The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of alleged violations of Subsections 489.129(1)(g), (h)1, (h)3, (n), and (p), Florida Statutes (1993).
Findings Of Fact At all times pertinent to this proceeding, the Respondent was a certified building contractor, having been first issued license number CB C012666 in his individual name by the Florida Construction Industry Licensing Board in 1978. License number CB C012666 was subsequently issued to the Respondent as the qualifying agent for GMG Investment Company. The Respondent has renewed the license on a regular basis and continues to be licensed as the qualifying agent for GMG Investment Company. The most recent renewal was for the 1996-98 renewal period. Hurricane Andrew caused severe damage to the Miami home of Mr. Robert Richardson. The damage was so extensive that it was necessary to demolish the house and rebuild it. Mr. Richardson had homeowner’s insurance that covered most, if not all, of the cost of rebuilding his home. The Respondent, acting in his capacity as qualifying agent for GMG Investment Company,3 made a proposal on behalf of GMG Investment Company to rebuild Mr. Richardson’s home. Mr. Richardson accepted the proposal, and on November 11, 1992, Mr. Richardson entered into a contract with GMG Investment Company for the latter to rebuild his home for a contract price of $97,310.00. The master building permit was issued to GMG Investment Company on December 10, 1992. During the course of the work on Mr. Richardson’s home, the Respondent contracted with numerous subcontractors to provide labor and materials for the completion of the project. Two of the subcontractors filed liens against Mr. Richardson’s property. On September 22, 1993, Optima Flooring, Inc., recorded a lien in the amount of $8,919.42 against Mr. Richardson’s property. The lien related to floor covering materials Optima Flooring, Inc., had delivered and installed at Mr. Richardson’s home. The Respondent had not paid Optima Flooring, Inc., because he was not satisfied with some of the work it had done. After some discussions with Mr. Richardson, the Respondent ultimately agreed that he would resolve the dispute with Optima Flooring, Inc., by no later than February 4, 1994. The Respondent did not resolve the dispute with Optima Flooring, Inc., by the agreed- upon date, and on February 16, 1994, Mr. Richardson paid $9,225.42 in order to satisfy the Optima Flooring, Inc., lien. The amount paid by Mr. Richardson included interest, attorney fees, and costs. On October 27, 1993, Florida Builder Appliances, Inc., recorded a lien in the amount of $2,930.90 against Mr. Richardson’s property. The lien related to appliances Florida Builder Appliances, Inc., had delivered for incorporation into Mr. Richardson’s home.4 The Claim of Lien recorded by Florida Builder Appliances, Inc., shows on its face that it was filed more than ninety days after the last day on which Florida Builder Appliances, Inc., provided services or materials to the subject property. On February 11, 1994, Florida Builder Appliances, Inc., filed a Notice of Lis Pendens against Mr. Richardson’s Property. Florida Builder Appliances, Inc., also filed a civil action in County Court in Dade County, Florida, to foreclose its lien. On March 3, 1997, counsel for GMG Investment Company filed a motion to dismiss the civil action filed by Florida Builder Appliances, Inc. On April 20, 1994, Florida Builder Appliances, Inc., served a Notice Of Dismissal With Prejudice, by means of which it dismissed its civil action and vacated the Notice of Lis Pendens it had earlier filed. In the meantime, without advising the Respondent that he was doing so, on February 18, 1994, Mr. Richardson paid $3,661.00 in order to satisfy the Florida Builder Appliances, Inc., lien. The amount paid by Mr. Richardson included interest, attorney fees, and costs. Shortly after Hurricane Andrew, the prices for construction materials in the Dade County area sharply increased. As a result of those increases, the Respondent eventually realized that it was not going to be possible to complete Mr. Richardson’s home for the amount agreed to in the contract. This unfortunate result was due to the Respondent’s inability to anticipate how much construction costs would increase in the aftermath of Hurricane Andrew. It was not due to incompetence or misconduct. All of the funds paid by Mr. Richardson were used by GMG Investment Company for the construction of Mr. Richardson’s home. None of those funds were used for any other purpose. The Respondent has not been the subject of any prior license discipline proceedings.
Recommendation On the basis of all of the foregoing it is RECOMMENDED that a final order be issued in this case dismissing all charges against the Respondent. DONE AND ENTERED this 28th day of August, 1997, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1997.
The Issue Whether the Respondent violated the statutes by committing the acts alleged in the Administrative Complaint?
Findings Of Fact Respondent is a registered residential contractor having been issued license number RR 0030688. Respondent's last known address is c/o Griffin Remodeling & Repairs, 7443 Laura Street, Jacksonville, Florida 32208. On July 9, 1982, Respondent, as qualifier for Griffin Remodeling & Repairs, entered into a contract with Freddie L. Jarrell to repair his home at 2121 Forbes Street, Jacksonville, Florida for $1,000.00. On August 4, 1982, Respondent entered into a second contract with Jarrell to do additional work of the same nature on the home. These contracts included painting and retiling a bathroom in the home. In August 1982, Respondent, or his workmen removed plumbing fixtures in Jarrell's bathroom without obtaining a plumbing permit. Failure to pull a plumbing permit in a timely manner for this type of project is a violation of the Building Code of the City of Jacksonville. The tile was reworked but the plumbing was not reinstalled. There was a controversy between Respondent and Jarrell over who was responsible for plumbing. Respondent arranged for the plumbing to be reinstalled; however, he did not pay for it. The plumber reinstalled the fixtures and thereafter pulled a permit after paying a late fee. On August 6, 1982, Respondent sought payment for both of the above- referenced contracts. Jarrell refused until Respondent promised to do all work remaining under the contract. The Respondent gave Jarrell a note signed by his secretary which stated Respondent would fix the water closet (toilet), paint the attic screen, reinstall light switches, and remove tile from the front yard. The Respondent did not reinstall the switches and reset the water closet. Respondent was repeatedly contacted and notified by Jarrell that there were items still left undone. Respondent did not return to the project to do those things that he had promised to do. Respondent was at no time licensed to do plumbing work; however, frequently contractors will pull out fixtures and pay the penalty for not pulling the permit which costs less than having the plumber come out on the job twice.
Recommendation Having found the Respondent guilty of violating Section 489.129(1)(c), (d) and (j), it is recommended that his license be suspended for one year and he be given credit for the year during which he was incarcerated and did not practice. DONE and ORDERED this 16th day of April, 1985, in Tallahassee, Florida. STEPHEN F. DEAN 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 16th day of April, 1985. COPIES FURNISHED: Douglas Beason, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Troy Griffin 7443 North Laura Street Jacksonville, Florida 32208 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Department of Professional Regulation Construction Industry Licensing Board P.O. Box 2 Jacksonville, Florida 32202
The Issue Whether respondent committed the violations alleged in the Notice to Show Cause, and if so, whether its license should be revoked or suspended, or whether a civil penalty should be imposed.
Findings Of Fact At all times relevant- to this cause, Real Estate Rentals, Inc. held license number 39-926-H issued by the Department of Business Regulation, Division of Hotels and Restaurants (Division) for the premises known as Ippolito Apartments located at 112 South Brevard Avenue, Tampa, Hillsborough County, Florida. The president of Real Estate Rentals, Inc. is E. L. Ippolito. On February 27, March 14, and March 25, 1986, Pablo Mercado inspected the Ippolito Apartments. Mr. Mercado is employed by the Division as an Environmental Health Specialist and his duties include the inspection of hotels, apartments, and other buildings. Mr. Mercado inspects between 40 and 50 buildings a week. Each building is routinely inspected four times a year. When Mr. Mercado inspected the Ippolito Apartments on February 27, 1986, he found several conditions which he considered to be statutory or rule violations. Mr. Mercado noted these violations on a standard form of the Division. The Division's form lists various items numbered 1-36. Items 1 (Fire Extinguishers), 5 (Fire Hazards), 11 (Building Repair/Painting), and 19 (Screening) were checked on the form as minor violations, and comments were made concerning each item. As to Item 1, Mr. Mercado noted that no fire extinguishers were in the building and that a fire extinguisher was needed on each floor or one in each apartment. As to item 5, Mr. Mercado noted that furniture needed to be removed from the hall. As to item 11, Mr. Mercado made the following comments: Need window facing st. apt. #1. You need a window in bathroom apt. #1. Paint inside bldg. Stairs need repair. Hole in bathroom floor apt. #3. Water leaking in the bathroom from the upstairs apt. into apt. #1. As to Item 19, Mr. Mercado noted that all the screens missing on the windows had to be replaced. The form was sent to Real Estate Rentals, Inc., with the indication that the document was a warning and that all violations had to be corrected by March 14, 1986. When Mr. Mercado made his inspection on February 27, 1986, he did not observe a hole in the bathroom floor in apartment #3 or observe any water leaking into the bathroom in apartment #1, and there was no competent evidence presented at the hearing to establish that either of these conditions existed. Mr. Mercado did observe that there were no fire extinguishers in the hall, and he did go into one apartment and observed that there was not a fire extinguisher in that apartment. Two other tenants informed him that they did not have a fire extinguisher in their apartments. Mr. Mercado observed that one of the windows facing the street contained no window pane but simply had a plastic bag taped over the window frame on the outside of the building to cover the empty space. On other windows jalousie slats were missing, and the window on the bathroom of apartment #1 was covered with a piece of plywood. Some screens were missing and some screens were torn up. One of the steps on the stairs was missing part of the two-inch lip, which created a hazard to individuals using the stairs. On March 14, 1986, Mr. Mercado made a return inspection. He noted that the furniture had been removed from the hall. However, he did not feel that any of the other violations listed had been corrected. Therefore, Mr. Mercado filled out a Call Back/Re-Inspection Report", which referred to the warning issued on February 27, 1986, and made the following comments: Violations: #1--#5--#11--#19 (See DBR-226) Only violation #5 is complied. The rest of the violations #1,#)1,#19 are not complied. The report indicated that the time to correct the violations had been extended to March 24, 1986. This report was sent to the respondent by certified mail. On March 25, 1986, Mr. Mercado again inspected the Ippolito Apartments. The conditions had not changed from the time of his previous inspection on March 14, 1986. Mr. Mercado visited the Ippolito Apartments again on April 7, 1986, and also on June 10, 1986. The pictures admitted into evidence as petitioner's exhibits No. 6 were taken on June 10, 1986. On June 10, 1986, the building was in the same condition as it had been on February 27, March 14, and March 25, 1986, except that several of the windows on the front of the building had been replaced with plywood boards. Mr. Mercado did not believe that the replacement of the windows with the boards corrected the violation as to the windows, but he could not remember whether the windows had been replaced with the plywood as of March 14th or the March 25th inspection, or whether they were replaced at a later time. Since slats were still missing from other windows on all of his inspections, he did not feel the violations as to the windows had been corrected. By June 10, 1986, the windows in front of the apartment had been replaced with plywood backed by 2 x 4 studs. According to Mr. Howell, who performed the work, the replacement of the windows with the plywood structure occurred approximately 2 1/2 months prior to the hearing, which would have been early or mid-April, 1986. In that the only competent evidence as to the date of the replacement of the front windows was Mr. Howell's testimony, it is found that the windows in the front of the building had not been replaced with plywood at the time of Mr. Mercado's inspections on March 14 and March 25, 1986. There was no competent evidence presented as to the condition of the windows in the front of the building on March 14 or March 25, 1986.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner enter a final order finding respondent guilty of three violations of Rule 7C-1.03(1) and one violation of Rule 7C-1.04(1) on February 27, March 14 and March 25, 1986, as set forth in charges 1 through 4 of the Notice to Show Cause, finding respondent not guilty of the violations set forth in charges 5 and 6 of the Notice to Show Cause, and imposing a total civil penalty of $975 assessed as follows: (1) failure to provide adequate fire extinguishers, $100 for each offense for a total of $300, (2) failure to maintain windows in good repair, $100 for each offense for a total of $300, (3) failure to maintain stairs in good repair, $50 for each offense for a total of $150, (4) failure to maintain screens in good repair, $75 for each offense for a total of $225. DONE and ENTERED this 9th day of October, 1986, in Tallahassee, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1800 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings On Proposed Findings of Fact Submitted by the Petitioner 1. Accepted in paragraph 1. 2.-3. Accepted generally in paragraph 2. Accepted in paragraph 3. Accepted in paragraph 4, except that competent evidence showed only that at least one apartment did not have fire extinguisher. The only evidence as to other apartments was hearsay. Rejected as immaterial. Rejected as immaterial in that evidence showed there was not a fire extinguisher in each apartment. 8.-9. Accepted in paragraph 4. 10. Rejected as irrelevant in that respondent was never notified or charged with a violation based on that condition. 11.-12. Accepted generally in paragraph 4. 13. Accepted in paragraph 3. 14.-15. Accepted in paragraph 5. Accepted in paragraph 6. Accepted in background, not finding of fact. Accepted in part in paragraph 7, however, whether violations were corrected was irrelevant because respondent was not charged with violations on April 17, 1986. Rejected as not a finding of fact in that it is a recitation of testimony. Rejected, date of repair set forth in paragraph 8. 22.-23. Rejected as immaterial and as recitation of testimony. 24. Rejected to the degree it is a finding of fact in that replacement of windows occurred after relevant time period. 25.-31. Rejected, not finding of fact. Rulings On Proposed Findings of Fact Submitted by the Respondents Accepted in paragraph 1. Rejected as irrelevant and also not supported by the evidence in that a violation was noted for correction. Accepted in paragraph 3. Accepted in part and rejected in part as set forth in paragraph 4. Accepted in paragraph 5. Accepted in part in paragraph 8, however, repair work irrelevant since it occurred after date of inspections. Rejected as irrelevant. Accepted in part in paragraph 4. Whether bathroom had exhaust fan is irrelevant since the issue was whether the window was in good repair. Reject that Mr. Mercado was not a credible witness. COPIES FURNISHED: James Kearney, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 R. Hugh Snow, Director Department of Business Regulation Division of Hotels and Restaurants The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 Lynne A. Quimby, Esquire Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 Mr. Emilio L. Ippolito 901 South Rome Avenue Tampa, Florida 33606
Findings Of Fact Respondent is and at all material times has been a licensed residential contractor in the State of Florida. He holds license No. RR 0039483. He has been a licensed contractor for 36 years, including the last seven years in Florida. In late December, 1985, Jessie Lee entered into a written contract with Respondent for the construction of a home at 3010 Surf Drive in Deltona, Florida. The contract called for Respondent to construct a completed house for the sum of $34,000. In the contract, Respondent warranted the house "against defects in material and workmanship for one year from date of final settlement or issuance of Certificate of Occupancy." By a separate document styled, "Contractor Warranty," Respondent attested as follows: That, for a period of one year from the date of the sale, all workmanship, and materials are guaranteed by [Respondent] and that, should any defect in workmanship become evident during that period, that defect will be repaired, replaced or corrected, as the case may be, at no cost to the said purchasers by [Respondent] . . . . The Contractor Warranty was notarized on June 13, 1986. Construction commenced in March, 1986. Sometime after the ordering of the roof trusses, Mr. Lee and Respondent agreed to the addition of a screened porch to the back of the house. Respondent commenced construction of the screened porch prior to the issuance of the building permit for the porch. The addition of the screened porch created a new roof gable. The failure to change the truss design for the rest of the roof left a roof valley that was misplaced by about two feet. The misplaced valley created a flat area on the roof. The slope or pitch in this area was no more than 2 1/2" per 12". Respondent was at all times aware that the pitch did not meet the manufacturer's minimum technical standard of 3" per 12" for the subject shingles. Respondent felt that, based on past experience, such a slight discrepancy would not cause any problems. In late May, 1986, prior to the completion of construction, Mr. Lee reported to Respondent rain leakage over the screened porch on three occasions. Respondent spread asphalt tar over the affected area on each occasion. Closing occurred on June 11, 1986. Mr. Lee made the last payment due Respondent under the construction contract on June 24, 1986. After closing, the roof continued to leak over the screened porch. Mr. Lee's many telephone calls to Respondent's office went unanswered. Mr. Lee called Respondent's home twice, but received no response. In the case of each telephone call, Mr. Lee would speak with Respondent's wife or daughter, who worked in his office, and would be assured that Respondent would be by Mr. Lee's house sometime. Mr. Lee received no response from Respondent during the rainy months of June through August, 1986. The summer rains damaged the screened porch ceiling and walls with water damage and mildew. Finally in late August, 1986, Mr. Lee took his problems to the Volusia County Building Department. On September 4, 1986, the Volusia County Sheriff's Office served Respondent with a Violation Notice giving Respondent ten days to fix the faulty roof. In response to this notice, Respondent sent one of his workers to Mr. Lee's house to paint over or treat the discoloration on the walls caused by water penetration. The repainting or treatment left the affected portion of the walls considerably darker than the remainder of the walls. More significantly, no repairs to the roof were attempted at this time. In late September, 1986, Mr. Lee personally visited Respondent's office. He asked Respondent when he was going to fix the roof. Respondent would not let Mr. Lee into the office. Respondent assured Mr. Lee, "I'll get it someday." Nothing further occurred until October 7, 1986, when Respondent received a building permit from the Volusia County Building Department. The permit was for a building repair job. Respondent attached to the permit a drawing dated October 5, 1986, calling for moving the valley two feet to eliminate the flat area and replace it with a 3/12 slope. No repairs were ever attempted under this permit. Mr. Lee then took his problems to Petitioner in December, 1986. On May 27, 1987, the Volusia County Sheriff's Office served Respondent with a Notice of Hearing, Notice of Violation, and Request for a Hearing before the Volusia County Building Code Enforcement Board. Mr. Lee and Respondent were jointly cited by the Volusia County Building in the Notice of Violation. The hearing was set for June 15, 1987. On June 1, 1987, Respondent received a second building permit to repair the roof. Pursuant to a request by the Volusia County Building Department, Respondent attached to the permit request architectural drawings specifying the placement of a roof "cricket" in order to relocate the mislocated valley and thereby eliminate the flat area over the screened porch. The job was completed and reinspected by the Volusia County Building Department on June 9, 1987. The June 15, 1987 hearing was then cancel led. The roof has continued to leak to some degree following this repair. Although Respondent personally inspected the interior damage in June, 1987, and promised later to repair it, he has never done so. Photographs suggest that the interior water damage is greater now than it was after Respondent's interior repair job in September, 1986. However, there is no competent evidence as to the extent of the leakage since the June, 1987, exterior repair job. Further, Mr. Lee has not contacted Respondent since June, 1987, with respect to the ongoing leakage. On August 14, 1987, Petitioner entered a Final Order in Department of professional Regulation v. Louis Bouchard, Case No. 59700. The Order approved a settlement entered into on January 30, 1986, under which Respondent admitted the allegations of the Administrative Complaint and agreed to the imposition of a $500 fine. In that case, Respondent agreed to install a fireplace following the issuance of a building permit for a house without a fireplace. Following construction of the fireplace, structural problems caused by an inadequate or absent footer and foundation required the rebuilding of the fireplace.
The Issue Whether Respondent should be disciplined for violating Sections 489.129(1)(h) and (m), Florida Statutes?
Findings Of Fact At all times relevant, Respondent was licensed as a certified building contractor in the State of Florida, holding license number CB C033338, and doing business under the name of Mark V. Ansley Building Contractors. On April 17, 1987, Respondent entered into a Construction Agreement with Mr. Kersey. The Agreement called for Respondent to build a house containing two bedrooms, one and one- half baths and a one-car garage in exchange for $31,860. Under the Agreement, construction was to begin on April 21, 1988. However, due to a problem with the lot on which the house was going to be built, there were delays. Mr. Kersey then decided to build the house on a lot across the street from the original lot. The lot was cleared on May 1, 1987, by Mr. Morris Snell. The septic tank permit was issued on June 17, 1987. The construction permit was issued on June 22, 1987. Construction of the residence began a week later and the slab was poured the second week of July, 1987. After the slab was poured, Mr. Kersey determined that the foundation was approximately 890 square feet instead of the 944 contracted for. After some negotiations between Mr. Kersey and Respondent, they agreed that Respondent would add a Florida room to make up the difference in square footage. The foundation for the Florida room was built four inches lower than the main house. There were problems with the roof trusses and with the framing which were corrected by Respondent. The company which manufactured the roof trusses sent the wrong trusses to the house. Mr. Kersey, who was present at the house when the trusses were being installed, noticed they were the wrong ones and stopped work on the house. After Respondent was informed, he notified the truss company and the correct trusses were delivered approximately ten days later and installed. The initial framing of the house was deficient and did not pass inspection. Respondent fired the persons who had done the framing, fixed the problems, and the framing passed inspection. Also, the persons framing the house left out a closet in one room of the house, but upon being informed, this was corrected. By this time, Mr. Kersey had made two payments to Respondent pursuant to their agreement. The first payment was for $3,100 and the second for $4,000. After the house was framed, Respondent expected to be out of town for two to three weeks. Respondent told Mr. Kersey that he was having problems collecting money from other jobs and that he would be unable to meet the construction schedule unless he had the money to pay for the necessary supplies right on the spot rather than waiting until Mr. Kersey returned. Mr. Kersey gave Respondent $15,000 in advance to allow Respondent to continue working on the house while he was gone. At this same time, July 18, 1987, Respondent and Mr. Kersey agreed that the house should be completed by September 15, 1988. Mr. Kersey returned from his trip in about 10 days and noticed that nothing had been done on the house. Mr. Kersey was unable to contact Respondent for two weeks, even though he wrote Respondent a letter and left messages with Respondent's secretary and on a telephone answering machine. During this period of time, Mr. Kersey hired an attorney. On August 1, 1987, Mr. Kersey finally spoke with Respondent about the lack of progress on the house. The Respondent told Mr. Kersey that it had rained almost constantly for 10 days and needed materials could not be delivered to the house. Respondent continued to do work on the house. Respondent contracted with a company to deliver and install windows. The window company in turn hired a subcontractor to install the windows. The subcontractor installed the windows improperly and eight of the sixteen windows had to be replaced by someone other than Respondent. Mr. Kersey agreed with Respondent that he would pay $1300, in addition to the contract price of the house, for the installation of a septic tank and drain field at the original location for the house. Respondent obtained the septic tank permit and arranged to have Mr. Carver of Carver's Septic Tank install the septic tank at the new location. Mr. Carver's estimate for the job was $1,810 and he agreed to do the job on the assurance by Mr. Kersey that he would pay for the job. Mr. Carver placed the septic tank and drain field at a location different from that which had been requested by Mr. Kersey and different from that shown on the survey map on file with the permit application at the Department of Health and Rehabilitative Services. In preparing the ground for the septic tank, Mr. Carver dug up the roots of an existing oak tree to a depth of from three to six feet around three-fourths of the tree's circumference. Also, the septic tank was located in close proximity to a three- inch free-flowing artesian well. The Department of Health and Rehabilitative Services initially gave its approval for the septic tank to be covered up. But after Mr. Kersey met with the Department's staff, the department disapproved the septic tank because it was located too close to the well. Mr. Carver did not finish work on the septic tank because he was not paid for the work he had done. In order to obtain approval for the septic tank, Mr. Kersey had to "abandon" the artesian well. This was accomplished by pouring 12 sacks of concrete into the well and pipe to seal it off. This job cost Mr. Kersey $840.00. Mr. Kersey also hired another company to complete the septic tank and drain field, and had to pay $700 to move the drain field. Sometime in August and September, Mr. Kersey began receiving information that some of the suppliers and subcontractors for the house had not been paid by Respondent and that liens would be placed on the property if they were not paid. Eventually, three companies filed claims of lien against the property. Sometime in September or October, Mr. Kersey posted signs on the house which stated that no further work was to be done on the house. When Respondent contacted Mr. Kersey, he was referred to Mr. Kersey's attorney. Respondent indicated to the attorney that he wanted to complete the job, and he was allowed to continue working on the job. During the next two weeks Respondent had the drywall and cabinets installed, put in the driveway, and painted. However, at a subsequent meeting with Mr. Kersey and his attorney, Mr. Kersey was not satisfied with the way the house was being built and stated he did not want Respondent on the job any more. Respondent did no more work on the house. On November 13, 1987, Mr. Kersey and Respondent met for the purpose of determining which subcontractors and suppliers had not been paid. At that time Respondent indicated that five subcontractors and suppliers had not been paid and that they were owed a total of $12,199. However, there were other subcontractors who had not been paid. In May, 1988, Mr. Kersey hired another contractor to complete the house. Mr. Kersey initially agreed to pay $9,400 for the work of this contractor, but ended up paying $14,000 because the contractor had to do work which was not included in the initial contract. Part of the work done by this contractor consisted of fixing or replacing a six-foot sliding glass door, three interior doors, and one exterior door which had been installed under Respondent's supervision. As mentioned in Findings of Fact 26, supra, three liens were placed on the property by materials suppliers. The three liens were perfected by Davis Windows, the company with which Respondent contracted for the purchase and installation of the windows for $1,888.22; Holmes Lumber Company, a company which provided building materials and supplies, for $4,032.08; and Gator Door for $1,152.93. Mr. Kersey is contesting the lien placed by Davis Windows. He has paid the amount due Holmes Lumber. He has not paid Gator Door. In addition to the companies which filed liens, the company that installed the cabinets was not paid at the time the cabinets were installed. Respondent paid for the cabinets on April 6, 1988. Also, Respondent paid Davis Windows $1,000, in March, 1988 and paid Gator Door $500 sometime in 1988. Finally, Respondent sent $1,500 to Holmes Lumber, ostensibly for Mr. Kersey's account, but the $1,500 was credited to another of Respondent's accounts which was in arrears. Respondent has entered into an agreement with Mr. Kersey to repay the amounts he may be owed due to Respondent's actions.
Recommendation Based upon the foregoing Findings of Fact and Conclusion of Law, it is RECOMMENDED that Petitioner enter a final order imposing a $1,750 fine on Respondent. DONE and ORDERED this 6th day of December, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES 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 6th day of December, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2746 The Petitioner submitted proposed findings of fact which are addressed below. Paragraph numbers in the Recommended Order are referred to as "RO ." Petitioner's Proposed Findings of Fact Proposed Finding of Fact Number Ruling and RO Paragraph 1. True, but not a finding of fact. 2., 3. Accepted generally. RO1. The evidence is unclear as to whether Mr. Ansley's business is incorporated. 4. Accepted. RO2. However, when the 120 days began to run cannot be determined. The original contract had to be amended from the beginning, since no construction took place on the original lot. 5. Subordinate to facts found. See RO3. 6. Accepted. RO 5., 6. 7. Rejected as irrelevant. Also, the evidence presented does not establish that Respondent is responsible for Mr. Kersey paying $1,220 to Mr. Snell. 8. Rejected as not supported by competent evidence. The evidence is contradictory as to when construction would begin. The septic tank and construction permits were not issued until June. 9. Rejected as irrelevant. 10. Rejected as irrelevant. 11. Accepted generally. RO2. 12. Accepted. RO8. Accepted. RO14-l5. Accepted. RO16-18. 15, 16. Accepted. RO20. 17, 18. Accepted as modified in RO 21-25. Second and third sentences of 17 are rejected as not supported by competent evidence. See also discussion of this issue in Conclusions of Law section of this RO. 19. Accepted. RO 27-28. 20., 21., 22. Accepted. RO 26., 30., 33. 23. Accepted generally. RO 29, 31. 24., 25., 27., 28., 29. Rejected as not findings of fact. Also, the opinions of Mr. Adams were based, in part, on evidence which was not presented at the hearing. Additionally, it is unclear that Respondent was charged with some of the violations alleged by Mr. Adams. 26., 30-34. Rejected as irrelevant and a recitation of testimony. COPIES FURNISHED: Elizabeth Alsobrook, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mark V. Ansley 7004 Luke Street Jacksonville, Florida 32210 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Department), is a state government licensing and regulatory agency charged with the duty and responsibility to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, and Chapters 120, 455, and 489, Florida Statutes, and the rules promulgated pursuant thereto. At all times material hereto, Respondent, Lawrence C. Bright, was licensed by the Department as a certified general contractor, having been issued license number CG C032808, and was the qualifying agency for Briden Enterprises, Inc. (Briden).2 In May 1995, Raul Hernandez, Sr., suffered storm damage to his residence at 341 Northwest 63rd Court, Miami, Florida. Consequently, Mr. Hernandez filed a claim with his insurance carrier, Bankers Insurance (Bankers). Briden, on behalf of Bankers, inspected the property and by letter of June 13, 1995, provided Bankers with a written estimate to repair the damage. The scope of the work included the replacement of two roofs, a solar-panel, and awnings, together with other miscellaneous work. The cost was stated to be $13,264.20. Following the inspection, Mr. Hernandez employed Briden to undertake the needed repairs, as detailed in the written estimate. The insurance carrier was notified of its employment, and Bankers forwarded to Briden a check in the sum of $18,988, which named Briden and Mr. Hernandez as joint payees.3 On or about June 20, 1995, Briden's representative brought the check to Mr. Hernandez's residence. Mr. Hernandez endorsed the check and delivered it to the representative. In exchange, Mr. Hernandez received a check drawn on a Briden account for $9,494, and payable to "Raul Hernandez and Briden Enterprises, Inc."4 The stated purpose of this check, as noted on its face, was "For 50% Retainer"; however, no further explanation appears of record. Briden employed Roberts Roofing, Inc. (Roberts Roofing), to do the roof repair work. That work was satisfactorily completed in or about October 1995. As for the other repairs, Briden did not undertake them, nor did it return any of the money it had received from Mr. Hernandez. On or about November 28, 1995, Roberts Roofing filed a claim of lien in the public records of Dade County, Florida. The claim of lien charged that, pursuant to an agreement with Briden, Roberts Roofing had installed a new roof on Mr. Hernandez's residence for $7,200, and that $2,523.50 remained unpaid. Following unsuccessful demands on Briden to make the agreed repairs and pay Roberts Roofing, and later demands to return the money owing to him, Mr. Hernandez filed a complaint in February 1996 against Briden in the Circuit Court, Dade County, Florida. That complaint sought judgment based on the following allegations: On or about June 20, 1995, Defendant represented to Plaintiff that Defendant could provide construction services to repair Plaintiff's residence. Defendant fraudulently represented to Plaintiff the amounts and type of work which would be performed on the project, the costs associated therewith and requested payment pursuant to said misrepresentations. * * * Plaintiff relied on Defendant's misrepresentations by making payment to Defendant for the construction services in the amount of $18,988.00. From the payment received by Defendant, Plaintiff acknowledges that Defendant paid $4,678.00 to a third party to accomplish the repair of the roof at Plaintiff's residence. The full cost for the roofing services was $7,200.00. As a result of Defendant's failure to pay the full amount, the third party has filed a lien against Plaintiff's property for $2,522.00. Defendant has failed to provide the represented construction services, and, as a result, Plaintiff has sustained damages in an amount of $14,310.00 and has had title to his residence liened. On May 16, 1996, a final default judgment was entered for Mr. Hernandez and against Briden. That judgment provided that Mr. Hernandez recover from Briden damages of $14,311.50 and costs of $189.00. Neither Briden nor Respondent paid the judgment, and it remains unsatisfied to date. Having failed to receive payment, Roberts Roofing filed a complaint on July 11, 1996, against Mr. Hernandez to foreclose its lien. While that suit was pending, Mr. Hernandez filed a claim under the Construction Industries Recovery Fund. Sections 489.140, et seq., Florida Statutes. That claim was approved in February 1997, and Mr. Hernandez was paid $14,311.50.5 Following recovery from the fund, Mr. Hernandez paid Roberts Roofing the unpaid balance it claimed, and Roberts Roofing released its lien.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the violations alleged in Counts I, II, III, and IV of the Administrative Complaint, and imposing as a penalty for such violations a $3,500 administrative fine; a two year term of probation, subject to the conditions of Rule 61G4-12.008(5), Florida Administrative Code; and the payment of the reasonable costs of investigation and prosecution.8 DONE AND ENTERED this 3rd day of February, 1998, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this erd day of February, 1998.
