Findings Of Fact At all material times, Respondent has been a certified general contractor, holding license number CG CA19293. In September 1983, he was, according to a form filed with Petitioner, "legally appointed to act for [Ebbtide Construction & Development, Inc.] in all matters connected with its contracting business, and given authority to supervise construction undertaken by the business organization." Ebbtide was engaged in the home construction business. Paul Gregg purchased Ebbtide in 1988. Respondent still served as an employee and primary qualifying individual for the corporation. Erroneously believing that at least three persons were required by law to serve as officers of the corporation, Mr. Gregg appointed Respondent and a third person to serve as officers and directors with Mr. Gregg, who owned all of the stock of the company. On August 27, 1991, Mr. Gregg, on behalf of Ebbtide, entered into a construction contract with Richard and June Cote, who were neighbors of Mr. Gregg in Connecticut. The contract calls for the Ebbtide to construct a certain style of home for the Cotes. In return, the Cotes would pay Ebbtide a total of $72,500. The contract intentionally omits the location of the homesite because, at the time of the execution of the contract, neither party knew where the house would be built. The contract inadvertently fails to require Ebbtide to purchase a lot for the Cotes, but the total contract price was to include a lot. The contract was contingent on financing. If the Cotes failed to obtain financing, "either party may cancel this Contract." The contract does not provide that Ebbtide could retain any part of the money paid by the Cotes in the event of cancellation for the Cotes' failure to obtain financing, nor did the parties so intend. On November 1, 1991, the parties executed a new contract. The new contract was identical to the original contract, except that a $15,000 pool had been added and the cost of the house increased $5000. The total was now $92,500. The contract reflects the fact that the Cotes had now paid Ebbtide a total of $18,500 in deposits. At the time of the execution of the November 1 contract, the parties still had not identified a lot on which Ebbtide could build the home. Sometime in early 1992, the Cotes found a lot with Mr. Gregg's assistance. The Cotes applied for a mortgage loan, contemplating a closing during the summer. The Cotes were approved for the loan on April 27, 1992, but were unable to close due to a title problem with the lot. Respondent had nothing to do with the location of the lot. Mr. Gregg was the only person on behalf of Ebbtide involved with this aspect of the transaction. Later, Mr. Gregg, on behalf of Ebbtide, located another lot, in which he owned an interest. For some reason, however, this lot also proved unsuitable. When the second lot fell through in March 1993, the Cotes demanded of Mr. Gregg that Ebbtide return their money, which had been deposited in Ebbtide's general account and used for general overhead. Mr. Gregg did not do so, and months went by without any progress. Mr. Gregg showed real interest in the problem only after the Cotes complained to Petitioner. Without denying liability for the deposit, Mr. Gregg has not returned any of the money, nor has he worked out a repayment plan. Although Respondent was a signatory on the company's checking account, he only became involved in financial matters when a construction account was set up for a house for which construction had actually started. Otherwise, Respondent did not involve himself in financial matters and limited himself strictly to the supervision of construction. When Mr. Gregg purchased the company in 1988, Respondent was a salaried employee. Respondent remained a salaried employee, without commissions or bonuses, until he left the company. In fact, his salary was never increased. Worried about the financial condition of Ebbtide, Respondent withdrew his license from the company on December 9, 1993.
Recommendation It is RECOMMENDED that the Construction Industry Licensing Board enter a final order dismissing the Administrative Complaint. ENTERED on March 27, 1995, in Tallahassee, Florida. ROBERT E. MEALE 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 on March 27, 1995. APPENDIX Rulings on Petitioner's Proposed Findings 1: adopted or adopted in substance. 2: rejected as irrelevant. 3-5: adopted or adopted in substance. 6: rejected as unsupported by the appropriate weight of the evidence. 7-15: adopted or adopted in substance. 16-19: rejected as subordinate. 20: adopted or adopted in substance. 21-23: rejected as subordinate. 24-26: adopted or adopted in substance. 27: rejected as subordinate and irrelevant. 28-29: adopted or adopted in substance. 30-35: rejected as irrelevant. 36-37: rejected as unsupported by the appropriate weight of the evidence. Rulings on Respondent's Proposed Findings 1-5: adopted or adopted in substance. 6-11: rejected as irrelevant. COPIES FURNISHED: Daniel O'Brien Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 Kelly Anne Cruz Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 David J. Hayes 17131 Pleasure Rd. Cape Coral, FL 33909 Linda Goodgame, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 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
The Issue The issues in this case are whether Respondent violated Subsections 489.129(1)(g)1., (j) and (m), Florida Statutes (2004),1/ and, if so, what penalty should be imposed.
Findings Of Fact The Parties At all times relevant to this proceeding, Respondent was a certified general contractor in the State of Florida, having been issued License No. CG C1507065. Respondent's license as a general contractor was first issued on April 12, 2004, and is current and active. At all times relevant to this proceeding, Respondent was part-owner and the qualifying agent of a Florida corporation named Golden Rule Construction Group, Inc. (hereinafter referred to "GRCG"). The Board is the state agency charged with regulating the practice of contracting in the State of Florida pursuant to Chapters 455 and 489, Florida Statutes. Facts Related to Freedman Property On or about June 1, 2005, Barry Freedman (hereinafter referred to as "Freedman") entered into a contract to construct a room addition and remodel a bathroom at Freedman's residence at 2349 East Manor Avenue in Port St. Lucie, Florida. The pre-printed contract indicated that the contractor was GRCG. Also, the letterhead on the contract included the name "Golden Rule Construction Group, Inc." and the company's address, telephone number, fax number, and Respondent's general contractor's license number. The contract was executed by Freedman, as the homeowner, and Steve DiBenedetto (hereinafter referred to as "DiBenedetto"), as the contractor. All negotiations and presentations relative to the contract were between Freedman and DiBenedetto. The contract price was $52,652.00. Of this amount, Freedman paid $14,657.00, all of which was accepted by DiBenedetto as contractor for GRCG. Initially, on or about May 31, 2005, Freedman gave DiBenedetta a $10,000.00 check as a deposit for the construction project. On or about July 13, 2005, Freedman gave DiBenedetto a $4,657.00 check as a second payment under the contract. The payee on both checks was GRCG. DiBenedetta and a man identified as John Smith3/ commenced the bathroom remodeling project in June 2005 and satisfactorily completed that project by September 2005. The bathroom remodeling project was started and completed, even though no building permit had been pulled. Based on representations of DiBenedetta and/or John Smith, Freedman believed no permit was necessary for the bathroom remodel.4/ The Contract does not delineate or specify the cost of the room addition and the cost of the bathroom remodeling project. However, the value of the bathroom remodel was estimated by a qualified independent third party to be $7,804.00. The room addition was to begin in September or October 2005, after the plans for the addition were completed. The plans were never provided by GRCG, and it never commenced work on the room addition as provided for in the Contract. Eventually, Freedman went to the architect and purchased the plans for the room addition in order to move forward on the project. After completing the bathroom remodel, GRCG abandoned the project and never began the room addition that was provided for in the contract. The amount paid by Freedman to GRCG, $14,657.00, exceeds the value of the work performed by $6,853.00. Facts Related to Ekstrom Property On or about October 28, 2004, Larry Ekstrom (hereinafter referred to as "Ekstrom") entered into a contract (hereinafter referred to as "Ekstrom Contract") with GRCG to construct a new home a 117 Creek Drive in Port Charlotte, Florida (hereinafter referred to as "Eckstrom property"). The Ekstrom Contract was executed by Ekstrom, as the owner, and Keith Powell, as the contractor. The Ekstrom Contract price was $808,306.31. The Ekstrom Contract provided that work on the construction project was to commence upon issuance of the permit by Charlotte County. In accordance with that contract, after the permit was issued, GRCG began work on the construction project at the Eckstrom property. Eckstrom's understanding was that, pursuant to the Eckstrom Contract, GRCG would request periodic payments from Eckstrom that would be used to pay for materials, suppliers, and sub-contractors. Ekstrom made two payments to GRCG as payment for the project under the Ekstrom Contract. The first payment in the amount of $40,420.00 was made on October 29, 2004, when the Ekstrom Contract was fully executed. The second payment in the amount of $82,900.59 was paid to GRCG on or about March 3, 2005, as a "progress payment" under the terms of the Ekstrom Contract. On or about July 1, 2005, a Claim of Lien was recorded against Eckstrom's property by Tom Brunton Masonry, Inc. (hereinafter referred to as "Brunton Masonry"), for $18,029.91. The Claim of Lien was for the unpaid costs of labor, services, and materials furnished by Brunton Masonry for improvements to the Ekstrom property at 117 Creek Drive from April 2005 until May 2005. According to the Claim of Lien, Brunton Masonry provided the subject labor, services, and materials pursuant to a contract it had with GRCG. The Claim of Lien indicated that the total value of the labor, services, and materials furnished by Brunton Masonry was $39,243.91, "of which there remains an unpaid balance of $18,029.91." Eckstrom successfully negotiated with Brunton Masonry and the $18,029.91 lien was reduced to $14,000.00. On or about October 25, 2005, Eckstrom paid Brunton Masonry the negotiated amount of $14,000 to satisfy the Claim of Lien. On or about August 2, 2005, a Claim of Lien was recorded against the Eckstrom property by Murphy Concrete Works, Inc. (hereinafter referred to as "Murphy Concrete"), for $35,400.00. The Claim of Lien was for labor and material furnished by Murphy Concrete to perform concrete work on the Eckstrom property in accordance with a contract with GRCG. According to the Claim of Lien, the subject labor and materials were furnished between March 4 and 11, 2005. In order to remove the lien from his property, in or about September 2005, Eckstrom paid Murphy Concrete $35,400.00 to satisfy the Claim of Lien. Eckstrom paid a total amount of $49,400.00 to satisfy the above-referenced liens against his property. In April, May or June 2005, Eckstrom had a conversation with Keith Powell, in which Powell told Eckstrom that there was a company takeover by one of GRCG partners. In or about early summer 2005, GRCG stopped work on the Eckstrom property. Prior to that time, GRCG scraped and filled the lot and put in the foundation footers and stem wall. Prior to the liens being recorded against the Eckstrom property and after GRCG had ceased working on the property, Mr. Powell talked to Eckstrom and offered to complete the construction project. However, because previous discussions and representations with Powell had not yielded any positive results, Eckstrom had no confidence in Powell and, thus, did not accept Powell's offer. After GRCG ceased work on the Eckstrom property for more than 90 days, Eckstrom contracted with Towles Corporation to complete the construction project. Towles completed the construction of the house at a cost of $934,000.00.5/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, the Department of Business and Professional Regulation, Construction Industry Licensing Board, enter a final order: (1) finding that Respondent, Keith C. Powell, violated Subsections 489.129(1)(g)1., (j), and (m),6/ Florida Statutes, and imposing a $1,000.00 fine for each violation, for a total of $3,000.00; (2) requiring Respondent to make restitution to Barry Freedman in the amount of $6,853.00; (3) requiring restitution to Larry Eckstrom in the amount of $49,400.00; and (4) requiring Respondent to attend a minimum of seven additional hours of continuing education. DONE AND ENTERED this 31st day of January, 2008, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2008.
Findings Of Fact J & G Painting, Inc. and N. Sinha Corp. submitted bids for DOT Project Number 87200-3463. The bid of J & G Painting, Inc. for $69,887 was the low bid. The bid of N. Sinha Corp. of $81,413, was the next lowest bid. (Exhibit 2). The Florida Department of Transportation tabulated the bids and proposed to award the contract to J & G Painting, Inc. N. Sinha Corp. protested the intended award because: (1) the front page of the bid proposal of J & G did not contain, on the first line, the name of J & G Corp., (2) the signature page for the bid proposal of J & G contained a blank relating to an addendum to the contract, and (3) J & G never initialed any changes made on the price extension sheet of its bid proposal. Bidders commonly fail to write their name on the first page of bid proposals. A review of the entire proposal makes clear that the proposal came from J & G Painting, Inc. A pre-bid conference for this contract was held on September 17, 1987. Attending the conference was not mandatory. Certain addenda to the contract were discussed at the meeting, which are contained in the minutes of that meeting. (Exhibit 3). Because no representative of J & G attended the pre-bid conference, the President of J & G, George Kareovlias, called the Department to determine if any changes to the original bid proposal were announced at the conference. The only change of any significance was an increase in the liquidated damages provision of the contract from $100 per day to $300 per day no evidence that initialing of any changes made with white-out is required.
Recommendation It is recommended that the Florida Department of Transportation award the contract for Job Number 87200-3463 to J. & G Painting, Inc. DONE AND ORDERED this 18th day of November, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1987. APPENDIX TO RECOMMENDED ORDER All findings of fact proposed by the Department of Transportation are incorporated in the Recommended Findings of Fact. No proposals were filed by N. Sinha Corp. COPIES FURNISHED: Brant Hargrove, Esquire Department of Transportation Haydon Burns Building, MS-58 605 Suwannee Street Tallahassee, Florida 32399-0458 N. Sinha Corporation Post Office Box 5461 Hialeah, Florida 33014 Kaye N. Henderson Secretary Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Thomas H. Bateman, III General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458
