The Issue The issue for determination at the formal hearing was whether Respondent allowed an uncertified and unregistered person to engage in prohibited contracting in violation of Subsections 489.129(1)(e), (f), and (m), Florida Statutes. 1/
Findings Of Fact Petitioner is the state agency charged, in conjunction with the Construction Industry Licensing Board, with the responsibility for prosecuting the Administrative Complaint in this proceeding pursuant to chapters 455 and 489, and the rules promulgated thereunder. In September, 1980, license number CG C015802 was issued to Respondent, Thomas J. Freese, as the qualifying agent for Tracy Industries, 728 St. Lucie Crest, Stuart, Florida 33494 ("Tracy"). Respondent was the licensed qualifying agent for Tracy Industries at all times material to this proceeding. At no time material to this proceeding was Robert Sherno licensed by Petitioner as a contractor. On or about May 30, 1988, Mr. Sherno contracted with William F. Meinking to construct a home for Mr. Meinking. The contract price was not to exceed $64,000.00. A building permit was issued for the construction of Mr. Meinking's home on June 8, 1988. The permit was obtained by Mr. Sherno as agent for Respondent. A notice of commencement was filed by Mr. Meinking on June 20, 1988, listing Respondent as the contractor, and listing Mr. Sherno as the person designated by the owner for service of notice and other documents. Respondent authorized Mr. Sherno to obtain the building permit by letter to the local building department dated June 21, 1988 ("authorization letter"). The authorization letter was requested by Robert Nelson who was Tracy's president. Mr. Nelson was personally acquainted with Mr. Sherno and dealt directly but separately with Mr. Sherno and Respondent. Mr. Sherno paid $200.00 to Mr. Nelson at the time of the authorization letter. Mr. Nelson told Respondent that the permit was for the construction of Mr. Meinking's home. Respondent initially questioned the need for a contractor to pull the permit when the owner could build his own house under an owner's permit. Respondent was told that Mr. Meinking and Mr. Sherno were going to develop a number of homes in the area Not only would the number of homes not qualify for an owner's permit, but it was anticipated by Mr. Nelson that the development plan proposed by Mr. Sherno and Mr. Meinking had excellent profit potential for all concerned. Based on that information from Mr. Nelson, Respondent signed the authorization letter. Respondent knew Mr. Sherno and knew that Mr. Sherno was not a licensed contractor. Neither Respondent nor any qualified person supervised the construction of Mr. Meinking's home. One person employed by Tracy in an administrative or clerical capacity visited the construction site occasionally. Respondent inquired of Mr. Nelson from time to time at the offices of Tracy as to the status of construction. Respondent drove by the construction site from time to time, but did not personally supervise construction in any capacity. Respondent did not inspect the progress of construction, provide insurance, discuss the progress of construction with Mr. Meinking, Mr. Sherno, or anyone at Tracy. Respondent assumed that construction was proceeding according to schedule and in a satisfactory manner as long as there were no complaints. Mr. Meinking paid Mr. Sherno the entire $64,000.00 pursuant to the terms of the contract. During the latter stages of construction in the first or second week of November, Mr. Meinking began receiving calls from subcontractors stating that they had not been paid. Mr. Meinking terminated his contractual relationship with Mr. Sherno on or about November 17, 1988. Mr. Meinking paid approximately $16,500.00 to eight subcontractors and an additional $10,000.00 to $12,000.00 to finish construction of his home.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of violating Subsections 489.129(1)(e), (f), and (m), Florida Statutes. It is further recommended that Respondent be fined $2,000.00 which represents the aggregate amount of the minimum fine for each violation. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 27th day of August, 1990. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1990.
Findings Of Fact At all times material hereto, Respondent has been a registered general contractor and registered roofing contractor in Florida, having been issued licenses numbered RG-0025491 and RC-0046293. Respondent has been a registered general contractor in the State of Florida since 1976, and there is no evidence in the record of any prior license disciplinary action involving Respondent. The Department is the state agency with responsibility to file and prosecute administrative complaints alleging violations of Chapters 455 and 489, Florida Statutes, in accordance with Chapter 120, Florida Statutes. On or about March 15, 1988, the Respondent executed a contract and agreement with Fred and Patricia Rogerson for the construction of a residence to be located at 9800 Indian River Drive (Lot 10, Block 6), Hobe Sound, Florida. The contract amount for this job was stated to be $70,000, and the time of completion was specified to be 15 weeks from commencement on April 11, 1988. While Respondent did redraw and improve the structural adequacy of the construction plans which the Rogersons provided, the contract amount and time of completion stated in his contract with the Rogersons were never modified by change order. Based upon the expert testimony offered by John Fix, called on behalf of the Department, and Donald Corbett, called on behalf of the Respondent, the true price to construct the Rogerson's residence in 1988 would have been between $105,000 and $114,700. There is no possibility that Respondent, or any other general contractor, could have completed this residence for the $70,000 contract price. The evidence clearly establishes that he substantially underbid this job, and that underbidding a job to the extent that Respondent did in this case constitutes incompetence in contracting. It is the responsibility of the general contractor to complete a job for the contracted amount, or to obtain written change order approval from the owner, prior to performing any work which will result in an increase to that contract price. This finding is based upon the expert testimony of Fix and Corbett presented at hearing. Respondent began work on the Rogerson residence in July, 1988, and proceeded until January, 1989, when the Rogersons terminated their contract with him. At the time of that termination, Respondent had not completed work on their residence, but he testified at hearing that if the Rogersons had continued to work with him, he could have completed the job at less cost to them than they subsequently had to pay in order to obtain a certificate of occupancy in March, 1989. During the course of construction, the Respondent complained to the Rogersons that the job was costing him more than he had estimated. When they brought apparent deficiencies and problems in construction to his attention, Respondent complained of not having enough money to complete the job, and that if he had known what he was getting into with this job, he would have submitted a higher bid. Despite the fact that Respondent contracted with the Rogersons to complete their residence for $70,000 within 15 weeks from a stated commencement date of April 11, 1988, he fulfilled none of these commitments under his contract with the Rogersons. Therefore, his assertion that he could have completed this job for less than the Rogersons subsequently had to pay is not credited. The Rogersons had paid a total of $45,732.20 to Respondent at the time of his termination in January, 1989. In addition, their bank had disbursed $10,710.80 to subcontractors and suppliers for work and supplies provided for this job. Subsequent to terminating Respondent, the Rogersons have spent an additional $18,981.31 for materials and supplies to complete additional work on their residence in order to obtain a certificate of occupancy. Specifically, they have repoured the driveway, replaced insulation batting, installed drywall, finished the siding sub-barrier, applied siding, restapled roofing, finished plumbing, and installed appliances. The Rogersons have also paid $4,894 for legal fees and to satisfy liens placed against their property by suppliers who were not paid by the Respondent. Thus, the Rogersons have had to pay a total of $80,318.31, for which receipts were introduced in evidence, for work on their residence. In addition, they credibly testified that they have also spent $5,000 for supplies for which they have no receipts, and that there are an additional $8,000 to $9,000 in outstanding liens which have been placed against their property.
Recommendation Based upon the foregoing, it is recommended that the Construction Industry Licensing Board enter a Final Order imposing an administrative fine on the Respondent in the amount of $3,000 and suspending his licenses for a period of six months, or until such time sooner as the Respondent makes full and complete restitution to the Rogersons for all funds which they have expended in excess of $70,000 in order to complete this residence and to remove liens placed against this property. DONE AND ENTERED this 29th day of January, 1991 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1991. APPENDIX Rulings on the Department's Proposed Findings of Fact: 1-2. Adopted in Finding of Fact 1. 3. Adopted in Finding of Fact 2. 4. Adopted in part in Finding of Fact 2, but otherwise Rejected as irrelevant and immaterial. 5. Adopted, substantially, in Findings of Fact 2 and 5. 6-7. Adopted in Finding of Fact 5. 8-10. Adopted, substantially, in Finding of Fact 7. 11. Adopted in Finding of Fact 4. Rulings on the Respondents' Proposed Findings of Fact: (Note that the Respondent included two paragraphs numbered 5 and the rulings shown below follow in the sequence of the Respondents' Proposed Findings of Fact.) This is an introduction and not a proposed finding. Adopted in Findings of Fact 2 and 3. Adopted, in part, in Finding of Fact 7. Adopted, substantially, in Findings of Fact 2 and 5. Adopted, in part, in Findings of Fact 5 and 7. Rejected in Finding of Fact 7, and as irrelevant and immaterial. Adopted in Finding of Fact 2, but otherwise Rejected as not based upon competent substantial evidence. Adopted in Finding of Fact 3. COPIES FURNISHED: Robert B. Jurand, Esquire 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 David J. Chesnut, Esquire 215 South Federal Highway Suite 200 Stuart, FL 34994 Jack McRay, Esquire General Counsel 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Daniel O'Brien, Executive Director Construction Industry Licensing Board O. Box 2 Jacksonville, FL 32202
The Issue The primary factual issue was whether the company which the Respondent had qualified was in fact the contractor on the job from which the allegations in the Amended Administrative Complaint arose. The Petitioner submitted post hearing findings of fact in the form of a proposed recommended order. To the extent that the proposed findings of fact have not been included in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being findings of fact.
Findings Of Fact The Respondent, Edward Ryan, is a certified building contractor holding license number C3 C006481 and was the qualifying agent for Behr Contracting, Inc. (thereafter "Behr Contracting"), at all times relevant to the allegations of the Amended Administrative Complaint. Behr Contracting was, and is a business engaging in, contracting, selling building materials, and mortgage brokerage. Its operations as a mortgage broker are now carried on under a separate corporation; however, at the time involved in these proceedings, its mortgage brokerage operation was carried out in the name of Behr Contracting, Inc. Willie Mae Williams resides at 1451 Northwest 92nd Street, Miami, Florida. In 1980, Ms. Williams had extensive modifications made to her house at the foregoing address. With regard to the work on her house, Ms Williams' initial contact was with S. J. (Jerome) Farmer. Farmer was an independent contractor who was doing home repairs in early 1980 to several homes close to the Williams home. He was not doing these jobs as an employee of Behr Contracting, and no evidence was introduced that at said time he was an employee of Behr Contracting. After he had already begun working on the Williams home, Farmer approached the Respondent and requested Respondent's assistance in helping him estimate additional repairs and modifications to Ms. Williams' home and assistance in obtaining the financing for this job. Farmer was not affiliated in any manner with Behr Contracting. The Respondent arranged for an estimator to assist Farmer in estimating the cost of the project and in obtaining financing for the project. (Testimony of Ryan, Tr. 58 et seq.) This estimator had two contract forms signed by Ms. Williams, one for financing and one for construction. These documents were identified by Ms. Williams and were received into the record. (See Petitioner's Exhibits 2 and 3.) Petitioner's Exhibit 2 is the contract between Behr Contracting and Ms. Williams for the financing of the modifications to the Williams house. Financing for the project was obtained through the mortgage brokerage operation of Behr Contracting and the money funneled through Behr Contracting to pay for materials purchased through Behr's building materials operation. Ms. Williams has made payments and is making payments as required under said contract to the finance company, Uni Credit of Jacksonville, Florida. Behr Contracting provided cabinets, windows and certain appliances, to include a dishwasher. The Respondent was at Ms. Williams' house approximately three times prior to the delivery of building materials from Behr Contracting. (Testimony of Ryan, Tr. 23.) On none of these occasions was the Respondent there as a building contractor qualifying Behr Contracting. At all times, Farmer was in charge of the project. (See testimony of Williams, Tr. 184.) Farmer was the contractor in fact. Subsequent to installation of the dishwasher, the Respondent was present at the Williams house often because of Ms Williams' complaints about the dishwasher. The Respondent replaced this dishwasher and had Ms. Williams' septic tank pumped in order to solve the drainage problem which was causing the dishwasher to malfunction. This was done to honor the warranty on the dishwasher. (Supra, Tr. 45-51.) A salesman for Behr Contracting gave Ms. Williams an estimate on both the contracting and on the financing for the modifications and remodeling of the Williams house. Under its business practices, Behr Contracting disapproved or rejected the contract for construction, yet approved the financing contract. Approval of a construction contract in the amount of the instant contract, over $11,000, would have required an officer's approval. (See testimony of Stanley Weiss, Tr. 21-28.) Although Ms. Williams identified her signature on the purported construction contract (Petitioner's Exhibit 3), she could not identify the signature appearing on the lefthand side of the page at the bottom of the contract in the area of "Agent" and "Officer." This signature also could not be identified by Stanley Weiss or Margaret Behr, officers of Behr Contracting. It was not the signature of Weiss, Ms Behr or the Respondent, who were the only officers of the corporation authorized to approve a contract of this amount at the time that this contract was prepared. This contract (Petitioner's Exhibit 3) was never accepted by Behr Contracting (See testimony of Weiss, Tr. 35.) Although a copy of Petitioner's Exhibit 3 was discovered by Weiss in the files of Behr Contracting, this was a photo copy given to Weiss by the Respondents who had received it from the Board's investigators when the Respondent first spoke to them about this case. (See page 8, deposition of Ryan taken September 17, 1982; see pages 3, 4 and 8, deposition of Weiss; testimony of Ryan, Tr. 70-75; testimony of Weiss, Tr. 10-12.) The Respondent's involvement in this matter was "limited to providing gratuitous advice to Farmer at Farmer's request on one occasion, concerning a broken major waste drain, and representing Behr Contracting who was a major supplier of materials and appliances for the job. It is specifically found that the Petitioner failed to establish the existence of a construction contract between Ms. Williams and Behr Contracting. Regarding the allegations that the Respondent abandoned the job, the Respondent caused the dishwasher supplied by Behr Contracting to be replaced under warranty service. The septic tank at the Williams house was pumped and cleaned at the request of Uni Credit in an attempt to solve the problem. Finally, over a year after the job had begun, the Respondent had the septic tank and drainfeild rebuilt and solved Ms. Williams' drainage problems. This last action was taken under threat of prosecution by the Board's investigators and was done in spite of the fact, which is uncontroverted, that the construction did not address modifications to the plumbing in the house. After the Respondent had taken these actions, Ms. Williams than wanted the cabinets and other work, which had been done by Farmer, replaced because of water damage caused by the drainage problem.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Amended Administrative Complaint against the Respondent, Edward Ryan, be dismissed. DONE and RECOMMENDED this 20th day of September, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 20th day of September, 1983 COPIES FURNISHED: Michael J. Cohen, Esquire Kristin Building, Suite 101 2715 East Oakland Park Boulevard Fort Lauderdale, Florida 32206 Mr. Edward Ryan 19762 Bel Aire Drive Miami, Florida 33138 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
Findings Of Fact The Respondent, William C. Lovelace, has been a certified building contractor in the State of Florida since 1984, holding license number CB CO 29103. The Respondent has been a registered roofing contractor in the State of Florida since January, 1989, holding license number RC 0058368. Case No. 91-0390--The Clarks. On or about June 8, 1987, the Respondent, who was doing business as Lovelace Development Enterprises, Inc., at the time, entered into a contract with James and Nedra Clark, then residents of the State of Ohio, for residential contruction on a residential building lot they owned in a subdivision in Safety Harbor in Pinellas County, Florida. The contract price was $69,900, payable as follows: (1) $100 deposit; (2) $13,960 slab draw, paid August 9, 1987; (3) $17,450 frame draw, paid September 1, 1987; (4) $17,450 dry-in draw, paid September 16, 1987; (5) $13,960 dry wall draw, paid October 30, 1987; and (6) a $6,980 final payment, to be made when the certificate of occupancy was obtained, and paid on December 1, 1987. The contract the Respondent signed and sent to the Clarks in Ohio for their signatures provided for construction to begin within 30 days and to be substantially completed within six months of commencement. Before the Clarks signed and returned the contract to the Respondent by mail from Ohio, they modified the contract to provide for a completion date of November 1, 1987. The Respondent never commented on the Clarks' contract modification and never intimated that there would be any problem with having the Clark home ready for occupancy by November 1, 1987. The Clarks made arrangements to move to their new home one weekend in October, 1987. They flew down on the Saturday before their furnishings and belongings were to arrive by moving van. When the Clarks arrived on Saturday, they were shocked to find that the home was nowhere near ready for occupancy. The Respondent explained that he was having financial problems. The Clarks asked why he accepted their draw payments and never told them that he was having financial problems and was not progressing with construction as scheduled. The Respondent offered to, and did, put the Clarks up in an apartment building he owned until the Clark home was ready for occupancy. The Respondent did not pay three suppliers or subcontractors who worked on the Clark home and who subsequently filed claims of lien. The Clarks themselves satisfied the liens, plus the claimants' attorney fees, in addition to the contract price they had paid the Respondent. These additional payments amounted to approximately $7,000. On or about October 18, 1989, a criminal information was filed against the Respondent in Case No. CTC 8926280MMANO in the County Court for the Sixth Judicial Circuit, in and for Pinellas County, Florida. The information charged the Respondent with misapplication of the Clarks' real property improvement funds in violation of Section 713.345, Fla. Stat. (1989). After a non-jury trial, the Respondent was found and adjudicated guilty as charged and was sentenced to 60 days in jail, suspended, and placed on probation for one year. Conditions of probation included the requirement that the Respondent make restitution to the Clarks in the amount of $9,036.96, payable within one year, with minimum monthly payments set at $100. The Respondent appealed from the judgment of conviction. Execution of the sentence is stayed pending appeal. The appeal was pending at the time of the final hearing. Case No. 91-0391--The Parows. On or about December 28, 1987, the Respondent entered into a contract with George and Barbara Parow for residential contruction on a residential building lot they owned in a subdivision in Pinellas County, Florida, called Windsor Woods II. The contract price was $103,892, payable as follows: (1) $5,750 deposit; (2) $14,721 slab draw, paid February 17, 1988; (3) $14,721 lintel pour draw, paid February 23, 1988; (4) $14,721 frame draw, paid March 18, 1988; (5) $19,629 dry-in draw, paid April 22, 1988; (6) a $19,629 dry wall draw, paid May 11, 1988; and (7) $14,721 final payment to be paid when the certificate of occupancy was obtained. Construction on the Parow home was to begin on January 19, 1988, and actually began on or about February 5, 1988. The Respondent did not pay several suppliers and subcontractors who worked on the Parow home and who subsequently filed claims of lien. As construction progressed, the Parows became aware of liens and discussed them with the Respondent. The Respondent assured the Parows that they all would be taken care of. Instead, more liens of other suppliers and subs were filed. On advice of legal counsel, the Parows withheld the final draw. They also decided to refinance their property in order to finish construction themselves. To do so, they had to file a civil suit in Case Number 88-013508- 023 in Circuit Court, Sixth Judicial Circuit, in and for Pinellas County, Florida. They also had the bank deposit the last draw under the contract with the Respondent into the court registry. In the course of litigation, all valid liens were paid from the money in the court registry. In addition, the Parows were required to pay $957 for a certificate of occupancy, $1,254 that the Respondent was supposed to have paid for carpeting in the home, and $628 for appliances the Parows had paid for but did not get from the Respondent. Additional items were paid by the Parows to finish the house. All told, the Parows paid about $5,000 more out-of-pocket than they should have under the contract with the Respondent, as modified by extras and changes, to complete their home. On or about October 31, 1989, a criminal information was filed against the Respondent in Case No. CTC 8928044MMANO in the County Court for the Sixth Judicial Circuit, in and for Pinellas County, Florida. The information charged the Respondent with misapplication of the Parows' real property improvement funds in violation of Section 713.345, Fla. Stat. (1989). After a non-jury trial, the Respondent was found and adjudicated guilty as charged and was sentenced to 60 days in jail, suspended, and placed on probation for one year, to run concurrent with the probation imposed in Case No. 9826280MMANO (the Clark case). Conditions of probation included the requirement that the Respondent make restitution to the Parows in the amount of $10,178.73, payable $1,000 a month. The Respondent also appealed from the judgment of conviction in the Parow case. Execution of the sentence is stayed pending appeal. The appeal was pending at the time of the final hearing.
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: (1) finding the Respondent, William C. Lovelace, guilty as charged; (2) imposing an administrative penalty in the amount of $2,000, payable within 30 days; (3) requiring the Respondent to pay the costs associated with the investigation and prosecution of these matters, payable as determined by the Board in consideration of the amount of the costs; (4) requiring the Respondent to make full restitution to the Clarks and the Parows within two years; (5) placing the Respondent on probation for two years conditioned on (a) timely payment of the fine, of the costs, and of the restitution to the Clarks and the Parows, (b) successful completion of continuing education in the areas of financial or general business practices, and (c) such other conditions of probation as the Board may deem appropriate. RECOMMENDED this 19th day of June, 1991, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1991. APPENDIX TO RECOMMENDED ORDER To comply with the requirements of Section 120.59(2), Fla. Stat. (1989), the following rulings are made on the Department's proposed findings of fact: 1.-4. Accepted and incorporated. The final draw was $14,721. Otherwise, accepted and incorporated. The $250 was designated "fines and costs," and is unnecessary. Otherwise, accepted and incorporated. 7.-8. Accepted and incorporated. 9. The $250 was designated "fines and costs," and is unnecessary. Otherwise, accepted and incorporated. COPIES FURNISHED: Robert B. Jurand, Esquire Senior Attorney Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 William C. Lovelace, pro se 1961 Cove Lane Clearwater, Florida 34624 Daniel O'Brien, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Jack McRay, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Respondent, Mark O. Holland, is a licensed registered building contractor holding license number RB 0039443. Respondent was licensed at all times material to this action. Sometime around June 19, 1986, Respondent entered into a contract with Mrs. Mary Sue Thames. Ms. Thames resided in Tennessee. The contract covered Ms. Thames' partially burned out home located at 528 Dement Circle, Panama City, Florida. Respondent was to rebuild the damaged portions of the home and to build an addition onto the home. The contract improvements were to be completed within sixty days of the contract date. The contract contemplated installment payments by Mrs. Thames, by September 5, 1986, she had paid $15,000.00 of the total contract price of $17,300.00 to Respondent. The remaining $2,300.00 was to be paid upon completion of the job. Mrs. Thames became concerned that the job was not progressing in a reasonably timely manner in September 1986 when she visited the job site from Tennessee. She observed that "nothing was done" even though the sixty day contract period had expired. Suppliers were removing items from the job that Respondent had not paid for under the contract. Mrs. Thames throughout the job had telephoned the Respondent weekly to check on the progress. Respondent would assure Mrs. Thames that he would "get right on it" and finish the job. Due to Respondent's assurances, Mrs. Thames elected to stay with Respondent so that he could complete the contract. Respondent never substantially performed the job although he did perform part of the contract. Between September 1986 and January 1987, Mrs. Thames in an effort to get the job finished, paid for supplies and materials that Respondent was contractually obligated to purchase. She paid for sheet rock, vinyl, carpet and doors. Respondent had told Mrs. Thames that he had no money to finish the job and that if she would purchase those materials he could finish the job. Mrs. Thames knew the contract obligated the Respondent to furnish the materials she purchased but was trying to work with the Respondent. The effort did not pay off. Respondent had in effect abandoned the job. As stated earlier, Respondent did not complete Mrs. Thames' job. In March 1987, Mrs. Thames' family assisted her in obtaining other subcontractors and suppliers to complete the job. She incurred costs of $8,000.00 to these subcontractors and suppliers, an amount less than the amount already paid to Respondent. Mrs. Thames testified that at least two subcontractors have not been paid by the Respondent those being Stephens Heating and Air Conditioning and M.D. Stewart Plumbing Company. Mr. Lester Stephens, owner of Stephens Heating and Air Conditioning subcontracted with the Respondent. Stephens' company roughed in the central ducts system valued at $700.00 on September 1, 1986 and as of September 27, 1988, had not been paid by Respondent. Coastal Insulation of Northwest Florida, Inc. filed a lien against Mrs. Thames' property as a result of Respondent not paying for supplies. The lien was apparently discharged by Respondent. Mr. Richard Dodson confirmed the testimony of Mrs. Thames. Mr. Dodson added that in addition to the $8,000.00 Mrs. Thames paid to complete the job, she also incurred hotel and travel bills. She also lost approximately 1 - 1/2 years worth of rental income on the house because of Respondent's misconduct and abandonment of the job. Respondent was disciplined by the Panama City Beach Board of Examiners on September 10, 1987 for misconduct and violations of the Building Regulations and Ordinances of the City of Panama City Beach during the Thames job. Respondent's competency card was revoked by the Board. Respondent has never refunded any of the contract price to Mrs. Thames.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That an administrative fine in the amount of $1,000.00 be levied against Respondent. DONE and ENTERED this 9th day of November, 1988, in Tallahassee, Florida. DIANE CLEAVINGER 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 November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2489 The facts contained in paragraphs 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraph 2 of Petitioner's Proposed Findings of Fact are subordinate. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Tectonics Section Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mark O. Holland Route A, Box 366 Youngstown, Florida 32466 Fred Seely Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 Lawrence A. Gonzalez, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact At all times pertinent to the allegations herein, the Petitioner, Pinellas County Construction Licensing Board, was the agency in Pinellas County, Florida responsible for the county-wide certification of contractors and the regulation of the contracting profession in Pinellas County. Respondent was certified as a building contractor in Pinellas County under license C-1804, and was the qualifying contractor for C&H Custom Homes, Inc., with which the complainant entered the contract in issue. On May 5, 1994, John H. and Katherine L. Buntrock and Diane M. DiBiccari entered into a purchase agreement with C&H Homes for the construction of Model 1523 with extended den, a residence to be erected at Lot 5, Maximo Moorings Bayview Addition in St. Petersburg, for a contract price of $130,000. The purchasers put $100.00 down at the time the agreement was signed, with the remaining balance of $129,900 to be paid through subsequent cash payments and a mortgage. The contract, which was signed by Respondent for C&H Homes, Inc., provided for the project to be completed within 150 days from the start of construction. Mr. Buntrock made subsequent arrangements with his bank for future draws by the contractor for the cost of construction. Somewhat later, Respondent drew $8,040 pursuant to those arrangements from the Barnett Bank, Mr. Buntrock's bank. After several weeks went by without any work being done, Mr. Buntrock contacted the bank and was told about the Respondent's initial draw. Buntrock then contacted the Respondent who said he was busy on a project and would start work on Buntrock's project when he finished his current project. Respondent indicated he had had fill dirt placed on the lot in anticipation of commencement of construction which, in fact, he did not do. He did have dirt delivered to the general area, but it cannot be determined if that dirt was for this project or other projects Respondent was working on. Respondent, however, did not pay the subcontractor for any dirt. Mr. Buntrock later paid the subcontractor the sum of $1,718.20 for the dirt. Respondent also arranged with an architect to modify plans for this particular unit for a price of $500.00 which he also did not pay. The plans were modified as requested, but no permits were ever pulled by Respondent or the architect for this project. After some time had passed without any work beginning on the property, Mr. Buntrock consulted his attorney who wrote to Respondent demanding an explanation. Aside from phone calls from the Respondent in response and many promises by the Respondent to start the project, no work on it was done by Respondent or anyone on his behalf. Finally, on October 21, 1994, more than five months after the contract was signed, when no construction had been started by the Respondent, Mr. Buntrock's attorney advised the Respondent not to do any work pursuant to the contract. Mr. Buntrock then hired Jeff Adams, another contractor, to do the work originally called for under the contract with the Respondent. When Mr. Adams was contacted with regard to taking over this project, he was told by Buntrock's attorney and the bank that the site work and the fill dirt had been paid for. This was not true. All Respondent had done was to push debris from two adjoining lots, on which he had been building, onto the Buntrocks' lot. No sitework other than scraping and clearing was done. No survey had been done and no pad building had been done. The architect's plans were merely a stock set of plans with annotations of what the Buntrocks wanted placed on them. No drawings were done specifically for this construction. The $500.00 previously paid was for making prints of the plans which had been ordered by the Respondent and which, incidentally, were not correct. Mr. Adams had to obtain additional dirt for the building site because much more was needed than what had been procured. He contacted the same subcontractor used by Respondent and was told that the dirt that was on site had not been paid for. The subcontractor threatened to file a lien on the property if it was used. Mr. Buntrock thereafter authorized Adams to pay for the dirt for which he would be reimbursed. Mr. Adams also contacted the architect who refused to release a good set of plans for this project until he was paid for those he had already provided. Once Mr. Adams started work, he finished the project within ninety days. The more than five months that Respondent consumed without working on the project was neither justified nor normal practice within the trade.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County Construction Licensing Board enter a Final Order finding Respondent guilty of the offenses alleged and imposing an appropriate penalty which may include revocation of Respondent's license and imposition of an administrative Fine of $5,000.00. DONE and ENTERED this 6th day of June, 1996, 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 6th day of June, 1996. COPIES FURNISHED: William J. Owens Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road, Suite 102 Largo, Florida 34643-5116 William H. Howell C & H Homes, Incorporated 7542 Cumberland Court Largo, Florida 34647 Howard Bernstein Senior Assistant County Attorney City Attorney's Office 315 Court Street Clearwater, Florida 34616-5165
