The Issue The issue in this proceeding is whether Willie Daniels violated sections 489.129(1)(d) and (e) F.S., as alleged in the administrative complaint, by willful violation of a local building code and aiding and abetting an unlicensed person to evade any provision of Chapter 489. At the hearing the material facts were uncontroverted.
Findings Of Fact Willie F. Daniels is now, and was at all times relevant, licensed as a roofing contractor by the Florida Construction Industry Licensing Board. He holds license #RC 0027954 and does business as "Daniels Roofing', a sole proprietorship. He has been doing roofing in the Orlando, Florida area since 1954. Willie Daniels first met Thomas Dahlman when Dahlman came to his house trying to sell windows. Dahlman told him that he did all kinds of work, including windows, roofing and painting. Later Dahlman called him and said he had a roofing job that he wanted Daniels to do and that he would take him out to the house. The house belonged to Chris Correa and was located at 4421 Sebastian Way, in Orlando. Dahlman bought the materials for the job and Willie Daniels provided a day and a half labor on the roof. He was paid approximately $600.00 by Dahlman. Chris Correa was initially contacted by an agent for Thomas Dahlman who was trying to sell solar heating devices. When she told him she really needed a new roof, he said his boss could arrange that. Dahlman arranged for her loan to pay for the roof and arranged for the labor to be done by Willie Daniels. Chris Correa paid Thomas Dahlman $3,000 for the roof. About three days after the roof was completed, on February 18, 1986, she signed a contract for the roof work with Dahlman Enterprises, Inc. The contract is signed Thomas Dahlman and by Ms. Correa. Willie Daniels was not a party to the contract. The City of Orlando has adopted the Standard Building Code, including the following provision relating to permit applications: Section 105 - Application for Permit - When Required Any owner, authorized agent, or contractor who desires to construct, enlarge, alter, repair, move, demolish, or change the occupancy of a building or structure, ... or to cause any such work to be done, shall first make application to the Building Official and obtain the required permit therefor. * * * No permit was applied for or obtained for the roofing job on Chris Correa's house. Willie Daniels assumed Thomas Dahlman was a licensed contractor because Dahlman told him he was in the business of doing roofing, painting, installing windows and similar work. He did not ask Dahlman if he was licensed. Dalhman was, in fact, not a licensed contractor.
The Issue The ultimate issues to be resolved in this proceeding are whether the Respondent has committed violations of statutes relating to licensed contractors and, if so, the appropriate penalty that should be imposed. The Administrative Complaint is in six counts. The first five counts basically allege that the Respondent aided and abetted unlicensed persons to practice contracting by allowing these persons to use his license in order to obtain building permits to do roofing work. In Count Six, it is charged that the Respondent has engaged in continuing acts of misconduct. At the hearing, the Department dismissed allegations that the Respondent violated provisions of local building codes. The Respondent denies all of the allegations.
Findings Of Fact The Respondent has been certified by the Construction Industry Licensing Board as a general contractor (License No. CG C011050) and as a roofing contractor (License No. CC C001794). The Respondent also holds a real estate broker's license and a mortgage broker's license. The Respondent has developed apartment complexes, and housing and business developments. The Respondent is not presently active in roofing contracting, but he was during the period from 1979 through 1981. Be has been in business in Florida since 1967. The Respondent had qualified Kirk, Inc., with the Construction Industry Licensing Board to do general and roofing contracting. The Respondent is president of Kirk, Inc. The Respondent did not qualify any other entities to do contracting work under either of his licenses during the times material to this proceeding. For approximately eighteen months during 1979 and 1980, the Respondent had a business relationship with Edward G. Tindall. Tindall had worked for the Respondent'5 father and was having financial difficulties. Tindall had some experience in the roofing business, and the Respondent sought to use Tindall to manage Respondent's roofing contracting business. Tindall was to be paid a supervisory rate plus other fees. Tindall was to solicit roofing jobs; enter into contracts with customers on behalf of Kirk, Inc.; and perform the roofing jobs. Tindall was not licensed in any capacity by the Construction Industry Licensing Board, and he was therefore not authorized to obtain building permits from the City of Titusville, where most of the jobs were located. Tindall did not perform work in accordance with the agreement with Respondent. Instead, Tindall had stationery and business cards printed which were labeled "Tindall Roofing Company, a division of Kirk, Inc." When Tindall got a roofing job, he did not reduce it to contract on a Kirk, Inc., form as he was supposed to do. Rather, he operated on the basis of oral contracts. He advised personnel at Kirk, Inc., who were qualified to obtain building permits, that he had obtained the jobs, and building permits were secured. Thereafter, Tindall would typically tell Kirk, Inc., employees that the job had fallen through. In the meantime, Tindall completed the work, often using Kirk, Inc., equipment, supplies and workers, and kept the proceeds for himself. The Respondent did not become aware of Tindall's activities until sometime late in 1980. When he learned what Tindall was doing, the Respondent fired Tindall and another employee. In August, 1979, Tindall contracted to repair a roof at the Florida Power and Light Building in Titusville, Florida. Be advised Kirk, Inc., of the contract, and the qualified person at Kirk, Inc., obtained a permit from the City of Titusville to complete the work. Tindall then advised that the project had been cancelled and completed the work himself. The roof was not completed in accordance with Tindall's agreement with Florida Power and Light and was constructed in a manner contrary to the City of Titusville building code. The Respondent was unaware that this had occurred until sometime late in 1980. During September, 1979, Tindall contracted with Donald Klongerbo to reroof Klongerbo's home in Titusville, Florida. Tindall obtained a building permit by utilizing Kirk, Inc., employees, then advised that the contract had fallen through. Tindall then completed the work himself. The Respondent did not know that this had occurred until sometime late in 1980. During approximately October, 1979, Tindall contracted to repair a roof on a warehouse in Titusville, Florida, that was owned by B. S. Brown. The Respondent authorized Tindall to obtain a building permit from the City of Titusville for this one project in accordance with the City of Titusville code. Tindall then advised that the contract had fallen through and completed the work himself. The work was completed in a substandard manner, and the roof leaked. The Respondent did not learn that this had occurred until sometime late in 1980. He endeavored to repair the poor work that Tindall had performed. During June, 1980, Tindall contracted to repair the roof on a residence owned by Gwen O. Mills in Titusville, Florida. Tindall obtained a building permit from the City of Titusville by utilizing personnel at Kirk, Inc. After obtaining the permit, Tindall advised that the contract had fallen through and completed the work himself. The work was completed in a substandard manner and eventually needed to be completely redone. Respondent did not learn of this incident until late in 1980. During the investigation of this matter, Tindall gave a written statement which was reduced to writing and which he signed. The statement supports the version of the facts alleged in the Administrative Complaint. At the final hearing, Tindall gave testimony consistent with that version of the facts. On two other occasions, Tindall signed affidavits to a totally different effect. In one of them, he admitted that he obtained the building permits by making untrue statements to the Respondent and other personnel at Kirk, Inc. At the hearing, Tindall gave testimony which supports this version of the facts. In evaluating Tindall's testimony, due regard has been given to the conflicting affidavits that he signed, to the conflicting testimony that he gave at the hearing, and to his demeanor as a witness. It has been concluded that his testimony is utterly incredible and not worthy of being believed. During May, 1981, Vernon Crosby, who did business as Crosby Painting and Decorating, was performing work at an apartment complex owned by Hewitt Properties, Inc. The apartments are located in Titusville, Florida. Roofing repairs were necessary for several of the buildings. Crosby talked with David Lawhorn, an experienced roofing worker, about the project and, based on that discussion, gave an estimate of the expense to Hewitt Properties. Crosby was asked to perform the work. He hired Lawhorn to accomplish it. Neither Crosby nor Lawhorn is a licensed contractor, and neither was authorized to obtain building permits from the City of Titusville. Lawhorn commenced work without obtaining a permit. Upon learning that work was being undertaken without a permit, personnel of the City of Titusville promptly and properly stopped the work from proceeding further. After work was stopped by the City, Crosby contacted the Respondent about the problem. The Respondent agreed to obtain a building permit for the work. The permit was obtained, and Lawhorn completed the work as he had agreed with Crosby to do. The Respondent was never in contact with Lawhorn about this project. Lawhorn's work was not supervised either by the Respondent or by Crosby. The only input that the Respondent gave to the project was obtaining the building permit. Due to ambiguities in the testimony, it is impossible to glean how much the Respondent was paid, but it is apparent that he was compensated and that he did nothing to earn compensation except obtain a building permit. The Respondent testified that he considered Crosby the agent of the apartment owner. Be testified that he viewed himself as the contractor and Crosby as his super visor. He testified that Crosby was to supervise Lawhorn's work on Respondent's behalf. This version of the relationship has not been credited because it is not supported by she testimony of either Crosby or Lawhorn. Crosby and the Respondent had had business dealings in the past, and it appears that the Respondent obtained the permit in part as a helpful gesture to Crosby. It does not appear that the Respondent ever anticipated performing a roofing job at the apartment far complex. His motivation, instead, was to obtain a building permit to allow persons who could not otherwise obtain a permit (Crosby and Lawhorn) to perform the work. There is insufficient evidence to support a finding that the Respondent has been guilty of any continuing course of misconduct in the practice of contracting. The only misconduct that has been established is in connection with the obtaining of a single building permit.
The Issue The issues in this case are those promoted by the Administrative Complaint by Department of Professional Regulation against Respondent accusing him of violations of Chapter 489, Florida Statutes, pertaining to work done for Mary Scott. This circumstance is more particularly discussed in findings of fact and conclusions of law.
Findings Of Fact Respondent is a registered building contractor and a registered roofing contractor, having been issued license No. RB 0009302 and RC 0032535. Said licenses were in effect as of the date of the hearing in this matter. Both of Respondent's licenses had become delinquent in July 1981 and were not renewed until June 1983. On or about November 11, 1982, Mary Scott entered into a contract with Henry Hodge, doing business as "Direct Interiors," pursuant to which Hodge was to construct an addition to the Scott residence located at 1439 West 2nd Street, Jacksonville, Florida. The contract price was $6,848.00. On November 24, 1982, Respondent used his registered building contractor's license to help obtain building permit No. 10047 from the City of Jacksonville, Building and Zoning Department, for the construction of the addition to the Scott residence under her contract with Henry Hodge. At no time material hereto was Henry Hodge or "Direct Interiors" licensed to engage in the business of contracting in the State of Florida. At no time did the Respondent qualify "Direct Interiors" to engage in the business of contracting. Respondent helped obtain the permit at Hodge's request, as a favor to Hodge. Respondent has never been partners or otherwise done business with Hodge. Respondent became casually acquainted with Hodge when they both were working on the same construction site, unrelated to this case. Respondent helped Hodge obtain the permit as follows: Hodge approached Respondent and asked Respondent to obtain the permit for the Scott jot. Respondent told Hodge to bring Respondent a building permit application form. Hodge did this, and Respondent then signed the application while it was still blank. Hodge thereafter filled in the details, took the application in to the building department, and received the building permit. Respondent had no knowledge of the size or other details of the work on the Scott job, other that it was a room addition. At not time while Henry Hodge was working on the Scott job did Respondent visit the job site or in any way supervise the work. Henry Hodge, as "Direct Interiors," completed construction of the addition and received $5,924.00 in payment from Mary Scott. The contract between Hodge and Scott called for building a room addition and for reroofing certain portions of the roof of the existing structure. After Hodge completed the job, portions of the reroofed area which had not leaked before Hodge reroofed it, began to leak. Mary Scott was not able to obtain satisfactory performance from Hodge concerning this problem. She then contacted the building department and found that the building permit was obtained upon Respondent's license. Until that point, she was unaware of Respondent. Subsequently, Respondent corrected the work done by Hodge.
Recommendation Upon consideration of the facts found, conclusions of law and matters in mitigation and aggravation, it is RECOMMENDED that a final order be entered imposing a $500.00 fine for the violations found. DONE AND ENTERED this 5th day of March 1984 in Tallahassee, Florida. CHARLES C. ADAMS 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 5th day of March 1984. COPIES FURNISHED: Harold M. Braxton, Esquire 45 Southwest 36th Court Miami, Florida 33135 Mr. Gilbert Sykes 4862 Soutel Drive Jacksonville, Florida 32208 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact The foregoing findings of fact 1, 2, and 3 are incorporated herein by reference as if fully set forth anew. On January 8, 1987, the Respondent was found guilty of violating Sections 489.129(2), 489.129(3), and 489.129(1)(g) Florida Statutes, by the Construction Industry Licensing Board in DPR Case No. 60987, DOAH Case No. 88- 0002. The Respondent was not present at that Board meeting. He asserted this was due to lack of timely notice of the Board's meeting. Respondent was fined $1,000 by the Final Order of the aforementioned Board filed/served on February 20, 1987. The Respondent has failed to pay the fine. Respondent has not appealed the final order or fine. Respondent expressed himself at formal hearing as intending never to pay the lawfully imposed fine.
Conclusions The foregoing Conclusion of Law 14 is adopted and incorporated herein as if fully set forth anew. Respondent is charged with gross negligence, incompetence or misconduct in the practice of contracting pursuant to Section 489.129(1)(m), Florida Statutes, for failure to pay his $1,000 fine pursuant to the Board's February 20, 1987 final order. However, Petitioner has cited no statutory or rule authority which labels a licensee's refusal to pay a fine or obey a final order of the Construction Industry Licensing Board as gross negligence, incompetence, or misconduct in the practice of contracting. (Emphasis supplied, see definition of "contracting" at Section 489.105, Florida Statutes). Without such authority, the factual allegations of the administrative complaint, although proved, support no conclusion that a statute or rule has been violated. Petitioner's recourse lies not in this forum but in enforcement, execution, and collection actions in Circuit court.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The Construction Industry Licensing Board enter its final order dismissing the charge of a violation of Section 489.129(1)(m). DONE and RECOMMENDED this 30th day of September, 1988, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 30th day of September, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 88-0275, 88-0732 The following constitute rulings pursuant to Section 120.59(2), Florida Statutes, upon the parties' respective Proposed Findings of Fact (PFOF). DOAH CASE NO. 88-0275 Petitioner's PFOF have been accepted with certain modifications for greater clarity and to conform to the record as a whole. Respondent's Closing Statement is accepted in part in FOF 9. The remainder is rejected as mere argument or as based upon hearsay not properly in the record. DOAH CASE NO. 88-0732 Petitioner's PFOF have been accepted with certain modifications for greater clarity and to conform to the record as a whole. Respondent's Closing Statement is mere legal argument addressing the underlying facts of the previous final order finding Respondent guilty of certain violations and assessing a $1,000 fine. Absent a timely appeal, these matters are immaterial and rejected. These proposals are also rejected as mere argument. COPIES FURNISHED: Fred Seely, Executive Director Construction industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 G. W. Harrell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 David L. Norris 3144 Northwest 39th Court Lauderdale Lakes, Florida 33309 Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Respondent committed the violations alleged in the administrative complaint; and, if so, what penalty should be imposed.
Findings Of Fact At all times material to the allegations of this complaint, the Respondent, Joseph Marcelin, was a certified residential contractor, license number CR C028352. Respondent’s place of business and residence are in Dade County, Florida. The Petitioner is the state agency charged with the responsibility of regulating and disciplining licensed contractors. On May 14, 1988, the Construction Industry Licensing Board entered a final order approving a settlement stipulation regarding Case no. 74860 against this Respondent. This final order directed Respondent to adhere to and abide by all of the terms and conditions of the stipulation. The stipulation required the Respondent to not violate the provisions in Chapters 455 and 489, Florida Statutes, in the future; required Respondent to honor a settlement in a civil matter; required Respondent to pay a fine in the amount of $500.00; suspended Respondent’s license for thirty days; and required Respondent to affirmatively demonstrate compliance with the stipulation in order to have his license reinstated. A second final order entered by the Board on May 14, 1988, approved a settlement stipulation regarding Case no. 77499. This final order also directed Respondent to comply with the stipulation applicable to that case. In Case no. 77499, the stipulation required Respondent to abide by a civil settlement; imposed a fine in the amount of $500.00; suspended Respondent’s license for thirty days; and placed the burden on Respondent to demonstrate he had met the terms of the stipulation. As to both cases referenced above, Respondent admitted the allegations of the administrative complaints which, in pertinent part, claimed Respondent had assisted an unlicensed person or entity to perform contracting services thereby aiding and abetting an unlicensed person to evade the provisions of Chapter 489, Florida Statutes. On April 2, 1993, Respondent executed a certification change of status form which was submitted to the Department. Such form was completed for the purpose of qualifying as an individual for licensure and sought to reinstate a delinquent license or change from inactive to active. In the course of completing the change of status form Respondent was required to answer a series of questions by checking either the “yes” or “no” column. In response to the question as to whether Respondent had “been charged with or convicted of acting as a contractor without a license, or if licensed as a contractor in this state or any other state, had a disciplinary action (including probation, fine or reprimand) against such license by a state, county or municipality?,” he answered “no.” Such answer was false. Further such answer was made under with the following affirmation: I affirm that these statements are true and correct and I recognize that providing false information may result in a FINE, SUSPENSION, OR REVOCATION of my contractor’s license. [Emphasis in original.] Thereafter, the Department notified the Respondent that his license would not be issued as he had failed to demonstrate satisfaction of a civil judgment and had not submitted an explanation of the disciplinary action from 1988. Respondent eventually resolved issues of licensure with the Department and, on September 15, 1993, was authorized to practice contracting. Prior to his license being reinstated, Respondent performed the following: on April 7, 1993, Respondent obtained a building permit for construction work at the home of Eduardo Bovea. This permit, no. 93181501, indicated Respondent as the contractor of record for the project. On the permit application Respondent represented himself as the licensed building contractor for the Bovea project to the Metropolitan Dade County building and zoning department. Respondent did not have a contract with Bovea for the construction work to be performed on the Bovea home. In fact, the contract was between Bovea and Lou Greene Construction. The Boveas paid monies to Rodney Salnave, who claimed to be a representative for Lou Greene Construction. Rodney Salnave was not Respondent’s employee, and was not licensed as a contractor. The Respondent did not talk to the Boveas regarding the contract, the scope of the work to be done, or the contract price for the work. All discussions regarding the work at their home (and payments for same) were between Rodney Salnave and the Boveas. The permit for the Bovea project represented the amount of the work to be $2,000.00. In fact, the contract price for the work was $4,500.00. Respondent misrepresented the value of the work for the Bovea project. As of September 26, 1993, Respondent admitted he was involved with seventeen contracting jobs. Just eleven days after having his license reinstated, and while being employed in a full-time (8:00 a.m. to 5:00 p.m.) job with Dade County, Respondent had contracting responsibility for seventeen jobs. In reality, Respondent had made a deal with an unlicensed person, Denis Joseph, to pull permits for him. The jobs were for persons who, in some instances, Respondent had never met. For example, Mr. Joseph pulled a permit for work to be performed on a home owned by Ed Davis. The contract for the work was between Mr. Davis and a Mr. Sutton, an unlicensed contractor, but with the approval of Respondent, Mr. Joseph obtained a permit for the Davis job. A second job was for Bertha Joseph. In this instance, Mr. Joseph completed the permit application which Respondent signed thereby allowing Mr. Joseph to obtain the permit for the project. By signing the permit, Respondent represented himself to be the contractor for the job. In truth, the homeowner had contracted with Denis Joseph for the work to be done, but the project was completed by Emanuel Gideon, an unlicensed contractor. Respondent admitted receiving payments from Denis Joseph. Respondent admitted he was not actively involved with the Bertha Joseph project. In September, 1993, Eric Wardle, an investigator with the Dade County building and zoning department, interviewed Respondent regarding claims that he was obtaining permits for unlicensed contractors. According to Mr. Wardle, Respondent admitted he pulled permits for unlicensed contractors after Hurricane Andrew because they were trying to make a living. At hearing Respondent disputed the accuracy of Mr. Wardle’s investigation but admitted he would have told him “anything just for him to get away from me.” Respondent’s explanation at hearing was not persuasive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Construction Industry Licensing Board, enter a final order revoking Respondent’s contractor license and imposing an administrative fine in the amount of $8,500.00. DONE AND ENTERED this 16th day of May, 1997, in Tallahassee, Florida. J. D. PARRISH 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 COPIES FURNISHED: Bruce M. Pasternack, Esquire Raymond L. Robinson, P.A. 1501 Venera Avenue, Suite 300 Coral Gables, Florida 33146 Joseph Marcelin 16561 Southwest 144th Court Miami, Florida 33177 Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1997. Rodney Hurst, Executive Director Department of Business and Professional Regulation/CILB 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Northwood Centre Tallahassee, Florida 32399-0792
Findings Of Fact From May 1, 1985, through June 30, 1987, Respondent, John Gonzalez, was a registered general contractor and qualifying agent for Le-Go Developers, Inc., license-number RG-A02757. On his application for qualification of Le-Go Developers, Inc., respondent was required to list his individual address and the address of the business entity. To this end, respondent provided an individual address of 8435 Crespi Boulevard, Miami Beach, Florida, and a business address of Le-Go Developers, Inc., of 9840 S.W. 81st Street, Miami, Florida. On March 25, 1986, Ms. Selma Roberts contracted, through respondent, with Le-Go Developers, Inc., for certain repairs to an apartment complex owned by her, and located at 8415 Crespi Boulevard, Miami Beach, Florida. At the time, respondent was a tenant of Ms. Roberts. Pursuant to the terms of the agreement, Le-Go Developers, Inc., was to repair an existing dock for $700 and paint the railings in the apartment complex for $400. Ms. Roberts paid Le-Go Developers, Inc., $1,100 in advance for the work. At no time did Ms. Roberts and respondent discuss the need for a building permit to undertake the agreed upon work, and no permit was secured for the project or posted on the job site. The building regulation pertinent to this case provide: PERMITS REQUIRED It shall be unlawful to construct, enlarge, alter, repair, move, remove or demolish any building structure, or any part thereof. . . without first having filed application and obtained a permit therefor, from the Building official.... EXCEPTION: No permit shall be required, in this or any of the following sections, for general maintenance or repairs...the value of which does not exceed one hundred dollars ($100.00) in labor and material as determined by the Building official. Permits, to be issued by the Building Official, shall be required for the following: (a) The erection or construction of any building or structure, the adding to, enlarging, repairing, improving, altering, covering, or extending of any building or structure. Respondent repaired the dock and painted the railings in the apartment house. The work was not, however, apparently to Ms. Roberts' satisfaction and she paid a third party $100 to correct the deficiencies she perceived. While the work may not have satisfied Ms. Roberts, there is no competent proof that respondent did not comply with the terms of the agreement, that the work was not performed in a workmanlike manner, or that the work did not conform to existing building codes. At some point during the spring of 1987, respondent moved from the apartment at 8415 Crespi Boulevard to a new residence, and permitted his license to lapse. Respondent did not notify petitioner of his new residence address until he applied to reinstate his license in April 1988, as discussed infra. The petitioner's records demonstrate that respondent's license was on a delinquent status for non-renewal from July 1, 1987, until his application to change the status of his license and reinstate his license was approved May 23, 1988. In his application, dated April 4, 1988, respondent listed his residence address as 8440 Byron Avenue, Miami, Florida.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered imposing a reprimand and administrative fine in the sum of $250 against respondent. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of August, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 1988. APPENDIX Petitioner's proposed findings of fact are addressed as follows: 1. Addressed in paragraph 3. 2 & 4. Addressed in paragraph 4. 3. To the extent pertinent, addressed in paragraph 1. 5-7. Addressed in paragraphs 7 and 8. 8-9. Addressed in paragraph 5 and paragraph 2 of the Conclusions of Law. 10. Addressed in paragraph 9. COPIES FURNISHED: Belinda H. Miller, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mr. John Gonzalez 8440 Byron Avenue, #1 Miami, Florida 33167 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issues in this cause are those promoted by the filing of an Administrative Complaint by the Department of Professional Regulation accusing the Respondent of various violations of Chapter 489, Florida Statutes. Should the Respondent be found guilty, this action contemplates the imposition of a penalty against Respondent's license as a commercial pool contractor in Florida.
Findings Of Fact 1. Respondent, at all times relevant to this inquiry, was a registered commercial pool contractor having been issued license number RP0041725. This is a license issued by the Florida Construction Industry Licensing Board. 2..On November 18, 1983, Respondent entered into a contract under the name Kennedy Pool and Construction Co., an entity for whom Respondent serves as a qualifying agent in the commercial pool contracting business. This contract was with one Marie Robertson; however, the contract was not for the purpose of construction of a pool. It was for construction of a 20' by 24' block garage. This structure was to be free-standing and would be located adjacent to Ms. Robertson's residence, which is also used in her business. Petitioner's exhibit number 2 is a copy of the contract and reflects the $4,800.00 contract price. Robertson has paid the full amount of the contract and the garage construction was completed in January, 1984. Respondent personally built the garage. Respondent built the garage without obtaining a building permit from the City of Jacksonville, Florida. Respondent also failed to submit plans and specifications to the City of Jacksonville, which set forth the design and placement of this garage structure. Having failed to request a permit or to submit plans and specifications, Respondent made no request of the City of Jacksonville Building Department to inspect the construction related to the garage. Finally, Respondent in his licensure with the State of Florida, and license recognition with the City of Jacksonville, was not authorized to serve as a building contractor engaging in the construction of structures such as the garage in question. The project at issue entailed the pouring of a foundation; the erection of block walls the erection of a roof truss system and the installation of a roof covering of shingles. All of these items were beyond the license recognition which respondent held with the State of Florida and the City of Jacksonville. When the City of Jacksonville discovered the existence of the garage, it made the owner aware that the structure was in violation of the City of Jacksonville Building Code related to the need for obtaining a building permit, and the fact that the garage structure violated the city's set-back requirement. This later item pertained to the fact that given the commercial utilization of the property, on the part of Ms. Robertson, the garage was too close to the city street. As a consequence, Robertson was put to the inconvenience of obtaining and paying for a building permit and gaining a variance from the set-back requirements mentioned. Had the City of Jacksonville been presented with building plans and specifications, this would have alerted the city to the fact that the placement of the garage was too close to the street. When confronted with her difficulty, Ms. Robertson contacted the Respondent to gain his assistance in obtaining a building permit. The Respondent indicated that it was her problem and said that he could not get a permit because the property was business property and not private property. The Respondent was charged by the City of Jacksonville through a notice of violation of local zoning requirements related to the failure to obtain a building permit and the fact that the Respondent was not licensed by the City of Jacksonville to construct a garage at the Robertson residence. Attempts at serving the violations were not successful in that calls to the Respondent and issuance of notice of violations through certified mail, return receipt requested, were not acknowledged by the Respondent.
The Issue Whether or not the business Respondent was associated with exceeded the scope of his contractor's license concerning the type of work undertaken, as described in the Amended Administrative Complaint, thereby violating Sections 489.129(1)(j), 489.115(1) and 489.117(2), F.S.? Whether or not Respondent failed to properly supervise the job site activities on that job, thereby violating Sections 489.129(1)(m), (j); 489.119, and 489.105(4), F.S.? Whether or not Respondent committed gross negligence, incompetence, or misconduct in connection with said job in violation of Section 489.129 (1)(m), by failure to supervise the contracting activities of the contracting business he was responsible for, so that Jorge Otero, President of Deluxe Construction Co., could obtain a building permit, exceed the scope of Respondent's license, and perform work that exhibited numerous defects? BACKGROUND AND PROCEDURE At the commencement of formal hearing, the parties stipulated ore tenus that Paragraph 6 of the Amended Administrative Complaint would be further amended to read: The business Respondent was associated with exceeded the scope of his license concerning type of work, violating Section 489.129(1)(j); 489.115(1)(b); 489.117(2). Thereafter, they entered into certain stipulated facts which are reflected among additional facts as found in this recommended order. Petitioner presented the oral testimony of Lolv Jaramillo, Herbert Gopman, Jorge Otero, and Frank Abbott, and had admitted four exhibits. Respondent presented neither oral testimony nor offered any exhibit. No transcript was provided. Respondent late-filed its post-hearing proposals, but each party's proposed findings of fact have been considered and are ruled upon in the appendix to this recommended order, pursuant to Section 120.59(2), F.S.
Findings Of Fact At all times material, Respondent was a licensed certified building contractor in the State of Florida, holding license number CB C002799 and was listed as the sole qualifying agent for Deluxe Construction Company. Deluxe could have had more than one qualifying agent but it did not. Jorge Otero was the sole owner, officer, and director of Deluxe Construction Company (Deluxe). He is not now, and never has been, a licensed contractor. Deluxe was formed in 1986, and Otero operated the company out of his home. In August 1986, Deluxe contracted with Lolv Jaramillo to remodel the Jaramillo residence in Miami for $23,800. Prior to the Jaramillo job, Deluxe had remodeled or added to several other residences. On those jobs, Respondent signed the building permit applications brought to him by Otero and made periodic inspections of the work, but Respondent never accepted any compensation from Deluxe for his services as qualifying agent of the company. Respondent was employed full-time otherwise. Before the Jaramillo job, Otero had had similar relationships with other contractors. Prior to beginning construction, Respondent met the Jaramillos at their residence at the request of Otero to discuss the possibility of the Jaramillos arranging a second mortgage through the brokerage firm which was Respondent's regular full-time employer. The Jaramillos were not told, and were not aware, that Respondent was affiliated with Deluxe. They relied on no representations of Respondent in eventually selecting Deluxe to do their construction job. The eventual contract between the Jaramillos and Deluxe was not conditioned on borrowing from Respondent's regular employer, and, in fact, the Jaramillos did not borrow from Respondent or his employer and obtained their financing elsewhere. The Jaramillos eventually instructed Otero to begin work, which he did. Otero first obtained the necessary building permit by going to the building department, filling in Respondent's contractor's license number on the application there, and signing his own name as qualifier. When Otero signed for the building permit, Respondent was out of town. Otero did not inform Respondent in advance of what he was going to do nor did Respondent discover Otero had done this until much later. On all previous contracts, Respondent had signed the permit applications and made the inspections in the manner described in finding of fact 5, supra. Respondent had done nothing to encourage Otero to think he could obtain a building permit as he did for the Jaramillo job. After Deluxe began construction at the Jaramillos' home, Otero was the sole supervisor on the job. After the Jaramillos paid Deluxe $14,000 of the contract price, they became dissatisfied with the pace and quality of the work done by Deluxe and they terminated the contract. According to Harry Gopman, structural engineer, the work done by Deluxe contained violations of local construction codes, but there is no evidence that Otero, Respondent, or anyone associated with Deluxe was convicted or found guilty of any crime. The work undertaken by Deluxe included plumbing work which Respondent was not licensed to perform. The work done by Deluxe and subcontractors under its supervision contained deviations from acceptable industry practice, including rendering a major load-carrying girder useless by penetrating it for the insertion of an air duct for the central air-conditioning system; cutting a concrete doorway lintel for insertion of another air duct, thus destroying the structural integrity of that lintel; and creating a structural hazard by placing a flat roof on the rear addition which severely "ponded" in rainstorms. From the evidence as a whole, it may be inferred that Respondent originally knew he was the sole qualifying agent for Otero/Deluxe. Otero did not affirmatively tell Respondent he had another qualifying agent for the job. However, since Otero kept telling Respondent that the Jarmillos were still having trouble getting financing, it was reasonable for Respondent to believe a building permit was not needed and construction would not begin until financing was found. It was after the commencement of construction, but prior to the termination of the contract by the Jaramillos, that Otero finally informed Respondent that he had begun work on the Jaramillo residence. It is not clear whether Respondent knew that the building permit bore his license number until after the termination of the contract. Respondent never visited the Jaramillo job site during construction. Respondent did not monitor the company finances, did not review subcontractual agreements, did not review invoices from subcontractors and materialmen, and did not call for inspections on the Jaramillo job. There is unrefuted expert testimony by Frank Abbott, architect and licensed general contractor, that a qualifying agent should do the things, but there is insufficient evidence to show that Respondent had a clear understanding that such was his position for the Jaramillo job.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Construction Industry Licensing Board enter a final order dismissing all charges against Respondent. DONE and RECOMMENDED this 31st day of August, 1988, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 31st day of August, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0654 The following constitute rulings pursuant to S. 120.59(2), Florida Statutes, upon the parties' respective Proposed Findings of fact (FOF). Petitioner PFOF: 1-7, and 9-15. Accepted as modified to more exactly reflect the unrefuted testimony. 8. Accepted except for hearsay and subordinate and unnecessary material. Respondent's PFOF: 1-5, 7, 9. Accepted as modified to more exactly reflect the unrefuted testimony. 6. Rejected as stated. FOF 7 and 12 more correctly reflects the state of the record as a whole. 8. Rejected as stated because as stated it is a legal conclusion. A finding of fraud requires a finding of an affirmative intent which cannot be made upon the evidence presented. COPIES FURNISHED: David L. Swanson, Esquire Department of Professional Regulation 103 North Monroe Street Tallahassee, Florida 32399-0750 Lance Armstrong, Esquire 1035 Northwest 11th Avenue Miami, Florida 33136 Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Bruce D. Lamb, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
