The Issue Whether Respondent, a certified general contractor, is guilty of pulling permits for construction projects not supervised by Respondent, and, if so, the appropriate disciplinary action which should be taken by the Board.
Findings Of Fact At all times material hereto, Respondent was the holder of Certified General Contractor's License No. CG C005204 issued by the Board. Although this license was active at the time the Administrative Complaint was filed, Respondent has placed it on an inactive status until June 30, 1981. (Stipulation, Testimony of Respondent) As to Amiguet Construction Project During 1976, Jose Amiguet entered into a contract with San Pedro Construction Inc. for the construction of an addition to his existing residence located at 1409 Granada Boulevard, Coral Gables, Florida. (Stipulation, Petitioner's Exhibit 1) Since San Pedro Construction Inc. was not properly licensed as a building contractor, it was not qualified to apply for and obtain a Coral Gables building permit to undertake this residential addition. Therefore, on January 12, 1977, pursuant to an agreement with Jose San Pedro, representative of San Pedro Construction Inc., the Respondent applied and obtained the required Coral Gables building permit under his on name. (Stipulation, Testimony of Respondent, Charles Kozak, Petitioner's Exhibit 1) The Respondent did not participate in, manage, or supervise, in any manner, the construction of the Amiguet residential addition by San Pedro Construction Inc. Jose Amiguet neither knew the Respondent, nor had any dealings with him during the construction work. (Stipulation, Testimony of Respondent) Final inspection of the Amiguet construction project has not been conducted by the Coral Gables building inspection department since the required documentation concerning sidewalk improvements and subcontractors used has not yet been submitted. The actual construction work has, however, been completed, to the satisfaction of Jose Amiguet. (Testimony of Charles Kozak, Respondent) Respondent made an effort to assist Jose Amiguet in obtaining the final inspection and clearance by the city building inspection department. However, since Respondent did not supervise the subcontractors' work, he cannot truthfully complete the required documents. He has, therefore, offered to (1) pay for the additional costs associated with obtaining the necessary final inspection, and (2) transfer to Jose Amiguet the right to receive, after final inspection, the refund of the contractor's performance bond in the amount of approximately $400-$500. (Testimony of Respondent) As to the Shaw Construction Project During July, 1977, and on February 8, 1978, James L. Shaw entered into separate contracts with San Pedro Construction Inc. for the construction of residential improvements at 836 Obispo Avenue, Coral Gables, Florida. The final contract was in the amount of $16,700.00. (Stipulation, Testimony of Respondent, James L. Shaw, Petitioner's Exhibit 4) Since San Pedro Construction Inc. was an unlicensed contractor, Respondent, on November 15, 1977, pursuant to an agreement with that company, applied for and obtained the required Coral Gables building permit. (Stipulation, Testimony of Respondent, James L. Shaw, Petitioner's Exhibit 4) The Respondent did not participate in, manage, or supervise in any manner the construction of the Shaw residential improvements by San Pedro Construction Inc. James Shaw neither knew Respondent, nor had any dealings with him during the construction work. (Stipulation, Testimony of Respondent) On or about April, 1978, the lending institution for the Shaw project, and James Shaw stopped making construction payments to San Pedro Construction Inc., due to its failure to proceed on and abandonment of the project. (Testimony of James Shaw, Charles Kozak) On June 20, 1978, James Shaw obtained an "owner-builder" permit from the City of Coral Gables and incurred the following costs in order to complete the construction project as originally planned: $12,000 for labor and materials, and $625.00 for architectural services. Inasmuch as approximately, $10,128.00 had earlier been paid to San Pedro Construction Inc. for the construction project, the total cost of the project to James Shaw was approximately $22,753.00-$6,053.00 in excess of the original contract price. (Testimony of James Shaw and Respondent) San Pedro Construction Inc. is no longer in business, and the whereabouts of its owner, Jose San Pedro, is unknown. (Testimony of Respondent) As with the Amiguet construction project, final inspection of the Shaw project cannot be conducted until missing documentation relative to sidewalk improvements and subcontractors involved is supplied. In an effort to assist James Shaw, the Respondent has offered to transfer to Shaw the right to receive, after final inspection, the refund of the contractor's performance bond in the amount of approximately $400-$500. (Testimony of Charles Kozak and Respondent) At all times material hereto, the Respondent was aware that it was unlawful, under both state law and the Code of Metropolitan Dade County, to aide an unlicensed contractor in evading the contractor licensing law, and to use one's license to pull permits for projects not supervised by the licensee. (Stipulation, Testimony of Respondent, Petitioner's Exhibit 1) The Metro Dade Construction Trades Board heard the complaint against the Respondent and found prima facie evidence and probable cause to refer the matter to the Florida Construction Industry Licensing Board (Stipulation) Notwithstanding the evidence presented, the Administrative Complaint and the Board's counsel at hearing limited the amount sought for restitution purposes to $5,300.00, provided both the performance bonds are refunded to the benefit of Jose Amiguet and James Shaw. (Administrative Complaint, statement of Board's Counsel) Respondent regrets having taken the actions complained of in the Board's Administrative Complaint, and now more fully understands the resulting burdens which have been placed on Jose Amiguet and James Shaw. (Testimony of Respondent)
Recommendation Guilty, as charged. Respondent's certified general contractor's license should be suspended until such time as full restitution is made to the persons damaged by his actions.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times relevant to this proceeding, respondent Ruben S. Ares was a certified general contractor in the State of Florida holding license number CG CO 14769. Sentinel Building Company of Central Florida, Inc. was engaged in the business of building residential homes for sale. It was the practice of Sentinel Building to buy the land, engage the services of a general contractor to obtain a building permit and help in the supervision and consultation on construction and sell the hones built to others. The contractors were paid a fee of between $250 and $500 per residence for obtaining permits and providing consultation and services. The Vice-President of Sentinel Building was responsible for hiring and paying subcontractors and suppliers. Sentinel Building was not a Florida licensed general contractor, nor was it qualified by respondent or other Florida registered or certified licensee to engage in the business or contracting in Florida. Respondent Ares was not an officer, stockholder, member of the board of directors or employee of Sentinel Building Company. In 1980, respondent entered into an agreement with Sentinel Building to act as the general contractor for the con- struction of at least four residences. His responsibilities were to supervise the construction of the hones and obtain all necessary permits, including the original building permit and the final certificate of occupancy. The responsibility for engaging subcontractors and ordering and purchasing materials and supplies remained with Sentinel Building Company. Respondent was paid a fixed fee of $350 per house. During the period of time in which four residences in Seminole County were constructed, respondent held another full time job with a building company for which he worked 43 to 44 hours per week. His activity with Sentinel Building consisted of obtaining permits and periodic checks on the construction work. According to respondent, his inspections on construction activity occurred once every three to ten days and consumed approximately too to four hours of respondent's time per week. In 1980 and 1981, respondent applied for and obtained building permits for four single-family residences in Delmar Estates, Seminole County. The applications and permits listed Sentinel Building as the owner of the property and respondent Ruben S. Ares as the contractor. At least one of the four homes was under a contract of sale prior to construction. Three of the four purchasers were under the impression that the homes were built by Sentinel Building. None of the three had ever met respondent Ares, nor were they aware that he was the general contractor.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that respondent be found guilty of violating Section 489.129(1)(e) and (f), Florida Statutes, that an administrative fine in the amount of $1500 be imposed against respondent and that the remaining charges of the Administrative Complaint be dismissed. Respectfully submitted and entered this 22nd day of June, 1984, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 1984. COPIES FURNISHED: Stephanie A. Daniel, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Aldo Icardi, Esquire P.O. Box 879 990 Lewis Drive Winter Park, Florida 32790 James Linnan Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
Findings Of Fact At all times relevant hereto, Respondent, Daniel A. Arguelles, held certified general contractor license number CG C004252 issued by Petitioner, Department of Professional Regulation, Florida Construction Industry Licensing Board. When the events herein occurred, he was qualified as an individual. He presently resides at 9455 Southwest 78th Street, Miami, Florida. Respondent's brother is J. Alejandro Arguelles. Alejandro holds an inactive contractor's license which has been delinquent since July, 1979. In June, 1984, Alejandro was contacted by an individual named Louis Taylor. Taylor told Alejandro that David Reynolds, who resided at 753 Northwest 116th Street, Miami, Florida, wished to add a room to his house. After meeting with Reynolds, Alejandro had plans for the addition prepared, provided an estimate for the job, and gave Reynolds a business card reflecting that he was a licensed general contractor. Reynolds and Alejandro then jointly executed a contract on July 26, 1985, wherein it was provided that A. Arguelles & Associates would construct the room addition for $19,000. The letterhead on which the contract was executed indicated that Alejandro was a general contractor. However, the entity "A. Arguelles & Associates" has never been qualified by any licensee to do construction work in the state. During all negotiations with Reynolds, Alejandro never mentioned that Daniel would be the contractor on the project although Alejandro did advise him that a general contractor would be required. All checks were made out to Alejandro, and Alejandro ordered all supplies and materials used on the project. In addition, Alejandro was at the job site on a regular basis. Prior to signing the contract on July 26, Daniel was approached by Alejandro and asked if he would be willing to act as contractor on the project. Daniel agreed, and thereafter pulled a job permit and used his license number on all pertinent documentation. Other than visiting the job site on a "couple" of occasions, he had no other contact with the project. He never met or had any contact with Reynolds. The actual amount of work done on the project by Alejandro and Daniel amounted to only $5,000.00 and consisted of constructing the foundation up to the tie beam. There is no evidence that this phase of the work was performed in a negligent or incompetent manner.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty as set forth in the Conclusions of Law portion of this order, and that he be fined $500.00. DONE and ORDERED this 1st day of October, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1985. COPIES FURNISHED: Salvatore A. Carpino, Esquire 130 N. Monroe St. Tallahassee, FL 32301 Fred Roche, Secretary Dept. of Professional Regulation 130 N. Monroe St. Tallahassee, FL 32301 Nancy M. Snurkowski, Esquire 130 N. Monroe St. Tallahassee, FL 32301 J. K. Linnan, Executive Director Florida Construction Industry Licensing Board P. O. Box 2 Jacksonville, FL 32201 Mr. Daniel A. Arguelles 9455 S.W. 78th Street Miami, FL 33173
Findings Of Fact At all times material to this proceeding Respondent was a registered building contractor in the State of Florida having been issued license number RB 0009164. At no time material to this proceeding was Domingo Alonzo (a/k/a Domingo Alonzo) registered, certified or otherwise licensed by the Florida Construction Industry Licensing Board. Respondent and Alonzo signed and submitted a proposal to Myron M. Gold and Roberta Fox for remodeling and additions to their residence located at 1550 Zuleta Avenue, Coral Gables, Florida in accordance with plans prepared by Frese - Camner Associates on file with the City of Coral Gables, Florida, File No. 2897 for a contract price of $65,940.00 with draw schedules attached. On December 6, 1982, Myron M. Gold and Roberta Fox (Homeowners) accepted the Proposal (Contract). On December 6, 1982, the Homeowners paid Respondent and Alonzo jointly $3,297.00 in accordance with the contract whereby they were to receive 5 percent of the contract amount as a down payment upon signing. The draw schedule provided for a 10 percent retainage from each draw which was to be paid to Respondent and Alonzo upon completion and the issuance of a certificate of occupancy. On December 21, 1982 the Homeowners paid Respondent and Alonzo jointly $2,025.00 which represented a draw on Schedule I - Item 3 for $1,350.00, Schedule II - Item 2 for $360.00 and Item 5 for $315.00. On December 17, 1982 the Homeowners and Respondent filed the affidavit required by ordinance with the City of Coral Gables for the purpose of having a building permit issued covering the work under the contract. 9. On January 19, 1983 Respondent using his building contractors license applied for building permit to cover the work anticipated under the contract and on the same day was issued building permit, No. 28214. Under the contract the Homeowners were to pay for the building permit and the bond required by the city. On January 26, 1983 the Homeowners paid Respondent and Alonzo jointly $3,000.00 which along with a payment on January 27, 1983 of $500.00 and January 31, 1983 of $544.60 represented a draw on Schedule I - Item 2 for $405.00, Item 5 for $1,260.00, Item 6 for $1,547.10 and Item 13 for $832.50. All payments from December 6, 1982 through January 31, 1983 under the contract by the Homeowners totaled $9,366.50 and were paid jointly to Respondent and Alonzo. On February 4, 1983 Respondent and Alonzo entered into an agreement, prepared by Myron Gold in the law office of Gold and Fox, whereby the Homeowners were to pay the balance of the funds remaining under the contract to Alonzo individually. After this date all payments were made to Alonzo. It was the Homeowners understanding after the February 3, 1983 agreement that Respondent would still be responsible for the supervision of the construction although they never saw Respondent again until October 1983. Edward Borysiewicz testified that he dealt with Respondent during March 1983 when he made the floor slab inspection on March 3, 1983 and the columns inspection on March 14, 1983. The record is clear that shortly after the agreement on February 3, 1983 Respondent no longer came to the construction site and supervised the work of Alonzo. On February 8, 1983 the Homeowners paid Alonzo $3,060.00 which represented a draw on Schedule I - Item 1 for $810.00, Item 5 for $1,417.50 and Item 13 for $832.50. On February 28, 1983 the Homeowners paid Alonzo $3,155.40 which represented a draw on Schedule I - Item 4 for $1,705.50 and $729.90 for extras apparently not covered by the contract but whether the balance of check No. 1161 (Pet. Ex. 13) of $720.00 was for payment under the contract or for extras is not shown in Petitioner's Exhibit No. 15. On March 18, 1983 the Homeowners paid Alonzo $1,000 which represented a draw on Schedule I - Item 9 for $819.00. Again whether the balance of check No. 1206 (Petitioner's Exhibit No. 13) of $181.00 is for payment under the contract or for extras is not shown in Petitioner's Exhibit No. 15. On March 21, 1983, the Homeowners paid Alonzo $6,400.00 which represented a draw on Schedule I - Items 10, 11, 12, 14 and 15. On March 21, 1983 the Homeowners paid Alonzo $2,166.90 but Petitioner's Exhibit No. 15 does not list check No. 1210 as being a payment under the contract or for extras. On March 31, 1983 the Homeowners paid Alonzo $4,230.00 which represents a draw under Schedule I - Item 7 for $2,520.00 and a payment for extras not covered under the contract in the amount of $1,710.00. On April 21, 1983 the Homeowners paid Alonzo $5,207.40 which represented a draw Schedule I - Items 1, 5, 6, 9 and 14. On June 24, 1983 the Homeowners paid Alonzo $5,788.00 which represented a draw on Schedule I - Item 12 for $667.00, Item 14 for $3,024.00 and payment for extras not under contract for $2,097.00. After March 14, 1983 Respondent was not seen on the job site and there was no longer any apparent supervision of Alonzo by Respondent. After Respondent left the job site there was no licensed building contractor involved in the construction. After Respondent left the construction site the Homeowners soon realized that Alonzo did not know how to proceed with the work and experienced problems with the pace and manner in which the work was being accomplished. On July, 1983, Alonzo stopped working altogether. Although the Homeowners were aware of the problems that Alonzo was having with the construction and that Respondent was not on the job, the record does not reflect that they ever attempted to contact Respondent after the meeting on February 3, 1983. On August 1, 1983 the Homeowners notified Respondent and Alonzo that the contract had been terminated. The Homeowners paid Respondent and Alonzo $42,174.20 total under the contract (pages 1-5, Petitioner's Exhibit No. 15) and paid Alonzo $10,766.37 for extras (Pages 6- 10, Petitioner's Exhibit No. 15). On August 31, 1983 the Homeowners paid Edward Bryant, plastering contractor the sum of $3,100.00 for plastering performed by Edward Bryant. This was for work under the contract that had not been completed or work necessary to correct problems that were already completed. Roberta Fox testified that there were no extras on plaster, however, page 7, line 11 and page 9, line 21 of Petitioner's Exhibit 15 indicates that there was extra plastering. On August 29, 1983 and September 29, 1983 the Homeowners paid Southwest Plumbing Services, Inc. the total amount of $4,875.00 for work contemplated under the contract that had not been completed or needed correction. Homeowners had paid Alonzo $3,591.00 for plumbing under the contract. Both Alonzo and Southwest Plumbing, Inc. were paid for extra plumbing not covered by the contract in the amount of $567.00 and $391.50, respectively by the Homeowners. From September 13, 1983 through June 13, 1984 the Homeowners paid Charles Brueg, Jim Brueg, Charles Buffington and Dan, Inc. the total amount of $4,192.91 for electrical work contemplated under the contract that was not completed or required correction after Alonzo left the construction site. Page 6 lines 6 and 11 of Petitioner's Exhibit No. 15 indicate that there were extras not covered by the contract. The total amount for electricity contemplated by the contract was $3,649.00. Alonzo was paid $2,627.10 under the contract and $1,710.00 for extras. The Homeowners were required to obtain the services of an air conditioning contractor to complete the work contemplated under the contract after Alonzo left the job site and as a result were required to pay Cameron, Inc., the air conditioning contract the amount of $5,181.60 between August 16, 1983 and January 24, 1984. The total amount contemplated under the contract was $3,600.00 of which $1,134.00 had been paid to Alonzo. Debris was dumped in the swimming pool requiring the Homeowners to pay $7,000 to refurbish the swimming pool. This amount included the repair contemplated under the contract and the extra work caused by Alonzo. The contract contemplated $2,300.00 for repairs of which none had been paid to Respondent or Alonzo. The Homeowners paid $1,150.00 to a painting contractor to finish the painting contemplated under the contract. Alonzo had been paid $1,125.00 for painting. (Petitioner's Exhibit No. 15) The contract provided $2,500.00 for all painting required under the contract. Respondent failed to notify the building department that he was no longer responsible for the construction. After the Homeowners terminated the contract due to Respondent's and Alonzo's nonperformance, the Homeowners had to expend a substantial amount of extra money to complete the construction. The evidence is insufficient to determine an exact or approximate amount. Roberta Fox's testimony was conflicting with regard to her understanding as to whether or not the Respondent would continue to supervise the construction after the meeting in the Homeowners' law office on February 3, 1983 when Respondent and Alonzo entered into this agreement. Myron Gold testified that it was his understanding that Respondent would continue to supervise Alonzo after the agreement. However, the Homeowners action in this regard subsequent to February 3, 1983, in making no effort to bring the matter to a "head" and requiring Respondent to supervise the work or terminate the contract and in continuing to deal with Alonzo although Homeowners were aware shortly after February 3, 1983 that Alonzo could not perform without Respondent's supervision and that they knew Respondent was not on the job, tends to show that they were aware or should have been aware that Respondent was no longer involved in the day to day supervision of the construction. Alonzo installed a fireplace pursuant to the contract that the building department determined to be a fire hazard and recommended against its use. The Homeowners applied for and were granted a "owner/builder" permit on September 1, 1983 and requested cancellation of the building permit issued to Respondent which was cancelled on September 6, 1983. They have not received a certificate of occupancy because the building department has not performed the following inspection: electrical final; plumbing final; air conditioning final; roofing final and public works final. The building department would have issued a "stop-work order" had it been aware that Respondent was not supervising the construction and would have required the Homeowners to obtain another licensed building contractor or proceed as a owner/builder. The plans prepared by Frese-Camner Associates that were made a part of the contract by reference were not introduced into evidence with the contract and thus the record is insufficient to determine what was required to meet the specifications of the plans and thereby determine if the specifications had been met. There was a permit issued for the septic tank and drain field which work was started in December, 1982. The construction of the house itself was started in January 1983. The first inspection (foundation) on the house was made by the building department of January 21, 1983.
Recommendation Based on the findings of fact and conclusions of law recited herein, it is Recommended that the Board enter a final order finding Respondent guilty of violating Section 489.129(1)(h)(k)(m), Florida Statutes (1981) and for such violations it is Recommended that the Board assess the Respondent with an administrative fine of $500.00 and suspend the Respondent's contracting license for a period of three (3) years, provided, however, that if Respondent submits to the Board competent and substantial evidence of restitution to Myron Gold and Roberta Fox within one (1) year from the date of the final order herein, then the suspension shall be stayed and Respondent placed on probation for the balance of the suspension. Respectfully submitted and entered this 6th day of February, 1986, in Tallahassee, Florida. WILLIAM R. CAVE 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 6th day of February, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 84-2529 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties to this case. RULINGS ON PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3 but clarified. Adopted in Findings of Fact 4 and 5. Adopted in Finding of Fact 4. Adopted in Finding of Fact 6. Adopted in Finding of Fact 5. Adopted in Finding of Fact 9. Adopted in Finding of Fact 9. Adopted in Finding of Fact 9. Adopted in Finding of Fact 9. Adopted in Finding of Fact 10. Adopted in Finding of Fact 11. Adopted in Finding of Fact 12 except clarified as to the last date on construction site. Adopted in Finding of Fact 13. Adopted in Finding of Fact 14 but clarified. Adopted in Finding of Fact 15 but clarified. Adopted in Finding of Fact 16. Adopted in Finding of Fact 17 but clarified. Adopted in Finding of Fact 15 but clarified. Adopted in Finding of Fact 19. Adopted in Finding of Fact 20 but clarified. Adopted in Finding of Fact 21. Adopted in Finding of Fact 11. Adopted in Finding of Fact 21. Adopted in Finding of Fact 22. Adopted in Findings of Fact 22 and 23. Adopted in Finding of Fact24 but clarified to show correct amount paid under contract as indicated by Petitioner's Exhibit 15. Adopted in Finding of Fact 25 but clarified to show that extra plastering not under contract was required. Adopted in Finding of Fact 26. Adopted in Finding of Fact 26. Adopted in Finding of Fact 26. Adopted in Finding of Fact 27. Adopted in Finding of Fact 27. Adopted in Finding of Fact 27. Adopted in Finding of Fact 27. Adopted in Finding of Fact 27. Adopted in Finding of Fact 27. Adopted in Finding of Fact 28. Adopted in Finding of Fact 28. Adopted in Finding of Fact 28. Adopted in Finding of Fact 28. Adopted in Finding of Fact 29 but clarified. Adopted in Finding of Fact 30 but clarified. Rejected as immaterial. Rejected as not supported by competent substantial evidence. Rejected as not supported by substantial competent evidence. Adopted in Finding of Fact 31. Rejected as immaterial. Adopted in Finding of Fact 32 but clarified to show that the record does not support a figure that approximate $32,000.00. Rejected as not supported by substantial competent evidence even though the Homeowners' testimony supported this fact because the Homeowners' actions with regard to Respondent after February 3, 1983, was to the contrary. Adopted in Finding of Fact 33. Adopted in Finding of Fact 34. Adopted in Finding of Fact 34. Adopted in Finding of Fact 34. Adopted in Finding of Fact 35. Adopted in Finding of Fact 36. Adopted in Finding of Fact 36. RULINGS ON PROPOSED FINDINGS OF FACT SUBMITTED BY RESPONDENT: No Findings of Fact was submitted by the Respondent. COPIES FURNISHED: James Linnan, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 W. Douglas Beason Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. George J. Soler, Pro Se 3315 S.W. 96th Avenue Miami, Florida 33165
Recommendation Based on the foregoing findings of facts and conclusions of law, it is RECOMMENDED that Respondent be found guilty of violating Subsection 489.129(1)(k), Florida Statutes, and that he be given a public reprimand and fined $1,000. DONE and ORDERED this 30th day of November, 1982, 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 30th day of November, 1982. COPIES FURNISHED: Xavier J. Fernandez, Esquire P. O. Box 729 Fort Myers, Florida 33902 Michael H. Merrill, Esquire Suite 10 - 2502 Second Street Fort Myers, Florida 33901 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact At all times pertinent to these proceedings, Hamilton held registered residential contractors license number RR0015037. Hamilton agreed to construct a house in Clearmont, Florida, with a completion date no later than May 1, 1977, for Robert J. and Margaret M. Phlepsen. The construction price was $75,000.00. After construction of the house it was discovered that there existed two violations of the Southern Building Code. First, the "step-down" from the kitchen to the garage was an eleven inch riser contrary to the code requirement that the height of a riser shall not exceed seven and three quarters inches. The second violation occurred through the use of 2 X 8 joists where the code would require 2 X 10 joists. The extra high riser between the kitchen and the garage was apparently caused by an oversight. Hamilton merely failed to install an intermediate step at that location. The second violation occurred because the owner and Hamilton agreed to use the smaller joists in order to save money on the contract price. In neither case is there sufficient evidence to establish that Hamilton's violations were willful or deliberate as alleged in the Administrative Complaint. On June 6, 1978, the Lake County Board of Examiners suspended Hamilton's Lake County Certificate of Competency because of violations of building code requirements in the construction of Phlepsen's house.
Findings Of Fact The Respondent is a certified general contractor holding license number CG C016888. The Petitioner is an agency of the State of Florida charged with enforcing the provisions of Chapter 489, Florida Statutes, regulating the licensure and practice status and standards of building contractors in the State of Florida and enforcing the disciplinary provisions of that chapter. On December 14, 1981, Respondent contracted with Mr. and Mrs. Frank J. Sullivan to build the Sullivans a home in Sarasota County, Florida. Those parties entered into a contract whereby the Respondent was to be paid the actual cost of construction including all labor and materials plus a commission in the amount of 8 percent of the actual cost of construction, provided however, that the total contract price would not exceed $49,000, including actual costs and commission. In January, 1982, Respondent commenced work constructing the home. The Respondent worked on the home for several months and then abruptly ceased and abandoned construction without explanation on May 14, 1982. At this time the house was approximately 70 percent complete. At the time the Respondent ceased work on the project he had already been paid $47,362.29 or approximately 97 percent of the total contract price agreed to by the parties. The Sullivans thereafter had to pay $10,633.53 to subcontractors and materialmen who had been hired by the Respondent to supply labor and/or materials to the house, at the Respondent's direction, prior to his ceasing construction and leaving the job. Additionally, the Nokomis Septic Tank Company, Inc., the subcontractor who installed the septic tank, was owed $1,180.07 by the Respondent for the installation of the septic tank, which amount was to have been paid out of the total $49,000 contract price. The Respondent failed to pay Nokomis Septic Tank Company, which then filed a mechanic's lien on the property. In order to remove this cloud on their title to the property and avoid foreclosure of the lien, the Sullivans were forced to pay the $1,180.07 amount of the lien. In addition to more than $10,000 paid to subcontractors who had already performed labor or supplied materials to the job before the Respondent left it, the Sullivans had to obtain a loan from their bank in order to finish the project. The contracted for items which the Respondent had left undone (approximately 30 percent of the construction) required them to expend $18,662.04 to complete the dwelling in a manner consistent with the contractual specifications. The items which remained to be constructed or installed are listed on Petitioner's Exhibit 7 in evidence. The remaining amount of contract price which the Respondent was due upon completion of the job would have been $1,737.71. With this in mind, as well as the fact that the Sullivans had to pay in excess of $10,000 to defray already outstanding bills to subcontractors for labor and materials already furnished and then had to obtain a loan in order to pay $18,662.04 in order to complete the house, and it being established without contradiction that the Respondent was unable to make his payroll at the point of leaving the job, the Respondent obviously used substantial amounts of the funds he received from the Sullivans for purposes other than furthering the construction project for which he contracted with the Sullivans. Concerning Count II, on December 22, 1981, Frederick Berbert doing business as Venice Enclosures of Venice, Florida, contracted with Mr. Emory K. Allstaedt of Grove City, Florida, Charlotte County, to build an addition to Mr. Allstaedt's mobile home. The contract specified a price of $4,952 for which Berbert was required to construct a 12-foot by 20-foot enclosure or porch. Mr. Allstaedt never did and never intended to contract with the Respondent, Mr. Martin, rather, his contract was only with Frederick Berbert. Mr. Berbert was a registered aluminum specialty contractor in Sarasota County. He was not registered or licensed to practice contracting in Charlotte County where Mr. Allstaedt lived and where the porch was to be constructed. On December 28, 1981, the Respondent obtained building permit number 72030 from the Charlotte County Building and Zoning Department to construct a "Florida room" for Mr. Allstaedt's mobile home, the same room to be constructed by Mr. Berbert. Under Charlotte County Ordinances in evidence as Petitioner's Exhibits 13 and 13A, only a properly licensed "A", "B" or "C" contractor or a registered aluminum contractor can perform this type of job. The Respondent was appropriately licensed for this type of work in Charlotte County, but Mr. Berbert was not and thus could not obtain the permit in his own right. The Respondent's only connection with this job was obtaining the permit in his own name as contractor of record and in performing some minor work in replacing some damaged sheets of paneling shortly after the construction of the room addition and after the performance of the contract by Berbert. Though the Respondent listed himself as contractor in order to be able to obtain a building permit for the job, he never qualified as the contractor of record nor "qualified" Mr. Berbert's firm with the Construction Industry Licensing Board. Both Mr. Berbert and the Respondent were aware that Mr. Berbert could not legally perform contracting in Charlotte County at the time the Respondent obtained the building permit on Berbert's behalf.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED: That the contractor's license of Jack A. Martin be suspended for a period of ten (10) years, provided however, that if he makes full restitution to the Sullivans of all monies they expended for labor, materials and permits to enable them to complete the work he had contracted to perform, within one year from a final order herein, that that suspension be reduced to three (3) years after which his license should be reinstated. DONE and ENTERED this 27th day of April, 1984, in Tallahassee, Florida. P. MICHAEL RUFF 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 April, 1984. COPIES FURNISHED: Charles P. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Jack A. Martin 305 Park Lane Drive Venice, Florida James Linnan, Executive Director Florida Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
