Findings Of Fact At all times material to this proceeding, the Respondent, Donald F. Royal, was licensed as a registered roofing contractor in the State of Florida, holding license number RC 0031831. During the times of the alleged violations, the Respondent was the sole qualifying agent for J & J Construction Company (the company.) The principals of the company were the Respondent and a man named James Jimenez. Both men sold jobs for the company and were responsible for overseeing some of the work of the company. The Respondent pulled permits for, and was primarily responsible for, the roofing work contracted by the company. But sometimes, when the company had more than one job going at the same time, the Respondent would be primarily responsible for overseeing one, and Jimenez would be primarily responsible for overseeing the other. The Respondent thought that Jimenez held a license of some kind that enabled him to do some kinds of minor renovation construction. The Respondent restricted his work to roofing and did not mind Jimenez doing some renovation work on the side, separate from the business of the company. But the Respondent understood that Jimenez' "side deals" would be done separately under Jimenez' own license and would not be part of the business of the company. On or about August 14, 1986, Jimenez entered into a contract on behalf of the company to build an addition, remodel and reroof the existing structure and roof the addition of the residence of Ernest and Mercedes Riccio located at 3117 West Henry Avenue, Tampa, Florida. The contract price was $18,999. Jimenez telephoned the Respondent about the job but only told him about the part of the contract that called for the existing roof to be torn off and reroofed. He told the Respondent that the contract price for the job was $3,800. The Respondent pulled a permit for what he thought was the job and started and finished what he thought was the work to be done. The Respondent personally was compensated approximately $700-$800 for his part in the reroofing job. When the Respondent was finished, Jimenez continued with the rest of the contract, which was to include roofing the addition, without telling the Respondent about it. Jimenez did not get very far before a Tampa building inspector happened past and, seeing unfamiliar work in process, inspected the job site. He discovered that the building permit displayed at the site had been altered to expand the work purportedly permitted to include building, in addition to the roofing work for which the Respondent had obtained a permit. Someone other than the Respondent (probably Jimenez although he denied it) altered the permit. The Respondent knew nothing about the contract (other than the reroofing that he did), the alteration of the permit, or the work Jimenez was doing after he left the site. When he discovered the permit violations, the building inspector "red- tagged" the entire job, and work stopped. That was only the beginning of the Riccios' problems. Further investigation revealed that the job would require not only a valid permit but also zoning variances and utility easements. Although the contract had called for the company to obtain all necessary permits, Jimenez and the Riccios agreed that the Riccios would apply for whatever else was necessary in their own names and that Jimenez would assist them. By the time work stopped, the Riccios already had paid the company $12,666 of the total contract price. Nonetheless, when Jimenez' minimal assistance did not resolve the Riccios' problems quickly, Jimenez decided that he already had put too much into the job, and he began to lose interest and make himself scarce. The Riccios finally got their necessary permits on January 26, 1987. They then approached Jimenez about the work to be done under the contract (and the matter of the remaining $6,333 draw). The Riccios and Jimenez agreed that the Riccios would provide the materials and supplies necessary to complete the work and the company would provide the labor. Despite these alternate arrangements, the company did not promptly finish the job. Eventually, the Riccios gave up on Jimenez and in April or May, 1987, began to deal directly with the company's former job superintendent, a man named Ray. To improve their chances of getting the job done (and reduce some of their extra expenses), the Riccios agreed to allow Ray to live in the house free of charge while they were doing the work. The job still did not get finished. Eventually, Mrs. Riccio and some of her relatives finished the job themselves. Even so, the Riccios wound up spending about $20,000, in addition to the $12,666 they had paid the company, to complete the job which the company had contracted to do for $18,999, total. The Respondent was not aware of any of Jimenez' dealings with the Riccios after the Respondent completed his reroofing work. The Respondent assumed that Jimenez had called for a final inspection and that the job had been completed satisfactorily. But in approximately February or March, 1987, the Respondent was contacted by a DPR investigator in connection with the Riccios' complaint against the company. He learned at about that time about Jimenez' other dealings with the Riccios. He also learned that the roof over the addition that had been built had failed inspection. The Respondent eventually corrected the deficiencies, and the roof passed final inspection on August 19, 1987. The Respondent attempts to excuse himself of any wrongdoing, saying that he had a right to delegate the supervision of jobs such as the Riccio job to Jimenez and that he himself was victimized by Jimenez, along with the Riccios. Respondent nonetheless negotiated with Jimenez through the end of the year 1987 in an attempt to come to an agreement to continue to do business together, but the negotiations finally failed. The Respondent was disciplined by the Construction Industry Licensing Board on January 7, 1988, for offenses which occurred during the same time frame in which the Riccio job took place.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Construction Industry Licensing Board enter a final order finding the Respondent, Donald F. Royal, guilty of violating Section 489.129(1)(j) and (m), Florida Statutes (1987), and imposing on him an administrative fine in the amount of $1,000. RECOMMENDED this 20th day of December, 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 20th day of December, 1988. COPIES FURNISHED: Mr. Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Donald F. Royal, pro se 8509 North 16 Street Tampa, Florida 33604 Bruce D. Lamb General Counsel Dept. of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Robert O. Bartholomew is registered as a general contractor and as a residential contractor holding licenses No. RG0025081 and No. RR0035491. Be was so registered at all times here relevant. Neither Carl Robinson nor his company, Atlas Associates, Inc., is registered as a building contractor in Pasco County. Robinson, acting for Atlas Associates, Inc., entered into a contract with Betty Valdez to construct an addition to her mobile home in Lutz, Pasco County, Florida, and requested Respondent to pull the building permit as neither Robinson nor Atlas Associates, Inc., is registered in Pasco County. Respondent pulled the permit, as contractor, for the work to be done on Valdez' home although he was not a party to the contract. Both Robinson and Respondent testified they worked under a verbal arrangement as partners in several projects; however, Respondent has no ownership interest in Atlas Associates, Inc. The work was started by Robinson's foreman, Hubbard, but after a short period on the job Hubbard was fired and Respondent took over the construction. Disputes arose between Ms. Valdez and the contractor and the work was not completed by Atlas Associates, Inc. Part of the contract provided for a roof over the existing roof on the trailer. Pasco County requires this work, like electrical and plumbing, to be done by one licensed in that field. No licensed roofer was used and no permit to have such work done by a licensed roofer was pulled. Following unsatisfactory termination of the contract between Atlas and Valdez, liens were filed by Atlas Associates, Inc., and Respondent against Valdez' property and countersuits were instituted by Valdez before both sides agreed to drop their claims. Respondent's contention that Ms. Valdez' agreement to drop all claims in settlement of the dispute somehow precludes this action, is without merit. In a separate proceeding Robinson was disciplined by the Board for his violations of the Construction Industry Licensing Law in contracting with Ms. Valdez when not properly licensed to do so.
Findings Of Fact The parties stipulated at conclusion of hearing to the matters set forth in the following findings of fact. Stipulated Facts The Respondent was the subject of a previous administrative complaint filed by the Petitioner. The previous administrative complaint issued by Petitioner was number 76024. The Respondent did not seek a formal administrative hearing to contest the charges of the previous administrative complaint which consisted of the same fact allegations and statutory violation as set forth in the charges in the instant complaint. The Respondent and the Petitioner reached an accommodation in regard to the charges set forth in the previous administrative complaint. Petitioner entered a final order in that previous case pursuant to stipulation and settlement which imposed sanctions upon the Respondent. Such final order was signed on November 19, 1987, by J. R. Crockett, Chairman of the Construction Industry Licensing Board and was filed with the Board Clerk on November 24, 1987. The administrative complaint in Division of Administrative Hearings case number 87-5604 and Petitioner's case number 82716, the instant case, is included in the settlement of Petitioner's case number 76024. As a result of the previous administrative adjudication of the same cause of action as set forth in the present proceeding, further factual findings in this case are not warranted.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that, in view of the parties's stipulation at hearing, a final order be entered 1) finding this administrative complaint, as set forth in Division of Administrative Hearings case number 87-5604 and Petitioner's case number 82716, should have been included in the previous disposition of Petitioner's case number 76024 and 2) dismissing further proceedings in this cause. DONE AND RECOMMENDED this 7th day of March, 1988, in Tallahassee, Leon County, Florida. DON W. 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 7th day of March, 1988. COPIES FURNISHED: Lee Sims, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Michael B. Holden, Esquire Litigation Building, Suite 204 633 South Andrews Avenue Ft. Lauderdale, Florida 33301 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201
The Issue Whether the Respondent aided and abetted an unlicensed contractor by obtaining a permit for a roofing job performed by the unlicensed contractor; Whether the work on the job failed to fully comply with the local building codes; Whether the Respondent gave a guarantee on the job and thereafter failed to reasonably honor the guarantee; and Whether Respondent failed to properly supervise the job site activity.
Findings Of Fact At all times material to this action, Respondent was licensed by the Construction Industry Licensing Board as a registered roofing contractor, holding License No. RC0030450. Carol Kilgore is the daughter of Beula Relihan, who owns a rental home located at 207 East Selma in Tampa, Florida. Mrs. Relihan is 86 years old, and for several years Mrs. Kilgore has been managing the property. In early 1987, Mrs. Kilgore was involved in obtaining estimates to replace the roof at the rental home. After obtaining estimates from contractors listed in the yellow pages, which Mrs. Kilgore felt to be high, Mrs. Kilgore responded to an advertisement for roofing work located in the Money Saver. She called the number listed in the advertiser, talked to Leroy Rison, and asked him to come to the house and give her an estimate. On or about February 26, 1987, Leroy Rison and his nephew, Gary Terrell, visited Mrs. Kilgore after looking at the job site, and wrote out an estimate for replacing the roof of $1,650.00. Mr. Terrell wrote the proposal which reflected the work to be done, the price, and the proposed beginning and finishing date. However, before any contract was entered into, Mrs. Kilgore discovered that neither Rison or Terrell were licensed contractors. She explained that she wanted only a licensed contractor who could pull the permit to perform the work. Although Mr. Terrell and Mr. Rison are willing to work for a homeowner if the homeowner will obtain the permit, Mrs. Kilgore insisted that she wanted a licensed contractor. Therefore, Mr. Rison recommended the Respondent, and later called the Respondent to advise him of the job. The next day, February 27, 1987, Respondent met Mrs. Kilgore and wrote a contract proposal on a form with a printed heading "MacDill Roofing", to which in handwriting was added "& Services." Respondent operates under the name of, and is the qualifying agent for, MacDill Services. The contract prepared by the Respondent merely copied the proposal submitted by Terrell and Rison, including the same price and the same misspelled words. The contract was accepted and signed by Ms. Kilgore's mother. Mrs. Kilgore paid Respondent $650.00, with the balance to be paid upon successful completion of the contract. Work was scheduled to begin the following day, Saturday, February 28, 1987 and be completed by Monday, March 2, 1987. The following Saturday work began. Respondent obtained the permit for the job, and apparently purchased the materials and had them delivered. Leroy Rison worked on the job and hired the laborers. Gary Terrell also worked on the job. One of the men Rison hired, Earl, worked for a roofing company during the week but did not have a license. Mr. Rison could not remember the name of any of the other men who worked on the job. Leroy Rison was not an employee of MacDill Roofing or MacDill Services, but he had worked for Respondent on other occasions. Although Respondent contends that he went by the job site on three or four occasions, staying at the job site between 1 and 2 hours on each occasion, his testimony is not credible. Charles Doty, who was the tenant in the rental home, had received a leg injury which forced him to stay home during this entire period of time. The only time Mr. Doty was gone was for an hour and half on Saturday to attend a therapy session. Mr. Doty never saw Respondent on the job site, although he had heard Respondent's name mentioned by Mr. Rison. Mrs. Kilgore also visited the job site on several occasions and she never saw the Respondent at the job site. Respondent simply did not supervise the job site activities. On March 3, 1987, the roof was scheduled for final inspection by the building department. Mrs. Kilgore went to the house to wait for the building inspector. After several hours, she left to get a soft drink. She was gone only five minutes, but when she returned, she discovered that the building inspector had come and gone, and a "green tag", indicating that the house had passed inspection, had been left on the porch. Mrs. Kilgore was very upset because she felt that the roofing work had not been done properly. She went to the building supervisor at City Hall and asked him if he could send the inspector back to the house so that she could point out the problems. The building supervisor agreed to send the inspector back to the house. The building department inspector was Terry Scott. On March 3, 1987, Mr. Scott had approximately 20 or 25 inspections to do. When he first went to the house he just looked around quickly and left a green tag. He admitted that a thorough inspection was only done if a homeowner complained. When Mr. Scott returned to the house on March 3, 1987, he still did not do a thorough inspection. However, he did issue a "red tag" which listed certain deficiencies that would have to be corrected before the roof could pass inspection. The red tag required that the contractor "replace bad wood where needed and install drip-edge where needed." Normally, when a red tag is issued, the contractor corrects the deficiency and calls for another inspection. That did not occur in this case. On April 9, 1987, Inspector Scott met Mr. Park at the job-site to discuss problems with the roof. On that day, a more thorough inspection was performed. Another red tag was issued and the following deficiencies were noted: "Bad wood not replaced--Wall flashing not properly installed. Flashing around chimney not proper--Felt under drip-edge." Respondent did not correct these deficiencies and never called for another inspection. The permit expired without the roof being approved by final inspection. Although not all the deficiencies noted in the inspection constitute code violations, the Tampa Building Code does require that rotten wood be replaced and the contract specified that the rotten decking would be replaced. Nevertheless, after Respondent completed the job, rotten wood remained in place. The replacement of the rotten wood was noted in both red tags. Respondent never attempted to correct this deficiency. On the day the property initially passed inspection, March 3, 1987, Respondent called Mrs. Kilgore and requested the remaining $1,000 owed on the contract price. Mrs. Kilgore refused to pay the Respondent since she was dissatisfied with the work and the first red tag had issued. At some point, apparently after the red tag issued in April, Respondent decided that he was not going to get any more money from Mrs. Kilgore. Other than asking for the money on March 3, 1987, Respondent has not attempted to collect the remainder of the money from Ms. Kilgore; however, he has also not attempted to correct the code violations and other deficiencies. Since Respondent did not collect the remainder of the money owed, Respondent did not pay Leroy Rison, and Mr. Rison did not pay the laborers who performed the work. As the contractor on this job, Respondent had full responsibility for ensuring that the work was done properly and that the roof passed final inspection. Respondent failed to supervise the work on the job, and the re- roofing was not done in a workmanlike manner. In essence, Respondent abdicated his responsibilities as the contractor on the job, and allowed the work to be performed by unsupervised unlicensed persons. The roofing material used was supposed to be fiberglass shingle guaranteed for 20 years. There was no evidence presented that something other than the material specified was used or that the shingles were not installed in accordance with the manufacturer's specifications. The roof did not leak after the work was completed. No evidence relating to a guarantee, other than the guarantee related to the shingles, was presented. Respondent has previously been disciplined by the Construction Industry Licensing Board. On September 10, 1986, a 61 paragraph Administrative Complaint was filed against Respondent which alleged, among other things, willful violation of local law; failure to qualify a firm through which he was operating; gross negligence, incompetence, misconduct, fraud, or deceit in the practice of contracting; failure to discharge supervisory duties as a qualifying agent; and aiding and abetting an unlicensed person to evade the provisions of Chapter 489. On March 26, 1987, Respondent signed a stipulated settlement with the Department of Professional Regulation admitting to all the allegations set forth in the Administrative Complaint. The stipulated disposition was that Respondent's licensure would be suspended for two years and indefinitely thereafter until an administrative fine in the amount of $3,000 was paid. The stipulation was adopted by Final Order of the Construction Industry Licensing Board rendered June 9, 1987.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered revocation of Respondent's license as a registered roofing contractor. DONE and ORDERED this 25th day of October, 1988, in Tallahassee, Florida. DIANE A. GRUBBS 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 25th day of October, 1988. APPENDIX The following constitutes rulings on the Petitioner's Proposed Findings of Fact. 1.-4. Accepted, generally except the date of February 26, 1987 appears to be the appropriate date, rather than February 7, 1987, in that the estimate from Larry Rison was obtained one day before the contract was entered into with Respondent. Accepted, generally. Accepted as true, but unnecessary and irrelevant, since Rison and Terrell did not enter into a contract for the job. 7.-14. Accepted. 15. Accepted as true; however, the last two sentences were considered unnecessary. 16.-19. Accepted, generally. First sentence accepted, sentences two and three rejected as irrelevant to the issues in this case. Rejected as redundant and for the reasons set forth under Proposed Finding of Fact No. 6. First sentence rejected as not supported by the evidence, second sentence accepted, except as to Respondent's intent. Third and fourth sentences accepted in general. COPIES FURNISHED: Belinda H. Miller, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Francis A. Park 6109 South MacDill Avenue Tampa, Florida 33611 Lawrence A. Gonzalez Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint? If so, what punitive action should be taken against him?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Respondent is a building contractor. He obtained his license (License Number CB C028158) to engage in the contracting business in the State of Florida in 1984. Respondent's license expired on August 31, 1996, without Respondent having made any effort to renew it. On September 1, 1996, the Department placed Respondent's license on "a delinquent status for non-renewal." 5/ It considers the license to be invalid for the 1996-98 licensing period. At all times material to the instant case, Respondent was the primary qualifying agent for Loma Linda Homes Corporation (Loma Linda). In late 1993 or early 1994, Loma Linda entered into a written contract (Contract) with Carmen Bennett and her daughter-in-law, Virginia Bennett, in which it agreed to construct a residence for the Bennetts at 5403 Loma Vista Loop in the Loma Vista subdivision in Davenport, Florida. The Contract had a "[t]ime is of the essence" provision. 6/ The Contract further provided that is was "conditioned upon Purchaser[s, the Bennetts] obtaining a mortgage loan commitment within sixty days from the date of this contract for a term not to exceed thirty (30) years at the prevailing market interest rate at time of closing." The Bennetts timely obtained such a commitment. Prior to the execution of the Contract, Loma Linda had received a $1,000.00 deposit from the Bennetts. At or around the time the Contract was executed, the Bennetts provided Loma Linda with an additional deposit in the amount of $9,813.00. The Contract provided that "[i]f Seller [Loma Linda] fails, neglects, or refuses to perform this Contract, the Purchasers [the Bennetts] shall receive the return of all sums paid to the Seller." Loma Linda failed to meet its obligations under the Contract. Construction of the residence that Loma Linda agreed to build for the Bennetts never commenced. All that Loma Linda did in furtherance of its contractual obligations was to clear the lot on which the home was to be built. The Bennetts have not received back any of the $10,813.00 in deposit monies that they paid Loma Linda.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board enter a final order: (1) finding Respondent guilty of the violations alleged in Counts I, III and V of the Administrative Complaint; (2) penalizing Respondent for having committed these violations by imposing on him a fine in the amount of $1,000.00 and requiring him to pay $10,813.00 in restitution to the Bennetts and to reimburse the Department for all reasonable costs, excluding attorney's fees, associated with the Department's investigation and prosecution of the charges set forth in Counts I, III and V of the Administrative Complaint; 10/ and (3) dismissing Counts II and IV of the Administrative Complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 9th day of January, 1997. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1997.
Findings Of Fact Respondent Bruce G. Alles, is a certified general contractor, license number CGC C014472, and has been so licensed since the summer of 1979. At that time, he became the qualifying agent for Univel, Inc., Melbourne Beach, Florida, a general contracting firm. Prior to Respondent becoming the qualifier for Univel, Inc., one David Boland had been the qualifying agent for the company, and no apparent action was taken by Univel to remove Boland as a qualifier for an undisclosed period of time after Respondent assumed that function. (Pleadings, testimony of Respondent, K. Alles) The only project of Univel that Respondent supervised from 1979 until subsequent to April, 1981 was the renovation of several buildings called Ocean Landings. During the period of March or April, 1980 until April, 1981, he had no involvement in any of Univel's projects. Since April, 1981 he has pulled permits and supervised some small renovation or alteration projects. (Testimony of Respondent, K. Alles, Stipulation) For the past three and one-half years, Lawrence M. Stoner, a certified general contractor and qualifying agent for Dynamic Construction Company, Inc. has engaged in joint construction projects with Univel, Inc. In such instances, Stoner obtains the building permits and supervised construction of the projects. At some undisclosed point in time, Kenneth Alles, Vice President of Univel, Inc. consulted with and obtained assurances from legal counsel that, based upon Univel's relationship with Stoner and Dynamic Construction Company, it was unnecessary for Stoner to file a formal application as qualifying agent for Univel. In fact, Alles was of the opinion that at one point Univel had three qualifying agents simultaneously who were Respondent, Stoner, and Boland. (Testimony of K. Alles) At some undisclosed time subsequent to Respondent becoming the qualifying agent for Univel, that firm entered into a construction contract with Palm Harbor West, Inc. to construct a condominium building called Harbour Cay. Stoner supervised the construction of the building. There was an on-site superintendent of construction who was employed by Univel. Stoner and Univel co-signed a bank loan agreement for the project. (Testimony of K. Alles) Respondent was not involved in the Harbour Cay project in any respect. He did not affix his license number to the contract nor did he supervise of have any connection with the project. (Testimony of K. Alles, Stipulation) On March 27, 1981, the Harbour Cay building collapsed causing multiple deaths and injuries. (Testimony of K. Alles, pleadings)
Recommendation That the Construction Industry Licensing Board administer a written public reprimand to Respondent Bruce Alles for violation of Subsection 489.119(5), F.S., pursuant to Subsection 489.129(j), F.S. DONE and ENTERED this 23rd day of December, 1981, in Tallahassee, Florida. THOMAS C. OLDHAM 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 23rd day of December, 1981. COPIES FURNISHED: Michael Egan, Esquire 217 South Adams Street Post Office Box 1386 Tallahassee, Florida 32302 Joe Teague Caruso, Esquire Post Office Box 757 Cocoa Beach, Florida 32931 James K. Kinnan Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
Findings Of Fact The Respondent, Neil Wayne Smith, is a certified general contractor holding license number CG C003076. This license was suspended on March 4, 1977, for three years, and was reinstated in March of 1980. On March 21, 1980, the Respondent became the qualifier for WWRS Enterprises, Inc. This corporation had been formed in 1978 by the Respondent and his partner, William Rymers, for the purpose of engaging in the general contracting business. Mr. Rymers became president of WWRS Enterprises, Inc., and the Respondent acted as secretary, supervisor of construction, and manager of financial matters. Although the Respondent did not hold any direct stock ownership, his share of the corporate stock was registered in his wife's name. The Respondent knew that under the law WWRS Enterprises, Inc., needed to have a qualifying agent registered with the Construction Industry Licensing Board, and the Respondent and his partner discussed this subject. Since the Respondent's license was under suspension during 1978 and 1979, it was proposed that a Max Dunaway would become the qualifying agent for WWRS Enterprises, Inc., but the necessary paperwork to register him as qualifying agent for the company was never filed. Thus, until March of 1980, the company was not qualified to engage in general contracting. In November, 1979, the Respondent negotiated a contract on behalf of WWRS Enterprises, Inc., with Wilhelm Hackenberg and his wife, for the construction of an addition to their home in Ormond Beach, Florida. Since the Respondent's license was suspended, Max Dunaway pulled the building permit for the company, but the job was supervised by the Respondent, not Max Dunaway. WWRS Enterprises, Inc., was the contracting company to which at least one subcontractor submitted invoices, Mr. Dunaway's company, Southwide Builders, Inc., was not involved in this transaction. At least four construction jobs were performed by WWRS Enterprises, Inc., but only the Hackenberg job was identified by a precise time-frame during which the company had no qualifying agent. The Respondent does not challenge many of these facts. Instead, he contends that he never held any stock in WWRS Enterprises, Inc., and was only a managing employee of the company, not responsible for its policies. These contentions, however, are not consistent with the weight of the credible evidence, and have been discounted.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that license number CG C003076 held by the Respondent, Neil Wayne Smith, be revoked. THIS RECOMMENDED ORDER entered on this 21 day of May, 1981. 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 21st day of May, 1981. COPIES FURNISHED: Michael Egan, Esquire May, 1981. Post Office Box 1386 Tallahassee, Florida 32302 Neil Wayne Smith 14 Rain Tree Drive Port Orange, Florida 32019
The Issue The issue for consideration in this case is whether Respondent's license as a certified building contractor in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Construction Industry Licensing Board was the state agency responsible for the licensing and certification of building contractors, and the regulation of the construction industry in this state. Respondent, Kenneth McDuff Roesch, III, was certified as a building contractor under license number CB C057040, issued initially on December 20, 1993. On March 20, 1998, he changed the status of his license from "Active d/b/a individual" to "Active qualifying Roesch Housemovers, Inc." (RHI). The evidence does not indicate exactly what the relationship between Respondent and RHI was prior to the contract in issue here. Although Respondent's name does not appear on the contract or on any of the other documentation relevant hereto, at hearing he freely indicated his participation in the management of RHI and his responsibility for actions taken by the company. In September 1996 the City of St. Petersburg advised David Maffo that because of the effects of tropical storm Josephine, he would either have to elevate his house in St. Petersburg or tear it down. On November 22, 1996, Mr. And Mrs. Maffo entered into a contract with RHI to raise by five feet their residence located at 8211 Carolyn Street in St. Petersburg and install a new solid foundation. The price for the contracted work was $23,500, with $11,500 due at the signing of the agreement. The contract form reflects that RHI had been bonded and licensed house movers since 1934, but neither Respondent's license number nor his certification number appears on the contract agreement. The contract agreement was signed by Mark Roesch, Respondent's brother, for RHI. Respondent's name does not appear on the contract form. RHI submitted plans for the work called for under the contract to the Building Department of the City of St. Petersburg on February 26, 1997. The application form was signed for the company by Mark Roesch, Respondent's brother. That same date, February 26, 1997, a permit was issued for the work called for under the contract and the application. The contractor was listed as Roesch Housemovers, Inc. on both the application for the permit and the permit. Mark Roesch was the representative of RHI who signed the application for the permit. According to Mr. Maffo, work on the project started on January 28, 1997, prior to the issuance of the permit, at which time Mr. Maffo paid $4,000 to a representative of RHI. Mr. Maffo paid RHI an additional $10,000 on January 30, 1997, and $5,000 more on March 25, 1997, for a total of $19,000. On February 27, 1997, Glenn Savell, the chief building inspector for St. Petersburg, inspected the work being done by RHI and issued a red tag because there was no footer ground and vertical steel was not tied to the footer steel. Neither Respondent nor any of his employees thereafter called the building department for a final inspection subsequent to the issuance of the red tag, and in March 1997 Respondent advised the Maffos that the work called for under the contract had been completed. Mr. Maffo immediately informed Respondent that the project had not undergone a final inspection, and as a result, the house could not be reoccupied. Mr. Savell again inspected the property on June 12, 1997, and again issued a red tag, this time demanding that Respondent obtain a certification from a structural engineer that the foundation and piers met specifications. Mr. Roesch was aware of the issuance of that red tag, but took no action to obtain the required certificate at that time. On June 25, 1997, Mr. Maffo retained Austin Engineering, Inc., to perform an inspection of the project and paid the firm a fee of $1,275.00. Austin's report, a copy of which was given to Respondent, indicated that the project as accomplished by RHI was not acceptable. Upon receipt of this report, Mr. Maffo and Respondent met to discuss it, and Respondent gave Maffo sufficient assurances so that he, Maffo, started a renovation of the interior of the home to correct the damage done by the storm. However, Maffo did not complete them because all assurances made by Respondent did not come about. At the end of July 1997, Mr. Savell's supervisor, Mr. Hill, directed Respondent by letter to hire a structural engineer of his choice to evaluate the project. It was implied that if Respondent's engineer approved the work, the final approval would be issued. More than a year later, on October 8, 1998, Benson Engineering, Inc., the structural engineering firm retained by Respondent in response to Mr. Hill's letter, visited the masonry foundation and support walls and piers done at the Maffo house, and on October 16, 1998, submitted its report approving the project. Based on this approval, Mr. Savell, for the City, issued final approval even though he did not again personally inspect the work. Petitioner contends that the lapse of time between the last work done and the notice to obtain an individual engineering report in June/July 1997 and the receipt of that report more than a year later was unreasonable. Absent any explanation or justification for the delay, it would so appear. Mr. Maffo had Austin Engineering again inspect the property on January 29, 2000. In its report, Austin took exception to the Benson Engineering evaluation of RHI's work and identified many problems still existing. The project was also examined by Wilbur Yaxley, a licensed professional engineer and expert in structural and construction engineering. He found the same defects as found by Austin. These included: The fill cells used to raise the foundation were never adequately filled with concrete as called for in the plans for the project. In at least one location there was no tie-in from the new foundation to the existing foundation. Several of the pillars used to raise the foundation were loose and able to be moved by hand, and others had fallen over. Several of the pillars used to raise the foundation were not horizontal. The foundation walls contained cracks. The interior piers were not constructed in accordance with their design. The floor of the interior had bowed in the center. The horizontal joint reinforcement was not completed as required by the plans. The project as completed does not comply with the plans approved by the City of St. Petersburg at the time of issuance of the permit. The project as completed is not as sound structurally as it would have been if it had been constructed in accordance with the plans approved by the City. During the first year after retaining Respondent's firm to raise his house, while waiting for Respondent to obtain final approval on the work, Mr. Maffo continued to make his monthly mortgage payments of $1,200 even though he and his family did not occupy the property. For financial reasons he was ultimately required to cease making his mortgage payments and the property was lost to foreclosure in April 2000. The experts who examined the property have concluded that further remedial work estimated to cost approximately $17,000 would be required before it could be occupied. These experts, who are familiar with the project, suggest that a reasonable time to complete it would be four months. It is so found. Respondent's father and brother, both of whom are active in the business, indicated the company has been in business for many years without complaint. Respondent presented the testimonials of several prior clients who appear to have been satisfied with the work done for them, and no evidence to the contrary was presented by the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Construction Industry Licensing Board enter a final order placing Respondent's license as a certified building contractor on probation for one year; imposing a total administrative fine of $950; requiring Respondent to pay $2,625.41 as costs of investigation and prosecution; and requiring Respondent to reimburse the Maffos such sums as can be considered above actual RHI's out-of-pocket costs related to this project. DONE AND ENTERED this 16th day of August, 2000, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 2000. COPIES FURNISHED: Robert A. Crabill, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Kenneth McDuff Roesch, III 13650 66th Street North Largo, Florida 33771 Rodney L. Hurst, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Northwood Centre Tallahassee, Florida 32399-0792
