The Issue The issue presented is whether the Respondent committed the offenses alleged in the Administrative Complaint, and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, Respondent, Manuel Cabanas was licensed as an electrical contractor and held license number ER 0006946 issued by Petitioner, the Electrical Contractors' Licensing Board. On or around December 13, 1988, the Construction Trades Qualifying Board of Dade County, Florida (Board) charged Respondent with the misrepresentation of material facts concerning his employment or work status on documents submitted with his application to obtain a business certificate of competency. A hearing on the charge was held before the Board on January 3, 1989. At the hearing, Respondent initially pled not guilty, but changed his plea to no contest sometime after a Board member advised Respondent that his testimony indicated that he was actually guilty of the charge. On January 6, 1989, Respondent was notified by the Board that after hearing all the testimony, a determination had been made that Respondent was guilty of the charge. As discipline for his act, the Board revoked Respondent's certificate of competency.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered suspending Respondent's license number ER 0006946, conditioned upon reinstatement of the local license as long as Respondent intends to practice in the jurisdiction of the Construction Trades Qualifying Board of Dade County, Florida. As to any other jurisdiction, the appropriate penalty is suspension of Respondent's license number ER 0006946 for a period of six months. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of December 1989. JANE C. HAYMAN 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 Administrative Hearings this 21st day of December 1989.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the factual stipulations of the parties, the following relevant facts are found: Respondent Melvin A. Grosz is a registered residential contractor, having been issued license number RR 006311. He has been licensed since the 1960s. COUNT I In November of 1950, respondent entered into a contract with W. J. Murphy to install windows and do other renovation work on Mr. Murphy's residence located at 3312 N. San Miguel, Tampa, Florida. Respondent received from the Murphys an advancement in the amount of $1,250 for the work to be performed. While respondent did do some cleaning work, he failed to do any further work or supply any labor in performance of the contract. In February of 1951, respondent executed a "Stipulation of Settlement and Promissory Note" with the Murphys, agreeing that he failed to perform any work or supply any labor, acknowledging that he owed the Murphys $1,250 and agreeing to pay the Murphys $250 per month for five consecutive months beginning on March 10, 1951. As of the date of the hearing in this matter, respondent had made no payments to the Murphys. COUNT II On or about October 9, 1980, respondent entered into a contract with Vera Reid for the sum of $3,245 to do certain remodeling on her residence at 203 North Tampania Street, Tampa, Florida. After having completed about 40 percent of the construction work and after having received $3,100 of the contract amount, respondent abandoned the Reid construction project during December of 1950. COUNT III On or about December 19, 1980, respondent entered into a contract with James F. and Mary L. Stewart to construct a residence in Lutz, Florida, on a sliding total price basis not to exceed $25,000. Respondent was to be the general building contractor and as to coordinate and supervise all subcontractors and perform other duties. Pursuant to his contract with the Stewarts, respondent did obtain the first subcontractor and did some preliminary work. Respondent received $1,300 from the Stewarts, but performed only minimal work, valued at approximately $300, prior to abandoning the Stewart project. Respondent's promises to repay the Stewarts were never fulfilled. COUNT IV In June of 1981, a direct information was filed against the respondent charging that, on March 21, 1981, he unlawfully obtained or used windows belonging to another, the value of said windows being in excess of $100. On March 2, 1952, respondent entered a plea of nolo contendere to a charge of grand theft in the second degree. The Circuit Court of Hillsborough County entered an Order on March 2, 1952, withholding adjudication of guilt, and placing respondent on probation for a period of two years. As a condition of probation, respondent was to make restitution in the amount of $423.92, with probation to terminate automatically upon the payment of such restitution. The respondent did subsequently make the required restitution payment. COUNT V On or about September 1, 1951, the City of Tampa revoked respondent's Certificate of Competency due to his violation of Tampa Code, Chapter 45, Article III, Division 4, Section 45-75(c). This action was based upon his abandonment of the Reid project discussed in Findings of Fact (4) and (5) of this Recommended Order. MITIGATION Respondent admits the factual allegations and charges set forth above. He states that during the times involved in these charges, he was experiencing numerous family and financial problems, was taking antidepressant medication and was unable to function properly, and his daughter was involved in a serious accident. He no longer takes medication and feels that he is now capable of working. Respondent desires to pay the Murphys, Stewarts and Ms. Reid the monies he owes them and feels that he would be able to do so within 90 to 120 days if given the opportunity to work as a registered residential contractor.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that respondent be found guilty of violating Section 459.129(1)(b),(h),(i) and Florida Statutes (1979), that an administrative fine in the amount of $500 be imposed against him and that respondent be placed on probation for a period of six (6) months. If, at the end of six (6) months respondent has not made restitution to the Murphys, the Stewarts and Ms. Reid, respondent's certificate of registration as a contractor should be revoked. Respectfully submitted and entered this 12th day of May, 1983, in Tallahassee, Florida. DIANE D. TREMOR, 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 12th day of May, 1983. COPIES FURNISHED: John O. Williams, Esquire Mr. James Linnan 547 North Monroe Street (Suite 204) Executive Director Tallahassee, Florida 32301 Construction Industry Licensing Board Melvin A. Grosz Post Office Box 2 2511 Marlin Avenue Jacksonville, Florida 32202 Tampa, Florida 33611 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
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
Findings Of Fact The Respondent entered into a contract with Anthony Cocco and his wife in August of 1977, to construct a single-family residence. By June of 1978, work on the project had virtually ceased, although Respondent caused some landscaping work to be done after that date. In October, 1978, Respondent gave notice to Cocco of a default on the contract. This led to civil litigation on the contract between the parties which was unresolved at the time of the subject hearing. Respondent was licensed as a residential contractor in 1970. See Petitioner's Exhibit #1. The Respondent was also licensed at the time of the hearing. See Petitioner's Exhibit #2. No evidence was received that the Respondent was licensed at any time between the date he entered into the contract with Cocco and the date that Respondent gave notice of default. Regarding the Respondent's licensure between August of 1977, and October, 1978, the only evidence received was the Petitioner's Exhibit #2, which states in pertinent part: ... Said licensee was licensed September 1970 and has been current for all years licensed.
Recommendation Therefore, based on the foregoing Findings of Fact and Conclusions of Law, the Respondent's Motion for Directed Verdict is granted, and it is recommended that this cause be dismissed. DONE and ORDERED this 19th day of April, 1982, 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 19th day of April, 1982. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Michael E. Egan, Esquire 217 South Adams Street Post Office Box 1386 Tallahassee, Florida 32302 Jane E. Heerema, Esquire 217 South Adams Street Post Office Box 1386 Tallahassee, Florida 32302 George E. Tragos, Esquire 487 Mandalay Avenue Clearwater Beach, Florida 33515 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 C. B. Stafford, Executive Director Board of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
