The Issue The issue is whether Respondent's license as a registered building contractor should be disciplined for the acts alleged in the Administrative Complaint, as amended?
Findings Of Fact Respondent, Robert Tucker, is a registered building contractor holding State of Florida license number RB 0033063 (Ex. 7). Respondent was licensed as a building contractor by the State of Florida in September 1978, and has remained licensed at all times material hereto (Ex. 7). Since September 20, 1978, Respondent has held a local Building Contractor's License issued by the Leon County Contractor Licensing and Examination Board (Ex. 7). Respondent's license with the Department has been delinquent since July 1, 1985 (Ex. 7). In July 1983, Respondent made an oral agreement with Violet Gladieux to erect a carport for her at a cost of $1,350 (Ex. 3). Ms. Gladieux's residence is located at 2321 Belle Vue Way, within the city limits of Tallahassee. Jay Gladieux, Jr. became acquainted with Mr. Tucker from his position as an employee of Mr. Tucker on a prior construction project. Mr. Gladieux introduced his mother, Ms. Gladieux, to Mr. Tucker for the carport construction. It was orally agreed that Ms. Gladieux would pay Mr. Tucker for supplies as they were needed. Mr. Tucker began erection of the carport approximately one week after July 11, 1983, when he received the first payment of $300. On July 29, 1983, Mr. Tucker received final payment of $350 so that he could complete the carport (Ex. 3). Approximately two weeks after July 29, 1983, Respondent completed the carport. A permit for the erection of the carport was required by Section 7-63, Buildings and Construction Regulations (The Building Code) of the City of Tallahassee. The language of that ordinance has not changed since 1957 (Ex. 1). No building permit was ever obtained by Mr. Tucker for erection of the carport. Approximately two weeks after completion of the carport, it collapsed after a heavy rainfall (Ex. 4 and 5). Mr. Tucker returned to repair the damaged carport. He erected center studs and was to return later to complete the damage repair. Mr. Tucker has failed to return to complete the damage repair after requested to do so by Jay Gladieux. When an administrative complaint has been filed against a contractor, personal service of the complaint is attempted upon the contractor at his last address of record. If personal service cannot be effectuated at the contractor's last address of record, further attempts are made to locate the contractor. The building departments, both City and County, the telephone company, utility company and post office are contacted. The building departments are contacted to determine if the contractor has obtained any permits, for the permits would list the contractor's address. The telephone company is contacted for prior and new telephone listing(s) with address(es). The post office is contacted for forwarding address(es). The utility company is contacted for new utility service which would contain a new address (es). If the contractor cannot be located after using these avenues, a diligent search affidavit is executed by the investigator who is attempting to serve the contractor. In September 1978 and at all times pertaining to the construction of the carport, Respondent's address of record with the Department was 1515-21 Paul Russell Road and P.O. Box 20234, Tallahassee, Florida. Respondent had not notified the Department of Professional Regulation, Construction Industry Licensing Board of any change in his address (Ex. 7), other than by the new address revealed on the Election of Rights form he filed in response to the administrative complaint. The Department attempted to personally serve Mr. Tucker at his listed address and could not locate him there. On May 21, 1984, Robert E. Connell, an investigator for the Department of Professional Regulation, executed a diligent search affidavit concerning service of the Administrative Complaint upon Mr. Tucker in this proceeding (Ex. 8).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent be found guilty of the charges in count one of the Administrative Complaint, as amended; that counts two and three be dismissed; and that he be fined $250.00. DONE AND ORDERED this 4th day of April 1986 in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY,JR., Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of April 1986. COPIES FURNISHED: Mr. James Linnan Executive Director Construction Industry Licensing Board P.O. Box 2 Jacksonville, Florida 32202 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Errol H. Powell, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Robert Tucker P.O. Box 10218 Tallahassee, Florida 32302
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, John W. Hull, held certified building contractor license number CB CO28961 issued by petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Board). When the events herein occurred, respondent was qualifying agent for, and doing business as, John W. Hull Construction in Inverness, Florida. On September 15, 1990, respondent entered into a contract with Robert and Mary E. Griggs to construct a single-family residence at 7118 East Gospel Island Road, Inverness, Florida, for an estimated cost of $130,000. The contract called for respondent to be responsbile for all materials and work on the project and to build the residence in compliance with the county building code. In this regard, respondent pulled the permit for the job and was the supervising contractor. The project was completed around mid-May 1991 and a certificate of occupancy was issued by Citrus County (County). After the Griggs paid for the work in full, they took occupancy of the premises on May 17, 1991. On September 21, 1993, the Griggs noticed a water leak in the guest bathroom. Mary Griggs immediately contacted respondent and was told to call the subcontractor who installed the roof, Lloyd Vann. She did so and Vann came to the house the next morning and acknowledged the shingles were installed "incorrectly." He returned on October 4, 1993, and placed some tar under the shingles. While doing so, Griggs says that Vann "ripped a lot of the shingles." When the leaks persisted, including at least seven separate leaks during a single rain storm, Mary Griggs requested two other roofers to inspect her roof. They corroborated Vann's acknowledgment that the roof was "incorrectly" installed. On January 18, 1994, Griggs again contacted respondent and told him she needed a new roof since it violated building code requirements. He responded that there were no building code standards applicable to the roof. Mary Griggs persisted with her complaint and eventually arranged a meeting with a County building inspector, Henry Pann, respondent and Vann on September 30, 1994. However, Griggs was told not to speak at the meeting but rather to listen to the other participants. As a result of that meeting, Mary Griggs was contacted by respondent just after a heavy rain on October 3, 1994, to see if she still had any roof leaks. Not surprisingly, she responded in the affirmative and respondent visited the premises the next day. After concluding that the leaks were caused by water seeping through the sides of the chimney, respondent sealed and repainted the chimney area the following day. On November 15, 1994, the Griggs again experienced "heavy leaks" in their home during a heavy rain storm. After unsucessfully attempting to contact respondent, Mary Griggs finally reached Vann, who eventually replaced some shingles on November 23, 1994. However, as of the time of hearing in late July 1995, the Griggs still had water leaks in their home every time it rained, some of which were "worse" than before any repairs were made. Photographs received in evidence, and deposition testimony by inspector Pann, confirm numerous water stains throughout the house. Inspector Pann established that the roof violated the County's building code in at least four respects. First, the roof was in violation of section 103.2.4 by having inadequate fastener lengths, that is, respondent's agent had used staples instead of large head galvanized nails as required by the code. Thus, the fasteners could not penetrate through the shingle and into the lumber deck. Second, section 103.2.3 was contravened because the rakes and eaves were not cemented. Third, section 100 was violated because the drip edge was applied over the felt topping, a procedure which also contravened the manufacturer's specifications. Finally, the roof workmanship violated sections 100 and 100.1 by having an improper staple installation. The manufacturer of the asphalt shingles used on the Griggs' roof, Georgia-Pacific, has published a brochure containing easily understood instructions on how to install asphalt shingles. Even so, Vann ignored these plain instructions in a number of respects when he installed the Griggs' roof. For this reason, it can be reasonably inferred that respondent, through his agent Vann, deliberately violated local building codes. To correct the code violations and eliminate the leaks, and to make the roof comparable to that which the Griggs contracted for, it will be necessary for the Griggs to replace the roof, which will cost $7,020.00. In addition, it will cost the Griggs $500.00 to seal and paint the ceiling areas discolored by the leaking water. Respondent says that when the roof was installed in 1991, he followed applicable building codes "as much as they were being followed" at the time. While he defended his roofing subcontractor as being "a very reputable roofer," respondent nonetheless took the position that the roof was Vann's responsibility "to make good," and not his. He does not deny that the Griggs' roof is leaking, but says the leaks are "very small" and suggests that the Griggs' claims are exaggerated. At hearing, respondent suggested that the problem could be resolved by Mary Griggs calling Vann, who would "be there within a day or two" to make the repairs, a claim belied by the record. In any event, respondent is unwilling to replace the entire roof, a measure deemed to be necessary by the County inspector and other contractors. In light of respondent's continued failure to take appropriate measures to fix the roof, it is found that respondent is guilty of misconduct in the practice of contracting. Through a late-filed affidavit, petitioner established that it incurred $3,012.18 in costs in prosecuting this action. This amount was not challenged. By law, the Board is entitled to recover this amount from respondent should it prevail in this proceeding.
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 finding respondent guilty of violating Sections 489.129(1)(d) and (m), Florida Statutes (Supp. 1990), imposing an administrative fine of $2,250.00, requiring that he pay restitution in the amount of $7,520.00, and requiring that he pay $3,012.18 for costs incurred by the Board in investigating and prosecuting this action. The fine, restitution and costs shall be repaid by a date certain to be established by the Board. DONE AND ENTERED this 8th day of September, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER 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 8th day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0541 Petitioner: The proposed findings submitted by petitioner have generally been adopted in substance in this Recommended Order. COPIES FURNISHED: Gary L. Asbell, Esquire Dept. of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Mr. John W. Hull 95495 Berkshire Avenue Inverness, Florida 34452-9005 Richard Hickok, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda L. Goodgame, Esquire Dept. of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, the following relevant facts are found: At all times material hereto, Respondent was a licensed contractor in Florida having been issued license no. CBC013872. On or about September 4, 1987, Respondent was disciplined by the local government, Hillsborough County Building Department, and his permitting privileges were suspended in Hillsborough County for violation of local ordinance 86-6 respecting his failure to pay bills incurred on a church project which he undertook and for engaging in construction work which failed to comply with the local building code. Respondent did not testify and did not dispute any of the allegations contained in the administrative complaint.
The Issue Whether or not Respondent's certified general contractor's license should be disciplined because he aided or abetted an uncertified or unregistered person, knowingly combined or conspired with an uncertified or unregistered person by allowing his certificate or registration to be used by an uncertified or unregistered person with the intent to evade Chapter 489; acted in the capacity of a contractor under an unregistered or uncertified name; engaged in fraud, deceit, or gross negligence, incompetence, or misconduct in the practice of contracting as alleged, in violation of Subsections 489.129(1)(e),(f),(g) and (m), Florida Statutes.
Findings Of Fact Petitioner is the state agency charged with the responsibility to investigate construction activities in Florida and, where indicated, to file Administrative Complaints pursuant to Chapters 489, 455 and 120, Florida Statutes, and other rules and regulations promulgated pursuant thereto. During times material, Respondent, Richard L. Melvin, was licensed as a general contractor, having been issued license number CG C022926. During times material, Respondent did not qualify Jeffrey Gaston or Tropical Exteriors & Services, Inc. (TESI), nor did said entity or contractor's name appear on Respondent's license. During times material, Jeffrey Gaston d/b/a TESI, was never licensed nor qualified to do business as a contractor in Florida. During times material, Respondent was not a licensed roofing contractor. On or about March 31, 1987, Jeffrey Gaston contracted with Deborah and Clinton Weber to repair a roof and renovate a bathroom at their residence for the sum of $5,000.00. Respondent's name, license number, address and telephone number was listed on the Gaston/Weber contract. Jeffrey Gaston d/b/a TESI entered into a contract with Wilfred Butler on January 12, 1987, to replace a back porch at his residence. Respondent's general contractor's license number was listed at the top of the agreement between Gaston-TESI/Butler. Checks drawn by Butler were made payable to Respondent/TESI. Respondent obtained a permit for Jeffrey Gaston d/b/a TESI for the Butler project. (Petitioner's Exhibit 7.) Respondent admitted to authorizing Gaston or TESI to use his name and certificate number on contracts. Respondent was aware of approximately 20 contracts and several other permits wherein Gaston/TESI obtained the contracts or permits by using Respondent's name and license number. Respondent admitted receiving approximately $2,000.00 for supervising TESI. Respondent never disassociated himself from Jeffrey Gaston until May 31, 1987. Petitioner introduced ten contracts for work in Pinellas County from December 1986 to May 1987, with Respondent's name and state certification number with Jeffrey Gaston d/b/a TESI listed as the contractor. (Petitioner's Exhibit 9.) Respondent obtained a permit for Jeffrey Gaston d/b/a TESI for the installation of aluminum soffit and fascia on the Stitches' home situated at 111 Aurora Avenue North, Clearwater, Florida. Respondent did not supervise the installation of aluminum soffit and fascia on the Stitch's residence. Respondent, as a general contractor, is responsible for all phases of work for which he contracted for and/or obtained permits. Respondent was aware that Jeffrey Gaston was not a licensed contractor in Florida. Jimmy Jimenez has never been a licensed contractor in Florida. J & J Construction Company was qualified in February 1988, under Respondent's license number, CG C022926. Thereafter, during February 1989, J & J Construction was qualified under Respondent's license number RC 0058448. Respondent did not attempt to qualify J & J Construction until he was cautioned by Petitioner's investigators Steven Pence and Dennis Force, that his construction activities amounted to "aiding and abetting an unlicensed contractor." On or about December 11, 1987, Wiley Parks, Jr., entered into a contract with J & J Construction to perform construction work and remodel a home for Parks located at 1722 West Arch Street, Tampa, Florida. In conjunction with that contract, a second contract was submitted by J & J Construction for Mr. Parks, although unbeknownst to him, which utilized Respondent's name and contractor's license number at the top of the agreement. Wiley Parks spent a great deal of his time observing the construction and remodeling work by J & J. Respondent was only seen by Wiley Parks when they met at a local bank to cash a check which represented a draw submitted by Respondent for construction work done at the Arch Street construction project. Respondent obtained a permit for the Parks job on January 6, 1988, which was prior to the time he qualified J & J Construction as the entity through which he would conduct construction business. Respondent, although required to do so, never called for a final inspection on the Parks job. The floor joists at the Parks job were disapproved by the Hillsborough County Building Department and were never repaired by Respondent. Employees of J & J were observed working at the Parks job site on January 4 and 8, 1988. Respondent was, on two occasions, the subject of prior disciplinary action by Petitioner during 1987. On one occasion, probable cause was found on August 12, 1987 and the case was closed by issuing a letter of guidance to Respondent. On the second occasion, probable cause was found on October 7, 1987. Final action was taken on February 11, 1988, whereby an administrative fine of $1,000.00 was imposed against Respondent or, alternatively, a 30-day suspension of his license. Respondent paid the administrative fine within the allotted time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent's general contractor's license number CG C022926 be REVOKED. 1/ RECOMMENDED this 26th day of March, 1990, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 26th day of March, 1990.
Findings Of Fact At all times material hereto, Respondent has been a registered roofing contractor having been issued License No. RC 0041149. Respondent's address of record is Miami, Florida. The Dade County Construction Trades Qualifying Board is authorized to discipline tradesmen and contractors in Dade County, Florida. By letter dated September 17, 1986, the Metropolitan Dade County, Florida, Building & Zoning Department advised Respondent that a formal hearing would be held before the Dade County Construction Trades Qualifying Board on 35 charges arising out of Respondent's roofing and painting activities. A formal hearing was conducted on November 13, 1986, at which time 24 of the 35 charges were dismissed, and the formal hearing was continued. By letter dated January 21, 1987, the Metropolitan Dade County, Florida, Building & Zoning Department advised Respondent that the continuation of his formal hearing would be held on February 12, 1987, at which time 4 additional charges, enumerated in that letter, would also be heard. At the conclusion of the formal hearing on February 12, 1987, 12 more of the charges were dismissed. Out of the total of 39 charges filed against Respondent, Respondent was found guilty of 3 charges. The Construction Trades Qualifying Board ordered that the business and personal certificates of Respondent be revoked and that Respondent be fined a total of $5,000. Respondent was present and had the opportunity to be heard at the formal hearing conducted on November 13, 1986, and on February 12, 1987. After Respondent was advised of the disciplinary action imposed by the Construction Trades Qualifying Board, he paid the fine imposed upon him. He also made restitution to the two homeowners involved. One of the homeowners was complaining about a leak in the roof that Respondent had installed. Respondent gave the homeowner another new roof at no cost. The other homeowner had refused to pay for the installation of the roof, and Respondent had placed a lien against the property. Respondent cancelled the lien on the property so that that homeowner received the new roof for free. Respondent's licenses were reinstated by the Dade County Construction Trades Qualifying Board, and Respondent remains in good standing with that local agency. Respondent has been previously disciplined by the Florida Construction Industry Licensing Board as a result of an informal proceeding held on January 9, 1986. The final order from that proceeding assessed a $250 fine against Respondent.
Recommendation Based upon 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 in the Administrative Complaint filed herein and imposing against him an administrative fine in the amount of $500 to be paid by a date certain. DONE and RECOMMENDED this 29th day of February, 1988, at Tallahassee, Florida. LINDA M. RIGOT, 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 29th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3892 Petitioner's proposed finding of fact numbered 1 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law. The remainder of Petitioner's proposed findings of fact have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact are contained in a letter which, essentially, is simply an attempt to reargue the facts underlying the local disciplinary action and to establish the fact that he is an excellent roofer. Only those sentences which relate to the restitution made to the two customers by giving them free roofs have been adopted in this Recommended Order, and the remainder of the sentences have been rejected as being irrelevant to the issue involved in this proceeding. COPIES FURNISHED: Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Jonathan Ring, Esquire Peter Fleitman, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Louis Gordon 14870 Southwest 205th Avenue Miami, Florida 33187 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issues presented herein are whether or not the Respondent's registered roofers contractors' license should be revoked, suspended, or otherwise disciplined based on allegations set forth in the Petitioner's Administrative Complaint filed herein signed February 21, 1983 alleging that Respondent unlawfully abandoned a construction project; diverted funds or property received for the completion of a construction project; made misleading, deceptive, fraudulent or untrue representation in the practice of contracting; was the subject of disciplinary action by a local licensing board and was guilty of misconduct in the practice of contracting, all within the moaning of Sections 489.129(1)(i),(h),(k),(m) and sections 455.227(1)(a), Florida Statutes (1981)
Findings Of Fact At all times material to this proceeding, Respondent was a registered roofing contractor having been issued license number PC 0034672 in the name of John M. Sneed, Beall and Associates Roofing Corporation, 7650 SG 135 Street, Miami, Florida 33156. At all times material, Respondent was qualifier for Beall and Associates Roofing Corporation under his registered roofing contractor's license. (Petitioner's exhibit 1) On April 22, 1982, Respondent entered a contract with Marcel and Goldy Wiesner to reroof the Wiesner home at 9225 Bay Drive, Surfside, Florida for a contract price of $4,915 less five percent. (Petitioner's Exhibit 5) The Wiesners contacted the Respondent and Beall and Associates because of a coupon which Wiesner noticed in the Greater Miami Yellow Pages. The coupon provided for a 5 percent roofing discount on roofing work performed by Beall and Associates Roofing Corporation. (See Petitioner's Exhibit 6 and Testimony of Marcel J. Wiesner) Under the terms of the contract entered into by the parties, Respondent was to complete the installation of roofing tiles on the Wiesner residence on or before May 30, 1992. The Wiesners had informed the Respondent that they would be leaving on vacation during June of 1982, and therefore wanted the roof- repairs completed prior to their departure for vacation. (Petitioner's Exhibit 5 and Testimony of Marcel J. Wiesner) On approximately May 3, 1982, Respondent applied for a building permit from the town of Surfside, Florida, for the repairs to the Wiesner roof. A permit, number 18697, was issued by the town of Surfside for the reroofing job on that same date. (See Petitioner's Exhibits 7 and 8) Respondent immediately commenced construction on the Wiesner project on May 3, 1982. At that time, Respondent was given $2,457.50, which represented 50 percent of the contract price. On May 6, 1982, the Wiesners paid Respondent $1,253.75 making the total percentage of the contract price paid to date 79 percent inclusive of the 5 percent deduction referred to above. During May of 1982, Respondent abandoned the Wiesners reroofing project and, at that time, the tin capping inspection had been performed and the project was approximately 60 percent completed. (Testimony of Marcel J. Wiesner and John Hahn, Town Clerk and Manager, Town of Surfside) Respondent provided the Wiesners no prior notice of his in tent to abandon the reroofing of their residence and did not offer them any reasons for his failure to return to complete the project. (Testimony of Marcel Wiesner) The Wiesners individually, and through their attorney, made numerous attempts to contact Respondent to return to complete the reroofing work to their residence without any success. The Wiesners therefore hired a second roofing contractor to complete the project. During the interim, the Wiesners had to repair the interior of their home which was water-damaged as a result of the Respondent's failure to complete the roofing project the started. On approximately May 23, 1982, Respondent, as qualifier for Beall and Associates Roofing Corporation, contracted with John C. Leisinger to reroof the Leisinger home at 851 Heron Avenue, Miami Springs, Florida. Respondent agreed to install monterey tile on their "villa mission" style home. The contract price was $5,600. (See Petitioner's Exhibit 9 and Testimony of John C. Leisinger) On July 14, 1982, Respondent received $2,800 representing one-half of the contract price to perform the reroofing to the Leisingers' home. On or about July 16, 1982, Respondent received an additional $1,719 from the Leisingers or a total of approximately 81 percent of the contract price. (Testimony of John Leisinger) On or about July 16, 1982, Respondent applied for and received a roofing permit from the City of Miami Springs, Florida, for the reroofing work on the Leisingers' home. (Petitioner's Exhibit 11) Between July 14 through 16, 1982, Respondent partially performed the roofing work on the Leisingers' residence. After July 16, 1982, Respondent failed to return to the Leisingers' residence to complete the reroofing work despite numerous attempts by the Leisingers to get the Respondent to return. At the time that he left the Leisinger residence, Respondent had not installed the roofing tiles as required but left the roof in an exposed state. (Testimony of John C. Leisinger) Respondent left the Leisinger reroofing project without notice to the Leisingers nor did he later provide them any reason for his failure to return to that project. At that time, Respondent had completed approximately seventy (70%) percent of the work required under the contract. Respondent, however, did advise Mr. Leisinger that he was unable to complete the project at the original contract price because the price of the monterey tiles specified in the contract had increased. In this regard, Mr. Leisinger contacted the tile company that supplied the monterey tiles and was in formed that the price was unchanged during the period that Respondent would have purchased those tiles for the project. Further, Mr. Leisinger later purchased the same tiles specified in the contract at the same price contemplated by the parties. Mr. Leisinger was left with the alternative and was forced to purchase the tiles and complete the roofing project himself when Respondent failed to return. (Testimony of John C. Leisinger) During the course of time when the petitioner investigated a complaint filed by Mr. Leisinger with the Petitioner against the Respondent, Petitioner's Investigator, Bill McDonald, received a memorandum sent to all Building Officials in Metropolitan Dade County informing them that Respondent's business and personal Certificates of Competency, issued by Metropolitan Dade County, had been suspended by the Metro-Dade County Construction Trades Qualifying Board until such time as Respondent paid fines totalling one-thousand five-hundred dollars. (See Petitioner's Exhibit 12 and Testimony of Bill McDonald) Based on information contained in the above memorandum, McDonald initiated a complaint against Respondent with regard to the disciplinary action by the Metro-Dade County Construction Trades Qualifying Board. In this regard, on February 11, 1982, the Dade County Construction Trades Qualifying Board, Division "A," considered a complaint filed by Peter Di Filippi against the Respondent. The Board found that there was at least a prima facie showing of violations of Chapter 10, Metropolitan Dade County Code of Ordinances. (Petitioner's Exhibit 13) On or about May 17, 1982, the Building and Zoning Department for Metropolitan Dade County Construction Trades Qualifying Board would hold a hearing to determine whether the Respondent's business and personal Certificates of Competency as a roofing contractor, issued by Metropolitan Dade County, should be disciplined for various charges. On July 8, 1982, the Metropolitan Dade County Construction Trades Qualifying Board considered several charges against Respondent and found that Respondent was guilty of several charges specified in a Complaint and the Board fined Respondent a total of one-thousand dollars to be paid within thirty days following the close of that hearing. The Board also issued a reprimand to Respondent based on those charges. (Petitioner's Exhibit 17) On September 9, 1902, the local Metropolitan Dade County Construction Trades Qualifying Board considered other charges filed against the Respondent and as a result thereof found Respondent guilty of several charges and imposed a fine of $500 payable within 60 days following the close of the September 9, 1982 hearing. Also, the Board directed that Respondent's business and personal Certificates of Competency as a roofing contractor he suspended for a period of thirty days. (See Petitioner's Exhibits 21 and 22) On or about February 7, 1903, John Leisinger obtained a Judgment in the amount of $3,665 plus costs and attorneys fees .. against Beall and Associates Roofing Corporation. The Judgment stemmed from the transaction referred to hereinabove between Leisinger and the Respondent. (Petitioner's Exhibit 28 and Testimony of John Leisinger) On or about -May 23, 1983, Marcel Weisner obtained a Judgment in the amount of $10,440 against Beall and Associates Roofing Corporation end Respondent, jointly and severally. That Judgment was obtained based on the transaction referred to hereinabove between the Weisners and Respondent. (See Petitioner's Exhibit 27 and Testimony of Marcel J. Weisner) Respondent's Defense As stated herein, the Respondent did not appear to offer testimony to refute or otherwise rebut the allegations of the Administrative Complaint filed herein.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Respondent's registered roofing contractor's license be suspended for a period of five years and he be assessed a civil fine of $2000.00 payable to Petitioner. RECOMMENDED this 24th day of August, 1984, in Tallahassee, Florida. JAMES E. BRADWELL, 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 25th day of August, 1984.
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaints filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent was licensed as a certified general contractor in the State of Florida, having been issued license number CG C000942. At all times material hereto, Respondent was the licensed qualifying agent for Twenty First Century Construction Management, Inc. On September 5, 1992, Willie Janes, doing business as Janes Roofing Contractor, entered into a contract with Debourah Benjamin to replace the roof at her residence located in Margate, Florida. The contract price was $6,748, but Janes later agreed to do the work for $6,248, which was all Benjamin's insurance company would pay. On November 26, 1992, Benjamin gave Janes a check in the amount of $2,200 as a down payment on the work. The check was payable to Willie Janes. At the time Janes entered into his contract with Benjamin, his local roofing license had expired, and he was not licensed as a roofing contractor by the State of Florida. Respondent applied for the roofing permit for the Benjamin job. The City of Margate Building Department issued permit number 11525-R by and through Respondent's licensure on December 3, 1992. Janes commenced work on the Benjamin project on November 26, 1992. On December 8, 1992, the City of Margate Building Department performed a tin tag inspection of the work done by Janes. The work failed the inspection that day but passed two days later. On January 11, 1993, Benjamin issued a second check, in the amount of $2,300, payable to Willie Janes, for the purchase of roof tile. Janes did not order and did not pay for the roof tile until approximately June 25, 1993. The tile was delivered to Benjamin's residence a few days later and placed on the roof for installation but Janes did not return to the project site. The amount of tile delivered to Benjamin's residence was not sufficient to cover the entire roof. On approximately June 25, 1993, Benjamin noticed for the first time that the name of the company on the permit posted at her residence was Twenty First Century Construction. Neither the Respondent nor Twenty First Century Construction Management, Inc., had any involvement in Benjamin's project other than obtaining the building permit. Benjamin contacted the building department which issued the permit and was referred to Petitioner. An employee of Petitioner advised her that the qualifier for Twenty First Century Construction was Respondent. Benjamin had never heard of Respondent at the time. Benjamin contacted Respondent by telephone several times about completing the work commenced by Janes. Respondent repeatedly promised to finish the roof but never did. Benjamin next contacted the Margate Police Department to report the activities of Respondent and Janes. On September 3, 1993, Officer Liberatori of the Margate Police Department spoke to Respondent by telephone, and Respondent promised to complete the work within 30 days. However, Respondent did nothing to complete the work. The last inspection performed on the Benjamin project under permit number 11525-R was the dry-in inspection performed on February 8, 1993. Permit number 11525-R expired on July 8, 1993. In December 1993 Benjamin had the project completed by another contractor. On November 16, 1992, Delos and Barbara Johnson entered into a written contract with Respondent to remodel a porch enclosure at the Johnson residence in Coral Springs, Florida, for a contract price of $10,250. The Johnsons made three payments to Respondent: $1,000 on September 28, 1992; $5,000 on November 17, 1992; and $3,000 on December 2, 1992. On October 12, 1992, Respondent applied for a building permit from the City of Coral Springs for the Johnson remodeling. The City of Coral Springs issued permit number 920004472 by and through Respondent's licensure on November 30, 1992. When the City of Coral Springs issues a building permit, it provides with the permit a list of the required inspections. Respondent proceeded with the construction until December 2, 1992, when he received the third payment. Thereafter, Respondent ceased all construction activities on the Johnson project. Shortly thereafter, the Johnsons learned from the Coral Springs Building Department that their remodeling project had failed to pass the required inspections. When they confronted Respondent regarding his failure to obtain the required inspections, he represented to them that he had made a videotape of all the work he performed, that he himself was a building inspector and could inspect his work, and that he could get a special inspector to inspect the project from the videotape. At no time material hereto was Respondent a certified building inspector. Videotaping a construction project in lieu of obtaining required inspections is not permitted under the South Florida Building Code nor is it permitted by the City of Coral Springs Building Department. Of the required nine inspections for the project, Respondent only obtained three inspections. Of those three, he only passed two. Respondent's failure to obtain the required inspections constitutes a violation of the South Florida Building Code, the minimum standard required for any type of building construction in South Florida. A contractor's failure to adhere to that minimum standard causes harm to the public from deteriorating construction. The Johnsons and the City of Coral Springs Building Department gave Respondent an opportunity to obtain and pass the required inspections and complete the construction project. When Respondent declined to do so, the attorney hired by the Johnsons discharged Respondent. The Johnsons had paid approximately 90 percent of the money they had saved for the porch enclosure to Respondent, and they could not afford to continue with the construction project using the services of another contractor until November 1994. Rick Hugins of Hugins Construction Corp., the remedial contractor, needed to pass the required inspections that Respondent had neglected in order to be permitted by the City of Coral Springs Building Department to complete the project. Work that needed to be inspected was concealed by subsequently- installed construction materials which had to be removed in order that the required inspections could be performed. Numerous code violations were discovered in the concealed work. The work performed by Respondent was below industry standards. The Johnsons paid Hugins Construction Corp. $10,000 to correct the code violations, to pass the required inspections Respondent had missed, and to complete the project. Hugins completed the project by January 23, 1995. Respondent has been previously disciplined by Petitioner on charges of assisting unlicensed activity and of failing to notify Petitioner of his current mailing address and telephone number. That discipline included the payment of an administrative fine and an assessment of costs associated with that investigation and prosecution.
Recommendation Based upon 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 in Counts I and III of the Administrative Complaint filed against him in DOAH Case No. 97- 1365, finding Respondent guilty of the allegations contained in Counts I and II of the Administrative Complaint filed against him in DOAH Case No. 97-1368, requiring Respondent to pay restitution to the Johnsons, assessing against Respondent the costs of investigation and prosecution through the time the final order is entered, and revoking Respondent's certification as a general contractor in the State of Florida. DONE AND ENTERED this 10th day of July, 1998, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 10th day of July, 1998. COPIES FURNISHED: Dorota Trzeciecka, Esquire Department of Business and Professional Regulation 401 Northwest Second Avenue, No. N-607 Miami, Florida 33128 Edward Conrad Sawyer, Esquire 1413 North 58th Avenue Hollywood, Florida 33021 Rodney Hurst, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact These proceedings were set for final hearing by a Notice of Hearing dated July 8, 1983 addressed to the parties, including Respondent at 488 Esther Lane, Altamonte Springs, Florida, 33596. 2/ The Notice of Hearing was not returned to the Division of Administrative Hearings as undelivered. At the time and place noticed for the final hearing the Hearing Officer waited until 9:16 a.m., to commence the proceedings, which concluded at 11:08 a.m. At no time has the Respondent contacted the Hearing Officer concerning a continuance or explained his failure to appear as noticed. At all times material to this proceeding Mr. McIntee has been licensed as a certified building contractor under license number CB C015923. He was also the qualifying agent pursuant to Section 489.119, Florida Statutes, for Delco, Incorporated. At no time has he ever attempted to qualify or otherwise notify the Construction Industry Licensing Board that he intended to affiliate with or do business as Earth Shelter Corporation of Florida, Inc. On July 30, 1980 Earth Shelter Corporation of Florida, Inc. (Earth Shelter) entered into a contract with Mr. and Mrs. William Sweet to construct an earth shelter single family residence in Lake County, Florida. The estimated cost of the project was to be $57,000 and was guaranteed not to exceed $60,000. The contract was negotiated by Respondent acting as president of Earth Shelter. Mr. McIntee was the contractor who pulled the building permit on behalf of Earth Shelter. The project was financed by First Family Federal Savings and Loan Association of Eustis, Florida. In order to obtain payments from the Association, Respondent periodically executed affidavits which stated in part: Affiant says further that all the subcon- tractors, materialmen or any other persons performing labor and furnishing materials used in the construction of the building, or improvements to the premises or appur- tenances thereof, have been fully paid in- cluding all extras. As the result of executing these affidavits Respondent received draws totaling $49,079.26 on the dates of September 30, 1980, October 31, 1980, December 3, 1980, February 4, 1981 and July 10, 1981. These affidavits were false. At the time the affidavits were executed all the subcontractors had not been paid by Respondent. As an example, Frank Wagner Excavating, Inc. performed subcontracting services at the Sweet project on June 4 and 5, 1981 at a cost of $1,451. This was billed to Respondent on June 6, 1981. He sent Wagner Excavating a check dated June 6, 1981, in the amount of the invoice, but the check was returned to Wagner for lack of sufficient funds at Respondent's bank. Before Respondent's check bounced, but subsequent to invoicing the work done on June 4 and 5, 1981, Mr. Wagner performed additional earth moving work at the Sweet project on July 3, 8, 9 and 10, 1981. That work was invoiced on July 10, 1981 for $1,378.75. No attempt was made by Respondent to pay for the second invoice. Eventually Wagner Excavating was paid by Mr. Sweet personally and by an additional payment directly to Wagner Excavating by First Family Federal Savings and Loan Association in order to satisfy Wagner's lien. In order to protect himself, Wagner had filed a lien against the Sweet property on August 17, 1981. Because of structural defects in the construction of Mr. Sweet's home performed by Respondent, Mr. Sweet filed a complaint with the Lake County Board of Examiners against Respondent. Notice of that complaint was given to Respondent on August 18, 1981. He was informed that on September 1, 1981 the Lake County Board of Building Examiners would take testimony concerning the allegations contained in the complaint. Respondent was urged to attend the meeting and to be represented by counsel if he so desired. Mr. McIntee did appear at that meeting. An investigation of the complaint followed. Respondent was subsequently noticed for a second meeting of the Board of Examiners to be held on October 6, 1981 concerning the Sweet complaint, but he failed to appear. At that time the results of the investigation were reviewed and the Lake County Board of Examiners revoked Respondent's license as a contractor in Lake County for abandonment and code violations related to his work on Mr. Sweet's residence. On September 19, 1980 Earth Shelter through Respondent entered into a contract with James V. Migliorato to construct a residence in Seminole County, Florida. The contract price was $48,500. During the course of the work performed by Mr. McIntee, liens in the amount of approximately $9,500 were filed by third parties who provided materials and services under subcontract to Earth Shelter in the construction of Mr. Migliorato's residence. By March of 1981 Respondent had abandoned the project without cause. Mr. Migliorato later met with him at which time Respondent explained that he had run out of money and was not going to finish the job. In August of 1981 Mr. Migliorato and his counsel met with Respondent and his counsel. During their discussions Respondent stated that the money which he had been paid for work on the Migliorato home had been diverted by him for use on the Sweet residence mentioned above. The liens outstanding against Mr. Migliorato's property were never satisfied by Respondent and had to be paid by the homeowner. An example of the outstanding liens was that filed by Superior Distributors, Inc. which supplied and installed a kitchen and bathroom cabinet at the Migliorato residence. The work was completed on June 30, 1981 and invoiced on the same date for $2,128. This invoice has never been paid by Respondent.
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 revoking Respondent's license as a certified building contractor in the State of Florida. DONE and RECOMMENDED this 14th day of October, 1983, in Tallahassee, Florida. MICHAEL P. DODSON 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 14th day of October, 1983.
