Findings Of Fact At all times relevant hereto, Respondent, Roger S. Williams, held registered building contractor license number RB0026339 issued by Petitioner, Department of Professional Regulation, Construction Industry Licensing board, authorizing him to perform contracting under his individual name. Respondent, Frederick S. Schreiner, held certified general contractor's license numbers CG C004811 and CG CA04811 also issued by Petitioner authorizing him to perform contracting under his individual name and under Cape Development Corporation. Williams served as president of Architectural Builders, Inc. (ABI), a development firm located in Palm Bay, Florida. Schreiner was engaged in the contracting business generally in the Brevard County, Florida area. He has done construction work for ABI and Williams for the past eight or nine years. ABI held no licenses from either the state or local governments. On October 31, 1979, ABI entered into a construction contract with Jack and Stella Oleksy to construct a home at 842 South Becker Street, Palm Bay, Florida. The contract was approved by R. S. Williams as president of ABI. At a later undisclosed date, Williams attempted to pull a City of Palm Bay building permit on behalf of ABI. Whether the City gave formal or informal approval at that point is not clear; in any event the construction of the home began shortly thereafter. Several weeks later the City's chief building official told Williams that because he did not have local competency with the City, he could not pull a permit for a job. Williams was also advised that a recent change in state law required ABI to qualify to do business if ABI intended to construct homes within the City. When told that Frederick Schreiner would be constructing the home for ABI and that Schreiner held an appropriate license, the City official told Williams to have a construction contract executed between ABI and Schreiner to build the home. Thereafter, Schreiner pulled a permit for the job and posted it on the building site. He also gave the City a contract executed by he and ABI and which was dated November 29, 1979. During the course of the construction, Schreiner visited the building site approximately six to eight times. The work was done entirely by subcontractors who had been used on other construction jobs by Williams and Schreiner. The subcontractors were paid by ABI but worked under the supervision of Schreiner. When the job was completed Williams signed the final payment affidavit on which it was indicated that Williams was the contractor on the job. Oleksy was on the site daily to inspect the work. He complained periodically about various aspects of the job to Roger Williams. His main complaint concerned the trusses on the roof which he contended were out of alignment causing a wavy and uneven roof line. After the house was essentially completed, Oleksy lodged a complaint with Williams concerning the workmanship on the roof. Williams sent a carpenter to visit the premises who found some "variations" and worked for approximately three hours to correct the problem. He was then told by Oleksy it looked okay. Within the next few days, Oleksy again complained to Williams that the roof was wavy. Williams then sent out a roofing crew to attempt to correct the problem. After they completed their work, Williams received no further indication that the owner was unhappy. Williams later had a local relator familiar with the subdivision and an experienced carpenter who had framed more than 150 homes to view the roof. Both concluded the roof was of good workmanship and of similar quality to other homes in the neighborhood. Oleksy later filed a complaint with the City of Palm Bay concerning his roof. The City sent its chief building official to inspect the home. He described the roof as being of "poor workmanship". The same conclusion was reached by the city building inspector who also inspected the property. Because of this, the City made the notation "Hold problem roof" in its file and did not issue a certificate of occupancy to Oleksy. However, the City did not construe the roof to constitute a violation of the building code. Respondents asserted that a 1979 change in the law as to the qualification of agents caused doubt and confusion as to what was required by ABI and Williams. They also point out that if indeed a violation occurred, it was not intentional. Rather, Respondents simply desired to comply with all applicable statutes and regulations so that their construction businesses could continue to operate in a lawful manner. Other than the alleged violations herein, Respondents were not shown to have been subject to any prior disciplinary proceedings.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent, Roger S. Williams, be found guilty as charged in Count I, and be given a public reprimand. the remainder of the charges should be dismissed. It is further RECOMMENDED that Respondent, Frederick L. Schreiner, be found guilty as charged of all allegations except willfully and deliberately violating a state law, and be given a public reprimand. DONE and ENTERED this 29th day of June, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1982.
Findings Of Fact At all times relevant hereto, respondent, Pedro P. Landera, was a certified general contractor having been issued license number CG C005371 by petitioner, Department of Professional Regulation, Construction Industry Licensing Board (Board), in March 1973. In January 1986 the license was suspended by the Board for three years and, except for the charges pending in this proceeding, Landera would be eligible to have it reactivated in early 1989. Thus, Landera has been without authority to use his license for the last three years. Landera did not contest the Board's suspension action and, in a settlement stipulation, admitted he violated Subsections 489.129(1)(c), (d), (e), (f) and (m), Florida Statutes (1981), by certain conduct taken in December 1983. On August 11, 1986, an individual using the name of James Burke entered into a construction contract with Charlie E. Mincey, the owner of Charlie Tires Service, 1700 N. W. 79th Street, Miami, Florida. The contract, which has been received in evidence as petitioner's exhibit 4, called for Burke, "in a timely manner," to make the following additions to Mincey's tire shop: construct a 34' X 40' room onto the existing building, erect an aluminum shed across the front of the building, including a four foot concrete slab floor, and add a five foot wall across the back side of the building. Burke represented on the contract that he held license number 254514-4. However, a search of the Board's records revealed Burke held no state license. The total price for the work was $15,650. On August 13, Mincey paid Burke $3,000 as a down payment on the job. According to Mincey, Burke began work on the additions several weeks after the contract was executed and continued to do so on and off for a few months. Eventually, a concrete block wall for the 34' x 40' room was built, but it had no roof, windows, doors, electric wiring, plumbing or paint. The aluminum shed was never built nor did Burke construct a five foot wall at the rear of the building as required by the contract. During October and early November 1986 Mincey made additional payments to Burke in the amount of $3,175, 1,000, $500, $400, $300, $300, and $40. This made a total of $8,715 paid by Mincey to Burke. Despite these payments, several subcontractors came to the job site during the same time period to unload materials but requested payment from Mincey before they would release them. Mincey paid the subcontractors $2,593.64, as evidenced by receipts received in evidence as petitioner's exhibit 7. When Burke did not return to the job site, and the project was still far from completed, Mincey attempted to contact Burke but could not find him. When he left the job site for the final time, Burke gave Mincey no notice of his intention to leave the job unfinished or any reason for doing so. Burke's whereabouts are still unknown, and there is now pending an outstanding warrant for his arrest. On September 30, 1986, a building permit application was filed with the Metropolitan Dade County building and zoning department seeking a permit for work to be done on Mincey's business. The application was filled out with three different colors of ink and in more than one person's handwriting. A carbon copy of the application has been received in evidence as petitioner's exhibit 9. The document was authenticated by a permit clerk of the Metropolitan Dade building and zoning department who identified the cashier's validation stamp, issuance date and permit number affixed to the document, all being indicia that the application was received and processed by that department. Further, the clerk attested to the fact that the carbon copy was a document normally kept in the regular course of business by her department. The application carries the signature, license number and social security number of respondent. The authenticity of respondent's signature was confirmed by a questioned document examiner whose testimony has been accepted as being credible and persuasive and was corroborated by respondent's own admission that the signature was his own. The author of the remaining writings on the document is unknown. Pursuant to the above application, a building permit was issued on October 1, 1986, for the work performed by Burke. The inspection record, which has been received as petitioner's exhibit 8, reflected that the job site was inspected by a Dade County inspector on October 1 and November 12, 1986. Also, the inspection record reflected that Gila Construction Company (GCC) was the contractor on the job. GCC is a Miami firm that Landera qualified in March 1984. Its owner is Gilbert Castillo. Mincey's building remains unfinished as of this date, and he contends the value of the work is less than the $11,308 that he paid to Burke and the subcontractors. In attempting to resolve the matter, Mincey learned that Landera's license number was on the permit application, and a complaint was eventually filed with the Board. However, prior to hearing, Mincey had never seen or talked to Landera, knew nothing of GCC, and considered the business transaction to be between he and Burke. Landera denied knowing Burke or authorizing him to use his license. Also, he maintained that he has not used his suspended license since the Board's action in early 1986. He denied signing the application in question and had no explanation as to how his signature got on the application except to suggest that someone may have obtained one with his signature and then fraudulently used the same to obtain a permit. Even so, there was no reason for Landera to sign an application during this period of time since his license was under suspension. Castillo, who owns GCC, denied knowing Burke or Mincey or having any knowledge of or participation in the Mincey job.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as set forth in the conclusions of law, that he pay a $3,500 fine, and that his license be suspended until January, 1991. DONE AND ORDERED this 10th day of February, 1989, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 10th day of February, 1989. APPENDIX Petitioner: 1-2. Covered in finding of fact 1. 3-4. Covered in finding of fact 2. Covered in findings of fact 3. and 5. Covered in finding of fact 4. Covered in finding of fact 6. Covered in finding of fact 1. Respondent: Covered in findings of fact 1 and 2. Covered in findings of fact 3 and 5. Covered in findings of fact 4 and 5. 4-5. Covered in finding of fact 8. Covered in findings of fact 2, 5 and 6. Covered in findings of fact 6 and 9. Covered in finding of fact 6. 9 Covered in findings of fact 9 and 10 COPIES FURNISHED: George W. Harrell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Luis F. DeLaCruz, Jr., Esquire 300 Sevilla Avenue Suite 313 Coral Gables, Florida 33134 Kenneth E. Easley, Esquire General Counsel 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
The Issue Whether or not the business Respondent was associated with exceeded the scope of his contractor's license concerning the type of work undertaken, as described in the Amended Administrative Complaint, thereby violating Sections 489.129(1)(j), 489.115(1) and 489.117(2), F.S.? Whether or not Respondent failed to properly supervise the job site activities on that job, thereby violating Sections 489.129(1)(m), (j); 489.119, and 489.105(4), F.S.? Whether or not Respondent committed gross negligence, incompetence, or misconduct in connection with said job in violation of Section 489.129 (1)(m), by failure to supervise the contracting activities of the contracting business he was responsible for, so that Jorge Otero, President of Deluxe Construction Co., could obtain a building permit, exceed the scope of Respondent's license, and perform work that exhibited numerous defects? BACKGROUND AND PROCEDURE At the commencement of formal hearing, the parties stipulated ore tenus that Paragraph 6 of the Amended Administrative Complaint would be further amended to read: The business Respondent was associated with exceeded the scope of his license concerning type of work, violating Section 489.129(1)(j); 489.115(1)(b); 489.117(2). Thereafter, they entered into certain stipulated facts which are reflected among additional facts as found in this recommended order. Petitioner presented the oral testimony of Lolv Jaramillo, Herbert Gopman, Jorge Otero, and Frank Abbott, and had admitted four exhibits. Respondent presented neither oral testimony nor offered any exhibit. No transcript was provided. Respondent late-filed its post-hearing proposals, but each party's proposed findings of fact have been considered and are ruled upon in the appendix to this recommended order, pursuant to Section 120.59(2), F.S.
Findings Of Fact At all times material, Respondent was a licensed certified building contractor in the State of Florida, holding license number CB C002799 and was listed as the sole qualifying agent for Deluxe Construction Company. Deluxe could have had more than one qualifying agent but it did not. Jorge Otero was the sole owner, officer, and director of Deluxe Construction Company (Deluxe). He is not now, and never has been, a licensed contractor. Deluxe was formed in 1986, and Otero operated the company out of his home. In August 1986, Deluxe contracted with Lolv Jaramillo to remodel the Jaramillo residence in Miami for $23,800. Prior to the Jaramillo job, Deluxe had remodeled or added to several other residences. On those jobs, Respondent signed the building permit applications brought to him by Otero and made periodic inspections of the work, but Respondent never accepted any compensation from Deluxe for his services as qualifying agent of the company. Respondent was employed full-time otherwise. Before the Jaramillo job, Otero had had similar relationships with other contractors. Prior to beginning construction, Respondent met the Jaramillos at their residence at the request of Otero to discuss the possibility of the Jaramillos arranging a second mortgage through the brokerage firm which was Respondent's regular full-time employer. The Jaramillos were not told, and were not aware, that Respondent was affiliated with Deluxe. They relied on no representations of Respondent in eventually selecting Deluxe to do their construction job. The eventual contract between the Jaramillos and Deluxe was not conditioned on borrowing from Respondent's regular employer, and, in fact, the Jaramillos did not borrow from Respondent or his employer and obtained their financing elsewhere. The Jaramillos eventually instructed Otero to begin work, which he did. Otero first obtained the necessary building permit by going to the building department, filling in Respondent's contractor's license number on the application there, and signing his own name as qualifier. When Otero signed for the building permit, Respondent was out of town. Otero did not inform Respondent in advance of what he was going to do nor did Respondent discover Otero had done this until much later. On all previous contracts, Respondent had signed the permit applications and made the inspections in the manner described in finding of fact 5, supra. Respondent had done nothing to encourage Otero to think he could obtain a building permit as he did for the Jaramillo job. After Deluxe began construction at the Jaramillos' home, Otero was the sole supervisor on the job. After the Jaramillos paid Deluxe $14,000 of the contract price, they became dissatisfied with the pace and quality of the work done by Deluxe and they terminated the contract. According to Harry Gopman, structural engineer, the work done by Deluxe contained violations of local construction codes, but there is no evidence that Otero, Respondent, or anyone associated with Deluxe was convicted or found guilty of any crime. The work undertaken by Deluxe included plumbing work which Respondent was not licensed to perform. The work done by Deluxe and subcontractors under its supervision contained deviations from acceptable industry practice, including rendering a major load-carrying girder useless by penetrating it for the insertion of an air duct for the central air-conditioning system; cutting a concrete doorway lintel for insertion of another air duct, thus destroying the structural integrity of that lintel; and creating a structural hazard by placing a flat roof on the rear addition which severely "ponded" in rainstorms. From the evidence as a whole, it may be inferred that Respondent originally knew he was the sole qualifying agent for Otero/Deluxe. Otero did not affirmatively tell Respondent he had another qualifying agent for the job. However, since Otero kept telling Respondent that the Jarmillos were still having trouble getting financing, it was reasonable for Respondent to believe a building permit was not needed and construction would not begin until financing was found. It was after the commencement of construction, but prior to the termination of the contract by the Jaramillos, that Otero finally informed Respondent that he had begun work on the Jaramillo residence. It is not clear whether Respondent knew that the building permit bore his license number until after the termination of the contract. Respondent never visited the Jaramillo job site during construction. Respondent did not monitor the company finances, did not review subcontractual agreements, did not review invoices from subcontractors and materialmen, and did not call for inspections on the Jaramillo job. There is unrefuted expert testimony by Frank Abbott, architect and licensed general contractor, that a qualifying agent should do the things, but there is insufficient evidence to show that Respondent had a clear understanding that such was his position for the Jaramillo job.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Construction Industry Licensing Board enter a final order dismissing all charges against Respondent. DONE and RECOMMENDED this 31st day of August, 1988, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0654 The following constitute rulings pursuant to S. 120.59(2), Florida Statutes, upon the parties' respective Proposed Findings of fact (FOF). Petitioner PFOF: 1-7, and 9-15. Accepted as modified to more exactly reflect the unrefuted testimony. 8. Accepted except for hearsay and subordinate and unnecessary material. Respondent's PFOF: 1-5, 7, 9. Accepted as modified to more exactly reflect the unrefuted testimony. 6. Rejected as stated. FOF 7 and 12 more correctly reflects the state of the record as a whole. 8. Rejected as stated because as stated it is a legal conclusion. A finding of fraud requires a finding of an affirmative intent which cannot be made upon the evidence presented. COPIES FURNISHED: David L. Swanson, Esquire Department of Professional Regulation 103 North Monroe Street Tallahassee, Florida 32399-0750 Lance Armstrong, Esquire 1035 Northwest 11th Avenue Miami, Florida 33136 Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Bruce D. Lamb, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
Findings Of Fact At all times pertinent to the allegations contained in the Administrative Complaint filed herein, Petitioner was licensed as a general contractor in Florida, holding license number CG CO20660, under which license he had qualified Custom Retail Contractors, Inc., and the Petitioner, Construction Industry Licensing Board, (Board), was the state agency charged with regulating the practice of contracting. On February 12, 1986, the Board entered a Final Order in its case number 0058164 in which it suspended Respondent's license to practice contracting for five years. This action was based on a finding that Respondent had violated several sections of the Standard Building Code in a contract to build several commercial buildings in Largo, Florida, and also had exhibited gross negligence or incompetency in several aspects of the job. Respondent was first made aware of the action of the Board in late March or early April, 1986 when his attorney, Mr. Gordon, told him he had received a copy of the Final Order. At that point, Respondent did not know there had been a hearing on his case, though he knew an action had been filed. Correspondence extracted from the files of DPR relating to Respondent, indicates that between March 11, 1986 and June 25, 1986, several phone calls and letters were exchanged between DPR legal personnel and Respondent's counsel regarding whether Respondent had been given notice that the initial Administrative Complaint against him had been filed. The complaint had been served by an investigator with DPR on Mr. Gordon who declined to accept service since he was counsel for Respondent's corporation and not Respondent, individually. The evidence further indicates that subsequent pleadings in that case were misdirected and misaddressed due to faulty addresses used by the Department which included erroneous street addresses and erroneous ZIP codes. The upshot of all this was that Respondent failed to submit an Election of Rights regarding the initial Administrative Complaint, and, after numerous attempts at communication by DPR, which included the posting of a notice of the Board hearing in the Clearwater, Florida newspaper, the Board ultimately held Respondent in default and entered the Final Order suspending his license as described above. In the Spring of 1986, however, while the communication and correspondence between DPR and Mr. Gordon was going on, Respondent was led to believe, he contends, that the Final Order was not dispositive of his status, that the status of his license was still undecided, and that he could continue to practice his profession. His reliance on advice of counsel was misplaced and works to his detriment here as it does not excuse his improprieties. Consistent with that understanding, on May 1, 1986, Respondent entered into a contract with Mr. Clarence P. Foster, owner of Clarence's, a lounge, restaurant and package store located in Clearwater, Florida, to remodel a patio outside the facility. Work was to include pouring a concrete slab in the drive- thru, constructing a block wall around the patio, installing lattice panels on top of the block wall, and placing planter boxes on two of the walls. The total contract price was $4,730.00 and on May 15, 1986, the manager of Clarence's issued a check in the amount of $1,730.00 payable to Tom Morgan, Respondent's associate. At the time of Respondent's negotiations with Mr. Foster, Mr. Foster indicated he was utilizing a contractor for the complete remodeling of his facility who did not want to do the patio work, and Respondent agreed to do it. After their contract was signed, Respondent dealt with Mr. Foster's manager who showed him the plans for the entire remodeling which, according to Respondent, included the patio. They were stamped by the contractor and had a permit number on them. Respondent contends he asked if that indicated permit included the entire project and claims he was told it did. Respondent also claims he advised Foster's manager that there was some problem with his contractor's license but was assured that the master permit already issued would cover any work done by him under the terms of the individual contract. After receiving the down payment from the manager, Respondent purchased the required materials, paying cash therefore, and started work. Respondent relates that at the very beginning, a violation was written by building inspectors for the failure of the electrical contractor to procure a permit for his portion of the work. When this was done, the contractor immediately got the required permit after the fact and continued with his work. This concerned the Respondent, however, and he requested the manager to bring the existing permit for the remodeling around to the area where Respondent was working where he posted it and covered it with cellophane. When the inspector subsequently came by to check Respondent's work, he asked where the permit for that portion of the construction was and Respondent pointed to the master permit. The inspector then indicated that that permit was only for exterior siding and when Respondent protested that decision, called his office and verified that fact. Upon being advised of this development, Respondent then took the plans he had been furnished and a copy of the permit to the building office and asked the clerk on duty what he had to do. According to Respondent, he was advised that he needed to get more plans prepared with a certificate that the work already done had been done to code. Respondent relates that in response to these instructions, he procured an architect to come and look at the job as it then stood. The architect reportedly thereafter drew up plans and certified the quality of the work already accomplished by Respondent and Respondent allegedly took this information to the building department where, on June 25, 1986, he applied for a building permit to do the work. At that time, according to Respondent, he advised the clerk he had a problem with his license and that all he wanted was a supplemental permit to finish the job. Approximately two weeks later, when passing the County building, Respondent stopped in at the building department office to check on the status of his permit. It was at this point that he first discussed the matter with Mr. Palmer, the plans examiner, who told him that his license had been suspended and that he could not receive a permit to do the work requested. Respondent returned to Mr. Foster and explained the situation to him. Mr. Foster turned the matter over to his manager who arranged for someone else to get the permit and complete the job. Respondent contends he was not trying to trick anyone or to contract without a license. He claims that at the time he entered into the agreement with Mr. Foster, he was unsure of the status of his license and he thought he had made that clear to everyone, including Mr. Foster and the people at the building office. Respondent contends that in his dealings with Foster he was attempting to deal as a subcontractor and not as a general contractor. The fact is, however, that the contract he entered into was a separate contract with Mr. Foster and failed to indicate any reference to subcontractor status. The agreement called for Respondent to be paid directly by Foster and not by the general contractor and his claim is, therefore, not believed. Respondent's protestations in this regard are without merit. Further, his story regarding the permit status is equally as unbelievable. As a qualified contractor, Respondent knew, or should have checked on, the limits of the permit issued and whether it would cover the work he was to do. Reliance on the representations of the non-contractor manager of Mr. Foster's facility as to the status of the permit was unreasonable and constituted gross negligence. Consequently, he was thereafter operating in violation of the local law which required a permit for this work. As a result of the ongoing negotiations between Respondent's counsel and counsel for the Board, on July 10, 1986, after the contract between Mr. Foster and Respondent had been entered into, Respondent and the Board entered into a Settlement Stipulation which called for amendment of the Final Order entered in the prior case and which provided for the payment of a fine of $1,000.00 within 30 days with the further stipulation that when the fine was paid, the previously imposed five year suspension would be set aside. In the event the fine was not paid, however, then the Respondent's license was to be relinquished to the Board. The Amended Final Order was sent by certified mail to the Respondent but was unclaimed because the address used by the Department was, again, incorrect. It must also be noted, however, that at the time the Board agreed to the settlement stipulation, it had available to it the report of investigation relating to the current Administrative Complaint. The Board either failed to consider it or chose to ignore it when it agreed upon a settlement to the former Administrative Complaint. It is also noted that the Board was aware of the difficulties involving service of process as early as August, 1986. At that time, Respondent received a certified letter from the Board Attorney indicating that final action on his license would be taken by the Board at its September, 1986 meeting in Ft. Lauderdale. Respondent attended that meeting where, after discussion, counsel for the Board convinced the Board to reopen the case due to the questions involving proper service of its former actions. A year later, in July, 1987, Respondent was advised that the reopened case would again be considered at the Board's meeting in Tampa, and at the 1987 meeting of the Board, it entered its Amended Final Order. Though regrettable, these factors are not controlling and do not affect this current action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that the Respondent's license as a general contractor in Florida be suspended for two years. RECOMMENDED this 11th day of July, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1999 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. 3. Accepted and incorporated herein. 4 - 5. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. 10 - 13. Accepted and incorporated herein. Accepted that Palmer refused to issue the permit because Respondent's license had been suspended. Accepted and incorporated herein. Rejected that Respondent willfully violated local building code. Evidence shows more of gross negligence than willfulness. Accepted. For the Respondent: No submittal. COPIES FURNISHED: Belinda Miller, Esquire, Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0758 Fred H. Moore 12687 - 97th Street, North Largo, Florida 34643 Fred Seely, Executive Director DPR, Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
Findings Of Fact At all times material hereto, Respondent has been a registered residential contractor having been issued license number RR 0040275. In approximately 1980, Respondent entered into a contract to erect a screen room for a Mr. Lewis. Under the terms of the contract, Respondent was to obtain the necessary building permit. After the contract had been signed, Respondent's grandfather died, and Respondent therefore went to New Jersey. He left the permit application with his qualifying agent to sign and process through the building department. When Respondent returned from New Jersey approximately 30 to 35 days later, he went to the Lewis job site and found the project almost completed. Respondent did not check to ascertain if the permit had been obtained, but rather completed the screen room himself. Lewis subsequently contacted Respondent to say that he had received a notice of violation from the building department for erecting a screen room without a permit. Respondent contacted the building department and advised that it was not Lewis's fault, but rather that it was Respondent's responsibility to pull the permit. Respondent was charged with unlawfully erecting a screen room without a permit; he appeared in court and pled guilty; and he paid a $250 fine pursuant to the adjudication of guilt entered on April 20, 1981, in the County Court in and for Dade County, Florida, in Case No. 81-50438. On June 24, 1981, Respondent submitted to the Construction Industry Licensing Board a Contractor's Registration application. On that application, Respondent answered in the negative the following question: "Has any person named in (i) below ever been convicted of any offense in this state or elsewhere other than traffic violations?" At the time Respondent gave that answer, he believed it to be true. He understood the question to call for information on criminal acts and did not comprehend the "screen room" charge to have been criminal conduct. Since Respondent answered that question in the negative, his application for registration was processed in accordance with normal procedures. Had Respondent answered that question in the affirmative, his application would not have gone through normal processing but rather would have been presented to the Construction Industry Licensing Board for the Board's determination of whether to approve the application based upon a consideration of the facts. On November 22, 1982, Respondent contracted with Naomi Blanton to construct an addition to Blanton's home located in the City of Miami, in Dade County, Florida, for a contract price of $11,250. When Respondent had first met with Blanton several months earlier, he had told her he could guarantee completion of the project within 45 days. No contract was entered into at that time, however, since Blanton had not obtained the financing she needed in order to construct an addition. When the contract was signed on November 22, Respondent told Blanton he would start the job when he finished the Chamber of Commerce building he was con structing but that he was starting a 12-unit duplex project around Christmas and would not be able to guarantee any 45-day completion deadline. Accordingly, when the contract was signed, no completion date was included in the terms of that written contract, since Respondent did not know when he could guarantee completion. The Blanton contract written by Respondent specifically provided that Respondent would obtain the building permit. On December 22 and 23, 1982, two of Respondent's employees arrived at the Blanton job site, dug a trench, knocked down the utility room, and moved Mrs. Blanton's washing machine. No further work was done until January 1983. Since Respondent knew that he was required to obtain the building permit before commencing any construction work, Respondent submitted his plans and permit application to the City of Miami Building Department. After the plans had been there about a week, he was advised that his plans would not be accepted unless they were drawn by an architect, although that is not required by the South Florida Building Code. After attempting several more times to obtain approval from the City of Miami Building Department, Respondent hired an architect to redraw the plans and secure the building permit. By this time, Respondent found himself unable to concentrate on operating his business efficiently, since he was preoccupied with spending time with his father who was dying of cancer. Also by this time, Blanton had commenced telephone calls to Respondent on an almost daily basis as late as 11:00 p.m. at his office, at his home, at his mother's home, and at his father's home. Respondent offered to return Blanton's deposit, but she refused to cancel the contract and threatened Respondent that she would sue him if he did not comply with that contract. Respondent commenced working on the Blanton job, although no permit had yet been obtained. The contract on the Blanton job called for payments at certain stages of the construction. By January 27, 1983, Respondent had completed a sufficient amount of the work under the contract so that Blanton had paid him a total of $8,270 in accordance with the draw schedule contained in the contract. Respondent ceased working on January 27, 1983, and advised Blanton and her attorney that he would do no further work until he could obtain the building permit, which he had still not been able to obtain. Although he told them his work stoppage was due to his continued inability to obtain the permit, he also stopped work due to his father's illness and his continued inability to get along with Mrs. Blanton. A delay occurred with the plans being redrawn by the architect Respondent hired to obtain the Blanton building permit, since the architect needed information from Blanton and she was out of town. After Blanton returned, the architect made unsuccessful attempts to obtain the building permit. Respondent and his architect were finally able to speak to one of the top personnel in the City of Miami Building Department about the problems they were experiencing in obtaining a building permit, and, at about the same time, Blanton contacted that same individual to complain that Respondent had no permit. On May 4, 1983, the building department finally accepted the second permit application together with the plans drawn by the architect, and the building permit was issued on May 4, 1983. No work was performed on the Blanton job between January 27, 1983, when Blanton paid Respondent the draw to which he was entitled by that date, and May 4, 1983, when the building permit was finally issued by the City of Miami. Respondent immediately resumed work and quickly completed the next stage of construction called for under the Blanton contract. Upon completing that next stage, he requested his next draw payment; however, Blanton decided not to pay Respondent for the work completed and had her attorney advise Respondent not to return to the job site. Blanton then had a friend of her son come to Miami from Wisconsin to complete the addition to her home. At all times material hereto, Respondent held a certificate of competency issued by Metropolitan Dade County.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of violating Section 489.129(1)(d), Florida Statutes, by willfully and deliberately violating Section 301(a) of the South Florida Building Code; imposing an administrative fine against Respondent in the amount of $2,000 to be paid by a date certain; and dismissing the remaining charges contained in the Administrative Complaint, as amended, against Respondent. DONE and RECOMMENDED this 13th day of April, 1984, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 1984. COPIES FURNISHED: Douglas A. Shropshire, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Joseph F. Scioli, Jr. 246 North Krome Avenue Florida City, Florida 33034 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 Prior to March of 1981, Maxmedia held permits 8463-6 and 8462-6 issued by the Department for signs on property leased from Lust Industries located approximately at the intersection of U.S. 17/92 and Virginia Avenue in the city of Orlando, Florida. On March 23, 1981, Maxmedia advised the Department that the sign for which it held the above permits had been dismantled, and permits numbered 8463-6 and 8462-6 were returned to the Department for cancellation. On March 18, 1981, the Department received the application of Lust Industries for a sign at the location where the Maxmedia sign had been permitted, to be erected on property owned by Lust Industries. This application contained several irregularities, and the Department accepted it as an application only for the south face of the proposed sign. On May 27, 1981, the Department received the application of Lust Industries for the north face of this sign. The requested permits were issued by the Department on May 27, 1981. On February 24, 1981, Maxmedia executed a lease to property located approximately 30-50 feet south of the Lust Industries property. The term of this lease was to run from April 1, 1981 to April 1, 1984. On March 21, 1981, the Department received an application from Maxmedia for permits to erect signs at the location 30-50 feet south of the location owned by Lust Industries where Maxmedia had permits until it surrendered them. These permits were denied by the Department because of the permit application already received from Lust Industries for a sign 30 to 50 feet to the north. On March 23, 1981, Maxmedia applied to the city of Orlando for a building permit to erect the sign at its leased location south of the Lust Industries property, and this permit was issued to Maxmedia by the city. In January or February, 1981, Lust Industries had applied to the city of Orlando for a permit to build a sign on property near the sign of Maxmedia which was dismantled in March of 1981, but the requested city permit was denied because of the proximity of this location to the Maxmedia sign. After, the Maxmedia sign had been taken down, Lust Industries again applied for a city of Orlando building permit, but this was after the city permit had already been issued to Maxmedia; thus, the city again denied a permit to Lust Industries due to the existence of the outstanding permit held by Maxmedia. In May or June of 1981, after having received a building permit from the city of Orlando, and after having leased the property, Maxmedia proceeded to erect the sign 30-50 feet south of the Lust Industries property. It is this sign that is the subject of the Department's violation notice issued on June 30, 1982. It is the existence of this sign of Maxmedia, permitted by the city of Orlando, and erected on land currently leased, that prevents Lust Industries from obtaining the city of Orlando building permit it needs in order to be able to erect a sign 30 to 50 feet to the north. Thus, the Department seeks to revoke the state permits it issued to Lust Industries which violate the harmony of regulations provisions of the statutes and rules.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue its Final Order revoking the permits held by Lust Industries, dismissing the Notice of Violation against Maxmedia, Inc., and granting the application of Maxmedia, Inc., for permits as requested in its application received on March 24, 1981. THIS RECOMMENDED ORDER entered on this 18th day of April, 1984, in Tallahassee, Florida. WILLIAM B. THOMAS 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 April, 1984. COPIES FURNISHED: Charles G. Gardner, Esquire Haydon Burns Building, M. S. 58 Tallahassee, Florida 32301-8064 William F. Poole IV, Esquire 644 West Colonial Drive Orlando, Florida 32802 Gerald S. Livingston, Esquire P. O. Box 2151 Orlando, Florida 32802 Paul N. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
