The Issue By Administrative Complaint filed on March 24, 1982, the Petitioner, Department of Professional Regulation, charged the Respondent, David Morton, with specific violations of Florida Statutes and Section 81-64 of the City of Hollywood Ordinances. The charged violations generally involve the alleged failure of Mr. Morton to obtain building permits prior to performing roofing repairs and failure to honor and make good certain guarantees that he gave on two roof repair jobs. Petitioner presented the testimony of Carol Glovan, of the City of Hollywood Building Department; Maurice Segall, complainant; and Hershal K. Deuchare, complainant. Petitioner's Exhibits 1 through 7 were received into evidence. Respondent failed to appear and, therefore, presented no witnesses or documentary evidence on his behalf. The counsel for the Petitioner submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings of fact and conclusions of law are not adopted in this order, they were considered and determined to be irrelevant to the issues in this cause or not supported by the evidence.
Findings Of Fact Respondent is a registered roofing contractor having been issued License No. RC0030473. David Norton was first licensed as a registered roofing contractor in July, 1977. License No. RC0030473 was issued to David Morton qualifying David Morton Roofing, 6422 Southwest 24th Street, Miramar, Florida 33023. Since qualifying David Morton Roofing, the Respondent has changed business addresses but has not qualified any other business name for the purpose of performing work under his license. On May 8, 1980, the Respondent contracted with H. Deuchare to perform repairs on the roof of the Deuchares' home located at 5521 Buchannon Street, Hollywood, Florida. The contract price was $500. The written contract dated May 9, 1980, and attached as a part of Petitioner's Composite Exhibit No. 3, reflects that the name in which the Respondent was doing business at that time was "David M. Roofing." The contract also provided for a one-year guarantee against faulty material and workmanship. Respondent performed the roof repairs on the Deuchare home but failed to obtain a permit for the work as required by Section 81-64, City of Hollywood Ordinances. After completion of the work, the roof continued to leak, and after two calls from Mr. Deuchare, the Respondent came out and attempted to repair the work. Following this repair effort, the roof leaked worse than before. After continuing calls, the Respondent finally got the leak fixed. However, during the course of making the final repair, the Respondent removed tiles from the roof and broke certain of the tiles. Following completion of the repair, Respondent did not put the tiles back in place and refused to come back and replace the broken tiles. The Respondent made a total of three repair visits to the Deuchare home and on the occasion of each call, was very cordial. On April 22, 1981, Respondent contracted with Maurice Segall to perform roof repairs on the Segalls' home located at 4400 Lincoln Street, Hollywood, Florida. The contract price was $1,075.00. The contract which is attached to Petitioner's Composite Exhibit 4 is dated April 22, 1981, and reflects that the Respondent was doing business in the name of David M. Roofing. The contract also provided for a guarantee for seven years against faulty material and workmanship. The Respondent performed the work on the roof but failed to obtain a building permit prior to beginning the work as required by Section 81-64, City of Hollywood Ordinances. A building permit was later obtained after the repairs were completed. After the Respondent performed the work, the roof continued to leak, and after many calls, Respondent sent someone out to make additional repairs. After Mr. Segall initiated an action with the county licensing board, Mr. Morton did come out and do the roof over again and performed the work in a proper manner. Mr. Morton did obtain a proper hermit prior to performing the work the second time. No charge was made to Mr. Segall for the work performed in redoing the job. Following this work, the roof did not leak.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Construction Industry Licensing Board enter a Final Order finding Mr. David Morton to have violated Florida Statutes 489.129(1)(d) and Florida Statutes 489.119. It is further recommended that the Board impose an administrative fine upon the Respondent of $250 and that the Respondent be placed on probation for a period of six months. RECOMMENDED this 11th day of April, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, 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 11th day of April, 1983. COPIES FURNISHED: Michael J. Cohen, Esquire Suite 101, Kristin Building 2715 East Oakland Park Boulevard Ft. Lauderdale, Florida 33306 Mr. David Morton 6432 S.W. 24th Street Miramar, Florida 33023 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. James Linnan Executive Director Post Office Box 2 Jacksonville, Florida 32202
The Issue Whether petitioner should be deemed to have abandoned his position of employment with the Department of Transportation, under the provisions of Rule 22A-7.010(2), Florida Administrative Code?
Findings Of Fact On December 6, 7 and 8, 1988, Sandy Solano was absent from his job at the Department of Transportation without leave.
Recommendation It is, accordingly, RECOMMENDED: That the Department of Administration enter a final order deeming petitioner to have abandoned his career service position with respondent. DONE AND ENTERED this 18th day of July, 1989, in Tallahassee, Florida. ROBERT T. BENTON, II 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 18th day of July, 1989. Copies furnished: Sandy Solano Route 1, Box 5 Elkton, Florida 32033 Charles G. Gardner, Esq. Haydon Burns Building 605 Suwannee Street, M.S. 58 Tallahasse, Florida 32399-0458 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 Andrew J. McMullian, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550
The Issue This case concerns Petitioner's attempt to discipline the Respondent through an amended administrative complaint under DPR Case No. 107190. In this amended administrative complaint Respondent is charged-with the violation of Section 489.129(1)(c); Section 455.227(1)(b), Florida Statutes; and an unspecified Board rule for failure to properly update his address with the Construction Industry Licensing Board. He is also charged with having guaranteed a roofing job to a customer and not honoring that guarantee in violation of Sections 489.129(1)(j) and (m), Section 489.119 and Section 489.105(4), Florida Statutes. Respondent is charged with gross negligence, incompetence, misconduct and/or deceit in connection with this job, which is attributable to the Respondent or based upon his failure to properly supervise as evidenced by the failure to provide a reasonably watertight roof for the customer. Again these items are said to be in violation of the statutory provisions most immediately referenced.
Findings Of Fact Chapters 120, 455 and 489, Florida Statutes, empower the Petitioner through the offices of the State of Florida, Department of Professional Regulation and Construction industry Licensing Board to license, investigate, prosecute and discipline Respondent. At times relevant to the inquiry Respondent was a registered roofing contractor in Florida, through a license issued by the Construction industry Licensing Board, license No. RC 0053875. The license history of the Respondent is set out in Petitioner's exhibit no. 1 admitted into evidence. He was first licensed as a registered roofing contractor in July, 1987. This was as an active status qualifying for James M. Kinnamon Roofing, 1928 Cesery Boulevard, Jacksonville, Florida 32211. That license was effective until June of 1988. On that date an active license was issued for Kinnamon Roofing Contracting at 4151 Woodcock Drive, Suite 202, Jacksonville, Florida 32207. The effective date of that licensure is from 1989 through 1991. At the time of the renewal an address change was given by Respondent indicating 6272 St. Augustine Road, No. 241, Jacksonville, Florida 32217 as the new address. The Petitioner's records reveal incorporation in Florida of Kinnamon Contracting Co. on October 30, 1987, as evidenced by the Articles of Incorporation certified by the State of Florida, Department of State. In a separate disciplinary case in which probable cause had been found on August 15, 1989, Respondent received a letter of guidance. Ida Lee Harris of 6138 Spirea Street, Jacksonville, Florida, needed her roof repaired. She received a proposal from Respondent on August 16, 1986, offering to repair the roof. A copy of that proposal may be found as Petitioner's exhibit no. 2 admitted into evidence. Through its terms Respondent and Ms. Harris agreed on a $2,900 price to complete the work. The proposal is shown as being from James M. Kinnamon Contractors of 1928 Cesery Boulevard, Jacksonville, Florida 32211. The proposal also gave a telephone number (904) 743-9728 attributable to the Kinnamon contracting business. The contract contemplated that the existing roof would be torn off, that all trash and debris would be removed, that all rotten wood would be replaced, that a new roof would be installed, that all plumbing boots and vents would be replaced, that new metal flashing would be installed, and that the work was guaranteed for seven years as to workmanship and twenty years as to materials. Ms. Harris borrowed the money to pay for these repairs and gave Respondent the $2,900 as her part of the bargain. Respondent worked on the roof at the Harris home for a period of three to five days. About three weeks after he had finished the roof began to leak. Before the work was done by Respondent the leaks were in two places. After he did the work the leaks were in five additional places plus the original two. One of those leaks was between two bedrooms, a place that stayed wet all the time and there was water running down the walls as well. The affect was such as to ruin the ceiling. In the hallway every time it rained it was wet and the same problem was being experienced in the garage area. Things were worse in the areas where rotten pieces were falling down. The rotten wood that was falling was in the garage area. The water settled in a puddle in the second bedroom area. In other places within the home that had been painted, there were water spots. The living room had water spots that appeared as if the water had been running. The ceiling in the living room was cracked as a result of the water damage. In an attempt to correct the work Ms. Harris tried to call Respondent at the phone number shown on the proposal. She called twice and there was no answer. She called a third time and the phone had been disconnected temporarily. Having been unable to reach the Respondent by telephoning him, Ms. Harris went to the Respondent's home about a month later. She arrived between 6:00 p.m. and 7:00 p.m. at night. Ms. Harris rang the doorbell and no one answered, although there was a light on in the house. This was an address that Respondent had taken Ms. Harris to and represented that this was his home. That visit had been made at the time that the original proposal was being executed. Ms. Harris waited for about an hour outside of the house in a car. No one came into the house. She never made contact with Respondent on that occasion. Ms. Harris tried the telephone number again and was told that it was temporarily disconnected. Ms. Harris went back to the Respondent's home on two other occasions. She was unable to contact him on those two occasions either. Being unable to contact the Respondent, she made a complaint about the quality of the work. That complaint was made to Petitioner. As a result of the complaint Respondent made contact with Ms. Harris in the summer of 1989. Through a conversation with Ms. Harris an amendment to the proposal was executed. At this time Respondent's proposal document was under Kinnamon Roofing Contracting Co., Inc., at 6271 St. Augustine Road, Suite 241, Jacksonville, Florida 32217 telephone number (904) 389-4961. A copy of the amended proposal executed by Respondent and Ms. Harris may be found as Petitioner's exhibit no. 4 admitted into evidence. It is dated June 29, 1989. It calls for patching and fixing the roof. It states that by law a warranty of ten years is required, but Respondent will warrant the roof for twenty years. It makes reference to an apology by Respondent for the problem of the leaks. It describes that if in one-half year Ms. Harris has more leaks he will put a new roof on free of charge. In a conversation with Ms. Harris concerning this proposal Respondent suggested that he was going to patch the roof. Ms. Harris was not pleased with this solution and said that she did not wish the roof patched because it was leaking from the time that Respondent had done the roof work until the present. Respondent replied that while he recognized that Ms. Harris deserved a new roof that at that time he could not do it but that he was going to get the situation straightened up in any event. He told Ms. Harris that he was going to call the Construction Industry Licensing Board and tell them that everything was all right so that the Board would not have to be in touch with Ms. Harris anymore. Ms. Harris was not accepting of that and told him that this would not be an appropriate thing to do. Respondent commented again that he was going to do Ms. Harris right and do justice for her. She commented to the Respondent that if the roof was going to leak that she was not going to try to be in touch with the Respondent because he was hard to get in touch with. She suggested that Respondent make out a contract addressing the Contingency of continued leaks, by putting on a new roof. Respondent suggested that the obligation for a new roof would not come about until one year. Ms. Harris wanted that reduced to one-half year. This lead to the signing of the proposal which is Petitioner's exhibit no. 4 admitted into evidence. The immediate attempt to repair the roof beyond the signing of the amended proposal was only to make a repair in one spot in a front room. This was an area that you walk into near the Florida room in the home. Respondent never did repair any other leaks. After having repaired the single leak Respondent told Ms. Harris he would come back and get the balance of the leaks and if there was going to be any further problem he would put a new roof on. He was also promised to fix any additional leaks that had not yet occurred. After fixing the one leak, upon the next incident of rain the leaks were still there. In fact, matters got worse. Ms. Harris tried to telephone Respondent at the number on the amended proposal and as set out on a business card that he had given her, which is found as Petitioner's exhibit no. 5 admitted into evidence. When she reached that number she was told that it was not a working number. She tried calling two or three days later and received a blank sound. These attempts at contact began about five days after Respondent had attempted to repair the one place that was leaking. Eventually, on April 19, 1990, Ms. Harris executed a contract with Sears and Roebuck and Company to repair the roof. This cost $4,691 additional dollars. A copy of that contract may be found as Petitioner's exhibit no. 6 admitted into evidence. Ms. Harris is paying for this work by Sears through an installment purchase plan. The work that Sears roofing repair had to do was work that should have been done under the contract with Respondent.
Recommendation Based upon a consideration of the facts, and in view of the conclusions of law, it is, RECOMMENDED: That a Final Order be entered which finds the Respondent in violation of Sections 489.129(1)(j) and (m), Florida Statutes, and imposes a $3000 fine and a one year suspension. DONE and ENTERED this 30th day of May, 1990, in Tallahassee, Florida. CHARLES C. ADAMS, 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 30th day of May, 1990. APPENDIX CASE NO. 90-0495 Those fact proposals set forth in the Petitioner's proposed recommended order are subordinate to facts found. COPIES FURNISHED: Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 George W. Harrell, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 James A. Kinnamon 1928 Cesery Boulevard Jacksonville, FL 32211 James A. Kinnamon 4151 Woodcock Drive, Suite 202 Jacksonville, Florida 32207 James A. Kinnamon 6272 St. Augustine Road, No. 241 Jacksonville, FL 32217 James A. Kinnamon 2946 Downing Street Jacksonville, FL 32205 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue Whether the Respondent's license as a registered building contractor should be disciplined for violating Section 489.129(1)(m), Florida Statutes?
Findings Of Fact At all times relevant to this proceeding, the Respondent was licensed by the State of Florida as a registered building contractor. The Respondent held license number RB 0047309. In June of 1983, the Respondent, doing business as Gamble's Construction Company, contracted with James B. Sampson, Jr., to construct an open steel shelter on Mr. Sampson's property, the Bull Frog Dairy Farm. The contract called for the payment of $42,052.00 for the construction of the shelter. The shelter measures 108 feet by 150 feet. The shelter consists generally of a tin roof sitting on columns. The sides of the shelter are open. The shelter was to be, and is, used as a feed barn for dairy cows. The Respondent purchased the shelter to be constructed on Mr. Sampson's property from Steel Concepts, a steel manufacturing company in Sparks, Georgia. The Respondent had purchased steel structures from Steel Concepts for several years prior to 1983. The Respondent had not, however, purchased or erected a steel structure of the size and design of the shelter to be erected on Mr. Sampson's property. The steel structure purchased by the Respondent for erection on Mr. Sampson's property was designed by Donald Gibbs, then President of Steel Concepts. Mr. Gibbs was not licensed or trained as an engineer, an architect or a contractor. Mr. Gibbs' design of the steel structure purchased by the Respondent for erection on Mr. Sampson's property was never reviewed by a licensed engineer. The Respondent made no effort to ensure that the design of the steel structure purchased for erection on Mr. Sampson's property had been approved by a licensed engineer. Construction of the shelter began in August, 1983, and was completed in September, 1983. The Respondent first designed and constructed the foundation for the shelter. The foundation consisted of a series of concrete-block piers. The concrete-block piers rested on concrete footers (concrete under the ground). The shelter included twenty-eight vertical columns which were each to be attached to one of the concrete block piers by four nuts and anchor bolts. The anchor bolts were embedded into the piers. The Respondent supervised and assisted several employees in constructing the foundation and erecting the steel structure. The Respondent used all the materials furnished to him by Steel Concepts for the shelter. Although cross bracing was provided for, and attached to, the roof of the shelter, no cross-bracing was provided for use in bracing the columns. Holes for the attachment of cross bracing of the vertical columns were provided in the columns. The Respondent should have known that cross-bracing of the vertical columns was necessary. Therefore, the Respondent should have questioned Steel Concepts about the lack of such bracing or the Respondent should have added cross-bracing on the columns. On January 22, 1987, a wind and rain storm struck the Bull Frog Dairy Farm. The next morning, Mr. Sampson discovered that the shelter erected by the Respondent was listing to the east. The structure was approximately twelve to twenty degrees off vertical. Mr. Sampson arranged for emergency repairs to prevent the shelter from collapsing. The Respondent did not make the emergency repairs because it was Friday and the Respondent had released his employees. The Respondent personally helped, however, with the emergency repairs. The damage caused to the shelter by the storm was caused by the lack of cross-bracing on the columns and the failure to properly tighten approximately one-half of the nuts to the anchor bolts connecting the columns to the piers. The Respondent should have insured that the nuts were properly tightened on the anchor bolts holding the columns to the piers. The Respondent's failure to properly supervise the tightening of the anchor bolts constituted a failure to meet acceptable industry standards of supervision. The Respondent's erection of the shelter was not within acceptable industry standards. The Respondent's failure to insure that cross-bracing was provided or to ask Steel Concepts why no bracing was provided, and the Respondent's failure to insure that all the nuts were properly tightened constituted incompetency. Although there had been erosion of the soil around the shelter, the erosion did not contribute to the damage to the shelter. The possibility of erosion should have been taken into account by the Respondent before constructing the footers and piers. This is the first complaint ever filed against the Respondent. The Respondent attempted to resolve the matter with Mr. Sampson.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order finding that the Respondent violated Section 489.129(1)(m), Florida Statutes. It is further RECOMMENDED that the Department impose a fine of $1,500.00 on the Respondent payable within thirty (30) days from the date of the final order in this case. DONE and ENTERED this 5th day of May, 1988, in Tallahassee, Florida. LARRY J. SARTIN 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 5th day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5391 The parties have submitted proposed findings of fact. Petitioner's Motion to Strike Respondent's Proposed Recommended Order has been granted and no consideration has been given to the Respondent's proposed recommended order. It has been noted below which of the Department's proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those findings of fact proposed by the Department which have been rejected and the reason for their rejection have also been noted. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 2 2 and 4. 3 11. 4 5-8. 5 10, 12-13 and 15-16. 6 17-19. 7-10 See 16, 20 and 22-23. These proposed findings of fact are pertinent in determining the weight to be given to the testimony of various witnesses or recite opinions of those witnesses. COPIES FURNISHED: David L. Swanson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 J. Victor Africano, Esquire Post Office Box 1450 Live Oak, Florida 32060 Fred Seely Executive Director Post Office Box Jacksonville, Florida 32201 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether the Respondent, a licensed general contractor, committed the offenses alleged in the three administrative complaints and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of contracting pursuant to Section 20.165, Florida Statutes, and Chapters 455 and 489, Florida Statutes. At all times pertinent to this proceeding, Respondent has been licensed as a general contractor by the Petitioner. Respondent was issued license number CG C010162 in 1975 and has held that licensure ever since. The first complaint against Respondent’s licensure, like the three complaints at issue in this proceeding, arose from a post-Hurricane Andrew contract. That complaint was resolved by stipulation of the parties. Respondent did not admit to wrongdoing in his stipulation. Respondent was financially unable to comply with the terms of the settlement. Consequently, his license was suspended at the time of the formal hearing. There was no explanation as to why this complaint, which occurred at approximately the same time as the three contracts at issue in this proceeding, was prosecuted separately. At all times pertinent to this proceeding, Respondent was the qualifier for Allstate Construction Management, Inc. (Allstate), a Florida corporation. THE RODRIGUEZ CONTRACT (DOAH CASE 96-4580) On March 17, 1993, Allstate entered into a contract with Anthony Rodriguez to build a garage at 15525 SW 209th Avenue, Miami, Florida. The contract price was $16,250.00, which included “plans, permit and cleanup.” Allstate was paid the sum of $4,062.50 on March 17, 1993. Allstate obtained the Dade County building permit for the project on March 26, 1993. Allstate was paid the sum of $5,593.75 on April 5, 1993, after the concrete blocks were installed. On April 8, 1993, Allstate requested a tie beam/reinforcing inspection from the Dade County building department. In response to that request, Antonio Varona inspected the project on April 12, 1993. The inspector noted that the project was not ready for inspection because no truss plans were available. Respondent testified, credibly, that he had to construct the roof conventionally because of the difficulty in obtaining pre-fabricated trusses; however, that testimony does not explain why there were no truss plans available for inspection. Appropriately engineered truss plans are required for a roof to pass inspection. Despite the failure of the project to pass inspection, Mr. Rodriguez accepted the roof and paid Allstate $4,968.75 on May 21, 1993. As of May 21, 1993, there remained a final payment of $1,625 on the contract. After May 21, 1993, Respondent and Allstate left the Rodriguez job. There was a dispute in the evidence as to whether Mr. Rodriguez fired Allstate or whether Allstate abandoned the project. This dispute is resolved by finding that the evidence was insufficient to establish by clear and convincing evidence that Allstate abandoned the Rodriguez project. When Allstate left the Rodriguez job, there were sufficient funds remaining unpaid to complete the project. Because he had obtained the initial building permit, it was incumbent upon Respondent to either obtain a final inspection of the project or notify the building department that his company had been terminated by the owner. Respondent did neither. THE ELLIS CONTRACT (DOAH CASE 96-4581) At the times pertinent to this proceeding, William R. Ellis owned the Arleen House, which is an apartment building located at 2191 N.E. 168th Street, North Miami Beach, Florida. This building suffered damages from Hurricane Andrew. On September 11, 1992, Respondent and Mr. Ellis inspected the building and Respondent prepared an estimate as to the items that had been damaged by the hurricane and other non-hurricane related repairs that should be made. The mansard roof for this building had been damaged by Hurricane Andrew to the extent that it contained gaping holes. Shortly after that inspection, Mr. Ellis met with his insurance adjuster who gave him a check in the amount of $13,000 to repair the roof. It was necessary to dry in the roof and repair the mansard as soon as possible to avoid additional damage to the building from rains. While there was a dispute as to the extent of the services Allstate was to provide Mr. Ellis, the record is clear that Respondent, on behalf of Allstate, agreed to undertake the roof repair for the sum of $13,000. Respondent told Mr. Ellis that his company had a roofing crew ready to begin work on the roof repairs as soon as Mr. Ellis paid the sum of $13,000. Between September 11 and September 15, 1992, Mr. Ellis gave Allstate a check in the amount of $13,000 with the understanding that the check he had received from the insurance company had to clear before his bank would honor the check he was giving to Allstate. Immediately thereafter1 Allstate sent a roofing crew to the project for the purpose of temporarily covering exposed areas. Despite having been told by Mr. Ellis that the check he was giving Allstate would not be good until after the check for the insurance proceeds had cleared, Allstate did not wait to deposit Mr. Ellis’ check. Respondent was promptly notified that the check Mr. Ellis had given him would not be honored by Mr. Ellis’ bank. Respondent immediately thereafter withdrew the roofing crew from the project. The roofing crew had made only minor repairs at the time they were withdrawn from the project. Respondent knew, or should have known, that the building was vulnerable to further damage from rain. On September 15, 1992, Mr. Ellis gave Respondent a second check in the amount of $13,000. This check cleared the banking process on September 18, 1992. Mr. Ellis made repeated efforts to have Allstate send a crew to repair the roof. After it withdrew the crew that had been sent to the property when Allstate received the first check, Allstate did not take action to protect the property by repairing the exposed areas of the roof. Towards the end of September 1992, a heavy rainstorm caused additional damages to Mr. Ellis’ building. Allstate did not send a crew to the project again until October 6, 1992. Mr. Ellis hired this crew away from Allstate. He testified he did so because the crew complained about Allstate not paying for the materials they were using to repair the roof and because the workmen were threatening to file liens against the property. Mr. Ellis paid this crew the sum of $3,400 to temporarily repair the roof. He then entered into a contract with another contractor to complete the roofing repairs for the sum of $17,500. Mr. Ellis demanded the return of the $13,000 he paid to Allstate, but, as of the time of the formal hearing, he had not been repaid. THE KUCHENBACKER CONTRACT (DOAH CASE 96-4582) On November 6, 1992, Allstate entered into a contract with Carl F. Kuchenbacker to repair his residence at 18500 SW 88th Road, Miami, Florida. Mr. Kuchenbacker’s residence had been damaged by Hurricane Andrew. The initial contract price was $33,375.00. Respondent secured the building permit and Allstate began work on the project. During the course of the work, additional work was added to the contract, which raised the total contract price to $38,015.00. In late February or early March, 1993, Allstate abandoned the project without just cause and without notice to the owner. At the time it abandoned the project, Allstate had been paid the sum of $26,620.00. Allstate failed to pay all of the subcontractors and materialmen who had performed work or provided material for the Kuchenbacker job. As a result of that failure, valid liens were recorded against Mr. Kuchenbacker’s property. The following liens were recorded: Rite-Way Plumbing and Plastery, Inc. in the amount of $3,520.00; Commercial Lighting and Maintenance, Inc., in the amount of $1,835.00; and Scott Bornstein Plumbing, Inc., in the amount of $798.00. Allstate had received sufficient funds from the owner to pay these liens, but neither Respondent nor Allstate paid these liens. Mr. Kuchenbacker and Petitioner’s expert witness testified that the value of the work performed by Allstate before it abandoned the job was $21,000.00. Mr. Kuchenbacker also testified as to the items that remained undone and as to the percentage of the work that had been completed. From that testimony and from the testimony as to the estimated costs of completing the job, it is found that the sum of $11,395.00, which was the difference between the total contract price and the total amount that was paid to Allstate, was sufficient to complete the project and pay off the liens on the property. Respondent did not call for a final inspection of the property and he did not advise the Dade County Building Department that he was abandoning the project. Allstate abandoned the Kuchenbacker project because it went out of business.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein. It is further recommended that Petitioner impose fines totaling $5,000 against Respondent’s licensure as follows: For the violation established by Count I of DOAH Case 96-4580, an administrative fine in the amount of $500. For the violation established by Count II of DOAH Case 96-4580, an administrative fine in the amount of $500. For the violation established by Count IV of DOAH Case 96-4580, an administrative fine in the amount of $250. For the violation established by DOAH Case 96-4581, an administrative fine in the amount of $500. For the violation established by Count I of DOAH Case 96-4582, an administrative fine in the amount of $750. For the violation established by Count II of DOAH Case 96-4582, an administrative fine in the amount of $2,000. For the violation established by Count III of DOAH Case 96-4582, an administrative fine in the amount of $500. IT IS FURTHER RECOMMENDED THAT in addition to the fines recommended for the violations found in DOAH Case 96-4581, Respondent’s licensure be suspended for two years. IT IS FURTHER RECOMMENDED THAT in addition to the fines recommended for the violations found DOAH Case 96-4582, Respondent’s licensure be suspended for two years, to run concurrently with the suspension recommended for DOAH Case 96- 4581. DONE AND ENTERED this 23rd day of May, 1997, in Tallahassee, Leon County, Florida. Hearings Hearings CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative 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 this 23rd day of May, 1997
Findings Of Fact Respondent, Mary Jean Brooker, is a teaching veteran of approximately 18 years, and most recently was employed by Petitioner as a specific learning disabilities (SLD) teacher at Bear Creek Elementary School in St. Petersburg, Florida, pursuant to an annual contract. Respondent received worker's compensation benefits from June 8, 1992, to November 30, 1992, based on the recommendation of Petitioner's worker's compensation doctor, Scott Russell, M.D., her treating physician, and Terry Dillon, M.D., who conducted an independent medical exam (IME) at Petitioner's request. Respondent's leave (and claim for benefits) was caused by an accident in which she was injured on June 8, 1992, when a recycling truck backed into her vehicle while she was driving on school grounds. The injury in the above accident aggravated a previous back injury that Petitioner sustained when she was "rear ended" in an automobile accident in December 1990. Upon being placed on worker's compensation leave, Respondent was not advised by Petitioner's employees or agents what her limitations were in terms of working at home or elsewhere. Dr. Terry P. Dillon, a self-employed physician employed by Medical Doctors of Morton Plant, Inc., conducted an IME on Respondent. Dr. Dillon specializes in treating and evaluating patients who sustain on the job injuries and consults with industrial managers on work place injuries. Dr. Dillon's evaluation was requested by Petitioner's risk management section. Dr. Dillon took a medical history of Respondent and conducted muscular, skeletal and imaging studies. Dr. Dillon also reviewed Respondent's prior medical records. Dr. Dillon's first examination of Respondent was on September 17, 1992. He noted that Respondent had a long history of low back pain; facial joint pain with some symptoms which were spontaneous and other lower back and neck pain and facial joint injuries stemming from the motor vehicle accident during December 1990. During the more recent accident of June 8, 1992, Dr. Dillon observed an increase in the symptoms and Respondent also consulted with a chiropractor and a neurologist who observed tenderness over Respondent's neck muscles and shoulder blades. Dr. Dillon observed no evidence of injuries to Respondent's upper extremities other than a mild compression of nerves in the upper torso area. Dr. Dillon evaluated the tenderness in Respondent's low back but he detected no spasms. He found some sciatic tenderness in the lower extremities although he noted no lower nerve deficits during the normal clinical exam. Dr. Dillon observed some degenerative changes associated with age and the accident related injuries. He was unable to tell if bony changes were due to the more recent August 1992 motor vehicle accident or were a result of the earlier accident. He opined that it was more likely than not that the injury was not related to the '92 accident. Finally, Dr. Dillon speculated that Respondent evidenced some "psychological investment of pain" however he could not confirm his speculation. Dr. Dillon opined that Respondent should "go forward with an active rehabilitation program" and that after approximately four weeks she should be able to return to work part-time in light duty status and perhaps after eight weeks of following such a regimen, Respondent should be able to return to work full-time after 16 weeks. In concluding, Dr. Dillon opined that Respondent was totally unable to work the entire month of September 1992, although he felt that thereafter she should have been able to work on a part-time basis. Respondent was not issued any work restrictions by Dr. Dillon. Respondent was rated "temporary total disability" by Dr. Dillon which means that she was unable to do a combination of sitting, standing and walking during a three to four hour period. Respondent also served as an SLD coordinator while employed at Bear Creek. As an SLD teacher and coordinator, Respondent had to assess and work with the development of skills for SLD students. Her class sizes ranged from a high of 20 to a low of 8 students and the instruction was individualized. In 1992, Respondent advised her principal, Susan Daniels, that she had an auto accident during 1990 although she did not request any specific accommodation based on the injuries sustained in that accident. During the summer of 1992, while employed as a summer school teacher, Respondent was involved in the August 1992 accident. As a result of that accident, Respondent incurred injuries and advised Daniels that she would be unable to continue teaching during the summer and the beginning of the 1992-93 school year. Respondent also told Daniels during the summer of 1992 that she, at times, experienced severe pain from the 1992 accident. Respondent's husband purchased a daycare center during 1991. When the business was purchased, Respondent often assisted her husband in the operation of the daycare after school hours and on weekends. For her services, Respondent was paid a salary until July 1993. While Respondent was convalescing after the 1992 accident, she often went to the daycare center, out of boredom, to assist the daycare staff. The daycare center has a staff of approximately eight teachers who work a full time schedule. Prior to the accident during 1992, Respondent worked approximately eight to ten hours per week at the center. After the accident, she has been working approximately 2 1/2 to 4 hours per week doing such things as answering the phones, responding to inquiries about rates, assisting in billings and other related chores. Respondent and her husband moved to a new residence on September 18, 1992. Respondent assisted in the move by doing such things as loading clothing, lamps and light items such as pictures and other small memorabilia into her car. Additionally, Respondent assisted in cleaning the old home that they were moving from and she did some cleaning of the new home before they placed heavy furniture and appliances in the home. Respondent did not do any heavy lifting or pulling during the move on September 18, 1992. Respondent has "good" and "bad" days. In other words, her level of pain fluctuates from day to day. Respondent was placed under surveillance by the worker's compensation carrier for Petitioner. During the surveillance, Respondent was observed assisting in the move from periods up to two hours during the a.m. and approximately three hours during the p.m. on September 19, 1992. However, Respondent did not lift any heavy items and the videotape of the move did not establish anything to the contrary. To the extent that she was seen lifting a large trash bin, it could not be determined how heavy that trash bin was. Respondent was assisted, by another female, in lifting the trash bin and taking it to the sidewalk. Investigators Angela Elliott and Clifford Froggat placed Respondent under surveillance during September and November 1992. On November 5, Respondent was observed travelling from her residence to the daycare center where she remained an undetermined amount of time. Respondent has been paid worker's compensation benefits for the injuries sustained in the June 8, 1992, motor vehicle accident. Respondent has filed a tort claim against the alleged tortfeasors and she expects to repay the Petitioner for any worker's compensation benefits that she recovers as a result of that claim. Respondent reported for work when she was released by her treating physician.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order withdrawing the suspension and ultimate dismissal of Respondent and reinstate her to the position of an SLD teacher and make her whole for any loss of pay she sustained as a result of her dismissal. DONE AND ENTERED this 6th day of April, 1994, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2293 Rulings on Petitioner's proposed findings of fact: Paragraph 6, adopted as relevant, paragraphs 2 and 3, Recommended Order. Paragraph 8, adopted as modified, paragraph 7, Recommended Order. Paragraph 12, adopted as modified, paragraph 17, Recommended Order. Paragraph 14, adopted as modified, paragraph 15, Recommended Order. Paragraph 15, adopted as relevant, paragraph 14, Recommended Order. Paragraphs 16 and 17, rejected irrelevant. Paragraphs 18 and 19, adopted in the Preliminary Statement, paragraph 1. Rulings on Respondent's proposed findings of fact: Paragraphs 5 and 6, adopted as modified, paragraph 22, Recommended Order. Paragraph 9, adopted as modified, paragraph 20, Recommended Order. Paragraphs 10 and 11, rejected, irrelevant and/or subordinate. Paragraphs 15 and 16 rejected, argument. Paragraph 18, rejected, not probative. COPIES FURNISHED: Robert G. Walker, Jr., Esquire 1432 Court Street Clearwater, Florida 34616-6147 Lawrence D. Black, Esquire 650 Seminole Boulevard Largo, Florida 34640-3625 Douglas L. "Tim" Jamerson Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Dr. J. Howard Hinesley Superintendent Pinellas County Schools 301 Fourth Street, Southwest Largo, Florida 34640-3536
The Issue The issue is whether Respondent violated Subsection 489.129(1)(q), Florida Statutes (2008),1 by allegedly failing to satisfy within a reasonable time the terms of a civil judgment relating to the practice of the licensee's profession.
Findings Of Fact Petitioner is the agency charged with regulating building contractors in Pinellas County, Florida. Respondent is a building contractor, pursuant to license number C-6811 (RB0042337).2 Respondent is the primary qualifying agent for Timberlore Construction, Inc. (Timberlore). The business address of Timberlore is 2142 B Palm Harbor Boulevard, Palm Harbor, Florida 34683. On February 14, 2002, Timberlore contracted with Cox Air Conditioning and Heating, Inc. (Cox), for the installation of an air-conditioning system at a construction site at 19636 Gulf Boulevard, Indian Shores, Florida 33785. A dispute arose between Timberlore, as the general contractor, and Cox, as the subcontractor. As a result of the dispute, Timberlore sued Cox for breach of contract and negligence and for attorney’s fees and costs. After a non-jury trial, the court entered two final judgments. The first final judgment, entered on December 4, 2008, was a determination of liability. The court found that Cox was not liable for the failure of the air-conditioning unit that Cox had installed. Rather, the court found that excessive humidity caused the failure of the air-conditioning unit and damage to the premises and that the condition was aggravated by Timberlore. The court found that Cox was the prevailing party entitled to attorney’s fees and costs from Timberlore. The second final judgment against Timberlore determined the amount of attorney’s fees and costs. The court ordered Timberlore to pay attorney’s fees of $80,775.00 and costs of $30,423.79 plus annual interest of eight percent. Timberlore repaired the damaged air-conditioning system at the construction site. There is no harm to the consumer. Respondent disputes whether attorney’s fees and costs awarded by a court in a dispute between a contractor and a subcontractor relate to the practice of the licensee's profession within the meaning of Subsection 489.129(1)(q). The only evidence relevant to this issue was the testimony of Petitioner's witness.3 The fact-finder finds the testimony of Petitioner's witness after cross-examination to be credible and persuasive and agrees that the judgment for attorney’s fees and costs, under the facts and circumstances in this case, relates to the practice of the licensee's profession. Respondent has failed to satisfy a civil judgment obtained against the business organization qualified by the licensee within a reasonable time in violation of Subsection 489.129(1)(q).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Pinellas County Construction Licensing Board enter a final order finding Paul W. Bourdon guilty of violating Subsection 489.129(1)(q) and suspending Paul W. Bourdon's license until the judgment is satisfied. DONE AND ENTERED this 27th day of April, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 27th day of April, 2010.
