The Issue The Florida Construction Industry Licensing Board, Petitioner, seeks to revoke the registered contractor's license of Stephen J. Borovina, Respondent, based on allegations, which will be set forth in detail hereafter, that he engaged in conduct violative of Chapter 468, Florida Statutes. The issue presented is whether or not the Respondent aided or abetted and/or knowingly combined or conspired with Mr. Howard North, an uncertified or unregistered contractor, to evade the provisions of Chapter 468.112(2)(b), and (c), Florida Statutes, by allowing North to use his certificate of registration without having any active participation in the operations, management, or control of North's operations. Based on the testimony adduced during the hearing and the exhibits received into evidence, I make the following:
Findings Of Fact The Respondent is a certified general contractor who holds license no. CGC007016, which is current and active. On or about July 25, 1976, Mr. and Mrs. Julius Csobor entered into a contract with Mr. and Mrs. Howard North for the construction of a home in Martin County, Florida, for a total price of $35,990. Neither Mr. or Mrs. North are certified or registered contractors in the State of Florida. (Petitioner's Composite Exhibit #2). Respondent applied for and was issued a permit by the Martin County Building Department to construct a residence for the Csobors at the same address stipulated in the contract between the Csobors and the Norths, i.e., Northwest 16th Street, Palm Lake Park, Florida. (Petitioner's Composite Exhibit #1). Howard North, a licensed masonry contractor for approximately nine (9) years was contacted by the Csobors through a sales representative from a local real estate firm. It appears from the evidence that North had previously constructed a "spec" house which the local realtor had sold and thus put the Csobors in contact with Mr. North when they were shown the "spec" house built by North. Evidence reveals that North contacted Borovina who agreed to pull the permit "if he could get some work from the job and could supervise the project". Having reached an agreement on this point, North purchased the lot to build the home for the Csobors and he orally contracted with the Respondent to, among other things, pull the permit, supervise construction, layout the home and do trim and carpentry work. North paid Respondent approximately $200 to layout the home for the Csobors. By the time that North had poured the slab and erected the subfloor, the Csobors became dissatisfied with his (North's) work and demanded that he leave the project. According to North, Respondent checked the progress of construction periodically. Prior to this hearing, the Csobors had never dealt with Respondent in any manner whatsoever. According to Csobor, North held himself out as a reputable building contractor. A contractor is defined in relevant part as any person who, for compensation, undertakes to, or submits a bid to, or does himself or by others, construct, repair, etc. . . . real estate for others. . . Chapter 468.102(1), Florida Statutes. Applying this definition to the facts herein, it appears that the Respondent, at least in a literal sense, satisfied the requirements and obligations of a contractor, as defined in Chapter 468.102, Florida Statutes. Thus, he contracted with North to oversee and/or supervise the project for the Csobors which he fulfilled, according to the testimony of North. Said testimony was not refuted and thus I find that no effort was made by Respondent to evade any provision of Chapter 468, Florida Statutes. Accordingly, I shall recommend that the complaint filed herein be dismissed in its entirety.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the complaint filed herein be dismissed in its entirety. RECOMMENDED this 4th day of November, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry S. Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 Stephen J. Borovina 2347 Southeast Monroe Street Stuart, Florida 33494 J. Hoskinson, Jr. Chief Investigator Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. DIVISION OF ADMINISTRATIVE HEARINGS, DOCKET NO. 77-1442 STEPHEN J. BOROVINA, CG C007016, 2347 S. E. Monroe Street, Stuart, Florida 33494, Respondent. / This cause came before the FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD at its regular meeting on February 10, 1978. Respondent was sent the Hearing Officer's findings and recommendations and was given at least 10 days to submit written exceptions to the recommended order. Respondent was notified of the meeting so that respondent or counsel might appear before the Board. Respondent did not appear The FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD on February 10, 1978, after reviewing a complete transcript of the Administrative Hearing, by motion duly made and seconded voted to revoke the certified general contractor's license of STEPHEN J. BOROVINA. It is therefore, ORDERED that the certification of respondent STEPHEN J. BOROVINA, Number CG C007016, be and is hereby revoked. Respondent is hereby notified that he has 30 days after the date of this final order to appeal pursuant to Chapter 120, Florida Statutes, and the Florida Appellate Rules. DATED this 13th day of February, 1978. FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD BY: JOHN HENRY JONES, President ================================================================= SECOND AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD STEPHEN J. BOROVINA, CG C007016, Respondent/Appellant, vs. DIVISION OF ADMINISTRATIVE HEARINGS, DOCKET NO. 77-1442 FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner/Appellee. / This cause came before the Florida Construction Industry Licensing Board at its regular meeting on August 3, 1979. The respondent was sent the Hearing Officer's findings and recommendations and was given at least 10 days to submit written exceptions to the recommended order. Respondent was notified of the meeting so that respondent or counsel might appear before the Board. Respondent did appear. The Florida Construction Industry Licensing Board, on August 3, 1979, after reviewing a complete transcript of the Administrative Hearing, by motion duly made and seconded, voted to revoke the certified general contractor's license of Stephen J. Borovina, No. CG C007016. On February 13, 1978, the certification of respondent, Stephen J. Borovina, No. CG C007016, was revoked by order of the Florida Construction Industry Licensing Board. On April 25, 1979, the District Court of Appeal of the State of Florida, Fourth District, in Case Number: 78-527, reversed the final order of the Florida Construction Industry Licensing Board. That Court remanded the above captioned case to the Board to further consider the matter and enter such order as it may be advised in conformity with Section 120.57(1)(b)(9), Florida Statutes (1977). In accordance with the decision of the Florida District Court of Appeal, Fourth District, the Board has reconsidered the above captioned matter and finds as follows: The Board rejects the recommended order as the agency's final order. The Board adopts the first paragraph of the hearing officer's finding of fact. The Board, however, rejects the findings of fact found in the second paragraph of the hearing officer's findings. The second paragraph states as follows: A contractor is defined in relevent(sic) part as any person who, for compensation, undertakes to, or submits a bid to, or does himself or by others, construct, repair, etc. real estate for others...Chapter 468.102(1), Florida Statutes. Applying this definition to the facts herein, it appears that the Respondent, at least in a literal sense, satisfied the requirements and obligations of a contractor, as defined in Chapter 468.102, Florida Statutes. Thus, he contracted with North to oversee and/or supervise the project for the Csobors which he fulfilled, according to the testimony of North. Said testimony was not refuted and thus I find that no effort was made by Respondent to evade any provision of Chapter 468, Florida Statutes. Accordingly, I shall recommend that the complaint filed herein be dismissed in its entirety. The findings of fact found in the above-quoted paragraph were not based upon competent substantial evidence. The competent substantial evidence supports a finding that the respondent, Stephen J. Borovina, did not supervise the project and that Borovina evaded the provisions of Chapter 468, Florida Statutes. The following evidence supports the Board's position: There was no written agreement entered into between Howard North and the respondent which indicated that the respondent was to supervise the construction of the Csobors' house (T- 14); It was conceded at the hearing that the only subcontractors or draftmen who worked on the Csobors' house were contracted solely by Howard North and they had no contract whatsoever with the respondent (T-19, 25); The respondent never advised or informed Mr. and Mrs. Csobor that he was the contractor on the job. (T-51); At all times during the act of construction of the house, Mr. and Mrs. Csobor were under the impression that Howard North was the contractor (T-44-51). It is, therefore, ORDERED: That the certification of respondent, Stephen J. Borovina, Number CG 0007016, be and is hereby revoked. Respondent is hereby notified that he has thirty (30) days after the date of the Final Order to appeal pursuant to Chapter 120, Florida Statutes, and the Florida Appellate Rules. Dated this 3rd day of August, 1979. FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD BY: JOHN HENRY JONES, President
Findings Of Fact At all times material hereto, Respondent has been a registered roofing contractor having been issued License No. RC 0041149. Respondent's address of record is Miami, Florida. The Dade County Construction Trades Qualifying Board is authorized to discipline tradesmen and contractors in Dade County, Florida. By letter dated September 17, 1986, the Metropolitan Dade County, Florida, Building & Zoning Department advised Respondent that a formal hearing would be held before the Dade County Construction Trades Qualifying Board on 35 charges arising out of Respondent's roofing and painting activities. A formal hearing was conducted on November 13, 1986, at which time 24 of the 35 charges were dismissed, and the formal hearing was continued. By letter dated January 21, 1987, the Metropolitan Dade County, Florida, Building & Zoning Department advised Respondent that the continuation of his formal hearing would be held on February 12, 1987, at which time 4 additional charges, enumerated in that letter, would also be heard. At the conclusion of the formal hearing on February 12, 1987, 12 more of the charges were dismissed. Out of the total of 39 charges filed against Respondent, Respondent was found guilty of 3 charges. The Construction Trades Qualifying Board ordered that the business and personal certificates of Respondent be revoked and that Respondent be fined a total of $5,000. Respondent was present and had the opportunity to be heard at the formal hearing conducted on November 13, 1986, and on February 12, 1987. After Respondent was advised of the disciplinary action imposed by the Construction Trades Qualifying Board, he paid the fine imposed upon him. He also made restitution to the two homeowners involved. One of the homeowners was complaining about a leak in the roof that Respondent had installed. Respondent gave the homeowner another new roof at no cost. The other homeowner had refused to pay for the installation of the roof, and Respondent had placed a lien against the property. Respondent cancelled the lien on the property so that that homeowner received the new roof for free. Respondent's licenses were reinstated by the Dade County Construction Trades Qualifying Board, and Respondent remains in good standing with that local agency. Respondent has been previously disciplined by the Florida Construction Industry Licensing Board as a result of an informal proceeding held on January 9, 1986. The final order from that proceeding assessed a $250 fine against Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Administrative Complaint filed herein and imposing against him an administrative fine in the amount of $500 to be paid by a date certain. DONE and RECOMMENDED this 29th day of February, 1988, at Tallahassee, Florida. LINDA M. RIGOT, 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 29th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3892 Petitioner's proposed finding of fact numbered 1 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law. The remainder of Petitioner's proposed findings of fact have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact are contained in a letter which, essentially, is simply an attempt to reargue the facts underlying the local disciplinary action and to establish the fact that he is an excellent roofer. Only those sentences which relate to the restitution made to the two customers by giving them free roofs have been adopted in this Recommended Order, and the remainder of the sentences have been rejected as being irrelevant to the issue involved in this proceeding. COPIES FURNISHED: Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Jonathan Ring, Esquire Peter Fleitman, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Louis Gordon 14870 Southwest 205th Avenue Miami, Florida 33187 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
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
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 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 The issues in this matter are as established through an Administrative Complaint brought by the State of Florida, Department of Professional Regulation, against Johnny C. Fossett alleging various violations of Chapter 489, Florida Statutes, related to a job conducted for Joshua and Jacquelyn Williams. More specifically, Respondent is accused of violation of Section 489.129(1)(j) , Florida Statutes (1981), by failing to properly qualify a company under which he was doing business. In a related vein, he is accused of violation of Section 489.129(1)(g) Florida Statutes (1981), by acting in a name other than that on his license. Respondent is accused of violating Section 489.129(1)(d), Florida Statutes (1981), for willful and deliberate disregard and violation of a local building code. Respondent is accused of violating Section 489.129(1)(j), Florida Statutes, for contracting beyond the scope of his registration. Finally, Respondent is accused of a violation of Section 489.129(2), Florida Statutes,(1981), in violating Rule 21E-15.07, Florida Administrative Code, by failure to notify the Construction Industry Licensing Board of a change of address within 30 days of such change.
Findings Of Fact Respondent, Johnny C. Fossett, is the holder of a license issued by the Florida Construction Industry Licensing Board in the field of registered roofing contractor. That license number is RC 0040728. Respondent is also the qualifying agent of J. C. Fossett Roofing & Maintenance Repair of 4978 Soutel Drive, Jacksonville, Florida. In addition to the Soutel address associated with J. C. Fossett Roofing & Maintenance Repair, Respondent has given the Florida Construction Industry Licensing Board the address 8937 Castle Boulevard, Jacksonville, Florida, as his address. On April 15, 1983, Respondent contracted with Joshua and Jacqelyn Williams of 4634 Fairleigh Avenue, Jacksonville, Florida, for the construction of a utility building with roof; to repour a carport slab; and to construct a screened-in patio with roof. The agreement was also for the removal of a tree hanging over the den and carport area of the existing home. The total price of this contract was $3,550. Eighteen hundred dollars was paid as a deposit, and the remainder of the contract price was paid on May 11, 1983. In the proposal or contract agreement Respondent noted that the work was guaranteed by an entity known as J. C. Roofing. A copy of this proposal may be found as Petitioner'S Exhibit No. 2 admitted into evidence. Neither the Respondent nor any other duly licensed contractor had qualified the entity/organization known as J. C.. Roofing with the Florida Construction Industry Licensing Board. Respondent performed the work called for in the contract, without obtaining the necessary building permit from the City of Jacksonville, Florida. Respondent was registered with the City of Jacksonville as a roofing contractor. He was not registered in the fields of general contracting, building contracting, or residential contracting, which would have been necessary before Respondent could conduct that work for the Williamses, other than roofing. Respondent could not have been registered with the City of Jacksonville in those fields of general contracting, building contracting, and residential contracting because he was not qualified. The Williamses experienced problems with the quality of Respondent's work, most notable, leaks in the roof that Respondent had worked on. When it rained water would run down the walls and promote mildew. This was in the area of the joining of the roof over the patio and the roof over the carport. In response to complaints, Fossett made such remarks as "A little water on the roof is good" and offered to drill holes in the roof and install rain gutters to alleviate the problem. The owners found this unacceptable. Respondent having failed to satisfy their claims, the Williamses sought other assistance in effecting repairs. The roof still leaks. On the occasion of attempting to have these problems corrected, the Williamses sought to contact the Respondent at his Soutel address by calling the number found on the business card provided by the Respondent. When phoning that number it was discovered that someone other than the Respondent was doing business from the Soutel address. The phone number was the Respondent's residential number. The card, as given to the Williamses, indicates that the business is J & C Roofing Company, Johnny C. Fossett, Owner. Again, this business name is one for which the Florida Construction Industry Licensing Board has no indication of a duly licensed contractor properly qualifying that entity, either the Respondent or some other person. Petitioner's Exhibits Nos. 5 through 7, admitted into evidence, are photographs of the work done by the Respondent, to include roofing, and the mildew on the concrete blocks found on the outside of the patio wall which was promoted by the leak in the roof.
The Issue Whether Petitioner is entitled to be certified by endorsement as a standard building inspector.
Findings Of Fact Respondent is the agency of the State of Florida that certifies standard building inspectors pursuant to the provisions of Part XII of Chapter 468, Florida Statutes (consisting of Sections 468.601 - 468.633). By application dated November 7, 1996, Petitioner applied for certification as a building inspector. This application contemplated that Petitioner would sit for the certification examination. Respondent determined that Petitioner was qualified to sit for the Principles and Practice portion and the Technical portion of the certification examination. Petitioner did not achieve a passing score on the certification examination. Consequently, his application for certification was rejected. By application dated December 22, 1997, Petitioner applied for certification as a building inspector without having to take the licensure examination. This was properly construed by Respondent to be an application for certification by endorsement. Petitioner requested Respondent to waive the certification examination pursuant to the provisions of Section 468.613, Florida Statutes, which provide as follows: The board shall examine other certification of training programs, as applicable, upon submission to the board for the consideration of an application for certification by endorsement. The board shall waive its examination, qualification, education, or training requirements to the extent that such examination, qualification, education, or training requirements are determined by the board to be comparable with those established by the board. By his application dated December 29, 1997, Petitioner sought certification based upon his qualifications1 and upon what his counsel referred to as "substantially equivalent" exams. The "substantially equivalent" exams to which counsel for Petitioner referred were to the examinations Petitioner passed in order to be licensed as a general contractor and as a roofing contractor. Petitioner's application reflects that he passed licensure examinations during 1983 in Broward County and in Dade County in the general contractor category. Petitioner passed a similar examination in Palm Beach County, Florida, in 1986. Part XII of Chapter 468, Florida Statutes, was created by Chapter 93-166, Laws of Florida. Prior to 1993, there was no state-wide certification of building inspectors. There was no evidence as to the contents of the examinations Petitioner passed in 1983 and 1986, and there was no evidence as to the contents of the certification examination administered by Respondent to candidates for certification as building inspectors. Consequently, there is no basis upon which a comparison of these examinations can be made.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's application for certification by endorsement be denied. DONE AND ENTERED this 21st day of April, 1999, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1999.
