Findings Of Fact On December 3, 1979, the petitioner forwarded to the Division of Administrative Hearings a request for a formal hearing in the instant case. On January 7, 1980, the hearing was scheduled for February 28, 1980 in Bradenton, Florida. The Notice of Hearing which was mailed to the Respondent at the address furnished the Petitioner was returned undelivered with no forwarding address. Attempts to locate the Respondent proved unsuccessful until June 5, 1981, at which time an investigator from the Board located the Respondent working as a foreman on a construction site in Clearwater, Florida, and served him with a copy of the Notice of Hearing. On April 15, 1978, the Respondent entered into a contract with Mollie Cooper to construct a 12' x 31' room addition including a family room, bedroom and bath, onto an existing residence. The contract price was $11,340.00. An initial payment of $5,670.00 was made on April 17, 1978 by Ms. Cooper to the Respondent's construction company, Southern Cross. In the contract, the Respondent agreed to complete the working drawings for the addition and to obtain building permits. The Respondent obtained a building permit for the project from the City of Bradenton, Department of Planning and Development on May 17, 1978. The Respondent began working on the addition in May of 1978. On May 30, 1978 workmen poured the slab for the addition. When Ms. Cooper awoke on June 4, 1978, she discovered approximately four inches of water in her house which was caused by the slab being poured at the wrong angle. Later that day, a workman arrived at Ms. Cooper's home and removed the ends of the roof including fascia and guttering. Nothing further occurred until June 29, 1978 when the Respondent delivered concrete blocks to Ms. Cooper's home. Ms. Cooper never spoke to the Respondent after June 29, 1978, but her lawyer did contact the Respondent's attorney regarding problems which she was having with the Respondent's work. The job was never finished by the Respondent and Ms. Cooper was required to spend approximately $1,500.00 to repair her home. The Respondent holds active registered contractors license No. RR 0012951. The City of Bradenton has no local licensing board.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent's license as a registered residential contractor be revoked and an administrative fine of $500.00 be imposed. DONE and ORDERED this 21st day of September, 1981, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1981. COPIES FURNISHED: Barry Sinoff, Esquire 2400 Independent Square One Independent Drive Jacksonville, Florida 32202
Findings Of Fact Peter C. Swebelius, Sr., holds certified residential contractor's license no. CRC005629. On or about February 12, 1975, Mrs. Betty Banko and Andrew Banko, of Cardinal Boulevard and Major Street, Daytona Beach, Florida entered into a contract with Peter C. Swebelius for the construction of a home at a cost of $42,496.19 (See Petitioner's Exhibit 1). The contractor agreed to construct a Nobel Home package 7365-B (a prepackaged home) as the second floor of a conventionally constructed first floor, as per revised plans drawn by Luis C. Geil and submitted by Schutte-Mochan, Inc. The licensee agreed to complete construction within sixty (60) days, subject to an extension of time for strikes, accidents or delays beyond the licensee's control. Licensee agreed to construct the home according to the specifications and cost estimates submitted to First Federal Savings and Loan Association of New Smyrna, who arranged construction financing. Luis C. Cell, the manager of the architectural firm who drew the Banko's house plan testified that flashing, a moisture barrier, should have been used to prevent vapor and water leakage from the first and second floors. He further testified that while the plans called for a metal flashing, other flashing such as felt paper would have been acceptable John H. Swebelius, the carpenter employed by Peter C. Swebelius testified that he installed black felt paper as a flashing and vapor barrier for the second floor around the entire home. He testified that in view of the fact that the Banko home was constructed by component and conventional methods, the contractor had to improvise in many areas in order to construct an acceptable home based on the plans submitted. He further testified that while the plans called for a step or spread footers for the floor, the specifications submitted to the lending institution called for a monolithic slab which was, in fact, used in this case. He testified that when there is a conflict between the written specifications and the plans, the written specifications control. Robert G. Howard, an architect registered since 1968 testified that the drawing plans submitted by the Banko's were incomplete. For this reason, he testified that a great deal of discretion was given to the general contractor and that it was common practice in the building trades that specifications govern plan drawings in the event of a conflict He therefore voiced his opinion that the contractor committed no wrong by utilizing a monolithic foundation as opposed to a spread footer foundation based on the conflicts. While he admitted that a written change order would have been a better procedure, he also stated that this procedure is seldom used in a single family dwelling Respecting the shape of the chimney which was upright with no curvatures, he stated that was merely a design preference and based on the overall design plan, the upright shape did not, in any material way, alter the salability or design of the Banko home Roy E Ransom, the mason contractor for the Banko residence, testified that Mrs. Banko visited the construction site frequently and voiced no complaint regarding the chimney. Evidence adduced during the course of the hearing revealed that during the construction of the Banko residence, heavy rainfall occurred and that in this regard, approximately 72 inches of rain fell during the time the Banko's home was under construction (See Respondent's Exhibit 6). Peter C Swebelius therefore offered his opinion that the water leakage problem resulted from standing rain which entered the Banko residence through a threshold, a problem which has now been corrected He testified that due to Mrs. Banko's directions to the lending institution to halt all construction draws, he was unable to complete the home and in essence that he was fired from the project. Arthur Eiland, an inspector for Volusia County testified that the Banko home was given a final inspection on April 22, 1977, and at that time, there were no deficiencies and in fact the house passed the inspection He further testified that this was the first final inspection request by Mrs. Banko and that no violations exist at this time. He testified further that when Mrs. Banko requests a certificate of occupancy, it will be issued by the building inspection department.
Recommendation Based on the foregoing findings of fact and conclusions of law, I hereby RECOMMEND: That the Respondent be issued a written reprimand for his deviation of the building plans respecting the chimney design in his construction of the Banko residence. RECOMMENDED this 29th day of July, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 Paul Hagglund, Esquire 1055 North Dixie Freeway Post Office Drawer J New Smyrna Beach, Florida 32069 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. DIVISION OF ADMINISTRATIVE HEARINGS, DOCKET NO. 76-784 PETER C. SWEBELIUS, SR. CR C005629, Route 1, Airport Road, New Smyrna Beach Florida 32069, Respondent. /
Findings Of Fact Respondent, Eric Ager, is a registered residential contractor in Florida, having been issued license number CR CA11771. Respondent held the license at all times referred to in these Findings Of Fact. Background While licensed and doing business as Ager Construction Company and Ager Homes, Inc., the Respondent has built 700 homes in Florida since 1975. There was no evidence of any prior disciplinary proceedings against him. Before 1983, the Respondent qualified and did business as Ager Construction Company. At about that time, the Respondent decided to retire and was given an opportunity to get his money out of the business when his older brother, Irwin, a Michigan licensed contractor since the early 1960's, offered to buy and operate the business. The Respondent agreed and sold his company to Ager Homes, Inc., the company his brother, Irwin, formed for this purpose. Since Irwin was not licensed in Florida, the Respondent agreed to stay on as the qualifying agent for Ager Homes, Inc., but his role was to be gradually phased out and eventually terminated when Irwin could replace him. Irwin was the sole shareholder and director of Ager Homes, Inc. He also was the president. The Respondent acted as vice-president for a time but later served only as resident agent for purposes of service of process for the company (as well as qualifying agent.) As qualifying agent for Ager Homes, Inc., the Respondent saw it as his job to be in the field and do the actual building. He and Irwin consulted before Irwin estimated a job, but otherwise all financial matters were handled exclusively by Irwin. When permanent financing on a job the Respondent was working on closed, Irwin would prepare an affidavit of no liens and an affidavit of no unpaid invoices. The affidavit of no liens also stated that "there have been no . . . services or material furnished to the property for which a valid lien could be filed, nor has there been material or services furnished to, or labor performed on said property for which there are unpaid bills." The Respondent generally did not sign or even see these affidavits. The DeSantis On July 6, 1985, Ager Homes, through Irwin, entered into a contract to sell the DeSantis an $89,000 house to be built on a lot in a subdivision called Coventry. The sales price included a swimming pool and screened pool area enclosure. On or about October 17, 1985, Ager Homes, through its foreman, Randy Martin, subcontracted with National Screen & Aluminum, Inc., for the screen enclosure. The original contract price was $4,169. Later, on Martin's recommendation, the DeSantis requested that the screen enclosure be enlarged and the roof gabled. Martin entered into an addendum for the additional work by National Screen, at an additional cost of $622. National Screen's work was completed the morning of the closing on October 30, 1985. Irwin left a signed affidavit of no liens and affidavit of no unpaid bills with the closing agent (along with the other papers he had to sign), and the transaction closed as scheduled. In accordance with the practice of Ager Homes, the Respondent knew nothing about the affidavits but assumed that they would be given at the closing, as usual. In fact, National Screen had not been paid in full, and there was still a balance due of $3,399 as of April 1986. National Screen filed a claim of lien, and its successor, Design Aluminum, sued in February 1986, to foreclose the lien. The DeSantis hired legal counsel, and a judgment was entered in the DeSantis' favor in May 1987, based on the technicality that National Screen's November 5, 1985, notice to owner was too late. The Respondent knew nothing about either the National Screen subcontract or the affidavits until after March 1986. In the fall of 1985, Irwin had begun to have financial difficulties. They stemmed from the development of the Coventry subdivision. Muck and ground problems required the unforeseen expenditure of $100,000 to $200,000. Irwin was unable to maintain a healthy cash flow. By March 1986, Irwin also had begun to have personal problems, including a death in the family. During the week of March 15, 1986, Irwin left Florida and abandoned Ager Homes. Irwin left the Respondent 70 to 80 unpaid invoices to deal with. The Respondent operated the business for some time and tried to get Ager Homes' bills paid. In the case of the National Screen lien, the Respondent believed the title company would pay the lien and sue Ager Homes far reimbursement, but the title company refused to pay on the ground that the lien was not a covered title defect. After this became apparent, the Respondent still did not arrange to have the debt paid. He vaguely understood from Irwin that the job had cost more than it should have, but he never investigated to learn the true facts and never denied that the debt was valid. The Schultzes On June 21, 1985, Ager Homes, through Irwin, contracted with the Schultzes to build a house on a lot in Coventry for a price of $115,000. On the Schultz job, there was a difficulty with the air conditioning. The air conditioning would not operate effectively. After much experimenting, it was decided that an additional unit would be necessary. The transaction closed on November 7, 1985, before the additional air conditioning unit was added. Irwin signed and provided an affidavit of no liens and affidavit of no unpaid invoices at the closing. In accordance with the practice of Ager Homes, the Respondent knew nothing about the affidavits but assumed they would be given at the closing, as usual. Ager Homes subcontracted the air conditioning system to Airtron, Inc. The original price was $2500. With the additional unit added after the closing, the total due to Airtron was $2781. This amount never was paid. In February 1986, the Respondent and Irwin gave Airtron a promissory note for $12,000, which included the $2,781 on the Schultz job. In April 1986, Airtron filed a claim of lien on the Schultz property. By August 1986, Irwin had left, and the Respondent had not kept Ager Homes current on new billings by Airtron. On August 7, 1986, the Respondent signed another promissory note to Airtron for the balance due, which by then had grown to $26,000. On October 31, 1986, the Schultzes paid the $2781 lien when they closed the resale of their house in Coventry. The Respondent has paid a total of approximately $5000 on the debt, leaving $18,600 due and owing. At first, the Respondent thought the title company would pay Airtron and sue Ager Homes for reimbursement. Eventually, it became apparent that the title company would not pay.
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: (1) suspending the residential contractor license of the Respondent, Eric Ager, until such time as he has paid Design Aluminum and Airtron, Inc., in full on the outstanding accounts of Ager Homes, Inc., and reimbursed the Schultzes what they paid to clear the Airtron lien from their property, up to a maximum suspension of two years; and (2) after the suspension, either (a) reinstating the license, subject to a one year probation, if the Respondent can demonstrate good faith, diligent efforts to pay the debts, or (b) revoking the license for failure to make good faith, diligent efforts to pay the debts. RECOMMENDED this 24th day of September 1987, 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 24th day of September 1987. COPIES FURNISHED: W. D. Beason, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750 Eric Ager 3041 Xevlyn Ct. Safety Harbor, Florida 33572 Fred Seely Executive Director Construction Industry Licensing Board Department of Professional Regulation P. O. Box 2 Jacksonville, Florida 32201 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
Findings Of Fact Triton is a Florida corporation located in Brooksville Florida, which performs land development and construction work for Gulf Coast Diversified Corporation, owned by the same people who own Triton. Triton owns an asphalt "hatching" plant which mixes sand and aggregate with liquid asphalt which is then used as paving material. All asphalt so mixed was used by Triton and no outside sales were made. Gulf Coast Diversified Corporation contracted with Triton for site development of certain realty. The contract included the construction of roads and parking lots. The contract price was computed on a lineal foot basis for the roads and on a square yard basis for parking lots. Triton, using the asphalt mixed in its batching plant, completed the work contracted for. In addition, Triton contracted with Gulf Coast Diversified Corporation for sewer construction which included the construction of manholes fabricated from concrete batched by Triton. No concrete was ever sold to any other outsiders. The cost of the concrete was included in the overall contract price and was not separately itemized. Triton's books of account show concrete sales in the amount of $168,569.36 during the audit period. This figure reflects a $20.00 per yard "market" value of concrete which Triton picked up in its books for its own internal accounting purposes. The figure represents some 8,428 yards of concrete actually sold. For sales tax purposes, Triton valued the concrete at about $13.74 per yard, a figure established by DOR in a previous audit, and remitted 4 percent of the total value of $115,835.25 of the State of Florida. During the audit, DOR noted that 4 percent of the bookkeeping entry for concrete sales was $6,742.77, while only $4,633.41 was received as sales tax. Consequently DOR assessed Triton an additional $2,109.36 plus penalties and interest. The difference, however, reflects only differential per yard valuation of the concrete and not additional concrete yardage.
