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 holding the Respondent guilty as charged, impose a fine in the amount of $2000 and suspend the Respondent's license for one year. DONE AND ORDERED this 17th day of March, 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 1988.
The Issue Whether Respondent violated Subsection 489.129(1)(j), Florida Statutes (1997), and Subsections 489.129(1)(n) and (o), Florida Statutes (1995).
Findings Of Fact At all times material to this proceeding, Frazier was licensed by the Department as a certified roofing contractor, having been issued license number CC CO56955 as Ronald Lee Frazier, d/b/a Frazier Urethane 4 No Leak. On or about November 24, 1995, Frazier, contracted with Victor and Janie Anderson to remove and replace the roof of the Anderson's home at 433 111th Street, Marathon, Florida, for $4,657.25. The Andersons paid the full contract price to Frazier in two increments. On or about November 24, 1995, they paid $2,328.62, and on or about January 25, 1996, they paid $2,328.63. In January 1996, Frazier removed and replaced the Anderson's roof, but Frazier applied the new roofing material without first installing a base sheet or moisture barrier. No evidence was presented on the specific manufacturer's specification for the product installed by Frazier; however, the evidence did establish that typical manufacturers' specifications for products such as urethane require the installation of a base sheet before such products are applied. The Monroe County Building Code does require that self-adhesive roofs such as the one installed by Frazier must have a one ply ASTM D226 type II anchor sheet with a four-inch headlap. In other words, the roof should have a base sheet of 30-pound felt before the urethane is applied. The base sheet or moisture barrier helps keep water off the roof, and it also facilitates removal and replacement of the roof. Failure to install the base sheet contributed to the development of roof leaks which the Andersons began noticing approximately 17 months after the work was done, a much shorter time than the normal life expectancy for the urethane roof materials that Frazier used. Frazier's failure to install a base sheet on the Andersons' roof constitutes incompetency in the practice of contracting. The only way to correct Frazier's work on the Anderson's roof is to remove the roof installed by Frazier and install a new roof in a proper manner. The Andersons began noticing leaks in the roof in June 1997. They notified Frazier by telephone and by letters. Frazier and his employees inspected the Anderson's roof and agreed to perform work to stop the leaks. In September 1997, Frazier went to the Anderson's home and began attempting to work on the roof. Monroe County roofing inspector Al Forrest met with Frazier that day at the Anderson's home and discussed the work that needed to be done. Frazier agreed to correct the deficiencies in the roof; however, Frazier left that day without completing the work and never returned to perform further work. On or about December 1, 1995, Vivian Haverly contracted with Frazier to repair the leaky roof on her home at 1711 Avalon Avenue, Ft. Pierce, Florida. Frazier was to install a new urethane roof on Ms. Haverly's house. Among other things, the contract called for Frazier to "raise the A/C unit on stand as per code." The contract price was $5,039.00. Pursuant to the contract, Ms. Haverly paid Frazier $1,039.00 on December 1, 1995, and $3,900 on January 19, 1996. The Southern Building Code Congress International (SBCCI) has been adopted as the building code by all counties in Florida except for Dade and Broward Counties. Section 1509.1.2 of the SBCCI provides that "[r]oof coverings shall provide weather protection for the building at the roof." Frazier's crew worked on Ms. Haverly's roof but never fixed the leaks. The leaks worsened, causing damage in the interior of Ms. Haverly's house. Frazier failed to raise the roof-mounted air conditioning equipment and sprayed urethane on the air conditioning unit, damaging it to the point that the air conditioner became inoperable and had to be replaced at a cost of $2,700. Frazier did not spray urethane on the portion of the roof below the air conditioning unit as he should have done. Ms. Haverly had to have another company repair her roof. On or about April 18, 1997, John Ward entered into a contract with Frazier as Frazier Urethane 4 No Leak to repair the roof of a two-story building in Marathon, Florida, owned by Virginia Ward and managed for her by her son John Ward. Frazier was to apply a urethane coating to the roof and fix roof leaks for $4,200. The Department incurred costs for the investigation and prosecution of Case Nos. 98-5213 and 99-2186 in the amount of $1,219.18. The Department incurred costs for the investigation and prosecution of Case No. 99-3573 in the amount of $244.65.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Ronald Lee Frazier did not violate Subsections 489.119(2) and 489.129(1)(j), Florida Statutes, as set forth in Count III of Case No. 98-5212; finding that Ronald Lee Frazier did violate Subsection 489.129(1)(n), Florida Statutes (1995), as set forth in Count III of Case Nos. 98-5213 and 99-2186 and Count II of Case No. 99-3573; finding that Ronald Lee Frazier did violate Subsection 489.129(1)(o), Florida Statutes, as set forth in Count III of Case No. 99-3573; imposing an administrative fine of $1,000 for violation of Subsection 489.129(1)(n), Florida Statutes, in Count III of Case Nos. 98-5213 and 99-2186; imposing an administrative fine of $1,000 for violation of Subsection 489.129(1)(n), Florida Statutes, in Count II of Case No. 99-3573; imposing an administrative fine of $1,500.00 for violation of Subsection 489.129(1)(o), Florida Statutes, in Count III of Case No. 99-3573; suspending Ronald Lee Frazier's license for six months; assessing costs of $1,463.83 for investigation and prosecution in Case Nos. 98-5213, 99-2186, and 99-3573; and taking no action to enforce or collect payment of the fines or assessed costs without authorization of the bankruptcy court unless Ronald Lee Frazier's bankruptcy petition is dismissed or discharged. DONE AND ENTERED this 30th day of August, 2000, in Tallahassee, Leon County, Florida. Susan B. Kirkland Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 2000. COPIES FURNISHED: Theodore R. Gay, Esquire Department of Business and Professional Regulation 401 Northwest Second Avenue Suite N-607 Miami, Florida 33128 Ronald Lee Frazier Post Office Box 12735 Ft. Pierce, Florida 34979-2735 Ronald Lee Frazier 1006 Southwest Sultan Drive Port St. Lucie, Florida 34983 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Rodney L. Hurst, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467
Findings Of Fact Respondent is a certified building contractor holding license number CB C032007. In May, 1985, he contracted to build a residence for Daniel Drigger for a price of $98,400. This is the first residence constructed by the Respondent under his license. The Driggers moved into the house in February, 1986. As a part of the contract to build the residence, the Respondent was responsible for the construction of a "greenhouse" window along the wall of the kitchen. The window is depicted in P. Ex. 3 on the left side of the house. The top portion of the window that slants on a 45 degree angle from the wall of the house began to leak in heavy rain storms shortly after the Driggers moved in. Water would pour in from the top seams of the window, damaging the drywall and wallpaper, and resulting in large pools of water on the floor. Mark Nasrallah was qualified as an expert in proper methods of construction and responsibilities of a contractor in Florida. Based upon the opinion of Mr. Nasrallah, it is concluded that the window had been improperly constructed by Mr. Allison. Mr. Allison's method, reliance upon caulking to seal the top glass, was defective because the glass would change size in heat and cold, thus loosening the seal, causing leaks. The proper method to prevent leaks was to rabbet the frame, laying the glass on a bead of caulk within the rabbet, and to construct a system of double flashing as indicated in the sketch which is Petitioner's Ex. 7. Mr. Allison agreed in his testimony that the method he chose to construct the window was not correct. He relied upon the carpenters he had hired to properly construct the window. The carpenters he hired had told him that they had constructed windows of this type many times before. Mr. Allison relied upon their representations, but did not know himself how the window should properly be constructed. At the hearing, Mr. Allison accepted full responsibility for the incorrect window, and was willing to spend the money needed to repair the window to the standards set forth by Mr. Nasrallah. The cost of correction of the window will be approximately $300. When Mr. Driggers first discovered that the window leaked, he called Mr. Allison and asked him to fix it. Mr. Allison told Mr. Driggers that he had lost a lot of money under the contract, and that he (Mr. Allison) believed that Mr. Driggers still owed him money. Mr. Allison told Mr. Driggers that he would fix the window if Mr. Driggers paid him the money that was owed, but that otherwise Mr. Driggers would have to have the window repaired using the money Mr. Driggers owed Mr. Allison. Since Mr. Driggers refused to pay the money claimed by Mr. Allison, Mr. Allison refused to correct the window. Mr. Driggers tried several methods to correct the leaky window, including caulk and after-the-fact flashing (without reconstruction), to no avail. The window still leaked. At the end of the job, there were still a number of corrections to be made. In order to release liens and to allow the bank to release funds, the parties agreed to allow the retention of $1500 by the Driggers, to be paid to Mr. Allison upon completion of the corrections on the "punch" list. P. Exs. 5A and 5B are the letters exchanged between the parties that established the agreement regarding the punch list and the retained $1500. The Driggers agreed that if all the items on the punch list were not completed by February 16, 1986, then the Driggers would have the option to hire someone to take care of the uncompleted items. Implicitly, payment was to be made from the retained $1500. R. Ex. 5B. Mr. Driggers testified that the following items on the punch list were not completed by Mr. Allison: rehang door to guest bathroom to open to outside; remove stain from living room ceiling; replace cabinet drawers upstairs; remove smudge on wallpaper in upstairs bathroom; center cabinet doors, master bathroom; and deliver all guarantees and warranties. This testimony is not credible, and is rejected. On May 6, Mrs. Driggers wrote to Mr. Allison. P. Ex. 6. The letter is clearly intended to itemize all remaining deficiencies under the contract. It states that $1,273.30 of the retained $1,500 is enclosed as "final payment," and itemizes $226.70 in matters claimed as offsets by the Driggers. None of the items listed are matters that Mr. Driggers at the formal hearing testified were uncompleted items on the punch list. The letter concluded that "this concludes our contract." Based on the letter of May 6, 1987, Mr. Allison reasonably and justifiable thought that the retained amount of $226.70 was used by the Driggers to satisfy all remaining claims by the Driggers under the contract. At the conclusion of the contract, Mr. Allison had a claim against the Driggers for the following, which Mr. Allison asserts was never paid to him: $75 for the utility deposit; $362 for landscaping; and $101.07 for appliances in excess of contract allowance. None of these amounts were denied by Mr. Driggers. The effect of this claim, however, cannot be determined on this record due to the findings of fact which follow. Mr. Allison originally presented Mr. and Mrs. Driggers with an estimate of $112,000 to construct the house. The bank would loan only $98,400. Thus, the parties agreed that the contract would be for the lower amount, but that Mr. Driggers would bring the cost down by supplying labor and materials for certain jobs. This agreement was not reduced to writing, and there is insufficient evidence in the record to conclude that either Mr. Allison or Mr. and Mrs. Driggers breached any of these oral agreements, resulting in money owed to either party. This is Particularly true in light of the letter of May 6, 1987, P. Ex. 6. As a consequence, it is impossible on this record to conclude that after consideration of all claims and counter claims, that the Driggers owed Mr. Allison anything further, or that Mr. Allison breached any duty to the Driggers other than in the construction of the leaky window. On June 25, 1986, the Driggers sent a letter to Mr. Allison. The letter lists a number of grievances. It ends by saying that formal complaints were being filed against Mr. Allison. On the last page, the Driggers state that "we, personally, have taken the appropriate steps to have the leaks fixed." After receipt of the June 25, 1986, letter, Mr. Allison did not offer to fix the leaky window because he believed it had already been fixed based upon the Driggers' letter. He was not contacted again by the Driggers. The window had not been fixed as of the date of the formal hearing. Mr. Allison offered to fix the window, as discussed above.
Recommendation For these reasons, it is recommended that the Department of Professional Regulation, Construction Industry Licensing Board, enter its final order dismissing the administrative complaint against Frank D. Allison. DONE and RECOMMENDED this 18th day of March, 1988, in Tallahassee, Florida. WILLIAM C. SHERRILL, JR. 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 18th day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2959 The following are rulings upon proposed findings of fact which have either been rejected or which have been adopted by reference. The numbers used are the numbers used by the parties. Findings of fact proposed by the Petitioner: The proposed finding that the "punch list items were not complete" has been ejected for the reasons set forth in finding of fact 15. The second sentence is true and adopted by reference, but is subordinate. This proposed finding is true and adopted by reference, but is subordinate. This proposed finding is true and adopted by reference, but is subordinate. Findings of fact proposed by the Respondent: The last sentence of the first paragraph is rejected for the reasons stated in findings of fact 18 and 19. The second paragraph is rejected. Although the proof was inadequate during the formal hearing that Mr. Allison failed to complete punch list items, this does not, in itself, prove that Mr. Driggers "deceived the contractor" about the punch list items. Mrs. Driggers explicitly listed the items for which money was withheld in the May 6, 1986, letter. Mr. Allison thus knew exactly why the money was withheld. Whether or not Mr. and Mrs. Driggers were correct in the withholding of the money has not been determined on this record. The last sentence of paragraph 3 is true and adopted by reference. It is not sufficient, however, the change the conclusion that the construction of the window was improper. Mr. Allison agreed during the hearing that the Nasrallah method was the proper method. COPIES FURNISHED: David L. Swanson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Frank D. Allison 1004 East South Street Orlando, Florida 32801 Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Willian O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issues in this case are whether Respondent, Richard Lindley, committed the offenses alleged in a four-count Administrative Complaint filed with Petitioner, the Department of Business and Professional Regulation, on March 20, 2008, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for, among other things, the licensure of individuals who wish to engage in contracting in the State of Florida; and the investigation and prosecution of complaints against individuals who have been so licensed. See Chs. 455 and 489, Fla. Stat. Respondent, Richard Lindley, is and has been at all times material hereto a certified building contractor in Florida, having been issued license number CB C060555. Mr. Lindley is also a Certified Roofing Contractor, having been issued license number CC C1326286. Both licenses were issued by the Construction Industry Licensing Board (hereinafter referred to as the “Board). At all times material, Mr. Lindley was the primary qualifying agent for HCL, Inc. (hereinafter referred to as “HCL”). HCL has a certificate of authority, QB number 20599. On or about June 8, 2005, Mr. Lindley, doing business as HCL, entered into a written contract (hereinafter referred to as the “Contract”) with Myra Love to re-roof her residence located at 765 Windermere Way, Palm Beach Gardens, Florida 33418 (hereinafter referred to as the “Subject Property”). Pursuant to the Contract, Ms. Love agreed to pay HCL a total of $8,125.00, as follows: $1,625.00 upon signing the Contract; $2,843.75 upon “roof dri in”; $2,843.75 upon “roof load”; and $812.50 upon “final inspection.” Consistent with the Contract, Ms. Love paid HCL $1,625.00 by check dated June 8, 2005, upon entering into the Contract. On June 9, 2005, Mr. Lindley applied for a building permit for the work to be performed pursuant to the Contract. The permit was issued, but expired for lack of final inspection. Ms. Love next paid HCL $2,843.75 by check dated October 20, 2005, upon being informed that the roof had been dried in. Despite having paid for the dry in of the roof, it continued to leak. After making the second payment to HCL in October 2005, no work was performed pursuant to the Contract and all efforts by Ms. Love to contact Mr. Lindley failed. On April 24, 2006, Ms. Love wrote to Mr. Lindley complaining about the condition of her roof and his lack of response to her telephone calls to him. This letter was delivered by certified mail, return receipt. Mr. Lindley did not respond to Ms. Love’s April 24, 2006, letter. No work was performed by Mr. Lindley through October 2006 on the Subject Property, at least a year after work on the Subject Property stopped. Therefore, Ms. Love sent a letter dated October 31, 2006, by certified mail, return receipt, to Mr. Lindley. Ms. Love stated in the letter that “since you abandoned the contract on 6/8/05, and failed to show up on the job, I consider the contract null and void because of your nonperformance. You and your employees are hereby notified to stay off my property.” On November 4, 2006, after informing Mr. Lindley that she considered the Contract null and void, Ms. Love contracted with Gold Coast Roofing to complete the re-roofing of the Subject Property. Ms. Love paid Gold Coast Roofing $14,900.00 for the completion of the re-roofing. Essentially, Gold Coast Roofing, due to the time that had expired since work was abandoned, had to essentially start over on the re-roofing of the Subject Property. The total investigative costs for this matter incurred by the Department, excluding costs associated with any attorney’s time, was $258.56.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered: Finding that Richard Lindley violated the provisions of Section 489.129(1)(j) and (m), Florida Statutes, as alleged in Counts II and IV of the Administrative Complaint; imposing a fine of $2,500.00 and placing Mr. Lindley’s licenses on probation for a period of four years conditioned upon his payment of the fines, restitution and the costs incurred by the Department, and any other conditions determined to be necessary by the Board, for the Count II violation; requiring that Mr. Lindley make restitution in the amount of $4,468.75 to Ms. Love; and requiring that Mr. Lindley pay the costs incurred by the Department in investigating and prosecuting this matter; and Dismissing Counts I and III of the Administrative Complaint. DONE AND ENTERED this 12th day of March, 2009, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 12th day of March, 2009. COPIES FURNISHED: Lisa A. Comingore, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Richard H. Lindley Richard H. Lindley, d/b/a HCL, Inc. 9146 Arrowhead Drive Greenacres, Florida 33467-1060 Kyle Christopher, Esquire Department of Business & Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact During times material, Respondent was a certified roofing contractor, having been issued license number CC C014700 and was the sole qualifier for Gulfstream Contractors, Incorporated (Gulfstream). Gulfstream entered into a contract with Dr. Paul J. Schwartz, a chiropractor, to repair the roof to Schwartz' office building located at 1565 South Missouri Avenue, Clearwater, Florida. The contract between Gulfstream and Schwartz was entered into on July 22, 1985, and for a fee of $1,375.00, Gulfstream contracted to repair Schwartz' roof by tearing off the old gravel roof, install new decking and lead boots, to galvanize the roof and to remove all debris brought about as a result of the contracting activities. Gulfstream guaranteed the roof to be free of defects for a period of ten (10) years. (Petitioner's Exhibit 1.) Gulfstream commenced the repairs to Schwartz' roof without obtaining a construction permit and failed to call for progress inspections as was required by the City of Clearwater. Within one month following Respondent's completion of Schwartz' roof, Schwartz encountered leaks to the interior of his office building resulting in stained carpet, interior walls, and furniture in several of his examining rooms. Schwartz made repeated calls to Gulfstream in an effort to get Gulfstream to honor its ten-year guarantee on the roof. Respondent initially attempted to correct (repair) the roof, although he failed to return to the project after two or three visits during the first two months following completion of the project during July 1985. Thomas Chiplinsky is an inspector for the City of Clearwater whose area of responsibility includes the inspection of roofing projects. As part of his duties, Inspector Chiplinsky inspected Schwartz' roof following a complaint received by the City of Clearwater and found that the roof was installed in July 1985 by Gulfstream and no permit was obtained or inspections called for or made by Respondent. Inspector Chiplinsky observed soft spots in the roof and noted that Respondent failed to install counter flashing. Respondent acknowledges his responsibility as qualifier for Gulfstream. Respondent admits that he neither obtained a permit to perform the roof repairs, nor did he call for inspections as required by the City of Clearwater. Within months after Respondent completed the Schwartz project, the entity, Gulfstream Contractors, was disbanded and therefore no one responded to Schwartz' request that his roof be repaired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order imposing a $500 fine against Respondent, payable to Petitioner within 30 days of the entry of its Final Order. Respondent's license number CC C014700 be suspended for a period of one (1) year within the further condition that Respondent be allowed a period of 20 days following the entry of the Final Order to revisit the Schwartz project and make the necessary repairs to correct the roof repairs and abide by the terms of his guarantee. In the event that Respondent makes the necessary repairs within 30 days of entry of the Final Order, it is further RECOMMENDED that the period of suspension be suspended. RECOMMENDED this 16th day of March, 1989, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 March, 1989. COPIES FURNISHED: David Bryant 500 North Tampa Tampa, Florida 33602 Richard Domingo 4032 41st Avenue North St. Petersburg, Florida 33710 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Construction Industry Licensing Board 111 East Coastline Drive Jacksonville, Florida 3220
The Issue In this disciplinary proceeding, the issues are whether Respondent, a licensed contractor, failed timely to renew the certificate of authority issued to his qualified business entity; failed to include, in a construction contract, the required notice regarding consumer rights under the recovery fund; abandoned a construction project; or committed any of these offenses, as alleged by Petitioner in its Administrative Complaint. If Petitioner proves one or more of the alleged violations, then an additional question will arise, namely whether penalties should be imposed on Respondent.
Findings Of Fact The Parties Respondent Vic George ("George") is a certified general contractor and a certified roofing contractor. As a licensee in these fields, George is subject to the regulatory jurisdiction of the Construction Industry Licensing Board ("Board"). Petitioner Department of Business and Professional Regulation ("Department") has jurisdiction over disciplinary proceedings for the Board. At the Board's direction, the Department is authorized to prosecute administrative complaints against licensees within the Board's jurisdiction. George's Businesses At times material to this action, George carried out the business of a contractor through, and was the qualifying agent of, a company known as South Florida Remodeling and Building Corporation ("S.F. Remodeling"). At other times material to this action, George carried out the business of a contractor through, and was the qualifying agent of, a company known as One Stop Remodeling and Building Corporation ("One Stop"). One Stop was a successor to S. F. Remodeling. The Department issued an initial certificate of authority to One Stop that, effective August 31, 2001, permitted the company lawfully to engage in the business of contracting for two years. One Stop failed timely to renew its certificate before the expiration date of August 31, 2003. In a Final Order Approving Settlement Stipulation entered on February 18, 2004, the Board disciplined George for, among other things, the failure of One Stop timely to renew its certificate of authority.iii The Board suspended George's contracting licenses indefinitely but stayed the suspension for 90 days to allow George to furnish evidence that corrective actions had been taken, which actions were to include the renewal of One Stop's certificate. Had George failed to provide such evidence, the stay would have been lifted and his licenses immediately suspended. George's licenses were not suspended in consequence of the Final Order just described. It is thus reasonable to infer, and is hereby found, that George satisfied the all of the conditions (including the renewal of One Stop's certificate) for preventing the suspension from taking effect. That being the case, One Stop's certificate was renewed before mid-May 2004.iv In light of the foregoing findings, the Department failed to prove by clear and convincing evidence its allegation that One Stop's certificate was delinquent until October 2004. The Hazard Project Anthony Hazard ("Hazard") is an insurance agent who sells property and casualty insurance in Miami-Dade County. Some time before September 2000, a man named Rick Nelson bought insurance through Hazard's insurance agency, and he and Hazard developed a friendly relationship. Mr. Nelson was an employee and officer of S.F. Remodeling, for whom he was a construction supervisor. As Mr. Nelson and Hazard got to know one another, they realized that each could be a source of business referrals for the other. In fact, Mr. Nelson did direct some persons in need of insurance to Hazard, and Hazard recommended Mr. Nelson to some persons in need of a contractor. It was natural, therefore, that when Hazard and his wife decided in the year 2000 to add an enclosed patio to their house, Hazard turned to Mr. Nelson for assistance. Mr. Nelson told Hazard that S.F. Remodeling could do the job. In a written price quote dated September 29, 2000, and delivered to Hazard on or about that date, Mr. Nelson, on behalf of his employer, represented that S.F. Remodeling could build an enclosed patio for the Hazards at a total cost of $9,938. The Hazards agreed to this proposal, and work preliminary to construction, such as the preparation of the architectural plans, commenced forthwith. The plans were drawn by Curtis Williams, a draftsman who worked for an architect named Charles Mitchell.v In the course of obtaining the local building official's approval of the plans, it was learned that the project as originally contemplated would need to be modified to comply with the zoning laws. The necessary design changes would increase the cost of construction slightly. Thus, effective November 21, 2000, the Hazards and S.F. Remodeling entered into a one-page agreement pursuant to which the contractor promised to build the Hazards an enclosed patio for $10,100. The contract did not contain an explanation of the owners' rights under the Florida Homeowners' Construction Recovery Fund, which was known at the time as the Construction Industries Recovery Fund. (Hereafter the referenced fund will be called the "Recovery Fund.") The agreement was a sweetheart deal for the Hazards. In an arms-length transaction, the project likely would have cost between $16,000 and $18,000. S.F. Remodeling agreed to do the work for little or no profit in the hope (and with the expectation) that Hazard would continue referring potential customers to Mr. Nelson. The building permit was issued on November 30, 2000, and S.F. Remodeling promptly began work at the jobsite. From then until at least February 14, 2001, work progressed at a reasonable pace. The contractor demolished and removed the existing slab, installed a new footing, poured a new slab, and framed the tie beam. Along the way, in the ordinary course of construction, local building officials inspected and approved the foundation and the new slab. One unforeseen development, however, had caused friction between the Hazards and the contractor. Beneath the existing concrete slab had been found another slab whose removal had entailed unanticipated expenses for excavation work and fill material. Mr. Nelson had asked Hazard to cover some or all of these costs, but Hazard had refused. Because the contract price left no room for error, it had become apparent within a short time after breaking ground that S.F. Remodeling would lose money on the project. Yet another unforeseen occurrence brought the work to a halt. At a routine inspection of the project on March 16, 2001, the local building official refused to approve the tie beam. He determined that the architect's plans, which had been approved prior to issuance of the building permit, were deficient for failure to depict how the tie beam would connect to the existing structure; hence, the plans would need to be revised and approved before construction could continue. Without delay, Mr. Nelson called Mr. Williams and explained the situation to the draftsman, who agreed to revise the plans. Not long thereafter, Mr. Nelson brought the job copy of the plans to Mr. Williams. Mr. Williams did, in fact, make the necessary changes to the plans. It is not clear, however, when exactly this work was completed. All that can be found with certainty on the existing record is that Hazard picked up a copy of the revised plans from Mr. Williams in December 2002, nearly two years after work on the project had stopped as of March 16, 2001. The Department urges the undersigned to infer that the reason for the delay was the contractor's failure——in breach of the contract——to pay the draftsman for revising the plans. The undersigned declines to draw this inference, however, because the evidence on the point is conflicting and ambiguous; the undersigned, ultimately, is just not convinced that this was the reason.vi At bottom, the cause or causes of the delay were not proved clearly and convincingly. (The person most likely to have personal knowledge regarding what happened——Mr. Williams—— was not called to testify, nor was anyone else from the architect's office, leaving a gaping hole in the record.) The undersigned therefore cannot make any inculpatory findings pinning the blame for the delay on S.F. Remodeling or its agents. In aid of its proof of the serious allegation that S.F. Remodeling or its successor One Stopvii abandoned the Hazard project, the Department relies upon a statutory provision under which the fact-finder is permitted to presume abandonment if it is shown that the contractor failed to perform work without just cause for 90 consecutive days. The Department's reliance on this statutory presumption is misplaced, however, because the Department did not prove, by the required quantum of evidence, that S.F. Remodeling failed to work without just cause for 90 days, a basic fact upon which the presumption must rest. The fact is, on March 16, 2001, S.F. Remodeling had just cause to cease working, for the simple reason that, as of that date, the contractor could not legally work on the project until such time as the architect had amended the plans and obtained approval thereof from the local building official. The Department's theory is that it took too long to attend to this situation, which might be true, and that S.F. Remodeling was at fault for the delay, which is possible, too; yet neither proposition was proved clearly and convincingly.viii To explain, there is no convincing evidence in the record as to the reasonable period of time for the preparation and approval of amended plans in the ordinary course of business, nor is there any proof regarding the steps that a reasonable contractor should take under such circumstances to expedite the process.ix In other words, there is no convincing evidence of applicable standards of conduct against which to measure this contractor's performance. In the absence of such evidence, the undersigned cannot, consistent with the rule of law, simply apply standards of his own devising, based on his personal preferences concerning how contractors should perform, no matter how sensible or wise those personal standards might be. In the absence of legal standards, the undersigned must withhold judgment, rather than render a personal one. It is therefore impossible, based on the evidence in the record, for the undersigned to fix the point in time, if there were one, when just cause no longer existed for S.F. Remodeling not to be working on the Hazard project. Without that reference point, it cannot be determined whether the contractor failed to perform work without just cause for 90 consecutive days. Thus, the undersigned cannot presume abandonment. Moreover, even if the Department had proved that S.F. Remodeling breached a legal or contractual duty to cause the revised plans to be prepared and approved sooner than these events actually occurred, the question at hand is not whether the contractor breached the contract or was negligent; the question is whether the contractor abandoned the project——i.e. quit the job with the intention never to resume working toward its completion. Simply put, the contractor's failure to prevent unreasonable delay in the work, if there were such a failure, would not, without more than was proved here, manifest the requisite intention never to complete the project. On November 4, 2002, Hazard signed a consumer complaint against S.F. Remodeling, which he then filed with the Miami-Dade County Building Code Compliance Office. In his complaint, Hazard accused the contractor of failing to complete the job and refusing to contact him about it. After investigating the matter, local officials referred Hazard's complaint to the Department, giving rise to the instant proceeding. Some time after bringing his consumer complaint, Hazard hired another contractor, Edwards Construction, Inc. ("Edwards"), to complete the project.x Edwards obtained a permit for the project in April 2003 and began working several months later, taking about four months to finish the job. A final inspection approving the project was had on November 7, 2003. All told, the Hazards invested $23,216.69 in their new patio. This grand total, however, included some extras (a concrete pad for parking a boat, a sidewalk, and some steps) that S.F. Remodeling had not been under contract to build. Breaking down the total amount paid, the Hazards incurred $9,419.73 in expenses while S.F. Remodeling was on the job, and $13,796.96 when Edwards was doing the work. On September 29, 2004, the Department issued a three- count Administrative Complaint against George. As of May 19, 2005, the Department had expended a total of $596.20 in investigative and prosecutorial costs, excluding attorney's fees. The Charges In Count I of its Administrative Complaint, the Department alleged that S.F. Remodeling had failed to include in its contract with the Hazards a statement explaining the consumers' rights under the Recovery Fund, as required by Section 489.1425, Florida Statutes. It is the Department's position that George, as the company's qualifying agent, is subject to discipline for this oversight pursuant to Section 489.129(1)(i), which makes it an offense materially to disobey any statutory provision or order of the Board. In Count II, the Department charged George separately under Section 489.129(1)(i), asserting that he, as qualifying agent, had failed to obey a statutory provision, namely Section 489.119(2)(d), which requires that a corporate contractor's certificate of authority must be renewed every two years. As the basis for this charge, the Department alleged that One Stop's certificate had expired on August 31, 2003, and not been renewed until October 2004. In Count III, the Department accused George of having abandoned a construction project, which is a disciplinable offense under Section 489.129(1)(j), Florida Statutes. In support of this Count, the Department, as mentioned, has relied upon an evidentiary device that permits the fact-finder to presume abandonment upon proof that the contractor failed to perform work without just cause for 90 consecutive days. Ultimate Factual Determinations Because the contract between S.F. Remodeling and the Hazards did not, in fact, include the statutorily required notice regarding the Recovery Fund, George, in his capacity as qualifying agent, is guilty of failing to obey a statutory provision, as charged in Count I. There is no dispute that One Stop's certificate of authority lapsed as of August 31, 2003. Indeed, the Board disciplined George for the oversight, entering a final order on February 18, 2004, with which he timely complied. As a result of this previous discipline, One Stop's certificate was renewed and the matter concluded. The Board cannot lawfully punish George twice for the same offense. Thus, George is not guilty of the offense charged in Count II of the Administrative Complaint. The undersigned is not convinced that S.F. Remodeling abandoned the Hazard project. At most it might be inferred that, after the local building inspector stopped the job due to faulty architectural plans——a problem not of the contractor's making——S.F. Remodeling, being in no hurry to resume working on a money-losing project, took a laissez-faire approach to the ensuing delay. But the Department did not prove "strategic sloth" by clear and convincing evidence, and such would not constitute abandonment even if it had. The evidence leaves open the reasonable possibility that S.F. Remodeling intended and expected to finish the job someday, even if it hoped that day would not come soon.xi Consequently, George is not guilty of the charge set forth in Count III of the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order (a) finding George not guilty of the offenses charged in Counts II and III of the Administrative Complaint; (b) finding George guilty of the offense charge in Count I thereof; (c) imposing a fine of $1,000 for the notice violation, which is a repeat offense; and (d) assessing investigative and prosecutorial costs in the amount of $596.20. DONE AND ENTERED this 31st day of October, 2005, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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.stae.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 2005.
The Issue The issue in this case is whether the Construction Industry Licensing Board should discipline the Respondent, Ysidro Cid Fernandez, on the basis of the charges alleged in the Administrative Complaint which the Petitioner, the Department of Professional Regulation, filed against him on November 30, 1987.
Findings Of Fact The Respondent, Ysidro Cid Fernandez, is licensed as a certified roofing contractor in the State of Florida, holding license number CC-C029602. The Respondent's license was in effect at all times referred to in these Findings of Fact. On or about March 15, 1986, an employee of Sunshine Solar and Roofing, a roofing company for which the Respondent acted as qualifying agent, entered into a contract with Fred Chambers to re-roof a house Chambers owned at 5871 64th Terrace North, Pinellas Park, Florida. The house was a small house, with not more than 1000 square feet of living area, and the contract was to re-roof the entire house for $600 plus tax ($31.50). The shingles to be used were to be 20-year shingles. The contract also provided: "Install on front F/S [far side] 8' long 5" wide T/G [tongue in groove] board." The Respondent's company did the work in April, 1986. Chambers paid the full amount of the contract, $200 down and the balance on or about May 1, 1986. Despite the re-roof, the roof still leaked where it did before the work was done. When Chambers called for warranty repair work, the Respondent refused until Chambers paid what the Respondent said was the cost of extra work the Respondent claimed Chambers had had the Respondent's workers do. The Respondent first came to the opinion that extra work had been done after he received invoices from his supplier indicating that his employees had ordered 1600 square feet of shingles for the job. The Respondent asserted that the contract called for only the front far side of the roof to be replaced. He bases this interpretation of the contract on the language quoted in the last sentence of Finding 2, above. The Respondent claimed that 1600 square feet was twice as much shingle as would be needed to re-roof half of the existing roof. Regardless whether the Respondent's employees ordered too much shingle for the Chambers job, or where the extra shingle might have gone, if not on the Chambers roof, the contract provided for the entire Chambers roof to be replaced for the contract price. The Respondent was not justified in demanding additional money before doing warranty work. The City of Pinellas Park, Florida, the governmental entity with jurisdiction over the Chambers job, required that a building permit be obtained before commencing the Chambers re-roofing construction. The City of Pinellas Park also required inspections of the Chambers re-roofing job. The Respondent claimed to have timely obtained a building permit for the Chambers job and, in testimony at final hearing, detailed an elaborate story about how he went about getting one. But the Respondent's own evidence, in the form of late-filed Respondent's Exhibit 2, establishes that he did not apply for the building permit until December 17, 1987, after receiving notice through the November 30, 1987, Administrative Complaint in this case, that the Department was charging him with failure to obtain a building permit for the job. Not having obtained a building permit, the Respondent did not call for the required inspections for the job. The evidence did not prove that the Respondent was grossly negligent or incompetent in estimating the cost of the Chambers job. First, the evidence did not prove that the job was seriously underestimated; to the contrary, the evidence tended to show that the Respondent's employees ordered more material than needed for the job. (When this came to the Respondent's attention, he unfairly blamed Chambers for having his employees do extra work not called for by the contract.) Second, the Respondent had nothing to do with the cost estimate on the job. The Respondent's price per square foot of roof area was fixed; he depended on his employees to accurately measure the size of the roof being priced. There is no evidence how the Respondent went about training his employees to measure a roof for purposes of a cost estimate. The Respondent has been disciplined by the Construction Industry Licensing Board once before. He received a reprimand in August, 1987, for failure to obtain a building permit.
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 suspending the Respondent's license for one year and fining the Respondent $2,500. RECOMMENDED this 25th day of July, 1989, 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 25th day of July, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0570 To comply with the requirements of Section 120.59(2), Florida Statutes (1987), the following rulings are made on the Petitioner's proposed findings of fact (the Respondent not having filed any): Rejected in part (the Respondent's name is not Thomas L. Jackson); otherwise, accepted and incorporated. Accepted and incorporated. Rejected in part; the evidence did not prove that the roof was unfinished or that the roof was done correctly or that the work was done incorrectly, only that it leaked after the work was done. 4.-6. Accepted and incorporated. Rejected as not proven by the evidence. (See 3., above.) Accepted and incorporated. COPIES FURNISHED: David Bryant, Esquire 13014 North Dale Mabry Suite 315 Tampa, Florida 33618 Ysidro Cid Fernandez 2700 North McDill Avenue Suite 204 Post Office Box 4726 Tampa, Florida 33607 Ysidro Cid Fernandez 8109 Rivershore Drive Tampa, Florida 33604 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Kenneth Easley, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Department), is a state government licensing and regulatory agency charged with the duty and responsibility to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, and Chapters 120, 455, and 489, Florida Statutes, and the rules promulgated pursuant thereto. At all times material hereto, Respondent, Lawrence C. Bright, was licensed by the Department as a certified general contractor, having been issued license number CG C032808, and was the qualifying agency for Briden Enterprises, Inc. (Briden).2 In May 1995, Raul Hernandez, Sr., suffered storm damage to his residence at 341 Northwest 63rd Court, Miami, Florida. Consequently, Mr. Hernandez filed a claim with his insurance carrier, Bankers Insurance (Bankers). Briden, on behalf of Bankers, inspected the property and by letter of June 13, 1995, provided Bankers with a written estimate to repair the damage. The scope of the work included the replacement of two roofs, a solar-panel, and awnings, together with other miscellaneous work. The cost was stated to be $13,264.20. Following the inspection, Mr. Hernandez employed Briden to undertake the needed repairs, as detailed in the written estimate. The insurance carrier was notified of its employment, and Bankers forwarded to Briden a check in the sum of $18,988, which named Briden and Mr. Hernandez as joint payees.3 On or about June 20, 1995, Briden's representative brought the check to Mr. Hernandez's residence. Mr. Hernandez endorsed the check and delivered it to the representative. In exchange, Mr. Hernandez received a check drawn on a Briden account for $9,494, and payable to "Raul Hernandez and Briden Enterprises, Inc."4 The stated purpose of this check, as noted on its face, was "For 50% Retainer"; however, no further explanation appears of record. Briden employed Roberts Roofing, Inc. (Roberts Roofing), to do the roof repair work. That work was satisfactorily completed in or about October 1995. As for the other repairs, Briden did not undertake them, nor did it return any of the money it had received from Mr. Hernandez. On or about November 28, 1995, Roberts Roofing filed a claim of lien in the public records of Dade County, Florida. The claim of lien charged that, pursuant to an agreement with Briden, Roberts Roofing had installed a new roof on Mr. Hernandez's residence for $7,200, and that $2,523.50 remained unpaid. Following unsuccessful demands on Briden to make the agreed repairs and pay Roberts Roofing, and later demands to return the money owing to him, Mr. Hernandez filed a complaint in February 1996 against Briden in the Circuit Court, Dade County, Florida. That complaint sought judgment based on the following allegations: On or about June 20, 1995, Defendant represented to Plaintiff that Defendant could provide construction services to repair Plaintiff's residence. Defendant fraudulently represented to Plaintiff the amounts and type of work which would be performed on the project, the costs associated therewith and requested payment pursuant to said misrepresentations. * * * Plaintiff relied on Defendant's misrepresentations by making payment to Defendant for the construction services in the amount of $18,988.00. From the payment received by Defendant, Plaintiff acknowledges that Defendant paid $4,678.00 to a third party to accomplish the repair of the roof at Plaintiff's residence. The full cost for the roofing services was $7,200.00. As a result of Defendant's failure to pay the full amount, the third party has filed a lien against Plaintiff's property for $2,522.00. Defendant has failed to provide the represented construction services, and, as a result, Plaintiff has sustained damages in an amount of $14,310.00 and has had title to his residence liened. On May 16, 1996, a final default judgment was entered for Mr. Hernandez and against Briden. That judgment provided that Mr. Hernandez recover from Briden damages of $14,311.50 and costs of $189.00. Neither Briden nor Respondent paid the judgment, and it remains unsatisfied to date. Having failed to receive payment, Roberts Roofing filed a complaint on July 11, 1996, against Mr. Hernandez to foreclose its lien. While that suit was pending, Mr. Hernandez filed a claim under the Construction Industries Recovery Fund. Sections 489.140, et seq., Florida Statutes. That claim was approved in February 1997, and Mr. Hernandez was paid $14,311.50.5 Following recovery from the fund, Mr. Hernandez paid Roberts Roofing the unpaid balance it claimed, and Roberts Roofing released its lien.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the violations alleged in Counts I, II, III, and IV of the Administrative Complaint, and imposing as a penalty for such violations a $3,500 administrative fine; a two year term of probation, subject to the conditions of Rule 61G4-12.008(5), Florida Administrative Code; and the payment of the reasonable costs of investigation and prosecution.8 DONE AND ENTERED this 3rd day of February, 1998, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 Filed with the Clerk of the Division of Administrative Hearings this erd day of February, 1998.
