The Issue The issues in this case are whether Respondent, Daniel F. Acevedo, committed the offenses alleged in a four-count Administrative Complaint filed with Petitioner, the Department of Business and Professional Regulation, on July 11, 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, Daniel F. Acevedo, is and has been at all times material hereto a certified general contractor in Florida, having been issued license number CGC 1506071. Mr. Acevedo is also a Certified Roofing Contractor, having been issued license number CCC 1326888. Both licenses were issued by the Construction Industry Licensing Board (hereinafter referred to as the “Board) and are in “current active” status. At all times material, Mr. Acevedo was the primary qualifying agent for All Design Systems, Inc. (hereinafter referred to as “All Design”). All Design is a Florida corporation. Mr. Acevedo is an officer of the corporation. All Design’s certificate of authority, License Number QB 26737, was issued on September 4, 2003. The license expired on August 31, 2007, and was in delinquent status from September 1, 2007, to May 14, 2008. Mr. Acevedo remained the qualifying agent during the delinquent period. All Design employed three to four sales agents who “sold” construction projects to commercial and residential property owners on behalf of All Design. All Design utilized these individuals because it believed they had experience in the construction industry and that they held licenses or certifications which would allow them to perform estimates on construction projects and make appropriate bids. The sales agents were to find customers for All Design and enter into contracts with them on behalf and in the name of All Design. In August of 2005, Mr. Acevedo was approached by Eduardo Rodriguez. Mr. Rodriguez offered to locate potential home remodeling customers for All Design in exchange for a percentage commission. Mr. Acevedo agreed. At no time relevant to this matter was Mr. Rodriguez licensed in Florida to engage in contracting as a state certified or registered contractor. Nor was Mr. Rodriguez’s business entity, Eduardo’s Construction, Inc. (hereinafter referred to as “Eduardo’s Construction”), licensed with a certificate of authority as a contractor qualified business. Mr. Rodriguez was the president and sole officer of Eduardo’s Construction. Eduardo’s Construction was not incorporated in Florida. Some time during 2005, Grace Esposito obtained a business card for Eduardo’s Construction. She obtained the card after discussing with a neighbor construction work that was being performed by Eduardo’s Construction on the neighbor’s residence. The neighbor informed her that Mr. Rodriguez was the contractor performing the work. The business card incorrectly represented that Mr. Rodriguez was licensed and insured. Ms. Esposito called the number listed for Eduardo’s Construction and spoke with a man who identified himself as Eduardo Rodriguez. In August 2005, Mr. Rodriguez met with Ms. Esposito at her condominium residence, located at 20301 West Country Club Drive, Aventura, Florida (hereinafter referred to as the “Subject Property”). Ms. Esposito discussed with Mr. Rodriguez the work which she desired. Based upon representations from Mr. Rodriguez, Ms. Esposito believed that he was licensed to perform the work being discussed. The evidence failed to prove, as suggested by Mr. Acevedo, that Mr. Rodriguez “bid on the Esposito job, [and] orally agreed to essential terms with Esposito on behalf of All Design Systems, Inc., Respondent’s Firm.” Mr. Acevedo’s testimony in this regard was uncorroborated hearsay and was contradicted by the credible testimony of Ms. Esposito. On September 5, 2005, Ms. Esposito entered into a written contract with Mr. Rodriguez, doing business as Eduardo’s Construction, for the remodeling of the Subject Property (hereinafter referred to as the “Contract”). Ms. Esposito agreed in the Contract to pay $24,000.00 for the remodeling. Upon execution of the Contract, Ms. Esposito paid Eduardo’s Construction with three checks totaling $12,000.00 for the remodeling. Mr. Rodriguez informed Mr. Acevedo of the project in September 2005. At that time, without reviewing the Contract, Mr. Acevedo executed a building permit application which Mr. Rodriguez provided him for the project. The permit application had not been signed by Ms. Esposito. In October 2005, Mr. Rodriguez presented the building permit application to Ms. Esposito for her signature. The permit application was then submitted to the building department. The building permit was subsequently approved and issued under Mr. Acevedo’s license and in the name of All Design. Ms. Esposito had been told that part of the work would be completed in October. When this representation proved untrue, she began contacting Mr. Rodriguez. Mr. Rodriguez told her that it was taking time to get the permit due to delays at the building department. Eventually, when she was no longer able to contact Mr. Rodriguez, Ms. Esposito went directly to the building department where she learned that All Design was the contactor of record and not Eduardo’s Construction. On or about October 31, 2005, Ms. Esposito telephoned All Design and spoke with Mr. Acevedo. She informed Mr. Acevedo about the Contract. Mr. Acevedo agreed to meet with her. On November 1, 2005, Mr. Acevedo visited Ms. Esposito at the Subject Property. She showed him the work that had been performed and explained the details of the Contract and what had transpired with Mr. Rodriguez. Mr. Acevedo told Ms. Esposito that his relationship with Mr. Rodriguez was that he merely allowed Mr. Rodriguez to use his license to pull permits in exchange for $150.00. Mr. Acevedo told Ms. Esposito that he would attempt to get Mr. Rodriguez to complete the job. This meeting was memorialized in a letter to Mr. Acevedo written by Ms. Esposito. At some time in November, work recommenced on the project. Within approximately three days, however, work stopped. Ms. Esposito sent four emails to Mr. Acevedo describing the work performed and the cessation of the project. Ms. Esposito made a final request that the project be completed. Mr. Acevedo did not respond to the emails. On or about November 17, 2005, Ms. Esposito sent a letter to Mr. Acevedo outlining the events, requesting termination of the Contract, and the removal of Mr. Acevedo from the building permit. Mr. Acevedo did not respond to this letter. The building permit was cancelled by Mr. Acevedo in December 2005. The total investigation costs incurred by the Department, excluding those costs associated with any attorney’s time, was $381.83. Mr. Acevedo has not previously been disciplined by the Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Daniel F. Acevedo violated the provisions of Section 489.129(1)(d), (i), and (m), Florida Statutes, as alleged in Counts I, II, III, and IV of the Administrative Complaint; imposing fines of $250.00 for Count I, $1,000.00 for Count II, and $2,000.00 for Count III; requiring that Mr. Acevedo pay the costs incurred by the Department in investigating and prosecuting this matter; placing Mr. Acevedo’s licenses on probation for a period of two years, conditioned upon his payment of the fines, payment of the costs incurred by the Department; and any other conditions determined to be necessary by the Board. DONE AND ENTERED this 11th day of March, 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 11th day of March, 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 Daniel Acevedo All Designs Systems, Inc. 2813 Executive Drive Weston, Florida 32388 Kenneth Stein, Esquire 8436 West Oakland Park Boulevard Sunrise, Florida 33351 G. 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
Findings Of Fact The Respondent is a registered general contractor, having been issued license number RG 0012013. On October 3, 1980, the Respondent, d/b/a Five Ray Enterprises, Inc., entered into a contract with David and Laytha Danley to construct a residence near Brooksville, Florida, for the sum of $61,621.00. This contract was a construction management type of agreement in which the Respondent was to be paid a fee for his services. The Respondent commenced construction, and completed between 85 percent and 95 percent of the project before discontinuing an active role in the work during June of 1981. The Respondent's base of operations was in Winter Park, nearly 100 miles from the construction site, and he was having some personal problems. Therefore, the Respondent agreed with Al Nickola to have Nickola supervise the completion of construction, which involved some painting, grading, finish electrical work and the installation of appliances. The Respondent knew that Al Nickola was unlicensed as a contractor when he entered into the agreement with Nickola to complete the construction. Before he discontinued his work on the project, the Respondent received all the inspections except for the Certificate of Occupancy. His agreement with Nickola was to complete the work which was left and to obtain the Certificate of Occupancy. The Respondent did not properly qualify Five Ray Enterprises, Inc., under which name he contracted to build the residence for the Danleys. On September 9, 1981, the Citrus County Hoard of Examiners revoked the Respondent's license for abandonment of the Danley construction project. However, the minutes of the Board meeting at which this action took place, do not reflect whether or not a full examination was made of all the facts. They simply indicate that the Respondent did not appear at the meeting as requested.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Roland C. Ray, be found guilty of one violation of Section 489.129(1)(g), Florida Statutes, and one violation of Section 489.119(2) and (3), Florida Statutes, and that he be assessed an administrative fine of $250 on each charge for a total fine of $500. It is further RECOMMENDED that the Respondent be found guilty of violating Section 489.129(1)(i), Florida Statutes, and that his license be suspended until such time as the Respondent has obtained reinstatement of his Citrus County license. And it is further RECOMMENDED that the Respondent be found not guilty of violating Section 489.129(1)(k), Florida Statutes. THIS RECOMMENDED ORDER entered on this 11th day of February, 1983, in Tallahassee, Florida. WILLIAM B. THOMAS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 1983. COPIES FURNISHED: John O. Williams, Esquire 547 North Monroe Street Suite 204 Tallahassee, Florida 32301 Roland C. Ray 305 North Pennsylvania Avenue Winter Park, Florida 32789 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, DPR Case No. 0018288 DOAH Case No. 82-2395 ROLAND C. RAY RG 0012013 Post Office Box 5877 Orlando, Florida 32855 Respondent. /
The Issue The issue to be determined is whether Respondent violated section 489.129(1)(i), Florida Statutes (2009), by violating section 489.126(2)(a), as alleged in the Amended Administrative Complaint, and if so, what penalty should be imposed?
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of the construction industry pursuant to section 20.165 and chapters 455 and 489, Florida Statutes. At all times material to these proceedings, Respondent has been licensed as a certified residential contractor in the State of Florida, having been issued license number CRC 057893 in May 2000. During all times material to these proceedings, Respondent has been the primary qualifying agent of Jacksonville Home Improvements, Inc. (JHI). Respondent has been the subject of prior discipline. On or about April 6, 2012, the Construction Industry Licensing Board issued a Final Order against Respondent in Case No. 2011015263, for violating section 489.129(1)(q), Florida Statutes (2009) (failing to pay a civil judgment related to the practice of contracting within a reasonable time). The Final Order imposed an administrative fine in the amount of $500.00, costs in the amount of $246.21, and payment of restitution in the amount of $39,500, or satisfaction of the outstanding civil judgment. On or about July 12, 2012, Respondent’s Motion for a payment plan was denied, and the decision was memorialized by order dated October 11, 2012. As a result of the prior discipline, the records for the Department indicate that his license is currently suspended for failure to comply with the Final Order described in paragraph four. Respondent is also the subject of several other Administrative Complaints, submitted as Petitioner’s Exhibit 3. The resolution of these complaints is not at issue in this proceeding, and no evidence was submitted to demonstrate the validity of these complaints. Petitioner’s Exhibit 3 was admitted solely for the purpose of determining penalty in accordance with the Board’s disciplinary guidelines, which will be discussed below. On or about January 12, 2010, Respondent, d/b/a JHI, entered into a contract with Theresa Smith for renovations of her home at 2266 Mangrove Lane, Green Cove Springs, Florida. Ms. Smith’s home had been damaged in a fire, and she and her son were living in an RV on the property until the home could be repaired. The job involved a structure which is attached to an existing mobile home. The contract price for the job described in the initial contract is $46,700. The contract specified that Respondent would obtain a permit to complete the listed work; further specified that Respondent would provide all necessary architectural drawings and engineering; and that all specifications and engineering would meet existing state and local building codes. The contract required that Ms. Smith pay a retainer of $14,010, representing 30 percent of the contract price. Further payments under the contract consisted of an additional 30 percent upon framing and new roof; 30 percent upon plumbing, electric, A/C, and windows; and 10 percent upon completion. On or about January 19, 2010, Respondent accepted a check from Ms. Smith for $14,010.00, representing the retainer specified in the contract. A standard permit application form must be submitted as part of any permit application to the Clay County Building Department. The application must be complete before the Building Department will accept it for processing. Respondent did not submit a permit application for the job at 2266 Mangrove Lane until March 24, 2010. The application submitted was signed by Ms. Smith on March 15, 2010, and signed by Respondent on March 24, 2010. No earlier permit application was ever submitted by Respondent to the Building Department for this project. Respondent claims that he did not know that he would be required to have engineered drawings for the project until he inquired at the building department on or about January 19, 2010, and received a call telling him of the requirement the next day. In his view, these discussions with the building department were sufficient to meet the filing requirement even though he admits he submitted nothing on the day he spoke to staff at the building department. His claim is belied by the language of the contract itself. As noted in paragraph eight, the contract specifically indicates that the contractor will provide all necessary architectural drawings and engineering, and that all specifications and engineering will meet existing state and local building codes. These provisions do not appear to be part of the form used for the contract, but instead are part of the specifications for this job. The representation made to the homeowner receiving the proposed contract is that these issues were already contemplated. He also claimed that after the contract for this project was executed, “the governor” changed the law related to the type of structure involved, leaving the project to the mercy of the local official.1/ No evidence of this supposed change was introduced. On or about May 25, 2010, the parties executed an Addendum to the contract, providing for additional work to be performed and requiring an additional payment of $14,711.00. The total cost of the job, with the work described in the Addendum included, was $61,411.00. Ms. Smith has paid a total of $56,731 to complete the repairs on her home. To date, over three years after signing both the initial contract and the Addendum, the construction on the home is far from complete. The air conditioning, duct work, drywall, carpet, flooring, and fixtures still must be installed, and the siding needs to be replaced. Although Respondent has promised he will complete the project, Ms. Smith does not believe he will ever complete the work. She cannot live in the home, and she and her son continue to live in an RV parked on the property. Ms. Smith sought and received an estimate in February 2003 to complete the work on her home and bring the structure up to code. The proposed contract price is $63,900.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board enter a Final Order finding that Respondent violated section 489.216(2)(a) and therefore violated section 489.219(1)(i). It is further recommended that the Department impose an administrative fine of $5,000; assess costs to be determined by the Board; suspend his license for a period of two years; and that he be directed to pay restitution to Theresa Smith in the amount of $56,731.00 (the amount she paid him on the contract). DONE AND ENTERED this 29th day of May, 2013, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 2013.
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, Robert Loeffler, was licensed by Petitioner as a certified general contractor, having been issued license number CG C040314.1 At all times material, Respondent's certified general contractor's license authorized him to engage in the practice of contracting in his individual capacity only, and not as the qualifying agent of any business entity. At all times material, Respondent was the owner, sole director and sole officer of Loeffler Building and Design, Inc. ("LBD"), a Florida corporation. At no time was LBD registered or certified to practice contracting in the State of Florida. In April 1993, Anthony Pirrone and his wife Sheila Pirrone purchased a home at 680 North Island Drive, Golden Beach, Florida. Before moving in, the Pirrones wanted the house renovated, and they negotiated with Respondent and arrived at an agreement whereby LBD, as contractor, would do the work. In February 1994, the Pirrones and Respondent, as president of LBD executed a written contract, dated August 16, 1993, for the improvements. By that time, LBD had already done some work, and the Pirrones had already made some payments to LBD. Indeed, in or about July 1993, Respondent, on behalf of LBD, submitted an application for a demolition permit to the Town of Golden Beach. The application listed "Loeffler Building and Design" as the contractor, and named Respondent, with his license number, as the corporation's qualifier. The permit was issued August 9, 1993. On or about November 3, 1993, Respondent, on behalf of LBD, submitted an application for a permit to commence the renovations and improvements contemplated by the agreement with the Pirrones. The application listed "Loeffler Building," which is understood to mean Loeffler Building and Design, Inc., as the contractor, and again named Respondent, with his license number, as the corporation's qualifier. The permit was issued November 5, 1993. LBD continued work on the Pirrone home until August 1994, when all work ceased. On December 5, 1994, incident to the pending dispute between the parties, the Pirrones terminated their agreement with LBD. The Pirrones and LBD asserted claims against each other, and the claims became the subject of litigation between them. The claims were arbitrated, and on July 24, 1995, the arbitrator issued an award denying LBD's claim against the Pirrones, andgranting the Pirrones' claim against LBD in the amount of $62,315.81, together with interest and administrative fees, for a total award of $65,512.13. On October 26, 1995, a final judgment confirming the arbitrator's award was entered in the Circuit Court, Dade County, Florida, Case No. 95-01131. At the time of hearing, neither Respondent nor LBD had made any payment on the judgment, nor had they entered into an agreement with the Pirrones to satisfy the judgment by making periodic payments.2 Respondent has had no prior complaints filed against him with the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing Count III of the Administrative Complaint, finding Respondent guilty of Counts I and II of the Administrative Complaint, and imposing an administrative fine of $250.00 against Respondent. It is further RECOMMENDED that the final order assess the reasonable costs of investigation and prosecution against Respondent.4 DONE AND ENTERED this 10th day of November, 1997, 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 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1997.
Findings Of Fact Respondent, Carl F. Doyle, hereinafter referred to as Respondent, is licensed as a certified building contractor holding license number CB C015518 in the State of Florida. At all times material to this action the Respondent was licensed, and his address of record is Palm Harbor, Florida. The Department of Professional Regulation, Construction Industry Licensing Board, was and is the state agency charged with the regulation of contractors in the State of Florida. Respondent has never been the qualifying agent for Plantara Building Corporation, hereinafter referred to as Plantara. Janet Lee Valente was the qualifying agent for Plantara from December 1986 until October 1987. Respondent is and was the registered agent and director for Plantara at all times material to this action. Respondent negotiated the construction contract between Plantara and Jackie Evans and her daughter, Michelle Renee Evans. Respondent's license number was used to obtain the building permit for the Evans' home. The Evans and Plantara entered a contract to construct a new home in Pinellas County on March 29, 1986. In August 1986, construction of the Evans home began. Mrs. Jackie Evans noted a discrepancy in the plumbing which was corrected prior to pouring the slab. The plumbing discrepancy related to changes in the kitchen and bathroom requested by Mrs. Evans. Mrs. Evans had presented her request for changes to Respondent in March 1986. As construction proceeded, Mrs. Evans noted that her kitchen had a wall where an "island" should be. This was not corrected. A tub was put in the master bathroom and had to be removed because Mrs. Evans had requested a shower. In May of 1987, Mrs. Evans "closed" on the house but submitted to Respondent a list of several items to be repaired or completed. Plantara had access to Mrs. Evans home to complete the job but would often not keep appointments as scheduled. Prior to closing on her home in May 1987, Mrs. Evans had advised Plantara of items she desired to be corrected. After the May 1987 closing on the home, Mrs. Evans wrote Plantara again regarding items to be corrected or finished on her home. The gas dryer vent terminated in the attic, and not through the roof; a leak in the fireplace and the reversal of hot and cold water in the guest bathroom were three of the items to be corrected. Plantara corrected the problem with the water in the guest bath, a code violation, immediately. However, they failed to correct the gas dryer venting violation. As of the date of the hearing, there were numerous items still not corrected or repaired by Plantara. However, Mrs. Evans and Plantara reached a monetary settlement in April 1989 in which Plantara waived its claim of $5,000 under the contract in exchange for the Evans' release from liability. A letter of commitment for FHA financing was not received until December 23, 1986. The home received a certificate of occupancy on February 24, 1987. (T. pg. 20). There were numerous items to be corrected as of the closing date in May 1987 and as of the hearing date there remained items from the "list" which had not been corrected and/or repaired. Larry Wilson, Pinellas County Department of Consumer Affairs, observed leaks in the fireplace, uneven tile in the bathroom shower, closet doors not fitting properly, sloppy painting, bedroom windows not closing properly, siding loose, and patio concrete cracked when he inspected the home in November, 1987. Mr. Wilson stated that Mrs. Evans complaints were legitimate. Mr. Jerry Hicks, an expert in construction practices in Florida, testified that a "punchlist" such as Mrs. Evans list is usually completed within 30 days or sooner after the "closing" The contractor is responsible to complete the punchlist as the contractor is "charged with supervising the work.' Mr. Hicks opined that Respondent should have immediately responded to the problem with the dryer vent. In fact, when Mrs. Evans contacted the subcontractor, the problem was immediately corrected by the subcontractor. This indicates that Respondent had exercised little supervision over the subcontractors. (T. pg. 104, 116). Respondent had from February 1987 (the date of the certificate of occupancy) until May 1987 (the date of the "closing") to correct the punchlist. Respondent was unresponsive to the customer, and was not reasonably timely in completion of the punchlist. Respondent did not supervise the job as industry standards require. Respondent has been previously disciplined twice by the Construction Industry Licensing Board. Respondent offered in mitigation that the job was undertaken as a "favor" to the Evans and therefore they should have expected low priority treatment. However, as a mitigation gesture, the Respondent waived his right to receipt of the remaining $5,000 payment from the property owners.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondent be found guilty of violating Sections 489.129(1)(g) and 489.119, Florida Statutes by failing to qualify a firm and that an administrative fine be imposed in the amount of $500. Rule 21E-17.001(a), Florida Administrative Code. Respondent be found guilty of violating Section 489.129(1)(m), Florida Statutes, by gross negligence and misconduct in the practice of contracting which caused monetary or other harm to licensee's customer and that an administrative fine be imposed in the amount of $1,500, and that his contractor's license be suspended for three (3) months. DONE AND RECOMMENDED this 31st day of July, 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 31st day of July, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1166 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: Paragraphs 1,2,3,4,5,6,7,8,9,10,11,4,15,16,17,18,19 (1st sentence), 20, 22,23,24,25,26,27 (in part), 29 are accepted, except as is irrelevant or subordinate. Paragraph 21, 28 are not supported by the evidence Paragraph 27 (in part is rejected as a conclusion of law. RESPONDENT'S PROPOSED FINDINGS: Paragraph 1 and 3 accepted and incorporated in findings Paragraph 2 rejected as against the weight of the evidence. Paragraphs 4 and 5 accepted in part as grounds for mitigation. COPIES FURNISHED: Elizabeth Alsobrook, Esquire Department of Professional Regulation The Northwood Centre Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0750 Carl F. Doyle 5 Stiles Lane Palm Harbor, Florida 34683 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32301 Kenneth E. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue The issues in this case are whether Respondent, Richard Lindley, committed the offenses alleged in a four-count Administrative Complaint filed with Petitioner, the Department of Business and Professional Regulation, on March 20, 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, Richard Lindley, is and has been at all times material hereto a certified building contractor in Florida, having been issued license number CB C060555. Mr. Lindley is also a Certified Roofing Contractor, having been issued license number CC C1326286. Both licenses were issued by the Construction Industry Licensing Board (hereinafter referred to as the “Board). At all times material, Mr. Lindley was the primary qualifying agent for HCL, Inc. (hereinafter referred to as “HCL”). HCL has a certificate of authority, QB number 20599. On or about June 8, 2005, Mr. Lindley, doing business as HCL, entered into a written contract (hereinafter referred to as the “Contract”) with Myra Love to re-roof her residence located at 765 Windermere Way, Palm Beach Gardens, Florida 33418 (hereinafter referred to as the “Subject Property”). Pursuant to the Contract, Ms. Love agreed to pay HCL a total of $8,125.00, as follows: $1,625.00 upon signing the Contract; $2,843.75 upon “roof dri in”; $2,843.75 upon “roof load”; and $812.50 upon “final inspection.” Consistent with the Contract, Ms. Love paid HCL $1,625.00 by check dated June 8, 2005, upon entering into the Contract. On June 9, 2005, Mr. Lindley applied for a building permit for the work to be performed pursuant to the Contract. The permit was issued, but expired for lack of final inspection. Ms. Love next paid HCL $2,843.75 by check dated October 20, 2005, upon being informed that the roof had been dried in. Despite having paid for the dry in of the roof, it continued to leak. After making the second payment to HCL in October 2005, no work was performed pursuant to the Contract and all efforts by Ms. Love to contact Mr. Lindley failed. On April 24, 2006, Ms. Love wrote to Mr. Lindley complaining about the condition of her roof and his lack of response to her telephone calls to him. This letter was delivered by certified mail, return receipt. Mr. Lindley did not respond to Ms. Love’s April 24, 2006, letter. No work was performed by Mr. Lindley through October 2006 on the Subject Property, at least a year after work on the Subject Property stopped. Therefore, Ms. Love sent a letter dated October 31, 2006, by certified mail, return receipt, to Mr. Lindley. Ms. Love stated in the letter that “since you abandoned the contract on 6/8/05, and failed to show up on the job, I consider the contract null and void because of your nonperformance. You and your employees are hereby notified to stay off my property.” On November 4, 2006, after informing Mr. Lindley that she considered the Contract null and void, Ms. Love contracted with Gold Coast Roofing to complete the re-roofing of the Subject Property. Ms. Love paid Gold Coast Roofing $14,900.00 for the completion of the re-roofing. Essentially, Gold Coast Roofing, due to the time that had expired since work was abandoned, had to essentially start over on the re-roofing of the Subject Property. The total investigative costs for this matter incurred by the Department, excluding costs associated with any attorney’s time, was $258.56.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered: Finding that Richard Lindley violated the provisions of Section 489.129(1)(j) and (m), Florida Statutes, as alleged in Counts II and IV of the Administrative Complaint; imposing a fine of $2,500.00 and placing Mr. Lindley’s licenses on probation for a period of four years conditioned upon his payment of the fines, restitution and the costs incurred by the Department, and any other conditions determined to be necessary by the Board, for the Count II violation; requiring that Mr. Lindley make restitution in the amount of $4,468.75 to Ms. Love; and requiring that Mr. Lindley pay the costs incurred by the Department in investigating and prosecuting this matter; and Dismissing Counts I and III of the Administrative Complaint. DONE AND ENTERED this 12th day of March, 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 12th day of March, 2009. COPIES FURNISHED: Lisa A. Comingore, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Richard H. Lindley Richard H. Lindley, d/b/a HCL, Inc. 9146 Arrowhead Drive Greenacres, Florida 33467-1060 Kyle Christopher, Esquire Department of Business & Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 G. 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
