The Issue The issues in this instance are promoted in keeping with an administrative complaint brought by the Petitioner against the Respondent, charging violations of Sections 943.13 and 943.145, Florida Statutes. These allegations relate to the claim that Respondent was involved in a liaison with a prostitute in which he exchanged Valium for sex. The encounter between the Respondent and the prostitute is alleged to have occurred while the Respondent was on duty. This Valium was allegedly obtained from an automobile which was examined as part of the Respondent's duties as a law enforcement officer. It is further alleged that the Valium should have been turned in as part of his responsibilities as a law enforcement officer.
Findings Of Fact Respondent is a holder of a certificate as law enforcement officer, Certificate No. 98-10527. That certificate is issued by the State of Florida, Department of Law Enforcement, Criminal Justice Standards and Training Commission, and Respondent has held that certificate at all relevant times in this proceeding. Respondent has been employed as a police officer by the Daytona Beach, Florida, Police Department in the relevant time period and it was during that tenure that Respondent is accused of having committed the offense as set forth in the administrative complaint. Debbie Ofiara is the only witness to the Respondent's alleged indiscretion while on duty. Ms. Ofiara is an admitted prostitute, who has drug problems so severe that she required specific program treatment to address them. In particular, that drug difficulty relates to the drug Dilaudid. In addition, Ofiara has served six months in jail for grand theft, a felony conviction. At the time of the alleged incident with the Respondent she was under the influence of drugs and was under the influence of drugs when she reported that incident to a police investigator in the Daytona Beach Police Department. When testimony was given at the hearing, Ofiara was attending a drug program while awaiting a sentence for a drug offense related to cocaine. She had pled guilty to that drug charge, a felony. Ofiara has been arrested for prostitution, arrests made by the Daytona Beach Police Department on three different occasions. She had been arrested for hitchhiking by Officer Cadenhead prior to the incident which underlies the administrative charges and indicates that she "took offense" at the arrest. Moreover, she acknowledges some past concern about her treatment in encounters with Officer Gary Gallion of the Daytona Beach Police Department in his official capacity. Ms. Ofiara claims that sometime in November 1982, in the evening hours, the Respondent, while on duty as a police officer, in uniform and driving a marked patrol car, approached Ofiara and made arrangements to meet her. She further states that this rendezvous occurred in Daytona Beach, Florida, and that in exchange for Valium tablets which the Respondent had obtained from an examination of a car he had been involved with in his police duties, which tablets were not turned in, Ofiara performed oral sex for Respondent's benefit. Some time later, Ofiara related the facts of the encounter with Officer Cadenhead to an internal affairs investigator with the Daytona Beach Police Department, Lieutenant Thomas G. Galloway. She also gave Galloway a bottle which she claimed was the bottle in which the Valium was found. The vial or container was not examined for any residue of the substance Valium or examined for fingerprints of the Respondent. Following Galloway's investigation of the allegations, the Daytona Beach Police Department determined to terminate the Respondent from his employment. That termination was effective February 11, 1983. Respondent was subsequently reinstated after service of a four-week suspension without pay by order of the City of Daytona Beach Civil Service Board, effective March 9, 1983. Having considered the testimony of Ms. Ofiara and the testimony of the Respondent in which he denies the incident with her, and there being no corroboration, Ms. Ofiara's testimony is rejected for reasons of credibility. As a prostitute, drug user, felon and person with a certain quality of animosity toward the Respondent and in consideration of the demeanor of the accusing witness and Respondent, her testimony is rejected.
Findings Of Fact Based on the evidence received at the final hearing, the following findings of fact are made. At all times material to this case the Respondent, Willie Whittington, was licensed as a certified general contractor in the State of Florida, holding license number CG C006966. At all times material to this case the Respondent was the sole qualifying agent for Whittington & Sons Builders, Inc. On May 15, 1987, Edwin W. Brown and Sandra J. Brown, husband and wife, contacted Respondent, in response to Respondent's advertising, to discuss the construction of a log house and an outbuilding on a lot owned by the Browns in Palm Beach County, Florida. The outbuilding was to be used as a combination garage and barn. During this initial meeting, the Browns described the project to Respondent. At the conclusion of the meeting on May 15, 1987, the Browns gave Respondent a $2,000.00 deposit to get started on the project. Respondent was to use that deposit to have plans drawn for the two buildings and to secure the necessary building permits. On June 23, 1987, Whittington & Sons Builders, Inc. entered into two contracts with the Browns, one for the house and the other for the outbuilding. Respondent signed both contracts on behalf of Whittington & Sons Builders, Inc. Both contracts were clear and unambiguous as to the work that was to be performed, as to the price that was to be paid for the work, and as to the schedules by which the construction draws would be made. The price for the house was set at $73,506.00. The price of the outbuilding was set at $11,665.00. Both contracts provided that construction would be completed within 130 days. On June 23, 1987, the Browns paid to Respondent the sum of $6,871.60 as required by the two contracts. Sandra Brown began keeping a log of her contacts with Respondent as of August 4, 1987, because she had experienced difficulty reaching Respondent by telephone and because no progress was being made on the project. Around August 4, 1987, Respondent told the Browns that he needed an additional $175.00 to pay to the architect to complete the plans. Because this was not provided for by their contracts, the Browns refused Respondent's request for this additional sum of money. On August 7, 1987, the Browns paid to Respondent the sum of $3,822.90 that Respondent was to use to order the logs. The building permits were not obtained until October 9, 1987. The permits were not obtained earlier than that date because Respondent did not diligently pursue his obligation to get the permits. As of early November 1987, the only work that had been done was the preparation of the lot for the foundation. On November 7, 1987, Respondent requested that the Browns advance him $5,000.00 so he could proceed with the construction. Respondent was financially unable to proceed because the Internal Revenue Service had garnished the account in which Respondent had placed the Browns' deposits. The Browns refused to advance Respondent this additional sum of money, but they remained willing to pay Respondent according to the draw schedules of the contracts. In December 1987 the Browns received a notice to owner form from Rinker Materials. In response to this notice, the Browns paid to Rinker Materials the sum of $2,664.77 and asked that no further materials be delivered on a credit basis to the job site. The Browns received a release of lien from Rinker Materials on December 28, 1987, for the materials Respondent had previously ordered on credit. In the middle of December 1987, the Browns learned that Respondent had neither ordered the logs for the construction nor determined the quantity of logs that would be required. On or about December 18, 1987, the foundation for the house was poured. Little work was done on the project between that date and January 4, 1988, the date Respondent told the Browns that his back was hurt and he could not work. The Browns filed a written complaint with the Palm Beach County Contractors Certification Board on January 8, 1988. As of January 13, 1988, Respondent was unable to account for the funds the Browns had deposited with him. At a meeting on January 19, 1988, among Respondent, the Browns, and a representative of Palm Beach County Contractors Certification Board, Respondent agreed to furnish receipts and an accounting of the construction funds by the next meeting on January 27, 1988. Respondent also agreed, during the meeting of January 19, 1988, to perform certain work on the project before the next meeting. At the next meeting, Respondent did not provide the Browns with receipts or with an accounting of the construction funds. Instead Respondent submitted a non-itemized bill in the amount of $18,131.20 for labor and materials supposedly expended by Respondent through January 27, 1988. The Browns refused to pay this bill. Respondent had worked only approximately 16 hours on the project between January 19 and January 27 and had not completed the additional work he had promised to have done January 27, 1988. The Browns fired Respondent and his company on January 27, 1988. At that time, Respondent had completed approximately 10% of the project `whereas it should have been approximately 60-70% completed. The delays by Respondent throughout his association with this project were not justified. After the Browns fired Respondent, they were forced to pay a materialman, MacMichael Lumber Company, to prevent the foreclosure of a lien against the property. This lien resulted because Respondent did not pay for certain materials he had ordered on credit before the Browns fired him. On February 4, 1988, Respondent agreed to repay the Browns the sum of $4,200.00. As of the date of the final hearing, Respondent owed the Browns $1,400.00. A subsequent contractor completed the project without undue delay in June 1988 for an additional $74,000. This price reflects changes the Browns made after the subsequent contractor began his work. Petitioner is the state agency charged with the regulation of contractors in the State of Florida. The Administrative Complaint filed by Petitioner against Respondent alleges, in pertinent part, the following: Respondent failed to perform in a reasonably timely manner, and or abandoned said job(s), in violation of 489.129(1)(m),(k). There was financial mismanagement and/or misconduct in connection with this matter, attributable either to Respondent directly, or to Respondent's failure to properly supervise, in violation of Section 489.129(1)(h) & (m), as generally exhibited by, but not limited to, the following: Subject double billed Customer on several occasions; failure to pay subcontractors and suppliers; and failure to buy materials. There was no allegation in the Administrative Complaint or evidence presented at hearing that Respondent has been the subject of prior disciplinary action. Respondent has been licensed as a certified general contractor by the State of Florida since 1973. Following receipt of the Administrative Complaint, Respondent denied the violations and timely requested a formal administrative hearing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered which finds Respondent guilty of having violated Section 489.129(1)(h), Florida Statutes and which imposes a fine against Respondent in the amount of $1,500 for such violation and which further finds Respondent guilty of having violated Section 489.129(1)(m), Florida Statutes and which imposes a fine against Respondent in the amount of $1,500 for such violation so that the total fine to be imposed against Respondent is $3,000. DONE and ENTERED this 7th day of July, 1989, in Tallahassee, Leon County, Florida. CLAUDE ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1989. APPENDIX CASE NO. 89-0743 The proposed findings of fact submitted by Petitioner are addressed as follows. Addressed in paragraph 1. Addressed in paragraph 27. Addressed in paragraph 3. 4-5. Addressed in paragraph 4. Addressed in paragraph 5. Addressed in paragraph 6. Rejected as being unnecessary to result reached. Addressed in paragraph 7. Addressed in paragraph 8. Addressed in paragraph 9. Rejected as being subordinate to the conclusions reached. Addressed in paragraph 10. 14-15. Rejected as being subordinate to the conclusions reached. Addressed in paragraph 12. Addressed in paragraph 17. Rejected as being unnecessary to result reached. Addressed in paragraph 14. Addressed in paragraph 15. Addressed in paragraph 15. Addressed in paragraph 16. 22-26. Rejected as being subordinate to the conclusions reached. Addressed in paragraph 17. Addressed in paragraph 19. Addressed in paragraph 23. Rejected as being subordinate to the conclusions reached. Addressed in paragraph 24. Rejected as being subordinate to the conclusions reached. Addressed in paragraph 22. 34-35. Rejected as being recitation of testimony and as being subordinate to the conclusions reached. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0729 Willie Whittington 342 Walker Street Greenacres City, Florida 34974 Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 Kenneth Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729 =================================================================
The Issue The Florida Construction Industry Licensing Board, Petitioner, by its Administrative Complaint filed May 18, 1978, seeks to revoke the Certified General Contractor's license issued to Ira L. Varnum based on allegations contained therein to the effect that he aided or abetted an uncertified or unregistered person to utilize his registration with an intent to evade the provisions of Chapter 468, Florida Statutes, which prohibits the use of a registrant's registration by an uncertified or unregistered person. Additionally, the Petitioner seeks to assess an administrative fine in the amount of $500.00 against the Respondent, Ira L. Varnum, for failure to comply with the dictates of Chapter 468, Florida Statutes.
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the following relevant facts are found: Ira L. Varnum, a Certified General Contractor, is the holder of license No. CG CA00832 and, during the times material, was a Certified General Contractor. William H. Bosely, the Chief Codes Enforcement Officer for Deerfield Beach, Florida, appeared during the course of the hearing and testified that he is the custodian of the permit applications in Deerfield Beach. Mr. Bosely issued permits to Ira L. Varnum to construct one-story, single-family residences on property located at 3275 and 3285 Southwest First Court, in West Deerfield Beach, Florida. (See Petitioner's Composite Exhibits Nos. 1 and 2.) As best as can be determined from the permits, the construction activity commenced during late December, 1977; and on January 25, 1978, Respondent, Ira L. Varnum, mailed a letter to the Deerfield Beach building department requesting that the construction activity for the properties here in question be "red-tagged" and requesting the building department to cease inspecting the construction of such properties. The properties were "red- tagged" based on these letters. (See Petitioner's Exhibits Nos. 3 and 4.) Respondent, Ira L. Varnum, is the president of Structural Concrete Forming of Florida, Inc. Respondent Varnum testified that he entered into an agreement with his son-in-law, Angel Gonzales, James Monteleone and Frank Sepe, who were in a joint venture to construct approximately one hundred houses within a subdivision in West Deerfield Beach. According to Respondent, Structural Concrete Forming of Florida, Inc., was to be the contracting entity. Mr. Gonzales was to be the supervisor and Messrs. Sepe and Monteleone were to be the owners of the project, providing all funds necessary, and the profits derived from the building activity were to be equally divided into thirds. Mr. Gonzales, a developer residing in Boca Raton, testified that he simply contracted with his father-in-law, Respondent Varnum, to pull the building permits, and he agreed to "give his father-in-law something". According to Mr. Gonzales, he paid Respondent in cash $600.00 to pull the permits for the subject houses. Mr. Gonzales testified that Messrs. Sepe and Monteleone formed A-I-A Builders, Inc., to be the contracting entity for construction of the two houses which Respondent Varnum pulled the building permits for. According to Mr. Gonzales, Respondent Varnum visited the site on no more than two occasions after the concrete slab was poured for the erection of the homes. There is no dispute but that a controversy arose when Respondent Varnum was not permitted to order supplies and materials through Structural Concrete Forming of Florida, Inc., and for disbursement of all monies through that entity. The parties were unable to resolve their differences as to which firm would order and pay for the materials, and Respondent Varnum notified the building department of the City of Deerfield Beach that all construction activity of the subject projects would be halted forthwith until further notice. (Petitioner's Exhibits Nos. 3 and 4.) Initially, the building department "red-tagged" the two projects but later decided, based on letters received from Messrs. Monteleone and Sepe and Attorney Richard R. Haas to the effect that the controversies between Respondent Varnum and Messrs. Monteleone and Sepe should be resolved either in the courts or between themselves amicably. The Department issued owner/builder permits to Mr. Monteleone and, thereafter, action resumed sometime during April, 1978. By letter dated May 1, 1978, Mr. Monteleone advised the building department of the City of Deerfield Beach that "I have relieved Structural Concrete Forming, Inc., General Contractors, of all obligations pertaining to the development of one single family residence located on Lot 155, . . ." Additionally, Respondent Varnum testified that he received no monies from Mr. Gonzales, and that the agreement between him (Varnum), Gonzales, Sepe and Monteleone centered solely around their failure to permit Varnum's contracting entity, Structural Concrete Forming of Florida, Inc., to purchase, pay for and generally be responsible for the overall supervision and control of the two projects in question. In furtherance of this agreement, which was oral, Respondent Varnum testified that he received no monetary consideration. While this entire sequence of transactions appears to be suspicious, the undersigned, based on the evidence presented, is unable to rest a conclusion based on the disputed testimony of Messrs. Gonzales, Monteleone and Sepe that the Respondent engaged in the alleged unlawful conduct. While it is difficult to fully credit the version offered by Respondent Varnum, it is difficult to rationalize the versions testified by Messrs. Monteleone and Sepe to the effect that the Respondent had no obligations and yet a letter was sent to the building department advising that any and all obligations heretofore which were being performed by Structural Concrete Forming of Florida, Inc., were being released. In view thereof, I shall recommend that the complaint allegations filed herein be dismissed.
Recommendation Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the complaint filed herein be dismissed in its entirety. RECOMMENDED this 9th day of January, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry Sinoff, Esquire 2400 Independent Square Jacksonville, Florida 32202 Norman D. Zimmerman, Esquire 737 East Atlantic Boulevard Pompano Beach, Florida 33060
Findings Of Fact Based upon the record evidence, the Hearing Officer makes the following findings of fact: Martin Gold is now, and has been since July, 1986, licensed by Petitioner as a Registered Specialty Contractor authorized to do painting and waterproofing work in Dade County. He holds license number RX 0051718, which expires June 30, 1989. Since receiving his license he has been disciplined twice by the Florida Construction Industry Licensing Board. Gold is the President of Team Leisure Corp., a construction company, and is also its "qualifying agent." On August 14, 1986, Team Leisure Corp. entered into a written contract with Terry Dudley and his wife, Patricia, in which it agreed, for $12,000, to build a two-room, 27-foot by 13- foot addition to the Dudley home located at 15510 Leisure Drive in Dade County and to install new windows in the existing structure. According to the terms of the agreement, Team Leisure was to do "no painting." In his capacity as President of Team Leisure Corp., Gold hired William Sernaker to directly oversee the completion of the construction work specified in the Dudley contract. At the time, Sernaker was licensed as a general contractor in Dade County. As part of his arrangement with Gold, Sernaker assumed responsibility for ensuring that all work permits and inspections necessary to complete the Dudley project were obtained. On September 4, 1986, Sernaker obtained a building permit for the Dudley project. Thereafter, work on the project commenced. The foundation for the addition was laid and, on September 10, 1989, it passed the inspection of James Tucker, a Dade County building inspector. Fifteen days later, Tucker conducted a tie beam inspection. This phase of the project also received his formal approval. Sernaker obtained a roofing permit on October 14, 1986. The exterior of the roof was inspected by Russell Bergsma, another Dade County building inspector, on October 21, 1986. It too passed inspection. An electrical permit was obtained for the Dudley project on November 17, 1986, by Robins Electric, a subcontractor. When the electrical work was initially inspected by Grant Morse, another Dade County building inspector, it was rejected because there were a "few outlets missing." The record is unclear as to the results of any subsequent electrical inspections. Morse also conducted an inspection of the framing work done on the Dudley project. He did so on or around November 21, 1986. In his view, the framing was "not to code." Accordingly, he left a "tag" at the job site on which he gave the following written explanation for his rejection of the framing work: All window bucks must be tight with caulking, no gaps. When the stucco meets the window frame, it should be set back at approximately a 45-degree angle at a width of one quarter to provide a groove to be filled with caulking. Continuous back bed of caulking must be maintained. A follow-up inspection of the framing work was performed by Bergsma on December 1, 1986. In Bergsma's opinion, while some corrections had been made, deficiencies remained. He therefore issued another rejection. A third framing inspection was conducted on December 3, 1986. Tucker was the inspector who performed this inspection. He approved the work that had been done. Prior to this inspection, Gold had paid another contractor $600 to "redo" the framing. This additional expense was not passed on to the Dudleys. Morse attempted to conduct a final building inspection on December 22, 1989. He was unable to do so, however, because "[n]o one was home." From the outset, Gold kept abreast of the progress that was being made on the Dudley project by communicating with Sernaker. He also visited the job site on at least a weekly basis. Gold also heard from the Dudleys concerning the status of the project. The Dudleys closely monitored the work of Sernaker and his crew. If the work was not done to their satisfaction, they expressed their disapproval to Sernaker and, if he did not rectify the matter, they complained to Gold over the telephone. The following were among the complaints made by the Dudleys: the foundation was not level; the roof did not contain any fiberglass material; the window frames did not fit properly; the wood used for the open beam ceilings had cracks in it and was unsightly; the walls in the den were not level and had cracks in them; the linoleum on the Dudleys' screened-in porch was ripped by workers putting up a wall; the outside stucco was cracking and peeling; and trash was left on the property. An effort was made to address the Dudleys' concerns. For instance, in response to the Dudleys' complaints, a "thin cap" was placed over the foundation to make it level. The roof was redone with fiberglass material. The Dudleys were reimbursed for the linoleum they needed to replace on their porch. A contractor was hired to correct the framing problem. Nonetheless, the Dudleys became increasingly dissatisfied with Team Leisure Corp.. Sometime shortly before January 6, 1987, they became so dissatisfied that they ordered Sernaker and his crew off their property and refused to make any additional payments. Following this incident, Gold met with the Dudleys and attempted to mollify them. This was his first face-to-face meeting with them. He offered to send another contractor to the Dudleys' home to perform the work the Dudleys believed needed to be done to satisfactorily complete the project. The Dudleys accepted this offer. On January 6, 1987, Gold sent the Dudleys a letter which read as follows: As per our mutual agreement, these are the items you requested be taken care of. Once taken care of, you agree to sign completion certificate so we can be funded. COMPLETED (please check upon satisfaction) 1.) Touch up outside windows. 2.) Windows to be locked in. 3.) Walls in den to be taken down and leveled out. 4.) Frame around closet door. 5.) Fix two windows; replace concrete in doors and windows. 6.) Clean up. 7.) Replace vinyl, in rear den. 8.) $100.00 dollars to Mrs. Dudley, for clean-up. 9.) 10 year guarantee- roof and release of lien [sic]. 10.) Concrete over build. 11.) Crack under window sill. 12.) Nail in door frame. 13.) Gaps in drywall bedroom. 14.) Stucco cracking outside. 15.) Electrical inspection. (not to be Mike Charles.) Accepted and Approved: x x After receiving this letter, Mr. Dudley checked all but items 2, 5, 6, 8, and 9 on the letter's "completion certificate." Neither he nor his wife, however, signed this "completion certificate." Although the cracks in the outside stucco had been repaired at the time Dudley checked item 14, the stucco subsequently started cracking again. A final building inspection of the Dudley project was conducted by Tucker on January 13, 1989. The project was "turned down" by Inspector Tucker because it was unpainted. Under their contractual agreement, the Dudleys, not Team Leisure Corp., were responsible for the painting of the project. The painting was not done because the Dudleys noticed cracks reappearing in the outside stucco. On or around March 4, 1987, Mr. Dudley telephoned Inspector Bergsma and asked him to conduct an informal field inspection of the project. Bergsma complied with Dudley's request. When he arrived at the Dudley home, Dudley showed him a "gap on the rear of the house ... where the two roofs are at different levels and come together." Bergsma told Dudley that "[i]t didn't belong there" and that it would have to be eliminated if the structure was to pass a final building inspection. As of the date of the hearing, the structure had not passed such an inspection. Team Leisure Corp. received $10,200 for the work done in connection with the Dudley project. The remaining $1,800 of the $12,000 that the Dudleys were to pay pursuant to the contract was held in escrow by a bank. Ultimately, this $1,800, along with approximately an additional $500 from Team Leisure Corp., was given to the Dudleys as part of a settlement between them and Team Leisure Corp.. The money was to be used by the Dudleys to pay another contractor to complete the project to their satisfaction.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Construction Industry Licensing Board enter a final order (1) finding Respondent guilty of contracting outside the scope of his license in violation of Section 489.129(1) (j) , Florida Statutes; (2) imposing a $750 administrative fine upon Respondent for said violation, and (3) dismissing the remaining charges against Respondent set forth in the instant administrative complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of May, 1989. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 1989. COPIES FURNISHED: Elizabeth Alsobrook, Esquire Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 323399-0792 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Carlos Garcia, Esquire 8603 Dixie Highway Suite 400 Miami, Florida 33143 =================================================================
The Issue The issues for consideration in this case concern separate notices to show cause placed against the named Respondents alleging violations of Chapter 509, Florida Statutes (1990 Supp.), and Chapter 7C, Florida Administrative Code. These notices date from January 25, 1991. The notices to show cause seek to impose fines against the corporation and the Nelsons.
Findings Of Fact On May 14, 1990 Windy Shores Trading Post Inc. conveyed property at 30 South Grandview Avenue, Daytona Beach, Volusia County, Florida, to Windy Shores Aero Research, Inc. That latter corporation is the Respondent in DOAH Case No. 91-0681. Again for ease of reference Windy Shores Aero Research, Inc. shall be referred to as "the corporation." The Respondent corporation is a Florida corporation. No one identified as having appropriate authority to request a hearing for the corporation either on an expedited basis or pursuant to the normal notice time prescribed by Section 120.57(1)(b)2, Florida Statutes, has asked that the corporation be heard in defending accusations made in the notice to show cause pertaining to DOAH Case No. 91-0681. The hearing request described in the preliminary statement made by Eric Nelson does not constitute a legitimate request for hearing by the corporation. This determination is made based upon the record established at hearing both in testimony and documentary evidence. All that has been established concerning the corporation's position is that, according to Petitioner's Exhibit No. 16 in DOAH Case No. 91-0681, the corporation through certified mail return receipt requested was served with the emergency order and associated notice to show cause. At all times relevant to the inquiry, a building a 30 South Grandview Avenue, Daytona Beach, Volusia County, Florida, was operated as a seven unit, transient rental, public lodging establishment. The last license of record for that property had been issued in the name of Roy E. Midkiff, d/b/a Layton Apartments under license no. 74-01494H-1. This license was issued under the authority of Chapter 509, Florida Statutes. Neither the corporation nor the Nelsons have ever sought or been issued a license pursuant to Chapter 509, Florida Statutes, which would allow those Respondents to operate the public lodging establishment at 30 South Grandview Avenue. It can be inferred that the property in question passed from Midkiff eventually ending up with the Respondent Corporation after the conveyance from Windy Shores Trading Post, Inc. on May 14, 1990. By history, the City of Daytona Beach became aware of the subject property and its problems back in March, 1990. In particular, the City of Daytona Beach through its Code Enforcement Division was concerned about the addition of a living unit at the premises without appropriate permission. Concerns about this were addressed to Carol E. Nelson at 2036 South Ocean Shores Boulevard in Flagler Beach, Florida by certified mail return receipt requested dated March 26, 1990. A copy of this notice of violation may be found as Petitioner's Exhibit No. 1. This was followed up by an affidavit of violation and notices of hearing addressed to Carol E. Nelson, who in this affidavit of violation and notices of hearing was referred to as President, as she had been in the March 26, 1990 correspondence. This description of the violation of adding a living unit and other matters related to that from the point of view of the Code Enforcement Board of the City of Daytona Beach may be found in Petitioner's Composite Exhibit No. 2. These documents under Petitioner's Composite Exhibit No. 2 run from April, 1990 to January 29, 1991. In would appear that the presidency which was being attributed to Carol Nelson was that affiliation with Windy Shores Trading Post, Inc., the former corporate owner of the subject property. The violation concerning the addition of an unauthorized living unit at the subject facility remains pending before the City of Daytona Beach. When the tax records were prepared for 1990 the City of Daytona Beach became aware of the change in the ownership of the subject property as described in Petitioner's Exhibit No. 3 listing the corporation as the owner and the corporate headquarters as 2036 South Ocean Shore Boulevard, Flagler Beach, Florida. Fred Holmes of the Daytona Beach Code Administration Division and Inspector/Supervisor for that Division, in his testimony, addressed the history of the property from the point of view of the City of Daytona Beach. When he was on the property on January 29, 1991, the persons who were on the property other than tenants were the Nelsons. Holmes is also aware that on January 30, 1991, an application for an occupational license to operate the subject property was made with the City of Daytona Beach and was signed by Carol Nelson in the interest of the corporation. A copy of this occupational license application can be found as Petitioner's Exhibit No. 5. It points out that the property is owned by Winifred L. Nelson of 2038 South Ocean Shore Boulevard, which has been shown to mean 2038 South Ocean Shore Boulevard in Flagler Beach, Florida. The record on balance supports the fact that Winifred L. Nelson, who is Eric Nelson's mother, owns the corporation. The application and Petitioner's Exhibit No. 5 admitted into evidence refers to a transfer of ownership of the subject property from Windy Shores Trading Post to the corporation. On January 29, 1991, the City of Daytona Beach communicated with Petitioner in the person of Barbara Palmer, Director, notifying the Petitioner that effective January 25, 1991, the City had placed the property in question off limits by notice that it was unsafe and its use or occupancy prohibited. A reinspection on January 29, 1991, pointed out that the violations about which the City, as well as the Petitioner, were concerned related to safety and occupant welfare had not been corrected. The correspondence of January 29, 1991, from the City to the Petitioner found as Petitioner's Exhibit No. 4 speaks of those matters. A list of deficiencies found by the City corresponds in many respects to allegations in the notices to show cause. According to Fred Holmes an inspection was made on February 1, 1991 to speak to the application for occupational license and the results of that inspection were not known at the point of hearing. Petitioner's Exhibit No. 6 admitted into evidence related to the City of Daytona Beach and its inspection dated January 11, 1991, points out deficiencies that are common to the concerns in the notices to show cause. Notice of these deficiencies was provided to Carol and Eric Nelson at the time of this January 11, 1991 inspection. Inspector Holmes was of the opinion that the apartment building would not have met local code requirements of the City of Daytona Beach. The City was continuing to express concerns about the unauthorized occupancy of the one apartment added without permission. The City at that point expected corrections to be made and the removal of that improvement, i.e. the additional apartment. Inspector Holmes is unaware of any changes over time in persons who are responsible for the conduct of the business at the property in that he has no documentation in his records concerning such changes. In particular, he is not aware of any permission from Winifred Nelson to Eric Nelson allowing him to act in her behalf. At the hearing Holmes was unaware that Winifred Nelson was the authorized agent for the corporation. Charles Casper, Environmental Health Specialist for the Petitioner, made an inspection at the premises on June 8, 1990, and found certain deficiencies which are set out in the Composite Exhibit No. 7. Among the highlights of this inspection was the identification of the fact that the property was being rented without being properly licensed and that an additional unit had been installed under the building without city approval or permits as described before in the remarks attributable to Inspector Holmes. Petitioner's Exhibit No. 7 is a composite exhibit and it also contains a complaint by J. Young made on June 29, 1990, concerning a security deposit about which she had requested reimbursement on moving out of the apartment at the subject premises effective May 5, 1990. Within that exhibit is found a copy of a memorandum dated May 2, 1990, from Carol E. Nelson signed as d/b/a Windy Shores Trading Post, Inc. releasing Ms. Young from lease obligations as a tenant. The contents of the Young lease may be found in Petitioner's Exhibit No. 8 admitted into evidence. It includes the agreement under the terms of the lease related to the security deposit. Back in June, Casper was attempting to get Carol Nelson to seek a license from the Petitioner to operate the premises. He made Ms. Nelson aware of the problems that he had identified at the premises to include the lack of a license. If Carol Nelson should arrange for the purchase of a license for the benefit of the corporate operator the obtaining of that license, according to Casper, would take care of the complaint about a lack of license. He reminded Carol Nelson that if the corporation as opposed to Windy Shores Trading Post, Inc. operated the premises, it would need a license and that if during certain relevant times the two corporations operated the premises separately that the proprietors would be paying for licenses twice within a license period. During this conversation Carol Nelson told Casper that when problems were experienced they were responded to by changing to a new corporation. Carol Nelson told Casper that Carol Nelson and Eric Nelson operated the property in question. When Casper made his June inspection he understood the name of the premises to be Layton Apartments. This was based upon the records of the Petitioner associated with the earlier licensed operator Mr. Midkiff. J. M. Young had entered into the lease that has been described through Volusia Realty Associates, Inc. as agent for Midkiff. Four or five months later Windy Shores Trading Post, Inc. bought the property from Midkiff, to Young's understanding. This is confirmed in Petitioner's Exhibit No. 9, correspondence from a representative of Volusia Realty to Petitioner in which Windy Shores Trading Post, Inc. in this May 17, 1990 correspondence is identified as the new owner. Ms. Young had been made aware of that change on January 24, 1990 in correspondence from Volusia Realty to J. Miller setting out that Windy Shores Trading Post, Inc. was now the owner of the property in question. Carol Nelson and her husband are the owners of Windy Shores Trading Post, Inc. Petitioner's Exhibit No. 7, which contains the January 24, 1990 correspondence sets out the fact that Ms. Young's security deposit had been transferred to the new owners, the Nelsons. After the change in ownership from Midkiff to Windy Shores Trading Post, Inc., Young would pay Carol and Eric Nelson her rent and would get a receipt from Windy Shores Trading Post, Inc. Following certain problems, which brought about Young's departure, she got the release from the requirements of her lease from Carol Nelson as has been described. Eric Nelson told Ms. Young that she would get her security deposit back as did Carol Nelson. The security deposit has not been returned. This has not been arranged even though Ms. Young has continued to contact Eric Nelson to get the deposit money. No notice has been given to Ms. Young concerning a claim against the security deposit made by Eric Nelson. Ms. Young was never made aware of a transfer of the ownership of the subject property to the corporation. Dennis Steinke is a Sanitation and Safety Specialist with Petitioner. On December 20, 1990, he performed an inspection at the premises in question. This inspection together with an inspection of January 22, 1991, forms the basis of the charges in the notices to show cause. The findings in the Steinke inspection are part of Petitioner's Composite Exhibit No. 10 in DOAH Case No. 91-0682. A legal notice was given of the findings of that inspection. That led to a notice to show cause dating from January 15, 1991, directed to Eric and Carol Nelson trading as Layton Apartments. This notice to show cause predates the notices to show cause which are under consideration in the present cases. The prior notice to show cause of January 15, 1991 is part of Petitioner's Composite Exhibit No. 10 in DOAH Case No. 91-0682. It carries with it the same nine violations which are spoken to in the subject notices to show cause. Again, the Nelsons do not contest the findings set out in the legal notice which followed the inspection by Steinke and as identified in the present notice to show cause in DOAH Case No. 91-0682 attached as an appendix and as restated from the January 15, 1991 notice to show cause. The January 15, 1991 notice to show cause was served on the Nelsons. No one availed themselves of the opportunity for an informal conference on January 24, 1991 that the January 15, 1991 notice to show cause made available. At the time Steinke made his December 20, 1990 inspection and made the findings reported in Petitioner's Exhibit No. 10 he was unaware that the corporation owned the premises. Steinke's findings of December 20, 1990 were based upon the inspection of three or four units within the licensed premises. Another Inspector with the Petitioner who had a knowledge of the premises is Arthur Begyn. He took certain photographs of the premises on January 25 and 29, 1991, found as Petitioner's Composite Exhibit No. 11 showing the state of disarray at the licensed premises and further confirming observations that had been made by Inspector Steinke in his December 20, 1990 inspection. Begyn had been to the property in mid-November based upon a complaint about operations there. His purpose was to inspect the property but no one was available for such inspection. He tried to find out who the owner of the property was by calling a number that was located on the building. That telephone number is found in one of the photographs in Petitioner's Exhibit No. 11 admitted into evidence. He made contact through that telephone number and presented himself as a possible future tenant. The person who spoke to him on the phone was a lady. She stated that someone would come and make contact with him at the property. As a result of this telephone conversation he met with Carol Nelson who said she was representing Windy Shores Trading Post, Inc. which was the name in a recorded message eminating from the telephone number that had been found on the building. In other words, the telephone answering device said that the caller had made contact with Windy Shores Trading Post, Inc. When the contact was made with Carol Nelson at the property, Begyn made the remark that "you must be the owner of the building", to which Carol Nelson replied "yes, I am". That comported with what certain tenants had told Begyn, that is to say that Carol Nelson and her husband owned the building. Carol Nelson in the course of the conversation with Begyn told him that he should pay her or her husband Eric Nelson the rent money. It was not clear whether the payment would end up with an individual or a corporation. Among the highlights of the photographs of Petitioner's Exhibit No. 11 are those which show that the basement apartment has a door shorter than that of Mr. Begyn how is 6' 1 1/2" tall. There is one photograph that shows a smoke detector ripped from a wall and his inspection of the seven units demonstrated that the individual units did not have smoke detectors. There was a smoke detector in the hall which worked. A rear entrance door on the first level appears to be rotting and in that same area the wood had been disturbed and there were rodent droppings in evidence. There was a leak in an apartment bathroom. There was tile that had been ripped up and not repaired. There was loose electrical wiring hanging down in a certain area. One door which normally has a window was missing a window. A junction box showed where a wire had touched the metal and had a charred appearance with exposed wiring. There was a large hole in the ceiling leading up into an attic. These items were of the nature found by Steinke in his December 20, 1990 inspection. On January 25, 1991, when Begyn was at the property around 6:25 p.m. the Nelsons arrived and removed certain notices that had been placed by the Petitioner in Daytona Beach which prohibited the occupancy of that building. At one point Eric Nelson yelled out to Begyn to, "stay the f off by mf property." Begyn served and read the order and notice related in DOAH Case No. 91-0682 to Carol Nelson on January 25, 1991. This pertains to the emergency order and notice to show cause. These items are seen in Petitioner's Exhibit No. 14 admitted into evidence. Chester Cole who is the District Director for Petitioner in the Orlando, Florida area, in his testimony, identified the fact that the Petitioner became aware that the property in question was operating without the appropriate license contemplated by Chapter 509, Florida Statutes. The records of the Petitioner indicated that Midkiff was the last license holder. Someone contacted the Petitioner and said that he was taking over the property, that person claimed to be Eric Nelson. Eric Nelson indicated that he was the owner of the property and made no mention of a corporation. Nelson was sent an application in which he could point out the change in ownership and get a new license. That application was never returned by Eric Nelson. Mr. Cole was not made aware through any notice from the Nelsons or anyone else who the owner was beyond the Midkiff ownership. As of January 14, 1991, Cole was of the opinion that the Nelsons owned the premises in question. Cole became aware of the tax roll information found in Petitioner's Exhibit No. 3 which showed that the corporation owned the property in question. Cole was also aware through information from the Secretary of State, carried forward on a computer printout of the Petitioner that the corporation had a corporate address of 2036 South Ocean Shore Boulevard, Flagler Beach, Florida, and the registered agent was Winifred Nelson whose address is 2038 South Ocean Shore Boulevard, Flagler Beach, Florida. This is found in Petitioner's Exhibit No. 12 admitted into evidence which carries a date of January 25, 1991 and another date referred to as a "filed date" of May 2, 1990. As alluded to before, Carol Nelson was served with the emergency order and notice to show cause in DOAH Case No. 91-0682. Her husband was also served on January 25, 1991. Both parties were served at 2036 South Ocean Shore Boulevard, Flagler Beach, Florida. Corroboration of service on the corporation by certified mail in DOAH Case No. 91-0681 was made in remarks from Eric Nelson to Mr. Cole in which Nelson identified that the service was perfected by certified mail and the return receipt dispatched. The corporation's address and that of the Nelsons at 2036 South Ocean Shore Boulevard, Flagler Beach, Florida is the same. Based upon the remarks by Eric Nelson in his testimony, the property in question was never owned in his proper person or by his wife. He did acknowledge that at one time Windy Shores Trading Post, Inc. owned the property in question and that ownership in the Windy Shores Trading Post, Inc. was held with his wife. Nelson points out that he and his wife never did business as Layton Apartments. From Eric Nelson's testimony and other matters presented it appears that Windy Shores Trading Post, Inc. took ownership from Mr. Midkiff. In turn the transaction of May 14, 1990, took place in which Windy Shores Trading Post, Inc. sold out to the Respondent corporation. Eric Nelson in his testimony said that he and Carol Nelson his wife do not work for the corporation or have any "statutory" tie to the corporation. He says in his testimony that he and his wife divested association with the corporation through the change of ownership of May 14, 1991. He describes himself as an independent subcontractor for the corporation as it relates to the building in question. Eric Nelson states that he has not collected rent at the property. He reiterates that his wife is not an employee of the property. He makes the comment that his mother had asked his wife to collect rent for the mother until the mother had returned from her trip to Canada. He indicates that some other "agent" collects rent for the mother on the property in question. He identified the fact that on January 25, 1991, that his mother was in Florida the latter the part of the afternoon and was at 2036 South Ocean Shore Boulevard between 10 a.m. and noon briefly and as he describes it "in and out." Eric Nelson identified that he sleeps at 2036 South Ocean Shore Boulevard at times and that the corporation gets mail there. Contrary to Eric Nelson's protestations, he and his wife during the relevant times associated with the December 20, 1990 and January 22, 1991 inspections referred to in the notice to show cause in DOAH Case No. 91-0682 were serving as managers, and appointed agents of the corporation, as defined at Section 509.013, Florida Statutes (1990 Supp.). Eric Nelson in his behalf and that of his wife conceded to the factual observations of the January 22, 1991 inspection performed by Joseph Pitrowski and found within Petitioner's Exhibit No. 15 admitted into evidence. They coincide with the earlier inspection of December 20, 1990 by Mr. Steinke. Testimony of Mr. Pitrowski was given as it relates to accusations made against the corporation at a time where counsel for Petitioner had announced that the Pitrowski testimony would relate to the corporation and not to the Nelsons. Under the circumstances, Mr. Nelson as representative for himself and his wife departed the hearing room before Pitrowski testified. Therefore, with the exception of the written report rendered by Mr. Pitrowski found within Petitioner's Exhibit No. 15 admitted into evidence and related to an inspection of January 22, 1991, it would be inappropriate to find facts against the Nelsons based upon the Pitrowski testimony. Likewise, that testimony by Mr. Pitrowski related to the corporation has no utility in that the corporation has never requested a formal hearing to contest the accusations placed against it when examining the present record.
Recommendation Based upon the consideration of the facts found and the conclusions of law, it is recommended that a Final Order be entered which absolves the Nelsons of the allegations under Item no. 1 in the appendix; fines the Nelsons in the amount of $1,000 for the violation established in Item no. 2; fines the Nelsons in the amount of $250 for the violation established in Item no. 3; fines the Nelsons in the amount of $1,000 for the violation established in Item no. 4; fines the Nelsons in the amount of $250 for the violation established in Item no. 5; absolves the Nelsons of the violation alleged in Item no. 6; fines the Nelsons in the amount of $500 for the violation established in Item no. 7; absolves the Nelsons of the violation Item no. 8 and fines the Nelsons in the amount of $250 for the violation established in Item no. 9. No disposition is suggested concerning the corporation, it having been concluded that the corporation has not requested a formal hearing. In that respect the case is returned to the referring agency for disposition in DOAH Case No. 91-0681 without commenting on the merits of the allegations made against the corporation. RECOMMENDED this 4th day of March, 1991, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-0681 The following discussion is made of the Petitioner's proposed fact-finding. Paragraphs 1 and 2 with the exception of the last sentence of Paragraph 2 are subordinate to facts found. The last sentence of Paragraph 2 is not necessary to the resolution of the dispute. Paragraphs 3 through 10 are subordinate to facts found. Paragraph 11 is subordinate to facts found with the exception of the discussion of the violations as they pertain to the corporation which alleged violations have not been challenged by the corporation. Concerning Paragraph 12, remarks attributable to Inspector Pitrowski are rejected because they were made outside of the presence of the Nelsons at a time when counsel for Petitioner had announced that the case related to the Nelsons had been concluded. Paragraph 13 is subordinate to facts found. COPIES FURNISHED: Barbara Palmer, Director Division of Hotels and Restaurants Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Emily Moore, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Janet E. Ferris, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Eric Nelson 2036 South Ocean Shore Boulevard Flagler Beach, FL 32136 Windy Shores Aero Research, Inc. Attn: Winifred Nelson 2036 South Ocean Shore Boulevard Flagler Beach, FL 32136 Windy Shores Aero Research, Inc. Attn: Winifred Nelson 2038 South Ocean Shore Boulevard Flagler Beach, FL 32136
Findings Of Fact The record presented consists of a transcript of the proceedings before the Palm Beach County Construction Industry Licensing Board considering allegations against Ronald Pintacuda and a portion of the exhibits presented to that Board during the proceedings. The record does not contain the Administrative Complaint or other charging documents upon which the Palm Beach County Construction Industry Licensing Board proceeded against Ronald Pintacuda. The allegations against Pintacuda are summed up in a statement by Mr. Flynn, prosecuting attorney for the Board on page 6 of the transcript. The prime contention of the prosecution and the proceeding before the local board was that Pintacuda was guilty of aiding and abetting an unlicensed company to avoid the provisions of the building code by virtue of a specific agreement referred to throughout the transcript but which was not made a part of the evidentiary record presented to the Hearing Officer. Mr. Ciklin, counsel for Mr. Pintacuda, refers on page 5 to three charges outstanding against Pintacuda before the local board, and in his summation at page 38 outlines these as follows: Willful and deliberate disregard of the applicable building codes or law; Combining or conspiring with an uncertified or unregistered person (by allowing one's certificate or registration to be used by any uncertified or unregistered person with the intent to evade the provisions of this part); and Acting in the capacity of a contractor under someone else's certificate except for the name of the certificate holder. In the absence of a charging document or a statement of charges having been read into the record, Mr. Ciklin's outline of the charges considered by the local board against Ronald Pintacuda are taken as true and accurate. The critical element in consideration of this case is the time sequence of the events. The sequence of events between Ronald Pintacuda and Ralph Howell began in 1974, when Howell approached Pintacuda about forming a construction business. C Pinta & Howell, Inc., was created in a corporate reorganization from an inactive corporation, Martin & Pinta, Inc., in January, 1975. Martin & Pinta, Inc., was a corporation formed by John Martin and Ronald Pintacuda in which John Martin was president and Ronald Pintacuda vice-president. John Martin, a Canadian, ceased participation in the business upon his return to Canada, and the corporation went into an inactive status. In January, 1975, Ralph Howell approached Ronald Pintacuda about forming a construction corporation. This resulted in the formation of Pinta & Howell, Inc. Because of domestic problems, Ralph Howell's father, Alexander Howell, served as president of Pinta and Howell, Inc. Ralph Howell was construction superintendent of this corporation and was the primary manager of the Howell interests in the corporation. Pintacuda participated actively in the business affairs of Pinta & Howell, Inc., from January, 1975, until December, 1975. Although it is not explicitly stated in the transcript, it is apparent that Pintacuda decided to cease his active role in Pinta & Howell, Inc., in December, 1975. At that time Pintacuda entered an agreement with Alexander Howell which was the basis of an allegation of combining or conspiring with an uncertified or unregistered person by allowing one's certificate or registration to be used by any uncertified or unregistered person with intent to evade the provisions of the law. Although this agreement is not a part of the exhibits presented to the Hearing Officer, a portion of that agreement was read into the record by Mr. Pintacuda at page 29 of the transcript. That portion of the agreement provided as follows: Agreement between Ronald Pintacuda and Alexander Howell--That Ronald Pintacuda and Alexander Howell, officers of Howell & Pinta, Inc. stipulate that Howell & Pinta, Inc. shall not conduct any business unless both parties agree in writing to such business. This includes, but is not limited to, the signing of any contracts or financial obligations. The basis of the complaints upon which the prosecution of Pintacuda was based, arose in early 1970, when Ralph and Gerald Howell accepted contracts in behalf of Tri-County Marine Construction, Inc., and pulled permits from local authorities in the name of Pinta & Howell, Inc. In addition, Ronald Pintacuda is charged with obtaining four building permits in the name of Pinta & Howell, Inc., for construction contracts taken by Tri-County Marine Construction, Inc. (Tri-County Marine). After the formation of Pinta & Howell, Inc., Ralph Howell who was an officer in Tri-County Marine suggested to Pintacuda that Tri-County Marine be made, an affiliate or subsidiary of Pinta & Howell, Inc. Pintacuda concurred in this, and Howell had the advertising, letterhead, contracts, and yellow page advertisement for Tri-County Marine altered to reflect that Tri-County Marine was an affiliate or subsidiary of Pinta & Howell, Inc. Documentary evidence concerning the corporate status of Pinta & Howell, Inc., and Tri-County Marine which was presented to the local board was not made a part of the exhibits presented to the Hearing Officer. However, testimony of witnesses at the proceeding based upon those exhibits indicate that there was no record in the Secretary of State's office of any corporate interrelationship between Pinta & Howell, Inc., and Tri-County Marine, Inc. The testimony of Pintacuda and the contracts presented in support of the Board's case do show that Tri-County Marine represented itself to the public and functioned as an affiliate or subsidiary of Pinta & Howell, Inc. This affiliation was even recognized by the Board's prosecuting attorney, Mr. Flynn, at page 6 when he stated ". . . Tri- County Marine Construction, Inc. is an affiliate of Pinta & Howell, Inc." Initially, efforts in January, 1976, to contact Pintacuda by local Board authorities and investigators of the Florida Construction Industry Licensing Board were unsuccessful. From the testimony of Mr. Verner, investigator for the Construction Industry Licensing Board, many telephone and personal messages left with Mr. Ralph Howell and his secretary were not passed on to Mr. Pintacuda. When Mr. Pintacuda was eventually contacted by Mr. Verner, Mr. Pintacuda was cooperative, forthright, and took immediate steps to deregister as qualifier for Pinta & Howell, Inc., in an effort to prevent further abuses by Ralph and Gerald Howell. The Palm Beach County Construction Industry Licensing Board did not find Ronald Pintacuda guilty of any of the three allegations charged. The action to revoke the license of Ronald Pintacuda was on a motion by Mr. Barrett at page 41 of the transcript which does not recite a finding regarding Pintacuda's guilt of any of the allegations against him. It was this motion which was seconded and passed by the Board. The local board therefore revoked the license of Ronald Pintacuda without a finding of guilt on any of the complaints against him.
Recommendation Based upon the foregoing findings of fact and conclusions of law and review of the proceedings before the Palm Beach County Construction Industry Licensing Board, the Hearing Officer recommends that no action be taken by the Florida Construction Industry Licensing Board against the license of Ronald Pintacuda. DONE and ORDERED this 23rd day of February, 1978, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 Alan J. Ciklin, Esquire Post Office Box 3704 Professional Plaza West Palm Beach, Florida 33402 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. DIVISION OF ADMINISTRATIVE HEARINGS, DOCKET NO. 77-785 RONALD PINTACUDA dba TRI-COUNTY MARINE CONSTRUCTION, INC., CG C005834, 6561 Katherine Road, West Palm Beach, Florida 33406, Respondent. /
The Issue The issue in this case is the appropriate penalty to impose on the Respondent for: proceeding on a job without obtaining the applicable local building department permits and inspections, in violation of section 489.129(1)(o), Florida Statutes1/; failing to notify a customer of the Florida Homeowners’ Construction Recovery Fund, in violation of section 489.1425; and failing to place his license number on a construction contract, in violation of section 489.119(5)(b).
Findings Of Fact The Petitioner is the state agency charged with the licensing and regulation of the construction industry pursuant to section 20.165 and chapters 455 and 489, Florida Statutes.2/ At all times material to these proceedings, the Respondent was licensed as a certified general contractor in the State of Florida, having been issued license CGC 12754. At all times material hereto, the Respondent was the primary qualifying agent of Charles Boyd Construction, Inc. (“Charles Boyd Construction”). The Respondent’s license is current and active. The Respondent has been subject to prior discipline. On September 21, 1988, the Construction Industry Licensing Board (CILB) issued a Final Order against the Respondent in case 78033 that imposed an administrative fine in the amount of $2,500 for violating sections 489.129(1)(j) and (m), 489.105(4), and 489.119, Florida Statutes, in 1983 and 1984. On or about December 3, 2012, Joanie Miller Drobnie entered into a contract with Respondent, d/b/a Charles Boyd Construction, for renovations to her residence located at 452 Banana River Boulevard, Cocoa Beach, Florida. The original contract price was $173,000. Charles Boyd Construction accepted $175,000. The additional funds represented amounts for extras on the job. On or about January 2, 2013, the Respondent, d/b/a Charles Boyd Construction, obtained Building Permit 13-0366 from the City of Cocoa Beach Building Department for the installation of new windows. Charles Boyd Construction proceeded on interior renovations and performed additional construction contracting services requiring proper licensure without obtaining applicable local building department permits and inspections. The contract at issue failed to contain a statement notifying Ms. Drobnie of her rights under the Florida Homeowner’s Construction Recovery Fund. The Respondent’s license number does not appear on the contract. The Petitioner and Respondent agree, based on the facts and circumstances in this case, that discipline should not exceed an administrative fine of $7,000, payment of the Petitioner’s costs of $487.93, and completion of a live, approved seven-hour continuing education course.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Licensing Board enter a final order: finding that the Respondent violated section 489.129(1)(o) and, by failing to comply with sections 489.1425 and 489.119(5)(b), violated 489.129(1)(o); imposing an administrative fine of $7,000; assessing costs in the amount of $487.93; and requiring the Respondent to complete an approved, live seven-hour continuing education course in addition to any otherwise-required continuing education, with an emphasis on chapter 489 and the rules implementing it. DONE AND ENTERED this 2nd day of August, 2016, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 2nd day of August, 2016.
