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.
The Issue Whether Respondent performed an act which assisted an entity in engaging in the prohibited uncertified and unregistered practice of contracting or whether he abandoned a construction project in which he was engaged or under contract as a contractor, in violation of section 489.129(1), Florida Statutes, as set forth in the Administrative Complaint, and, if so, what is the appropriate sanction.
Findings Of Fact The Board is the state agency charged with regulating the practice of construction contracting pursuant to section 20.165 and chapters 455 and 489, Florida Statutes. At all times material to this proceeding, Mr. Requejo was licensed as a certified general contractor in the state of Florida, having been issued license number CGC 1504266. Mr. Requejo’s address of record is 15941 Southwest 53rd Court, Southwest Ranches, Florida 33331. At all times material to this proceeding, Mr. Requejo was the primary qualifying agent of Recol, Inc. Mr. Andre Chestnut was formerly a registered contractor in the state of Florida. He testified credibly that he used to have nine licenses. At all times relevant to this case, he held no state licensure as a contractor. Consistent with Department records, he testified that his license had been revoked sometime around August 2003. USA Screens was incorporated in December 2011 to perform “any and all lawful business,” with Mr. Chestnut as the incorporator, registered agent, and president. Records of the Department contain no evidence that USA Screens, Inc., has ever been qualified by a licensed contractor or had an active license as a construction business. Ms. Carmen Goehrig owned real property at 6300 Pinehurst Circle East in Tamarac, Florida. She wished to install a screen enclosure on the property. On January 21, 2012, she entered into a construction contract with USA Screens, Inc., signed by Mr. Chestnut. This constituted the practice of contracting by Mr. Chestnut and USA Screens, Inc. Mr. Chestnut testified that he had been working in conjunction with Mr. Requejo on various projects for the past nine years. He credibly testified that he received the template for the contract he entered into with Ms. Goehrig from Mr. Requejo. That contract template contains the full name and address for both Recol, Inc., and USA Screens, Inc., at the top of the contract in large type, but shows only one contractor’s license number, that of Mr. Requejo, under the address for Recol, Inc. No contractor’s license number is shown under the USA Screens, Inc., address. Having worked with Mr. Chestnut for nine years, and having prepared the template contract that they used for common projects, Mr. Requejo had reasonable grounds to know that USA Screens, Inc., was uncertified and unregistered, as suggested by the contract itself. The contract mentioned that it was contingent upon both homeowner association and government approvals, and included a handwritten provision that there would be “no material purchases until association approval.” Ms. Goehrig signed two checks to USA Screens, Inc.: the first in the amount of $500.00 for the application; the other in the amount of $3,000.00 for materials. Both checks were cashed on January 24, 2012. On February 14, 2012, Mr. Requejo, d/b/a Recol, Inc., timely filed building permit application 12-636 for construction of the screen enclosure at 6300 Pinehurst Circle East with the city of Tamarac, using his general contractor’s license number. Recol, Inc., is listed as the general contractor in the city’s records. In filing for a permit from the city of Tamarac for the construction, Mr. Requejo assisted USA Screens, Inc., and Mr. Chestnut in engaging in the prohibited uncertified and unregistered practice of contracting. Mr. Claudio Grande is the chief building official for the city of Tamarac. He oversees permitting and is the custodian of records. He testified that permit 12-636 was denied due to zoning restrictions and structural issues. Mr. Chestnut testified that he made numerous calls trying to get the permit approved. He testified that the problem was that the screen enclosure encroached on a utility easement. As Mr. Goehrig testified: They applied for the permit. He showed us the drawings, Andre, and to my knowledge, submitted the permit application. And then we noticed that the second check was cashed, so we started calling him about that. And all he would say is, “Don’t worry, don’t worry, don’t worry.” And then the permit was denied and then we went back and tried to do something to get it approved and it was denied. And then zoning finally denied it again. So three times, we tried to fix it to make it work. And we finally, you know, the zoning department finally came down and said, “No, end of story, no good.” So we went to him and said, “Okay, we can’t get the permit, please just give us our money back and we’ll go on our way.” And of course, his answer was, “No, you’re not getting any money back, I spent your money, goodbye.” After the permit was finally denied and Mr. Chestnut refused to return their money, the Goehrigs contacted Mr. Requejo to get their money back, again to no avail. It was not shown that the project was terminated without just cause or that it was terminated without proper notification to Ms. Goehrig. It is clear from the filed complaint, as well as the testimony that Ms. Goehrig was aware that the project could not be permitted, and sought a return of the money that had been paid. “The permit was denied and [Chestnut] refuses to refund our deposit.” The Department failed to prove that Mr. Requejo abandoned a construction project in which he was engaged or under contract as a contractor. Prior Discipline On February 13, 2013, a Final Order Adopting Settlement and Vacating Prior Orders was filed by the Board. The Order incorporated a settlement agreement imposing discipline for allegations in several earlier Administrative Complaints. The October 2012 settlement agreement required the payment of fines, investigatory costs, and restitution to six individuals, as well as continuing education and a six-year period of probation. The Order constitutes prior discipline within the meaning of the disciplinary guidelines.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board enter a final order finding Mr. Antonio L. Requejo in violation of section 489.129(1)(d), Florida Statutes; suspending his contractor’s license for a period of six months, followed by a period of probation deemed advisable by the Board; imposing a fine of $7,000.00; and directing that he make restitution in the amount of $3,500.00 to Carmen Goehrig. DONE AND ENTERED this 17th day of March, 2016, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 17th day of March, 2016. COPIES FURNISHED: Sorin Ardelean, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 (eServed) Antonio L. Requejo 11826 B. Miramar Parkway Miramar, Florida 33025 Daniel Biggins, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 (eServed) William N. Spicola, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 (eServed)
