Findings Of Fact At all times material to this proceeding, the Respondent, Donald F. Royal, was licensed as a registered roofing contractor in the State of Florida, holding license number RC 0031831. During the times of the alleged violations, the Respondent was the sole qualifying agent for J & J Construction Company (the company.) The principals of the company were the Respondent and a man named James Jimenez. Both men sold jobs for the company and were responsible for overseeing some of the work of the company. The Respondent pulled permits for, and was primarily responsible for, the roofing work contracted by the company. But sometimes, when the company had more than one job going at the same time, the Respondent would be primarily responsible for overseeing one, and Jimenez would be primarily responsible for overseeing the other. The Respondent thought that Jimenez held a license of some kind that enabled him to do some kinds of minor renovation construction. The Respondent restricted his work to roofing and did not mind Jimenez doing some renovation work on the side, separate from the business of the company. But the Respondent understood that Jimenez' "side deals" would be done separately under Jimenez' own license and would not be part of the business of the company. On or about August 14, 1986, Jimenez entered into a contract on behalf of the company to build an addition, remodel and reroof the existing structure and roof the addition of the residence of Ernest and Mercedes Riccio located at 3117 West Henry Avenue, Tampa, Florida. The contract price was $18,999. Jimenez telephoned the Respondent about the job but only told him about the part of the contract that called for the existing roof to be torn off and reroofed. He told the Respondent that the contract price for the job was $3,800. The Respondent pulled a permit for what he thought was the job and started and finished what he thought was the work to be done. The Respondent personally was compensated approximately $700-$800 for his part in the reroofing job. When the Respondent was finished, Jimenez continued with the rest of the contract, which was to include roofing the addition, without telling the Respondent about it. Jimenez did not get very far before a Tampa building inspector happened past and, seeing unfamiliar work in process, inspected the job site. He discovered that the building permit displayed at the site had been altered to expand the work purportedly permitted to include building, in addition to the roofing work for which the Respondent had obtained a permit. Someone other than the Respondent (probably Jimenez although he denied it) altered the permit. The Respondent knew nothing about the contract (other than the reroofing that he did), the alteration of the permit, or the work Jimenez was doing after he left the site. When he discovered the permit violations, the building inspector "red- tagged" the entire job, and work stopped. That was only the beginning of the Riccios' problems. Further investigation revealed that the job would require not only a valid permit but also zoning variances and utility easements. Although the contract had called for the company to obtain all necessary permits, Jimenez and the Riccios agreed that the Riccios would apply for whatever else was necessary in their own names and that Jimenez would assist them. By the time work stopped, the Riccios already had paid the company $12,666 of the total contract price. Nonetheless, when Jimenez' minimal assistance did not resolve the Riccios' problems quickly, Jimenez decided that he already had put too much into the job, and he began to lose interest and make himself scarce. The Riccios finally got their necessary permits on January 26, 1987. They then approached Jimenez about the work to be done under the contract (and the matter of the remaining $6,333 draw). The Riccios and Jimenez agreed that the Riccios would provide the materials and supplies necessary to complete the work and the company would provide the labor. Despite these alternate arrangements, the company did not promptly finish the job. Eventually, the Riccios gave up on Jimenez and in April or May, 1987, began to deal directly with the company's former job superintendent, a man named Ray. To improve their chances of getting the job done (and reduce some of their extra expenses), the Riccios agreed to allow Ray to live in the house free of charge while they were doing the work. The job still did not get finished. Eventually, Mrs. Riccio and some of her relatives finished the job themselves. Even so, the Riccios wound up spending about $20,000, in addition to the $12,666 they had paid the company, to complete the job which the company had contracted to do for $18,999, total. The Respondent was not aware of any of Jimenez' dealings with the Riccios after the Respondent completed his reroofing work. The Respondent assumed that Jimenez had called for a final inspection and that the job had been completed satisfactorily. But in approximately February or March, 1987, the Respondent was contacted by a DPR investigator in connection with the Riccios' complaint against the company. He learned at about that time about Jimenez' other dealings with the Riccios. He also learned that the roof over the addition that had been built had failed inspection. The Respondent eventually corrected the deficiencies, and the roof passed final inspection on August 19, 1987. The Respondent attempts to excuse himself of any wrongdoing, saying that he had a right to delegate the supervision of jobs such as the Riccio job to Jimenez and that he himself was victimized by Jimenez, along with the Riccios. Respondent nonetheless negotiated with Jimenez through the end of the year 1987 in an attempt to come to an agreement to continue to do business together, but the negotiations finally failed. The Respondent was disciplined by the Construction Industry Licensing Board on January 7, 1988, for offenses which occurred during the same time frame in which the Riccio job took place.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Construction Industry Licensing Board enter a final order finding the Respondent, Donald F. Royal, guilty of violating Section 489.129(1)(j) and (m), Florida Statutes (1987), and imposing on him an administrative fine in the amount of $1,000. RECOMMENDED this 20th day of December, 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 December, 1988. COPIES FURNISHED: Mr. Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Donald F. Royal, pro se 8509 North 16 Street Tampa, Florida 33604 Bruce D. Lamb General Counsel Dept. of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issues framed by the Stipulated Issues, Facts and Exhibits are whether the license of David L. Norris as a certified general contractor should be disciplined for violation of: Section 489.129(1)(e), Florida Statutes (1983), by aiding an unlicensed person to evade the requirements of Chapter 489; Section 489.129(1)(f), Florida Statutes (1983), by knowingly conspiring with an unlicensed person to use Norris' certificate with the intent to evade the requirements of Chapter 489; Section 489.129(1)(j), Florida Statutes (1983), through the violation of Section 489.119, Florida Statutes (1983), by failing to qualify a firm through which Respondent was acting; Section 489.129(1)(g), Florida Statutes (1983), by acting in a name not on his license. At the final hearing, the Department amended the Administrative Complaint to dismiss the violations of Sections 489.129(1)(k) (abandoning a contracting job) and (m) (gross negligence or malpractice in contracting). The Department presented the two witnesses and the Respondent presented one witness. Twelve exhibits for the Department were received into evidence, and Mr. Norris offered one exhibit. The parties also stipulated to certain facts. (See Stipulated Issues, Facts and Exhibits filed May 15, 1986, Tr. 4-5)... /1
Findings Of Fact At all times material, Respondent, David L. Norris, was a certified general contractor, having been issued license numbers CG C011081 and CG CA11081, by the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board. (PX 2; Stp. F. #1, Administrative Complaint paragraph 2) At all times material, Mitch Kobylinski (Kobylinski) was unlicensed, and KMK Remodeling and Repair (KMK) had no qualifying agent for the purpose of engaging in contracting under Section 489.119, Florida Statutes (1983). At times Kobylinski has done business as KMK. (PX 1; Stp. F. #2; Tr. 18-21) At no time did the name Kobylinski or KMK appear on the license issued to Norris by the Construction Industry Licensing Board, nor did Norris qualify a business by that name. (Stp. F. #1, Administrative Complaint paragraph 9) Norris knew Kobylinski was not licensed to engage in contracting. (Stp. F. #1, Administrative Complaint paragraph 5) Kobylinski had worked for Norris on prior jobs, including working for Norris in the capacity as overseer on a large room addition. Norris had paid Kobylinski by the hour, by the day or by the type of work Kobylinski did. On one other job, Norris and Kobylinski shared the job in that Kobylinski was paid by the day, however, at the end both Respondent and Kobylinski split the profit. (Tr. 21,22) Kobylinski, not Norris, was initially contacted by a leasing agent to improve a structure for Marianne Tomlinson (Tomlinson) at 21073 Jog Road, Suite 21, Boca Raton, to become Tootsie's, a nail salon. Kobylinski indicated to the leasing agent and Ms. Tomlinson that he would have to perform the work with a general contractor. (Stp. F. #3; Tr. 24) Kobylinski presented a proposal on KMK's letterhead, dated August 17, 1984, to Tomlinson for the work to be done. (PX 3; Tr. 16, 18) Norris also submitted a proposal, dated August 15, 1984, to Tomlinson. The evidence does not show what letterhead was used by Norris, because the exhibit is a carbon copy. (RX 1) The proposed cost of the work from Kobylinski was $23,593.75 and from Norris was $23,600. Both proposals made separate provisions for formica work at additional prices of $10,600 and $10,500 respectively. (Stp. F. #4; PX 3; RX 1) Only Kobylinski's proposal was signed by Ms. Tomlinson. (PX 3; Tr. 39) Norris and Kobylinski agreed that Norris would act as the overseer of the job and that, as compensation, Norris initially was to receive $1,000.00 to begin the job (Tr. 26) and further monies depending upon time Norris expended on the job (Tr. 22-23, 28-29). They also agreed that Kobylinski was to deal exclusively with Tomlinson and be responsible for all monies on the job and paying subcontractors. (Tr. 26, 43) No agreement was signed between Norris and Tomlinson providing that Norris would be the contractor for the job. (Tr. 38-39) Norris applied for and was issued, on September 18, 1984, the building permit for the Tomlinson job. (PX 4,5; Stp. F. #1, Administrative Complaint paragraph 6; Tr. 39) Norris contacted the electrician, at the initial stage of the job, for the electrical work. (Tr. 56) A certificate of occupancy was issued for the job. (Stp. F. #6; Tr. 46) Tomlinson made all payments for the construction work by checks payable to Kobylinski, drawn on Tomlinson's business account for Tootsie's. (PX 7; Tr. 30) Near the end of the job, Tomlinson gave Kobylinski a check, dated December, 1984, for $4,000.00. There were not sufficient funds in the account for Kobylinski to cash the check. Kobylinski returned to Tomlinson with the check, and Tomlinson issued him a replacement check for $2,000.00. She requested the return of the $4,000.00 check to her, but Kobylinski had not brought that check with him. At this point in time, the working relationship between Kobylinski and Tomlinson broke down. (PX 7; Tr. 31,32) Tomlinson submitted her punch list, dated December 17, 1984, to Norris. On it she identified him as the contractor for her job and stated she wanted to make the final payment to him. (PX 6) On January 20, 1985, due to problems with the punch list and remaining payment, Tomlinson and Norris met. As a result of that meeting, they reached an agreement dated January 20, 1985, as to what remained to be paid, viz., $4,113.75, and what work remained to be done. The August 17th agreement between Kobylinski and Tomlinson was referenced in the agreement of January 20, 1985. (PX 8; Tr. 45) By January 20, 1985, Kobylinski would have received all the monies for the cost of the work, according to the August 17th agreement, if the $4,113.75 were paid by Tomlinson. (Stp. F. #5) On January 21, 1985, Norris filed a claim of lien against the Tomlinson job. The lien indicated that the total value of the work was $23,593.75 (which was the cost of construction according to the contract with Kobylinski) and that the amount unpaid was $4,113.75. Norris filed the lien because, after signing the agreement of January 20, 1985, he and Tomlinson had further disagreements. (PX 9; Tr, 46) In a letter to Norris, dated April 23, 1985, in an attempt to get Respondent to release his lien, Tomlinson indicated that she had contracted with Kobylinski, not Norris, to do the work for her. (PX 11) As compared to the compensation received by Norris, Kobylinski has received over one-half the money from the Tomlinson job. (Tr. 28)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent be found guilty as charged in the Administrative Complaint, as amended at the final hearing, and that an administrative fine of $1,000.00 be imposed. DONE AND ORDERED this 9th day of October 1986 in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 1986.
The Issue Whether the Respondent committed the violations alleged in the Amended Administrative Complaint dated July 15, 1998, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Business and Professional Regulation is the state agency responsible for investigating and prosecuting complaints made to the Department for violations of Chapter 489, Part I, Florida Statutes. Sections 489.131(7)(e) and 455.225, Florida Statutes. Pursuant to Section 489.129(1), the Construction Industry Licensing Board ("Board") is the entity responsible for imposing discipline for any of the violations set forth in that section. At all times material to this proceeding, Mr. Peters was licensed by the Board as a certified roofing contractor, having been issued license number CC C029551. This license authorized him to engage in business as a roofing contractor as an individual and not as the qualifying agent of any business entity. Victor Sher owned and resided in a home located at East Tropical Way in Plantation, Broward County, Florida. On or about June 9, 1993, and July 1, 1993, Mr. Sher accepted two written proposals to replace the roof on his home, which proposals were submitted to him by R. J. Bonneau on behalf of RJB International. The proposals were signed by Mr. Sher and by "R. J. Bonneau, P.E., for the firm." Pursuant to these contracts, Mr. Sher paid a deposit in the amount of $5,500 to RJB International by check dated June 7, 1993; and, by check dated July 1, 1993, Mr. Sher paid RJB International an additional $800. Also, by check dated July 1, 1993, Mr. Sher paid Monier, a roof tile supplier, $5,738.35 for materials. At some point after the first contract between Mr. Sher and RJB International was executed, Mr. Bonneau asked Mr. Peters to submit an estimate of the cost of re-roofing Mr. Sher's house. Mr. Peters submitted an estimate of $16,520 based on specifications provided by Mr. Bonneau,1 and Mr. Bonneau accepted the estimate. It was Mr. Peters' understanding that RJB International was the general contractor for the project, operating under a contract with Mr. Sher, and that he was the roofing subcontractor for the project, operating under a "contract" with RJB International based on Mr. Bonneau's acceptance of his estimate for the re-roofing work. He expected to be paid by RJB International. On or about June 22, 1993, Mr. Peters obtained a building permit from the City of Plantation for the roof replacement project on Mr. Sher's residence. Mr. Peters began working on the Sher re-roofing project on or about June 23, 1993. By checks dated July 23, August 16, August 19, and August 23, 1993, Mr. Sher paid Mr. Peters $800, $2,432, $2,000, and $1,000, respectively, totaling $6,232. Mr. Peters was surprised to receive payment directly from Mr. Sher, but he assumed that that was the arrangement between Mr. Sher and RJB International. He never received any of the $6,200 Mr. Sher paid to RJB International. Mr. Peters worked on the project until late August or early September 1993, when he stopped working on the project because he had not received payment for the work completed to date. Mr. Peters requested payment from Mr. Sher, only to be referred to RJB International, which in turn, referred him to Mr. Sher. When Mr. Peters stopped working on the Sher residence, he advised Mr. Sher that he would complete the work as soon as he received the payments he considered due. Mr. Peters estimated that, when he left the job, $1,000 to $1,500 worth of work remained to complete the re-roofing project. He did not hear anything more from Mr. Sher or RJB International, and, in 1995, he moved to Ohio. After Mr. Peters stopped work on Mr. Sher's roof, Mr. Sher obtained an owner's building permit and completed the project. In September 1994, Mr. Sher filed a five-count complaint against Mr. Peters and Rosaire J. Bonneau d/b/a RJB International in the Circuit Court of the Seventeenth Judicial Circuit in Broward County, Florida, in which he sought to recover damages he allegedly suffered as a result of re-roofing project; three counts of the complaint, breach of contract, negligence, and conversion, named only Mr. Peters as defendant. A default was entered against Mr. Peters, and, in a final judgment entered on the default on May 19, 1995, Mr. Peters was ordered to pay to Mr. Sher $28,142.70 in damages, plus $1,740.00 in attorney's fees and costs, for a total of $29,882.70, with interest accruing on this sum at the rate of eight percent per year. In addition, Mr. Peters was assessed $4,447.45 in prejudgment interest. Mr. Peters was listed on the judgment as a person to whom a copy was furnished, but he did not receive the copy. Mr. Peters first learned of the existence of the judgment in October 1997, when he received a copy of the Department's Administrative Complaint dated May 31, 1996. In late 1997 or early 1998, Mr. Peters received notification of the judgment from another source, and he also received a letter from Mr. Sher's insurance company advising him that they had paid Mr. Sher approximately $30,000 in damages and were looking to Mr. Peters for reimbursement. Mr. Peters subsequently retained an attorney to try to negotiate with Mr. Sher. Mr. Peters was willing to pay $1,000 to satisfy the judgment because he believed that the roof could have been finished for that amount. Mr. Sher did not accept the offer. In a letter to Mr. Peter's attorney dated August 26, 1998, Mr. Sher's attorney enclosed a copy of the judgment against Mr. Peters and indicated that his client would be willing to negotiate a payment arrangement with Mr. Peters. At the time of the final hearing, Mr. Peters had not satisfied the judgment in whole or in part or made any arrangements with Mr. Sher for payment of the award; Mr. Peters had not moved to set aside, vacate, or discharge the judgment in bankruptcy; and he had not appealed the judgment.2 Mr. Peters has been subject to two previous disciplinary actions relating to his state certification as a roofing contractor. The first disciplinary action against Mr. Peters resulted in entry of a final order in January 1988, in which he was found guilty of contracting in a name not on his license and of failing to qualify a business organization; an administrative fine of $1,000 was imposed. The second disciplinary action resulted in entry of a final order in January 1994, in which he was found guilty of failing to have his license number on a contract and imposing an administrative fine of $100. The Department provided an affidavit at the hearing in which it claimed that it had incurred costs of investigating and prosecuting this case totaling $879.35, excluding legal costs.
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: Dismissing Counts I through VI of the Amended Administrative Complaint against Steve G. Peters; Finding Mr. Peters guilty of having violated Section 489.129(1)(r), Florida Statutes, as alleged in Count VII of the Amended Administrative Complaint; Imposing an administrative fine on Mr. Peters in the amount of $2,000; Requiring that Mr. Peters pay all reasonable costs of investigation and prosecution associated with the Department of Business and Professional Regulation's investigation and prosecution of the charges set forth in the Amended Administrative Complaint; and Requiring that Mr. Peters either pay restitution to Victor Sher in the amount of $28,142.70 or, in the alternative, provide proof of satisfaction of the May 9, 1995, civil judgment. DONE AND ENTERED this 16th day of August, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (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 16th day of August, 1999.
Findings Of Fact At all material times, the Respondent Morris Marder was a registered building contractor, having been issued license number RB 0004509. On March 4, 1980, the Respondent Marder contracted with Erwin and Joan Ravich to convert the garage of the Ravich home into a family room. The March 4, 1980 contract between the Raviches and Marder, who was also doing business as "Home Remodeler Morris Marder", 1/ was signed by the Raviches and accepted by M. Marder. An undated addendum to the contract, which was prepared by the Raviches' attorney, was signed by the Raviches and Dan Rossman, a salesman and contract estimator for the Respondent Marder. However, no evidence was presented that the Respondent Marder had knowledge of or signed the addendum, which required completion of the project by an unspecified date. The execution of the addendum delayed beginning construction on the project until May of 1980. The Respondent Marder subcontracted the performance of work on the Ravich job to Ken Nieset, who with his brother, Steve, a licensed general contractor, was doing business as Brothers Two Construction. During the course of the project, Nieset received three of the four payments made under the contract directly from the Raviches. Although Nieset worked for the Respondent previously, he was neither Marder's foreman nor employee. When additional subcontractors were required, they were hired for the Ravich job by Nieset. The Raviches paid a total of $9,190 under the contract. The first payment of $1,190 was made directly to Home Remodeler on May 3, 1980, the approximate date that work on the project actually began. A partial release of lien was furnished by Morris Marder to Erwin Ravich on May 6, 1980 based on the first payment. The second payment was made by Erwin Ravich on June 20, 1980 for $2,500. This check was made payable to Ken Nieset per authorization of lien furnished on June 20, 1980, in connection with the second payment. 2/ On June 27, 1980 and July 11, 1980, checks were issued to Ken Nieset by the Raviches for $3,500 and $2,000, respectively. The Raviches' received a release of lien for $2,000 from Nieset, but did not obtain a release of lien for the $3,500 payment. The release of lien for the $2,000 payment executed by Nieset did not involve Home Remodeler or the Respondent Marder. After receiving payments totaling $5,500 directly from the Raviches, Nieset abandoned the project. During the course of the Ravich job, the Respondent Marder employed Jorge Gamez, a draftsman/supervisor, who he believed was supervising the Ravich job. However, Gamez' involvement with the job was limited to drawing the plans and did not include supervising construction, since he was not a licensed general contractor. King Cole Plumbing, a state licensed contractor, subcontracted with Nieset to install the plumbing and septic tank at the job site. When King Cole left the job, the rough plumbing was installed and all that remained on the job was interior finishing. The septic tank with an appropriate cover was in place and all work performed by King Cole had passed inspection. The septic tank cover originally agreed to by the parties was required to be changed to a heavier type when the Raviches altered their plans and decided to continue using their driveway. This change resulted in a $512 charge from Sun Gold Industries, who supplied the new cover. Additionally, the original contract was modified to add higher grade plumbing fixtures, lighting fixtures, and tile. In August, 1980, the Respondent Marder entered Saint Frances Hospital for treatment of phlebitis. At the same time, Rossman, Marder's employee, left for vacation in California for seven to eight weeks. As a consequence, the Ravich job was delayed and an unauthorized payment of $2,500 to Nieset was made without securing the approval of the Respondent Marder or Rossman. The Respondent Marder calculated that approximately $2,000 was due as the balance of the job and an added $1,500 was due for extras to the contract. Faced with a substantial loss, the Respondent Marder contacted the Raviches and their attorney in August, 1980, and offered to finish the job and pay for the specified extras in return for Ravich placing $4,500 in escrow with his attorney. Ravich's attorney declined the Respondent's offer and ordered him off the job site. Subsequently, Dade County cancelled the Respondent's building permits, which effectively prohibited him from completing the work at the site. Subsequently, a lien was filed against the Ravich job by King Cole Plumbing for nonpayment of monies due from Ken Nieset. The lien was determined to have been filed in violation of Florida's Mechanics Lien Law and was voluntarily removed. The work performed by the Respondent and his subcontractors prior to being ordered off the job was satisfactory and passed periodic inspection by the Dade County Building Department. The charges in this administrative proceeding formed the basis of action taken against the Respondent by the Dade County Division of Construction Trades Qualifying Board on September 11, 1981, which resulted in revocation of the Respondent's certificate as a subgeneral building contractor in Dade County. The Respondent Marder has been in the construction business since 1954 and licensed as a general contractor in Florida since 1968. Other than the instant case, the Respondent has never been forced off a job. He has been in business in South Florida for many years and has been involved in thousands of construction jobs.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Petitioner Construction Industry Licensing Board enter a Final Order suspending the Respondent's license for a period of six (6) months. DONE and ENTERED this 27th day of September, 1983, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1983.
The Issue Whether the respondent committed the violations alleged in the Administrative Complaint, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Business and Professional Regulation is the state agency responsible for investigating and prosecuting complaints made to the Department for violations of the requirements of chapter 489, part I, Florida Statutes. Sections 489.131(7)(e) and 455.225, Fla. Stat. Pursuant to section 489.129(1), the Construction Industry Licensing Board ("Board") is the entity responsible for imposing discipline for the violations set out in that section. At all times material to this case, Mr. Cote was a certified general contractor operating under License Number CGC006199 issued by the Construction Industry Licensing Board. Mr. Cote currently holds this license, and he has been a licensed general contractor since 1973. At all times material to this case, Mr. Cote was the licensed qualifying agent for JLC Enterprises, Inc. On January 12, 1995, Noel Mais, on behalf of Noel Mais Roofing, contracted with Judith Braun to re-roof property she owned located at 8914 Northwest 26th Court, Coral Springs, Florida. The contract price was $7,000.00, with $3,000.00 required as a down-payment, $3,000.00 to be paid after the roof was dried in, and $1,000.00 to be paid on completion of the project. Neither Mr. Cote nor JLC Enterprises, Inc., was a party to this contract. In late January, 1995, Mr. Mais approached Mr. Cote and requested that he apply for the necessary building permit from the City of Coral Springs. He provided to Mr. Cote a workers' compensation waiver and exemption, a Certificate of Insurance for general commercial liability insurance, and a Certificate of Competency issued by Broward County, Florida, with an expiration date of August 31, 1995. Mr. Mais also told Mr. Cote that he had submitted all of the papers necessary to register his Broward County Certificate of Competency with the state but had not yet received his registration. Mr. Cote relied on the documents and the representations of Mr. Mais regarding his registration status with the state. On or about February 1, 1995,1 Mr. Cote submitted an application to the City of Coral Springs for a building permit to re-roof property owned by Ms. Braun and located at 8914 Northwest 26th Court, Coral Springs, Florida, naming JLC Enterprises, Inc., as the contractor and identifying the estimated cost of the project at $7,000.00. Mr. Mais gave Mr. Cote $300.00 when he applied for the permit. Mr. Cote used $150.00 of this money to pay the permit application fee and $60.00 to pay for two re- inspections which had to be done on the roof. On or about February 17, 1995, the City of Coral Springs issued Permit Number 95-443.2 Mr. Mais commenced work on the project a few weeks after the contract was signed, but before Mr. Cote applied for the permit. According to Ms. Braun, Mr. Mais started "like gangbusters" and quickly stripped the old tiles off of the roof and applied the tar paper. After Mr. Cote agreed to apply for the permit, he told Mr. Mais not to work on the project until the permit was issued. According to Mr. Cote, Mr. Mais returned to work the day after the permit was issued and, the "next day," the job failed inspection because the nail spacing was not consistent with the new code. Mr. Mais re-nailed the roof according to code, but it failed re-inspection because the flashing was not painted. This was done, and the job passed a second re-inspection. Mr. Cote looked in on the job a couple of times after this and saw that nothing was being done. He contacted Mr. Mais and asked why he was not working on the project, and Mr. Mais told him that he was waiting for Ms. Braun to give him some money so he could buy the tiles. When Ms. Braun called Mr. Cote and complained that no tile had been delivered, he went to Mr. Mais's home and insisted that he "get some tile on that roof." The next day, Mr. Mais brought a load of tiles and piled them on the roof.3 Ms. Braun paid Noel Mais the $3,000.00 down-payment specified in the contract by a check dated January 12, 1995, the day the contract was executed. Then, notwithstanding the payment schedule stated in the contract, Ms. Braun paid Mr. Mais $3,000.00 by check dated January 25, 1995. She paid Mr. Mais the remaining $1,000.00 due under the contract by checks dated March 28 and 31, 1995, and April 13, 1995. After receiving full payment, Mr. Mais abandoned the job, and, when Ms. Braun told Mr. Cote she had paid Noel Mais in full for the job, Mr. Cote refused to finish the work because he had not received any portion of the payment. In November, 1995, Ms. Braun contracted with R. J. Chambers Roofing, Inc., to complete the work on her roof for $4,500.00. The work was completed, and she paid Mr. Chambers the contract price. The evidence presented by the Department is sufficient to establish that Mr. Cote knew that Mr. Mais was not registered with the State of Florida as a roofing contractor and that Mr. Cote stated on the permit application that his company, JLC Enterprises, Inc., was the contractor for the Braun re-roofing job even though he was not a party to the contract.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board issue a Final Order finding that Jacques Cote violated section 489.129(1)(e) and (n), Florida Statutes; imposing an administrative fine in the total amount of $1,000.00, consisting of a $500.00 fine for each of the two violations; assessing the costs of investigating and prosecuting the violations; and requiring Mr. Cote to make restitution to Judith Braun in the amount of $1,000.00. DONE AND ENTERED this 6th day of May, 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1997.
The Issue The issue presented for decision herein is whether or not the Respondent, David H. Tinius, unlawfully abandoned a construction project; diverted funds received for completion of a construction project and thereby failed to fulfill his contractual obligations.
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, the following relevant facts are found. By its administrative complaint filed herein signed October 6, 1982, the Petitioner, Construction Industry Licensing Board, seeks to suspend, revoke or take other disciplinary action against the Respondent's registered building contractor's license. During times material herein, Respondent was a registered building contractor and has been issued license No. RB0024083. On approximately April 20, 1978, Respondent entered into a contract with Jess Marks to build a residence in Tamarac, Florida, for the sum of $46,551. Respondent commenced construction of the Mark's residence but left the site when it was approximately forty percent complete. At that time, Respondent had received approximately $44,000 of the contract sum. Jess Marks completed the construction of his residence by hiring another contractor to complete the project and expended approximately $50,000 over and above the contract price as agreed upon by the Respondent to complete his residence. Respondent never returned any of the monies received from the Marks for completion of the residence. On approximately April 24, 1978, Respondent entered into a contract with Abe Abrahams to construct a residence in Tamarac, Florida, for the sum of $30,473. Respondent left the Abrahams' project after he had received $6,000 and had completed approximately ten percent of the work on the Abrahams' residence. Respondent did not return to the site nor did he return any of the monies received from the Abrahams for the construction of their residence (See Petitioner's Composite Exhibit No. 5). The Abrahams had to pay for supplies and material bought for the project by the Respondent and which reportedly had been paid, according to Respondent. THE RESPONDENT'S POSITION As noted hereinabove, the Respondent did not appear to contest or otherwise refute the allegations contained in the administrative complaint filed herein. However, Respondent, through counsel, filed an answer which admitted the complaint allegations filed herein.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, hereby RECOMMENDED that the Respondent's registered building contractor's license No. RB0024083 be REVOKED. DONE and RECOMMENDED this 29th day of August, 1983 in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1983 COPIES FURNISHED: Michael J. Cohen, Esquire 2715 East Oakland Park Boulevard Suite 101 Fort Lauderdale, Florida 33306 David H. Tinius 4420 Northwest 36th Court Lauderdale Lakes, Florida 33309 David H. Tinius Post Office Box 6338 Charlotte Amalil St. Thomas, U.S.V.I. 00801 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact At all times relevant hereto, Respondent was licensed as a registered building contractor and as a registered general contractor. On or about August 4, 1982, Hoffman, representing B & B Constructors, Inc., contracted with Vernon Swanger to build an addition to the Swanger residence at 4412 West Lelia Avenue, Tampa, Florida. The contract price for the addition to the Swanger residence was $9,150. On August 4, 1982, Swanger made the initial payment to Hoffman of $3,000 by check on this contract. Prior to the signing of this contract, Hoffman had contacted Respondent, who agreed to pull the permit for this project and who signed a blank proposal which was subsequently completed, executed by Swanger and Hoffman on 4 August 1982, and became Exhibit 2 in these proceedings. On or about August 16, 1982, Respondent obtained a permit for the addition to the Swanger residence from the City of Tampa Building Department showing Respondent as the licensed contractor for the job. Although Respondent signed the stipulation of facts that "All or the greater part of the $3,000.00 which was the first or initial payment on the contract for the Swanger addition was diverted from the construction work," Hoffman testified in Exhibit 25 that he used the $3,000 to buy materials for the project and to pay his (Hoffman's) salary for his work on the project. Under the facts here presented, Hoffman was the only one who knew for what this $3,000 had been used. In his deposition Hoffman testified that an excessive number of rainy days resulted in cost overruns resulting in insufficient money to complete the project. At no time relevant hereto was Hoffman of B & B Constructors, Inc., licensed as a contractor by the State of Florida. Respondent visited the Swanger residence once or twice while the work was in process, but all materials were ordered by Hoffman, all subcontractors were hired by Hoffman or Swanger, Hoffman was the one supervising the project, and Respondent's participation and supervision was, at best, pro forma. At no time was Respondent the qualifying agent for B & B Constructors, Inc., although Respondent briefly considered acquiring B & B Constructors, Inc., at or about the time the contract with Swanger was negotiated. The City of Tampa, Florida, is the local government with jurisdiction of the area, which is part of Hillsborough County, where Respondent is qualified as a licensed contractor. On or about January 11, 1983, as the result of a complaint filed by Swanger, Respondent's license to practice contracting in Tampa was revoked by the City of Tampa Unified Construction Trades Board. Respondent testified that he paid for the permit pulled for the Swanger project out of his own pocket and was never reimbursed by Hoffman. However, in Exhibit 25, Hoffman testified that he gave Respondent $100 in cash with which to pull the permit and his agreement with Respondent was to pay Respondent 3 percent of the contract price to pull the permit as licensed contractor.
Recommendation From the foregoing it is concluded that Respondent is guilty of all charges alleged except violation of Section 489.129(1)(h), Florida Statutes, involving diversion of funds. In view of Respondent's voluntary inactivation of his license since June 1983 it is recommended that Respondent's license be suspended for six (6) months from the date the Construction Industry Licensing Board enters its final order in this case. DONE AND ENTERED this 19th day of October 1984 at Tallahassee, Florida. K. N. AYERS 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 19th day of October 1984. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 George W. Brown 11222 Russell Drive Seffner, Florida 33584 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Board of Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202
The Issue The issue for consideration in this case is whether Respondent's license as a certified building contractor in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Construction Industry Licensing Board was the state agency responsible for the licensing and certification of building contractors, and the regulation of the construction industry in this state. Respondent, Kenneth McDuff Roesch, III, was certified as a building contractor under license number CB C057040, issued initially on December 20, 1993. On March 20, 1998, he changed the status of his license from "Active d/b/a individual" to "Active qualifying Roesch Housemovers, Inc." (RHI). The evidence does not indicate exactly what the relationship between Respondent and RHI was prior to the contract in issue here. Although Respondent's name does not appear on the contract or on any of the other documentation relevant hereto, at hearing he freely indicated his participation in the management of RHI and his responsibility for actions taken by the company. In September 1996 the City of St. Petersburg advised David Maffo that because of the effects of tropical storm Josephine, he would either have to elevate his house in St. Petersburg or tear it down. On November 22, 1996, Mr. And Mrs. Maffo entered into a contract with RHI to raise by five feet their residence located at 8211 Carolyn Street in St. Petersburg and install a new solid foundation. The price for the contracted work was $23,500, with $11,500 due at the signing of the agreement. The contract form reflects that RHI had been bonded and licensed house movers since 1934, but neither Respondent's license number nor his certification number appears on the contract agreement. The contract agreement was signed by Mark Roesch, Respondent's brother, for RHI. Respondent's name does not appear on the contract form. RHI submitted plans for the work called for under the contract to the Building Department of the City of St. Petersburg on February 26, 1997. The application form was signed for the company by Mark Roesch, Respondent's brother. That same date, February 26, 1997, a permit was issued for the work called for under the contract and the application. The contractor was listed as Roesch Housemovers, Inc. on both the application for the permit and the permit. Mark Roesch was the representative of RHI who signed the application for the permit. According to Mr. Maffo, work on the project started on January 28, 1997, prior to the issuance of the permit, at which time Mr. Maffo paid $4,000 to a representative of RHI. Mr. Maffo paid RHI an additional $10,000 on January 30, 1997, and $5,000 more on March 25, 1997, for a total of $19,000. On February 27, 1997, Glenn Savell, the chief building inspector for St. Petersburg, inspected the work being done by RHI and issued a red tag because there was no footer ground and vertical steel was not tied to the footer steel. Neither Respondent nor any of his employees thereafter called the building department for a final inspection subsequent to the issuance of the red tag, and in March 1997 Respondent advised the Maffos that the work called for under the contract had been completed. Mr. Maffo immediately informed Respondent that the project had not undergone a final inspection, and as a result, the house could not be reoccupied. Mr. Savell again inspected the property on June 12, 1997, and again issued a red tag, this time demanding that Respondent obtain a certification from a structural engineer that the foundation and piers met specifications. Mr. Roesch was aware of the issuance of that red tag, but took no action to obtain the required certificate at that time. On June 25, 1997, Mr. Maffo retained Austin Engineering, Inc., to perform an inspection of the project and paid the firm a fee of $1,275.00. Austin's report, a copy of which was given to Respondent, indicated that the project as accomplished by RHI was not acceptable. Upon receipt of this report, Mr. Maffo and Respondent met to discuss it, and Respondent gave Maffo sufficient assurances so that he, Maffo, started a renovation of the interior of the home to correct the damage done by the storm. However, Maffo did not complete them because all assurances made by Respondent did not come about. At the end of July 1997, Mr. Savell's supervisor, Mr. Hill, directed Respondent by letter to hire a structural engineer of his choice to evaluate the project. It was implied that if Respondent's engineer approved the work, the final approval would be issued. More than a year later, on October 8, 1998, Benson Engineering, Inc., the structural engineering firm retained by Respondent in response to Mr. Hill's letter, visited the masonry foundation and support walls and piers done at the Maffo house, and on October 16, 1998, submitted its report approving the project. Based on this approval, Mr. Savell, for the City, issued final approval even though he did not again personally inspect the work. Petitioner contends that the lapse of time between the last work done and the notice to obtain an individual engineering report in June/July 1997 and the receipt of that report more than a year later was unreasonable. Absent any explanation or justification for the delay, it would so appear. Mr. Maffo had Austin Engineering again inspect the property on January 29, 2000. In its report, Austin took exception to the Benson Engineering evaluation of RHI's work and identified many problems still existing. The project was also examined by Wilbur Yaxley, a licensed professional engineer and expert in structural and construction engineering. He found the same defects as found by Austin. These included: The fill cells used to raise the foundation were never adequately filled with concrete as called for in the plans for the project. In at least one location there was no tie-in from the new foundation to the existing foundation. Several of the pillars used to raise the foundation were loose and able to be moved by hand, and others had fallen over. Several of the pillars used to raise the foundation were not horizontal. The foundation walls contained cracks. The interior piers were not constructed in accordance with their design. The floor of the interior had bowed in the center. The horizontal joint reinforcement was not completed as required by the plans. The project as completed does not comply with the plans approved by the City of St. Petersburg at the time of issuance of the permit. The project as completed is not as sound structurally as it would have been if it had been constructed in accordance with the plans approved by the City. During the first year after retaining Respondent's firm to raise his house, while waiting for Respondent to obtain final approval on the work, Mr. Maffo continued to make his monthly mortgage payments of $1,200 even though he and his family did not occupy the property. For financial reasons he was ultimately required to cease making his mortgage payments and the property was lost to foreclosure in April 2000. The experts who examined the property have concluded that further remedial work estimated to cost approximately $17,000 would be required before it could be occupied. These experts, who are familiar with the project, suggest that a reasonable time to complete it would be four months. It is so found. Respondent's father and brother, both of whom are active in the business, indicated the company has been in business for many years without complaint. Respondent presented the testimonials of several prior clients who appear to have been satisfied with the work done for them, and no evidence to the contrary was presented by the Department.
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 placing Respondent's license as a certified building contractor on probation for one year; imposing a total administrative fine of $950; requiring Respondent to pay $2,625.41 as costs of investigation and prosecution; and requiring Respondent to reimburse the Maffos such sums as can be considered above actual RHI's out-of-pocket costs related to this project. DONE AND ENTERED this 16th day of August, 2000, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 2000. COPIES FURNISHED: Robert A. Crabill, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Kenneth McDuff Roesch, III 13650 66th Street North Largo, Florida 33771 Rodney L. Hurst, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Northwood Centre Tallahassee, Florida 32399-0792
