Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: At all times material to these proceedings Respondent was licensed by the State of Florida as a registered residential contractor, having been issued license number RR 0033727. Respondent's license was first issued in February, 1974. In April, 1983, Respondent submitted a change of status application and requested to qualify Regency Builders, a proprietorship. License number RR 0033727 was then issued to William B. Pitts, qualifying Regency Builders. Regency Builders, Inc., has never been qualified by a license of the Florida Construction Industry Licensing Board pursuant to Chapter 489, Florida Statutes or any predecessor of Chapter 489, Florida Statutes. There is nothing in the record to show that Regency Builders was ever properly incorporated in the State of Florida. However, the record reflects that Respondent did register Regency Builders under the fictitious name statutes Section 685.09, Florida Statutes and complied with the requirements of Section 489.117, Florida Statutes after being contacted by Petitioner's employee sometime in February, 1983. Respondent has been a contractor in Bay County, Florida for 10-12 years and has constructed 150-200 homes during this period of time without any disciplinary action against him, excluding the present proceeding. Respondent prepared a proposal for the construction of a home for Mr. and Mrs. Lee Munroe under the name of Regency Builders, Inc., and submitted the proposal to them. Although the Agreement which was prepared by Lee R. Munroe and signed by Respondent on April 11, 1982 and signed by Lee R. Munroe and Sara W. Munroe (Munroes) but undated, incorporates certain portions of the Proposal, the record reflects that the proposal, per se, was never accepted by the Munroes. The Agreement referenced in paragraph 5 was an agreement entered into by the Respondent and the Munroes for the construction of the Munroes' residence in Gulf Air Subdivision, Gulf County, Florida. The agreed upon contract price was $74,129.33 but, due to changes requested by the Munroes, the Respondent was paid approximately $95,000.00. The Munroes' residence was constructed by Respondent pursuant to the Agreement and was essentially completed in December, 1982. The Munroes moved into this "completed" residence in December, 1982. DeWayne Manuel, building inspector for Gulf County, Florida, during the construction of the Munroe's residence by Respondent, performed the framing inspection, the rough electrical inspection, the rough plumbing inspection, the mechanical inspection (the heating and air conditioning systems) and all other inspections required by the 1982 Southern Standard Building Code, as adopted by the Board of County Commissioners, Gulf County Florida (Code) with the exception of the final inspection. At the beginning of construction, but before the framing inspection, Lee Munroe contacted Manuel with a general concern about the construction. As a result of this meeting with Lee Munroe, Manuel requested Charles Gaskins (Gaskins) an architect with Gaskins Architect of Wewahitchka, Florida, to inspect the pilings, girders and floor joist. After this inspection, Gaskins made some recommendations in regard to the attachment of girders to the pilings which Respondent followed in making the corrections to the attachments. Gaskins Architect provided the Piling Layout 1st and 2nd Floor Framing (Petitioner's Exhibit No. 8) at the request of the Munroes. Generally, Gaskins found no major problems with the pilings and girders other than the work was "sloppy". Both Manuel's and Gaskins' inspection revealed that Respondent had complied with the requirements of the Piling Lay Out and Manuel found no Code violations. After Gaskins inspected the pilings and girders, Respondent was allowed to continue construction by both Manuel and Munroe. The House Plans (Plans) for the construction of the Munroes' home were prepared by the Munroes' daughter who is an unlicensed architect. Although in several instances the Plans requirements were less stringent than Code requirement, the Plans were approved by the Gulf County Building Department. While the Plans were lacking in detail a competent licensed contractor should have known how to fill in the details. Once the Plans were approved, Manuel would allow a change in the Plans provided the change was as stringent as the Code and would allow the structure to be built in compliance with the Code. The change could be a downgrade or an upgrade provided the Plans, as changed, complied with the Code requirements. Respondent did not request any additional or more comprehensive plans from the Munroes or inform the Munroes in any manner that the plans were inadequate. The Plans called for 2 x 12 solid floor joists to be placed on 16 inch centers. The house as constructed by Respondent had engineered floor truss (I- Beams) placed on 24 inch centers. Those I-Beams carrying a significant load were not blocked and in some instance the I-Beams were not "end-blocked." The Code allows the use of wood I-Beams in place of solid wood floor joists provided the wood I-Beams are constructed in accordance with Code requirements. The record does not reflect that the I-Beams as used in this construction were built in accordance with the Code, and the testimony of both consulting engineering experts, that the placement of I-Beams in this structure required blocking along both sides and the end went unrebutted. There were holes and notches in the plywood web of the I-Beams. However, in reviewing the photographs in Petitioners Exhibits Nos. 11 and 14, and, in particular, photograph 1 of Exhibits 11 and photographs 4, 5, 6, and 7 of Exhibit 14, and the testimony surrounding those photographs, there is insufficient evidence to determine: (1) the size of the holes or notches (2 inch hole, 4 inch notch, etc.); (2) placement of hole or notch in relation to depth of I-Beam (upper 1/3, lower 1/4, etc.); or, (3) the depth of the I-Beams. Although there was no testimony concerning the size of the hole for the duct work and the depth of the I-Beam in photograph 7 of Exhibit No. 14, it is clear that the hole for the duct work is greater than 1/3 the depth of the I-Beam. The evidence is insufficient to show that Respondent did not use 5 - 2 x 12's in the main girder as required by Piling Layout. The evidence is clear that the 2 x 12's used in girders were not always butted at a support. The evidence is insufficient to show where the 2 x 12's were butted in the span or if the butting was staggered. No set-in braces or plywood sheathing was used in the bracing of exterior stud walls. However, diagonal metal strapping and thermoply was used and two layers of weatherboard were put on horizontally. The evidence was insufficient to show that water penetrated into the wood framework after the second siding was put on. A 32/16, 1/2 inch plywood was used for subflooring. There was no top plate on dining room wall which was a weight bearing wall. Ventilation in the attic was in accordance with plans but no cross ventilation was provided in the attic. The evidence is insufficient to show that hurricane clips were not applied to the center exterior wall in that neither engineer inspected the outside of the wall to determine if hurricane clips were on the outside. Manuel did not find a violation of Code in regard to the hurricane clips. In February, 1983, James Van Orman (Orman), a licensed engineer, was employed by the Munroes to do a structural analysis of the home constructed by Respondent. Orman's report (Petitioner's Exhibit No. 10) contained certain calculations in regard to the structural integrity of the home. The calculations and Orman's testimony surrounding the calculations went unrebutted. Orman and Lee Munroe were associated through their work and Orman, also a general contractor, was hired to make the necessary corrections in the construction to make it structurally sound. On December 5, 1984, after reviewing the case file and exhibits, Harold Benjamin, Jr. (Benjamin), a licensed consulting engineer, conducted an inspection on the structure. While Benjamin's inspection was cursory and he made no calculations Benjamin noted the same Code violations as did Orman and concurred in Orman's conclusion that the structural integrity of the home had been compromised. Respondent was notified in March, 1983, of the problems with the structure but due to problems with the Munroes and with his subcontractor he was only able to replace the siding and do some cosmetic work between March, 1983 and October, 1983. In October, 1983, the Munroes contracted with Orman to correct what Orman had determined to be structural deficiencies and notified Respondent that they no longer wanted him on the job. On September 30, 1983, the final inspection was conducted by the Gulf County Building Department. The Respondent was not present at this inspection having failed to pick up a certified letter from Manuel advising him of the date for the final inspection. By letters dated February 7, 1983 (Petitioner's Exhibit No. 4), October 13, 1983 (Petitioner's Exhibit No. 5) and February 13, 1984 (Respondent's Exhibit No. 1), Manuel expressed his thinking about the Code violations and Orman's report. At the hearing Manuel testified that his thinking had not basically changed from what he had expressed in the letters. Neither the Respondent nor the Gulf County Building Department have had the residence structurally analyzed by a licensed engineer. Respondent deviated from the Plans without first obtaining approval of the Gulf County Building Department when he substituted I-Beams on 24 inch centers for 12 x 12 solid floor joists on 16 inch centers. The only evidence that this change was discussed with the Munroes was in regard to running heating and air conditioning duct work through the I-Beams because Mrs. Munroe did not want to drop the ceiling down to 7 feet to accommodate the duct work. While this change may not have affected the structural integrity of the house had the I-Beams been properly constructed and the strength of the subfloor material adjusted to account for the increased span, the evidence shows that the I-Beams were not properly constructed and that the subfloor material used was not of sufficient strength on account of the increased span. Therefore, this change affected the structural integrity of the house. It was apparent from the testimony that certain other changes in the Plans were made without prior approval of the Gulf County Building Department. However, it was also apparent from the evidence that these changes were at least verbally approved by the Munroes and there was no evidence that these changes affected the structural integrity of the house. Due to a grandfathering provision in the law, William Pitts has never taken an examination for licensure and has never been examined as to the provisions of the Code. Respondent in his testimony exhibited: (1) an awareness of the applicable provisions of the Code but not a complete understanding of them; and (2) an acceptable knowledge of he applicable construction practice.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is Recommended that the Board enter a final order finding Respondent guilty of the violations alleged in Count I and Count II of the Administrative Complaint and for such violations it is Recommended that the Board impose an administrative fine of $1 000.00 and suspend Respondent's residential contractor license for a period of one (1) year, staying the suspension and placing Respondent on probation for that period provided the Respondent: (1) pays the $1,000.00 fine within ninety (90) days; (2) obtains a current copy of the Southern Standard Building Code and agrees to keep it current; and (3) proves to the Board that he has read and is familiar with the applicable Sections of the Code that relate to his license. Respectfully submitted and entered this 2nd day of July, 1985, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 2nd day of July, 1985. COPIES FURNISHED: Edward C. Hill, Jr. Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Charles S. Isler, III, Esquire Post Office Box 430 Panama City, Florida 32402 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee Florida 32301 Salvatore A. Carpino, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. James Linnan Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville Florida 32202 =================================================================
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are made: At all times material to this proceeding, Respondent Joseph W. Miklavic was licensed as a certified building contractor in the state of Florida, holding license number CB C006615, qualifying Security Home d/b/a Security Homes of Clearwater (Security). Since March, 1989 the Respondent's license has been on active status qualifying, Individual. At all times material to this proceeding, Respondent was a salaried employee of Security. Ronald MacLaren was president of Security and also sole owner and president of Yankee Construction Inc. d/b/a Olympic Homes of Citrus County (Olympic). In accordance with a management agreement between Security and Olympic, the Respondent was assigned by Ronald MacLaren to oversee the operation of Olympic. Olympic was licensed to engage in construction having been qualified by Wilmon Ray Stevenson through license number RB A035005 which was in effect from June, 1987 until October, 1988 when Stevenson filed a change of status application with the Construction Industry Licensing Board (Board) requesting license number RB A035005 be changed to inactive status qualifying, Individual. While this application was not acted upon until February, 1989, the Board considered license number RB A035005 in effect as qualifying Olympic only until October, 1988. Effective September 26, 1988, the name of Yankee Construction, Inc. was changed to Rivercoast Homes, Inc. (Rivercoast) which apparently ceased doing business under the fictitious name of Olympic Homes of Citrus County. On September 19, 1988 Wilmon Ray Stevenson advised the Citrus County Building Department that he was no longer the "qualifier for Olympic Homes". Around this same time, the Respondent, Ronald MacLaren and the management of Olympic became aware that Stevenson would no longer be the qualifying agent for Olympic. There was no evidence that Rivercoast Homes, Inc. a/k/a Yankee Construction Inc. ever advised the Board of the name change or the termination of Stevenson as its only qualifying agent affiliation in accordance with Section 489.119(2)(3), Florida Statutes. Nor was there any evidence that Rivercoast was ever qualified by another qualifying agent pursuant to Section 489.119, Florida Statutes. In accordance with the agreement between Security and Olympic, referred to in Finding of Fact 4, the Respondent continued to oversee the Rivercoast operations until sometime around December 1988 when all of MacLaren's operations in Florida, including Security, closed down. Under Security's agreement with both Olympic and Rivercoast, Respondent's duties included working with management and subcontractors to develop construction schedules and to advise Ron MacLaren of the financial aspect of the company so that MacLaren could make funds available to pay subcontractors, etc. Respondent did not have any control over the finances of either Olympic or Rivercoast such as receiving, depositing or disbursing funds. Either in late September or early October of 1988, Respondent approached Larry Vitt, Citrus County Building Department, as to whether the Respondent could pull permits under his license for Olympic or Rivercoast. Vitt advised Respondent that unless he qualified the company he could not pull permits for that company under his license. Respondent advised MacLaren that Rivercoast would have to have a qualifying contractor in order to engage in contracting. MacLaren did not get Rivercoast qualified to engage in contracting at anytime. Respondent did not qualify Rivercoast under his contractor's license at anytime. Sometime around the last of September or the first part of October of 1988, Respondent became aware that Rivercoast a/k/a Yankee Construction, Inc. was no longer qualified under Section 489.119, Florida Statutes, and therefore, not authorized under law to engage in contracting. On August 16, 1988 Ernest and Marjorie Ellison met with Ken Smith and Gloria Stevenson of Olympic to discuss Olympic building the Ellisons a home. The Ellisons picked out a floor plan at this time and gave Olympic a $100.00 deposit to hold the price until a contract could be executed. On October 1, 1988 the Ellisons met again with Ken Smith and was introduced to the Respondent who gave them a brief run down on the status of the company and advised them that the company was in "good shape". At this meeting, Ken Smith advised the Ellisons of certain things that were required of them before construction began, including a survey. On October 31, 1988 the Ellisons signed a contract with Rivercoast to construct their home. In his capacity as a representative of Security, under the agreement between Security and Rivercoast, the Respondent signed this contract on the line designated Contractor/Representative. There is insufficient evidence to show that Respondent intended to sign the contract as contractor of record as the term contractor is defined in Section 489.105(3), Florida Statutes (Supp. 1988), and thereby impose upon himself the responsibility for the entire project. The contract price was $44,634.00. On November 1, 1977 the Ellisons delivered to Rivercoast a check for $4,363.40 which along with the $100.00 deposit paid in August represented a total down payment of $4,463.40. Respondent did not personally receive any funds from the Ellisons for Rivercoast or receive any funds for himself from the Ellisons under this contract. No permit was ever pulled or any work performed by Rivercoast under the aforementioned contract. Ernest Ellison met with Respondent on November 21, 1988 and requested that the contract be cancelled. Under the authority granted Respondent through the agreement between Security and Rivercoast, the Respondent and Ernest Ellison signed the contract as being cancelled on November 21, 1988. Although the Ellisons were offered an opportunity by the Respondent to transfer their deposit of $4,463.40 to Security and enter into a contract with Security to build their house, they declined and contracted with another contractor. On the date the contract was cancelled, Respondent advised Ernest Ellison that the down payment of $4,463.40 would be reimbursed. Although Respondent attempted to obtain a refund for the Ellisons from MacLaren and was advised by MacLaren that a refund was forthcoming, no refund of the Ellison's down payment was ever made by Rivercoast, Ronald MacLaren, the Respondent or anyone else. Respondent was aware during the negotiation and at the time the Ellison's contract was executed, that Rivercoast was not authorized by law to engage in contracting. However, there is insufficient evidence to show that Respondent ever advised the Ellisons that he would be the contractor responsible for building their home under the contract with Rivercoast or that he would be the contractor to pull the necessary permits for construction of their home. There is no evidence that Respondent had any financial interest or owned any stock or held any office in Rivercoast a/k/a Yankee Construction, Inc. Around October 1, 1988, after Stevenson had withdrawn as qualifying agent for Olympic, Rivercoast was no longer authorized to engage in the practice of contracting since it had not been qualified by another qualifying agent in accordance with Section 489.119, Florida Statutes.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the demeanor of the witnesses and the disciplinary guidelines set out in Chapter 21E- 17, Florida Administrative Code, it is RECOMMENDED: That the Board enter a final order finding Respondent guilty of violating Section 489.129(1)(e), Florida Statutes, and for such violation it is recommended that the Board assess the Respondent with an administrative fine of $1,000.00. It is further recommended that Counts I, II, IV and V be dismissed DONE and ORDERED this 27th day of November, 1990, in Tallahassee, Florida. WILLIAM R. CAVE 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 27th day of November, 1990. APPENDIX CASE NO. 90-2046 The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Rulings of Proposed Findings of Fact Submitted by the Petitioner Not necessary. Adopted in Finding of Fact 1. Adopted in Finding of Fact 7 but modified. Adopted in Findings of Fact 4, 8, and 10. Adopted in Findings of Fact 9 and 14 but modified. Adopted in Finding of Fact 15. Adopted in Findings of Fact 16 and 17 but modified. Adopted in Findings of Fact 17 and 18. Rulings of Proposed Findings of Fact Submitted by Respondent 1. - 2. Not material or relevant. Adopted in Findings of Fact 1, 7 and 20. Adopted in Finding of Fact 4. Adopted in Findings of Fact 4 and 8. Not material or relevant. Adopted in Finding of Fact 19. - 10. Adopted in Finding of Fact 15. Restatement of testimony not a Finding of Fact but see Finding of Fact 13. Adopted in Finding of Fact 15. Not material or relevant. Adopted in Finding of Fact 15. - 16. Not material or relevant. Restatement of testimony not a Finding of Fact but see Findings of Fact 13, 14 and 15. Adopted in Finding of Fact 19 but modified. Not material or relevant. Adopted in Finding of Fact 4. Restatement of testimony not a Finding of Fact but see Finding of Fact 4. Adopted in Finding of Fact 9. Adopted in Finding of Fact 4 but modified to show license effective until October, 1988 rather than February, 1989. Restatement of testimony not a Finding of Fact but see Findings of Fact 1, 7 and 20. - 26. Not material or relevant. Adopted in Finding of Fact 4 but modified to show from June, 1987 until October, 1988. - 29. Adopted in Findings of Fact 5 and 13. Restatement of testimony not a Finding of Fact but see Finding of Fact 4. - 32. Adopted in Findings of Fact 4, 8 and 9 but modified. Not material or relevant. - 36. Adopted in Findings of Fact 4, 8, and 9 but modified. Adopted in Finding of Fact 10. Not material or relevant. - 40. Adopted in Findings of Fact 8, and 17, respectively. Rejected as there is no substantial competent evidence in the record to show any other contract than the one Respondent signed on October 31, 1988. Not material or relevant. Not supported by substantial competent evidence in the record. Not material or relevant. Adopted in Finding of Fact 18. Restatement of testimony not a Finding of Fact but see Finding of Fact 9. - 50. Not necessary to the conclusion reached since this matter was covered in the Preliminary Statement wherein the motion was denied. COPIES FURNISHED: G. W. Harrell, Senior Attorney Department of Professional Regulation 1940 N. Monroe Street, Suite 60 Tallahassee, FL 32399-0750 Geoffrey Vining, P.A. 2212 South Florida Avenue Suite 300 Lakeland, FL 33803 Daniel O'Brien, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 Kenneth D. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact At all times pertinent to the issues in this hearing, Respondent was a licensed building contractor, whose license is No. CBC014467. His certification as an individual by the Florida Construction Industry Licensing Board was initially dated August 16, 1979. In February, 1981, he requested his second license be registered qualifying Jeff Webb Homes, Inc.; and in September, 1982, the license was changed from Jeff Webb Homes, Inc., to Intervest Construction, Inc. On April 23, 1981, Anna Ray McClellan contracted with Regency Central, Inc., for the construction and purchase of a single family residence located at Lot 5, Devonwood Subdivision, Volusia County, Florida. David L. Martin is president of Regency Central, Inc., and neither he nor Regency Central, Inc., are or have ever been registered or certified by the Florida Construction Industry Licensing Board to engage in the business of contracting in the State of Florida. On June 5, 1981, Respondent applied for a residential construction permit for Lot 5, Devonwood Subdivision, listing Regency Central, Inc., as the owner of the property, and himself, with License No. CBC014467, as the contractor. Actual contracting for the construction at Lot 5, Devonwood Subdivision, was accomplished by Regency Central, Inc. Three separate addenda to the construction/purchase contract calling for modifications to the specifications of construction were signed, not by Respondent, but by David L. Martin for Regency Central, Inc. Major subcontracts on the construction including plumbing, electrical, and heating and air conditioning, were entered into between the subcontractors and Regency Central, Inc., and not Respondent. Subcontractors looked to Regency Central for payment, and not to Respondent. A claim of lien filed on ,September 9, 1981, for central air conditioning and heating work on the property in question reflects the work was done under contract with Regency Central, Inc., David L. Martin, President. During construction of the house, Ms. McClellan visited the construction site several times a week at different hours of the day. She recalls seeing Respondent in the area only twice, the first time being the day the contract for purchase was signed, and the second being the day the slab was poured. Her dealings at the site were with the supervisor, Dan Haley, who indicated to her that he worked for Regency Central, Inc. Respondent was interviewed by Philip T. Hundemann, an investigator for the Florida Department of Professional Regulation, in late March, 1982, at Respondent's home. During the course of the interview, Respondent admitted that he met David L. Martin when Martin rented office space in a building that Respondent had constructed and owned. During the course of conversations, Martin suggested to Respondent that he, Martin, had ninety-nine lots available for building and that if Respondent would pull the construction permit for the Lot 5 project, he would get a contract from Martin to build on the other ninety- nine lots. Respondent admitted that he did not supervise the contract, that he did pull the permit, and that he was in violation of the law and had prostituted his license. His defense was, at that time, that he was hungry to get a big construction contract with Martin. Though after he pulled the permits his agreement was to work on the site for the rate of ten dollars per day with the supervisor, Mr. Haley, he was there only infrequently. Respondent now modifies the admissions made previously to Mr. Hundemann. He now states he was heavily involved with the construction project on a daily basis either in his office or on the construction site, not only as a contractor, but also as sales broker. While he admits what he did was in violation of the law and was foolish, he did not intend to break the law. Respondent's involvement with Ms. McClellan's project was not as contractor as indicated in the permit he pulled. He had very little contact with that project until Martin abandoned the project and left the area.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent's, Dominic D'Alexander's, license as a certified building contractor be suspended for one year, but that, upon the payment of a $500 administrative fine, the execution of the suspension be deferred for a period of three years, with provision for automatic recission. RECOMMENDED this 21st day of March, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 21st day of March, 1983. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Dominic D'Alexander Post Office Box 4580 South Daytona, Florida 32021 Mr. James Linnan Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact At all times relevant hereto, Respondent, Larry F. Hoffman, held certified general contractor license number CG C019686 and certified residential contractor license number CR C018801 issued by Petitioner, Department of Professional Regulation, Florida Construction Industry Licensing Board. He operates a general contracting firm at 3060 Indian Trail, Lantana, Florida. On or about November 18, 1983, Hoffman entered into a contract with Maurino Palmieri to add a screened porch addition to Palmieri's residence located at 6227 Hitching Post Way, Delray Beach, Florida. The contract generally required Hoffman to construct a screen enclosure with a flat roof to the existing structure for a price of $2,500. The contract reflected that the contractor on the project was Hoffman Construction, a name under which Respondent has not qualified to do business. Hoffman is not licensed to construct flat roofs in Palm Beach County. Because of this, he subcontracted the roofing work to American Roofing and Supply Association (American) in Delray Beach. According to Hoffman, American completed only one-half of the job and then filed for bankruptcy. Although Hoffman was not licensed to do the roof work, he finished the roof on the project. The project was completed on February 1, 1984 and Palmieri paid Hoffman the full amount due. At that time, Hoffman warranted the roof "to be free of leaks one year" and provided a written warranty to evidence this representation. About three weeks later, a heavy rain occurred and leaks developed in the new room. After calling Hoffman to complain, Hoffman placed a tar composition on certain parts of the new roof in an effort to stop the leaks. The leaks continued to persist whenever it rained and Hoffman sent a helper to Palmieri's residence on two occasions. Both efforts to fix the roof were unsuccessful. Thereafter, Palmieri telephoned Hoffman's residence on many occasions but was unable to personally speak with Hoffman. Hoffman never returned his calls. Palmieri eventually hired another roofer in October, 1984, to fix the leaks and discovered that flashing was missing in several areas. The repairs cost him $750. He has had no problem with his roof since that time. Hoffman denied that he had failed to put all necessary flashing in the roof. He attributed the leak to the gable in the original structure rather than any defect in the roof on the new room. However, this contention is rejected as not being credible. Hoffman also acknowledged that he finished the roof even though he was not licensed to do so, but did so since he could not find another roofing company within a reasonable period of time, and knew Palmieri desired the project to be completed as soon as possible. Finally, he concedes that he did not qualify "Hoffman Construction" with the Construction Industry Licensing Board, but contended he was unaware of this requirement. He now understands the law and represents he will not violate this requirement in the future.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of violating Subsections 489.115(1)(b) and 489.119(2) and (3), Florida Statutes, that he be given a $500 administrative fine, and his license suspended for ninety days. In the event Hoffman makes restitution to Palmieri, and furnishes evidence of the same to the Board, the suspension should be lifted. The remaining charge should be dismissed. DONE and ORDERED this 1st day of July, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 1985.
Findings Of Fact Findings of Fact 1-13 are made based upon the Stipulation of the parties filed on July 10, 1987. Respondent is, and was at all times material to the pending amended administrative complaint, a certified building contractor having been issued license number CB CAO9793 by the Florida Construction Industry Licensing Board. At all times material the pending amended administrative complaint Respondent's certified building contractor license (CB CAO9793) qualified "George E. Longino and Associates, Inc." with the Florida Construction Industry Licensing Board. Respondent is, and was at all times material to the pending amended administrative complaint, a certified air conditioning contractor having been issued license number CA CO24348 by the Florida Construction Industry Licensing Board. At all times material to the pending amended administrative complaint, Respondent's certified air conditioning contractor license (CA CO24348) qualified "George E. Longino and Associates, Inc." with the Florida Construction Industry Licensing Board. Respondent is, and was at all times material to the pending administrative complaint, a registered mechanical contractor having been issued license number PM 0031246 by the Florida Construction Industry Licensing Board. At all times material to the pending administrative complaint, Respondent's mechanical contractor license qualified "J. C. and Sons, Inc." with the Florida Construction Industry Licensing Board. At no time material to the pending amended administrative complaint was Respondent the qualifying agent for "First City Contractors, Inc." as defined by Sections 489.105(4) and 489.119, Florida Statutes. At no time material to the pending amended administrative complaint was Charles L. Crowe registered, certified or otherwise licensed by the Florida Construction Industry Licensing Board. At no time material to the pending amended administrative complaint was "First City Contractor's, Inc." registered, certified or otherwise licensed by the Florida Construction Industry Licensing Board. On or about January 23, 1986, Charles L. Crowe d/b/a First City Contractors, Inc., contracted with Steve Bell to construct a room addition at 3110 Carrevero Drive West, Jacksonville, Florida. The contract price was approximately $25,000. On or about March 10, 1986, the City of Jacksonville, Building and Zoning Inspection Division, issued building permit number 6196 to George E. Longino and Associates, Inc. The above referenced building permit was for the construction of a room addition at the residence of Steve Bell, 3110 Carrevero Drive West, Jacksonville, Florida. The following Findings of Fact are based upon the evidence introduced at formal hearing. In December, 1985, or January, 1986, Charles L. Crowe, sole owner of First City Contractors, Inc., approached Longino and asked him to become a partner in the business and to pull permits and be the qualifying agent for First City Contractors, Inc. Longino advised Crowe that he would not be interested in doing that until he had resolved certain pending problems with his licenses. Specifically, the Construction Industry Licensing Board had filed a disciplinary action against Respondent's licenses and that case had been heard and a Recommended Order entered on October 30, 1985. The Recommended Order was scheduled to be considered by the Construction Industry Licensing Board on January 9, 1986. Longino did agree to pull permits for any job on which he would be paid to supervise the construction. Longino did pull the permit and supervise the construction of a garage addition in Arlington, Jacksonville, Florida, for First City Contractors in January or February, 1986. On January 23, 1986, Charles L. Crowe, doing business as First City Contractors, Inc., entered into a contract with Steve Bell to construct a room addition to a residence located at 3110 Carrevero Drive, Jacksonville, Florida. The contract price was $25,000. Based upon the contract, Crowe asked Longino to use his license number to sign a permit application for the Bell job. Longino used a building permit application form which he had in his truck and filled in the pertinent information on the building permit application. Specifically, Longino filled in the name of the licensed contractor as "First City Contractors, Inc." and signed his name as the licensee with license number CB CA09793. Longino signed the building permit application on or about the last week of January, 1986. Financing was not secured for the Bell job until March, 1986. On March 10, 1986, Crowe used the permit application which had been previously signed by Longino and sent an employee of First City Contractors, Inc., Robert Cumpston, to secure a building permit from the City of Jacksonville for the Bell job. Specifically, permit number 6196 was issued based upon the permit application which had been previously signed by Longino. On February 19, 1986, the Construction Industry Licensing Board entered a Final Order suspending Longino's licenses. Longino received notice of the suspension on February 24, 1986, by certified mail. Longino advised Crowe that his licenses had been suspended within a few days following receipt of the Final Order. Despite the knowledge that Longino's licenses had been suspended, Crowe used the presigned building permit application to secure a building permit for the Bell job on March 10, 1986. Building permit number 6196 was issued to Longino's license number doing business as George E. Longino and Associates, Inc. The name of the business was changed from that which was stated on the building permit application because Longino was not a qualifying agent for First City Contractors, Inc. He was only a qualifying agent for George E. Longino and Associates, Inc. A permit could not be issued to First City Contractors, Inc. using Longino's license number. The Bell job was completed using permit number 6196. Longino did supervise that construction and was present at the site on a daily basis. Permit number 6196 was posted at the site. Despite Longino's statements that he did not know that the permit was issued to his license number, it is found that Longino knew or should have known that permit number 6196 was issued to his license number, doing business as George E. Longino and Associates, Inc. Longino did nothing to remedy the problem even though his licenses had been suspended.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Construction Industry Licensing Board, enter a Final Order suspending the licenses of George E. Longino for a period of one (1) year in addition to the previous suspension. DONE and ENTERED this 11th day of August, 1987, in Leon County, Tallahassee, Florida. DIANE K. KIESLING 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 11th day of August, 1987. COPIES FURNISHED: Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely Executive Director Construction Industry Licensing Board Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 W. Douglas Beason, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William Bruce Muench, Esquire 438 East Monroe Street Jacksonville, Florida 32201 =================================================================
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Respondent was licensed as a registered general contractor by the State of Florida, Construction Industry Licensing Board, having been issued license number RG 0014645. Respondent's address is 2533 Green Road, Tallahassee, Florida 32308. On or about October 30, 1985, Willie McFarland (McFarland) contracted with Virgil Fleming (Fleming) to perform certain improvements to Fleming's home located at 9008 Broken Lance, Tallahassee, Florida. The contract price was $24,600.00. There was no contract between Fleming and Respondent. Fleming paid McFarland $16,500.00 of the contract price. Most of this money was paid in advance of work being performed. MoFarland was not, at any time material to this proceeding, a licensed contractor in the State of Florida and both Fleming and Respondent knew that he was not a licensed contractor. McFarland was not authorized to pull a permit to complete the work and Fleming, upon finding this out, started to pull the permit as a homeowner but changed his mind. Respondent agreed to pull, and did pull, the permit for this job, after checking on McFarland and with the understanding that he would have to be involved with McFarland on the job. Without the permit, McFarland could not have continued with the job. Fleming did not pay any money to Respondent for pulling the permit or for anything else and there was no evidence that McFarland paid any money to Respondent for pulling the permit or anything else. McFarland partially completed the work contracted for with Fleming. The Respondent went to the job site on several occasions but was unable to make contact with McFarland. Respondent did make contact with McFarland on one (1) occasion after he had pulled the permit and obtained some promises from McFarland concerning the job but McFarland did not "live up" to those promises. There was credible testimony from Respondent that McFarland was not an employee of Respondent's business but that one of the conditions for pulling the permit required McFarland to be an employee of Respondent only on this job. Respondent had no knowledge of the financial arrangements between McFarland and Fleming until after the permit was pulled and McFarland had "skipped." The parties have been unable to locate McFarland.
Findings Of Fact At all times material hereto, Respondent was the holder of general contractor's license number CG C007235, and certified residential contractor's license number CR C006769. On or about January 6, 1976, Respondent entered into a Building Agreement with Walter and Ellen Scott (hereinafter "owners") for construction of a residence to be located at 10244 Deerwood Club Road in Jacksonville, Duval County, Florida. Among the provisions contained in this agreement was the following: [Respondent] will construct house for actual Construction Costs plus $10,000 profit. Addendum to contract Number 19 contains construction estimate sheet and allowance sheet which is guaranteed by [Respondent] not to exceed $85,000, plus $10,000 profit. All construction costs above $85,000 will be absorbed by contractor resulting from faulty workmanship or incorrect overall estimate. Additional costs resulting from exceeding allowances or phases not covered by estimate, (Wallpaper, Light fixtures, etc.), will be paid by purchaser. [Respondent] will be compensated at $2,500.00 out of each of the last four construction draws. Purchaser will be refunded in difference of construction under $85,000.00. Purchaser has the right to examine cost of construction at any stage to determine how close cost [sic] are running to estimate. (Emphasis added.) In addition, the Building Agreement contains a listing of allowances for various items such as carpet, flooring, wallpaper, doors, fireplaces, appliances, plumbing fixtures, wiring and windows. These provisions of the contract deal with standard items to be included in the construction, absent some request and agreement between the parties to specific changes. With respect to changes, the agreement provides specifically that: Should the Purchaser at any time during the progress of said residence require any alterations to or deviations from, additions to, or omissions, in said Agreement, which are acceptable to the Contractor, they shall have the right and power to make such change or changes when practicable, and the same shall in no way make void the Agreement; but the differences shall be added to, or deducted from the amount of the Agreement as the case may be, by a fair and reasonable evaluation . . . (emphasis added.) Finally, the Building Agreement also provides that Respondent was to use his best effort to deliver the completed residence on or about 180 days from the start of construction, which, by terms of the agreement, is defined as the date on which footings are poured or the day rough plumbing was begun. Although Respondent obtained a building permit for construction of the residence, from the City of Jacksonville, Florida, dated February 5, 1976, there is nothing in the record of this proceeding on which a firm determination can be made as to when construction actually started. Although the actual starting date for construction is unclear, it is obvious from the record that Respondent and the owners began to experience problems from the outset. The owners received a notice of lien soon after the slab for the residence was poured. In addition, there appears to have been some miscalculation with respect to the size of the slab for the structure to which some additions had to be made. Respondent apparently failed to pay for the initial treatment for subterranean termites at the time of the pouring of the slab, and the termite bond on the residence was cancelled. In addition, the slab appears to have been poured in such a fashion as to require adjustments in the construction of the driveway to avoid rainwater runoff entering the residence. One of the more difficult problems in the initial stages of construction involved leaks in the roof of the structure. When it appeared that efforts to repair the leaks had not been entirely successful, the owners requested that Respondent delay work on the interior in order that repairs on the roof might be accomplished before proceeding in order to avoid interior damage. After an extended delay occasioned by an unusual period of dry weather which prevented a determination as to whether the roof would continue to leak, work on the interior was recommenced, only to discover that the roof had not been sufficiently repaired. As a result of continuing problems with the roof, work which had been completed in the interior of the structure was damaged by rainwater. In fact, as of the date of final hearing in this cause, it appears that final repairs to the roof had still not been accomplished. It appears from the record that construction delays attributable to roof leaks in the residence set the tone for the remainder of the business dealings between Respondent and the owners. From this point forward, the relationship between Respondent and the owners became virtually adversary in tone. This state of affairs was complicated by an extensive series of changes or substitutions in the original plans and specifications by the owners. As indicated above, the original Building Agreement contained provisions concerning allowances for various portions of the work, and optional items which could be added at additional charge to the owner. Unfortunately, the record is unclear as to exact dollar amounts attributable to extras selected by the owners, as well as to amounts actually received by Respondent in the course of construction draws on the original contract. However, it is clear that extras selected by the owners totalled between $20,000 and $25,000. These items, which were not contained in the original contract, included ceramic tile flooring; double oven; wooden window frames; extensive extra bricking work, including brick more expensive than that described in the original contract; a larger driveway; burglar alarms; simulated marble vanities, tubs and sinks instead of cast iron fixtures as originally contemplated; crown moldings and interior door moldings throughout the interior of the residence; more expensive plumbing fixtures; extensive parquet flooring; larger closet areas; and extensive changes in the location of plumbing fixtures and electrical outlets. In addition, what appears from the evidence to have been a handmade stairway was substituted at an additional cost of approximately $5,000. The construction of the staircase not only included additional expense, but for some reason not entirely apparent from the record, caused additional delay in construction of other areas in the residence. Respondent apparently did not maintain a separate checking account for construction draws on this project, instead comingling disbursements on the construction loan with other funds in his general checking account. Additionally, no documentation was submitted by either Petitioner or Respondent to establish dates on which draw requests were either submitted by Respondent to the owners or the financial institution financing construction, or the dates on which any such draw requests were funded, either in whole or in part. As a result, it is virtually impossible from the record in this proceeding to determine the basis for disbursements from the construction loan account, or the disposition of those sums once disbursed. Although there was some general testimony about the filing of liens by various subcontractors, no documentation of these liens was submitted into evidence. What is, however, apparent from the record is that in early 1977, almost one year after initial disbursement of construction funds to Respondent, almost the entire $95,000 constituting the construction account was depleted. At that time the residence was approximately 90 percent complete. Thereafter, by Agreement dated February 18, 1977, Respondent and owners agreed that an additional $25,000 would be necessary to complete construction of the residence. Respondent acknowledged that he was in default under the terms of the original Building Agreement, and agreed to reimburse owners for the additional $25,000 needed to complete construction of the residence, subject to certain adjustments. Respondent agreed to complete construction of the residence within 40 days, and further agreed that the financial institution holding the mortgage on the residence was authorized to disburse the additional $25,000 directly to subcontractors, materialmen and laborers for work performed for services rendered on the property. Respondent executed a note in the amount of $25,000, secured by certain property belonging to him as evidence of his obligation to complete construction. However, shortly after execution of the February, 1977, Agreement, Respondent and owners had a dispute over payment of certain laborers. As a result, Respondent was advised by owners not to return to the job site. After this notification, evidence in the record establishes that Respondent contacted the financial institution which held the mortgage on the property and advised them that he would not be completing construction of the residence. It is clear from the record that the owners had more than ample cause for dissatisfaction with both the quality of workmanship and the timeliness with which work was performed by Respondent. Those matters are not, however, at issue in this proceeding. It is also abundantly clear that both Respondent and owners conducted their dealings with one another in a most informal fashion. With the exception of the original Building Agreement, and the February, 1977, agreement, most of the dealings between Respondent and the owners were verbal. Additionally, the absence of detailed documentary evidence makes resolution of many of the factual disputes in this proceeding difficult at best. However, the record clearly establishes that Petitioner failed to request that official notice be taken of any of the provisions of the building codes or other laws of the City of Jacksonville, and that none of these codes or laws were offered into evidence in this proceeding. As a result, a motion to dismiss that portion of the Administrative Complaint alleging violation of applicable building codes was granted by the Hearing Officer at the close of Petitioner's case. Further, although the owner testified as to his belief that certain building materials were "floating" between the project which is the subject of this proceeding and other projects being constructed by Respondent, there is no direct evidence to establish that Respondent, in fact, diverted any funds or property improperly. Finally, as to the question of abandonment, it appears from the record that the owner dismissed the Respondent prior to the expiration of the 40-day period contemplated in the February, 1977, Agreement, and that Respondent advised both the owner and the financial institution financing construction of the project that he would not complete construction of the residence as contemplated in the various agreements between the parties.
The Issue Whether Respondent operated as a contractor under the name of Olen Homes, in violation of Section 489.129(1)(g), Florida Statutes by failing to qualify as a contractor under said name. Whether Respondent failed to pay a subcontractor for services performed in violation of Section 489.129(1)(m), Florida Statutes.
Findings Of Fact Petitioner is the state agency charged, in conjunction with the Construction Industry Licensing Board, with the responsibility to prosecute administrative complaints pursuant to Chapter 489, 455, and 120, Florida Statutes, and the rules promulgated pursuant thereto. At all times material to the Administrative Complaint, Respondent Milton W. Olen was a certified residential contractor in the State of Florida, holding license number CR C024221. At all times material hereto, Respondent's licensure was registered with the Construction Industry Licensing Board, as an individual, and the Respondent did not qualify Olen Homes. On or about November 9, 1987, the Respondent's company, Olen Homes, contacted Donald L. Grider of "A Final Touch Cleaning Service" to provide the final cleanup on a home the Respondent was constructing at 1255 Kelso Boulevard, Orange County, Florida. A Final Touch Cleaning Service completed the cleanup on November 30, 1987, and an invoice was mailed to Olen Homes in the amount of $1,014.00, on December 9, 1987. Donald L. Grider mailed a second copy of the invoice to Olen Homes on January 22, 1988. On February 19, 1988, Respondent acknowledged the debt, but stated he was having financial problems. He promised to pay off his bills. Mr. Grider demanded full payment for the job by letter dated August 8, 1988. Mr. Grider received a document from the Respondent on or about August 15, 1988, which Respondent claimed relieved him of responsibility for payment of Mr. Grider's bill. On September 19, 1988, Mr. Grider forwarded documents to the Respondent which indicated the Respondent was responsible for payment. Mr. Grider has not been paid any sum by the Respondent as of April 17, 1990, the date of the formal hearing in this matter. Respondent previously received a letter of guidance from the Board on November 19, 1988.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondent be found guilty of contracting or acting in the capacity of a contractor, under the name of Olen Homes when his license was registered with the Construction Industry Licensing Board as an individual. Section 489.129(1)(9), Florida Statutes. It is recommended that an administrative fine of $250 be imposed. Respondent be found guilty of misconduct by failing to pay a subcontractor for services rendered under a contract with Respondent. Section 489.129(1)(m), Florida Statutes. It is recommended that an administrative fine of $1500 be imposed. DONE AND RECOMMENDED this 14th day of May, 1990, 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 14th day of May, 1990. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. PETITIONER'S PROPOSED FINDINGS Adopted in full. Respondent did not file proposed findings. COPIES FURNISHED: G. W. Harrell, Esquire Kenneth D. Easley Department of Professional General Counsel Regulation Department of Professional Northwood Centre Regulation 1940 North Monroe Street Northwood Centre Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Suite 60 Tallahassee, FL 32399-0792 Milton W. Olen, Jr. 250 International Parkway, NO. 160 Lake Mary, FL 32746 Steven Michael Labret, Esquire 501 North Magnolia Avenue Suite A Orlando, FL 32801 Fred Seely Executive Director Construction Industry Licensing Post Office Box 2 Jacksonville, FL 32202
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent James W. Geary presently holds certified general contractor's license number CG C005775. Respondent Geary apparently entered into a contract with Phillip Smith to add a screened porch to the Smith residence. Neither the contract nor the testimony of Mr. Smith were made available to the undersigned Hearing Officer. Respondent had difficulty obtaining a roofer and completion of the project was therefore delayed. During the interim, the interior of the Smith's living room suffered water damage. After receiving a complaint from the Smiths, Mr. Robert Jahn, Chief Building Official for the City of Tamarac, personally inspected the Smith project. He found that the water damage was caused by the uncompleted work of respondent and certain violations of the Southern Florida Building Code. Jahn did not know how long the project had not been worked on, but Smith told him he had tried for about one month to get respondent to return to correct the situation. Respondent testified that when he sent a man to the Smith residence to install the roof columns, Smith chased the man off the job. Upon the delivery of certain supplies for his projects, respondent Geary, d/b/a First Triangle Corporation, wrote two checks in the total amount of $391.41 payable to Rinker Materials. (Exhibit 1) These checks were offered for payment by Rinker, and were returned due to insufficient funds. The former credit manager of Rinker Materials did not know whether anyone from Rinker had contacted respondent about the checks. Respondent testified that no one from Rinker had informed him that the checks were dishonored. However, respondent did receive notice from his bank that the checks had been returned. He was changing banks about the same time and felt that the bank had made mistakes in the past. He felt that the checks were good when issued and he therefore did not put much reliance upon the notices received from the bank. Respondent testified that he is ready, willing and able to honor the checks written to Rinker Materials. Respondent Geary apparently entered into a contract with Richard Decker for the addition of a five by eleven foot bathroom to the Decker's residence. Neither the contract, the plans or specifications nor the testimony of Mr. Decker were offered into evidence at the Hearing. Respondent felt there were no deviations between the finished product and the job specifications, and that, even if there had been, there was no way he could put a five foot vanity into the project without violating the applicable building code. The field investigator for petitioner's District No. 10 found deviations from the plans with regard to the size of the vanity, the bathroom door and the illumination. He found that the Deckers had not indicated their approval of such deviations by placing their initials on the plans or specification. The South Florida Building Code (302.2(b)) provides that when the cost of a job is over $5,000.00, the permit applicant must present plans signed and sealed by a registered architect or engineer. A larger permit fee is also required for jobs costing over $5,000.00. On or about April 9, 1976, respondent Geary applied to the City of Tamarac for two building permits. (Exhibit 2). While blueprints were submitted, no plans signed and sealed by a registered architect Or engineer were submitted. From the square footages contained on the right hand column of the application, Chief Building Official Jahn determined that the value of the two projects were $7,300.00 and $6,620.00. The contract prices for these projects were approximately $8,000.00 and $10,000.00. There was no conclusive testimony as to who supplied the footage information on these applications, It was respondent's opinion that the actual costs of these projects did not exceed $5,000.00. Respondent apparently entered into a contract with Daniel Salzman for some project, and then entered into a second contract for the construction and installation of a fence and a trellis. For this second project, respondent received a deposit of $825.00. The first job was never completed by respondent and respondent never began work on the fence and trellis project. Respondent admitted that some $500.00 was due Mr. Salzman as a refund for the second project. He testified that he instructed Mr. Salzman to have the work on the first project completed by someone else and then to send respondent the bill for the same. Respondent has not heard from Salzman regarding this matter. By letter dated November 20, 1976, Chief Building Official Jahn notified respondent that "No further building permits [would] be issued to First Triangle Builders with you as their qualifier because of numerous complaints and unfinished projects." As indicated in the Introduction, petitioner filed an administrative complaint against respondent seeking to revoke his license for violations of certain ordinances and Florida Statutes S468.112(2). The cause was referred to the Division of Administrative Hearings for the appointment of a Hearing Officer, and the undersigned was designated to conduct the hearing.
Recommendation Based upon the findings of fact and conclusions of law recited above, as well as the seriousness of the offenses of which respondent has been found guilty, It Is recommended that respondent's certified general contractor's license number CG C005775 be revoked. Respectfully submitted and entered this 18th day of July, 1977, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (488-9675) Area Code 904 COPIES FURNISHED: Barry Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 Mr. James W. Geary 4370 Northwest 32nd Court Lauderdale Lakes, Florida Wallace Norman Construction Industry Licensing Board 305 South Andrews Avenue Ft. Lauderdale, Florida 33301 J. K. Linnan, Executive Director Construction Industry Licensing Board Post Office Box 8621 JacksonvIlle, Florida 32211
The Issue The issue in this case is whether the Pinellas County Construction Licensing Board should discipline the Respondent for alleged failure or refusal to satisfy a civil judgment in a reasonable period of time.
Findings Of Fact The Respondent, Bradley T. Barbour, has not disputed that he is a certified tile and marble specialty contractor, holding Pinellas County Construction Licensing Board license number C-5778. The Respondent entered into a contract with Cameron Vale to tile the floor of his house. The tile job was unsatisfactory to Vale, who sued in the County Court, Pinellas County, Small Claims Division, Case No. 93-5287 SC-NCD. On February 14, 1994, Vale and the Respondent entered into a Pretrial Conference Agreement. Under the Agreement, the Respondent agreed, among other things, to pay Vale $2,500, payable $200 a month beginning February 18, 1994, until paid in full. Based on the Agreement, Vale and the Respondent filed a Stipulation to Stay Entry of Judgment on February 14, 1995, and two days later the court entered an Order staying entry of final judgment. Contrary to the terms of the Agreement and Stipulation, the Respondent only made one payment of $100. On June 7, 1994, the court entered a Judgment against the Respondent in the amount of $2,400, together with 12 percent interest on the Judgment. The Respondent has made no payments to Vale on the Judgment and has not satisfied the Judgment either in full or in part. The Board has published "Guidelines for Disciplinary Action" which provide for a $300 fine as the "typical" penalty for the first "minor" infraction and a $750 fine as the "typical" penalty for the first "major" infraction. The Guidelines give no guidance in distinguishing between "minor" and "major" infractions. The Guidelines also list aggravating and mitigating circumstances which focus on the harm done by the offense, the licensee's efforts to rectify the situation, and whether there is a history of similar offenses by the licensee. They also authorize suspension or revocation and fines "not to exceed $1,000 per count."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County Construction Licensing Board enter a final order: (1) finding the Respondent guilty of violating Section 24(2)(c) of Chapter 75-489, Laws of Florida (1975), as amended; (2) fining him $750; (3) revoking his license; and (4) conditioning relicensure upon both full restitution to Cameron Vale under the terms of the outstanding Judgment and full payment of the fine imposed in this case. RECOMMENDED this 23rd day of June, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 23rd day of June, 1995. COPIES FURNISHED: William J. Owens Executive Director Pinellas County Construction Licensing Board Suite 102 11701 Belcher Road Largo, Florida 34643-5116 Bradley T. Barbour B & B Tile 2035 Philippe Parkway Safety Harbor, Florida 34695
