Findings Of Fact William W. Carlton, Respondent, is licensed in Florida as a building contractor, holds license No. CB CO 10455, and was so licensed at all times here relevant (Exhibit 1) In February, 1980, Hays and Sons Construction Company (Hays) entered into a contract with Ken and Ethel Moore to construct a metal building to serve as a filling station and car repair facility in Spring Hill. Hays is not licensed as a building contractor in Florida and Respondent held no office in Hays, had no authority to make management decisions on behalf of Hays, contract on behalf of Hays, or hire subcontractors for Hays. The building permit for the construction of the Spring Hill filling station was pulled by Respondent and listed Respondent as builder (Exhibit 9). Respondent did interior woodwork in the building, room layouts, etc., while Hays hired all of his subcontractors and did the overall supervision of the work. Respondent testified that he visited the site frequently, usually after working hours, to see that the project was progressing properly. Dan Hays, principal in Hays and Sons Construction Company, is a capable builder of metal buildings and, although not licensed in Florida, has erected such buildings at numerous places in the United States. Hays hired and paid the subcontractors on this project. By letter dated November 11, 1980, Moore filed a complaint with the Hernando County Building Department alleging that his building had not `been completed according to plans and specifications, some subcontractors had not been paid, that Hays was not licensed and the permit was pulled by Carlson, and that Carlson denies responsibility for the completion of the work. A hearing was scheduled by the Construction Board of Examiners on this complaint and Respondent was notified of the time and place of hearing and advised to be present. Before the scheduled date of the hearing, the issues raised in the complaint had been settled and the complaint withdrawn by the complainant. Respondent called the Building Department respecting the necessity of him attending the scheduled hearing and was advised the complaint had been withdrawn and that he need not attend. At the scheduled hearing, the Board expected Respondent to give an explanation and, when Respondent did not show, the Board suspended his privilege of pulling permits until he appeared before the Board at its next scheduled meeting. Respondent appeared at the next scheduled meeting of the Board and his permit pulling authority was reinstated. On April 29, 1981, Hays entered into a contract to construct a steel building for Harold and Evelyn Walkowz in New Port Richey, Florida, at a price of $119,000. The building permit for this job was pulled July 28, 1981, by William Carlson as contractor (Exhibit 10). After construction commenced, the contract was assigned to Respondent (Exhibit 12) Walkowz initially made payments in accordance with the draw schedule but as the contract progressed disputes between the owner and the builder developed and payments were not made on schedule. Walkowz' brother-in-law, John Smith, put up most of the money for the building and arrived on the scene when the project was about half finished. His arrival coincided with the disputes regarding the work being done, with the subcontractors and with the Respondent. Several of the subcontractors' due payment were not paid by Respondent because the payment due from the owners was not received by Respondent. Some of these subcontractors left the job, other threatened to leave and were assured by the owners that they would be paid, while another group of subcontractors were paid by the owners to keep them from leaving. Prior to paying these three subcontractors (Exhibit 15) , Walkowz' attorney prepared Exhibit 13, which Respondent signed in order to get these subcontractors paid. After Walkowz had paid some $93,000 to Respondent (and Hays), further payments were stopped. At this time, sub- contractors were owed approximately $16,000 and the building was not completed. Respondent offered to complete the building if the balance of the contract price owed was placed in escrow (Exhibit 20). Walkowz refused to place the money in escrow, did not pay the subcontractors he had promised would be paid, used the funds still owed on the contract to complete the building, charged Respondent with wrongfully appropriating his money, and complained to the building department. Criminal charges of grand theft were brought against Respondent. At a hearing on these charges, Respondent pleaded nolo contendere, adjudication was withheld, and Respondent was placed on probation for five years. After a hearing on restitution, the court directed no restitution be paid by Respondent to Walkowz. Respondent maintained only one operating account into which he intermingled funds received on building contracts concurrently in progress. No evidence was submitted that Respondent diverted funds received from Walkowz to any other specific project. Testimony of one witness that Respondent said he diverted funds received from Walkowz to other projects was denied by Respondent. Further, no evidence was presented that because of the diversion of funds Respondent was unable to complete the Walkowz project. In installing the main air conditioner, the unit was located at a place slightly different than shown on the approved plan. Similarly, a wall was moved a few inches to cover an error made in the installation of plumbing lines. These changes were made with the knowledge and consent of the owner and while inspections of the work were being conducted by officials of the Pasco County Building Department. The contract provided for laying 1,350 cubic yards of black top one inch thick over a four-inch limerock base. Building codes and zoning requirements would not authorize the paving of an area this size on the property and, to comply with the code prescribed allowable impervious area requirements, less black top was used. Similarly, the contract provided for the slab on which the building was erected to be 3,000 psi. concrete. The concrete was routinely tested, with the results received after the building was erected. The test showed the concrete to be 2,500 psi. strength. This information was made known to the owner and, in lieu of tearing down the building and repouring the slab, allowances were made for other changes in the contract requested by the owner For a short period of time a company called Carobu appeared on a sign in front of the Walkowz construction site. This was the trio comprised of Carlton, Roth and Burns, who intended to contract under that name, with Carlson as qualifying officer. The company was never incorporated nor did it ever contract to do any construction work.
The Issue The issue in this case is whether respondent's licenses as a registered air-conditioning contractor and registered sheet metal contractor should be disciplined for the reasons given in the amended administrative complaint filed on July 10, 1995.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The Charges At all times relevant hereto, respondent, Nicholas Donald Bacca, was licensed as a registered air-conditioning contractor and a registered sheet metal contractor, having been issued license numbers RA 0055337 and RS 0049354 by petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Board). When the events herein occurred, respondent was the qualifying agent for Nick Bacca Solar/Air Systems. He operated his business from his residence located at 4559 Fulton Avenue, Jacksonville, Florida. On the weekend prior to May 6, 1991, nine large air-conditioning units having a value of around $12,000 were stolen from the Atmore, Alabama Lions Community Center. The identification numbers of the units were immediately given by local police to the National Crime Information Center. Acting on information received from one of the apprehended theives, on May 14, 1991, a search warrant was obtained by the Duval County Sheriff's Office to search respondent's property at 4559 Fulton Avenue, Jacksonville, Florida. All nine units previously stolen in Atmore, Alabama were found in respondent's possession. It can be reasonably inferred from the evidence that respondent knew the units were stolen and that they could be used in his contracting practice. It is further found that by engaging in the foregoing conduct, respondent is guilty of misconduct in the practice of contracting. Respondent was charged with nine second-degree felony counts of violating Section 812.019, Florida Statutes, which makes unlawful the act of dealing in stolen property. On August 29, 1991, respondent entered a plea of no contest to one count of violating Section 812.019, Florida Statutes. Adjudication was withheld by the court, respondent was placed on fifteen months community control, and prior to the expiration of his community control, he was required to make restitution in the amount of $8,371.16. He was also required to pay $220.00 in court costs. For the purpose of determining an appropriate penalty, several aggravating circumstances come into play. First, in terms of the severity of the offense, respondent pled guilty to a second degree felony, punishable by state law by imprisonment for up to fifteen years in state prison. Further, the stolen property in respondent's possession could have been sold to unwitting members of the public with adverse consequences upon those persons. Finally, given the nature of the offense, a penalty having a potential deterrent effect on other contractors may be appropriate. On the other hand, there is no evidence that respondent has been disciplined by the Board on any other occasion. In investigating and prosecuting this action, petitioner has incurred costs to date in the amount of $3,745.42. This amount was established by affidavit and was not contested. Failure to Appear at Hearing Although respondent's counsel received a copy of the notice of hearing issued on August 22, 1995, which scheduled a hearing on September 26, 1995, and a second notice issued on September 18, 1995, giving the specific location of the hearing, he did not appear at final hearing. He has never filed a motion for continuance with the undersigned, or otherwise contacted this office to advise that he would be unable to attend the hearing. At the close of the business day prior to the hearing, respondent's counsel's office telefaxed to opposing counsel a motion for protective order and motion to strike notice of hearing. The document was not served on the undersigned. In the motions, counsel moved to strike the notice on the grounds he had not been given reasonable notice of hearing and the hearing date of September 26 had not been cleared with his office. He further cited R. Crim. P. 3.132(c) and advised he was "detained" in Alachua County until October 17, 1995, and could not attend the hearing. The motions were opposed by petitioner. After petitioner furnished the undersigned with a copy of the motions at final hearing, which were treated as a motion for continuance, the motions were denied.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner enter a Final Order finding respondent guilty as charged in Counts I and III of the amended administrative complaint, revoking his license, and requiring him to pay $3,745.42 in costs incurred by the Board in investigating and prosecuting this action. Count II should be dismissed. DONE AND ENTERED this 14th day of November, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER 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 14th day of November, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1364 Petitioner: Petitioner's proposed findings of fact have been adopted in substance in this Recommended Order. COPIES FURNISHED: Elizabeth C. Masters, Esquire 7960 Arlington Expressway Suite 230 Jacksonville, FL 32211 Thomas A. Boyer, Jr., Esquire 390 North Orange Avenue Suite 1890 Orlando, FL 32801-1642 Mr. Nicholas D. Bacca 4559 Fulton Avenue Jacksonville, FL 32207 Richard Hickok, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway Suite 300 Jacksonville, FL 32211-7467 Lynda L. Goodgame, Esquire Dept. of Business and Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
The Issue The issues in this case are whether Respondent committed the allegations contained in the Administrative Complaint, and if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner, the Department of Business and Professional Regulation, Construction Industry Licensing Board, is the agency charged with the responsibility for, among other things, the licensure of individuals who wish to engage in contracting in the State of Florida, as well as the investigation and prosecution of complaints against individuals who have been so licensed. Since 1992 and at all times material to this proceeding, Respondent has been licensed in the State of Florida as a certified general contractor, having been issued license number CGC 55103. In November 2003, Respondent chose not to contest an allegation that he assisted an unlicensed person in the prohibited uncertified and unregistered practice of contracting, in violation of section 489.129(1)(d), Florida Statutes. As a penalty, Respondent was assessed an administrative fine in the amount of $585.29. Petitioner has presented no other evidence of disciplinary history against Respondent's general contractor's license. Instant Allegations In an information filed on or about April 8, 2008, the State Attorney for the Eleventh Judicial Circuit of Florida charged Respondent with fourteen criminal offenses, all but two of which were later dismissed. Counts Three and Four of the charging document, to which Respondent ultimately pleaded guilty, alleged that Respondent had violated section 838.016(1), Florida Statutes, a second degree felony, by accepting unlawful compensation or reward for official behavior. Specifically, the information alleged, in pertinent part: Count 3 ANDRES VILLARREAL, beginning on or about JANUARY 1, 2003[,] and continuing through DECEMBER 31, 2005, in the County and State aforesaid, being a public servant, to wit: CHIEF BUILDING CODE COMPLIANCE OFFICER FOR THE CITY OF MIAMI BEACH, did unlawfully, feloniously, and corruptly request, solicit, accept, or agree to accept from Michael Stern any pecuniary or other benefit not authorized by law, to wit: CHECKS and/or CASH, GOOD AND LAWFUL CURRENCY OF THE UNITED STATES OF AMERICA FOR PURCHASE OF A WAREHOUSE, for the past, present, or future performance, non-performance, or violation of any act or omission which said public servant represented as being within the official discretion of a public servant, in violation of a public duty and/or in performance of a public duty, to wit: EXPEDITING THE APPROVAL OF PLANS BY THE CITY OF MIAMI BEACH BUILDING DEPARTMENT, in violation of s. 838.016(1), Florida Statutes, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida. . . . * * * Count 4 ANDRES VILLARREAL, on or about SEPTEMBER 20, 2003, in the County and State aforesaid, being a public servant, to wit: CHIEF BUILDING CODE COMPLIANCE OFFICER FOR THE CITY OF MIAMI BEACH, did unlawfully, feloniously, and corruptly request, solicit, accept, or agree to accept from Michael Stern any pecuniary or other benefit not authorized by law, to wit: CHECK NO. 08919 PAYABLE TO TRITON INVESTMENT IN THE SUM OF THIRTY THOUSAND DOLLARS ($30,000.00), for the past, present, or future performance, non-performance, or violation of any act or omission which said public servant represented as being within the official discretion of a public servant, in violation of a public duty and/or in performance of a public duty, to wit: EXPEDITING THE APPROVAL OF PLANS BY THE CITY OF MIAMI BEACH BUILDING DEPARMENT, in violation of s. 838.016(1) Florida Statutes, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida. . . . Although Respondent pleaded guilty to the foregoing charges on February 11, 2010,1/ the court deferred sentencing to a later date and permitted Respondent to remain at liberty.2/ Subsequently, on March 17, 2010, Respondent was adjudicated guilty on both charges and sentenced to concurrent, three-year terms of probation. In addition, as special conditions of probation, Respondent was ordered to serve nine months in the Dade County Jail——which commenced on the date of sentencing——in connection with Count Three, followed by a consecutive term of nine months incarceration for Count Four. Finally, Respondent was directed to pay $583 in court costs, $1,000 for the cost of prosecution, and $5,000 to the Florida Department of Law Enforcement for the cost of investigation. At the time of his plea to the criminal charges, Respondent held——in addition to his general contractor's license, which is the subject of this proceeding——a license as a building inspector issued by the Department of Business and Professional Regulation, Florida Building Code Administrators and Inspectors Board ("Inspectors Board"). Although the Inspectors Board and several employees of the Department of Business and Professional Regulation——i.e., Ms. Elizabeth Henderson and Ms. Karen Shivers, who served, respectively, as an attorney and an administrative assistant with the Inspectors Board——were aware of the criminal case and timely learned of Respondent's plea to the charges, it is undisputed that Respondent did not notify the Construction Industry Licensing Board in writing within 30 days of the plea. Significantly, while the Inspectors Board and Construction Industry Licensing Board are both part of the Department of Business and Professional Regulation, each constitutes a separate and distinct entity. In June 2011, following an early release from the incarcerative portion of his sentence, Respondent began to report on a monthly basis to Mr. Jak Wadley, a probation officer with the Florida Department of Corrections. To date, Respondent has fully complied with all general and special conditions of his probation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Construction Industry Licensing Board: Finding that Respondent violated section 489.129(1)(b), Florida Statutes, as charged in Count One of the Complaint; suspending Respondent's general contractor's license for a period of 12 months, followed by a two-year term of probation with any conditions deemed appropriate by the Board; and imposing a fine of $4,000. Dismissing Count Two of the Complaint. Finding that Respondent violated section 455.227(1)(t), Florida Statutes, as charged in Count Three of the Complaint; issuing a reprimand; and imposing a fine of $1,000. DONE AND ENTERED this 19th day of December, 2011, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 2011.
Findings Of Fact At all times relevant hereto, Respondent, Victor L. Contessa, (Contessa) was licensed as a real estate broker in the State of Florida, having been issued license Number 0016808. The last license issued to Respondent was as a broker, c/o Cavalier Southern Realty, Inc., 4343 Ridgewood Avenue, Port Orange Florida, 32019. At all times material hereto, Contessa was owner and president of Cavalier Development and Building Corporation. In 1983, Charles Hill purchased a lot in Port Orange, Florida, more particularly described as Lot 29, Phase One, Cypress Grove. In June of 1983, Charles Hill wished to have a house constructed on his lot. Mr. Hill spoke with Contessa regarding the construction of the house. After reviewing plans with Contessa, Hill entered into a written Building Agreement with Contessa whereby Contessa agreed to construct a house for Hill for $50,000.00, plus extras. At the time he signed the Building Agreement, Hill believed that Contessa was a licensed building contractor. He based this belief upon representations made by Contessa to Hill that Contessa was a licensed building contractor. The Building Agreement, dated June 4, 1983, listed Cavalier Development and Building Corporation as the contractor and was signed by Contessa as president of Cavalier Development and Building Corporation. Contessa was not a licensed building contractor when he signed the Building Agreement. In order to have the house constructed as set forth in the Building Agreement, it was necessary for Contessa to hire a licensed building contractor. Contessa contacted Donald E. Welch, a licensed residential contractor. Contessa represented to Welch that Contessa's company, Cavalier Development and Building Corporation, was the owner of Hill's lot. Based on that representation, Contessa entered into a Building Agreement with Welch to have Welch construct the house for $42,500.00. Welch did not become aware that the lot in question was owned by Hill and not by Contessa or Cavalier Development and Building Corporation until October 25, 1983, when Welch attempted to pull a building permit. At that time, Contessa advised Welch that the owner's name was Charles B. Hill. Hill paid Contessa a total of $45,000.00 for construction of the house. In January 1984, Welch slowed construction on the house because Contessa did not pay him his construction draws when they were due. Until this time, Contessa had instructed Hill not to discuss construction with any of the workmen on the site, but to bring any concerns directly to Contessa. Additionally, Contessa had instructed Welch not to deal directly with Mr. Hill, but instead to discuss all construction matters directly with Contessa. Because of the slowdown in construction, Hill and Welch discussed the matter between themselves. It was at this time that Hill learned that Welch was the licensed contractor, and not Contessa. Hill then began dealing directly with Welch. Welch completed the construction upon payment of $8,842.00 paid directly by Hill to Welch. Contessa, in the name of Cavalier Development and Building Corporation filed a mechanics lien as a contractor against the Hill property on May 16, 1984.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Professional Regulation, Division of Real Estate, enter a final order suspending the license of Victor L. Contessa for a period of five (5) years and assessing an administrative fine against Victor L. Contessa in the amount of $1,000.00. DONE AND ENTERED this 13th day of August, 1985, at Tallahassee Florida. DIANE K. KIESLING 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 13th day of August, 1985. COPIES FURNISHED: James H. Gillis, Esquire Staff Attorney Department of professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32801 Victor L. Contessa Box 566 Port Salerno, Florida 33492 Victor L. Contessa 101 Santa Lucia Avenue West Palm Beach, Florida 33492 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harold Huff, Director Division of Real Estate 400 West Robinson Street Orlando, Florida 32801
The Issue The issues in this cause are those promoted by the filing of an Administrative Complaint by the Department of Professional Regulation accusing the Respondent of various violations of Chapter 489, Florida Statutes. Should the Respondent be found guilty, this action contemplates the imposition of a penalty against Respondent's license as a commercial pool contractor in Florida.
Findings Of Fact 1. Respondent, at all times relevant to this inquiry, was a registered commercial pool contractor having been issued license number RP0041725. This is a license issued by the Florida Construction Industry Licensing Board. 2..On November 18, 1983, Respondent entered into a contract under the name Kennedy Pool and Construction Co., an entity for whom Respondent serves as a qualifying agent in the commercial pool contracting business. This contract was with one Marie Robertson; however, the contract was not for the purpose of construction of a pool. It was for construction of a 20' by 24' block garage. This structure was to be free-standing and would be located adjacent to Ms. Robertson's residence, which is also used in her business. Petitioner's exhibit number 2 is a copy of the contract and reflects the $4,800.00 contract price. Robertson has paid the full amount of the contract and the garage construction was completed in January, 1984. Respondent personally built the garage. Respondent built the garage without obtaining a building permit from the City of Jacksonville, Florida. Respondent also failed to submit plans and specifications to the City of Jacksonville, which set forth the design and placement of this garage structure. Having failed to request a permit or to submit plans and specifications, Respondent made no request of the City of Jacksonville Building Department to inspect the construction related to the garage. Finally, Respondent in his licensure with the State of Florida, and license recognition with the City of Jacksonville, was not authorized to serve as a building contractor engaging in the construction of structures such as the garage in question. The project at issue entailed the pouring of a foundation; the erection of block walls the erection of a roof truss system and the installation of a roof covering of shingles. All of these items were beyond the license recognition which respondent held with the State of Florida and the City of Jacksonville. When the City of Jacksonville discovered the existence of the garage, it made the owner aware that the structure was in violation of the City of Jacksonville Building Code related to the need for obtaining a building permit, and the fact that the garage structure violated the city's set-back requirement. This later item pertained to the fact that given the commercial utilization of the property, on the part of Ms. Robertson, the garage was too close to the city street. As a consequence, Robertson was put to the inconvenience of obtaining and paying for a building permit and gaining a variance from the set-back requirements mentioned. Had the City of Jacksonville been presented with building plans and specifications, this would have alerted the city to the fact that the placement of the garage was too close to the street. When confronted with her difficulty, Ms. Robertson contacted the Respondent to gain his assistance in obtaining a building permit. The Respondent indicated that it was her problem and said that he could not get a permit because the property was business property and not private property. The Respondent was charged by the City of Jacksonville through a notice of violation of local zoning requirements related to the failure to obtain a building permit and the fact that the Respondent was not licensed by the City of Jacksonville to construct a garage at the Robertson residence. Attempts at serving the violations were not successful in that calls to the Respondent and issuance of notice of violations through certified mail, return receipt requested, were not acknowledged by the Respondent.
