Findings Of Fact Respondent is David Michael Richey, holder at all times pertinent to these proceedings of registered residential contractor licenses RR-A039309 and RR 0039309 issued by Petitioner. His address of record is Tampa, Florida. Hometown Builders And Associates, Inc. (Hometown Builders) was formed in May of 1985. Respondent was the owner of 25 percent of the company's stock, president of the company and the qualifying agent for the company from inception until its bankruptcy on June 6, 1986. On or about October 31, 1985, Mary L. Robke entered into a contract with Hometown Builders for extensive remodeling repairs to a house owned by her and inhabited by her daughter. Under terms of the agreement, Hometown Builders agreed to accomplish the remodeling tasks in return for a total payment of $35,000. The agreement required a down payment of $13,000. While dates were not specified in the written agreement, the remainder of the $35,000 was paid by Robke in three payments, the last payment occurring around March 14, 1986. It is undisputed by the parties that construction work on the Robke project was never completed. Also, the proof establishes that the electrical and air conditioning subcontractor hired by Respondent's company was eventually paid by Robke, after the subcontractor filed a lien for nonpayment. Robke paid the subcontractor over $4,000 when Respondent's company failed to pay him. Robke paid off other subcontractors who filed liens. Her total payments to subcontractors filing liens was approximately $7,000. On or about December 12, 1985, Hometown Builders entered into a contract with a home owner named Mary Jane Parceneau to remodel her house for the total sum of $15,980. The work was to commence within two weeks and be finished within 30 days. Parceneau pulled the permits for the construction herself since the company had not obtained a local government license in her locale. Parceneau borrowed $16,000 to pay for the remodeling repairs. She paid $8,000 of this amount to Respondent's company. The company's workmen commenced the remodeling operation by entirely removing the inside plaster and all outside paint from the house. Respondent's workmen also removed at least two windows from the house. Then, the work ceased. The repairs were never completed and Parceneau, unable to meet payments on the remodeling loan, lost her home in the resultant mortgage foreclosure. Parceneau's attempts to regain some of the $8,000 paid to Respondent's company were rebuffed by Respondent who claimed that the work done by his company on this project equalled the amount previously paid. No proof was submitted by Respondent to support this assertion by him. Therefore, his testimony on this point is not credited. Respondent nor his company informed Parceneau why work on the project stopped. Her plaintive statement at hearing regarding the proposed remodeling of her home was "I would have been better off if I hadn't done anything". On or about February 10, 1986, Hometown Builders contracted with Rachel Lareau to do extensive repairs to her home at a total price of $29,500. The agreement provisions stated that work would commence within 30 days and be completed within approximately 90 days after commencement. Lareau insisted that the contract with Hometown Builders provide a payment schedule. That schedule reflects that Hometown Builders would receive an initial payment of $200, followed by 30 percent of the total $29,500 when block walls to the home's addition were erected. An additional 30 percent of the contract price would be paid when the roof was completed. Another 30 percent would be paid when the drywall to the new addition was installed. The balance of the contract price would then be paid upon completion of the project. At the behest of the salesman from Hometown Builders, Lareau borrowed $32,800 from a mortgage company recommended by him. Of that amount, $19,765 was left in escrow with the mortgage company. The escrow agreement, dated March 21, 1986 stated that $9,753 would be held until "block walls of addition are up." The remainder amount of approximately $10,000 would be disbursed only upon completion of all home improvements set forth in the contract between Hometown Builders and Lareau. Two to three weeks after the execution of the escrow agreement by Lareau, workmen from Hometown Builders came to Lareau's residence as a result of her repeated telephone calls to the company complaining about the lack of progress on the project. The workmen put four holes in the ground, approximately 12 inches by 12 inches, to hold support beams for the construction of the addition to the residence which was supposed to follow. No beams were placed in the holes. The process of digging the holes took approximately one day. The workmen did not return. Another two or three weeks passed. Lareau again became concerned. After repeated telephone calls, Lareau spoke with Respondent. Respondent explained that his company had been having problems, but that someone would be sent to do the work. He also disclosed that his company's employees had already received and spent approximately $10,000 of the escrowed funds. Respondent asked Lareau to provide another $10,000 for expenditure on the project. She refused. The telephone conversation concluded after Respondent told Lareau that other workmen would be sent to the site. Receipt of the funds by Respondent's company was in direct contravention of provisions of the contract between Lareau and Hometown Builders as well as the Essex Mortgage Corporation escrow agreement with Lareau. Other workmen sent to Lareau's home by Respondent were willing to do further work on the project only if they were provided additional funding. Respondent finally offered another workman who agreed to resume the project without additional finding being provided. However, Lareau was unable to confirm or elicit assurances from this individual that the amount of work would be consistent with what Lareau had been promised under terms of her agreement with Hometown Builders for the first payment of $9,753. In the absence of such assurance or confirmation, Lareau refused to permit this workman to commence work for fear she would unwittingly modify the original agreement and the workman left. In a later conversation with Lareau, Respondent confirmed that the amount of work he had contemplated the workman would perform was not quite as much as originally agreed upon with Lareau. No further work was undertaken on the Lareau project by Respondent. At hearing, he was unable to recall the exact amount of funds received from Lareau, but readily admitted to receiving a draw of approximately $7,000 to $8,000 for the project; an admission which lends further credence to Lareau's testimony that approximately $10,000 was paid to him by the escrow agent in violation of her agreements with the agent and Respondent's company. Funds received from the Robke, Parceneau and Lareau projects were used for general day to day operations of Hometown Builders.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking Respondent's license and, in view of the repeated offenses in this case, imposing an administrative fine of $5000 in accordance with disciplinary guidelines set forth in section 21E-17.001 (19)(b), Florida Administrative Code. DONE AND ENTERED this 23rd day of March, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 1989. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by Petitioner. PETITIONER'S PROPOSED FINDINGS 1. Rejected as obviously erroneous. 2.-10. Addressed. COPIES FURNISHED: David Bryant, Esquire 220 E. Madison Street, Suite 530 Tampa, Florida 33617 David M. Richey 5124 Holland Street Tampa, Florida 33617 Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the argument of counsel, and the entire record compiled herein, the following relevant facts are found. 1/ By its one count Administrative Complaint filed herein on approximately October 13, 1981, the Petitioner, Department of Professional Regulation, Board of Real Estate, seeks to take disciplinary action against Respondent, Harold O. Polson, a licensed real estate salesman and broker. During times material, Respondent was a licensed real estate salesman and holds License No. 0179858. Respondent is also a licensed real estate broker and has been since April 17, 1981. During October of 1979, Respondent secured a listing from Wayne and Linda Overby to sell certain real property which they owned, located at 241 Coral Drive, Fort Walton Beach, Florida. (Tr. pp. 43 & 44.) Mrs. Addie Simmons, a licensed real estate salesman who was then affiliated with the same office as Respondent, obtained a contract to purchase the Overby residence from Mary Theresa Dickson on September 30, 1979. (Petitioner's Exhibit 1.) The transaction closed on November 19, 1979, however, Mrs. Dickson took possession of the residence pursuant to an occupancy agreement which the parties executed on October 12, 1979. (Respondent's Exhibit 1.) The offer to purchase and contract for sale which was executed by Mrs. Dickson on September 30, 1979, fixed the closing date for this subject transaction on or before December 1, 1979. According to the terms of the contract to purchase, Mrs. Dickson was obligated to satisfy herself that all heating, air-conditioning, electrical, plumbing, appliances and lawn pumps were in normal working order at the time of closing or prior thereto. (Petitioner's Exhibit 1, paragraph 13.) According to an inspection and acceptance of property executed by Mrs. Dickson on November 19, 1979 (Petitioner's Exhibit 2), Mrs. Dickson indicated that all of the above appliances, equipment and systems were in normal operating condition on the date of closing with the exception that a discrepancy existed in the following items: Kitchen faucet leaking; Living room window could not be opened or closed; Main bath vanity faucet dripped; Bedroom window would not crank, Tub ring missing; The bath adjoining the master bedroom leaked water; and Two range burners were inoperable. Salesman Simmons who represented purchaser Dickson and Respondent orally agreed to correct the deficiencies noted in Petitioner's Exhibit 2 to "have a happy buyer and happy seller." (Tr. p. 74.) This representation was made by Ms. Simmons although Respondent was not legally obligated to make such repairs pursuant to the terms of the deposit receipt and offer to purchase (contract for sale) which was executed by Mrs. Dickson on September 30, 1979. Subsequent to the closing on November 19, 1979, Respondent commenced making the repairs which were listed in the inspection and acceptance of property executed by Mrs. Dickson. A majority of the deficiencies were corrected within several months of the closing. As example of Respondent's efforts, documentary evidence received indicates that Respondent purchased materials to correct the deficiencies to the plumbing which were noted by the purchaser during November and December of 1979. (Respondent's Exhibits 1-A and 2.) The repairs to the windows were not finally completed until September of 1980, due to the age of the windows and the resulting difficulty experienced by Respondent in obtaining suitable replacement parts. (See Respondent's Exhibits 3, 4 and 5.) Respondent completed the repairs to Mrs. Dickson's range in January of 1980. (Respondent's Exhibit 7.) Respondent had made an earlier attempt to correct the range and ultimately had to order additional parts to complete the needed repairs. (Respondent's Exhibit 7.) Contrary to the allegations contained in the Administrative Complaint, evidence revealed that Respondent had no dealing with Mrs. Dickson until the date of closing nor did Mrs. Dickson enter into the sales contract upon the reliance and trust placed in statements alleged to have been made by Respondent to Mrs. Dickson. (Testimony of Dickson and Respondent.)
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: That the Administrative Complaint filed herein be DISMISSED. RECOMMENDED this 7th day of April, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, 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 7th day of April, 1982.
The Issue The issue posed for decision herein is whether or not Respondent failed to fulfill contractual obligations; willfully or deliberately disregarded and violated applicable local building codes and made misleading representations by issuing a warranty which he later refused to honor in violation of Section 489.129(1)(c), (d) and Section 455.277(1)a, Florida Statutes.
Findings Of Fact Based upon 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 relevant findings of fact: By its Administrative Complaint filed herein, Petitioner seeks to take disciplinary action against Respondent, as licensee and against his license to practice contracting in the state of Florida. Respondent is a certified general contractor having been issued license number CBC006481. On June 6, 1981, Respondent, as qualifier for Behr Contracting, Inc., entered into a contract with Mrs. Susan Fuller to reroof her home at 811 Santiago Street, Coral Gables, Florida. (Petitioner's Exhibit 1) Respondent guaranteed to Mrs. Fuller that all materials furnished by Behr Contracting would be of standard quality, type and condition, free from defects, and that said labor and materials would be guaranteed against structural and material defects. Respondent pulled the required building permit and commenced the reroofing off Mrs. Fuller's residence on June 11, 1981. (Petitioner's Exhibit 2) During the course of construction, several defects became apparent. As example, the tile was installed approximately two months after the contract was entered (August, 1981) and during the next month, September, 1981, leaks started which damaged the ceiling, pecky cypress, plaster in the dining and bedrooms, the kitchen walls, and other interior furnishings of the Fuller residence. When Mrs. Fuller observed the leaks in the roof, she immediately notified the Respondent that there was a problem with the roof and requested that he return to the site to inspect the roof and to correct same. Despite repeated demands, Behr refused to repair the interior damage to Mrs. Fuller's residence. During approximately June, 1982, Behr installed a solar system on the Fuller's residence. Respondent guaranteed the roof on the Fuller residence for a period of fifteen years including the texture coating to the roof and the slide of the residence. Respondent also agreed to abide by all ordinances, rules and regulation of the Building Department of the City of Coral Gables, Florida. Mrs. Fuller filed a formal complaint against Respondent on approximately May 24, 1982. Following the installation of the roof on the Fuller residence, several leaks lasted for extended periods of time and the Fullers including her roommate, Heather Stever, had to repeatedly place buckets in and around the Fuller residence to attempt to contain water which was entering the roof through various cracks in the roof. Evidence of the leakage was evident in at least three rooms of the Fuller residence. (Testimony of Robert Harvilla and Heather Stever) The Respondent contends that there was no defective workmanship or materials used or performed by him in the reroofing of the Fuller residence and that the cause of the leakage in the Fuller residence was precipitated by nuts, bolts and other foreign materials which were strewn over the roof when the solar system was installed. Respondent contends that the foundation of the roof was penetrated by the solar system which destroyed the integrity of the roof. In this regard, it is found herein that the leakage to the Fuller residence occurred immediately after the Respondent installed the new roof to that residence and that the leakage persisted until it was corrected months later after Mrs. Fuller had her home reroofed in December of 1982. Evidence adduced herein failed to establish that the leakage to the Fuller residence which ultimately caused damage to the interior of their residence, was a result of foreign matter attributable to any cause other than the installation of the new roof by Respondent. Finally, Respondent refused to complete other items he specifically contracted to perform for Mrs. Fuller including painting of the interior trim and to completely texture coat the exterior of the Fuller residence.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED that the Respondent's certified general contractor's license number CBC006481 be suspended for a period of one (1) year. 2/ DONE and ORDERED this 2nd day of November, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1983.
Findings Of Fact At all times relevant hereto, respondent, Richard Kondian, was a licensed real estate salesman having been issued license number 0302230 by petitioner, Department of Professional Regulation, Division of Real Estate. The license is currently in an inactive status. His present address is 300 South Pine Island Road, Plantation, Florida. In July, 1984, James E. and Janis Shand, who lived at 4940 S. W. 16th Street, Fort Lauderdale, Florida, suffered extensive fire damage to their residence. Respondent approached the Shands, introduced himself as Dick Como, and offered to repair their home to its original condition. He also represented himself to be a contractor and that he was a principal in Apex Roofing, a local contracting firm. The Shands agreed to permit Kondian (Como) to perform the work, and they executed a contract prepared by Kondian on an "Apepco Corp." letterhead which authorized the work. A copy of the contract has been received in evidence as petitioner's exhibit 2. The document is a photostatic copy of the original, and is only partially legible. It does reflect July 24, 1984 as being the date of execution, and describes the repairs to be made as follows: To be effected to return Property to Pre- Fire Condition as per policy. (No extra charge to Home.) It also authorizes Allstate Insurance Company to pay for the repairs in accordance with the terms of the Shands' insurance policy. The contract was accepted by "D. Como." Como and Kondian were identified by the Shands as being one and the same. The owner of Apex Roofing and Insurance Repair Corporation was Michael Derhagopian, a licensed roofing contractor in Dania, Florida. Respondent told Derhagopian that he had procured a repair job on the Shands' residence and that he desired Apex to do the roofing portion of the work, and that a general contractor would perform the remainder of the project. He also advised Derhagopian that he needed to use Apex Roofing as the licensee on the project. Derhagopian agreed to do the work and pulled a permit for the roofing work. He also opened a checking account in which the insurance proceeds from Allstate were to be deposited. Both he and respondent had authorization to sign checks drawn on that account. On September 24, 1984, Allstate Enterprises Mortgage Corporation issued a check payable to Apex Roofing and Insurance and J. E. Shand in the amount of $18,150.66. The check was issued for the purpose of enclosing the house, cleaning it, and installing a new roof, trusses and windows. The check was endorsed by both the Shands and Richard Kondian who 'indicated on the endorsement that he was president of Apex. The check was then deposited into the Derhagopian Kondian joint account. Work began on the Shands' residence in September, 1984. Derhagopian completed a small flat deck in the rear of the house, and the general contractor began stripping the inside of the house and cleaning the premises. When neither was paid by Kondian they ceased work on the project. At that time Derhagopian learned that Kondian had spent the entire $18,150.66 within a week. According to Derhagopian, Kondian spent around $5,000.00 on a "nursing home" transaction, $500.00 for legal expenses, and an undisclosed amount for mortgage payments on his home. It is not known how the remainder of the funds were spent except that they were not used for their intended purpose of repairing the Shands' home. Despite demands for repayment of their monies, Kondian has never repaid the Shands. The Shands eventually had their home repaired, but still have liens on it to this date. They have pending a civil action against Kondian to recover the insurance proceeds.
Recommendation Based on the foregoing, it is RECOMMENDED that respondent be found guilty of violating Subsection 475.25(1)(b), Florida Statutes, and that his license number 0302230 be REVOKED. DONE and ORDERED this 16th day of December, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer ~ Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904 ) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16 day of December, 1985. COPIES FURNISHED: Mr. Richard Kondian 300 South Pine Island Road Plantation, FL 33324 Arthur R. Shell, Jr., Esq. P. O. Box 1900 Orlando, FL 32802
Findings Of Fact Respondent, Albert J. Ruocco, is licensed as a registered building contractor in the State of Florida, holding license number RB00030112. His last address in the Department's file is 604 Citrus Court, Melbourne Beach, Florida 32951. Sometime prior to the date of the administrative complaint, the Department received a complaint from Mrs. Dale Normington that Ruocco told her he had obtained a termite treatment for the addition he constructed on her home, but that no treatment was done. DPR investigator, John Allen, told Mrs. Normington to send her back-up information. John Allen received in the mail a copy of the purported contract between the Normingtons and Rivers Edge Construction Company, Inc., Ruocco's Company. He also received a series of cancelled checks and a copy of a letter purportedly sent by the Normingtons to Albert Ruocco. John Allen checked the Department's licensing files and obtained the licensing information on Ruocco. He also personally served the Administrative Complaint on Ruocco, but did not, to the best of his recollection, discuss the complaint with him or have any other contact with him. Ruocco never responded to any investigative correspondence. Douglas Vanderpoest, owner of Slug-A-Bug, a pest control company, established that his company never treated the addition to the Normington resident. Brevard County Building Inspector, Howard Stott, knows Albert Ruocco and is familiar with the addition Ruocco installed for the Normingtons in 1985. A permit was obtained and Stott performed three inspections, including the slab, pre-lath and final on the addition. Brevard County requires evidence of termite treatment of soil for any new construction or modifications to an existing structure. The practice is usually for the inspector to require a receipt or evidence of treatment prior to approving the slab. Stott does not remember whether he required the evidence on the Normington job. The permit in those days did not have a space to indicate the termite treatment. However, Stott did approve the slab, as noted on the permit.
Recommendation Based on the foregoing, it is, hereby RECOMMENDED: That the Administrative Complaint dated November 2, 1987, be dismissed. DONE and RECOMMENDED this 20th day of May, 1988, in Tallahassee, Florida. MARY CLARK 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 20th day of May, 1988. COPIES FURNISHED: David E. Bryant, Esquire Bryant, Reeves & Deer 220 East Madison Street Suite 530 Tampa, Florida 33602 Albert J. Ruocco 604 Citrus Court Melbourne Beach, Florida 32951 Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issues in this case are whether Respondent violated Subsections 489.129(1)(g)2., 489.129(1)(j), and 489.129(1)(m), Florida Statutes (2004),1 and, if so, what discipline should be imposed.
Findings Of Fact Mr. Brown holds a current, active Florida State Certified General Contractor License number CG C062829. He is the owner and qualifying agent for Churchill’s Construction Co., Inc. (Churchill’s). Sometime in 2003, Churchill’s entered into two contracts with Walcott Allen to construct two homes in Charlotte County, Florida. Mr. Allen was a friend of Mr. Brown. Mr. Allen had had a contractor’s license, but the license had been revoked by the Department. Mr. Brown decided to make Mr. Allen vice president of operations for Churchill’s. The purpose was two-fold. First, Mr. Brown did not think that he would be able to be present at the construction sites of Mr. Allen's homes very often, but Mr. Allen would be at the construction most of the time. By making Mr. Allen a vice president of the company, Mr. Brown felt that the building inspectors would be satisfied that Churchill’s had a presence at the construction sites. Additionally, Mr. Brown was hopeful that Mr. Allen would be able to generate business through some of his business associates. Sometime in 2003 or 2004, Mr. Brown and Mr. Allen went to the real estate office of Debbye Fitzpatrick concerning the purchase of some lots. In 2004, Hurricane Charlie struck the Port Charlotte area and did considerable damage, including damage to the residence of John and Debbye Fitzpatrick. Debbye Fitzpatrick knew that Mr. Allen had done some construction work in the past and approached him about repairing the damage to her home. Mr. Allen advised Mr. Brown that the Fitzpatricks were interested in Churchill’s repairing the damage to their house. Sometime before December 15, 2004, Mr. Brown and Mr. Allen went to the Fitzpatricks' home to look at the damage. Neither Mr. Brown nor Mr. Allen advised the Fitzpatricks that Mr. Allen could not enter into a contract on behalf of Churchill’s. Mr. Allen gave the Fitzpatricks a business card indicating that he was the vice president of operations for Churchill’s. On December 15, 2004, the Fitzpatricks entered into a contract with Churchill’s to make the repairs to the Fitzpatricks' home. The contract was not written on the form usually used by Churchill’s. Mr. Allen signed the contract on behalf of Churchill’s. The contractor license number listed on the contract was Mr. Brown’s. The total contract amount was $65,728. Based on the contract, Churchill’s was to remove existing drywall ceilings and insulation and replace with new insulation and sheetrock, remove existing drywall and insulation for the walls and replace with new sheetrock and insulation, lay floor tiles, paint the ceiling and walls, replace all the electrical fixtures, and power wash and paint the exterior of the house. Churchill’s applied for a building permit for the repairs to the Fitzpatricks’ home. The permit application was signed “Winston Brown” and was notarized. Mr. Brown contends that he did not sign the application and that the signature is a forgery by Mr. Allen. To a layperson, the signature on the permit application for the Fitzpatrick house does differ significantly from the signature on other documents submitted by Mr. Brown, which documents he testified bore his signature. Mr. Allen commenced work on the Fitzpatrick house. On February 17, 2005, Debbye Fitzpatrick wrote a check for $7,500 made payable to Wally Allen as the initial payment for the construction work. Mr. Allen had asked Debbye Fitzpatrick to make the check payable to him rather than to Churchill’s. Debbye Fitzpatrick did not think it was out of the ordinary for the check to be made out to Mr. Allen, and she complied with his request. On March 29, 2005, Debbye Fitzpatrick wrote another check to Mr. Allen for $10,000 as a draw on the contract amount. On June 23, 2005, she wrote another check to Mr. Allen for $11,601.77. The work on the project did not go well according to the Fitzpatricks. Some of the tiles that were laid were cracked, and some of the tiles gave out a hollow sound when tapped with a wooden implement. Some of the tiles were not grouted. Some of the grout in the tile work was not sealed. Insulation was not replaced in some of the ceiling areas. Patches to the sheetrock on the walls and ceiling were visible. The texturing of the paint was not consistent, with some areas having too much texture and some areas not having enough. The workers were careless with their painting and got paint on the carpet, furniture, floors near baseboards, windows, window frames, soffits, and front porch. The workers also damaged some of the furniture and kitchen appliances during the performance of their work. The front entry door was not installed properly. The garage door was not primed and the paint peeled. The vanity top in the master bedroom was not installed properly and had to be redone by another contractor. In July, Mr. Allen and his workers stopped coming to the job site. No notice was given to the Fitzpatricks that work was going to be stopped. No one from Churchill’s ever came back to work on the project, and the work on the project was not complete and was unsatisfactory. The Fitzpatricks had to pay an electrician $1,500.00 to do work that was supposed to be included in the contract with Churchill’s. Although there was unrebutted testimony that the Fitzpatricks had to pay other contractors to repair the damage done by Churchill’s, there was no evidence presented to quantify the amounts paid and the damage sustained other than a payment to the electrician. Additionally, some of the work not completed by Churhill’s had not been done because the Fitzpatricks lack the funds to complete the work. Again, no effort was made to quantify the amount of money necessary to complete the work. Mr. Brown claims that he did not know anything about the project and that Mr. Allen acted without authority to bind Churchill’s to a contract for the project. Mr. Brown’s testimony is not credible. Mr. Brown made Mr. Allen a vice president of the company and went with Mr. Allen to the Fitzpatricks’ home to look at the work that was needed. According to Mrs. Fitzpatrick, “Mr. Allen did most of the talking as to what was to be done and what the procedure was to be and he [Mr. Brown] didn’t speak very much, but he did nod and go along with what the plan was.” One of the reasons that Mr. Brown made Mr. Allen a vice president of the company was to garner additional business. If Mr. Brown had not wanted Mr. Allen to act on behalf of Churchill’s, Mr. Brown should not have made Mr. Allen a vice president of the company. Mr. Brown knew that any work that Mr. Allen was able to secure would have to be done using Mr. Brown’s license because Mr. Allen’s license had been revoked.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Respondent violated Subsections 489.129(1)(j) and 489.129(1)(m), Florida Statutes, and did not violate Subsection 489.129(1)(g)2., Florida Statutes; placing Respondent on probation for two years; imposing an administrative fine of $1,000.00 for the violation of Subsection 489.129(1)(j), Florida Statutes; imposing an administrative fine of $1,000.00 for the violation of Subsection 489.129(1)(m), Florida Statutes; and requiring Respondent to make restitution to the Fitzpatricks in the amount of $1,500.00. DONE AND ENTERED this 14th day of March, 2008, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 14th day of March, 2008.
Findings Of Fact At all times pertinent to the allegations contained herein, the Respondent, Henry J. Alberico, was licensed as a real estate salesman in Florida, and the Petitioner, Division of Real Estate, was the state agency responsible for the licensing and regulation of real estate professionals in this state. During the Summer of 1988, Shirley Jean Hicks, was interested in purchasing a new house in the Sarasota area. Based on the recommendation of a friend, she went to the Respondent who showed her a house listed by the Murphys located at 2311 Waldemere Street in Sarasota. After Ms. Hicks saw the property twice, she made an offer to buy it. She wanted owner financing, if possible, because she did not have a good credit rating, but she did not discuss this with the Murphys until after the contract was signed. Because some defects had been noted in the house, the contract for sale called for inspections to be done for termite infestation and of the general condition of the building as well, and Respondent indicated these would be done. The building inspection was done by Guengerich Home Inspections, whose report indicated that roof repairs were needed. Ms. Hicks told Respondent that unless the damage was repaired at no cost to her prior to closing, she would not go through with the purchase. The Guengrich report, as to the roof, stated, inter alia,: Several water stains are noted inside the house but probably from a previous leak. The flat roof over the right end of the house is also of the same type gravel roof. It appears that several small areas were repaired previously. Also several small bubbles are noted near the A/C unit, one at the front and several at the right of the A/C. Should be checked by a roofer. Gutters appear to be in good condition. Some gravel and leaves in the gutter. There were three different termite inspections done. The first, by Royal Exterminator on September 30, 1988, was accomplished for the real estate company. It showed evidence of dry rot and termites with visible damage on the left side, on window trim, on the right rear external panel, on a door frame and on interior trim. No live organisms were noted. The report was sent to the real estate company but reflected Ms. Hicks as the buyer. The second inspection was done by Truly Nolen on October 7, 1988, also for the realtor because Mr. Murphy was not happy with the first one. It, too, reflected evidence of termites and dry wood decay in the same areas as previously described, and again, there was no indication that live organisms were found. A copy of this report was provided to Ms. Hicks at the time of closing by the Barnett Bank, not by Respondent. Though her acknowledgment appears on the form, she does not recall having seen it. The third inspection, by Hughes Exterminating Company, was done on January 31, 1989 at the request of Ms. Hicks. The substance of this report was the same as the two prior reports. Damage was noted even though Mr. Murphy paid a carpenter, Todd McCammack, to repair this damage on October 18, 1988, shortly after the second termite inspection. Respondent indicated to Ms. Hicks that the roof repairs, identified as needed by Guengerich, had been satisfactorily completed, and the testimony by deposition of Mr. Scarbrough indicates that is true. In September, 1988, Scarbrough repaired the leaks on the back portion of the roof and regraveled the bare spots which were noted but which were not leaking. Considering the evidence as it relates to the issue of the termite damage, dry rot damage, and roofing damage in its totality, it would appear, and it is so found, that Mr. Alberico arranged for the necessary repairs to be made and they were made. It is unclear as to whether he advised Ms. Hicks that the necessary repairs were made. While doing so may have avoided some of her displeasure and dissatisfaction with his performance, and might have obviated her complaint against him, it does not appear that his failure to provide her with copies of the repair orders, in light of the fact he advised her the repairs had been made, constitutes misconduct. He told her the repairs had been made and it appears they had been made. It is clear that the relationship between Ms. Hicks and the Murphys was neither smooth nor harmonious. She claims, for example, she was not offered a walk-through inspection of the house prior to closing, but there is indication she was taken there several times, at least once with consultants, before she made her offer. Ms. Hicks financed her purchase through the local Barnett Bank. Prior to applying there, she had applied with another lender, Reliant, which offered to finance her purchase but at an unacceptably high interest rate. After her initial attempts at financing were unsuccessful, she noted to Respondent that she was getting tired of the extended financing process and was considering pulling out of the transaction. Thereafter, Respondent loaned her $6,000.00 for a part of the down payment. She also was to get $7,000.00 from an aunt, $6,000.00 from her father, and a small amount from her mother. She told Respondent she was concerned that Barnett would not approve her loan if they knew she was borrowing a part of the down payment which had to be paid back. According to her, he suggested she have her aunt give her $13,000.00 for the down payment rather than $7,000.00 and then use his $6,000.00 to pay back her aunt after the loan went through. She did this and did not tell the bank about it even though she knew it was not "on the up and up." She did it, however, because she was afraid she would lose her deposit if she backed out of the transaction, and would not get her loan if the bank knew that some of the down payment was a loan which had to be paid back. In that regard, however, she has not paid Respondent any of the money she borrowed from him, claiming she holds him responsible for the house's defects which include the roof, the air conditioning, and the termite damage. Mr. Alberico indicates, with regard to the financing, that after Ms. Hicks received Reliant's lending proposal with the high interest rate, he took her to two other mortgage companies, neither of which would take her. Several days later, she allegedly called him and indicated that Barnett Bank, which had held her prior mortgage, might agree to finance her. As a result, he worked with Barnett, but did very little, aside from providing the information they requested. When Ms. Hicks indicated to him that she needed more money for the down payment, Mr. Alberico offered to lend her the $6,000.00 she said she needed. The loan was to be for a short term only, and he gave her the money without a note or mortgage as evidence of the debt. However, just before closing, she told him she had lied on the income verification form. As a result, he felt he had best get some security for his loan and, after closing, asked that she give him a promissory note for the $6,000.00 he had loaned her. Mr. Alberico denies he in any way urged Ms. Hicks to lie to the bank nor did he make any representations to the bank regarding the source of her funds. As a result of this transaction, Ms. Hicks filed a complaint against the Respondent with the Sarasota Board of Realtors, and a hearing was held before that Board on July 24, 1989 concerning the conduct of the Respondent and his broker, Mr. Maloof. According to Mr. Bruce B. Winter, Chairman of the Board's Professional Standards Committee, Mr. Alberico, though fully advised in advance of his right to be represented by counsel and to call witnesses and present evidence in his own behalf, nonetheless spoke for himself and presented neither witnesses nor documentation. Having heard all the evidence presented, the panel, on August 1, 1989, filed its decision on Ms. Hicks' complaint against Mr. Alberico and his broker. The Board found that with regard to the termite inspection, Mr. Alberico did not give copies to the complainant; did not inform her that two inspections were made; misrepresented the results of the inspection to the complainant; and later told her that work had been completed when it had not. The Board's findings do not appear to be supported by the evidence presented at the instant hearing, and are not considered binding on the undersigned. With regard to the home inspection report, the Board found that Mr. Alberico told Ms. Hicks the roof work had been completed when it had not, yet evidence presented at the instant hearing shows that the work was, in fact, completed. The Board also found that Mr. Alberico loaned Ms. Hicks the money for the down payment but did not record it nor inform the lender, "because they would not have made the loan", and that he may have induced the buyer to purchase a property beyond her financial capacity. It further found that he improperly gave legal advice to Ms. Hicks by advising her not to disclose his loan for the down payment to the lender. The evidence presented at the instant hearing clearly supports the conclusion that Respondent was a party to a dishonest action on the part of Ms. Hicks regarding her application for a loan. Her dishonesty, which she denied at hearing but is, nonetheless, found to have existed, appears to have been in the falsification of her earnings statement to be submitted to the lender and her failure to disclose the true source of her down payment. The local Board made several other findings of inappropriate activity on the part of Mr. Alberico with regard to his dealing with Ms. Hicks in this case. However, they are found to be not pertinent to the allegations under consideration here, and are not considered for any purpose in the resolution of the issues currently at hand.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be issued suspending Respondent, Henry J. Alberico's license as a real estate salesman for six months and assessing an administrative fine of $500.00 against him. RECOMMENDED this 6th day of December, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-3229 The following constitutes my specific rulings pursuant to S 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1.-3. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein, except for the fact that Ms. Hicks' viewing of the roof is not determinative of whether the required repair work was completed. & 8. Accepted and incorporated herein. 9. & 10. Accepted and incorporated except that the evidence reveals she was given a copy of a termite inspection report at closing and signed for it. Accepted. - 14. Accepted as to the fact that three termite inspections were conducted, all of which showed termite damage. All three, however, failed to indicate live termites, and the evidence also shows that the damage done by the prior infestation was repaired prior to sale. Accepted as to the fact that Respondent ordered the inspection but rejected as to his concealment. & 17. Accepted and incorporated herein. FOR THE RESPONDENT: 1. & 2. Accepted and incorporated herein. 3. - 9. Accepted and incorporated herein. Not a Finding of Fact but a comment on the evidence. & 12. Accepted and incorporated herein. 13. & 14. Not a Finding of Fact but a comment on the evidence. Accepted and incorporated herein. & 17. Accepted and incorporated herein. Not a Finding of Fact but a comment on the evidence. First three sentences accepted and incorporated herein. Balance merely a comment on the evidence. Accepted. & 22. Not Findings of Fact. Accepted and incorporated herein. Not a Finding of Fact, but the substance of his inspection and service report is accepted. Accepted. - 30. Not Findings of Fact in form but the substance is accepted. Not a finding of Fact but argument based on the evidence. Not a proper Finding of Fact. Accepted. Accepted. Not a Finding of Fact but a restatement of evidence. Accepted as to a lack of Respondent's contact with the Bank rejected as to misrepresentation conclusions. Not a Finding of Fact. & 39. Accepted and incorporated herein. 40. & 41. Accepted. 42. & 43. Accepted. 44. & 45. Accepted. 46. - 48. Accepted and incorporated herein. 49. Not a Finding of Fact but a Conclusion of Law. COPIES FURNISHED: Steven W. Johnson, Esquire DPR, Division of Real Estate Hurston North Tower 400 West Robinson Street Orlando, Florida 32801-1772 Thomas K. Marshall, Esquire 1800 - 2nd Street, #775 Sarasota, Florida 34236 Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times material here to, Respondent was licensed as a certified general contractor, having been issued license number CG C009484 by the State of Florida. At all times material hereto, Respondent qualified Allstate Roofing & Construction Company with the Florida Construction Industry Licensing Board. Since March 1983, Respondent has also been licensed as a registered roofing contractor and qualifies Allstate Roofing & Construction Company with the Florida Construction Industry Licensing Board under license number RC 0043155. On March 27, 1981, as the qualifier for Allstate Roofing & Construction Company, Respondent entered into a contract with Joe Hill to reroof Hill's home for the contract price of $2,214.10. The contract further provided that workmanship would be unconditionally guaranteed for a period of five years. Respondent in turn entered into a subcontract on April 8, 1981, whereby A & A Roofing Co. subcontracted with Allstate Roofing & Construction Company to perform the work required on the Hill roof for the sum of $1,950, which contract also carried a five-year workmanship unconditional guarantee. In the meantime, Hill and his wife obtained a second mortgage on their home to pay for the replacement of the existing roof, and the mortgage company paid Respondent directly. The subcontractor with whom Respondent contracted for the work on the Hill home was a registered roofing contractor. The existing roof on the Hill home was gravel. Under the contract for replacing the roof on the Hill hoine, asphalt shingles were installed on the portion of the roof which is slanted, and new gravel and tar were installed on the portion of the roof which is flat. After the roof was completely replaced, Hill contacted Respondent to report leaks in the flat part of the roof. In response to that complaint, someone came to the Hill residence and repaired the areas where leakage was reported. Since the roof leaked again, Hill contacted Respondent, and Mr. Davis of A & A Roofing Co. reported to the Hill residence and worked on the roof. In January 1983, Hill's wife contacted Respondent regarding her leaky roof, and once again someone was sent to the Hill residence to effectuate repairs. Although the Hills testified at the formal hearing that the roof still leaked, no evidence was presented to show the precise location of any leak in order o ascertain if the leak was a new" leak or an "old" leak. Both Mr. and Mrs. Hill do admit, however, that Respondent has responded to their complaints every time they have contacted him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty of the allegations contained in the Administrative Complaint filed herein and further dismissing the Administrative Complaint against him. DONE and RECOMMENDED this 20th day of October, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 20th day of October, 1983. COPIES FURNISHED: Stephanie A. Daniel, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Clarence. S. Tate 8282 Westernway Circle, Suite 103 Jacksonville, Florida 32216 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
