Findings Of Fact At all times relevant hereto, respondent, F. B. Edgar, Sr., held registered general contractor license number RG 0006385 issued by petitioner, Department of Professional Regulation, Florida Construction Industry Licensing Board. According to the official records of petitioner, Edgar was first licensed by the state in April, 1968. In February, 1973, respondent qualified Edgar Construction Company, Inc. Since that time be has been engaged in the construction business under that name at 705-B West Fairfield Drive, Pensacola, Florida. On June 13, 1983, Marilyn Lynch, who resides in Gulf Breeze, Santa Rosa County, entered into a construction agreement with Edgar to have a 3300 square foot house constructed on Lot 14, Block A, Tiger Point Village in Santa Rosa County. Edgar entered into the contract using his own name rather than the firm name which he bad qualified with the State. The parties agreed that Edgar would receive his cost plus 20 percent but not more than a a total price of $105,000. 1/ The agreement was prepared by Lynch's attorney, and contained no reference to any warranty on the work. Despite this omission, and a denial by Edgar at final hearing, it is found that Edgar gave Lynch a verbal one- year warranty on his workmanship on the house at the time of the closing. This was corroborated in a statement given to a Department investigator by Edgar at a later time. Work on the residence commenced immediately after the agreement was signed and was completed around November 11, 1983 when Edgar received the final draw. Although Edgar supervised the project, the responsibility for conducting the overall day-to-day operations was delegated to his son, Ronnie, who is unlicensed but has had 18 years of construction experience. Lynch moved into her new home on November 19, 1983. Just prior to moving in, Edgar told Lynch to prepare a punch list of items needing correction or repair. Lynch prepared a list, which has been received as respondent's exhibit 1, and gave it to Ronnie who corrected most of the items. A few days after Lynch moved in, a heavy rainstorm occurred and caused severe leaking in the living room, her bedroom, and around a set of French doors. She immediately called Edgar who instructed Ronnie to visit her house the next day. After Lynch described the problems to Ronnie, and he observed various water stains, he and another worker inspected the roof, but failed to detect any problems. Ronnie applied some roof cement to possible problem areas and believed the leaking was cured. The leaks persisted each time it rained and Lynch continually called Edgar or his son. Although Ronnie made four trips in all and filled in some mortar joints and repaired some flashing, the leaks continued to occur. Lynch eventually contacted the Santa Rosa County building inspector in January, 1984 to register a complaint. The inspector found an "extreme amount" of water infiltration, and suspected the primary source of water to be coming from the chimney area. He also found the French doors in her bedroom to have an improper fit causing water infiltration, and observed leaking around the glass panels in the living room. He then contacted Ronnie who promised to correct the problem. Ronnie visited the Lynch home again, left a note acknowledging his visit, but failed to resolve the problem. The same leaks continued to occur everytime it rained and the building inspector was again called in March, 1984. He found the same type of leaks and water damage, and concluded the problems were not corrected. The inspector advised Ronnie of his findings by telephone. After a third visit was made to Lynch's home in April, 1984, the inspector found the same leaks, concluded Ronnie had not made a "sincere effort" to correct them, and recommended Lynch contact petitioner to register a complaint. Because of the leaking, the building inspector refused to issue a final certificate of occupancy. When the problems persisted that summer, Lynch called two other roofers on an emergency basis who replaced shingles, installed water sealer, and reflashed various areas over a four month period. Among other things, it was discovered that no flashing had been placed behind the chimney, and this was a major cause of some of the leaks. Section 1706.8(1) of the Standard Building Code pertains to flashing requirements on exterior walls. There was no flashing around the balcony on Lynch's home and consequently the construction did not conform with that section. The absence of any flashing was confirmed in an inspection by Ronnie and the building inspector in September, 1984. A part of the problem was attributable to specially manufactured doors which did not have a snug fit. Because of this, the flashing installed by Edgar did not do a proper job. A meeting with a representative of the door manufacturer eventually corrected this problem. Edgar denied that he had not made a reasonable effort to solve Lynch's problems. Indeed, he pointed out that his son Ronnie had revisited her home on four occasions after the closing in an effort to correct the leaks. Ronnie also attributed much of the difficulty to the house's unusual design, which differed from homes he had previously constructed. Both Edgars described Lynch as being unreasonable and difficult to deal with.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as charged in Count III of the administrative complaint, and that he be given a reprimand and fined $250, such fine to be paid within thirty days from date of final order. Counts I and 11 should be dismissed. DONE and ORDERED this 26th day of April, in, Tallahassee, Florida. DONALD R. ALEXANDER 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 26th day of April, 1985.
The Issue Whether Respondent violated Sections 489(1)(d),(j) and (m), Florida Statutes?
Findings Of Fact At all times relevant Respondent was licensed as a registered residential contractor in Florida and held license number RR0046781. Sometime in late April, 1985, Respondent entered into a contract with Mr. Reames. The contract called for Respondent to build a house at 1512 S.E. 24th Avenue, Ocala, Florida. Mr. Reames moved into the house on December 23, 1985, after a certificate of occupancy was issued, even though the house was not fully completed. Mr. Reames completed a "punch list," consisting of an undetermined number of items which needed to be completed, and asked Respondent to complete the items. Most items in the punch list were never completed by Mr. Huey. After the initial attempt by Mr. Reames to get Huey Construction Co. to complete the items in the punch list, Mr. Reames did not contact Huey Construction Co. about the other problems found subsequently. In March or April, 1986, Mr. Reames noticed that the wood floor was buckling and separating. He contacted Mr. Gassett, the person who had installed the floors, who determined that a water leak was causing the problem. In November, 1986, Mr. Reames hired Mr. Clyatt, a licensed general contractor, to inspect the house, to go over the punch list items which needed to be completed, and to correct other items which were discovered to be inadequate. In the first week of January, 1987, Mr. Norton, the chief building inspector for the City of Ocala, was asked by Mr. Reames to inspect the house. Mr. Norton found a number of problems and identified some violations of the City of Ocala Building Code (Code) which was in effect at the time the house was built. The inadequacies, problems and code violations found by Mr. Clyatt and Mr. Norton are set forth below. Ventilation The Code requires 1 sq. ft. of opening for each 150 sq. ft. of crawlspace, in order to provide ventilation. Since the house had 2720 sq. ft. of crawlspace, it needed 18 sq. ft. of openings. The house, however, had only 6 openings of 1 sq. ft. each, or 6 sq. ft. of openings. Additionally, the plans for the house indicated where the openings were to be located and the completed house did not meet the plan specifications in this area. Mr. Clyatt added 15 openings, 8 in. by 12 in. each. In addition to the inadequate openings, one area of the crawlspace was completely enclosed, with no ventilation. The Code requires that attic ventilation for this type of house be 1 sq. ft. of opening for each 300 sq. ft. of space. The plans called for 3 in. by 12 in. vents at 24 in. intervals. The openings in the house were approximately 2 in. in diameter and were placed sporadically. From a visual inspection, without taking actual measurements, the openings for attic ventilation were inadequate and did not provide the ventilation required by the Code. Roof The roof of the house contained exposed nails and staples on the shingles, including some which had rusted. Nails and staples should not be exposed on a shingle roof, since they can lead to leaks. The roof leaked in one area in the back of the house. Mr. Reames contacted H & B Roofing, the subcontractor who had installed the roof, who corrected the problems with the roof. Driveway The Code requires that a driveway permit be obtained prior to the installation of a driveway. Also, the Code requires an inspection of the driveway prior to the concrete being poured. Respondent obtained the required permit, but failed to call for the required inspection prior to pouring the concrete. By letter dated December 10, 1985, Respondent notified the Building Inspection Office of the City of Ocala that the driveway was poured according to the Code. By the time of the inspections by Mr. Norton and Mr. Clyatt, several cracks were present in the driveway. SubFloor Due to the water damage set forth in paragraph 5, supra, the wood floor was removed in late December, 1986 or early January, 1987. The plans originally called for the subfloor to be constructed of one-half inch plywood decking, particle board, and 15 lb. felt paper. However, the Code requires subfloors to be constructed using three-quarter inch plywood, and the plans contained a penciled in notation where the one-half inch was changed to eleven- sixteenths. The subfloor had been constructed using one-half inch CDX plywood decking with particle board on top. No felt paper had been used. Additionally, the subfloor had been nailed in violation of the Code. The Code requires nails to be spaced two and one-half inches on the perimeter of the plywood and four inches in the interior area of the plywood. The subfloor of the house contained boards which had only been nailed on the perimeter and boards which had a large number nails in one area, far in excess of the amount required by the Code. Girders When Mr. Clyatt inspected the house he discovered that approximately 6 of the wood girders supporting the floor appeared to have been cut short and, instead of bearing on the stem wall bearing plate, were supported by posts made of two-by-four and two-by-six non-pressure treated lumber. The posts were resting on soil and the bottom part of the posts had decayed. This construction is a violation of the Code which requires that pressure treated wood be used, and is a violation of construction standards which require that the girders rest on the bearing plate or on concrete. See Petitioner's Exhibit 6. Also, the girders supporting the wood floor were not resting directly on the block piers. Wood shims had been added to fill the space between the girders and the block piers. The wood shims were not pressure treated. The Code requires that pressure treated wood be used in this situation. Additionally, proper construction requires that the girders rest directly on the block piers. Foundation Wall A foundation wall was not bearing on the footing properly. The foundation wall was constructed of 8-inch block and portions of the wall had only one to two inches bearing on the footing; the rest of the wall was resting on the soil. This is a violation of the Code. This problem was corrected by Mr. Clyatt by removing the soil on which the wall rested and pouring concrete under the wall. See Petitioner's Exhibit 7. Cabinets The cabinets in or near the utility room area of the house were loose and separating from the soffit and the wall.
Recommendation Therefore, based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order reprimanding Respondent and imposing a fine of $1500.00. DONE and ORDERED this 31st day of October, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES 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 31st day of October, 1988. APPENDIX Case Number 88-5570 The parties submitted proposed findings of fact which are addressed below. Paragraph numbers in the Recommended Order are referred to as "RO ." Petitioner's Proposed Findings of Fact Proposed Finding of Fact Number Ruling and RO Paragraph Accepted. RO1. Accepted. RO2. Accepted. RO3,4. First sentence, Accepted RO7. Second sentence accepted for proposition that Mr. Reames paid Mr. Clyatt $30,000 for work done on the house. However, the evidence fails to establish what portion of this amount was paid for problems caused by Respondent. 5-10. Accepted generally as to what Mr. Clyatt observed. RO19,20. But see discussion in Conclusions of Law portion of this RO. Accepted. RO13. Accepted generally. RO14. Respondent was not asked to repair the shingles when this deficiency was discovered about one year after Respondent had ended work on the house. First sentence rejected. Second sentence, accepted R016, but no competent substantial evidence was presented to show what caused the cracks. Accepted generally as to what was observed. RO22. But see discussion in Conclusions of Law portion of RO. Accepted. RO18. Accepted. RO18. Accepted. RO21. Accepted. RO21. Accepted. RO10,11. Accepted. RO10,11. Accepted. RO17. Accepted. RO12. Accepted. RO12. Accepted. RO15. Accepted. RO15. Accepted. RO8. Respondent's Proposed Findings of Fact Respondent's post-hearing statement consists of a two page letter with attachments. The attachments have been addressed in the Background section of this Recommended Order. The proposed findings of fact contained in the letter are addressed below. References are to paragraphs and sentences within each paragraph. Proposed Finding of Fact Number Ruling and RO Paragraph Par. 2 RO2 establishes that a contract existed; no finding is made as to whether the contract was oral or written, or as to what the contract amount was. Par. 3 First sentence is not supported by the evidence. Second sentence, accepted. Third-Fifth sentences rejected as not supported by competent evidence; however, no finding is made as to who is at fault for this problem. See Conclusions of Law. Fifth sentence is not a finding of fact. Par. 4 Not a finding of fact. Par. 5 (References are to statements after each number in the paragraph) #8 is accepted generally. RO15. #9 rejected as not supported by competent evidence. #10 rejected as not supported by competent evidence; some of the allegations were proven to exist as set forth in this RO. #11 and 12 are not findings of fact. COPIES FURNISHED: David L. Swanson, Esquire Staff Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Robert D. Huey 3710 Southeast 12th Place Ocala, Florida 32670 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Lawrence A. Gonzalez, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce Lamb General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact At all times pertinent to the allegations contained in the Administrative Complaint, Respondent John G. Gordon, Jr. was licensed by the State of Florida as a registered roofing contractor by License No. RC-0032501, first issued to Respondent, qualifying as an individual in 1978 and continually renewed as such since then. On June 4, 1981, Respondent was called by Ms. Allene S. Gilbert to give her an estimate on re-roofing the two flat portions of her house roof. When he went to the house, he went up on the roof by himself to look and, when he came down, he gave her an estimate of $1,400 to re-roof the two flat sections on either side of the gabled center section. He did not then, or any time thereafter, prior to doing the work, indicate there was anything wrong with the siding which connected down from the gabled roof to the flat roof. After making his inspection and giving the estimate which Ms. Gilbert accepted, he entered into an oral contract with her which, when reduced to unsigned memo form, provided that he would tear off the old roof down to the deck and replace it with a 15-year built up roof consisting of a total of five layers. He also agreed to replace the rock and all metal around the edges of the house. He specifically stated that the work he did, both materials and his workmanship, was guaranteed for 15 years against leaks. Respondent indicates he found that the metal flashing along the side of the house where the flat roof joins the siding was rusted out and he replaced it. He contends that this rust was due to the deteriorated (rotten) condition of the lap siding above the flat roof which allowed water to get in behind the flashing. In any case, during the first rain after the completion of the work, the preexisting leaks in the bedroom which prompted the roof replacement were worse and additional leaks developed inside the house. The leakage was so severe, the bathroom ceiling caved in. Ms. Gilbert called Respondent many times to get him to come out and repair the leaks, but never was able to speak with him personally. Each time she called, she would leave a message with whomever answered the phone, requesting that he come out or call, and was assured that these messages were getting relayed to Respondent, but he never returned any call and, to the best of her knowledge, he never came to her house again. However, she works during the day and would not know if he was there or not. No neighbor told her they saw someone there, and she received no note or other indication that the Respondent had come. Respondent admits that having once responded to her earlier call and seeing that the leaking was caused by the condition of the siding for which he was not responsible and about which he had previously done nothing, he was satisfied that his work was done properly and he did not call back or ever respond to any of Ms. Gilbert's other calls. He contends that the problem was not caused by him or a part of the work he had done. Therefore, he was not responsible for it. Ms. Gilbert contends, after trying to get Respondent to honor his guarantee for six months, she gave up and had someone else to do the job. The leaks are now repaired and the siding which Respondent stated was rotten, though painted once since then, has not been replaced or repaired. Respondent having entered into the contract with Ms. Gilbert, began and completed the entire project without either (1) having an occupational license as required by Section 14-39, Ordinance of the City of Fort Walton Beach; or, (2) securing a permit for the repair as required by Section 106.1, Standard Building Code, incorporated into the Ordinance of the City of Fort Walton Beach.
Recommendation Based on the foregoing, therefore, it is RECOMMENDED that Respondent pay an administrative fine of $250 and that he be placed on probation for six (6) months. DONE AND ENTERED this 9th day of May 1984 in Tallahassee, Florida. ARNOLD H. POLLOCK 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 9th day of May 1984. COPIES FURNISHED: Douglas A. Shropshire, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. John G. Gordon Post Office Box 498 Destine, Florida 32541 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether respondent's license as a certified general contractor should he disciplined on charges of abandonment, diversion, violation of applicable building codes, improper qualification of companies under whose name he was conducting business, and continued misconduct in the practice of contracting, in violation of Chapter 489, Part I, Florida Statutes.
Findings Of Fact At all times relevant to the charges, respondent was a certified general contractor holding license no. CG C015937. He now resides at 1210 Old Boynton Road, Apartment 113, Boynton Beach, Florida. (Testimony of respondent; P-1) I. Count I: Abandonment of a Construction Project On or about October 30, 1980, respondent, d/b/a P & R Construction, a subsidiary of New Visions, Inc., entered into a contract with Mr. and Mrs. A. J. Ervin to construct a bathroom addition to their residence located at 1119 Lake Terrace, No. 101, Boynton Beach, Florida, for the sum of $4,500. (Testimony of respondent) Respondent was the contractor of record for this project. He pulled the required building permit, hired the subcontractors, and supervised the project. Robert Popiel, owner of New Vision, Inc., kept the company's books, paid bills, and handled sales. (Testimony of respondent; P-9) In June of 1981, respondent abandoned the construction project, leaving it uncompleted. Neither the bathroom door nor the shower door had been installed; exterior stucco beneath the bathroom window (which had been removed to repair a leak) had not been replaced; and the bathroom floor was unfinished. Final inspections had not been made and a certificate of occupancy had not been obtained. During the next four or five months, Mr. Ervin tried, unsuccessfully, to locate respondent and persuade him to return and complete the project. Eventually, Mr. Ervin hired another contractor and paid him $500 to complete the unfinished work. (Testimony of Ervin, respondent) When respondent abandoned the project, the plumbing (Archie's Plumbing), roofing (Modern Roofing), and electrical (Jerry's Electric) subcontractors, who had performed work and furnished materials for the project, were left unpaid. The improvements were thus subject to the placement of contractors' liens. The subcontractors were owed a total of $2,107.21, although they eventually settled with the owner for a total payment of $1,100. (Testimony of Ervin, Yedvarb, Grummer) Moreover, when respondent abandoned the project, there were leaks in the roof, where the bathroom joined the existing structure, and leaks below the bathroom window. (Testimony of Ervin) During this time, respondent was undergoing a divorce and moving from one motel to another. Mr. Ervin tried repeatedly to contact him, but respondent neither returned his phone calls nor answered his messages. Despite the best efforts of Mr. Ervin, respondent was nowhere to be found. II. Count II: Diversion of Monies Respondent did not receive a fixed salary from New Visions, Inc. Periodically, he would be paid by simply withdrawing funds from the company. During the time in question, New Vision, Inc., had four construction projects underway and respondent withdrew approximately $500. (Testimony of respondent, Popiel) The various New Vision, Inc., projects, including the Ervin project, were apparently underbid. Subcontractors were paid by Mr. Popiel out of incoming funds. But both he and respondent realized that the incoming money under the various contracts would be insufficient to pay all subcontractors for work performed. (Testimony of respondent, Popiel) Respondent was aware that the Ervin project was "running close" and that it "was probably running over" the contract price. (TR-53) It has not been shown that respondent diverted funds received for the completion of the Ervin project and that, as a result of such diversion, he was unable to complete the work. The subcontractors were not paid because the Ervin project incurred costs which exceeded the contract price. And, since New Vision, Inc., was experiencing similar difficulties elsewhere, it had insufficient funds to cover the excess costs of the Ervin project. (Testimony of respondent, Popiel; P-9, p. 32) III. Count III: Deliberate Violation of Building Code The Department alleges that respondent violated the applicable building code (Section 105.1, City of Boynton Beach Code of Ordinances) by covering the roof before the proper city inspection had been made. Pursuant to this code, it was respondent's duty to order the flat roof sheathing inspection; but it was the roofing contractor's responsibility to obtain the "tin tag" inspection before covering the roof. This is an inspection which is required to ensure that the base sheet or black felt is properly installed. Even though it was the roofing contractor's duty to call for such an inspection, the general contractor remained responsible for the entire project. (Testimony of Howell, respondent) In this case, respondent called for the sheathing inspection but the roofing contractor laid the felt and covered the roof without first calling for the requisite tin tag inspection. The building code violation was thus primarily the fault of the roofing contractor and only secondarily, or derivatively, the fault of the respondent. No evidence was presented to show that respondent approved, or knew, in advance, of the roofing contractor's failure to call for the tin tag inspection. Respondent's failure to ensure that the roofing contractor called for the required inspection cannot, without more, support a conclusion that respondent knowingly and deliberately violated an applicable building code. (Testimony of Howell, respondent) IV. Count IV: Acting in a Capacity of a Contractor Under a Name Other Than as Certified Respondent, d/b/a P & R Construction, a subsidiary of New Vision, Inc., contracted for and constructed a bathroom addition to the Ervin residence. However, neither company was qualified with the Construction Industry Licensing Board. V. Count V: Misconduct in the Practice of Contracting In this count, the Department alleges that, by virtue of the misconduct alleged in Counts I through IV, respondent is guilty of "misconduct in the practice of contracting." No additional acts of respondent were complained of or alleged. It follows that respondent can be found guilty of this charge only to the extent he is found guilty of the charges contained in Counts I through IV. VI. Mitigation There is no evidence that respondent has ever before been the subject of a disciplinary proceeding brought by the Construction Industry Licensing Board. He has worked in construction most of his life and this is the only business he knows. It is his livelihood, and, in his words, the only way "I can make a decent living." (TR-134) He is 59 years old. His goals are modest and tempered by experience: I'm just a small, small operator, and I work to make a living. I'm not going to get rich. I'm too old to get rich. Those things, thirty years ago I had that in mind. TR-134. He now realizes, better than before, the value of his contractor's license. His misconduct in connection with the Ervin project occurred when he was in the midst of a divorce and a personal ordeal. In his own words: And I bounced from place to place. I bounced off the bottom. I was living down at a flea bitten motel here. The roaches were so thick that I never thought I'd survive it. So now I guess--now I got married last September and I guess I'm getting to appreciate things which I took for granted before. I'm just getting so I appreciate them now and what-- you know, what I got and what I can do. TR-136 He admits that he did not fulfill his responsibilities from the Ervin project and understands better the hardships which his conduct imposed on Mr. Ervin.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Construction Industry Licensing Board impose a $1,000 fine against respondent for violating Section 489.129(1)(g), (k) , and (m), Florida Statutes. DONE and ENTERED this 7th day of November, 1983, in Tallahassee, Florida. R. L. CALEEN, 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 of Administrative Hearings this 7th day of November, 1983.
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.
