Findings Of Fact At all times material hereto, Respondent has been a certified general contractor in the state of Florida, having been issued license number CG C027718. At all times material hereto, Respondent has been the qualifying agent for Classic Design Builders. William R. DeFreitas describes himself as a broker of building materials for third world countries. His wife is also employed in that same business. They had their office building constructed for them. When they subsequently determined to add an addition to their residence, they solicited bids from that contractor and from two other persons. Aaron Ware, who held himself out to be an architect and the president of a company known as L. A. Designs, Inc., was one of the persons from whom the DeFreitases solicited a bid. He submitted a bid dated April 26, 1990, and a draw schedule on May 3, 1990. The extent of the work to be performed was finalized on June 6, 1990, when Mr. DeFreitas initialed the changes to the initial bid. The construction project contemplated under that contract was the addition of a family room, a laundry room, a shower off the master bath, and a small bath at the front of the house. The June 6, 1990, contract also called for replacement of the garage door and "painting of some interior doors." The total contract price was $50,000. While Ware was negotiating with the DeFreitases, he was also discussing with Respondent entering into a joint venture agreement between Classic Design Builders and L.A. Designs for the DeFreitas construction project. Their verbal agreement was memorialized in a written agreement dated June 18, 1990. Thereafter, Respondent did not advise Petitioner that he had entered into a joint venture agreement and, similarly, did not qualify the joint venture as a separate business entity for licensure purposes. Pursuant to instructions from Ware, Mr. DeFreitas directed a letter to the City of Boca Raton advising the building department that he had entered into a contract to construct an addition to his residence with "L.A. Designs/ Classic Designs." On July 2, 1990, Respondent on behalf of Classic Design Builders obtained a building permit from the City of Boca Raton for the DeFreitas addition. On July 6, Ware began work on the addition. Ware worked on the project from July of 1990 through the end of that year. During the course of that construction, the DeFreitases made many changes in the scope of the work contemplated by the original contract, which increased the contract price to above $56,000. Additional work was performed, which was not covered by the contract and which the DeFreitases agreed to pay for directly to the supplier or subcontractor. On February 4, 1991, the DeFreitases directed a letter to Ware advising him that the construction was close to completion and that it was time for them to "settle our account" as to the extras for which the DeFreitases had not paid. In that letter, the DeFreitases also offered to produce the invoices for materials and labor that they had agreed to pay to finish the job. In July of 1991 the DeFreitases complained to the City of Boca Raton. Respondent, as the holder of the building permit, was contacted and advised that the DeFreitases were alleging that their contractor had failed to complete the project. Respondent immediately went to the DeFreitases' business, met with Mr. DeFreitas, inspected the home, and prepared a punch list of items to be completed, many of which were not covered by the construction contract but were done by Respondent in an attempt to achieve customer satisfaction. Respondent completed the project, obtained the final inspections, and presented the DeFreitases with a warranty and release of lien. The DeFreitases refused to accept the warranty or release of lien. As a result of the DeFreitases' complaints, Respondent and Ware were charged with violating local ordinances. In those prosecutions, as well as in this case, the DeFreitases have attempted to obtain $11,000 from Respondent as "restitution" for moneys they have had to spend or will have to spend to complete the work envisioned by their contract with L.A. Designs, Inc. Most of the items listed as components of the claim for restitution are not even part of the construction contract. Of those few items covered by the contract, the money claimed is not. For example, the contract allocated $500 to be expended on the bathroom cabinets. The DeFreitases spent $1,670 on the cabinets and, surprisingly, are claiming that Respondent should pay them the difference because they spent more than their contractual allowance. Finally, they have claimed the cost of replacing inferior building materials provided by them, such as wood French doors. The DeFreitases paid to Ware approximately $4,000 less than they had promised to pay him as a result of the work completed by L.A. Designs. Rather than suffering a loss, the DeFreitases have actually received a windfall. At no time material hereto was either Ware or L.A. Designs licensed in the state of Florida as a contractor, architect, professional engineer, or landscape architect. Respondent knew that Ware and L.A. Designs were not licensed. At the time that Classic Design Builders and L.A. Designs entered into their written joint venture agreement and at all other times material hereto, Respondent was not an officer, director, stockholder, or employee of L.A. Designs, and Ware was not an officer, director, stockholder, or employee of Classic Design Builders. When Ware approached Respondent about entering into a joint venture for the DeFreitas project, Respondent had already suffered a minor heart attack and two mini-strokes. The joint venture agreement itself recites Respondent's need to limit his activities due to health reasons. In July of 1990 Respondent additionally tore an Achilles tendon in his left leg and was in a cast until Christmas of 1990. Due to his immobility during that time period, Respondent delegated all of his construction jobs to others, understanding that he was ultimately responsible for those projects since he was the contractor of record on them. In the same way, he delegated to Ware the day-to-day responsibility for the DeFreitas project. Other than "pulling the permit" for the DeFreitas project, Respondent's only other involvement in the job until the time that he was contacted as a result of the DeFreitases' complaints to the City of Boca Raton in July of 1991, was right after the job was commenced regarding some problem concerning the lot line. He was able to resolve that problem with the City of Boca Raton by telephone. The DeFreitases did not know that Respondent was the contractor for their construction project and ultimately responsible for that work. Although Ware had advised them that a "buddy" would somehow be involved in the construction, and although Mr. DeFreitas referred to both L.A. Design and Classic Design Builders in his letter to the City of Boca Raton authorizing a building permit to be issued, the evidence is clear that had the DeFreitases known of Respondent's responsibility, they would have been insisting that he perform services months earlier. In 1987 Respondent was charged with abandoning a construction project and/or failing to timely complete it. Respondent entered into a settlement stipulation admitting that fact and agreeing to pay a fine to the Construction Industry Licensing Board in the amount of $1,000. A Final Order Approving Settlement Stipulation was entered on June 8, 1988. Respondent received no money from the DeFreitases or from Ware for the work Respondent performed on the DeFreitas addition. Respondent's out-of-pocket expenses for labor and materials on the DeFreitas residence between July of 1991 and June of 1992 total $1,747.50.
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 Counts I, II and VII of the Administrative Complaint filed against him; Finding Respondent not guilty of Counts III, IV, and V of the Administrative Complaint filed against him; Requiring Respondent to pay an administrative fine in the amount of $1,000; and Placing Respondent's license number CG C027718 on probation for a period of two years. DONE and ENTERED this 16th day of November, 1994, at Tallahassee, Florida. LINDA M. RIGOT 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 16th day of November, 1994. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 2-10, 16-20, and 22 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 11-15, 21, and 24 have been rejected as not being supported by the weight of the evidence in this cause. 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. Petitioner's proposed finding of fact numbered 23 has been rejected as being subordinate. COPIES FURNISHED: John David Ashburn, Esquire Department of Business and Professional Regulation 3932 RCA Boulevard, Suite 3210 Palm Beach Gardens, Florida 33410 Diane Perera, Esquire Department of Business and Professional Regulation 401 N.W. 2nd Avenue, Suite N-607 Miami, Florida 33128 Peter Mineo, Jr., Esquire 8220 State Road 84 Fort Lauderdale, Florida 33324 Copies furnished, continued Richard Hickok, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Jack McRay, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Petitioner is entitled to licensure as a Certified Building Contractor or Residential Contractor.
Findings Of Fact Petitioner is a 44-year-old male. He was born and raised in Tallahassee, Florida. He is a high school graduate. Petitioner passed the examination for licensure as a certified building contractor. This is a comprehensive examination that is designed to test knowledge in all aspects of the construction industry. Passing it is a mandatory prerequisite before an application can be considered by the Florida Construction Industry Licensing Board (FCILB). However, passing the examination does not eliminate or modify the statutory or rule experience requirements. Petitioner submitted his application for a certified building contractor license on or about March 24, 2008. By letter of May 2, 2008, the Department of Business and Professional Regulation requested additional information. Petitioner then provided a revised affidavit from Chad Banks, a certified building contractor, and a letter from the Maintenance Construction Chief of the City of Tallahassee’s Gas Utility Department, each containing more detailed information about Petitioner’s experience. These items were received by Respondent on May 23, 2008. It is not clear whether Petitioner requested and was granted a continuance of his appearance with regard to the instant license application at an earlier FCILB meeting, but on January 15, 2009, the full Board considered Petitioner’s application at a duly-noticed public meeting in Altamonte Springs, Florida. At that time, Petitioner was present. During his appearance before the full Board on January 15, 2009, Petitioner was very nervous, but he believes that one of the Board members offered him, or at least asked him if he would accept, a residential contractor’s license in place of a certified building contractor’s license, and that he answered that he would accept such a license, only to have that “offer and acceptance” voted down by the full Board. However, Petitioner does not rule out the possibility that the vote taken at the meeting was actually with regard to denying the certified building contractor license for which he had applied. There is no evidence that Petitioner has ever submitted an application for a residential contractor’s license. By a Notice of Intent to Deny, dated March 16, 2009, and mailed March 24, 2009, the FCILB formally denied Petitioner’s application for a certified building contractor License stating: The applicant failed to demonstrate the required experience, pursuant to Section 489.111, Florida Statutes and Rule 61G4- 15.001, Florida Administrative Code. Petitioner seeks licensure as one who has four years of active experience and who has learned the trade by serving an apprenticeship as a skilled worker or as a foreman, at least one year of which experience is as a foreman. Petitioner has never worked as a full-time employee of a commercial or residential contractor. Petitioner got early experience in construction working around eight rental properties owned by his father. He performed light carpentry, deck construction, general handyman repairs, and some plumbing and roofing when he was approximately 16 to 21 years of age. However, Petitioner essentially relies on a work history that includes working as a plumber for Jim Bennett Plumbing from 1987 to 1993; as a foreman for the City of Tallahassee Gas Department from 1995 to 2005; as a “contractor trainee” for Chad Banks from 1999 to 2002; as having volunteered as superintendent for Gulf Coast Painting from 2003 to 2007; and as a maintenance man for the City of Tallahassee Parks Department from 2006 to 2007. Petitioner’s dates of employment overlap, because his volunteer experience was acquired mostly on weekends, holidays, in hours after he had already completed a full work day for the City of Tallahassee, or on “time off” from his regular employments with the City. Petitioner is a hard worker and wanted to learn the construction trade, but his volunteer construction jobs were intermittent, and he provided no clear assessment of the number of hours per week or month that he put in for any of them. From 1987 to 1993, Petitioner worked for Jim Bennett Plumbing. He started as a plumber’s helper and progressed to greater responsibility. In that position, he acquired a wide range of experience in plumbing for some residential, but mostly commercial, buildings. During this period, he also did some light cosmetic carpentry and tile work to restore building parts damaged by the installation of plumbing apparatus. Much of Petitioner’s construction experience relates to his association with Chad Banks, who testified that at all times material, Petitioner had “hands on” experience, working for him and that Petitioner was a competent worker. Petitioner has never been a “W-2 employee” of Mr. Banks, but there is no specific statutory or rule requirement that the experience necessary to qualify for the certified building contractor or the residential contractor license must be as a “W-2 employee.” Cf. Conclusions of Law. Mr. Banks was not licensed as a certified building contractor until 1999. Petitioner did some work for Mr. Banks when Mr. Banks was working as a sub-contractor on commercial projects (specifically one or more Super-Lube buildings) prior to Mr. Banks obtaining his certified building contractor’s license in 1999. Most of this employment involved pouring concrete slabs. Petitioner claims experience in “elevated slabs,” limited to the construction of a single Super-Lube building, which Petitioner described as laying a slab below ground level for mechanics to stand on and an at-ground level slab for cars to drive onto the lift for an oil change. He described no truly “elevated” slabs or floors above ground level on this project, and Petitioner’s and Mr. Banks’ testimony was vague as to Petitioner’s responsibilities on this project and as to the project’s duration. The general contractor on this project for whom Mr. Banks “subbed” did not testify. From this, and other employments, Petitioner has experience pouring foundation slabs, but he has never worked on a foundation slab in excess of 20,000 square feet. Petitioner also assisted in Mr. Banks’ construction of some rental sheds, but it is unclear if this was before or after Mr. Banks was licensed. Petitioner worked for Mr. Banks d/b/a C. B. Construction, Inc., in a volunteer capacity on exclusively residential construction from 1999 to 2002, and again from February 2004 to March 2008. During these periods, Petitioner and Mr. Banks considered Petitioner a “contractor trainee,” but Petitioner’s work for Mr. Banks was neither exclusive nor continuous; both men described it as “volunteer” work; and some of it seems to have amounted to Petitioner's looking over work done personally by Mr. Banks and having Mr. Banks explain to him, via a plan sheet, what Mr. Banks had already done personally. There is no evidence that during this time frame Petitioner worked for Mr. Banks as a foreman. Petitioner has the ability to “read” many types of construction “plans.” Petitioner has experience with slab footers, but he has not constructed red iron structural steel qualified for framing a building. Petitioner has experience in decorative masonry walls, but he has not constructed structural masonry walls of a type that would support framing members of a building or other vertical construction. Petitioner also worked for the City of Tallahassee as a “W-2” employee, mostly as a foreman overseeing a crew of four workers, from 1995 to 2005. In that capacity, he worked on a church, but the church itself had been constructed several years previously, and Petitioner’s crew’s contribution was tying-in several gas lines during a roadway development project and keeping all the utilities up and running during the project, while a private contractor worked on the church. With regard to the foregoing project and many others for the City Utilities Department, Petitioner directed a crew that built sidewalks and gutters or that tied these features into existing roadways and driveways. In that capacity, he often coordinated activities with residential contractors. Over his ten years’ employment with the City Utilities, Petitioner also directed a crew that exclusively created underground vaults for the housing and shelter of utility apparatus. However, none of his endeavors for the City Utilities involved vertical structural construction for floors above ground. Petitioner has also built new gas stations for the City’s natural gas vehicles, and has erected pre-fab utility buildings, including much slab work, but the nature and duration of these endeavors is not sufficiently clear to categorize them as qualifying him for the certified building contractor license. Most of Petitioner’s experience with the City, as substantiated by the letter of the City Utilities Maintenance Construction Chief, Mr. Lavine, has been in the construction of driveways, roads, gutters, storm drains, sidewalks, culverts, underground utility structures, plumbing and gas lines. While it is accepted that Petitioner has worked on such projects, this type of work more properly falls in the categories of “plumbing contractor” or “underground utility contractor” and Mr. Lavine was not demonstrated to have any certification/licensure in a category appropriate to Petitioner’s application. (See Conclusions of Law.) Sometime after 2005, for approximately a year, Petitioner was employed by the City of Tallahassee Parks and Recreation Department and in that capacity participated in at least one construction of a dugout and a concession stand at one of its playgrounds. He also did repairs on several dugouts and concession stands, but this latter work would not be classified as “structural” construction. Petitioner’s experience in precast concrete structures is limited to his work with gas utility structures, but does not include work on precast tilt walls, which are the type of walls that are constructed off-site, delivered to the job site, placed on the slab foundation, and raised in place as part of an on- going commercial building project. Petitioner has no experience in column erection. “Columns” in this context within the construction trade refers to supports for upper level structural members, which would entail vertical construction. Petitioner’s experience in concrete formwork does not include experience in the structurally reinforced concrete formwork that would be used in vertical buildings, such as all floors above ground level. FCILB’s Chairman testified that the Board interprets the type of experience necessary to comply with the statutes and rules, more particularly Florida Administrative Code Rule 61G4- 15.001(2), to be “structural experience.” There is no affirmative evidence that Petitioner has ever notified the Clerk of the Agency that he was relying on a right to a default license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Construction Industry Licensing Board enter a Final Order denying Petitioner’s application for licensure as a Certified Building Contractor. DONE AND ENTERED this 24th day of November, 2009, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 2009.
Findings Of Fact Standard Specifications are a part of every DOT construction contract issued. Subsection 8-1.1 of these standard Specifications provides that a subcontractor shall be recognized only in the capacity of an employee or agent of the Contractor, and his removal may be required by the Engineer, as in the case of any employee (Exhibit 1). Subsection 8-5 thereof provides the Contractor shall assure that all superintendents, foreman and workman employed by him are competent, careful and reliable (Exhibit 3). All contracts entered into by DOT provide for a contract completion time and provide for adjustment to the contract period for delays in construction due to factors beyond the contractor's control which could not be reasonably anticipated at the time bids for the contract were received (Exhibit 4). Requests for extension of contract time are made by the Contractor to DOT, and each request is evaluated on its merits. Often these requests for extension of contract time are made after the contract is completed and the contractor is seeking relief from penalties accrued as a result of his failure to complete the contract in the time allocated. Prior to 1987, all contracts entered into by DOT contained built-in delays based on average weather conditions expected during the contract period. Since mid-1987, contract delays due to expected adverse weather are not included in the contract time, but the period is subsequently adjusted based on daily recording of weather conditions during the contract period. There is no policy by DOT, as suggested by Petitioner, that delays due to weather outside the initial contract period but within the extension granted due to weather delays will not be considered by DOT in granting extensions of contract time. Federal Department of Transportation grants to Florida DOT for road construction in Florida contain a provision that a certain percentage of the contract must be subcontracted to DBE's. This provision is included in the contracts on which the prime contractors submit bids. In order to qualify as a responsible bidder on these contracts, the Contractor must show compliance with the DBE quota for the job at the time his bid is submitted or show that despite good faith efforts the Contractor was unable to meet the DBE goals. DOT certifies individuals and companies which meet the minority business standards needed for certification and maintains a current list of all potential subcontractors who can be used by the Contractor to meet the DBE quota for the specific contract on which the Contractor bids. These DBE subcontractors are not qualified by DOT as capable to perform the work for which they hold themselves out as able to perform. DOT qualifies no subcontractors, either DBE or non-DBE. In the event the Contractor needs to replace a subcontractor for any reason, his application to replace a non- DBE subcontractor is routinely approved by DOT. However, if the Contractor proposes to replace a DBE subcontractor, the Contractor must replace him with another DBE subcontractor (if this is necessary to retain the required DBE participation) and show to DOT that the replacement was for just cause and does not constitute unlawful discrimination. Accordingly, it is more likely to delay a project if a DBE subcontractor is replaced for failure to perform the work for which he subcontracted than if a non-DBE subcontractor has to be replaced for the same reason. Although DOT individually considers each request for extension of contract time, it treats delays resulting from DBE subcontractor performance the same as it treats delays resulting from non-DBE subcontractor performance. As noted in finding 2 above, the contract provides that subcontractors are agents or employees of the Contractor. Accordingly, extensions of time for completion of the contract are not generally granted when the delay is due to the agents or employees of the Contractor. It is the refusal of DOT to treat DBE subcontractors different from non-DBE subcontractors that forms the basis of Petitioner's challenge to this "policy" that extensions of contract time are not granted when the delay was due to the DBE subcontractor failing to comply with his subcontract which failure was "beyond the control" of the Contractor.
Findings Of Fact The Respondent, Sergio J. Alcorta (Alcorta), is licensed by the Department of Business and Professional Regulation (Department) as a professional engineer, license number PE 0014464. Alcorta is not licensed by the Department as a contractor. Alcorta has a company called mrf building systems, inc. Alcorta d/b/a mrf building systems, inc. is not listed in the records of the Contractors Section, Dade County Building and Zoning Department as a certified contractor doing or contracting for work in the building trades in Dade County. Hurricane Andrew, which hit the Miami area in August, 1992, damaged the home of Kenneth and Elizabeth Quinn. A friend of the Quinns referred them to Alcorta for assistance. By letter dated September 15, 1992, Alcorta outlined a discussion he had with the Quinns. The letter stated: Per our discussion, I will assist you in dealing with your insurance carrier and other construction workers to ensure that all hurricane damages are accounted for and the work is properly performed. I will prepare an initial damage evaluation report of all damages for the insurance adjuster and facilitate on your behalf the transfer of funds from your mortgage holder to you and to any pertinent party. My fees will be $150 for the initial evaluation and $500 at the end of construction work where you require my assistance. By letter dated September 16, 1992, Alcorta advised the Quinns of his findings concerning the damage to their residence. The engineer's report was prepared on the letterhead of Nu-Tech Engineering Services. Alcorta contacted a general contractor to see if the contractor could perform the work required to repair the Quinn's house. The contractor advised Alcorta that only a roofing permit would be required for the job and that because of the work he was already committed to do, he did not know when he could complete the repairs. Alcorta and Mr. Quinn signed a proposal on mrf building systems, inc. letterhead dated September 29, 1992. The proposal provided: We propose to furnish all materials, labor, tools, and equipment to repair the storm damaged dwelling at the above referenced location as follows: Roof recovering with shingles and ply- wood sheathing repairs $7,500. Structural repairs to concrete columns, stucco repairs as necessary $2,500 Enclosing terrace with new exterior walls and french doors $7,500 Retiling terrace room and pool area $2,000 Securing cabinets and other interior damage $1,000 Removal, installation of solar collector $500 New terrace central air conditioner $2,000 Exterior fencing $3,000 Total repair estimate $26,000 TERMS: One third down payment upon execution of the contract. Partial payments upon completion of work segments. Estimated time for completion of job: 21 days. On mrf building systems, inc.'s letterhead dated September 30, 1992, Alcorta provided Ms. Quinn with an estimate for interior painting, taking off the roof mounted solar collector and reinstalling it on the new roof, replacing roof insulation, structural epoxy repair, and replacing torn vent screens. Alcorta was paid approximately $14,650 by the Quinns on this project. Alcorta in turn paid for some of the materials and labor used on the project. The checks from the Quinns were made payable to Alcorta, not to mrf building systems, inc. By letter dated October 2, 1992, on mfr building systems, inc., letterhead, Alcorta forwarded a copy of the contract with the Quinns to the Quinn's mortgage company advising them that the Quinns had given him a down payment of $4,000 and listing the anticipated completion dates for the various tasks to be performed. Alcorta bought supplies and had laborers come to the site to perform work. There was no licensed contractor on the job. The only building permit pulled on the project was obtained by Elizabeth Quinn, the homeowner. The building permit did not carry the disclosure statement required by Section 489.103(7), Florida Statutes. Alcorta witnessed Ms. Quinn's signature on the application for building permit. Alcorta did not advise the Quinns that they were to act as contractors per Section 489.103(7), Florida Statutes. The Quinns did not supervise the construction on the project but relied on Alcorta to supervise the work. Alcorta was not an employee of the Quinns. The Quinns experienced problems with the roofing work performed pursuant to the contract with mrf building systems, inc. The roof leaked, requiring the Quinns to have the roof replaced at a cost of $10,000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Sergio J. Alcorta violated Section 489.127(1)(f), Florida Statutes (1992 Supp.), and assessing an administrative penalty of $3,000. DONE AND ENTERED this 20th day of November, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 1996. COPIES FURNISHED: Donna Bass, Senior Attorney Department of Business and Professional Regulation Division of Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 Mr. Sergio J. Alcorta Nisky Center, Mail Box 401 Charlotte Amalie St. Thomas, Virgin Islands 00802 Lynda Goodgame, Genral Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact DOT is an agency of the State of Florida responsible for the construction and maintenance of roads designated as part of the State Highway System. Clark is a road and bridge construction company located in Dozier, Alabama, and certified to bid on DOT contracts. On January 23, 1991, Clark submitted its bid on DOT Project No. 61530- 3601 for the construction of two adjacent bridges (Holmes Creek Bridge and Holmes Creek Relief Bridge) located in Washington County, Florida. On April 4, 1991, DOT and Clark entered into a contract for this project. The construction on the project was to take 400 contract days. On December 8, 1991, DOT advised Clark of its intention to declare Clark delinquent for unsatisfactory progress on the project. The contract required Clark to submit a construction schedule for approval by DOT. Under its approved construction schedule, Clark anticipated that it would commence its pile driving activity on the tenth day of the contract. Clark also proposed beginning the superstructure 40 days after beginning the substructure. The contract provides in part as follows: 8-7.3.2 . . . The Department may grant an extension of contract time when a controlling item of work is delayed by factors not reasonably anticipated or foreseeable at the time of bid. Such extension of time may be allowed only for delays occurring during the contract time period or authorized extensions of the contract time period. * * * Delays in delivery of materials or competent equipment which affect progress on a controlling item of work will be considered as basis for granting a time extension if such delays are beyond the control of the Contractor or supplier. * * * 8-8.2 Regulations Governing Suspension for Delinquency: Under the relevant rule provisions, a contractor is delinquent when unsatisfactory work progress is being made under these conditions: * * * (3) The allowed contract time has not expired and the percentage of dollar value of completed work is 15 percentage points or more below the dollar value of work which should have been completed according to the approved working schedule for the project. After falling 15 percent behind, the delinquency continues until the percentage points of the dollar value of completed work is within five percentage points of the dollar value of work which should have been completed according to the approved working schedule for the project. The contract required Clark to procure pilings for the project from a certified prestressed concrete manufacturer. The concrete mix design used by the prestress manufacturer had to be approved by DOT before construction could begin. At the time Clark prepared its bid, there were no preapproved prestressed concrete manufacturers in Florida or Alabama in the reasonable vicinity of the project. In preparing its bid, Clark contacted Sherman International (Sherman), a prestressed concrete manufacturer with headquarters in Birmingham and a plant in Mobile, Alabama. Immediately upon being awarded the contract, Clark notified DOT that Sherman would be its prestress supplier. Sherman had experience in fabricating prestressed products for states other than Florida and therefore believed it would not have a problem meeting Florida's certification requirements. The certification process requires inspection and approval by DOT officials of the manufacturer's equipment, material suppliers, plant operations, concrete mix, etc. The certification process also involves the production and pouring of test batches which must be reviewed by DOT officials who note problems with the product and direct resolution of the problems. The certification process involves a minimum of 28 days to allow the test batches to cure. After Sherman went through two unsuccessful 28-day curing periods in its effort to meet DOT approval, it retained an expert more familiar with DOT procedures and requirements and was finally able to obtain DOT approval on July 10, 1991. DOT's district engineer recognized that Clark reasonably would have anticipated that Sherman would be approved without delay. Neither Sherman nor Clark had reason to anticipate the approval of Sherman would take an extended length of time. Due to the delays in the approval of Sherman, Clark was unable to begin pile driving until August 14, 1991, the 98th day of the contract. Under the contract, piling had to be driven to depth until it met a specified bearing capacity, but still maintained the necessary height above ground to support the superstructure. The work on the foundation began by driving test piles. Once the test piles were driven, DOT was responsible for determining the order lengths for the piling. The order lengths were supposed to be long enough so that the piles would reach bearing and also maintain the specified height, above ground. Immediately upon commencing pile driving, Clark ran into problems because the piles were not long enough to be driven to bearing. The piles which did not meet bearing had to be spliced and redriven until they reached bearing. The contract contemplated that as many as seven splices would be required, 2 on the relief bridge and 5 on the creek bridge. The contract therefore identified splicing as an item for which the bidders were required to submit a unit price. In fact, on the creek bridge, 43 of the 96 piles had to be spliced. DOT was responsible for determining the additional pile lengths for the splices and it took DOT at least a week to make the determination once it realized a splice was required. Sherman had to manufacture the splices piecemeal as the orders came in to do so. Once manufactured, the pile splice had to cure for seven days then be shipped to the contractor. The contractor then affixed the pile splice to the original piling by the use of dowels and epoxy which had to cure for 48 hours. Construction of the substructure consisted of driving the piles, splicing and pouring concrete caps on which the bridge superstructure would rest. Before construction of the superstructure (decks) of the bridge could begin, pile caps had to be constructed. It took anywhere from two weeks to two months between the time the parties discovered that a pile or group of piles would have to be spliced and the time the spliced pile could be redriven. The pilings are constructed in clusters known as bents. Every bent on this project required splicing and therefore, construction of every bent was delayed. Before Clark could begin construction of the superstructure, it was necessary to have a consecutive series of bents completed including the caps. Even though Clark anticipated that it would commence construction on the superstructure 40 days after beginning the substructure, Clark was unable to start on the superstructure until 92 days after it started the pile driving operations because of the delays caused by the excessive splicing. Clark expected to be able to begin the superstructure on one end of the bridge while it was working on the substructure at the other end. However, Clark's planned, efficient progress was impeded because of ongoing driving operations of spliced pilings. Clark could not pour the caps while pile driving was going on within 100 feet of the bent where caps were to be poured. Clark continued on with its pile driving while it ordered splices for the previous bents. As soon as Clark was able to pour caps it did so and as soon as there were a sufficient number of completed successive bents available, Clark began work on the superstructure. Clark requested time extensions due to the delays, but the requests were denied. Clark ultimately was delayed in the progress of its work due to the unanticipated pile splices which exceeded the estimated quantity by more than 800 percent. DOT granted Clark nine additional contract days as the result of a supplemental agreement which did not include any additional time for the delays due to the excessive splicing. At the time of the notice of delinquency, Clark requested a 45-day extension of time due to the splicing. By a letter dated December 4, 1991, the DOT project engineer acknowledged that Clark was entitled to some time extension due to the splicing, but DOT proposed only a 9-day extension. In fact, no such extension was ever granted. DOT determined Clark delinquent on day 210. According to the engineer's weekly summary, on day 210, the percentage of the dollar value of completed work was 39.5 percent and the total allowed number of contract days was 403. By DOT's own calculations, if Clark had been given the nine days proposed for the supplemental agreement and the nine days suggested in the project engineer's letter of December 4, 1991, the project would have only been delinquent by 17 percent. It is not necessary for the trier of fact herein to determine the exact number of days which should have been granted for the pile splicing. It is enough to find that the 9 days suggested by DOT are inadequate and that the appropriate figure, based on the engineer's progress notes and reports, is at least twice that. DOT's witnesses offered explanations of why Clark was entitled to no extension in contract days because of the pile splices. However, their suggestions was beyond the realm of credibility in light of the actual extent of work and time required. Credibility determinations being within the exclusive province of the Hearing Officer, it is determined that DOT's testimony regarding the reasons for DOT's refusal to extend the contract time to reflect the inordinate number of pile splices is simply not credible or entitled to any weight. Additionally, neither of the main DOT witnesses had adequate knowledge of this specific project. If DOT had granted Clark an adequate number of days extension for the pile splices, that number plus the additional 9 days would result in an adjusted number of contract days of over 430. If Clark were granted the appropriate number of additional contract days, the percentage of dollar value of completed work would be less than 15 percentage points below the dollar value of work to be completed according to the contractor's schedule. This is calculated as follows: 210/430=48.6 percent. (Actual work completed of 39.5 percent or uncompleted percent of total contract amount of 60.5 percent.) 60.5-48.6=11.9 percent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the DOT enter a Final Order determining that Clark is not delinquent and dismissing the delinquency determination against Clark Construction Co., Inc., on State Project No. 61530-3601. DONE and ENTERED this 14th day of July, 1993, in Tallahassee, Florida. DIANE K. KIESLING 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 14th day of July, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-1592 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Transportation Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-5(1-5); 15(8); 18(8); 32(17); and 34(19). Proposed findings of fact 7-14, 19, 20, 22-31, 33, 35-37, and 40 are subordinate to the facts actually found in this Recommended Order. Proposed finding of fact 6 is unnecessary. Proposed findings of fact 16, 38, 39, and 42 are unsupported by the credible, competent and substantial evidence. Proposed findings of fact 17, 21, 41, and 43 are irrelevant. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Clark Construction Co., Inc. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 2-6(9-13); 8-13(14-19); 14(6); 15(7);. 16-28(20-32); 30-33(33-36); 34(8); 35(37); 36-40(39-43); and 46(38). Proposed findings of fact 1, 29, 41, 42, and 45 are subordinate to the facts actualloy found in this Recommended Order. Proposed findings of fact 7 and 47 are unsupported by the credible, competent and substantial evidence. Proposed findings of fact 43 and 44 are unnecessary. COPIES FURNISHED: Reynold D. Meyer Genie L. Buckingham Assistant General Counsels Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, FL 32399-0458 Mary Piccard, Attorney at Law Cummings, Lawrence & Vezina, P.A. 1004 DeSoto Park Drive P.O. Box 589 Tallahassee, FL 32303-0589 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458
The Issue Whether Respondent committed the violations alleged in the administrative complaint; and, if so, what penalty should be imposed.
Findings Of Fact At all times material to the allegations of this complaint, the Respondent, Joseph Marcelin, was a certified residential contractor, license number CR C028352. Respondent’s place of business and residence are in Dade County, Florida. The Petitioner is the state agency charged with the responsibility of regulating and disciplining licensed contractors. On May 14, 1988, the Construction Industry Licensing Board entered a final order approving a settlement stipulation regarding Case no. 74860 against this Respondent. This final order directed Respondent to adhere to and abide by all of the terms and conditions of the stipulation. The stipulation required the Respondent to not violate the provisions in Chapters 455 and 489, Florida Statutes, in the future; required Respondent to honor a settlement in a civil matter; required Respondent to pay a fine in the amount of $500.00; suspended Respondent’s license for thirty days; and required Respondent to affirmatively demonstrate compliance with the stipulation in order to have his license reinstated. A second final order entered by the Board on May 14, 1988, approved a settlement stipulation regarding Case no. 77499. This final order also directed Respondent to comply with the stipulation applicable to that case. In Case no. 77499, the stipulation required Respondent to abide by a civil settlement; imposed a fine in the amount of $500.00; suspended Respondent’s license for thirty days; and placed the burden on Respondent to demonstrate he had met the terms of the stipulation. As to both cases referenced above, Respondent admitted the allegations of the administrative complaints which, in pertinent part, claimed Respondent had assisted an unlicensed person or entity to perform contracting services thereby aiding and abetting an unlicensed person to evade the provisions of Chapter 489, Florida Statutes. On April 2, 1993, Respondent executed a certification change of status form which was submitted to the Department. Such form was completed for the purpose of qualifying as an individual for licensure and sought to reinstate a delinquent license or change from inactive to active. In the course of completing the change of status form Respondent was required to answer a series of questions by checking either the “yes” or “no” column. In response to the question as to whether Respondent had “been charged with or convicted of acting as a contractor without a license, or if licensed as a contractor in this state or any other state, had a disciplinary action (including probation, fine or reprimand) against such license by a state, county or municipality?,” he answered “no.” Such answer was false. Further such answer was made under with the following affirmation: I affirm that these statements are true and correct and I recognize that providing false information may result in a FINE, SUSPENSION, OR REVOCATION of my contractor’s license. [Emphasis in original.] Thereafter, the Department notified the Respondent that his license would not be issued as he had failed to demonstrate satisfaction of a civil judgment and had not submitted an explanation of the disciplinary action from 1988. Respondent eventually resolved issues of licensure with the Department and, on September 15, 1993, was authorized to practice contracting. Prior to his license being reinstated, Respondent performed the following: on April 7, 1993, Respondent obtained a building permit for construction work at the home of Eduardo Bovea. This permit, no. 93181501, indicated Respondent as the contractor of record for the project. On the permit application Respondent represented himself as the licensed building contractor for the Bovea project to the Metropolitan Dade County building and zoning department. Respondent did not have a contract with Bovea for the construction work to be performed on the Bovea home. In fact, the contract was between Bovea and Lou Greene Construction. The Boveas paid monies to Rodney Salnave, who claimed to be a representative for Lou Greene Construction. Rodney Salnave was not Respondent’s employee, and was not licensed as a contractor. The Respondent did not talk to the Boveas regarding the contract, the scope of the work to be done, or the contract price for the work. All discussions regarding the work at their home (and payments for same) were between Rodney Salnave and the Boveas. The permit for the Bovea project represented the amount of the work to be $2,000.00. In fact, the contract price for the work was $4,500.00. Respondent misrepresented the value of the work for the Bovea project. As of September 26, 1993, Respondent admitted he was involved with seventeen contracting jobs. Just eleven days after having his license reinstated, and while being employed in a full-time (8:00 a.m. to 5:00 p.m.) job with Dade County, Respondent had contracting responsibility for seventeen jobs. In reality, Respondent had made a deal with an unlicensed person, Denis Joseph, to pull permits for him. The jobs were for persons who, in some instances, Respondent had never met. For example, Mr. Joseph pulled a permit for work to be performed on a home owned by Ed Davis. The contract for the work was between Mr. Davis and a Mr. Sutton, an unlicensed contractor, but with the approval of Respondent, Mr. Joseph obtained a permit for the Davis job. A second job was for Bertha Joseph. In this instance, Mr. Joseph completed the permit application which Respondent signed thereby allowing Mr. Joseph to obtain the permit for the project. By signing the permit, Respondent represented himself to be the contractor for the job. In truth, the homeowner had contracted with Denis Joseph for the work to be done, but the project was completed by Emanuel Gideon, an unlicensed contractor. Respondent admitted receiving payments from Denis Joseph. Respondent admitted he was not actively involved with the Bertha Joseph project. In September, 1993, Eric Wardle, an investigator with the Dade County building and zoning department, interviewed Respondent regarding claims that he was obtaining permits for unlicensed contractors. According to Mr. Wardle, Respondent admitted he pulled permits for unlicensed contractors after Hurricane Andrew because they were trying to make a living. At hearing Respondent disputed the accuracy of Mr. Wardle’s investigation but admitted he would have told him “anything just for him to get away from me.” Respondent’s explanation at hearing was not persuasive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Construction Industry Licensing Board, enter a final order revoking Respondent’s contractor license and imposing an administrative fine in the amount of $8,500.00. DONE AND ENTERED this 16th day of May, 1997, in Tallahassee, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 COPIES FURNISHED: Bruce M. Pasternack, Esquire Raymond L. Robinson, P.A. 1501 Venera Avenue, Suite 300 Coral Gables, Florida 33146 Joseph Marcelin 16561 Southwest 144th Court Miami, Florida 33177 Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1997. Rodney Hurst, Executive Director Department of Business and Professional Regulation/CILB 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Northwood Centre Tallahassee, Florida 32399-0792
The Issue The issue for consideration in this hearing is whether Respondent's license as a certified building contractor should be disciplined because of the matters set out in the Administrative Complaint.
Findings Of Fact At all times pertinent to the allegations herein, Petitioner was the state agency responsible for the regulation of the construction industry in Florida. Respondent, David P. Miller, was licensed as a certified building contractor under license number CB C039127 and was doing business as Great Southern Construction and Development, Inc. On March 14, 1988, Robert Crowley, a semi-retired real estate broker and promoter, and Treasurer of Enterprise Industrial Park, Inc., (EIP), entered into contracts with the Respondent to construct three buildings, A, B, and H, for it within the park boundaries. Building A was to house offices and retail space; building B was to house warehouse and offices; and building C was to house garage space. The construction was to be financed by an infusion of shareholders' money and by a construction loan from the Southland bank in the amount of $375,000.00. The loan was ultimately increased to $614,000.00 so that EIP could begin development of phase II of the park. The contracts provided for Respondent to be paid $110,000.00 for Building A, $67,000.00 for Building B, and $52,807.00 for Building H. The loan was obtained in phases. The developers had outlined the project to bank officials who approved it, initially, for development of the park and construction of four buildings. Phase one was to include the roadway and one building. When that was completed, the other buildings were to be erected. Site preparation was accomplished by John T. Day. Most of the site preparation was completed before Respondent started construction. Thereafter, as work progressed, Respondent periodically certified to the bank what work had been done and that suppliers had been paid. Upon receipt of that certification, the bank would issue a check for the appropriate amount to EIP which would, thereafter, issue its own check to Respondent. There was an exception, however, in the case of payments to Ludwig Steel. Whereas that supplier would bill Respondent for small items delivered, it demanded payment by cashiers' check upon delivery for major structural steel fabrications. These checks, for steel for Buildings A and B, were for $18,511.84 and $17,716.84, were issued by Southland Bank, at the request of EIP. During the course of his performance of the contracts for the construction of Buildings A, B, & H, Respondent executed several of the above mentioned certification forms. For Building H: These included: a. August 30, 1988 $ 9,505.00 b. October 4, 1988 9,505.00 c. October 17, 1988 9,505.00 d. December 28, 1988 11,881.50 e. January 31, 1989 9,437.50 TOTAL $49,834.00 Prior to these certificates, the bank also released $90,000 in advances for start up costs and the loan in March, April and May, 1988. In addition to the certificates listed above, Respondent also signed certificates for Building A totalling $91,446.00 as follows: a. August 30, 1988 $ 19,800.00 b. October 4, 1988 19,800.00 c. October 17, 1988 19,800.00 d. December 28, 1988 24,750.00 e. January 31, 1989 7,296.00 TOTAL $ 91,446.00 Respondent also signed additional certificates for Buildings B as follows: a. December 28, 1988 $ 46,642.00 b. January 31, 1989 28,031.00 c. March 1, 1989 28,031.00 TOTAL $102,704.00 These certificates were also signed by the architect, Mr. Wilcockson. In fact, they were not correct in that not all the work had been done and not all suppliers had been paid. Respondent admits to falsely signing the certificates but claims he was urged to do so by representatives of EIP who indicated to him it was just a routine procedure. Consequently, even knowing the certificates were not accurate, he signed them because he wanted to get paid. It is found, however, that Respondent has been a licensed contractor for a number of years and knew the implications of his actions. His attempts at justification for his actions are neither credible nor impressive. Construction progressed satisfactorily and without major problems up to the time for the last draw. At that point, the bank declined to issue a check to EIP for the construction of Building C, also to be erected on the site, when it became aware that numerous liens had been filed by subcontractors and materialmen indicating Respondent's failure to make satisfactory payment for buildings A, B, and H. These liens included claims by: American Roll-Up Door Co. $ 3,630.00 B & B Painting Contractors 3,020.00 Blackton, Inc., 5,820.73 Brownie Septic Tank Contractors #1 1,025.00 Brownie Septic Tank Contractors #2 1,025.00 Brownie Septic Tank Contractors #3 1,635.00 Don Alan Dinora 930.00 Energy Savings Systems, Inc. 10,750.00 Florida Mining & Materials 2,388.31 Mid Florida Air Conditioning, Inc. 3,982.00 Neeley-Built Structures, Inc., 4,995.78 Residential Building Supply 7,857.11 Total $47,058.93 Mr. Crowley claims the above liens were satisfied by EIP, and it is so found. He claims EIP also paid some subcontractors who did not file liens because of a desire to help small contractors who otherwise would not have been paid. No figures were available to support that latter claim, however, and it is not considered to be probative of any issue. It is found, however, that Respondent paid Neeley-Built the amount of $4,995.78 and the claim of lien form included within Petitioner's exhibit of filed liens refers to property other than that in issue here. In addition, the $10,750.00 lien of Energy Savings Systems is not totally attributable to services or materials for the instant project. It is estimated that 60 percent of that amount relates to work done outside the three contracts in issue here. Further, only $1,700.00 of the lien of Residential Building Supply relates to material provided for the work done by Respondent under these contracts. The balance relates to work done outside the original contract limits. Over the course of the contracts, EIP paid Respondent, in addition to a deposit of $25,786,99 for Bldgs. A & H, the sums below, for a total of $259,006.72 for Bldgs. A, B, & H: a. Aug. 31, 1988 $19,800.00 for Bldg. A b. Aug. 31, 1988 9,505.00 for Bldg. H c. Oct. 05, 1988 10,793.16 for Bldg. H & A d. Oct. 17, 1988 29,305.99 for Bldg. A & H e. Dec. 14, 1988 19,000.00 f. Dec. 29, 1988 49,417.06 g. Feb. 06, 1989 7,296.00 for Bldg. A h. Feb. 06, 1989 28,310.00 for Bldg. B i. Feb. 06, 1989 9,473.50 for Bldg. H j. Feb. 10, 1989 2,350.00 for misc. k. Feb. 15, 1989 20,000.00 l. Mar. 03, 1989 28,031.00 for Bldg. B In addition to those payments, EIP also paid $16,000.00 to Benson Drywall on December 12, 1988 at the request of Respondent. The total paid by EIP, either to or on behalf of the Respondent, was: $ 25,786.00 deposit 233,280.72 to Great Southern 16,000.00 Benson Drywall 36,228.68 Ludwig Steel $311,295.40 TOTAL Mr. Crowley was not the main source of corporate funds. The President of the company is a Mr. Nelson who was the "money man." Contractor selection was by agreement between Nelson and Crowley, but Crowley was the supervisor of the contracts and did most of the negotiating with Respondent. The work stipulated in the contracts between EIP and Respondent was not the only work called for in their relationship. The contracts provided for the basic construction but Mr. Crowley requested Respondent to perform additional work in or around buildings A, B, and H, which included: Tenant improvements in buildings A and B valued at $23,000 excluding labor; Additional site work including electrical, telephone, grading and filling, berm modification, concrete sidewalks and parking buffers, and repair of damaged concrete (all but the repair of concrete was the result of the failure of the original site preparation contractor to properly complete his work); Negotiations and discussions with Volusia County regarding the sewer/septic system necessary for the project. In addition to the $23,000.00 for tenant improvements mentioned in the paragraph next above, Respondent also paid out of pocket to the following contractors and suppliers for work outside the scope of the original contracts: a. Ludwig Metal Buildings $ 3,000.00 b. Concrete 3,840.00 c. John Bates & family 6,497.73 d. Four Seasons 1,190.00 e. Will Cox 975.00 f. Riley 3,100.00 All Star Electric 4,705.32 Jerry's Concrete Service 1,350.00 TOTAL $24,658.05 Though the contracts referenced in this proceeding pertain to construction of Buildings A, B, & H, Respondent was also retained to erect a metal building to be designated C. Respondent received a total of $253,000.00 from EIP to construct those buildings for which he had the initial contracts and also to put up the metal building, C. The cost to complete Building C was $45,500.00 but EIP had remaining only slightly over $6,000.00 to pay for that work. Respondent did substantial work for EIP which was over and above the services called for under the contracts for Buildings A, B, & H as amended by the change orders for which he was not paid because Mr. Crowley advised him no additional monies were available. For example, he and his brother, Thomas, did additional site work valued by him at $24,260.00; and additional labor and services on the septic and sewer system problems valued by him at $5,600.00 and for tenant improvement, valued by him at $5,000.00. Here, however, it must be noted that the figures cited are not documented by any supporting material and contain significant amounts for his labor which he priced at $90.00 per hour. Mr. Miller, during his relationship with EIP, purchased a 10 percent interest in the firm. He originally filed his own lien on the property for $80,364.00 based on the contracts he had in hand and the site work which he valued at $18,000.00. He claims he subsequently withdrew his lien without being paid so that the limited funds available could be used to pay the subcontractors. No corroborating evidence on this point was introduced, however. Mr. Miller's contracting license was, subsequent to the incidents herein, placed in inactive status and currently remains so. He is not now engaged in contracting and claims he does not intend to do so in the future. His motivation in contesting the allegations against him is, he claims, solely to clear his good name and reputation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED THAT the Respondent, David P. Miller, d/b/a Great Southern Construction and Development, Inc. pay an administrative fine of $3,750.00 and be reprimanded. RECOMMENDED this 9th day of November, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 9th day of November, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-7413 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. & 2. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. & 6. Accepted and incorporated herein. 7. - 14. Accepted and incorporated herein. 15. - 17. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. & 21. Accepted and incorporated herein. 22. - 24. Accepted and incorporated herein. 25. & 26. Accepted. FOR THE RESPONDENT: Accepted and incorporated herein. & 3. Accepted and incorporated herein. Rejected as the total amount paid by EIP for the buildings constructed by Respondent. The figure is somewhat higher due to deposit and amounts paid to suppliers by EIP. Accepted and incorporated herein. * At this point, Respondent's proposed Findings of Fact become misnumbered. There are two numbers 5. The subsequent numbers are as reflected in Respondent's submittal. 5. - 9. Accepted and incorporated herein. 10. - 12. Accepted and incorporated herein. 13. - 15. Accepted and incorporated herein. 16. Accepted. 17 & 18. Accepted. Alleged but not proven. Accepted. Rejected as contra to the weight of the evidence. Accepted and incorporated herein. COPIES FURNISHED: Tracy Sumner, Esquire William S. Cummins, Esquire Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kurt R. Borglum, Esquire 366 East Graves Avenue, Suite B Orange City, Florida 32763 Jack McRay General Counsel Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Daniel O'Brien Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
The Issue Whether Respondent, a certified general contractor, violated the construction industry licensing law, by: (1) willfully or deliberately disregarding and violating the applicable building codes or laws of the State or any municipalities, cities or counties thereof; (2) diverting construction funds resulting in his unwillingness or inability to perform pursuant to a construction contract; and (3) abandoning a construction project; and if the Respondent is guilty of such violations, the appropriate disciplinary penalty which should be imposed by the Construction Industry Licensing Board.
Recommendation That Respondent's certified general contractor's license No. CGC005174 be suspended until such time as Respondent furnishes the Board satisfactory evidence of having made restitution to Simon H. and Alexandra U. Ramos in the amount of $2,515 for monies expended by them to pay for lumber, electric and plumbing charges arising out of their construction contract.
