Findings Of Fact William O. Boyd is licensed as a general contractor with the Construction Industry Licensing Board and was so registered at all times here relevant as the qualifying licensee for B & J Harris, Inc. In 1978 Respondent, as trustee of Kings Point Subdivision in Kissimmee, Florida, was looking for someone to do construction in the subdivision and was approached by Harris, who was not licensed. B & J Harris, Inc. was formed, with apparently little capitalization, and with Harris, his wife and son as officers of the corporation. In his application for 1978/1979 Competency/Registration Card (Exhibit 1) dated 9/7/78 Respondent showed he was employed with Empire Builders, Inc., the same firm with which he was affiliated for the previous 12-15 years. Fidelity Bond dated 3-17-78 (Exhibit 2) issued to B & J Harris, Inc. shows Respondent as qualifying general contractor for B & J Harris, Inc. B & J Harris, Inc. entered into a contract with Charles and Connie Arnold (Exhibit 4) to construct a residence on Lot 128, Kings Point Subdivision, obtained Building Permits (Exhibit 3) and commenced construction. Financing for the construction was arranged by Harris and Respondent did not participate in this project in any manner. B & J Harris, Inc. was paid the full contract price by the lending institution and the Arnolds (Exhibits 5 and 15) prior to the scheduled March 7, 1979 closing date. When advised on 7 March 1978 that closing was scheduled that day, Respondent called Mrs. Arnold to advise her that the closing could not proceed as scheduled because B & J Harris, Inc. could not convey clear title to Lot 128 as Harris had not paid Respondent for this lot. Respondent was advised by the lending agency that no other liens existed and Respondent, in consideration of a note secured by a mortgage on Harris' residence, conveyed title to Lot 128 to Harris. The closing took place on 7 March 1978 with the lending institution holding the funds and deed in escrow pending the clearance of the title. Harris executed a Certificate of No Lien on 7 March 1978 (Exhibit 7) and presented a Waiver of Lien form (Exhibit 15) executed by numerous subcontractors. At least two of the signatures on this Waiver of Lien form were denied by the persons whose signature they purported to be. Several subcontractors filed mechanics liens against the property on Lot 128 after the closing, and others filed affidavits and presented testimony that they had not been paid. (Exhibit 10-12). On 23 March 1979 B & J Harris, Inc. filed Petition for Voluntary Bankruptcy (Exhibit 14).
Findings Of Fact The Respondent, John J. Piccione, is an instructor at Gold Coast School of Real Estate, Inc., holding instructor's permit number ZH 31158. He has been a licensed instructor for approximately fifteen years. Piccione used to be the permit holder for Gold Coast School of Realty, Inc., but as of January 3, 1984, the school permit was issued to Mary Piccione. Additionally, Mary Piccione is the chief administrator of Gold Coast School of Realty, Inc. John J. Piccione's license as a real estate broker was suspended for one year, from November 3, 1983 to November 2, 1984.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the charges contained in the Administrative Complaint be DISMISSED. DONE and ORDERED this 21st day of September, 1984, in Tallahassee, Florida. DIANE K. KIESLING 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 21st day of September, 1984. COPIES FURNISHED: Fred Langford Staff Attorney Department of Professional Regulation Real Estate P. O. Box 1900 Orlando, Florida 32802 John J. Piccione 1515 E. Silver Springs Boulevard Suite 105-WG Ocala, Florida 32670 Harold R. Huff, Director Department of Professional Regulation, Division of Real Estate 400 West Robinson Street Orlando, Florida 32802
The Issue The issue is whether Respondent should grant Petitioner a real estate broker license.
Findings Of Fact Mr. Mouflouze has held real estate licenses in New Hampshire and Maine for about 28 years. He lives in Portsmouth, New Hampshire, which abuts the Maine border. It was because he lives in close proximity to Maine, that he maintained a license there, also. The Commission, pursuant to Chapter 475, regulates real estate brokers and sales associates. The Commission accomplishes this regulation through the Division of Real Estate of the Department of Business and Professional Regulation. Mr. Mouflouze currently holds a broker's and salesperson's license in New Hampshire. He has not experienced any disciplinary action in that state. These licenses have an expiration date of April 1, 2008. From 1982 until 2004, Mr. Mouflouze held a designated broker's license in Maine. Prior to February 19, 2004, Mr. Mouflouze failed to complete the required hours of continuing education in Maine, according to the Maine Real Estate Commission (Maine Commission). He disagreed with this conclusion. He attended a hearing before the Maine Commission and after the hearing the Maine Commission ordered him to pay a fine of $900 and to complete six hours of continuing education. Mr. Mouflouze refused to pay the fine or otherwise obey the order. As a result, the Maine Commission had another hearing in his case on August 19, 2004, based on his failure to comply with its order. As a result of that hearing, his designated broker license was revoked effective the date of the hearing. As of the date of the hearing in this case, his license in Maine had not been reinstated. Mr. Mouflouze is a person who is regarded as a highly qualified and ethical real estate broker. He is reputed to be honest and hard-working.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission deny William Peter Mouflouze's application for licensure as a real estate broker. DONE AND ENTERED this 24th day of October, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 2006. COPIES FURNISHED: Thomas Barnhart, Esquire Claudel Pressa, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 William Peter Mouflouze Bill Mouflouze Real Estate Post Office Box 6541 Portsmouth, New Hampshire 03802-6541 Nancy B. Hogan, Chairman Real Estate Commission Department of Business and Professional Regulation 400 West Robinson Street, Suite 801N Orlando, Florida 32801 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether the real estate license issued to the Respondent, Kathi L. Kitts, should be revoked or otherwise penalized based upon the acts alleged in the Administrative Complaint.
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 make the following findings of fact: Brickell Grove Realty Corporation ("Brickell Grove") is a licensed real estate brokerage corporation in Florida having been issued license number 0245921. From at least May 1988 through September 1, 1988, the sole qualifying broker for Brickell Grove was Frederick Morrison, Jr. (Morrison). At some point in mid to late 1988, (the exact date was not established by competent substantial evidence) Morrison was hospitalized with a terminal illness and his subsequent involvement in the real estate brokerage business was limited. Morrison died on September 1, 1988. Respondent, Kathi L. Kitts (formerly known as Kathi L. Abassi), was licensed by Petitioner as a salesman with Brickell Grove beginning on or about August 13, 1986. Respondent completed the required course for a real estate broker's license in April of 1988. On September 19, 1988, she passed the state exam required to obtain a broker's license. The evidence did not establish when Respondent first filed an application for a broker's license. After passing the exam in September of 1988, Respondent submitted an application which she thought would enable her to become the sole qualifying broker for Brickell Grove. The evidence did not establish the date that application was submitted. That application was not signed by the qualifying broker of Brickell Grove and/or the owner so it could not serve to qualify Respondent as the sole qualifying broker for Brickell Grove. On October 1, 1988, Petitioner issued Respondent a broker/salesman license as an employee of Brickell Grove. That broker/salesman license was revoked in November of 1988 when it was discovered that the corporate registration of Brickell Grove was cancelled effective September 30, 1988 as a result of the death of Morrison and the non-renewal of the corporate license. The exact date of the revocation was not established by competent substantial evidence but it was apparently on or after November 1, 1988. Prior to receiving the revocation notice, Respondent was advised by an investigator employed by Petitioner that her application to become the qualifying broker was deficient because it was not signed by the owner or broker. On October 20, 1988, Respondent filed another application to become licensed as the qualifying broker for Brickell Grove and to change the name on her license from Kathi Abassi to Kathi Kitts. This second application contained the signature of the owner of Brickell Grove. On November 4, 1988, Respondent sent a letter to the Division of Real Estate indicating that Mr. Morrison was seriously ill and that it was urgent that her application to be the active broker for Brickell Grove be approved as quickly as possible. Respondent did not, however, discover that Mr. Morrison had died on September 1, 1988, until sometime in the middle of November when she was advised by Petitioner's investigator. Petitioner approved Respondent's second application to become the qualifying broker for Brickell Grove on November 22, 1988. The approved broker's license was backdated to establish an effective date of October 20, 1988. Effective October 20, 1988, the corporate registration of Brickell Grove Realty Corporation was reinstated upon the Respondent becoming its sole qualifying broker. Respondent admitted that at least during the time period from September 1, 1988 through October 20, 1988, she operated as a salesman in the office of Brickell Grove Realty without any supervision from another broker in the office. However, no competent substantial evidence was offered to establish the nature or extent of business conducted by that office or by Respondent during this time period. Respondent did not open bank accounts or advertise as a broker until after October 20, 1988. While Respondent contends that she thought Mr. Morrison was continuing to carry on as the active broker for Brickell Grove during the time period he was hospitalized and continuing through November (after his death), she admitted that she only saw him on occasion and could not recall when he was last in the office. The limited contact between Respondent and the licensed broker for Brickell Grove is reflected by her lack of knowledge of his death until almost two months after it occurred. While there is hearsay testimony that Mr. Morrison was in the hospital for several months prior to his death and that his involvement with Brickell Grove Realty during the several months preceding his death was limited, or nonexistent, no competent substantial evidence was offered to establish the nature or extent of the business conducted by Respondent without the benefit of supervision by a licensed broker during the time period prior to September 1, 1988. Petitioner had previously initiated an investigation into unlicensed practice by one of the owners of Brickell Grove, Mahmoud Abassi (Respondent's former husband) in July of 1986. That investigation resulted in an August 29, 1986 affidavit executed by Mahmoud Abassi to cease and desist unlicensed real estate brokerage activity. However, no competent substantial evidence was offered to prove any involvement by Respondent in the activities which led to the execution of that affidavit nor was any evidence offered to show that Mahmoud Abassi was actually running Brickell Grove at any point subsequent to the execution of the affidavit. Moreover, no competent substantial evidence was offered as to Respondent's activities and/or supervision during the period from the execution of the affidavit until September 1, 1988.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Florida Real Estate Commission, enter a Final Order finding Respondent, Kathi Kitts, guilty of operating as a broker without a license during the period from September 14, 1988, to October 1, 1988, reprimanding her and placing her on probation for one year. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of December 1989. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 1989.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. David B.C. Yeomans, Jr., is now and was at all times material hereto a licensed real estate broker having been issued license number 0163386. During times material, Respondent was the qualifying broker for G & A Realty and Investments, Inc., a corporation licensed as a real estate broker in the State of Florida. 1/ From approximately April 1985 to December 1985, Respondent Yeomans was the president and qualifying broker for G & A. Wilfredo Gonzalez, a licensed real estate salesman and Alberto Aranda were each 50 percent shareholders of G & A. Wilfredo Gonzalez, while licensed as a real estate salesman in the employ of G & A, solicited and obtained a client, Alfredo Susi, who made an offer to purchase a commercial property in Dade County, Florida. In connection with the offer, Alfredo Susi entrusted a $10,000 earnest money deposit with Wilfredo Gonzalez to be held in trust in G & A's escrow account. The seller rejected Susi's offer to purchase whereupon Alfredo Susi made demands upon Gonzalez for return of the earnest money deposit. Wilfredo Gonzalez attempted to return the earnest money deposit entrusted by Susi via check dated November 18, 1985 drawn on G & A's escrow account. Upon presentation of the subject check by Susi, it was returned unpaid due to non-sufficient funds. Alfredo Susi has been unable to obtain a refund of the deposit submitted to Gonzalez. Wilfredo Gonzalez used the deposit presented by Susi and did not apprise Respondent Yeomans of what or how he intended to dispose of Susi's deposit. Alfredo Susi had no dealing with Respondent Yeomans and in fact testified and it is found herein, that Susi's dealings in this transaction, were exclusively with Wilfredo Gonzalez. Tony Figueredo, a former salesman with G & A, is familiar with the brokerage acts and services performed by Respondent Yeomans and Wilfredo Gonzalez. During his employment with G & A, Figueredo had no dealing with Respondent Yeonans and in fact gave all escrow monies to Wilfredo Gonzalez. Carolyn Miller, the president and broker for Rite Way, Realtors, an area brokerage entity, is familiar with the customs and practices in the Dade County area brokerage operations. Ms. Miller considered it a broker's responsibility to supervise all salesman and to review escrow deposits and corresponding accounts approximately bimonthly. Theodore J. Pappas, Board Chairman for Keyes Realtors, a major real estate brokerage entity in Dade County, also considered it the broker's responsibility to place escrow accounts into the care and custody of a secretary and not the salesman. Mr. Pappas considered that in order to insure that funds were not misappropriated, checks and balances and intensive training programs would have to be installed to minimize the risk of misappropriation of escrow deposits. Mr. Pappas conceded however that it was difficult to protect against dishonest salesman. Respondent Yeomans has been a salesman for approximately eleven years and during that time, he has been a broker for ten of those eleven years. During approximately mid 1984, Respondent Yeomans entered into a six (6) month agreement with G & A to be the qualifying broker and to attempt to sell a large tract of land listed by Context Realty in Marion County (Ocala). When Respondent agreed to become the qualifying broker for G & A Respondent was a signator to the escrow account for G & A Realty. Sometime subsequent to Respondent qualifying as broker for G & A, Wilfredo Gonzalez changed the escrow account and Respondent Yeomans was unfamiliar with that fact. Respondent Yeomans first became aware of Susi's complaint during late 1985 or early 1986. Respondent Yeomans was not a signator on the escrow account where Wilfredo Gonzalez placed the escrow deposit entrusted by Alfredo Susi. (Petitioner's Exhibit 9) During approximately November, 1986, Respondent Yeomans made it known to the officers at G & A that he was withdrawing his license from G & A and attempted to get G & A's officers to effect the change. When this did not occur by December, 1986, Respondent Yeomans effectuated the change himself and terminated his affiliation with G & A. During the time when Respondent was the qualifying agent for G & A, there were approximately four employees and little activity to review in the way of overseeing real estate salespersons. During this period, Respondent Yeomans reviewed the escrow account for G & A that he was aware of. During the time that Respondent Yeomans was qualifying broker for G & A, he was primarily involved in the undeveloped acreage owned by Context Realty and other REO listed property of G & A. During the period when Respondent Yeomans was qualifying agent for G & A, Wilfredo Gonzalez spent approximately 95 percent of his time managing rental property that he (Gonzalez) owned.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Administrative Complaint filed herein be DISMISSED. RECOMMENDED this 9th day of June, 1987 in Tallahassee, Leon County, 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 9th day of June, 1987.
Findings Of Fact Respondent is a licensed real estate salesman and was so licensed at all times here relevant. On November 18, 1980, a money judgment was obtained against Respondent in Small Claims Court by Jacques Skinner for services performed by Skinner for Respondent. Respondent has failed to satisfy the judgment. Prior to the institution of the suit Respondent had paid Skinner approximately two-thirds of the contract price for work done on a building occupied by Respondent. On January 16, 1979, Respondent executed a lease on which he obligated himself to pay the sum of $600 for rent for the months of March and April 1979, and $1,000 per month thereafter with the sum of $2,000 due on May 1, 1979. Respondent was unable to comply with this payment schedule and, in exchange for rents due, the landlord accepted a promissory note in the amount of $3,200 due and payable December 1, 1979. Respondent has failed to pay any part of this $3,200 note given to the landlord. On 7 January 1980 Respondent pleaded nolle contendere to stopping payment on a check with intent to defraud, resisting an officer with violence, battery of a law enforcement officer and battery. Adjudication of guilt was withheld by the court and Respondent was placed on probation for three years.
Findings Of Fact At all times pertinent to the allegations contained herein, the Florida Real Estate Commission was the state agency responsible for the licensing and regulation of real estate professionals in this state. Respondent was licensed by the Commission as a real estate broker under licenses Numbers 0117117 and 0257450-1. His licenses were effective at all times under consideration herein. On December 19, 1988, Richard and Charleen Mercier, owners of the Sherwood Lounge in Delray Beach, Florida, entered into a 6 month exclusive right to sell agreement with Richard Scott Realty for the sale of their property. At that time, Respondent was listed as the broker of record for Richard Scott Realty. The licensed sales person obtaining the listing was Walter P. Van Oostrum. The agreement called for the payment of a 10% commission upon sale. Thereafter, on April 4, 1989, the Merciers entered into another listing agreement with WMB Management, a different realty company with whom Respondent had become affiliated after his resignation from Richard Scott Realty on March 17, 1989. On April 18, 1989, Steven Yoo signed a contract to purchase the Sherwood Lounge for $60,000.00 Thereafter, the sale was closed and the closing statement reflects a brokerage commission of $7,500 to be paid from the proceeds of the sale. On May 2, 1989, Mrs. Mercier paid Respondent the additional sum of $2,500.00, by check number 219, drawn on the Carney Bank in Delray Beach, Florida. This check represented the balance due of the commission earned on the sale though there was no explanation as to how a commission of $10,000.00 could be earned on a $60,000.00 sale when the contract called for a commission of 10%. The check was cashed. Sometime thereafter, Respondent paid the sum of $500.00 to Mr. Van Oostrum in partial payment of his share of the commission on the sale of the Sherwood Lounge. According to their agreement, Mr. Van Oostrum was to receive 30% of the commission received by the brokerage on the sale. When Mr. Van Oostrum asked Respondent for the remaining $2,500.00 he was due, it was not paid. Thereafter, Mr. Van Oostrum filed suit in County Court in Broward County for the $2,500.00 due him. Respondent failed to appear or file a response and on December 29, 1989, the Court entered a Default and Final Judgement against Respondent in favor of Mr. Van Oostrum in the amount of $2,500.00 plus $80.00 costs. Though Mr. Van Oostrum thereafter made demand upon the Respondent for payment the judgement has not been satisfied. Respondent offered, in compromise and satisfaction, a payment of $100.00 plus a promise to pay an additional $100.00 "when he got it." This offer was not accepted by Mr. Van Oostrum. The balance due has not been paid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered revoking all real estate licenses, as broker or salesman, held by the Respondent, Dominic Scacci. RECOMMENDED in Tallahassee, Florida this 24 day of August, 1992. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 24 day of August, 1992. James H. Gillis, Esquire DPR - Division of Real Estate Suite N - 308, Hurston Building 400 W. Robinson Street Orlando, Florida 32801-1772 Dominic Scacci 1880 N. Congress Avenue, #405 West Palm Beach, Florida 33401 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Darlene F. Keller Division Director Division of Real Estate 400 W. Robinson Street P.O. Box 1900 Orlando, Florida 32802-1900
The Issue The issue for consideration was whether Respondent's license as a registered residential contractor should be disciplined because of the alleged misconduct outlined in the two Administrative Complaints filed in this case.
Findings Of Fact At all times pertinent to the Administrative Complaint filed herein, Respondent was a registered residential contractor in the State of Florida having been issued license number RR 0010134. Michael P. Freeman (a/k/a Dennis Freeman) was at no time material to the allegations considered herein a registered, certified, or otherwise licensed individual on record with CILB in Florida. In July 1983, Respondent and Dennis Freeman agreed to form a corporation for the purpose of home construction in Florida to be known as D & S Homebuilders, Inc. (D & S). The officers of this corporation were to be: President S. A. Stone (Respondent) Vice President Dennis Freeman Sec. Treas. Kristina Freeman The letter from Respondent to his attorney, drafted and written by Ms. Via, but signed by Respondent, requesting that the corporation be established, provided that Freeman was to be responsible for all materials, maintenance, labor, bills, etc., and Respondent was to be responsible only for the "quality of work." This letter served as an agreement between Freeman and Stone which was to be separate and apart from the Articles of Incorporation. Respondent was to receive a 7% commission on "all labor done or any type of construction by Mr. Freeman or D & S Homebuilders . . .", and through his Exchange Realty office, was to receive a 5% commission on all sales of property from the corporation or Mr. Freeman. D & S was organized as a corporation until November 21, 1984, when it was involuntarily dissolved for failure to file an annual report. Though the corporation was formed and a Corporate Charter issued, and this action was taken at the request of the Respondent, the corporation was formed in the attorney's name. Neither Respondent nor the Freemans ever officially took over as officers or directors. In short, the corporation while legally born, never breathed. At no time during its life and during the period relative to the allegations contained in the Administrative Complaint herein, did the Respondent qualify the corporation with the Florida Construction Industry Licensing Board. In addition to sending the letter to the attorney requesting that the corporation be established, Mr. Stone, on November 1, 1983, entered into a handwritten agreement with Mr. Freeman, also drawn by Ms. Via, which called for the use of his license: for Freeman to pay Respondent an additional $500.00 for the use of the license on each job over $5,0000.00 and for Freeman to "be solely responsible for anything that might arise against S. A. Stone's license." The first payment was to be made on December 1, 1983, and the agreement was to last through November 1, 1984. Stone never got any financial benefit from his relationship with Freeman. The agreement mentioned above was entered into at the behest of the then Chief of Police in Chiefland, Mr. Underwood, who requested that Respondent do anything he could to keep Freeman, who was then under investigation for other misconduct in the area. Mr. Underwood corroborates this. Pursuant to this request, when Respondent suggested an arrangement with Freeman, Freeman insisted that the agreement be in writing. Stone contends that at no time did he ever intend for the agreement to be permanent nor did he ever intend to make any money out of it. He says he knew it was illegal and he entered it solely because of the request from the police. He contends, and there is no evidence to contradict his contention, that at no time did he ever receive any money from Freeman as a result of this agreement nor from the formation of D & S. On July 26, 1983, Respondent executed an authorization for Dennis Freeman to act as his authorized agent to pull permits on his behalf at the Levy County Building Department. No mention was made on this form of D & S Homebuilders, Inc. The form was prepared by Mrs. Nancy Gilbert, the administrative assistant to Mr. Davis, the Levy County Building Official. At the time in question, Mr. Stone had introduced Mr. Freeman, his agent, to pull permits and Ms. Gilbert prepared the document to do what Mr. Stone wanted. The document is written in plural terms for repeated uses. Mr. Stone contends that his intention at the time was for it to be used for a single operation and that he failed to notice the erroneous pluralism, but other evidence of record disproves this contention. While it is not the policy of the Building Office to prepare these authorizations for contractors, it is a normal practice in Levy County and other counties throughout the State to allow agents to pull permits on the license of their prime contractor or employer as was done here. There is no evidence that the Bell job, which was for the most part accomplished by Respondent, was not satisfactory. Here, the work progressed smoothly and was properly completed, but based on his dissatisfaction with Freeman's performance during this job, he indicated to Freeman that there would be no further relationship between them. Nonetheless, the authorization was not revoked and Stone signed the permit application for the Reagan house as seen below. Without that authorization, the Building Office would not have allowed Freeman to obtain any of the building permits utilized for the other construction projects referenced in the Administrative Complaint. In July 1983, the Fumeas entered into a handwritten contract with Freeman, drafted by Kristina Freeman for the construction of a house for Bertha Reagan, Mrs. Fumea's mother. The contract had a price of $24,000.00. The Fumeas were to receive $10,000.00 for their land on which the house was to be built and Freeman was to receive a $14,000.00 loan from Mrs. Reagan for materials to build the house in question. When the house was sold, the initial $24,000.00 was to be returned to Mrs. Reagan. Any profit was to be divided 40% to Mrs. Reagan, 40% to the Freemans, and 20% to the Fumeas. The contract also called for the construction of a second house upon completion of the first. By check, dated June 9, 1983, Mrs. Reagan provided Freeman with the $14,000.00 to be secured by a second mortgage on the property executed by both Freemans in favor of Bertha Reagan. Thereafter, on August 24, 1983, Respondent, acting for D & S and S. A. Stone and Dennis Freeman, applied for a construction permit to build a residence for Mrs. Reagan as called for. In support of that application, Mr. Stone also furnished an affidavit to the effect that he was the qualifying contractor for residential building for D & S in Levy County. That same day, a building permit was issued to D & S, S. A. Stone, and Dennis Freeman for construction of the house in question. Somewhat later, in August or September, 1983, Freeman began construction of the house. During their negotiations, Freeman had indicated that Respondent was his associate. Nonetheless, it was Freeman who did all the work but in September or October 1983, he quit work on the project. At that point the foundation, the floor, and the 2 x 4 framing was in. No roof, no plumbing, and no electrical work had been installed. Mr. Fumea kept calling Freeman who repeatedly promised to finish work on the property by December 1983, but never did. The house was finally completed by another builder, David Allen, in 1984, for $21,000.00 additional. Allen was unable to complete the work started by Freeman and had to tear it down. Only the original footing was utilized. Neither Mr. or Mrs. Fumea ever dealt with or saw Stone, nor at any time during the period of difficulty with the construction was any attempt made to contact him. The reasoning was that even though Freeman had indicated Stone was the "S" in D & S before the work started, they did not believe Stone had anything to do with the contract. The Fumea's knowledge of Respondent's relationship with D & S was based solely on Freeman's representations. They never dealt with Stone, never saw him at the job, nor did they complain to him when the work was not completed even though Chiefland is a small town and it would be easy to contact him. Somewhat later, on September 7, 1983, Michael (Dennis) and Kristina Freeman entered into a contract with Herman R. and Verenia A. Matthews for the construction of a home in Levy County for a contract price of approximately $21,061.45 which included $17,061.45 which was then owed to the Matthews by Freeman. Freeman was to build them a house on a lot they owned across from their residence for an investment. The $17,641.00 was made up of several loans by the Matthews to Freeman. At this time, the Matthews did not know of D & S. The loans in question had been granted on the basis of a personal friendship between the Matthews and Freeman. At the time, the Matthews were in Michigan and the loans were not secured nor was interest involved. In addition to the $17,061.45 already advanced, the Matthews were to pay an additional $4,000.00 and any sums received from the cutting of timber on the property was to also be paid to Freeman. On or about October 12, 1983, Michael Freeman, acting for D & S, applied for a construction permit to build the Matthews' house. Attached to the application was an undated, unnotarized affidavit signed by Michael Freeman indicating he was qualifying contractor for D & S. Pursuant to the application, that same day, a building permit for the construction in question, was issued. Actually, construction had started without the benefit of a permit in early September, 1983. On September 9, 1983, the Matthews gave Freeman a $1,000.00 check with second and third payments of $1,000.00 each being paid on September 22, 1983. On October 17, 1983, Mrs. Matthews gave Freeman a check for $7,000.00 of which $1,000.00 was the remaining amount due on the $4,000.00 balance and $6,000.00 was an unsecured loan. This loan was repaid immediately with an exchange check, post-dated to October 24, 1983, in the amount of $6,000.00 drawn on the account of D & S by Michael Freeman. When the Matthews ultimately deposited the check, however, it was dishonored due to insufficient funds and the $6,000.00 loan was never repaid. The Matthews first found out about D & S Homebuilders, Inc. when the Freemans in late August or September, 1983, indicated they had incorporated. Mrs. Matthews had never met the Respondent nor been aware that Respondent might be involved in the construction. Freeman had represented himself as a licensed contractor and had told the Matthews that he had rented space in Respondent's office. At no time, however, did he say that Respondent was involved in the business. On November 14, 1983, Mrs. Matthews gave a check in the amount of $7,000.00 to Kristina Freeman, as a loan to D & S since she had been told that the company was haying trouble paying its bills. This loan was never repaid. By this time, the Matthews knew well that Freeman was in financial difficulties and did not have any money, so they did not ask for their loan back. In addition, on December 2, 1983, Mrs. Matthews gave Michael Freeman a check for $850.00 as a loan for payroll and on December 12, 1983, gave him a check for an additional $200.00 as a loan to assist him to buy property on which he was to build a house for Mr. Piperski. Neither of these latter two loans were ever repaid. The house to be built for the Matthews was never completed by Freeman or D & S. Work stopped sometime in November 1983. After Freeman went to jail in January 1984, Mrs. Matthews had it finished by someone else. The home was completed by this second contractor in April 1984 and the Matthews now live in it. In addition to the amounts set out above, the Matthews also paid an additional $7,034.00 for materials and $6,590.00 for labor to complete the property. On top of this, they also paid $1,200.00 to RocLen Refrigeration for a dishonored check issued by Kris Freeman on the D & S account in January 1984 for the heating and air conditioning system. They also paid off a claim of lien in the amount of approximately $3,600.00 filed by McCoy Building Supply Center for building materials ordered by D & S for the property; approximately $240.00 to Arrington Tru-Value Hardware for miscellaneous building materials ordered by D & S for the property; and approximately $875.00 to satisfy a claim of lien filed by Keller Building Products of Ocala, based on a contract with D & S for miscellaneous building materials on the property. Mrs. Matthews did not contact Respondent about the house because as far as she was concerned, he had nothing to do with it. Freeman had told her that D & S was owned by Freeman and his wife, most of the checks she gave to D & S were made out to Freeman and endorsed by either Freeman or his wife. All cash paid into the D & S account was done through dealings with one or the other of the Freemans, and she never dealt at all with Stone. On November 25, 1983, Michael Freeman, acting for D & S, submitted a proposal to Charles Treis for the construction of a home on property in Chiefland, Florida, for a price of $14,000.00 plus a travel trailer valued at $3,000.00. On the same day, Freeman and Treis entered a standard form agreement for the construction of this home by D & S for the amount stated, payments to be made of $5,000.00 as of signing $5,000.00 upon "rough in," and $4,000.00 plus the travel trailer upon completion of specified work. Construction was to begin on November 28, 1983, and was to be completed within 60 days. The contractor was to complete the house except for painting and staining, heating and air conditioning, floor covering, and appliances. Interior trim and doors were to be supplied by the contractor for, installation by the owner. That same day, Mr. Treis gave a check in the amount of $5,000.00 to Michael Freeman as the first payment on account in accordance with the terms of the contract. This contract was amended on January 10, 1984 when Freeman agreed to install floor covering, build cabinets for the kitchen, install interior trim and doors, and paint and stain. the interior and exterior. He was also to supply wood ceiling in the living room area and kitchen and in return therefor, was to be paid $2,000.00 plus a travel trailer. On December 20, 1983, Michael Freeman, on behalf of D & S, applied for a construction permit to build the Treis house and that same day a building permit was issued to D & S. On January 6, 1984, Mr. Treis gave two checks to Mr. Freeman, one for $1,000.00 and one for $6,000.00 additional draws against the contract price. In mid-January 1984, after the foundation was poured and the interior and exterior walls were partially erected, D & S ceased all construction activity because Freeman had been arrested and jailed in Marion County. At this point, the roof had not been installed nor were doors and windows in place. No one from D & S ever returned to complete his own construction. On January 16, 1984, Mr. Treis paid Suwannee Valley Precast Company in the amount of $540.00 for a 900 gallon septic tank ordered by Mike Freeman at D & S. This bill was supposed to have been paid out of the first draw Treis gave Freeman but was not. To avoid a lien being filed against his property, Mr. Treis paid off the amount in question. Mr. Treis also paid $710.33 to Sunshine Concrete and Building Supply for materials ordered by D & S and $189.00 to Lindsey Brothers Construction for labor for laying the foundation walls, also procured by Freeman for D & S. In addition, Mr. Treis paid Harcan Lumber the amount of $4,500.00 for bad checks that Michael Freeman had written in payment for materials to go into the Treis property. As a result of all these additional debts, Mr. Treis was required to sell the property to pay off the creditors not paid by D & S. Mr. Stone was not present at any time during the transactions described regarding Mr. Treis, and Freeman made no mention of him. In fact, Mr. Treis did not know anything about Mr. Stone. It was only after Mr. Treis found out that Freeman was in jail that he had any contact with Stone. Toward the end of January 1984, when he found out that the "S" in D & S was Respondent, Treis and a friend went to Stone's office to find out what Stone intended to do about the property. Stone indicated he was not responsible for anything that Freeman did and that he would not honor the contract that had been entered into with D & S. At some time prior to November 26, 1983, in response to an advertisement placed in the Chiefland newspaper by D & S, Howard Robinson contacted Freeman to obtain an estimate for the construction of a home in Levy County. During the contract negotiations, Freeman provided Robinson with a D & S business card which bears only Freeman's name. Robinson is a resident of Largo but owns property in Levy County. On November 26, 1983, Mr. and Mrs. Robinson, entered into a contract with D & S which was signed by Michael Freeman, for the construction of a home for the price of $16,900.00. Payments were to be made one-third upon acceptance of the contract, one-third upon "rough-in" inspection, and one a third upon completion. The owner was to install floor coverings, heating and air-conditioning and appliances, and the contractor was to provide a one year warranty on construction. Construction was to begin by November 29 and the house was to be completed within 60 days. Three days later on November 29, 1983, Mrs. Robinson issued a check in the amount of $5,633.33 to D & S Homebuilders, Inc. as the first payment for the construction of their home. This check was endorsed by Michael Freeman for D & S. It should be noted here that, as previously, the business card given to Mr. Robinson by Freeman at the time of their first meeting reflects only Freeman's name, not that of Respondent. After the contract was executed, Mr. Robinson returned to Largo and did not come back to Levy County until January 1984. On December 22, 1983, Mr. Freeman came to Largo to see the Robinsons for purpose of securing the second draw. At that time, he indicated the foundation and slab had been poured and that walls erected and the roof trusses were to be installed the following day. Based on these representations, Mrs. Robinson issued another check for $5,633.33 to Freeman for the second draw under the contract even though the second draw was not due until after erection of the roof trusses. As inducement to pay prior to the time called for in the contract, Freeman agreed to amend the contract to provide air conditioning and heating, furnish the floor covering, and build a 10 x 12 foot pump house. After paying these additional sums, Mr. Robinson found out that construction on his house had not been started even though Freeman had indicated that it had. Therefore, in January 1984, Mr. Robinson made his first trip back to Chiefland since the signing of the contract to visit the construction site and discovered that the only work accomplished had been the digging of a footer. On or about January 10, 1984, Freeman, on behalf of D & S, applied for a building permit to construct the property in question and this permit was issued that same day. The only construction accomplished on Robinson's property was an oversized footer, approximately three feet wide and four or five feet deep, out of which the steel company had already taken the steel originally installed. Even after this however, Mr. Robinson did not contact Respondent because his dealings had always been with Freeman and he had never seen nor talked to Stone. Neither Stone or any of his agents or employees has ever contacted Mr. Robinson concerning either completing the construction or repaying the money paid under the contract. The only thing Mr. Robinson has ever been reimbursed with was a $300.00 payment from the County when Mr. Freeman was on a work- release program while in jail. In November 1983, Mitchell Piperski saw an ad in the paper for a home built by Mr. Freeman. This ad was in the name of D & S Builders and Mr. Piperski contacted Freeman at the phone number in the ad. Freeman thereafter came to Piperski's house and they discussed the possible construction of a home for the Piperskis. As a result of these discussions, Mr. Piperski, on December 19, 1983, entered into a contract with D & S signed by Michael and Kris Freeman for the construction of a home in Chiefland for a contract price of $16,500.00. Since Mr. Piperski did not have a lot on which to build the house, Freeman took him a see a lot which he said he, Freeman, owned. The lot in question was a five acre corner and when Piperski said he did not need so much land, Freeman said he would keep one half. Since, however, the two parties could not agree on the property, Piperski purchased a lot from someone else. A short time thereafter, the Freemans came to the Piperskis and indicated they would be in financial difficulty if the Piperskis did not buy their property and as a result, the Piperskis agreed to allow Freeman to build the house on the property which, by warranty deed on December 19, 1983, Freeman conveyed to the Piperskis. At closing Freeman was paid $5,000.00 called for upon acceptance of the contract, and $12,500.00 for the lot. During the negotiations, Freeman had told Mr. Piperski that there were three people involved in D & S. These three were Freeman, his wife, Kris, and someone else, undisclosed, who was in the real estate business. Mr. Piperski had known Stone from the lodge to which they both belonged but he had no idea that Stone was the "S" in D & S. No work on the construction of the Piperski house was ever accomplished. When Piperski called the building department, he was told that Freeman could no longer build homes because Mr. Stone had pulled the authorization for him to use Stone's license. This disclosure was made to Mr. Piperski on January 8, 1984. Prior to that date and all through the negotiations, he had no idea that Stone was involved in the transaction. That afternoon, Mr. Piperski went to a lawyer about the situation and the lawyer called Stone. When Piperski asked Stone for his $5,000.00 back, Mr. Stone said he would allow Freeman to use his license to complete the house. Notwithstanding this promise by Stone, Freeman never made any effort to secure a permit to begin construction. Mr; Piperski did not contact Stone again after that one instance because he felt Stone knew what the situation was and what had to be done. Stone, on the other hand, did not contact Piperski either, nor did Freeman, and at no time was Piperski reimbursed the $5,000.00 deposit he made under the terms of the contract. On January 9, 1984, Stone wrote to Mr. A1 Simmons, the attorney who formed the corporation known as D & S Homebuilders, Inc. In this letter Stone recalled that Simmons had formed the corporation in which Freeman was President, his wife was Secretary/Treasurer, and he, Respondent, was Vice-President. Stone also cited that there was a communications gap between Freeman and himself and as a result, asked how he could be removed as an officer of the corporation. Stone indicated that he was "going to notify the County that I am no longer going to authorize the use of my license as D & S Homes." At the bottom of the letter, he states that it constitutes official notification to Freeman and to Mr. Davis, the building official, that his license is no longer to be used under D & S Homes. By this letter, Mr. Stone recognized that as of January 9, 1984, he was still a part of D & S Homes and was aware of the use of his license by D & S under the authorization given earlier in the year. It has already been found that in November 1983, Stone and Freeman entered into an agreement for Freeman to pay Stone for the use of his license by D & S Homes. It is also noted, however, that on January 5, 1984, approximately two months later, Mr. Stone wrote to Freeman indicating his dissatisfaction with the way Freeman was managing the company and because of Freeman's failure to communicate with Stone in response to inquiry. In this letter, he makes it very clear to Freeman that if Freeman does not keep in touch, he will terminate the relationship that he has with D & S. By so doing, Stone puts to rest any question that he was still a part of D & S and agreed to Freeman's using his license for construction by that firm as late as January 5, 1984 - well after the contracts described above were entered into by Freeman. D & S had a checking account with the Bank of Florida in Chiefland on which both Respondent and Freeman were authorized to write checks. In October 1983, Mr. Freeman drafted a check to Exchange Realty, which is owned by Respondent, in the amount of $500.00 which bears the notion, "commission on burnout." This check was deposited to the account of Exchange Realty. The handwriting on the endorsement appears to be that of Penny Via as does the name of the payee. On October 24, 1983, Mr. Stone wrote a check, apparently on a counter check payable to Exchange Realty in the amount of $500.00. Again, this check is endorsed for deposit to the account of Exchange Realty and not only the endorsement but also the check itself, with the exception of the signature, appears to be drawn in the handwriting of Ms. Via. While offered to show Respondent's receipt of benefit from his association with D & S, this evidence does not do so. Respondent knew of this account, nonetheless, and agreed to be a signatory on it so that he could work on the account when Freeman was out of town. After a short period, however, he took his name off the account though he cannot remember when that was. Respondent's contention that he had little if any connection with the actual construction work accomplished by Freeman under the D & S banner is supported by the testimony of Earl Jones, a plumber, who did the plumbing work on some of the houses constructed by Freeman during the Summer of 1983. Jones was hired by Freeman who, at the time, advised him that he was a general contractor and owned the business. Freeman admitted that he was a friend of the Respondent but during the whole period of his association with D & S, Jones never dealt with Stone and he feels that his employer was Freeman, not Stone. During the period of their association, Jones had no contact at all with Respondent. All bills for services rendered were sent directly to Freeman. Andrew Sension, an electrical contractor, met Freeman when Freeman solicited bids for the drawing of house plans. Thereafter, Sension drew five house plans for Freeman through D & S and also did some electrical work. At that time, Freeman indicated that he and his wife owned D & S and throughout their relationship, Sension assumed that Freeman was licensed. He has, however, worked for Respondent but never any project where Freeman and Respondent were involved together. To his knowledge, Respondent had a good reputation in the County as a contractor. Respondent has lived in Chiefland for approximately 15 years and is licensed as a contractor in both Florida and Virginia where he operated as a general contractor for 10 or 11 years before coming to Florida. In addition, he worked as a contractor in Ft. Lauderdale for 5 or 6 years and in all his construction history, never had any disciplinary action taken against him. Stone met Freeman some time in the middle of 1983 when Freeman came to his real estate office to buy a lot to build on. Later on, Freeman came back and said his brother an attorney, had suggested he contact Stone to form a corporation to build homes. At the time, Freeman, whose real name was Michael, was using the name Dennis Freeman, actually the name of his brother. When Stone checked Freeman's reputation out with the credit bureau, he checked the name, Dennis Freeman, and found that there was no adverse comments recorded. He did not know at the time that he was checking the record of a different individual. Nonetheless, satisfied with the results of his inquiry, and willing to go into the proposition suggested by Freeman, the parties made an appointment with attorney Simmons to form a corporation. Stone contends, and Simmons concurs, that though the corporation was formed, it never became operative because while formed in the name of Simmons for incorporation purposes, the transfer of authority to the true officers, Stone, Freeman, and Freeman's wife, was never accomplished. Were this all there were to it, there would be little difficulty in accepting Stone's exculpatory rationale. The fact remains, however, that his conduct and communications with his attorney in January 1984, several months after the corporation was formed, clearly reveals that though the official transfer of names never took place, he was well aware that D & S was active, that Freeman was building homes under the D & S banner, and that Freeman was using his, Stone's license, to do so with Stone's permission. The letter of January 9, 1984, to the lawyer clearly defeats Stone's contention that he felt the authorization for Freeman to pull permits was a one time proposition. If that were the case, he would not have indicated in these later communications that he was aware of what was going on and wished it stopped as of that time. There is no doubt that Respondent never met Mrs. Reagan, the Fumeas, the Matthews, the Robinsons, Mr. Treis, or the Piperskis in the capacity of a contractor. None of the people ever indicated that they dealt with Stone. Respondent admits that his contractor's license was withdrawn by the County but contends that this action was taken at a meeting to which he was not invited and did not attend. He did pot know of the action taken, he claims, until he read it in the newspaper. There is no evidence to contradict this. He firmly believes that his problem with the County is the direct result of the fact that he failed to contribute Mr. Davis' church when asked-to do so at the time he executed the general authorization for Freeman to use his license. Whether Mr. Davis is the complainant and the cause of the disciplinary action being taken here is immaterial however, and in any case, there is no evidence to support Respondent's contention. As for Freeman, on January 30, 1984, he entered a guilty plea to one count of a third degree felony by failing to redeliver and one count of a third degree felony by forgery and committing grand theft. Thereafter, he was found guilty of the charges and placed on probation for two years.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is, therefore RECOMMENDED that the Administrative Complaint in DOAH Case No. 85-1468 be dismissed. It is further recommended that based on the violations established in DOAH Case No. 85-0690, Respondent's license as a registered general contractor be suspended for six months and that thereafter Respondent be placed on probation for a period of three years. RECOMMENDED in Tallahassee, Florida this 16th day of January, 1986. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of January, 1986. COPIES FURNISHED W. Douglas Beason, Esquire 130 N. Monroe Street Tallahassee, Florida 32301 Jeffrey J. Fitos, Esquire 1 East Silver Springs Blvd. Ocala, Florida 32670 James Linnan Executive Director Construction Industry Licensing Board P. O. Box 2, Jacksonville, Florida Fred Roche Secretary Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.57(2), Florida Statutes, on all Proposed Findings of Fact submitted by parties to this case. RULINGS ON PETITIONER'S SUBMISSION 1. Adopted in Findings of Fact 1 and 3. 2 · Adopted in Finding of Fact 1. Adopted in substance in Finding of Fact 7. Sentence 1 through 3 are irrelevant. Sentence 4 is accepted as to it relates to the letter being prepared by the building department but rejected as to this being done at Respondent's request. Adopted in Finding of Fact 2. Adopted in Finding of Fact 2. Adopted in Finding of Fact 2. Adopted in Finding of Fact 2. Adopted in Finding of Fact 2. 1O. Adopted in Finding of Fact 4. 11. Adopted in Finding of Fact 4. 12. Adopted in Finding of Fact 4. 13. Adopted in Finding of Fact 4. 14. Adopted in Finding of Fact 2. 15. Adopted in Finding of Fact 10 16. Adopted in Finding of Fact 10. Adopted in Finding of Fact 12, except for the first sentence which is irrelevant. Adopted in Finding of Fact 11. Adopted in Finding of Fact 12. Adopted in Finding of Fact 12, except for the last sentence which implied Freeman signed as affiant when in fact he signed as a witness. Adopted in Finding of Fact 12. Adopted in Finding of Fact 15. Sentence 1 rejected as contra to the evidence. Sentence 2 adopted in Finding of Fact 13. Adopted in Finding of Fact 14. Rejected as irrelevant and misleading. There is no indication in the record that Respondent knew of this contract or that any demand for reimbursement was made upon him. Adopted in Finding of Fact 17. Adopted in Finding of Fact 17 and 22, except for sentences 3 & 4, which are rejected as irrelevant. Rejected as irrelevant and inaccurate. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Adopted in Finding of Fact 19. Adopted in Finding of Fact 19. Adopted in Finding of Fact 20. Adopted in Finding of Fact 20. Adopted in Finding of Fact 24. Adopted in Finding of Fact 24. Adopted in Finding of Fact 24. Adopted in Finding of Fact 24. Adopted in Finding of Fact 24. Rejected as irrelevant. Adopted in Finding of Fact 24. Rejected as irrelevant. Adopted in Finding of Fact 24. Rejected as irrelevant. Adopted in Finding of Fact 24. Adopted in Finding of Fact 26. Adopted in Finding of Fact 26. Adopted in Finding of Fact 26. Adopted in Finding of Fact 28. Adopted in Finding of Fact 28. Adopted in Finding of Fact 29. Adopted in Finding of Fact 30. Adopted in Finding of Fact 30. Adopted in Finding of Fact 30. Adopted in Finding of Fact 30. Adopted in Finding of Fact 31. Adopted in Finding of Fact 32. Adopted in Finding of Fact 32. Adopted in Finding of Fact 35, except that November 6 in the proposal should be November 26. Adopted in Finding of Fact 35. Adopted in Finding of Fact 35. Adopted in Finding of Fact 34. Adopted in Finding of Fact 34 and 35. Adopted in Finding of Fact 36. Adopted in Finding of Fact 36. Adopted in Finding of Fact 36. Adopted in Finding of Fact 37. Adopted in Finding of Fact 38. Adopted in Finding of Fact 39. Adopted in Finding of Fact 41. Accepted but not adopted as irrelevant. Adopted in Finding of Fact 41. Adopted in Finding of Fact 43. Adopted n Finding of Fact 45 and 46, except that it was the building office that advised Piperski that Freeman did not have a permit, not Respondent. Adopted in Finding of Fact 46. Adopted in Finding of Fact 62. Adopted in Finding of Fact 62. RULINGS ON RESPONDENT'S SUBMISSION Adopted in Finding of Fact 1. Sentence 1 through 3 adopted in Finding of Fact 7. Sentence 4 rejected as contra to the weight of the evidence. Sentence 5 and 6 adopted in Finding of Fact 8. Sentences 1 and 2 adopted in Finding of Fact 9. Sentences 3 through 5 rejected as contra to the weight of the evidence. Sentences 1 and 2 adopted in Findings of Fact 26- 29. Sentence 3 rejected as not being a Finding of Fact but a Conclusion of Law. Sentence 1 rejected as contra to the evidence. Mrs. Reagan did not sign the contract. Mrs. Fumea did. Sentence 2 adopted in Finding of Fact 15. Sentence 3 adopted in Finding of Fact 12. Sentence 4 adopted in general. Sentences 1 and 2 adopted in Finding of Fact 17, 35 and 41. Sentence 3 rejected by contra to the weight of the evidence. Sentence 4 is rejected as irrelevant. Sentence 5 is ejected as contra to the weight of the evidence in that he failed to show the proper concern for the use of his licenses. Rejected as irrelevant to the issues herein. 8 and 9. Adopted in Finding of Fact 4. Adopted in Finding of Fact 62. Adopted as a general fact. Adopted in Finding of Fact 61. Adopted in Findings of Fact 52-55.
The Issue The issues in this case are whether the respondents, Dorothea L. Prisament and Warricks Real Estate , Inc., should be disciplined on charges filed in a six-count Administrative Complaint, three counts for each respondent, and alleging that the respondents: (1) were culpably negligent in allowing their escrow account to have a negative balance, in violation of Section 475.25(1)(b), Florida Statutes (1989); (2) failed to maintain trust funds in a properly maintained escrow account, in violation of Section 475.25(1)(k), Florida Statutes (1989); and (3) failed to maintain a proper office sign, in violation of F.A.C. Rule 21V-10.024 and Sections 475.25(1)(e) and 475.22, Florida Statutes (1989).
Findings Of Fact Dorothea L. Prisament and Warricks Real Estate, Inc., are now, and were at all times material hereto, licensed as real estate brokers in the State of Florida. Dorothea L. Prisament was the active real estate broker for the corporate broker, Warricks Real Estate. On or about August 16, 1989, investigator Marjorie G. May conducted an office inspection and audit of the escrow accounts of the respondents. Ms. May also reviewed the outer office of the respondents. The entrance sign did not have the name of Dorothea L. Prisament on it; however, the sign did have Warricks Real Estate correctly identified and identified as a licensed real estate broker. Ms. May advised Ms. Prisament of the fact that Ms. Prisament's name needed to be on the sign and identified as a real estate broker. Ms. Prisament had a new sign made which fully complies with the statutes and rules. There was no evidence introduced at hearing to show that the escrow account of the respondents had a shortage in any amount; directly to the contrary, both the Department of Professional Regulation investigator and Ms. Prisament agreed that there was no shortage in the account.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and in light of the fact both that the respondents' violation was a very minor and technical one which was immediately corrected and that the respondents had to undergo the costs of defense of this case and suffer the mental duress of defending this case, it is recommended that the Florida Real Estate Commission enter a final order dismissing Counts I through IV of the Administrative Complaint and reprimanding the respondents for a minor and technical violation under Counts V and VI. RECOMMENDED this 20th day of July, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 20th day of July, 1990. COPIES FURNISHED: Janine A. Bamping, Esquire Department of Professional Regulation, Division of Real Estate Post Office Box 1900 400 West Robinson Street Orlando, Florida 32801 Salvatore A. Carpino, Esquire One Urban Centre, Suite 750 4830 West Kennedy Boulevard Tampa, Florida 33609 Darlene F. Keller Director, Division of Real Estate 400 West Robinson street Post Office Box 1900 Orlando, Florida 32801 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729
Findings Of Fact At all times material hereto, the Respondent was licensed as a certified building contractor, having been issued license number CB C012964 by the State of Florida. At all times material hereto, the Respondent was licensed as an individual only. On or about April 14, 1982, Cedar Homes of Pinellas, Inc., entered into a contract with Mary Fedico to enclose the carport on her home, which was located at 2085 Victory Avenue, Largo, Florida. The contract price was $5,000.00. Mike Fredricks acted as the saleman for this contract on behalf of Cedar Homes of Pinellas, Inc. At all times material hereto, Cedar Homes of Pinellas, Inc., was owned by Kenneth Larrow. The only employees of this corporation were Kenneth Larrow and his son. Cedar Homes of Pinellas, Inc., was formed in January of 1982 for the purpose of performing room additions and other types of construction. On April 14, 1982, the sole officer of Cedar Homes of Pinellas, Inc., was Kenneth Larrow, who also served as a director. An attorney John L. Riley, was the registered agent. At all times pertinent hereto, Kenneth Larrow was not licensed to engage in the business of contracting in the State of Florida. On or about April 16, 1982, Kenneth Larrow and his salesman, Mike Fredricks, went to the City of Largo Building Department to obtain a construction permit for the enclosure of Mary Fedico's carport. Neither of these persons wash qualified, or licensed, to engage in the business of contracting in the City of Largo. Therefore, the Largo Building Department refused to issue a permit for this construction. When Kenneth Larrow and Mike Fredricks were unable to obtain a permit for the construction of the addition to Mary Fedico's home, they informed the Largo Building Department that the qualifier for Cedar Homes of Pinellas, Inc., was Barry L. Critoph, the Respondent. The Largo Building Department informed Mr. Larrow and Mr. Fredricks that the Respondent had to sign the permit application in order for a permit to be issued for the construction to be performed on Mary Fedico's home. On or about April 16, 1982, the Respondent applied for and obtained a construction permit for the enclosure of Mary Fedico's carport. This permit was issued to Cedar Homes of Pinellas, Inc., with the Respondent as the qualifying contractor. At all times relevant hereto, the Respondent did not qualify Cedar Homes of Pinellas, Inc., with the Construction Industry Licensing Board. At all pertinent times, the Respondent did not have in his possession a certificate issued by the Construction Industry Licensing Board with the notation "Cedar Homes of Pinellas Inc." thereon. Moreover, the Respondent admitted he was not positive that he had properly qualified Cedar Homes of Pinellas Inc., when he obtained the permit for the enclosure of Mary Fedico's carport. On or about May 5, 1982, Cedar Homes of Pinellas, Inc., entered into a second contract with Mary Fedico to finish the interior of the carport which was to be enclosed by Cedar Homes of Pinellas, Inc., pursuant to the prior contract, for a price of $710. Kenneth Larrow began to perform the work required under the terms of the two contracts. Mary Fedico never saw the Respondent at the project site. Mr. Larrow hired all subcontractors and was responsible for paying them. He was also responsible for supervision of the construction of the carport enclosure. The Respondent did not know that there was a second contract for interior work in Mary Fedico's carport enclosure, and the Respondent performed no work on the project. He did drive his car by the site three times, but he never entered onto the project, and he simply viewed the construction being performed from the street. The Respondent had no knowledge as to who the subcontractors were on the Fedico project, and he had no responsibility for hiring them. He had no knowledge of the money that was being obtained from this project, and he did not know whether or not the subcontractors were being paid. At a time uncertain, construction of the carport enclosure addition to the Fedico home began to slow down. When Mary Fedico began to receive notices from subcontractors that they were not being paid, she contacted Kenneth Larrow about problems with the construction. However, when Mr. Larrow was unable to satisfactorily respond to Mary Fedico's questions regarding the work, she and her son-in-law took over the project, completed it, and paid all the subcontractors. The cost of completion was between $2,000 and $2,500 more than the contract price had been. As a result of the Fedico contracts noted above, Kenneth Larrow was charged with using the designation of "contractor" without a license, in two counts. Kenneth Larrow plead nolo contendere to these charges, and he was sentenced to pay a fine of $250 plus court costs. Mary Fedico first became aware that the Respondent had some involvement with the construction of the addition to her home when she was subpoenaed to appear at this court proceeding. Prior thereto, she had not been notified by either the Respondent or Mr. Larrow, that the Respondent had any connection with her carport project. The Respondent's involvement with Cedar Homes of Pinellas Inc., was limited to obtaining permits and "supervision". As compensation therefor, the Respondent was to received two percent of the gross sales of the company. He was supposed to check jobs and verify construction, but this supervision was to consist of checking the projects contracted for by Cedar Homes of Pinellas Inc., at his own convenience, to determine if these projects were "okay". The Respondent was not connected with the financial operation of Cedar Homes of Pinellas Inc., he had no financial control over the operations of the corporation, and he could not sign checks. All subcontractors were hired and paid by Kenneth Larrow. Mr. Larrow and his salesmen actually entered into the contracts, and the Respondent had no involvement with the contracts except to determine if work contracted for was structurally sound. Kenneth Larrow actually supervised all of the construction projects of Cedar Homes of Pinellas Inc., on a daily basis, and the Respondent was not aware of all the projects entered into by the corporation. Kenneth Larrow eventually made restitution to Mary Fedico in the amount of $1,250 for the problems which occurred in connection with the carport enclosure work on her home.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that license number CB C012964 held by the Respondent, Barry L. Critoph, be suspended for two years. THIS RECOMMENDED ORDER entered this 2nd day of December, 1983. WILLIAM B. THOMAS, 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 December, 1983. COPIES FURNISHED: Stephanie A. Daniel, Esquire 130 North Monroe Street Tallahassee, Florida 32301 John J. Fogarty, Esquire 327 South Garden Avenue Clearwater, Florida 33517 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
