Findings Of Fact At all times pertinent to the allegations contained in the Administrative Complaint filed herein, Petitioner was licensed as a general contractor in Florida, holding license number CG CO20660, under which license he had qualified Custom Retail Contractors, Inc., and the Petitioner, Construction Industry Licensing Board, (Board), was the state agency charged with regulating the practice of contracting. On February 12, 1986, the Board entered a Final Order in its case number 0058164 in which it suspended Respondent's license to practice contracting for five years. This action was based on a finding that Respondent had violated several sections of the Standard Building Code in a contract to build several commercial buildings in Largo, Florida, and also had exhibited gross negligence or incompetency in several aspects of the job. Respondent was first made aware of the action of the Board in late March or early April, 1986 when his attorney, Mr. Gordon, told him he had received a copy of the Final Order. At that point, Respondent did not know there had been a hearing on his case, though he knew an action had been filed. Correspondence extracted from the files of DPR relating to Respondent, indicates that between March 11, 1986 and June 25, 1986, several phone calls and letters were exchanged between DPR legal personnel and Respondent's counsel regarding whether Respondent had been given notice that the initial Administrative Complaint against him had been filed. The complaint had been served by an investigator with DPR on Mr. Gordon who declined to accept service since he was counsel for Respondent's corporation and not Respondent, individually. The evidence further indicates that subsequent pleadings in that case were misdirected and misaddressed due to faulty addresses used by the Department which included erroneous street addresses and erroneous ZIP codes. The upshot of all this was that Respondent failed to submit an Election of Rights regarding the initial Administrative Complaint, and, after numerous attempts at communication by DPR, which included the posting of a notice of the Board hearing in the Clearwater, Florida newspaper, the Board ultimately held Respondent in default and entered the Final Order suspending his license as described above. In the Spring of 1986, however, while the communication and correspondence between DPR and Mr. Gordon was going on, Respondent was led to believe, he contends, that the Final Order was not dispositive of his status, that the status of his license was still undecided, and that he could continue to practice his profession. His reliance on advice of counsel was misplaced and works to his detriment here as it does not excuse his improprieties. Consistent with that understanding, on May 1, 1986, Respondent entered into a contract with Mr. Clarence P. Foster, owner of Clarence's, a lounge, restaurant and package store located in Clearwater, Florida, to remodel a patio outside the facility. Work was to include pouring a concrete slab in the drive- thru, constructing a block wall around the patio, installing lattice panels on top of the block wall, and placing planter boxes on two of the walls. The total contract price was $4,730.00 and on May 15, 1986, the manager of Clarence's issued a check in the amount of $1,730.00 payable to Tom Morgan, Respondent's associate. At the time of Respondent's negotiations with Mr. Foster, Mr. Foster indicated he was utilizing a contractor for the complete remodeling of his facility who did not want to do the patio work, and Respondent agreed to do it. After their contract was signed, Respondent dealt with Mr. Foster's manager who showed him the plans for the entire remodeling which, according to Respondent, included the patio. They were stamped by the contractor and had a permit number on them. Respondent contends he asked if that indicated permit included the entire project and claims he was told it did. Respondent also claims he advised Foster's manager that there was some problem with his contractor's license but was assured that the master permit already issued would cover any work done by him under the terms of the individual contract. After receiving the down payment from the manager, Respondent purchased the required materials, paying cash therefore, and started work. Respondent relates that at the very beginning, a violation was written by building inspectors for the failure of the electrical contractor to procure a permit for his portion of the work. When this was done, the contractor immediately got the required permit after the fact and continued with his work. This concerned the Respondent, however, and he requested the manager to bring the existing permit for the remodeling around to the area where Respondent was working where he posted it and covered it with cellophane. When the inspector subsequently came by to check Respondent's work, he asked where the permit for that portion of the construction was and Respondent pointed to the master permit. The inspector then indicated that that permit was only for exterior siding and when Respondent protested that decision, called his office and verified that fact. Upon being advised of this development, Respondent then took the plans he had been furnished and a copy of the permit to the building office and asked the clerk on duty what he had to do. According to Respondent, he was advised that he needed to get more plans prepared with a certificate that the work already done had been done to code. Respondent relates that in response to these instructions, he procured an architect to come and look at the job as it then stood. The architect reportedly thereafter drew up plans and certified the quality of the work already accomplished by Respondent and Respondent allegedly took this information to the building department where, on June 25, 1986, he applied for a building permit to do the work. At that time, according to Respondent, he advised the clerk he had a problem with his license and that all he wanted was a supplemental permit to finish the job. Approximately two weeks later, when passing the County building, Respondent stopped in at the building department office to check on the status of his permit. It was at this point that he first discussed the matter with Mr. Palmer, the plans examiner, who told him that his license had been suspended and that he could not receive a permit to do the work requested. Respondent returned to Mr. Foster and explained the situation to him. Mr. Foster turned the matter over to his manager who arranged for someone else to get the permit and complete the job. Respondent contends he was not trying to trick anyone or to contract without a license. He claims that at the time he entered into the agreement with Mr. Foster, he was unsure of the status of his license and he thought he had made that clear to everyone, including Mr. Foster and the people at the building office. Respondent contends that in his dealings with Foster he was attempting to deal as a subcontractor and not as a general contractor. The fact is, however, that the contract he entered into was a separate contract with Mr. Foster and failed to indicate any reference to subcontractor status. The agreement called for Respondent to be paid directly by Foster and not by the general contractor and his claim is, therefore, not believed. Respondent's protestations in this regard are without merit. Further, his story regarding the permit status is equally as unbelievable. As a qualified contractor, Respondent knew, or should have checked on, the limits of the permit issued and whether it would cover the work he was to do. Reliance on the representations of the non-contractor manager of Mr. Foster's facility as to the status of the permit was unreasonable and constituted gross negligence. Consequently, he was thereafter operating in violation of the local law which required a permit for this work. As a result of the ongoing negotiations between Respondent's counsel and counsel for the Board, on July 10, 1986, after the contract between Mr. Foster and Respondent had been entered into, Respondent and the Board entered into a Settlement Stipulation which called for amendment of the Final Order entered in the prior case and which provided for the payment of a fine of $1,000.00 within 30 days with the further stipulation that when the fine was paid, the previously imposed five year suspension would be set aside. In the event the fine was not paid, however, then the Respondent's license was to be relinquished to the Board. The Amended Final Order was sent by certified mail to the Respondent but was unclaimed because the address used by the Department was, again, incorrect. It must also be noted, however, that at the time the Board agreed to the settlement stipulation, it had available to it the report of investigation relating to the current Administrative Complaint. The Board either failed to consider it or chose to ignore it when it agreed upon a settlement to the former Administrative Complaint. It is also noted that the Board was aware of the difficulties involving service of process as early as August, 1986. At that time, Respondent received a certified letter from the Board Attorney indicating that final action on his license would be taken by the Board at its September, 1986 meeting in Ft. Lauderdale. Respondent attended that meeting where, after discussion, counsel for the Board convinced the Board to reopen the case due to the questions involving proper service of its former actions. A year later, in July, 1987, Respondent was advised that the reopened case would again be considered at the Board's meeting in Tampa, and at the 1987 meeting of the Board, it entered its Amended Final Order. Though regrettable, these factors are not controlling and do not affect this current action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that the Respondent's license as a general contractor in Florida be suspended for two years. RECOMMENDED this 11th day of July, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1999 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. 3. Accepted and incorporated herein. 4 - 5. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. 10 - 13. Accepted and incorporated herein. Accepted that Palmer refused to issue the permit because Respondent's license had been suspended. Accepted and incorporated herein. Rejected that Respondent willfully violated local building code. Evidence shows more of gross negligence than willfulness. Accepted. For the Respondent: No submittal. COPIES FURNISHED: Belinda Miller, Esquire, Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0758 Fred H. Moore 12687 - 97th Street, North Largo, Florida 34643 Fred Seely, Executive Director DPR, Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
Findings Of Fact The Respondent, Neil Wayne Smith, is a certified general contractor holding license number CG C003076. This license was suspended on March 4, 1977, for three years, and was reinstated in March of 1980. On March 21, 1980, the Respondent became the qualifier for WWRS Enterprises, Inc. This corporation had been formed in 1978 by the Respondent and his partner, William Rymers, for the purpose of engaging in the general contracting business. Mr. Rymers became president of WWRS Enterprises, Inc., and the Respondent acted as secretary, supervisor of construction, and manager of financial matters. Although the Respondent did not hold any direct stock ownership, his share of the corporate stock was registered in his wife's name. The Respondent knew that under the law WWRS Enterprises, Inc., needed to have a qualifying agent registered with the Construction Industry Licensing Board, and the Respondent and his partner discussed this subject. Since the Respondent's license was under suspension during 1978 and 1979, it was proposed that a Max Dunaway would become the qualifying agent for WWRS Enterprises, Inc., but the necessary paperwork to register him as qualifying agent for the company was never filed. Thus, until March of 1980, the company was not qualified to engage in general contracting. In November, 1979, the Respondent negotiated a contract on behalf of WWRS Enterprises, Inc., with Wilhelm Hackenberg and his wife, for the construction of an addition to their home in Ormond Beach, Florida. Since the Respondent's license was suspended, Max Dunaway pulled the building permit for the company, but the job was supervised by the Respondent, not Max Dunaway. WWRS Enterprises, Inc., was the contracting company to which at least one subcontractor submitted invoices, Mr. Dunaway's company, Southwide Builders, Inc., was not involved in this transaction. At least four construction jobs were performed by WWRS Enterprises, Inc., but only the Hackenberg job was identified by a precise time-frame during which the company had no qualifying agent. The Respondent does not challenge many of these facts. Instead, he contends that he never held any stock in WWRS Enterprises, Inc., and was only a managing employee of the company, not responsible for its policies. These contentions, however, are not consistent with the weight of the credible evidence, and have been discounted.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that license number CG C003076 held by the Respondent, Neil Wayne Smith, be revoked. THIS RECOMMENDED ORDER entered on this 21 day of May, 1981. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 1981. COPIES FURNISHED: Michael Egan, Esquire May, 1981. Post Office Box 1386 Tallahassee, Florida 32302 Neil Wayne Smith 14 Rain Tree Drive Port Orange, Florida 32019
The Issue Whether Respondent violated section 489.13(1), Florida Statutes (2016)1/, by offering, contracting, or performing regulated construction services, for compensation, as charged in the Administrative Complaint; and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of the construction industry, pursuant to section 20.165 and chapters 455 and 489, Florida Statutes. On September 29, 2016, by letter, the Broward County Environment Protection and Growth Management Department forwarded a complaint to DBPR indicating the subject matter "appears to fall within your area of jurisdiction." The complaint alleged that Ryan D. Kirkland, d/b/a The Shining Light Construction, Inc., represented himself as a licensed contractor, provided a quote, and cashed the check from the victim, Rayon Richards ("Richards"). DBPR assigned Sonya Roa-Zaiter ("Roa-Zaiter"), investigator, to investigate the complaint. During the investigation, Roa-Zaiter interviewed individuals and reviewed several documents to determine Respondent's licensure status and relationship with Richards. Roa-Zaiter discovered that on July 20, 2016, Respondent presented Richards with a written proposal ("proposal") to perform construction work at Richard's rental property, located at 3234 Northwest 31st Terrace, Oakland Park, Florida 33309. In the proposal, Respondent offered to perform regulated services for compensation in the amount of $1,500.00. Specifically, Respondent offered to replace a kitchen faucet, remove a dishwasher, install a new water line and replace exhaust fans. Respondent's proposal listed the company as "State License Insured," but contained the license number CGC 1518408, which is a certified general contractor license number that belongs to Bernard Forges. Bernard Forges did not give Respondent permission to use his license number. Respondent is not licensed and has never been certified or registered as a construction contractor in the State of Florida. Additionally, at all times material to the allegations in this matter, The Shining Light Construction, Inc., has not been an entity properly qualified or licensed in the practice of construction in the State of Florida. Roa-Zaiter also discovered during the investigation that on or about July 22, 2016, Respondent accepted $750.00 as partial payment to perform the services listed in the proposal and cashed the check for the services without performing any of the work. After DBPR completed the investigation, it was determined that Respondent offered to perform a regulated service for compensation without a license contrary to Florida law. On November 1, 2016, DBPR issued Respondent a Notice to Cease and Desist, which notified Respondent that he "may be practicing as a CONTRACTOR (in any trade) without the professional license or certification required by Florida law." On April 25, 2017, DBPR issued an Administrative Complaint charging Respondent with violation of section 489.13(1) for offering to perform regulated construction contracting services for compensation without holding an active and valid certification or registration. Respondent contested the Administrative Complaint and requested a hearing. Roa-Zaiter spent 18 hours and four minutes investigating Respondent's case. DBPR incurred $624.78 for the investigation relating to Respondent's actions in this case, excluding costs relating to any attorney's time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order: finding Respondent, Ryan D. Kirkland, a/k/a Ryan Dee Lon Kirkland, guilty of violating section 489.13(1), Florida Statutes; imposing an administrative fine of $3,000.00; and assessing costs in the amount of $624.78. DONE AND ENTERED this 19th day of January, 2018, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 19th day of January, 2018.
The Issue Whether Respondent performed an act which assisted an entity in engaging in the prohibited uncertified and unregistered practice of contracting or whether he abandoned a construction project in which he was engaged or under contract as a contractor, in violation of section 489.129(1), Florida Statutes, as set forth in the Administrative Complaint, and, if so, what is the appropriate sanction.
Findings Of Fact The Board is the state agency charged with regulating the practice of construction contracting pursuant to section 20.165 and chapters 455 and 489, Florida Statutes. At all times material to this proceeding, Mr. Requejo was licensed as a certified general contractor in the state of Florida, having been issued license number CGC 1504266. Mr. Requejo’s address of record is 15941 Southwest 53rd Court, Southwest Ranches, Florida 33331. At all times material to this proceeding, Mr. Requejo was the primary qualifying agent of Recol, Inc. Mr. Andre Chestnut was formerly a registered contractor in the state of Florida. He testified credibly that he used to have nine licenses. At all times relevant to this case, he held no state licensure as a contractor. Consistent with Department records, he testified that his license had been revoked sometime around August 2003. USA Screens was incorporated in December 2011 to perform “any and all lawful business,” with Mr. Chestnut as the incorporator, registered agent, and president. Records of the Department contain no evidence that USA Screens, Inc., has ever been qualified by a licensed contractor or had an active license as a construction business. Ms. Carmen Goehrig owned real property at 6300 Pinehurst Circle East in Tamarac, Florida. She wished to install a screen enclosure on the property. On January 21, 2012, she entered into a construction contract with USA Screens, Inc., signed by Mr. Chestnut. This constituted the practice of contracting by Mr. Chestnut and USA Screens, Inc. Mr. Chestnut testified that he had been working in conjunction with Mr. Requejo on various projects for the past nine years. He credibly testified that he received the template for the contract he entered into with Ms. Goehrig from Mr. Requejo. That contract template contains the full name and address for both Recol, Inc., and USA Screens, Inc., at the top of the contract in large type, but shows only one contractor’s license number, that of Mr. Requejo, under the address for Recol, Inc. No contractor’s license number is shown under the USA Screens, Inc., address. Having worked with Mr. Chestnut for nine years, and having prepared the template contract that they used for common projects, Mr. Requejo had reasonable grounds to know that USA Screens, Inc., was uncertified and unregistered, as suggested by the contract itself. The contract mentioned that it was contingent upon both homeowner association and government approvals, and included a handwritten provision that there would be “no material purchases until association approval.” Ms. Goehrig signed two checks to USA Screens, Inc.: the first in the amount of $500.00 for the application; the other in the amount of $3,000.00 for materials. Both checks were cashed on January 24, 2012. On February 14, 2012, Mr. Requejo, d/b/a Recol, Inc., timely filed building permit application 12-636 for construction of the screen enclosure at 6300 Pinehurst Circle East with the city of Tamarac, using his general contractor’s license number. Recol, Inc., is listed as the general contractor in the city’s records. In filing for a permit from the city of Tamarac for the construction, Mr. Requejo assisted USA Screens, Inc., and Mr. Chestnut in engaging in the prohibited uncertified and unregistered practice of contracting. Mr. Claudio Grande is the chief building official for the city of Tamarac. He oversees permitting and is the custodian of records. He testified that permit 12-636 was denied due to zoning restrictions and structural issues. Mr. Chestnut testified that he made numerous calls trying to get the permit approved. He testified that the problem was that the screen enclosure encroached on a utility easement. As Mr. Goehrig testified: They applied for the permit. He showed us the drawings, Andre, and to my knowledge, submitted the permit application. And then we noticed that the second check was cashed, so we started calling him about that. And all he would say is, “Don’t worry, don’t worry, don’t worry.” And then the permit was denied and then we went back and tried to do something to get it approved and it was denied. And then zoning finally denied it again. So three times, we tried to fix it to make it work. And we finally, you know, the zoning department finally came down and said, “No, end of story, no good.” So we went to him and said, “Okay, we can’t get the permit, please just give us our money back and we’ll go on our way.” And of course, his answer was, “No, you’re not getting any money back, I spent your money, goodbye.” After the permit was finally denied and Mr. Chestnut refused to return their money, the Goehrigs contacted Mr. Requejo to get their money back, again to no avail. It was not shown that the project was terminated without just cause or that it was terminated without proper notification to Ms. Goehrig. It is clear from the filed complaint, as well as the testimony that Ms. Goehrig was aware that the project could not be permitted, and sought a return of the money that had been paid. “The permit was denied and [Chestnut] refuses to refund our deposit.” The Department failed to prove that Mr. Requejo abandoned a construction project in which he was engaged or under contract as a contractor. Prior Discipline On February 13, 2013, a Final Order Adopting Settlement and Vacating Prior Orders was filed by the Board. The Order incorporated a settlement agreement imposing discipline for allegations in several earlier Administrative Complaints. The October 2012 settlement agreement required the payment of fines, investigatory costs, and restitution to six individuals, as well as continuing education and a six-year period of probation. The Order constitutes prior discipline within the meaning of the disciplinary guidelines.
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 finding Mr. Antonio L. Requejo in violation of section 489.129(1)(d), Florida Statutes; suspending his contractor’s license for a period of six months, followed by a period of probation deemed advisable by the Board; imposing a fine of $7,000.00; and directing that he make restitution in the amount of $3,500.00 to Carmen Goehrig. DONE AND ENTERED this 17th day of March, 2016, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 17th day of March, 2016. COPIES FURNISHED: Sorin Ardelean, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 (eServed) Antonio L. Requejo 11826 B. Miramar Parkway Miramar, Florida 33025 Daniel Biggins, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 (eServed) William N. Spicola, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 (eServed)
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Business and Professional Regulation is the state agency responsible for investigating and prosecuting complaints involving violations of the requirements of Chapter 489, Part I, Florida Statutes. Sections 489.131(7)(e) and 455.225, Florida Statutes. Pursuant to Section 489.129(1), the Construction Industry Licensing Board ("Board") is the entity responsible for imposing discipline for any of the violations set out in that section. At all times material to this case, Mr. Vega was a certified general contractor operating under a license issued by the Construction Industry Licensing Board, numbered CG C046448. Mr. Vega has been a licensed general contractor in Florida since 1989, and since 1994, he has been the licensed qualifying agent for Group Construction South Florida, Inc. The residence of David M. Hudson, located at 19801 Southwest 84th Avenue, Miami, Dade County, Florida, was severely damaged in August, 1992, by Hurricane Andrew. In a letter dated October 13, 1992, Mr. Hudson, who holds a doctorate in biology and is the laboratory manager for the University of Miami Chemistry Department, proposed to Mr. Vega that he prepare plans for reconstructing the Hudson residence. On December 23, 1992, Mr. Hudson and Mr. Vega executed a contract for construction work to be performed on the Hudson residence. The parties contemplated that Mr. Vega would complete the work in accordance with the drawings and original blueprints prepared by Jose A. Sanchez, a structural engineer, at Mr. Vega's direction and based on preliminary plans approved by Mr. Hudson. Specifically, Mr. Hudson understood that the major elements of construction included in the December 23 contract were elevation of the house from one story to two stories, construction of a new living area on the second floor, and construction of a basement on the first floor to serve as a "bare bones storage area." The contract price specified in the December 23 contract was $146,338.33, with ten percent due upon acceptance of the proposal, ten percent due at completion of each of eight items of construction specified in the contract, and ten percent due upon completion of the project. The eight items of construction specified in the contract were "demolition work, rising work, tie beams, roof, doors & windows, plaster & tile, pool & fence, finish work and paint." On February 1, 1993, Metropolitan Dade County Building and Zoning Information Department issued Permit Number 93119957 to Mr. Vega for the Hudson project. The building permit was based on the original plans for the project submitted by Mr. Vega on January 19, 1993, together with some items that were added to the plans at the county's request. Mr. Vega began work on the project on February 1, 1993, the day the permit was issued. Mr. Vega hired Ruben Armas to act as foreman for the project, and his duties included hiring and supervising day laborers and procuring materials needed for construction. At the time, Mr. Armas was not licensed, registered, or certified by either Dade County or the State of Florida. Mr. Vega had an arrangement with Mr. Armas whereby he paid Mr. Armas periodic advances on a lump sum payment that Mr. Armas was to receive when the Hudson project was complete. Mr. Vega did not deduct FICA or withholding tax from the payments made to Mr. Armas under this arrangement. Mr. Vega dealt directly with Mr. and/or Mrs. Hudson regarding the project, although they would occasionally leave messages for him with Mr. Armas. Mr. Vega directly supervised Mr. Armas and gave him instructions on the work that was to be performed and the way it was to be done. Mr. Vega was routinely at the job site at least two or three times a day to inspect the work that had been done. Mr. Vega was present at the site during the entire time that cement was poured for footings or other structural elements. Mr. Vega arranged for various subcontractors to work on the project, including electricians, plumbers, air conditioning workers, roofers, carpenters, and drywall hangers. On April 14, 1993, a Department investigator conducted an inspection of the Hudson project during a "hurricane task force sweep." When she and the other members of the task force arrived on the job site, she observed Mr. Armas and two other men "inside working," but she did not observe them working or see the type of work they were doing. Mr. Armas walked out to meet the inspector and gave her a card that contained his name and phone numbers and the words "General construction & roof repair." Mr. Armas told the Department investigator that, when she arrived, he was "working on the footing for the elevation of the house." On April 21, 1993, Mr. Vega signed a Cease and Desist Agreement in which he acknowledged that the Department was investigating allegations that he had "engaged in the practice of aiding and abetting unlicensed contractor Ruben Armas." By signing the agreement, Mr. Vega agreed to cease "engaging in this activity," but he did not admit that the Department's allegations were true. The Department investigator was at the Hudson job site on April 14, 1993, for thirty minutes to an hour, during which time Mr. Vega did not appear at the site. This was the only time she was at the job site while work was being done. As the work progressed on the project, everything appeared to be going well, and Mr. Vega felt that he enjoyed a very good working relationship with Mr. and Mrs. Hudson. Mr. Hudson paid Mr. Vega a total of $116,400.00, or eighty percent, of the original contract price of $146,338.33, in ten percent increments as provided in the contract. By check dated December 23, 1992, Mr. Hudson paid the down payment of $14,633.38. By check dated February 5, 1993, Mr. Hudson paid $14,600.00 upon completion of the demolition work. By check dated March 5, 1993, Mr. Hudson paid $14,633.00 upon completion of raising the structure to two stories. By check dated March 24, 1993, Mr. Hudson paid $14,633.00 upon completion of the tie beams. By check dated April 19, 1997, Mr. Hudson paid $14,633.00 upon completion of the roof. By check dated May 13, 1993, Mr. Hudson paid $14,633.00 which should have been paid upon completion of the doors and windows but which he paid even though the installation of the doors and windows was not complete. By check dated June 23,1993, Mr. Hudson paid $12,000.00 of the $14,633.00 draw because, in his opinion, the project was not being completed on schedule. Finally, by check dated July 2, 1993, Mr. Hudson paid $17,000.00 to bring the payments up to the amount consistent with the contract schedule for completion of the pool and fence. In a letter to Mr. Vega dated June 7, 1993, Mr. Hudson stated that he wanted to make "a major change" in the plans. Specifically, Mr. Hudson wanted to eliminate the swimming pool, which he estimated would save $20,000.00 of the $146,633.00 contract price, and use the money saved "to completely finish the downstairs to be a nice guest area," to "install the better quality carpet we want, complete wooden fence, air conditioning in 1st floor, plumbing ~ electric in 1st floor, [and] indoor wooden shutters for all windows." Mr. Hudson went on to state that he wanted certain enumerated appliances, which would cost $4,108.00, and new furniture, which he estimated would cost $6,000.00, for a total of $10,108.00. According to Mr. Hudson's proposal, Mr. Vega should be able to "finish off the 1st floor the way we want it, install the nice carpet and tile, and do all the other jobs previously listed (fence, plumbing, etc., for 1st floor) for about $10,000.00." The basement area which Mr. Hudson wanted to finish as a "nice" living area consisted of approximately 2,000 square feet and had originally been designed as a storage area, with concrete floor and walls. Mr. Vega and Mr. Hudson discussed the proposal and the costs of the changes, but they did not reach an agreement on the cost of the additional work. 3/ Mr. Hudson asked Mr. Vega to leave the job site and cease work on the project on or about July 3, 1993, and Mr. Vega did not perform any work on the Hudson residence after this time. Mr. Hudson terminated Mr. Vega from the project solely because of the dispute with Mr. Vega over the cost of the changes he had requested in his June 7 letter. Mr. Hudson did not complain to Mr. Vega about the quality of the work that had been completed, and, although he thought that the project was getting behind schedule, Mr. Hudson issued a check dated July 2, 1993, which brought the total payments to eighty percent of the original contract price. When Mr. Vega stopped work on the project, the structure contained deviations from the original plans. 4/ Some of the deviations were items shown in the original blueprints which had not been incorporated into the structure; some were items that were not shown in the original blueprints but were incorporated into the structure at the request of, or with the approval of, Mr. and/or Mrs. Hudson; some were deviations in the size of openings to accommodate doors and in the location and size of windows; most were minor deviations in the placement of electrical switches and receptacles or other similar deviations. The construction was, however, generally consistent with the original plans. 5/ There were three items that were significant deviations from the original plans. The most serious deviation concerned the changes made in the dimensions of the structural slab that formed the floor of the second floor balcony off the family room, kitchen, and dining room and the roof of the first floor terrace. The original plans included a second floor balcony with a width of six feet. The Hudsons asked Mr. Vega to increase the width of the balcony, and Mr. Vega called Mr. Sanchez, the structural engineer who had prepared the original plans, and asked if the width of the slab could be increased. Mr. Sanchez approved an extension from the original six feet to eight feet, eight inches, and he advised Mr. Vega of the additional reinforcement that would be needed to accommodate the increased width. On the basis of Mr. Sanchez's approval, Mr. Vega incorporated the additional reinforcement specified by Mr. Sanchez and poured the slab to the requested width of eight feet, eight inches. Even though Mr. Vega consulted a structural engineer, he did not submit revised blueprints to the building department and obtain approval for the structural change before doing the alteration. He was aware that the building code required approval before such a change could be incorporated into a structure and that his actions violated the code. 6/ The second significant deviation from the original plans was Mr. Vega's failure to construct the fireplace shown in the original plans. According to the plans, a fireplace was to be constructed in the living room, on the second floor. Although the roof was completed and the drywall installed, no accommodation had been made for the fireplace in either the wall or the roof. Mr. Vega intended to construct the fireplace and would have done so had he not been told to cease work on the project. The third significant deviation from the original plans concerns the windows installed in the structure. No window permits or product approvals were contained in the permit file for the Hudson project. In addition, some of the windows were not the size specified in the original plans, some were too deep, and some were placed lower than the thirty inch sill height specified in the original plans. Many of the items identified as "deviations" were actually items not shown on the original plans but incorporated into the structure at the request of, or with the approval of, Mr. and/or Mrs. Hudson. Neither the requests for the additional items nor the costs of the items were reduced to writing by Mr. Hudson or Mr. Vega. At the time Mr. Hudson directed him to cease work on the project, Mr. Vega had contracts with subcontractors to provide the labor and materials specified in the original contract. He was prepared to complete the project in accordance with the original plans and for the original contract amount, with adjustments for the extras that had already been incorporated into the project at the request of, or with the approval of, Mr. and/or Mrs. Hudson. He was also prepared to correct all deficiencies and code violations in the structure. After he was terminated from the project, Mr. Vega continued to negotiate with Mr. Hudson's attorney to arrive at an agreement for completion of the project that would be satisfactory to Mr. Hudson. In a proposal submitted to Mr. Hudson's attorney in the fall of 1993, Mr. Vega offered to complete the project in seven weeks in accordance with the original plans, as modified to incorporate the changes and upgrades Mr. Hudson had requested in the June 7 letter and the changes and upgrades that had already been incorporated into the project at the request of, or with the approval of, Mr. and/or Mrs. Hudson. The total price for completion proposed by Mr. Vega was $56,750.00, which included the cost of the upgrades and extras and the $29,572.00 balance owing under the original contract. Mr. Hudson did not accept this proposal. Instead, he eventually hired a contractor named Robert Krieff, who did some work on the project. In February, 1994, Mr. Hudson took over the building permit himself and hired various subcontractors to work on the project. According to Mr. Hudson, in addition to the $116,400.00 he paid Mr. Vega, he has paid approximately $50,000.00 for work done after he terminated Mr. Vega, and he anticipates spending another $35,000.00 before a Certificate of Occupancy is issued. Mr. Hudson paid off a lien on his property for work done pursuant to his contract with Mr. Vega. A Claim of Lien in the amount of $4,712.00 was filed by Luis A. Roman on October 5, 1993, for drywall hung and finished at the Hudson residence under an arrangement with Mr. Vega. Summary of the evidence. The evidence presented by the Department is sufficient to establish that Mr. Vega willfully violated the building code with respect to the alteration of the width of the second floor balcony. Mr. Vega admitted that he knew he was violating the building code when he extended the width of the second floor balcony beyond the width specified in the original blueprints before submitting revised engineering plans to the county and receiving approval to make the alteration. This violation is one of procedure only, however, and there was no competent evidence presented to establish that Mr. Vega failed to include adequate reinforcement to compensate for the additional width prior to pouring the slab or that there were structural problems with the slab. 7/ The evidence presented by the Department is sufficient to establish that Mr. Vega violated the building code because the work completed by Mr. Vega on the Hudson project contained deviations from the original approved plans. 8/ On the other hand, the evidence presented by the Department is sufficient to establish that this violation is a minor one. The Department's experts testified that the construction done on the Hudson residence by Mr. Vega was generally consistent with the approved plans and that it was commonplace for contractors in Dade County to deviate from the approved plans and later submit revised plans for approval. The evidence presented by the Department is sufficient to establish that Mr. Vega did not file product approvals or obtain window permits prior to windows being installed in the Hudson project. The evidence presented by the Department is not sufficient, however, to establish that these omissions on Mr. Vega's part constituted a violation of section 204.2 of the South Florida Building Code, as alleged in the Administrative Complaint. Although there was some testimony that the building code requires that product approvals be filed and window permits obtained before windows are installed, the applicable code and section were not identified by the Department's witnesses or otherwise made a part of the record. Thus, there is no evidence of the precise obligations imposed on Mr. Vega by the code that was applicable at the time of the Hudson project. As a result, it is not possible to determine whether Mr. Vega fulfilled his obligations under the code. The evidence presented by the Department is not sufficient to establish that Mr. Vega assisted Mr. Armas in engaging in the unregistered or uncertified practice of contracting. There is no evidence in the record that Mr. Armas performed any work on the Hudson project that could be performed only by a licensed contractor. 9/ Notwithstanding the opinions stated by the Department's experts, the evidence presented by the Department is not sufficient to establish that Mr. Vega is guilty of incompetence or misconduct in the practice of contracting as a result of the work done on the Hudson project. The evidence presented by the Department is sufficient to establish that Mr. Hudson suffered financial loss in the amount of $4,712.00, which is the amount Mr. Hudson paid to clear the lien placed on his property by Luis A. Roman. Although this loss is attributable to Mr. Vega's failure to pay Mr. Roman for hanging and finishing drywall in the Hudson residence, the evidence presented by the Department is not sufficient to establish that Mr. Hudson suffered financial loss as a result of the violation with which Mr. Vega was charged and of which he was proven guilty.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board issue a Final Order dismissing Counts I and III of its Administrative Complaint, finding that Gonzalo Vega is guilty of violating section 489.129(1)(d), Florida Statutes (1993), and imposing an administrative fine in the amount of $1,000.00. DONE AND ENTERED this 3rd day of July, 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 1997.
The Issue Did respondent fail to properly supervise, direct and manage the contracting activities of the business of which he is the qualifier, and if so, what disciplinary action should be taken against respondent's contracting license?
Findings Of Fact At all times material to this proceeding the respondent was a certified building contractor licensed by the State of Florida and the qualifying agent for Custom Concrete of Naples, Inc. (Custom Concrete). Rodney Velez was the president of Custom Concrete and licensed only in concrete--concrete forming, placing and finishing. Susan Velez, Rodney Velez's wife, was an officer of Custom Concrete. On April 23, 1983, Custom Concrete, by and through Rodney Velez, entered into a contract with Mark and Penny Paterson to construct a home for $38,550.00. Mrs. Paterson had previously met Rodney Velez in the course of her work, and Velez had told her that he was a builder. Mrs. Paterson had suggested that Velez look at a floor plan that she and her husband had, and after certain negotiations, including a change of floor plan, the contract was entered into. During the course of the negotiations Mrs. Paterson never talked to the respondent and was unaware that the respondent was involved or would be involved in the construction of the home. Mrs. Paterson believed that Rodney Velez was the "builder"; however, the construction of the Paterson home was beyond the scope of Velez's concrete license. The respondent signed the application to secure the building permit for the Paterson residence, although he did not personally appear to procure the building permit. The clerk of the contractor's licensing section of the building code compliance department relied on the signature on the application because it was notarized. The notary was Susan Velez. Respondent did not supervise or direct the construction of the Paterson home. Neal Jackson, president of the company who did the electric work on the home, was unaware that respondent was involved in the project until well after the house was finished. Although it is usual for a supervisor or superintendent to be at the job site some of the time, Jackson never saw the respondent or Velez at the job site. Jeff Allain, the carpenter who did the framing and certain other work, was on the job site five or six days and saw the respondent once during the framing of the structure "just generally looking around." The respondent didn't say anything to Allain. David Isom did drywall work on the house. He had no contact with the respondent and did not see him at the construction site. Mrs. Paterson went by the construction site quite often and realized that the job was not being properly supervised. Velez was rarely there, and Mrs. Paterson never saw the respondent. The workmen on the site would ask the Patersons when Velez would be there because they had questions concerning the work. Neither of the building inspectors saw anyone supervising at the job site, although usually no one is at the job site when an inspection is made. Two days after the Patersons moved into their house, they compiled a "punch list" of the items that needed to be completed or corrected. The list was given to Velez, but the work was not corrected to the Paterson's satisfaction. Although Velez did not give the "punch list" to respondent, Velez discussed the problems with the respondent. Respondent did not take any steps to remedy the problems and said he thought "a lot of it was nonsense." Velez told respondent that he, Velez, would take care of it. Because of the unresolved problems with the house, Mrs. Paterson finally called the licensing board to file a complaint against Rodney Velez. At that time, she was informed that Rodney Velez was not the contractor; the contractor was the respondent. This was the first time that Mrs. Paterson was aware that the respondent was involved with the construction of the house. All of the Patersons dealings had been with Velez, and all checks for construction payments were made out to Velez personally. 2/ Even though the Patersons had not received satisfaction from Custom Concrete for the problems with the house, they signed the closing papers because Velez threatened to evict them. At closing the Patersons received a lien release from Custom Concrete which released all work prior to March 9, 1984. Subsequently, Velez filed a claim of lien against the Paterson property for work completed on February 9, 1984.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is recommended that respondent be found guilty of violating Section 489.129(j), Florida Statutes, that he be fined $1,000.00, and that his license be suspended for 60 days from the date the Construction Industry Licensing Board enters its final order in this case. DONE and ORDERED this 30th day of January, 1985, in Tallahassee, Florida. DIANE A. GRUBBS 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 30th day of January, 1985.
