Findings Of Fact At all times pertinent to these Findings of Fact, the Respondent has been a licensed real estate broker in the State of Florida having been issued license number 0317497. In 1985, the Respondent operated his own real estate brokerage firm, Kline Real Estate, Inc., which acted as a marketing agent for Majestic Builders, a construction company. Both Kline Real Estate, Inc., and Majestic Builders did business in and around the Spring Hill, Hernando County, Florida, area. Majestic Builders was owned by George Orlando. In early 1985, Majestic Builders' qualifying general contractor was Stephen Cannon. In early 1985, the Respondent was contacted by the Whitmarshes of Lynchburg, Virginia, who expressed interest in having a modified version of a Majestic Builders model home built on a piece of property in Spring Hill, Florida. Eventually, the Whitmarshes selected a lot on which to have the residence built, and the Respondent brokered the purchase of the lot (from a third party) and the construction contract. Both contracts were entered into on or about April 27, 1985. Both contracts required that the Whitmarshes make a deposit, $1,000 on the lot purchase and $5,000 on the construction contract. Both deposits were made into the escrow account maintained by Kline Real Estate, Inc. The $1,000 deposit was disbursed without incident at the closing of the lot purchase on or about May 7, 1985. The construction contract between the Whitmarshes and Majestic Builders provided in connection with the deposit: DEPOSIT TO FIX HOME PRICE FOR PERIOD OF 6 MOS. [MONTHS), DURING WHICH COMMENCEMENT MAY BEGIN WITHIN 30 DAYS OF NOTIFICATION AND INITIAL PAYMENT OF 30% OF BALANCE. SHOULD COMMENCEMENT BE AFTER 6 MOS., DEPOSIT WILL STILL APPLY BUT TO NEW PURCHASE PRICE OF MODEL AT TIME OF CONSTRUCTION. For the balance of the spring and summer of 1985, the Whitmarshes continued to consult with the Respondent and, primarily through the Respondent, with George Orlando regarding the modifications the Whitmarshes desired to make to the Majestic Builders model, but they were not particularly anxious to commence construction for personal, family health reasons. In addition, they understood and knew from the contract provision and from conversation with the Respondent that their $5,000 deposit was supposed to be credited to the price of the home they eventually built even if commencement was more than six months from the contract date. On or about November 11, 1985, the Respondent advised the Whitmarshes by telephone, confirmed in writing: This [is] notification, that in accordance with your contract, you are legally in default. This letter is written out of legal necessity and has no bearing on your deposit which will bw [sic] applied to the agreed upon purchase price of a Majestic Home. The default merely is to state the builder is no longer held to the prices quoted. And any changes either up or down will be reflected in the new contract price. (Emphasis added.) Notwithstanding his November 11 letter, the Respondent withdrew the Whitmarshes' $5,000 deposit from the Kline Real Estate, Inc., escrow account and deposited it in the Kline Real Estate, Inc. operating account. Of the $5,000, $1,000 was used the purchase of a building lot for Majestic Builders, and $1,500 was paid directly to George Orlando, to whom the Respondent believed the $5,000 belonged. 1/ The Respondent is unable to account for the balance of the $5,000. 2/ On or about March 21, 1986, the Respondent received a letter from Mr. Whitmarsh stating: "With this letter I authorize you to use $500 from my escrow account to obtain a new floor plan and prepare a cost estimate for my revised version of your Wind and Wildfire Model Home." The Respondent, who had had a heart attack in September, 1985, and was in the process of closing out Kline Real Estate, Inc., and getting out of the real estate business, passed the letter on to George Orlando. Orlando balked at the request, taking the position that the purpose of the $5,000 was not for use to draw up revised plans. But it is the Respondent's understanding that Orlando eventually relented and agreed not to require the Whitmarshes to pay for the revised plans with new money. It is unclear from the evidence whether revised plans ever were drawn. 3/ In approximately June or July, 1986, the Respondent closed Kline Real Estate, Inc., and got out of the real estate business. He never heard anything else from the Whitmarshes about the transaction and assumed that Orlando and the Whitmarshes had satisfactorily concluded their business dealings. But in fact in approximately early 1987, the Whitmarshes received information that Majestic Builders was not a licensed contractor. Although, on checking, they learned that Majestic Builders then had a licensed qualifying contractor, the Whitmarshes still did not feel comfortable with Orlando and Majestic Builders. In about April, 1987, the Whitmarshes decided to hire another builder and asked Orlando for the return of their deposit. Orlando refused, saying that the Respondent had the money. 4/ Nonetheless, the Whitmarshes never contacted the Respondent for the return of the deposit. Later, the Whitmarshes and Orlando became involved in another dispute arising out of the alleged improper use of Orlando's Wind and Wildfire drawings by the Whitmarshes and the builder they eventually hired, Stephen Cannon, who had been Majestic Builders' qualifying general contractor but had left to start his own construction company with the understanding that Cannon would not use any of Majestic Builders' drawings. The Respondent had no knowledge of any of these disputes between Orlando and the Whitmarshes until he was interviewed by a Department of Professional Regulation (DPR) investigator in August, 1988. The DPR had begun an investigation of Orlando on the Whitmarshes' complaint of alleged violations of the laws regulating construction contractors and learned that the dispute involved a deposit that had been held in trust by a licensed real estate broker. DPR then began an investigation of the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission enter a final order finding the Respondent, Ronold E. Kline, guilty of violating portions of paragraph (b) and paragraphs (d) and (k) of Sections 475.25(1), Florida Statutes (1987), and suspending his license for a period of one year. RECOMMENDED this 15th day of December, 1989, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 15th day of December, 1989.
The Issue Did Respondent, LGI Homes-Florida, LLC (LGI), discriminate in housing against Petitioners, Bridget and Tonny Walker, on account of their race in violation of section 760.23 Florida Statutes (2018)?1 1 All references to the Florida Statutes are to the 2018 compilation unless noted otherwise.
Findings Of Fact Mr. and Ms. Walker are African-American. Their claim in this matter arises out of their inquiry into buying a house from LGI in its Hill 'N Dale community. LGI is a national homebuilder. It develops residential communities consisting of homes that it built. It offers financing for those homes. LGI follows a specific, multi-step process for home sales. The process includes maintaining a log of contacts with potential buyers. The log includes the name of the sales representative who spoke to the potential buyers, the date of the contact, and the outcome of the contact. The process also includes a loan pre-qualification step. Using a Pre-Qualification Worksheet, a sales representative gathers basic financial information from a prospective buyer including employment, compensation, and bank account balances. In addition, LGI obtains a credit report for the prospective buyer. A determination that a buyer is qualified is effective for 30 days at any LGI property. After 30 days, a buyer who wishes to tour a home must undergo the pre-qualification process again. LGI does not give home tours to individuals unless they pre-qualify for financing. It follows this policy to conserve sales representative time by avoiding wasting time showing homes to individuals who are unlikely to be able to purchase them. LGI also says the policy avoids raising unrealistic expectations in would-be buyers who will not be able to finance a home. LGI's policies require every sales representative to first take each pre- qualified prospective buyer to a target home, identified as the lowest price home available, before viewing any other available homes on the property. On March 17, 2018, Mr. and Ms. Walker visited LGI's Ballentrae community. There they completed the pre-qualification process. An LGI representative advised them that they were pre-approved for a home valued around $150,000. The Walkers did not tour a home in the Ballentrae community. On June 16, 2018, the Walkers visited LGI's Hill 'N Dale community. They had scheduled an appointment with Danine Stratton, an LGI sales representative. After the Walkers arrived and seated themselves in the waiting area, a Caucasian couple arrived and sat down. When Ms. Stratton entered the waiting area she spoke to the Caucasian couple before acknowledging the Walkers. Ms. Stratton consulted with the Walkers and obtained the information needed for pre-qualification from them. This was necessary because more than 30 days had passed since they had pre-qualified at the Ballentrae property. She also asked for some demographic information. The Walkers inquired about purchasing a four-bedroom house. Ms. Stratton expressed skepticism that they could afford a four-bedroom home. During the consultation Ms. Stratton learned that Mr. Walker's name was spelled "Tonny," with two "n"s. She noted that the spelling was unusual. She went on to say, "It's either three things, your mother could not spell, your mother was on drugs, or just unique." The Walkers were justly offended and understandably perceived the comment as invoking racial stereotypes. Ms. Stratton maintains that this was just good natured, light-hearted, teasing meant to build rapport with the Walkers. She testified that she was "completely shocked" that they were offended. Ms. Stratton is not credible. It is not plausible that a sales person would expect insulting a customer's mother to build rapport with the customer. Ms. Stratton's comments are inexplicable. Nonetheless, Ms. Stratton gave the Walkers a tour of the community.2 She offered to show the Walkers a three-bedroom home, consistent with LGI's "target home" strategy. They asked about a four-bedroom home. Ms. Stratton said that a four-bedroom home was not available for showing. There is no persuasive evidence that one was available at that time or that a four- bedroom home was shown during that time period to non-minority persons. Ms. Stratton was willing to sell a three-bedroom home to the Walkers. By then they had decided they would not purchase a home from LGI. In 2 The testimony of Ms. Walker and Ms. Stratton differed on this point and others. Based on the demeanor of the witnesses, consistency with other evidence, and the implausibility of some of Ms. Stratton's testimony, the undersigned finds Ms. Walker more credible and persuasive. Ms. Walker's words, "I declined her offer to purchase any home with LGI." (Tr. p. 39). Upset by Ms. Stratton's comments about the spelling of Mr. Walker's name, the Walkers decided that they just wanted to leave. In order to do this peacefully they said they needed to check with an uncle to obtain funds for the required earnest money. They also refused to sign the pre-qualification form. On June 17, 2018, Ms. Stratton texted the Walkers saying, "Hey there, just touching base. Were you able to talk with your uncle about helping out?" This text demonstrated that Ms. Stratton wanted to sell the Walkers a home. On June 18, 2018, Ms. Walker replied that because of the comment about the spelling of Mr. Walker's name, "We will not be purchasing with LGI." Ms. Stratton replied: Oh my goodness, I'm so sorry that I offended you. I certainly didn't mean to. I was just making a joke and in hindsight was in poor taste. Again, I'm so sorry and best of luck to you guys." Ms. Walker went to an LGI property in Ruskin and spoke to a supervisor there named Joe Boyd. He assured her that LGI would take care of the problem and someone would call her. Ms. Walker also called LGI's home office in Texas. She was connected to the area director for Florida. He emailed Ms. Walker and said that he would have someone named Todd Fitzgerald contact her. Mr. Fitzgerald did not contact the Walkers. On Friday, June 22, 2018, at 12:52 p.m., Ms. Walker sent Mr. Boyd an email. It stated, "Myself and my husband recently visited one of your properties and received poor customer service and rude racist remarks from one of your employees. I have spoken to one of you[r] managers locally but I do not [know] if anything was done. There was no follow up. Please contact me at [phone number]." On Friday, June 22, 2018, at 10:13 p.m., Mr. Boyd replied: It is my understanding that our division president Todd Fitzgerald called you to discuss this. Please let me know if he hasn't and I will be happy to call. Please be assured that in no way was the intent of our representative to offend in any way. We apologize for you feeling that you received comments that were rude and even racist, that is definitely not like us, so from the bottom of my heart I am sorry on behalf of our company. I'll be available to discuss tomorrow if Todd has not already spoke with you. Have a nice evening! The next day Ms. Walker replied: "Thank you for your quick response. But I have not spoken to Todd Fitzgerald." There is no evidence of further communications between LGI and the Walkers. The Walkers did not offer to purchase a home from LGI. They would not purchase a home from LGI. From March 2018 through March 2019, LGI closed on the sale of 15 homes at Hill 'N Dale for which Ms. Stratton was the responsible sales representative. African-Americans purchased seven of those houses. On May 20, 2018, Ms. Stratton sold a four-bedroom home Hill 'N Dale to Alfreeda Harrington, an African-American, for $175,000.00. This was before her June meeting with the Walkers. Ms. Stratton sold a three-bedroom home in Hill 'N Dale to Tawanda Boyd, for $160,000.00. Ms. Boyd is an African-American. On August 11, 2018, Beverly Easton, an African-American, purchased a four-bedroom home in Hill 'N Dale for $175,000.00. Ms. Stratton was the sales representative for the transaction. On June 9, 2018, Ms. Stratton sold a home in Hill 'N Dale to the Samuels family, who were African-Americans. On April 12, 2019, Ms. Stratton sold a home in Hill 'N Dale to an African-American buyer whose last name is Wheeler. On March 25, 2019, Ms. Stratton sold a home in Hill 'N Dale to an African-American buyer whose last name is Bacon. On January 28, 2019, Ms. Stratton sold a home in Hill 'N Dale to an African-American buyer whose last name is Swanson.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order denying the Petition for Relief. DONE AND ENTERED this 12th day of June, 2020, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 12th day of June, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Brett Purcell Owens, Esquire Fisher & Phillips, LLP Suite 2350 101 East Kennedy Boulevard Tampa, Florida 33602 (eServed) Bridget Trinettea Walker Tonny Walker 1144 Barclay Woods Drive Ruskin, Florida 33570 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: The Respondent, Roger L. Irven, is a certified general contractor holding license number CG C027873. At all time material hereto, Respondent was licensed as a certified general contractor, doing business as Irven Construction Company. DOAH CASE NUMBER 85-0714 On about June 25, 1978, Respondent pled guilty and was adjudged guilty of the felony offense of wanton endangerment in the Circuit Court of Oldham County, Kentucky. On July 25, 1978, the Respondent was sentenced to three (3) years probation by the Oldham County Circuit Court. The Respondent was represented by counsel. Respondent was placed on probation with certain conditions. One of the conditions was that the Respondent receive treatment in the infirmary for his epileptic condition. The Court ordered that the Respondent be hospitalized for four (4) months in the prison infirmary. The Department of Professional Regulation, Construction Industry Licensing Board received applications from the Respondent to take the certified contractor's examination on December 16, 1982, April 1, 1983, August 17, 1983 and December 7, 1983. On each application, Respondent answered in the negative indicating that he had never been convicted of any offenses in this state, or elsewhere, other than a traffic violation. Respondent took the Certified Contractor's Examination four (4) times. Respondent passed the examination on the fourth attempt. On March 14, 1984, Respondent was licensed as a certified general contractor. DOAH CASE NUMBER 85-3393 On November 1, 1984, the Respondent contracted with Kathy and Larry Evans, 5746 Wingate Drive, Orlando, Florida, to remodel their home at a cost of $6,700.00. On November 5, 1984, the Evans' paid Irven Construction $3,350.00 towards the contract price. The specifications for the remodeling work were prepared by Irven Construction. Mr. Evans was told by the salesman for Irven Construction that the remodeling would commence within fifteen (15) days of signing the contract and be completed within forty-five (45) days of the commencement, which amounted to sixty (60) days for total completion after signing the contract. No work was performed on the Evans project until December 19 or 20, 1984, when the windows were put in. The air conditioning duct work and heating elements were put in and the old oil furnace was removed. Respondent informed the Evanses that no work was done before this because he was ill. On January 3, 1985 Irven Construction entered into a contract with Central Air, Heating and Cooling, Inc. to perform air conditioning and heating work on the Evans' home at a cost of $3,195. A few days after entering into the contract, Central Air & Heating completed only the rough-in of the contracted work. The rough-in consisted of the installation of the heating and air conditioning ducts and the furnace installation, but not the installation of the condensing unit. Central Air & Heating was given cheeks for $1,278 by Irven Construction for the rough-in work it had completed. The checks were deposited by Central Air & Heating in its bank account, but were returned because insufficient funds were on deposit to cover them. Central Air & Heating notified Irven Construction about the returned checks; the Respondent stated that he would submit another check, but failed to do so. Because it was not paid by Irven Construction, Central Air & Heating sent a Notice to Owner to the Evanses. The Evanses also received a Notice to Owner from Window Works, Inc. for custom windows which had been ordered by Irven Construction, but never paid for. Window Works filed a lien for $600 against the Evans t property due to it not being paid for the custom windows. Subsequently, the Evanses were sued in civil court by Window Works for the amount owed under the lien. The Evanses were required to pay Window Works the amount owed plus other costs, totaling $1,800. Window Works was not paid because Respondent gave the money to one of his salesmen to buy the windows. The salesman, Nr. Renfuller, kept the money and put the windows on credit. At the time that Respondent wrote the check to Central Air & Heating, Respondent thought that there was enough money in his account to cover it. Nothing was done on the Evans project in accordance with the contract after the rough-in by Central Air & Heating. At the time of the cessation of the work, the Evans job was 60% complete and the value of the work completed was approximately $3,400. On December 12, 1984, Respondent contracted with Irving Bernstein, 1018 Matchlock Drive, Orlando, Florida, to build an enclosed porch for a price of $2,000. The Bernsteins discussed the completion date of the contract with the Respondent and his brother, Richard Irven. Bernstein was told that the remodeling would commence three (3) days after Irven Construction obtained the permit for the work and that the work would be completed within seven (7) days after that. Bernstein paid Irven $100 at the time of signing the contract. Before signing the contract, Respondent informed Bernstein that several sub-contractors were available to start the remodeling, and, that construction could start as soon as the contract was signed. After signing the contract, no one immediately appeared from Irven Construction to perform the remodeling. Bernstein made several calls to Respondent and left several messages, seeking to obtain information as to when someone was coming to begin the remodeling work. When Bernstein spoke with the Respondent, the Respondent informed him that he had to obtain three (3) bids. On January 2, 1985, Bernstein paid Irven Construction $975.00, making his total payment $1,075. Respondent obtained the building permit for the Bernstein project on January 9, 1985. At the end of January, 1985, Respondent and his son arrived at the Bernstein residence to start the remodeling job. Respondent and his son worked approximately three (3) hours that day, putting in 2 x 4's around the sides. The following day, Respondent's brother and son worked on the project for approximately three (3) hours, removing some tiles off of the roof and the side molding from the house. When they left they stated that they would return the following Monday: however, no one came that Monday. That Monday morning, Bernstein called Irven Construction and spoke with Respondent's brother, Richard Irven. Respondent's brother informed Bernstein that Respondent had a bad back and that completion of the job would be delayed. Bernstein requested the return of his money, but no money was ever returned by Irven Construction. On February 21, 1984, Respondent wrote a letter to Bernstein indicating that he wanted off of the job since it appeared to him that Bernstein did not want him to finish. At the time of the cessation of work by Irven Construction, appoximately 50% of the work had en completed. Both Respondent and Bernstein believed that there was a breach of contract by the other. Bernstein contracted with another contractor, Mark Spires Construction Company, to perform the remodeling work. Bernstein's contract with Mark Spires involved more work than the contract with Respondent. Bernstein's contract with Respondent was for a simple porch close-in with no substantial roofing work. Spires Construction Company re-leveled the beams and reconstructed the 2 x 4's of the framework. To effectuate the two (2) walls envisioned by the contract of Respondent, the existing beams were to be utilized. The only thing that Respondent had to do was to tie into the existing house. The Respondent took off the top row of tiles on the roof so he could tie it in. The only improvements Respondent made to the existing roof was "ducking and drying-in". On January 14, 1985, Sam Ross entered into a contract with Irven Construction, to remodel his home's porch, at a cost of $1,550. Ross chose Irven Construction because Irven Construction had contracted to remodel the porch of his neighbor, Nr. Bernstein, and the cost of the Bernstein job sounded reasonable. Ross was informed by Irven Construction that they would be working on both his job and Bernstein's job at the same time. At the time of signing the contract, Ross paid Respondent $775. Ross discussed the commencement and completion of the project with Respondent's brother, Richard Irven. Ross was told that the work would commence within ten (10) days of the signing of the contract and would take about five (5) days thereafter for total completion. Irven Construction delivered some supplies to his home at the same time supplies were delivered to the Bernstein project site. Because commencement of work on the project was slow, Ross called Irven Construction numerous times concerning the work on his home. Respondent eventually assigned an individual named Nark Withlow to perform work on the Ross project. However, Ross did not want Withlow to work on the job because Ross felt that a certified carpenter was needed; Mark Withlow was qualified as a remodeler. Thereafter, Ross refused to allow anyone from Irven Construction to work on his home because of his dissatisfaction with Mark Withlow's assignment to his job and because he discovered the problems that Bernstein and Respondent were having. Ross requested the return of his money from Respondent. Respondent offered, by letter dated February 21, 1985, to refund $513. Ross did not respond to Respondent's letter because he wanted a full refund and felt that Respondent's offer was "ridiculous." Ross later contracted with Mark Spires Construction to perform the remodeling work, which was eventually completed. The materials left at the-project site were used by Mark Spires Construction. The value of the goods and materials which were delivered to and remained at the Ross project was between $50 and $80.00. Ross sued Irven Construction in civil court and obtained a judgment for the full amount he paid Respondent, plus court costs. Respondent was involved in an automobile accident on July 3, 1984. As a result of the accident, Respondent suffered severe head, shoulder and back injuries. In November of 1984, Respondent was hospitalized with a "trimmed disc"; in January, 1985, Respondent briefly returned to active participation in the business but reinjured his back while working on the Bernstein project. After the July 1984 accident Respondent provided little or no control or supervision to his business and was bed-ridden frequently from July 1984 to March, 1985. In addition, the automobile accident caused Respondent's seizures to return. Respondent has suffered from a seizure disorder, i.e. epilepsy, since 1975. Respondent was seizure free from 1979 to 1983. The type of seizure that the Respondent suffers from affects his memory and decision making and may last for several days following a seizure activity. Since the accident in July, 1984, Respondent has been taking medication for his back pain, i.e. Darvocet, and medication for his seizures, i.e. Tegretol, 200 mg. From August 29, 1984 to March, 1985, Respondent was having heavy seizure activity and frequented the Epileptic Foundation of Orlando for treatment at least once a month or every six weeks. He was advised by the Foundation to always take his medication and to be with someone. During the same period, he was treated by a Dr. Litchfield, a chiropractor, at least two to three times a week. The Respondent's ability to give effective directions or make decisions was impaired due to his physical problems from August 1984 to March 1985. In August or September, 1984, Davis Chaffee began working with Respondent as a salesman. After about ten (10) days to two (2) weeks as a salesman, Respondent allowed Chaffee to run the business due to the Respondent being bedridden most of the time and not being able to function as a result of the accident of July, 1984. Davis Chaffee had no construction background; his experience was in sales and business administration. To assist Chaffee in running the business, Respondent prepared an outline which included a basic scale for bids. James NcCall served as the superintendent for Irven Construction. Respondent felt that NcCall was competent to be superintendent as long as he was supervised by Respondent. After Respondent's accident of July, 1984, McCall handled all the construction aspects of the business including overall supervision of the project. McCall continued as the superintendent on the jobs, handled bids and proposals and dealt with the prints, materials and subcontractors for all the jobs. Despite Respondent's reservations about McCall's abilities, McCall was allowed to literally "run the business" because of Respondent's physical problems. Davis Chaffee had the authority to approve contracts and prepare bids without consulting McCall. Chaffee was fired by Respondent in December, 1984. DOAH CASE NUMBER 85-4216 On September 27, 1984 Respondent contracted with Richard Loman to build an addition to Loman's residence at 783 Formosa Drive, Winter Park, Florida at a cost of approximately $20,000. Loman and Respondent discussed the commencement and completion date of the remodeling and Loman was told that the project would be completed within 45 days from approval of the plans and the signing of the contract. Loman paid Irven Construction $10,000 as a deposit, $500.00 on September 24, 1984 and $9,500 on October 2, 1984. In addition, Irven Construction received a contractor's draw of $3,333 on October 23, 1984 and $3,333 on November 5, 1984. As of November 5, 1984, the drywall, insulation, fixtures, toilet, vanity, heat and air, and the hot water heater remained to be completed. On January 16, 1985, the contract price was increased another $1,000 for additional electrical work which was requested by Loman. The work on the remodeling was progressing slowly and Loman repeatedly called Respondent to get someone out to complete the remodeling. Respondent repeatedly promised to send someone to complete the work. In February, 1985, a drywall person came out and completed the drywall. Loman received a letter dated February 1, 1985 from the Respondent. The letter indicated, among other things, that the Respondent was physically ill but had all intentions of complying with the contract and completing the remodeling and that he had a contractor who would contact Loman to arrange to complete the remodeling. Since the drywall person completed his work in February, 1985, no one has gone to the Loman's residence to complete the remodeling. No contractor has contacted Loman to arrange for the completion of the project and no money has been returned to Loman. At the time Irven Construction stopped work- on the Loman project, it was about 90% complete. Loman completed the job himself on June 1, 1985. Loman received, by certified mail, liens from Tillman's Plumbing and Jackson Drywall Service for the remodeling work done on his home under the contract with Respondent. Tillman's lien was $360 and Jackson Drywall's lien was $1,350. DOAH CASE NUMBER 85-4246 On August 29, 1985, Irven Construction entered into a contract with Stephen Dubin and his wife to remodel their family/living room at a cost of $7,200. In accordance with the modified specifications, electrical lights and an electrical fan were installed. James McCall, Respondent's superintendent completed most, if not all, of the electrical work. The project was completed and Irven Construction was paid in full. The Seminole County Building Department's records show that a building permit for the Dubin project was applied for, approved, and assigned a permit number, but never issued because it was not picked up. The Building Department's records also showed that no electrical permit was applied for. Respondent was required by the Seminole County Building Code to obtain a building permit before commencing the remodeling. After a building permit is issued, periodic inspections of the project site are required. Without a building permit, there are no inspections by the Building Department. During this period, the Respondent was having personal problems with the employee that was responsible for picking up the permit. The Respondent was unaware that the employee had failed to properly perform his duties by picking up the permit. Respondent was ill during this period and had very little input into the Dubin project.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED THAT: Respondent's license be suspended for a period of four (4) years, with the condition that he may be eligible to apply to the Board for reinstatement after a period of two (2) years and upon a showing satisfactory to the Board that his financial affairs are in good and sound condition and that he is physically capable of carrying on a contractor's business. Further, for the purposes of such an application for reinstatement, Respondent shall be required to appear before the Board for such questions as the Board feels appropriate and shall supply the Board with such documents as the Board feels necessary. DONE and ORDERED this 9th day of April, 1986, in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1986. COPIES FURNISHED: Errol H. Powell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Stuart G. Green, Esquire 712 East Washington Street Orlando, Florida 32801-2994 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street. Tallahassee, Florida 32301 James Linnan, Executive Director Department of Professional Regulation P. O. Box 2 Jacksonville, Florida 32202 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in Finding of Fact 1. Adopted in Findings of Fact 2 and 3. Adopted in Findings of Fact 2 and 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 7. Partially adopted in Finding of Fact 6. Matters not contained therein are rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as legal argument. Rejected as subordinate. Rejected as unnecessary and subordinate. Rejected as unnecessary and subordinate. Rejected as unnecessary and subordinate. Adopted in Finding of Fact 34. Adopted in Finding of Fact 34. Adopted in Finding of Fact 34. Adopted in Findings of Fact 37 and 38. Adopted in Finding of Fact 35. Adopted in Finding of Fact 36. Adopted in Finding of Fact 37. Adopted in Finding of Fact 37. Adopted in Finding of Fact 37. Adopted in Finding of Fact 38. Adopted in Finding of Fact 39. Adopted in Finding of Fact 39. Adopted in Finding of Fact 40. Adopted in Finding of Fact 40. Partially adopted in Finding of Fact 41. Matters not contained therein are rejected as subordinate. Adopted in Finding of Fact 41. Adopted in Finding of Fact 49. Adopted in Finding of Fact 49. Partially adopted in Finding of Fact 51. Matters not contained therein are rejected as subordinate and unnecessary. Rejected as subordinate and unnecessary. Rejected as subordinate and unnecessary. Adopted in Finding of Fact 50. Adopted in Finding of Fact 51. Adopted in Finding of Fact 51. Rejected as recitation of testimony. Adopted in Finding of Fact 51. Adopted in Finding of Fact 53. Rejected as a recitation of testimony. Adopted in Finding of Fact 42. Adopted in Finding of Fact 42. Adopted in Finding of Fact 42. Adopted in Finding of Fact 42. Adopted in Finding of Fact 42. Adopted in Finding of Fact 43. Adopted in Finding of Fact 44. Rejected as subordinate and unnecessary. Adopted in Finding of Fact 45. Adopted in Finding of Fact 46. Adopted in Finding of Fact 47. Adopted in Finding of Fact 47. Adopted in Finding of Fact 48. Adopted in Finding of Fact 48. Rejected as a recitation of testimony. Rejected as subordinate and unnecessary. Adopted in Finding of Fact 8. Adopted in Finding of Fact 9. Adopted in Finding of Fact 9. Adopted in Finding of Fact 8. Adopted in Finding of Fact 10. Adopted in Finding of Fact 11. Adopted in Finding of Fact 12. Adopted in Finding of Fact 18. Adopted in Finding of Fact 13. Adopted in Finding of Fact 13. Adopted in Finding of Fact 14. Adopted in Finding of Fact 14. Adopted in Finding of Fact 15. Adopted in Finding of Fact 15. Rejected as a recitation of testimony. Rejected as subordinate. Rejected as subordinate. Rejected as a recitation of testimony. Adopted in Finding of Fact 19. Adopted in Finding of Fact 19. Adopted in Finding of Fact 20. Adopted in Finding of Fact 20. Adopted in Finding of Fact 21. Adopted in Finding of Fact 21. Adopted in Finding of Fact 22. Adopted in Finding of Fact 23. Adopted in Finding of Fact 24. Adopted in Finding of Fact 24. Adopted in Finding of Fact 24. Partially adopted in Finding of Fact 25. Matters not contained therein are rejected as subordinate. Adopted in Finding of Fact 25. Adopted in Finding of Fact 26. Adopted in Finding of Fact 26. Adopted in Finding of Fact 27. Partially adopted in Findings of Fact 27 and 28. Matters not contained therein are rejected as not supported by competent and substantial evidence. Adopted in Finding of Fact 27. Rejected as a recitation of testimony and/or subordinate. Adopted in Finding of Fact-29. Adopted in Finding of Fact 29. Adopted in Finding of Fact 29. Adopted in Finding of Fact 29. Adopted in Finding of Fact 30. Adopted in Finding of Fact 30. Partially adopted in Findings of' Fact 31 and 32. Matters not contained therein are rejected as subordinate. Partially adopted in Findings of Fact 31 and 32. Matters not contained therein are rejected as subordinate. Adopted in Finding of Fact 32. Adopted in Finding of Fact 33. Adopted in Finding of Fact 32. Adopted in Finding of Fact 33. Adopted in Finding of Fact 33. Adopted in Finding of Fact 34.I Rejected as subordinate and unnecessary. Adopted in Finding of Fact 37. 111. Rejected as subordinate and unnecessary. 114. Rejected as subordinate and unnecessary. Rulings on Proposed Findings of fact submitted by the Respondent (None submitted).
The Issue Whether there is probable cause for petitioner to bring an action against respondents for violation of the Florida Deceptive and Unfair Trade Practices Act?
Findings Of Fact Rita Smith who, a friend testified, has "got to be" 90 years old, has owned the house at 1210 Alcaniz Street in Pensacola, Florida, at least since her husband died on March 20, 1982. Before he died, he gave her money to fix up the house, which she has rented. It needed a new roof, among other things. She spoke to respondent M. T. Motes after getting an advertisement for Mike's Painting & Contracting Company in the mail. It read: Painting -- Carpentry -- Remodeling Addition Carports Residential Specialist Prompt FREE Estimates (904)968-5912 ALL WORK GUARANTEED MIKE'S PAINTING & CONTRACTING CO. Post Office Box 261 Gonzalez, Florida 32560 Respondent himself--she knew him as "Mike"--seemed like he wanted to work so she sent him to take a look at what was involved. First she misdirected him to 1012 Alcaniz Street but the people who lived there told him there must be some mistake. The second time Mrs. Smith got the address right, and respondent Motes looked things over at the right house. They eventually agreed on a price of $2800, of which $1500 was to be paid in advance. On April 11, 1983, Charlie Freeman went down to the bank with Mrs. Smith to help her get the money and was present when it changed hands. Among the things Mr. Motes agreed to do in exchange for the $2800 was put on a new roof. As respondent's counsel conceded at hearing, there never was a written contract, but M. T. Motes did acknowledge in writing receiving "$1500 deposit toward repair of rental unit" from Rita Smith. He signed the receipt without mentioning Mike's Painting & Contracting Company. Respondent Motes and at least one helper worked on the house on April 12, 1983, and again on April 13, 1983. They patched the porch floor, put in some new rafters on the porch, and did some patching of the porch roof, replacing bad wood with good. After he had Mrs. Smith's $1500, Mr. Motes told Mr. Freeman that, although he was not a roofer, he would arrange for a roofer to do the roofing work, but the roof was never recovered. A. L. Cooper, an investigator for the Escambia County Construction Competency Board, inspected the house at 1210 Alcaniz Street on October 25, 1983, at petitioner's request. What had been accomplished there a man and a helper could do easily in two days. The going price for a job like the one Mr. Motes did ranges from $450 to $525. Mr. Motes, who is not licensed as a residential contractor, never obtained a building permit for the work he did for Mrs. Smith, which included "quite a few code violations." Mrs. Smith reached Mrs. Motes by telephone but did not succeed in her efforts to track down Mr. Motes. She made no payments beyond the initial one.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner find probable cause to initiate judicial proceedings against respondent M. T. Motes pursuant to Section 501.207(1), Florida Statutes (1981). That petitioner dismiss the administrative complaint filed against Mike's Painting and Contracting Company. DONE and ENTERED this 3rd day of February, 1984, in Tallahassee, Florida. ROBERT T. BENTON, II 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 3rd day of February, 1984. COPIES FURNISHED: William P. White, Jr., Esquire Assistant State Attorney Post Office Box 12726 Pensacola, Florida 32501 Bruce A. McDonald, Esquire Emmanuel, Sheppard & Condon Post Office Drawer 1271 Pensacola, Florida 32596 Curtis A. Golden, State Attorney First Judicial Circuit of Florida Post Office Box 12726 190 Governmental Center Pensacola, Florida 32501
Findings Of Fact Petitioner is the state agency charged, in conjunction with the Construction Industry Licensing Board, with the responsibility to prosecute Administrative Complaints pursuant to Chapters 489, 455, and 120, F.S. and the rules promulgated pursuant thereto. At all times material to the Administrative Complaints, Respondent, Leonard Leon Lynn, was licensed as a certified residential contractor in the State of Florida, having been issued license number CR C048007, and was registered to do business as Five Star Construction. He was first licensed in 1989. [DOAH Case No. 92-0593] In March, 1990, the Respondent contracted with Andrew Gudzak (Gudzak) to insulate the roof of, install a roof on, and install vinyl windows on Gudzak's screen porch. The contract price was $2,900.00. The Respondent performed the Gudzak job and was paid in full per a $1,000.00 deposit on March 23, 1990 and a $1,900.00 final payment on April 12, 1990. The Respondent stipulated that he failed to obtain the required permit for the Gudzak job in violation of the local building code, with the proviso that he was confused about where the controlling county line was located in relation to Gudzak's residence. The roof the Respondent installed on Gudzak's porch began leaking following completion. Gudzak contacted the Respondent concerning the leakage and improper closure of the windows installed by the Respondent, on approximately thirty-five days from the 25th of April to late August of 1990. The Respondent attempted to correct the leakage and windows numerous times without success. Gudzak retained an attorney who contacted the Respondent by letter on May 22, 1990. The Respondent last attempted to correct the leakage on July 16, 1990. Thereafter, Respondent refused to respond to Gudzak's requests. The leakage was never corrected. The Department of Professional Regulation has accumulated $58.00 in investigation costs, $1,142.00 in legal costs, and $9.00 in current year expenses associated with Case No. 92-0593 as of the date of Petitioner's Proposed Recommended Order. [DOAH Case No. 92-1494] In September, 1990, the Respondent contracted with Paul Rommel (Rommel) to construct a screened porch, with roof and skylights, on an existing patio. The contract price was $2,950.00. The Respondent substantially performed the Rommel job by September 21, 1990 and was paid in full per checks for $1,180.00 and $1,770.00. The Respondent stipulated that he failed to obtain the required permit for the Rommel job in violation of the local building code. After completion of the Rommel porch, the porch roof began to leak severely, and Rommel contacted the Respondent. The Respondent attempted to correct the leaks on several occasions without success. Eventually, the Respondent quit responding to Rommel's requests to correct the severe leakage. On December 4, 1990, the Respondent received a certified letter from Rommel requesting the Respondent address the problems with the roof. The Respondent did not respond to Rommel's written request. On December 17, 1990, an attorney representing Rommel sent the Respondent a certified letter requesting a refund of the contract amount. The Respondent did not respond thereto, and a judgment was entered against the Respondent on July 30, 1991 for $2,500.00. The Respondent was present at the civil action. As of the date of formal hearing, the Respondent had neither paid the aforementioned judgment nor corrected Rommel's porch. The Department of Professional Regulation has accumulated $134.60 in investigation costs, $1,037.80 in legal costs, $443.26 in current year expenses and $102.00 in prior accumulated costs associated with Case No. 92-1494 as of the date of Petitioner's Proposed Recommended Order.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That the Florida Construction Industry Licensing Board enter a Final Order. That finds Respondent guilty of violating Sections 489.129(1)(n) and 489.129(1)(m) F.S., penalizes Respondent by a fine of $1,000, and assesses $1,200.00 in investigation and prosecution costs in DOAH Case No. 92-0593; That finds Respondent guilty of violating Sections 489.129(1)(n) and 489.129(1)(m) F.S., penalizes Respondent by a fine of $1,000, and assesses $1,172.40 in investigation and prosecution costs in DOAH Case No. 92-1494; and That, in consideration of the cumulative nature of the two cases, revokes Respondent's license. RECOMMENDED this 24th day of February, 1993, at Tallahassee, Florida. ELLA JANE P. 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 24th day of February, 1993. APPENDIX TO RECOMMENDED ORDER 92-0593, 92-1494 The following constitute specific rulings, pursuant to S120.59 (2), F.S., upon the parties' respective proposed findings of fact (PFOF) Petitioner PFOF: 1-8 Accepted (Gudzak, DOAH Case No. 92-0593). 9-16 Accepted (Rommel, DOAH Case No. 92-1494). Respondent PFOF: Respondent has apparently confused the case numbers herein, since he refers to "Rommel" in his submittal numbered 92-0593 and "Gudzak" in his submittal numbered 92-1494. The undersigned has assumed that Respondent intended that the specific name was intended over the DOAH Case No. and has ruled upon the two proposals in that manner. Respondent also failed to number his proposals, so they have been ruled upon by paragraph as indicated. Gudzak proposals Paragraph 1 Rejected as introductory. Paragraphs 2-4 Not proven nor supported by the competent credible record evidence. The remainder is rejected as legal argument only. Rommel proposals Paragraph 1 Rejected as introductory. Next sentence Accepted. Next sentence Not proven or supported by the greater weight of the evidence. Even if proven, would not relieve Respondent of the responsibility to pull the permit. Remainder Rejected as mere legal argument except for the admission that Respondent acquiescence to the agency's affidavit of fees for both cases. That acquiescence has been accepted but modified pursuant to the conclusions of law stated. COPIES FURNISHED: G. W. Harrell, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Leonard Leon Lynn 6121 Sundew Court Jacksonville, FL 32244 Jack McRay, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Daniel O'Brien Executive Director Construction Industry Licensing Post Office Box 2 Jacksonville, FL 32202
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaints and, if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency charged with regulating the construction industry within the State of Florida. At all times material to the allegations of these cases, the Respondent was licensed by the Department as a certified general contractor, license number CG C007009. Additionally, due to the time period from which the Respondent held his license he was "grand- fathered" to perform roofing construction. The Respondent was the qualifying agent of O. Benitez & Associates, Inc., a Florida corporation. On November 13, 1997, the Respondent executed a contract with Maricel Alayon to construct a terrace for a home located at 1215 West 82nd Street, Hialeah, Florida. While Ms. Alayon referred to the structure as a "terrace," it was to be a covered (roofed) open porch attached to her home at the rear of the property. The price for the addition was $14,125.00. The contract that was prepared by the Respondent for Ms. Alayon's signature did not contain the Respondent's license number or a written notice of the consumer's rights under the Construction Industry's Recoveries Fund. Ms. Alayon paid the Respondent the full $14,125.00 on or about November 17, 1997. Despite having been paid the full amount, the Respondent did not complete the Alayon project. The work was begun on or about November 27, 1997, but was never finished. Ms. Alayon did not fire the Respondent, did not refuse access to her property, and never refused to pay the Respondent monies owed for the work. Curiously, the Respondent obtained the building permit for the Alayon project on January 27, 1998. The Respondent never called for a final inspection on the job and, as of March 29, 2001, a final passing inspection for the project had not been performed by building officials. In addition to the contract amount, Ms. Alayon paid $3,575.00 for materials that were used in the construction of the porch. The Respondent did not reimburse Ms. Alayon for that amount. In May of 1998, the Respondent began negotiations with Mr. and Mrs. Piloto for the construction of an addition to their home to include an in-ground swimming pool. From the beginning of the talks, Mr. Piloto advised the Respondent that the couple could only invest $38,000 for the remodeling work as that was the amount the bank had approved for the project. The Pilotos wanted to build a bedroom, an expanded bathroom, and a swimming pool at the rear of their home located at 750 West 73rd Place, Hialeah, Florida. Eventually the Respondent telephoned the Pilotos to advise them that they could get what they wanted within the budget set by the bank. The contract executed by the Pilotos called for the remodeling for a price of $37,890.00. The contract, prepared by the Respondent, did not contain the Respondent's license number or a notice of consumer's rights pursuant to the Construction Industries Recovery Fund. At all times material to the Piloto project, the Respondent did not hold a valid architect's license. In fact, in December of 1997, the Board of Architecture and Interior Design had fined the Respondent for having practiced architecture with a delinquent license. Nevertheless, the Respondent represented himself as an architect to the Pilotos and charged them for blueprints for the remodeling project. Moreover, the Respondent submitted the signed and sealed plans for the Piloto project to the Building Department in order to obtain a building permit for this project. Such plans were filed on or about August 12, 1998. Pursuant to their agreement with the Respondent, the Pilotos paid the Respondent a total of $26,664.00 for the project. In comparison, the value of the work performed by the Respondent did not exceed $10,000. The Respondent asked the Pilotos to increase the amount for the contract to $50,395.75, but they refused. Despite the fact that he had caused their home to be reduced to a dangerous condition (by virtue of exposed wiring and open walls), the Respondent refused to complete the work on the Piloto project for the contracted amount. Instead, he abandoned the project. The Pilotos did not fire the Respondent. They refused to increase the amount of the contract. The Pilotos did not stop the work or refuse workers access to the property. A lien was placed on the Piloto property by a subcontractor to whom the Respondent owed monies. The Pilotos were required to pay the subcontractor in order to satisfy the lien amount. The Respondent has failed or refused to repay the lien amount. The Respondent grossly under estimated the cost of remodeling the Piloto home. He did so either negligently or intentionally. The Piloto home was compromised by the demolition work done by the Respondent's crew. The Pilotos were faced with paying the additional monies to comply with the Respondent's demand or living with their home in an uninhabitable condition. They chose the latter. On or about May 11, 1999, the Respondent applied for and obtained a building permit to re-roof the home of Sam and Daisy Carpenter. The contract for the work was with Banos Remodeling Services, an unlicensed entity, not the Respondent or his company. The Respondent has been the subject of prior disciplinary actions filed by the Department. He settled such actions without admitting or denying the allegations against him. As to his architectural license, it is undisputed that at all times material to these cases, the Respondent did not hold a valid architect's license. The Petitioner has incurred expenses and costs in the investigation of and the prosecution of the instant cases against this Respondent. The Respondent provided no credible explanation for the failure to complete the work contracted for regarding the Alayon and Piloto homes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Construction Industry Licensing Board, enter a final order sustaining the violations outlined by the Conclusions of Law, imposing an administrative fine in the amount of $5000.00, requiring the Respondent to make restitution to the Pilotos and Ms. Alayon, requiring the Respondent to remit the costs of investigation and prosecution of these cases, and revoking the Respondent's license until all amounts are fully paid. DONE AND ENTERED this 23rd day of October, 2001, in Tallahassee, Leon County, Florida. ______________________________ J. D. PARRISH 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 23rd day of October, 2001. COPIES FURNISHED: Kathleen O'Dowd, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Hardy L. Roberts, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2201 Oscar S. Benitez 3894 Southwest 107th Avenue Miami, Florida 33165 Theodore R. Gay, Esquire Department of Business and Professional Regulation 401 Northwest Second Avenue Suite N-607 Miami, Florida 33128-1765
The Issue The issue in this case is whether Respondent, Wayne H. Wagie, committed the offenses alleged in an Administrative Complaint filed with Petitioner, the Department of Business and Professional Regulation, on August 11, 2004, and, if so, what penalty should be imposed.
Findings Of Fact The Parties. Petitioner, the Department of Business and Professional Regulation (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for, among other things, the licensure of individuals who wish to engage in contracting in the State of Florida; and the investigation and prosecution of complaints against individuals who have been so licensed. See Ch. 689, Fla. Stat (2005). Respondent, Wayne H. Wagie, is and has been at all times material hereto a licensed certified general contractor in Florida. Mr. Wagie was originally licensed as a certified general contractor on or about December 28, 1978, license number CGC 13331. At all times material hereto, the status of his license has been "Current, Active." At all times material, Mr. Wagie was the qualifying agent for Unified Construction Technologies, Inc (hereinafter referred to as "Unified Construction"), a Florida corporation. Unified Construction did not have a certificate of authority as a qualified business organization. The Department has jurisdiction over Mr. Wagie's license. The Spiegel Brothers. At the times material to this matter, Mr. Wagie engaged in a business arrangement with two brothers, Abraham and Yosef Spiegel (hereinafter referred to jointly as the "Spiegel Brothers), whereby Mr. Wagie allowed the Spiegel Brothers to use his general contractor's license number and qualifying number to pull permits for a company through which the Spiegel Brothers conducted construction business. The Spiegel Brothers' construction company was Mega Construction Group, Inc., d/b/a Mega Construction Group, Inc. (hereinafter referred to as "Mega Construction"). Pursuant to their agreement, Mega Construction, through the Spiegel Brothers, was to handle all aspects of any construction contracts the Spiegel Brothers were able to enter into, including negotiating the contract, handling funds received from customers, and performing all necessary work. The only function not to be carried out by the Spiegel Brothers or Mega Construction was to actually obtain the necessary building permits; that was Mr. Wagie's responsibility. In exchange for his services, Mr. Wagie was to receive a percentage of the sales price, with half paid upon execution of the contract and half after completion of the work. Neither of the Spiegel Brothers was a licensed general contractor in Florida. Nor was Mega Construction certified as a contractor qualified to do construction business in Florida. Mr. Wagie was aware of these facts. The Sicre Contract. In 2001, Candida Sicre owned and resided at a house located at 650 82nd Street, Miami Beach, Florida. Ms. Sicre was interested in adding a handicap accessible bathroom to her home and, when she received a flyer in the mail advertising Mega Construction, she contacted the Spiegel Brothers. On August 13, 2001, Ms. Sicre entered into a written contract with Mega Construction (hereinafter referred to as the "Sicre Contract"). Pursuant to the Sicre Contract, Mega Construction agreed to construct a new handicap-accessible bathroom for which Ms. Sicre agreed to pay a total of $15,762.00. As part of their contract, it was agreed that an air-conditioning unit would be relocated. While the relocation of the air-conditioning unit is listed as "1" and the construction of the new bathroom is listed as "2" in the Sicre Contract, in fact the relocation of the air-conditioning unit was a necessary component of the construction of the new bathroom, for the new bathroom was to be constructed from where the air-conditioning unit was to be relocated. Ms. Sicre paid a total of $7,762.00 on the agreed Sicre Contract price. On September 17, 2001, Mr. Wagie, pursuant to his agreement with the Spiegel Brothers, signed a building permit application required to complete the Sicre Contract. That application was filed with the City of Miami Beach building department on or about January 4, 2002. On the permit application, Unified Construction was listed as the "Company," Mr. Wagie was listed as "Qualifier," and Mr. Wagie's license number was listed as the "License No." under "Contractor Information". The permit application was approved by the City of Miami Beach on or about May 31, 2002, and permit number KB0201178 was issued. Pursuant to an agreement between the Spiegel Brothers and Ms. Sicre, the starting date for the Sicre Contract was postponed to August 15, 2002, just over a year after it had been entered into. At some time after the Sicre Contract was entered into, the air-conditioning unit was relocated as specified in the contract. Except for the relocation of the air-conditioning unit, no further work specified under the Sicre Contract was performed. The actual construction of the new bathroom was never started. Eventually, Ms. Sicre was told that the work would not be performed because Mega Construction was going to declare bankruptcy. After being told that the new bathroom would not be completed, Ms. Sicre sold her house. She attempted, however, to obtain a refund of some of the $7,762.00 she had paid Mega Construction. Eventually, Ms. Sicre learned of Mr. Wagie's involvement with the Spiegel Brothers and, through a series of negotiations, it was agreed that she would receive a refund of $2,000.00 through Mr. Wagie from the Spiegel Brothers. She was eventually given two $1,000.00 checks in furtherance of this agreement, but the checks ultimately "bounced." The only work performed on the Sicre Contract by Mega Construction was the drawing of a building permit and the relocation of the air-conditioning unit. For this work, Ms. Sicre paid a total of $7,762.00. Ultimately, Mega Construction, although beginning the project by relocating the air-conditioning unit, abandoned the project without its completion. Prior Disciplinary Action. On July 15, 1996, the Department filed a Final Order reflecting that a settlement stipulation had been approved by the Construction Industry Licensing Board (hereinafter referred to as the "Board"), pursuant to which Mr. Wagie agreed to pay an administrative fine in the amount of $250.00, plus investigative and legal costs in the amount of $368.30 to resolve charges against his license, which Mr. Wagie denied. The Department's Costs of Investigation and Prosecution. The Department has incurred $597.69 in the investigation and prosecution of this matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department: Finding that Wayne H. Wagie violated Section 489.129(1)(i), Florida Statutes (2000), as alleged in Counts I and III of the Administrative Complaint; and violated Section 489.129(1)(d), Florida Statutes (2000), as alleged in Count II of the Administrative Complaint; Dismissing Counts IV and V of the Administrative Complaint; and Imposing an administrative fine in the total amount of $3,250.00; requiring that Mr. Wagie pay Ms. Sicre $2,000.00 in restitution; requiring that Mr. Wagie pay $597.69 as the costs of the investigation and prosecution of this matter; and that his license be suspended for a period of two years. DONE AND ENTERED this 31st day of August, 2005, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 31st day of August, 2005. COPIES FURNISHED: Theodore R. Gay Assistant General Counsel Department of Business and Professional Regulation 8685 Northwest 53rd Terrace, Suite 100 Miami, Florida 33166 Wayne H. Wagie 220 Northeast 45th Street Miami, Florida 33137 Tim Vaccaro, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Whether respondent on several occasions aided an unlicensed contractor to engage in contracting by obtaining permits on respondent's license for contracting jobs performed by the unlicensed contractor; Whether respondent committed the statutory violations alleged; and If so, whether respondent's license should be suspended or revoked, or whether some other penalty should be imposed.
Findings Of Fact At all times material to the Administrative Complaint, respondent was a certified general contractor in Florida holding License No. CG C000572. Johnnie T. Thomas is the president of J. T. Thomas Construction Company. Mr. Thomas is not a licensed contractor in the State of Florida. Although respondent has used his license to qualify several corporations, the last being Julius Isaac & Association, Inc., respondent never qualified J. T. Thomas Construction Company. Indeed, J. T. Thomas Construction has never been qualified by any licensee. During the time period relevant to this action, J. T. Thomas Construction Company was the name used by Mr. Thomas to engage in the contracting business. On July 25, 1983, J. T. Thomas Construction Company contracted with Hazel N. Jones for the construction of a residence at 11729 Rock Hill Road, Thonotosassa, Florida, in Hillsborough County. Johnnie Thomas signed the contract on behalf of J. T. Thomas Construction Company as "President and Builder." Ms. Jones did not know that Mr. Thomas was unlicensed. James Montjoy drew the plans for the house and recommended Thomas as the builder. The total price for the house was $75,500. The house was started in September of 1983, and on January 30, 1984 final payment was made. After moving into the house, Ms. Jones discovered several problems. In June of 1984 an energy check found that the home was not properly insulated; however, this was apparently corrected in May of 1985. Ms. Jones had several other problems with the home and sent a "punch-list" to Mr. Thomas setting forth the items that needed to be corrected. Although Mr. Thomas admitted at the hearing that there were items that should have been corrected on the punch-list, he also admitted that he did not correct them because he disputed other claims of Ms. Jones. The building permit application for Ms. Jones' home was signed by the respondent. On the building permit application, the contractor was listed as Julius Isaac and Association, Inc. The building permit was issued on August 15, 1983. It listed Julius H. Isaac and Julius Isaac and Association, Inc. as the contractor. The building permit was signed by Julius H. Isaac as agent. Ms. Jones never met Mr. Isaac, never saw him and never knew that he was involved in any way in the construction of her home. In late 1984, Ms. Catherine Farragut, the owner of a building located at 1704 North Nebraska Avenue, Tampa, Florida, contracted with J. T. Thomas to have her building remodeled. Ms. Jones recommended Mr. Thomas to Ms. Farragut before Ms. Jones began to experience problems with Mr. Thomas. Ms. Farragut was not aware that Mr. Thomas was not a licensed contractor. The remodeling of the building was completed in early 1985. The permit for the interior remodeling of the offices at 1704 North Nebraska Avenue was issued on July 23, 1984 to Julius Isaac & Association. Ms. Farragut did see Isaac at the job site in the central parking area; however, Mr. Thomas never advised Ms. Farragut that respondent was involved with the project. On August 20, 1985 J. T. Thomas Construction Company contracted with Evelyn S. Williams to construct a residence at 3620 East North Bay Street, Tampa, Florida. The contract price for the home was 66,000 and payments by check were made to Johnnie Thomas in intervals. Construction on the home began in November 1985. Ms. Williams moved into the home in August of 1986. She discovered some problems with the house, and gave Mr. Thomas a list of the items that needed to be corrected. Mr. Thomas corrected all the items but one. Ms. Williams still has a problem with the roof getting moldy due to water retention. A permit was issued by the City of Tampa Building Department on November 20, 1985, for construction at 3620 East North Bay Street. The permit was issued to Julius Isaac and the contractor of record is stated as Julius Isaac d/b/a Julius Isaac & Associates. Ms. Williams never met Mr. Isaac or saw him; however, Ms. Williams did not go to the job site during construction since the mortgage company was supposed to periodically inspect the house during construction. Ms. Williams was not aware that Mr. Thomas was unlicensed. On August 28, 1986, J. T. Thomas Construction Company entered into a written contract with Ms. Verlie Nelson to construct a residence at 8105 Jad Drive for a price of $102,560. Ms. Nelson thought that Mr. Thomas was a licensed contractor. She never saw Mr. Isaac at the job site, however, she was rarely there because Sun Coast Federal Credit Union was paid to do the inspections. On October 16, 1986, respondent applied for a building permit for 8105 Jad Drive. John and Augusta Thomas were listed as the owners and Julius Isaac & Association, Inc., was listed as the general contractor for the project. On November 7, 1986, the permit was issued by the Hillsborough County Building Department. Julius H. Isaac was listed as the applicant and contractor. John and Augusta Thomas were listed as the owners of the property at 8105 Jad Drive. Mr. Thomas admitted that J. T. Thomas Construction Company built the homes for Ms. Jones, Ms. Nelson and Ms. Williams, and did the renovation on the building owned by Ms. Farragut. Mr. Thomas received the payments for the projects, hired and paid the subcontractors and supervised construction. He also managed the daily affairs of J. T. Thomas Construction Company. J. T. Thomas Construction Company was formed in 1971 under the name Thomas (J. T.) Construction Company. However, the company, as a corporate entity, was dissolved by proclamation in 1973. J. T. Thomas' brother Leslie was the secretary of the corporation and a licensed contractor. He obtained the building permits for the company until be became ill. Thereafter, respondent obtained the building permits for J. T. Thomas Construction Company. Respondent knew that Mr. Thomas was not licensed and could not get the permits himself. Respondent is not a salaried employee of J. T. Thomas Construction Company, and he received no compensation for his services although he was reimbursed for the actual cost of obtaining the permits. Other than obtaining the permits, respondent's only connection with Mr. Thomas' construction projects was to visit job sites before inspections or go to a site if Mr. Thomas asked for his help with a construction problem. However, there was no competent evidence establishing that respondent ever went to the particular job sites involved in this case. Respondent had no responsibilities in connection with the projects and had no authority to take any actions. In essence, respondent was simply "helping" a long time friend. Respondent has been licensed since 1968, and there was no evidence presented of any prior violations or any prior complaints.
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 respondent guilty of the act set forth in Section 489.129(e), Florida Statutes, and imposing an administrative fine of $1,500. DONE AND ENTERED this 27th day of May, 1988, in Tallahassee, Florida. DIANE A. GRUBBS 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 27th day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5586 Rulings on petitioner's proposed findings of fact by paragraph: 1-8 Accepted generally. COPIES FURNISHED: David L. Swanson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Julius H. Isaac 421 Ella Mae Avenue Tampa, Florida 33602 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 William O'Neil Stephen F. Hanlon, Esquire General Counsel BARNETT, BOLT & KIRKWOOD Department of Professional Post Office Box 3287 Regulation 100 Twiggs Street 130 North Monroe Street Sixth Floor Tallahassee, Florida 32399-0750 Tampa, Florida 33602
Findings Of Fact Petitioner is the state agency charged, in conjunction with the Construction Industry Licensing Board, with the responsibility for prosecuting Administrative Complaints pursuant to chapters 455 and 489, and the rules promulgated thereunder. In September, 1983, license number CR C012950 was issued to Respondent, David A. Taylor, as the qualifying agent for Energywise Homes, Inc., 3305 S.W. 1st Court, Deerfield Beach, FL 33441. License number CR C01295p remained in effect until June 30, 1987. License number CR C012950 was delinquent and invalid from July, 1987, through May 10, 1988. In July, 1987, license number CR C012950 was placed on a delinquent status for non-renewal and considered invalid. On April 19, 1988, Respondent applied for renewal and reinstatement of license number CR C012950. Respondent's application for renewal and reinstatement was approved May 11, 1989. At that time, license number CR C012950 was changed from a qualifying business to an individual license. In April, 1988, Respondent applied to the City of Sebastian, Florida Construction Board (the "City") for an occupational license in order to obtain building permits for jobs he had contracted in that jurisdiction. License number CR C012950 was delinquent and invalid at the time Respondent applied to the City for an occupational license and permits. Respondent presented an altered license to Ms. Kathryn Nappi, the person responsible for issuing occupational licenses for the City in April, 1988, for the purpose of obtaining building permits from the City. The typeface on the license presented by Respondent to Ms. Nappi does not match either that used on the bottom portion of the same license or the copy of the licenses admitted as Respondent's Exhibit 1. Further, the date used on the altered license is not a date normally used by the Construction Industry Licensing Board. Finally, the license presented by Respondent to Ms. Nappi indicated the license was held by Respondent individually rather than as qualifying agent for Energywise Homes, Inc. The testimony of the witnesses for Petitioner was consistent and credible. The procedures followed by Ms. Nappi and her supervisor, Mr. Bruce Cooper, Director of Community Development and Building Official for the City of Sebastian, were customary procedures followed in the ordinary course of their business. Neither witness had any discernible motive for fabricating the events to which they testified. Respondent presented the altered license to Ms. Nappi sometime in April, 1988, for the purpose of obtaining building permits for the five homes to be constructed in the City. Ms. Nappi noticed that the type on the top of the license submitted by Respondent did not match the bottom portion. She brought the discrepancy to the attention of Mr. Cooper. Mr. Cooper confirmed with the Department of Professional Regulation that the license submitted to Ms. Nappi by Respondent had been altered. Mr. Cooper set up a meeting between himself, Respondent, and two detectives to ascertain Respondent's position concerning the altered license. Mr. Cooper did not believe Respondent's position and placed the matter on the agenda for the May 3, 1988, meeting of the Sebastian Construction Board (the "Board") 3/ Respondent and the owner of the five homes for which permits were being sought appeared at the May 3, 1988, meeting of the Board. The Board voted to approve the building permits subject to the issuance of a valid license by the Department of Professional Regulation. The owner requested issuance of the permits because delay was causing his investment to dwindle. The Board also considered the fact that the properties were becoming an eyesore in the City. The Board voted to approve the permits, subject to Respondent obtaining a valid license, and leave the issue of the altered license to the Department of Professional Regulation. Respondent's testimony that he did not present an altered license for the purpose of obtaining building permits from the City, and that he had never previously seen the altered license, is rejected as not credible. Such testimony is inconsistent with statements by Respondent to Mr. Cooper and at the May 3, 1988, meeting of the Board, which were admitted in evidence as exceptions to hearsay under Section 90.8C3(18). Respondent's testimony is also inconsistent with the greater weight of evidence. Financial pressures caused by previous delays in obtaining permits provided a motive for Respondent to present an altered license to obtain building permits for the five homes to be constructed in the City. Previous attempts by others to obtain building permits for five homes to be constructed in the City had been unsuccessful. Respondent made several further attempts to obtain building permits for the five homes to be constructed in the City. The delays in obtaining the permits had caused the investment of the owner of the homes to dwindle. Furthermore, the homes were becoming an eyesore for the City. Respondent committed an act of fraud, deceit, and misconduct in April, 1988, when Respondent intentionally presented an altered license to Ms. Nappi to obtain building permits for the five homes to be constructed in the City. No evidence has been presented to support a finding that Respondent altered the license presented to Ms. Nappi. However, Respondent knew or should have known that the license submitted by him had been altered, and Respondent submitted the altered license for the purpose of obtaining the needed building permits. Even without the requisite intent for fraud, deceit, and misconduct, Respondent is not exonerated. Inadvertently presenting an altered license to Ms. Nappi in April, 1988, at a time when Respondent knew his license was delinquent and invalid constitutes gross negligence and incompetence in the practice of contracting.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of fraud, deceit, gross negligence, incompetency, or misconduct in the practice of contracting in violation of Section 489.129(1)(m). Florida Administrative Code Rule 21E-17.001 provides in relevant part: "The following guidelines Shall be used in disciplinary cases, absent aggravating or mitigating circumstances and subject to the other provisions of this Chapter. (emphasis added) * * * (19) 489.129(1)(m): Gross negligence, incompetence, and/or misconduct, fraud or deceit. (a) Causing no monetary harm to licensee's customer, and no physical harm to any person. First violation, $250 to $750 fine; repeat violation, $1,000 to $1,500 fine and 3 to 9 month suspension. Florida Administrative Code Rule 21E-17.002, describes aggravating and mitigating circumstances which may be considered in determining the penalty to be imposed in a particular proceeding. Petitioner produced no evidence of any aggravating circumstances other than the alleged violations of Sections 489.113 and 489.115. There was no evidence of monetary or other damage to the licensee's customer, actual job site violations, repetitive offenses, the number of complaints filed against Respondent, or actual damage to the licensee's customer. See Fla. Admin. Code Rule 21E-17.002(1),(2),(s),(6), and (8). Considering the absence of any aggravating factors, the length of time Respondent has practiced contracting without any complaint, the de minimis danger to the public, and the fact that the Board approved the permits sought by Respondent because of the beneficial effect the permits would have on the owner and the City, it is recommended that Respondent be fined $250. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 26th day of February, 1990. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1990.
