractor, Dan Sturgeon, to complete the project for $13,000.00. 156. Based on the foregoing, Tropical committed misconduct in the practice of contracting. On or about July 11, 1990, Tropical entered into an agreement with Don and Norma Romanello (the "Romanellos") to construct a screened room on an existing slab at the Romanello's residence located in Boca Raton, Florida. The contract price was $9,500. Tropical received a $4,800.00 payment from the Romanellos but failed to perform any work pursuant to the agreement. Tropical has failed or refused to return any portion of the Romanellos payments and has refused to communicate with the Romanellos. Based on the preceding, Tropical committed misconduct in the practice of contracting. On or about June 23, 1990, Tropical entered into an agreement with Marcelina Marin to construct a screened room at Marin's residence located in Broward County, Florida for $4,021.00 Tropical received a $2,000.00 deposit at the time the agreement was entered into. Tropical failed to perform any work under the terms of the agreement, and has failed or refused to return Marin's deposit. Based on the preceding, Tropical committed misconduct in the practice of contracting. DOAH Case Number 92-0370 The Pappadoulis Complaint On or about February 11, 1990, the Respondent contracted with John Pappadoulis ("Pappadoulis") to remodel a Florida room for the agreed upon amount of $11,448.00 at his residence located at 983 Southwest 31st Street, Fort Lauderdale, Florida. Respondent received a deposit of $648.00, but never obtained a permit nor began work. The Respondent failed or refused to return Pappadoulis' deposit. John Pappadoulis has since passed away. Aggravating and Mitigating Circumstances Monetary Damages Several of the customers in these cases suffered monetary damages. The Baronas had to hire an attorney to deal with the Respondent. The Baronas also incurred additional costs in the work they performed to complete the contract. John and Lori Grantz also suffered monetary damages due to their dealings with the Respondent. The work at the Grantz residence was never completed by the Respondent. The Respondent filed a lien on the Grantz property and also filed a lawsuit to receive the full amount of the contract price. The Grantz had to hire an attorney to obtain legal advice and to defend the lawsuit. The Grantz prevailed in that lawsuit and a judgment was entered requiring the Respondent to refund the $500.00 cash deposit. The Grantz also spent at least $150.00 on attorney fees. The deposit money was never returned and none of their costs were ever reimbursed by the Respondent. Steven Victor also sustained monetary damages in his dealings with the Respondent. Victor paid the Respondent $670.00 as a deposit. No work was ever performed. After requesting the return of his deposit money and failing to receive it, Victor filed a civil action against the Respondent. Judgment was entered in favor of Victor, but the judgment was never paid. The Maffetonnes also sustained monetary damages in their dealings with the Respondent. The Respondent agreed to refund a portion of the contract money to the Maffetonnes due to a problem with the carpet he installed incorrectly, but failed to ever refund any money. The Maffetonnes therefore paid for goods which were defective, and never received a compensatory credit. Klokow also sustained monetary damages in his dealings with the Respondent Because of continuing roof problems, Klokow had to hire an independent roofing expert to inspect the roof and prepare a report. Mr. and Mrs. Palomba also sustained monetary damage due to their dealings with the Respondent. When the Respondent abandoned the Palomba job, the Palombas were forced to hire a second contractor at a higher contract price. The Respondent's actions also caused monetary damages to Antonelli, Pappadoulis, Marin, and Romanello. In each case, the homeowner paid a deposit to the Respondent, and the Respondent failed to ever perform work or return any of the deposit money. The Antonellis paid $500.00, Pappadoulis paid $648.00, Marin paid $2,000.00, and Romanello paid $4,800.00. Actual Job-Site Violations of Building Codes or Conditions Exhibiting Gross Negligence, Incompetence, or Misconduct by the Licensee Several of the jobs involved in these cases had actual job site violations of building codes or conditions which exhibited gross negligence, incompetence, or misconduct by the Respondent which had not been resolved as of the date of the formal hearing. At the Barona residence, the framing inspection failed twice before finally being passed a third time; the lath inspection failed three times before finally passing on the fourth time; and the final inspection failed and was never satisfactorily completed by the Respondent. At the Carrow residence, the Respondent failed to install a window or vent fan in the bathroom of the room addition which he installed. In addition to the building code violation, the work performed was incompetent as the structure installed leaked for many months. Further, the original permit expired prior to a final inspection ever being obtained. At the Grantz residence, the Respondent exhibited incompetence and misconduct by installing windows that he knew or should have known were unsuitable for the purposes specified by the customer. Severity of the Offense The large number of violations established in these cases indicates that the Respondent is a serious threat to the public. These violations establish that the Respondent had a pattern of failing to conduct any meaningful supervision of work in progress. And perhaps most serious of all is his frequent act of soliciting deposits for projects he apparently had no intention of even beginning, much less finishing. This latter practice borders on constituting some form of larceny. Danger to the Public The Respondent is a danger to the public in two ways. First, he is a financial threat to the public, most significantly by his practice of taking deposits for jobs he apparently did not intend to perform. Second, he is a threat to public safety, because the work he performs is often done in a haphazard, careless manner. The Number of Repetitions of Offenses As is obvious from the findings of fact and conclusions of law in this Recommended Order, the Respondent is guilty of numerous repeated offenses which occurred over a period of approximately three years. The Respondent's numerous offenses are indicative of an attitude of contempt or disregard for the requirements of the applicable rules and statutes. Number of Complaints Against Respondent The charges in these cases are based on fifteen separate customer complaints to the Department of Professional Regulation regarding the Respondent. Further, the Palm Beach County Construction Industry Licensing Board received four complaints from homeowners regarding the Respondent 5/ and the Broward County Consumer Affairs Department received twenty-nine complaints regarding the Respondent. 6/ Such a large number of complaints indicates that the Respondent's shortcomings were not isolated events, but represent a recurring problem. The Length of Time the Licensee Has Practiced The Respondent was first licensed as a state general contractor in 1987. He obtained his roofing contractor license shortly thereafter. The Respondent's licenses were placed under emergency suspension in August of 1991. Damage to the Customers The damages, monetary and otherwise, suffered by the Respondent's customers has already been addressed. In addition, all of the Respondent's customers mentioned in the findings of fact suffered a great deal of aggravation, stress, and frustration in dealing with the Respondent. Penalty and Deterrent Effect In these cases, the proof submitted demonstrates that no penalties short of revocation of the Respondent's licenses and imposition of the maximum amount of fines will act as a deterrent to the Respondent and others and as appropriate punishment for the many violations established by the record in these cases. Efforts at Rehabilitation There is no persuasive evidence in the record of these cases that the Respondent has become, or is likely to become, rehabilitated. To the contrary, the greater weight of the evidence is to the effect that the Respondent is unwilling or unable to conform his conduct to the requirements of the statutes and rules governing the practice of contracting.
Recommendation Based upon the foregoing findings of fact and conclusions of law, IT IS RECOMMENDED: That the Respondent be found guilty of all of the violations charged in each Administrative Complaint and Amended Administrative Complaint as noted in the conclusions of law, and that the Respondent be disciplined as follows: The Respondent be required to pay an administrative fine in the amount of $5,000.00 for each of the twenty-nine counts of violations charged and proved, for a grand total of $145,000.00 in administrative fines; The Respondent's license numbers CG C040139 and CC C042792 be revoked; and The Respondent be required to pay restitution to the following Complainants in the following amounts: Steven Victor - $670.00; John Grantz - $650.00; Don Romanello - $4,800.00; Marcelina Marin - $2,000.00; Anthony Antonelli - $500.00; John Pappadoulis' next of kin - $648.00. All restitution shall earn 12% interest per annum from the date the Complainants paid their deposit to Respondent. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 21st day of October, 1992. MICHAEL M. PARRISH, 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 21st day of October, 1992.
Findings Of Fact This cause comes on for consideration based on the Administrative Complaint of the Petitioner, State of Florida, Department of Professional and Occupational Regulation, Florida Construction Industry Licensing Board, now referred to as State of Florida, Department of Professional Regulation, Florida Construction Industry Licensing Board. The essential allegations of the Administrative Complaint are as found in the issue statement of this Recommended Order and that discussion in the issue statement is incorporated into the Findings of Fact and made a part hereof. The Petitioner, State of Florida, Department of Professional Regulation, Florida Construction Industry Licensing Board, is an agency of the State of Florida, which has the responsibility to regulate those individuals who serve the public in the capacity of contractors in the State of Florida. This regulatory function carries with it the obligation to prosecute those individual licensees whom the regulatory agency believes to have committed offenses as defined by Chapter 468, Florida Statutes. The possible outcome of such a prosecution carries with it the potential revocation or suspension of the license of those persons regulated by the agency. On this occasion, by Administrative Complaint, the Petitioner has charged E. J. Pollock, d/b/a Miami Advertising, Inc., with violations of Chapter 468, Florida Statutes, as set out herein. The Respondent has replied to the Administrative Complaint by reguesting a Subsection 120.57(1), Florida Statutes, hearing, which de novo hearing was held on the date and at the time and place set out above. E. J. Pollock, d/b/a Miami Advertising, Inc., is the holder of a Certified general Contractor's license, No. CG C004577, held with the Petitioner. That license was current and active in October, 1975, and continued as an active license until the year 1977 when the license became inactive and it remains inactive at this time. The facts reveal that the Respondent in 1975 entered into a discussion with Dr. Thor Brickman about assisting Dr. Brickman in obtaining a building permit from the Metropolitan Dade County Building and Zoning Department, Dade County, Florida. This permit was to allow the construction of certain office alterations of Dr. Brickman's office located at 1136 N.W. 119th Street, Dade County, Florida. The plans and specifications for such alterations may be found as Petitioner's Exhibit No. 8 admitted into evidence. After some discussion, the Respondent and Dr. Brickman concluded an arrangement by which the Respondent would act as a contractor on the job, in the sense of having the overall responsibility for its construction. This included the responsibility to pay the workers, sub contractors and material man. The agreement between Pollock and Brickman was one in which Pollock was acting in his individual capacity as opposed to through affiliation with a contracting firm. However, at the time Pollock entered into this agreement with Dr. Brickman, his Certified general Contractor's license had been transferred to an affiliation with Miami Advertising, Inc. The Respondent had made this transfer in anticipation of a job to be performed for Miami Advertising, Inc., and in fact certain preliminary matters had been concluded with Pollock acting as manager for the project for Miami Advertising, Inc. Miami Advertising, Inc., was without knowledge of the contract between Pollock and Dr. Brickman. Notwithstanding the lack of knowledge on the part of Miami Advertising, Inc., and the representations to Brickman that the Respondent was acting in his individual capacity when he contracted to remodel Brickman's office, the Respondent applied for a building permit to be issued by the Dade County Building and Zoning Department and in doing so he indicated that he was securing that permit as a qualifier for Miami Advertising, Inc. This can be seen in the petitioner's Exhibit No. 5 admitted into evidence which is a copy of the building permit application as issued on October 31, 1975. Pollock commenced the work and Dr. Brickman paid Pollock directly for the work that was being done. The parent checks were endorsed and cashed by Pollock. The amount Pollock received totaled $6,797.22. Sometime in December, 1975, the owner, Dr. Brickman, became disenchanted with some of the workers whom Pollock had on the job in the sense that those workers had been drinking while on the job. Brickman advised Pollock of this and indicated to Pollock that he did not want those persons on the job without supervision. Nonetheless, the owner continued to advance money to Pollock to pay for the job as contracted for. In January, 1976, the Respondent left the job and Brickman was of the impression that the roof on the extension was finished and that there was no problem with the roof, but this impression was wrong because in February, 1976, one of the owner's tenants began to complaint about the roof leaking and those complaints continued until the tenant moved out due to water damage. This caused Brickman to lose moneys in rentals. When Brickman spoke with Pollock about the leaking roof, Pollock sent a roofer to the job to see about the problems but Brickman was not satisfied with that roofer and declined to have him make any corrections to the roof job. (Although the Respondent denies the responsibility for the completion of the roofing work on the Brickman project, the testimony clearly reveals that he had accepted that responsibility as a part of the contract.) The roofer spoken of, whose name is Montgomery, came to the job in March, 1976. Subsequent to Montgomery's visit, problems continued to occur with the roof and the condition of the roof in April, 1976, and the interior of the building may be seen in the Composite Exhibit No. 1 by the Petitioner, which is a series of photos depicting the roof and interior. Pollock would not return and complete the job and Dr. Brickman made a complaint to cause administrative charges against the Respondent. This original complaint was dropped and in November, 1977, Pollock called about completing the job which was still unfinished. Brickman agreed to have Pollock cane and complete the job. Pollock did not return to the job as he stated he would do. In December, 1978, a representative of the Metropolitan Dade County Building and Zoning Department went to the project and found that the job was closed and found that no framing inspection had been requested by Pollock and completed as required by Metropolitan Dade County Building and Zoning Department Code. Other matters within the job site were found to be deficient. The original building permit had expired and the required roofing permit had never been granted. The condition of the project as it existed at the time of the inspection may be found in certain photographs taken by the Building Inspector which may be found as a part of the Petitioner's Composite Exhibit No. 2 admitted into evidence. The problem with permits was subsequently rectified; however, based upon the inspector's evaluation, notices of violations were filed in January, 1979, against the Respondent Pollock. The violations spoken to above were for violations of the building and zoning code, particularly Metropolitan Dade County Building and Zoning Department Code No. 305.2, failure to call for inspections between October 31, 1971, and January 4, 1979, and Metropolitan Dade County Building and Zoning Department Code Section No. 304.4(b), failure to construct office alterations according to plans between October 31, 1975, and January 4, 1979. (These provisions are part of the South Florida Building Code which is used by Metropolitan Dade County.) The charges were made through a two-count information in Case 79-53600 in the County Court in and for Dade County, Florida. For the former violation, the Respondent was adjudged guilty and received a fine of $750.00 with $25.00 court costs, and for the latter count Pollock was sentenced, with the sentence being suspended from day to day and term to term. This Statement of Charges and Disposition may be found as petitioner' s Composite Exhibit No 3 admitted into evidence, a copy of the Charges, Judgment, Sentence and Order of the Court. The Respondent, Pollock, was also charged by Metropolitan Dade County with a violation of the Code of Metro Dade, Chapter 10, Section 10-22 (b), abandonment of the construction project without legal authority. (The disposition of that charge is unknown to the Hearing Officer, in that it was not presented as a matter of proof in the course of the hearing and the facts of the existence of such charge came in by a stipulation of fact between the parties to this action.) The Respondent returned to the job in January, 1979, and on the date of the hearing 95 to 99 percent of the job had been completed. Still remaining to be completed were certain roofing work with metal-to-metal soldering and gravel stops to be concluded and at that time the roof was still leaking. In view of the damage to Brickman' s property, a claim was made against the liability insurance required by Subsection 468.106(6), Florida Statutes. This claim was denied by the insurance carrier because their insurance covered Miami Advertising, Inc., only, and that company had no knowledge of the contract or the job. An indication of this denial may be found as Petitioner's Composite Exhibit No. 4 admitted into evidence, which are copies of letters denying coverage. They are addressed to Dr. Brickman and are from Parliament Insurance Company, insurer of Miami Advertising, Inc.
Recommendation It is recommended that the Respondent, E. J. Pollock, who holds his license as qualifier for Miami Advertising, Inc., License No. CG C004577, be suspended for a period of one (1) year. This recommendation is made with the knowledge of the letters offered in mitigation of the penalty. DONE AND ENTERED this 26th day of November, 1979, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Barry Sinoff, Esquire Sinoff, Edwards & Alford 2400 Independent Square One Independent Drive Jacksonville, Florida 32202 H. Adams Weaver, Esquire 310 Okeechobee Boulevard Post Office Box "M" West Palm Beach, Florida 33402 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD
