The Issue Whether respondent committed the violations alleged in the Notice to Show Cause, and if so, whether its license should be revoked or suspended, or whether a civil penalty should be imposed.
Findings Of Fact At all times relevant- to this cause, Real Estate Rentals, Inc. held license number 39-926-H issued by the Department of Business Regulation, Division of Hotels and Restaurants (Division) for the premises known as Ippolito Apartments located at 112 South Brevard Avenue, Tampa, Hillsborough County, Florida. The president of Real Estate Rentals, Inc. is E. L. Ippolito. On February 27, March 14, and March 25, 1986, Pablo Mercado inspected the Ippolito Apartments. Mr. Mercado is employed by the Division as an Environmental Health Specialist and his duties include the inspection of hotels, apartments, and other buildings. Mr. Mercado inspects between 40 and 50 buildings a week. Each building is routinely inspected four times a year. When Mr. Mercado inspected the Ippolito Apartments on February 27, 1986, he found several conditions which he considered to be statutory or rule violations. Mr. Mercado noted these violations on a standard form of the Division. The Division's form lists various items numbered 1-36. Items 1 (Fire Extinguishers), 5 (Fire Hazards), 11 (Building Repair/Painting), and 19 (Screening) were checked on the form as minor violations, and comments were made concerning each item. As to Item 1, Mr. Mercado noted that no fire extinguishers were in the building and that a fire extinguisher was needed on each floor or one in each apartment. As to item 5, Mr. Mercado noted that furniture needed to be removed from the hall. As to item 11, Mr. Mercado made the following comments: Need window facing st. apt. #1. You need a window in bathroom apt. #1. Paint inside bldg. Stairs need repair. Hole in bathroom floor apt. #3. Water leaking in the bathroom from the upstairs apt. into apt. #1. As to Item 19, Mr. Mercado noted that all the screens missing on the windows had to be replaced. The form was sent to Real Estate Rentals, Inc., with the indication that the document was a warning and that all violations had to be corrected by March 14, 1986. When Mr. Mercado made his inspection on February 27, 1986, he did not observe a hole in the bathroom floor in apartment #3 or observe any water leaking into the bathroom in apartment #1, and there was no competent evidence presented at the hearing to establish that either of these conditions existed. Mr. Mercado did observe that there were no fire extinguishers in the hall, and he did go into one apartment and observed that there was not a fire extinguisher in that apartment. Two other tenants informed him that they did not have a fire extinguisher in their apartments. Mr. Mercado observed that one of the windows facing the street contained no window pane but simply had a plastic bag taped over the window frame on the outside of the building to cover the empty space. On other windows jalousie slats were missing, and the window on the bathroom of apartment #1 was covered with a piece of plywood. Some screens were missing and some screens were torn up. One of the steps on the stairs was missing part of the two-inch lip, which created a hazard to individuals using the stairs. On March 14, 1986, Mr. Mercado made a return inspection. He noted that the furniture had been removed from the hall. However, he did not feel that any of the other violations listed had been corrected. Therefore, Mr. Mercado filled out a Call Back/Re-Inspection Report", which referred to the warning issued on February 27, 1986, and made the following comments: Violations: #1--#5--#11--#19 (See DBR-226) Only violation #5 is complied. The rest of the violations #1,#)1,#19 are not complied. The report indicated that the time to correct the violations had been extended to March 24, 1986. This report was sent to the respondent by certified mail. On March 25, 1986, Mr. Mercado again inspected the Ippolito Apartments. The conditions had not changed from the time of his previous inspection on March 14, 1986. Mr. Mercado visited the Ippolito Apartments again on April 7, 1986, and also on June 10, 1986. The pictures admitted into evidence as petitioner's exhibits No. 6 were taken on June 10, 1986. On June 10, 1986, the building was in the same condition as it had been on February 27, March 14, and March 25, 1986, except that several of the windows on the front of the building had been replaced with plywood boards. Mr. Mercado did not believe that the replacement of the windows with the boards corrected the violation as to the windows, but he could not remember whether the windows had been replaced with the plywood as of March 14th or the March 25th inspection, or whether they were replaced at a later time. Since slats were still missing from other windows on all of his inspections, he did not feel the violations as to the windows had been corrected. By June 10, 1986, the windows in front of the apartment had been replaced with plywood backed by 2 x 4 studs. According to Mr. Howell, who performed the work, the replacement of the windows with the plywood structure occurred approximately 2 1/2 months prior to the hearing, which would have been early or mid-April, 1986. In that the only competent evidence as to the date of the replacement of the front windows was Mr. Howell's testimony, it is found that the windows in the front of the building had not been replaced with plywood at the time of Mr. Mercado's inspections on March 14 and March 25, 1986. There was no competent evidence presented as to the condition of the windows in the front of the building on March 14 or March 25, 1986.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner enter a final order finding respondent guilty of three violations of Rule 7C-1.03(1) and one violation of Rule 7C-1.04(1) on February 27, March 14 and March 25, 1986, as set forth in charges 1 through 4 of the Notice to Show Cause, finding respondent not guilty of the violations set forth in charges 5 and 6 of the Notice to Show Cause, and imposing a total civil penalty of $975 assessed as follows: (1) failure to provide adequate fire extinguishers, $100 for each offense for a total of $300, (2) failure to maintain windows in good repair, $100 for each offense for a total of $300, (3) failure to maintain stairs in good repair, $50 for each offense for a total of $150, (4) failure to maintain screens in good repair, $75 for each offense for a total of $225. DONE and ENTERED this 9th day of October, 1986, in Tallahassee, Florida. DIANE A. GRUBBS 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 October, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1800 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings On Proposed Findings of Fact Submitted by the Petitioner 1. Accepted in paragraph 1. 2.-3. Accepted generally in paragraph 2. Accepted in paragraph 3. Accepted in paragraph 4, except that competent evidence showed only that at least one apartment did not have fire extinguisher. The only evidence as to other apartments was hearsay. Rejected as immaterial. Rejected as immaterial in that evidence showed there was not a fire extinguisher in each apartment. 8.-9. Accepted in paragraph 4. 10. Rejected as irrelevant in that respondent was never notified or charged with a violation based on that condition. 11.-12. Accepted generally in paragraph 4. 13. Accepted in paragraph 3. 14.-15. Accepted in paragraph 5. Accepted in paragraph 6. Accepted in background, not finding of fact. Accepted in part in paragraph 7, however, whether violations were corrected was irrelevant because respondent was not charged with violations on April 17, 1986. Rejected as not a finding of fact in that it is a recitation of testimony. Rejected, date of repair set forth in paragraph 8. 22.-23. Rejected as immaterial and as recitation of testimony. 24. Rejected to the degree it is a finding of fact in that replacement of windows occurred after relevant time period. 25.-31. Rejected, not finding of fact. Rulings On Proposed Findings of Fact Submitted by the Respondents Accepted in paragraph 1. Rejected as irrelevant and also not supported by the evidence in that a violation was noted for correction. Accepted in paragraph 3. Accepted in part and rejected in part as set forth in paragraph 4. Accepted in paragraph 5. Accepted in part in paragraph 8, however, repair work irrelevant since it occurred after date of inspections. Rejected as irrelevant. Accepted in part in paragraph 4. Whether bathroom had exhaust fan is irrelevant since the issue was whether the window was in good repair. Reject that Mr. Mercado was not a credible witness. COPIES FURNISHED: James Kearney, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 R. Hugh Snow, Director Department of Business Regulation Division of Hotels and Restaurants The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 Lynne A. Quimby, Esquire Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 Mr. Emilio L. Ippolito 901 South Rome Avenue Tampa, Florida 33606
Findings Of Fact James Wells is a registered building contractor having been issued license number RB 0008753. In June, 1985, Christiane J. Guignard hired James Wells to do repairing and rebuilding on parts of her home, including roofing work. The roofing work consisted of building a roof extension with hot tar and gravel roofing and a shingle roof. Guignard maintains that Wells agreed to guarantee his roof work against leaks for five years. Wells maintains that there was no explicit warranty, but he understood that he was responsible for "about a year" for leaks in his work. Wells did the work agreed on and completed it at the end of July, 1985. Guignard paid Wells a total of $4,575 for all of the work he had done. Prior to Wells' roofing work, Guignard had three leaks in her roof. Wells' work eliminated those leaks. According to Guignard, she had five leaks after Wells completed his work: 3 leaks around chimneys, 1 leak in a valley, and 1 leak in the overhang roof. Guignard called Wells and he came to perform repairs at the end of August, 1985. He applied silicon in the valley, around the chimneys and around a picture window, and he inserted extra shingles in the valley. According to Guignard, none of the leaks stopped. According to Guignard, she called Wells incessantly from the end of August, 1985, to March, 1987, regarding the leaks. Wells came back several times to inspect the roof for leaks. Wells determined that one leak was the result of an electrician who put a hole and two nails in the roof. Wells repaired this leak even though it was not the result of his work. Wells flashed two chimneys. In June or July, 1985, Wells replaced the shingles in the valley. Wells repaired all the leaks except the one in the overhang. Wells never found any evidence of a leak in that area. Guignard believes that area is leaking because the siding has become discolored and because she saw rain water running around the siding when she stood under the overhang in a heavy rain. Wells says that he told Guignard that the possibility existed that excess rain water from a heavy rain could run down the siding because of the slant of the roof. He saw the discoloration of the siding and says it results from the tree buds of a nearby tree falling on the roof, mixing with rain water, and running over the siding. Wells told Guignard that she needed to treat the siding with a water sealer to seal the wood. Sealing the wood was not part of his job and Guignard said she would do it, but never has. No independent or expert testimony was offered to show that a leak exists in the overhang or that any leak which is alleged to exist is the result of Wells' work.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Construction Industry Licensing Board, enter a Final Order dismissing the Administrative Complaint against James Wells. DONE AND ENTERED this 11th day of May, 1988 in Tallahassee, Leon County, Florida. DIANE K. KIESLING 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 11th day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5603 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional Regulation, Construction Industry Licensing Board Proposed finding of fact 1 is adopted in substance as modified in Findings of Fact 1 and 2. Proposed findings of fact 2 and 3 are rejected as being unsupported by the competent, substantial evidence. Proposed findings of fact 4-8 are subordinate to the facts actually found in this Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, James Wells Proposed finding of fact 6 is adopted in substance as modified in Finding of Fact 11. Proposed finding of fact 12 is adopted in substance as modified in Finding of Fact 10. Proposed finding of fact 1 is adopted as a Conclusion of Law. Proposed findings of fact 2 and 9-11 are rejected as being unnecessary for the resolution of this matter. Proposed findings of fact 3-5, 7, and 8 are subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: David L. Swanson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harold S. Richmond, Esquire 227 East Jefferson Street Post Office Box 695 Quincy, Florida 32351 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Petitioner is entitled to recover attorney's fees and costs against Respondent and, if so, in what amount.
Findings Of Fact In July 1995, Petitioner, Richard Glass, resigned as the Right-of-Way Administrator for the Florida Department of Transportation (FDOT), District VI, in Miami, Florida. He immediately opened his own consulting firm called, Glass Land Acquisition Service Specialists, Inc. (Glass Acquisition, Inc.) and employed his mother, Josephine Glass, as a principal in the company. In February or March 1996, FDOT awarded Glass Acquisition, Inc., a professional services contract (Contract), under which Petitioner's company would provide services related to the acquisition of property for FDOT. The Contract was executed in June 1996. Pursuant to the terms of the Contract, Glass Acquisition, Inc., would be assigned projects as they became available and at the discretion of FDOT, and up to a value of $500,000.00 without the necessity of any further bidding. Among the unsuccessful competitors for this contract were Kaiser Real Estate Services and Post, Buckley, Schuh and Jernigan, Inc. Bids or proposals submitted by competing consultants for the Contract were first reviewed by FDOT's technical review committee. Richard Lineberger was a member of that committee which reviewed the bids or proposals submitted by Glass Acquisition, Inc., Kaiser Real Estate Services, and Post, Buckley, Schuh and Jernigan, Inc. At the time that Lineberger served on the technical review committee, he was living with Martha Budney, but they were not married. At the time the aforementioned bids or proposals were being reviewed and considered by FDOT, Martha Budney was a real estate appraiser who shared office space with Glass Acquisition, Inc. Ms. Budney was not associated with Glass Acquisition, Inc. However, Ms. Budney owned her own company and Richard Glass was a vice-president of Ms. Budney's company. When the final decision at FDOT on the Contract award was made, Gus Pego was employed by FDOT as Director of Operations. When the FDOT was reviewing bids or proposals relevant to the Contract, Gus Pego's brother was married to Richard Glass' sister. During the first half of 1996, Richard Glass was hired by the Turnberry Group to represent them in negotiations with FDOT for the acquisition of certain properties. These negotiations required the services of an appraiser. Martha Budney was the appraiser selected or hired to represent the property owners. For providing these appraisal services, Ms. Budney was paid by FDOT. During these negotiations, Ms. Budney and Petitioner shared office space. Richard Lineberger represented FDOT in the negotiations between the Turnberry Group and FDOT. While these negotiations were taking place, Ms. Budney and Mr. Lineberger were living together. In light of Petitioner's recent employment with the FDOT, the professional relationship of Petitioner and Ms. Budney, the personal relationship of Ms. Budney and Mr. Lineberger, and the "in-law" relationship between Gus Pego and Petitioner, some former and current FDOT employees were concerned that the Contract award to Glass Acquisition, Inc., was improper. They believed that these various relationships created a conflict of interest. In July 1996, after the Contract was awarded to Glass Acquisition, Inc., Jackie Yanks Gonzalez, a former FDOT employee and an employee of Kaiser Real Estate Services, contacted Maria Lopez, an acquisitions agent for FDOT who was working on the Turnberry Group Project. Ms. Gonzalez told Ms. Lopez that her employer was concerned because of the appearance of nepotism in the award of the $500,000.00 Contract to Glass Acquisition, Inc. Moreover, after the Contract was awarded, an anonymous telephone call was made to FDOT to complain about the Contract award. An inquiry into the matter by the FDOT in Tallahassee, Florida concluded that there was no impropriety in the awarding of the Contract to Glass Acquisition, Inc. Notwithstanding the finding of the FDOT that there was no impropriety in the awarding of the Contract to Glass Acquisition, Inc., several individuals, both former and current FDOT employees (the Group) remained concerned that the award of the Contract was improper. Although some of these individuals, particularly current FDOT employees, believed or suspected that there was some impropriety in the Contract award, they declined to press forward with the matter for fear of retaliation. One member of the Group, Maria Lopez, eventually became acquainted with Respondent, Eileen Moran. At that time and at all times relevant to this proceeding, Respondent was employed as an investigator with the Real Estate Section of the Florida Department of Business and Professional Regulation (DBPR). Prior to Respondent's employment with DBPR, she had been employed by the FDOT. Respondent's employment with the FDOT terminated in March 1992, after she was fired. Subsequently, Respondent filed a civil action in federal court against FDOT. Respondent prevailed in that matter. Ms. Lopez and other members of the Group approached Respondent for assistance in filing complaints with the Ethics Commission against several former and current FDOT employees. Ms. Lopez provided Respondent with information Lopez thought was relevant to the Group's belief that the Contract award to Glass Acquisition, Inc., was improper. At the time Ms. Lopez provided this information to Respondent, Ms. Lopez believed it was true, either based on her personal knowledge of its truth or on her belief that she obtained the information from reliable sources. That information included: That Richard Lineberger was living with Martha Budney. That Martha Budney was sharing office space with Richard Glass. That Petitioner was an officer in Martha Budney's corporation. That Petitioner had hired Martha Budney to do appraisal work with the Turnberry Group. That Richard Lineberger was representing FDOT in the Turnberry Group negotiation process. That Gus Pego was an "in-law" of Richard Glass. That Gus Pego's "in-law" relationship with Petitioner made Petitioner's mother, Josephine Glass, Gus Pego's mother-in-law. (Respondent interpreted the "in-law" relationship between Gus Pego and Petitioner as meaning Gus Pego was married to Glass' sister.) That Petitioner was asked by Jose Abreu to resign from FDOT because of his actions in spreading a rumor about an alleged affair between Mr. Abreu and Ms. Lopez. Relying upon the above information provided by Maria Lopez and others, Respondent drafted and sent a letter to Bonnie Williams, the Executive Director of the Ethics Commission, requesting an investigation into these alleged conflicts of interest and nepotism. In the process, she repeated the above representations of fact made by Maria Lopez and others in the Group. In the letter dated July 31, 1996, to Ms. Williams, Respondent specifically requested that the Ethics Commission investigate the Contract award by FDOT to Glass Acquisition, Inc. Respondent noted that Richard Glass was formerly employed by FDOT as District Right-of-Way Administrator, but had been asked to resign from that position in July 1995. Respondent's letter stated that she was a former FDOT employee, having left FDOT in March 1992. According to Respondent's letter, "It is my understanding from individuals who were also employed by FDOT at the time that Petitioner was asked to resign due to malfeasance." Moreover, in the letter, Respondent stated that she believed the Contract was wrongfully awarded to Richard Glass and such award was in violation of Sections 112.3135, 112.3185(6), Florida Statutes. Section 112.3135, Florida Statutes, addresses the employment of relatives by public agencies; Section 112.3185(6), Florida Statutes, prohibits agency employees from procuring contractual services for his agency from any business entity of which a relative is an officer, partner, director or proprietor or in which such officer or employee or his or her spouse or child, or any combination of them, has a material interest. Respondent's letter to the Ethics Commission stated that her allegation that the Contract had been wrongfully awarded to Glass was based on the following facts: The principals of Glass Land Acquisition Service Specialist, Inc., include Richard Glass and his mother Josephine Glass. They employ Martha Budney, who was also formerly employed by FDOT at District VI in Miami. Richard Lineberger, who was employed by FDOT as Deputy Right-of-Way Administrator, sat on the Selection Committee which evaluated on which submitted bids on this contract. Mr. Lineberger has been romantically involved with Martha Budney for quite some time. Gustavo Pego, who is currently employed by FDOT as Director of Operations, awarded this contract to Glass Land Acquisition Service Specialist, Inc. Mr. Pego is married to Richard Glass' sister. Richard Glass is his brother-in-law and Josephine Glass is his mother-in-law. Respondent sent copies of the original Complaint regarding Richard Glass to Kaiser Real Estate Services; Post, Buckley, Schuh & Jernigan, Inc.; and, Sandra Gonzalez Levy, an Ethics Commissioner. The reason Eileen Moran provided copies to the aforementioned firms was that she considered them "interested parties." At the time Respondent sent the letters to Kaiser Real Estate Services and Post, Buckley, Schuh, and Jernigan, Inc., she was unaware that the Complaint was confidential. After receiving Respondent's letter, the Ethics Commission propounded seven written questions to Eileen Moran requesting more details about the various allegations involving Petitioner. Respondent answered each question as best she knew and based on information provided to her by Maria Lopez and others in the Group. Three of the seven questions propounded to Respondent by the Ethics Commission involved the issue of nepotism. These questions asked whether any of Richard Glass' relatives had been appointed, hired, promoted, and advanced at FDOT during the time Petitioner worked there; if such appointments, hires, promotions or advancements occurred, whether Petitioner had the authority to make such hires or promotions and whether Glass actually appointed, hired, promoted or advanced his relatives; and, if Glass had no such authority, did he have the authority to recommend such appointment, hiring, promotion, or advancement of his relatives and, if so, did he exercise the "recommending authority" in regard to his relatives. In a letter to the Ethics Commission dated October 21, 1996, Respondent answered the questions described in paragraph 20 above. In her response, Respondent indicated that both Linda Glass, Richard's sister, and Jean Polacek, Richard's mother-in- law, were promoted during his tenure at FDOT and that Richard Glass did not have the direct authority to promote these relatives, but was in a position to recommend that these relatives be promoted. Respondent wrote that, "The individual providing this information believes that [Petitioner] recommended these promotions, but did not observe him making said recommendation." Wayne Maxwell was authorized to investigate the allegations in the Complaint on behalf of the Ethics Commission. Mr. Maxwell considered the issue relating to the conditions of Richard Glass' termination from FDOT to be irrelevant to his inquiry and made no inquiries on this issue. During the course of the Ethics Commission investigation, Wayne Maxwell determined that it was Gus Pego's brother, not Gus Pego, who was married to Richard Glass' sister. Wayne Maxwell was told by FDOT management that the $500,000.00 Contract had not been in existence at the time that Richard Glass was the Right-of-Way Administrator at FDOT, District VI. Moreover, it was found that Mr. Glass had not been involved in the development of the Contract during his employment with FDOT. Wayne Maxwell found no conflict of interest or violations of the anti-nepotism law because none of the relationships between Gus Pego, Richard Glass, Richard Lineberger, and Martha Budney qualified as "relatives" under Section 112.3135, Florida Statutes. Wayne Maxwell incorporated his factual findings in a report, which was forwarded to the Advocate. Based on these findings, the Commission's Advocate recommended that there was no probable cause to support any of the allegations brought by Respondent. This recommendation was accepted by the Ethics Commission. The Ethics Commission did not find conflicts of interest between Richard Glass, Gus Pego, Richard Lineberger, and Martha Budney in the award of the $500,000.00 Contract or the negotiations with the Turnberry Group. Mr. Glass contends that Respondent's Complaint contained the following four false statements: (1) Mr. Glass had been asked to resign for malfeasance; (2) Mr. Glass promoted or aided in the promotion of his sister, Susan Glass; (3) Mr. Glass' sister was married to Gus Pego, an FDOT employee; and, (4) Josephine Glass, Richard Glass' mother, was the mother-in-law of Gus Pego. Petitioner does not challenge the Respondent's statement that Gus Pego awarded this Contract to Glass Acquisition, Inc. All of the statements in paragraph (28) above, alleged to be false, were, in fact, found to be incorrect. With regard to the circumstances of Petitioner's leaving his employment with FDOT, there is no evidence that Petitioner was forced to resign for malfeasance. Rather, Petitioner's official personnel file reflects a positive employment record and excellent ratings during his twelve-year tenure with FDOT. Neither Ms. Lopez nor Respondent ever reviewed Mr. Glass' personnel file. However, based on Ms. Lopez's personal conversations with FDOT, Mr. Abreu and others, and a confidential memo written to Ms. Lopez, she believed that Petitioner had been forced to resign because of malfeasance. Ms. Lopez conveyed this belief to Respondent, who in turn, included this information in her letter to the Ethics Commission. However, in reporting this information in her Complaint, Respondent stated that she was not employed at FDOT when Petitioner resigned and that she obtained this information from other individuals. Next, although it was established that Mr. Glass' sister was employed by FDOT, it was determined that her name was Linda Glass, not Susan Glass as Respondent had stated in her Complaint. More significantly, the investigation revealed that while Linda Glass had been promoted while at FDOT, Richard Glass had not advocated her for such promotions. The other statements in Respondent's Complaint, alleged to be false relate to the in-law relationship between Petitioner and Gus Pego. In the Complaint, it was alleged that Josephine Glass was Gus Pego's mother-in-law by virtue of his being married to Richard Glass' sister. The Ethics Commission's investigation revealed that this was not the case. Instead it was Gus Pego's brother who was married to Richard Glass' sister. Thus, Josephine Glass was not Gus Pego's mother-in-law. Nonetheless, there was, in fact, a remote "in-law" relationship between the individuals. Respondent believed that the existence of any familial relationship created a potential conflict of interest in the awarding of the Contract. On the contrary, the investigator for the Ethics Commission viewed these relationships as too remote to consider them relatives under the applicable law. While each of the statements in paragraph 28 above and contained in Respondent's Complaint were determined to be incorrect, the statements were not known to be incorrect or false when made by Respondent. Rather, the statements were made in reliance on information conveyed to Respondent by Ms. Lopez and others whom Respondent deemed to be reliable. Petitioner consulted with Charles Rowe, an attorney, at his office shortly after receiving the Complaint and the amendments thereto. During this consultation, Mr. Rowe recommended that Respondent represent himself. Petitioner took Mr. Rowe's advice and during all proceedings before the Ethics Commission, Petitioner appeared pro se. No attorney filed an appearance to defend Petitioner nor did any attorney contact Wayne Maxwell or any other member of the staff of the Ethics Commission involved in the investigation in order to discuss testimony, evidence, witnesses or legal issues raised during the investigation. However, Petitioner and Mr. Rowe collaborated on a letter that Petitioner planned to send to Kaiser Real Estate Services and Post, Buckley, Schuh and Jernigan, Inc., regarding Respondent's July 31, 1996, letter to the Ethics Commission. Petitioner later decided not to send the letter. Moreover, although Petitioner was representing himself in this matter, he consulted with Mr. Rowe before each meeting with Wayne Maxwell and in regard to the hearing in Tallahassee, Florida, before the Ethics Commission. Sometime after the determination by the Ethics Commission that no probable cause existed based upon its investigation of Eileen Moran's complaints, Mr. Rowe presented Petitioner with a bill for $700.00 for legal services rendered. Richard Glass has never paid this bill. Richard Glass attended the January 22, 1998, Ethics Commission meeting in Tallahassee, Florida, which considered the Advocate's recommendation of no probable cause. Although he had been invited to attend prior to going to the meeting, Petitioner knew that a no probable cause recommendation would be made before the Ethics Commission. Nonetheless, Petitioner attended the meeting and in doing so, incurred the following costs: $240.00 for an airline ticket to Tallahassee; $12.50 for parking; $38.68 for a rental car; and, $10.49 for lunch. Mr. Glass testified that he had expended sixty-five hours of his own time to defend this matter and stated that he is entitled to be paid $83.07 per hour, his current hourly rate.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that a Final Order be entered finding that Respondent, Eileen Moran, is not liable for attorney's fees and costs and dismissing the Petition for Attorney's Fees. DONE AND ENTERED this 4th day of January, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of January, 1999. COPIES FURNISHED: Charles R. Rowe, Esquire 1310 North Krome Avenue Homestead, Florida 33030 Charles G. White, Esquire 2250 Southwest Third Avenue Suite 150 Miami, Florida 33129 Eric Scott, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Phil Claypool, General Counsel Commission on Ethics 2822 Remington Green Circle Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Kerrie Stillman, Complaint Coordinator Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Box 15709 Tallahassee, Florida 32317-5709
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 At all times material to this case, the Respondent, Joseph Lawton, was licensed as a registered roofing contractor in the State of Florida, holding license number RC 0052537. At all times material to this case, the Respondent was the qualifying agent for All Florida Systems located in Fort Lauderdale, Florida. The Notice of Hearing was mailed to Respondent at his last known address. Ronald Klein lives at 8245 Northwest Ninety-fifth Avenue, Tamarac, Florida. A portion of the roof on Mr. Klein's residence is flat and a portion is pitched. In the middle of August, 1987, Respondent met with Mr. Klein at the Klein residence to discuss Mr. Klein's roofing needs. Respondent told Mr. Klein during their meeting that the flat portion of his roof needed to be re-roofed and quoted a price for the work that Mr. Klein found acceptable. This was the only meeting between Mr. Klein and Respondent and was the only time Mr. Klein has seen Respondent. There was no written contract between Respondent and Mr. Klein because Respondent did not mail to Mr. Klein a written contract as he had agreed to do. On Sunday, August 30, 1987, Earl Batten, one of All Florida System's workers, re-roofed the flat portion of Mr. Klein's roof. Mr. Klein paid Mr. Batten $1,575.00 for the work pursuant to the verbal agreement between Respondent and Mr. Klein. Mr. Klein made his check payable to Earl Batten because Respondent had told Mr. Klein to pay his worker when the work was completed. Mr. Klein noted on the check that the check was in payment of work done by All Florida Systems. Respondent did not obtain the permits required by local law for the work done on the Klein residence. Because there was no agreement to the contrary, it would have been Respondent's responsibility to obtain the permits required by local law. Respondent did not obtain the inspections required by local law for the work done on the Klein residence. Because there was no agreement to the contrary, it would have been Respondent's responsibility to obtain the inspections required by local law. Mr. Klein's roof began leaking after Mr. Batten completed his work on August 30, 1987. In response to three weeks of repeated telephone calls from Mr. Klein, Respondent sent one of his supervisors to inspect Mr. Klein's roof. The supervisor told Mr. Klein that the work had to be redone because the work on the flat roof had not been properly tied into the remainder of the roofing system. Mr. Klein was further advised by the supervisor that Respondent would be in contact with Mr. Klein. After Respondent failed to respond further, Mr. Klein hired a second roofing contractor who corrected the deficient work in October of 1987 at a price of $1,377.00. Between the time Mr. Batten worked on his roof and the time the second contractor corrected the deficiencies, Mr. Klein sustained damages to his residence which required expenditures of over $1,500.00 to repair. Respondent was previously disciplined by the Construction Industry Licensing Board in Case No. 90265.
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 having violated Sections 489.129(1)(d) and (m), Florida Statutes, and which imposes an administrative fine against Respondent in the amount of $5,000.00 and places Respondent on probation for a period of one year. DONE and ENTERED this 19th day of May, 1989, in Tallahassee, Florida. CLAUDE B. ARRINGTON 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 May, 1989. APPENDIX The findings of fact contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 18, 19, 20, 22 are adopted in substance; insofar as material. The findings of fact contained in paragraphs 16, 17, 21 of Petitioner's proposed findings of fact are subordinate. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph Lawton 1000 South Ocean Boulevard Apartment 6C Pompano Beach, Florida 33062 Kenneth E. Easley, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
Findings Of Fact At all times pertinent to the issues herein, Graciela Zara was a registered roofing contractor in the State of Florida having license number RC 0035417. Respondent qualified Rolando Lopez Roofing Corp. at all times material to the complaint. Roofing work was done on the building located at 8413 8415 Hardin Avenue; however, the roofing work was not done by Rolando Lopez Roofing, but rather by Chungo, an employee of M. G. Construction Company, the owner of the building. Certain materials for the roofing work were delivered to 8413-8415 Harding Avenue by Tops All Roofing & Building Products, Inc., and those materials were ordered by Rolando Lopez and/or Renee Garcia. Rolando Lopez Roofing performed roofing work at the the bank at Las Americas Shopping Plaza, 8500 N.W. 85th Street; however, there was no evidence presented that Rolando Lopez Roofing failed to obtain a permit for the work it performed. Tropical Roofing entered into a contract for roofing work at the home of Mr. Sosa, 3001 S.W. 96th Avenue, Miami, Florida. 2/ The work was subcontracted to and done by Rolando Lopez Roofing. Although a permit for the work was required, respondent failed to obtain a permit. The respondent was responsible for obtaining the permit because the contractor that performs the work is responsible for obtaining the permit. Leon Gomez entered into a contract with Rene Garcia for roofing work at 309 Pinecrest Drive. Rene Garcia performed the roofing work on the house and was paid for the work by Mr. Gomez. However, the permit for the roofing work was obtained by the respondent. Roofing work was performed at the home of Felipe Acosta, 401 Flagami Boulevard, Miami, Florida. The permit for the roofing work was obtained by respondent. The contract for the work was with Rolando Lopez Roofing. The roofing work was performed by Rene Garcia and other workers that Mr. Acosta did not know. Mr. Acosta does not know Rulando Lopez. The contract negotiations and the payment for the job were handled by Mr. Acosta's brother. Mr. Acosta did not know whether Rene Garcia or Rolando Lopez received payment for she roofing work, but he knows his brother paid one of them. The roofing work was performed pursuant to the contract with Rolando Lopez Roofing. On June 1, 1983, Rolando Lopez Roofing Corp. issued a check for $11,667.86 to Tops All Roofing & Building Products. The check was returned by the bank stamped "Account Closed." On September 16, 1983, Rolando Lopez was adjudicated guilty of issuing a worthless check in violation of Section 832.05. Mr. Lopez paid $5,000 in restitution to Tops All Roofing & Building Products, but he was unable to pay the remaining amount because he has been unable to get any work. There was no evidence that Rolando Lopez Roofing Corp. failed to pay creditors for materials furnished. Although Rolando Lopez failed to make full restitution to Tops All Roofing and Building Products for the $11,667.86 check that was returned, there was no evidence that the check was for building supplies furnished to Rolando Lopez Roofing. Rolando Lopez testified that the check was written for the benefit of his nephew, Rene Garcia, to be used as collateral. Further, there was no evidence that Tops All Roofing & Building Products had furnished any building materials to Rolando Lopez Roofing prior to June 1, 1983, the date of the check. There was no evidence presented that Rene Garcia was not licensed by the State of Florida as a registered or certified roofing contractor
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Respondent be placed on probation for a period of six months. DONE and ORDERED this 2nd day of January, 1985, in Tallahassee, Leon County, Florida. DIANE GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of January, 1985.
