The Issue Whether Respondent operated as a contractor under the name of Olen Homes, in violation of Section 489.129(1)(g), Florida Statutes by failing to qualify as a contractor under said name. Whether Respondent failed to pay a subcontractor for services performed in violation of Section 489.129(1)(m), Florida Statutes.
Findings Of Fact Petitioner is the state agency charged, in conjunction with the Construction Industry Licensing Board, with the responsibility to prosecute administrative complaints pursuant to Chapter 489, 455, and 120, Florida Statutes, and the rules promulgated pursuant thereto. At all times material to the Administrative Complaint, Respondent Milton W. Olen was a certified residential contractor in the State of Florida, holding license number CR C024221. At all times material hereto, Respondent's licensure was registered with the Construction Industry Licensing Board, as an individual, and the Respondent did not qualify Olen Homes. On or about November 9, 1987, the Respondent's company, Olen Homes, contacted Donald L. Grider of "A Final Touch Cleaning Service" to provide the final cleanup on a home the Respondent was constructing at 1255 Kelso Boulevard, Orange County, Florida. A Final Touch Cleaning Service completed the cleanup on November 30, 1987, and an invoice was mailed to Olen Homes in the amount of $1,014.00, on December 9, 1987. Donald L. Grider mailed a second copy of the invoice to Olen Homes on January 22, 1988. On February 19, 1988, Respondent acknowledged the debt, but stated he was having financial problems. He promised to pay off his bills. Mr. Grider demanded full payment for the job by letter dated August 8, 1988. Mr. Grider received a document from the Respondent on or about August 15, 1988, which Respondent claimed relieved him of responsibility for payment of Mr. Grider's bill. On September 19, 1988, Mr. Grider forwarded documents to the Respondent which indicated the Respondent was responsible for payment. Mr. Grider has not been paid any sum by the Respondent as of April 17, 1990, the date of the formal hearing in this matter. Respondent previously received a letter of guidance from the Board on November 19, 1988.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondent be found guilty of contracting or acting in the capacity of a contractor, under the name of Olen Homes when his license was registered with the Construction Industry Licensing Board as an individual. Section 489.129(1)(9), Florida Statutes. It is recommended that an administrative fine of $250 be imposed. Respondent be found guilty of misconduct by failing to pay a subcontractor for services rendered under a contract with Respondent. Section 489.129(1)(m), Florida Statutes. It is recommended that an administrative fine of $1500 be imposed. DONE AND RECOMMENDED this 14th day of May, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 14th day of May, 1990. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. PETITIONER'S PROPOSED FINDINGS Adopted in full. Respondent did not file proposed findings. COPIES FURNISHED: G. W. Harrell, Esquire Kenneth D. Easley Department of Professional General Counsel Regulation Department of Professional Northwood Centre Regulation 1940 North Monroe Street Northwood Centre Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Suite 60 Tallahassee, FL 32399-0792 Milton W. Olen, Jr. 250 International Parkway, NO. 160 Lake Mary, FL 32746 Steven Michael Labret, Esquire 501 North Magnolia Avenue Suite A Orlando, FL 32801 Fred Seely Executive Director Construction Industry Licensing Post Office Box 2 Jacksonville, FL 32202
The Issue The issues are whether Respondent committed the several violations of Sections 489.129(1)(h)2.,(h)3.,(j),(k), and (n), Florida Statutes (1997), for the reasons stated in the respective Administrative Complaints and, if so, what, if any, penalties should be imposed. (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of contracting. Respondent is licensed as a certified general contractor pursuant to license number CG C059414. At all relevant times, Respondent was the qualifying agent for Fred T. Garrett Construction, Inc. ("FTG"). As the qualifying agent, Respondent was responsible for all of FTG's contracting activities in accordance with Section 489.1195, Florida Statutes. Respondent failed to obtain a certificate of authority for Fred T. Garrett Construction, Inc., as required by Section 489.119(2), Florida Statutes. The St. Cyr Case On or about August 21, 1998, Respondent entered into a contract with Louis L. St. Cyr to construct an addition to the residence located at 201 South Bel Air Drive, Plantation, Florida. The contract price was $50,000. Although Mr. St. Cyr paid $2,500 to Respondent, Respondent failed to commence work and canceled the project, thereby abandoning it without just cause and without proper notification to Mr. St. Cyr. The contract did not permit Respondent to keep the $2,500 paid by Mr. St. Cyr, and Respondent failed to refund the payment within 30 days after abandonment. Out of the $2,500 he received from Mr. St. Cyr, however, Respondent paid $1,600.00 to the architect before abandoning the project. Thus, the net amount that Respondent owes to Mr. St. Cyr is $900. Petitioner incurred a total of $1,092.28 in investigative costs relating to the St. Cyr case. The Forney Case On May 22, 1998, Respondent, who was doing business as FTG, entered into a contract with Mr. Warren Forney for the construction of a two-bedroom, one-bath addition to the residence located at 1698 Northeast 33rd Street, Oakland Park, Florida. The contract price was $32,500. The contract with Mr. Forney did not contain a written statement explaining the customer’s rights under the Construction Industries Recovery Fund, as required by Section 489.1425(1), Florida Statutes. On July 7, 1998, Respondent obtained permit number 98-050297 from the Oakland Park Building Department. Construction commenced on or about July 7, 1998, and continued sporadically until October 29, 1998, when Mr. Forney dismissed Respondent for failure to timely complete the project. The Oakland Park Building Department issued notices of violation against the project on August 3, September 11, and October 14, 1998, for various building code violations. Mr. Forney was forced to obtain a homeowner’s permit and subsequently hired a subcontractor to complete the work. Mr. Forney paid Respondent approximately $29,250 before relieving Respondent of his duties. To complete the project, Mr. Forney paid a total of $48,746.52, which was $15,396.52 over and above the original contract price. Petitioner incurred a total of $2,190.78 in investigative costs relating to the Forney case. The Kong Case In or around January 1998, a contractor named Lakeview Concepts hired Respondent to perform demolition work for the Kong dry cleaning store project on the property located at 5171 South University Drive, Davie, Florida. On or about June 17, 1998, permit 98-00002349 was issued to Respondent to perform alterations on commercial property located at 5171 South University Drive, Davie, Florida. Respondent, however, did not yet have a contract with the owner for this work. The next month, on or about July 30, 1998, Respondent, who was doing business as FTG, entered into a contract with Shek Kong to complete the dry cleaning store project at 5171 South University Drive, Davie, Florida, for the contract price of $22,300. Shek Kong made payments to Respondent totaling $16,000. Respondent’s work was of poor quality, however, and on or about November 6, 1998, he ceased work, though the project had not been completed. On or about November 14, 1998, Douglas Frankow, license number CB C052960, gave Mr. Kong an estimate of $20,562 to complete the project. Thereafter, on or about June 30, 1999, Mr. Kong contracted with George Settergren, another licensed contractor, to complete the project for a contract price of $27,956. On December 9, 1999, in Case No. 98-020065 08, the Circuit Court, Seventeenth Judicial Circuit, Broward County, Florida, rendered a Final Judgment against Respondent and in favor of Mr. Kong. This judgment awarded Mr. Kong the total amount of $28,693.30, plus 10 percent interest per annum. Petitioner incurred a total of $2,502.78 in investigative costs relating to the Kong case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Construction Industry Licensing Board enter a Final Order finding Respondent guilty of violating Sections 489.129(1)(h)2., (h)3., (j), (k), and (n), Florida Statutes, imposing administrative fines in the aggregate amount of $3,700, assessing investigative costs in the aggregate amount of $5,785.84, placing Respondent's license on probation for a period of four years from the date the Final Order is entered by the Board, and awarding payment of restitution to each customer as follows: (1) to Warren Forney, the amount of $15,396.52; (2) to Shek Kong, satisfaction of the unpaid civil judgment in the amount $28,693.30, plus 10 percent interest accrued thereon; and (3) to Louis L. St. Cyr, the amount of $900. DONE AND ENTERED this 15th day of February, 2002, in Tallahassee, Leon County, Florida. _________________________________ JOHN G. VAN LANINGHAM 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 15th day of February, 2002.
The Issue Whether the Respondent committed the offenses set forth in the administrative complaint filed in this case and, if so, what disciplinary action should be taken.
Findings Of Fact At all times material hereto, Respondent, Michael Rada was a certified general contractor, the qualifying agent for A-Team Remodeling and Design, Inc. and held license number CG C026705 of the Florida Construction Industry Licensing Board. On or around December 10, 1987, Mrs. Katherine Hill contracted with A- Team Plumbing, Inc. to renovate a bathroom in her home. A-Team Plumbing, Inc. is an entity separate and distinct from A-Team Remodeling and Design, Inc. and Mr. Rada was not associated with A-Team Plumbing, Inc. Following A-Team Plumbing, Inc.'s failure to complete the job, Mr. Rada, on behalf of A-Team Remodeling and Design, Inc. agreed with Mrs. Hill to re-do the job. Mr. Rada, as qualifying agent for A-Team Remodeling and Design, Inc., applied to the City of Plantation for the building permit on January 11, 1988, and it was issued on February 13, 1988. At the instruction of the City of Plantation, the job was gutted, and Mr. Rada began his work sometime in March, 1988. The job should have been completed in two to three weeks, but was not completed until May 6, 1988. During construction, Mr. Rada's work was erratic and at times dilatory. On several occasions, he made appointments to work on the job, necessitating Mrs. Hill's absence from her employment, and, then, he would not keep the appointments or even contact Mrs. Hill about his failure to report. In addition to having failed to complete the job in a timely manner, the proof demonstrated that when completed the work failed to conform to that standard existent in the community for similar work. Even after the final inspection, a hole remained in an adjoining closet wall, the base boards were not flush with the walls and "gop" hung down in one corner of the room. Mrs. Hill refused to pay for the job because of her dissatisfaction. As general contractor, Mr. Rada assumed responsibility for the completion of the job at the time of his initial visit to Mrs. Hill and his application for the building permit. By failing to complete the job in a workmanlike and timely manner, Mr. Rada's performance was incompetent and exemplified misconduct in the practice of contracting.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered imposing on Respondent an administrative fine of $750. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of July 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 of Administrative Hearings this 28th day of July, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-187 Petitioner's proposed findings of fact are addressed as follows: Addressed in paragraph 1. Subordinate to the result reached. Addressed in paragraph 2. Subordinate to the result reached. Subordinate to the result reached. Subordinate to the result reached 2. Subordinate to the result reached. In part, subordinate to the result reached; in part, addressed in paragraph 3. Addressed in paragraph 3. Subordinate to the result reached. Addressed in paragraph 4. Addressed in paragraph 5. Addressed in paragraphs 3 and 4. In part, addressed in paragraphs 4 and 5; in part, subordinate to the result; in part, not supported by competent and substantial evidence. In part, subordinate to the result reached; in part, addressed in paragraphs 4 and 5. In part, subordinate to the result reached; in part addressed in paragraph 2. Subordinate to the result reached. COPIES FURNISHED: Elizabeth Alsobrook, Esquire Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0729 Michael Rada, pro se 4576 Northwest 16th Terrace Tamarac Lakes, Florida 33304 Fred Seely Executive Director Construction Industry Licensing Post Office Box 2 Jacksonville, Florida 32201 Kenneth E. Easley, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 =================================================================
The Issue The issue in this case is whether the challenged portions of Rule 14-22.012, Florida Administrative Code, constitute an invalid exercise of delegated legislative authority as defined by Section 120.52(8), Florida Statutes.
Findings Of Fact The Parties The Respondent The Department is the state agency charged with the responsibility of building and maintaining the state’s transportation system. Each year the Department lets out hundreds of road and bridge construction projects totaling over one billion dollars. The projects range from sidewalk improvements to major bridge construction. Accordingly, there is a wide range of expertise and qualifications necessary for the different kinds of projects let by the Department in Florida. Section 337.14(1), Florida Statutes, requires any person desiring to bid on any Department construction contract in excess of $250,000 to first be certified by the Department as qualified to perform the work to be let. Pursuant to Section 337.164, Florida Statutes, the Department qualifies contractors to preserve the integrity of the public contracting process, to ensure an open and competitive environment for the benefit of the taxpayers, and to ensure a quality project in terms of public works. Pursuant to Section 337.14, Florida Statutes, persons seeking to bid on contracts in excess of $250,000 must first file an application for a Certificate of Qualification with the Department. The statute specifically authorizes the Department to enact rules addressing the qualification of persons to bid on contracts in excess of $250,000, including requirements with respect to competency, responsibility, equipment, past record, experience, financial resources, and organizational personnel of the applicant. Gregory Xanders is the State Construction Engineer. His duties include setting policy and reviewing contractor responsibility and qualifications under Chapter 337, Florida Statutes, and Chapter 14-22, Florida Administrative Code. In conjunction with reviewing a contractor’s qualifications, the State Construction Engineer’s Office receives input from other personnel, including contract managers in the field, the Department General Counsel’s Office, the Department Inspector General’s Office, and other cities and counties who may work with the contractor. The State Construction Engineer’s Office also reviews any intended decision to deny, suspend, or revoke a contractor’s Certificate of Qualification with the Assistant Secretary of the Department. When the State Construction Engineer’s Office makes a preliminary determination that a contractor’s Certificate of Qualification should be suspended, revoked, or denied, the contractor is notified and informed of its rights to an administrative hearing to contest the intended decision under Section 120.569, Florida Statutes. The Petitioner MBI is a company which engages in road building and asphalt paving. Since the early 1980s MBI has been qualified to bid on and awarded several Department projects. Approximately 80 percent of MBI's workload involves Department projects. Pursuant to Department rules, MBI annually submits an application to renew or obtain an updated Certificate of Qualification in order to continue bidding and performing Department projects. In 1997, MBI was denied qualification to bid on Department projects for approximately ten months. However, MBI was subsequently qualified by the Department during calendar year 1999. On or about March 31, 2000, MBI filed an Application for Qualification with the Department. By letter dated May 18, 2000, the Department gave MBI notice of its intent to deny MBI’s Application for Qualification, and stated that any subsequent application would not be considered for a period of two years. The Department’s letter advised MBI that the denial of the application constituted "a determination of non-responsibility to bid on any other construction or maintenance contract" for the same period. Specifically, the letter provided: Please be advised that pursuant to Chapter 337, Florida Statutes, and Rule Chapter 14- 22, Florida Administrative Code, it is the intent of the Department of Transportation (hereinafter Department) to deny Mitchell Brothers, Inc.’s (hereinafter Mitchell Brothers) Application for Qualification dated March 31, 2000. This denial shall preclude consideration of any subsequently submitted Application for Qualification for a period of two (2) years. Additionally, this denial shall constitute a determination of non- responsibility to bid on any other construction or maintenance contract and shall prohibit Mitchell Brothers from acting as a material supplier, contractor, or consultant on any Department contract during the period Mitchell Brothers is not qualified by the Department. The Department’s Notice of Intent denied MBI’s Application based upon a determination that MBI had demonstrated "a pattern of exorbitant and false, deceptive or fraudulent statements, certifications, or materials in claims for payment," and "a lack of management expertise and continuity." By Petition for Formal Hearing dated May 30, 2000, MBI challenged the Department’s Notice of Intent to Deny MBI’s Application for Qualification. MBI’s Petition for Formal Hearing was referred to the Division of Administrative Hearings and assigned DOAH Case No. 00-2431. On September 18, 2000, the Department served on MBI a Modified Notice of Intent to Deny MBI’s application. The Modified Notice gave additional grounds for the Department’s decision to deny MBI’s Application for Qualification. Among the additional grounds for denying MBI’s Application were the following: MBI submitted false, deceptive, fraudulent, erroneous or unreasonable statements, certifications, or materials in its claims for payment to the Department, the City of Tallahassee, the Leon County School Board, and other owners; MBI submitted claims or statements for services not performed or expenses not incurred; MBI failed to avoid, diminish or otherwise mitigate the effects of construction delays; and MBI failed to reasonably cooperate with the Department’s efforts to investigate the accuracy of MBI’s delay claims and statements. On October 13, 2000, MBI filed it’s Petition Seeking Administrative Determination that Rule 14-22.012, Florida Administrative Code, is an invalid exercise of delegated legislative authority (DOAH Case No. 00-4234RX). Specifically, in paragraph 11 of its Petition, MBI alleges that the Rule enlarges, modifies, or contravenes specific provisions of the law implemented, and that the Rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency. MBI later alleged that the Department had also exceeded its grant of rulemaking authority. A three-week final hearing was scheduled to commence in DOAH Case No. 00-2431 on October 26, 2000. Shortly prior to hearing, Petitioner filed a Motion to consolidate DOAH Case Nos. 99-2431 and 00-4234RX. The Department opposed the motion based on their counsel's inability to be adequately prepared for the 00-4234RX rule challenge proceeding. In lieu, the parties agreed to temporarily break from the 00-2431 hearing during the second week and commence the rule challenge. However, on the morning of October 26, 2000, MBI filed a Notice of its Withdrawal of its Petition for Formal Hearing in DOAH Case No. 00-2431. Consequently, DOAH Case No. 00-4234RX was scheduled for hearing on November 14, 2000. Based on MBI’s Notice of Withdrawal of its Petition, an Order Closing File was entered in DOAH Case No. 00-2431 on November 1, 2000. On November 2, 2000, the Department entered a Clerk’s Order of Dismissal of MBI’s Petition challenging the denial of its Application for Qualification. "Good Cause" Defined in Section 337.16(2), Florida Statutes Section 337.16(2), Florida Statutes, provides: For reasons other than delinquency in progress, the department, for good cause, may determine any contractor not having a certificate of qualification nonresponsible for a specified period of time or may deny, suspend, or revoke any certificate of qualification. Good cause includes, but is not limited to, circumstances in which a contractor or the contractor’s official representative: Makes or submits to the department false, deceptive, or fraudulent statements or materials in any bid proposal to the department, any application for a certificate of qualification, any certification of payment pursuant to s. 337.11(10), or any administrative or judicial proceeding; Becomes insolvent or is the subject of a bankruptcy petition; Fails to comply with contract requirements, in terms of payment or performance record, or to timely furnish contract documents as required by the contract or by any state or federal statute or regulation; Wrongfully employs or otherwise provides compensation to any employee or officer of the department, or willfully offers an employee or officer of the department any pecuniary or other benefit with the intent to influence the employee or officer’s official action or judgment; Is an affiliate of a contractor who has been determined nonresponsible or whose certificate of qualification has been suspended or revoked and the affiliate is dependent upon such contractor for personnel, equipment, bonding capacity, or finances; Fails to register, pursuant to chapter 320, motor vehicles that he or she operates in this state. Section 337.16(2), Florida Statutes, authorizes the Department to deny, suspend, or revoke an Application for Qualification based upon a determination of "good cause." "Good cause" is defined by six examples specified in Section 337.16(2), Florida Statutes, but the statute further provides that "good cause includes, but is not limited to" the six circumstances specified in the statute. "Good Cause" Defined in the Rule 14-22.012, Florida Administrative Code Rule 14-22.012, Florida Administrative Code, is entitled: "Suspension, Revocation, or Denial of Qualification." Subsection (1) of this Rule provides in pertinent part: (1) The Department will, for good cause, as that term is defined in Section 337.16(2), Florida Statutes, suspend, revoke, or deny any contractor’s qualification to bid. A suspension, revocation, or denial for good cause pursuant to this rule shall prohibit the contractor from bidding on any Department construction contract for which prequalification is required by Section 337.14, Florida Statutes, and shall constitute a determination of non- responsibility to bid on any other construction or maintenance contract and from acting as a material supplier, subcontractor, or consultant on any Department contract or project during the period of suspension, revocation, or denial. As provided in Section 337.16(2), Florida Statutes, such good cause shall include, but shall not be limited to, the provisions of paragraphs (a) through (e) below. When a specific period of revocation, denial, or suspension is not specified by this rule, the period shall be based on the criteria of Rule 14-22.0141(4), F.A.C., as well as Department contractor certification activities. (a) The contractor’s Certificate of Qualification shall be denied or revoked for at least one year when it is determined by the Department that any of the following has occurred: One of the circumstances specified under Section 337.16(2)(a), (b) or (d), Florida Statutes, has occurred. Affiliated contractors submitted more than one proposal for the same work. In this event the Certificate of Qualification of all of the affiliated bidders will be revoked or denied. All bids of affiliated bidders will be rejected. The contractor made or submitted to the Department false, deceptive, or fraudulent statements, certifications, or materials in any claim for payment or any information required by any Department contract. The contractor defaulted on any Department contract or the contract surety took over any Department contract from the contractor. Rule 14-22.012(1), Florida Administrative Code, authorizes the Department to deny, suspend, or revoke a contractor’s qualification to bid based on a determination of "good cause" as that term is defined in Section 337.16(2), Florida Statutes. The term is defined by examples contained in Section 337.16(2), Florida Statutes, and in the Rule, but it is not exhaustive. In addition to the list of examples of "good cause" specified in Section 337.16(2), Florida Statutes, and Rule 14- 22.012(1), Florida Administrative Code, the Department consistently considers other criteria contained in Chapter 337, Florida Statutes, which relate to the qualifications of a contractor. Section 337.14, Florida Statutes, requires the Department to consider a contractor’s equipment, past record, experience, financial resources and organizational personnel. Other factors considered are contained in Rule 14-22.003, Florida Administrative Code, which addresses the rating of the applicant, work performance record, quality of work performed, history of payment, timeliness of completing projects, cooperative attitude, contract litigation, claims, defaults, integrity, and responsibility. Both Chapter 337, Florida Statutes, and Chapter 14-22, Florida Administrative Code, provide the industry with sufficient guidance as to the criteria for "good cause." Responsibility A contractor bidding on projects of less than $250,000 is presumed to be responsible unless one of the circumstances specified in Rule 14-22.0141, Florida Administrative Code, occurs, in which case the contractor may be deemed "non- responsible." In addition to being "qualified," a contractor seeking to bid on projects over $250,000 must also be deemed to be "responsible." By statute, a contractor must be "responsible" as a prerequisite to being "qualified." Section 337.14(3), Florida Statutes, provides: (3) Upon the receipt of an application for certification, the department shall examine it, verify its statements when necessary, and determine whether the applicant is competent, is responsible, and possesses the necessary financial resources to perform the desired work. The Department must consider the responsibility of the contractor during the review of its Application for Qualification. If a contractor’s qualification has been denied, suspended, or revoked for "good cause," then the contractor is deemed to be non-responsible and not allowed to bid on any project. Under Section 337.16(2), Florida Statutes, the Department may determine the time period in which a contractor is deemed to be non-responsible. Period of Disqualification As to the period of disqualification, Section 337.16(2), Florida Statutes, and Rule 14-22.012, Florida Administrative Code, provide a framework of guidelines and, in some instances, detailed timeframes relating to specific circumstances. For example, Section 337.165(2)(b)1, Florida Statutes, specifically requires the Department to deny or revoke a contractor's certification for a period of 36 months when the Department determines that the contractor has been convicted of a contract crime. This statute provides a frame of reference for the Department in establishing the period of disqualification. Within the framework provided by Chapter 337, Florida Statutes, and Chapter 14-22, Florida Administrative Code, the Department considers a period of disqualification ranging from 0 to 36 months. Rule 14-22.012, Florida Administrative Code, states that when a Certificate of Qualification is denied or revoked for any of the specified reasons in Rule 14-22.012(1)(a), Florida Administrative Code, the denial or revocation is "for at least one year." This revocation period only provides a lower limit. Rule 14-22.012(1), Florida Administrative Code, further provides: "When a specific period of revocation, denial, or suspension is not specified by this rule, the period shall be based on the criteria of Rule 14-22.0141(4), Florida Administrative Code, as well as Department contractor certification activities." Rule 14-22.0141(4), Florida Administrative Code, provides that a contractor will be "ineligible to bid on Department contracts for a period of time based on the seriousness of the deficiency." Rule 14022.0141(4), Florida Administrative Code, provides examples of factors affecting the seriousness of the deficiency. Under the Rule, the examples of factors affecting the seriousness of the deficiency include impacts on project schedule, cost, quality of work, unsafe conditions allowed to exist, complaints from the public, delay or interference with the bidding process, and the potential for repetition. It is not possible to codify in a rule the precise time period of disqualification for every single instance. Because the facts and circumstances supporting a determination of "good cause" vary, it is impracticable to compile an exhaustive list for each instance.
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Mr. Borek was licensed by the Department as a certified general contractor, having been issued license number CG C 58817. He was licensed on November 18, 1996. At all times material hereto, Mr. Borek was the qualifying agent of Atlantic Coast General Contractors, Inc. (ACGC), a Florida corporation, and has been its president. ACGC was issued a certificate of authority as a contractor qualified business on June 2, 1977, having been issued license number QB 07357. ACGC's license expired on September 1, 2001 and became null and void on September 1, 2003. The State of Florida, Department of State, administratively dissolved ACGC, as a corporation, on October 1, 2004, for its failure to file its annual report, as required by law; and, as a result, ACGC's authority to transact business, as a corporation, in the State of Florida was revoked on the same date. At all times material hereto, Tracey Meredith (Ms. T. Meredith) resided in and owned a home located at 7690 Northwest 16th Court, Pembroke Pines, Florida. Ms. T. Meredith wanted her mother, Jane Meredith1 (Ms. J. Meredith), to live with her so Ms. T. Meredith decided to have an addition built to her home, consisting of a bedroom, bathroom, and closet. Ms. T. Meredith obtained a proposal from ACGC and five other contractors for the addition. Each contractor was aware of the purpose of the addition. Ms. T. Meredith decided to contract with ACGC, which was not the lowest or the highest bidder, but was somewhat in the middle. On June 28, 2002, a Proposal/Contract (Contract) was executed with ACGC for the addition at a cost of $32,925.00. Even though the Contract showed Ms. T. Meredith as the contracting party, it was signed by Ms. J. Meredith because she (Ms. J. Meredith) was actually paying for the addition and signing the checks. Both Mses. T. Meredith and J. Meredith were in agreement with the Contract. The Contract provided, among other things, that the addition was 15 x 21; and that the payments would be as follows: 20% at acceptance of the Contract, 20% at permit issuance, 10% at slab, 20% at wall and roof framing, 10% at roof completion, 10% at finished walls and flooring, and 10% at final completion. No dispute exists that the cost of the Contract was reasonable. No dispute exists that the Contract failed to contain a provision explaining the consumer's rights under the Florida Homeowners' Construction Recovery Fund, formerly known as the Construction Industries Recovery Fund. No dispute exists that the Contract did not provide a date for completion of the addition. Regarding a completion date for the addition, Ms. T. Meredith testified that all the other proposals provided that the addition would be completed within six to eight weeks and that, at the beginning, Mr. Borek orally communicated to her that the addition would be completed by ACGC within six to eight weeks. To the contrary, Mr. Borek testified that, at the beginning, no completion date was given to her, either orally or in writing. None of the other proposals were submitted into evidence, only the Contract with Mr. Borek, which did not provide a completion date. It would not be reasonable for Ms. T. Meredith to accept Mr. Borek's proposal without it’s being within the time period of completion of the other proposals. The undersigned finds Ms. T. Meredith's testimony more credible and makes a finding of fact that, at the time of the signing of the Contract, Mr. Borek made an oral representation that the addition would be completed by ACGC within six to eight weeks. An expert in the field of general contracting, John Yanoviak (Mr. Yanoviak), testified on behalf of the Department. The undersigned finds his testimony credible, except as specifically indicated. A reasonable amount of time to complete the addition was a maximum of three months. Mr. Borek, as the contractor, was responsible for keeping the project timely and for quality control. On June 30, 2002, Ms. J. Meredith wrote a check, payable to ACGC, in the amount of $6,585.00. This amount was 20 percent of the contracted cost for the addition. No dispute exists that this check was written and presented to Mr. Borek. Paying this amount was in accordance with the Contract. Mr. Borek filed an application for a building permit with the City of Pembroke Pines (CPP) on or about July 3, 2002. The building permit was issued by CPP on or about October 25, 2002. Work on the addition was commenced before the issuance of the building permit. Ms. T. Meredith was aware of the date that the building permit was issued. Prior to the issuance of the building permit, Ms. T. Meredith complained to Mr. Borek regarding the addition’s not being completed. No evidence was presented to show that Ms. T. Meredith indicated to Mr. Borek that, by his failure to complete the addition within a six-to- eight-week period, he was not abiding by the Contract. No evidence was presented to show that she indicated her dissatisfaction to the degree of possibly terminating the Contract with ACGC. On November 12, 2002, Ms. J. Meredith wrote a check, payable to ACGC, in the amount of $6,585.00. This amount was paid after Mr. Borek obtained the building permit and was 20 percent of the contracted cost for the addition. No dispute exists that this check was written and presented to Mr. Borek. Paying this amount was in accordance with the Contract. On December 11, 2002, Ms. J. Meredith wrote a check, payable to ACGC, in the amount of $6,885.00. This amount was $300.00 more than 20 percent of the contracted cost for the addition. No dispute exists that this check was written and presented to Mr. Borek. An inference is drawn and a finding is made that this check was written in advancing of the addition. According to the records of the CPP's building department2 (Records), a CPP form for a revision to the addition was submitted on January 6, 2003, providing for an electrical change to the addition. Further, the Records indicate that, on March 20, 2003, an application for an electrical permit was submitted and that, on March 24, 2003, the permit was approved. Also, a revision to the plans of the addition was submitted to the CPP by the architect to the addition, Hernando Acosta, according to the Records. The Records indicate that the revision to the plans was dated January 30, 2003 by Mr. Acosta, that the revision was submitted on February 7, 2003, and that the revision was approved on February 11, 2003 by the CPP. In addition, in February 2003, Ms. T. Meredith received written communication from the CPP regarding a problem with the addition. Ms. T. Meredith received a copy of a letter from the CPP to Mr. Borek, dated February 18, 2003. The letter indicated, among other things, that the CPP had issued a "stop work status" on the addition due to Mr. Borek’s having issued a check, payable to the CPP, in the amount of $135.80, which was dishonored. Another revision, according to the Records, was submitted on March 27, 2003, regarding the trusses. The Records indicate that the revision was approved on April 17, 2003. Ms. T. Meredith became more dissatisfied with the progress toward completion on the addition by Mr. Borek to the point that she filed a complaint with the Department on May 21, 2003. In May 2003, Ms. T. Meredith received written communication from the CPP regarding a problem with the addition. By letter dated May 22, 2003, she received notification from the CPP, as information only, that a code violation had not been corrected within the allowable ten-day period, together with a copy of CPP's letter to Mr. Borek, dated May 22, 2003, of his failure to correct the code violation. The letter to Mr. Borek indicated, among other things, that Mr. Borek had until June 11, 2003 to correct the violation, identifying the inspection date and the violation. By a letter dated May 28, 2003, Ms. T. Meredith advised Mr. Borek, among other things, that he had seven days to continue with the work on the addition in accordance with the Contract or else the Contract would be considered by her to be "null and void"; that, if he did not do so, she would be "forced" to hire another contractor, with Mr. Borek being held financially responsible for completion of the addition; and that the Contract was to be completed within six to eight weeks. On June 12, 2003, Mr. Borek contacted the investigator for the Department regarding the complaint filed by Ms. T. Meredith. Among other things, Mr. Borek informed the investigator that he (Mr. Borek) was willing to complete the addition in 30 days. By his representation, Mr. Borek indicated that he would complete the addition on or about July 12, 2003. By a letter dated June 18, 2003, Mr. Borek notified the investigator, among other things, that he was working "diligently" to complete the addition. Mr. Borek failed to complete the addition within the 30-day period, as he had represented to the Department's investigator. The Records indicate that an application for a building permit, involving the roof to the addition, was submitted on June 25, 2003. The permit was issued, according to the Records, on July 30, 2003. Further, the Records indicate that a revision, regarding the size of a window and the elimination of a door, was submitted on July 8, 2003, and approved on July 9, 2003. In July 2003, Ms. T. Meredith received another written communication from the CPP regarding a problem with the addition. By letter dated July 9, 2003, she received notification from the CPP, as information only, that a code violation had not been corrected within the allowable ten-day period, together with a copy of CPP's letter to Mr. Borek, dated July 9, 2003, of his failure to correct the code violation. The letter to Mr. Borek indicated, among other things, that Mr. Borek had until July 28, 2003, to correct the violation, identifying the inspection date and the violation. In addition, in July 2003, Ms. T. Meredith received written communication from the CPP regarding another problem with the addition. She received a copy of a letter from the CPP to Mr. Borek, dated July 18, 2003, which indicated, among other things, that the CPP had issued a "stop work status" on the addition due to Mr. Borek having issued a check, payable to the CPP, in amount of $76.23, which was dishonored. Even though Mr. Borek failed to complete the addition within the 30-day period that he had represented to the Department's investigator and even though Ms. T. Meredith had received notification of the problems at the jobsite from the CPP, on September 10, 2003, Ms. J. Meredith wrote a check, payable to ACGC, in the amount of $4,000.00. No dispute exists that this check was written and presented to Mr. Borek. An inference is drawn and a finding is made that this check was written in furtherance of the addition. ACGC had been paid a total of $24,055.00 of the Contract cost of $32,925.00, which was approximately 73 percent of the Contract cost. The balance of the Contract cost was $8,870.00. Mr. Borek testified that, at the time of the writing of the check for $4,000.00, he and Ms. T. Meredith agreed that he would have until on or about November 15, 2003 to complete the project. Ms. T. Meredith testified that no such agreement was made. At the time of the check for $4,000, ACGC was almost 60 days beyond the completion date represented to the Department's investigator. No testimony was presented as to why the $4,000.00 was paid to ACGC in light of such a considerable delay in completing the job by ACGC and in light of the complaint being filed with the Department. Due to the lack of an explanation for the payment of the $4,000.00 to ACGC in furtherance of the project, Mr. Borek's testimony presents a reasonable explanation. Therefore, Mr. Borek's testimony is found to be credible. Hence, a finding is made that, on or about September 10, 2003, Mr. Borek and Ms. T. Meredith orally agreed that ACGC would have until on or about November 15, 2003, to complete the addition. Ms. T. Meredith continued to be dissatisfied with the progress on the addition by ACGC. Sometime after September 10, 2003, an incident occurred which caused her to reach the conclusion that she could not allow ACGC to continue working on the project. One day when she left for work, one of ACGC's workers was painting the exterior walls. When she returned from work later that same day, the same worker for ACGC was painting the exterior walls. Ms. T. Meredith immediately directed the worker to leave and to take all of his equipment with him; the worker did so. Ms. T. Meredith contacted Mr. Borek and informed him that she would not allow him to continue with the project. Mr. Borek repeatedly requested Ms. T. Meredith to allow him to continue with the project, but she refused. By letter dated October 9, 2003, Ms. T. Meredith terminated the Contract with ACGC. She mailed the letter on the same date and faxed it on October 14, 2003. Her mother was in agreement with terminating the Contract. Ms. T. Meredith indicated, among other things, in her letter to ACGC that its failure to complete the addition as of the date of the letter, when the oral agreement was completion within six to eight weeks, left her no choice but to terminate the Contract. Ms. T. Meredith included in the letter, among other things, what remained to be completed on the project and a cost of $539.55 for damaged items at her home caused by ACGC, with an itemized list. At the time of the termination, the following work remained to be completed: purchase and installation of plumbing fixtures; sewer hookup; molding; tile work in the bathroom; installation of storm panels and flooring; some painting; installation of an air conditioner; some electrical connections; and installation of an electrical panel, electric wall plates, and an electric light fixture. Ms. T. Meredith obtained a homeowner's permit and hired someone, Adam Friedman, to assist her in completing the addition. On December 15, 2003, the CPP issued a certificate of occupancy to her. As to expenditures by Mses. T. and J. Meredith in order to complete the addition, the undersigned finds the testimony of Mr. Yanoviak credible. Mses. T. and J. Meredith expended $19,170.52 to complete the addition. The expenditures for completion were reasonable and necessary. Not included in the expenditures for completion are the following: $3,941.31 for items not included in the Contract--a fence, pavers, wood floor, upgraded bathroom fixtures or accessories, closet woodwork and various Home Depot items (totaling $238.21); $250.00 for mill work associated with chair rails; and $2,400.00 for an exterior concrete slab. Included in the expenditures for completion is the following: $1,360.00 for a split-system air conditioning unit which was not installed by ACGC. Further, included in the cost of expenditures is an adjustment in favor of Ms. T. Meredith in the amount of $1,000.00 for the elimination of a window on the west elevation of the addition, which was orally agreed to by Ms. T. Meredith and Mr. Borek after the signing of the Contract and which would have been subtracted from the cost of the Contract. After Ms. T. Meredith terminated the Contract, she filed a claim under the Construction Industries Recovery Fund. The claim was dated October 10, 2003, one day after she terminated the Contract. Ms. T. Meredith set forth in the claim that she was requesting $12,000.00, which she indicated was the amount to pay another contractor to complete the project. The undersigned places very little weight upon the amount requested because the claim is prior to completing the project and fails to reflect the actual costs involved in completing the project, which were realized only after completion. Damage to items at Ms. T. Meredith's home occurred, during the work being performed by ACGC, for which ACGC was responsible. The following items were affected: damaged a window magnet that was part of the home's security system at $80.00; destroyed, broken, or thrown away one large planter pot, one archway, and two large stepping stones--all at an estimate of $440.34; and broken tiles in the front of the house at $13.57. The damages totaled $533.91. At the time of the hearing, Mr. Borek had not made any payments to Ms. T. Meredith or Ms. J. Meredith for their expenditures to complete the addition or for the damages. At the time of the termination, in accordance with the oral agreement of completion by on or about November 15, 2003, ACGC had a little over 30 days to complete the addition. In light of the finding that an oral agreement had been reached to allow ACGC until on or about November 15, 2003, to complete the addition and in light of the only incident since that agreement, presented by the evidence, was the situation involving ACGC's painter, the undersigned finds that the painting situation was not substantial and that, therefore, the termination on October 9, 2003, prior to the new agreed- upon termination date, was unreasonable. Ms. T. Meredith testified that, sometime during the middle of the year 2003, for a period of "exactly" 60 days, ACGC failed to perform any work at the project. Mr. Borek denies her assertion. Ms. T. Meredith testified that she kept records on everything. When she testified as to an exact 60- day period in the middle of 2003 during which no work was being done at the project, Ms. T. Meredith did not point to any of her records to verify the assertion or provide certain beginning and ending dates. Taking into consideration the standard of proof and the burden of proof, the evidence failed to show clearly and convincingly that no work was done at the jobsite by ACGC for a period of 60 days in the middle of the year 2003. Nothing was done by Ms. T. Meredith, the architect, or CPP to delay the completion of the project. Mr. Borek admits that he had other jobs in progress when he was working on the addition. He further admits that when changes had to be made to the project, whether by the CPP or the architect or Ms. T. Meredith or himself, he had to re- arrange his schedule to accommodate the other jobs, which included re-deploying his workers and subcontractors, which in turn caused delays. Further, Mr. Borek admits that the turnaround time for any changes given to the architect for the plans to the addition was reasonable and that the turnaround time for the CPP to review the changes to the plans submitted by the architect was reasonable. Consequently, no unreasonable or inordinate delays were caused by the architect or the CPP when changes were made to the plans of the addition. Mr. Borek performed some work for Ms. T. Meredith at no cost that was not required by the Contract. The extra work at no cost included the following: the removal of trees; pouring of an exterior concrete slab; and plastering of drywall. The slow progress in completing the Contract was significant and material and resulted in the Contract’s not being performed in a reasonable time. The delays in completion of the addition were significant and were the fault of Mr. Borek. In addition to re-deploying workers for other jobs on which ACGC was working, ACGC failed to properly perform work, which resulted in failed inspections by the CPP, which resulted in numerous delays, and failed to timely obtain an electrical permit. As to the failure to timely obtain an electrical permit, the electrical permit was obtained almost five months subsequent to the issuance of the building permit by the CPP. The electrical permit was applied for on March 20, 2003 and approved on March 24, 2003. CPP's turnaround time in approving the permit was short and inconsequential. As to the failure to properly perform work, the Records indicate construction defects, which were under Mr. Borek's, the contractor's, control and which resulted in failed inspections. Furthermore, the Records indicate prior construction faults, identified in inspections, not being timely corrected, which was under Mr. Borek's control and which resulted in delays until the faults were corrected. Mr. Yanoviak testified that failure to perform the Contract within a reasonable time constituted misconduct. The undersigned finds his testimony credible. A finding of fact is made that the failure to perform the Contract within a reasonable time constituted misconduct. Additionally, Mr. Yanoviak testified that the failure to perform the Contract within a reasonable time constituted a material breach of the Contract. The undersigned finds his testimony credible, and a finding of fact is made that the failure to perform the Contract within a reasonable time constituted a material breach of the Contract. Further, Mr. Yanoviak testified that, such material breach, justified terminating the Contract. The undersigned finds his testimony credible only as to a general application and, therefore, a finding of fact is made that, generally, the failure to perform a construction contract within a reasonable time would justify terminating the construction contract but does not justify terminating the Contract under the circumstances presented in the instant case. Both Mr. Borek and Ms. T. Meredith orally agreed to a new date for completion of the addition, i.e., on or about November 15, 2003. To disregard the new date of completion would be manifestly unjust. Furthermore, at the time of the termination of the Contract by Ms. T. Meredith, i.e., on October 9, 2003, the termination was unreasonable and not for just cause. Hence, a finding of fact is made that termination of the Contract by Ms. T. Meredith, prior to the new completion date, was not justified. Mr. Yanoviak also testified that failure to perform the Contract within a reasonable time constituted abandonment of the project. The undersigned finds his testimony credible only as to general application and, therefore, a finding of fact is made that, generally, the failure to perform a construction contract within a reasonable time would constitute abandonment of a project. However, as found above, a new date for completion of the project was orally agreed upon and the new date had not expired at the time of the termination of the Contract by Ms. T. Meredith. Hence, a finding of fact is made that, under the circumstances of the instant case, abandonment did not exist. The Department presented evidence of costs for the investigation and prosecution of this matter, excluding costs associated with attorney time. As of July 5, 2005, the costs for the investigation and prosecution totaled $880.18. As to prior disciplinary action, on September 9, 2004, the Department filed a Final Order in Department of Business and Professional Regulation vs. Bret Jayson Borek, Case No. 2003-069533, License No. CG Co58817 before the Construction Industry Licensing Board. In that case, an administrative complaint was filed against Mr. Borek for violating Section 489.129(1)(i), Florida Statutes (2001), by failing to comply in a material respect with a provision of Chapter 489, Florida Statutes, through the failure to obtain a certificate of authority for ACGC; and for violating Section 489.129(1)(q), Florida Statutes (2001), by failing to satisfy a civil judgment, related to the practice of construction, within a reasonable time. Mr. Borek waived his rights to an informal hearing, and no material fact was disputed. Among other things, the Final Order imposed an administrative fine of $1,000.00, required restitution of $15,218.94 to a roofing and sheet metal company and required payment of $506.92 for investigative costs.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Construction Industry Licensing Board enter a final order: Finding that Bret Jayson Borek committed the violations set forth in Counts I, II, and III; Dismissing Count IV; and Imposing the following penalties: As to Count I, an administrative fine in the amount of $1,000.00 and revocation of the license of Bret Jayson Borek. As to Count II, an administrative fine in the amount of $500.00. As to Count III, an administrative fine in the amount of $5,000.00 and revocation of the license of Bret Jayson Borek. S DONE AND ENTERED this 9th day of January, 2006, in Tallahassee, Leon County, Florida. _______________________________ ERROL H. POWELL 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 9th day of January, 2006.
The Issue An administrative complaint dated June 7, 1989, alleges that Respondent violated Chapter 489, F.S., governing the construction industry, by completing a contracting job without having obtained a local building permit. The issue in this proceeding is whether the violation occurred, and if so, what discipline is appropriate. An ancillary issue is what effect, if any, Respondent's discharge in bankruptcy dated January 9, 1989, would have on any penalty in this case.
Findings Of Fact At all times material, and between July 1985 and July 1989, Robert Lambert was licensed by the Florida Construction Industry Licensing Board as a Registered Aluminum Specialty Contractor, with license number RX-0048976. Robert Lambert was the sole qualifying agent for The Screenbuilders Aluminum Trim, 1410 Elk Court, Apopka, Florida, a partnership business in which Lambert was a partner. In June 1987, the Screenbuilders entered into a written contract with Cecil Floyd to construct a carport and screened-in porch and new roof over Mr. Floyd's home at 741 Baron Road, Orlando, Orange County, Florida. The entire job was completed without Lambert's having obtained a building permit from the Orange County Building Department. Section 103 of the Standard Building Code of 1985, as adopted in the Orange County Building Code, requires that a building permit be obtained prior to altering, repairing, improving, converting, constructing, or demolishing any building or structure in the jurisdiction. (Petitioner's exhibits #2 and #3) Respondent and his agents knew that they needed a permit from the Orange County Building Department. For other jobs they had routinely obtained permits. After the work commenced, Lambert attempted to obtain a permit for the job. The building department would not accept the paperwork he offered and Cecil Floyd refused to pay for another plat as he had already paid out the entire contracted for monies for the job. To date, no permit for the Floyd job has been obtained. Robert Lambert's licensure file reveals several prior disciplinary actions, including revocation on January 11, 1990. As of the date of hearing, no final order on that action had been issued. On January 9, 1989, George L. Proctor, Bankruptcy Judge for the U.S. Bankruptcy Court, Middle District of Florida, entered a "Discharge of Debtor", providing as follows: DISCHARGE OF DEBTOR It appears that the person named above filed a petition commencing a case under title 11, United States Code on August 29, 1988 , that an order for relief was entered under chapter 7, and that no complaint objecting to the discharge of the debtor was filed within the time fixed by the court [or that a complaint objecting to discharge of the debtor was filed and, after due notice and hearing, was not sustained]. IT IS ORDERED THAT: The above-named debtor is released from all dischargeable debts. Any judgement heretofore or hereafter obtained in any court other than this court is null and void as a determination of the personal liability of the debtor with respect to any of the following: debts dischargeable under 11 U.S.C. Section 523; unless heretofore or hereafter determined by order of this court to be nondischargeable, debts alleged to be excepted from the discharge under clauses (2), (4) and (6) of 11 U.S.C. Section 523 (a); debts determined by this court to be discharged. All creditors whose debts are discharged by this order and all creditors whose are declared null and void by paragraph 2 above are enjoined from instituting or continuing any action or employing any process or engaging in any act to collect such debts as personal liabilities of the above-named debtor. Respondent Exhibit #1
Recommendation Based on the foregoing, it is hereby, RECOMMENDED That Respondent, Robert Lambert, be found guilty of violation of Section 489.129(1)(d), F.S. and fined $1,000.00. DONE AND RECOMMENDED this 22nd day of March, 1990, in Tallahassee, Leon County, Florida. MARY CLARK 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 22nd day of March, 1990. COPIES FURNISHED: Jack L. McRay, Esquire Dept. of Professional Regulation 1940 N. Monroe St., Suite 60 Tallahassee, FL 32399-0792 Robert Lambert 1410 Elk Court Apopka, FL 32712-3026 Kenneth D. Easley, General Counsel Dept. of Professional Regulation 1940 N. Monroe St., Suite 60 Tallahassee, FL 32399-0792 Fred Seely, Executive Director Construction Industry Licensing Board P.O. Box 2 Jacksonville, FL 32202
The Issue At issue is whether Respondent committed the offenses set forth in the Administrative Complaints and, if so, what penalty should be imposed.
Findings Of Fact The parties Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Department), is a state agency charged with the duty and responsibility for regulating the practice of contracting pursuant to Section 20.165, Florida Statues, and Chapters 455 and 489, Florida Statutes. Respondent, Richard M. Golfman, was, at all times material hereto, licensed by the Department as a certified general contractor, having been issued license number CG C032860, and authorized to engage in the practice of general contracting as an individual.1 The Feinstein project (DOAH Case No. 00-0599) On or about October 30, 1998, Respondent entered into a written contract with Norman and Sheila Feinstein to furnish the materials and perform the labor necessary to enclose and remodel the screened patio, and to build a rock garden, at their home located at 5468 Northwest 20th Avenue, Boca Raton, Florida, for the sum of $5,000. At the time, the Feinsteins paid Respondent $1,500 as the initial payment (deposit) under the terms of the contract. The contract Respondent presented and the Feinsteins executed on October 30, 1998, did not include Respondent's license number, nor did it contain a statement concerning consumers' rights under the Construction Industries Recovery Fund. Following execution of the contract, Respondent made repeated promises to construct the rock garden; however, it was not until November 10, 1998, that Respondent appeared on-site and constructed the rock garden, albeit not to the Feinsteins' satisfaction. Subsequently, Respondent had some high-hat electrical fixture cans and a bundle of furring strips delivered to the home for the patio project but, thereafter, despite repeated requests, refused to perform any work on the project or refund any money to the Feinsteins. The value of the labor and materials Respondent invested in the rock garden, as well as the cost of the building materials (the high-hat fixtures and furring strips) delivered to the job-site, was $250, a sum considerably less than the $1,500 the Feinsteins had entrusted to Respondent under the terms of their agreement. The Burres/Berger project (DOAH Case No. 00-0600) On or about November 23, 1998, Respondent submitted a written proposal to Tanya Burres to furnish the materials and perform the labor necessary to replace the existing roof on her home located at 7270 Montrico Drive, Boca Raton, Florida, for the sum of $22,125. The proposal was a one-page preprinted form. In the upper left there appeared, printed immediately following Respondent's handwritten name, the following: THE GOLFMAN GROUP, INC. P.O. Box 811926 Boca Raton, Florida 33431 The proposal did not include Respondent's license number, nor did it contain a statement concerning consumers' rights under the Construction Industries Recovery Fund. At the time the proposal was submitted, Tanya Burres was under contract to sell the home to Drs. Glenn Berger and Michelle Fiorillo, husband and wife (the Bergers), and Ms. Burres had agreed to split with the Bergers the cost of a new roof for the home. At the time, Ms. Burres had suggested the Respondent as a contractor to perform the work (because he had previously done satisfactory work for Ms. Burres); however, it was understood that the employment of any contractor was subject to the Bergers' approval. That the Bergers' agreement was required before any such employment would be accepted was clearly conveyed to Respondent. On November 23, 1998, Tanya Burres signed the proposal and gave Respondent a check payable to his order in the sum of $1,106.25, representing her half of the ten percent deposit called for by the proposal. The Bergers, however, declined to accept the proposal, and refused Respondent's request for the balance of the deposit. Rather, the Bergers, having received adverse information from the Department regarding Respondent's record, preferred to employ a different contractor, and Ms. Burres accorded the Bergers a monetary credit at closing (on the purchase of the home) for one-half the cost to re-roof the home. When the Bergers informed Ms. Burres (shortly after she signed the proposal on November 23, 1998) that they would not agree to use Respondent, Ms. Burres attempted to stop payment on her check; however, the check had already been cashed. Thereafter, Ms. Burres attempted on numerous occasions to contact Respondent by telephone and by his pager, but Respondent failed to return any of her calls or messages. To date, Respondent has failed to account for or return Ms. Burres' deposit of $1,106.25. The costs of investigation and prosecution As of February 25, 2000, the Department's costs of investigation and prosecution, excluding costs associated with any attorney's time, totaled $234.85 for DOAH Case No. 00-0599 (the Feinstein project) and $195.65 for DOAH Case No. 00-0600 (the Burres/Berger project.) Previous disciplinary action At hearing, the Department offered proof that, on two prior occasions, Respondent had been subjected to disciplinary action by the Construction Industry Licensing Board (the Board). (Petitioner's Exhibit 2.) The first occasion is reflected in the terms of a Final Order of the Board, dated August 4, 1987, which found Respondent guilty of the violations alleged in the Administrative Complaint (which were not revealed at hearing beyond what may be inferred from the terms of the Final Order), and resolved that Respondent suffer the following penalty: Respondent's licensure is hereby suspended for ten (10) years. Provided, Respondent may obtain termination of said suspension at anytime, without further action by the Board, upon providing the Board's Executive Director with a certified bank check in an amount sufficient to cover and pay a fine of five hundred dollars ($500), and the bad check alleged in the Administrative Complaint, and all service charges in connection therewith, and all other fees accruing as of the date Respondent seeks said termination of supervision. The second occasion Respondent was subjected to disciplinary action is reflected in the terms of a Final Order of the Board, dated July 18, 1997, which approved a stipulated settlement of certain complaints then pending before the Board. That Final Order approved the dismissal of a number of counts contained in five Administrative Complaints then pending before the Board and, as to the remaining counts, agreed (without Respondent admitting or denying the allegations of fact contained in the Administrative Complaints) to the following penalty: 3. FINE AND COSTS: Respondent shall pay a fine of Nine Hundred dollars ($900.00) and costs of Eight Hundred fifty One dollars ($851) to the Board within thirty (30) days of the filing of the Final Order. Said payment shall be in the form of a cashier's or certified check and shall be made payable to the "Construction Industry Licensing Board." To assure payment of the fine and costs, it is further ordered that all of Respondent's licensure to practice contracting shall be suspended with the imposition of the suspension being stayed for thirty (30) days. If the ordered fine and costs are paid in compliance with the terms set forth above, the suspension imposed shall not take effect. However, should payment not be timely made, the stay shall be lifted and Respondent's license shall be immediately suspended. Upon payment of the fine and costs in full, the suspension imposed shall be lifted. Respondent apparently satisfied the fines and costs imposed by the foregoing orders. (Petitioner's Exhibit 2.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered adopting the foregoing findings of fact and conclusions of law, and which, as a penalty for the violations found, imposes an administrative fine in the total sum of $13,500.00, revokes Respondent's licensure, orders that Respondent pay restitution to Norman and Sheila Feinstein in the sum of $1,250.00 and to Tanya Burres in the sum of $1,106.25, and assesses costs of investigation and prosecution (through February 25, 2000) in the total sum of $430.50 against Respondent. DONE AND ENTERED this 22nd day of June, 2000, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 22nd day of June, 2000.
The Issue Whether disciplinary action should be taken against Respondent's license to practice contracting, as charged in the three-count Administrative Complaint filed against Respondent in this proceeding, which alleged that Respondent violated Subsection 489.129(1)(g)2., Florida Statutes (2009),1 by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer; Subsection 489.129(1)(j), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor; and Subsection 489.129(1)(m), Florida Statutes, by committing incompetency or misconduct in the practice of contracting; and, if so, what penalty should be assessed.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of contracting, including roofing contractors, in the State of Florida. At all times material, Respondent was a certified roofing contractor, having been issued License No. CCC 1328032 by the Florida Construction Industry Licensing Board ("CILB"). Respondent was the qualifier of Partnership Remodeling and Roofing Services, Inc. On February 10, 2009, Respondent entered into a contract with William Heston to re-roof Heston's home located at 6002 Cocos Drive, Fort Myers, Florida 33908. The agreed price of the contract was $13,970.00. On or about February 10, 2009, Heston gave Respondent a check in the amount of $7,000.00 as a deposit, payable to Partnership Roofing Services. After being paid the deposit, Respondent did obtain a permit and filed a Notice of Commencement, but Respondent failed to commence work according to the contract. Heston attempted to contact Respondent numerous times to prompt him to start performing the work, to no avail. On March 6, 2009, Heston sent a letter to Respondent asking for the return of his deposit. Although Respondent claims that he had other financial obligations which prevented him from making restitution to the homeowner, Respondent verbally agreed numerous times to return the deposit to Heston, but he failed to do so. The percentage of contracted work completed was zero, while the percentage of the contract price paid to Respondent was 50 percent. The total investigative costs of this case to Petitioner, excluding costs associated with any attorney's time, was $427.00. Respondent has not had a prior disciplinary action filed against his license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board, issue a final order, as follows: Finding Respondent guilty of having violated Subsection 489.129(1)(g)2., Florida Statutes, as alleged in Count I of the Administrative Complaint, and imposing as a penalty an administrative fine in the amount of $1,500.00. Finding Respondent guilty of having violated Subsection 489.129(1)(j), Florida Statutes, as alleged in Count II of the Administrative Complaint, and imposing as a penalty an administrative fine in the amount of $2,500.00. Finding Respondent guilty of having violated Subsection 489.129(1)(m), Florida Statutes, as alleged in Count III of the Administrative Complaint, and imposing as a penalty an administrative fine in the amount of $1,500.00. Ordering Respondent to pay financial restitution to the consumer, William Heston, in the amount of $7,000.00, representing the deposit paid to Respondent. Requiring Respondent to pay Petitioner's costs of investigation and prosecution, excluding costs associated with an attorney's time, in the amount of $427.12. Suspending Respondent's license to practice contracting (No. CCC 1328032) for a period of one year, followed by probation for two years. DONE AND ENTERED this 19th day of July, 2010, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 2010.
