The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations of misconduct set forth in a four-count Administrative Complaint. The Administrative Complaint charges the Respondent with violation of the following statutory provisions: Sections 489.129(1)(g), 489.129(1)(h)2, 489.129(1)(k), and 489.129(1)(n), Florida Statutes (1996 Supp.).
Findings Of Fact The Respondent, Allen Fader, is, and has been at all times material, a licensed Certified General Contractor, having been issued license number CG C007504 by the State of Florida. At all times material, the Respondent was licensed to contract as an individual. The Respondent, by virtue of his license, advertised construction services for Gold Coast Construction Services, Inc., during 1997. The Respondent presented a business card, with the name of Gold Coast Construction Services, Inc., to Ruby M. Shepherd, a customer, in April of 1997. On April 14, 1997, the Respondent, doing business as Gold Coast Construction Services, Inc., contracted with Ruby M. Shepherd to enclose a patio and to install hurricane shutters at Ms. Shepherd's residence located at 12325 Northwest 19th Avenue, Miami, Florida. The contract was conditioned on Ms. Shepherd being able to obtain financing to pay for the construction described in the contract. The exact amount Ms. Shepherd was required to pay under the original April 14, 1997, contract cannot be determined from the evidence in this case.4 The Respondent assisted Ms. Shepherd in obtaining a loan for the financing of the construction work described in the contract. It took several months to obtain a loan. Ultimately, through the efforts of the Respondent, and of a person engaged by the Respondent to help obtain a loan, Ms. Shepherd received a loan through Town and Country Title Guaranty and Escrow. The check from Town and Country Title Guaranty and Escrow was in the amount of twelve thousand nine hundred seventy-nine dollars and fifteen cents ($12,979.15). The check was made payable to Ms. Shepherd and to Gold Coast Construction Services, Inc. At the request of the man who helped obtain the loan, Ms. Shepherd endorsed the loan check and agreed for the check to be delivered to the Respondent. The Respondent, doing business as Gold Coast Construction Services, Inc., negotiated the loan check and received all of the proceeds in the amount of twelve thousand nine hundred seventy-nine dollars and fifteen cents ($12,979.15). The Respondent received the proceeds of the loan on or about September 12, 1997. The Respondent did not take any action on Ms. Shepherd's construction project until November 14, 1997. On that day, the Respondent placed an order for the material for the hurricane shutters on Ms. Shepherd's project. Nothing more was done on Ms. Shepherd's project for quite some time. Towards the end of February of 1998, the Respondent had some health problems, which caused him to be unable to work for several weeks. Eventually, the Respondent attempted to pick up the shutter materials he had ordered for Ms. Shepherd's project. As a result of the delay, those materials had been returned to stock and had been sold to someone else. The Respondent ordered the materials again. Eventually, in June of 1998, the Respondent had the shutter materials delivered to Ms. Shepherd's residence, and began the process of installing the hurricane shutters. In the meantime, from September of 1997 until January of 1998, the Respondent did not contact Ms. Shepherd. During this period of time, Ms. Shepherd called the Respondent's office numerous times and left numerous messages asking the Respondent to return her calls. From September of 1997 until January of 1998, the Respondent did not return any of Ms. Shepherd's calls. In January of 1998, Ms. Shepherd was finally able to speak with the Respondent. From January of 1998 until the installation work began in June of 1998, Ms. Shepherd spoke to the Respondent on numerous occasions in an effort to find out when the Respondent was going to begin work or return the money he had been paid. During this period of time, the Respondent repeatedly made false assurances to Ms. Shepherd that the work would be performed within two weeks. On or about June 12, 1998, the Respondent obtained a building permit for Ms. Shepherd's project from the Miami-Dade Department of Planning, Development, and Regulation. Installation of the hurricane shutters began that same week. The installation process was delayed because some of the materials did not fit and had to be returned to the manufacturer for modifications. Following the modifications, the installation process resumed. After a few more days, the Respondent told Ms. Shepherd the hurricane shutter work was finished and that he was not going to do the patio construction work, because the loan Ms. Shepherd had received was not enough money to pay for both projects. After the Respondent told Ms. Shepherd that the installation of the hurricane shutters was complete, the Respondent never did any further work on Ms. Shepherd's construction project. The hurricane shutters installed at Ms. Shepherd's property by the Respondent were not installed correctly. Several of the hurricane shutters will not open and close properly. Several of the hurricane shutters are insufficiently fastened. A necessary shutter over the storage room door was never installed. The problems with the subject hurricane shutters can be corrected. The cost of the corrections necessary to make the shutters operate properly and to fasten them securely is approximately one thousand dollars ($1,000). The Respondent never called for an inspection of the installation of the hurricane shutters at Ms. Shepherd's residence. In their present condition, those hurricane shutters will not pass inspection, because they were installed improperly. If corrections are made, those hurricane shutters will pass inspection. By reason of the facts stated in paragraphs 12 and 13 above, the Respondent failed to properly and fully complete the hurricane shutter portion of the contracted work. The Respondent never did any work on the patio portion of the contracted work. At some point in time between September of 1997 and June of 1998, Ms. Shepherd and the Respondent agreed to a modification of their original contract due to the fact that the proceeds of the loan obtained by Ms. Shepherd were insufficient to pay for both the hurricane shutters and the enclosure of the patio. The essence of their modified agreement (which was never reduced to writing) was that the Respondent would not do the patio enclosure portion of the contracted work; the Respondent would do the hurricane shutter portion of the contracted work; the Respondent would be paid for the hurricane shutter portion of the contracted work; and any remaining balance of the loan proceeds that had been paid to the Respondent would be paid back to Ms. Shepherd. Implicit, but apparently unstated, in this modified agreement, was the notion that the Respondent would charge a fair price for the hurricane shutter portion of the contracted work. A fair price for the hurricane shutter portion of the contracted work at Ms. Shepherd's residence, including all materials, labor, overhead, and profit, would be approximately four thousand dollars ($4,000).5 The price of four thousand dollars presupposes properly installed hurricane shutters that will pass inspection. As previously mentioned, it will cost approximately one thousand dollars ($1,000) to make the corrections to the subject hurricane shutters which are necessary for the shutters to function properly and pass inspection. Accordingly, the fair value of the work performed by the Respondent at Ms. Shepherd's residence is three thousand dollars ($3,000). Ms. Shepherd has paid $12,979.15 to the Respondent, doing business as Gold Coast Construction Services, Inc. The fair value of the work performed by the Respondent at Ms. Shepherd's residence is $3,000. Therefore, the Respondent has been paid $9,979.15 more than he is entitled to keep. As of the date of the final hearing, the Respondent has not paid back any money to Ms. Shepherd.
Recommendation On the basis of the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be issued in this case concluding that the Respondent is guilty of the violations charged in each of the four counts of the Administrative Complaint, and imposing the following penalties: For the violation of Section 489.129(1)(g), Florida Statutes (1996 Supp.), an administrative fine in the amount of $100.00. For the violation of Section 489.129(1)(k), Florida Statutes (1996 Supp.), an administrative fine in the amount of $2,000.00. For the violation of Section 489.129(1)(n), Florida Statutes (1996 Supp.), an administrative fine in the amount of $1,000.00. For the violation of Section 489.129(1)(h), Florida Statutes (1996 Supp.), an administrative fine in the amount of $1,500.00, and placement of the Respondent on probation for a period of one year. It is further RECOMMENDED that the final order require the Respondent to pay restitution to Ms. Shepherd in the amount of $9,979.15, and to pay costs of investigation and prosecution in the amount of $266.55. DONE AND ENTERED this 9th day of September, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 1999.
Findings Of Fact At all times pertinent to this proceeding, Respondent was certified by the State of Florida, acting through Petitioner, as a law enforcement officer in the State of Florida. Respondent was issued certificate number 02-7330 on March 30, 1973. There was no evidence that Respondent's certification had been the subject of any other disciplinary proceeding. At the times pertinent to this proceeding, Respondent was employed as a police officer by the City of Bal Harbour, which is a municipality located in Dade County, Florida. The following events occurred in Bal Harbour, Florida, on January 14, 1989, while Respondent was on duty as a police officer: A few minutes past 7:00 a.m., Respondent encountered a 1975 Plymouth that had broken down on Collins Avenue near its intersection with 102 Street. Respondent observed a young male (who he later learned was 17 year old Haroon Nabee) pushing this disabled car by himself trying to get the car off the street and into an adjacent parking lot. Mr. Nabee was pushing the car with one hand and steering it with his other. Respondent assisted Mr. Nabee by pushing the disabled car from the rear with his patrol car. After the disabled car and Respondent's patrol car were in the parking lot, Respondent asked Mr. Nabee his name and asked to see his registration and his drivers license. Mr. Nabee identified himself as Nevin Maharaj and showed Respondent a registration certificate that reflected that the car was registered in the name of Mr. and Mrs. Stein. Respondent later learned that Mrs. Stein was Mr. Nabee's sister. While Mr. Nabee looked through his wallet for his drivers license, Respondent observed two credit cards in the name of John J. Mendoza. When asked about the credit cards, Mr. Nabee reported that he had found them. Respondent became suspicious and requested a backup. In response to that request Officer Pamela Robinson Adlet (at the formal hearing, Officer Adlet had reverted to the use of Robinson as her last name) appeared on the scene at 7:20 a.m. After Officer Adlet arrived on the scene, Respondent placed Mr. Nabee under arrest, handcuffed his hands behind his back, searched him, and placed him in the back seat of Respondent's caged patrol car. Respondent then called for a tow truck and requested that Officer Adlet assist him in conducting an inventory of the automobile. The officers inventoried the interior of the automobile, but they could not gain access to the trunk. Because the rear seat was loose, Officer Adlet could observe objects in the trunk, but she was unable to inventory those objects because of her limited access. While waiting for the tow truck, Respondent returned to his patrol car, which was parked immediately behind the disabled vehicle, and began making out the arrest form using the false name Mr. Nabee had given him. Respondent had partially completed the arrest form when the tow truck arrived. Because his patrol car was blocking the tow truck's access to the disabled vehicle, Respondent drove the patrol car to a spot approximately thirty feet from the disabled vehicle. Respondent then walked from his patrol car towards the tow truck and he and Officer Adlet engaged in a brief conversation with the tow truck driver. Officer Adlet told the driver that she and Respondent wanted to get into the trunk of the disabled vehicle and asked if he had a screwdriver they could use for that purpose. 1/ Respondent decided to look into the glove box of the disabled vehicle for the second time because his earlier search of the vehicle had been interrupted by his efforts to help Officer Adlet gain access to the trunk. Respondent found in the glove box a passport which reflected Mr. Nabee's true name and which contained Mr. Nabee's photograph. Respondent showed the passport to Officer Adlet, who confirmed that the passport photograph appeared to be of Mr. Nabee. Respondent returned to his patrol car and began addressing Mr. Nabee in loud, profane language and accused Mr. Nabee of lying to him. Respondent opened the rear door of the patrol car on the driver's side and, while holding the passport in his clenched right hand, made three punching motions with his right hand in the direction of Mr. Nabee. With the first of these three blows the back of Respondent's right hand made contact with the right side of Mr. Nabee's face. (The right side of Mr. Nabee's face was struck because Mr. Nabee had turned towards Respondent when Respondent opened the door of the patrol car.) In reaction to that blow, Mr. Nabee stretched out on the back seat of the patrol car, and, consequently, the other two blows did not make contact with Mr. Nabee. Thereafter, Respondent transported Mr. Nabee to the Bal Harbour police station where Mr. Nabee complained to another officer about Respondent's acts. Mr. Nabee was not injured by Respondent. There was no evidence that he suffered any cut or bruise as a result of the contact with Respondent. Respondent was angry with Mr. Nabee because he had lied about his name, which caused Respondent to have to redraft his arrest form. Respondent contends that the contact was accidental and was a result of his gesticulating in an angry fashion after learning that Mr. Nabee had lied to him. This contention is rejected. Petitioner has established by clear and convincing evidence that Respondent was angry with Mr. Nabee and that Respondent intentionally struck Mr. Nabee in retaliation for Mr. Nabee's lying to him.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which finds that Respondent committed a battery upon the person of Haroon Nabee on January 14, 1989, which determines, pursuant to Rule 11B-27.0011(4)(b), Florida Administrative Code, that Respondent failed to maintain good moral character, and which suspends his certification as a law enforcement for a period of one year. RECOMMENDED in Tallahassee, Leon County, Florida, this 30th day of July, 1991. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1991.
The Issue The issue is whether Respondent obtained a real estate salesperson's license by fraud, misrepresentation, or concealment, in violation of Section 475.25(1)(m), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact By application attested July 10, 1996, Respondent requested licensure as a real estate salesperson. Question 9 of the application asks: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? This question applies to any violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. If you intend to answer "NO" because you believe those records may have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, or applicable law of another state, you are responsible for verifying the expungement or sealing prior to answering "NO." * * * Your answer to this question will be checked against local, state and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate. Respondent checked the "no" box and did not offer any explanation on the application form. Petitioner issued Respondent a license. After placing it for a month with another broker, Respondent placed the license with Sun Coast Realty Group, Inc., a broker-corporation trading as Century 21--Sun Coast Realty Group, in Fort Myers. Respondent's license remained active until October 6, 1997, when he requested that Petitioner inactivate the license until the pending disciplinary charges were resolved. Respondent's broker testified at the hearing. He testified that the customers were happy with Respondent, who dealt very honestly with the customers. The broker explained that Respondent, not the broker, elected to discontinue practicing real estate sales until the disciplinary matters were resolved, and the broker would rehire him, if Respondent retains his license, following the conclusion of this proceeding. On or about December 19, 1977, Respondent pleaded no contest and was convicted of a misdemeanor of disorderly conduct or breach of the peace in connection with a bar fight in which he was engaged in Connecticut. Then aged 20, Respondent was employed as a bouncer at the bar at which a fight broke out. Several arrests ensued. Respondent did not throw the bar stool that resulted in the injuries. Respondent was fined about $50. About 12 years later, on or about February 1, 1989, Respondent pleaded no contest to misdemeanor battery in Lee County. The court withheld adjudication and placed Respondent on probation for one year. Respondent served the probation without incident. No one was seriously injured in the incident. About three years ago, Respondent attended Charter Glade, where he remained 10 days for substance-abuse treatment. He attended his follow-up therapy, and now speaks to his pastor at church for additional advice. Respondent has not consumed alcohol since then, and he has a wife and two children. Respondent's claim that he did not disclose the criminal matters because he thought they had been sealed or expunged is discredited. Respondent concealed these matters. He did not follow the advice on the application form to ensure that these matters were sealed or expunged. He testified inconsistently at first as to his age at the time of the first incident. On the other hand, Respondent has eliminated the main source of his past problems: alcohol. He has also demonstrated his integrity in the practice of real estate sales.
Recommendation It is RECOMMENDED that the Florida Real Estate Commission enter a final order finding Respondent guilty of a violation of Section 475.25(1)(m), Florida Statutes, imposing an administrative fine of $1000, and suspending Respondent's license for 18 months, with full credit against the suspension for the period since October 6, 1997, that Respondent has voluntarily rendered his license inactive due to the pendency of this proceeding. DONE AND ENTERED this 8th day of December, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 1998. COPIES FURNISHED: Laura McCarthy Deputy Chief Attorney Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Edward McBride Cardillo, Keith & Bonaquist, P.A. 3550 East Tamiami Trail Naples, Florida 34112-4905 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 James Kimbler, Acting Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900
The Issue The issues in these cases are whether Respondent violated sections 489.129(1)(i), 489.129(1)(o), and 489.1425, Florida Statutes (2007 & 2009),1/ and, if so, what discipline should be imposed.
Findings Of Fact At all times material to the administrative complaints, Mr. Organo was licensed as a certified general contractor in the State of Florida, having been issued license number CGC 1512005. At all times material to the administrative complaints, Mr. Organo was the primary qualifying agent for Bennett Marine Contracting and Construction, Inc. (Bennett Marine). On or about September 29, 2007, Jean Walker (Ms. Walker) entered into a contract with Bennett Marine to construct a dock and a tiki hut at 12305 Boat Shell Drive. The contract (the Walker contract) provided that the contractor would make application for a permit from Lee County, Florida. Mr. Organo signed the Walker contract for Bennett Marine. It is undisputed that the Walker contract did not include a written statement explaining Ms. Walker's rights under the Florida Homeowners' Construction Recovery Fund. On October 24, 2007, Bennett Marine applied for a permit to construct the dock. The application was denied October 29, 2007, because the site plan contained the tiki hut. When the tiki hut was removed from the application, the dock permit was approved. Ms. Walker paid Bennett Marine draws on the construction project. The payments were given to Mr. Organo. The payments totaled $9,200. By February 2008, a tiki hut had been constructed on Ms. Walker's property without a permit. Because the tiki hut was built without a permit, and it was in an illegal location, Lee County required that the tiki hut be removed. By April 2008, the tiki hut had been removed, and another tiki hut had been built in its place. Again, no permit was pulled for the tiki hut, and it was placed in an illegal location. Again, Lee County required that the tiki hut be removed. Mr. Organo subcontracted the construction of the tiki hut to Rick Fewell Chickees. Mr. Fewell of Rick Fewell Chickees, a Seminole Indian,2/ applied for a permit to build a tiki hut, but the application was rejected because the plot plan was not to scale, and the tiki hut did not meet the setback requirements from the water. Another tiki hut was built, and, in March 2009, Lee County again cited Ms. Walker for not having a permit for the tiki hut and for not meeting the setback requirements. In 2010, a permit was finally issued for the construction of a tiki hut on Ms. Walker's property. The permit was issued to Ms. Walker. Bennett Marine commenced work on the tiki hut without obtaining a building permit. On January 5, 2010, Bennett Marine entered into a contract with Chris Bevan (Mr. Bevan) to remove an existing dock, uninstall an existing boatlift, construct a dock, construct a tiki hut, and to reinstall the boatlift. The contract (the Bevan contract) required that the contractor obtain a City of Cape Coral building permit. The Bevan contract was signed by Mr. Organo for Bennett Marine. It is undisputed that the Bevan contract did not contain a written statement explaining Mr. Bevan's rights under the Florida Homeowners' Construction Recovery Fund. On March 17, 2010, Bennett Marine showed up on Mr. Bevan's property and commenced work, by knocking down a cantilever dock that was hanging over a seawall, removing old decking from the boatlift, and rough-framing part of the new dock. Bennett Marine worked until approximately March 25, 2010. That was the last that Mr. Bevan heard from Mr. Organo or Bennett Marine. Mr. Organo applied for a building permit for the Bevan contract on April 1, 2010. The permit was approved on April 13, 2010, but it was not issued. On May 14, 2010, the City of Cape Coral placed a stop-work order on the Bevan project. Mr. Bevan applied for an owner-builder permit for the dock construction, and the permit was issued on June 9, 2010. Mr. Bevan completed the dock construction at additional expense.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mr. Organo violated sections 489.129(1)(i), 489.129(o), and 489.1425; imposing a fine of $250 each for the Walker contract and the Bevan contract for a total of $500, for failure to advise the owners of the recovery fund; imposing a fine of $3,000 and placing Mr. Organo on probation for two years for beginning work without a permit for the Walker contract; and imposing a fine of $1,000 and placing Mr. Organo on probation for one year for beginning work on the Bevan contract without a permit with the one-year probation to run concurrently with the probation imposed for the Walker contract. DONE AND ENTERED this 13th day of April, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 2011.
