Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent James W. Geary presently holds certified general contractor's license number CG C005775. Respondent Geary apparently entered into a contract with Phillip Smith to add a screened porch to the Smith residence. Neither the contract nor the testimony of Mr. Smith were made available to the undersigned Hearing Officer. Respondent had difficulty obtaining a roofer and completion of the project was therefore delayed. During the interim, the interior of the Smith's living room suffered water damage. After receiving a complaint from the Smiths, Mr. Robert Jahn, Chief Building Official for the City of Tamarac, personally inspected the Smith project. He found that the water damage was caused by the uncompleted work of respondent and certain violations of the Southern Florida Building Code. Jahn did not know how long the project had not been worked on, but Smith told him he had tried for about one month to get respondent to return to correct the situation. Respondent testified that when he sent a man to the Smith residence to install the roof columns, Smith chased the man off the job. Upon the delivery of certain supplies for his projects, respondent Geary, d/b/a First Triangle Corporation, wrote two checks in the total amount of $391.41 payable to Rinker Materials. (Exhibit 1) These checks were offered for payment by Rinker, and were returned due to insufficient funds. The former credit manager of Rinker Materials did not know whether anyone from Rinker had contacted respondent about the checks. Respondent testified that no one from Rinker had informed him that the checks were dishonored. However, respondent did receive notice from his bank that the checks had been returned. He was changing banks about the same time and felt that the bank had made mistakes in the past. He felt that the checks were good when issued and he therefore did not put much reliance upon the notices received from the bank. Respondent testified that he is ready, willing and able to honor the checks written to Rinker Materials. Respondent Geary apparently entered into a contract with Richard Decker for the addition of a five by eleven foot bathroom to the Decker's residence. Neither the contract, the plans or specifications nor the testimony of Mr. Decker were offered into evidence at the Hearing. Respondent felt there were no deviations between the finished product and the job specifications, and that, even if there had been, there was no way he could put a five foot vanity into the project without violating the applicable building code. The field investigator for petitioner's District No. 10 found deviations from the plans with regard to the size of the vanity, the bathroom door and the illumination. He found that the Deckers had not indicated their approval of such deviations by placing their initials on the plans or specification. The South Florida Building Code (302.2(b)) provides that when the cost of a job is over $5,000.00, the permit applicant must present plans signed and sealed by a registered architect or engineer. A larger permit fee is also required for jobs costing over $5,000.00. On or about April 9, 1976, respondent Geary applied to the City of Tamarac for two building permits. (Exhibit 2). While blueprints were submitted, no plans signed and sealed by a registered architect Or engineer were submitted. From the square footages contained on the right hand column of the application, Chief Building Official Jahn determined that the value of the two projects were $7,300.00 and $6,620.00. The contract prices for these projects were approximately $8,000.00 and $10,000.00. There was no conclusive testimony as to who supplied the footage information on these applications, It was respondent's opinion that the actual costs of these projects did not exceed $5,000.00. Respondent apparently entered into a contract with Daniel Salzman for some project, and then entered into a second contract for the construction and installation of a fence and a trellis. For this second project, respondent received a deposit of $825.00. The first job was never completed by respondent and respondent never began work on the fence and trellis project. Respondent admitted that some $500.00 was due Mr. Salzman as a refund for the second project. He testified that he instructed Mr. Salzman to have the work on the first project completed by someone else and then to send respondent the bill for the same. Respondent has not heard from Salzman regarding this matter. By letter dated November 20, 1976, Chief Building Official Jahn notified respondent that "No further building permits [would] be issued to First Triangle Builders with you as their qualifier because of numerous complaints and unfinished projects." As indicated in the Introduction, petitioner filed an administrative complaint against respondent seeking to revoke his license for violations of certain ordinances and Florida Statutes S468.112(2). The cause was referred to the Division of Administrative Hearings for the appointment of a Hearing Officer, and the undersigned was designated to conduct the hearing.
Recommendation Based upon the findings of fact and conclusions of law recited above, as well as the seriousness of the offenses of which respondent has been found guilty, It Is recommended that respondent's certified general contractor's license number CG C005775 be revoked. Respectfully submitted and entered this 18th day of July, 1977, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (488-9675) Area Code 904 COPIES FURNISHED: Barry Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 Mr. James W. Geary 4370 Northwest 32nd Court Lauderdale Lakes, Florida Wallace Norman Construction Industry Licensing Board 305 South Andrews Avenue Ft. Lauderdale, Florida 33301 J. K. Linnan, Executive Director Construction Industry Licensing Board Post Office Box 8621 JacksonvIlle, Florida 32211
Findings Of Fact In General: Respondent is, and was at all times material to the Administrative Complaint, a certified general contractor, having been issued license no. CG C016774 by the Florida Construction Industry Licensing Board. At no time material to the Administrative Complaint was Stephen Karlan licensed, registered or certified by the Florida Construction Industry Licensing Board. As to Counts I--III: There is no evidence, direct or indirect, to tie any participation by Stephen Karlan to any event at the Reyes' home (Administrative Complaint Counts I--III). Mrs. Carolyn Reyes is the wife of Augustin Reyes, both of whom have resided at 9355 Southwest 180th Street, Miami, Florida, for approximately 12 years. They first met with Respondent Gomez sometime in July of 1983, and after a series of discussions concerning the work which the Reyes' desired, their budget restrictions, and charges proposed by Respondent, a contract was prepared by Respondent on Respondent's stationery. (P-3) The contracted work included: completely remodeling the kitchen and living room; the installation of central air conditioning and heating; the construction of a swimming pool; and the construction of a covered patio. The Reyes provided Respondent with a check in the amount of $4,227.40, representing a twenty percent down payment on the contract price of $24,237.00. Although signed by Mr. Reyes, who did not testify, Mr. Reyes' signature was identified by Mrs. Reyes on the contract and on the September 20, 1983 check. She was present at the execution of the contract and tendering of the check on the Reyes' joint bank account to Respondent Reyes on September 20, 1983. Existence of this contract and its terms is not disputed by Respondent. Subsequently, approximately $3,100.00 was deducted from the total contract price by way of a change order. This amount represented the cost of installing a roof over the patio and brought the new contract price to $21,137.00. (P-3 and P-6) A change order, prepared by Respondent, and signed by Mrs. Reyes, was agreed to approximately October 18, 1983, for installation of more expensive bronze-tone sliding glass doors in the family room and $250.00 was paid additionally by the Reyes. From September through November, 1983, Respondent performed construction work at the Reyes' residence. Under the terms of the contract, the Reyes provided Respondent with the following amounts, mostly by checks drawn on their joint account and issued over Mrs. Reyes' signature. DATES AMOUNTS September 20, 1983 $ 4,227.40 (20 percent down payment) October 5, 1983 $ 1,056.85 (installation of kitchen cabinets) October 13, 1983 $ 3,170.55 (pool framing inspection) October 24, 1983 $ 250.00 (change order--glass doors) October 25, 1983 $ 2,137.00 (air conditioning equipment) October 28, 1983 $ 2,137.00 (pool gunnited) November 3, 1983 $ 1,056.85 (kitchen remodeling) November 4, 1983 $ 1,056.85 (plumbing payment) November 21, 1983 $ 2,000.00 (kitchen and den) November 23, 1983 $ 1,000.00 (kitchen and den) November 28, 1983 $ 982.00 December 6, 1983 $ 2,137.00 (pool decking) $21,211.50 TOTAL (P-6) All of these checks were cashed by Respondent. During October and November, 1983, work was localized in the kitchen. Mrs. Reyes recalled not being able to use her kitchen for Thanksgiving, 1983. Except for recurring problems of improperly installed tiles, cabinets and appliances, related infra., Respondent completed the bulk of the kitchen remodeling in early December, 1983. Also in early December, 1983, the swimming pool was dug and gunnite was sprayed for the pool. Gunnite is a base of a spray used for installing the concrete bottom of a swimming pool prior to installing further marble-type finishing material, tile, and accouterments. In this same time period, the overhang above the anticipated patio was torn off the existing house by Respondent with the apparent goal of tying the existing roof beams into the new roof. After December 6, 1983, Respondent failed to perform any actual construction at the Reyes' residence until May, 1984. 2/ His crew only worked there one day in December of 1983. Approximately December 20, renegotiation of pool costs and kitchen tile costs were indulged-in by the the participants. The final result was that the Reyes would pay $80.00 more for kitchen tiles and $106.00 more for pool tiles and would be permitted by Respondent to deduct $246.00 from the total owed on the contract to him. Mrs. Reyes purchased the pool materials and paid cash for them rather than turning over any monies to Respondent but she stored them on her property so that the work could go forward. Respondent testified that shortly before that point in time, he realized that he had underestimated the cost of doing the Reyes' job by $6,000.00 to $7,000.00 and attempted to explain to them that having received approximately 90 percent of the contract price, but having not completed that much of the work contracted-for, he would have to do the work as he was able between other jobs in order to stay afloat financially. Respondent's proposal was not initially acceptable to the Reyes and they hired a lawyer who thereafter prohibited Respondent making direct contact with the Reyes. At that time, the following items remained to be completed at the Reyes' residence. The pool tile had not been installed; the pool equipment had not been purchased or installed; the living room windows had not been installed; and the patio roof had not been completed. There were also numerous problems with the quality of the workmanship of the completed items. The kitchen cabinets and the dishwasher were both initially improperly installed. As a result of the Reyes complaining to the Metropolitan Dade County Building and Zoning Department, one of that agency's code enforcement officers, John Delaney, inspected the Reyes' home on April 20, 1984. At that time, Mr. Delaney noted all of the items listed in Paragraph 8 as needing completion and also noted that the patio roof overhang was still exposed to the elements and that the air conditioning unit was only balanced on a concrete slab. Mr. Delaney estimated that at that time the contract work was approximately 55 percent to 60 percent complete. Upon investigation and a record search, Mr. Delaney determined that Respondent had obtained an approved building permit for the construction of the swimming pool and the open beamed porch. (P-13) The building permit did not specify installation of the pool's piping. Likewise the building permit did not specify that Respondent might perform the interior remodeling work. This permit which Respondent did obtain lists, and Respondent's signature acknowledges, that Respondent knew that "unless specifically covered by this permit" separate permits must also be obtained for electrical, plumbing, roofing, and paving and pool, among other items. Upon concluding his investigation, Mr. Delaney felt sufficient evidence existed to charge Respondent with violation of Section 10-22 of the Metropolitan Dade County Code and forwarded his investigative report to the official for the appropriate unincorporated municipality. This report indicates that Respondent also pulled permits for mechanical air conditioning and heating and an electrical permit for the swimming pool. To Mr. Delaney's knowledge, no charges were ever filed by that official against Respondent. 3/ Mr. Delaney conceded that a state certified general contractor such as Respondent can legitimately do pool piping and that the only failure of Respondent was in not pulling the county permit. He indicated that the kitchen work in the Reyes' home would require a special permit because there is electrical and plumbing work in replacing old appliances with new. However, as to the kitchen cabinets he felt it would be permissible for either the general contractor to pull a general permit or for a subcontractor to pull a specialty cabinet permit. By questions on cross-examination of Mr. Delaney, Respondent asserted that no electrical work was done, no switches were moved and his only work was replacement of kitchen cabinets, floor, and acoustical tile but this is in the form of his questions and not sworn testimony. Respondent eventually came back to the Reyes job. He finished the pool in July, 1984. He finished the open beamed roof in October 1984. Respondent's carpenters or subcontracting cabinetmakers Carlos and Hector eventually fixed a kitchen door drawer Mrs. Reyes had complained about. (It was never established what these workers' status was/is.) Despite her general dissatisfaction with the tiles in her kitchen, despite a chipped sink, and despite personally having to explain to the plumber (again the tile setter and plumber's contract or employment relationship with Respondent is unclear) how to install the dishwasher, Mrs. Reyes currently feels 95 percent of the contract work has been completed by Respondent. 4/ She acknowledged that Respondent has provided additional bronze fixtures in her family room by way of mitigation. As to Counts IV--VII: In March, 1982, June Mildred Cooper contracted with one Steve Karlan for the construction of a bathroom addition on a residence located at 4835 Westwood Lakes Drive, Miami, Florida. The contract price was $6,700.00. Steve Karlan is not registered, certified, or otherwise licensed by the Florida Construction Industry Licensing Board. See supra. All oral representations made by Karlan to Mrs. Cooper are total hearsay and excludable, but it is clear that Respondent was never mentioned or otherwise identified during the contract negotiation of Cooper and Karlan. Cooper submitted contract payments directly to Karlan and never paid anything to Respondent. Cooper found Respondent on the job one day and thinks he said something to her like, "I'm the boss," but her memory of the exact language, if any, is vague. Cooper was admittedly not on the premises most of the time the construction was in progress because she repeatedly visited her other residence in Indianapolis for several months at a time. Respondent admits he was approached by Steve Karlan to give an estimate for the bathroom job and they thereafter agreed that Respondent should do the work. Respondent admits Karlan later gave him a piece of paper, probably a tax assessment, showing June Cooper's name as the owner, which Respondent used as the basis for filling out the building permit application which he applied for and received covering the portion of the construction work he did at her Florida residence. At the conclusion of his job, Respondent also executed a waiver-of- mechanic-lien affidavit which did not specify any owner and gave it to Karlan. Gomez never inquired into the relationship between Karlan and Cooper and just assumed Karlan was a relative, probably a son, living at the same address, and initially assumed Karlan had authority to authorize the work because Karlan opened the door to him the first time Respondent came to do the requested estimate. At the time Karlan opened the door to Respondent, some construction was already in progress in the house. Respondent represents that this scenario of obtaining a construction job is so customary in the trade that he never questioned Karlan's statement until Mrs. Cooper ultimately complained about the construction after completion. He recalls meeting her at the house twice during construction, but does not think he told her he was the boss. In mitigation, he represents that he made good on Mrs. Cooper's complaints. Respondent admits he later entered a contract with Steve Karlan as a "salesman" after satisfying Mrs. Cooper but that contract had nothing to do with the Cooper job.
Recommendation Accordingly, upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Construction Industry Licensing Board enter a final order requiring Respondent to pay a penalty of $1,000.00 and monitoring his license for one year in a probationary status. DONE and ORDERED this 18th day of July, 1985, in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1985.
The Issue The Florida Construction Industry Licensing Board, Petitioner, seeks to revoke the registered contractor's license of Stephen J. Borovina, Respondent, based on allegations, which will be set forth in detail hereafter, that he engaged in conduct violative of Chapter 468, Florida Statutes. The issue presented is whether or not the Respondent aided or abetted and/or knowingly combined or conspired with Mr. Howard North, an uncertified or unregistered contractor, to evade the provisions of Chapter 468.112(2)(b), and (c), Florida Statutes, by allowing North to use his certificate of registration without having any active participation in the operations, management, or control of North's operations. Based on the testimony adduced during the hearing and the exhibits received into evidence, I make the following:
Findings Of Fact The Respondent is a certified general contractor who holds license no. CGC007016, which is current and active. On or about July 25, 1976, Mr. and Mrs. Julius Csobor entered into a contract with Mr. and Mrs. Howard North for the construction of a home in Martin County, Florida, for a total price of $35,990. Neither Mr. or Mrs. North are certified or registered contractors in the State of Florida. (Petitioner's Composite Exhibit #2). Respondent applied for and was issued a permit by the Martin County Building Department to construct a residence for the Csobors at the same address stipulated in the contract between the Csobors and the Norths, i.e., Northwest 16th Street, Palm Lake Park, Florida. (Petitioner's Composite Exhibit #1). Howard North, a licensed masonry contractor for approximately nine (9) years was contacted by the Csobors through a sales representative from a local real estate firm. It appears from the evidence that North had previously constructed a "spec" house which the local realtor had sold and thus put the Csobors in contact with Mr. North when they were shown the "spec" house built by North. Evidence reveals that North contacted Borovina who agreed to pull the permit "if he could get some work from the job and could supervise the project". Having reached an agreement on this point, North purchased the lot to build the home for the Csobors and he orally contracted with the Respondent to, among other things, pull the permit, supervise construction, layout the home and do trim and carpentry work. North paid Respondent approximately $200 to layout the home for the Csobors. By the time that North had poured the slab and erected the subfloor, the Csobors became dissatisfied with his (North's) work and demanded that he leave the project. According to North, Respondent checked the progress of construction periodically. Prior to this hearing, the Csobors had never dealt with Respondent in any manner whatsoever. According to Csobor, North held himself out as a reputable building contractor. A contractor is defined in relevant part as any person who, for compensation, undertakes to, or submits a bid to, or does himself or by others, construct, repair, etc. . . . real estate for others. . . Chapter 468.102(1), Florida Statutes. Applying this definition to the facts herein, it appears that the Respondent, at least in a literal sense, satisfied the requirements and obligations of a contractor, as defined in Chapter 468.102, Florida Statutes. Thus, he contracted with North to oversee and/or supervise the project for the Csobors which he fulfilled, according to the testimony of North. Said testimony was not refuted and thus I find that no effort was made by Respondent to evade any provision of Chapter 468, Florida Statutes. Accordingly, I shall recommend that the complaint filed herein be dismissed in its entirety.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the complaint filed herein be dismissed in its entirety. RECOMMENDED this 4th day of November, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry S. Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 Stephen J. Borovina 2347 Southeast Monroe Street Stuart, Florida 33494 J. Hoskinson, Jr. Chief Investigator Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. DIVISION OF ADMINISTRATIVE HEARINGS, DOCKET NO. 77-1442 STEPHEN J. BOROVINA, CG C007016, 2347 S. E. Monroe Street, Stuart, Florida 33494, Respondent. / This cause came before the FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD at its regular meeting on February 10, 1978. Respondent was sent the Hearing Officer's findings and recommendations and was given at least 10 days to submit written exceptions to the recommended order. Respondent was notified of the meeting so that respondent or counsel might appear before the Board. Respondent did not appear The FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD on February 10, 1978, after reviewing a complete transcript of the Administrative Hearing, by motion duly made and seconded voted to revoke the certified general contractor's license of STEPHEN J. BOROVINA. It is therefore, ORDERED that the certification of respondent STEPHEN J. BOROVINA, Number CG C007016, be and is hereby revoked. Respondent is hereby notified that he has 30 days after the date of this final order to appeal pursuant to Chapter 120, Florida Statutes, and the Florida Appellate Rules. DATED this 13th day of February, 1978. FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD BY: JOHN HENRY JONES, President ================================================================= SECOND AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD STEPHEN J. BOROVINA, CG C007016, Respondent/Appellant, vs. DIVISION OF ADMINISTRATIVE HEARINGS, DOCKET NO. 77-1442 FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner/Appellee. / This cause came before the Florida Construction Industry Licensing Board at its regular meeting on August 3, 1979. The respondent was sent the Hearing Officer's findings and recommendations and was given at least 10 days to submit written exceptions to the recommended order. Respondent was notified of the meeting so that respondent or counsel might appear before the Board. Respondent did appear. The Florida Construction Industry Licensing Board, on August 3, 1979, after reviewing a complete transcript of the Administrative Hearing, by motion duly made and seconded, voted to revoke the certified general contractor's license of Stephen J. Borovina, No. CG C007016. On February 13, 1978, the certification of respondent, Stephen J. Borovina, No. CG C007016, was revoked by order of the Florida Construction Industry Licensing Board. On April 25, 1979, the District Court of Appeal of the State of Florida, Fourth District, in Case Number: 78-527, reversed the final order of the Florida Construction Industry Licensing Board. That Court remanded the above captioned case to the Board to further consider the matter and enter such order as it may be advised in conformity with Section 120.57(1)(b)(9), Florida Statutes (1977). In accordance with the decision of the Florida District Court of Appeal, Fourth District, the Board has reconsidered the above captioned matter and finds as follows: The Board rejects the recommended order as the agency's final order. The Board adopts the first paragraph of the hearing officer's finding of fact. The Board, however, rejects the findings of fact found in the second paragraph of the hearing officer's findings. The second paragraph states as follows: A contractor is defined in relevent(sic) part as any person who, for compensation, undertakes to, or submits a bid to, or does himself or by others, construct, repair, etc. real estate for others...Chapter 468.102(1), Florida Statutes. Applying this definition to the facts herein, it appears that the Respondent, at least in a literal sense, satisfied the requirements and obligations of a contractor, as defined in Chapter 468.102, Florida Statutes. Thus, he contracted with North to oversee and/or supervise the project for the Csobors which he fulfilled, according to the testimony of North. Said testimony was not refuted and thus I find that no effort was made by Respondent to evade any provision of Chapter 468, Florida Statutes. Accordingly, I shall recommend that the complaint filed herein be dismissed in its entirety. The findings of fact found in the above-quoted paragraph were not based upon competent substantial evidence. The competent substantial evidence supports a finding that the respondent, Stephen J. Borovina, did not supervise the project and that Borovina evaded the provisions of Chapter 468, Florida Statutes. The following evidence supports the Board's position: There was no written agreement entered into between Howard North and the respondent which indicated that the respondent was to supervise the construction of the Csobors' house (T- 14); It was conceded at the hearing that the only subcontractors or draftmen who worked on the Csobors' house were contracted solely by Howard North and they had no contract whatsoever with the respondent (T-19, 25); The respondent never advised or informed Mr. and Mrs. Csobor that he was the contractor on the job. (T-51); At all times during the act of construction of the house, Mr. and Mrs. Csobor were under the impression that Howard North was the contractor (T-44-51). It is, therefore, ORDERED: That the certification of respondent, Stephen J. Borovina, Number CG 0007016, be and is hereby revoked. Respondent is hereby notified that he has thirty (30) days after the date of the Final Order to appeal pursuant to Chapter 120, Florida Statutes, and the Florida Appellate Rules. Dated this 3rd day of August, 1979. FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD BY: JOHN HENRY JONES, President
The Issue Whether respondent on several occasions aided an unlicensed contractor to engage in contracting by obtaining permits on respondent's license for contracting jobs performed by the unlicensed contractor; Whether respondent committed the statutory violations alleged; and If so, whether respondent's license should be suspended or revoked, or whether some other penalty should be imposed.
Findings Of Fact At all times material to the Administrative Complaint, respondent was a certified general contractor in Florida holding License No. CG C000572. Johnnie T. Thomas is the president of J. T. Thomas Construction Company. Mr. Thomas is not a licensed contractor in the State of Florida. Although respondent has used his license to qualify several corporations, the last being Julius Isaac & Association, Inc., respondent never qualified J. T. Thomas Construction Company. Indeed, J. T. Thomas Construction has never been qualified by any licensee. During the time period relevant to this action, J. T. Thomas Construction Company was the name used by Mr. Thomas to engage in the contracting business. On July 25, 1983, J. T. Thomas Construction Company contracted with Hazel N. Jones for the construction of a residence at 11729 Rock Hill Road, Thonotosassa, Florida, in Hillsborough County. Johnnie Thomas signed the contract on behalf of J. T. Thomas Construction Company as "President and Builder." Ms. Jones did not know that Mr. Thomas was unlicensed. James Montjoy drew the plans for the house and recommended Thomas as the builder. The total price for the house was $75,500. The house was started in September of 1983, and on January 30, 1984 final payment was made. After moving into the house, Ms. Jones discovered several problems. In June of 1984 an energy check found that the home was not properly insulated; however, this was apparently corrected in May of 1985. Ms. Jones had several other problems with the home and sent a "punch-list" to Mr. Thomas setting forth the items that needed to be corrected. Although Mr. Thomas admitted at the hearing that there were items that should have been corrected on the punch-list, he also admitted that he did not correct them because he disputed other claims of Ms. Jones. The building permit application for Ms. Jones' home was signed by the respondent. On the building permit application, the contractor was listed as Julius Isaac and Association, Inc. The building permit was issued on August 15, 1983. It listed Julius H. Isaac and Julius Isaac and Association, Inc. as the contractor. The building permit was signed by Julius H. Isaac as agent. Ms. Jones never met Mr. Isaac, never saw him and never knew that he was involved in any way in the construction of her home. In late 1984, Ms. Catherine Farragut, the owner of a building located at 1704 North Nebraska Avenue, Tampa, Florida, contracted with J. T. Thomas to have her building remodeled. Ms. Jones recommended Mr. Thomas to Ms. Farragut before Ms. Jones began to experience problems with Mr. Thomas. Ms. Farragut was not aware that Mr. Thomas was not a licensed contractor. The remodeling of the building was completed in early 1985. The permit for the interior remodeling of the offices at 1704 North Nebraska Avenue was issued on July 23, 1984 to Julius Isaac & Association. Ms. Farragut did see Isaac at the job site in the central parking area; however, Mr. Thomas never advised Ms. Farragut that respondent was involved with the project. On August 20, 1985 J. T. Thomas Construction Company contracted with Evelyn S. Williams to construct a residence at 3620 East North Bay Street, Tampa, Florida. The contract price for the home was 66,000 and payments by check were made to Johnnie Thomas in intervals. Construction on the home began in November 1985. Ms. Williams moved into the home in August of 1986. She discovered some problems with the house, and gave Mr. Thomas a list of the items that needed to be corrected. Mr. Thomas corrected all the items but one. Ms. Williams still has a problem with the roof getting moldy due to water retention. A permit was issued by the City of Tampa Building Department on November 20, 1985, for construction at 3620 East North Bay Street. The permit was issued to Julius Isaac and the contractor of record is stated as Julius Isaac d/b/a Julius Isaac & Associates. Ms. Williams never met Mr. Isaac or saw him; however, Ms. Williams did not go to the job site during construction since the mortgage company was supposed to periodically inspect the house during construction. Ms. Williams was not aware that Mr. Thomas was unlicensed. On August 28, 1986, J. T. Thomas Construction Company entered into a written contract with Ms. Verlie Nelson to construct a residence at 8105 Jad Drive for a price of $102,560. Ms. Nelson thought that Mr. Thomas was a licensed contractor. She never saw Mr. Isaac at the job site, however, she was rarely there because Sun Coast Federal Credit Union was paid to do the inspections. On October 16, 1986, respondent applied for a building permit for 8105 Jad Drive. John and Augusta Thomas were listed as the owners and Julius Isaac & Association, Inc., was listed as the general contractor for the project. On November 7, 1986, the permit was issued by the Hillsborough County Building Department. Julius H. Isaac was listed as the applicant and contractor. John and Augusta Thomas were listed as the owners of the property at 8105 Jad Drive. Mr. Thomas admitted that J. T. Thomas Construction Company built the homes for Ms. Jones, Ms. Nelson and Ms. Williams, and did the renovation on the building owned by Ms. Farragut. Mr. Thomas received the payments for the projects, hired and paid the subcontractors and supervised construction. He also managed the daily affairs of J. T. Thomas Construction Company. J. T. Thomas Construction Company was formed in 1971 under the name Thomas (J. T.) Construction Company. However, the company, as a corporate entity, was dissolved by proclamation in 1973. J. T. Thomas' brother Leslie was the secretary of the corporation and a licensed contractor. He obtained the building permits for the company until be became ill. Thereafter, respondent obtained the building permits for J. T. Thomas Construction Company. Respondent knew that Mr. Thomas was not licensed and could not get the permits himself. Respondent is not a salaried employee of J. T. Thomas Construction Company, and he received no compensation for his services although he was reimbursed for the actual cost of obtaining the permits. Other than obtaining the permits, respondent's only connection with Mr. Thomas' construction projects was to visit job sites before inspections or go to a site if Mr. Thomas asked for his help with a construction problem. However, there was no competent evidence establishing that respondent ever went to the particular job sites involved in this case. Respondent had no responsibilities in connection with the projects and had no authority to take any actions. In essence, respondent was simply "helping" a long time friend. Respondent has been licensed since 1968, and there was no evidence presented of any prior violations or any prior complaints.
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 finding respondent guilty of the act set forth in Section 489.129(e), Florida Statutes, and imposing an administrative fine of $1,500. DONE AND ENTERED this 27th day of May, 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 27th day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5586 Rulings on petitioner's proposed findings of fact by paragraph: 1-8 Accepted generally. COPIES FURNISHED: David L. Swanson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Julius H. Isaac 421 Ella Mae Avenue Tampa, Florida 33602 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 William O'Neil Stephen F. Hanlon, Esquire General Counsel BARNETT, BOLT & KIRKWOOD Department of Professional Post Office Box 3287 Regulation 100 Twiggs Street 130 North Monroe Street Sixth Floor Tallahassee, Florida 32399-0750 Tampa, Florida 33602
The Issue The Administrative Complaint in this cause charges the Respondent with having been the qualifier for Re-Mod-Co Builders, Inc., and that Re-Mod-Co contracted with Mr. and Mrs. Edward Macek to repair the roof of the Macek home in Fort Myers, Florida. The Administrative Complaint charges that no permit was obtained for the Macek roofing job, contrary to Section 107.2, Standard Building Code, as adopted by Lee County, Florida, and that the Respondent was not certified or registered as a roofing contractor, contrary to the provisions of Ordinance 80-31, Section (1)(a) and 8-8(3)(a) of Code of Laws and Ordinances in Lee County. The Administrative Complaint alleges that the foregoing violations constitute a violation of Section 489.129(1)(d), Florida Statutes, because the Respondent willfully or deliberately disregarded and violated the laws of the state or of any municipality or county thereof.
Findings Of Fact Dennis E. Rodriguez was issued a residential contractor's license number CR CO12393 in February, 1978. Rodriguez qualified Re-Mod-Co Builders, Inc., in November of 1950, and license number CR CAI2393 was issued to Dennis E. Rodriguez, Re-Mod-Co Builders, Inc., 4023 W. Water Avenue, Tampa, Florida 33612. In March, 1951, a change of status was submitted by Respondent, requesting that license number CR CA12393 issued to Rodriguez and Re-Mod-Co be changed to reflect qualification of Bay to Bay Designs. At the time of the hearing, the Respondent held license number CR CO12393. On February 10, 1951, Re-Mod-Co Builders, Inc., contracted with Mr. and Mrs. Edward Macek to repair the roof of their home at 1553 Braeburn Road, Fort Myers, Florida 33907, and completed the contract work on February 16, 1981. The records of the Lee County Building Department reflect that no roofing permits were issued between February 6 through February 16, 1981, to Re-Mod-Co Builders, Inc., for owner Edward Macek. The ordinances of Lee County require that a permit be obtained prior to repairing a roof within Lee County. The ordinances of Lee County also require the certification or registration of roofing contractors and limit to roofing contractors the repair to roofs within Lee County. See Section 107.2, Standard Building Code, as adopted by Lee County Ordinance 81-5 and Section (1)(a) and Section 8-8(3)(a), Ordinance 50-31, Code of Laws and Ordinances in Lee County. The records of the Department of Professional Regulation do not reflect that Dennis E. Rodriguez is now or ever has been a registered or certified roofing contractor. At the time that Re-Mod-Co Builders, Inc., repaired the Maceks' roof, Dennis E. Rodriguez was not a certified or registered roofing contractor, and Re-Mod-Co Builders, Inc., for which Rodriguez was qualifier, did not obtain a building permit for the repairs to the Maceks' roof. Respondent Rodriguez had no knowledge of the operation of Re-Mod-Co Builders, Inc., in Fort Myers or the fact that said company entered into a contract to repair the roof of Edward Macek. Said work was done under the direction of John Franta (phonetic). The Respondent had no knowledge of Re-Mod- Co Builders, Inc., operating outside of Hillsborough County until the secretary for the corporation told him. When the Respondent became aware that Re-Mod-Co was operating under his license in Fort Myers, the Respondent immediately advised the Board to change his qualification from Re-Mod-Co to Bay to Bay Designs. The Respondent received $400 per week to schedule jobs for Re-Mod-Co, order materials, and check the performance of subcontractors for Re-Mod-Co within Hillsborough County.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Administrative Complaint against Dennis Rodriguez be dismissed because the allegations are not proven. DONE and RECOMMENDED this 11th day of April, 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 11th day of April, 1983. COPIES FURNISHED: Xavier J Fernandez, Esquire 2021 Hendry Street Post Office Box 1222 Fort Myers, Florida 33902 Frank V. Vaccaro, Esquire 316 Hyde Park Avenue Tampa, Florida 33606 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 K. Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, vs. CASE NO. 16942 DOAH CASE NO. 82-1340 DENNIS E. RODRIGUEZ, Respondent. /
The Issue The issue to be determined is whether Respondent violated Section 468.621(1)(g), Florida Statutes, as alleged in the Administrative Complaint, and if so, what penalty should be imposed?
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of building code administrators and inspectors in the State of Florida, pursuant to Section 20.165 and Chapters 455 and 468, Part XII, Florida Statutes. Respondent is a certified standard building inspector in the State of Florida, having been issued license number BN 3816. He held this license at all times relevant to this complaint. Respondent provides building inspections as a private provider within the City of Jacksonville. In the course of his duties as a building inspector, Respondent has inspected structures at the following locations in Jacksonville: 1142 Johnson Creek Circle; 8242 Maple Street; 9127 5th Avenue; 7053 Civic Club Drive; 11658 Pleasant Creek Drive; and 2700 Jane Street. The City of Jacksonville Quality Assurance Office (QA Office) in the Building Department conducted audits of the inspections provided by Respondent at the above-named locations. The QA Office determined that there were deficiencies concerning the inspections for the six structures, and prepared an "Audit Report" with respect to each structure. However, Audit Reports are only prepared where the QA Office perceives a pattern of violations, presumably for a particular private provider. Audit Reports are not prepared with respect to every audit performed. The Audit Report for the 11442 Johnson Creek Circle address listed 22 "deficiencies." Joshua Gideon, a construction trades inspector for the City of Tallahassee, testified that the "deficiencies" ranged from building code violations to missed items that that were required by the engineer. He testified that, as a whole, the deficiencies could not be considered minor, and that some individual items would not be considered minor standing alone. However, no evidence was presented to identify which alleged deficiencies represented code violations, which deficiencies were considered "major," or to identify exactly what code provisions were at issue. In addition, Mr. Gideon testified that the majority of items that were listed were items required by the engineer of record. No evidence was presented to explain whether items required by the engineer of record would also be building code violations. The Audit Report for the inspection at 8242 Maple Street indicates there were seven deficiencies. It does not, however, indicate what the building code required or how those requirements were not met. Further, Mr. Gideon did not physically inspect this property and no inspector that visited the site actually testified. While Mr. Gideon assisted in preparing the report, his assistance would be based on what was reported to him, and both his testimony and the contents of the report are uncorroborated hearsay. Like the job at 8242 Maple Street, Mr. Gideon did not visit the actual property at 9127 Fifth Avenue, but simply assisted in preparing the report. Although it is alleged that the permit and plans were not posted on site, so that it would not be possible to post inspections on the permit card, no one who visited the site testified at hearing. Mr. Gideon also did not perform the audit of the job located at 7053 Civic Club. Although the Audit Report indicates that there were 18 deficiencies, there is no indication which of these deficiencies represented building code violations and which were variations from the plans. Further, no one who actually visited the site testified at hearing. Mr. Gideon did visit the job at 11658 Pleasant Creek Drive. The Audit report that he prepared indicated that there were 19 deficiencies. He testified at hearing that deficiencies were items that were required by the engineer of record. No evidence was presented, however, to identify a deficiency that was a violation of building code standards or, in the event of such a deficiency, what provision in the building code was at issue. The final property at issue is a property located at 2700 Jane Street. This structure, which Mr. Gideon visited, is a multi-story wood-framed hotel. Several deficiencies were noted with respect to this building, including fire assemblies not constructed according to their tested assemblies, incorrect insulation installed, incorrect channeling in the ceiling, and multiple cut or broken floor truss joists. However, as with the other properties, no evidence was presented to indicate which deficiencies were items required by the engineer of record, and which deficiencies actually represented violations of the building code. In addition, it was stated at hearing that there were multiple framing inspections of this property because of its size. However, there is no testimony that provides the sequence of events related to the alleged deficiencies. In other words, while there is an attachment to the Audit Report indicating the times of different inspections, there was no evidence presented that indicated what was wrong each time Respondent inspected the property, and what he should have but did not flag as not meeting building code requirements.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Florida Building Code Administrators and Inspectors Board enter a Final Order dismissing the Administrative Complaint in its entirety. DONE AND ENTERED this 8th day of December, 2010, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 8th day of December, 2010. COPIES FURNISHED: Elizabeth F. Duffy, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Morris Tesh Post Office Box 721 Bunnell, Florida 32110 Robyn Barineau, Executive Director Building Code Administrators and Inspectors Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Reginald Dixon, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
