Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact. The Respondent has been licensed as a professional engineer in the State of Florida since 1964 (license number PE 0010812), having become licensed by examination in the field of mechanical engineering. He has practiced professional engineering since 1964 in and around Fort Walton Beach and Okaloosa County, Florida, as an individual practitioner and as an officer of the Royster Construction Company. The Respondent's formal education and professional experience are in the fields of civil, structural, and mechanical engineering. Although testimony indicates that the Respondent has had some contact with the field of electrical engineering, he lacks significant formal education or professional experience in that specialty. Findings regarding Count I In July 1984 plans for a proposed project to be known as the White Sands Bowling Center were prepared, signed, and sealed by the Respondent in his capacity as a professional engineer. The plans included sheets numbered 1 through 9, of which sheet number 6 and sheet number 9 depict electrical components of the proposed structure. Findings regarding Count II The electrical engineering plans (sheet number 6 and sheet number 9) contain errors and omissions including the following: The "symbol legend" necessary to define components depicted on the plans has been omitted. Fixture types and wattage specifications necessary to determine adequate and appropriate loading of circuits have been omitted. Electrical component and fixture circuit identification numbers necessary to identify such components and fixtures have been omitted. Specifications necessary to determine air conditioning connections have been omitted. Details of fire alarm circuitry required by applicable building codes in force at the time of design have been omitted. Emergency exit fixtures and circuitry required by applicable building codes in force at the time of design have been omitted. Electrical panel details necessary to complete construction have been omitted. Details of connections necessary for installation of indicated aluminum wiring have been omitted. The specification depicted for grounding of the electrical system is not in compliance with applicable building codes in force at the time of design. The electrical riser depicted on the plans is incomplete and does not provide sufficient information to complete construction. The Respondent failed to meet a standard of due care in the preparation of the plans depicting electrical engineering for the White Sands Bowling Center and was negligent in his preparation of those plans. Findings regarding Count III The mechanical engineering plans (sheet number 7, air conditioning, and sheet number 8, plumbing) contain errors and omissions including the following: Specifications of air conditioning units and associated ducting are in conflict and do not provide details necessary to complete construction. Details showing "returns" from outside air are in conflict with known standards of design and do not provide details sufficient to complete construction. Specifications of condensation features do not provide sufficient detail to complete construction and are not in compliance with applicable building codes in force at the time of design. Toilet exhaust system details are not sufficient to complete construction and are not in compliance with applicable building codes in force at the time of design. Details of water supply system source and sanitary collection and disposal required by applicable building codes in force at the time of design have been omitted. The Respondent failed to meet a standard of due care in the preparation of the plans depicting mechanical engineering for the white Sands Bowling Center and was negligent in his preparation of those plans. Findings regarding Count IV The structural engineering plans (sheet number 3) do not contain details sufficient to complete construction, and if built as designed, there is no reasonable assurance that the structure would comply with applicable building codes in force at the time of design. The Respondent failed to meet a standard of due care in the preparation of the plans depicting structural engineering for the White Sands Bowling Center and was negligent in his preparation of those plans.
The Issue The issues are whether Respondent is guilty of making misleading, deceptive, or fraudulent representations in or related to the practice of contracting, in violation of Section 289.129(1)(c), Florida Statutes; mismanagement or misconduct in the practice of contracting that causes financial harm to a customer, in violation of Section 489.129(1)(h)2, Florida Statutes; failing to comply with any of the provisions of Chapter 489, Part I, or a rule or lawful order of the Construction Industry Licensing Board, in violation of Section 489.129(1)(j), Florida Statutes; abandoning a construction project, in violation of Section 489.129(1)(k), Florida Statutes; committing fraud or deceit in the practice of contracting, in violation of Section 489.129(1)(m), Florida Statutes; two counts of committing incompetency or misconduct in the practice of contracting, in violation of Section 489.129(1)(n), Florida Statutes; and failing to satisfy, within a reasonable time, a civil judgment obtained against him, or a business entity that he has qualified, and related to the practice of contracting, in violation of Section 489.129(1)(r), Florida Statutes. If Respondent is guilty of any of these violations, an additional issue is what penalty should be imposed.
Findings Of Fact Respondent is a certified general contractor, holding certificate number CR C016649. He has been continuously certified since 1980 and has been licensed since 1988 as the qualifier of Dunbar Development, Inc. On August 19, 1994, Carla and Vernon Prevatt entered into a contract with Dunbar Development, Inc., for the construction of a residence. The contract calls for Dunbar Development, Inc. (Dunbar), to construct the "Horizon" model home on two platted lots for the sum of $73,395 plus an additional $7400 for Addendum 2. The contract permits Dunbar to cancel the contract if the Prevatts timely apply for a mortgage, but are denied. However, in such event, the contract requires Dunbar to return to the Prevatts all of their money. The contract acknowledges that the Prevatts paid Dunbar the sum of $1500 at the time of entering into the contract. A handwritten note states: "June 06, 1995—Rec'd $17,000.00 ck no. 16655 to initiate construction application for permits & building." Although the contract was originally signed by John Danzy, as "authorized representative" for Dunbar, this handwritten note bears the initials, "WB." The contract does not contain Respondent's certificate number. The contract does not contain a completion date. The contract provides that Dunbar will "commence construction . . . after full down payment and mortgage financing is received" and "will complete the same as soon as practicable, subject to the availability of labor and supplies [and] delays not within the control of [Dunbar]." Another clause in the contract states that Dunbar shall complete construction within two years of the date of the contract. On August 30, 1994, the Prevatts applied for a construction mortgage loan with the First Bank of Clewiston. The bank processed the loan application without any delays or problems. However, there was a substantial delay not attributable to the Prevatts or Respondent in obtaining an appraisal. The appraiser completed the appraisal before March 5, 1995, but probably not much prior to that date. By letter dated March 5, 1995, from Dunbar's financial officer to the Prevatts, Dunbar acknowledged the receipt of the appraisal and proposed a draw schedule totaling $80,795. The first payment under the draw schedule was $18,500 for "applicable fees and permits, plus, the plylon engineered foundation and engineered septic field construction initiation." The policy of First Bank of Clewiston is to match the value of the work to the payments to the contractor. The first payment due under Dunbar's draw schedule called for a payment substantially in excess of the value of the goods and services rendered. However, the bank acceded to the schedule and delivered a check dated June 6, 1995, in the amount of $17,000 payable jointly to the Prevatts and Dunbar. As Dunbar had done with the $1500 down payment received at the time of the execution of the contract, Dunbar deposited the $17,000 check and received payment of these funds. On behalf of Dunbar, Respondent hired Johnson-Prewitt & Associates, Inc., in early November 1995, to prepare the engineering drawings for the septic tank and foundation. These materials are specific to the Prevatts' homesite. By invoice dated November 13, 1995, Johnson-Prewitt & Associates, Inc., invoiced Respondent at Dunbar a total of $1700 for the completed work. After a credit of $700, the outstanding balance was $1000, which remains unpaid. From 1994 through 1995, Respondent, on behalf of Dunbar, provided information to Alpha Engineering, which was retained to prepare the plans for the Horizon model that the Prevatts were building. Most of this work was for the prototype Horizon home, but the work reflected by an invoice dated March 16, 1996, was exclusively for the home to be built for the Prevatts. Respondent and Dunbar never paid this invoice and never picked up the plan revisions that were the subject of this invoice. In fact, Respondent and Dunbar never commenced construction of the Prevatts' home and refused to return any portion of the $18,500 that the Prevatts paid to Dunbar. Although the bank never made any additional disbursements, the Prevatts nevertheless owed the bank the $17,000 disbursed as the first draw and, at the time of the hearing, had paid the sum of $6522.96 in interest and closing costs on this loan. With two checks totaling $2800 that, in June 1995, Yvonne Bushnell delivered to Respondent, on behalf of Dunbar, Ms. Bushnell entered into a contract with Dunbar for the construction of a residence. After Dunbar declined to construct a house or return the money, Ms. Bushnell filed an action against Respondent and Dunbar in Lee County Court on January 31, 1997. On March 12, 1997, the court entered a default judgment against Dunbar Developing, Inc., for the sum of $2800 and costs of $79.50. Following entry of the judgment, on September 14, 1998, Ms. Bushnell and Respondent agreed to settle the matter with the payment of $1600. However, upon payment of only $800, Respondent obtained Ms. Bushnell's signature on a letter dated September 14, 1998, to Petitioner acknowledging the full settlement of the case. Respondent then proceeded to obtain court issuance of a satisfaction when Ms. Bushnell refused to sign a satisfaction, absent payment of the remaining $800. By Order to Set Aside Settlement Agreement entered November 24, 1998, the court reinstated the original judgment. The judgment remains unsatisfied.
Recommendation It is RECOMMENDED that the Construction Industry Licensing Board enter a final order revoking Respondent's certificate as a general contractor and imposing an administrative fine against him of $4000. DONE AND ENTERED this 6th day of May, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings This 6th day of May, 1999. COPIES FURNISHED: Paul F. Kirsch, Senior Attorney Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 P. Michael Villalobos Sussman Law Group, P.A. 1375 Jackson Street, Suite 201 Fort Myers, Florida 33901 William Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Rodney Hurst, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467
Findings Of Fact At all times material to these proceedings, Respondent Albritton was licensed as a certified roofing contractor and held license number CC C015182. Mr. Albritton was the qualifying agent for Albritton Roofing, Inc. On or about May 30, 1985, Albritton Roofing, Inc. submitted a proposal to Inter-Urban Developments, Inc., to install a tile roof on the single-family residence which was being built for Ernani and Giorgina Grilli in Cape Coral, Florida. Inter-Urban Developments, Inc., was the general contractor for the construction of the custom home being built for Mr. and Mrs. Grilli. The proposal reflected that Albritton Roofing, Inc. was willing to install a roof on the Grilli residence. The roof was to consist of the following: a thirty pound base felt, a ninety pound felt which was to be hot mopped, and a Monier tile roof covering. The tile was to be placed on the roof by using the mud application system. The tiles which had to be cut would be sawed and mitered. The proposed cost of the roof was to be $8,370.00. When the general contractor decided that the tiles could be broken instead of cut, the price was reduced to $7,588.00 The modified proposal was accepted by the general contractor and Albritton Roofing, Inc. It was agreed that the work would be completed in a workmanlike manner, according to the standard practices. In the City of Cape Coral at the time the roof was installed on the Grilli residence in 1985, the standard practice of local roofers was to apply tiles over a thirty pound base felt and a hot mopped ninety pound felt roof with a mud system. The tiles were decorative in nature and were used to keep the sun off the true roof, the hot mopped, ninety pound felt. Fewer tiles were used per square under this method of application and a head lap of one and one-half inches was used during the tile application. Although Cape Coral was without a building code, the head lap requirement was set forth in the county building code. In addition, pursuant to local practices, tiles were marked and broken with a trowel when it was necessary to use a smaller tile. Instead of sawing and mitering the tiles together for a finished look, the mud was used over the top of the tiles in the areas where they were to be joined. Upon completion of the installation, the roof was accepted by the general contractor and the owners of the property. A three-year guarantee of all materials and workmanship furnished by Albritton Roofing, Inc. was issued on October 28, 1985. The guarantee expressly excepted acts of God or accidents from its provisions. On March 18, 1987, the owners of the residence had a pre-installation inspection of the roof made by the installers of a solar pool heating system. During the inspection, it was discovered that many of the roof tiles were loose. The owners were immediately informed of the situation and were advised that the solar heating company would not be responsible for the condition of the roof. After the solar pool heating system was installed on the roof, the owners notified the Respondent Albritton that the roof tiles were loose, and that they wanted Albritton Roofing, Inc. to honor its guarantee. When one of the Respondent's employees went to view the roof, he discovered that solar panels had been installed on the roof. When the employee saw that changes had been made to the roof, he leapt to the conclusion that the loose and broken tiles on the roof were caused by the solar heater installers or other people walking on the roof tiles. However, in spite of the belief that the tile damage was not caused by faulty materials or improper workmanship, Albritton Roofing, Inc. replaced a whole pallet of the Monier tiles on the Grilli roof, free of charge on April 28, 1987. After the tiles were replaced by Albritton Roofing, Inc., the owners continued to experience problems with loose and sliding tiles. In July 1987, Mr. and Mrs. Grilli made a written demand upon Albritton Roofing, Inc. to honor the guarantee and to properly secure the roof tiles. In response to the written demand, Albritton Roofing, Inc. stated that the tiles had been cemented down as they were supposed to have been, and that the problem of loose tiles was caused by the solar panel installers, who broke the tiles loose from the cement when they walked on the roof. Albritton Roofing, Inc. took the legal position that the repairs needed were not caused by faulty materials or workmanship. Thus, the guarantee did not apply in this situation. In August 1987, the roofing inspector for Cape Coral completed a roof inspection at the Grilli residence. It was the inspector's opinion that every section of the roof had loose tile. From his visual inspection, the inspector was able to observe that tile had begun to slide down past the two inch head lap on various areas of the roof. Many of the hip and ridge tiles were loose. In response to the inspector's written report, which opined that the mud might not have been placed at the proper locations under the tiles or that there might have been a problem with the mud mixture, an inspection was completed of the roof by C.A. Wunder, Jr. of C.A. Wunder Engineering, Inc. on behalf of Albritton Roofing, Inc. In September 1987, Mr. Wunder completed his inspection by climbing a ladder and checking tiles within arms's reach in three areas. The inspection revealed that tiles were loose in large areas of the roof. An examination of some of the loose tiles revealed that all of these tiles had mud under them and that the bond between the mud and tile had been broken. It was suggested that people walking on the roof or strong winds provided uplift which broke the bond between the tiles and the mud. On December 7, 1987, a roof inspection was completed by D.H. Gracey on behalf of Mr. and Mrs. Grilli. Mr. Gracey is a roofing consultant who testifies in litigation matters as an expert witness. Dr. Gracey observed that sixty percent of the tiles were loose and had no bond against slippage or wind uplift. Another inspection of the roof was conducted by Jack Hurlston, a certified roofing contractor hired by the Department on August 2, 1989. During the inspection, approximately seventy-five percent of the tiles were loose due to lack of adhesion. In some areas, one bed of mud was used to hold two tiles. Insufficient mud was used in setting tile caps on hips. Hip caps had been stretched leaving insufficient head lap. The proper way to apply the mud on roof tiles in Cape Coral in 1985, was to place the mud about halfway down each tile about four or five inches from the bottom of the tile. Sufficient mud beds had to be placed underneath the tiles as well in order to attach them to the roof. The Respondent Albritton was on site while the tile was being installed on the Grilli residence in 1985. The employee of Albritton Roofing, Inc. who installed the tile on the Grilli residence failed to consistently follow the Respondent's instructions that mud be placed on each tile in a certain spot before the tile was bonded to the roof. The installer's failure to follow instructions for the application of the mud was misconduct which contributed to the roof's decline. In addition, the use of one mud bed to hold two tiles in some areas was a defect in workmanship under the applicable local standards during the time the roof was applied. The owners of the residence have been harmed by the misconduct in that they have loose tiles which continue to slide down the roof and occasionally fall into the yard. The tiles will eventually fail to protect the ninety pound felt from sun damage. The tile roof was applied for this purpose in addition to its cosmetic benefit. No notice of mitigation or aggravation was submitted to the Hearing Officer at the formal hearing.
Recommendation Based upon the foregoing,, it is RECOMMENDED: That the Respondent, as the qualifying agent, be found guilty of having violated Section 489.129(1)(m), Florida Statutes, by failing to adequately control construction activities which resulted in misconduct by the tile installers who failed to properly apply the mud beneath the tiles in some areas of the roof. As a result, there are loose tiles on the roof which were caused by the faulty workmanship. That the Respondent be found not guilty of all of the other alleged violations in the Administrative Complaint. That the Respondent be required to pay a $500.00 fine as set forth in Section 21E-17.001(19)(b), Florida Administrative Code. The reason the lower end of the fine scale is recommended by the Hearing Officer is that the misconduct by the installers was not readily observable by the Respondent during his inspection of the tile roof cover. In addition, the Respondent consistently acted in good faith in his attempts to negotiate with the owners of the roof. DONE and ENTERED this 29th day of March, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 29th day of March, 1990. APPENDIX TO RECOMMENDED ORDER Petitioners's proposed findings of fact are addressed as follows: Accepted. Accepted. See HO #1. Accepted. See HO #1 - #3. Accepted. See HO #6. Rejected. Inconsistent with other, accepted testimony of other witnesses. See HO #6. The relevant point, that loose roof tiles were discovered in March 1987, is accepted. Accept that Albritton issued a three-year guarantee. See HO #5. Accept that tiles were replaced on the roof after March 1987. See HO #8. Accept that the owners continued to experience problems with loose and sliding tiles, and made a written demand to Albritton to honor the warranty. See HO #9. Reject the proposed finding that replacement tiles were a different color. Not proved by competent substantial evidence. Rejected. Improper lay opinion. Contrary to fact. See HO #4. Accept the first two sentences. See HO #11 and #12. Reject third sentence. Irrelevant. Reject fourth sentence. Lack of proper factual foundation on which to base his conclusion. Accept that D.H. Gracey examined the roof. See HO #13. Reject his opinion that the tiles were laid over a sub-roof. Contrary to fact. See HO #4. Reject the opinion of D.H. Gracey. Mr. Gracey approached the problems regarding the roof as if it were a product's warranty case. His opinions did not aid the trier of fact in the determinations which had to be made in these proceedings. His opinions that the tiles were not installed as per the manufacturer's recommendations were irrelevant. Reject the first sentence. Irrelevant. Accept the second sentence. See HO #13. Rejected. Irrelevant. Reject that sixty percent of the tiles were loose. The rest of the paragraph is accepted. See HO #14. Rejected. Irrelevant. Rejected. Not probative of anything. Irrelevant. Rejected. Speculative. Rejected. Irrelevant to the issues in this proceeding. Accepted. See HO #19. Rejected. Irrelevant. Rejected. Contrary to proof established at hearing. Respondent's proposed findings of fact are addressed as follows: Accepted. See HO #3. Accepted. See HO #4. Accepted. See HO #4. Accepted. Accepted. See HO #3 and #4. Rejected. Contrary to fact. See HO #16 - #18. Copies furnished: Andrea Bateman, Esquire Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Thomas M. Brondstetter, Esquire 1617 Hendry Street Post Office Box 2397 Fort Myers, Florida 33902 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Fred Seely, Executive Director Construction Industry Licensing Board 111 East Coastline Drive, Room 504 Post Office Box 2 Jacksonville, Florida 32202
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations that the Respondent has violated Rule 21F-20.002, Florida Administrative Code, and Sections 477.0265(1)(c) and 477.029(1)(i), Florida Statutes (1985). At the hearing the Petitioner presented the testimony of two witnesses and offered one exhibit into evidence. Thereafter, the Respondent testified in her own behalf. At the conclusion of the evidentiary portion of the hearing, the parties advised the Hearing Officer that they did not intend to obtain a transcript of the proceedings. A deadline of 10 days from the date of the hearing was established for the submission of the parties' proposed recommended orders. The hearing concluded with the presentation of oral argument by counsel for both parties addressed primarily to the issue of the appropriate penalty. As of the date of this recommended order, neither party had filed a proposed recommended order.
Findings Of Fact The Respondent is licensed to practice cosmetology and to operate a cosmetology salon in the State of Florida, having been issued license numbers CL 0163833 and CE 0041166. At all times material hereto, the Respondent has been the owner of a cosmetology salon named All Around Hair Stylist, located at 5567 Moncrief Road, Jacksonville, Florida 32209. An inspection of the premises of All Around Hair Stylist was conducted on August 29, 1987, by one of the Petitioner's inspectors. At that time the salon was in substantial disarray. Among the conditions in existence in the salon at that time were the following: The container for soiled linens contained trash other than linens. Bags of overflowing trash were in the service area and in the back of the premises. Hair was all over the back room floor that one had to pass through to get to the shampoo bowl and restroom. Food scraps were left in the back room. The salon had an objectionable odor. The floors were filthy and littered with hair, trash, dust, and dirt. The shampoo bowls were not clean. The door leading to the restroom had no handle and a rug jammed against the door made it very difficult to open. The restroom had a very unpleasant odor. There was a hole in the wooden floor. The pipes to the sink did not work properly and water from the sink would pour onto the floor. The restroom did not have a waste receptacle, paper towels, or soap. There was no ventilation in the restroom. The service area was quite cluttered. The brushes and combs were full of hair. A reinspection was done on December 3, 1987. At that time there were still some shortcomings in the condition of the premises, but substantial improvements had been made. Shortly before the hearing, another reinspection was done. At the time of the second reinspection, the premises were "spotless." Approximately a week or ten days before the August 29, 1987, inspection, the Respondent's premises were vandalized. The vandals broke into the building and once inside they broke the sink, the pipes to the sink, the water heater, and various other things in the salon. The vandals also made quite a mess inside the premises by doing such things as taking supplies out of drawers and dumping garbage on the floor. At the time of the August 29, 1987, inspection the Respondent had not yet been able to repair all of the damage caused by the vandals or clean up all of the mess caused by the vandals. The Respondent did not receive a settlement check from her insurance company until sometime after August 29, 1987, and due to her economic circumstances she was not able to begin to repair the damage caused by the vandals until she received the insurance settlement. Since August 29, 1987, the Respondent has repaired all of the damage to the premises and has made other substantial improvements to the premises. The Respondent's premises are in a low rent neighborhood. Many of her customers are in low income brackets. Accordingly, the Respondent charges lower than usual prices for her services and does not earn a large income from the business.
Recommendation Based on all of the foregoing, it is recommended that the Board of Cosmetology enter a final order in this case finding the Respondent guilty of violating Section 477.029(1)(i), Florida Statutes, and imposing a penalty consisting of a reprimand and an administrative fine in the total amount of one hundred dollars ($100.00) DONE AND ENTERED this 18th day of March, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH 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 March, 1988. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Chief Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 R. Lee Utley, Jr., Esquire 331 East Bay Street Jacksonville, Florida 32202 Myrtle Aase, Executive Director Board of Cosmetology Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue for consideration is whether Respondent's license as a registered roofing contractor in Florida should be disciplined because of the misconduct alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues contained herein, Respondent, Charles J. Eckert, was a registered roofing contractor in Florida. Petitioner, Department of Professional Regulation, (Department), and the Construction Industry Licensing Board, (CILB), were and are the state agencies responsible for the regulation of the construction industry in this state. On August 7, 1987, James F. Gordon, an individual with a reported building and real estate business background, contracted with the Respondent to install the roof on the house he was building and which he had designed. Mr. Gordon chose the roofer himself rather than using the general contractor's roofer because that individual was not familiar with the type of tile to be installed. Respondent had installed a roof of this type tile on the condominium apartment in which Mr. Gordon was living at the time, and appeared to have done a good job, so Mr. Gordon chose him to do the house roof. The contract was negotiated between Mr. Gordon and the Respondent and his partner who took the plans to study before submitting their proposal to install the tile and base which, upon acceptance, became the contract for the job. Mr. Gordon was to pay for the tile ordered by Respondent. The Respondent ordered 9400 square feet of tile plus caps which came to between $8500 and $8800. The contract between Gordon and Respondent, for installation Of the tile and base, called for a payment of $9800. The original agreement between the parties was executed in July, 1987. Work was to start about three months later, after the permit for house construction had been pulled, based on an estimate of how construction would progress. As the house was erected, Mr. Gordon would notify the Respondent of the progress so he could have some idea as to when his work was to begin. The actual roof work began sometime in October, 1988. Respondent's men came timely and did the hot tar and felting during which time, Mr. Gordon often went up on the roof with the Respondent to see how things were going. The original plans called for Anderson skylights in the roof and Respondent's personnel did not want to use the flashings supplied with them. Mr. Gordon agreed to the change. The tile was custom ordered for this job and took some time to arrive. When it did, it was installed by a subcontractor under arrangement with the Respondent. Respondent never came to inspect or supervise the work of the installers, who he was paying by the piece, after his last visit when the mopping of the tar and felt was completed. Mr. Gordon was there every day and never saw Respondent during the entire installation. Respondent admits that paying by the piece for work of this kind may not be the best way to do it. The actual installation of the tile took approximately three weeks or more during which time the installers frequently complained about the way the roof was cut. The tile manufacturer sent a representative out to examine it. This individual indicated the roof was OK. When the installation was complete, there were 16 yards of tile debris left on the ground around the house. When no effort was made by the roofers to clean it up, Mr. Gordon repeatedly called Respondent's office to complain, and it took approximately two weeks before anyone came out to pick it up. Even then, the debris was merely placed in one large pile in the front yard and neither Respondent nor his subcontractor ever came back to remove it. Mr. Gordon had it removed at his own expense. The contract between Mr. Gordon and Respondent did not specifically provide for debris removal and Respondent claims this work is generally accomplished by the general contractor. No evidence to contradict this claim was presented by Petitioner. It was also noted that the installers mixed the colored cement used in the roofing in the garage and got it all over that area. No effort was made to clean it up before departure. Other deficiencies in installation included uneven installation of tile on the West side of the house. The tiles ran zigzag in their rows. Colored cement was splashed on the soffits; the color of the caps was irregular due to improper mixing of oxide for the cement; and the cap tiles were raised. Several months after installation, holes were discovered under tiles which were lifting up, and there was a leak in the roof near a skylight. Because he was dissatisfied with the roofing job he got, prior to closing, Mr. Gordon notified the bank financing the project that he was withholding $1,000 from the amount due the Respondent. He paid Respondent the balance. Because of personal problems unrelated to this matter, Mr. Gordon wad unable to take any further action for several months, during which time he heard nothing from the Respondent. He was, however, still dissatisfied with the roofing job and ultimately called Respondent to come fix a leak which had developed around a skylight. He received no response to that call and Respondent never showed up. Somewhat later, Mr. Gordon received a letter from a collection agency demanding the thousand dollars he had withheld. Mr. Gordon responded with pictures of the roofing job done by the Respondent and didn't hear anything further about it from either the agency or Respondent. Thereafter, Mr. Gordon filed a complaint with the Department and after that, Mr. Byer, hired by Respondent, came out to the Gordon house to fix the leak and to attempt to fix the discoloration. Mr. Byer removed the loose tiles and re-cemented the caps. Instead of replacing the cement, he painted with a substance which matched the color, but which will last only eight years. The roof is now sound and water tight, but due to the holes in some tiles, the mismatching of colors, and the zigzag courses, it is, to Mr. Gordon, esthetically unsatisfactory. Mr. Gordon has called in another roofer who indicated that the existing problems cannot be fixed. To correct the problem would require reroofing. Respondent's job was also considered unsatisfactory by Mr. Hurlston, the Department inspector who looked at the job in mid February, 1988. In his opinion, the work was sloppy, the tile has been "stretched", the lines are not straight, there are holes between the tiles, the "mud" around the roof ridge is not nesting properly, and some field tile are also raised and not nesting properly. Taken together, the workmanship is poor. It might be acceptable in a project home but not in a custom home as this is. In Mr. Hurlston's opinion, the failure to continuously supervise and correct errors as they occurred shows indifference to the job and constitutes gross negligence. In his opinion, the defects in the finished job are directly attributable to a lack of supervision by the Respondent, and it is so found. Respondent contends the job was done according to the installation specifications supplied by the manufacturer. He claims that the irregularity problem starts with the first three rows of tile and once they are down, the course is set. Correcting problems every couple of rows results in irregular lines and since every 5th line is nailed, if it is not in straight, it's too late to change without removing the whole roof. Assuming, arguendo, this is so, removal may well be the only appropriate course of action open if the installation is not right, and Respondent should have done it if necessary. Mr. Eckert also claims that the loose tiles discovered by Mr. Hurlston were, for the most part, caused by people walking around on the roof. A 10% loose tile rate, as evidenced here, is considered acceptable by the manufacturer. Mr. Hurlston agrees and it is so found. Respondent claims no knowledge of any problem with Mr. Gordon except for the fact that Gordon owes him $1,000. In light of Mr. Gordon's testimony that he called Respondent repeatedly to get him to come out, this is not likely. He has a policy that if a client owes him money, he won't correct any problems with the job until he is paid in full. Nonetheless, he sent Mr. Byer to make any corrections necessary in this case with the instructions to "do anything necessary to make him [Gordon] happy." Byer worked on the Gordon house for about three weeks during which time he replaced the V ridges by re-mortaring it and straightening crooked tiles. As the work progressed, Mr. Gordon seemed happy and indicated the work looked better. At no time did Gordon tell Byer to hurry or to abandon the job. When it was complete, however, Gordon told Byer that though he liked what Byer had done, Respondent would either reimburse him or he'd have his license. In light of his relationship with Gordon, the fact that Gordon has indicated he wants the roof replaced, and Gordon's alleged comment that he'd either be reimbursed or have Respondent's license, Respondent does not believe anything he could do short of replacing the roof, something he will not do, would satisfy Gordon. Other than sending Mr. Byer out to make corrections, he did nothing. It is obvious, however, that the only way to correct the problem of appearance is to remove the tile and start again. Respondent is unwilling to do this. By Final Order dated February 4, 1987, the Construction Industry Licensing Board imposed a fine of 1,000.00 on Respondent for gross negligence and incompetence demonstrated on a roofing job accomplished by him and his firm in 1980 and 1981.
Recommendation Based on the foregoing Findings of Fact and conclusions of Law, it is, therefore: RECOMMENDED that the Respondent, Charles J. Eckert's registration as a roofer be suspended for three months but that the suspension not be implemented and he be placed on probation for a period of one year under such terms and conditions as the Board may prescribe; that he pay an administrative fine of $1,000.00, and that he be reprimanded. RECOMMENDED this 29th day of December, 1989, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 29th day of December, 1989. COPIES FURNISHED: J. Craig Myrick, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Charles J. Eckert 2515 16th Avenue Drive East Bradenton, Florida 34208 Kenneth E. Easley General Counsel DPR 1940 North Monroe Street Tallahassee, Florida 32399-0792 Fred Seely Executive Director CILB Post Office Box 2 Jacksonville, Florida 32202
The Issue The issues in this case are whether Respondent, Douglas J. Ringold, Jr., d/b/a Alpha Restoration, Inc., committed the offenses alleged in a four-count Administrative Complaint filed with Petitioner, the Department of Business and Professional Regulation, on January 4, 2008, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for, among other things, the licensure of individuals who wish to engage in contracting in the State of Florida; and the investigation and prosecution of complaints against individuals who have been so licensed. See Chs. 455 and 489, Fla. Stat. Respondent, Douglas J. Ringold, Jr., d/b/a Alpha Restoration, Inc., is and has been at all times material hereto a certified roofing contractor in Florida, having been issued license number CCC 1326506 by the Construction Industry Licensing Board (hereinafter referred to as the “Board”). At all times material hereto, the status of his license has been "Current, Active." At all times material, Mr. Ringold was certified as doing business as Alpha Restoration, Inc. (hereinafter referred to as "Alpha"), a Florida corporation. At the times material, Mr. Ringold was the qualifying agent for Alpha, which possesses a certificate of authority as a contractor qualified business in Florida, license number QB 40272. Alpha’s license was issued May 5, 2005, and it is scheduled to expire August 31, 2010. On or about November 7, 2005, Alpha, through its employee Harry Youdell, met with Jose Fons at Mr. Fons’ residence located at 9922 Southwest 2nd Terrace, Miami, Florida (hereinafter referred to as the “Residence”), to inspect the roof on the Residence. Mr. Fons had not been successful in obtaining approval from his insurance company for replacement of the hurricane-damaged roof. Alpha represented that it would assist Mr. Fons in negotiating with his insurance company to obtain approval for replacement of the roof, which Mr. Fons authorized, in writing, Alpha to do. On January 15, 2006, Mr. Fons and Alpha entered into a written agreement (hereinafter referred to as the “Contract”) whereby Alpha agreed to install a metal tile roof on the Residence in exchange for payment of $27,187.02, with possible increases for “additional payments & supplements,” from Mr. Fons. The Contract provided for a 50 percent material deposit to be paid to Alpha. By check dated January 15, 2006, Mr. Fons paid the 50 percent deposit totaling $13,600.00 to Alpha. At the time the Contract was entered into, Alpha told Mr. Fons that a permit would be applied for the following week and that construction would commence in February. Although there was unsubstantiated hearsay that Mr. Fons was informed that the metal tile roof Mr. Fons was purchasing had not been approved for use in Miami-Dade County, Mr. Fons credibly denied being so informed. The credible, non-hearsay evidence supports a finding that Mr. Fons was not immediately informed that metal tile roofs were not authorized in Miami-Dade County. Despite not providing written or verbal authorization to Alpha to wait more than 30 days after execution of the Contract to apply for the permit for the roof work, no permit was applied for by Alpha for the Residence roof work within 30 days after January 15, 2006. Nor did Alpha commence work of any kind on the project in January or February 2006. During the first week of March, having heard nothing more from Alpha, Mr. Fons called Alpha and inquired about the status of the project. Mr. Fons was told by Mr. Youdell that the metal tile roof had not been approved by the Miami-Dade Building Department (hereinafter referred to as the “Building Department”). Mr. Youdell told Mr. Fons it would take another 30 days to obtain a permit. As of April 2006, Alpha had not commenced work or contacted Mr. Fons. Therefore, Mr. Fons called and spoke to Mr. Youdell about the status of the project. Mr. Fons was again told that the metal tile roof had not been approved and that testing of the roof would take another 30 days. In fact, Alpha had not made application for any permit for the Residence roof job through April 2006. On May 11, 2006, approximately 114 days after receiving Mr. Fons’ deposit, Alpha finally submitted an application for the permit with the Building Department. The application was designated C2006169450 by the Building Department. In May 2006, Mr. Fons again contacted Alpha to inquire about the project, since no work had been started and he had not heard from Alpha. For the third time, Alpha told Mr. Fons that the roof had not gained approval from the Building Department and that another 30 days was needed. In June 2006, Mr. Fons again contacted Alpha. Work on his roof had not started and he had not heard from Alpha. Not surprisingly, Mr. Fons was told for the fourth time that the roof had not gained approval and there would be another 30-day delay. Mr. Fons, who was becoming frustrated with the delay, visited the Building Department and inquired about the project. He learned that Alpha had not applied for a permit until May 2006 and was told that the Building Department had “denied” it on May 16, 2006. Mr. Fons was not told by the Building Department that, despite the “denial,” the permit application remained open. By July 2006, Alpha had still not commenced work. Therefore, Mr. Fons contacted Alpha and requested a meeting to discuss alternatives to the metal tile roof. Obviously, Mr. Fons was aware that metal tile roofs were not approved for use in Miami-Dade County since entering into the Contract. While no work had commenced from January 15, 2006, when the written agreement was entered into and the deposit was made, through July 2006, Mr. Fons effectively agreed to wait for Alpha to attempt to gain approval for the metal tile roof from the Building Department. Having obtained Mr. Fons’ approval, Alpha could not have commenced work on the project through July 2006. On July 17, 2006, Alpha, through Mr. Youdell, met with Mr. Fons at the Residence. Because of the delays that had been caused by the failure of Alpha to gain approval of the metal tile roof from the Building Department and with assurances that the contract price would be the same, Mr. Fons agreed to accept, and Alpha agreed to provide, a tile roof. Alpha represented to Mr. Fons that the tile roofing material was in-stock, that a permit would be obtained within a week, and that construction would commence by mid-August 2006. Between July 25, 2006, approximately a week after the July 17, 2006, meeting, and August 7, 2006, Mr. Fons monitored the Building Department’s web-site to see if Alpha had applied for a permit for the tile roof. When there was no indication that the permit had been applied for, Mr. Fons called Alpha on August 8, 2006. Mr. Youdell told him that the permit had been applied for and it had not appeared in the computer system because the Building Department was backlogged. Mr. Youdell told Mr. Fons that Alpha would be at the Residence in ten days to at least clean up debris. As of August 18, 2006, no new permit had been applied for and no one from Alpha had been to the Residence. Consequently, Mr. Fons wrote and delivered a letter by facsimile addressed to Mr. Ringold, stating, in part, the following: After months of dealing with you, this is my formal request for a full refund of $13,600 paid to you January 15, 2006, with my personal check #6408. Said amount was a deposit for the contract for the replacement of the roof at my residence located at 922 SW 2 Terrace, Miami, FL. As you are aware of, Florida Statutes 489.126 demands that you apply for the necessary permits within 30 days after the initial payment (my payment to you on 1-15- 06 $13,600). Please do not call me, from now on all communications will be done in written form. If you fail to refund my deposit within 10 days, please be advised that I will file a complaint . . . . Since we are now in August, and you have not commenced work at my residence, this is my demand letter for a check in full refund of my deposit within 10 days of receipt of this letter. On August 24, 2006, after having received Mr. Fons’ August 18, 2006, letter, Alpha submitted an on-line application for a tile roof for the Residence. The matter was designated W2006262830. This permit application was not approved because Alpha failed to complete the application process. When he did not receive a response to his August 18, 2006, letter, Mr. Fons wrote a second letter to Alpha, which was mailed by certified mail on or about September 4, 2006. In the second letter, Mr. Fons indicated that the ten-day deadline set out in his previous letter had passed without response and he again requested the return of his deposit. On September 3, 2006, the original metal tile roof permit application was rejected by the Building Department. On September 8, 2006, the permit application, having been converted from a metal roof to a tile roof, was approved and issued as permit number 2006126043. On September 6, 2006, after Alpha had applied for and obtained a permit, Mr. Fons finally received a written response from Alpha to his August 18, 2006, letter. In the response, Mr. Ringold suggests the following: “At the signing of your contract you were aware that ‘Metro Steel Tile’ did not have Miami Dade approval and you were willing to wait for such to be approved. This made securing a permit in 30 days impossible and you were completely aware of that at the time.” Mr. Ringold’s understanding of Mr. Fons’ “understanding” has not been substantiated by the evidence presented in this case, and is, therefore, rejected. Mr. Ringold goes on to accurately suggest that Mr. Fons and Alpha had modified the agreement in July, when it was agreed that a tile roof would be placed on the Residence. Mr. Ringold then suggests that any delay in applying for a permit after July was due to the need to ensure that the tiles were delivered, facts Mr. Fons was not previously apprised of. Mr. Ringold ends the letter as follows: We have confirmed that your tile is acquired and have applied for your permit. Had we been informed that you were so concerned that your permit be pulled immediately we would have been more than happy to do so. We never worry about getting the permit in Dade County as they are very effective in issuing permits in a timely manner [a fact which Mr. Youdell was apparently not aware of, given his representation to Mr. Fons that the Building Department was back logged]. I do not understand the reason for the letter? We sincerely have always had your best interest at heart, and want to proceed with the install. I am confident that you will be pleased with the finished product. Please if you would contact me directly at . . . to discuss this matter. On September 11, 2006, Mr. Fons found a copy of permit number 2006126043, issued on September 8, 2006, on the door of the Residence. Other than a letter from Mr. Fons to Alpha dated October 23, 2006, requesting a list of subcontractors and suppliers used by Alpha, there was no further correspondence between Alpha and Mr. Fons. Nor did Alpha make any effort to fulfill its obligations under the Contract. Ultimately, permit number 20066126043, issued September 8, 2006, was cancelled based upon a February 7, 2007, request from Alpha. No work took place on the project for more than 90 days after the permit was issued. Based upon the foregoing, more than six months passed after the Contract was entered into without any work being performed by Alpha: January 15, 2006, to July 17, 2006. While the evidence failed to prove that Mr. Fons was fully informed at the time the Contract was entered into that the metal tile roofing he had selected was not approved for use in Miami-Dade County and, therefore, securing a permit would take some time to acquire, he was eventually informed of these facts. Ultimately, Mr. Fons acquiesced to the delay in commencing work between January 15, 2006, and July 17, 2006, when Mr. Fons and Alpha agreed to a modification of the Contract; in particular, to replace the roof on the Residence with a tile roof. There was, therefore, no “abandonment” of the project between January and July 2006. Between July 17, 2006, and February 2007, a period of eight months, no work was performed on the project. In fact, after early September 2006 there was no meaningful communication between Mr. Fons and Alpha. Viewing the evidence most favorably to Alpha, Alpha had informed Mr. Fons in a letter he received on September 6, 2006, that the tiles were available (the evidence failed to substantiate this claim; if the tiles had been “available” they would have been delivered directly to the Residence), the permit had been obtained, Alpha indicated its willingness to fulfill its obligation, and Alpha attempted to place the ball in Mr. Fons’ court by asking that he call to discuss the matter, and Mr. Fons had demanded a return of his deposit. Viewing the evidence most favorably to Mr. Fons, he had been waiting for eight months to have his roof repaired; he had on a monthly basis had to initiate contact with Alpha and every time he did, was told “it will be another 30 days”; Alpha had taken until May 2006 to make its first application for a permit, despite the fact that Alpha had represented to Mr. Fons that the permit would be obtained in January and that work would commence in February, the monthly representations that the permit had been applied for but was being held up by the Building Department. After renegotiating his contract, Mr. Fons was again told that the permit would be pulled within a week and that work would commence within a month. Despite these representations, no permit was applied for until after his August 18, 2006, letter was received and that permit was never approved. When Mr. Fons did finally complain and request the return of his deposit, although it had only been a month since renegotiating the type of roof to be placed on the Residence, Alpha did not respond until September 6, 2006, and only responded after finally obtaining a permit. Given these circumstances, the suggestion of Alpha that “[w]e sincerely have always had your best interest at heart, and want to proceed with the install” must have seemed disingenuous to Mr. Fons. Weighing the foregoing facts, it is ultimately found that simply “offering” to proceed, despite Mr. Fons’ demand for the return of his deposit, was simply too little, too late. Given the total eight-month delay in the project and all the misinformation Mr. Fons had been given by Alpha, and especially in light of the fact that Alpha had $13,600.00 of Mr. Fons’ money for which it had performed no work whatsoever, Alpha should have done more to attempt to fulfill the contract. Failing to do more under these circumstances constitutes an abandonment of the project to the financial detriment of Mr. Fons. On February 21, 2007, Mr. Fons contracted with another company to install a tile roof on the Residence. Work commenced February 23, 2007, and was completed March 5, 2007. Mr. Fons has suffered a loss of $13,600.00 as result of Alpha’s failure to fulfill its obligations under the Contract. The total costs of investigation incurred by the Department in this case, excluding costs associated with any attorney time, was $342.42.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Douglas J. Ringold, Jr., d/b/a Alpha Restoration, Inc., violated the provisions of Section 489.129(1)(g)2., (i), (j), and (m), Florida Statutes, as alleged in Counts I, II, III, and IV of the Administrative Complaint; imposing fines of $1,500.00 for Count I, $500.00 for Count II, and $2,500.00 for Count III; requiring that Mr. Ringold make restitution to Mr. Fons in the amount of $13,600.00; requiring that Mr. Ringold pay the costs incurred by the Department in investigating and prosecuting this matter; and placing Mr. Ringold’s license on probation for a period of one year, conditioned upon his payment of the fines, restitution to Mr. Fons, payment of the costs incurred by the Department, and any other conditions determined to be necessary by the Board. DONE AND ENTERED this 10th day of February, 2009, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 2009. COPIES FURNISHED: Brian P. Coats, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2022 Paul Buschmann, Esquire Hinshaw & Culbertson, LLP One East Broward Boulevard, Suite 1010 Fort Lauderdale, Florida 33301 W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether Respondents violated the provisions of chapter 440, Florida Statutes, by failing to secure the payment of workers’ compensation as alleged in the Stop-Work Order and Amended Order of Penalty Assessment, and if so, what penalty is appropriate.
Findings Of Fact Petitioner, Department of Financial Services, Division of Workers' Compensation, is the state agency responsible for enforcing the requirement that employers in the State of Florida secure the payment of workers' compensation for their employees. Hickman Tile, Inc., was incorporated as a Florida domestic for-profit corporation on or about October 22, 2004, to engage in setting tile in the construction industry. Respondent Hector M. Hickman was a corporate officer of Hickman Tile, Inc., who filed a notice of election to be exempt from the provisions of chapter 440. The corporation had a checking account. Mr. Hickman deposited cash and checks into the account and wrote checks from this account for both business expenses and personal expenses, including his rent, credit cards, and groceries. On or about September 25, 2009, Hickman Tile, Inc., was dissolved by the Florida Department of State. After this date, no further Annual Reports or Requests for Exemption were filed by the corporation or its officers. Mr. Hickman stopped using the corporate checking account. All violations of chapter 440 alleged in this case occurred after the dissolution date of Hickman, Tile, Inc. During 2009, Mr. Hickman started attending college using student loans. He continued to do some tile work in the construction industry to meet expenses. Beginning on or about April 18, 2011, Mr. Hickman began using the corporate checking account again. He deposited cash as well as checks made out to him personally into the account and again wrote checks from this account for both business expenses and personal expenses. Beginning in or around June 2011, Mr. Hickman began setting tile for Ace Tile and Stone, LLC., a company which installs tile, stone, and wood flooring. This work was not carried out on his own home or premises. Mr. Hickman would work intermittently, as called by Mr. Hash, the owner of Ace Tile. Mr. Hickman and Mr. Hash never discussed the exact nature of their relationship, but neither followed the requirements of the workers’ compensation law, as discussed below. Mr. Hickman asked if Mr. Hash would pay him in cash, and Mr. Hash usually did so. Mr. Hickman was paid a daily rate of $110.00 per day. Although usually paid in cash, sometimes he was paid by check made out to Mr. Hickman, not the corporation. These checks were deposited into the corporate account: $220.00 on or about June 15, 2011; $550.00 on or about July 11, 2011; and $440.00 on or about August 1, 2011. Mr. Hash would call Mr. Hickman to work by the job when Mr. Hash needed him. Mr. Hickman did not do work for Mr. Hash unless Mr. Hickman had accepted work on a particular job. Mr. Hickman was free to accept a job from Mr. Hash or not, and to accept jobs from other contractors. Mr. Hash did not supervise Mr. Hickman in the daily performance of the job. Hickman supplied his own tools and was responsible for them. Mr. Hickman’s employment relationship with respect to Mr. Hash was that of an independent contractor. On January, 11, 2012, Mr. Frank Odom, an investigator for Petitioner, visited a residential construction site in Jacksonville. He observed two individuals engaged in tile setting activities. Mr. Hickman was mixing thinset mortar, the other person, Mr. Mike Harrell, was cutting tile. These were construction activities. Mr. Odom identified himself as a workers’ compensation investigator. Mr. Hickman told Mr. Odom that both men were exempt employees through their own separate entities. Mr. Hickman indicated that he had an exemption under Hickman Tile, Inc. Mr. Harrell also indicated that he was exempt and provided Mr. Odom a copy of an exemption card under Mark Harrell, LLC. Both men indicated that they were working for Ace Tile. Shortly thereafter, Mr. Hash arrived at the site. Mr. Hash stated that he was exempt through his entity, Ace Tile. He explained that Ace Tile was the contractor and had obtained the contract with the homeowner through a retail store where the homeowner had purchased the tile. He stated that the individuals working at the site, Mr. Hickman and Mr. Harrell, each had exemptions under their respective entities. Mr. Odom checked the workers’ compensation information through the computer in his car by accessing the Coverage and Compliance Automated System (CCAS). It revealed that Mr. Hickman’s exemption through Hickman Tile, Inc., had expired in 2009. He checked the Department of State’s website for the Division of Corporations and determined that Hickman Tile, Inc. had been dissolved in 2009. Mr. Odom determined that both Mr. Hash and Mr. Harrell had active exemptions. Mr. Odom prepared a stop-work order and posted it at the work site. He was unable to serve a copy on Mr. Hickman at that time, because Mr. Hickman and Mr. Harrell had left the job site. Mr. Odom left a copy of the stop-work order and a request to produce business records for a penalty assessment with Mr. Hash, asking him to tell Mr. Hickman to contact Mr. Odom at his office. Mr. Hickman came to Mr. Odom’s office on January 17, 2012. At that time, Mr. Odom was able to serve Mr. Hickman with copies of the stop-work order and request for business records. Mr. Hickman stated at this time that he was an employee of Ace Tile and that he had a Form 1099 showing he had been paid $8,000.00 in 2011. Mr. Odom advised him that a Form 1099 was commonly used to pay people who were self-employed and that an employee would have received a W-2 form. Also on January 17, 2012, Mr. Hickman provided Petitioner with copies of check stubs from the Hickman Tile, Inc. checking account beginning on September 28, 2008, and going regularly through September 8, 2009, and then after a gap in dates, beginning again with a check stub dated April 18, 2011, and going regularly through January 13, 2012. Mr. Hickman provided an affidavit on January 27, 2012, stating that he had received $8,000.00 working as Tom Hash’s helper in 2011 and that he had received $330.00 from Mr. Hash in 2012 up until January 11, when the work was stopped by Petitioner. Mr. Hickman was paid approximately $8,000.00 for tile- setting work he performed for seven months in 2011 for Ace Tile and Stone. In 2012, he was paid $330.00 for three days of tile- setting work performed until January 11. This was work within the construction industry. Mr. Hickman was a sole proprietor working as an independent contractor for Mr. Hash. While Petitioner failed to prove that Mr. Hickman was paid by the job, and in fact there was credible evidence that he was paid by the day, failure to prove that payment was by the job is not alone determinative. The balance of the evidence clearly showed that Mr. Hickman’s relationship to Mr. Hash was one of independent contractor, rather than employee. Mr. Hickman was not supervised in the performance of his duties. He was an experienced tile setter with more years of experience than Mr. Hash. The other tile setter, Mr. Harrell, was hired by Mr. Hash as an independent contractor. Mr. Hickman provided his own tools, was responsible only for the end result of his work, and he was employed for one job only, until he was called again. He was free to decline any particular job and could work for other entities in addition to Mr. Hash, as he desired. Finally, no wage records or payroll deductions were kept by Mr. Hash; to the contrary, a Form 1099 was prepared for Mr. Hickman, though he later refused to accept it. Mr. Hickman had no workers’ compensation insurance for himself, and he had no valid exemption.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Financial Services, Division of Workers’ Compensation, enter a Final Order determining that Respondent Hector Hickman, d/b/a Hickman Tile, Inc., violated the requirement in chapter 440, Florida Statutes, to secure workers' compensation coverage and imposing upon him a total penalty assessment of $1000.00. DONE AND ENTERED this 24th day of July, 2012, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 24th day of July, 2012.
The Issue The issue is whether Petitioner is liable for a penalty for failure to maintain workers’ compensation insurance in violation of relevant provisions in Chapter 440, Florida Statutes (2007).1
Findings Of Fact Respondent is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers’ compensation for the benefit of their employees. § 440.107. Petitioner is a limited liability company domiciled in Florida and engaged in the sale of stone countertops. The disputed issues of fact arise from a single, integrated transaction involving “one and the same business” within the meaning of Subsection 440.10(1)(b). The “business” includes a contractor, a wholesaler, and two subcontractors, one of which is Petitioner. The integrated transaction is between the business and a homeowner. The contractor is identified in the record as Manasota Land Development (Manasota). The homeowner owns a residence on Agate Road in Port Charlotte, Florida (the homeowner). The contractor referred the homeowner to Petitioner for the purpose of selecting granite countertops. Petitioner’s representative visited the residence, took measurements, and received the order for granite from the homeowner. Petitioner placed the order with the wholesaler, the name of which is not material to this proceeding. The wholesaler delivered granite to a fabricator and installer designated by Petitioner and identified in the record as Granite Exclusive (the installer). The installer fabricated the countertops and installed them at the residence. Petitioner visited the residence to ensure customer satisfaction, and Petitioner paid the wholesaler and installer from funds provided by Manasota. Petitioner did not collect payment from the homeowner. Rather, Petitioner agreed with Manasota to a total price of $7,141.00. Petitioner billed Manasota for $3,570.00, an amount equal to approximately one-half of the total agreed price, on May 21, 2008, inferentially when the homeowner placed the order with Petitioner. Manasota paid Petitioner the 50 percent deposit. Petitioner billed Manasota for the balance due, in the amount of $3,571.00, on July 22, 2008, when the work was completed to the satisfaction of the homeowner, and Manasota paid the balance due. Petitioner was a sales agent, order processor, and a collection and payment processor for Manasota. Petitioner paid the wholesaler and installer from funds provided by Manasota. The fact-finder draws a reasonable inference from the evidence that Manasota collected a sum from the homeowner that was equal to or greater than the price Manasota paid to Petitioner. Petitioner and the installer are subcontractors of Manasota. Petitioner had no supervisory control over the installer. Respondent’s claim that a written or oral contract existed between Petitioner and the wholesaler and installer is not supported by clear and convincing evidence. It is undisputed that neither the installer nor Petitioner have workers’ compensation insurance, and the two subcontractors are, by operation of Subsection 440.10(1)(b), the employees of Manasota in “one and the same business.” Manasota is responsible for providing workers’ compensation coverage by operation of the statute. Petitioner mistakenly believed, in goof faith, that it was exempt from the requirements of Chapter 440. A company officer of Petitioner obtained an exemption certificate and, reasonably, concluded that the exemption was for Petitioner and both of Petitioner’s officers or employees. Such an exemption was the officer’s stated purpose when she entered the local state office responsible for issuing exemption certificates. The state employee represented that the exemption certificate actually issued achieved the officer’s stated purpose. The express terms of the exemption certificate provide that the exemption is for the person “and” company named in the certificate. However, Subsection 440.05 makes clear that an exemption covers only the company officer named in the certificate and that each of the two officers must be named in the certificate or that each officer must obtain a separate certificate. Petitioner did not engage in the business of fabricating or installing the stone countertop. Petitioner made a sale of the granite countertop and placed an order with a wholesaler. The wholesaler shipped the countertop to a the installer designated by Petitioner based on proximity to the project site. The fabricator installed the countertop. Petitioner did not supervise the fabrication or installation of the countertop. The fact-finder has considered and weighed conflicts in the evidence pertaining to the issue of whether Petitioner engaged in the business of fabricating and installing the stone countertop and has resolved any evidential conflicts in favor of Petitioner. The testimony of Petitioner’s witness, describing the nature and scope of Petitioner’s business, is consistent with Article 5 in Petitioner’s Articles of Incorporation which states: The general purpose for which the Company is organized is to engage in the business of natural stone countertop sales. . . . On June 3, 2008, Respondent’s investigator, conducted a compliance check at 8206 Agate, South Gulf Cove, Florida, to verify compliance with the workers’ compensation statutes. At the worksite, Respondent’s investigator observed three men installing a stone countertop for the installer. Installation of stone countertops is part of the construction industry and is assigned Class Code 5348 in the Scopes Manual, published by the National Council on Compensation Insurance and adopted in Florida Administrative Code Rule 69L-6.021. The investigator interviewed the three men and requested proof of compliance with the workers’ compensation law. One of the three men, neither furnished proof of an election to be exempt from workers’ compensation nor showed that he had secured workers’ compensation coverage. Utilizing the Department of Financial Services’ Coverage and Compliance Automated System (CCAS), the investigator was unable to determine that the employee of the installer was exempt from the requirements of the workers’ compensation law or that Petitioner had secured the payment of workers’ compensation. On June 4, 2008, the investigator issued a Stop-Work Order and Order of Penalty Assessment against Petitioner for failure to meet the requirements of Chapter 440. Respondent ordered Petitioner to cease all business operations and assessed a $1,000.00 penalty against Petitioner pursuant to Subsection 440.107(7)(d). On June 4, 2008, the investigator issued a Division of Workers’ Compensation Request for Production of Business Records for Penalty Assessment Calculation. Petitioner complied with the Request and provided the required records. Based on Petitioner’s business records, the investigator issued an Amended Order of Penalty Assessment on June 11, 2008, in the amount of $1,218.52. Mr. Thomas Harvey, a company officer of Petitioner, did not posses an election to be exempt from workers’ compensation. Ms. Leslie Lockett, the other company officer had applied for and obtained an exemption from workers’ compensation coverage. Ms. Lockett’s exemption from workers’ compensation lists the scope of business or trade as countertops, pursuant to instructions from the agency employee who issued the certificate. Ms. Lockett’s exemption from workers’ compensation is a construction industry exemption. Ms. Lockett applied for a Notice of Election to be Exempt as a member of a limited liability company in the construction industry pursuant to the instructions previously described. In the transaction at issue in this proceeding, Petitioner collected payment for materials and installation of a stone countertop from Manasota. Petitioner did not collect payment from the homeowner and had no control or authority over either the wholesaler or the installer.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent issue a final order dismissing the Stop-Work Order and Amended Order of Penalty Assessment against Petitioner and Mr. Harvey. DONE AND ENTERED this 24th day of October, 2008, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 2008.
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Department), is a state government licensing and regulatory agency charged with the duty and responsibility to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, and Chapters 120, 455, and 489, Florida Statutes, and the rules promulgated pursuant thereto. At all times material hereto, Respondent, Lawrence C. Bright, was licensed by the Department as a certified general contractor, having been issued license number CG C032808, and was the qualifying agency for Briden Enterprises, Inc. (Briden).2 In May 1995, Raul Hernandez, Sr., suffered storm damage to his residence at 341 Northwest 63rd Court, Miami, Florida. Consequently, Mr. Hernandez filed a claim with his insurance carrier, Bankers Insurance (Bankers). Briden, on behalf of Bankers, inspected the property and by letter of June 13, 1995, provided Bankers with a written estimate to repair the damage. The scope of the work included the replacement of two roofs, a solar-panel, and awnings, together with other miscellaneous work. The cost was stated to be $13,264.20. Following the inspection, Mr. Hernandez employed Briden to undertake the needed repairs, as detailed in the written estimate. The insurance carrier was notified of its employment, and Bankers forwarded to Briden a check in the sum of $18,988, which named Briden and Mr. Hernandez as joint payees.3 On or about June 20, 1995, Briden's representative brought the check to Mr. Hernandez's residence. Mr. Hernandez endorsed the check and delivered it to the representative. In exchange, Mr. Hernandez received a check drawn on a Briden account for $9,494, and payable to "Raul Hernandez and Briden Enterprises, Inc."4 The stated purpose of this check, as noted on its face, was "For 50% Retainer"; however, no further explanation appears of record. Briden employed Roberts Roofing, Inc. (Roberts Roofing), to do the roof repair work. That work was satisfactorily completed in or about October 1995. As for the other repairs, Briden did not undertake them, nor did it return any of the money it had received from Mr. Hernandez. On or about November 28, 1995, Roberts Roofing filed a claim of lien in the public records of Dade County, Florida. The claim of lien charged that, pursuant to an agreement with Briden, Roberts Roofing had installed a new roof on Mr. Hernandez's residence for $7,200, and that $2,523.50 remained unpaid. Following unsuccessful demands on Briden to make the agreed repairs and pay Roberts Roofing, and later demands to return the money owing to him, Mr. Hernandez filed a complaint in February 1996 against Briden in the Circuit Court, Dade County, Florida. That complaint sought judgment based on the following allegations: On or about June 20, 1995, Defendant represented to Plaintiff that Defendant could provide construction services to repair Plaintiff's residence. Defendant fraudulently represented to Plaintiff the amounts and type of work which would be performed on the project, the costs associated therewith and requested payment pursuant to said misrepresentations. * * * Plaintiff relied on Defendant's misrepresentations by making payment to Defendant for the construction services in the amount of $18,988.00. From the payment received by Defendant, Plaintiff acknowledges that Defendant paid $4,678.00 to a third party to accomplish the repair of the roof at Plaintiff's residence. The full cost for the roofing services was $7,200.00. As a result of Defendant's failure to pay the full amount, the third party has filed a lien against Plaintiff's property for $2,522.00. Defendant has failed to provide the represented construction services, and, as a result, Plaintiff has sustained damages in an amount of $14,310.00 and has had title to his residence liened. On May 16, 1996, a final default judgment was entered for Mr. Hernandez and against Briden. That judgment provided that Mr. Hernandez recover from Briden damages of $14,311.50 and costs of $189.00. Neither Briden nor Respondent paid the judgment, and it remains unsatisfied to date. Having failed to receive payment, Roberts Roofing filed a complaint on July 11, 1996, against Mr. Hernandez to foreclose its lien. While that suit was pending, Mr. Hernandez filed a claim under the Construction Industries Recovery Fund. Sections 489.140, et seq., Florida Statutes. That claim was approved in February 1997, and Mr. Hernandez was paid $14,311.50.5 Following recovery from the fund, Mr. Hernandez paid Roberts Roofing the unpaid balance it claimed, and Roberts Roofing released its lien.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the violations alleged in Counts I, II, III, and IV of the Administrative Complaint, and imposing as a penalty for such violations a $3,500 administrative fine; a two year term of probation, subject to the conditions of Rule 61G4-12.008(5), Florida Administrative Code; and the payment of the reasonable costs of investigation and prosecution.8 DONE AND ENTERED this 3rd day of February, 1998, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this erd day of February, 1998.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compiled herein, I make the following relevant factual findings: During times material hereto, Respondent was a certified residential contractor having been issued license number CR C018874 since 1981. Respondent, during late 1986, was approached by a Mr. Marlar, owner of Pinellas Builders, who requested that Respondent affiliate with Pinellas Builders using his licensure to qualify Pinellas. Respondent tentatively agreed to a business arrangement with Marlar, however, prior to the time that Respondent formally qualified Pinellas, the negotiations broke down and Respondent never formally qualified Pinellas. During January, 1987, Pinellas entered into a contract with a customer, John Kane of Clearwater, Florida, to build an addition to Mr. Kane's residence for a sum of $33,000. (Petitioner's Exhibit 1.) Pinellas was required to obtain a permit to construct the addition to Kane's residence. Pinellas obtained the permit and utilized Respondent's license to do so. Kane encountered difficulty with Pinellas as the subcontractors were not paid and liens and/or notices of intent to file liens were placed on his home. Mr. Kane ultimately had to rehire the subcontractors and pay them directly resulting in an additional expenditure by Kane of approximately $10,000 over and above the amount that Pinellas agreed to complete the addition to his home. During June of 1987, Kane filed a complaint with Petitioner and in connection therewith, Petitioner's investigator, H. Dennis Force, spoke to Respondent via telephone respecting the fact that permits were being pulled under his name. Respondent was unaware that Pinellas was utilizing his name as a qualifier to obtain permits nor was Respondent aware that Pinellas had obtained contracts to perform work utilizing his name as the licensing authority. As a result of Investigator Force's conversations with Respondent, Respondent revoked the letter of authorization given to Marlar during April, 1987. Respondent distributed copies of the revocation of authorization given to Marlar to the various local cities in the surrounding area. Respondent acknowledges his liability as a qualifier and accepts that responsibility. Respondent is not presently affiliated with any corporate entity in that he prefers to work as an individual such that he can insure the quality which he strives for comes to reality. Mr. Kane acknowledges that he never saw Respondent on the jobsite and had never met him during any of the negotiations with Marlar (Pinellas). Respondent received no monies from Kane or any other persons who had entered dealings with Pinellas.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order imposing a civil penalty of $500 payable to Petitioner within thirty (30) days and issuing a written letter of reprimand to Respondent based on his authorization of an unlicensed person to use his name to obtain permits. 1/ DONE and ENTERED this 7th day of April, 1989, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 April, 1989.
