The Issue Whether the Respondent committed the violations alleged in the Amended Administrative Complaint dated July 15, 1998, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Business and Professional Regulation is the state agency responsible for investigating and prosecuting complaints made to the Department for violations of Chapter 489, Part I, Florida Statutes. Sections 489.131(7)(e) and 455.225, Florida Statutes. Pursuant to Section 489.129(1), the Construction Industry Licensing Board ("Board") is the entity responsible for imposing discipline for any of the violations set forth in that section. At all times material to this proceeding, Mr. Peters was licensed by the Board as a certified roofing contractor, having been issued license number CC C029551. This license authorized him to engage in business as a roofing contractor as an individual and not as the qualifying agent of any business entity. Victor Sher owned and resided in a home located at East Tropical Way in Plantation, Broward County, Florida. On or about June 9, 1993, and July 1, 1993, Mr. Sher accepted two written proposals to replace the roof on his home, which proposals were submitted to him by R. J. Bonneau on behalf of RJB International. The proposals were signed by Mr. Sher and by "R. J. Bonneau, P.E., for the firm." Pursuant to these contracts, Mr. Sher paid a deposit in the amount of $5,500 to RJB International by check dated June 7, 1993; and, by check dated July 1, 1993, Mr. Sher paid RJB International an additional $800. Also, by check dated July 1, 1993, Mr. Sher paid Monier, a roof tile supplier, $5,738.35 for materials. At some point after the first contract between Mr. Sher and RJB International was executed, Mr. Bonneau asked Mr. Peters to submit an estimate of the cost of re-roofing Mr. Sher's house. Mr. Peters submitted an estimate of $16,520 based on specifications provided by Mr. Bonneau,1 and Mr. Bonneau accepted the estimate. It was Mr. Peters' understanding that RJB International was the general contractor for the project, operating under a contract with Mr. Sher, and that he was the roofing subcontractor for the project, operating under a "contract" with RJB International based on Mr. Bonneau's acceptance of his estimate for the re-roofing work. He expected to be paid by RJB International. On or about June 22, 1993, Mr. Peters obtained a building permit from the City of Plantation for the roof replacement project on Mr. Sher's residence. Mr. Peters began working on the Sher re-roofing project on or about June 23, 1993. By checks dated July 23, August 16, August 19, and August 23, 1993, Mr. Sher paid Mr. Peters $800, $2,432, $2,000, and $1,000, respectively, totaling $6,232. Mr. Peters was surprised to receive payment directly from Mr. Sher, but he assumed that that was the arrangement between Mr. Sher and RJB International. He never received any of the $6,200 Mr. Sher paid to RJB International. Mr. Peters worked on the project until late August or early September 1993, when he stopped working on the project because he had not received payment for the work completed to date. Mr. Peters requested payment from Mr. Sher, only to be referred to RJB International, which in turn, referred him to Mr. Sher. When Mr. Peters stopped working on the Sher residence, he advised Mr. Sher that he would complete the work as soon as he received the payments he considered due. Mr. Peters estimated that, when he left the job, $1,000 to $1,500 worth of work remained to complete the re-roofing project. He did not hear anything more from Mr. Sher or RJB International, and, in 1995, he moved to Ohio. After Mr. Peters stopped work on Mr. Sher's roof, Mr. Sher obtained an owner's building permit and completed the project. In September 1994, Mr. Sher filed a five-count complaint against Mr. Peters and Rosaire J. Bonneau d/b/a RJB International in the Circuit Court of the Seventeenth Judicial Circuit in Broward County, Florida, in which he sought to recover damages he allegedly suffered as a result of re-roofing project; three counts of the complaint, breach of contract, negligence, and conversion, named only Mr. Peters as defendant. A default was entered against Mr. Peters, and, in a final judgment entered on the default on May 19, 1995, Mr. Peters was ordered to pay to Mr. Sher $28,142.70 in damages, plus $1,740.00 in attorney's fees and costs, for a total of $29,882.70, with interest accruing on this sum at the rate of eight percent per year. In addition, Mr. Peters was assessed $4,447.45 in prejudgment interest. Mr. Peters was listed on the judgment as a person to whom a copy was furnished, but he did not receive the copy. Mr. Peters first learned of the existence of the judgment in October 1997, when he received a copy of the Department's Administrative Complaint dated May 31, 1996. In late 1997 or early 1998, Mr. Peters received notification of the judgment from another source, and he also received a letter from Mr. Sher's insurance company advising him that they had paid Mr. Sher approximately $30,000 in damages and were looking to Mr. Peters for reimbursement. Mr. Peters subsequently retained an attorney to try to negotiate with Mr. Sher. Mr. Peters was willing to pay $1,000 to satisfy the judgment because he believed that the roof could have been finished for that amount. Mr. Sher did not accept the offer. In a letter to Mr. Peter's attorney dated August 26, 1998, Mr. Sher's attorney enclosed a copy of the judgment against Mr. Peters and indicated that his client would be willing to negotiate a payment arrangement with Mr. Peters. At the time of the final hearing, Mr. Peters had not satisfied the judgment in whole or in part or made any arrangements with Mr. Sher for payment of the award; Mr. Peters had not moved to set aside, vacate, or discharge the judgment in bankruptcy; and he had not appealed the judgment.2 Mr. Peters has been subject to two previous disciplinary actions relating to his state certification as a roofing contractor. The first disciplinary action against Mr. Peters resulted in entry of a final order in January 1988, in which he was found guilty of contracting in a name not on his license and of failing to qualify a business organization; an administrative fine of $1,000 was imposed. The second disciplinary action resulted in entry of a final order in January 1994, in which he was found guilty of failing to have his license number on a contract and imposing an administrative fine of $100. The Department provided an affidavit at the hearing in which it claimed that it had incurred costs of investigating and prosecuting this case totaling $879.35, excluding legal costs.
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: Dismissing Counts I through VI of the Amended Administrative Complaint against Steve G. Peters; Finding Mr. Peters guilty of having violated Section 489.129(1)(r), Florida Statutes, as alleged in Count VII of the Amended Administrative Complaint; Imposing an administrative fine on Mr. Peters in the amount of $2,000; Requiring that Mr. Peters pay all reasonable costs of investigation and prosecution associated with the Department of Business and Professional Regulation's investigation and prosecution of the charges set forth in the Amended Administrative Complaint; and Requiring that Mr. Peters either pay restitution to Victor Sher in the amount of $28,142.70 or, in the alternative, provide proof of satisfaction of the May 9, 1995, civil judgment. DONE AND ENTERED this 16th day of August, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 16th day of August, 1999.
Findings Of Fact Respondent, Susan Shilling Howell, was first licensed as a registered building contractor in Florida in October, 1981. License Number RB 0040698 was issued to her, qualifying M. B. Howell Homes, located at 2601 Dale Avenue, Panama City Beach, Florida, 32404. This license expired on June 30, 1983 and no address changes were made to the records pertinent to it during period of activity, nor has it been renewed since it expired. On March 23, 1983, William Carrier and J. Paula Carrier, his wife, entered into a contract with Respondent and her husband, M. B. Howell, to purchase a house, constructed by their company, located in Bay County, Florida. Closing was scheduled for some time in April, 1983, but because the house was not completed sufficiently to satisfy the Carriers, the closing was delayed and they did not move in until sometime in June, 1983. Even at that point, there remained a substantial list of discrepancies which required correction by the builder. These included such things as: a badly poured driveway - this was replaced by Respondent once, but when found to be still unsatisfactory, Respondent refused to correct. poor interior painting, poor exterior painting, and a damaged tub in the bathroom. Mr. Carrier contacted Respondent regarding these discrepancies right after he moved in. Both Respondent and her husband, the actual builder, came to the house and looked at the items and while a few of the minor discrepancies were corrected, the major ones were not. In Carrier's estimation, 80 percent of the problems were not fixed. Though he asked Respondent to come back and fix the items several times, with the last request by letter dated October 18, 1983, no one did and on November 14, 1983, he asked another contractor to come in and make the necessary repairs. During all this time, Respondent and M. B. Howell Homes were using the address, 126 Rose Coral Drive, (their home), as their place of business. On January 12, 1984, Respondent went to the Bay County Building Office and purchased a building permit in the name of M. B. Howell Homes, listing herself as contractor and her expired license on the application form along with the address, 126 Rose Coral Drive, as the business address. Permit Number 9472 was issued. This entire transaction was observed by Elizabeth O'Connor, a permit clerk, who recognized Respondent as the applicant. Thereafter, on March 15, 1984, Respondent again applied for a building permit for M. B. Howell Homes, at the same office, this time dealing directly with Ms. O'Connor. Again she listed her expired license number and the above address on the application form and was issued permit 9733. On both occasions, her license had expired and had not been renewed and she made no mention of the fact that the license was delinquent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that, the registration of Respondent, SUSAN SHILLING HOWELL, as a registered building contractor in Florida be revoked. RECOMMENDED in Tallahassee, Florida, this 8th day of March, 1985. ARNOLD H. POLLOCK 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 8th day of March, 1985. COPIES FURNISHED: W. Douglas Beason, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Susan Shilling Howell 126 Rose Coral Drive Panama City Beach, Florida 32407
Findings Of Fact At all times pertinent to the allegations contained in the Administrative Complaint, Respondent John G. Gordon, Jr. was licensed by the State of Florida as a registered roofing contractor by License No. RC-0032501, first issued to Respondent, qualifying as an individual in 1978 and continually renewed as such since then. On June 4, 1981, Respondent was called by Ms. Allene S. Gilbert to give her an estimate on re-roofing the two flat portions of her house roof. When he went to the house, he went up on the roof by himself to look and, when he came down, he gave her an estimate of $1,400 to re-roof the two flat sections on either side of the gabled center section. He did not then, or any time thereafter, prior to doing the work, indicate there was anything wrong with the siding which connected down from the gabled roof to the flat roof. After making his inspection and giving the estimate which Ms. Gilbert accepted, he entered into an oral contract with her which, when reduced to unsigned memo form, provided that he would tear off the old roof down to the deck and replace it with a 15-year built up roof consisting of a total of five layers. He also agreed to replace the rock and all metal around the edges of the house. He specifically stated that the work he did, both materials and his workmanship, was guaranteed for 15 years against leaks. Respondent indicates he found that the metal flashing along the side of the house where the flat roof joins the siding was rusted out and he replaced it. He contends that this rust was due to the deteriorated (rotten) condition of the lap siding above the flat roof which allowed water to get in behind the flashing. In any case, during the first rain after the completion of the work, the preexisting leaks in the bedroom which prompted the roof replacement were worse and additional leaks developed inside the house. The leakage was so severe, the bathroom ceiling caved in. Ms. Gilbert called Respondent many times to get him to come out and repair the leaks, but never was able to speak with him personally. Each time she called, she would leave a message with whomever answered the phone, requesting that he come out or call, and was assured that these messages were getting relayed to Respondent, but he never returned any call and, to the best of her knowledge, he never came to her house again. However, she works during the day and would not know if he was there or not. No neighbor told her they saw someone there, and she received no note or other indication that the Respondent had come. Respondent admits that having once responded to her earlier call and seeing that the leaking was caused by the condition of the siding for which he was not responsible and about which he had previously done nothing, he was satisfied that his work was done properly and he did not call back or ever respond to any of Ms. Gilbert's other calls. He contends that the problem was not caused by him or a part of the work he had done. Therefore, he was not responsible for it. Ms. Gilbert contends, after trying to get Respondent to honor his guarantee for six months, she gave up and had someone else to do the job. The leaks are now repaired and the siding which Respondent stated was rotten, though painted once since then, has not been replaced or repaired. Respondent having entered into the contract with Ms. Gilbert, began and completed the entire project without either (1) having an occupational license as required by Section 14-39, Ordinance of the City of Fort Walton Beach; or, (2) securing a permit for the repair as required by Section 106.1, Standard Building Code, incorporated into the Ordinance of the City of Fort Walton Beach.
Recommendation Based on the foregoing, therefore, it is RECOMMENDED that Respondent pay an administrative fine of $250 and that he be placed on probation for six (6) months. DONE AND ENTERED this 9th day of May 1984 in Tallahassee, Florida. ARNOLD H. POLLOCK 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 9th day of May 1984. COPIES FURNISHED: Douglas A. Shropshire, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. John G. Gordon Post Office Box 498 Destine, Florida 32541 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Respondent, a licensed general contractor, committed the violations alleged in the three-count Administrative Complaint filed by Petitioner and the penalties, if any, that should be imposed.
Findings Of Fact Respondent is the agency of the State of Florida with the responsibility to regulate building contracting. At all times relevant to this proceeding, Respondent has been licensed as a certified general contractor, having been issued license number CG C058340 in 1996. At all times relevant to this proceeding, Ms. McKinney owned and resided in a house (the House) in Opa Locka, Florida. Ms. McKinney’s mother, Mattie P. Mathis, also lived in the House. In 2001, Ms. McKinney solicited bids for an addition she wanted to put on the House. Ms. McKinney and her mother, Ms. Mathis, planned to pay for the addition with life insurance proceeds on the life of Ms. Mathis’s deceased daughter (Ms. McKinney’s sister). On the recommendation of a colleague at her work, Ms. McKinney asked Willie Muse, Jr., to bid on the work. Based on the bids she received, Ms. McKinney hired Mr. Muse to construct the addition to the House. Ms. McKinney told Mr. Muse that she wanted all work to comply with all applicable permitting requirements and laws. Mr. Muse represented to Ms. McKinney that he would get the necessary building permits and that the work would comply with all applicable laws. On July 18, 2001, Ms. McKinney and Ms. Mathis entered into a written contract with Mr. Muse whereby Mr. Muse agreed to construct the addition for the sum of $45,000.00. Mr. Muse has never been licensed as a general contractor in Florida. Ms. McKinney thought Mr. Muse was a licensed contractor and would not have entered into a contract with him if she had known that he was not licensed. Pursuant to the contract, Ms. McKinney and Ms. Mathis paid Mr. Muse the following amounts on the following dates: $6,000.00 on July 20, 2001; $7,500.00 on October 10, 2001; and $13,500.00 on November 2, 2001; for a total of $27,000.00. On or about August 21, 2001, Mr. Muse brought to Ms. McKinney a building permit application form for her to sign. The application form had been filled out before Mr. Muse presented it to Ms. McKinney. Respondent was not present when Mr. Muse presented the form to Ms. McKinney. Respondent’s name, signature, and contractor’s license number appeared on the application form when Mr. Muse presented the form to Ms. McKinney. Ms. McKinney signed the form on August 21, 2001. Ms. McKinney saw Respondent’s name for the first time when she read the building permit application form. Prior to that time, Ms. McKinney and Ms. Mathis had never known or heard of Respondent. At all times relevant to this proceeding, Respondent knew that Mr. Muse was not a licensed contractor. Mr. Muse submitted the building permit application form to the Miami-Dade County Building Department (Building Department), which issued a building permit for the work on the House on October 5, 2001. Mr. Muse commenced working on the House in October 2001, but he never finished. After he received the payment in November 2001, Mr. Muse stopped working on the House for an extended period of time. During that time, Ms. McKinney attempted on several occasions to persuade Mr. Muse to resume work on the House. Prior to stopping work on the House, Mr. Muse removed a portion of the roof of the existing structure, which exposed the interior of the House to the elements. That exposure resulted in extensive damages to the House, including the collapse of the kitchen ceiling from water intrusion. By letter dated April 15, 2002, the Building Department advised Ms. McKinney that her building permit would expire in approximately 30 days. That letter prompted Ms. McKinney to contact the Building Department, where she was told that Respondent was her contractor, not Mr. Muse. Ms. McKinney secured information (from the face of the building permit) that enabled her to contact Respondent’s mother.3 That contact resulted in two meetings between Ms. McKinney and Respondent towards the end of April 2002. During the first meeting, Ms. McKinney related to Respondent the history of the project, including the amounts that had been paid to Mr. Muse. She also showed him the work that had been done and the damages that had occurred. During the second meeting, Mr. Muse was in attendance. Ms. McKinney, Ms. Mathis, and Respondent reached a verbal understanding that was not reduced to writing. They agreed that Respondent would finish the work on the House for the unpaid balance of the contract price $45,000.00 less $27,000.00 paid to Mr. Muse, which equals $18,000.00.4 The parties agreed that Respondent would pay for labor and that Ms. McKinney and Ms. Mathis would pay material suppliers directly and receive credit toward the contract price for such payments. The parties contemplated that Mr. Muse would perform most of the labor because of the monies he had already received. On the basis of the verbal contract, Respondent resumed the work on the House. On June 12, 2002, Respondent presented a draw request for $3,500.00 for electrical, plumbing, and roofing work that had been performed. Ms. Mathis wrote Respondent a check in the amount of $3,500.00 for that work. Ms. McKinney was opposed to paying Respondent the sum of $3,500.00 because she believed he had not completed the work for which he was billing. Ms. Mathis paid that sum despite Ms. McKinney’s opposition. At some undetermined time following June 12, 2002, Ms. McKinney told Respondent that she did not want Mr. Muse working on the House. Respondent then asked to be paid in advance for work to be done on the House because he would have to pay his laborers. Ms. McKinney and Ms. Mathis would not agree to payment in advance. In July 2002, the project was not complete and Respondent’s progress on the work on the House became unsatisfactory to Ms. McKinney. On October 14, 2002, Ms. McKinney filed a complaint against Respondent with Petitioner, claiming, among other things, that Respondent had abandoned the project. Her complaint alleged that work ended on the project in July 2002. At some undetermined time between June and October 2002, Ms. McKinney filed a criminal complaint against Mr. Muse, which resulted in criminal misdemeanor charges being filed against him in Miami-Dade County Court. After she filed the criminal complaint against Mr. Muse, Ms. McKinney told Respondent that she wanted to wait to proceed with the project until she knew what was going to happen with her criminal complaint. In the criminal proceeding, the Court ordered Mr. Muse on April 11, 2003, to pay restitution to Ms. McKinney in the amount of $16,008.04, payable in monthly installments of $300.00. On March 2, 2004, the Court reduced the amount of restitution to $4,000.00, payable in monthly installments of $50.00 beginning April 1, 2004. As of the date of the final hearing in this proceeding, Mr. Muse had paid Ms. McKinney restitution in the total amount of $750.00. As part of the criminal proceeding, Respondent was asked to give his opinion as to the value of the work completed by Mr. Muse and his estimated cost of completing the work. Respondent valued the work completed by Mr. Muse at $14,073.75 (labor and materials). Respondent estimated that it would cost $22,200.00 to complete the project. Both estimates were dated March 23, 2003. On October 1, 2003, Theodore R. Gay, Assistant General Counsel for Petitioner wrote Ms. McKinney the following letter pertaining to the complaint she had filed in October 2002: The Legal Department has evaluated your complaint against the above named contractor [Respondent]. After reviewing the evidence gathered during the investigation of the referenced matter, we have determined that in accordance with the rules and policies of the Construction Industry Licensing Board, this case is appropriately closed with the issuance of a Letter of Caution to the contractor. Because this case has been dismissed without a finding of probable cause, the file will remain confidential and exempt from the public records. On January 6, 2004, Ms. McKinney wrote Mr. Gay a letter that provided, in part, as follows: This letter is a request to re-open the case [against Respondent] because as prior conversation (sic) when I spoke to you in late August 2003 or early September 2003, I informed you that Mr. Jones told me that he would help me as much as possible to complete the construction on my property. Since your letter that stated you didn’t find any error on Mr. Jones’ behalf, I have not heard or seen him since October 2003, nor has any work been performed on my property. . . . Respondent came back to the House after October 2003 and talked to Ms. McKinney about the work. Ms. McKinney told him that she would pay up to a total of $45,000.00 for the work, but that she would not pay above that figure. Because of the estimate Respondent provided in the criminal proceeding dated March 23, 2003, Ms. McKinney believed that Respondent wanted $22,0000.00 to complete the work. However, Respondent never told her that he would not complete the work for a sum equal to $45,000.00 less the sums that had already been paid. Ms. McKinney would not pay Respondent for work until after the work was completed. After Mr. Gay’s letter dismissing the complaint that Ms. McKinney had filed, Respondent did no further work on the House, but he did have further conversations about the project. Ms. McKinney and Respondent could not agree on payment terms for Respondent to complete the project. Ms. McKinney testified that she did not fire Respondent. However, it is clear that she would not let Mr. Muse do further work on her house and she would not pay Respondent until after the work had been done. Ms. McKinney changed the terms of her verbal contract with Respondent by prohibiting Mr. Muse from working on the project. In November 2003, Ms. McKinney and Ms. Mathis had an argument over the money that had been spent on the house. Ms. McKinney talked to Respondent about his helping her obtain a mortgage on the house to pay for the balance of the work on the House. Ms. McKinney told Respondent that she did not want Respondent to ask her mother for any more money. Ms. McKinney told Respondent that she would use him as the contractor to complete the work if she obtained the financing. Ms. McKinney was unable to get the financing due to the condition of the House. The permits obtained by Respondent are still valid. Ms. McKinney has hired various workers on her own in an effort to complete the work on the House. As of the final hearing, the work on the House had not been completed. As of May 19, 2005, Petitioner’s costs of investigation and prosecution of this case, excluding costs associated with attorney time, totaled $920.29.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order that adopts the Findings of Facts and Conclusions of Law set forth in this Recommended Order. It is further recommended that the Final Order: Find Respondent guilty of the violation alleged in Count I of the Administrative Complaint and impose against him an administrative fine in the amount of $2,500.00; Find Respondent guilty of the violation alleged in Count II of the Administrative Complaint, but impose no additional administrative fine for that violation; Find Respondent not guilty of the violation alleged in Count III of the Administrative Complaint; Order that Respondent be jointly and severally liable to Ms. McKinney and Ms. Mathis with Mr. Muse for restitution in the amount of $4,000.00, minus $750.00 paid by Mr. Muse; and Order Respondent to pay costs of investigation and prosecution of this matter in the amount of $920.29. DONE AND ENTERED this 10th day of August, 2005, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 2005.
Findings Of Fact During times material hereto, Respondent, Bobby D. Patton, was a certified general contractor, qualifying Bellavia Construction, Inc. (sometimes referred to as Bellavia) and has been issued license number CGC011543. (Petitioner's Exhibit 1). During times material hereto, John Bellavia (Bellavia) was not licensed by the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board, as a contractor. (Petitioner's Exhibit 1). During times material hereto, Allstate Interiors, Inc., was not qualified with the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board. (Petitioner's Exhibit 1). On October 12, 1982, Bellavia Construction contracted with Mrs. Mei Lin Eisen to construct a fast food restaurant within the confines of Aventura Mall for a cost of $37,000.00. Bellavia executed the contract on behalf of Bellavia Construction as it's president. (Petitioner's Exhibit 2). On October 15, 1982, Mrs. Eisen gave to Bellavia Construction a down payment of $7,400.00. (Petitioner's Exhibit 3). Bellavia Construction was to complete the construction within four weeks after the issuance of the building permit. (Petitioner's Exhibit 1). Mrs. Eisen emphasized to Bellavia that the construction phase of the restaurant had to be completed within the stated period in order that her business could be operating at the time of the Mall's grand opening. Mrs. Eisen also advised Bellavia that if she did not have her business operational at the time of the grand opening, she would be assessed a daily penalty by the Mall's owner for every day she was not in business beyond the grand opening. (TR 21, 35). On October 15, 1982, a building permit was issued to Respondent for the construction improvement work by Bellavia Construction on the Eisen job. (Petitioner's Exhibit 4; TR43). For the three week period following the issuance of the building permit (October 15, 1982), there was virtually no progress on the job with the exception of the drilling of three holes for plumbing and the placement of metal studs; which holes were incorrectly drilled and had to be relocated because they did not comport with the schematic drawings as depicted in the plans. During the three week period following the issuance of the permit, Bellavia was observed performing construction at another business in the mall. During that time, Mrs. Eisen inquired of Bellavia as to the lack of progress on her job and was told that there was no money to be made on the project. At the conclusion of the three week period subsequent to October 15, 1982, Bellavia quit Mrs. Eisen's project and did not return the deposit monies. Mrs. Eisen therefore had to obtain the services of another contractor to complete the job. As a result of this delay, her business was not open at the time of the mall's grand opening. (TR 22, 36). Mrs. Eisen was assessed a civil penalty of $16,800.00, payable over a seven year period at $200.00 a month. (TR 23) Neither during the negotiation of the contract nor during the performance of the contract did Mrs. Eisen or her architect have any knowledge of Respondent. Their entire contractual dealings were with Bellavia. (TR 23, 24, 38 and 39). Bellavia was also the president of Allstate Interiors, Inc., which attained corporate status on May 2, 1983. On May 4, 1983, a building permit for construction work by Bellavia Construction for Aventura Travel was issued to Respondent. (Petitioner's Exhibit 6). On May 11, 1983, a building permit for construction work by Bellavia Construction for Dentaland was issued to Respondent. (Petitioner's Exhibit 5). During February, 1983, Respondent moved from his address of record with the Department of Professional Regulation, Construction Industry Licensing Board, which was 8698 S.W. 50th Street, Cooper City, Florida. In July, 1983, the Department became aware of Respondent's move from the above location during the investigation of the instant case. (TR 50, 53/54, 56/58). Respondent, during the license renewal process period for 1985/1987, notified the Department of his address change to 1005 N.E. 143rd Street, North Miami, Florida, which became his address of record. (Petitioner's Exhibit 1). As stated in the background, Respondent did not appear at the hearing except through counsel.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Respondent, Bobby D. Patton, license number CGC 011543, be suspended for a period of one (1 year. Further, it is RECOMMENDED that an administrative fine of $500.00 be imposed upon Respondent. DONE and ORDERED this 13th day of October, 1986, 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 13th day of August, 1986. COPIES FURNISHED: Erroll Powell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Steven M. Rosen, Esquire 5601 Building 5601 Biscayne Blvd. Miami, Florida 33137
The Issue The issues for determination are whether Respondent committed the acts alleged in the Administrative Complaint and, if so, what, if any, penalty should be imposed.
Findings Of Fact Petitioner is the governmental agency responsible for issuing licenses to practice as building contractors. Petitioner is also responsible for regulating such licensees on behalf of the state. At all times pertinent to this proceeding, Respondent has been licensed individually as a Certified General Contractor pursuant to license number CG C 0055328 issued by the Construction Industry Licensing Board (the "Board"). Respondent has never been licensed by the Board as the qualifying agent for Mr. Gary Butler ("Butler"), an unlicensed contractor. In 1993, Respondent entered into an agreement with Butler who has never been licensed by the Board. The terms of the agreement require Respondent to pull permits for construction projects entered into by Butler. Butler pays Respondent for each permit or weekly. Respondent supervises some, but not all, of the projects undertaken by Butler. In August, 1993, Mr. Lynn Kyler ("Kyler"), the owner of a residence constructed by Ms. Denise Pyke ("Pyke"), a Certified Residential Contractor, asked Pyke to find a contractor to build a new dock and boat house at Kyler's residence. The Kyler residence is a lake front home located at 10250 State Road 561 A, Clermont, Lake County, Florida. Kyler authorized Pyke to act as Kyler's agent for construction of the dock and boat house. Kyler resided in Indiana from August through late fall of 1993. Pyke obtained recommendations of various candidates including Butler. Butler represented himself as a licensed and insured builder of docks and boat houses. Butler provided Pyke with a business card representing that Butler is licensed and insured. Pyke obtained cost and design proposals from Butler and Norquist Construction Company and communicated the proposals to Kyler. Kyler chose Butler. Butler agreed to demolish the existing dock and construct a new dock and boat house (the "project"). Kyler paid Butler the full contract price of $6,897.60. Prior to the completion of the project, neither Respondent nor Butler disclosed to Pyke or Kyler that Butler was unlicensed. Nor did they disclose that Butler would use Respondent's license to pull the permit for the project. Respondent knew that Butler is not licensed as a contractor, in any capacity. On August 25, 1993, Respondent and Butler went to the Lake County Building Department. Respondent used his license to pull Permit Number T93- 04793 for the project. The permit was issued to Respondent, listed Respondent's license as the certified general contractor, and was maintained in the official records of the Lake County Building Department. Respondent listed himself on the permit as the contractor for the entire project without limitation and without reference to Butler. Respondent was not authorized by Pyke or Kyler to pull the permit or to participate in the project. At the time, neither Pyke nor Kyler were aware of Respondent's existence or his role in the project. Respondent did not participate and had no involvement in the project except pulling the permit. The project was commenced by Butler in August, 1993, and completed shortly thereafter. Respondent did not supervise or participate in the construction of the project. Butler began the project without first filing a Notice of Commencement. Butler constructed the project with only a 10 foot setback in violation of the 25 foot setback required in Lake County Code Ordinance 10.0401(3)(d). Butler also failed to obtain an electrical permit in violation of Standard Building Code, Section 103.1.1. (1991). The project, as built by Butler, has no value to Kyler. The project failed final inspection for violation of the 25 foot setback and failure to obtain an electrical permit. The roof tiles on the boat house had to be removed because they were falling off the roof. The project itself is coming apart. It will cost between $10,000 and $12,000 to bring the project into compliance with local code requirements and to make it usable. Respondent was aware of the 25 foot setback when he pulled the permit for the project. The project plans submitted for the permit reflect the 25 foot setback. Lake County allows contractors to withdraw permits that have already been pulled. Respondent never withdrew the permit for the project. Butler was unable to obtain a final inspection because he failed to file a Notice Of Commencement at the outset of the project. Pyke and Kyler filed the Notice Of Commencement in order to obtain the final inspection. As the contractor of record, it was Respondent's responsibility to ensure that a Notice of Commencement was filed and that the project passed final inspection. While obtaining the information necessary to file the Notice Of Commencement, Pyke and Kyler learned that Butler was unlicensed and uninsured and that Respondent had used his license to pull the permit. When confronted by Pyke, Respondent did not deny knowledge of the project and assured Pyke that the problems with the project would be corrected. Despite Respondent's assurances, the code violations have not been corrected. Nor have the defects in construction been corrected.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a Final Order finding Respondent guilty of violating: Sections 489.129(1)(c) and 455.227(1)(a); and Sections 489.129(1) (e), (f), (n), and (p). It is further recommended that the Board place Respondent on probation for three years, subject to reasonable conditions, impose an administrative fine of $5,000, and assess costs of $717.50 plus reasonable costs incurred by Petitioner subsequent to the date of this Recommended Order to investigate and prosecute this proceeding to its conclusion. RECOMMENDED this 28th day of March, 1996, in Tallahassee, Florida. DANIEL S. MANRY, 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 28th day of March 1996.
The Issue The issue in this proceeding is whether Willie Daniels violated sections 489.129(1)(d) and (e) F.S., as alleged in the administrative complaint, by willful violation of a local building code and aiding and abetting an unlicensed person to evade any provision of Chapter 489. At the hearing the material facts were uncontroverted.
Findings Of Fact Willie F. Daniels is now, and was at all times relevant, licensed as a roofing contractor by the Florida Construction Industry Licensing Board. He holds license #RC 0027954 and does business as "Daniels Roofing', a sole proprietorship. He has been doing roofing in the Orlando, Florida area since 1954. Willie Daniels first met Thomas Dahlman when Dahlman came to his house trying to sell windows. Dahlman told him that he did all kinds of work, including windows, roofing and painting. Later Dahlman called him and said he had a roofing job that he wanted Daniels to do and that he would take him out to the house. The house belonged to Chris Correa and was located at 4421 Sebastian Way, in Orlando. Dahlman bought the materials for the job and Willie Daniels provided a day and a half labor on the roof. He was paid approximately $600.00 by Dahlman. Chris Correa was initially contacted by an agent for Thomas Dahlman who was trying to sell solar heating devices. When she told him she really needed a new roof, he said his boss could arrange that. Dahlman arranged for her loan to pay for the roof and arranged for the labor to be done by Willie Daniels. Chris Correa paid Thomas Dahlman $3,000 for the roof. About three days after the roof was completed, on February 18, 1986, she signed a contract for the roof work with Dahlman Enterprises, Inc. The contract is signed Thomas Dahlman and by Ms. Correa. Willie Daniels was not a party to the contract. The City of Orlando has adopted the Standard Building Code, including the following provision relating to permit applications: Section 105 - Application for Permit - When Required Any owner, authorized agent, or contractor who desires to construct, enlarge, alter, repair, move, demolish, or change the occupancy of a building or structure, ... or to cause any such work to be done, shall first make application to the Building Official and obtain the required permit therefor. * * * No permit was applied for or obtained for the roofing job on Chris Correa's house. Willie Daniels assumed Thomas Dahlman was a licensed contractor because Dahlman told him he was in the business of doing roofing, painting, installing windows and similar work. He did not ask Dahlman if he was licensed. Dalhman was, in fact, not a licensed contractor.
