Findings Of Fact In 1984 and for many years prior Petitioner held a Certificate of Qualification to bid on and be awarded contracts let by the Department. On April 10, 1984, Petitioner entered into a voluntary plea, and was convicted of a one-count criminal violation of Title 15, USC, Section 1, which is commonly known as "The Sherman Antitrust Act." The charge involved a public contract with the Florida Department of Transportation in which Petitioner received a complimentary bid from another contractor who was bidding on the same project which was awarded to Petitioner. This practice is commonly known as "bid rigging." The conviction took place in the U. S. Northern District Court of Florida. Petitioner would have submitted the same bid on this project without the benefit of the complimentary bid. 33 C.F.R, Part 16, provides for a maximum debarment on first conviction of 36 months by a federal agency. Petitioner was debarred by the Federal Highway Administration for only six (6) months based upon a review and determination of culpability of the Petitioner in the crime of which Petitioner was convicted. Immediately subsequent to December 17, 1984, Petitioner was declared acceptable for employment on highway projects which required approval or concurrence of the Federal Highway Administration. On June 18, 1984, Respondent revoked the Petitioner's Certificate of Qualification for a period of 36 months pursuant to Florida Statutes 337.165(2)(a). The only reason given for the revocation was the aforementioned conviction. With the exception of Petitioner, who has never had a decision rendered on a Petition for Reinstatement by Respondent, every contractor who has been debarred and/or had its Certificate of Qualification revoked by Respondent pursuant to Section 337.165, Florida Statutes, who has petitioned for reinstatement, has been reinstated by Respondent. Exhibit "A" hereto is a list of contractors who were debarred by Respondent and were reinstated. It was in the public interest to reinstate each of these contractors. It is in the public interest and the interest of the Respondent to build roads, build them at a good price, and have a competitive bidding system with integrity. Petitioner has promptly and voluntarily continued to pay its fine of $65,000 to the Federal Court. No payment of damages has ever been requested by the State as a result of the Petitioner's violation of state or federal antitrust laws. The Petitioner notified the Respondent within thirty (30) days after his conviction of the contract crime. Petitioner has the manpower, equipment, financial resources, and contracting experience to meet the Respondent's requirements in those areas for the purpose of a Certificate of Qualification. Howard H. Hewitt became affiliated with Square D Contracting Company in 1967 when he acquired a minority interest in the company. He subsequently increased that interest to 50 percent. In 1980 he acquired the remainder of the stock and changed the name of the company to Hewitt Contracting Co., Inc. In 1980 the Florida Attorney General's Office commenced an investigation of bid rigging by road contractors. In February 1983 the Attorney General's Office subpoenaed Hewitt to appear under their Civil Investigative Demand procedures and give evidence about his knowledge of bid rigging in Florida. He appeared and, on the advice of counsel, refused to give testimony claiming protection under the Fifth Amendment. By Court Order, Exhibit 8, dated June 24, 1983, Hewitt was directed to give testimony to the Florida Attorney General under grant of immunity from criminal prosecution and from any civil penalty as provided in s. 542.21(1), Florida Statutes (1981), as to those transactions about which he testifies. In compliance with that order he submitted documents and testified before assistant attorneys general three times. A grant of immunity by the Florida Attorney General's Office would not shield Hewitt from federal prosecution. Following the filing of charges by the Federal District Attorney, Hewitt provided testimony to federal officials several times regarding his knowledge of contract crimes, dropped his membership in the Florida Road Builders Association, started using a different hotel during his appearances in Tallahassee, and limited his contacts with fellow contractors to those necessary to conduct business. In a subsequent damage trial brought by the Attorney General's Office against Ezelle Construction Company, Hewitt advised both parties that he would testify for neither and, upon advice of counsel, would claim the Fifth Amendment if subpoenaed. Neither side subpoenaed Hewitt. The jury found Ezelle not liable for damages as claimed by the Attorney General. The only witness called by Respondent, Assistant Attorney General Bayard W. Heath, testified that the critical part of the bid rigging investigation in which he was involved occurred in 1983 at which time Hewitt asserted the Fifth Amendment privilege and caused a change in the investigation plans of the antitrust division. When Hewitt's counsel in January 1985 advised Heath that Hewitt would take the Fifth Amendment if subpoenaed to testify in the civil damages suit brought against Frank Ezelle, et al., he released Hewitt from the subpoena and did not attempt to enforce the subpoena. Petitioner presented one rebuttal witness, the attorney who represented Hewitt during the civil investigative demand procedures by the antitrust division of the Attorney General's Office. He testified that he was never advised by Heath or any other attorney from the Florida Antitrust Division that there was a critical period during which Hewitt's testimony was wanted, or that they were in any manner dissatisfied with the cooperation given by Hewitt after the grant of immunity. This witness also testified that an offer by Hewitt to settle any charges against him by an offer to pay damages to the state was flatly rejected by the antitrust division and that he was told that if Hewitt cooperated with the antitrust division they would decide after the fact what action they would take against petitioner. Prior to the revocation of its Certificate of Qualification in 1984, Square D and subsequently Hewitt Contracting Co., Inc., enjoyed a reputation as a competitive bidder who completed projects in a timely and professional manner. Two witnesses employed by Respondent in the area of Petitioner's headquarters opined that reinstatement of Petitioner's Certificate of Qualification would enhance the road building and construction work in Florida by the addition of Petitioner as an active participant in the bidding process. Subsequent to the conviction in the Federal Court Petitioner prepared a Code of Conduct for Employees of Hewitt Contracting Company (Exhibit 4) and distributed this to all personnel involved in preparing bids for Petitioner. Additionally, Howard H. Hewitt personally approves all bids submitted by Petitioner and supervises those preparing these bids. Howard H. Hewitt expressed remorse about the company's prior activity leading to the conviction and is committed to ensuring that it never occurs again.
Findings Of Fact Respondent is and at all material times has been a registered sheet metal contractor in the State of Florida. In fact, Respondent qualified in aluminum fabrication and erection. He holds license number RS 0025757. From 1984 through September, 1986, Respondent owned and operated Robinsons Aluminum Products, Inc. The company, which was located in Tampa, sold and erected aluminum screen enclosures. Respondent was the qualifying agent for the company. On August 19, 1986, Margaret Haden entered into a contract with Robinsons Aluminum Products, Inc., signed by Respondent as representative, for the construction of a screen room and slab, roof, and door for the room. The total contract price was $1575. Mrs. Haden paid a $550 deposit by check dated August 21, 1986, and the remainder was due on completion. Shortly after entering into the contract, Respondent prepared drawings and sketches for the job. He then submitted these drawings and sketches to the homeowners' association, whose approval was required before Respondent could obtain a building permit or begin the work. The homeowners' association did not immediately respond to the request for approval. After seven to ten days, Mrs. Haden called Respondent to find out why work had not begun. Respondent called the homeowners' association and learned that they were changing offices and everything was in disarray. Two to three weeks after the date of the contract, Respondent received verbal approval from the homeowners' association, but was unable to get written approval. At about this time, Mrs. Haden fired him, hired a new contractor, and demanded her $550 back. Respondent refused to return the deposit.
Recommendation In view of the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint. ENTERED this 20th day of May, 1988, in Tallahassee, Florida. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0573 Treatment Accorded Petitioner's Proposed Findings 1-4. Adopted in substance. Rejected as unnecessary. Rejected as unsupported by the evidence. 7-9. Rejected as legal argument. COPIES FURNISHED: David E. Bryant, Esquire Bryant, Reeves & Deer 220 East Madison Street Suite 530 Tampa, Florida 33602 Benito Tortora 2516 Gresham Drive Orlando, Florida 32807 Fred Seely Executive Director Construction Industry Licensing Post Office Box 2 Jacksonville, Florida 32201 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 3299-0750
Findings Of Fact Respondent is a registered residential contractor, having been issued license number RR 0032366. On March 29, 1979, Respondent, doing business as Bert Kinast Construction Co., entered into a contract with Gary and Harriet Nelson to construct a residence for the sum of $65,122. On April 15, 1979, Respondent signed an affidavit stating that all bills for materials and labor performed as of that date for the construction of the Nelson residence had been paid. Respondent signed the affidavit for the express purpose of obtaining a draw payment for construction performed and, as a result of the affidavit, did receive a draw payment of $9,765.30. At the time Respondent signed the affidavit, Panama Machinery & Supply Co. was owed $193.98 for material furnished to Respondent for the construction of the Nelson residence. On June 4, 1979, Respondent signed an affidavit stating that all bills for materials and labor performed as of that date for the construction of the Nelson residence had been paid. Respondent signed the affidavit for the purpose of receiving a draw payment for construction performed and, as a result of the affidavit, did receive a draw payment of $22,792.70. At the time Respondent signed the affidavit, he owed Panama Machinery & Supply Co. $1,249.94. During August, 1979, Respondent signed an affidavit stating that all bills for materials and labor performed for the construction of the Nelson residence had been paid. At the time Respondent signed the affidavit, certain materialman and subcontractors who furnished labor and material for the Nelson construction project were not paid, to wit: Panama Machinery & Supply Co., Coastal Insulation, West Florida Natural Gas Company, Culligan Water Services, Inc., Dixie Window Co. and Rachel's Lighting & Home Accessories. Respondent violated Section 1115.7 of the 1979 Edition of the Standard Building Code by not providing adequate head room in the stairwell at the Nelson residence. On or about August 3, 1979, Respondent entered into a contract with John C. and Barbara L. McHaffie to construct a residence for the sum of $105,475. On or about October 11, 1979, Respondent endorsed an instrument, specifically a check, acknowledging that all bills for labor and materials furnished for the McHaffie residence had been paid in full. Respondent endorsed the check to obtain payment for construction he had performed to that date. At the time Respondent signed the check containing that acknowledgment, certain material-men and subcontractors were unpaid, to wit: Buckley's Plumbing, Moore Concrete Products, William Smith and Panama Machinery & Supply Co. On or about November 20, 1979, Respondent endorsed an instrument, specifically a check, acknowledging that all bills for labor and materials furnished for the McHaffie residence had been paid in full. Also on November 20, 1979, Respondent signed an affidavit entitled "Partial Release of Lien on Progress Payment," stating that all bills for labor and materials furnished for the construction of the McHaffie residence were paid in full. Respondent endorsed the check and signed the affidavit in order to obtain a construction draw and did, as a result, obtain the construction draw for labor and materials used in the construction of the McHaffie residence. At the time that Respondent endorsed the check and signed the affidavit, certain materialmen and subcontractors were not paid, to wit: Parker Heating & Cooling, Culligan Water Services, Inc. , Moore Concrete Products, Overhead Door Company of Panama City, Inc., Coastal Insulation, Panama Machinery & Supply Co., G & H Building Materials and William Smith. Respondent received $50,937.50 which was to be used by Respondent to pay for materials and/or labor provided by various materialmen and/or subcontractors for the construction of the McHaffie residence. Certain materialmen and/or subcontractors were not paid from the monies received by Respondent for that purpose, to wit: Parker Heating & Cooling, Culligan Water Services, Inc., Buckley's Plumbing, Moore Concrete Products, Overhead Door Company of Panama City, Inc., Coastal Insulation, Hodges Lumber, Panama Machinery & Supply Co., G & H Building Materials and William Smith. On August 17, 1979, Respondent obtained permit number 5260 from Bay County, Florida, to perform the McHaffie construction. Respondent represented on the application for the above-referenced permit that his estimate of the building costs for the McHaffie residence was $57,250. Since the contract for the McHaffie residence was for $105,475, the price of the building permit would have been nearly $160 more since Bay County charges $3 permit cost per every $1,000 construction cost. During his construction of the McHaffie residence, Respondent violated Sections 1603 and 1706.8(1) of the 1979 Edition of the Standard Building Code in that the concrete floor in some areas was less than three and a half inches thick and caulking or flashing was not installed around the sliding glass doors. On or about November 25, 1981, Respondent was convicted of passing a worthless check, in violation of Section 832.05, Florida Statutes. Respondent's worthless check was given by Respondent to West Building Materials on or about March 25, 1981, as payment for building materials.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding the Respondent guilty of the allegations contained within the Administrative Complaint, suspending Respondent's license as a registered residential contractor; for a period of three years, imposing an administrative fine against Respondent in the amount of $1,000 and placing Respondent on probation for three years upon reinstatement of his license, with the terms and conditions thereof to be set by the Board. DONE and RECOMMENDED this 8th day of March, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 8th day of March, 1983. COPIES FURNISHED: John O. Williams, Esquire J. K. Linnan, Executive Director 547 North Monroe Street, Construction Industry Licensing Suite 204 Board Tallahassee, Florida 32301 Post Office Box 2 Jacksonville, Florida 32201 Mr. Berthold Kinast 1244 Airport Road Panama City, Florida 32401 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue for determination is whether the Intervenor was properly qualified to complete the construction project contemplated by Invitation to Bid No. DCF-03211120 (ITB)
Findings Of Fact The Department issued the ITB for a construction project, involving the re-roofing of Buildings 1 and 2 at 12195 Quail Roost Drive, Miami, Florida. The ITB was published in the Florida Administrative Weekly on December 24, 2008. The ITB outlined the terms and conditions for responsive bids. The ITB indicated, among other things, that all sealed bids were required to be submitted at 401 NW 2nd Avenue, S-714, Miami, Florida 33128, by January 15, 2009, at 2:00 p.m. Leo Development submitted its sealed bid at the location and by the date and time, in accordance with the ITB. FBM submitted its sealed bid by the date and time, but at a different location—the offices of Russell Partnership— contrary to the ITB. All other bidders submitted their sealed bids at the location and by the date and time, in accordance with the ITB. The Department’s architect of record on the project, Russell Partnership, and one of its principals, Terry Holt, performed the examination and bid tabulation. Mr. Holt, a registered architect for approximately 36 years, was very familiar with the procurement process and had extensive experience in determining whether a bidder was licensed by DBPR in order to complete the work contemplated for a project. The sealed bids submitted at 401 NW 2nd Avenue, S-714, Miami, Florida 33128, on or before January 15, 2009, at 2:00 p.m. were as follows: All Time Roofing, with a bid of $73,400.00; Taylor Roofing, with a bid of $59,708.00; Leo Development, with a bid of $54,109.00; John W. Hunter Enterprises, with a bid of $75,000.00; and Trintec Construction, with a bid of $75,500.00. 9. FBM’s bid was $71,600.00. Mr. Holt determined that Leo Development was the lowest bidder. FBM’s bid was not considered as being non-responsive. Additionally, Mr. Holt reviewed Leo Development’s website to ascertain as to whether any factors existed to disqualify Leo Development. The website failed to reveal any basis for Mr. Holt to disqualify Leo Development. Having discovered no basis to disqualify Leo Development as the lowest bidder, Mr. Holt submitted the list of bidders, with their bids, to Bill Bridges, the Department’s senior architect and a registered architect for approximately 25 years. Mr. Bridges was the person responsible for oversight of the ITB process. As Leo Development was the lowest bidder, Mr. Bridges reviewed the website of the Florida Department of State, Division of Corporations (Division of Corporations) in order to ensure that Leo Development was registered with the Division of Corporations. His review revealed that Leo Development was a fictitious name properly registered to Leo Premier Homes, LLC. Further, Mr. Bridges performed a license background check on Leo Development in order to ensure that Leo Development was licensed by DBPR. Mr. Bridges reviewed DBPR’s website, which revealed that Frank Anthony Leo was the owner of Leo Development and that the following licenses were issued by DBPR: Qualified Business Organization License #QB50182 to Leo Premier Homes, LLC, Leo Development; Certified Building Contractor License #CBC1254723 to Frank Anthony Leo, Leo Development; and Certified Roofing Contractor License #CCC1328402 to Frank Anthony Leo, Leo Development. Mr. Bridges confirmed and was satisfied that Leo Development was properly licensed to complete the work contemplated by the ITB. Mr. Bridges recommended that Leo Development be awarded the ITB as the lowest responsive bidder. FBM filed a written protest (Initial Protest) of “its exclusion from the bid tabulation.” The Department issued a Final Order Rejecting Bid Protest (Final Order) on February 19, 2009. The Final Order provided in pertinent part: FBM was determined non-responsive because the bid was not presented at the time and place specified in the ITB. . . FBM’s formal written protest alleges that FBM, on the date of the bid submission/bid opening, was misdirected as to the location of the bid opening. . . . FBM’s protest must be rejected because it does not state a claim that could entitle it to relief. . . In the context of a bid protest proceeding . . . the protest must adequately allege that the protestor could obtain the contract award or otherwise benefit should the protest be successful. . . Assuming all of FBM’s factual allegations are true and that those facts entitle FBM to have its bid considered, FBM would still be entitled to no relief. Had FBM’s bid been accepted, FBM would have been the third lowest of six bidders. FBM’s formal protest does not allege that the lowest and second lowest bids were deficient in any manner. FBM was not injured in fact, because it still would not have received the contract award. Accordingly, FBM’s formal written protest is REJECTED. No appeal was taken by FBM of the Department’s Final Order rejecting FBM’s Initial Protest. Among other findings, the Department’s Final Order on FBM’s Initial Protest found that, taking FBM’s allegations as true, FBM would have been the third lowest bidder. FBM would not have been the second lowest bidder. The parties agree that the holder of a certified building contractor’s license and a certified roofing contractor license would be permitted to complete the work contemplated by the ITB. Subsequent to the opening of the sealed bids, Leo Premier Homes, LLC, registered the fictitious name of Leo Roofing & Construction with the Division of Corporations. After the registration with the Division of Corporations and after the Department’s Final Order, licenses were issued by DBPR. As to the licenses issued, the record of the instant case provides2: Qualified Business Organization License #QB50182 to Leo Premier Homes, LLC, Leo Roofing & Construction; Certified Building Contractor License #CBC1254723 to Frank Anthony Leo, Leo Roofing & Construction; and Certified Roofing Contractor License #CCC1328402 to Frank Anthony Leo, Leo Roofing & Construction. The licenses reflect the same license numbers, as before, and only the fictitious name is different on each license to indicate Leo Roofing & Construction.3 The contract for the ITB was entered into between the Department and Leo Development. In these proceedings, the Department incurred costs in the amount of $1,311.05.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order dismissing FBM General Contracting Corporation’s Protest and awarding costs in the amount of $1,311.05 to the Department of Children and Family Services. DONE AND ENTERED this 21st day of August 2009, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 21st day of August, 2009.
Findings Of Fact The Respondent, Richard M. Woodley has two inactive contracting licenses numbered CB CA 17970 and CB CO 17970, and was so licensed in 1986. The Respondent's license CB CA 17970 qualified "Woodley Builders, Inc." with the Florida Construction Industry Licensing Board. At the time of the hearing, the Respondent was no longer in the construction contracting business as a licensed contractor. With respect to case number 87-2809, on December 15, 1985, the Respondent, on behalf of Woodley Builders, Inc., entered into a contract with Catherine M. Richardson and Jonathan P. Richardson to build a residence in or near Orlando, Florida. The contract price was $90,000, with $20,000 attributable to the land. The contract specified that payments would be made to Woodley Builders, Inc. "in accordance with the disbursement schedule set forth by the construction lender." P. Ex. 1, paragraph 7. Woodley Builders, Inc. also agreed in the contract to furnish to the Richardsons lien waivers as required by the construction lender for disbursements. The construction lender disbursed the following amounts on the indicated dates: $10,200 March 17, 1986 $10,200 March 19, 1986 $17,000 March 27, 1986 $17,000 April 24, 1986 To induce these disbursements, a total of $54,400, the Respondent signed lien waivers stating that all bills for labor and materials used had been paid in full. P. Ex. 5. At the time of signing, the Respondent told the construction lender that he had paid all bills due to that time, but had not paid bills not yet presented. T. 89. Thus, the lien waivers were intended to be a certification of the partial completion and payment for the work billed to the date of the waiver, and a promise to pay other bills for work already completed as such bills were presented. Six claims of liens were filed by subcontractors. The Richardsons hired a lawyer, and the lawyer was able to defend against two of the liens for failure to properly comply with procedures for mechanic's liens. Four liens for the following amounts and for work beginning on the dates indicated ultimately had to be satisfied by the Richardsons: $ 2,851.45 March 19, 1986 $13,462.34 March 7, 1986 $ 1,944.57 April 8, 1986 $ 785.01 April 9, 1986 These liens were for work commenced before the last lien waiver was signed on April 24, 1986. Thus, the Respondent failed to comply with the oral representations he made at the time of signing the lien waivers. The Richardsons were forced to execute a second mortgage in excess of $17,000 to pay off the unpaid liens. The Richardsons terminated the contract with Woodley Builders, Inc. when subcontractors quit working for lack of payment by Woodley Builders, Inc. Some money was obtained from family loans. It cost the Richardsons about $30,000 to have the house finished, which has added about $325 per month to their mortgage obligations. The Respondent and Woodley Builders, Inc. have not paid anything on these liens. Woodley Builders, Inc. filed bankruptcy. The Richardsons sued the Respondent as trustee for Woodley Builders, Inc. and obtained a default judgment for $149,839, which was a judgment of $32,380 in compensatory damages, trebled, plus costs, interest, and attorney's fees. With respect to case number 87-2810, on June 11, 1986, Woodley Builders, Inc. entered into a contract with Tom Jamieson to construct an addition to his residence in Orlando, Florida. The price of the work was $18,500. The contract specified that the price was a cash price, and that draws were to be made according to a schedule stated in the contract. Mr. Jamieson paid to Woodley Builders, Inc. about $11,700 of the contract price. At some time before completion of the addition, the owner, Mr. Jamieson, evidently became dissatisfied with the Respondent's work. Mr. Jamieson was given the Respondent's copy of the contract and refused to return it to the Respondent. Mr. Jamieson then owed the Respondent a draw of $3500, but refused to give it to him, and refused to have it put in escrow for the payment of subcontractors. The date that this occurred is not in evidence. T. 35-36, 39. Since Mr. Jamieson had taken back the contract, the Respondent thought that he (the Respondent) no longer had any legal proof of the contract (either scope of work or amount due), and thus had no contract to complete the work. He also did not receive the draw that was due. The Respondent thus ceased work on the addition for fear that he would not be paid without a copy of his contract. T. 36-37. The Respondent offered to complete the work. T. 51. The drywall contractor, Rick's Drywall, Inc., filed a lien for $465 for work done from August 12, 1986 and August 20, 1986. The Respondent would have paid this lien had Mr. Jamieson not terminated the contract and refused to give the Respondent a draw still due of $3500. T. 49-50. There may be a claim for unpaid electrical work in July, 1986, see P. Ex. 15, but it is impossible to tell if this occurred before or after Mr. Jamieson terminated the contract, or whether the Respondent had received draw money that should have paid this claim. The only evidence is that the Respondent had an agreement with the electrical subcontractor to pay that subcontractor at the time of the final draw, a draw never received as discussed above. T. 53. P. Ex. 11 is insufficient evidence that there were unpaid claims for roof trusses. Moreover, it cannot be determined whether the Respondent received a draw before contract termination which should have been used to pay for roof trusses. The Respondent had been a contractor for eight years before he began to have financial difficulties resulting in the problems with the Richardson's residence. There is no evidence of any prior discipline.
Recommendation It is recommended that the Construction Industry Licensing Board enter its final order finding in case number 87-2809 that the Respondent, Richard M. Woodley, violated sections 489.129(1)(m), 489.129(1)(j), and 489.119, Fla. Stat. (1986), misconduct in contracting by diversion of funds, and failure to supervise as a qualifying agent, and in case number 87-2810, dismissing the administrative complaint for failure of proof by clear and convincing evidence. It is further recommended for the violation set forth above that the license of the Respondent be suspended for one year. DONE and ENTERED this 22nd day of July, 1988. WILLIAM C. SHERRILL, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1988. COPIES FURNISHED: Richard M. Woodley 2521 Tuscaloosa Trail Maitland, Florida 32751 David Bryant, Esquire 1107 East Jackson, Suite 104 Tampa, Florida 33602 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Nonroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
Findings Of Fact Julio Batista is a licensed general contractor holding license No. CG C001094 issued by the Florida Construction Industry Licensing Board to Julio G. Batista, d/b/a Goba Construction Company. Goba Construction Company became the licensed general contractor on a construction project known as Solimar Condominiums for which the building permit identified as Exhibit 2 was obtained. Julio Batista took over the construction of the Solimar Apartments on June 12, 1973, several months after the original permit was obtained. Coastal Mortgage Company and Goba Construction Company entered into a note and mortgage for a building loan of $1,100,000 on or about June 26, 1973. Notice of this commitment by Coastal Mortgage was given to Batista by letter on June 4, 1973. In June, 1975, Coastal Mortgage Company failed financially, and was unable to provide the balance of the financing originally obligated to Goba Construction Company. Goba Construction Company commenced construction on the Solimar Condominiums after June 12, 1973 and worked on the project from June, 1973 until early 1975. In early 1975, active construction on the project slowed to all but a halt. During this time the construction project was inspected by Sarasota building officials who pointed out and requested correction of conditions which were contrary to the building code of Sarasota and to the plans and drawings submitted to the building officials for construction of the building. Copies of the ordinance adopting the Southern Standard Building as the official building code of Sarasota and a copy of the Southern Standard Building Code were submitted as Exhibit 1 and Exhibit 1A, late filed. Testimony and evidence was introduced that steel reinforcing rods used within reinforced concrete were in some instances not completely covered. It was further demonstrated that certain aspects of the construction as built did not conform with the plans originally submitted for the project. Specifically, it was determined that the balconies were flush with the interior floors instead of having a short step down to the balcony. In addition, the stairs in the stairwells were not constructed plumb, level, with treads of the correct width and height, and with treads encroaching upon the landings. Julio Batista was made specifically aware of the violations and advised to have them corrected by the building authorities of Sarasota. Towards the latter portion of 1975, Coastal Mortgage sued Goba Construction Company and Batista in a foreclosure action on the Solimar Condominiums project. Goba Construction Company and Batista counter-sued seeking damages as the result of Coastal's breach of the contract for financing of the project. These suits were eventually settled by Goba Construction Company and Coastal Mortgage, with Goba Construction and Batista being released from all obligations on the mortgage and note, and paid $15,000 by Coastal Mortgage. As a part of the settlement, Goba and Batista conveyed any interest which they had in the Solimar project to Coastal Mortgage. Julio Batista testified stating that he is willing and has been willing to correct the deficiencies existing in the Solimar Condominiums; however, that the failure of Coastal Mortgage, through no fault of his, prevented him from obtaining the financing necessary to complete the project to include correcting the deficiencies. Prior to the commencement of the proceedings in this case, the building authorities of Sarasota had ordered a halt to all further construction until the deficiencies were corrected. Until the officials ordered work ceased, efforts were continuing to complete the project and to complete the deficiencies existing, although this work was at a very slow pace.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Florida Construction Industry Licensing Board take no action against the license of Julio G. Batista as a general contractor. DONE AND ORDERED this 29th day of August, 1977, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Telephone: (904) 488-9675 COPIES FURNISHED: Barry Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 John Patterson, Esquire Livingston & Patterson, P.A. 46 North Washington Boulevard Sarasota, Florida 33577 Mr. J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211
The Issue The issue in this case is whether Respondent, Wayne H. Wagie, committed the offenses alleged in an Administrative Complaint filed with Petitioner, the Department of Business and Professional Regulation, on August 11, 2004, and, if so, what penalty should be imposed.
Findings Of Fact The Parties. 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 Ch. 689, Fla. Stat (2005). Respondent, Wayne H. Wagie, is and has been at all times material hereto a licensed certified general contractor in Florida. Mr. Wagie was originally licensed as a certified general contractor on or about December 28, 1978, license number CGC 13331. At all times material hereto, the status of his license has been "Current, Active." At all times material, Mr. Wagie was the qualifying agent for Unified Construction Technologies, Inc (hereinafter referred to as "Unified Construction"), a Florida corporation. Unified Construction did not have a certificate of authority as a qualified business organization. The Department has jurisdiction over Mr. Wagie's license. The Spiegel Brothers. At the times material to this matter, Mr. Wagie engaged in a business arrangement with two brothers, Abraham and Yosef Spiegel (hereinafter referred to jointly as the "Spiegel Brothers), whereby Mr. Wagie allowed the Spiegel Brothers to use his general contractor's license number and qualifying number to pull permits for a company through which the Spiegel Brothers conducted construction business. The Spiegel Brothers' construction company was Mega Construction Group, Inc., d/b/a Mega Construction Group, Inc. (hereinafter referred to as "Mega Construction"). Pursuant to their agreement, Mega Construction, through the Spiegel Brothers, was to handle all aspects of any construction contracts the Spiegel Brothers were able to enter into, including negotiating the contract, handling funds received from customers, and performing all necessary work. The only function not to be carried out by the Spiegel Brothers or Mega Construction was to actually obtain the necessary building permits; that was Mr. Wagie's responsibility. In exchange for his services, Mr. Wagie was to receive a percentage of the sales price, with half paid upon execution of the contract and half after completion of the work. Neither of the Spiegel Brothers was a licensed general contractor in Florida. Nor was Mega Construction certified as a contractor qualified to do construction business in Florida. Mr. Wagie was aware of these facts. The Sicre Contract. In 2001, Candida Sicre owned and resided at a house located at 650 82nd Street, Miami Beach, Florida. Ms. Sicre was interested in adding a handicap accessible bathroom to her home and, when she received a flyer in the mail advertising Mega Construction, she contacted the Spiegel Brothers. On August 13, 2001, Ms. Sicre entered into a written contract with Mega Construction (hereinafter referred to as the "Sicre Contract"). Pursuant to the Sicre Contract, Mega Construction agreed to construct a new handicap-accessible bathroom for which Ms. Sicre agreed to pay a total of $15,762.00. As part of their contract, it was agreed that an air-conditioning unit would be relocated. While the relocation of the air-conditioning unit is listed as "1" and the construction of the new bathroom is listed as "2" in the Sicre Contract, in fact the relocation of the air-conditioning unit was a necessary component of the construction of the new bathroom, for the new bathroom was to be constructed from where the air-conditioning unit was to be relocated. Ms. Sicre paid a total of $7,762.00 on the agreed Sicre Contract price. On September 17, 2001, Mr. Wagie, pursuant to his agreement with the Spiegel Brothers, signed a building permit application required to complete the Sicre Contract. That application was filed with the City of Miami Beach building department on or about January 4, 2002. On the permit application, Unified Construction was listed as the "Company," Mr. Wagie was listed as "Qualifier," and Mr. Wagie's license number was listed as the "License No." under "Contractor Information". The permit application was approved by the City of Miami Beach on or about May 31, 2002, and permit number KB0201178 was issued. Pursuant to an agreement between the Spiegel Brothers and Ms. Sicre, the starting date for the Sicre Contract was postponed to August 15, 2002, just over a year after it had been entered into. At some time after the Sicre Contract was entered into, the air-conditioning unit was relocated as specified in the contract. Except for the relocation of the air-conditioning unit, no further work specified under the Sicre Contract was performed. The actual construction of the new bathroom was never started. Eventually, Ms. Sicre was told that the work would not be performed because Mega Construction was going to declare bankruptcy. After being told that the new bathroom would not be completed, Ms. Sicre sold her house. She attempted, however, to obtain a refund of some of the $7,762.00 she had paid Mega Construction. Eventually, Ms. Sicre learned of Mr. Wagie's involvement with the Spiegel Brothers and, through a series of negotiations, it was agreed that she would receive a refund of $2,000.00 through Mr. Wagie from the Spiegel Brothers. She was eventually given two $1,000.00 checks in furtherance of this agreement, but the checks ultimately "bounced." The only work performed on the Sicre Contract by Mega Construction was the drawing of a building permit and the relocation of the air-conditioning unit. For this work, Ms. Sicre paid a total of $7,762.00. Ultimately, Mega Construction, although beginning the project by relocating the air-conditioning unit, abandoned the project without its completion. Prior Disciplinary Action. On July 15, 1996, the Department filed a Final Order reflecting that a settlement stipulation had been approved by the Construction Industry Licensing Board (hereinafter referred to as the "Board"), pursuant to which Mr. Wagie agreed to pay an administrative fine in the amount of $250.00, plus investigative and legal costs in the amount of $368.30 to resolve charges against his license, which Mr. Wagie denied. The Department's Costs of Investigation and Prosecution. The Department has incurred $597.69 in the investigation and prosecution of this matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department: Finding that Wayne H. Wagie violated Section 489.129(1)(i), Florida Statutes (2000), as alleged in Counts I and III of the Administrative Complaint; and violated Section 489.129(1)(d), Florida Statutes (2000), as alleged in Count II of the Administrative Complaint; Dismissing Counts IV and V of the Administrative Complaint; and Imposing an administrative fine in the total amount of $3,250.00; requiring that Mr. Wagie pay Ms. Sicre $2,000.00 in restitution; requiring that Mr. Wagie pay $597.69 as the costs of the investigation and prosecution of this matter; and that his license be suspended for a period of two years. DONE AND ENTERED this 31st day of August, 2005, in Tallahassee, Leon County, Florida. S 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 31st day of August, 2005. COPIES FURNISHED: Theodore R. Gay Assistant General Counsel Department of Business and Professional Regulation 8685 Northwest 53rd Terrace, Suite 100 Miami, Florida 33166 Wayne H. Wagie 220 Northeast 45th Street Miami, Florida 33137 Tim Vaccaro, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
