The Issue The Florida Construction Industry Licensing Board (Petitioner herein) seeks to revoke Carroll L. Mozingo's (Respondent herein) license to practice as a registered general contractor based on allegations which will be set forth hereinafter in detail that he diverted funds in violation of Chapter 468.112(2)(e), Florida Statutes. Based upon my observation of the witnesses and their demeanor while testifying and the entire record compiled herein, I make the following:
Findings Of Fact The Respondent is a registered general contractor, who holds current license no. RG0015876. On September 7, 1976, Respondent entered into a contract with Robert Johnson and his wife Sandra Johnson for a room addition and patio to their house located at 197 North Roscoe Blvd., Ponte Vedra Beach, Florida. The full amount of the contract plus agreed upon extras amounted to $9,640.00. (Petitioner's Composite Exhibit Number 2) Respondent applied for and obtained a building permit for the construction of the Johnson's addition on or about September 27, 1976, and construction commenced shortly thereafter. (Petitioner's Exhibit Number 1) Donald Jermaine, a St. Johns County field inspector, testified that he conducted inspections on the subject job and noted numerous violations of the St. Johns County Building Code. He coordinated the inspections for this project up until the time it was abandoned by Respondent during mid February, 1977. At the time of abandonment, the owner, Robert Johnson, had paid a total amount of $11,021.96 to Respondent and/or various suppliers. To complete the job as contracted by the parties (Johnson and Mozingo) Messr. Johnson had to pay Proctors Construction Company $2,800.00, an electrical contractor $369.00 and a plumbing contractor $520.00 for a total expenditure over and above the above referenced contract amount of $3,689.00. He testified that no additional work was done to his home. The Respondent testified that he expended $7,458.00 for materials on the Johnson project and was unable to complete it because his mortgage payments were delinquent and he was not receiving any additional monies from Messr. Johnson to fulfill his obligations. He testified that he was unable to work at night and therefore had to seek other employment with another contractor. The above explanation by the Respondent which led to his abandonment of the subject project does not excuse him from his contractual obligations to either fulfill the contract as agreed upon or to seek a renegotiation based on additional costs and/or unexpected circumstances. This was not done nor was any other explanation given as to where the additional monies in excess of $4,000.00 was spent. I therefore conclude that he engaged in a diversion of funds as alleged in the administrative complaint filed by the Petitioner on May 27, 1977. I shall so recommend.
Recommendation Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the Respondent's general contractor's license be suspended for a period of two years. RECOMMENDED this 2nd day of December, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 C. H. Hoskinson, Chief Investigator Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211 Carroll L. Mozingo 1909 Ed Johnson Drive Jacksonville, Florida 32218 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. DIVISION OF ADMINISTRATIVE HEARINGS, DOCKET NO. 77-1095 CARROLL L. MOZINGO dba CARROLL CONSTRUCTION COMPANY, RG 0015876, 1909 Ed Johnson Drive, Jacksonville, Florida 32218, Respondent. /
Findings Of Fact Based upon the record evidence, the Hearing Officer makes the following findings of fact: Martin Gold is now, and has been since July, 1986, licensed by Petitioner as a Registered Specialty Contractor authorized to do painting and waterproofing work in Dade County. He holds license number RX 0051718, which expires June 30, 1989. Since receiving his license he has been disciplined twice by the Florida Construction Industry Licensing Board. Gold is the President of Team Leisure Corp., a construction company, and is also its "qualifying agent." On August 14, 1986, Team Leisure Corp. entered into a written contract with Terry Dudley and his wife, Patricia, in which it agreed, for $12,000, to build a two-room, 27-foot by 13- foot addition to the Dudley home located at 15510 Leisure Drive in Dade County and to install new windows in the existing structure. According to the terms of the agreement, Team Leisure was to do "no painting." In his capacity as President of Team Leisure Corp., Gold hired William Sernaker to directly oversee the completion of the construction work specified in the Dudley contract. At the time, Sernaker was licensed as a general contractor in Dade County. As part of his arrangement with Gold, Sernaker assumed responsibility for ensuring that all work permits and inspections necessary to complete the Dudley project were obtained. On September 4, 1986, Sernaker obtained a building permit for the Dudley project. Thereafter, work on the project commenced. The foundation for the addition was laid and, on September 10, 1989, it passed the inspection of James Tucker, a Dade County building inspector. Fifteen days later, Tucker conducted a tie beam inspection. This phase of the project also received his formal approval. Sernaker obtained a roofing permit on October 14, 1986. The exterior of the roof was inspected by Russell Bergsma, another Dade County building inspector, on October 21, 1986. It too passed inspection. An electrical permit was obtained for the Dudley project on November 17, 1986, by Robins Electric, a subcontractor. When the electrical work was initially inspected by Grant Morse, another Dade County building inspector, it was rejected because there were a "few outlets missing." The record is unclear as to the results of any subsequent electrical inspections. Morse also conducted an inspection of the framing work done on the Dudley project. He did so on or around November 21, 1986. In his view, the framing was "not to code." Accordingly, he left a "tag" at the job site on which he gave the following written explanation for his rejection of the framing work: All window bucks must be tight with caulking, no gaps. When the stucco meets the window frame, it should be set back at approximately a 45-degree angle at a width of one quarter to provide a groove to be filled with caulking. Continuous back bed of caulking must be maintained. A follow-up inspection of the framing work was performed by Bergsma on December 1, 1986. In Bergsma's opinion, while some corrections had been made, deficiencies remained. He therefore issued another rejection. A third framing inspection was conducted on December 3, 1986. Tucker was the inspector who performed this inspection. He approved the work that had been done. Prior to this inspection, Gold had paid another contractor $600 to "redo" the framing. This additional expense was not passed on to the Dudleys. Morse attempted to conduct a final building inspection on December 22, 1989. He was unable to do so, however, because "[n]o one was home." From the outset, Gold kept abreast of the progress that was being made on the Dudley project by communicating with Sernaker. He also visited the job site on at least a weekly basis. Gold also heard from the Dudleys concerning the status of the project. The Dudleys closely monitored the work of Sernaker and his crew. If the work was not done to their satisfaction, they expressed their disapproval to Sernaker and, if he did not rectify the matter, they complained to Gold over the telephone. The following were among the complaints made by the Dudleys: the foundation was not level; the roof did not contain any fiberglass material; the window frames did not fit properly; the wood used for the open beam ceilings had cracks in it and was unsightly; the walls in the den were not level and had cracks in them; the linoleum on the Dudleys' screened-in porch was ripped by workers putting up a wall; the outside stucco was cracking and peeling; and trash was left on the property. An effort was made to address the Dudleys' concerns. For instance, in response to the Dudleys' complaints, a "thin cap" was placed over the foundation to make it level. The roof was redone with fiberglass material. The Dudleys were reimbursed for the linoleum they needed to replace on their porch. A contractor was hired to correct the framing problem. Nonetheless, the Dudleys became increasingly dissatisfied with Team Leisure Corp.. Sometime shortly before January 6, 1987, they became so dissatisfied that they ordered Sernaker and his crew off their property and refused to make any additional payments. Following this incident, Gold met with the Dudleys and attempted to mollify them. This was his first face-to-face meeting with them. He offered to send another contractor to the Dudleys' home to perform the work the Dudleys believed needed to be done to satisfactorily complete the project. The Dudleys accepted this offer. On January 6, 1987, Gold sent the Dudleys a letter which read as follows: As per our mutual agreement, these are the items you requested be taken care of. Once taken care of, you agree to sign completion certificate so we can be funded. COMPLETED (please check upon satisfaction) 1.) Touch up outside windows. 2.) Windows to be locked in. 3.) Walls in den to be taken down and leveled out. 4.) Frame around closet door. 5.) Fix two windows; replace concrete in doors and windows. 6.) Clean up. 7.) Replace vinyl, in rear den. 8.) $100.00 dollars to Mrs. Dudley, for clean-up. 9.) 10 year guarantee- roof and release of lien [sic]. 10.) Concrete over build. 11.) Crack under window sill. 12.) Nail in door frame. 13.) Gaps in drywall bedroom. 14.) Stucco cracking outside. 15.) Electrical inspection. (not to be Mike Charles.) Accepted and Approved: x x After receiving this letter, Mr. Dudley checked all but items 2, 5, 6, 8, and 9 on the letter's "completion certificate." Neither he nor his wife, however, signed this "completion certificate." Although the cracks in the outside stucco had been repaired at the time Dudley checked item 14, the stucco subsequently started cracking again. A final building inspection of the Dudley project was conducted by Tucker on January 13, 1989. The project was "turned down" by Inspector Tucker because it was unpainted. Under their contractual agreement, the Dudleys, not Team Leisure Corp., were responsible for the painting of the project. The painting was not done because the Dudleys noticed cracks reappearing in the outside stucco. On or around March 4, 1987, Mr. Dudley telephoned Inspector Bergsma and asked him to conduct an informal field inspection of the project. Bergsma complied with Dudley's request. When he arrived at the Dudley home, Dudley showed him a "gap on the rear of the house ... where the two roofs are at different levels and come together." Bergsma told Dudley that "[i]t didn't belong there" and that it would have to be eliminated if the structure was to pass a final building inspection. As of the date of the hearing, the structure had not passed such an inspection. Team Leisure Corp. received $10,200 for the work done in connection with the Dudley project. The remaining $1,800 of the $12,000 that the Dudleys were to pay pursuant to the contract was held in escrow by a bank. Ultimately, this $1,800, along with approximately an additional $500 from Team Leisure Corp., was given to the Dudleys as part of a settlement between them and Team Leisure Corp.. The money was to be used by the Dudleys to pay another contractor to complete the project to their satisfaction.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Construction Industry Licensing Board enter a final order (1) finding Respondent guilty of contracting outside the scope of his license in violation of Section 489.129(1) (j) , Florida Statutes; (2) imposing a $750 administrative fine upon Respondent for said violation, and (3) dismissing the remaining charges against Respondent set forth in the instant administrative complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of May, 1989. STUART M. LERNER 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 30th day of May, 1989. COPIES FURNISHED: Elizabeth Alsobrook, Esquire Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 323399-0792 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Carlos Garcia, Esquire 8603 Dixie Highway Suite 400 Miami, Florida 33143 =================================================================
The Issue DOAH Case No. 89-3902, the Barona and Carrow Complaints Whether Respondent violated Florida Statutes Section 489.129(1)(d), by willfully or deliberately disregarding and violating the applicable building codes or laws of the state or of any municipalities or counties thereof. Whether Respondent violated Florida Statutes Section 489.129(1)(m), by being guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. DOAH Case No. 90-1900, the Grantz, Victor, Beckett, Maffetonne, and Wolfe Complaints Whether Respondent violated Sections 489.129(1)(m), (j), and 489.105(4), and 489.119, Florida Statutes, by being guilty of gross negligence, incompetence, and/or misconduct. Whether Respondent violated Sections 489.129(1)(h), (m), (j), and 489.119, and 489.105(4), Florida Statutes, by being guilty of financial mismanagement or misconduct. Whether Respondent violated Section 489.129(1)(d), Florida Statutes, by wilful or deliberate violation or disregard of applicable local building codes and laws. Whether Respondent violated Sections 489.129(1)(m), (j), 489.119, and 489.105(4), Florida Statutes, by failing to properly supervise contracting activities he was responsible for as qualifying agent, which supervisory deficiency also reflected gross negligence, incompetence, or misconduct Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor. Whether Respondent violated Sections 489.129(1)(m), and (j), Florida Statutes, by giving a guarantee on a job to a consumer and thereafter failing to reasonably honor said guarantee in violation of Florida Statutes. DOAH Case No. 90-1901, the Klokow Complaint Whether Respondent violated Section 489.129(1)(d), Florida Statutes, by wilfully or deliberately disregarding and violating the applicable building codes or laws of the state or any municipalities or counties thereof. Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being guilty of fraud or of gross negligence, incompetency, or misconduct in the practice of contracting. DOAH Case No. 90-1902, the Meister Complaint Whether the Respondent violated Section 489.129(1)(n), Florida Statutes, by failure to obtain a permit. DOAH Case No. 91-7493, the Antonelli Complaint Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. DOAH Case No. 91-7951, the Insurance, Palomba, Romanello and Marin Complaints The Insurance Complaint Whether Respondent violated Section 489.129(1)(c), Florida Statutes, by violating Section 455.227(1)(a), Florida Statutes, by making misleading, deceptive, untrue, or fraudulent representations in the practice of his profession. Whether Respondent violated Section 489.129(1)(d), Florida Statutes, by wilfully or deliberately disregarding and violating the applicable building codes or laws of the state or any municipalities or counties thereof. Whether Respondent violated Section 489.129(1)(c), Florida Statutes, by violating Section 455.227(1)(b), Florida Statutes, by intentionally violating a Board rule. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. The Palomba Complaint Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. The Romanello Complaint Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. The Marin Complaint Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. DOAH Case No. 92-0370, the Pappadoulis Complaint Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing financial misconduct. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by committing gross negligence, incompetence and misconduct in the practice of contracting.
Findings Of Fact Pre-Hearing Admissions 3/ Admissions Applicable to All Cases Respondent is currently licensed as a contractor by the Florida Construction Industry Licensing Board. Respondent's current license number from the Florida Construction Industry Licensing Board is CG C040139. Respondent is licensed by the Florida Construction Industry Licensing Board as a certified general contractor. Respondent holds Florida Certified Roofing License No. CC-042792. Respondent is the qualifying agent for Tropical Home Industries, Inc. As qualifying agent for Tropical Home Industries, Inc., Respondent is responsible for all work performed. DOAH Case No. 89-3902 Respondent was licensed as set forth in items 1, 2, 3 and 4 above at the time of the job alleged in the Administrative Complaint. Exhibit "A", attached to the Request for Admissions 4/ is a true and correct copy of the contract between Sarah S. Carrow and the firm Respondent qualified at the time the contract was executed. As a qualifier for Tropical Home Industries, Inc., Respondent was responsible in his capacity as a certified general and roofing contractor for all work performed by Tropical Home Industries, Inc., pursuant to its contract with Sarah S. Carrow. Pursuant to the contract between Sarah S. Carrow and Tropical Home Industries, Inc., all work under said contract was to be completed in three (3) to six (6) weeks. Respondent, acting through Tropical Home Industries, Inc., failed to complete all work under the contract with Sarah S. Carrow within six (6) weeks after work was commenced. Respondent, acting through Tropical Home Industries, Inc., failed to obtain a final inspection of the work under the contract with Sarah S. Carrow prior to the building permit's expiration date. Broward County, Florida, has adopted the South Florida Building Code as its local ordinance governing residential construction. Respondent's failure to obtain a timely final inspection of the work performed pursuant to the contract between Tropical Home Industries, Inc., and Sarah S. Carrow is a violation of Section 305.2 of the South Florida Building Code. Section 1405.1 of the South Florida Building Code requires installation of either a window or vent fan in each bathroom. Section 3407.9(a) of the South Florida Building Code requires that flashing be installed on plumbing vent pipes which are installed through the roof. Any problems or deficiencies in the work performed by Tropical Home Industries, Inc., pursuant to its contract with Sarah S. Carrow were caused by employees and/or subcontractors of Tropical Home Industries, Inc. DOAH Case Nos. 89-3902, 90-1900, 90-1901, and 90-1902 DOAH Case No. 89-3902 The Baronas' house is located at 1251 Westchester Drive East, West Palm Beach, Florida 33417. Respondent contracted with the Baronas as the qualifying agent of Tropical Home Industries, Inc. The Baronas' house is located within Palm Beach County. Palm Beach County is the appropriate Building Department under which all inspections were to have been performed. DOAH Case No. 90-1901 On or about December 5, 1988, Respondent contracted with Mel Klokow, acting for Linda Klokow ("Klokow"), for the renovation of a screen porch with a roof to her home. Respondent contracted with Klokow as a qualifying agent of Tropical Home Industries, Inc. Permit No. 88-8085 was issued by the local building department. The work at the Klokow residence did not pass final inspection. DOAH Case No. 90-1902 In December of 1987, Respondent contracted to close in a screen porch for Janet Meister ("Meister"). Respondent contracted with Meister as the qualifying agent for Tropical Home Industries, Inc. Respondent failed to obtain a permit for the work performed at the Meister's. Respondent's failure to obtain a permit for the Meister job violated local building codes and Section 489.129(1)(n), Florida Statutes. DOAH Case No. 90-1900 The Grantz home is located at 10878 Granite Street, Boca Raton, Florida. The approximate amount of the contract price with the Grantz was $1,890.00. Respondent contracted for the Grantz job as a qualifying agent of Tropical Home Industries, Inc. Respondent began work at the Grantz residence on or about May 10, 1989. The work at the Grantz residence failed final inspection on July 12, 1989. Respondent wilfully violated applicable local building codes and laws on the Grantz project. Respondent wilfully disregarded local building codes and laws in connection with the Grantz project. Respondent deliberately violated applicable local building codes and laws in connection with the Grantz project. Respondent deliberately disregarded applicable local building codes and laws in connection with the Grantz project. On or about April 12, 1989, and April 17, 1989, Respondent contracted with Stephen Victor ("Victor") to install sliding glass doors at his home. The Victor residence is located at 9768 Majorca Place, Boca Raton, Florida. The contract price with Victor was $3,293.00. Respondent contracted with Victor as a qualifying agent of Tropical Home Industries, Inc. Victor paid a total deposit of $670.00 to Respondent. Respondent never began work at the Victor residence. On or about April 17, 1989, Respondent contracted with Vinton Beckett ("Beckett") to install windows at her home. The Beckett residence is located at 2501 N.W. 41st Avenue, Unit 302, Lauderhill, Florida. The contract price with Beckett was $1,684.00. Respondent contracted with Beckett as a qualifying agent of Tropical Home Industries, Inc. On or about October 29, 1988, Respondent contracted with Thomas and Sherry Maffetonne (the "Maffetonnes") to construct a patio enclosure at their home. The Maffetonne's residence is located at 22980 Old Inlet Bridge Drive, Boca Raton, Florida. The contract price for the work to be performed at the Maffetonnes was $4,350.00. Respondent contracted with the Maffetonnes as a qualifying agent for Tropical Home Industries, Inc. A five-year warranty on materials was given by Respondent for the work to be performed at the Maffetonne's. A one-year warranty on labor was given by Respondent for the work performed at the Maffetonne's. On or about June 6, 1989, Respondent contracted with Mr. and Mrs. Morton Wolfe (the "Wolfes") to install windows at their home. The Wolfe's residence is located at 7267 Huntington Lane, #204, Delray Beach, Florida. Respondent contracted with the Wolfes as the qualifying agent of Tropical Home Industries, Inc. Respondent failed to obtain a timely permit or call for required inspections at the Wolfe residence. DOAH Case No. 91-7951 On June 21, 1990, Tropical's general liability insurance coverage (policy number 891006GL327), produced by Steven Adams and Associates, Inc., (hereinafter "Adams and Associates") and afforded by Guardian P & C Insurance Company, expired. On July 17, 1990, Tropical issued a check to Adams and Associates in the amount of $2,475.00 to obtain general liability and workers' compensation insurance. Upon receipt of the check, Adams and Associates issued a Certificate of Insurance to the Davie (Florida) Building Department indicating that Tropical had general liability (policy number GL 235810) and workers' compensation insurance in force through July 17, 1991. After said Certificate of Insurance was issued, Tropical stopped payment on the check issued to Adams and Associates. Tropical failed to issue an additional check or remit payment of any kind, resulting in both the general liability and workers' compensation insurance being canceled, effective July17, 1990. In September of 1990, a Certificate of Insurance was submitted to the Davie Building Department indicating that Tropical had general liability insurance in effect from September21, 1990, until September 21, 1991. Said certificate had been altered in that the issue, effective, and expiration dates had been updated to reflect that the policy coverage was current and in force. The policy listed on the certificate (number 891006GL327, produced by Adams and Associates with coverage being afforded by Guardian P & C Insurance Company) expired on June21,1990, and was never renewed or kept in force after that date. The Davie Building Department had no other certificates or records indicating that Tropical had insurance coverage. Between July 17, 1990, and April 8, 1991, Tropical obtained five (5) building permits from the Davie Building Department. At no time during the aforementioned period did Tropical have general liability insurance, thereby violating Section 302.1(b) of the South Florida Building Code which requires that building permit applicants be qualified in accordance with PartI of Chapter 489, Florida Statutes. Licensees are required to maintain public liability insurance at all times as provided by rules promulgated pursuant to Part I of Chapter 489, Florida Statutes. Construction Industry Licensing Board records indicate that Tropical has general liability insurance coverage through Equity Insurance (hereinafter "Equity") of Hollywood, Florida. Effective June 8, 1988, Tropical's insurance with Equity was canceled. On February 20, 1991, Tropical entered into an agreement with Michael and Margaret Palomba (hereinafter "Palombas") to perform enclosure and remodeling work at the Palombas' residence located at 130 North East 5th Court, Ft. Lauderdale, Florida 33334. The approximate contract price was $11,978.00. On March 13, 1991, Tropical received a $2,994.50 deposit from the Palombas. On March 25, 1991, Tropical obtained a permit for the project from the Broward County Building Department. Subsequent to receiving the permit, Tropical removed an interior closet from the area that was to be remodeled. Subsequent to receiving the permit, Tropical removed interior plaster from the area that was to be remodeled. Subsequent to receiving the permit, Tropical removed exterior doors from the area that was to be remodeled. Tropical then stopped work stating that rotten wood had been discovered, and requested an additional $2,800.00 to continue with and complete the project. Tropical refused to perform any additional work without the Palombas agreeing to the added cost. Tropical failed to continue with the project pursuant to the original agreement. Tropical refused to continue with the project pursuant to the original agreement. Tropical failed to return any monies to the Palombas. In May 1991, the Palombas hired a second contractor, Dan Sturgeon, to complete the project for $13,830.00. On or about July 11, 1990, Tropical entered into an agreement with Don Romanello (hereinafter "Romanello") to construct a screen room on an existing slab at Romanello's residence located in Boca Raton, Florida. The contract price was $9,500.00. Tropical received $4,800.00 in payments from Romanello, but failed to obtain a permit or perform any work pursuant to the agreement. Tropical has failed to return any portion of Romanello's payments. Tropical refused to communicate with Romanello. Based on the preceding, Tropical committed misconduct in the practice of contracting. On or about June 23, 1990, Tropical entered into an agreement with Marcelina Marin (hereinafter "Marin") to construct a screen room at Marin's residence located in Broward County, Florida, for $4,021.00. Tropical received a $2,000.00 deposit from Marin at the time the agreement was entered into. Tropical failed to perform any work under the terms of the agreement. Tropical has failed to return Marin's deposit. Tropical has refused to return Marin's deposit. Based on the preceding, Tropical committed misconduct in the practice of contracting. DOAH Case No. 91-7493 On July 2, 1988, Respondent contracted with Anthony Antonelli ("Antonelli") to construct an aluminum roof over the patio and gutters of his residence at 9303 Laurel Green Drive, Boynton Beach, Florida. The price of the contract was $2,016.00. Antonelli paid a deposit of $500.00 to Tropical Home Industries. Respondent informed Antonelli that he would not be able to perform the work at the contracted price. Respondent never performed any work at the Antonelli's home. Respondent canceled the contract with Antonelli. Respondent failed to return the deposit paid by Antonelli to Tropical Home Industries. Testimony at Final Hearing Facts Applicable to All Cases Respondent is, and has been at all times hereto, a certified general and roofing contractor in the State of Florida, having been issued license number CG C040139 and CC 2042792. For all contracts and jobs referenced in all of the administrative complaints in these consolidated cases, Respondent acted through the contracting business with which he was associated and for which he was responsible in his capacity as a licensed contractor. DOAH Case No. 89-3902, The Barona and Carrow Complaints Respondent contracted with Rhonda Barona to build an addition to her home at 1251 Westchester Dr. East., West Palm Beach, Florida, for approximately $5,124. The work performed at the Barona residence took an unreasonable amount of time to complete. The permit issued to perform the work at the Barona residence was canceled and Respondent failed to obtain a final inspection. Respondent contracted with Sarah Carrow to build an addition at her home located at 1421 N. 70th Avenue, Hollywood, Florida, for approximately $14,460.60. Respondent allowed the permit to expire and failed to obtain required inspections at the Carrow residence. Respondent failed to fully comply with applicable local codes by failing to install a window or vent fan in the bathroom. DOAH Case No. 90-1900, The Grantz, Victor, Beckett, Maffetonne and Wolfe Complaints On or about March 31, 1989, Respondent contracted with John and Lori Grantz to install windows at 10878 Granite Street, Boca Raton, Florida, for the amount of $1,890.00. Work at the Grantz residence began on or about May 10, 1989. At the time work began, no permit had been obtained. A late permit was obtained on June 15, 1989, in violation of local codes. The work performed by Respondent at the Grantz residence failed final inspection on July 12, 1989, because the structure was not constructed as for the intended use. The windows which were installed were designed as a temporary structure, removable in cases of severe weather and not as a permanent enclosure. On or about April 12, 1989, and April 17, 1989, Respondent contracted with Stephen Victor ("Victor") to install sliding glass doors and windows at 9768 Majorca Place, Boca Raton, Florida, for the total amount of $3,293.00. Victor paid Tropical a total deposit of $670.00, but work never began. On or about April 17, 1989, Respondent contracted with Vinton Beckett ("Beckett") to install windows at 2501 N.W. 41st St., Unit 808, Lauderhill, Florida, in the amount of $1,684. A five-year warranty on materials and a one-year warranty on labor were provided to Beckett by Tropical. Respondent failed to obtain a timely permit or call for required inspections in violation of local law. Respondent failed to correct defects and deficiencies in the work performed at the Beckett residence in a reasonable amount of time. On or about October 29, 1988, Respondent contracted with Thomas and Sharee Maffetonne to construct a patio enclosure at 22980 Old Inlet Bridge Drive, Boca Raton, Florida, for the amount of $4,350.00. A five-year warranty on materials and a one-year warranty on labor were given. Respondent failed to correct defects and deficiencies in the work on the Maffetonne residence in a reasonable amount of time. On or about June 6, 1989, Respondent contracted with Morton Wolfe to install windows at 7267 Huntington Lane, #204, Delray Beach, Florida, for the amount of $1,668.13. Respondent failed to obtain a timely permit or call for required inspections at the Wolfe residence in violation of local codes. DOAH Case No. 90-1901 The Klokow Complaint On or about December 5, 1989, Respondent contracted with Mel Klokow, acting for Linda Klokow, for the construction of a screen porch with a roof to her home at 5292 N.E. 10th Terr., Ft. Lauderdale, Florida, for the sum of $4,473.00. Permit number 88-8085 was issued by the local building department. The work performed at the Klokow residence initially failed to pass the final inspection, and the Respondent failed to return to correct the code violations in a reasonable amount of time. DOAH Case Number 90-1902 The Meister Complaint In December of 1987, Respondent contracted to close in a screen porch for Janet Meister. Respondent failed to obtain a permit for the work performed, which is a violation of local building codes. DOAH Case Number 91-7493 The Antonelli Complaint On July 2, 1988, Respondent contracted with Anthony Antonelli ("Antonelli") to construct an aluminum roof over the patio and gutters at his residence at 9303 Laurel Green Drive, Boynton Beach, Florida. The price of the contract for the work to be performed at the Antonelli residence was $2,016.00. Antonelli remitted a deposit of $500 to the Respondent. Respondent informed Antonelli that he would not be able to perform said job for the contracted price and no work ever began. Respondent canceled the contract with Antonelli and failed to return the deposit to Antonelli. DOAH Case Number 91-7951 The Insurance, Palomba, Romanello and Marin Complaints On June 21, 1990, Tropical's general liability insurance coverage, policy number (891006GL327), produced by Stephen Adams & Associates, Inc., ("Adams & Associates") and afforded by Guardian Property & Casualty Company, expired. On July 17, 1990, Tropical issued a check to Adams & Associates in the amount of $2,475.00 to obtain and/or renew general liability and workers' compensation insurance. Upon receipt of the check, Adams & Associates issued a certificate of insurance to the Davie Building Department in Davie, Florida, indicating that Tropical had general liability (policy number 235810) and workers compensation insurance in force through July 17, 1991. After said certificate of insurance was issued, Tropical stopped payment on the check issued to Adams & Associates. Tropical failed to issue an additional check or remit payment of any kind resulting in the general liability and workers compensation insurance being canceled, effective July 17, 1990. In about September 1990, a certificate of insurance was submitted to the Davie Building Department indicating that Tropical had general liability insurance in effect from September 21, 1990, until September 21, 1991. Said certificate had been altered in that the issue, effective and expiration dates had been updated to reflect that the policy coverage was current and in force. The policy listed on the certificate (number 891006GL327), produced by Adams & Associates and afforded by Guardian Property & Casualty Company, expired on June 21, 1990, and was never renewed or kept in force after that date. The Davie Building Department has no other certificates or records indicating that Tropical has insurance coverage. Between July 17, 1990, and April 8, 1991, Tropical obtained five (5) building permits from the Davie Building Department. At no time during the aforementioned period did Tropical have general liability insurance thereby violating Section 302.1(b) of the South Florida Building Code which requires that building permit applicants be qualified in accordance with Part I of Chapter 489, Florida Statutes. Licensees are required to maintain public liability insurance at all times as provided by rules promulgated pursuant to Part I of Chapter 489, Florida Statutes. Construction Industry Licensing Board ("CILB") records indicate that Tropical has general liability insurance coverage through Equity Insurance Company ("Equity") of Hollywood, Florida. Effective June 8, 1988, Tropical's insurance with Equity was canceled. On February 20, 1991, Tropical entered into an agreement with Michael and Margaret Palomba (the "Palombas") to perform enclosure and remodeling work at the Palomba's residence located at 130 N.E. 5th Ct., Ft. Lauderdale, Florida 33334. The approximate contract price was $11,978.00. On March 13, 1991, Tropical received a $2,994.50 deposit from the Palombas. On March 25, 1991, Tropical obtained a permit for the project from the Broward County Building Department. Subsequent to receiving the permit, Tropical removed an interior closet and exterior doors from the area that was to be remodeled. Tropical then stopped work stating that rotten wood had been discovered, and requested an additional $2,800.00 to continue with and complete the project. Tropical refused to perform any additional work without the Palombas agreeing to the added cost. Tropical failed or refused to continue with the project pursuant to the original agreement and failed to return any monies to the Palombas. In May, 1991, the Palombas hired a second contractor, Dan Sturgeon, to complete the project for $13,000.00. 156. Based on the foregoing, Tropical committed misconduct in the practice of contracting. On or about July 11, 1990, Tropical entered into an agreement with Don and Norma Romanello (the "Romanellos") to construct a screened room on an existing slab at the Romanello's residence located in Boca Raton, Florida. The contract price was $9,500. Tropical received a $4,800.00 payment from the Romanellos but failed to perform any work pursuant to the agreement. Tropical has failed or refused to return any portion of the Romanellos payments and has refused to communicate with the Romanellos. Based on the preceding, Tropical committed misconduct in the practice of contracting. On or about June 23, 1990, Tropical entered into an agreement with Marcelina Marin to construct a screened room at Marin's residence located in Broward County, Florida for $4,021.00 Tropical received a $2,000.00 deposit at the time the agreement was entered into. Tropical failed to perform any work under the terms of the agreement, and has failed or refused to return Marin's deposit. Based on the preceding, Tropical committed misconduct in the practice of contracting. DOAH Case Number 92-0370 The Pappadoulis Complaint On or about February 11, 1990, the Respondent contracted with John Pappadoulis ("Pappadoulis") to remodel a Florida room for the agreed upon amount of $11,448.00 at his residence located at 983 Southwest 31st Street, Fort Lauderdale, Florida. Respondent received a deposit of $648.00, but never obtained a permit nor began work. The Respondent failed or refused to return Pappadoulis' deposit. John Pappadoulis has since passed away. Aggravating and Mitigating Circumstances Monetary Damages Several of the customers in these cases suffered monetary damages. The Baronas had to hire an attorney to deal with the Respondent. The Baronas also incurred additional costs in the work they performed to complete the contract. John and Lori Grantz also suffered monetary damages due to their dealings with the Respondent. The work at the Grantz residence was never completed by the Respondent. The Respondent filed a lien on the Grantz property and also filed a lawsuit to receive the full amount of the contract price. The Grantz had to hire an attorney to obtain legal advice and to defend the lawsuit. The Grantz prevailed in that lawsuit and a judgment was entered requiring the Respondent to refund the $500.00 cash deposit. The Grantz also spent at least $150.00 on attorney fees. The deposit money was never returned and none of their costs were ever reimbursed by the Respondent. Steven Victor also sustained monetary damages in his dealings with the Respondent. Victor paid the Respondent $670.00 as a deposit. No work was ever performed. After requesting the return of his deposit money and failing to receive it, Victor filed a civil action against the Respondent. Judgment was entered in favor of Victor, but the judgment was never paid. The Maffetonnes also sustained monetary damages in their dealings with the Respondent. The Respondent agreed to refund a portion of the contract money to the Maffetonnes due to a problem with the carpet he installed incorrectly, but failed to ever refund any money. The Maffetonnes therefore paid for goods which were defective, and never received a compensatory credit. Klokow also sustained monetary damages in his dealings with the Respondent Because of continuing roof problems, Klokow had to hire an independent roofing expert to inspect the roof and prepare a report. Mr. and Mrs. Palomba also sustained monetary damage due to their dealings with the Respondent. When the Respondent abandoned the Palomba job, the Palombas were forced to hire a second contractor at a higher contract price. The Respondent's actions also caused monetary damages to Antonelli, Pappadoulis, Marin, and Romanello. In each case, the homeowner paid a deposit to the Respondent, and the Respondent failed to ever perform work or return any of the deposit money. The Antonellis paid $500.00, Pappadoulis paid $648.00, Marin paid $2,000.00, and Romanello paid $4,800.00. Actual Job-Site Violations of Building Codes or Conditions Exhibiting Gross Negligence, Incompetence, or Misconduct by the Licensee Several of the jobs involved in these cases had actual job site violations of building codes or conditions which exhibited gross negligence, incompetence, or misconduct by the Respondent which had not been resolved as of the date of the formal hearing. At the Barona residence, the framing inspection failed twice before finally being passed a third time; the lath inspection failed three times before finally passing on the fourth time; and the final inspection failed and was never satisfactorily completed by the Respondent. At the Carrow residence, the Respondent failed to install a window or vent fan in the bathroom of the room addition which he installed. In addition to the building code violation, the work performed was incompetent as the structure installed leaked for many months. Further, the original permit expired prior to a final inspection ever being obtained. At the Grantz residence, the Respondent exhibited incompetence and misconduct by installing windows that he knew or should have known were unsuitable for the purposes specified by the customer. Severity of the Offense The large number of violations established in these cases indicates that the Respondent is a serious threat to the public. These violations establish that the Respondent had a pattern of failing to conduct any meaningful supervision of work in progress. And perhaps most serious of all is his frequent act of soliciting deposits for projects he apparently had no intention of even beginning, much less finishing. This latter practice borders on constituting some form of larceny. Danger to the Public The Respondent is a danger to the public in two ways. First, he is a financial threat to the public, most significantly by his practice of taking deposits for jobs he apparently did not intend to perform. Second, he is a threat to public safety, because the work he performs is often done in a haphazard, careless manner. The Number of Repetitions of Offenses As is obvious from the findings of fact and conclusions of law in this Recommended Order, the Respondent is guilty of numerous repeated offenses which occurred over a period of approximately three years. The Respondent's numerous offenses are indicative of an attitude of contempt or disregard for the requirements of the applicable rules and statutes. Number of Complaints Against Respondent The charges in these cases are based on fifteen separate customer complaints to the Department of Professional Regulation regarding the Respondent. Further, the Palm Beach County Construction Industry Licensing Board received four complaints from homeowners regarding the Respondent 5/ and the Broward County Consumer Affairs Department received twenty-nine complaints regarding the Respondent. 6/ Such a large number of complaints indicates that the Respondent's shortcomings were not isolated events, but represent a recurring problem. The Length of Time the Licensee Has Practiced The Respondent was first licensed as a state general contractor in 1987. He obtained his roofing contractor license shortly thereafter. The Respondent's licenses were placed under emergency suspension in August of 1991. Damage to the Customers The damages, monetary and otherwise, suffered by the Respondent's customers has already been addressed. In addition, all of the Respondent's customers mentioned in the findings of fact suffered a great deal of aggravation, stress, and frustration in dealing with the Respondent. Penalty and Deterrent Effect In these cases, the proof submitted demonstrates that no penalties short of revocation of the Respondent's licenses and imposition of the maximum amount of fines will act as a deterrent to the Respondent and others and as appropriate punishment for the many violations established by the record in these cases. Efforts at Rehabilitation There is no persuasive evidence in the record of these cases that the Respondent has become, or is likely to become, rehabilitated. To the contrary, the greater weight of the evidence is to the effect that the Respondent is unwilling or unable to conform his conduct to the requirements of the statutes and rules governing the practice of contracting.
Recommendation Based upon the foregoing findings of fact and conclusions of law, IT IS RECOMMENDED: That the Respondent be found guilty of all of the violations charged in each Administrative Complaint and Amended Administrative Complaint as noted in the conclusions of law, and that the Respondent be disciplined as follows: The Respondent be required to pay an administrative fine in the amount of $5,000.00 for each of the twenty-nine counts of violations charged and proved, for a grand total of $145,000.00 in administrative fines; The Respondent's license numbers CG C040139 and CC C042792 be revoked; and The Respondent be required to pay restitution to the following Complainants in the following amounts: Steven Victor - $670.00; John Grantz - $650.00; Don Romanello - $4,800.00; Marcelina Marin - $2,000.00; Anthony Antonelli - $500.00; John Pappadoulis' next of kin - $648.00. All restitution shall earn 12% interest per annum from the date the Complainants paid their deposit to Respondent. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 21st day of October, 1992. MICHAEL M. 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 21st day of October, 1992.
The Issue Whether the Petitioner violated Section 489.129(1)(a), Florida Statutes, by obtaining licensure by fraud or misrepresentation.
Findings Of Fact The Petitioner is the state agency responsible for licensure of certified general contractors. The Respondent Lawrence I. Paul, III, ("Respondent") is a licensed general contractor, holding State of Florida licenses GC C046485 and CG CA46485. On or about December 12, 1988, the Respondent submitted his application to the Department of Professional Regulation seeking leave to take the examination for certification as a general contractor. The Respondent subsequently took and passed the certified general contractors examination. In his application, the Respondent states that he is qualified to take the examination by virtue of having four years of proven experience as a workman or foreman of which at least one year was as a foreman. On the experience verification form submitted to the DPR as part of his application the Respondent states that from January, 1977 to January, 1980, he had been employed as a construction workman and that from January 1980 to January 1981 he had been employed as a construction foreman. The application includes an experience verification form executed by the Respondent and Paula Wisnik, a New York licensed architect. The form indicates that the Respondent had experience in steel erection form work, masonry walls, concrete slabs, footings, site work, excavation, rebar, trusses, and floor and ceiling joists, in single family residences, strip stores and high rise condominiums ten stories and higher. The experience verification form executed by Ms. Wisnik and the Respondent states as follows: I have read the CANDIDATE INFORMATION BOOKLET and reviewed the experience requirements and understand that any false information provided on this form may subject the person(s) signing below to disciplinary action and possible loss of license. I understand that DIRECT KNOWLEDGE does NOT mean that I am relying on a statement from the applicant that he has met the requirements. Ms. Wisnik has no direct knowledge of the Applicant's experience or of the applicant personally. Her knowledge was based upon information provided to her by Peter Wendt, another licensed architect. The Respondent originally sought to have Mr. Wendt complete the experience verification form. Mr. Wendt forwarded the form to Ms. Wisnik and she subsequently signed the document. Mr. Wendt has no direct personal knowledge of the Respondent's experience as set forth on the experience verification form. Mr. Wendt did not meet the Respondent until the Respondent's move to Florida, which occurred subsequent to the period of employment identified in the application. The greater weight of the evidence establishes that at the time the application was completed, the Respondent did not have the claimed four years of proven experience as construction worker or foreman. The Respondent's application states that first he became employed in the construction trade in January, 1977. In fact, he became employed full time in late December, 1978, with Paul Brothers, Inc., a family owned fire restoration business in Philadelphia. He worked primarily as a salesman and estimator with Paul Brothers until June, 1982, a period of approximately three and one-half years. Although there were periods when the Respondent worked on- site, it was not his primary responsibility throughout the employment period.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Professional Regulation, Construction Industry Licensing Board, enter a Final Order revoking the licensure of Lawrence I. Paul, III, as a certified general contractor, license numbers GC C046485 and CG CA46485. DONE and RECOMMENDED this 19th day of October, 1992, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 1992. APPENDIX TO CASE NO. 92-0193 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 1. The proposed finding is modified to reflect that the Respondent did not hold the licenses prior to examination. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 5. Rejected, illogical and unsupported by evidence. 6-7. Rejected, not supported by credible and persuasive evidence. COPIES FURNISHED: Daniel O'Brien, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Robert G. Harris, Esq. Senior Attorney Dept. of Professional Regulation 2295 Victoria Avenue #263 Fort Myers, Florida 33901 Timothy J. Murty, Esq. 1633 Periwinkle Way, Suite A Sanibel, Florida 33957 Wellington H. Meffert, II Chief Construction Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0750
Findings Of Fact E. J. Lamberth, III, is a certified general contractor having been licensed by the Florida Construction Industry Licensing Board. Mr. Lamberth's license was not renewed by the Florida Construction Industry Licensing Board when it expired in June, 1975. However, the Board does not question Mr. Lamberth's right to issuance of such a license pending the outcome of this hearing, and the failure of the Board to reissue Mr. Lamberth's license is an apparent administrative oversight. Mr. Lamberth applied and obtained building permits as a Construction Industry Licensing Board Certified General Contractor for construction of modifications or additions to the homes of Mr. and Mrs. Cohen, Mr. and Mrs. Retter, and Mr. and Mrs. DeChant. Copies of the applications for building permits were introduced in the evidence. Exhibit I is the application for the Retter's permit; Exhibit V is the application for the permit for the Cohen's permit; and Exhibit VII is the application for the DeChant's building permit. Lamberth notified the Board by letter received by the Board on or about December 24, 1974 of his resignation as qualifier for Addition Builders, Inc. Lamberth's employment with Addition Builders, Inc. began when he answered a newspaper advertisement for a certified general contractor placed by Richard Butler. Butler was looking for a certified general contractor to supervise construction and to obtain building permits for a construction business which he was at that time incorporating. Lamberth checked with the local Better Business Bureau and having determined that there were no complaints against Butler, entered into an employment agreement with Butler. Subsequently, Butler did incorporate and E. J. Lamberth be came Vice-president for Addition Builders, Inc., a Florida corporation. Lamberth's duties were to inspect plans for any modification or additions which Addition Builders, Inc. contracted to construct, to supervise construction, and to be the qualifying agent for Addition Builders, Inc. In August 1974, Richard Butler entered into a contract in behalf of Addition Builders, Inc. with Michael and Carol Retter for the construction of two-bedroom/one-bath addition to their house located at 460 N. W. Opa Locka Boulevard, North Miami, Florida. Construction of this addition was to take approximately three to six months. Construction began in September of 1974. The construction at the Retter's residence was supervised by the building superintendent or chief carpenter, Mr. Braddock. Construction on the addition was intermittent during September and slowed to a halt in October 1974. The Retters called Addition Builders, Inc. in November and were advised by Mr. Braddock that Mr. Butler had withdrawn from the business but that Braddock would continue with the construction and complete the addition. Construction on the Retter's addition was approximately 50 percent complete, the floor, roof and walls having been built but the windows, doors and plumbing fixtures not having been set. Braddock came and did some work and advised the Retters that he had taken over the business from Butler. Mrs. Retter testified that she was working full-time during this period but that on days when she and her husband were home the construction personnel came at 9:00 a.m. and left in mid-afternoon. The personnel who came, with the exception of Braddock, were subcontractors employed by Addition Builders, Inc. During this period, she did not see Mr. Lamberth who she saw for the first time the day of the formal hearing. The Retters first learned of Lamberth's association with Addition Builders, Inc. from the officials of the city of North Miami, who gave the Retters Lamberth's name as the party who had drawn the construction permit. In January the Retters contacted Mr. Lamberth who advised them that he had withdrawn from the company and could not help them. The contract price for the contract between the Retters and Addition Builders, Inc. was for $8,900 of which the Retters had paid $8,000 at the time construction of the addition ceased. It cost the Retters approximately $2,000 to finish the construction of the addition after Addition Builders, Inc. ceased to perform any work on the job. E. J. Lamberth, III, has been a full-time employee of the Dade County Recreation Department since January 9, 1963. He was employed by Richard Butler as a qualifying agent for Addition Builders, Inc. and was made Vice-president of that corporation. Addition Builders, Inc. began operation in late July or August of 1974. Lamberth performed the duties for which he was employed. He drew the construction permits required, inspected plans for modifications and additions to be built by Addition Builders, Inc., and visited the various construction sites of the corporation at noon and in the late afternoon to determine the progress being made by the subcontractors employed by Addition Builders, Inc. Through his contact with Mr. Braddock and the subcontractors employed by Addition Builders, Inc., Lamberth arranged for the scheduling of the subcontractors on the various jobs. At this time, Addition Builders, Inc. had between six and eight projects under construction. Lamberth was able to determine the progress being made on the various sites through his periodic inspections two to three times per week. These inspections and his conversations with the subcontractors revealed in early October that Butler was countermanding Lamberth's directions and canceling Lamberth's instructions given to subcontractors. Because of these activities, Lamberth advised Butler that he, Lamberth, would have to be in charge of the projects underway and schedule work on the projects or he would have to withdraw as qualifying agent for Addition Builders, Inc. Because of Butler's continued interference, Lamberth eventually resigned from his position with Addition Builders, Inc. in December 1974. Lamberth was not a stockholder in Addition Builders, Inc. When the work began on the various additions, Lamberth received 3 percent of the contract price as his compensation for his services to Addition Builders, Inc. Subsequent to being advised of the problems with Addition Builders, Inc., Lamberth attempted to locate Richard Butler. Richard Butler could not be located and has apparently left the State of Florida.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Florida Construction Industry Licensing Board take no action against the certificate of L. E. Lamberth, III. DONE and ORDERED this 12th day of October, 1976 in Tallahassee, Florida. COPIES FURNISHED: Barry Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida James W. Bowling, Esquire Vernis and Bowling Sailboat Bay - PH II 2951 South Bayshore Drive Coconut Grove, Florida 33133 STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. CASE NO. 76-1241 E. J. LAMBERTH, III, CG C006734, P. O. Box 570444, Miami, Florida 33157. Respondent. /
The Issue Whether Petitioners' claim for monies from the Florida Homeowners' Construction Recovery Fund is subject to adjudication pursuant to Section 120.57(1), Florida Statutes, and, if so, how much should Petitioners be awarded.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: On or about October 1, 1997, Petitioners entered into a contract in which they agreed to pay Respondent Norman Levinsky's company, Broward Roofing, Inc., $3,700.00 to place a "new shingle roof" on Petitioners' residence and perform other related roofing work. The contract provided Petitioners with a ten-year "labor warranty" and a 30-year shingle warranty. After the contracted work was completed and Petitioners paid Broward Roofing, Inc., the $3,700.00 called for by the contract, the newly-installed roof started leaking. Broward Roofing, Inc., refused to make the necessary repairs. Petitioners paid other contractors to perform the repair work. On November 17, 1998, Petitioner filed an application seeking to recover from the Florida Construction Industries Recovery Fund (which has since been renamed the Florida Homeowners' Construction Recovery Fund) $1,025.00 that they had paid for repairs to the "new shingle roof" Broward Roofing, Inc., had recently installed, contending that they were deserving of such an award inasmuch as "[t]he roofer [Broward Roofing, Inc.] [had] refused to fix [their] new roof that was leaking and [had] totally ignored [their] 10 year warranty." Their application was filed on a Board-produced Construction Industries Recovery Fund Claim Form (Form), at the end of which was printed the following: In addition to your complete written statement, we are requesting documentation of your contractual relationship with the contractor and evidence supporting your claim. Certified copies of the following list of documents are required to assist us in determining your eligibility for recovery. I have attached the following: (these documents are required for proper processing of your claim. Failure to provide required documentation will delay processing and could result in your claim being denied due to incompleteness.) Court certified copy of the Civil Judgment, and/or Final Order of the Construction Industry Licensing Board directing restitution be paid. Copy of contract between you and the contractor. Copies of applicable bonds, sureties, guarantees, warranties, letters of credit and/or policies of insurance. Court certified copies of levy and execution documents. Proof of all efforts/inability to collect restitution judgment. No claims will be processed until 45 days after the date of entry of the Civil Judgment and/or Final Restitution Order. On the completed Form that Petitioners filed, only the spaces next to "Copy of contract between you and the contractor" and "Copies of applicable bonds, sureties, guarantees, warranties, letters of credit and/or policies of insurance" were checked. On May 4, 1999, the Broward County Central Examining Board of Construction Trades filed an Administrative Complaint against "Norman Levinsky d/b/a Broward Roofing, Inc.," which read as follows: Count I At all times material hereto RESPONDENT was a roofing contractor holding Broward County Certificate of Competency #95-7726-R- R. On or about September 16, 1997, RESPONDENT entered into a contract to re- roof Complainant's home located at 10551 N.W. 21st Court, Sunrise, Florida. RESPONDENT obtained a building permit. The work was completed on March 10, 1998 and the roof began to leak on June 1, 1998. RESPONDENT failed to properly supervise to ensure that the tie in with flat roof was properly completed. His failure to ensure such a proper tie in resulted in leaks. Wherefore, it is charged that the RESPONDENT violated Subsection 9-14(b)(11) of the Broward County Code of Ordinances by failing to properly supervise a project commenced pursuant to a building permit. Count II Paragraphs 1 and 2 are included as if restated herein. Complainant paid RESPONDENT the total contract price of $3,700.00. RESPONDENT completed the work. RESPONDENT gave Complainant a 10 year labor warranty. RESPONDENT failed and refused to honor his warranty. Complainant had to pay additional amount of $1,025.00 for a new contractor to repair the work of RESPONDENT. Wherefore, it is charged that the RESPONDENT violated Subsection 9-14(b)(5)c of the Broward County Code of Ordinances by committing mismanagement which causes financial harm to a customer because the customer had to pay more for the contracted job than the original contract price. Count III Above paragraphs are included as if restated herein. RESPONDENT failed to honor the warranty and complete the project in a workmanlike manner for a period in excess of 90 consecutive days. Wherefore, it is charged that the RESPONDENT violated Subsection 9-14(b)(8) of the Broward County Code of Ordinances by abandoning a construction project in which RESPONDENT was under contract as a contractor. It is determined that the above stated charges are grounds for disciplinary action pursuant to Chapter 9, Sections 9-14, 9-28 and 9-46, Broward County Code of Ordinances and Section 6.11, Broward County Charter. Broward County has the authority to certify and discipline local contractors pursuant to Section 489.131, Florida Statutes. Following a hearing on the Administrative Complaint held May 25, 1999, the Broward County Central Examining Board of Building Construction Trades, on June 16, 1999, issued an Order, which read as follows: A Disciplinary Proceeding was held on May 25, 1999, before the Broward County Central Examining Board of Building Construction Trades (the "Board"), in accordance with Section 9-14, Broward County Code of Ordinances (the "Code"). Service of the Administrative Complaint filed against the Respondent was made by certified mail. The Respondent being duly advised was not present at the hearing. The Board heard the sworn testimony of William Grubb and Marlene Grubb. Upon consideration, it is ORDERED: The allegations of fact as set forth in the Administrative Complaint are found to be true and adopted and incorporated herein by reference as findings of fact. The conclusions of law alleged and set forth in the Administrative Complaint are approved and adopted and incorporated herein. Upon these findings, it is therefore ORDERED: That Respondent's Certificate of Competency is hereby revoked. That the Respondent make restitution to the Complainants in the amount of $3,700.00. Prior to the RESPONDENT being allowed to reinstate his certificate of competency or being allowed to sit for any exam administered by a Broward County Central Examining Board, or receiving any license from a Broward County Central Examining Board, RESPONDENT must appear before the Board and prove that the restitution amount has been paid in full. The board's order may be appealed by Petition for Writ of Certiorari to the Seventeenth Judicial Circuit within thirty (30) days of the date of rendition of the order of the board as provided by the Florida Rules of Appellate Procedure. FURTHER, the Broward County Central Examining Board of Construction Trades makes RECOMMENDATION to the Florida Construction Industry Licensing Board to impose on the state registration, the following penalty: 1. Revoke state registration and require the RESPONDENT to make restitution to the Complainants in the amount of $3,700.00. In accordance with Florida Statutes, Chapter 489.131(7)(c) and (d), the disciplined contractor, the complainant, or the Department of Business and Professional Regulation may challenge the local jurisdiction enforcement body's recommended penalty for Board action to the State Construction Industry Licensing Board. A challenge shall be filed within sixty (60) days of the issuance of the recommended penalty to the State Construction Industry Licensing Board in Jacksonville, Florida. If challenged, there is a presumptive finding of probable cause and the case may proceed before the State Board without the need for a probable cause hearing. Failure of the disciplined contractor, the complainant, or the Department of Business and Professional Regulation to challenge the local jurisdiction's recommended penalty within the time period set forth in this subsection shall constitute a waiver of the right to a hearing before the State Construction Industry Licensing Board. A waiver of the right to a hearing before the State Board shall be deemed an admission of the violation, and the penalty recommended shall become a final order according to procedures developed by State Board rule without further State Board action. Pursuant to Section 120.569, Florida Statutes, the Parties are hereby notified that they may appeal the Final Order of the State Board by filing one copy of a Notice of Appeal with the Clerk of the Department of Business and Professional Regulation, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 32399-0792, and by filing the filing fee and one copy of the Notice of Appeal with the District Court of Appeal within thirty (30) days of the effective date of said Order. On or sometime after September 1, 1999, Petitioners filed an affidavit prepared by Petitioner Marlene Grubb, which read as follows: I, Marlene A. Grubb, hereby certify that I have completed a reasonable search and inquiry in accordance with the instructions provided by the Construction Industry Licensing Board and have not found property or assets to satisfy my Board Order[1] in whole or part. Legal Names The Department of State revealed that the company Broward Roofing Inc. was administratively dissolved on 9/10/98. The C[IL]B verified the contractor[']s name and license number as: Norman Levinsky d/b/a Broward Roofing Inc. RC0047656. Real Property My search included property in the names: Norman Levinsky and Broward Roofing Inc. in Broward County, Florida. Norman Levinsky had no real property and Broward Roofing Inc. is delinquent on property taxes for over two years. Boats and Motor Vehicles There were no vehicles or boats in the motor vehicle data bank registered to Norman Levinsky or Broward Roofing Inc. Aircraft The FAA in Oklahoma City, Ms. Jeannie Vannest stated that there is no registration listed for Norman Levinsky or Broward Roofing Inc. On March 25, 2004, the Board rendered a Final Order Approving Recommended Order of Disciplinary Action by Local Enforcement Body, which approved the Broward County Central Examining Board of Building Construction Trades' June 16, 1999, Order and read as follows: THIS MATTER came before the Construction Industry Licensing Board (hereinafter referred to as the "Board") pursuant to Section 489.131(7), Florida Statutes, for a determination of whether to accept the proposed recommended penalty by the Broward County Central Examining Board of Building Construction Trades (a copy of which is attached and incorporated herein by reference). Neither the Petitioner, the Respondent nor the Complainant filed a challenge to the local enforcement body's recommended penalty to the Board. Upon consideration of the local enforcement body's Administrative Complaint, the minutes from the meetings on January 21, 1999, and May 25, 1999, and the Final Order of Disciplinary Action and its proposed recommended penalty to the Board in this matter and being otherwise fully advised in the premises it is hereby ORDERED AND ADJUDGED: The proposed recommended penalty is hereby approved and adopted in its entirety and incorporated herein by reference. In accordance with the recommended penalty, Respondent's state registration (RC 0047656) is hereby REVOKED. Respondent shall pay restitution in the amount of $3,700 to William and Marlene Grubb. Respondent will adhere to and abide by all of the terms and conditions of the recommended penalty. Failure to abide by the terms of this Order may result in further action by the Board. This Order shall be placed in and become a part of Respondent's official records. A change in the Respondent's licensure status, including the suspension, revocation, voluntary relinquishment, or delinquency of license, does not relieve the Respondent of his obligation to pay any fines, costs, interest or restitution imposed in this and previous orders. Pursuant to Section 120.68, Florida Statutes, the Parties are hereby notified that they may appeal this Final Order by filing a Notice of Appeal with the Clerk of the Department of Business and Professional Regulation, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 32399- 0792, and by filing the filing fee and one copy of the Notice of Appeal with the District Court of Appeal within thirty (30) days of the effective date of this Order. This Order shall become effective upon filing with the Clerk of Department of Business and Professional Regulation. This was the "Final Order of the Construction Industry Licensing Board directing restitution be paid," that, according to the Form Petitioners used to submit their claim for monies from the Florida Construction Industries Recovery Fund, was "required for proper processing of [their] claim." On June 10, 2004, more than five and a half years after Petitioners had filed their claim application, the Board met to determine the merits of their claim pursuant to Section 120.57(2), Florida Statutes. Although given due notice of the Board meeting, neither Petitioners, nor Mr. Levinsky, made an appearance, either in person or through a representative, at the meeting. "[U]pon consideration of the documentation and testimony submitted," the Board determined that Petitioners' claim for $1,025.00 should be "approved." On July 29, 2004, the Board rendered (that is, filed with the agency clerk) a written order to this effect, which read as follows: THIS MATTER came before the Construction Industries Recovery Fund Committee and Construction Industry Licensing Board (the "Board") pursuant to sections 120.57(2) and 489.143, Florida Statutes (2003) as well as rule 61G4-21.004, Florida Administrative Code, on June 10, 2004, in Coral Gables, Florida, for consideration of a claim for restitution from the Construction Industries Recovery Fund (the "Recovery Fund"). William [a]nd Marlene Grubb ("Claimants") and Norman Levinsky ("Licensee") were duly notified of the proceedings. At the proceedings before the committee and the Board, Claimants were not present, and were not represented by counsel. Licensee was not present, and was not represented by counsel. Upon consideration of the documentation and testimony submitted, it is ORDERED: Claimants satisfied all requirements for payment from the Recovery Fund. The Recovery Fund Claim was filed on November 17, 1998. The application was timely filed. The contractor was paid $3,700.00. Claimants were awarded restitution from the Construction Industry Licensing Board on March 24, 2004, in the amount of $3,700.00, pursuant to a Final Order Approving Recommended Order of Disciplinary Action by Local Enforcement Body. The Board adopted and approved the Broward County Central Examining Board of Building Construction Trades recommendation, which found: Contractor held a current and active license at all times material to the transaction; The construction contract is dated September 18, 1997; The work was completed on March 10, 1998, and the roof began leaking June 1, 1998; Contractor failed to honor the warranty on the roof; As a result, Claimants paid an additional $1,025.00 for repair work; Contractor violated subsection 9- 14(b)(5)c of the Broward County Ordinances by committing mismanagement, which caused financial harm to a consumer because the consumer had to pay more for the contractual job than the original contract price. The contractor engaged in activity that appears [to] violate section 489.129(1)(g)2, Florida Statutes (2003). There is an asset search in the file that shows no assets are available from which claimant can satisfy the judgment. Pursuant to section 489.143, Florida Statutes (2003), the maximum amount that the Recovery Fund can pay on a single claim is $25,000.00. Thus, the claim for restitution from the Recovery Fund is APPROVED in the amount of $1,025.00. In accordance with rule 61G4-21.005, Florida Administrative Code, the Secretary of the Florida Department of Business and Professional Regulation is directed to pay the claim from the Recovery Fund after forty-five days from the date upon which the Final Order is filed with the Agency Clerk. Pursuant to section 489.143(6), Florida Statutes (2003), upon payment of the claim from the Recovery Fund, Licensee's licensure to practice contracting is AUTOMATICALLY SUSPENDED without any further administrative action. Pursuant to section 489.143(2), Florida Statutes (2003), upon receipt by Claimant under section 489.143(1), Florida Statutes (2003) of payment from the Recovery Fund, Claimant shall assign his or her additional right, title, and interest in the judgment or restitution order, to the extent of such payment, to the Board, and thereupon the Board shall be subrogated to the right, title, and interest of the Claimant; and any amount subsequently recovered on the award, judgment or restitution order by the Board, to the extent of the right, title, and interest of the Board therein, shall be for the purpose of reimbursing the Recovery Fund. This Order shall become effective upon filing with the Clerk of the Department of Business and Professional Regulation. DONE AND ORDERED this 21st day of June, 2004. Appended to the order was the following Notice of Right of Appeal: You are hereby notified that mediation is not available in this matter. Pursuant to Section 120.569, Florida Statutes, you may seek review of the above by filing a request for hearing with the Executive Director of the Board at 1940 North Monroe Street, Tallahassee, Florida 32399-2202 within twenty-one (21) days of the filing of this Order. Upon request, you will receive an informal hearing pursuant to section 120.57(2), Florida Statutes. In the alternative, you may request a formal hearing pursuant to Section 120.57(1), Florida Statutes, if there are material facts in dispute; if you request a formal hearing, the petition must contain the information required by Rule 28-106.201, Florida Administrative Code, including specification of the facts which are in dispute. If you request a hearing, you have the right to be represented by an attorney or other qualified representative to take testimony. On August 12, 2004, Petitioners filed a Request for Hearing, complaining that they "should be awarded at least $3,475.00" to be adequately compensated for all of the repairs they had to make to their roof as a result of Broward Roofing, Inc.'s failure to meet its responsibilities. On August 30, 2004, the Board referred the matter to DOAH "for the assignment of an Administrative Law Judge to conduct a formal hearing" pursuant to Section 120.57(1), Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board issue an order dismissing Petitioners' Request for Hearing challenging the Board's order, rendered July 29, 2004, disposing of their claim for monies from the Fund, but allowing them, if they so desire, to request that that order be vacated and re-rendered so that they will have the opportunity to file a timely appeal in accordance with Section 120.68, Florida Statutes. DONE AND ENTERED this 28th day of December, 2004, 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 28th day of December, 2004.
Findings Of Fact At all times material to this action, Respondent was and presently is a registered plumbing contractor having been issued License No. RF0038438. On August 18, 1981, the Collier County Contractor's Licensing Board revoked Respondent's competency card to practice plumbing in Collier County. The revocation was based upon Respondent's violation of Sections 4.1.10 and 4.1.17, Collier County Ordinance No. 78-02. Respondent failed to appear at the public hearing held before the Collier County Contractor's Licensing Board on August 18, 1981.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent's license as a registered plumbing contractor be revoked. DONE and ENTERED this 9th day of August, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 1983. COPIES FURNISHED: Xavier J. Fernandez, Esquire Nuckolls, Johnson & Fernandez Post Office Box 729 Fort Myers, Florida 33902 Danny E. Fox Route 1, Box 54 Pleasant Shade, TN 37145 Mr. James Linnan Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Findings of Fact 1-13 are made based upon the Stipulation of the parties filed on July 10, 1987. Respondent is, and was at all times material to the pending amended administrative complaint, a certified building contractor having been issued license number CB CAO9793 by the Florida Construction Industry Licensing Board. At all times material the pending amended administrative complaint Respondent's certified building contractor license (CB CAO9793) qualified "George E. Longino and Associates, Inc." with the Florida Construction Industry Licensing Board. Respondent is, and was at all times material to the pending amended administrative complaint, a certified air conditioning contractor having been issued license number CA CO24348 by the Florida Construction Industry Licensing Board. At all times material to the pending amended administrative complaint, Respondent's certified air conditioning contractor license (CA CO24348) qualified "George E. Longino and Associates, Inc." with the Florida Construction Industry Licensing Board. Respondent is, and was at all times material to the pending administrative complaint, a registered mechanical contractor having been issued license number PM 0031246 by the Florida Construction Industry Licensing Board. At all times material to the pending administrative complaint, Respondent's mechanical contractor license qualified "J. C. and Sons, Inc." with the Florida Construction Industry Licensing Board. At no time material to the pending amended administrative complaint was Respondent the qualifying agent for "First City Contractors, Inc." as defined by Sections 489.105(4) and 489.119, Florida Statutes. At no time material to the pending amended administrative complaint was Charles L. Crowe registered, certified or otherwise licensed by the Florida Construction Industry Licensing Board. At no time material to the pending amended administrative complaint was "First City Contractor's, Inc." registered, certified or otherwise licensed by the Florida Construction Industry Licensing Board. On or about January 23, 1986, Charles L. Crowe d/b/a First City Contractors, Inc., contracted with Steve Bell to construct a room addition at 3110 Carrevero Drive West, Jacksonville, Florida. The contract price was approximately $25,000. On or about March 10, 1986, the City of Jacksonville, Building and Zoning Inspection Division, issued building permit number 6196 to George E. Longino and Associates, Inc. The above referenced building permit was for the construction of a room addition at the residence of Steve Bell, 3110 Carrevero Drive West, Jacksonville, Florida. The following Findings of Fact are based upon the evidence introduced at formal hearing. In December, 1985, or January, 1986, Charles L. Crowe, sole owner of First City Contractors, Inc., approached Longino and asked him to become a partner in the business and to pull permits and be the qualifying agent for First City Contractors, Inc. Longino advised Crowe that he would not be interested in doing that until he had resolved certain pending problems with his licenses. Specifically, the Construction Industry Licensing Board had filed a disciplinary action against Respondent's licenses and that case had been heard and a Recommended Order entered on October 30, 1985. The Recommended Order was scheduled to be considered by the Construction Industry Licensing Board on January 9, 1986. Longino did agree to pull permits for any job on which he would be paid to supervise the construction. Longino did pull the permit and supervise the construction of a garage addition in Arlington, Jacksonville, Florida, for First City Contractors in January or February, 1986. On January 23, 1986, Charles L. Crowe, doing business as First City Contractors, Inc., entered into a contract with Steve Bell to construct a room addition to a residence located at 3110 Carrevero Drive, Jacksonville, Florida. The contract price was $25,000. Based upon the contract, Crowe asked Longino to use his license number to sign a permit application for the Bell job. Longino used a building permit application form which he had in his truck and filled in the pertinent information on the building permit application. Specifically, Longino filled in the name of the licensed contractor as "First City Contractors, Inc." and signed his name as the licensee with license number CB CA09793. Longino signed the building permit application on or about the last week of January, 1986. Financing was not secured for the Bell job until March, 1986. On March 10, 1986, Crowe used the permit application which had been previously signed by Longino and sent an employee of First City Contractors, Inc., Robert Cumpston, to secure a building permit from the City of Jacksonville for the Bell job. Specifically, permit number 6196 was issued based upon the permit application which had been previously signed by Longino. On February 19, 1986, the Construction Industry Licensing Board entered a Final Order suspending Longino's licenses. Longino received notice of the suspension on February 24, 1986, by certified mail. Longino advised Crowe that his licenses had been suspended within a few days following receipt of the Final Order. Despite the knowledge that Longino's licenses had been suspended, Crowe used the presigned building permit application to secure a building permit for the Bell job on March 10, 1986. Building permit number 6196 was issued to Longino's license number doing business as George E. Longino and Associates, Inc. The name of the business was changed from that which was stated on the building permit application because Longino was not a qualifying agent for First City Contractors, Inc. He was only a qualifying agent for George E. Longino and Associates, Inc. A permit could not be issued to First City Contractors, Inc. using Longino's license number. The Bell job was completed using permit number 6196. Longino did supervise that construction and was present at the site on a daily basis. Permit number 6196 was posted at the site. Despite Longino's statements that he did not know that the permit was issued to his license number, it is found that Longino knew or should have known that permit number 6196 was issued to his license number, doing business as George E. Longino and Associates, Inc. Longino did nothing to remedy the problem even though his licenses had been suspended.
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 suspending the licenses of George E. Longino for a period of one (1) year in addition to the previous suspension. DONE and ENTERED this 11th day of August, 1987, in Leon County, Tallahassee, 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 August, 1987. COPIES FURNISHED: Van Poole, Secretary 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 W. Douglas Beason, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William Bruce Muench, Esquire 438 East Monroe Street Jacksonville, Florida 32201 =================================================================
Findings Of Fact The foregoing findings of fact 1, 2, and 3 are incorporated herein by reference as if fully set forth anew. On January 8, 1987, the Respondent was found guilty of violating Sections 489.129(2), 489.129(3), and 489.129(1)(g) Florida Statutes, by the Construction Industry Licensing Board in DPR Case No. 60987, DOAH Case No. 88- 0002. The Respondent was not present at that Board meeting. He asserted this was due to lack of timely notice of the Board's meeting. Respondent was fined $1,000 by the Final Order of the aforementioned Board filed/served on February 20, 1987. The Respondent has failed to pay the fine. Respondent has not appealed the final order or fine. Respondent expressed himself at formal hearing as intending never to pay the lawfully imposed fine.
Conclusions The foregoing Conclusion of Law 14 is adopted and incorporated herein as if fully set forth anew. Respondent is charged with gross negligence, incompetence or misconduct in the practice of contracting pursuant to Section 489.129(1)(m), Florida Statutes, for failure to pay his $1,000 fine pursuant to the Board's February 20, 1987 final order. However, Petitioner has cited no statutory or rule authority which labels a licensee's refusal to pay a fine or obey a final order of the Construction Industry Licensing Board as gross negligence, incompetence, or misconduct in the practice of contracting. (Emphasis supplied, see definition of "contracting" at Section 489.105, Florida Statutes). Without such authority, the factual allegations of the administrative complaint, although proved, support no conclusion that a statute or rule has been violated. Petitioner's recourse lies not in this forum but in enforcement, execution, and collection actions in Circuit court.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The Construction Industry Licensing Board enter its final order dismissing the charge of a violation of Section 489.129(1)(m). DONE and RECOMMENDED this 30th day of September, 1988, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 30th day of September, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 88-0275, 88-0732 The following constitute rulings pursuant to Section 120.59(2), Florida Statutes, upon the parties' respective Proposed Findings of Fact (PFOF). DOAH CASE NO. 88-0275 Petitioner's PFOF have been accepted with certain modifications for greater clarity and to conform to the record as a whole. Respondent's Closing Statement is accepted in part in FOF 9. The remainder is rejected as mere argument or as based upon hearsay not properly in the record. DOAH CASE NO. 88-0732 Petitioner's PFOF have been accepted with certain modifications for greater clarity and to conform to the record as a whole. Respondent's Closing Statement is mere legal argument addressing the underlying facts of the previous final order finding Respondent guilty of certain violations and assessing a $1,000 fine. Absent a timely appeal, these matters are immaterial and rejected. These proposals are also rejected as mere argument. COPIES FURNISHED: Fred Seely, Executive Director Construction industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 G. W. Harrell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 David L. Norris 3144 Northwest 39th Court Lauderdale Lakes, Florida 33309 Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
