The Issue Whether the Respondent, a licensed general contractor, committed the offenses alleged in the three administrative complaints and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of contracting pursuant to Section 20.165, Florida Statutes, and Chapters 455 and 489, Florida Statutes. At all times pertinent to this proceeding, Respondent has been licensed as a general contractor by the Petitioner. Respondent was issued license number CG C010162 in 1975 and has held that licensure ever since. The first complaint against Respondent’s licensure, like the three complaints at issue in this proceeding, arose from a post-Hurricane Andrew contract. That complaint was resolved by stipulation of the parties. Respondent did not admit to wrongdoing in his stipulation. Respondent was financially unable to comply with the terms of the settlement. Consequently, his license was suspended at the time of the formal hearing. There was no explanation as to why this complaint, which occurred at approximately the same time as the three contracts at issue in this proceeding, was prosecuted separately. At all times pertinent to this proceeding, Respondent was the qualifier for Allstate Construction Management, Inc. (Allstate), a Florida corporation. THE RODRIGUEZ CONTRACT (DOAH CASE 96-4580) On March 17, 1993, Allstate entered into a contract with Anthony Rodriguez to build a garage at 15525 SW 209th Avenue, Miami, Florida. The contract price was $16,250.00, which included “plans, permit and cleanup.” Allstate was paid the sum of $4,062.50 on March 17, 1993. Allstate obtained the Dade County building permit for the project on March 26, 1993. Allstate was paid the sum of $5,593.75 on April 5, 1993, after the concrete blocks were installed. On April 8, 1993, Allstate requested a tie beam/reinforcing inspection from the Dade County building department. In response to that request, Antonio Varona inspected the project on April 12, 1993. The inspector noted that the project was not ready for inspection because no truss plans were available. Respondent testified, credibly, that he had to construct the roof conventionally because of the difficulty in obtaining pre-fabricated trusses; however, that testimony does not explain why there were no truss plans available for inspection. Appropriately engineered truss plans are required for a roof to pass inspection. Despite the failure of the project to pass inspection, Mr. Rodriguez accepted the roof and paid Allstate $4,968.75 on May 21, 1993. As of May 21, 1993, there remained a final payment of $1,625 on the contract. After May 21, 1993, Respondent and Allstate left the Rodriguez job. There was a dispute in the evidence as to whether Mr. Rodriguez fired Allstate or whether Allstate abandoned the project. This dispute is resolved by finding that the evidence was insufficient to establish by clear and convincing evidence that Allstate abandoned the Rodriguez project. When Allstate left the Rodriguez job, there were sufficient funds remaining unpaid to complete the project. Because he had obtained the initial building permit, it was incumbent upon Respondent to either obtain a final inspection of the project or notify the building department that his company had been terminated by the owner. Respondent did neither. THE ELLIS CONTRACT (DOAH CASE 96-4581) At the times pertinent to this proceeding, William R. Ellis owned the Arleen House, which is an apartment building located at 2191 N.E. 168th Street, North Miami Beach, Florida. This building suffered damages from Hurricane Andrew. On September 11, 1992, Respondent and Mr. Ellis inspected the building and Respondent prepared an estimate as to the items that had been damaged by the hurricane and other non-hurricane related repairs that should be made. The mansard roof for this building had been damaged by Hurricane Andrew to the extent that it contained gaping holes. Shortly after that inspection, Mr. Ellis met with his insurance adjuster who gave him a check in the amount of $13,000 to repair the roof. It was necessary to dry in the roof and repair the mansard as soon as possible to avoid additional damage to the building from rains. While there was a dispute as to the extent of the services Allstate was to provide Mr. Ellis, the record is clear that Respondent, on behalf of Allstate, agreed to undertake the roof repair for the sum of $13,000. Respondent told Mr. Ellis that his company had a roofing crew ready to begin work on the roof repairs as soon as Mr. Ellis paid the sum of $13,000. Between September 11 and September 15, 1992, Mr. Ellis gave Allstate a check in the amount of $13,000 with the understanding that the check he had received from the insurance company had to clear before his bank would honor the check he was giving to Allstate. Immediately thereafter1 Allstate sent a roofing crew to the project for the purpose of temporarily covering exposed areas. Despite having been told by Mr. Ellis that the check he was giving Allstate would not be good until after the check for the insurance proceeds had cleared, Allstate did not wait to deposit Mr. Ellis’ check. Respondent was promptly notified that the check Mr. Ellis had given him would not be honored by Mr. Ellis’ bank. Respondent immediately thereafter withdrew the roofing crew from the project. The roofing crew had made only minor repairs at the time they were withdrawn from the project. Respondent knew, or should have known, that the building was vulnerable to further damage from rain. On September 15, 1992, Mr. Ellis gave Respondent a second check in the amount of $13,000. This check cleared the banking process on September 18, 1992. Mr. Ellis made repeated efforts to have Allstate send a crew to repair the roof. After it withdrew the crew that had been sent to the property when Allstate received the first check, Allstate did not take action to protect the property by repairing the exposed areas of the roof. Towards the end of September 1992, a heavy rainstorm caused additional damages to Mr. Ellis’ building. Allstate did not send a crew to the project again until October 6, 1992. Mr. Ellis hired this crew away from Allstate. He testified he did so because the crew complained about Allstate not paying for the materials they were using to repair the roof and because the workmen were threatening to file liens against the property. Mr. Ellis paid this crew the sum of $3,400 to temporarily repair the roof. He then entered into a contract with another contractor to complete the roofing repairs for the sum of $17,500. Mr. Ellis demanded the return of the $13,000 he paid to Allstate, but, as of the time of the formal hearing, he had not been repaid. THE KUCHENBACKER CONTRACT (DOAH CASE 96-4582) On November 6, 1992, Allstate entered into a contract with Carl F. Kuchenbacker to repair his residence at 18500 SW 88th Road, Miami, Florida. Mr. Kuchenbacker’s residence had been damaged by Hurricane Andrew. The initial contract price was $33,375.00. Respondent secured the building permit and Allstate began work on the project. During the course of the work, additional work was added to the contract, which raised the total contract price to $38,015.00. In late February or early March, 1993, Allstate abandoned the project without just cause and without notice to the owner. At the time it abandoned the project, Allstate had been paid the sum of $26,620.00. Allstate failed to pay all of the subcontractors and materialmen who had performed work or provided material for the Kuchenbacker job. As a result of that failure, valid liens were recorded against Mr. Kuchenbacker’s property. The following liens were recorded: Rite-Way Plumbing and Plastery, Inc. in the amount of $3,520.00; Commercial Lighting and Maintenance, Inc., in the amount of $1,835.00; and Scott Bornstein Plumbing, Inc., in the amount of $798.00. Allstate had received sufficient funds from the owner to pay these liens, but neither Respondent nor Allstate paid these liens. Mr. Kuchenbacker and Petitioner’s expert witness testified that the value of the work performed by Allstate before it abandoned the job was $21,000.00. Mr. Kuchenbacker also testified as to the items that remained undone and as to the percentage of the work that had been completed. From that testimony and from the testimony as to the estimated costs of completing the job, it is found that the sum of $11,395.00, which was the difference between the total contract price and the total amount that was paid to Allstate, was sufficient to complete the project and pay off the liens on the property. Respondent did not call for a final inspection of the property and he did not advise the Dade County Building Department that he was abandoning the project. Allstate abandoned the Kuchenbacker project because it went out of business.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein. It is further recommended that Petitioner impose fines totaling $5,000 against Respondent’s licensure as follows: For the violation established by Count I of DOAH Case 96-4580, an administrative fine in the amount of $500. For the violation established by Count II of DOAH Case 96-4580, an administrative fine in the amount of $500. For the violation established by Count IV of DOAH Case 96-4580, an administrative fine in the amount of $250. For the violation established by DOAH Case 96-4581, an administrative fine in the amount of $500. For the violation established by Count I of DOAH Case 96-4582, an administrative fine in the amount of $750. For the violation established by Count II of DOAH Case 96-4582, an administrative fine in the amount of $2,000. For the violation established by Count III of DOAH Case 96-4582, an administrative fine in the amount of $500. IT IS FURTHER RECOMMENDED THAT in addition to the fines recommended for the violations found in DOAH Case 96-4581, Respondent’s licensure be suspended for two years. IT IS FURTHER RECOMMENDED THAT in addition to the fines recommended for the violations found DOAH Case 96-4582, Respondent’s licensure be suspended for two years, to run concurrently with the suspension recommended for DOAH Case 96- 4581. DONE AND ENTERED this 23rd day of May, 1997, in Tallahassee, Leon County, Florida. Hearings Hearings CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative this 23rd day of May, 1997
The Issue The ultimate issue to be decided in this proceeding concerns whether the Petitioner C & M Building Systems, Inc. should be granted certification as a minority business enterprise. In order to make that determination it must be decided whether Maxine R. Chentnik, the president of the Petitioner corporation, and its minority group member owner, controls the management and daily operations of C & M Building Systems, Inc.
Findings Of Fact The Petitioner, C & M Building Systems, Inc., was incorporated in Florida on October 15, 1975. The Petitioner at that time operated under the name of Homes Unlimited, Inc. and was primarily engaged in residential construction contracting. Since that time, the name has changed to the present name of the Petitioner corporation and since at least the mid-1980's the primary business of the corporation has been commercial construction contracting. The net worth of the Petitioner corporation is under a million dollars and 60 percent of its stock is owned by Maxine R. Chentnik, an American female. Forty percent of the stock is owned by her husband Chester G. Chentnik. Mr. Chentnik has over 33 years experience in the construction business as well as a doctorate degree in business administration. For some twelve years he taught business management courses at Florida State University. Mrs. Chentnik has a bachelor of science degree in education and attended business college for approximately one year. Additionally, she has taken approximately 15 hours of college level courses in the fields of interior design and architectural drafting. Mrs. Chentnik's experience in the construction industry began when she and her husband built their own home in 1974. They served as their own contractors and Ms. Chentnik was most involved in that construction project since her husband worked full time at the university. This allowed her to gain experience in hiring and negotiating with subcontractors, arranging for payment of them, in ordering materials and supervising the construction of the home. She and her husband were in need of extra income and therefore she conceived the idea of starting their own residential construction business. When their Corporation, Homes Unlimited, Inc. formed, Mrs. Chentnik was unemployed and, since her husband was still employed at Florida State University, she devoted the majority of the time of the two owners and officers, to the operation of the business. After building their own home, various friends and other customers began engaging them to do residential building projects. Thus, from 1974 until 1982, they built approximately 12 residences. Some of these were built for speculation purposes. Mrs. Chentnik did part of the initial design of the homes, obtained prices from subcontractors, exercised supervision at the job site as to the manner of construction and maintained the books and records of the business. Mrs. Chentnik has never held a contractor's license herself. All of these projects were built using Mr. Chentnik's license. He did the estimating of materials needed, material and labor costs involved and arrived at prices to charge the owner or customer. He had similar managerial duties to those of Mrs. Chentnik. The supervision of the home construction was a joint project because Mr. Chentnik had more technical construction knowledge than Mrs. Chentnik due to his years of experience in construction. He had many years of construction experience working with his father prior to obtaining his college education. In 1982, Mr. Chentnik left his employment with Florida State University and engaged in the construction business full time. From 1983 to 1985, Homes Unlimited, Inc. was associated with Paragon Builders, a corporation which was owned by Mr. and Mrs. Chentnik and another couple. Paragon entered into a consultant agreement with Homes Unlimited by which Homes Unlimited was responsible for estimating material and labor needs, as well as job costs, for bidding purposes, and assembling, preparing and submitting bids. It was also charged with performing job site supervision of Paragon's construction projects. Mr. Chentnik performed under this consulting agreement for Homes Unlimited. Mrs. Chentnik was less active in the business operations at that time due to her child rearing duties. In 1985, the relationship between Homes Unlimited and Paragon Builders came to an end and Paragon Builders, Inc. was dissolved. Homes Unlimited had become primarily a commercial construction contracting company and as a result the name was changed to that of C & M Building Systems, Inc. in November, 1985. The initial directors of Homes Unlimited and C & M Building System corporation were Chester G. Chentnik and Maxine R. Chentnik. The articles of incorporation provide that there should not be less than two directors. The articles also provide that the initial bylaws of the corporation must be adopted by the Board of Directors, and that the Board has the power to amend them. Article 3 Section 2 of the Bylaws at present, provides that the number of directors shall be two and that the affairs of the corporation shall be managed by the Board of Directors. The Bylaws provide that the Board of Directors shall be elected by the shareholders at the annual meeting. Section 12 also provides for cumulative voting for election of the Board members, meaning that at each election of the Board, each shareholder shall have the right to vote the number of shares owned by him for as many persons as there are directors to be elected or he may accumulate his votes by giving one candidate as many votes as the number of directors to be elected, multiplied by the number of his shares, or by distributing those votes on the same principle among any number of candidates. The Bylaws provide that a majority of the directors constitutes a quorum for the transaction of business. Article 4 Section 1 of the Bylaws provides for a president, vice president, a secretary, and treasurer. All must be elected by the Board of Directors. The president is the chief executive officer of the corporation, subject to control by the Board. The president may execute contracts or other documents which the Board authorizes, as can the secretary or other officers. In January, 1986, the Board passed a resolution providing that estimates of the costs of work proposed to be done by the corporation are to be prepared by the president or secretary and that any proposal submitted by the corporation must be prepared, examined by and submitted to the president or secretary. It is also required that all orders for materials are to be given in writing by the president and secretary or by either of them acting with the consent of the other. No order is valid unless signed by the president or secretary. Contracts for the performance of work are valid only when signed by the president or vice president and by the treasurer or secretary. In April, 1986, C & M, by resolution of its Board, entered into an agreement with CGC Company whereby CGC would thereafter provide "all bidding, on-site management, and "special administrative services" (subject to the ultimate management power being vested in C & M's Board of Directors). CGC is to be compensated for these services at the rate of $1,000 per month, plus a performance fee at the end of each fiscal year, as determined by C & M's Board of Directors, based upon C & M's profitability during the preceding fiscal year. Chester Chentnik is the president of CGC Company and performs the services involved in construction site management, preparation of bids and the like. Mr. and Mrs. Chentnik have alternated at being president of C & M since its incorporation (under its original name) in 1975. Mr. Chentnik was first elected president and Mrs. Chentnik was elected vice president, as well as secretary- treasurer. Mr. Chentnik was president in 1976, 1978, 1980, 1982, 1984, 1986 and 1987. Mrs. Chentnik was president on alternate years beginning in 1977 and was president in 1988 and to the present. Mr. Chentnik explained that the alternating presidencies were intended to more evenly divide the workload involved in signing documents. Mr. Chentnik is currently the vice president and secretary-treasurer of the corporation. In 1986 and 1987, Mrs. Chentnik was employed with a real estate firm and Mr. Chentnik primarily ran C & M operations by himself. The Petitioner is currently working on construction projects involving the Florida A & M University President's residence, the Department of Transportation building; the computer room in the Carlton Building, a bus washing facility for the Leon County School Board, as well as a renovation project for the Florida Bar. Those projects are being performed under Mr. Chentnik's license. Mr. Richard Farrell was employed with C & M as a building superintendent and placed his contractor's license with C & M. His license was not used for any contracts presently being performed by C & M, however. Mr. Farrell is no longer an employee and is not performing work for C & M. Mr. Farrell now manages a related mill-work manufacturing company owned by the Chentniks, but is not performing any construction work or supervision for C & M. The decision to hire Mr. Farrell was a joint one by both Mr. and Mrs. Chentnik. His direct supervisor was Mr. Chentnik, although both Mr. and Mrs. Chentnik had supervisory authority over him. In any event, Mr. Chentnik's license is now the license qualifying the company as a construction contractor for purposes of Chapter 489, Florida Statutes, and the authority of the Construction Industry Licensing Board. Mr. Chentnik does the estimating for the company, prepares bids for jobs, is responsible for supervision of the construction details of the business, as well as for construction site management. On those bidding situations when he does not prepare the entire bid, he generally prepares the cost estimate portion of it and the remainder of the bid, concerning the addition of "overhead", and profit increments, are prepared jointly with Mrs. Chentnik. He also deals with the architects, engineers, and subcontractors, especially at the job site, and, since Mr. Farrell's departure, has taken over his job site supervision responsibilities. Mr. Chentnik has signed contracts for the company, executed change orders, pay requests, contract amendments, purchase orders and has prepared and submitted bids on behalf of the corporation. Mr. Chentnik signed the Department of Transportation contract in June, 1988 and an amendment to that contract in December of 1988. He also signed signed certain change orders to the Florida Bar contract in both September and November, 1988. The Carlton Building computer room bid was signed by Mr. Chentnik in September, 1988, as well as a change order for the Florida A & M University project which he signed in November, 1988. Mrs. Chentnik does not hold a contractor's license herself. She does all the bookkeeping for the company, pays the bills, and deals with the banks; in terms of checking and savings account deposits, withdrawals, as well as arranging credit. She has signed certain notes and lines of credit herself. She orders supplies and takes care of the insurance needs of the business and monitors which construction projects are coming up for bid, and obtains plans for them for the company to consider. She also contacts subcontractors for prices, attends bid openings, and arranges for bonding for the company for the jobs it undertakes. She assists in preparation of bids, especially the supplying of figures for overhead and profit on bids the company submits. She shares in the supervision of employees with her husband and directly supervises one employee, a part-time clerical helper. The company secures a great deal of its business by competitive bidding. Cost estimating is an important part of the bidding process. This estimating is performed primarily by Mr. Chentnik. Mr. Chentnik also developed the computer program to assist the company in its bidding efforts. The bidding program contains a range of percentages of overhead and profit which the company can add to the cost estimates on its bid to arrive at its most advantageous bid price. Mrs. Chentnik typically chooses a percentage for overhead and profit from the ranges set by the computer program. Mrs. Chentnik does not prepare entire estimates or bids herself. In all nearly cases her husband has assisted her. Mrs. Chentnik did prepare an entire bid for a flagpole project, valued at approximately $3500. In essence then, the decisions concerning which projects the company bids and which it declines to bid on have been joint decisions of Mr. and Mrs. Chentnik. They have usually jointly prepared bids, with Mr. Chentnik doing the greater part of that effort in providing the cost estimates. Both of them have historically negotiated prices with subcontractors in order to obtain figures for costs for a given project, in the course of preparation of a bid, however. The company has a checking account, a money market account and holds certificates of deposit. Both the Chentniks have equal drawing rights on all the accounts. The decision as to what amount of money to be placed in certificates of deposit is usually a joint decision. Both Mr. and Mrs. Chentnik have previously signed as personal guarantors on debt instruments for the company. Although Mrs. Chentnik does most of the banking business on behalf of the company, neither Mr. nor Mrs. Chentnik has sole control or authority over the bank accounts and the banking relationships of the corporation.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED: That a Final Order be entered denying the request for certification as a minority business enterprise of C & M Building Systems, Inc. DONE and ENTERED this 5th day of September, 1989, at Tallahassee, Florida. P. MICHAEL RUFF 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 5th day of September, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2758 Petitioner's Proposed Findings of Fact (The rulings below relate, by number, sequentially, to the unnumbered paragraphs of the Petitioner's proposed findings of fact) Accepted Accepted Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely comporting with the preponderant weight of the evidence. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted in part, but subordinate to the Hearing Officer's findings of fact on this subject matter and not, in itself, dispositive of material issues presented. Respondent's Proposed Findings of Fact 1-15. Accepted Rejected as unnecessary and not dispositive of material issues. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. 25-29. Accepted. COPIES FURNISHED: James O. Shelfer, Esquire Gardner, Shelfer & Duggar 1300 Thomaswood Drive Tallahassee, Florida 32312 Susan B. Kirkland General Counsel Department of General Services Room 452, Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0955 Ronald W. Thomas Executive Director Department of General Services Knight Building Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950
The Issue Whether Respondent, a certified general contractor in the State of Florida, violated various provisions of the contracting laws related to five different construction projects and, if so, what disciplinary action should be taken against him, if any?
Findings Of Fact At all times material hereto, Respondent has been licensed as a Certified General Contractor, holding license numbers CG C008004 and CG CA08004. At all times material hereto, Respondent was the qualifying agent for Asher Melzer Construction Corporation (hereinafter "AMCC"). DOAH CASE NO. 86-4732 At all times material hereto, Mr. and Mrs. Victor M. Franzese resided at 8880 Southwest 182nd Terrace, Miami, Florida 33157. On March 29, 1985, the Franzeses contracted with AMCC to construct a home in the Cutler Glen development for $279,000. The Franzeses made payments to AMCC totalling $32,901. Construction of the Franzese residence began almost immediately after the contract was signed. However, after the foundation was poured and the walls were put up, AMCC abandoned the project. During the time that the initial work was performed, Victor Franzese stopped by the construction site almost every day. Although he met the foreman on the job, he never met with, spoke to, or heard of the Respondent. Throughout the fall of 1985, Franzese wrote to Asher Melzer, the owner of AMCC, regarding the lack of work at the construction site. He received no responses to his letters. In January of 1986, Melzer indicated to Franzese that the roof trusses which had been lying on the ground at the Franzese project for many months would be installed. Franzese hired an engineer to inspect the trusses due to their obviously-deteriorated condition. The engineer reported that the trusses would need substantial bracing in order to be used. Additionally, a Dade County structural engineer told Franzese and Melzer after inspecting the trusses that no matter what bracing was added, the trusses would never pass inspection. AMCC did not begin construction again, and a foreclosure action was brought by Amerifirst Savings & Loan Association against Melzer, AMCC, the Franzeses, and others. The Franzeses lost all rights to the property which their house was being built on and lost all of the money which they had paid AMCC. During the entire time that the Franzeses were dealing with AMCC, they never heard of, spoke to, or saw the Respondent. The Franzeses lost approximately $38,000 in their dealings with AMCC. At all times material hereto, Mr. and Mrs. James R. Cross were the owners of property located at 9990 Southwest 127th Terrace, Miami, Florida. On March 25, 1985, the Crosses contracted with AMCC to construct a home on their property. The total contract price including extras subsequently agreed upon was approximately $152,400. The Crosses paid AMCC approximately $29,000 in deposit and draw monies. Although AMCC began construction of the Cross residence, the project was only completed through the tie beam phase. During the time that construction was being performed, James Cross visited the construction site on a daily basis. Although he met the foreman at the job site, he never spoke to, heard of, or met the Respondent. Construction at the Cross project ceased on approximately September 11, 1985, and was never resumed by AMCC. By that time, Cross had begun receiving Notices to Owner that liens would be placed on his property for failure to be paid by AMCC, and one lien had already been placed. The liens placed on his property were from the architect Ronald J. Dorris, Rinker Construction Company, ASP Construction Equipment Company, and Distrito Trucking Corporation. After receiving the first Notice to Owner, Cross contacted AMCC. He was told not to worry, that things would be taken care of by AMCC. All of the subcontractors and materialmen who filed liens on the Cross property were to have been paid by AMCC pursuant to the contract between the Crosses and AMCC. AMCC never provided the Crosses with any money nor posted any bonds to clear the liens. In fact, Melzer gave the Crosses a check to pay one of the liens, but the check bounced. Melzer never attempted to repay the money to them, and they were forced to pay off these liens personally for a total amount of $4,666. While James Cross was attempting to have AMCC pay the liens which were placed on his property, he never spoke to or heard from the Respondent. On December 7, 1985, after no work had been performed on the project for over 90 days, Cross served notice on AMCC that he considered the project abandoned. Cross hired another general contractor to complete the project and paid approximately $14,000 more than the original contract price to finish the project. During Cross' visits to the project, it did not appear that anyone was in control. Concrete blocks were being cemented into places where sliding glass doors were supposed to be placed, and windows were being built at improper sizes. Dade County, Florida, follows the South Florida Building Code as well as Chapter 10 of the Dade County Code, which regulates the conduct of contractors doing construction work within the limits of Dade County and all municipalities. In reference to the Cross project, Respondent obtained a permit for the construction. However, that permit did not include any plans for mechanical work, and no mechanical permit for the air conditioning system was ever obtained. Additionally, although an electrical permit was obtained, no inspections were ever called for by Respondent or anyone else. It is a violation of the South Florida Building Code and a violation of Dade County Code Chapter 10 to perform work without a permit, and it is the obligation of the qualifying agent pursuant to Chapter 10 to supervise, direct, and to control all work that is done under any permits that he has obtained The failure to obtain a mechanical permit for the Cross project indicates that Respondent was improperly supervising the job site activities. The numerous liens placed on the Cross property by subcontractors and materialmen indicate that there was a lack of supervision by Respondent. Under the Dade County Code, such actions would be considered diversion of funds. At all times material hereto, Mr. and Mrs. Mark E. Demsky resided at 7601 Southwest 162nd Street, Miami, Florida 33157. On May 16, 1985, the Demskys entered into a contract with AMCC to construct a home in the Cutler Glen development for $221,000. The Demskys paid AMCC a total of $28,000 towards the construction of that home. Work at the construction site began in late July or early August of 1985. Mark Demsky was concerned that the project did not begin immediately after the deposit money was paid and spoke to Melzer several times. When the work finally began, it proceeded very slowly. Although Demsky continued to ask questions regarding the pace of the work, he received only excuses from Melzer. Construction ceased after the foundation was poured. Construction ceased completely by December of 1985. By that time, numerous liens had been placed on the Demsky property. Because no money was placed in an escrow account at the beginning of construction, Demsky had required that Melzer sign a letter agreement on July 9, 1985, allowing Demsky to rescind the contract with 45-days notice prior to the closing. By March 18, 1986, after no work had been performed for over a three-month period, Demsky exercised that right of rescission and attempted to obtain the $28,000 deposit money he paid Melzer. Melzer gave Demsky a promissory note in the amount of $28,000 and executed a Release of Contract for Sale and Purchase. Although the promissory note from AMCC and Melzer became due on September 18, 1986, the Demskys have never received any payments on that promissory note. They filed suit to recover the $28,000 and received a final judgment against Melzer and AMCC for repayment of the promissory note, which final judgment remains unsatisfied. During the time that construction was being performed at the Demsky project, Mark Demsky visited the construction site almost every day. Although he met one of the supervisors on the job, and some of the workers, Demsky never met with, heard of, or spoke to the Respondent. Additionally, during all of the time that problems arose at the construction site and during the time that the job was abandoned, Demsky never heard from or spoke to the Respondent. The Demskys lost a total of approximately $29,250 in their dealings with AMCC. DOAH CASE NO. 88-5764 At all times material hereto, Mr. and Mrs. Calvin W. Tinsley resided at 14123 Southwest 66th Street, Miami, Florida. They now reside at 585 Shadowwood Lane, Titusville, Florida. On October 2, 1984, the Tinsleys contracted with AMCC to construct a home in the Cutler Glen development for $242,908. The Tinsleys paid AMCC approximately $32,000 in deposit money. Although the contract was signed in October of 1984, construction did not begin until February of 1985. The Tinsleys immediately noticed that things were not proceeding on schedule and the work was taking longer than promised. After a while, the subcontractors were placing liens on the Tinsley property. During all of the conversations with Melzer regarding the construction project, Calvin Tinsley never spoke to, heard of, or met with the Respondent. In fact, Calvin Tinsley believed that Asher Melzer was the general contractor for AMCC. Amerifirst Savings & Loan Association filed a foreclosure action against AMCC and Melzer, as well as the Tinsleys. A final summary judgment was entered against the Tinsleys, and their property was sold at an auction. The Tinsleys never recovered any of the $32,000 deposit money they paid AMCC. DOAH CASE NO. 89-0133 At all times material hereto, Mr. and Mrs. Warren W. Lovell, Jr., resided in Miami, Florida. They now reside at 16630 Southwest 87th Place, Miami, Florida 33157. On February 8, 1985, the Lovells contracted with AMCC to construct a home in Cutler Glen development for $195,000. The Lovells paid AMCC a total of $168,000 for the work which was performed at 16630 Southwest 87th Place in Miami. In August of 1985, construction stopped on the Lovell project for at least three months. Numerous liens had been placed on Lovell's property as well as the other properties within Cutler Glen. Lovell attempted to help Melzer complete the Cutler Glen project and arranged a meeting among Melzer and many of the homeowners and subcontractors. During this period of time, as well as when the construction was being performed, Lovell never met with, spoke to, or heard of the Respondent. In order to help AMCC begin construction again, Lovell released the claims of lien which he had placed on four homes owned by AMCC in the Cutler Glen development. Unfortunately, Lovell's efforts proved fruitless, and AMCC was never able to complete the development. Lovell ultimately had to pay to have the claims of liens which had been placed on his property released. Lovell then had to pay the subcontractors approximately $30,074 to complete his house. In 1986, Lovell discovered that the mortgage he had entered into with Melzer on the Lovell property was not a first mortgage as Melzer had represented. Lovell discovered that there were two previous mortgages filed on his property that were superior to his mortgage. Lovell was forced to pay an additional $70,000 to satisfy those mortgages to obtain title to his property. At the time those mortgages were discovered, Lovell had already paid $168,000 to AMCC for the construction of his house and the purchase of the property. In exchange for Lovell paying off the prior mortgages, Melzer gave Lovell three promissory notes totalling $70,000. These notes are past due and have not been paid, even in part. Lovell's out-of-pocket costs to complete his house were approximately $87,500.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered as follows: Finding Respondent guilty of the statutory violations as set forth above; Permanently revoking Respondent's license numbers CG C008004 and CG CA08004; Requiring Respondent to pay a civil fine to Petitioner in the amount of $5,000 within 30 days from the entry of the Final Order; Requiring Respondent to make partial restitution to each of the homeowners involved in this proceeding in the amount of $11,000 each to the Franzeses, to the Crosses, to the Demskys, to the Tinsleys, and to the Lovells for a total of $55,000 within 30 days from the entry of the Final Order; and Requiring that Respondent pay such civil fine and such partial restitution prior to any application for relicensure by Respondent being approved. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 22nd day of November, 1989. LINDA M. RIGOT 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 22nd day of November, 1989. COPIES FURNISHED: Jan L. Darlow, Esquire Rapheal M. Prevot, Jr., Esquire Department of Professional Regulation Adorno, Zeder, Allen, Yoss, Bloomberg & Goodkind, P. A. Bayview Executive Plaza 3225 Aviation Avenue, Suite 400 Miami, Florida 33133 Nicholas A. Mascioli 18750 Southwest 207th Avenue Miami, Florida 33187 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 APPENDIX TO RECOMMENDED ORDER, CASE NOS. 86-4732, 88-5764 and 89-0133 Petitioner's proposed findings of fact numbered 1, 3-10, 13-19, 22-27, 30-33, and 36-40 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 2 has been rejected as being unnecessary for determination of the issues in this cause. Petitioner's proposed findings of fact numbered 11, 12, 20, 21, 28, 29, 34, 35, and 41-47 have been rejected as not constituting findings of fact but rather as constituting recitations of the testimony, conclusions of law, or argument of counsel.
The Issue The issue is whether Respondent undertook to act as a contractor without a license as charged in the Administrative Complaints, and if so, what disciplinary action should be taken.
Findings Of Fact Pursuant to Section 20.165, the Division of Professions is a subordinate unit of the Department of Business and Professional Regulation (the Department). The Department provides administrative support, including prosecutorial support to the Construction Industry Licensing Board (the Board), which is also located within the Department. Mr. Grandmont is not currently licensed as a State Registered or State Certified Contractor in this state, nor has he ever been licensed by the Board. Mr. Grandmont's last known address is 355 China Berry Circle, Davenport, Florida. He was provided notice of the hearing at that address, and at 7733 Park Road, Charlotte, North Carolina 28210, which is the address he used when demanding a hearing on disputed facts in two of these cases. In DOAH Case No. 06-3279, he provided no address in his demand for a hearing. All attempts by U. S. Mail to notify Mr. Grandmont of the hearing, were returned. Mr. Grandmont is deemed to have known of the time, date, and place of the hearing, and is deemed to have waived his appearance at the hearing. On November 11, 2005, subsequent to Hurricane Wilma, Robert L. Coe, of Lake Worth, Florida, was contacted by Mr. Grandmont, who offered to repair his damaged mobile home. He provided a written estimate of $10,500. The estimate contained a list of 11 items requiring repair, and stated that he would accomplish the repair of them. He demanded a $4,200 down payment, which Mr. Coe provided in a draft drawn on Fidelity Cash Reserves, and dated November 11, 2005. Mr. Coe never saw Mr. Grandmont again. The repairs set forth in the written estimate were not accomplished. The draft, however, was negotiated by Mr. Grandmont. On November 12, 2005, subsequent to Hurricane Wilma, Joseph Webster, of Lake Worth, Florida, was contacted by Mr. Grandmont, who offered to repair his damaged residence. Mr. Grandmont discussed charging $13,500 in return for repairing Mr. Webster's residence. After negotiations, Mr. Grandmont agreed to do it for $11,500. No written estimate or contract was prepared. Mr. Grandmont demanded $5,750 payment in advance. Mr. Webster rounded off the down payment to $6,000 and presented Mr. Grandmont an official check of the Taunton Federal Credit Union, of Taunton, Massachusetts, for that amount. The check was negotiated by Mr. Grandmont, but the promised repairs were not accomplished. On November 4, 2005, subsequent to Hurricane Wilma, Ella Arseneau, of Lake Worth, Florida, was contacted by Mr. Grandmont, who offered to replace her roof. He provided an estimate of $5,500 in return for repairing Ms. Arseneau's residence. He demanded that she pay $3,500 in advance, which Ms. Arseneau provided by presenting Mr. Grandmont a check for $3,500, drawn on an account in Wachovia Bank. The check was negotiated by Mr. Grandmont, but the roof was not repaired as promised. Mr. Coe is 78 years of age, Mr. Webster is 85, and Ms. Arseneau is 77.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation impose a fine upon Clifford Grandmont in the amount of $30,000. DONE AND ENTERED this 28th day of November, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 28th of November, 2006. COPIES FURNISHED: Brian A. Higgins, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Clifford Grandmont 7733 Park Road Charlotte, North Carolina 28210 Nancy S. Terrel, Hearing Officer Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Simone Marstiller, Secretary Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent, a certified general contractor, violated the construction industry licensing law, by: (1) willfully or deliberately disregarding and violating the applicable building codes or laws of the State or any municipalities, cities or counties thereof; (2) diverting construction funds resulting in his unwillingness or inability to perform pursuant to a construction contract; and (3) abandoning a construction project; and if the Respondent is guilty of such violations, the appropriate disciplinary penalty which should be imposed by the Construction Industry Licensing Board.
Recommendation That Respondent's certified general contractor's license No. CGC005174 be suspended until such time as Respondent furnishes the Board satisfactory evidence of having made restitution to Simon H. and Alexandra U. Ramos in the amount of $2,515 for monies expended by them to pay for lumber, electric and plumbing charges arising out of their construction contract.
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: The Respondent, Roger L. Irven, is a certified general contractor holding license number CG C027873. At all time material hereto, Respondent was licensed as a certified general contractor, doing business as Irven Construction Company. DOAH CASE NUMBER 85-0714 On about June 25, 1978, Respondent pled guilty and was adjudged guilty of the felony offense of wanton endangerment in the Circuit Court of Oldham County, Kentucky. On July 25, 1978, the Respondent was sentenced to three (3) years probation by the Oldham County Circuit Court. The Respondent was represented by counsel. Respondent was placed on probation with certain conditions. One of the conditions was that the Respondent receive treatment in the infirmary for his epileptic condition. The Court ordered that the Respondent be hospitalized for four (4) months in the prison infirmary. The Department of Professional Regulation, Construction Industry Licensing Board received applications from the Respondent to take the certified contractor's examination on December 16, 1982, April 1, 1983, August 17, 1983 and December 7, 1983. On each application, Respondent answered in the negative indicating that he had never been convicted of any offenses in this state, or elsewhere, other than a traffic violation. Respondent took the Certified Contractor's Examination four (4) times. Respondent passed the examination on the fourth attempt. On March 14, 1984, Respondent was licensed as a certified general contractor. DOAH CASE NUMBER 85-3393 On November 1, 1984, the Respondent contracted with Kathy and Larry Evans, 5746 Wingate Drive, Orlando, Florida, to remodel their home at a cost of $6,700.00. On November 5, 1984, the Evans' paid Irven Construction $3,350.00 towards the contract price. The specifications for the remodeling work were prepared by Irven Construction. Mr. Evans was told by the salesman for Irven Construction that the remodeling would commence within fifteen (15) days of signing the contract and be completed within forty-five (45) days of the commencement, which amounted to sixty (60) days for total completion after signing the contract. No work was performed on the Evans project until December 19 or 20, 1984, when the windows were put in. The air conditioning duct work and heating elements were put in and the old oil furnace was removed. Respondent informed the Evanses that no work was done before this because he was ill. On January 3, 1985 Irven Construction entered into a contract with Central Air, Heating and Cooling, Inc. to perform air conditioning and heating work on the Evans' home at a cost of $3,195. A few days after entering into the contract, Central Air & Heating completed only the rough-in of the contracted work. The rough-in consisted of the installation of the heating and air conditioning ducts and the furnace installation, but not the installation of the condensing unit. Central Air & Heating was given cheeks for $1,278 by Irven Construction for the rough-in work it had completed. The checks were deposited by Central Air & Heating in its bank account, but were returned because insufficient funds were on deposit to cover them. Central Air & Heating notified Irven Construction about the returned checks; the Respondent stated that he would submit another check, but failed to do so. Because it was not paid by Irven Construction, Central Air & Heating sent a Notice to Owner to the Evanses. The Evanses also received a Notice to Owner from Window Works, Inc. for custom windows which had been ordered by Irven Construction, but never paid for. Window Works filed a lien for $600 against the Evans t property due to it not being paid for the custom windows. Subsequently, the Evanses were sued in civil court by Window Works for the amount owed under the lien. The Evanses were required to pay Window Works the amount owed plus other costs, totaling $1,800. Window Works was not paid because Respondent gave the money to one of his salesmen to buy the windows. The salesman, Nr. Renfuller, kept the money and put the windows on credit. At the time that Respondent wrote the check to Central Air & Heating, Respondent thought that there was enough money in his account to cover it. Nothing was done on the Evans project in accordance with the contract after the rough-in by Central Air & Heating. At the time of the cessation of the work, the Evans job was 60% complete and the value of the work completed was approximately $3,400. On December 12, 1984, Respondent contracted with Irving Bernstein, 1018 Matchlock Drive, Orlando, Florida, to build an enclosed porch for a price of $2,000. The Bernsteins discussed the completion date of the contract with the Respondent and his brother, Richard Irven. Bernstein was told that the remodeling would commence three (3) days after Irven Construction obtained the permit for the work and that the work would be completed within seven (7) days after that. Bernstein paid Irven $100 at the time of signing the contract. Before signing the contract, Respondent informed Bernstein that several sub-contractors were available to start the remodeling, and, that construction could start as soon as the contract was signed. After signing the contract, no one immediately appeared from Irven Construction to perform the remodeling. Bernstein made several calls to Respondent and left several messages, seeking to obtain information as to when someone was coming to begin the remodeling work. When Bernstein spoke with the Respondent, the Respondent informed him that he had to obtain three (3) bids. On January 2, 1985, Bernstein paid Irven Construction $975.00, making his total payment $1,075. Respondent obtained the building permit for the Bernstein project on January 9, 1985. At the end of January, 1985, Respondent and his son arrived at the Bernstein residence to start the remodeling job. Respondent and his son worked approximately three (3) hours that day, putting in 2 x 4's around the sides. The following day, Respondent's brother and son worked on the project for approximately three (3) hours, removing some tiles off of the roof and the side molding from the house. When they left they stated that they would return the following Monday: however, no one came that Monday. That Monday morning, Bernstein called Irven Construction and spoke with Respondent's brother, Richard Irven. Respondent's brother informed Bernstein that Respondent had a bad back and that completion of the job would be delayed. Bernstein requested the return of his money, but no money was ever returned by Irven Construction. On February 21, 1984, Respondent wrote a letter to Bernstein indicating that he wanted off of the job since it appeared to him that Bernstein did not want him to finish. At the time of the cessation of work by Irven Construction, appoximately 50% of the work had en completed. Both Respondent and Bernstein believed that there was a breach of contract by the other. Bernstein contracted with another contractor, Mark Spires Construction Company, to perform the remodeling work. Bernstein's contract with Mark Spires involved more work than the contract with Respondent. Bernstein's contract with Respondent was for a simple porch close-in with no substantial roofing work. Spires Construction Company re-leveled the beams and reconstructed the 2 x 4's of the framework. To effectuate the two (2) walls envisioned by the contract of Respondent, the existing beams were to be utilized. The only thing that Respondent had to do was to tie into the existing house. The Respondent took off the top row of tiles on the roof so he could tie it in. The only improvements Respondent made to the existing roof was "ducking and drying-in". On January 14, 1985, Sam Ross entered into a contract with Irven Construction, to remodel his home's porch, at a cost of $1,550. Ross chose Irven Construction because Irven Construction had contracted to remodel the porch of his neighbor, Nr. Bernstein, and the cost of the Bernstein job sounded reasonable. Ross was informed by Irven Construction that they would be working on both his job and Bernstein's job at the same time. At the time of signing the contract, Ross paid Respondent $775. Ross discussed the commencement and completion of the project with Respondent's brother, Richard Irven. Ross was told that the work would commence within ten (10) days of the signing of the contract and would take about five (5) days thereafter for total completion. Irven Construction delivered some supplies to his home at the same time supplies were delivered to the Bernstein project site. Because commencement of work on the project was slow, Ross called Irven Construction numerous times concerning the work on his home. Respondent eventually assigned an individual named Nark Withlow to perform work on the Ross project. However, Ross did not want Withlow to work on the job because Ross felt that a certified carpenter was needed; Mark Withlow was qualified as a remodeler. Thereafter, Ross refused to allow anyone from Irven Construction to work on his home because of his dissatisfaction with Mark Withlow's assignment to his job and because he discovered the problems that Bernstein and Respondent were having. Ross requested the return of his money from Respondent. Respondent offered, by letter dated February 21, 1985, to refund $513. Ross did not respond to Respondent's letter because he wanted a full refund and felt that Respondent's offer was "ridiculous." Ross later contracted with Mark Spires Construction to perform the remodeling work, which was eventually completed. The materials left at the-project site were used by Mark Spires Construction. The value of the goods and materials which were delivered to and remained at the Ross project was between $50 and $80.00. Ross sued Irven Construction in civil court and obtained a judgment for the full amount he paid Respondent, plus court costs. Respondent was involved in an automobile accident on July 3, 1984. As a result of the accident, Respondent suffered severe head, shoulder and back injuries. In November of 1984, Respondent was hospitalized with a "trimmed disc"; in January, 1985, Respondent briefly returned to active participation in the business but reinjured his back while working on the Bernstein project. After the July 1984 accident Respondent provided little or no control or supervision to his business and was bed-ridden frequently from July 1984 to March, 1985. In addition, the automobile accident caused Respondent's seizures to return. Respondent has suffered from a seizure disorder, i.e. epilepsy, since 1975. Respondent was seizure free from 1979 to 1983. The type of seizure that the Respondent suffers from affects his memory and decision making and may last for several days following a seizure activity. Since the accident in July, 1984, Respondent has been taking medication for his back pain, i.e. Darvocet, and medication for his seizures, i.e. Tegretol, 200 mg. From August 29, 1984 to March, 1985, Respondent was having heavy seizure activity and frequented the Epileptic Foundation of Orlando for treatment at least once a month or every six weeks. He was advised by the Foundation to always take his medication and to be with someone. During the same period, he was treated by a Dr. Litchfield, a chiropractor, at least two to three times a week. The Respondent's ability to give effective directions or make decisions was impaired due to his physical problems from August 1984 to March 1985. In August or September, 1984, Davis Chaffee began working with Respondent as a salesman. After about ten (10) days to two (2) weeks as a salesman, Respondent allowed Chaffee to run the business due to the Respondent being bedridden most of the time and not being able to function as a result of the accident of July, 1984. Davis Chaffee had no construction background; his experience was in sales and business administration. To assist Chaffee in running the business, Respondent prepared an outline which included a basic scale for bids. James NcCall served as the superintendent for Irven Construction. Respondent felt that NcCall was competent to be superintendent as long as he was supervised by Respondent. After Respondent's accident of July, 1984, McCall handled all the construction aspects of the business including overall supervision of the project. McCall continued as the superintendent on the jobs, handled bids and proposals and dealt with the prints, materials and subcontractors for all the jobs. Despite Respondent's reservations about McCall's abilities, McCall was allowed to literally "run the business" because of Respondent's physical problems. Davis Chaffee had the authority to approve contracts and prepare bids without consulting McCall. Chaffee was fired by Respondent in December, 1984. DOAH CASE NUMBER 85-4216 On September 27, 1984 Respondent contracted with Richard Loman to build an addition to Loman's residence at 783 Formosa Drive, Winter Park, Florida at a cost of approximately $20,000. Loman and Respondent discussed the commencement and completion date of the remodeling and Loman was told that the project would be completed within 45 days from approval of the plans and the signing of the contract. Loman paid Irven Construction $10,000 as a deposit, $500.00 on September 24, 1984 and $9,500 on October 2, 1984. In addition, Irven Construction received a contractor's draw of $3,333 on October 23, 1984 and $3,333 on November 5, 1984. As of November 5, 1984, the drywall, insulation, fixtures, toilet, vanity, heat and air, and the hot water heater remained to be completed. On January 16, 1985, the contract price was increased another $1,000 for additional electrical work which was requested by Loman. The work on the remodeling was progressing slowly and Loman repeatedly called Respondent to get someone out to complete the remodeling. Respondent repeatedly promised to send someone to complete the work. In February, 1985, a drywall person came out and completed the drywall. Loman received a letter dated February 1, 1985 from the Respondent. The letter indicated, among other things, that the Respondent was physically ill but had all intentions of complying with the contract and completing the remodeling and that he had a contractor who would contact Loman to arrange to complete the remodeling. Since the drywall person completed his work in February, 1985, no one has gone to the Loman's residence to complete the remodeling. No contractor has contacted Loman to arrange for the completion of the project and no money has been returned to Loman. At the time Irven Construction stopped work- on the Loman project, it was about 90% complete. Loman completed the job himself on June 1, 1985. Loman received, by certified mail, liens from Tillman's Plumbing and Jackson Drywall Service for the remodeling work done on his home under the contract with Respondent. Tillman's lien was $360 and Jackson Drywall's lien was $1,350. DOAH CASE NUMBER 85-4246 On August 29, 1985, Irven Construction entered into a contract with Stephen Dubin and his wife to remodel their family/living room at a cost of $7,200. In accordance with the modified specifications, electrical lights and an electrical fan were installed. James McCall, Respondent's superintendent completed most, if not all, of the electrical work. The project was completed and Irven Construction was paid in full. The Seminole County Building Department's records show that a building permit for the Dubin project was applied for, approved, and assigned a permit number, but never issued because it was not picked up. The Building Department's records also showed that no electrical permit was applied for. Respondent was required by the Seminole County Building Code to obtain a building permit before commencing the remodeling. After a building permit is issued, periodic inspections of the project site are required. Without a building permit, there are no inspections by the Building Department. During this period, the Respondent was having personal problems with the employee that was responsible for picking up the permit. The Respondent was unaware that the employee had failed to properly perform his duties by picking up the permit. Respondent was ill during this period and had very little input into the Dubin project.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED THAT: Respondent's license be suspended for a period of four (4) years, with the condition that he may be eligible to apply to the Board for reinstatement after a period of two (2) years and upon a showing satisfactory to the Board that his financial affairs are in good and sound condition and that he is physically capable of carrying on a contractor's business. Further, for the purposes of such an application for reinstatement, Respondent shall be required to appear before the Board for such questions as the Board feels appropriate and shall supply the Board with such documents as the Board feels necessary. DONE and ORDERED this 9th day of April, 1986, in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1986. COPIES FURNISHED: Errol H. Powell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Stuart G. Green, Esquire 712 East Washington Street Orlando, Florida 32801-2994 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street. Tallahassee, Florida 32301 James Linnan, Executive Director Department of Professional Regulation P. O. Box 2 Jacksonville, Florida 32202 APPENDIX 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. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in Finding of Fact 1. Adopted in Findings of Fact 2 and 3. Adopted in Findings of Fact 2 and 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 7. Partially adopted in Finding of Fact 6. Matters not contained therein are rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as legal argument. Rejected as subordinate. Rejected as unnecessary and subordinate. Rejected as unnecessary and subordinate. Rejected as unnecessary and subordinate. Adopted in Finding of Fact 34. Adopted in Finding of Fact 34. Adopted in Finding of Fact 34. Adopted in Findings of Fact 37 and 38. Adopted in Finding of Fact 35. Adopted in Finding of Fact 36. Adopted in Finding of Fact 37. Adopted in Finding of Fact 37. Adopted in Finding of Fact 37. Adopted in Finding of Fact 38. Adopted in Finding of Fact 39. Adopted in Finding of Fact 39. Adopted in Finding of Fact 40. Adopted in Finding of Fact 40. Partially adopted in Finding of Fact 41. Matters not contained therein are rejected as subordinate. Adopted in Finding of Fact 41. Adopted in Finding of Fact 49. Adopted in Finding of Fact 49. Partially adopted in Finding of Fact 51. Matters not contained therein are rejected as subordinate and unnecessary. Rejected as subordinate and unnecessary. Rejected as subordinate and unnecessary. Adopted in Finding of Fact 50. Adopted in Finding of Fact 51. Adopted in Finding of Fact 51. Rejected as recitation of testimony. Adopted in Finding of Fact 51. Adopted in Finding of Fact 53. Rejected as a recitation of testimony. Adopted in Finding of Fact 42. Adopted in Finding of Fact 42. Adopted in Finding of Fact 42. Adopted in Finding of Fact 42. Adopted in Finding of Fact 42. Adopted in Finding of Fact 43. Adopted in Finding of Fact 44. Rejected as subordinate and unnecessary. Adopted in Finding of Fact 45. Adopted in Finding of Fact 46. Adopted in Finding of Fact 47. Adopted in Finding of Fact 47. Adopted in Finding of Fact 48. Adopted in Finding of Fact 48. Rejected as a recitation of testimony. Rejected as subordinate and unnecessary. Adopted in Finding of Fact 8. Adopted in Finding of Fact 9. Adopted in Finding of Fact 9. Adopted in Finding of Fact 8. Adopted in Finding of Fact 10. Adopted in Finding of Fact 11. Adopted in Finding of Fact 12. Adopted in Finding of Fact 18. Adopted in Finding of Fact 13. Adopted in Finding of Fact 13. Adopted in Finding of Fact 14. Adopted in Finding of Fact 14. Adopted in Finding of Fact 15. Adopted in Finding of Fact 15. Rejected as a recitation of testimony. Rejected as subordinate. Rejected as subordinate. Rejected as a recitation of testimony. Adopted in Finding of Fact 19. Adopted in Finding of Fact 19. Adopted in Finding of Fact 20. Adopted in Finding of Fact 20. Adopted in Finding of Fact 21. Adopted in Finding of Fact 21. Adopted in Finding of Fact 22. Adopted in Finding of Fact 23. Adopted in Finding of Fact 24. Adopted in Finding of Fact 24. Adopted in Finding of Fact 24. Partially adopted in Finding of Fact 25. Matters not contained therein are rejected as subordinate. Adopted in Finding of Fact 25. Adopted in Finding of Fact 26. Adopted in Finding of Fact 26. Adopted in Finding of Fact 27. Partially adopted in Findings of Fact 27 and 28. Matters not contained therein are rejected as not supported by competent and substantial evidence. Adopted in Finding of Fact 27. Rejected as a recitation of testimony and/or subordinate. Adopted in Finding of Fact-29. Adopted in Finding of Fact 29. Adopted in Finding of Fact 29. Adopted in Finding of Fact 29. Adopted in Finding of Fact 30. Adopted in Finding of Fact 30. Partially adopted in Findings of' Fact 31 and 32. Matters not contained therein are rejected as subordinate. Partially adopted in Findings of Fact 31 and 32. Matters not contained therein are rejected as subordinate. Adopted in Finding of Fact 32. Adopted in Finding of Fact 33. Adopted in Finding of Fact 32. Adopted in Finding of Fact 33. Adopted in Finding of Fact 33. Adopted in Finding of Fact 34.I Rejected as subordinate and unnecessary. Adopted in Finding of Fact 37. 111. Rejected as subordinate and unnecessary. 114. Rejected as subordinate and unnecessary. Rulings on Proposed Findings of fact submitted by the Respondent (None submitted).
Findings Of Fact The Department of General Services, (hereinafter "DGS") is a state agency, the responsibilities of which include the management of state construction project. It accomplishes such management through its Division of Building Construction. The Divisions responsibilities include, negotiation of architect/engineer contracts, review of plans and specifications, contract administration, and contract management. One such project is Project No. MA-87080010, the subject matter of which involves repairs and alterations to the National Guard Armory in Fort Lauderdale, Florida, hereinafter referred to as the Armory Project. Certain portions of the bid specification for the Armory Project were prepared by the project architect, Mr. William D. Tschumy, Jr. Other portions, specifically the portions dealing with bidding conditions and contractual conditions, were provisions provided by DGS for inclusion in the specifications. The project architect was not familiar with all of the bid specification provisions provided by DGS. Prior to submitting its bid on the Armory Project, James P. Moran, Inc., had been prequalified for bidding on the project. Such prequalification did not obviate the need for James P. Moran, Inc., to meet the experience requirements in the bid specifications and in Rule 13D-11.904(2)(a)(8), Florida Administrative Code. The bid specifications for the Armory Project include the following provisions: 1/ Section B-2, page 9: 8. Firm experience - must have successfully completed no less than two project of similar size and complexity within the last three years. and; Section B-22, page 16: The owner reserves the right to reject any and all bids when such rejection is in the best interest of the State of Florida and to reject the proposal of a bidder who the owner determines is not in a position to perform the contract and to negotiate the contract in accordance with its Rule 13- D11.08 if the low qualified bid exceeds the project construction budget. James P. Moran, Inc., timely submitted its bid on the Armory Project and was subsequently notified that it had been recommended for contract award by the Director of the Division of Building Construction. This recommendation was made on the basis of a recommendation by the project architect that the bid be awarded to James P. Moran, Inc. At the time of making his recommendation, the project architect was not aware of the firm experience provision in either the bid specifications or the applicable rules. A timely protest was filed by another bidder on the Armory Project, in which the protesting bidder raised the issue of the firm experience of James P. Moran Inc. DGS concluded that the protest was valid and after further deliberation made the determination to reject all bids. All the bids other than the bid submitted by James P. Moran, Inc., exceeded the funds available for construction of the Armory Project. Because the other bids all exceeded the available funds, DGS decided that the best course of action would be to modify the scope and nature of the work involved in the project and then re-bid the project. It is reasonable to expect that the proposed modifications to the project will result in lower bids, because the modifications would permit the work to be done quicker and at less cost to the contractor. James P. Moran, Inc., was incorporated in 1981. However, prior to the summer of 1988, it had submitted no bids acquired no permits, and had neither started nor completed any jobs. The qualifying contractor for James P. Moran, Inc., is Mr. James P. Moran who, for many years prior to the summer of 1988, was an employee, officer, and shareholder of Frank J. Moran, Inc. Mr. James P. Moran holds a State of Florida building contractors license, a State of Florida electrical contractors license, a Dade County electrical masters license, a Broward County electrical masters license, and a State of Maine electrical contractors license. While employed by Frank J. Moran, Inc., Mr. James P. Moran was also the qualifying contractor for that corporation. While so employed, Mr. James P. Moran's primary duties were those of project director and estimator. He was also a corporate officer of Frank J. Moran, Inc. During his employment with Frank J. Moran, Inc., Mr. James P. Moran was the project manager on projects of similar size and complexity to the Armory Project. The construction budget for the Armory Project is approximately 250,000. The dollar values of construction jobs are valid indicators of the comparative sizes of construction jobs. The dollar values of the two largest construction jobs completed by James P. Moran, Inc., are approximately $161,000 and $112,000, respectively. The two largest construction jobs completed by James P. Moran, Inc., are not of similar size to the Armory Project. While DGS is concerned about the qualifications of the personnel employed by a contracting firm, DGS is also concerned about the track record of the firm itself, and, therefore, requires that a firm have completed projects in its own name in order to qualify for a bid award. In other words, a new firm cannot "take credit" for work performed by one of its employees at a time when the employee was working for another firm. Also, DGS does not allow "stacking" of the dollar value of several small jobs in order to demonstrate completion of a job of similar size to the job that is the subject of a bid. The purpose of the experience rule is to require a contracting firm to have completed at least two jobs of similar dollar size to the dollar size of the job being contracted. Among, the reasons stacking is not allowed is that completion of a job of any given size is a more complicated and complex undertaking than completion of a series of smaller jobs that total up to the same dollar value as the job of given size. DGS has now modified the scope of the project and has amended the plans and specifications in such a fashion that it will take less time to complete the modified Armory project and may reasonably be expected to result in lower bids closer to or below the construction budget. The modified Armory project may reasonably be expected to result in a savings of both time and money.
Recommendation For all of the foregoing reasons it is RECOMMENDED that the Department of General Services issue a final order in this case rejecting the bid of James P. Moran, Inc., as being non-responsive, and rejecting all other bids, in order to modify the scope of the project and rebid it. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of March 1990. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 1990.
