Recommendation Based upon the admission of the Respondent, Oscar Darias, that the allegations in the Administrative Complaint are true, and the Respondent's plea of guilty to the violations as charged in the Complaint, it is RECOMMENDED that the certified general contractor's license, number CG C004728, held by the Respondent, Oscar Darias, be revoked. THIS RECOMMENDED ORDER entered on this 22nd day of September, 1982, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 1981. COPIES FURNISHED: Harold M. Braxton, Esquire 45 S.W. 36th Court Miami, Florida 33135 Oscar Darias 9402 S.W. 17th Street Miami, Florida 33174
The Issue Did Respondent violate Section 489.129(1)(h), Florida Statutes, and, if so, what discipline should be imposed?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida vested with statutory authority to regulate the practice of contracting under Chapters 455 and 489, Florida Statutes. Respondent is a licensed certified residential contractor in the State of Florida. Respondent's license number, as certified by Julie Odom, Department's Alternate Records Custodian, is CRC 20166. However, the Administrative Complaint alleges the license number to be CR C020166. Respondent's licensure status is "Delinquent, Active." On May 18, 1989, the Department entered a Final Order in DOAH Case No. 88-3308 wherein Respondent was found guilty of violating Section 489.129(1)(h),(j),(k), and (m), Florida Statutes. On September 27, 2000, the City of Cape Coral, Florida, Contractor's Regulatory Board (Board) entered into a Settlement Agreement (Agreement) with Respondent, in regard to a complaint, Case No. 00-01, wherein Respondent was charged with violating the following Sections of the City of Cape Coral Code of Ordinances: 6-10.1:, To make misleading, deceptive, untrue, or fraudulent representations in the practice of his contracting profession; 6-10.8: Diversion of funds or property received for prosecution or completion of a specified construction project or operation when as a result of the diversion, the contractor is or will be unable to fulfill the terms of his obligation or contract; 6-10.10: Failing in any material respect to comply with the provisions of the Code; 6-10.11: Abandoning of a construction project in which the contractor is engaged or under contract as a contractor. A project is to be considered abandoned after 90 days if the contractor terminates the project without notification to the prospective owner and the City and without just cause; and 6-10.13: Being found guilty of fraud or deceit or of gross negligence, incompetence, or misconduct in the practice of contracting. The Agreement provided that Respondent was pleading No Contest to the charges that he violated the aforementioned sections of the City of Cape Coral's Code of Ordinances and that Respondent's plea did not act as an admission of guilt as to the above mentioned charges. The Agreement provided for Respondent's permit pulling privileges to be revoked for a period of 90 days starting August 23, 2000. By an Order dated December 29, 2000, the Board, after hearing and discussing the charges made against Respondent, voted to accept and approve the Agreement. By this Agreement, Respondent's contracting license was disciplined by the City of Cape Coral. The total investigative and prosecution costs to the Department, excluding costs associated with any attorney's time, is $967.09.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and a review of Chapter 61G4-17, Disciplinary Guidelines, Florida Administrative Code, with consideration for the repeat violation of Section 489.129(1)(h), Florida Statutes, it is RECOMMENDED that the Department enter a final order finding Respondent, Robert Mensching guilty of violating Subsection 489.129(1)(h), Florida Statutes, and for such violation: (a) impose an administrative fine in the amount of $5,000.00; (b) assess costs in the amount of $967.09; and (c) revoke Respondent's Certified Residential Contractor's License. DONE AND ENTERED this 21st day of March, 2003, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 21st day of March, 2003. COPIES FURNISHED: Kimberly V. Clark, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Robert Mensching 1719 Northeast 23rd Terrace Cape Coral, Florida 33909 Robert Crabill, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulations Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Whether Respondent, a certified general contractor, violated the construction industry licensing law, by: (1) willfully or deliberately disregarding and violating the applicable building codes or laws of the State or any municipalities, cities or counties thereof; (2) diverting construction funds resulting in his unwillingness or inability to perform pursuant to a construction contract; and (3) abandoning a construction project; and if the Respondent is guilty of such violations, the appropriate disciplinary penalty which should be imposed by the Construction Industry Licensing Board.
Recommendation That Respondent's certified general contractor's license No. CGC005174 be suspended until such time as Respondent furnishes the Board satisfactory evidence of having made restitution to Simon H. and Alexandra U. Ramos in the amount of $2,515 for monies expended by them to pay for lumber, electric and plumbing charges arising out of their construction contract.
The Issue The primary factual issue was whether the company which the Respondent had qualified was in fact the contractor on the job from which the allegations in the Amended Administrative Complaint arose. The Petitioner submitted post hearing findings of fact in the form of a proposed recommended order. To the extent that the proposed findings of fact have not been included in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being findings of fact.
Findings Of Fact The Respondent, Edward Ryan, is a certified building contractor holding license number C3 C006481 and was the qualifying agent for Behr Contracting, Inc. (thereafter "Behr Contracting"), at all times relevant to the allegations of the Amended Administrative Complaint. Behr Contracting was, and is a business engaging in, contracting, selling building materials, and mortgage brokerage. Its operations as a mortgage broker are now carried on under a separate corporation; however, at the time involved in these proceedings, its mortgage brokerage operation was carried out in the name of Behr Contracting, Inc. Willie Mae Williams resides at 1451 Northwest 92nd Street, Miami, Florida. In 1980, Ms. Williams had extensive modifications made to her house at the foregoing address. With regard to the work on her house, Ms Williams' initial contact was with S. J. (Jerome) Farmer. Farmer was an independent contractor who was doing home repairs in early 1980 to several homes close to the Williams home. He was not doing these jobs as an employee of Behr Contracting, and no evidence was introduced that at said time he was an employee of Behr Contracting. After he had already begun working on the Williams home, Farmer approached the Respondent and requested Respondent's assistance in helping him estimate additional repairs and modifications to Ms. Williams' home and assistance in obtaining the financing for this job. Farmer was not affiliated in any manner with Behr Contracting. The Respondent arranged for an estimator to assist Farmer in estimating the cost of the project and in obtaining financing for the project. (Testimony of Ryan, Tr. 58 et seq.) This estimator had two contract forms signed by Ms. Williams, one for financing and one for construction. These documents were identified by Ms. Williams and were received into the record. (See Petitioner's Exhibits 2 and 3.) Petitioner's Exhibit 2 is the contract between Behr Contracting and Ms. Williams for the financing of the modifications to the Williams house. Financing for the project was obtained through the mortgage brokerage operation of Behr Contracting and the money funneled through Behr Contracting to pay for materials purchased through Behr's building materials operation. Ms. Williams has made payments and is making payments as required under said contract to the finance company, Uni Credit of Jacksonville, Florida. Behr Contracting provided cabinets, windows and certain appliances, to include a dishwasher. The Respondent was at Ms. Williams' house approximately three times prior to the delivery of building materials from Behr Contracting. (Testimony of Ryan, Tr. 23.) On none of these occasions was the Respondent there as a building contractor qualifying Behr Contracting. At all times, Farmer was in charge of the project. (See testimony of Williams, Tr. 184.) Farmer was the contractor in fact. Subsequent to installation of the dishwasher, the Respondent was present at the Williams house often because of Ms Williams' complaints about the dishwasher. The Respondent replaced this dishwasher and had Ms. Williams' septic tank pumped in order to solve the drainage problem which was causing the dishwasher to malfunction. This was done to honor the warranty on the dishwasher. (Supra, Tr. 45-51.) A salesman for Behr Contracting gave Ms. Williams an estimate on both the contracting and on the financing for the modifications and remodeling of the Williams house. Under its business practices, Behr Contracting disapproved or rejected the contract for construction, yet approved the financing contract. Approval of a construction contract in the amount of the instant contract, over $11,000, would have required an officer's approval. (See testimony of Stanley Weiss, Tr. 21-28.) Although Ms. Williams identified her signature on the purported construction contract (Petitioner's Exhibit 3), she could not identify the signature appearing on the lefthand side of the page at the bottom of the contract in the area of "Agent" and "Officer." This signature also could not be identified by Stanley Weiss or Margaret Behr, officers of Behr Contracting. It was not the signature of Weiss, Ms Behr or the Respondent, who were the only officers of the corporation authorized to approve a contract of this amount at the time that this contract was prepared. This contract (Petitioner's Exhibit 3) was never accepted by Behr Contracting (See testimony of Weiss, Tr. 35.) Although a copy of Petitioner's Exhibit 3 was discovered by Weiss in the files of Behr Contracting, this was a photo copy given to Weiss by the Respondents who had received it from the Board's investigators when the Respondent first spoke to them about this case. (See page 8, deposition of Ryan taken September 17, 1982; see pages 3, 4 and 8, deposition of Weiss; testimony of Ryan, Tr. 70-75; testimony of Weiss, Tr. 10-12.) The Respondent's involvement in this matter was "limited to providing gratuitous advice to Farmer at Farmer's request on one occasion, concerning a broken major waste drain, and representing Behr Contracting who was a major supplier of materials and appliances for the job. It is specifically found that the Petitioner failed to establish the existence of a construction contract between Ms. Williams and Behr Contracting. Regarding the allegations that the Respondent abandoned the job, the Respondent caused the dishwasher supplied by Behr Contracting to be replaced under warranty service. The septic tank at the Williams house was pumped and cleaned at the request of Uni Credit in an attempt to solve the problem. Finally, over a year after the job had begun, the Respondent had the septic tank and drainfeild rebuilt and solved Ms. Williams' drainage problems. This last action was taken under threat of prosecution by the Board's investigators and was done in spite of the fact, which is uncontroverted, that the construction did not address modifications to the plumbing in the house. After the Respondent had taken these actions, Ms. Williams than wanted the cabinets and other work, which had been done by Farmer, replaced because of water damage caused by the drainage problem.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Amended Administrative Complaint against the Respondent, Edward Ryan, be dismissed. DONE and RECOMMENDED this 20th day of September, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 1983 COPIES FURNISHED: Michael J. Cohen, Esquire Kristin Building, Suite 101 2715 East Oakland Park Boulevard Fort Lauderdale, Florida 32206 Mr. Edward Ryan 19762 Bel Aire Drive Miami, Florida 33138 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
Findings Of Fact At all times relevant hereto, Respondent was licensed as a registered building contractor and as a registered general contractor. On or about August 4, 1982, Hoffman, representing B & B Constructors, Inc., contracted with Vernon Swanger to build an addition to the Swanger residence at 4412 West Lelia Avenue, Tampa, Florida. The contract price for the addition to the Swanger residence was $9,150. On August 4, 1982, Swanger made the initial payment to Hoffman of $3,000 by check on this contract. Prior to the signing of this contract, Hoffman had contacted Respondent, who agreed to pull the permit for this project and who signed a blank proposal which was subsequently completed, executed by Swanger and Hoffman on 4 August 1982, and became Exhibit 2 in these proceedings. On or about August 16, 1982, Respondent obtained a permit for the addition to the Swanger residence from the City of Tampa Building Department showing Respondent as the licensed contractor for the job. Although Respondent signed the stipulation of facts that "All or the greater part of the $3,000.00 which was the first or initial payment on the contract for the Swanger addition was diverted from the construction work," Hoffman testified in Exhibit 25 that he used the $3,000 to buy materials for the project and to pay his (Hoffman's) salary for his work on the project. Under the facts here presented, Hoffman was the only one who knew for what this $3,000 had been used. In his deposition Hoffman testified that an excessive number of rainy days resulted in cost overruns resulting in insufficient money to complete the project. At no time relevant hereto was Hoffman of B & B Constructors, Inc., licensed as a contractor by the State of Florida. Respondent visited the Swanger residence once or twice while the work was in process, but all materials were ordered by Hoffman, all subcontractors were hired by Hoffman or Swanger, Hoffman was the one supervising the project, and Respondent's participation and supervision was, at best, pro forma. At no time was Respondent the qualifying agent for B & B Constructors, Inc., although Respondent briefly considered acquiring B & B Constructors, Inc., at or about the time the contract with Swanger was negotiated. The City of Tampa, Florida, is the local government with jurisdiction of the area, which is part of Hillsborough County, where Respondent is qualified as a licensed contractor. On or about January 11, 1983, as the result of a complaint filed by Swanger, Respondent's license to practice contracting in Tampa was revoked by the City of Tampa Unified Construction Trades Board. Respondent testified that he paid for the permit pulled for the Swanger project out of his own pocket and was never reimbursed by Hoffman. However, in Exhibit 25, Hoffman testified that he gave Respondent $100 in cash with which to pull the permit and his agreement with Respondent was to pay Respondent 3 percent of the contract price to pull the permit as licensed contractor.
Recommendation From the foregoing it is concluded that Respondent is guilty of all charges alleged except violation of Section 489.129(1)(h), Florida Statutes, involving diversion of funds. In view of Respondent's voluntary inactivation of his license since June 1983 it is recommended that Respondent's license be suspended for six (6) months from the date the Construction Industry Licensing Board enters its final order in this case. DONE AND ENTERED this 19th day of October 1984 at Tallahassee, Florida. K. N. AYERS 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 19th day of October 1984. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 George W. Brown 11222 Russell Drive Seffner, Florida 33584 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Board of Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202
