The Issue An amended administrative complaint dated February 15, 1993 alleges that Respondent committed various violations of Chapter 489, F.S., as a contractor and qualifying agent. The issue is whether those violations occurred, and if so, what discipline or penalty is appropriate.
Findings Of Fact Respondent, David A. Wilson, is, and has been at all times material hereto, a certified general contractor in the State of Florida, having been issued license numbers CG CO38767 and CG CA38767. Under the latter license, from approximately July 1988 until March 1990, David Wilson (Wilson, or Respondent) was the qualifying agent for Bruce Fowler Homes, Inc. According to information provided to the Department of Professional Regulation (DPR) in June 1988, David Wilson was not an officer or shareholder in the corporation, but was to be remunerated on a biweekly basis for managing the contracting activities plus a bonus at the completion of each project. On March 21, 1989, Bruce Fowler Homes and Rodney and Kim Horvat contracted for the sale and purchase of a home at 2196 Chantilly Terrace, in Oviedo, Florida. Bruce Fowler signed on behalf of the seller. Addenda to the contract reflect that it was for the purchase of a custom home to be constructed by Bruce Fowler Homes on the referenced lot, with $161,485.00 as the cost to build, and $35,000 for the lot, for a total cost of $196,485.00. The home was to be completed in six months. The purchase was financed, in part, by a loan obtained by the Horvats through Barnett Bank in the amount of $150,000.00, to be disbursed in a series of draws. David Wilson pulled the Seminole County building permit for the Horvat's home on April 10, 1989. His signature as contractor appears on this statement in the permit file: The named contractor/owner builder to whom the permit is issued shall have the responsibility for supervision, direction, management, and control of the construction activities on the project for which the permit was issued. (Petitioner's Exhibit #3) Construction commenced in early April and progressed well through early June. In June, the Horvats were contacted by various subcontractors who complained that they were not being paid by Bruce Fowler. The Horvats then started making payments through checks written to Bruce Fowler and the subcontractors jointly, or directly to the subcontractors. Construction slowed down, but Bruce Fowler met with the Horvats, insisted the project would still be done by September 15th, and convinced them to pay the fifth draw. At that point, construction ceased. On September 5, Bruce Fowler called Rodney Horvat and told him that he was filing for bankruptcy and was unable to complete the house. This was the last contact between these parties. Horvat's attempts to reach Bruce Fowler after that call were unsuccessful. Throughout the construction of their home, the Horvats visited the site virtually daily, and some days more than once. They were excited about seeing their first home. In spite of David Wilson's claim that he visited the job site once or twice a week, the Horvats never saw him, nor did they know of his involvement in the project until after the call from Bruce Fowler when they hired an attorney who checked to see who pulled the permit. The Horvats and their attorney walked through the site with Wilson around mid-September. They developed a list of items that needed to be completed. Later, Wilson gave them an estimate that the items could be completed for approximately $32,155.00. The Horvats' attorney drew up a contract for Wilson to complete the project but he retained his own attorney and the contract was never executed. Wilson did not finish the house nor supervise its completion. The Horvats paid another contractor, Charles Steffey, $3900.00, plus costs for subcontractors' labor and material in the amount of $18,362.27, for a total of $22,262.27, for Mr. Steffey to finish the house. This $22,262.27 is only a portion of what the Horvats had to pay to complete their home. At the time that Bruce Fowler Homes abandoned the project, numerous suppliers and subcontractors still had to be paid. Valid liens were filed by Air-flow Designs ($1,890.00), Seacoast Supply ($1,541.03), Aluminum Structures ($4,861.00), and Grand Illusions ($1,346.63). These liens, totalling $9,638.00, were satisfied by Rodney Horvat either directly or through his attorney. In addition to the above, Rodney Horvat paid over $27,569.00 to suppliers and materialmen, as evidenced by cancelled checks produced at the hearing. This figure does not include $300.00 to Tri-City Electric (check #2048) and $173.00 to Quality Plumbing (check #1037) for extras or upgrades. (Petitioner's exhibit #14). Payments made by the Horvats to Bruce Fowler, Bruce Fowler Homes or jointly to Bruce Fowler and various suppliers totaled $110,175.00. Those payments, with the payments made to Charles Steffey, satisfaction of liens and other payments for supplies, brought the construction costs to $169,644.00, or approximately $8,159.00 more than the contracted price. This total does not include the interest on the Horvats' construction loan and real estate commissions, both of which were to be paid by the seller. (Petitioner's exhibit #1.) Although Rodney Horvat apparently paid both the interest and the commission, the evidence does not clearly establish why he assumed these obligations. Wilson claims that he tried to supervise the financial aspects of the Horvat job. He met weekly with Bruce Fowler to go over the bills and had the impression that the subcontractors would be paid by Bruce Fowler. While Wilson may have dispensed a few payments himself, he mainly left that up to Bruce Fowler. He received some remuneration from Fowler, but it was on a very informal basis, with checks from $500.00 or $750.00. Since more than one home was being built, the payments did not relate to a specific project. (Petitioner's exhibit #15, p. 8). Wilson's testimony with regard to the extent of his financial supervision is conflicting. He insists that he reviewed bills and bank statements, but he also claims that, without his knowledge, Bruce Fowler closed the checking account on which Wilson was a signatory, and opened a different account in a different bank. Wilson had been added to the former checking account at the direction of the Construction Industry Licensing Board when he was approved as qualifying agent for Bruce Fowler Homes, Inc., in July 1988. That account was closed in May 1989, and he was never made signatory to any other account held in the name of Bruce Fowler Homes, Inc. Wilson claimed that he reviewed checks, bills and accounts at least weekly with Bruce Fowler up to the week of August 29th. He saw that Fowler was writing checks on the First, F.A. (closed) account from May 31st to August 29th. (Transcript, pp. 137-8). If Wilson had been reviewing bank records and other financial records of Bruce Fowler Homes, he would have been aware of the closing of the account. It makes no sense that he was unaware that subcontractors were not being paid. Instead Wilson claims he had no idea that Bruce Fowler was in trouble until the end of August 1989 when some of the sub-contractors they were working with informed him that Fowler had pulled a permit in Lake County. After checking with the Lake County Building Department, Wilson learned that Fowler had used Wilson's office copy of his license to pull the permit. Wilson claims he then found out that Fowler had not paid the sub-contractors on that job either. Fowler went to Texas, and Wilson terminated the relationship. On November 10, 1989, Wilson wrote to the Construction Industry Licensing Board requesting that his license qualifying Bruce Fowler Homes, Inc., be cancelled. If Wilson had been supervising the construction work on the Horvat project he should have been aware that the subcontractors were not being paid and that work had stopped in August. He was not providing the financial or field supervision required of a qualifying agent. He abandoned the project when given the opportunity to complete the work left by Bruce Fowler.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That a Final Order be entered finding Respondent guilty of violating Sections 489.129(1)(h),(j),(k), and (m), Florida Statutes, and 489.1195(1), Florida Statutes, assessing a fine of $5,000.00 and requiring restitution in the amount of $8,159.00. DONE AND RECOMMENDED this 1st day of October 1993, in Tallahassee, Leon County, Florida. MARY W. CLARK 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 1st day of October 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-0267 The following constitute specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings Rejected as unnecessary. Adopted in paragraph 1. Adopted in part in paragraph 3. The construction cost reflected in the contract is $161,485.00, not $153,420.00. Adopted in paragraphs 6 and 7. Adopted in part in paragraphs 6 and 13; otherwise rejected as unnecessary or accumulative. Adopted in part in paragraphs 10-13; otherwise rejected as unnecessary or unsupported by clear and convincing evidence. It is unclear how Petitioner arrived at the figures for costs to complete construction. Adopted in substance in paragraph 11. Adopted in part in paragraphs 14-17. The testimony of Wilson with regard to whether he was paid was conflicting and confused. He did receive some payment according to the greater weight of the evidence. Respondent's Proposed Findings With the following exceptions, Respondent's "proposed findings" are rejected as being numbered arguments, recitations of law or portions of the transcript. They have been considered, but are not addressed here as findings of fact. Proposed paragraph 14 is adopted in paragraph 13. Proposed paragraph 22 is adopted in substance in paragraph 5. Proposed paragraph 46 is adopted in part in paragraph 2. Proposed paragraphs 68-69 are adopted in substance in paragraph 15. COPIES FURNISHED: Tracy Sumner, Staff Attorney Wellington Meffert, II Chief Construction Attorney Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Donald Karraker, Esquire DeRenzo & Karraker, P.A. 251 Maitland Avenue, Suite 116 Altamonte Springs, Florida 32701-5577 Daniel O'Brien, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Jack McRay, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
The Issue Whether or not Respondent aided an unlicensed contractor to undertake a contracting job by obtaining or authorizing the obtaining of a permit using Respondent's licensure; and conducted business under a name not on his license and which he did not qualify, to wit: Quality Home Construction, in violations of Sections 489.129(1)(e), (g), (j) and (m) and 489.105(4) and 489.119, Florida Statutes. If these violations occurred, what administrative penalty should be imposed.
Findings Of Fact The Department of Professional Regulation, Construction Industry Licensing Board (Petitioner), is the state agency charged with the regulation of contractors in Florida. Gerald Bartlett, Respondent herein, is a registered general contractor, having been issued license number RG 0012112. Respondent's license was first issued in July 1973 qualifying, G.S. Bartlett, Inc., and said license was renewed and active during times material herein. Respondent is also an employee of Energy, Engineering and Research Corporation (EER), acting as superintendent and/or construction manager of various jobs. On or about July 8, 1987, Manual Rua and John Aviles entered into a contract whereby Rua agreed to provide certain remodeling services to Aviles for a total sum of $9,926.50, at a home which Aviles was in the process of purchasing at 3608 Gardenia Drive in Tampa. Pursuant to that contract, Rua acted as an agent for Aviles and Rua specifically disclosed his status as an individual without a contractor's license and therefore without the ability to pull building permits. (Petitioner's Exhibit 4). The contractual relationship between Rua and Aviles was consummated by them without Respondent's knowledge or participation. After Rua undertook the remodeling of Aviles' home, the City of Tampa Building Department issued a stop-work order on July 20, 1987 for lack of permits for the construction work Rua was performing on the Aviles home. Thereafter, Rua contacted Respondent to inquire whether Respondent would act as a consultant to Aviles on a remodeling job and assist in pulling a permit for the drywall, paint, door and window work, and to generally oversee the construction phase of the project. Respondent contacted his employer, EER, and EER, through its vice-president, Thomas Hebert, agreed to act as consultant for Aviles and instructed Respondent in the manner of obtaining the permits through EER. EER was not responsible for any electrical or plumbing work or for obtaining the permits for such work. EER, through its agent, Advance Construction Technical Services, Inc., pulled the permit for the drywall, paint, door and window work for the Aviles job. Respondent acted as construction manager for that phase of the project and as part of his employment responsibilities to EER, visited the work site approximately twice per week, gave instructions to Rua's employees, which instructions were followed including the advice of securing a load bearing wall which Rua and/or his agents had removed. While Respondent was overseeing the job as construction manager for EER, Rua asked Respondent to bid on other aspects of the project under his own general contractor's license. Respondent was awarded the job of repairing and extending a concrete pad, and for such work, Respondent pulled a permit under his qualified name G.S. Bartlett, Inc. That phase of the project was completed as contracted for and was done in a satisfactory manner. Respondent never obtained or authorized anyone to obtain a permit for anyone except his own qualified company for the separate concrete work. Respondent never engaged in business under the name of Quality Home Construction in connection with the Aviles remodeling job. In this regard, Respondent has known Manual Rua since their early childhood years. As a result of a long friendship between the two, Respondent and Rua considered embarking upon a business venture and in connection therewith, Rua initiated steps to form a partnership but this never formally came about. They did however, complete one construction project during the early 70's which lasted approximately 45 days, but they both realized that it was not profitable to continue that arrangement and it was disbanded. Respondent has never engaged in business under the name of Quality Home Construction in connection with any construction project.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Petitioner enter a Final Order dismissing the Administrative Complaint in its entirety. DONE and ENTERED this 28th day of July, 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 28th day of July, 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-1171 Rulings on Petitioner's Proposed Findings of Fact Paragraph 2 - Rejected as irrelevant to the issues posed in the Administrative Complaint, which alleges violation on Respondent's registered general contractor's license RG-0012112. Paragraph 5 - Rejected based on the determination in paragraph 3 wherein it was specifically determined that Respondent disclosed his status as an individual without any corporate affiliation. (Paragraph 3, Recommended Order.) Paragraph 8 - Rejected based on the determination that Aviles was in the process of purchasing the subject property. (Paragraph 3, Recommended Order.) Paragraph 9 - Rejected as irrelevant based on the determination in paragraph 4, Recommended Order, to the effect that the contractual relationship between Rua and Aviles was consummated without Respondent's knowledge or participation. Paragraph 11, last sentence, - Rejected as irrelevant for the reasons stated in paragraph 4, Recommended Order. Paragraph 12 - Rejected, irrelevant. (See paragraph 4, Recommended Order.) Paragraph 13 - Rejected, irrelevant. Paragraph 14 - Rejected, irrelevant. Paragraph 15 - Adopted as modified. (Paragraphs 1, 6 and 7, Recommended Order.) Paragraph 16 - Rejected, irrelevant. Paragraph 17 - Adopted as modified. (Paragraphs 5 and 6, Recommended Order.) Remainder rejected as irrelevant. Paragraph 20 - Adopted as modified. (Paragraph 5, first sentence, Recommended Order.) Paragraph 21 - Adopted as modified. (Paragraph 3, second sentence, Recommended Order.) Paragraph 22 - Adopted as modified. (Paragraphs 7 and 8, Recommended Order.) Paragraph 23 - Rejected as contrary to other findings. (Paragraph 4, Recommended Order.) Paragraph 24 - Adopted as modified. (Paragraphs 5 and 8, Recommended Order.) Rulings on Respondent's Proposed Findings of Fact Paragraph 9 - Adopted as modified. (Paragraph 9, Recommended Order.) COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0729 Christy L. Hessler, Esquire 7522 North Fortieth Street Tampa, Florida 33604 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0729 Fred Seely, Executive Director Florida Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
The Issue Whether Respondent violated Section 24(2)(d), (h), (j), (k), (m) and (n), Chapter 75-489, Laws of Florida, as amended, and, if so, what is an appropriate penalty.
Findings Of Fact At all times relevant hereto James Forholt was licensed as an aluminum contractor by the Pinellas County Construction Licensing Board, having been issued license #C-2984. He was the qualifying contractor for City Wide Mobile Home Services, Inc. On June 28, 1989 Respondent contracted with customer #1 to install an aluminum roofover on the customer's mobile home (Exhibit 4). This work was completed and Respondent was paid in full. In July 1989 the work was inspected by a city building inspector and accepted. Later some leaks were experienced; Respondent was called and a repairman was sent to the job site. These leaks ceased but after heavy rains in 1990-91 additional leaks appeared and were not corrected. Customer #1 contracted with another aluminum contractor who removed the roofover installed by Respondent and replaced it with a new roofover at a cost to customer #1 of $3,356.00. Customer #3 contracted with City Wide Mobile Services, Inc. on December 30, 1986 to install a Royal roofover on customer's mobile home. This work was paid for by customer on December 30, 1986 and the work was completed approximately January 13, 1987. Customer #3 spent the winters in this mobile home and the summers elsewhere. Upon returning to the mobile home in October 1990 some water stains were observed inside the mobile home's ceiling, indicating the roof was leaking. City Wide was called and a repairman was sent out. He sprayed Kilz on the water spots and did some caulking on the roof. In the fall of 1991 upon returning to the mobile home customer #3 observed additional water stains on the ceiling and called City Wide. Two repairmen arrived, replaced vents and departed. The following day customer #3 turned on the heat and a terrible odor filled the mobile home. Respondent was called, he came over and advised customer #3 that the roof was five years old and he was no longer responsible for the roof. Respondent contracted with customer #2 to install vinyl siding on his mobile home. The work was satisfactorily completed but Respondent did not obtain a final inspection. After this administrative complaint was filed Respondent obtained a satisfactory final inspection on that job on January 14, 1992. The permit for the job for customer #2 was pulled June 13, 1992 by Respondent. Although the building official for the City of Largo, where the permit was issued, testified the permit was good for only three months, the face of the permit (Exhibit 11) states, "PERMITS ARE NULL AND VOID IF THE PROJECT IS ABANDONED FOR A PERIOD OF THREE (3) MONTHS OR MORE..." Respondent testified without contradiction that the contract form he used with the complaining parties only guarantees that the roofovers would be properly installed and the warranty on the roof was the manufacturer's warranty which he supplied to these customers. Respondent further testified that the caulking around the screws which secured the roofovers to the mobile homes would last only about two years in the Florida sunshine. He offered a continuous maintenance contract which the complaining parties declined to take. There was some evidence, but inconclusive, that hurricane Elena struck the area after the roofover was installed for customer #3. However, no evidence was submitted that the roof was damaged by this hurricane. Both of these roofovers were inspected by the City of Largo building inspectors and were signed off as satisfactory. No evidence was presented that these roofovers were improperly installed by Respondent or the workmanship used in these installations was defective.
Recommendation It is recommended that the charges against James Forholt contained in Administrative Complaint dated December 31, 1992 be dismissed. DONE and ORDERED this 13th day of May, 1993, in Tallahassee, Leon County, Florida. K. N. AYERS 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 13th day of May, 1993. APPENDIX Proposed findings submitted by Petitioner are accepted except as noted below: 3. Accepted generally as the testimony of Palios; however, subsections thereof listed below are rejected as not supported by credible evidence. a. Rejected. See HO #10. c. Rejected. Several months transpired between the installation of the roofover and observance of water stains. Respondent did some caulking on the roof after complaint was made; however, the roof subsequently leaked. Rejected. The reasons given by this witness for wanting the roofover installed was to remove the need for her husband to recaulk or repair the roof each year. 5. Accepted generally as the testimony of Hensley; however, subsections thereof listed below are rejected as not supported by credible evidence. a. Rejected. See HO #10. Rejected that the leaks resulted solely from Respondent's installation of the roofover. Rejected. 7.c. Rejected. See HO #9. COPIES FURNISHED: David Sadowsky, Esquire Assistant County Attorney 315 Court Street Clearwater, Florida 34616 James Forholt 9370 83rd Street North Seminole, Florida 34647 William J. Owens/Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road - Suite 102 Largo, Florida 34643 5116
Findings Of Fact Based upon the testimony and documentary evidence presented the following facts are found: At all times material hereto, Respondent, Thomas Hebert, was a licensed contractor in the State of Florida, having been issued license number CG- C006542, by the State of Florida, and was the qualifier of Engineering & Environment Research Corp., (EER). On or about July 7, 1987, John M. Aviles entered into a contract with Manuel Rua to do a remodeling job on Mr. Aviles' home located at 3608 Gardenia, Tampa, Florida. The total cost of the remodeling under the contract was $9,926.50. The contract provided that all permits required would be obtained by Mr. Aviles. Prior to entering into the contract, Mr. Rua advised Mr. Aviles that if permits were needed, that Mr. Rua was a silent partner in a construction company and could provide any construction permits required. At all times pertinent hereto Mr. Manuel Rua, was a retired builder, was not licensed in Florida and not employed by EER or Thomas Hebert, individually. Rua proceeded with the construction pursuant to the contract. However, on or about July 20, 1987, the Tampa Building Department halted the job for lack of a building permit, lack of a plumbing permit and lack of an electrical permit. Before the job was shut down, Rua and the other workers had done plumbing and electrical work, replaced walls, done framing, glazing and sheetrock work. At all times pertinent hereto Gerald S. Bartlett was a full-time employee of EER, working at another construction project. At all times pertinent hereto, Respondent was the owner of and qualifier of EER. Shortly after July 20, 1987, Mr. Rua contacted Mr. Bartlett and told Bartlett that the job was red tagged because of no permit. Rua wanted Bartlett to pull the permit to allow the work to continue. At that time, Bartlett could not personally pull the permit because he was registered in Hillsborough County, but not in the City of Tampa. Bartlett then called the Respondent about the job and described the job to Respondent. Respondent advised Bartlett that EER would help Aviles out by getting the building permit if Bartlett would be responsible for the construction and if Aviles (not EER) paid Bartlett for his time and if Aviles would sign a letter agreeing that EER was responsible only to inspect and consult and further agreeing to hold EER harmless. Bartlett then arranged for the building permit for the Aviles job which was subsequently applied for and issued to EER on July 24, 1987. On July 23, 1987, Rua informed Aviles that arrangements had been made for the permitting and that the permitting would cost an additional $344.00. Rua further advised Aviles that in order for the permitting to go through, Aviles would have to give the building contractor a hold harmless agreement. On July 24, 1987, Aviles paid Rua the sum of $344.00 for the permit, by check. Rua cashed the check and left the cash on the counter at Mr. Aviles' residence which was picked up by Mr. Bartlett. Mr. Bartlett and the Respondent shared that money. The only money paid to Bartlett from anyone (including EER) for the Aviles job came from Aviles on that occasion. Respondent did not receive any additional money from the Aviles' job from anyone. On July 25, 1987, Mr. Aviles signed the agreement which indicated that EER had been retained as a consultant to permit, advise and inspect the remodeling being done. The agreement is not signed by anyone from EER nor does it contain the Respondent's contractor's license number. The agreement provides that EER was not financially responsible for any of the work, nor for liability on the job. Prior to July 25, 1987, Mr. Aviles did not have any other agreement with EER. Until October, 1987, Mr. Aviles had never met or spoken with the Respondent, Mr. Bartlett or any other representative of EER. At all times pertinent hereto, no one employed by EER worked on the Aviles remodeling job. Subsequent to the permit being issued, work began again and continued until on or about September 28, 1987. Construction was again halted for lack of electrical and plumbing permits by the City of Tampa. Between July 25, 1987, and September 28, 1987, Rua and his workers did a substantial amount of work in the house. During this period of time, Mr. Bartlett appeared on the job approximately ten times, but Mr. Rua was in charge. Mr. Bartlett never did any work, but did try to supervise on occasion. The Respondent visited the jobsite approximately two times, stopping by after working hours looking through the windows from the outside and, therefore, did not supervise the jobsite. Essentially between July 25, 1987, and September 28, 1987, Mr. Rua and his employees continued doing all the work, just as they did before the permit was pulled by EER. On October 7, 1987, Aviles argued with Rua about the permits and the delay in construction. Rua left the job, removing EER's building permits from the window, along with a concrete permit. Thereafter, Aviles attempted to contact other contractors to complete the work, but was unable to do so since no one wanted to take a partially finished job which had been red tagged. On October 16, 1987, Aviles met Respondent and Bartlett (for the first time) at the jobsite and both assured Aviles that whatever assistance was necessary to complete the job would be provided. Neither the Respondent nor Mr. Bartlett offered to complete the job, but furnished Mr. Aviles a list of subcontractors who would supposedly complete the job. At this point in time, no part of the job had been completed, but most all of the work had been started and was nearly complete. The Respondent at this time advised Mr. Aviles that he would retrieve the permits so that Aviles could continue the remodeling. The permits were subsequently returned and the Respondent offered to allow Mr. Aviles to continue using the Respondent's permit for construction even though neither Respondent nor any of his employees would be on the jobsite. Mr. Aviles subsequently determined that the work performed by Mr. Rua was not acceptable, and thereafter, he had most of the work redone using other subcontractors. The permit applied for by EER indicated it was for non-structural general repairs. The permit issued to EER allowed both structural and non- structural repairs to be done since EER was a general contractor. The work done under the permit issued to EER was both structural and non-structural. Inspections were required and on this job, the general contractor, EER, was required to notify the City when inspections were required. No inspections were ever called for by EER because both Respondent and Bartlett did not think any were required. Under the permit issued, the general contractor, EER, and the Respondent were required to supervise the work. The work done by Rua and the Latyvs, under EER's permit, was required to have been performed by an employee(s) of EER who was paid by EER which did not occur. When EER pulled the building permit, it could not limit its role to supervision only. A licensed building contractor can agree to do supervision only, but not when the contractor pulls the building permit. The Respondent is a very experienced contractor who at all times mentioned herein not only was a certified general contractor, but was a certified roofing contractor, certified mechanical contractor and certified pool contractor in the State of Florida. He has also written portions of the general contractor's examination. The Respondent knew or should have known that there is a difference between a licensed contractor agreeing to supervise a construction job and a licensed contractor pulling the permit for a construction job and then trying to limit his liability to supervision only and not assuming any financial responsibility for the work done.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered: Assessing the Respondent an administrative penalty of $1,000 for aiding and abetting evasion of Chapter 489, Florida Statutes, in accordance with disciplinary guidelines set forth in Section 21E-17.001(13), Florida Administrative Code. Assessing the Respondent an administrative penalty of $1,500 for misconduct in the practice of contracting by failure to supervise, thereby causing monetary harm to the customer. This is in accordance with disciplinary guidelines set forth in Section 21E-17.001(19)(b), Florida Administrative Code. DONE AND ENTERED this 19th day of June, 1989, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 19th day of June, 1989. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings 1-10. Accepted 11-12. Rejected as irrelevant. 13-36. Accepted in substance. Respondent's Proposed Findings 1-3. Accepted 4. Rejected as unsupported by the evidence 5-18. Addressed Rejected as a conclusion of law. Respondent's letter with attachments, dated June 1, 1989 is rejected as improper submission of documentary evidence. COPIES FURNISHED: Jack M. Larkin, Esquire 806 Jackson Street Tampa, Florida 33602 Michael Steinberg, Esquire 601 Twiggs Street, Suite 201 Tampa, Florida 33602 Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 Bruce Lamb, General Counsel Department of Professional Regulation 1940 North Monroe Street, Ste. 60 Tallahassee, Florida 32399-0760 =================================================================
The Issue Did Respondent engage in the business or act in the capacity of a contractor or advertise himself or a business organization as available to engage in the business or act in the capacity of a contractor without being duly registered or certified or without having a certificate of authority as alleged in the Administrative Complaint and, if so, what penalty should be imposed?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the Agency of the State of Florida vested with the statutory authority to regulate the practice of unlicensed contracting under Chapters 455 and 489, Florida Statutes. Respondent has never been licensed to engage in contracting within the State of Florida. Specifically, at no time material to this proceeding was Respondent licensed to engage in contracting within the State of Florida. At no time material to this proceeding did the business known as Handyman-No Job Too Small ever apply for or obtain a Certificate of Authority as a Contractor Qualified Business in the State of Florida. Some time around November 15, 2000, Respondent and David Arendt entered into an oral agreement wherein Respondent was to do remodeling work on Arendt's home located at 728 Hampstead Avenue, in Orlando, Florida, for the contract price of $7,000.00. This remodeling work included, but was not limited to, repairs to the front porch, remodeling the master bedroom, and removing and replacing the shed roof with a rolled roof. Arendt paid Respondent a total of $3,500.00 for the work completed by Respondent up until December 18, 2000. Subsequent to December 18, 2000, Arendt dismissed Respondent due to disagreement concerning the work to be completed. Respondent subsequently filed a contractor's Claim of Lien in the amount of $3,500.00 against Arendt's home in Orlando, Florida. At all times material to this proceeding, Respondent was a contractor as that term is defined in Section 489.105(3), Florida Statutes. The total investigative and prosecution costs to the Department, excluding costs associated with any attorney's time, is $496.45.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and a review of Chapter 61G4-17, Disciplinary Guidelines, Florida Administrative Code, without any consideration for mitigating or aggravating circumstances, it is RECOMMENDED that the Department enter a final order finding Respondent, David C. Marquis guilty of violating Subsection 489.127(1)(f), Florida Statutes, and imposing an administrative fine in the amount of $2,500.00 and costs in the amount of $496.45. DONE AND ENTERED this 28th day of June, 2002, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 2002. COPIES FURNISHED: Brian A. Higgins, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 David Marquis 616 Aldama Court Ocoee, Florida 34761 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issue presented is whether case management and homemaker services for Petitioner should be terminated.
Findings Of Fact In June 2004, the Department determined that Petitioner was eligible for services pursuant to its Community Care for Disabled Adults Program. Pursuant to its contract with the Department, Gulf Coast Jewish Family Services, Inc., d/b/a Gulf Coast Community Care began delivering those services. Petitioner's apartment was dirty and cluttered, and she was in danger of being evicted from her Section 8 federally- subsidized housing. Petitioner began receiving case management and homemaker services, with the stated goal of cleaning and organizing her apartment so that she could avoid eviction. The case management services consisted of determining and managing the appropriate services for Petitioner. The homemaker services consisted of a helper going to Petitioner's apartment once a week for three hours to teach and assist her in keeping her apartment clean and uncluttered. The services rendered to Petitioner were helpful and encouraged her to gradually discard much of her clutter so that it was easier to keep the apartment clean. When Gulf Coast employees came to her apartment, she was involved in sorting and discarding unneeded items and the apartment appeared much neater. Although it was difficult for her, Petitioner was able to get the apartment ready for her Section 8 inspection, primarily by herself. In August 2004, Gulf Coast determined that the stated goal of organizing and cleaning Petitioner's apartment so that she could avoid eviction had been achieved. Both Petitioner's case manager and her homemaker services supervisor visited her apartment and determined that Petitioner was able to keep the apartment up to standards. Based upon the achievement of the stated goal, the Department notified Petitioner that the case management and homemaker services were being terminated. Although Petitioner testified at the final hearing that she had developed a "heart condition" and was being enrolled in a cardiac rehabilitation program, no evidence was offered, either expert or non-expert, that her "heart condition" would prevent her from keeping her apartment clean and uncluttered. Rather, Petitioner admitted that no doctor had told her she should not perform housework.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Petitioner is no longer eligible for services and terminating the case management and homemaker services provided to her. DONE AND ENTERED this 29th day of March, 2005, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 29th day of March, 2005. COPIES FURNISHED: Ellen Nichols 2501 Seaford Circle Apartment No. 1 Tampa, Florida 33613 Raymond R. Deckert, Esquire Department of Children and Family Services 9393 North Florida Avenue, Suite 902 Tampa, Florida 33612 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Respondent is a registered residential contractor having been issued license number RR 0008633, and is the qualifier for Merkle Custom Homes Inc. Respondent's last known address is 877 SW 124th Street, Miami, Florida 33176. Sunshine Ready Mix Concrete Company ("Sunshine") provided Respondent with the materials to be used on construction jobs located at 9600 SW 103rd Street and 8715 SW 129th Terrace, both in Miami, Florida. Respondent did not pay in full for such materials. Sunshine sued Merkle Custom Homes and obtained a judgment against that Florida corporation in the amount of $4,379.24 for money owed by the corporation on various jobs, to include the two projects referred to in paragraph 2 of this order. Said judgment has not been satisfied. One of the subject construction projects was undertaken for Dr. Robert Boyett and-his wife. This project was at 8715 SW 129th Terrace, and was the Boyett home. The other project at 9600 SW 103rd Street was an investment for Henry Arman and Errol Eisinger, a general partnership known as Ski Investors. This project was known as the "Ski Job." The contract between Boyett and Respondent was a standard contract, and the contractor would be responsible to make disbursements to subcontractors and materialmen. After the commencement of construction on the Boyett job, a disagreement arose between Boyett and Respondent. Boyett had the checks from the lending institution cut to him and Respondent, and did not pass all of the draw to Respondent. Boyett assumed responsibility for paying the subcontractors and materialmen. Prior to the Boyett and Ski Job projects, the Respondent applied for and established an open account for Merkle Custom Homes with Sunshine. The concrete for the Boyett job was charged to the Merkle Custom Homes account. Respondent's uncontroverted testimony was that he phoned Mr. Iglesias of Sunshine and advised him that Boyett was responsible for the concrete. The situation between Boyett and the Respondent worsened, and they eventually severed their contract. Boyett owed Respondent substantial sums of money at that time from draws paid to Boyett by the lender. In settlement of their dispute, Respondent waived any claims on the money Boyett held in return for Boyett's promise to assume all financial responsibility to the subcontractors and materialmen. Boyett did pay some $1500 to Sunshine on this debt but refused to pay all of the Sunshine bills, even though Respondent urged Boyett to honor his commitment. As a result, the Respondent received a partial satisfaction of judgment. Boyett and the contractor who took over from Respondent and assumed responsibility for the project both executed documents indicating that all materialmen had been paid. Sunshine failed to file and perfect a materialman's lien on the Boyett job. On the Ski Job, Respondent never had any control over the distribution of funds. Although the first checks were made out to the partners and the Respondent, control over payments to subcontractors and materialmen was exercised by the financial institution and Arman and Eisinger, the two individuals in the partnership for whom the project was done. The money was controlled by the partnership, who paid subcontractors directly. Respondent told Mr. Iglesias by phone that the partners were responsible for payment of the materialmen. Sunshine delivered to the Ski Job and billed to Merkle Custom Homes 40 yards of concrete at $27.75 per yard, for a total (including tax) of $1,154.40. Sunshine was paid for this concrete, and Respondent obtained a release from Sunshine for this amount. Sunshine delivered an additional 39 yards of concrete to the Ski Job after the date of the release at $34 per yard for a total (including tax) of $1,409.04. There is no evidence that the partners ever received a bill for the remainder of the concrete from Sunshine or the Respondent. No request for payment was made to the savings and loan for money to pay Sunshine for concrete. Merkle Custom Homes was replaced as the contractor, on this project, and the new contractor and owners agreed to assume responsibility for money owed to any subcontractors or materialmen. Sunshine did not file or perfect a materialman's lien on the Ski Job.
Recommendation Having found Respondent not guilty of violating Section 489.129(1)(d), Florida Statutes, it is recommended that the Amended Administrative Complaint filed against Respondent be dismissed. DONE and RECOMMENDED this 24th day of February, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1983. COPIES FURNISHED: Michael J. Cohen, Esquire Kristin Building, Suite 101 2715 East Oakland Park Boulevard Fort Lauderdale, Florida 33306 Robert C. Eber, Esquire 9595 North Kendall Drive, Suite 102 Miami, Florida 33176 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 J. K. Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint? If so, what punitive action should be taken against Respondent?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is now, and has been since 1981, a Florida- licensed general contractor (holding license number CG C019787). At all times material to the instant case, Respondent has been licensed as an individual in his own name, not as a qualifying agent 3/ or under a fictitious name. At no time has Respondent been licensed in the State of Florida as a roofing contractor or as any other type of contractor other than a general contractor. Larry Thomas is now, and has been at all times material to the instant case, the sole owner and president of Home Improvement Time, Inc. (HIT), a corporation that he formed in or around December of 1995. Mr. Thomas, in naming his company, hoped that the public, when hearing the company's name, would associate it with the popular "Home Improvement" television program. There are not now, nor have there ever been, any other owners, officers, or directors of the company. Until late in 1998, HIT was actively engaged in the business of soliciting home improvement work, including room additions and the installation of roofs, hurricane shutters, and screens. To solicit such work, HIT used telemarketers who contacted homeowners over the telephone from HIT's office (located in a shopping center in Jensen Beach, Florida and having the mailing address of 867 Northeast Jensen Beach Boulevard, Jensen Beach, Florida), and it also employed salespersons who visited homeowners at their homes. Among the salespersons who worked for HIT were Vince Ketchum and Bob Andrews. At no time material to the instant case did HIT have a licensed contractor serve as its certified qualifying agent. 4/ Mr. Thomas has never been licensed as a general contractor. Some time after 1996, he obtained aluminum structure and concrete contracting licenses from the City of Port St. Lucie and from Martin County. In or around January of 1996, shortly after the formation of HIT, Respondent met with Mr. Thomas at HIT's office and observed HIT's operations. As a result of this meeting, Respondent hired HIT, on a commission basis, to solicit home improvement work for him. Respondent was the only general contractor for whom HIT solicited business. When a HIT telemarketer made contact with a prospect, the telemarketer indicated that he or she was with HIT. If asked who would be doing the home improvement work, the telemarketer advised the prospect that the work would be done by Respondent. If a prospect contacted by a HIT telemarketer was interested in having home improvement work done, a HIT salesperson was dispatched to the prospect's home. Respondent provided HIT salespersons with training and instructions as to what to do when calling on prospects. On their visits to prospects' homes, the salespersons brought with them preprinted form contracts for the prospects to sign. These form contracts were jointly developed by Mr. Thomas and Respondent (using, as a model, a form contract that was published in a "Better Homes and Gardens" magazine article). On the top right hand corner of these form contracts were the words "licensed" and "insured." To the left of these words, in large, stylized lettering, were either the words "Home Improvement," "Home Improvement Inc.," "Home Improvement Time, Inc.," or "Home Improvement by Richard Kosalka" (depending on the time frame). These words were included on the form because Respondent wanted homeowners to make the connection between him and HIT and the television program after which HIT was named. Underneath these words appeared the following: 667 N.E. Jensen Beach Boulevard Jensen Beach, FL 34957 Richard Kosalka State License # CGCO19787 Among the provisions in the form contracts was the clause, "This agreement subject to office approval." When they returned from their sales calls, the salespersons brought any signed contract to Mr. Thomas at HIT's office. Depending on the nature of the work involved, Mr. Thomas approved or disapproved the contract himself or he gave the contract to Respondent 5/ to approve or disapprove (pursuant to the "subject to office approval" clause in the contract). Any contract that Respondent approved became Respondent's contract to perform. Although he did perform some contract work himself, most often he used subcontractors who worked under his general supervision. HIT received a commission for every approved contract its salespersons procured for Respondent. Its commission (the amount of which was established by agreement between Mr. Thomas and Respondent) was included in the contract price offered to the homeowner. Typically, payment from the homeowner was not due until the contract work was completed. Payment was made by the homeowner to HIT, which then paid Respondent by check in an amount equal to the contract price minus HIT's previously established commission. In an effort to make the public aware of the services it offered, HIT, in or around August of 1996, placed an advertisement in the Bell South Yellow Pages for Port St. Lucie and Stuart. In the advertisement, which was placed without Respondent's knowledge or authorization, HIT's name and telephone number appeared, along with a listing of home improvement services. Among the services listed was "roofing." Appearing at the bottom of the advertisement was the following: "Licensed & Insured KOSALKA CGC 019787." Among the homeowners who had signed the above-described preprinted form contracts that HIT's salesperson's brought back, for "office approval," to the HIT office in 1996 were the following three Port St. Lucie residents: Larkin Dunbar (whose residence was located at 114 Dorchester); Clara Masters (whose residence was located at 246 Northeast Mainsail); and Rita Maciuba (whose residence was located at 733 Southwest Curry Street). The Dunbar, Masters and Maciuba contracts were dated February 19, 1996, May 28, 1996, and June 14, 1996, respectively. On the top of the Dunbar contract, in large stylized lettering, were the words "Home Improvement Inc." On the top of both the Masters and Maciuba contracts, in the same large stylized lettering, were the words "Home Improvement by Richard Kosalka." The Dunbar contract provided for the "furnish[ing of] the following materials, improvements, labor, and/or services" for the price of $3,600.00: the installation of a "new fascia and soffit system," the "repair [of the] master bedroom walls," the "repair [of] roof leaks," and the "paint[ing of the] gutter and garage door to match [the] fascia and soffit." No work was performed pursuant to this contract (nor is there any evidence that the homeowner made any payments for the performance of such work). The Masters contract was signed by Ms. Masters and Vince Ketchum, the HIT salesperson who had negotiated with her at her home. At the time she signed the contract, Ms. Masters was approximately 85 years of age. The contract provided for the "furnish[ing of] the following materials, improvements, labor, and/or services": installation of a "new roof" with "shingles to be selected by Clara Masters" for $3,255.00; the repair and painting of the "interior ceiling" for $627.00; and the "pressure clean[ing] and paint[ing] of [the] exterior of [the] home" and the driveway for $2,628.00. After his mother had signed the contract (and before any contract work had started), Ms. Masters' son, Joseph Masters, who lived next door to his elderly mother and looked after her business affairs, telephoned Respondent, who was an acquaintance of his. Mr. Masters asked Respondent to come by his mother's home to discuss the contract his mother had signed. Respondent went to Ms. Masters' home as Mr. Masters had requested. Upon Respondent's arrival, Mr. Masters informed Respondent that he (Mr. Masters) and his mother wanted the roof work to be done first. Respondent and Mr. Masters then discussed the matter further. Their discussions lead to the contract being modified to provide that only the roof work would be done (for a price of $3,255.00). The modification was made by lining out the other work listed in the contract, having Ms. Masters put her initials next to the line-outs, and adding contract language to reflect that the total contract price was $3,225.00 for the "roof only." Before leaving Ms. Masters' home, Respondent told Mr. Masters that he would have "some roofers [come] around to get the estimate on the roof." Mr. Masters assumed that these roofers would be subcontractors. Respondent brought the modified contract back to the HIT office. The Sunday after his visit to Ms. Masters' home, Respondent's wife suffered a stroke and was hospitalized. Respondent remained in the hospital with his wife and stayed there for three days. David Harris is a licensed general, residential, and roofing contractor and the owner of David Harris Construction (DHC). He has had his roofing license (for work in Martin and St. Lucie Counties) since 1992. In 1996, and for several years prior thereto, Respondent used Mr. Harris as a subcontractor for concrete and roofing work (mostly on new residential construction). At the time he reviewed the modified Masters contract, Mr. Thomas was familiar with Mr. Harris and DHC. Mr. Harris used HIT to follow up on leads generated by DHC's Yellow Pages' advertising. Moreover, Respondent had spoken favorably to Mr. Thomas about Mr. Harris as a roofer. Accordingly, Mr. Thomas telephoned Mr. Harris and told him about the Masters re-roofing project. On the Monday after Respondent's wife was admitted to the hospital, DHC workers went to Ms. Masters' home and began to remove the old roof. A young child (around nine or ten years of age) was on the roof with the workers. Some time later that day, while the workers were still removing the old roof, Mr. Masters came by his mother's house and noticed the workers and the child on the roof. Mr. Masters was dissatisfied with the manner in which the workers were acting and with the quality of their work. He therefore "chased" them off the roof and told them to leave the property. Mr. Harris was not at the site at the time the workers (and the child) were directed to leave, but he later telephoned Mr. Masters "want[ing] to know what was wrong." Mr. Masters told Mr. Harris why he had removed the workers from the property. He further advised Mr. Harris to "not come back anymore," explaining that he would hire another roofer to complete the job (which he subsequently did). Mr. Masters assured Mr. Harris that payment would be made for the work that had been done by DHC on the roof that day, but there was no agreement reached as to the amount of the payment. A few days later, Mr. Harris telephoned Mr. Masters again, inquiring "if he [Mr. Harris] was going to get paid." In response to this inquiry, Mr. Masters replied that he was "going to get with [Respondent] to figure out the amount of work that was done" and he (Mr. Masters) would pay Mr. Harris accordingly. Subsequently (some time on or after June 4, 1996), Mr. Masters received in his mailbox a copy of an "invoice" (in an unstamped, unsealed envelope) from DHC which read as follows: DAVID HARRIS CONSTRUCTION TO: Home Improvement Date: 6/4/96 RE: 246 NE Mainsail, PSL (Masters) DESCRIPTION: Labor & Materials 1 DAY PRICE: $863.39 Thereafter, Mr. Masters telephoned Respondent and told Respondent about the bill he had received (the amount of which Mr. Masters thought was excessive). In response to Mr. Masters' telephone call, Respondent, on June 18, 1996, visited with Mr. Masters and his mother at the latter's home. There, Mr. Masters showed Respondent the copy of the "invoice" he (Mr. Masters) had received. Based upon his knowledge of the prices that Mr. Harris typically charged, Respondent determined that a fair price for the work that the DHC workers had done on Ms. Masters' roof was only $480.00. Respondent so advised Mr. Masters and then telephoned Mr. Harris (from Ms. Masters' home) in an effort to persuade Mr. Harris to accept that amount. Respondent and Mr. Harris, however, were unable to reach agreement on the matter. After hanging up, Respondent told the Masters that he and Mr. Harris "would work something out and get it straightened out." Thereafter, at Respondent's suggestion, Ms. Masters made out and signed a check to "Home Improvement" in the amount of $480.00, which she gave to Respondent, who told the Masters that he would "take care of" the matter. In addition to giving the Masters this assurance, Respondent also provided Ms. Masters, in exchange for the $480.00 check, a receipt marked "paid in full" and a release of lien signed by him. In the release of lien, Respondent identified himself as "Richard Kosalka of Home Improvement, a Florida corporation doing business in the State of Florida." Respondent delivered Ms. Masters' $480.00 check to Mr. Thomas and asked Mr. Thomas to issue an HIT check in that same amount payable to DHC. Mr. Thomas did as he was requested by Respondent. The $480.00 check signed by Mr. Thomas was received and deposited by DHC. Nonetheless, thereafter, on August 19, 1996, DHC filed a claim of lien for $383.39 (the difference between $480.00 and the amount of DHC's original invoice) on Ms. Masters' home. The $383.39 (which DHC claimed it was owed) was never paid; however, DHC took no action with respect to the lien and the lien expired. The Maciuba contract was signed by Ms. Maciuba and Bob Andrews, the HIT salesperson who had negotiated with her at her home. It provided for the "furnish[ing of] the following materials, improvements, labor, and/or services" for the price of $3,600.00: "Tear off existing shingles- Replace rotten facia and roof sheets. Shingle color: Shasta white (lightest color). 4 lengths of ridge vents." HIT contacted DHC to do the work described in the contract. DHC obtained a re-roofing permit for the work on June 21, 1996. DHC hired Jerry Poston to work as subcontractor on the project. Mr. Poston and his crew worked on the project during the period from June 21 through July 29, 1996. Mr. Harris also made an appearance at the work site. Ms. Maciuba made an initial down payment of $300.00, which she gave to Mr. Thomas. Subsequently, after the work had been completed, she gave Mr. Thomas three checks that were payable to herself and which she endorsed. Two of these checks were for $1,000.00, and the remaining check was for $800.00, for a total payment, including the down payment she had made, of $3,100.00, which was less than the $3,600.00 contract price. Ms. Maciuba refused to pay any more because of the damage she claimed her property had sustained as a result of re-roofing work. On August 23, 1996, Mr. Harris filed a claim of lien on Ms. Maciuba's home, in which he alleged that, "in accordance with a contract with Home Improvement Time, Inc.," he had "furnished labor, services or materials" in the amount of $2,565.00, and had not received any payment therefor. On October 15, 1996, Mr. Harris executed a Sworn Statement of Account acknowledging that he was owed only $1,873.18 inasmuch as the "contractor" had made direct payments to Mr. Harris' suppliers, thereby reducing the amount he (Mr. Harris) was owed. Ms. Maciuba, in small claims court, sought to have the lien removed. On November 19, 1996, a mediation session was held at which Ms. Maciuba, Mr. Harris, Mr. Thomas, and Respondent were present. At the session, Mr. Harris agreed to remove the lien in exchange for $1,450.00, of which amount $800.00 was to be paid by Ms. Maciuba and the remaining $650.00 was to be paid by HIT. That very same day, November 19, 1996, Ms. Maciuba and HIT made these agreed-upon payments, and Mr. Harris executed and recorded a release of lien. Ms. Masters and Ms. Maciuba filed complaints that were investigated by Edward Garcia, an investigator with the Department. As part of his investigation, Mr. Garcia spoke with Respondent by telephone on November 7, 1996. Respondent told Mr. Garcia that HIT was a telemarketing business owned by Mr. Thomas; he (Respondent) hired HIT to solicit business for him; he (Respondent) advertised as "Home Improvement" in order to "play off the name of Home Improvement Time"; the contract with Ms. Maciuba was for a re-roofing project and he (Respondent) subcontracted the work to DHC; and he (Respondent) was not aware, that he was not authorized, as a licensed general contractor, to enter into contracts for re-roofing projects. Mr. Garcia also visited HIT's office and met with Mr. Thomas. During this meeting, Mr. Thomas signed a document agreeing not to violate the provisions of Chapter 489, Part I, Florida Statutes, by engaging contracting activities without an appropriate license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order (1) finding Respondent guilty of the violations alleged in Counts I, II, V, VIII, and IX of the Administrative Complaint; (2) disciplining Respondent for having committed these violations by requiring him to pay a fine in the amount of $1,000.00 and to reimburse the Department for all reasonable costs associated with the Department's investigation and prosecution of these charges; and (3) dismissing the remaining counts of the Administrative Complaint. DONE AND ENTERED this 29th day of September, 1999, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 29th day of September, 1999.
