Findings Of Fact Respondent, Eric Ager, is a registered residential contractor in Florida, having been issued license number CR CA11771. Respondent held the license at all times referred to in these Findings Of Fact. Background While licensed and doing business as Ager Construction Company and Ager Homes, Inc., the Respondent has built 700 homes in Florida since 1975. There was no evidence of any prior disciplinary proceedings against him. Before 1983, the Respondent qualified and did business as Ager Construction Company. At about that time, the Respondent decided to retire and was given an opportunity to get his money out of the business when his older brother, Irwin, a Michigan licensed contractor since the early 1960's, offered to buy and operate the business. The Respondent agreed and sold his company to Ager Homes, Inc., the company his brother, Irwin, formed for this purpose. Since Irwin was not licensed in Florida, the Respondent agreed to stay on as the qualifying agent for Ager Homes, Inc., but his role was to be gradually phased out and eventually terminated when Irwin could replace him. Irwin was the sole shareholder and director of Ager Homes, Inc. He also was the president. The Respondent acted as vice-president for a time but later served only as resident agent for purposes of service of process for the company (as well as qualifying agent.) As qualifying agent for Ager Homes, Inc., the Respondent saw it as his job to be in the field and do the actual building. He and Irwin consulted before Irwin estimated a job, but otherwise all financial matters were handled exclusively by Irwin. When permanent financing on a job the Respondent was working on closed, Irwin would prepare an affidavit of no liens and an affidavit of no unpaid invoices. The affidavit of no liens also stated that "there have been no . . . services or material furnished to the property for which a valid lien could be filed, nor has there been material or services furnished to, or labor performed on said property for which there are unpaid bills." The Respondent generally did not sign or even see these affidavits. The DeSantis On July 6, 1985, Ager Homes, through Irwin, entered into a contract to sell the DeSantis an $89,000 house to be built on a lot in a subdivision called Coventry. The sales price included a swimming pool and screened pool area enclosure. On or about October 17, 1985, Ager Homes, through its foreman, Randy Martin, subcontracted with National Screen & Aluminum, Inc., for the screen enclosure. The original contract price was $4,169. Later, on Martin's recommendation, the DeSantis requested that the screen enclosure be enlarged and the roof gabled. Martin entered into an addendum for the additional work by National Screen, at an additional cost of $622. National Screen's work was completed the morning of the closing on October 30, 1985. Irwin left a signed affidavit of no liens and affidavit of no unpaid bills with the closing agent (along with the other papers he had to sign), and the transaction closed as scheduled. In accordance with the practice of Ager Homes, the Respondent knew nothing about the affidavits but assumed that they would be given at the closing, as usual. In fact, National Screen had not been paid in full, and there was still a balance due of $3,399 as of April 1986. National Screen filed a claim of lien, and its successor, Design Aluminum, sued in February 1986, to foreclose the lien. The DeSantis hired legal counsel, and a judgment was entered in the DeSantis' favor in May 1987, based on the technicality that National Screen's November 5, 1985, notice to owner was too late. The Respondent knew nothing about either the National Screen subcontract or the affidavits until after March 1986. In the fall of 1985, Irwin had begun to have financial difficulties. They stemmed from the development of the Coventry subdivision. Muck and ground problems required the unforeseen expenditure of $100,000 to $200,000. Irwin was unable to maintain a healthy cash flow. By March 1986, Irwin also had begun to have personal problems, including a death in the family. During the week of March 15, 1986, Irwin left Florida and abandoned Ager Homes. Irwin left the Respondent 70 to 80 unpaid invoices to deal with. The Respondent operated the business for some time and tried to get Ager Homes' bills paid. In the case of the National Screen lien, the Respondent believed the title company would pay the lien and sue Ager Homes far reimbursement, but the title company refused to pay on the ground that the lien was not a covered title defect. After this became apparent, the Respondent still did not arrange to have the debt paid. He vaguely understood from Irwin that the job had cost more than it should have, but he never investigated to learn the true facts and never denied that the debt was valid. The Schultzes On June 21, 1985, Ager Homes, through Irwin, contracted with the Schultzes to build a house on a lot in Coventry for a price of $115,000. On the Schultz job, there was a difficulty with the air conditioning. The air conditioning would not operate effectively. After much experimenting, it was decided that an additional unit would be necessary. The transaction closed on November 7, 1985, before the additional air conditioning unit was added. Irwin signed and provided an affidavit of no liens and affidavit of no unpaid invoices at the closing. In accordance with the practice of Ager Homes, the Respondent knew nothing about the affidavits but assumed they would be given at the closing, as usual. Ager Homes subcontracted the air conditioning system to Airtron, Inc. The original price was $2500. With the additional unit added after the closing, the total due to Airtron was $2781. This amount never was paid. In February 1986, the Respondent and Irwin gave Airtron a promissory note for $12,000, which included the $2,781 on the Schultz job. In April 1986, Airtron filed a claim of lien on the Schultz property. By August 1986, Irwin had left, and the Respondent had not kept Ager Homes current on new billings by Airtron. On August 7, 1986, the Respondent signed another promissory note to Airtron for the balance due, which by then had grown to $26,000. On October 31, 1986, the Schultzes paid the $2781 lien when they closed the resale of their house in Coventry. The Respondent has paid a total of approximately $5000 on the debt, leaving $18,600 due and owing. At first, the Respondent thought the title company would pay Airtron and sue Ager Homes for reimbursement. Eventually, it became apparent that the title company would not pay.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Construction Industry Licensing Board enter a final order: (1) suspending the residential contractor license of the Respondent, Eric Ager, until such time as he has paid Design Aluminum and Airtron, Inc., in full on the outstanding accounts of Ager Homes, Inc., and reimbursed the Schultzes what they paid to clear the Airtron lien from their property, up to a maximum suspension of two years; and (2) after the suspension, either (a) reinstating the license, subject to a one year probation, if the Respondent can demonstrate good faith, diligent efforts to pay the debts, or (b) revoking the license for failure to make good faith, diligent efforts to pay the debts. RECOMMENDED this 24th day of September 1987, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 24th day of September 1987. COPIES FURNISHED: W. D. Beason, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750 Eric Ager 3041 Xevlyn Ct. Safety Harbor, Florida 33572 Fred Seely Executive Director Construction Industry Licensing Board Department of Professional Regulation P. O. Box 2 Jacksonville, Florida 32201 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
Findings Of Fact The Petitioner, Isidoro Carrillo, sat for Part II of the residential contractors examination administered in June, 1992. The Petitioner received a raw score of 62 on Part II of this examination which was amended to a grade of 63. A minimum passing score is 70. Each correct answer was worth 4 points. The Petitioner originally challenged questions numbered 8, 11, 15, 16, 18, 19, and 25 on the examination. At the hearing, the Petitioner conceded the Department's answer to questions no. 18 was correct. The Petitioner did not present any evidence with regard to questions numbered 8, 19, and 25 at the hearing. The Petitioner challenged questions numbered 11, 15, and 16. Questions numbered 11, 15, and 16 were labeled as the Hearing Officer's Exhibit and determined to be confidential pursuant to Section 455.229, Florida Statutes. A set of plans was introduced and labeled as Respondent's Exhibit 1. These plans are also determined to be confidential pursuant to Section 455.229, Florida Statutes. Question No. 11 required the computation of the square area of the foyer. The portion of the house to be included within the computation of the area of foyer was to include "all adjacent interior cased openings and door ways." Sheet 3 of 6 of the plans for the structure reveal notes relating to the foyer. The annotations regarding the foyer state: "See Note No. 18" and "See Note No. 19." Sheet 1 of 6 contains the specific notes relating to the plans. Note No. 18 states: "40 (width) x 68 (height) cased opening (See (Floor Plan)." Note No. 19 states, "58 (width) x 68 (height) cased opening (See Floor Plan)." The Petitioner failed to compute the correct answer for question No. 11 because he excluded from his computations the area between the foyer and the living room which was subject to note No. 19. The Petitioner's excluded this area from his calculation because the area between the foyer and living room lacks jams and is not a cased opening. The Petitioner and Respondent's expert both agreed that a cased opening was "Any opening finished with jams and trim, but without doors." A jam is defined as a vertical structure with depth. Referring to the plans in question, the opening between the foyer and the living room lacks jams. Respondent's expert explained that the area between the foyer and living room was included in the computation purely on the basis of Note 19, defining the area as a cased opening. Petitioner challenged question No. 15 which required the examinee to compute the amount of time required "to lift and place all single wood trusses with a span of 21' 4" given that the truck can lift and place one full-span, single, roof truss every 15 minutes. Sheet 5 of 6 of the plans depicts the roof truss layout for the house. On the plan, there are three single roof trusses with an overall length of 25' 4" and a span of 21' 4" and one gable end truss with a span of 21' 4" which is placed on top of and runs the length of the south wall of the building. This gable end truss has a span of 21' 4" but does not span any distance because it sits atop the wall. The response expected by the Respondent was one hour with the truck lifting four trusses: the three 25' 4" trusses plus the gable end truss. The Petitioner's answer was 45 minutes because he excluded the gable end truss which sits atop the wall and does not span any distance. The Petitioner challenges question No. 16 which asks the examinee to calculate the total cost for the pressure treated 4 x 8 and 2 x 6 lumber required to construct the wood deck, excluding wood rails, and given the price per 100 board feet of the 4 x 8 and the 2 x 6 pressure treated lumber. The expected response was answer A. The candidate's response was answer D because the candidate had included 4 x 8 beams running along and parallel to the wall of the house in his calculation of the cost figures. However, the detailed drawings of the wooden deck at the top of Sheet 3 of 6 and on Sheet 2 of 6 reveal that there are no 4 by 8 beams running along and parallel to the side of the house.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, the Hearing Officer concludes that the Petitioner was successful in challenging only one of three of the questions involved. The Petitioner's score of 67 points is insufficient for him to pass the examination. The Petitioner's records should be corrected; however, the Petitioner has not demonstrated a passing grade of 70, and therefore should not be licensed. DONE and ENTERED this 30th day of April, 1993, in Tallahassee, Florida. STEPHEN F. DEAN 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 April, 1993. APPENDIX A The Petitioner did not file proposed findings. The Respondent filed proposed findings which were read and considered. The following states which of those findings were adopted, and which were rejected and why: Respondent's Findings: Proposed Order: Paragraph 1-5 Paragraph 1-3 Paragraph 6 Paragraph 4-8 Paragraph 7 Paragraph 9,10 Paragraph 8 Paragraph 11 COPIES FURNISHED: Isidoro Carrillo Post Office Box 1896 New Smyrna Beach, Florida 32170 Vytas J. Urba, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Daniel O'Brien, Executive Director DPR - Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact The Respondent, Sarah R. Hunter, is licensed as a certified residential contractor and holds license number CR C004453. At the time of the events which are the basis of the Administrative Complaint, the Respondent was the qualifying agent of Hunter Homes, Incorporated, a Florida corporation (Hunter Homes). Hunter Homes entered into a contract with Ludon and Donna Williams to build them a house for $31,550. The Williams placed $31,550 in escrow, and the escrow agent paid to Hunter Homes a total of $31,040 before September 25, 1979. Hunter Homes contracted in April 1979 to build a house for Marsha Montgomery for $38,500. On August 2, 1979, Montgomery paid to Hunter Homes a total of $1600 down on the contract. The Respondent's husband, Robert Hunter, was the president and chief operating officer of Hunter Homes. He was responsible for the financial aspects of the corporate business, and the Respondent was responsible for design of the structures and sales. The Respondent held the office of secretary in the corporation and worked daily in the company's offices. Hunter Homes had built homes in the Fort Myers area for a number of years and was a reputable home building corporation. It began selling its homes faster than it could build them. Because of the delay in construction time and inflationary increases in construction costs, Hunter Homes began to lose money on its sales. Mr. Hunter kept this information from the Respondent and instructed the office staff, under threat of being fired, not to advise his wife about the financial status of the company. The office staff kept this information a secret from the Respondent until Mr. Hunter was hospitalized with a serious heart condition. At that point, the clerk in charge of keeping the books had to tell the Respondent about the situation because the corporation could not meet its payroll. In mid-August of 1979, when the Respondent became aware of the financial situation, she contacted the local building official and the companies through which Hunter Homes had obtained financing to discuss the financial situation of the corporation and what should be done to protect the persons who had contract to have houses built. The Respondent did not know the exact state of the corporation's finances until after completion of a survey by the auditors of one of the corporation's mortgage lenders. Hunter Homes' problem was primarily that of cash flow and being able to manage current liabilities until the transactions were closed on several houses which were almost complete. The Respondent was almost able to obtain an agreement which could have permitted the corporation to continue in business. However, one of the materialmen would not agree to the plan and commend an action on its liens, which caused the rest of the creditors to rush to protect their interests. This forced Hunter Homes out of business. The local building official testified concerning the actions of the Respondent with regard to his office and the creditors. After she became aware of the financial problem, the Respondent did all she could to protect all of the creditors of Hunter Homes. After Hunter Homes closed, the building official hired the Respondent because of her skills as a draftsman and her knowledge of construction. Within two to three weeks of the date that Montgomery paid her down payment, Hunter Homes went out of business and never had the opportunity to begin construction of her own home. The corporation was unable to repay Montgomery's down payment. Because Hunter Homes went out of business, the Williams home was not completed. The windowsills, toilets and lavatories, a sliding glass door, a garage door, a stove and dishwasher, and the carpet were not installed in the home. The driveway had not been poured, and the sod had not been laid. The Williams obtained a default judgment in the amount of $17,025.91 against Hunter Homes. However, the amount of this judgment exceeded the reasonable cost of those things required to finish the house and required under the construction contract. On September 25, 1979, the Williams paid the final draw on their house to the Respondent. Hunter Homes closed its doors on September 26, 1979.
Recommendation Having found the Respondent not guilty of violating Section 489.129(1)(h) and (k), Florida Statutes, as alleged in Counts I and II of the Administrative Complaint, it is recommended that the charges against the Respondent, Sarah R. Hunter, be dismissed. DONE and RECOMMENDED this 24th day of October, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 24th day of October, 1983. COPIES FURNISHED: Douglas A. Shropshire, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Thomas Brondstetter, Esquire Post Office Box 2258 Fort Myers, Florida 32902 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
The Issue Whether Respondent violated Section 24(2)(d), (h), (j), (k), (m) and (n), Chapter 75-489, Laws of Florida, as amended, and, if so, what is an appropriate penalty.
Findings Of Fact At all times relevant hereto James Forholt was licensed as an aluminum contractor by the Pinellas County Construction Licensing Board, having been issued license #C-2984. He was the qualifying contractor for City Wide Mobile Home Services, Inc. On June 28, 1989 Respondent contracted with customer #1 to install an aluminum roofover on the customer's mobile home (Exhibit 4). This work was completed and Respondent was paid in full. In July 1989 the work was inspected by a city building inspector and accepted. Later some leaks were experienced; Respondent was called and a repairman was sent to the job site. These leaks ceased but after heavy rains in 1990-91 additional leaks appeared and were not corrected. Customer #1 contracted with another aluminum contractor who removed the roofover installed by Respondent and replaced it with a new roofover at a cost to customer #1 of $3,356.00. Customer #3 contracted with City Wide Mobile Services, Inc. on December 30, 1986 to install a Royal roofover on customer's mobile home. This work was paid for by customer on December 30, 1986 and the work was completed approximately January 13, 1987. Customer #3 spent the winters in this mobile home and the summers elsewhere. Upon returning to the mobile home in October 1990 some water stains were observed inside the mobile home's ceiling, indicating the roof was leaking. City Wide was called and a repairman was sent out. He sprayed Kilz on the water spots and did some caulking on the roof. In the fall of 1991 upon returning to the mobile home customer #3 observed additional water stains on the ceiling and called City Wide. Two repairmen arrived, replaced vents and departed. The following day customer #3 turned on the heat and a terrible odor filled the mobile home. Respondent was called, he came over and advised customer #3 that the roof was five years old and he was no longer responsible for the roof. Respondent contracted with customer #2 to install vinyl siding on his mobile home. The work was satisfactorily completed but Respondent did not obtain a final inspection. After this administrative complaint was filed Respondent obtained a satisfactory final inspection on that job on January 14, 1992. The permit for the job for customer #2 was pulled June 13, 1992 by Respondent. Although the building official for the City of Largo, where the permit was issued, testified the permit was good for only three months, the face of the permit (Exhibit 11) states, "PERMITS ARE NULL AND VOID IF THE PROJECT IS ABANDONED FOR A PERIOD OF THREE (3) MONTHS OR MORE..." Respondent testified without contradiction that the contract form he used with the complaining parties only guarantees that the roofovers would be properly installed and the warranty on the roof was the manufacturer's warranty which he supplied to these customers. Respondent further testified that the caulking around the screws which secured the roofovers to the mobile homes would last only about two years in the Florida sunshine. He offered a continuous maintenance contract which the complaining parties declined to take. There was some evidence, but inconclusive, that hurricane Elena struck the area after the roofover was installed for customer #3. However, no evidence was submitted that the roof was damaged by this hurricane. Both of these roofovers were inspected by the City of Largo building inspectors and were signed off as satisfactory. No evidence was presented that these roofovers were improperly installed by Respondent or the workmanship used in these installations was defective.
Recommendation It is recommended that the charges against James Forholt contained in Administrative Complaint dated December 31, 1992 be dismissed. DONE and ORDERED this 13th day of May, 1993, in Tallahassee, Leon County, Florida. K. N. AYERS 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 13th day of May, 1993. APPENDIX Proposed findings submitted by Petitioner are accepted except as noted below: 3. Accepted generally as the testimony of Palios; however, subsections thereof listed below are rejected as not supported by credible evidence. a. Rejected. See HO #10. c. Rejected. Several months transpired between the installation of the roofover and observance of water stains. Respondent did some caulking on the roof after complaint was made; however, the roof subsequently leaked. Rejected. The reasons given by this witness for wanting the roofover installed was to remove the need for her husband to recaulk or repair the roof each year. 5. Accepted generally as the testimony of Hensley; however, subsections thereof listed below are rejected as not supported by credible evidence. a. Rejected. See HO #10. Rejected that the leaks resulted solely from Respondent's installation of the roofover. Rejected. 7.c. Rejected. See HO #9. COPIES FURNISHED: David Sadowsky, Esquire Assistant County Attorney 315 Court Street Clearwater, Florida 34616 James Forholt 9370 83rd Street North Seminole, Florida 34647 William J. Owens/Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road - Suite 102 Largo, Florida 34643 5116
Findings Of Fact Respondent is a registered residential contractor having been issued license number RR 0008633, and is the qualifier for Merkle Custom Homes Inc. Respondent's last known address is 877 SW 124th Street, Miami, Florida 33176. Sunshine Ready Mix Concrete Company ("Sunshine") provided Respondent with the materials to be used on construction jobs located at 9600 SW 103rd Street and 8715 SW 129th Terrace, both in Miami, Florida. Respondent did not pay in full for such materials. Sunshine sued Merkle Custom Homes and obtained a judgment against that Florida corporation in the amount of $4,379.24 for money owed by the corporation on various jobs, to include the two projects referred to in paragraph 2 of this order. Said judgment has not been satisfied. One of the subject construction projects was undertaken for Dr. Robert Boyett and-his wife. This project was at 8715 SW 129th Terrace, and was the Boyett home. The other project at 9600 SW 103rd Street was an investment for Henry Arman and Errol Eisinger, a general partnership known as Ski Investors. This project was known as the "Ski Job." The contract between Boyett and Respondent was a standard contract, and the contractor would be responsible to make disbursements to subcontractors and materialmen. After the commencement of construction on the Boyett job, a disagreement arose between Boyett and Respondent. Boyett had the checks from the lending institution cut to him and Respondent, and did not pass all of the draw to Respondent. Boyett assumed responsibility for paying the subcontractors and materialmen. Prior to the Boyett and Ski Job projects, the Respondent applied for and established an open account for Merkle Custom Homes with Sunshine. The concrete for the Boyett job was charged to the Merkle Custom Homes account. Respondent's uncontroverted testimony was that he phoned Mr. Iglesias of Sunshine and advised him that Boyett was responsible for the concrete. The situation between Boyett and the Respondent worsened, and they eventually severed their contract. Boyett owed Respondent substantial sums of money at that time from draws paid to Boyett by the lender. In settlement of their dispute, Respondent waived any claims on the money Boyett held in return for Boyett's promise to assume all financial responsibility to the subcontractors and materialmen. Boyett did pay some $1500 to Sunshine on this debt but refused to pay all of the Sunshine bills, even though Respondent urged Boyett to honor his commitment. As a result, the Respondent received a partial satisfaction of judgment. Boyett and the contractor who took over from Respondent and assumed responsibility for the project both executed documents indicating that all materialmen had been paid. Sunshine failed to file and perfect a materialman's lien on the Boyett job. On the Ski Job, Respondent never had any control over the distribution of funds. Although the first checks were made out to the partners and the Respondent, control over payments to subcontractors and materialmen was exercised by the financial institution and Arman and Eisinger, the two individuals in the partnership for whom the project was done. The money was controlled by the partnership, who paid subcontractors directly. Respondent told Mr. Iglesias by phone that the partners were responsible for payment of the materialmen. Sunshine delivered to the Ski Job and billed to Merkle Custom Homes 40 yards of concrete at $27.75 per yard, for a total (including tax) of $1,154.40. Sunshine was paid for this concrete, and Respondent obtained a release from Sunshine for this amount. Sunshine delivered an additional 39 yards of concrete to the Ski Job after the date of the release at $34 per yard for a total (including tax) of $1,409.04. There is no evidence that the partners ever received a bill for the remainder of the concrete from Sunshine or the Respondent. No request for payment was made to the savings and loan for money to pay Sunshine for concrete. Merkle Custom Homes was replaced as the contractor, on this project, and the new contractor and owners agreed to assume responsibility for money owed to any subcontractors or materialmen. Sunshine did not file or perfect a materialman's lien on the Ski Job.
Recommendation Having found Respondent not guilty of violating Section 489.129(1)(d), Florida Statutes, it is recommended that the Amended Administrative Complaint filed against Respondent be dismissed. DONE and RECOMMENDED this 24th day of February, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 24th day of February, 1983. COPIES FURNISHED: Michael J. Cohen, Esquire Kristin Building, Suite 101 2715 East Oakland Park Boulevard Fort Lauderdale, Florida 33306 Robert C. Eber, Esquire 9595 North Kendall Drive, Suite 102 Miami, Florida 33176 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 J. K. Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
The Issue The issue posed for decision herein is whether or not Respondent failed to fulfill contractual obligations; willfully or deliberately disregarded and violated applicable local building codes and made misleading representations by issuing a warranty which he later refused to honor in violation of Section 489.129(1)(c), (d) and Section 455.277(1)a, Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following relevant findings of fact: By its Administrative Complaint filed herein, Petitioner seeks to take disciplinary action against Respondent, as licensee and against his license to practice contracting in the state of Florida. Respondent is a certified general contractor having been issued license number CBC006481. On June 6, 1981, Respondent, as qualifier for Behr Contracting, Inc., entered into a contract with Mrs. Susan Fuller to reroof her home at 811 Santiago Street, Coral Gables, Florida. (Petitioner's Exhibit 1) Respondent guaranteed to Mrs. Fuller that all materials furnished by Behr Contracting would be of standard quality, type and condition, free from defects, and that said labor and materials would be guaranteed against structural and material defects. Respondent pulled the required building permit and commenced the reroofing off Mrs. Fuller's residence on June 11, 1981. (Petitioner's Exhibit 2) During the course of construction, several defects became apparent. As example, the tile was installed approximately two months after the contract was entered (August, 1981) and during the next month, September, 1981, leaks started which damaged the ceiling, pecky cypress, plaster in the dining and bedrooms, the kitchen walls, and other interior furnishings of the Fuller residence. When Mrs. Fuller observed the leaks in the roof, she immediately notified the Respondent that there was a problem with the roof and requested that he return to the site to inspect the roof and to correct same. Despite repeated demands, Behr refused to repair the interior damage to Mrs. Fuller's residence. During approximately June, 1982, Behr installed a solar system on the Fuller's residence. Respondent guaranteed the roof on the Fuller residence for a period of fifteen years including the texture coating to the roof and the slide of the residence. Respondent also agreed to abide by all ordinances, rules and regulation of the Building Department of the City of Coral Gables, Florida. Mrs. Fuller filed a formal complaint against Respondent on approximately May 24, 1982. Following the installation of the roof on the Fuller residence, several leaks lasted for extended periods of time and the Fullers including her roommate, Heather Stever, had to repeatedly place buckets in and around the Fuller residence to attempt to contain water which was entering the roof through various cracks in the roof. Evidence of the leakage was evident in at least three rooms of the Fuller residence. (Testimony of Robert Harvilla and Heather Stever) The Respondent contends that there was no defective workmanship or materials used or performed by him in the reroofing of the Fuller residence and that the cause of the leakage in the Fuller residence was precipitated by nuts, bolts and other foreign materials which were strewn over the roof when the solar system was installed. Respondent contends that the foundation of the roof was penetrated by the solar system which destroyed the integrity of the roof. In this regard, it is found herein that the leakage to the Fuller residence occurred immediately after the Respondent installed the new roof to that residence and that the leakage persisted until it was corrected months later after Mrs. Fuller had her home reroofed in December of 1982. Evidence adduced herein failed to establish that the leakage to the Fuller residence which ultimately caused damage to the interior of their residence, was a result of foreign matter attributable to any cause other than the installation of the new roof by Respondent. Finally, Respondent refused to complete other items he specifically contracted to perform for Mrs. Fuller including painting of the interior trim and to completely texture coat the exterior of the Fuller residence.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED that the Respondent's certified general contractor's license number CBC006481 be suspended for a period of one (1) year. 2/ DONE and ORDERED this 2nd day of November, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, 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 2nd day of November, 1983.
The Issue Whether Respondent should be granted licenses to operate two residential group homes for developmentally disabled individuals.
Findings Of Fact On October 22, 1999, the Department issued to Community Opportunities, Inc., a temporary license to operate Skyline ("Skyline" or "Skyline Group Home"), a residential group home for developmentally disabled clients in Pasco County, Florida, which is located in the Department's Suncoast Region. Four months later, in February 2000, the Department issued a standard license to Community Opportunities, Inc. From February 2000 through early August 2002, Skyline Group Home operated under that standard license. In May 2002, the Department investigated an abuse complaint concerning a 21-year-old male resident at the Skyline Group Home who was diagnosed as mentally retarded with Intermittent Explosive Disorder. His past history included incarceration for attempting to stab his father and, while at Skyline, 14 behavior incidents ranging from exposing himself to violent behavior towards staff and other residents at the group home. On or about May 3, 2000, this resident, while a passenger in a van for the group home, took the vehicle's keys from the seat where they were left by a staff person, started the van, ran over the staff person twice, and ran the van into a house and a telephone pole, before being stopped. Following the Department's investigation, the report was classified as verified for inadequate supervision, caretaker present. The investigation referred to in paragraph 2 also found that the Skyline Group Home was inadequately staffed, with employees working for weeks at a time with no days off. At the time of the investigation, the van driver, who was injured in the incident, described in paragraph 2 had not had a day off for almost two months prior to that incident. On August 4, 2000, the Department met with representatives of Community Opportunities, Inc., due to safety issues with the operation of the group home. Following this meeting, on or about August 11, 2000, Skyline's licensure status was changed from standard to conditional. At that time, the Department requested that the facility submit plans of corrective action. On August 28, 2000, the Department investigated an abuse complaint concerning a mentally retarded, female resident of the Skyline Group Home. This resident was found walking on a gravel road with no shoes and dressed only in a nightgown. It was estimated that it would have taken 8 to 10 minutes to walk to the location where the resident was found. This elopement from the group home occurred 3 times in a three-hour period. As a result of the investigation, it was also learned that Skyline Group Home staff members were dropping off residents at school before teachers arrived, thereby leaving the developmentally disabled clients unattended. In addition, the investigation revealed that staff at the Skyline Group Home could not be reached during the day when emergencies or problems with medications arose, staff members failed to document significant events as required, and faxed requests for medication from the school to the group home went unanswered. This report was classified as verified for inadequate supervision and medical neglect. The investigation found systemic problems associated with the group home. Although the Department gave Community Opportunities, Inc., time to correct the problems, the problems were never corrected. As a result of those failed attempts, the Department closed the Skyline Group Home on September 30, 2000. On September 21, 2000, the Department sent a letter to Ernie M. Beal, Jr., Executive Director of Community Opportunities, Inc., notifying him that the license for the Skyline Group Home would not be renewed. Community Opportunities, Inc., did not challenge the Department's proposed action and two months later, the Department issued a Final Order affirming the denial of Community Opportunities, Inc.'s, relicensure. The reasons for nonrenewal of Skyline's license included the facility's failure to maintain adequate staff at the group home; failure to take reasonable precautions to assure that the residents were not harming themselves or others; incidents involving injury to staff; inadequate corrective action plans to address deficiencies; and numerous violations of the licensure standards under Rule Chapter 65B-6, Florida Administrative Code. On or about September 12, 2002, the Department received licensure applications for two developmentally group homes, Skyline Group Home in Dade City, Florida, and Harvill Group Home located in Lithia, Florida, both of which were located in the Department's Suncoast Region. The applications were submitted by Your Friends & Neighbors of Florida, Inc., and signed by Pamela Beal, Chief Executive Officer ("CEO"). Ernest Beal, Jr., Chief Operating Officer, was listed on both of the applications as the person who would operate and supervise the facilities. Your Friends & Neighbors of Florida, Inc. is a non- profit corporation. Ernest M. Beal, Jr., is its president and Pamela Beal is its vice-president, secretary, treasurer, and CEO. The Board of Directors of Your Friends & Neighbors of Florida, Inc., is comprised of Pamela Beal and Ernest Beal, Jr., and Felicity Lennox, who was also on the Board of Directors of Communities Opportunities, Inc. Ernest M. Beal, Jr., is the president and CEO of PEJUS, Inc., which on January 1, 2000, purchased the assets of Community Opportunities, Inc. PEJUS, Inc., then conveyed its interest in the former Community Opportunities, Inc. to Your Friends & Neighbors, Inc. Qualification documents for Your Friends & Neighbors of Florida, Inc., were filed with the Secretary of State on or about January 29, 2001, and the corporation was authorized to transact business in Florida on that date. Petitioner's, Your Friends & Neighbors of Florida, Inc.'s, corporate office is at the same address as Community Opportunities, Inc., located at 1515 Magnavox Way, Fort Wayne, Indiana. Moreover, when calling Your Friends & Neighbors of Florida, Inc.'s phone number, one is greeted by a recorded message which states the names Your Friends & Neighbors, Inc., Community Opportunities. Inc., and PEJUS, Inc. Your Friends & Neighbors, Inc., is an Indiana corporation founded in 1985 by Ethyl Beal and Pamela Beal. Community Opportunities, Inc., is an Indiana corporation owned by Ernest Beal, Jr., which owned the Skyline Group Home in September 2000, when the license for Skyline was not renewed. The two applications for licensure submitted by Your Friends & Neighbors of Florida, Inc., on September 12, 2002, were almost identical to the application for the Skyline Group Home submitted by Community Opportunities, Inc., in July 1999. There were no significant differences in the 1999 application and the 2002 applications. In fact, the services to be provided, the program description, and the staffing pattern were almost identical. Notwithstanding these similarities, the applications submitted in 2002, proposed to serve clients with developmental disabilities more severe than those served at Skyline Group Home pursuant to the 1999 application. By letter dated October 2, 2002, the Department notified Pamela Beal, CEO of Your Friends & Neighbors of Florida, Inc., that the licensure applications had been denied. The notice cited all the reasons the Department did not renew Skyline's license in September 2000. Those reasons included the incident involving the vehicle resulting in injury to staff; neglect of the residents; failure to correct problems through corrective action plans; insufficient staffing ratio; lack of reasonable precautions to ensure residents' safety; failure to ensure timely medical treatment to residents; and failure to properly report injuries. Despite the violations cited in the notice of denial, at the final hearing, the Department clarified that its concern with the subject applications was not with the direct care staff, but with the fact that the proposed model would not meet the needs of the clients with developmental disabilities that Petitioner wanted to serve.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Children and Family Services enter a Final Order confirming the decision not to issue Petitioner's group home licenses for Skyline and Harvill. DONE AND ENTERED this 30th day of April, 2003, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 30th day of April, 2003. COPIES FURNISHED: Pamela J. Beal 1515 Magnavox Way Fort Wayne, Indiana 46804 Ernie Beal, President Your Friends & Neighbors of Florida, Inc. 4505 Club House Drive Marietta, Georgia 30066 Frank H. Nagatani, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 314 Largo, Florida 33778-1630 Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
