Findings Of Fact Respondent is a registered general contractor having been issued license number RG 0009255. On September 5, 1980, Respondent, who was then doing business as George N. Sullivan, Inc., entered into a contract to remodel a residence owned by Mr. and Mrs. James L. Cain located at 2075 DeLeon Avenue, Vero Beach, Florida, for the sum of $46,900. On September 8, 1980, George N. Sullivan, Inc., was paid $4,690 by the Cains as a down payment for the above-referenced construction project. Respondent performed no work with reference to that construction project. On December 7, 1979, the Respondent, doing business as George N. Sullivan, Inc., entered into a contract with Vero Fore, Inc., to construct a residence located at Lot 27, Unit 3, The Moorings of Vero Beach, for the sum of $155,628. The difference between the sum of the contract, $155,628, and the sum alleged in the Administrative Complaint of $171,688 constitutes agreed-upon extra items. Respondent discontinued construction on the Vero Fore project on or about September 22, 1980, after having received $153,547 of the contract amount. At the time that Respondent discontinued construction on the Vero Fore project, there remained $66,199.60 in unpaid bills for labor and materials furnished to Respondent for that residence; yet, the owners of the residence only owed to Respondent $18,141 of the final contract price. On July 6, 1981, Respondent was convicted of five counts of passing worthless checks. These checks represented payments to materialmen and subcontractors with regard to the residence being built for Vero Fore, Inc. The convictions resulted in a judgment dated July 6, 1981, which was entered in the County Court, Indian River County, in cases styled State of Florida v. George N. Sullivan, Case Nos. 81-57 and 81-589, in which the Respondent was placed on probation for 18 months with condition of restitution. At no time material herein did Respondent properly qualify George N. Sullivan, Inc.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the allegations contained within the Administrative Complaint and revoking Respondent's registered general contractor's license number RG 0009255 with the provision that Respondent be allowed to have his license reinstated after a two- year period if he furnishes to the Construction Industry Licensing Board clear and convincing evidence that he has made restitution to Mr. and Mrs. Cain and the five material suppliers to which he was convicted of passing worthless checks. DONE and RECOMMENDED this 3rd day of December, 1982, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 3rd day of December, 1982. COPIES FURNISHED: JOHN O. WILLIAMS, ESQUIRE 547 NORTH MONROE STREET, SUITE 204 TALLAHASSEE, FLORIDA 32301 MR. GEORGE N. SULLIVAN 22 EAST SPRUCE STREET ORLANDO, FLORIDA 32804 SAMUEL R. SHORSTEIN, SECRETARY DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32301 J. K. LINNAN, EXECUTIVE DIRECTOR CONSTRUCTION INDUSTRY LICENSING BOARD POST OFFICE BOX 2 JACKSONVILLE, FLORIDA 32201 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, vs. CASE NO. 0014375 0009520 GEORGE N. SULLIVAN RG 0009255 DOAH CASE NO. 82-1535 22 East Spruce Street Orlando, Florida 32804, Respondent. /
Findings Of Fact At all times material to this case, the Respondent, Joseph Lawton, was licensed as a registered roofing contractor in the State of Florida, holding license number RC 0052537. At all times material to this case, the Respondent was the qualifying agent for All Florida Systems located in Fort Lauderdale, Florida. The Notice of Hearing was mailed to Respondent at his last known address. Ronald Klein lives at 8245 Northwest Ninety-fifth Avenue, Tamarac, Florida. A portion of the roof on Mr. Klein's residence is flat and a portion is pitched. In the middle of August, 1987, Respondent met with Mr. Klein at the Klein residence to discuss Mr. Klein's roofing needs. Respondent told Mr. Klein during their meeting that the flat portion of his roof needed to be re-roofed and quoted a price for the work that Mr. Klein found acceptable. This was the only meeting between Mr. Klein and Respondent and was the only time Mr. Klein has seen Respondent. There was no written contract between Respondent and Mr. Klein because Respondent did not mail to Mr. Klein a written contract as he had agreed to do. On Sunday, August 30, 1987, Earl Batten, one of All Florida System's workers, re-roofed the flat portion of Mr. Klein's roof. Mr. Klein paid Mr. Batten $1,575.00 for the work pursuant to the verbal agreement between Respondent and Mr. Klein. Mr. Klein made his check payable to Earl Batten because Respondent had told Mr. Klein to pay his worker when the work was completed. Mr. Klein noted on the check that the check was in payment of work done by All Florida Systems. Respondent did not obtain the permits required by local law for the work done on the Klein residence. Because there was no agreement to the contrary, it would have been Respondent's responsibility to obtain the permits required by local law. Respondent did not obtain the inspections required by local law for the work done on the Klein residence. Because there was no agreement to the contrary, it would have been Respondent's responsibility to obtain the inspections required by local law. Mr. Klein's roof began leaking after Mr. Batten completed his work on August 30, 1987. In response to three weeks of repeated telephone calls from Mr. Klein, Respondent sent one of his supervisors to inspect Mr. Klein's roof. The supervisor told Mr. Klein that the work had to be redone because the work on the flat roof had not been properly tied into the remainder of the roofing system. Mr. Klein was further advised by the supervisor that Respondent would be in contact with Mr. Klein. After Respondent failed to respond further, Mr. Klein hired a second roofing contractor who corrected the deficient work in October of 1987 at a price of $1,377.00. Between the time Mr. Batten worked on his roof and the time the second contractor corrected the deficiencies, Mr. Klein sustained damages to his residence which required expenditures of over $1,500.00 to repair. Respondent was previously disciplined by the Construction Industry Licensing Board in Case No. 90265.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent guilty of having violated Sections 489.129(1)(d) and (m), Florida Statutes, and which imposes an administrative fine against Respondent in the amount of $5,000.00 and places Respondent on probation for a period of one year. DONE and ENTERED this 19th day of May, 1989, in Tallahassee, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1989. APPENDIX The findings of fact contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 18, 19, 20, 22 are adopted in substance; insofar as material. The findings of fact contained in paragraphs 16, 17, 21 of Petitioner's proposed findings of fact are subordinate. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph Lawton 1000 South Ocean Boulevard Apartment 6C Pompano Beach, Florida 33062 Kenneth E. Easley, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
The Issue The issues for determination are whether Respondent committed the acts alleged in the Administrative Complaint and, if so, what, if any, penalty should be imposed.
Findings Of Fact Petitioner is the governmental agency responsible for issuing licenses to practice as building contractors. Petitioner is also responsible for regulating such licensees on behalf of the state. At all times pertinent to this proceeding, Respondent has been licensed individually as a Certified General Contractor pursuant to license number CG C 0055328 issued by the Construction Industry Licensing Board (the "Board"). Respondent has never been licensed by the Board as the qualifying agent for Mr. Gary Butler ("Butler"), an unlicensed contractor. In 1993, Respondent entered into an agreement with Butler who has never been licensed by the Board. The terms of the agreement require Respondent to pull permits for construction projects entered into by Butler. Butler pays Respondent for each permit or weekly. Respondent supervises some, but not all, of the projects undertaken by Butler. In August, 1993, Mr. Lynn Kyler ("Kyler"), the owner of a residence constructed by Ms. Denise Pyke ("Pyke"), a Certified Residential Contractor, asked Pyke to find a contractor to build a new dock and boat house at Kyler's residence. The Kyler residence is a lake front home located at 10250 State Road 561 A, Clermont, Lake County, Florida. Kyler authorized Pyke to act as Kyler's agent for construction of the dock and boat house. Kyler resided in Indiana from August through late fall of 1993. Pyke obtained recommendations of various candidates including Butler. Butler represented himself as a licensed and insured builder of docks and boat houses. Butler provided Pyke with a business card representing that Butler is licensed and insured. Pyke obtained cost and design proposals from Butler and Norquist Construction Company and communicated the proposals to Kyler. Kyler chose Butler. Butler agreed to demolish the existing dock and construct a new dock and boat house (the "project"). Kyler paid Butler the full contract price of $6,897.60. Prior to the completion of the project, neither Respondent nor Butler disclosed to Pyke or Kyler that Butler was unlicensed. Nor did they disclose that Butler would use Respondent's license to pull the permit for the project. Respondent knew that Butler is not licensed as a contractor, in any capacity. On August 25, 1993, Respondent and Butler went to the Lake County Building Department. Respondent used his license to pull Permit Number T93- 04793 for the project. The permit was issued to Respondent, listed Respondent's license as the certified general contractor, and was maintained in the official records of the Lake County Building Department. Respondent listed himself on the permit as the contractor for the entire project without limitation and without reference to Butler. Respondent was not authorized by Pyke or Kyler to pull the permit or to participate in the project. At the time, neither Pyke nor Kyler were aware of Respondent's existence or his role in the project. Respondent did not participate and had no involvement in the project except pulling the permit. The project was commenced by Butler in August, 1993, and completed shortly thereafter. Respondent did not supervise or participate in the construction of the project. Butler began the project without first filing a Notice of Commencement. Butler constructed the project with only a 10 foot setback in violation of the 25 foot setback required in Lake County Code Ordinance 10.0401(3)(d). Butler also failed to obtain an electrical permit in violation of Standard Building Code, Section 103.1.1. (1991). The project, as built by Butler, has no value to Kyler. The project failed final inspection for violation of the 25 foot setback and failure to obtain an electrical permit. The roof tiles on the boat house had to be removed because they were falling off the roof. The project itself is coming apart. It will cost between $10,000 and $12,000 to bring the project into compliance with local code requirements and to make it usable. Respondent was aware of the 25 foot setback when he pulled the permit for the project. The project plans submitted for the permit reflect the 25 foot setback. Lake County allows contractors to withdraw permits that have already been pulled. Respondent never withdrew the permit for the project. Butler was unable to obtain a final inspection because he failed to file a Notice Of Commencement at the outset of the project. Pyke and Kyler filed the Notice Of Commencement in order to obtain the final inspection. As the contractor of record, it was Respondent's responsibility to ensure that a Notice of Commencement was filed and that the project passed final inspection. While obtaining the information necessary to file the Notice Of Commencement, Pyke and Kyler learned that Butler was unlicensed and uninsured and that Respondent had used his license to pull the permit. When confronted by Pyke, Respondent did not deny knowledge of the project and assured Pyke that the problems with the project would be corrected. Despite Respondent's assurances, the code violations have not been corrected. Nor have the defects in construction been corrected.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a Final Order finding Respondent guilty of violating: Sections 489.129(1)(c) and 455.227(1)(a); and Sections 489.129(1) (e), (f), (n), and (p). It is further recommended that the Board place Respondent on probation for three years, subject to reasonable conditions, impose an administrative fine of $5,000, and assess costs of $717.50 plus reasonable costs incurred by Petitioner subsequent to the date of this Recommended Order to investigate and prosecute this proceeding to its conclusion. RECOMMENDED this 28th day of March, 1996, in Tallahassee, Florida. DANIEL S. 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 28th day of March 1996.
The Issue The issue in this case is whether the Construction Industry Licensing Board should discipline the Respondent, Ysidro Cid Fernandez, on the basis of the charges alleged in the Administrative Complaint which the Petitioner, the Department of Professional Regulation, filed against him on November 30, 1987.
Findings Of Fact The Respondent, Ysidro Cid Fernandez, is licensed as a certified roofing contractor in the State of Florida, holding license number CC-C029602. The Respondent's license was in effect at all times referred to in these Findings of Fact. On or about March 15, 1986, an employee of Sunshine Solar and Roofing, a roofing company for which the Respondent acted as qualifying agent, entered into a contract with Fred Chambers to re-roof a house Chambers owned at 5871 64th Terrace North, Pinellas Park, Florida. The house was a small house, with not more than 1000 square feet of living area, and the contract was to re-roof the entire house for $600 plus tax ($31.50). The shingles to be used were to be 20-year shingles. The contract also provided: "Install on front F/S [far side] 8' long 5" wide T/G [tongue in groove] board." The Respondent's company did the work in April, 1986. Chambers paid the full amount of the contract, $200 down and the balance on or about May 1, 1986. Despite the re-roof, the roof still leaked where it did before the work was done. When Chambers called for warranty repair work, the Respondent refused until Chambers paid what the Respondent said was the cost of extra work the Respondent claimed Chambers had had the Respondent's workers do. The Respondent first came to the opinion that extra work had been done after he received invoices from his supplier indicating that his employees had ordered 1600 square feet of shingles for the job. The Respondent asserted that the contract called for only the front far side of the roof to be replaced. He bases this interpretation of the contract on the language quoted in the last sentence of Finding 2, above. The Respondent claimed that 1600 square feet was twice as much shingle as would be needed to re-roof half of the existing roof. Regardless whether the Respondent's employees ordered too much shingle for the Chambers job, or where the extra shingle might have gone, if not on the Chambers roof, the contract provided for the entire Chambers roof to be replaced for the contract price. The Respondent was not justified in demanding additional money before doing warranty work. The City of Pinellas Park, Florida, the governmental entity with jurisdiction over the Chambers job, required that a building permit be obtained before commencing the Chambers re-roofing construction. The City of Pinellas Park also required inspections of the Chambers re-roofing job. The Respondent claimed to have timely obtained a building permit for the Chambers job and, in testimony at final hearing, detailed an elaborate story about how he went about getting one. But the Respondent's own evidence, in the form of late-filed Respondent's Exhibit 2, establishes that he did not apply for the building permit until December 17, 1987, after receiving notice through the November 30, 1987, Administrative Complaint in this case, that the Department was charging him with failure to obtain a building permit for the job. Not having obtained a building permit, the Respondent did not call for the required inspections for the job. The evidence did not prove that the Respondent was grossly negligent or incompetent in estimating the cost of the Chambers job. First, the evidence did not prove that the job was seriously underestimated; to the contrary, the evidence tended to show that the Respondent's employees ordered more material than needed for the job. (When this came to the Respondent's attention, he unfairly blamed Chambers for having his employees do extra work not called for by the contract.) Second, the Respondent had nothing to do with the cost estimate on the job. The Respondent's price per square foot of roof area was fixed; he depended on his employees to accurately measure the size of the roof being priced. There is no evidence how the Respondent went about training his employees to measure a roof for purposes of a cost estimate. The Respondent has been disciplined by the Construction Industry Licensing Board once before. He received a reprimand in August, 1987, for failure to obtain a building permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Construction Industry Licensing Board enter a final order suspending the Respondent's license for one year and fining the Respondent $2,500. RECOMMENDED this 25th day of July, 1989, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 25th day of July, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0570 To comply with the requirements of Section 120.59(2), Florida Statutes (1987), the following rulings are made on the Petitioner's proposed findings of fact (the Respondent not having filed any): Rejected in part (the Respondent's name is not Thomas L. Jackson); otherwise, accepted and incorporated. Accepted and incorporated. Rejected in part; the evidence did not prove that the roof was unfinished or that the roof was done correctly or that the work was done incorrectly, only that it leaked after the work was done. 4.-6. Accepted and incorporated. Rejected as not proven by the evidence. (See 3., above.) Accepted and incorporated. COPIES FURNISHED: David Bryant, Esquire 13014 North Dale Mabry Suite 315 Tampa, Florida 33618 Ysidro Cid Fernandez 2700 North McDill Avenue Suite 204 Post Office Box 4726 Tampa, Florida 33607 Ysidro Cid Fernandez 8109 Rivershore Drive Tampa, Florida 33604 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Kenneth Easley, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729
Recommendation In consideration of the foregoing, it is recommended that the Petitioner enter its final order: Finding the Respondent guilty of Count One of the Administrative Complaint by (a) violating section 489.129(e), Fla. Stat. (1981), by aiding and abetting an uncertified and unregistered person to evade the licensing provisions of the Contracting Act, and (b) by violating section 489.129(1)(f), Fla. Stat. (1981), by knowingly combining and conspiring with an unregistered and unlicensed person with intent to evade the provisions of the Contracting Act. Finding the Respondent not guilty of the allegations in Count Two of the Administrative Complaint. For the violations of Count One, imposing a fine of five hundred dollars ($500). DONE and ENTERED this 10th day of May, 1985, in Tallahassee, Florida. WILLIAM C. SHERRILL, JR. 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 Administrative Hearings this 10th day of May, 1985. COPIES FURNISHED: H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Martin F. Mann 2216 Bayshore Garden Parkway Bradenton, Florida 33507 Simon Rosin, Esquire Pflugner, Rosin & Hendricks Post Office Box 1918 Sarasota, Florida 33578 James Linnan, Executive Director Construction Industry Licensing Board P.O. Box 2 Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore Carpino General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee,, Florida 32301
Findings Of Fact At all times material to this proceeding, the Respondent, Donald F. Royal, was licensed as a registered roofing contractor in the State of Florida, holding license number RC 0031831. During the times of the alleged violations, the Respondent was the sole qualifying agent for J & J Construction Company (the company.) The principals of the company were the Respondent and a man named James Jimenez. Both men sold jobs for the company and were responsible for overseeing some of the work of the company. The Respondent pulled permits for, and was primarily responsible for, the roofing work contracted by the company. But sometimes, when the company had more than one job going at the same time, the Respondent would be primarily responsible for overseeing one, and Jimenez would be primarily responsible for overseeing the other. The Respondent thought that Jimenez held a license of some kind that enabled him to do some kinds of minor renovation construction. The Respondent restricted his work to roofing and did not mind Jimenez doing some renovation work on the side, separate from the business of the company. But the Respondent understood that Jimenez' "side deals" would be done separately under Jimenez' own license and would not be part of the business of the company. On or about August 14, 1986, Jimenez entered into a contract on behalf of the company to build an addition, remodel and reroof the existing structure and roof the addition of the residence of Ernest and Mercedes Riccio located at 3117 West Henry Avenue, Tampa, Florida. The contract price was $18,999. Jimenez telephoned the Respondent about the job but only told him about the part of the contract that called for the existing roof to be torn off and reroofed. He told the Respondent that the contract price for the job was $3,800. The Respondent pulled a permit for what he thought was the job and started and finished what he thought was the work to be done. The Respondent personally was compensated approximately $700-$800 for his part in the reroofing job. When the Respondent was finished, Jimenez continued with the rest of the contract, which was to include roofing the addition, without telling the Respondent about it. Jimenez did not get very far before a Tampa building inspector happened past and, seeing unfamiliar work in process, inspected the job site. He discovered that the building permit displayed at the site had been altered to expand the work purportedly permitted to include building, in addition to the roofing work for which the Respondent had obtained a permit. Someone other than the Respondent (probably Jimenez although he denied it) altered the permit. The Respondent knew nothing about the contract (other than the reroofing that he did), the alteration of the permit, or the work Jimenez was doing after he left the site. When he discovered the permit violations, the building inspector "red- tagged" the entire job, and work stopped. That was only the beginning of the Riccios' problems. Further investigation revealed that the job would require not only a valid permit but also zoning variances and utility easements. Although the contract had called for the company to obtain all necessary permits, Jimenez and the Riccios agreed that the Riccios would apply for whatever else was necessary in their own names and that Jimenez would assist them. By the time work stopped, the Riccios already had paid the company $12,666 of the total contract price. Nonetheless, when Jimenez' minimal assistance did not resolve the Riccios' problems quickly, Jimenez decided that he already had put too much into the job, and he began to lose interest and make himself scarce. The Riccios finally got their necessary permits on January 26, 1987. They then approached Jimenez about the work to be done under the contract (and the matter of the remaining $6,333 draw). The Riccios and Jimenez agreed that the Riccios would provide the materials and supplies necessary to complete the work and the company would provide the labor. Despite these alternate arrangements, the company did not promptly finish the job. Eventually, the Riccios gave up on Jimenez and in April or May, 1987, began to deal directly with the company's former job superintendent, a man named Ray. To improve their chances of getting the job done (and reduce some of their extra expenses), the Riccios agreed to allow Ray to live in the house free of charge while they were doing the work. The job still did not get finished. Eventually, Mrs. Riccio and some of her relatives finished the job themselves. Even so, the Riccios wound up spending about $20,000, in addition to the $12,666 they had paid the company, to complete the job which the company had contracted to do for $18,999, total. The Respondent was not aware of any of Jimenez' dealings with the Riccios after the Respondent completed his reroofing work. The Respondent assumed that Jimenez had called for a final inspection and that the job had been completed satisfactorily. But in approximately February or March, 1987, the Respondent was contacted by a DPR investigator in connection with the Riccios' complaint against the company. He learned at about that time about Jimenez' other dealings with the Riccios. He also learned that the roof over the addition that had been built had failed inspection. The Respondent eventually corrected the deficiencies, and the roof passed final inspection on August 19, 1987. The Respondent attempts to excuse himself of any wrongdoing, saying that he had a right to delegate the supervision of jobs such as the Riccio job to Jimenez and that he himself was victimized by Jimenez, along with the Riccios. Respondent nonetheless negotiated with Jimenez through the end of the year 1987 in an attempt to come to an agreement to continue to do business together, but the negotiations finally failed. The Respondent was disciplined by the Construction Industry Licensing Board on January 7, 1988, for offenses which occurred during the same time frame in which the Riccio job took place.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Construction Industry Licensing Board enter a final order finding the Respondent, Donald F. Royal, guilty of violating Section 489.129(1)(j) and (m), Florida Statutes (1987), and imposing on him an administrative fine in the amount of $1,000. RECOMMENDED this 20th day of December, 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 20th day of December, 1988. COPIES FURNISHED: Mr. Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Donald F. Royal, pro se 8509 North 16 Street Tampa, Florida 33604 Bruce D. Lamb General Counsel Dept. of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Respondent, a certified general contractor, violated the construction industry licensing law, by: (1) willfully or deliberately disregarding and violating the applicable building codes or laws of the State or any municipalities, cities or counties thereof; (2) diverting construction funds resulting in his unwillingness or inability to perform pursuant to a construction contract; and (3) abandoning a construction project; and if the Respondent is guilty of such violations, the appropriate disciplinary penalty which should be imposed by the Construction Industry Licensing Board.
Recommendation That Respondent's certified general contractor's license No. CGC005174 be suspended until such time as Respondent furnishes the Board satisfactory evidence of having made restitution to Simon H. and Alexandra U. Ramos in the amount of $2,515 for monies expended by them to pay for lumber, electric and plumbing charges arising out of their construction contract.
Findings Of Fact On December 17, 1973, Henry Botwinick acknowledged having received from Mrs. Kane $4,000 on account for addition on the house at Northeast 11th Place, North Miami, Florida (Exhibit 8). Exhibit 3 is an application for building permit and building permit issued by the City of North Miami for the construction at the Kane residence. Attached thereto are the plans for the construction. Exhibits 4, 5, and 6 show pollution control authority for the construction, the plumbing permit, and electrical inspection permit. Subsequent thereto construction was commenced on this project. Mrs. Kane was advised that the project would be completed in 4 to 6 weeks, however, the contract was never completed. In April Mr. Botwinick came to Mrs. Kane and asked for an additional $500 to get the electrical work started and the cement foundation poured. Approximately two weeks later he again obtained from Mrs. Kane $1500 with which to pay the roofer. He advised Mrs. Kane that he had used the money, previously advanced by her for materials, on another job. Exhibit 8 indicates that payments of $500 were made on April 1, another $500 was made on April 12, and $1,500 was made on April 25, 1974. Subsequent inaction by the contractor on this project resulted in a letter (Exhibit 7) dated May 6, 1975 from Bertil Lindblad, a building official for the City of North Miami, in which he advised Mr. Botwinick that the building permit issued to him had expired for lack of progress or abandonment of the work for a period exceeding ninety days. Mrs. Kane last saw work performed by Botwinick on February 25, 1975. She made numerous telephone calls, but was unable to contact him. Subsequent to the payments made to Botwinick, Mrs. Kane has had to pay nearly $3,000 to another contractor to perform work and the project is still not completed. As of the date of hearing she requires approximately $3,000 additional work to complete this project.
Recommendation RECOMMENDED that Building Contractor's License #CBC001839 issued to Henry Botwinick, 11321 Rexmere Boulevard, Ft. Lauderdale, Florida, be revoked. DONE AND ENTERED this 18th day of March 1976 in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida
The Issue The basic issue in this case is whether the Respondent's license as a certified general contractor should be revoked or suspended, or some other discipline imposed, for the reasons alleged in a multi-count Administrative Complaint. The essential allegations of the Administrative Complaint may be summarized as follows: Count One--failure to properly qualify a company under which Respondent was doing business and acting in a name other than that on his license; Count Two--abandoning a construction project without just cause and willful or deliberate disregard and violation of applicable local building codes; Count Three-- diverting funds received for the completion of a specified construction project when as a result of the diversion the contractor is unable to fulfill the terms of his contract.
Findings Of Fact Based on the admissions and stipulations of the parties, on the exhibits received in evidence, on the testimony of the witnesses at the hearing, and on matters officially recognized, I make the following findings of fact: Admitted and stipulated facts The Respondent is a certified general contractor, having been issued license number CG C007067. The Respondent's last known address is DeMaria & Sons Construction Company, Inc., 4451 N.E. 16th Avenue Fort Lauderdale, Florida 33334. On July 14, 1982, Respondent, doing business as Big D Construction, contracted with Jolly Libo-on of 312 S.E. 22nd Street, Fort Lauderdale, Florida, to build an addition to Libo- on's house for a contract price of $17,500.00. At all times material herein, Respondent qualified DeMaria & Sons Construction Company, Inc. At no time did Respondent properly qualify, nor did any licensed contractor properly qualify, Big D Construction. The Respondent began work on Libo-on's house on August 23, 1982, and continued construction until at least the last week of September of 1982. Libo-on has paid the Respondent $13,500.00 as called for by their contract. The following subcontractors or suppliers filed claims of lien against Libo-on's property because of Respondent's failure to pay them for services or supplies: Minute Men Associates, Inc. $1,752.47 Apachee Roofing 885.00 Meekins, Inc. 439.53 Greenlee Plumbing Service, Inc. 795.00 Total liens $3,862.00 7. The Respondent has not satisfied the liens filed against Libo-on's property, but the liens were later satisfied by Libo- on. Other relevant facts established by the evidence of record After September 27, 1982, the only work performed by or on behalf of the Respondent at the Libo-on residence was by employee Shawn Brannigan on November 16, 1982, and by employee Bob Walters on November 21, 1982. The work performed by Brannigan and Walters in November was de minimis in nature and did not significantly advance the completion of the contract. From September 27 through November 25, 1982, Libo-on called the Respondent by telephone on a daily basis to inquire about why no work was being done on the project. The Respondent would promise that someone would come the next day, but with the exception of the de minimis efforts on November 16 and 21, no work was done on the project after September 27, 1982, by or on behalf of the Respondent. Libo-on quit trying to make telephone calls to the Respondent after the Respondent told Libo-on on the telephone that he had reached a wrong number. The Respondent's services were terminated on December 7, 1982, via letter from Libo-on's attorney, Linn Brett. At no time prior to the termination of his services did the Respondent inform the Libo-ons that he could not do any more work nor did the Libo-ons dismiss him from the work at any earlier date. At the time Respondent's services were terminated, the addition was approximately 75 per cent completed. In addition to the subcontractors and suppliers listed in paragraph 6 above, the Respondent also failed to pay the sum of $2,393.00 which was due to International Drywall Systems, a subcontractor who provided services and supplies on the Libo-on project. Abandonment of a construction project constitutes a violation of Broward County Ordinance 78-9, Section 9-14(b)(8). Libo-on paid the lienors $3,441.00 in satisfaction of the liens. Libo-on contracted with Robert Hobart to finish the construction, at an additional cost of $4,000.00. Libo-on paid $2,200.00 for lawyers fees, $3,441.00 for liens, and $4,000.00 to Mr. Hobart. These costs minus the $4,000.00 remaining under the Respondent's contract resulted in Libo-on expending $5,641.00 above the original contract price. Of the $13,500.00 which was paid to him by Libo-on, the Respondent can establish that he spent only approximately $9,000.00 on the project. The Respondent was unable to complete the project because he did not have on hand the money to pay the subcontractors and suppliers.
Recommendation On the basis of all of the foregoing, it is recommended that the Construction Industry Licensing Board issue a Final Order suspending the Respondent's license for a period of five years and providing further that the suspension will be reduced to one year upon the Respondent's demonstrating to the Board that he has made restitution to Libo-on in the amount of $5,641.00. DONE AND ORDERED this 30th day of October, 1985, at Tallahassee, Florida. MICHAEL M. PARRISH 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 October, 1985. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-4450 The following are my specific rulings on the proposed findings of fact submitted by both parties to this case. Rulings on proposed findings of fact submitted by the Petitioner: The findings of fact included in this Recommended Order include the substance of all of the proposed findings of fact submitted by the Petitioner with certain minor modifications and additions in the interest of clarity and accuracy. Rulings on proposed findings of fact submitted by the Respondent: The unnumbered paragraphs of the Respondent's letter of October 22, 1985, have comments, arguments, legal conclusions, and factual assertions all interspersed. Nothing in the letter constitutes a proposed finding of fact per se. Were it not for the fact that the Respondent is unrepresented by counsel, I would decline to attempt to address the issues raised in the Respondent's letter of October 22, 1985, due to both its tardiness and its failure to separately state proposed findings and proposed conclusions. Nevertheless, giving the Respondent more process than is perhaps his due, I have specifically ruled on each of the contentions which relates to factual matters and have also attempted to address his legal contentions. In the rulings below I have referred to the unnumbered paragraphs in the order in which they appear on each page of the letter. Page one, first paragraph: No ruling required. Page one, second paragraph: No ruling required. Page one, third paragraph: Respondent's version of the facts on this issue is rejected for several reasons, including the following: (1) competent substantial evidence supports the finding that from September 27 until December 7, 1982, only "token" or "de minimis" work was performed on the Libo-on project, and (2) the Respondent did not offer into evidence the documentation mentioned in this paragraph. Page one, fourth paragraph: There is competent substantial evidence for the Petitioner's version of the finding addressed by this paragraph. The Libo- on testimony on this subject is not hearsay. Page one, fifth paragraph: To the extent that in this paragraph the Respondent attempts to dispute the fact that he abandoned the Libo-on project, such a finding is rejected because the persuasive competent substantial evidence compels an opposite finding. Page one, sixth paragraph: With regard to the issue of the percentage of completion of the project at the time the Respondent abandoned it, there is conflicting evidence. The more persuasive evidence is that the project was approximately 75 percent completed. Page one, seventh paragraph (which also continues at top of page two): This paragraph contains a mixture of legal and factual contentions. With regard to the factual contentions it is sufficient to note that the greater weight of the evidence supports a finding that the amount paid to Hobart to finish the work on the Libo-on project was a reasonable amount because, in fact, it was exactly the same amount that remained to be paid to the Respondent on his unfinished contract. No one is trying to charge the Respondent for additional work that was not in his contract. The amount to which the Libo-ons are entitled in restitution is the sum of their expenses incurred for legal fees and for obtaining satisfaction of liens placed against their property because of the Respondent's failure to pay subcontractors and suppliers. Page two, first full paragraph: The Respondent's contentions in this paragraph are contrary to the persuasive competent substantial evidence. These contentions are also contrary to Respondent's admission at hearing that he could account for only approximately $9,000.00 of the $13,500.00 he was paid by the Libo-ons. Page two, second full paragraph: This paragraph requires no comment other than to note that there is a significant difference between imposing a fine and providing for a reduced suspension in the event of restitution. Page two, third full paragraph: Contrary to the Respondent's assertion, there is persuasive competent substantial evidence to establish the amount of the financial injury suffered by the Libo-ons as a result of the Respondent's misconduct. Page two, last paragraph: No ruling required. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Senior Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Vincent A. DeMaria 4451 N.E. 16th Avenue Fort Lauderdale, Florida 33334 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Salvatore A. Carpino General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
