Findings Of Fact Aubrey E. Clark's license as a building contractor was first renewed in 1975 (Exhibit 2). He was so licensed at all times here relevant and has been a licensed building contractor for approximately nine years. In 1979 Clark was building homes for Development Corporation of Orlando (DCO) who was in the land-development business. He ran into difficulties in getting paid by DCO and agreed to take over the home building on his own with the company selling the lot and Clark building the home. At this time he was doing business as A & L Builders. A & L Builders was not incorporated and Clark, who held a building contractor's license, was simply doing business as A & L Builders. Subsequently, and during the time material to these charges, A & L Builders became incorporated. Clark remained the licensed building contractor who pulled the permits for construction but failed to license the corporation. At the time Clark was doing business as A & L Builders there was no legal entity but himself, and A & L Builders did not require a license. Clark failed to recognize or understand the different legal entities created when A & L Builders, Inc., came into existence and required licensing. Respondent had completed some 50 to 60 homes in the subdivision and had approximately 20 under construction, including those of the two complaining witnesses, when he suffered a stroke on March 21, 1981, and was placed in intensive care for 21 days followed by another eight days in the hospital before being able to leave the hospital. In addition to the stroke, he had a dilated left ventricle to his heart. While Clark was in the hospital the foreman he had employed to supervise the construction quit. Clark's brother, a trim carpenter, came to the job site to keep the projects going but did not have sufficient experience to properly schedule the subcontractors and get them on the job when needed. When Clark was released from the hospital he had someone drive him to the job site where he attempted to get things in proper order. After a few hours on the site he collapsed and had to be taken home and put to bed. The following day he again tried to go to the job site but his physical condition would not allow him to even supervise at the site. His doctor told him that if he did not stay away from the job site for at least six months to one year he could have another stroke and perhaps suffer permanent paralysis. A & L Builders, Inc., contracted to build a home for the Haineses for $33,450, of which $31,750 was to be paid in progress payments as the construction of the home progressed (Exhibit 3). At the time of Clark's stroke A & L Builders had drawn some $24,163 (Exhibit 5) under this draw schedule. After Clark was unable to complete the residence, Haines contracted with Lifestyle Pool & Construction to complete the residence in accordance with specifications for $7,624 (Exhibit 6) This was almost exactly the amount remaining in the construction loan for this house. A & L Builders contracted with Kelly to build a home for $44,475 (Exhibit 11) , of which $42,250 was to be paid to A & L Builders in progress payments (Exhibit 11). At the time Respondent became unable to complete this contract he had drawn slightly more than $30,000 (Exhibit 16). This contract further provided that the seller would pay discount points on mortgage loan up to three points. After Clark became ill Kelly ultimately had to pay these points. When A & L Builders abandoned the site, the bank arranged with Kelly to enter into a contract with another builder to complete the project. Kelly entered into a contract with Winchester (Exhibit 17) on July 3, 1981, and the home was finished with a total cost to Kelly about the same as it would have been had the home been completed by A & L Builders. Clark testified that he could have completed the Kelly house in accordance with the contract for an amount significantly less than Winchester was paid. Liens were placed on both Haines' and Kelly's houses by subcontractors and material men. However, none of these lienors brought action against either Kelly or Haines and all considered the amounts represented by these liens to be owed to them by Clark. At the time of the hearing all of these liens had lapsed and were no longer valid liens against the property of Haines and Kelly. Clark considers these debts represented by these liens to be debts he owes and which he expects to repay some day. He has not filed bankruptcy proceedings although during the time he was unable to work up until the time of this hearing his liabilities far exceeded his assets. Respondent did not keep separate bank accounts for each house he had under construction in the project. Draws received from the Kelly contract, for example, were placed in the A & L Builders, Inc., bank account and checks were written on this account to pay for labor and materials used on all of the houses under construction in this project. No evidence was presented that such funds were used on any project outside the subdivision of homes Respondent had contracted to build.
Findings Of Fact The Respondent Frank H. Suesz is a licensed general contractor having been issued certificate number CG C020463. On July 21, 1981, the Respondent Suesz submitted an application to the Petitioner Department of Professional Regulation to take the certified contractors' examination as a general contractor. On the application, the Respondent Suesz stated that he had four (4) years of construction experience, one (1) year of on-the-job-supervisory experience, and some experience in the construction of buildings in excess of three(3) stories in height. The Respondent's work experience' was verified by Ethel C. Douglas, his mother-in-law and a building owner. Douglas' verification on the Respondent's application was notarized. The experience claimed by the Respondent on his application involved his prior position with Steel Systems Construction Company, a seller and erector of pre-engineered metal buildings. Steel Systems is owned by Richard Spinnenweber, who is also the Respondent's cousin and the complainant in this case. Steel Systems holds the franchise for American Steel Buildings while the Respondent's company, ABCO Construction, Inc., has acquired the franchise for Pre-Engineered Steel Buildings. Since the Respondent's resignation from Steel Systems, his relationship with his cousin has been anything but cordial. The Respondent and Spinnenweber have engaged in litigation concerning the termination of their former relationship and are now active business competitors through their respective companies. 1/ The Respondent's company sells and erects pre-engineered, prefabricated steel buildings that are built in a factory, shipped to the job site and erected. One witness for the Petitioner analogized the construction of these buildings to "erector sets". (See Tr. at 43) Since being certified in 1981, the Respondent's company, ABCO Construction, Inc. has successfully completed approximately 40 construction projects including a 45,000 foot roof for Pan Am at Miami International Airport, a 10,000 square foot marina warehouse in Key Largo, and has worked for the U.S. Customs Service and the Air Force. No evidence was presented that any of the Respondent's jobs completed since he became certified, were substandard or present a threat to the public health, safety and welfare. Permits were pulled on these projects and building inspections were passed when required. Prior to moving to Florida, the Respondent Suesz had varied construction experience which including supervising the construction of building additions, a shipping storage warehouse and a factory for Beckley Perforating Company, which is headquartered in Garwood, New Jersey. This testimony is corroborated by a letter dated May 13, 1982, from Frank P. Marano, President of Beckley, which also noted the Respondent's ". . .unusual competency in all areas of responsibility as to construction, maintenance and expansion." [See Petitioner's Exhibit 3(x).] Additionally, the Respondent has some construction experience in excess of three stories, which dates from his work with his father on apartment buildings located out of state. The extent of the Respondent's experience which dates from the 1940s, is set forth in detail in Respondent's Exhibit 2. Although his position at Steel Systems was primarily sales, the Respondent Suesz also worked in the field when necessary. 2/ While employed by Steel Systems, the Respondent supervised construction of two large dock roofs in 1978 and 1979, plus three buildings in 1980 and 1981 for the Homestead Tomato Packing Company, Inc. By letter dated May 13, 1982, Rosario Strano, company owner, commended the Respondent for his work and stated that he intended ". . .to negotiate with him for all future requirements for buildings, dock roofs, etc." [Petitioner's Exhibit 3(y).] In early 1989, the Respondent Suesz built an addition to the Hialeah factory of Brice-Southern, Inc. His supervision of the project included pouring and finishing the floor slab. Philip H. Brice recommended the Respondent's work via letter dated May 13, 1982, and stated ". . .that he would give him the opportunity to do our future requirements." Petitioner's Exhibit 3(z).] According to Gerald Antel, Trustee, Sunshine Skateway, the Respondent supervised the construction of a $250,000 roller rink. [Petitioner's Exhibit 3(aa).] Finally, in late 1980 and 1981, the Respondent supervised construction of a 16,800 square foot building for Woal Wholesale Plumbing Supply, Inc. His work on this project was observed and recommended by Randy S. Woal. [Petitioner's Exhibit 3(bb).]
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Administrative Complaint filed against the Respondent Frank H. Suesz, be dismissed. DONE and ORDERED this 15th day of August, 1983, in Tallahassee, Florida. SHARYN L. SMITH 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 15th day of August, 1983.
The Issue The issue is whether Respondent violated Subsections 489.129(1)(g), (i), (j), and (m), Florida Statutes (2001), by allegedly engaging in financial mismanagement, abandoning a construction project, engaging in misconduct or being incompetent, and failing to disclose the rights of the consumer in a contract. (Statutory references are to Florida Statutes (2001).)
Findings Of Fact On July 18, 1984, the Construction Industry Licensing Board (the Board) licensed Respondent as a Florida State Certified General Contractor pursuant to license number CG C028520. Respondent registered with the Board as doing business in the name of "Midgett Development Inc." (Midgett Development). Respondent conducted business as Midgett Development in 2001. In 2001, Respondent also conducted business as a licensed real estate broker through Sundial Group Enterprises, Inc. (Sundial). On February 20, 2001, Respondent executed a contract with Ms. Linda Luck (Luck) requiring Midgett Development to build a residential home on a vacant lot located at 1510 Northeast 11th Street, Cape Coral, Florida, that Sundial was to purchase from a third party (the contract). The contract identifies Midgett Development as the contractor and Sundial as the purchaser of the lot. The contract violates Subsection 489.129(1)(i). The contract does not contain a written statement explaining the consumer rights to which Luck is entitled under the Construction Industry Recovery Fund. The contract requires the contractor to use its best efforts to deliver the completed residence "on or about 120 days" from the start of construction. The start of construction is defined as the day footings are poured; or the day rough plumbing is begun if the contractor uses monolithic footings and slab. The contract provides that time is of the essence. The contract price is $70,000.00 and pays the cost of purchasing the lot and the cost of constructing the residence. The contract requires Luck to pay $20,000 at the signing of the contract and an additional $50,000 at the closing for the purchase of the lot. Luck paid Midgett Development the total contract price on February 20, 2001. Luck issued two separate checks to Midgett Development for $20,000 and $50,000. Each check is dated February 20, 2001. Sundial closed on the purchase of the lot and deducted a buyer's real estate commission from the closing proceeds. Sundial or Respondent took title to the lot. Respondent testified that he did not apply for the building permit until he had clear title to the lot. The closing date for the lot acquisition is not in evidence. Respondent and Midgett Development failed to begin construction of the residence within 90 days of the date of the contract within the meaning of Section 489.129(1)(j). Respondent applied for a building permit from the City of Cape Coral, Florida (Cape Coral) on January 10, 2002, approximately 324 days after executing the contract. Respondent provided no credible and persuasive explanation for his delay in applying for a permit. On direct examination, Respondent testified that he expended $19,000 of the $70,000 shortly after he executed the contract, in relevant part, to purchase the lot. Respondent later testified that he did not apply for a building permit before January 10, 2002, because he did not have clear title to the lot before that date. Respondent's testimony is not supported by other evidence and is neither credible nor persuasive. Cape Coral issued a building permit for the residence on March 11, 2002, approximately 394 days after Respondent executed the contract. By May 2002, approximately 80 days after receiving the building permit, no evidence of construction activity could be observed on the lot. By July 30, 2002, approximately 533 days after executing the contract, Respondent and Midgett Development "began construction," as that phrase is defined in the contract. On July 30, 2002, Cape Coral issued favorable foundation and plumbing inspections. Respondent and Midgett Development abandoned the construction project while each was under contract as a contractor within the meaning of Subsection 489.129(1)(j). Assuming arguendo that Respondent and Midgett Development had legitimate reasons for not beginning construction prior to July 30, 2002, Respondent and Midgett Development abandoned the construction project on October 30, 2002, approximately 90 days after July 30, 2002, without just cause, and without notice to Luck. After July 30, 2002, Respondent and Midgett Development did not engage in any further construction activity, and Cape Coral rescinded the inspection approval. When Respondent and Midgett Development abandoned the construction project, they committed mismanagement and misconduct in the practice of contracting within the meaning of Subsection 489.129(1)(g)2. At the time Respondent and Midgett Development abandoned the project, the percentage of completion was less than the percentage of the total contract price paid by Luck. Respondent and Midgett Development caused financial harm to Luck. As of the date of hearing, Respondent and Midgett Development had not completed the project and had not refunded any of the money paid to them. Respondent provided no credible and persuasive explanation for the failure to either construct the residence or refund the money paid by Luck. Respondent's testimony that Luck requested Respondent to stop construction is not supported by other evidence, including Luck's testimony. Luck's testimony is credible and persuasive. If it were found that Luck asked Respondent not to complete construction, the purported request is not material to this proceeding. Respondent began construction on July 30, 2002. Respondent testified that Luck asked Respondent on April 1, 3, and 12, 2003, not to complete construction. Respondent had ample time between July 30, 2002, and April 1, 2003, to complete construction. He also had ample time between February 20, 2001, and July 30, 2003, to complete construction. Respondent and Midgett Development misallocated funds entrusted to them by Luck within the meaning of Subsection 489.129(1)(m). Neither Respondent nor Midgett Development has reimbursed Luck or paid restitution to her. Between November 15, 2002, and August 18, 2003, Respondent paid approximately $13,074 to third parties for living expenses incurred by Luck, including rent, utilities, and similar expenses. Those amounts do not constitute restitution or reimbursement of part of the $70,000 paid by Luck for the construction of her residence. Luck paid Respondent $70,000 to build a house and not to pay her living expenses. Luck is a single parent and would have been evicted and "out on the street" unless Respondent paid her living expenses. Luck was unable to pay her living expenses because Respondent had $70,000 of Luck's money. The payments made by Respondent may, or may not, be treated by the circuit court as a set off against a judgment obtained by Luck in circuit court. That determination, however, is beyond the scope of this proceeding. Respondent testified that he spent another $19,000 for Luck. However, Respondent expended most of that sum purchasing a lot owned either by Sundial or Midgett Development, earning a commission for Sundial, and constructing some improvements on the lot. None of that money is restitution or reimbursement to Luck. Petitioner previously disciplined Respondent for violations of Chapter 489 in Department of Business and Professional Regulation Case Numbers 200003354 and 200108551. Petitioner conducted each matter as an informal hearing before the agency. In the former case, Petitioner and Respondent entered into a written Stipulation on October 29, 2001. Respondent agreed to satisfy a civil judgment against him but neither admitted nor denied the allegations against him. In the latter case, Petitioner entered a default judgment against Respondent on March 4, 2003, for failure to satisfy another civil judgment against Respondent and placed Respondent on probation for two years. Petitioner has incurred investigative costs in the instant proceeding that exclude costs associated with the time expended by attorneys for Petitioner (investigative costs). The total investigative costs incurred by Petitioner are $1,429.61.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a Final Order finding that Respondent and Midgett Development are guilty of the violations alleged in the Administrative Complaint; revoking the license and registration of Respondent and Midgett Development; imposing an administrative fine of $5,000; and ordering Respondent and Midgett Development to make full restitution to Luck and to pay investigative costs in the amount of $1,429.61. DONE AND ENTERED this 28th day of October, 2003, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 October, 2003. COPIES FURNISHED: Kimberly Clark Menchion, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Darrin R. Schutt, Esquire Seeman & Schutt, P.A. 1105 Cape Coral Parkway, East Suite C Cape Coral, Florida 33904 Nancy P. Campiglia, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Tim Vaccaro, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Joe Goldsmith, president of Petitioner, started as a laborer in construction after graduating from college in 1975. Some three years later he started his own business as a carpenter with one helper doing mainly repair and renovation on buildings. At this time he and Cindy were married and she did the bookkeeping for the business on a part-time basis. Cindy Goldsmith was employed as an accountant by Bordens for two years beginning in 1976 upon her graduation from college. In 1978, Cindy Goldsmith worked as a business manager for a consulting firm, Zellars-Williams. From the inception of Goldsmith Contracting in 1978 until early 1982, Cindy did the accounting for the firm on a part-time basis. In 1982, the contracting business had grown to the point she needed to devote full time to running the record keeping and financial end of the business and thereafter has worked full-time with Petitioner. In 1985, Joe Goldsmith Construction, Inc. was incorporated with Joe Goldsmith owning 50 percent of the shares (500), and his wife owning 50 percent of the shares (500). At the time of the incorporation neither party individually supplied capital for the stock issued. The corporation was capitalized with the assets of Joe Goldsmith Contracting which was garnered through the joint efforts of Joe and Cindy Goldsmith. The Articles of Incorporation show Joe Goldsmith and Cindy Goldsmith as the directors. Joe Goldsmith is the president of this corporation and Cindy Goldsmith is vice-president. Duties of the president are stated in the By-Laws of the corporation as follows: The President shall be the chief executive officer of the corporation, shall have general and active management of the business and affairs of the corporation subject to the directions of the Board of Directors, and shall preside at all meetings of the shareholders and Board of Directors. The duties of the vice-president are to exercise the powers and functions of the president during the absence of the president and such other duties as the president or shareholders may prescribe. Joe and Cindy Goldsmith have joint ownership of all of their property and other assets such as bank accounts. In operating the business, Joe Goldsmith holds the general contractor's license under which the corporation acts in pulling building permits. One other employee, a superintendent, also has a statewide general contractor's license and permits can be pulled under his license if necessary. Cindy Goldsmith runs the office side of the business maintaining personnel, accounting, insurance and legal records of the company. She participates with Mr. Goldsmith in making decisions regarding which contracts to bid on, at what price to bid the job, and many other details of the business. Joe Goldsmith is generally regarded as the outside man overseeing the workers doing the construction while Cindy Goldsmith acts as the inside person overseeing the paper trail to determine the company's financial health. Joe Goldsmith contacts customers and potential customers and is the principal company representative in surveying the job site, calculating the material and labor involved in the project and such other technical information as is needed to submit a competitive bid for construction work for which the company desires to compete. Cindy Goldsmith assists in preparing such bids largely by providing overhead figures to be included in the bid submitted. Although Cindy Goldsmith testified that she signs most accounts payable and prepares payroll checks for those workers under Joe Goldsmith's supervision for his signature, the records demonstrate that Joe Goldsmith signs many, if not most, of the accounts payable checks. Generally, Joe Goldsmith hires and fires the outside employees while Cindy Goldsmith exercises that function regarding the inside people. Both testified that each had the power to fire a person normally supervised by the other; however, this power would not be expected to be used without first consulting with the other. An attempt by Cindy Goldsmith to fire a superintendent hired by Joe Goldsmith without first consulting her husband would not succeed. About the time the application for certification as a DBE was filed, 10 shares of stock was transferred from Joe Goldsmith to Cindy Goldsmith to create a majority ownership of 51 percent of the 1000 shares of issued stock in the name of Cindy Goldsmith. As compensation for this transfer, Cindy Goldsmith signed a promissory note for $4,000 payable to Joe Goldsmith. This promissory note was paid by check No. 156 dated June 30, 1987 (Exhibit 2). This check was drawn on the joint account of Joe C. Goldsmith or Cindy T. Goldsmith in the Peoples Bank of Lakeland, Account No. 01061224. This check was deposited in Account No. 01061224 on July 6, 1987. Thus, the $4,000 to pay for the 10 shares of stock sold by Joe Goldsmith to Cindy Goldsmith was drawn on the joint account of Joe and Cindy Goldsmith and deposited in the same account, resulting in no change to the account balance. Company records show that Cindy Goldsmith's salary for the past few years has been approximately two thirds of the salary of Joe Goldsmith (Exhibit 5).
Findings Of Fact Respondent, Rafael Daman, is an optician, having been issued License No. 0001712. (Petitioner's Exhibit 1) Respondent filed an apprentice application with the Board of Opticianry. (Petitioner's Exhibit 1) As part of that application, a form entitled "Apprentice Application to be Completed by Employer" was submitted to the Board of Opticianry. (Petitioner's Exhibit 1) This form is signed and sworn to by Ramon del Busto, M.D., as supervisor of Respondent. (Petitioner's Exhibit 1) Dr. del Busto acknowledged his signature on this document. (Deposition 7) Additionally, Ramon del Busto, M.D., submitted an Affidavit By Sponsor, and swore that he was the sponsor of the Respondent. (petitioner's Exhibit 1, Deposition 5) Respondent was not employed by Ramon del Busto, M.D. (Transcript - 22, Deposition 7, 8, 9) However, Respondent worked as an unpaid employee or student of Dr. del Busto (Transcript -48, Deposition 8, 9) The Apprentice Application to be Completed by Employer was actually completed by the Respondent and a secretary employed by G&B Optical. (Transcript - 36, 38) Ramon del Busto, M.D., signed the Apprentice Application to be Completed by Employer, but had no personal knowledge of the accuracy of the information contained therein. (Transcript - 24, 36, 38; Deposition - 7, 8, 9) Ramon del Busto, M.D., supervised the Respondent when they were both at G&B Optical, but Dr. del Busto was present at G&B Optical only on Tuesdays, Thursdays, and others times as necessary. Transcript - 22, 35, 36, 37, 40, 41; Deposition - 5, 9) However, Respondent was always present when Dr. del Busto was in this office. (Deposition - 9) Dr. del Busto did not remain on the premises while all the work of Respondent was being accomplished. (Transcript - 46)
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Petitioner enter a Final Order finding Respondent guilty of procuring an optician's license by misrepresentation in violation of Subsection 484.015(1)(a) , F.S., and placing Respondent on probation under the supervision of another optician as provided by Subsection 484.015(2)(e), F.S., until Respondent demonstrates compliance with Section 484.007, F.S. DONE and ORDERED this 23rd day of August, 1982, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 1982. COPIES FURNISHED: Diane K. Kiesling, Esquire Davis, Kiesling & McCall 517 East College Avenue Tallahassee. Florida 32302 Mr. Rafael Daman 5426 N.W. 169th Street Mr. Samuel R. Shorstein Miami, Florida Secretary Department of Professional Mr. Fred Varn, Executive Director Regulation Board of Dispensing Opticians 130 North Monroe Street 130 North Monroe Street Tallahassee, Florida 32301 Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF OPTICIANRY, Petitioner, vs. CASE NO. 82-337 LIC. NO. 0001712 RAFAEL DAMAN, Respondent. /
The Issue The issue in this case is whether Respondent discriminated against Petitioner based on his race.
Findings Of Fact Mr. Robinson, an African-American, was employed by Alliance at its Marianna, Florida, office from 1987 to 2006, when the facility closed. Mr. Robinson worked his way up from the assembly line, making $4.00 per hour, to steel yard coordinator, making $14.87 per hour. Mr. Robinson applied for the position of fabrication supervisor in 2004 and 2005. Both times, other people were chosen for the position. In 2004, Mr. Robinson was a finalist for the fabrication supervisor position. Steven Ramsey, a white male, was chosen for the supervisor position. Mr. Ramsey was hired from outside the company. Mr. Ramsey had considerably more experience as a supervisor than Mr. Robinson. In October 2005, the position for fabrication supervisor became vacant again. Mr. Robinson again applied for the position. The applicant pool was narrowed to two candidates, Mr. Robinson and John Warren (Mr. Warren), a white male. Both Mr. Robinson and Mr. Warren were interviewed by a committee consisting of the plant manager, the general manager, and hiring manager. Both candidates were current employees of Alliance. Alliance was looking for a supervisor with strong interpersonal skills. Both Mr. Robinson and Mr. Warren were valued employees of Alliance. In comparing their past evaluations at Alliance, Mr. Warren’s performance evaluations were stronger than Mr. Robinson’s. Mr. Robinson received two evaluations in 2004. On March 1, 2004, he received a score of 40 out of a possible 50. It was noted that Mr. Robinson needed to improve his relationships with other supervisors and lead workers. On May 12, 2004, he received a score of 40 on his annual evaluation. Again, it was noted that Mr. Robinson needed to improve his relationships with other supervisors and lead workers. Mr. Robinson received a score of 41 on his annual evaluation dated June 1, 2005. It was noted in his evaluation that he had improved in the area of interpersonal relationships over the past year. Mr. Warren received a score of 48 on his annual evaluation dated May 17, 2004. In the area of interpersonal relationships, his supervisor wrote: "Best in Fabrication." Leans forward to meet every challenge, keeps supervisors, peers and customers briefed at every step. Mr. Warren not only knows his customers, he has mastered the ability to identify customer needs before the customer realizes the need—and regularly exceeds customer expectations. Mr. Warren teaches customer service by example—what I call a "smooth operator." On his 2005 annual evaluation, Mr. Warren received a perfect score of 50. It was noted in his evaluation that Mr. Warren was a "solid role model." The evaluations of Mr. Warren and Mr. Robinson played an important role in determining who would be hired as fabrication supervisor. Based on the evaluations, Mr. Warren was the stronger candidate. Edward Mount (Mr. Mount) testified on behalf of Mr. Robinson. Mr. Mount is an African-American, who was employed with Alliance until November 2005. Mr. Mount left Alliance because the Alliance plant in Marianna was closing and would be relocated to Wisconsin. When Mr. Mount left Alliance, he was making $45,000 a year as a floor supervisor on the second shift. Mr. Mount felt that he had been treated fairly by Alliance and that Alliance had not discriminated against him based on his race during his employment with Alliance. During his tenure with Alliance, he was promoted more than five times and was given bonuses and raises. Mr. Robinson felt that Rick Frayniak (Mr. Frayniak), who was fabrication manager, was discriminating against him because of his race. However, Mr. Mount described Mr. Frayniak as a “hard but fair” supervisor, who had a hands-on approach to management. Mr. Mount never heard Mr. Frayniak make any racial remarks and did not feel that Mr. Frayniak had discriminated against him based on his race.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing Mr. Robinson’s Petition for Relief. DONE AND ENTERED this 14th day of November, 2007, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 2007.
The Issue The issue for determination at the formal hearing was whether Respondent allowed an uncertified and unregistered person to engage in prohibited contracting in violation of Subsections 489.129(1)(e), (f), and (m), Florida Statutes. 1/
Findings Of Fact Petitioner is the state agency charged, in conjunction with the Construction Industry Licensing Board, with the responsibility for prosecuting the Administrative Complaint in this proceeding pursuant to chapters 455 and 489, and the rules promulgated thereunder. In September, 1980, license number CG C015802 was issued to Respondent, Thomas J. Freese, as the qualifying agent for Tracy Industries, 728 St. Lucie Crest, Stuart, Florida 33494 ("Tracy"). Respondent was the licensed qualifying agent for Tracy Industries at all times material to this proceeding. At no time material to this proceeding was Robert Sherno licensed by Petitioner as a contractor. On or about May 30, 1988, Mr. Sherno contracted with William F. Meinking to construct a home for Mr. Meinking. The contract price was not to exceed $64,000.00. A building permit was issued for the construction of Mr. Meinking's home on June 8, 1988. The permit was obtained by Mr. Sherno as agent for Respondent. A notice of commencement was filed by Mr. Meinking on June 20, 1988, listing Respondent as the contractor, and listing Mr. Sherno as the person designated by the owner for service of notice and other documents. Respondent authorized Mr. Sherno to obtain the building permit by letter to the local building department dated June 21, 1988 ("authorization letter"). The authorization letter was requested by Robert Nelson who was Tracy's president. Mr. Nelson was personally acquainted with Mr. Sherno and dealt directly but separately with Mr. Sherno and Respondent. Mr. Sherno paid $200.00 to Mr. Nelson at the time of the authorization letter. Mr. Nelson told Respondent that the permit was for the construction of Mr. Meinking's home. Respondent initially questioned the need for a contractor to pull the permit when the owner could build his own house under an owner's permit. Respondent was told that Mr. Meinking and Mr. Sherno were going to develop a number of homes in the area Not only would the number of homes not qualify for an owner's permit, but it was anticipated by Mr. Nelson that the development plan proposed by Mr. Sherno and Mr. Meinking had excellent profit potential for all concerned. Based on that information from Mr. Nelson, Respondent signed the authorization letter. Respondent knew Mr. Sherno and knew that Mr. Sherno was not a licensed contractor. Neither Respondent nor any qualified person supervised the construction of Mr. Meinking's home. One person employed by Tracy in an administrative or clerical capacity visited the construction site occasionally. Respondent inquired of Mr. Nelson from time to time at the offices of Tracy as to the status of construction. Respondent drove by the construction site from time to time, but did not personally supervise construction in any capacity. Respondent did not inspect the progress of construction, provide insurance, discuss the progress of construction with Mr. Meinking, Mr. Sherno, or anyone at Tracy. Respondent assumed that construction was proceeding according to schedule and in a satisfactory manner as long as there were no complaints. Mr. Meinking paid Mr. Sherno the entire $64,000.00 pursuant to the terms of the contract. During the latter stages of construction in the first or second week of November, Mr. Meinking began receiving calls from subcontractors stating that they had not been paid. Mr. Meinking terminated his contractual relationship with Mr. Sherno on or about November 17, 1988. Mr. Meinking paid approximately $16,500.00 to eight subcontractors and an additional $10,000.00 to $12,000.00 to finish construction of his home.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of violating Subsections 489.129(1)(e), (f), and (m), Florida Statutes. It is further recommended that Respondent be fined $2,000.00 which represents the aggregate amount of the minimum fine for each violation. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 27th day of August, 1990. DANIEL MANRY 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 27th day of August, 1990.
The Issue Whether disciplinary action should be taken against Respondent’s license to practice contracting, license number CGC1507637, based on the violations alleged as follows: By committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer in violation of Subsection 489.129(1)(g)2., Florida Statutes (2006)1; By abandoning a construction project in which the contractor is engaged or under contract as a contractor, in violation of Subsection 489.129(1)(j), Florida Statutes; and By committing incompetency or misconduct in the practice of contracting, in violation of Subsection 489.129(1)(m), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence, the following facts are found: At all times material, Respondent was a certified general contractor, having been issued license number CGC1507637 by the Florida Construction Industry Licensing Board (CILB). At all times material, Respondent was the qualifier of Pro-Tech Building Systems, LLC. On September 14, 2006, Respondent entered into a contract with the owner, Alvin Coiner, to erect the walls of the residence that Coiner was building on a lot he owned in St. James City, Florida. The price of the contract with Respondent was $38,253.00. It called for the erection of reinforced concrete walls, using insulated concrete Integra-Spec® forms produced by the Canadian manufacturer Phil-Insul Corporation. Initially, Coiner planned to build the house using concrete blocks for the outer walls, and engineering plans were submitted to the County building department, which were approved. At some time before September 14, 2006, Respondent, Michael Dalla Costa and Coiner met at Respondent’s office and agreed to construct the walls using the Integra-Spec® Insulated Concrete forms (ICF) system instead of regular concrete blocks. All parties agreed that the transitioning from concrete blocks to Integra-Spec® ICF should not present any issues if the slab was code-compliant. Integra-Spec® insulated concrete forms are a technology used to build steel-reinforced concrete walls. It uses Styrofoam Lego®-like interlocking inner and outer panels, locked together with a web of plastic ties, between which the rebar is installed inside, vertically and horizontally. After the forms are installed and the rebar is put in place, raw concrete is then pumped in the space between the panels, thus forming the concrete insulated walls after the concrete cures. Coiner discussed with a representative of the Phil- Insul Corporation the requirements to build a home using the Integra-Spec® forms. To do so required a trained professional. Respondent assured Coiner that he was fully trained to install Phil-Insul products and that he had completed several jobs in the Ft. Myers area. Respondent claimed that he was very experienced with both Integra-Spec® forms and with Greenblock concrete forms, and he was also very knowledgeable as to the building code requirements for insulated concrete forms in Lee and Collier Counties. The Integra-Spec® walls were to be constructed in compliance with all local building codes and requirements and were to be certified by the design engineer. Coiner hired Gary Harvey Engineering of Ft. Myers as the engineer of record. Michael Dalla Costa supervised and coordinated the work on behalf of Coiner during Coiner’s absence from the area. In the fall of 2006, Respondent submitted to Dalla Costa some plans that were not approved by Harvey Engineering. Through an error, the plans were submitted to the Lee County Building Department. The building department denied the plans, as they were not approved by the engineer of record, Harvey Engineering. On November 20, 2006, and January 30, 2007, Harvey Engineering submitted revised plans that were approved by the building department. The revised plans by Harvey Engineering were the official documentation to show how the job should proceed. Between October and December 2006, the relationship deteriorated between Respondent, and the building inspector, Dalla Costa and Coiner. Respondent repeatedly argued with the others over whether an additional quantity of rebar, required by the building department, had to be installed. The building inspector did not approve work done by Respondent. Based on his inspection and determination that rebar was missing, the building inspector advised the owner that, in the inspector’s opinion, Respondent did not do a proper job in preparing the walls for the pouring of the concrete into the walls. Respondent installed the Integra-Spec® ICF forms and the additional rebar, and then stopped work at some point in the beginning of December 2006. Dalla Costa had paid Respondent a total of $34,955.00 up to this point. Respondent sent a proposed change order and asked Coiner to pay him an additional $9,239.44, in addition to the agreed contract price. He threatened to completely stop work and leave the job. Coiner did not agree to the proposed change order or to pay additional money over the original contract price. According to Respondent the slab was not level, which created additional work for Respondent to properly install the Integra-Spec® forms. However, there is no dispute that the slab was code-compliant and passed inspection. The contract between parties does not provide for contract price adjustments based on additional work incurred due to slabs that are out of level. According to the Integra-Spec® installation manual, there are two methods of adjustment when the slabs are out of level, including provision for tolerances in excess of one inch. The manual recommends that when the slab is in excess of one inch out of level, shaving the bottom course of the form units at highest point of slab. Respondent testified that he was familiar with the adjustment methods when the slab is out of level. Due to lack of work on the construction site between the second half of December 2006, and the end of March 2007, Coiner hired an attorney to help him deal with Respondent. Coiner’s attorney contacted Respondent in writing on April 2 and April 13, 2007, requesting that Respondent resume work. He did not return to the job. Based on advice from the attorney, Coiner hired contractor Scott White as a consultant to oversee the project and advise Coiner as to how to proceed on the project. As the project situation deteriorated further due to Respondent ceasing work completely, failing inspections and Integra-Spec® forms falling down, Coiner hired White to finish the job for the price of $17,250.00. White erected the walls and finished the job in a professional manner, which passed inspection. According to testimonies by Coiner and Respondent himself, Respondent completed between 75% to 90% of the job. However, due to Respondent’s abandoning the job site for months, the Integra-Spec® forms had been blown down by winds and had to be re-installed or re-aligned by White. The concrete pre-pour inspection was never completed. Respondent never poured the concrete and he never finished the walls. Due to Respondent’s abandonment of the job, Coiner incurred additional expenses of $26,550.00 as follows: an additional six months of construction loan interest at $200.00 per month, $6,500.00 in legal fees, $1,500.00 for consulting fees, about $100.00 for failed inspections fees, and $17,250.00 paid to White to finish Respondent’s job. The total investigative costs of this case to Petitioner, excluding costs associated with an attorney’s time, were $351.47. Respondent’s reasons for abandoning the job are not persuasive.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that a final order be rendered by the CILB as follows: Finding Respondent guilty of having violated Subsection 489.129(1)(g)2., Florida Statutes, as alleged in Count I of the Administrative Complaint, and imposing as a penalty an administrative fine in the amount of $2,500.00; Finding Respondent guilty of having violated Subsection 489.129(1)(j), Florida Statutes, as alleged in Count II of the Administrative Complaint, and imposing as a penalty an administrative fine in the amount of $1,000.00; Finding Respondent guilty of having violated Subsection 489.129(1)(m), Florida Statutes, as alleged in Count III of the Administrative Complaint, and imposing as a penalty an administrative fine in the amount of $1,000.00; Suspending Respondent’s license to practice contracting (CGC1507637) for three months, followed by probation for two years; Requiring Respondent to pay financial restitution to the consumer, Alvin Coiner, in the amount of $13,952.00 for consumer harm suffered due to payment of additional money to complete the job abandoned by Respondent. The consumer damages are calculated by adding the total payments to Respondent ($34,955.00) to the payment for the completion of the contract to Scott White ($17,250.00), and then subtracting the contract price ($38,253.00); Requiring Respondent to pay Petitioner’s costs of investigation and prosecution, excluding costs associated with an attorney’s time, in the amount of $351.47; and Requiring Respondent to complete continuing education hours and to meet such other conditions the CILB may require. DONE AND ENTERED this 31st day of March, 2010, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 31st day of March, 2010.
