The Issue The issue is whether Respondent's license as a registered building contractor should be disciplined for the acts alleged in the Administrative Complaint, as amended?
Findings Of Fact Respondent, Robert Tucker, is a registered building contractor holding State of Florida license number RB 0033063 (Ex. 7). Respondent was licensed as a building contractor by the State of Florida in September 1978, and has remained licensed at all times material hereto (Ex. 7). Since September 20, 1978, Respondent has held a local Building Contractor's License issued by the Leon County Contractor Licensing and Examination Board (Ex. 7). Respondent's license with the Department has been delinquent since July 1, 1985 (Ex. 7). In July 1983, Respondent made an oral agreement with Violet Gladieux to erect a carport for her at a cost of $1,350 (Ex. 3). Ms. Gladieux's residence is located at 2321 Belle Vue Way, within the city limits of Tallahassee. Jay Gladieux, Jr. became acquainted with Mr. Tucker from his position as an employee of Mr. Tucker on a prior construction project. Mr. Gladieux introduced his mother, Ms. Gladieux, to Mr. Tucker for the carport construction. It was orally agreed that Ms. Gladieux would pay Mr. Tucker for supplies as they were needed. Mr. Tucker began erection of the carport approximately one week after July 11, 1983, when he received the first payment of $300. On July 29, 1983, Mr. Tucker received final payment of $350 so that he could complete the carport (Ex. 3). Approximately two weeks after July 29, 1983, Respondent completed the carport. A permit for the erection of the carport was required by Section 7-63, Buildings and Construction Regulations (The Building Code) of the City of Tallahassee. The language of that ordinance has not changed since 1957 (Ex. 1). No building permit was ever obtained by Mr. Tucker for erection of the carport. Approximately two weeks after completion of the carport, it collapsed after a heavy rainfall (Ex. 4 and 5). Mr. Tucker returned to repair the damaged carport. He erected center studs and was to return later to complete the damage repair. Mr. Tucker has failed to return to complete the damage repair after requested to do so by Jay Gladieux. When an administrative complaint has been filed against a contractor, personal service of the complaint is attempted upon the contractor at his last address of record. If personal service cannot be effectuated at the contractor's last address of record, further attempts are made to locate the contractor. The building departments, both City and County, the telephone company, utility company and post office are contacted. The building departments are contacted to determine if the contractor has obtained any permits, for the permits would list the contractor's address. The telephone company is contacted for prior and new telephone listing(s) with address(es). The post office is contacted for forwarding address(es). The utility company is contacted for new utility service which would contain a new address (es). If the contractor cannot be located after using these avenues, a diligent search affidavit is executed by the investigator who is attempting to serve the contractor. In September 1978 and at all times pertaining to the construction of the carport, Respondent's address of record with the Department was 1515-21 Paul Russell Road and P.O. Box 20234, Tallahassee, Florida. Respondent had not notified the Department of Professional Regulation, Construction Industry Licensing Board of any change in his address (Ex. 7), other than by the new address revealed on the Election of Rights form he filed in response to the administrative complaint. The Department attempted to personally serve Mr. Tucker at his listed address and could not locate him there. On May 21, 1984, Robert E. Connell, an investigator for the Department of Professional Regulation, executed a diligent search affidavit concerning service of the Administrative Complaint upon Mr. Tucker in this proceeding (Ex. 8).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent be found guilty of the charges in count one of the Administrative Complaint, as amended; that counts two and three be dismissed; and that he be fined $250.00. DONE AND ORDERED this 4th day of April 1986 in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY,JR., 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 4th day of April 1986. COPIES FURNISHED: Mr. James Linnan Executive Director Construction Industry Licensing Board P.O. Box 2 Jacksonville, Florida 32202 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Errol H. Powell, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Robert Tucker P.O. Box 10218 Tallahassee, Florida 32302
The Issue The issue presented for decision herein is whether or not the Respondent, David H. Tinius, unlawfully abandoned a construction project; diverted funds received for completion of a construction project and thereby failed to fulfill his contractual obligations.
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. By its administrative complaint filed herein signed October 6, 1982, the Petitioner, Construction Industry Licensing Board, seeks to suspend, revoke or take other disciplinary action against the Respondent's registered building contractor's license. During times material herein, Respondent was a registered building contractor and has been issued license No. RB0024083. On approximately April 20, 1978, Respondent entered into a contract with Jess Marks to build a residence in Tamarac, Florida, for the sum of $46,551. Respondent commenced construction of the Mark's residence but left the site when it was approximately forty percent complete. At that time, Respondent had received approximately $44,000 of the contract sum. Jess Marks completed the construction of his residence by hiring another contractor to complete the project and expended approximately $50,000 over and above the contract price as agreed upon by the Respondent to complete his residence. Respondent never returned any of the monies received from the Marks for completion of the residence. On approximately April 24, 1978, Respondent entered into a contract with Abe Abrahams to construct a residence in Tamarac, Florida, for the sum of $30,473. Respondent left the Abrahams' project after he had received $6,000 and had completed approximately ten percent of the work on the Abrahams' residence. Respondent did not return to the site nor did he return any of the monies received from the Abrahams for the construction of their residence (See Petitioner's Composite Exhibit No. 5). The Abrahams had to pay for supplies and material bought for the project by the Respondent and which reportedly had been paid, according to Respondent. THE RESPONDENT'S POSITION As noted hereinabove, the Respondent did not appear to contest or otherwise refute the allegations contained in the administrative complaint filed herein. However, Respondent, through counsel, filed an answer which admitted the complaint allegations filed herein.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, hereby RECOMMENDED that the Respondent's registered building contractor's license No. RB0024083 be REVOKED. DONE and RECOMMENDED this 29th day of August, 1983 in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1983 COPIES FURNISHED: Michael J. Cohen, Esquire 2715 East Oakland Park Boulevard Suite 101 Fort Lauderdale, Florida 33306 David H. Tinius 4420 Northwest 36th Court Lauderdale Lakes, Florida 33309 David H. Tinius Post Office Box 6338 Charlotte Amalil St. Thomas, U.S.V.I. 00801 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
Findings Of Fact The Respondent, at all times material hereto, was a licensed registered "residential contractor." He was not registered or licensed as a general or building contractor, however, as Respondent himself acknowledged. See also, Petitioner's Exhibit 1 in evidence. The Petitioner is an agency of the State of Florida charged pursuant to the provisions of Chapter 489, Florida Statutes, with establishing licensure standards for building contractors of all types in the State of Florida, and with enforcing the various limitations on practice as a contractor embodied in that chapter. On or about January 28, 1986, the Respondent contracted with one Harold Martin, M.D., to build Dr. Martin a commercial office building in Leon County, Florida. The contract specified construction of all phases of the building project except the parking lot and the landscaping. The Respondent submitted a budget for the construction work to Dr. Martin depicting a total proposed cost for the project of $134,882. The Respondent performed substantial work on the office building in January and February of 1986. In March of 1986, due to a dispute which arose between the Respondent and Dr. Martin concerning the cost and progress of the construction project, Dr. Martin terminated the Respondent's service and contract and retained another contractor to finish the job, which was done. The Respondent established that when the contract was terminated, the building was approximately 65 percent complete. It is undisputed that the Respondent did perform a substantial amount of work on the office building pursuant to the contract with Dr. Martin. On March 27, 1986, the Respondent filed a claim of lien against the owner, Harold Martin, in which the Respondent stated that he had managed the construction of the office building in question and had performed $23,300 worth of work thereon. The Respondent also provided Dr. Martin with a Contractor's Affidavit, in which he certified to the owner that all lienors, except one, had been paid. The Respondent had contracted to perform the work after it had been started by another contractor retained by Dr. Martin, whom Dr. Martin had also terminated because he was not pleased with the progress and the quality of work of that first contractor. The Respondent established that one of the members of the Board of Directors of his corporation was a licensed general contractor, but admitted that that general contractor and board member had performed no work with regard to Dr. Martin's office building. The Respondent testified that another general contractor came to the job site from time to time to supposedly oversee the job. However, it was not established that any other general contractor, in the course of his practice, had any nexus with the Martin contract nor the performance of any construction on the building at times when the Respondent was performing construction thereon in January and February of 1986. This is demonstrated especially because of the fact that the Respondent never paid any other general contractor any money for any work or supervision performed with regard to this job, nor had Dr. Martin paid any other general contractor for such duties during the time that the Respondent was performing work on the building in question.
Recommendation Having considered the foregoing findings of fact conclusions of law, the evidence of record, and the candor and demeanor of the witnesses, it is therefore RECOMMENDED that a Final Order be entered by the Construction Industry Licensing Board, in accordance with disciplinary guideline Rule 21E-17.001(3), Florida Administrative Code, according the Respondent the penalty of a Letter of Guidance. DONE and ENTERED this 23rd day of December, 1987, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2958 Petitioner's Proposed Findings of Fact: Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. COPIES FURNISHED: William O'Neil, III, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mr. James L. Washington 320 West Pershing Street Tallahassee, Florida 32301 Mr. Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
The Issue Whether Petitioner should be granted additional credit for one or more examination questions answered by him during the June 1990 Certified Building Contractor Examination.
Findings Of Fact Petitioner sat for reexamination at the June 1990 certified building contractor examination. On Part II, he received a score of 74.0. A minimum passing score is 69.01. On Part III, he received a score of 67.00. Minimum passing score is 69.01. Petitioner had previously passed Part I of the exam. Petitioner initially challenged question numbers 4, 10 and 17. The National Assessment Institute prepares licensure examinations for building contractors in the State of Florida under authority of the Office of Examination Services, Department of Professional Regulation. The Institute prepared question numbers 4, 10 & 17 for the certified building contractor examination administered on June 26 and 27, 1990. As to question number 4, the only correct response to the question was answer "B". Petitioner's answer to the question was "D", which was not acceptable. As to question number 10, the correct response was answer "C". Petitioner's answer "B", was not acceptable. As to question number 17, the correct response was answer "C". Petitioner's answer "A" was not acceptable. The Department's determination that answers "B", "C" and "C" were the only appropriate answers was not arbitrary and unreasonable.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the challenge by Petitioner that he be awarded a passing grade for Part III of the June 1990 certified building contractors examination be DENIED. DONE AND ENTERED this 19th day of April, 1991, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 19th day of April, 1991. COPIES FURNISHED: Robert J. Uebelacker 326 NW Catherine Avenue Port Charlotte, FL 33952 Vytas J. Urba, Esquire Senior Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Daniel O'Brien, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Jack McRay, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint and if so what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating building code administrators and inspectors. At all times material to the allegations of this case, the Respondent was a licensed standard building inspector, license number BN 0001750. At all times material to this case, the Respondent was employed by the Martin County Building Department as a Building Inspector. Harriet R. Edwards owns a residence located at 2595 Hickory Avenue, Jensen Beach, Florida. This home is located in Martin County, Florida. At some point in early 1996, it became Ms. Edwards' desire to construct an addition to the residence. She retained a contractor to perform the work and returned to her second home in Ohio during the time of the construction. When Ms. Edwards returned to Florida in December of 1996, she was dissatisfied with the quality of the construction work performed on her home. Mr. Joyce, Ms. Edwards' friend, stated that they had expressed a desire for, and had requested, a high quality of work for the addition to Ms. Edwards' home. Upon investigation it was discovered that the permit card located at the construction site had been initialed by an unlicensed building inspector, James L. Brown. This led the homeowner to suspect that the work performed did not meet inspection code standards. Building code inspections are to verify that the work performed by contractors meets certain minimum standards set forth in adopted building code regulations. By implication the highest quality of construction performance would generally exceed code requirements. One inspection item in particular concerned Ms. Edwards' friend, Mr. Joyce. This homeowner believed the new addition did not have a proper footer. All of the inspections listed on the permit card for this project occurred prior to December 17, 1996. The footer/slab inspection was performed on October 4, 1996. The Respondent asserts that at the time he performed the footer/slab inspection, the structures were in place to assure that the poured foundation would meet minimum code requirements. The Respondent does not dispute that Mr. Brown, an unlicensed inspector in training, initialed the permit card and transmitted by radio the inspection results. Mr. Brown was assigned to work with the Respondent during his training period prior to receiving licensure from the state. Mr. Brown ultimately received his provisional license on or about December 17, 1996. The Respondent asserts that a final inspection was not performed on Ms. Edwards' home. Consequently, no final verification was completed to assure the home addition was constructed in accordance with the plans and the forms on the ground for the footer/slab foundation. In this case there is no allegation that the construction plans for the addition for the Edwards' home failed to meet minimum code requirements. Presumably the footer/slab foundation as reflected on the plans would have specified at least a minimum compliance with code mandates. The footer/slab inspection was performed with the forms and reinforcements in place according to the approved plans. The Respondent maintains that the forms and reinforcements met minimum code requirements and that if such forms were altered after inspection he would not have known. Typically, once the footer/slab foundation forms and reinforcements are approved by an inspector the contractor calls for the delivery of concrete to be poured into the foundation forms. The date the concrete was poured for the subject footer/slab is unknown. Whether there was a delay between the footer/slab inspection date and the construction date is unknown. In any event when Ms. Edwards and Mr. Joyce returned from Ohio to view the addition the foundation did not appear adequate. Efforts were then pursued to attempt to ascertain whether the footer/slab did meet code. In this case the record is inconclusive as to whether the footer/slab foundation as constructed at Ms. Edwards' addition meets minimum code requirements. The pictures in evidence do not clearly establish the depth of the slab. Some of the photographs suggest that the minimum depth was achieved. A visual inspection performed at the site did not verify the depth nor compare the interior finished grade with the exterior measurements. The final grading of the exterior of the home around the addition was never completed. As a result the photographs may have a distorted view of the foundation and portions should have been back-filled along the edge of the slab. In any event, no definitive measurements have been offered into evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Building Code Administrators and Inspectors enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 23rd day of October, 2000, in Tallahassee, Leon County, Florida. J. D. Parrish 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 23rd day of October, 2000. COPIES FURNISHED: Dorota Trzeciecka, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Bobby T. Chambers 3520 Northeast Linda Drive Jensen Beach, Florida 34957 Anthony B. Spivey, Executive Director Building Code Administrators and Inspectors Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue for disposition is whether, as alleged in the Administrative Complaint, Respondent committed various violations of Chapter 489, F.S., regulating the practice of contracting, by failing to complete a roofing job which he had agreed to perform.
Findings Of Fact At all times relevant, Michael W. Ballans was licensed by the State of Florida as a certified building contractor, holding License Number CB C036542. He qualified as an individual doing business at 1107 Oregon Avenue, St. Cloud, Florida 32769. On April 6, 1988, H. Earl Fisher signed his acceptance of a written proposal by Michael Ballans for Ballans to install a new roof on Fisher's double-wide trailer at 7650 E. Irlo Bronson Memorial Highway, in St. Cloud, Florida. The price for the job was $1,575.00, for supplies and labor. Fisher made an initial payment of $1,018.00 on June 6, 1988. Materials were delivered to the job site, but Ballans never commenced work. Fisher contacted Ballans four or five times to try to get him to do the job or to get someone else to do it. Ballans never returned the funds and at one point told Fisher that he could not do the work because he lost his insurance. Fisher did not agree to do the work himself and told Ballans he wanted the money back and the materials removed from his property. Stanton Alexander was qualified as an expert in construction industry contracting, including roofing. He has practiced in the profession for approximately thirty years. He served two terms on the construction industry licensing board, including a term as chairman. He has testified in the past as an expert in construction industry practices. A contractor terminates his responsibility under a contract after payment and final inspection and a certificate of occupancy has been issued. Until then, he is responsible for completion of the job. Proper procedure when a contractor becomes unable, to complete a job is to refund the money and remove the materials or to get permission from the building department and owner to bring in another contractor to complete the work. Michael Ballans did neither, and simply abandoned the job. This deviation from the standards of construction industry practice constitutes incompetency or misconduct.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED That a Final Order be entered finding Michael W. Ballans guilty of violations alleged in Counts I, II and IV of the Administrative Complaint, and imposing a fine of $500.00. DONE AND RECOMMENDED this 16th day of April, 1990, in Tallahassee, Leon County, Florida. MARY CLARK 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 16th day of April, 1990. COPIES FURNISHED: Jack L. McRay, Esquire Dept. of Professional Regulation 1940 N. Monroe St., Suite 60 Tallahassee, FL 32399-0792 Michael W. Ballans 2314 Knob Hill Drive, Apt. #12 Okemos, Michigan 48864 Kenneth D. Easley, General Counsel Dept. of Professional Regulation 1940 N. Monroe St., Suite 60 Tallahassee, FL 32399-0792 Fred Seely, Executive Director DPR-Construction Industry Licensing Board P.O. Box 2 Jacksonville, FL 32202
Findings Of Fact At all times relevant hereto Jonas C. Merricks, Respondent, was licensed by the Construction Industry Licensing Board, Petitioner, as a residential building contractor. In May 1981 Respondent was approached by John Oden regarding a building permit to add a room to the residence of Ms. Betty J. Wilson. Respondent testified he went to see Ms. Wilson to discuss the permit before pulling the permit; however, Ms. Wilson testified she did not see Respondent until after the word started. Regardless of the correct version Respondent pulled the permit for the construction knowing that he was not going to do the work. On May 23, 1981 Ms. Wilson entered into a contract with John Oden to construct an additional room on her residence. This contract was modified on May 26, 1981 to enlarge the room two feet and it is this contract (Exhibit 3), upon which the work was done. The contract made no mention of Respondent or of J & J Building Company which is owned by Respondent. Under the terms of the contract Ms. Wilson was to pay Oden one-third when walls were up, one-third when the roof was on and the final one-third when the job was completed. During the course of the construction Respondent appeared on the site a few times and straightened out existing problems. Ms. Wilson made all of her payments to Oden in accordance with the contract. However, she made the final payment before the work was completed. Her attempts to get Oden to satisfactorily complete the job were unsuccessful and Ms. Wilson complained to the Bureau of Consumer Affairs who referred her complaint to the Construction Industry Licensing Board which investigated and filed the complaint here under consideration. No evidence was submitted that Respondent pulled permits for work done by J & J Building Company. Evidence was presented that J & J Building Company is not licensed by petitioner. Respondent testified that he pulled the permit as a favor to Ms. Wilson and not for Oden, and that he did not know Oden had contracted with Ms. Wilson to do this job. However, Respondent did know that Oden was going to build the addition for Ms. Wilson; and, in his affidavit, Exhibit 5, Respondent acknowledged he had "helped out" Oden several times, that he was paid by Oden for work Respondent did on the premises, that payment for this work was made out to J & J Building Company, and that he supervised the work when he was on the premises.
