The Issue The issue presented for decision herein is whether or not Respondent's certified general contractor's license should be revoked, suspended, or otherwise disciplined based on conduct set forth in two Administrative Complaints filed herein dated March 14 and July 19, 1984.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. At all times material hereto, Respondent was a certified general contractor in Florida and has been issued license number CGC 015834. 3/ (Petitioner's Exhibit 1) Petitioner is an agency of the State of Florida responsible for enforcing the provisions of Chapter 489, Florida Statutes, relating to the imposition of licensure standards and standards for the practice of contracting. During times material hereto, Respondent was a full-time employee of the Metropolitan Dade County Aviation Authority. At no time during his employment with the authority did Respondent advise the Dade County Aviation Authority that he was performing work outside the scope of his employment while on County time. When confronted with the results of an investigation undertaken by the Dade County Attorney's Office in June of 1983 with regard to his (Respondent's) possible violation of the Code of Metropolitan Dade County, Respondent resigned from his position with the County. (Tr. pages 101-102) DOAH CASE NO. 84-1298 During late February, 1983, Albert Kairy contracted with an unlicensed contractor for the closure of a carport at his residence located in North Miami, Florida. After observing Respondent's classified advertisement in a local flier, Kairy contacted Respondent with regard to preparing necessary blueprints for the enclosure. Kairy contracted with Respondent to prepare both the blueprints and to supervise the activities of the unlicensed contractor. The contract amount was $400. On February 25, 1983, Kairy received an owner/builder permit for the carport enclosure from the City of North Miami. (Tr. pages 7-10, 93) Subsequently, problems began to develop with work performed by the unlicensed contractor and Respondent persuaded Kairy to dismiss that individual and to retain him as the contractor. On March 7, 1983, Respondent entered into a contract with Kairy to construct a room addition to the residence. (Petitioner's Exhibit 2) The project was to be completed pursuant to plans and specifications approved by the City of North Miami. The contract called for a bedroom addition; an additional bathroom and a utility room. The contract included extending the carport wall approximately 101 feet. The contract price was $14,500 which included an advance of $2,500. On March 12, 1983, Respondent entered into a second construction contract with Kairy. (Petitioner's Exhibit 3, Tr. 19) The contract price was $15,000. Except for the increase in the contract price, Kairy was led to believe that the terms and conditions of the second contract were substantially similar to the contract previously executed by the parties on March 7, 1983. However, Respondent reduced the extension of the carport wall to 10 feet and Respondent did not inform Kairy of this reduction. (Tr. page 48) The contract called for draw payments as follows: $4,000 as a downpayment/advance; $3,000 upon completion of slab and block walls; $1,500 upon completion of piping and tie-columns; $2,500 upon completion of partition and drywall; $3,000 upon completion of the roof, and $1,000 upon completion of the job. (Petitioner's Exhibit 3) Respondent subsequently applied for a permit from the City of North Miami. The City of North Miami denied Respondent's application because Respondent failed to comply with the Dade County licensing requirements. (Tr. pages 21-22) Although Respondent acted in the capacity of a general contractor, he (Respondent) requested that Kairy obtain a owner/builder permit. Upon applying for the owner/builder permit, the City cancelled the original permit for the carport enclosure. (Tr. page 94) Kairy obtained the owner/builder permit pursuant to Respondent's assurances the permit would be properly transferred to Respondent's contracting license. The City provided Kairy with a "hold harmless letter" for Respondent to execute. (Petitioner's Exhibit 4) Upon presentation of that letter by Kairy to Respondent, Respondent refused to execute the "hold harmless letter." (Tr. pages 22-24) Subsequently, Kairy and Respondent executed an addendum to the construction contract. The addendum involved changing the enclosures roof structure from shingle to barrel tile. This change involved a price difference of $1,950 and increased the total contract price to $16,950. (Petitioner's Exhibit 5, Tr. pages 31-32) The addendum was executed after completion of the tie-beam and tie- column portion of the construction project. Pursuant to the terms and conditions of the March 12, 1983 construction contract, Kairy provided Respondent with the following amounts: $4,000 as an advance/downpayment on March 21, 1983; ($2,500 under the March 7 contract plus an additional $1,500); $3,000 upon completion of the slab and block work; $400 for preparation of the original set of plans; $500 toward tinted windows; $1,500 upon completion of the tie-beam and tie- column; $1,500 as an advance on the barrel tile roof; and $1,500 as an advance upon the completion of the roofs. (Petitioner's Exhibit 6) Kairy paid Respondent a total of $12,400 on the total contract price of $16,950 or approximately 73 percent of the contract price. Kairy timely remitted to Respondent installment payments for the slab and block work, tie- beam and tie-columns and advanced Respondent $3,000 towards completion of the roof. During April, 1983, Respondent commenced construction for enclosing the roof structure. Respondent ceased all construction activity upon being informed (by Kairy) that he would no longer pay Respondent in cash. (Tr. page 44) Respondent refused to accept payment in any form other than cash and offered no explanation, reason or excuse to Kairy for the cessation of work on this project. Kairy offered several reasons for his refusal to pay contract installments in cash. First, Respondent refused to execute the hold harmless letter provided by the City of North Miami and Respondent failed to properly supervise the construction activities by, among other things, disappearing from the project for a period of approximately three weeks. Finally, Respondent requested additional advances on the contract while the project was not progressing as scheduled. (Tr. pages 28, 44-46) Respondent did not return to the construction site after Kairy refused cash payments. On July 20, 1983, Respondent's roofing subcontractor filed a claim of lien against Kairy's property in the amount of $1,210. (Petitioner's Exhibit 8) Respondent has failed to satisfy the claim of lien and Kairy is in the process of satisfying that claim. (.Tr. page 54) Respondent also failed to pay an electrical subcontractor for services provided in the amount of $965. (Petitioner's Exhibit 7) Again, Kairy is currently in the process of satisfying that debt and Respondent refuses to honor that obligation. (Tr. 57) Kairy reimbursed the plumbing subcontractor in the amount of $675 after Respondent's personal check was returned due to insufficient funds. (Tr. page 62 and Petitioner's Exhibit 9) On April 1, 1983, the City of North Miami Building Department inspected the foundation and slab. On April 18, 1983, the Building Department inspected the tie-beam and columns. On May 6, 1983, the City of North Miami Building Department performed a tin-cap inspection on the enclosure roof. The City of North Miami Building Department estimated the actual construction completed when Respondent left the project and determined that it was approximately 70 percent complete. Completed construction included the slab, foundation, walls and tie-beam. Little interior construction work had been performed and drywall and partition walls were only partially complete. Kairy has either expended or will be required to expend the following sums in connection with the contract with Respondent: $12,400 - the amount paid directly to Respondent; $1,210 - the amount of the roofer's lien; $965 representing the amount owed to the electrician; and $675 representing the amount Kairy paid the plumbing subcontractor for a total of $15,250. 4/ Although Respondent completed approximately 70 percent of the actual construction, Kairy will correspondingly be required to expend approximately 90 percent of the contract price over and above monies paid to Respondent to complete this project. DOAH CASE NO. 84-3202 On May 12, 1983, the City of Miramar issued William Borden an owner/builder permit for the construction of a four-bedroom, three-bath home to be located in Miramar, Florida. (Petitioner's Exhibit 8) Between May and October, 1983, the Bordens performed the site preparation necessary for pouring the building's foundation and slab. After observing Respondent's classified advertisement in a local flier, the Bordens contacted Respondent with regard to the construction of their home. (Tr. page 16) On November 11, 1983, Respondent contracted with the Bordens to provide certain contracting services relative to the construction of their home. The Bordens contracted Respondent to pour the foundation and slab, perform the block work, frame and pour the tie-beam and tie-columns. (Petitioner's Exhibit 3, Tr. pages 18-20) The Bordens were to complete all of remaining construction of their home) The contract price was approximately $16,810. On October 17, 1983, the City of Miramar issued William Borden an owner/builder permit. (Petitioner's Exhibit 7) William Borden was to install the rough plumbing prior to Respondent pouring the foundation and slab. (Tr. 33) Due to certain time constraints, Respondent offered to install the rough plumbing. On October 25, 1983, Respondent received $475 from the Bordens toward installation of the rough plumbing. Respondent failed to subcontract the installation of the rough plumbing and failed to obtain the necessary building permit. On November 8, 1983, the Bordens provided Respondent an additional $470 representing final payment for installation of the rough plumbing. (Petitioner's Exhibit 4) On November 1, 1983, Mr. Bill Lafferty, chief building and mechanical inspector for the City of Miramar, performed an inspection of the rough plumbing work performed for the Bordens by Respondent. Lafferty determined that Respondent had failed to install the rough plumbing in accordance with provisions of the South Florida Building Code as adopted by the Broward County Code. As a consequence, Lafferty required Respondent to remove and reinstall the rough plumbing in accordance with applicable building code provisions. On November 7, 1983, Lafferty reinspected and approved the rough plumbing as reinstalled by Respondent. (Tr. pages 51-55) Respondent reinstalled rough plumbing at the Borden residence during the first week of November, 1983. Respondent did not obtain a building permit prior to reinstalling the rough plumbing. On November 16, 1983, the City of Miramar levied against Respondent a fee totalling $163.45. Part of that levy included $63.45 for renewal of the building permit and reinspection fee, and the remaining $100 represented a fine against Respondent for failing to properly obtain a building permit. (Tr. pages 58, 64 and Petitioner's Exhibit 7) On November 10, 1983, Salvatore Jenco, structural building inspector for the City of Miramar Building Department, inspected and approved the footing slab for the Borden residence. Subsequently, Respondent poured the concrete slab and foundation. Respondent did not obtain the requisite building permit prior to proceeding with construction. Respondent could not properly proceed with construction pursuant to William Borden's owner/builder permit. On November 11, 1983, inspector Jenco reinspected the concrete slab and foundation as poured by Respondent. As a result of that inspection, Jenco ordered all construction activities to be stopped at the Borden project. Specifically, Respondent materially deviated from the architect's plans and specifications by failing to pour a monolithic (continuous) slab and foundation for the Borden residence. As result of that deviation, the structural integrity of the building was compromised. (Tr. pages 71-73) Construction activity at the Borden residence was halted approximately three weeks while the Borden's architect developed a new set of blueprints. After the City approved the revised blueprints, Respondent began laying blocks and framing the tie-beam. Subsequently, Respondent requested Sunshine Concrete Company to commence pouring the tie-beam. The concrete company requested payment in cash due to the fact that Respondent had previously tendered a check to Sunshine Concrete Company which was returned due to insufficient funds. When informed of the concrete company's demands, the Respondent ordered the company to cease pouring the tie-beam. Upon being informed the tie-beam required a continuous pour, Respondent left the construction site and the Bordens were required to directly reimburse the concrete company. Respondent abandoned the project and has not returned to the construction site. Respondent owes the Bordens approximately $4,696 in reimbursed expenses. (Tr. pages 40-42) Respondent's Defense In DOAH Case No. 84-1298, Respondent did not offer any testimony to refute or otherwise rebut the allegations set forth in the Administrative Complaint. Respondent refused to be placed under oath when he made statements as to his position in Case No. 84-3202.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent's certified general contractor's license be suspended for a period of two (2) years. Additionally, Respondent shall pay to the Construction Industry Licensing Board an administrative fine in the amount of $2,500. However, if Respondent provides the Construction Industry Licensing Board with sufficient evidence indicating settlement and satisfaction of the existing disputes between Mr. Albert Kairy and Mr. and Mrs. William Borden, the suspension shall be reduced to one (1) year after which time it is recommended that his license be reinstated. RECOMMENDED this 8th day of May, 1985, in Tallahassee, Florida. JAMES E. BRADWELL 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 9th day of May, 1985.
The Issue The issue for consideration in this hearing is whether Respondent's license as a certified building contractor should be disciplined because of the matters set out in the Administrative Complaint.
Findings Of Fact At all times pertinent to the allegations herein, Petitioner was the state agency responsible for the regulation of the construction industry in Florida. Respondent, David P. Miller, was licensed as a certified building contractor under license number CB C039127 and was doing business as Great Southern Construction and Development, Inc. On March 14, 1988, Robert Crowley, a semi-retired real estate broker and promoter, and Treasurer of Enterprise Industrial Park, Inc., (EIP), entered into contracts with the Respondent to construct three buildings, A, B, and H, for it within the park boundaries. Building A was to house offices and retail space; building B was to house warehouse and offices; and building C was to house garage space. The construction was to be financed by an infusion of shareholders' money and by a construction loan from the Southland bank in the amount of $375,000.00. The loan was ultimately increased to $614,000.00 so that EIP could begin development of phase II of the park. The contracts provided for Respondent to be paid $110,000.00 for Building A, $67,000.00 for Building B, and $52,807.00 for Building H. The loan was obtained in phases. The developers had outlined the project to bank officials who approved it, initially, for development of the park and construction of four buildings. Phase one was to include the roadway and one building. When that was completed, the other buildings were to be erected. Site preparation was accomplished by John T. Day. Most of the site preparation was completed before Respondent started construction. Thereafter, as work progressed, Respondent periodically certified to the bank what work had been done and that suppliers had been paid. Upon receipt of that certification, the bank would issue a check for the appropriate amount to EIP which would, thereafter, issue its own check to Respondent. There was an exception, however, in the case of payments to Ludwig Steel. Whereas that supplier would bill Respondent for small items delivered, it demanded payment by cashiers' check upon delivery for major structural steel fabrications. These checks, for steel for Buildings A and B, were for $18,511.84 and $17,716.84, were issued by Southland Bank, at the request of EIP. During the course of his performance of the contracts for the construction of Buildings A, B, & H, Respondent executed several of the above mentioned certification forms. For Building H: These included: a. August 30, 1988 $ 9,505.00 b. October 4, 1988 9,505.00 c. October 17, 1988 9,505.00 d. December 28, 1988 11,881.50 e. January 31, 1989 9,437.50 TOTAL $49,834.00 Prior to these certificates, the bank also released $90,000 in advances for start up costs and the loan in March, April and May, 1988. In addition to the certificates listed above, Respondent also signed certificates for Building A totalling $91,446.00 as follows: a. August 30, 1988 $ 19,800.00 b. October 4, 1988 19,800.00 c. October 17, 1988 19,800.00 d. December 28, 1988 24,750.00 e. January 31, 1989 7,296.00 TOTAL $ 91,446.00 Respondent also signed additional certificates for Buildings B as follows: a. December 28, 1988 $ 46,642.00 b. January 31, 1989 28,031.00 c. March 1, 1989 28,031.00 TOTAL $102,704.00 These certificates were also signed by the architect, Mr. Wilcockson. In fact, they were not correct in that not all the work had been done and not all suppliers had been paid. Respondent admits to falsely signing the certificates but claims he was urged to do so by representatives of EIP who indicated to him it was just a routine procedure. Consequently, even knowing the certificates were not accurate, he signed them because he wanted to get paid. It is found, however, that Respondent has been a licensed contractor for a number of years and knew the implications of his actions. His attempts at justification for his actions are neither credible nor impressive. Construction progressed satisfactorily and without major problems up to the time for the last draw. At that point, the bank declined to issue a check to EIP for the construction of Building C, also to be erected on the site, when it became aware that numerous liens had been filed by subcontractors and materialmen indicating Respondent's failure to make satisfactory payment for buildings A, B, and H. These liens included claims by: American Roll-Up Door Co. $ 3,630.00 B & B Painting Contractors 3,020.00 Blackton, Inc., 5,820.73 Brownie Septic Tank Contractors #1 1,025.00 Brownie Septic Tank Contractors #2 1,025.00 Brownie Septic Tank Contractors #3 1,635.00 Don Alan Dinora 930.00 Energy Savings Systems, Inc. 10,750.00 Florida Mining & Materials 2,388.31 Mid Florida Air Conditioning, Inc. 3,982.00 Neeley-Built Structures, Inc., 4,995.78 Residential Building Supply 7,857.11 Total $47,058.93 Mr. Crowley claims the above liens were satisfied by EIP, and it is so found. He claims EIP also paid some subcontractors who did not file liens because of a desire to help small contractors who otherwise would not have been paid. No figures were available to support that latter claim, however, and it is not considered to be probative of any issue. It is found, however, that Respondent paid Neeley-Built the amount of $4,995.78 and the claim of lien form included within Petitioner's exhibit of filed liens refers to property other than that in issue here. In addition, the $10,750.00 lien of Energy Savings Systems is not totally attributable to services or materials for the instant project. It is estimated that 60 percent of that amount relates to work done outside the three contracts in issue here. Further, only $1,700.00 of the lien of Residential Building Supply relates to material provided for the work done by Respondent under these contracts. The balance relates to work done outside the original contract limits. Over the course of the contracts, EIP paid Respondent, in addition to a deposit of $25,786,99 for Bldgs. A & H, the sums below, for a total of $259,006.72 for Bldgs. A, B, & H: a. Aug. 31, 1988 $19,800.00 for Bldg. A b. Aug. 31, 1988 9,505.00 for Bldg. H c. Oct. 05, 1988 10,793.16 for Bldg. H & A d. Oct. 17, 1988 29,305.99 for Bldg. A & H e. Dec. 14, 1988 19,000.00 f. Dec. 29, 1988 49,417.06 g. Feb. 06, 1989 7,296.00 for Bldg. A h. Feb. 06, 1989 28,310.00 for Bldg. B i. Feb. 06, 1989 9,473.50 for Bldg. H j. Feb. 10, 1989 2,350.00 for misc. k. Feb. 15, 1989 20,000.00 l. Mar. 03, 1989 28,031.00 for Bldg. B In addition to those payments, EIP also paid $16,000.00 to Benson Drywall on December 12, 1988 at the request of Respondent. The total paid by EIP, either to or on behalf of the Respondent, was: $ 25,786.00 deposit 233,280.72 to Great Southern 16,000.00 Benson Drywall 36,228.68 Ludwig Steel $311,295.40 TOTAL Mr. Crowley was not the main source of corporate funds. The President of the company is a Mr. Nelson who was the "money man." Contractor selection was by agreement between Nelson and Crowley, but Crowley was the supervisor of the contracts and did most of the negotiating with Respondent. The work stipulated in the contracts between EIP and Respondent was not the only work called for in their relationship. The contracts provided for the basic construction but Mr. Crowley requested Respondent to perform additional work in or around buildings A, B, and H, which included: Tenant improvements in buildings A and B valued at $23,000 excluding labor; Additional site work including electrical, telephone, grading and filling, berm modification, concrete sidewalks and parking buffers, and repair of damaged concrete (all but the repair of concrete was the result of the failure of the original site preparation contractor to properly complete his work); Negotiations and discussions with Volusia County regarding the sewer/septic system necessary for the project. In addition to the $23,000.00 for tenant improvements mentioned in the paragraph next above, Respondent also paid out of pocket to the following contractors and suppliers for work outside the scope of the original contracts: a. Ludwig Metal Buildings $ 3,000.00 b. Concrete 3,840.00 c. John Bates & family 6,497.73 d. Four Seasons 1,190.00 e. Will Cox 975.00 f. Riley 3,100.00 All Star Electric 4,705.32 Jerry's Concrete Service 1,350.00 TOTAL $24,658.05 Though the contracts referenced in this proceeding pertain to construction of Buildings A, B, & H, Respondent was also retained to erect a metal building to be designated C. Respondent received a total of $253,000.00 from EIP to construct those buildings for which he had the initial contracts and also to put up the metal building, C. The cost to complete Building C was $45,500.00 but EIP had remaining only slightly over $6,000.00 to pay for that work. Respondent did substantial work for EIP which was over and above the services called for under the contracts for Buildings A, B, & H as amended by the change orders for which he was not paid because Mr. Crowley advised him no additional monies were available. For example, he and his brother, Thomas, did additional site work valued by him at $24,260.00; and additional labor and services on the septic and sewer system problems valued by him at $5,600.00 and for tenant improvement, valued by him at $5,000.00. Here, however, it must be noted that the figures cited are not documented by any supporting material and contain significant amounts for his labor which he priced at $90.00 per hour. Mr. Miller, during his relationship with EIP, purchased a 10 percent interest in the firm. He originally filed his own lien on the property for $80,364.00 based on the contracts he had in hand and the site work which he valued at $18,000.00. He claims he subsequently withdrew his lien without being paid so that the limited funds available could be used to pay the subcontractors. No corroborating evidence on this point was introduced, however. Mr. Miller's contracting license was, subsequent to the incidents herein, placed in inactive status and currently remains so. He is not now engaged in contracting and claims he does not intend to do so in the future. His motivation in contesting the allegations against him is, he claims, solely to clear his good name and reputation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED THAT the Respondent, David P. Miller, d/b/a Great Southern Construction and Development, Inc. pay an administrative fine of $3,750.00 and be reprimanded. RECOMMENDED this 9th day of November, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 9th day of November, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-7413 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. & 2. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. & 6. Accepted and incorporated herein. 7. - 14. Accepted and incorporated herein. 15. - 17. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. & 21. Accepted and incorporated herein. 22. - 24. Accepted and incorporated herein. 25. & 26. Accepted. FOR THE RESPONDENT: Accepted and incorporated herein. & 3. Accepted and incorporated herein. Rejected as the total amount paid by EIP for the buildings constructed by Respondent. The figure is somewhat higher due to deposit and amounts paid to suppliers by EIP. Accepted and incorporated herein. * At this point, Respondent's proposed Findings of Fact become misnumbered. There are two numbers 5. The subsequent numbers are as reflected in Respondent's submittal. 5. - 9. Accepted and incorporated herein. 10. - 12. Accepted and incorporated herein. 13. - 15. Accepted and incorporated herein. 16. Accepted. 17 & 18. Accepted. Alleged but not proven. Accepted. Rejected as contra to the weight of the evidence. Accepted and incorporated herein. COPIES FURNISHED: Tracy Sumner, Esquire William S. Cummins, Esquire Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kurt R. Borglum, Esquire 366 East Graves Avenue, Suite B Orange City, Florida 32763 Jack McRay General Counsel Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Daniel O'Brien Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
Findings Of Fact At all times relevant hereto, Respondent, Victor L. Contessa, (Contessa) was licensed as a real estate broker in the State of Florida, having been issued license Number 0016808. The last license issued to Respondent was as a broker, c/o Cavalier Southern Realty, Inc., 4343 Ridgewood Avenue, Port Orange Florida, 32019. At all times material hereto, Contessa was owner and president of Cavalier Development and Building Corporation. In 1983, Charles Hill purchased a lot in Port Orange, Florida, more particularly described as Lot 29, Phase One, Cypress Grove. In June of 1983, Charles Hill wished to have a house constructed on his lot. Mr. Hill spoke with Contessa regarding the construction of the house. After reviewing plans with Contessa, Hill entered into a written Building Agreement with Contessa whereby Contessa agreed to construct a house for Hill for $50,000.00, plus extras. At the time he signed the Building Agreement, Hill believed that Contessa was a licensed building contractor. He based this belief upon representations made by Contessa to Hill that Contessa was a licensed building contractor. The Building Agreement, dated June 4, 1983, listed Cavalier Development and Building Corporation as the contractor and was signed by Contessa as president of Cavalier Development and Building Corporation. Contessa was not a licensed building contractor when he signed the Building Agreement. In order to have the house constructed as set forth in the Building Agreement, it was necessary for Contessa to hire a licensed building contractor. Contessa contacted Donald E. Welch, a licensed residential contractor. Contessa represented to Welch that Contessa's company, Cavalier Development and Building Corporation, was the owner of Hill's lot. Based on that representation, Contessa entered into a Building Agreement with Welch to have Welch construct the house for $42,500.00. Welch did not become aware that the lot in question was owned by Hill and not by Contessa or Cavalier Development and Building Corporation until October 25, 1983, when Welch attempted to pull a building permit. At that time, Contessa advised Welch that the owner's name was Charles B. Hill. Hill paid Contessa a total of $45,000.00 for construction of the house. In January 1984, Welch slowed construction on the house because Contessa did not pay him his construction draws when they were due. Until this time, Contessa had instructed Hill not to discuss construction with any of the workmen on the site, but to bring any concerns directly to Contessa. Additionally, Contessa had instructed Welch not to deal directly with Mr. Hill, but instead to discuss all construction matters directly with Contessa. Because of the slowdown in construction, Hill and Welch discussed the matter between themselves. It was at this time that Hill learned that Welch was the licensed contractor, and not Contessa. Hill then began dealing directly with Welch. Welch completed the construction upon payment of $8,842.00 paid directly by Hill to Welch. Contessa, in the name of Cavalier Development and Building Corporation filed a mechanics lien as a contractor against the Hill property on May 16, 1984.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Professional Regulation, Division of Real Estate, enter a final order suspending the license of Victor L. Contessa for a period of five (5) years and assessing an administrative fine against Victor L. Contessa in the amount of $1,000.00. DONE AND ENTERED this 13th day of August, 1985, at 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 13th day of August, 1985. COPIES FURNISHED: James H. Gillis, Esquire Staff Attorney Department of professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32801 Victor L. Contessa Box 566 Port Salerno, Florida 33492 Victor L. Contessa 101 Santa Lucia Avenue West Palm Beach, Florida 33492 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harold Huff, Director Division of Real Estate 400 West Robinson Street Orlando, Florida 32801
Findings Of Fact The Petitioner, Isidoro Carrillo, sat for Part II of the residential contractors examination administered in June, 1992. The Petitioner received a raw score of 62 on Part II of this examination which was amended to a grade of 63. A minimum passing score is 70. Each correct answer was worth 4 points. The Petitioner originally challenged questions numbered 8, 11, 15, 16, 18, 19, and 25 on the examination. At the hearing, the Petitioner conceded the Department's answer to questions no. 18 was correct. The Petitioner did not present any evidence with regard to questions numbered 8, 19, and 25 at the hearing. The Petitioner challenged questions numbered 11, 15, and 16. Questions numbered 11, 15, and 16 were labeled as the Hearing Officer's Exhibit and determined to be confidential pursuant to Section 455.229, Florida Statutes. A set of plans was introduced and labeled as Respondent's Exhibit 1. These plans are also determined to be confidential pursuant to Section 455.229, Florida Statutes. Question No. 11 required the computation of the square area of the foyer. The portion of the house to be included within the computation of the area of foyer was to include "all adjacent interior cased openings and door ways." Sheet 3 of 6 of the plans for the structure reveal notes relating to the foyer. The annotations regarding the foyer state: "See Note No. 18" and "See Note No. 19." Sheet 1 of 6 contains the specific notes relating to the plans. Note No. 18 states: "40 (width) x 68 (height) cased opening (See (Floor Plan)." Note No. 19 states, "58 (width) x 68 (height) cased opening (See Floor Plan)." The Petitioner failed to compute the correct answer for question No. 11 because he excluded from his computations the area between the foyer and the living room which was subject to note No. 19. The Petitioner's excluded this area from his calculation because the area between the foyer and living room lacks jams and is not a cased opening. The Petitioner and Respondent's expert both agreed that a cased opening was "Any opening finished with jams and trim, but without doors." A jam is defined as a vertical structure with depth. Referring to the plans in question, the opening between the foyer and the living room lacks jams. Respondent's expert explained that the area between the foyer and living room was included in the computation purely on the basis of Note 19, defining the area as a cased opening. Petitioner challenged question No. 15 which required the examinee to compute the amount of time required "to lift and place all single wood trusses with a span of 21' 4" given that the truck can lift and place one full-span, single, roof truss every 15 minutes. Sheet 5 of 6 of the plans depicts the roof truss layout for the house. On the plan, there are three single roof trusses with an overall length of 25' 4" and a span of 21' 4" and one gable end truss with a span of 21' 4" which is placed on top of and runs the length of the south wall of the building. This gable end truss has a span of 21' 4" but does not span any distance because it sits atop the wall. The response expected by the Respondent was one hour with the truck lifting four trusses: the three 25' 4" trusses plus the gable end truss. The Petitioner's answer was 45 minutes because he excluded the gable end truss which sits atop the wall and does not span any distance. The Petitioner challenges question No. 16 which asks the examinee to calculate the total cost for the pressure treated 4 x 8 and 2 x 6 lumber required to construct the wood deck, excluding wood rails, and given the price per 100 board feet of the 4 x 8 and the 2 x 6 pressure treated lumber. The expected response was answer A. The candidate's response was answer D because the candidate had included 4 x 8 beams running along and parallel to the wall of the house in his calculation of the cost figures. However, the detailed drawings of the wooden deck at the top of Sheet 3 of 6 and on Sheet 2 of 6 reveal that there are no 4 by 8 beams running along and parallel to the side of the house.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, the Hearing Officer concludes that the Petitioner was successful in challenging only one of three of the questions involved. The Petitioner's score of 67 points is insufficient for him to pass the examination. The Petitioner's records should be corrected; however, the Petitioner has not demonstrated a passing grade of 70, and therefore should not be licensed. DONE and ENTERED this 30th day of April, 1993, in Tallahassee, Florida. STEPHEN F. DEAN 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 30th day of April, 1993. APPENDIX A The Petitioner did not file proposed findings. The Respondent filed proposed findings which were read and considered. The following states which of those findings were adopted, and which were rejected and why: Respondent's Findings: Proposed Order: Paragraph 1-5 Paragraph 1-3 Paragraph 6 Paragraph 4-8 Paragraph 7 Paragraph 9,10 Paragraph 8 Paragraph 11 COPIES FURNISHED: Isidoro Carrillo Post Office Box 1896 New Smyrna Beach, Florida 32170 Vytas J. Urba, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Daniel O'Brien, Executive Director DPR - Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact These proceedings were set for final hearing by a Notice of Hearing dated July 8, 1983 addressed to the parties, including Respondent at 488 Esther Lane, Altamonte Springs, Florida, 33596. 2/ The Notice of Hearing was not returned to the Division of Administrative Hearings as undelivered. At the time and place noticed for the final hearing the Hearing Officer waited until 9:16 a.m., to commence the proceedings, which concluded at 11:08 a.m. At no time has the Respondent contacted the Hearing Officer concerning a continuance or explained his failure to appear as noticed. At all times material to this proceeding Mr. McIntee has been licensed as a certified building contractor under license number CB C015923. He was also the qualifying agent pursuant to Section 489.119, Florida Statutes, for Delco, Incorporated. At no time has he ever attempted to qualify or otherwise notify the Construction Industry Licensing Board that he intended to affiliate with or do business as Earth Shelter Corporation of Florida, Inc. On July 30, 1980 Earth Shelter Corporation of Florida, Inc. (Earth Shelter) entered into a contract with Mr. and Mrs. William Sweet to construct an earth shelter single family residence in Lake County, Florida. The estimated cost of the project was to be $57,000 and was guaranteed not to exceed $60,000. The contract was negotiated by Respondent acting as president of Earth Shelter. Mr. McIntee was the contractor who pulled the building permit on behalf of Earth Shelter. The project was financed by First Family Federal Savings and Loan Association of Eustis, Florida. In order to obtain payments from the Association, Respondent periodically executed affidavits which stated in part: Affiant says further that all the subcon- tractors, materialmen or any other persons performing labor and furnishing materials used in the construction of the building, or improvements to the premises or appur- tenances thereof, have been fully paid in- cluding all extras. As the result of executing these affidavits Respondent received draws totaling $49,079.26 on the dates of September 30, 1980, October 31, 1980, December 3, 1980, February 4, 1981 and July 10, 1981. These affidavits were false. At the time the affidavits were executed all the subcontractors had not been paid by Respondent. As an example, Frank Wagner Excavating, Inc. performed subcontracting services at the Sweet project on June 4 and 5, 1981 at a cost of $1,451. This was billed to Respondent on June 6, 1981. He sent Wagner Excavating a check dated June 6, 1981, in the amount of the invoice, but the check was returned to Wagner for lack of sufficient funds at Respondent's bank. Before Respondent's check bounced, but subsequent to invoicing the work done on June 4 and 5, 1981, Mr. Wagner performed additional earth moving work at the Sweet project on July 3, 8, 9 and 10, 1981. That work was invoiced on July 10, 1981 for $1,378.75. No attempt was made by Respondent to pay for the second invoice. Eventually Wagner Excavating was paid by Mr. Sweet personally and by an additional payment directly to Wagner Excavating by First Family Federal Savings and Loan Association in order to satisfy Wagner's lien. In order to protect himself, Wagner had filed a lien against the Sweet property on August 17, 1981. Because of structural defects in the construction of Mr. Sweet's home performed by Respondent, Mr. Sweet filed a complaint with the Lake County Board of Examiners against Respondent. Notice of that complaint was given to Respondent on August 18, 1981. He was informed that on September 1, 1981 the Lake County Board of Building Examiners would take testimony concerning the allegations contained in the complaint. Respondent was urged to attend the meeting and to be represented by counsel if he so desired. Mr. McIntee did appear at that meeting. An investigation of the complaint followed. Respondent was subsequently noticed for a second meeting of the Board of Examiners to be held on October 6, 1981 concerning the Sweet complaint, but he failed to appear. At that time the results of the investigation were reviewed and the Lake County Board of Examiners revoked Respondent's license as a contractor in Lake County for abandonment and code violations related to his work on Mr. Sweet's residence. On September 19, 1980 Earth Shelter through Respondent entered into a contract with James V. Migliorato to construct a residence in Seminole County, Florida. The contract price was $48,500. During the course of the work performed by Mr. McIntee, liens in the amount of approximately $9,500 were filed by third parties who provided materials and services under subcontract to Earth Shelter in the construction of Mr. Migliorato's residence. By March of 1981 Respondent had abandoned the project without cause. Mr. Migliorato later met with him at which time Respondent explained that he had run out of money and was not going to finish the job. In August of 1981 Mr. Migliorato and his counsel met with Respondent and his counsel. During their discussions Respondent stated that the money which he had been paid for work on the Migliorato home had been diverted by him for use on the Sweet residence mentioned above. The liens outstanding against Mr. Migliorato's property were never satisfied by Respondent and had to be paid by the homeowner. An example of the outstanding liens was that filed by Superior Distributors, Inc. which supplied and installed a kitchen and bathroom cabinet at the Migliorato residence. The work was completed on June 30, 1981 and invoiced on the same date for $2,128. This invoice has never been paid by Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Construction Industry Licensing Board enter a Final Order revoking Respondent's license as a certified building contractor in the State of Florida. DONE and RECOMMENDED this 14th day of October, 1983, in Tallahassee, Florida. MICHAEL P. DODSON 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 14th day of October, 1983.
The Issue Whether Respondent committed the violations alleged in the administrative complaint; and, if so, what penalty should be imposed.
Findings Of Fact At all times material to the allegations of this complaint, the Respondent, Joseph Marcelin, was a certified residential contractor, license number CR C028352. Respondent’s place of business and residence are in Dade County, Florida. The Petitioner is the state agency charged with the responsibility of regulating and disciplining licensed contractors. On May 14, 1988, the Construction Industry Licensing Board entered a final order approving a settlement stipulation regarding Case no. 74860 against this Respondent. This final order directed Respondent to adhere to and abide by all of the terms and conditions of the stipulation. The stipulation required the Respondent to not violate the provisions in Chapters 455 and 489, Florida Statutes, in the future; required Respondent to honor a settlement in a civil matter; required Respondent to pay a fine in the amount of $500.00; suspended Respondent’s license for thirty days; and required Respondent to affirmatively demonstrate compliance with the stipulation in order to have his license reinstated. A second final order entered by the Board on May 14, 1988, approved a settlement stipulation regarding Case no. 77499. This final order also directed Respondent to comply with the stipulation applicable to that case. In Case no. 77499, the stipulation required Respondent to abide by a civil settlement; imposed a fine in the amount of $500.00; suspended Respondent’s license for thirty days; and placed the burden on Respondent to demonstrate he had met the terms of the stipulation. As to both cases referenced above, Respondent admitted the allegations of the administrative complaints which, in pertinent part, claimed Respondent had assisted an unlicensed person or entity to perform contracting services thereby aiding and abetting an unlicensed person to evade the provisions of Chapter 489, Florida Statutes. On April 2, 1993, Respondent executed a certification change of status form which was submitted to the Department. Such form was completed for the purpose of qualifying as an individual for licensure and sought to reinstate a delinquent license or change from inactive to active. In the course of completing the change of status form Respondent was required to answer a series of questions by checking either the “yes” or “no” column. In response to the question as to whether Respondent had “been charged with or convicted of acting as a contractor without a license, or if licensed as a contractor in this state or any other state, had a disciplinary action (including probation, fine or reprimand) against such license by a state, county or municipality?,” he answered “no.” Such answer was false. Further such answer was made under with the following affirmation: I affirm that these statements are true and correct and I recognize that providing false information may result in a FINE, SUSPENSION, OR REVOCATION of my contractor’s license. [Emphasis in original.] Thereafter, the Department notified the Respondent that his license would not be issued as he had failed to demonstrate satisfaction of a civil judgment and had not submitted an explanation of the disciplinary action from 1988. Respondent eventually resolved issues of licensure with the Department and, on September 15, 1993, was authorized to practice contracting. Prior to his license being reinstated, Respondent performed the following: on April 7, 1993, Respondent obtained a building permit for construction work at the home of Eduardo Bovea. This permit, no. 93181501, indicated Respondent as the contractor of record for the project. On the permit application Respondent represented himself as the licensed building contractor for the Bovea project to the Metropolitan Dade County building and zoning department. Respondent did not have a contract with Bovea for the construction work to be performed on the Bovea home. In fact, the contract was between Bovea and Lou Greene Construction. The Boveas paid monies to Rodney Salnave, who claimed to be a representative for Lou Greene Construction. Rodney Salnave was not Respondent’s employee, and was not licensed as a contractor. The Respondent did not talk to the Boveas regarding the contract, the scope of the work to be done, or the contract price for the work. All discussions regarding the work at their home (and payments for same) were between Rodney Salnave and the Boveas. The permit for the Bovea project represented the amount of the work to be $2,000.00. In fact, the contract price for the work was $4,500.00. Respondent misrepresented the value of the work for the Bovea project. As of September 26, 1993, Respondent admitted he was involved with seventeen contracting jobs. Just eleven days after having his license reinstated, and while being employed in a full-time (8:00 a.m. to 5:00 p.m.) job with Dade County, Respondent had contracting responsibility for seventeen jobs. In reality, Respondent had made a deal with an unlicensed person, Denis Joseph, to pull permits for him. The jobs were for persons who, in some instances, Respondent had never met. For example, Mr. Joseph pulled a permit for work to be performed on a home owned by Ed Davis. The contract for the work was between Mr. Davis and a Mr. Sutton, an unlicensed contractor, but with the approval of Respondent, Mr. Joseph obtained a permit for the Davis job. A second job was for Bertha Joseph. In this instance, Mr. Joseph completed the permit application which Respondent signed thereby allowing Mr. Joseph to obtain the permit for the project. By signing the permit, Respondent represented himself to be the contractor for the job. In truth, the homeowner had contracted with Denis Joseph for the work to be done, but the project was completed by Emanuel Gideon, an unlicensed contractor. Respondent admitted receiving payments from Denis Joseph. Respondent admitted he was not actively involved with the Bertha Joseph project. In September, 1993, Eric Wardle, an investigator with the Dade County building and zoning department, interviewed Respondent regarding claims that he was obtaining permits for unlicensed contractors. According to Mr. Wardle, Respondent admitted he pulled permits for unlicensed contractors after Hurricane Andrew because they were trying to make a living. At hearing Respondent disputed the accuracy of Mr. Wardle’s investigation but admitted he would have told him “anything just for him to get away from me.” Respondent’s explanation at hearing was not persuasive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Construction Industry Licensing Board, enter a final order revoking Respondent’s contractor license and imposing an administrative fine in the amount of $8,500.00. DONE AND ENTERED this 16th day of May, 1997, in Tallahassee, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 COPIES FURNISHED: Bruce M. Pasternack, Esquire Raymond L. Robinson, P.A. 1501 Venera Avenue, Suite 300 Coral Gables, Florida 33146 Joseph Marcelin 16561 Southwest 144th Court Miami, Florida 33177 Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1997. Rodney Hurst, Executive Director Department of Business and Professional Regulation/CILB 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Northwood Centre Tallahassee, Florida 32399-0792
The Issue Whether Petitioner is entitled to licensure as a Certified Building Contractor or Residential Contractor.
Findings Of Fact Petitioner is a 44-year-old male. He was born and raised in Tallahassee, Florida. He is a high school graduate. Petitioner passed the examination for licensure as a certified building contractor. This is a comprehensive examination that is designed to test knowledge in all aspects of the construction industry. Passing it is a mandatory prerequisite before an application can be considered by the Florida Construction Industry Licensing Board (FCILB). However, passing the examination does not eliminate or modify the statutory or rule experience requirements. Petitioner submitted his application for a certified building contractor license on or about March 24, 2008. By letter of May 2, 2008, the Department of Business and Professional Regulation requested additional information. Petitioner then provided a revised affidavit from Chad Banks, a certified building contractor, and a letter from the Maintenance Construction Chief of the City of Tallahassee’s Gas Utility Department, each containing more detailed information about Petitioner’s experience. These items were received by Respondent on May 23, 2008. It is not clear whether Petitioner requested and was granted a continuance of his appearance with regard to the instant license application at an earlier FCILB meeting, but on January 15, 2009, the full Board considered Petitioner’s application at a duly-noticed public meeting in Altamonte Springs, Florida. At that time, Petitioner was present. During his appearance before the full Board on January 15, 2009, Petitioner was very nervous, but he believes that one of the Board members offered him, or at least asked him if he would accept, a residential contractor’s license in place of a certified building contractor’s license, and that he answered that he would accept such a license, only to have that “offer and acceptance” voted down by the full Board. However, Petitioner does not rule out the possibility that the vote taken at the meeting was actually with regard to denying the certified building contractor license for which he had applied. There is no evidence that Petitioner has ever submitted an application for a residential contractor’s license. By a Notice of Intent to Deny, dated March 16, 2009, and mailed March 24, 2009, the FCILB formally denied Petitioner’s application for a certified building contractor License stating: The applicant failed to demonstrate the required experience, pursuant to Section 489.111, Florida Statutes and Rule 61G4- 15.001, Florida Administrative Code. Petitioner seeks licensure as one who has four years of active experience and who has learned the trade by serving an apprenticeship as a skilled worker or as a foreman, at least one year of which experience is as a foreman. Petitioner has never worked as a full-time employee of a commercial or residential contractor. Petitioner got early experience in construction working around eight rental properties owned by his father. He performed light carpentry, deck construction, general handyman repairs, and some plumbing and roofing when he was approximately 16 to 21 years of age. However, Petitioner essentially relies on a work history that includes working as a plumber for Jim Bennett Plumbing from 1987 to 1993; as a foreman for the City of Tallahassee Gas Department from 1995 to 2005; as a “contractor trainee” for Chad Banks from 1999 to 2002; as having volunteered as superintendent for Gulf Coast Painting from 2003 to 2007; and as a maintenance man for the City of Tallahassee Parks Department from 2006 to 2007. Petitioner’s dates of employment overlap, because his volunteer experience was acquired mostly on weekends, holidays, in hours after he had already completed a full work day for the City of Tallahassee, or on “time off” from his regular employments with the City. Petitioner is a hard worker and wanted to learn the construction trade, but his volunteer construction jobs were intermittent, and he provided no clear assessment of the number of hours per week or month that he put in for any of them. From 1987 to 1993, Petitioner worked for Jim Bennett Plumbing. He started as a plumber’s helper and progressed to greater responsibility. In that position, he acquired a wide range of experience in plumbing for some residential, but mostly commercial, buildings. During this period, he also did some light cosmetic carpentry and tile work to restore building parts damaged by the installation of plumbing apparatus. Much of Petitioner’s construction experience relates to his association with Chad Banks, who testified that at all times material, Petitioner had “hands on” experience, working for him and that Petitioner was a competent worker. Petitioner has never been a “W-2 employee” of Mr. Banks, but there is no specific statutory or rule requirement that the experience necessary to qualify for the certified building contractor or the residential contractor license must be as a “W-2 employee.” Cf. Conclusions of Law. Mr. Banks was not licensed as a certified building contractor until 1999. Petitioner did some work for Mr. Banks when Mr. Banks was working as a sub-contractor on commercial projects (specifically one or more Super-Lube buildings) prior to Mr. Banks obtaining his certified building contractor’s license in 1999. Most of this employment involved pouring concrete slabs. Petitioner claims experience in “elevated slabs,” limited to the construction of a single Super-Lube building, which Petitioner described as laying a slab below ground level for mechanics to stand on and an at-ground level slab for cars to drive onto the lift for an oil change. He described no truly “elevated” slabs or floors above ground level on this project, and Petitioner’s and Mr. Banks’ testimony was vague as to Petitioner’s responsibilities on this project and as to the project’s duration. The general contractor on this project for whom Mr. Banks “subbed” did not testify. From this, and other employments, Petitioner has experience pouring foundation slabs, but he has never worked on a foundation slab in excess of 20,000 square feet. Petitioner also assisted in Mr. Banks’ construction of some rental sheds, but it is unclear if this was before or after Mr. Banks was licensed. Petitioner worked for Mr. Banks d/b/a C. B. Construction, Inc., in a volunteer capacity on exclusively residential construction from 1999 to 2002, and again from February 2004 to March 2008. During these periods, Petitioner and Mr. Banks considered Petitioner a “contractor trainee,” but Petitioner’s work for Mr. Banks was neither exclusive nor continuous; both men described it as “volunteer” work; and some of it seems to have amounted to Petitioner's looking over work done personally by Mr. Banks and having Mr. Banks explain to him, via a plan sheet, what Mr. Banks had already done personally. There is no evidence that during this time frame Petitioner worked for Mr. Banks as a foreman. Petitioner has the ability to “read” many types of construction “plans.” Petitioner has experience with slab footers, but he has not constructed red iron structural steel qualified for framing a building. Petitioner has experience in decorative masonry walls, but he has not constructed structural masonry walls of a type that would support framing members of a building or other vertical construction. Petitioner also worked for the City of Tallahassee as a “W-2” employee, mostly as a foreman overseeing a crew of four workers, from 1995 to 2005. In that capacity, he worked on a church, but the church itself had been constructed several years previously, and Petitioner’s crew’s contribution was tying-in several gas lines during a roadway development project and keeping all the utilities up and running during the project, while a private contractor worked on the church. With regard to the foregoing project and many others for the City Utilities Department, Petitioner directed a crew that built sidewalks and gutters or that tied these features into existing roadways and driveways. In that capacity, he often coordinated activities with residential contractors. Over his ten years’ employment with the City Utilities, Petitioner also directed a crew that exclusively created underground vaults for the housing and shelter of utility apparatus. However, none of his endeavors for the City Utilities involved vertical structural construction for floors above ground. Petitioner has also built new gas stations for the City’s natural gas vehicles, and has erected pre-fab utility buildings, including much slab work, but the nature and duration of these endeavors is not sufficiently clear to categorize them as qualifying him for the certified building contractor license. Most of Petitioner’s experience with the City, as substantiated by the letter of the City Utilities Maintenance Construction Chief, Mr. Lavine, has been in the construction of driveways, roads, gutters, storm drains, sidewalks, culverts, underground utility structures, plumbing and gas lines. While it is accepted that Petitioner has worked on such projects, this type of work more properly falls in the categories of “plumbing contractor” or “underground utility contractor” and Mr. Lavine was not demonstrated to have any certification/licensure in a category appropriate to Petitioner’s application. (See Conclusions of Law.) Sometime after 2005, for approximately a year, Petitioner was employed by the City of Tallahassee Parks and Recreation Department and in that capacity participated in at least one construction of a dugout and a concession stand at one of its playgrounds. He also did repairs on several dugouts and concession stands, but this latter work would not be classified as “structural” construction. Petitioner’s experience in precast concrete structures is limited to his work with gas utility structures, but does not include work on precast tilt walls, which are the type of walls that are constructed off-site, delivered to the job site, placed on the slab foundation, and raised in place as part of an on- going commercial building project. Petitioner has no experience in column erection. “Columns” in this context within the construction trade refers to supports for upper level structural members, which would entail vertical construction. Petitioner’s experience in concrete formwork does not include experience in the structurally reinforced concrete formwork that would be used in vertical buildings, such as all floors above ground level. FCILB’s Chairman testified that the Board interprets the type of experience necessary to comply with the statutes and rules, more particularly Florida Administrative Code Rule 61G4- 15.001(2), to be “structural experience.” There is no affirmative evidence that Petitioner has ever notified the Clerk of the Agency that he was relying on a right to a default license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Construction Industry Licensing Board enter a Final Order denying Petitioner’s application for licensure as a Certified Building Contractor. DONE AND ENTERED this 24th day of November, 2009, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 2009.
