The Issue Whether Respondent committed the violations alleged in the Administrative Complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is now, and has been at all times material to the instant case, a Florida-licensed roofing contractor and general contractor. He received his roofing contractor's license on August 10, 2004, and his general contractor's license on October 13, 2005. At all times material to the instant case, GGC has held a certificate of authority authorizing it to engage in contracting in Florida through a qualifying agent. At all times material to the instant case, Respondent has been the primary qualifying agent for GGC. On January 5, 2007, GGC, through Respondent, entered into a written contract with Assad and Millicent Thompson, agreeing, for $37,135.00, to construct a rear porch lanai addition to the Thompsons' single family home in Royal Palm Beach, Florida (Project). The Thompsons paid GGC (by check) $11,140.50 at the time they entered into the contract. They made three subsequent payments to GGC (by check) totaling $21,232.50. The last of these payments was made on or about April 17, 2007. On January 9, 2007, GGC, through Respondent, applied for a permit from the Palm Beach County Planning, Zoning, and Building Department to perform the work it had agreed to do on the Thompsons' home. The permit was subsequently issued. In or around March of 2007, GGC began work on the Project. Dissatisfied with the progress GGC was making on the Project, the Thompsons, on June 5, 2007, sent the following letter to Respondent: With reference to the delay in completing the above construction, we are writing to request your immediate attention. We would like to know specifically: The reason for the delay[.] Your intention in writing as to your estimated time of completion of [the] specified project. Please note we have not physically seen you since April 19, 2007. We understand that inspection of the roof on May 10th resulted in certain violations and as per your conversation with Assad [Mr. Thompson] (when he called you on May 20th), you had problems contacting the Engineer. Please note that his name, telephone and fax are clearly indicated on the plan[s]. Per telephone conversation with him, he has not heard from you recently. You have indicated impatience and anxiety on our part, quite frankly the patience of JOB would have run out long ago. The pile of rubbish is a breeding room for all kinds of creatures and has been a disgusting sight not only for us, but for our neighbors. The open roof has created a vulnerable situation for us and can only deteriorate as we are now in hurricane season. We urge you to contact us urgently with your plan of action. Not having received a written response from Respondent, the Thompsons, on June 25, 2007, sent a follow-up letter to Respondent, which read as follows We note that you have ignored our previous letter of June 5th and you have also failed to honor your telephone promises of June 8th and June 19th to proceed with stucco/electric/rubbish removal etc. In fact absolutely nothing has been done on this job since May 18th. This is totally unacceptable. We have arrangements in place for use of the patio July 14th, cancellation of which will result in serious inconvenience for us. Please be advised that if no progress is made by June 30, 2007, we will be forced to seek all measures at our disposal to have the patio satisfactorily completed. We once again request your urgent co-operation in this matter. The next day, June 26, 2007, the Thompsons received a letter from Respondent (sent by facsimile transmission) acknowledging his receipt of the Thompsons' June 25, 2007, letter. In his letter, Respondent explained that he was "in a bad situation financially" due to circumstances "out of [his] control" related to another project, and he asked the Thompsons to "help [him] resolve[] this matter" by paying the "stucco man" $1,000.00 for materials and an additional $1,000.00 "when [the stucco work] was completed," as well as paying $400.00 for a dumpster to be brought to the Project site (which payments would go towards the monies the Thompsons had to pay for the Project under their contract with GGC). The Thompsons wrote back to Respondent that same day (June 26, 2007), advising him that they would pay for the materials for the stucco work "upon presentation of the invoice, then pay $1,000 for the job on completion as [Respondent had] requested," and that they also would "pay the dumpster charges on completion of the clean-up." Ernest Joseph was the "stucco man" that GGC sent to the Thompsons' home to work on the Project. He last worked on the Project in mid-July 2007. The Thompsons paid Mr. Joseph (by check) a total of $2,000.00 for labor and materials. They also paid Onyx Waste Services (by check) $416.91 to have a dumpster brought to the Project site. Neither GGC, nor anyone acting on its behalf, did any work on the Project after Mr. Joseph left the site in mid-July 2007. The Project was incomplete when the work ceased.2 GGC provided the Thompsons no explanation for the stoppage. In fact, the Thompsons did not hear from GGC at all. The Thompsons were anxious for the Project to be completed, and they did nothing to prevent GGC from accomplishing this objective. After more than 90 consecutive days had passed without any work having been done on the Project, the Thompsons hired another contractor to finish the Project. The Project was ultimately completed. The Thompsons paid $17,540.00 for the additional work that was necessary to complete the Project. The total amount that the Thompsons paid for the Project was $52,329.91 ($32,373 to GGC; $2,000 to Mr. Joseph; $416.91 to Onyx Waste Services; and $17,540.00 to finish the work GGC had failed to do). This was $15,194.91 more than the contract price. Petitioner has incurred a total of $182.90 in investigative and prosecutorial costs in connection with the instant case (excluding costs associated with any attorney's time).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board issue a Final Order: (1) finding Respondent guilty of violating Section 489.129(1)(j) and (m), as alleged in Counts II and IV, respectively, of the Administrative Complaint; (2) suspending his license for a period of two years; (3) fining him $7,500.00; (4) requiring him to pay restitution in the amount of $15,194.91 to the Thompsons; (4) ordering him to reimburse the Department $182.90 for investigative and prosecutorial costs; and (5) dismissing Counts I and III of the Administrative Complaint. DONE AND ENTERED this 27th day of August, 2008, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 27th day of August, 2008.
The Issue The central issue in this case is whether the Respondent is guilty of the violations alleged in the administrative complaint dated October 19, 1989; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The Department and the Construction Industry Licensing Board are authorized to regulate and discipline licensees pursuant to Chapters 489-and 455, Florida Statutes. At all times material to the allegations in this case, the Respondent has been licensed as a certified general contractor, license number CG CO43229. That license was first issued in June of 1988, and will remain active and in effect for the 1989-92 licensing period. The license described in paragraph 2 was issued to the Respondent in his individual capacity. Respondent has not sought, and therefore has not obtained, a license to qualify a business entity as a general contractor. More specifically, Respondent did not obtain licensure for an entity known as Marlow Engineers and General Contractors. Further, Respondent is not registered as a primary or secondary contractor for that entity. On or about September 15, 1988, the Respondent, doing business as Marlow Engineers and General Contractors, entered into a contract with Joseph and Delores Cappella, owners of the home located at 7100 Thompson Road, Lantana, Florida. The purpose of the contract was to secure a porch addition to the structure for a total purchase price of $8106.00. The Respondent was to pour a foundation, install the porch and roof, and completely screen the room (including doors). The contract between these parties provided, in part: 3.2 The Contractor shall achieve Substantial Completion of the entire Work not later than Four work weeks from the time the permit is obtained. Permit will be applied for within five working days of the signing of the contract or when the deposit is received which ever is later. Subject to adjustments of this contract Time as provided in the Contract Document. The Respondent obtained the permit to begin the Cappella's porch on September 30, 1988. Within a few days, the Respondent started the slab work for the porch foundation. That work failed inspection and had to be corrected. Respondent worked sporadically on the porch project until October 11, 1988, when he stopped work. At that time only the concrete foundation with the support posts were in place. Respondent did not return to the work site until after October 24, 1988. From October 27, 1988 through Christmas of that year, the Respondent's work on the porch was infrequent and of a below quality standard. The Respondent failed the initial inspection on each aspect of the construction of the porch. Consequently, he was directed to correct all work before approvals could be sought. The Cappellas were required to hire an electrician to complete the electrical work for the porch, a handiman to correct the plaster/paint deficiencies, and a screen company to reinstall the screening correctly. Because of the foregoing, the Cappellas did not remit the balance owed to Respondent under the contract terms. As of January 15, 1989, the work on the porch had not been successfully completed by Respondent. Mrs. Cappella has not seen Respondent since that date. A contractor is responsible for the quality of the work undertaken for the permits he pulls. Inspections are performed by the permitting authority to assure that the work conforms to building code standards. Based upon the inspections performed for the Cappella porch, the Respondent failed the following inspections: footing inspection, the roofing (ultimately passed after third inspection), the roof metal (where the porch roof was connected to the existing structure), and the porch framing . The Cappella porch did not pass final inspection until January 27, 1989. The number of inspection failures was abnormally large for contractors performing similar work in Palm Beach County. Respondent's performance on the Cappella contract fell below the community standard both as to the time for completion of the work and the quality of work performed.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Professional Regulation, Construction Industry Licensing Board enter a final order finding the Respondent guilty of violating Sections 489.129(1)(g) and (m), Florida Statutes, and imposing an administrative fine in the amount of $750.00 together with a letter of guidance. DONE and ENTERED this 18th day of July, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 18th day of July, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-1417 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1 through 7 are accepted. Paragraph 8 is rejected as contrary to the weight of the evidence. But see finding paragraph 8. Paragraph 9 is accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: None submitted. COPIES FURNISHED: G. W. Harrell Senior Attorney Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Steven W. Marlow 580 South Dixie Highway Lantana, Florida 33462 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792
The Issue Whether Respondent, Department of Business and Professional Regulation, Electrical Contractors Licensing Board, appropriately denied Petitioner's, Kevin Harrington, application to take the examination for licensure as an electrical contractor.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Respondent is the state agency vested with the authority to test applicants seeking certification as electrical contractors. Petitioner is seeking certification (licensure) as an electrical contractor. On December 12, 2001, Respondent received Petitioner's application to take the Electrical Contractors Unlimited examination. On December 24, 2001, Respondent mailed Petitioner a letter requesting additional information. The letter requested that the additional information be received by Respondent no later than January 4, 2002. This date was later extended to January 8, 2002. On January 4 and January 7, 2002, Petitioner, through his attorney, forwarded the requested additional information to Respondent. Petitioner's application was complete on January 10, 2002. Respondent, Electrical Contractors Licensing Board("Board"), met on January 16 and 17, 2002. The Board delegates initial consideration of applications to take certification examinations to an Applications Committee consisting of members of the Board who make recommendations to the full Board on each application. Each application is examined by at least two Applications Committee members; if both recommend "denial of the application," or, if one recommends "approval of the application" and one recommends "denial of the application," the application is reviewed by a third Applications Committee member. Each member of the Applications Committee is provided a worksheet as a part of the application package which lists reasons for denial drawn from Subsection 489.511(2)(a)(3), Florida Statutes. After each application is considered by members of the Applications Committee, the application with the Applications Committee's recommendations, reasons for denial (if applicable), and other comments are given to a staff employee who prepares an approved/denial list which is presented to the full Board for consideration. The foregoing procedure was followed in the instant case. On January 16, 2002, Board members, Roger Lange and Kim DeBerry, who were members of the Applications Committee, considered Petitioner's application; both recommended denial of the application. Because there were two recommendations of denial, the application was considered by a third Applications Committee member, Dawn Johnson; she, too, recommended denial. Petitioner's application and the recommendations, reasons for denial, and comments of the Applications Committee were then given to a staff employee who prepared a summary list of all applicants with the recommendations for approval or denial by the Applications Committee with reasons given for denial for submission to the full Board. The full Electrical Contractors Licensing Board considered Petitioner's application on January 17, 2002, and unanimously denied the application. Petitioner was advised of the denial by letter dated February 8, 2002. Petitioner's Applicant's Affidavit dated November 16, 2001, indicates that he was seeking a license under Subsection 489 .511(2)(a)(3)(a), Florida Statutes. The Applicant's Affidavit specifically states: 489.511(2)(a)(3)(a), F.S. Has, within the six (6) years immediately preceding the filing of the application, at least three (3) years proven "management experience" in the trade or education equivalent thereto, or a combination thereof, but not more than one- half of such experience may be educational. (Please submit at least three (3) years of W- 2 Forms) The occupational skills and responsibilities of an electrical contractor are unique and require experience and understanding which are typically acquired by extensive, direct "on-the-job" training in the electrical contracting trade. Petitioner is an experienced General Contractor's project manager. His credentials as a General Contractor's project manager are impressive and the projects he has supervised are extensive. Petitioner has little or no direct supervisory experience in the electrical contracting trade. Petitioner's construction management experience is as a General Contractor project manager, not an Electrical Contractor project manager or similar position, and, as a consequence, he does not meet the "'management experience' in the trade" statutory requirement. Petitioner has an enviable academic record: an Associate of Science Degree With Honors from Miami-Dade Community College (1990), a Bachelor of Science in Building Construction from University of Florida (1993), 21 hours of graduate studies at Florida International University leading towards a Master of Building Construction degree. Petitioner's academic credentials have little direct application to the electrical contracting trade and, as a consequence, do not meet the "educational equivalent" to management experience statutory requirement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner's application to take the Certified Electrical Contractor's Licensure Examination. DONE AND ENTERED this 10th day of January, 2003, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of January, 2003. COPIES FURNISHED: Barbara Rockhill Edwards, Esquire Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Rosemary Hanna Hayes, Esquire Hayes & Associates 3117 Edgewater Drive Orlando, Florida 32804 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Anthony B. Spivey, Executive Director Electrical Contractors Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
