The Issue Whether the Respondent, a licensed general contractor, committed the offenses alleged in the three administrative complaints and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of contracting pursuant to Section 20.165, Florida Statutes, and Chapters 455 and 489, Florida Statutes. At all times pertinent to this proceeding, Respondent has been licensed as a general contractor by the Petitioner. Respondent was issued license number CG C010162 in 1975 and has held that licensure ever since. The first complaint against Respondent’s licensure, like the three complaints at issue in this proceeding, arose from a post-Hurricane Andrew contract. That complaint was resolved by stipulation of the parties. Respondent did not admit to wrongdoing in his stipulation. Respondent was financially unable to comply with the terms of the settlement. Consequently, his license was suspended at the time of the formal hearing. There was no explanation as to why this complaint, which occurred at approximately the same time as the three contracts at issue in this proceeding, was prosecuted separately. At all times pertinent to this proceeding, Respondent was the qualifier for Allstate Construction Management, Inc. (Allstate), a Florida corporation. THE RODRIGUEZ CONTRACT (DOAH CASE 96-4580) On March 17, 1993, Allstate entered into a contract with Anthony Rodriguez to build a garage at 15525 SW 209th Avenue, Miami, Florida. The contract price was $16,250.00, which included “plans, permit and cleanup.” Allstate was paid the sum of $4,062.50 on March 17, 1993. Allstate obtained the Dade County building permit for the project on March 26, 1993. Allstate was paid the sum of $5,593.75 on April 5, 1993, after the concrete blocks were installed. On April 8, 1993, Allstate requested a tie beam/reinforcing inspection from the Dade County building department. In response to that request, Antonio Varona inspected the project on April 12, 1993. The inspector noted that the project was not ready for inspection because no truss plans were available. Respondent testified, credibly, that he had to construct the roof conventionally because of the difficulty in obtaining pre-fabricated trusses; however, that testimony does not explain why there were no truss plans available for inspection. Appropriately engineered truss plans are required for a roof to pass inspection. Despite the failure of the project to pass inspection, Mr. Rodriguez accepted the roof and paid Allstate $4,968.75 on May 21, 1993. As of May 21, 1993, there remained a final payment of $1,625 on the contract. After May 21, 1993, Respondent and Allstate left the Rodriguez job. There was a dispute in the evidence as to whether Mr. Rodriguez fired Allstate or whether Allstate abandoned the project. This dispute is resolved by finding that the evidence was insufficient to establish by clear and convincing evidence that Allstate abandoned the Rodriguez project. When Allstate left the Rodriguez job, there were sufficient funds remaining unpaid to complete the project. Because he had obtained the initial building permit, it was incumbent upon Respondent to either obtain a final inspection of the project or notify the building department that his company had been terminated by the owner. Respondent did neither. THE ELLIS CONTRACT (DOAH CASE 96-4581) At the times pertinent to this proceeding, William R. Ellis owned the Arleen House, which is an apartment building located at 2191 N.E. 168th Street, North Miami Beach, Florida. This building suffered damages from Hurricane Andrew. On September 11, 1992, Respondent and Mr. Ellis inspected the building and Respondent prepared an estimate as to the items that had been damaged by the hurricane and other non-hurricane related repairs that should be made. The mansard roof for this building had been damaged by Hurricane Andrew to the extent that it contained gaping holes. Shortly after that inspection, Mr. Ellis met with his insurance adjuster who gave him a check in the amount of $13,000 to repair the roof. It was necessary to dry in the roof and repair the mansard as soon as possible to avoid additional damage to the building from rains. While there was a dispute as to the extent of the services Allstate was to provide Mr. Ellis, the record is clear that Respondent, on behalf of Allstate, agreed to undertake the roof repair for the sum of $13,000. Respondent told Mr. Ellis that his company had a roofing crew ready to begin work on the roof repairs as soon as Mr. Ellis paid the sum of $13,000. Between September 11 and September 15, 1992, Mr. Ellis gave Allstate a check in the amount of $13,000 with the understanding that the check he had received from the insurance company had to clear before his bank would honor the check he was giving to Allstate. Immediately thereafter1 Allstate sent a roofing crew to the project for the purpose of temporarily covering exposed areas. Despite having been told by Mr. Ellis that the check he was giving Allstate would not be good until after the check for the insurance proceeds had cleared, Allstate did not wait to deposit Mr. Ellis’ check. Respondent was promptly notified that the check Mr. Ellis had given him would not be honored by Mr. Ellis’ bank. Respondent immediately thereafter withdrew the roofing crew from the project. The roofing crew had made only minor repairs at the time they were withdrawn from the project. Respondent knew, or should have known, that the building was vulnerable to further damage from rain. On September 15, 1992, Mr. Ellis gave Respondent a second check in the amount of $13,000. This check cleared the banking process on September 18, 1992. Mr. Ellis made repeated efforts to have Allstate send a crew to repair the roof. After it withdrew the crew that had been sent to the property when Allstate received the first check, Allstate did not take action to protect the property by repairing the exposed areas of the roof. Towards the end of September 1992, a heavy rainstorm caused additional damages to Mr. Ellis’ building. Allstate did not send a crew to the project again until October 6, 1992. Mr. Ellis hired this crew away from Allstate. He testified he did so because the crew complained about Allstate not paying for the materials they were using to repair the roof and because the workmen were threatening to file liens against the property. Mr. Ellis paid this crew the sum of $3,400 to temporarily repair the roof. He then entered into a contract with another contractor to complete the roofing repairs for the sum of $17,500. Mr. Ellis demanded the return of the $13,000 he paid to Allstate, but, as of the time of the formal hearing, he had not been repaid. THE KUCHENBACKER CONTRACT (DOAH CASE 96-4582) On November 6, 1992, Allstate entered into a contract with Carl F. Kuchenbacker to repair his residence at 18500 SW 88th Road, Miami, Florida. Mr. Kuchenbacker’s residence had been damaged by Hurricane Andrew. The initial contract price was $33,375.00. Respondent secured the building permit and Allstate began work on the project. During the course of the work, additional work was added to the contract, which raised the total contract price to $38,015.00. In late February or early March, 1993, Allstate abandoned the project without just cause and without notice to the owner. At the time it abandoned the project, Allstate had been paid the sum of $26,620.00. Allstate failed to pay all of the subcontractors and materialmen who had performed work or provided material for the Kuchenbacker job. As a result of that failure, valid liens were recorded against Mr. Kuchenbacker’s property. The following liens were recorded: Rite-Way Plumbing and Plastery, Inc. in the amount of $3,520.00; Commercial Lighting and Maintenance, Inc., in the amount of $1,835.00; and Scott Bornstein Plumbing, Inc., in the amount of $798.00. Allstate had received sufficient funds from the owner to pay these liens, but neither Respondent nor Allstate paid these liens. Mr. Kuchenbacker and Petitioner’s expert witness testified that the value of the work performed by Allstate before it abandoned the job was $21,000.00. Mr. Kuchenbacker also testified as to the items that remained undone and as to the percentage of the work that had been completed. From that testimony and from the testimony as to the estimated costs of completing the job, it is found that the sum of $11,395.00, which was the difference between the total contract price and the total amount that was paid to Allstate, was sufficient to complete the project and pay off the liens on the property. Respondent did not call for a final inspection of the property and he did not advise the Dade County Building Department that he was abandoning the project. Allstate abandoned the Kuchenbacker project because it went out of business.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein. It is further recommended that Petitioner impose fines totaling $5,000 against Respondent’s licensure as follows: For the violation established by Count I of DOAH Case 96-4580, an administrative fine in the amount of $500. For the violation established by Count II of DOAH Case 96-4580, an administrative fine in the amount of $500. For the violation established by Count IV of DOAH Case 96-4580, an administrative fine in the amount of $250. For the violation established by DOAH Case 96-4581, an administrative fine in the amount of $500. For the violation established by Count I of DOAH Case 96-4582, an administrative fine in the amount of $750. For the violation established by Count II of DOAH Case 96-4582, an administrative fine in the amount of $2,000. For the violation established by Count III of DOAH Case 96-4582, an administrative fine in the amount of $500. IT IS FURTHER RECOMMENDED THAT in addition to the fines recommended for the violations found in DOAH Case 96-4581, Respondent’s licensure be suspended for two years. IT IS FURTHER RECOMMENDED THAT in addition to the fines recommended for the violations found DOAH Case 96-4582, Respondent’s licensure be suspended for two years, to run concurrently with the suspension recommended for DOAH Case 96- 4581. DONE AND ENTERED this 23rd day of May, 1997, in Tallahassee, Leon County, Florida. Hearings Hearings CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative this 23rd day of May, 1997
The Issue The issue is whether Respondent undertook to act as a contractor without a license as charged in the Administrative Complaints, and if so, what disciplinary action should be taken.
Findings Of Fact Pursuant to Section 20.165, the Division of Professions is a subordinate unit of the Department of Business and Professional Regulation (the Department). The Department provides administrative support, including prosecutorial support to the Construction Industry Licensing Board (the Board), which is also located within the Department. Mr. Grandmont is not currently licensed as a State Registered or State Certified Contractor in this state, nor has he ever been licensed by the Board. Mr. Grandmont's last known address is 355 China Berry Circle, Davenport, Florida. He was provided notice of the hearing at that address, and at 7733 Park Road, Charlotte, North Carolina 28210, which is the address he used when demanding a hearing on disputed facts in two of these cases. In DOAH Case No. 06-3279, he provided no address in his demand for a hearing. All attempts by U. S. Mail to notify Mr. Grandmont of the hearing, were returned. Mr. Grandmont is deemed to have known of the time, date, and place of the hearing, and is deemed to have waived his appearance at the hearing. On November 11, 2005, subsequent to Hurricane Wilma, Robert L. Coe, of Lake Worth, Florida, was contacted by Mr. Grandmont, who offered to repair his damaged mobile home. He provided a written estimate of $10,500. The estimate contained a list of 11 items requiring repair, and stated that he would accomplish the repair of them. He demanded a $4,200 down payment, which Mr. Coe provided in a draft drawn on Fidelity Cash Reserves, and dated November 11, 2005. Mr. Coe never saw Mr. Grandmont again. The repairs set forth in the written estimate were not accomplished. The draft, however, was negotiated by Mr. Grandmont. On November 12, 2005, subsequent to Hurricane Wilma, Joseph Webster, of Lake Worth, Florida, was contacted by Mr. Grandmont, who offered to repair his damaged residence. Mr. Grandmont discussed charging $13,500 in return for repairing Mr. Webster's residence. After negotiations, Mr. Grandmont agreed to do it for $11,500. No written estimate or contract was prepared. Mr. Grandmont demanded $5,750 payment in advance. Mr. Webster rounded off the down payment to $6,000 and presented Mr. Grandmont an official check of the Taunton Federal Credit Union, of Taunton, Massachusetts, for that amount. The check was negotiated by Mr. Grandmont, but the promised repairs were not accomplished. On November 4, 2005, subsequent to Hurricane Wilma, Ella Arseneau, of Lake Worth, Florida, was contacted by Mr. Grandmont, who offered to replace her roof. He provided an estimate of $5,500 in return for repairing Ms. Arseneau's residence. He demanded that she pay $3,500 in advance, which Ms. Arseneau provided by presenting Mr. Grandmont a check for $3,500, drawn on an account in Wachovia Bank. The check was negotiated by Mr. Grandmont, but the roof was not repaired as promised. Mr. Coe is 78 years of age, Mr. Webster is 85, and Ms. Arseneau is 77.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation impose a fine upon Clifford Grandmont in the amount of $30,000. DONE AND ENTERED this 28th day of November, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 of November, 2006. COPIES FURNISHED: Brian A. Higgins, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Clifford Grandmont 7733 Park Road Charlotte, North Carolina 28210 Nancy S. Terrel, Hearing Officer Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Simone Marstiller, Secretary Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent, a certified general contractor, violated the construction industry licensing law, by: (1) willfully or deliberately disregarding and violating the applicable building codes or laws of the State or any municipalities, cities or counties thereof; (2) diverting construction funds resulting in his unwillingness or inability to perform pursuant to a construction contract; and (3) abandoning a construction project; and if the Respondent is guilty of such violations, the appropriate disciplinary penalty which should be imposed by the Construction Industry Licensing Board.
Recommendation That Respondent's certified general contractor's license No. CGC005174 be suspended until such time as Respondent furnishes the Board satisfactory evidence of having made restitution to Simon H. and Alexandra U. Ramos in the amount of $2,515 for monies expended by them to pay for lumber, electric and plumbing charges arising out of their construction contract.
The Issue 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
