The Issue Whether Respondent violated Sections 489.127(1)(f) and 455.227(1)(q), Florida Statutes (2004), and what discipline should be imposed.
Findings Of Fact At all times material hereto, Respondent was not licensed to engage in construction in the State of Florida. At all times material hereto, Respondent’s business did not possess a certificate of authority to practice as a contractor-qualified business. On or about October 5, 2004, Respondent contracted with Dyba to repair the roof at Dyba’s residence in Santa Rosa County, Florida. The contracted cost of these repairs was $3600, of which Respondent collected $600 from Dyba by check. On or about October 9, 2004, Respondent placed an advertisement in the Pensacola News Journal asserting that he would make repairs to kitchens, baths, decks, siding, docks, and most any hurricane damage. On June 8, 1994, Petitioner issued a Notice to Cease and Desist to Respondent for engaging in the unlicensed practice of construction contracting. The total investigative cost to the Petitioner was $166.88.
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 violating Section 489.127(1)(f), Florida Statutes (2004), imposing an administrative fine in the amount of $5,000, and assessing costs of investigation and prosecution in the amount of $166.88. DONE AND ENTERED this 11th day of August, 2006, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 2006. COPIES FURNISHED: Brian A. Higgins, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Douglas Claiborne DOC No. 203745 Berrydale Forestry Camp 6920 Highway 4 Jay, Florida 32565 John Thomas, Classification Officer Berrydale Forestry Camp 6920 Highway 4 Jay, Florida 32565 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 John Washington, Hearing Officer Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the construction activities undertaken by Respondent at the home of George Scantland which lies seaward of the Sarasota County Coastal Construction Control Line constitute a violation of Section 161.053(12), Florida Statutes, and Rule 16B-33.004(4), Florida Administrative Code, and, if so, should an administrative fine be assessed against the Respondent.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made. George Scantland owns a single-family home on Casey Key in Sarasota County, Florida, which lies seaward of the Sarasota County Coastal Construction Control Line ("CCCL"). Scantland contracted with the Respondent to perform certain construction activities at his home. At the time Respondent entered into the contract, Garry Battaglia was President of the Respondent corporation. On February 13, 1990, the Respondent requested a consultation from the Department regarding the proposed construction activities at Scantland's home. The Respondent submitted a plan of the proposed construction along with the consultation request. At the time of the consultation request, Scantland's single-family home consisted of an on-grade slab on the ground floor level and an elevated second floor with a wooden cantilevered deck on the north and south sides of the property. The consultation request and plan indicate that the Respondent wished to construct a third-story addition including a cupola above the existing second floor, an elevator within the existing wall on the south side of the home, and an enclosure for stairs outside on the existing south side wall. On June 4, 1990, a Department engineer responded to the consultation request in a letter notifying the Respondent that the proposed third-story addition, the cupola and the elevator qualified for an exemption. However, construction of the stairwell enclosure did not qualify for an exemption pursuant to Section 161.053(12), Florida Statutes, because the enclosure modified the existing structure outside the limits of the existing foundation. And, pursuant to Rule 16B-33.004(4), Florida Administrative Code, a permit was required for the proposed stairwell enclosure because the enclosure constituted an addition to a major structure proposed above a preexisting concrete deck. On October 18, 1990, the Department's area inspector visited Scantland's home, prepared a site inspection report, and took photographs. The site inspection report indicates that Respondent was engaged in construction activities at Scantland's home and requested comment from the Department's staff as to whether the work was exempt or required a permit. The first photograph (Exhibit 2A) taken on October 18, 1990, by the area inspector indicates that the existing concrete deck on the ground floor of the north side of the house had been drilled and rebar had been inserted and that concrete blocks were being placed at the bottom of the drills and rebar locations. Another photo (Exhibit 2C) taken on October 18, 1990, by the area inspector depicts the southern wall of the house with temporary shorings supporting the remains of the second floor wooden deck located on top of the preexisting concrete deck. The photo shows that wooden posts in the concrete deck, which had supported the second floor elevated wooden deck, had been flush cut to the ground. After reviewing the site inspection report and photographs, the area engineer in Tallahassee asked the inspector to revisit the site to gather further information regarding Respondent's construction activities. The area inspector revisited the site on October 24, 1990, and prepared a Warning Notice and Violation Report which he hand-delivered to an employee of the Respondent on the job site. The area inspector also took additional photographs (Exhibits 5A-5C) during this visit. The Warning Notice was issued for the placement of drilled rebar and block columns atop an existing concrete slab and placement of a tie-beam system atop the block columns. The Warning Notice put the Respondent (owner's agent) on notice that a violation has possibly occurred and instructed the Respondent to stop construction pending a determination from the Department's Tallahassee office. The Violation Report, which begins the formal entry into the violation process, was issued to both Scantland and the Respondent for the construction of new perimeter block walls atop an existing ground floor concrete deck seaward of the CCCL without obtaining a permit from the Department. The area inspector's initial determination that Respondent's construction activities constituted a statutory violation was confirmed by the Department's engineering staff in Tallahassee. The photographs (Ex. 5A - 5C) taken by the area inspector on October 24, 1990 demonstrate that even after receipt of the Warning Notice, the Respondent continued construction at Scantland's home. The first photograph (Ex. 5A) taken from the north side of the house, shows that placement of the rebar and columns had been completed and a beam had been constructed across and underneath the existing wooden deck on the second floor. A second photograph (Ex. 5B) taken from the south side of the house, shows the new columns and new tie-beams constructed atop the preexisting concrete deck. On November 16, 1990, the area inspector conducted a follow-up inspection of the site, prepared a site inspection report, and took photographs (Ex. 7A -7B). The site inspection report confirms that Respondent was still engaged in construction activities at the site. The report indicates that the area inspector spoke with Garry Battaglia on the site and that Battaglia planned to continue construction until a stop work order was received. Battaglia advised the area inspector at this time that he was applying for a permit for the work. The first photograph (Ex. 7A) taken by the area inspector on November 16, 1990 is an exterior view of the south side of the house which shows that the wall atop the preexisting concrete deck on the southern addition was completed. The second photograph (Ex. 7B) shows the interior of the southern wall where construction of the second story was taking place over the new column wall and tie-beam system built atop the preexisting concrete deck. The Respondent received a copy of a Notice of Apparent Violation of Section 161.053(2), Florida Statutes, dated November 20, 1990, issued by the Department to Scantland for unauthorized construction/excavation seaward of the Sarasota County CCCL. The Notice advised the parties to stop construction activities pending compliance with the law. On December 10, 1990, the Department received an after-the-fact permit application, plan of construction, and survey of the property from the Respondent as agent for Scantland. The plan of construction accurately depicts the structure which is currently on the property, as modified by the Respondent. The completed construction is totally different from the construction activities described in Respondent's consultation request of February 13, 1990. The consultation request submitted to the Department by Respondent in February, 1990 did not indicate that any construction would occur on the north or west side of the structure above the preexisting concrete deck or that the elevator would be constructed on the southwest corner of the home outside the existing wall or that an enlarged garage/storage area would be constructed. All of the above were ultimately constructed by Respondent. The survey of the property, dated March 23, 1990, shows that there was preexisting concrete deck on the ground floor level and a wooden deck on the second floor and that the concrete deck was a separate entity from the strip footing supporting the preexisting structure and that there was no enclosed space above the preexisting concrete deck. On December 19, 1990 the area inspector returned to the site and took additional photographs (Ex. 10A - 10C) and filed a site inspection report. The Respondent continued to engage in construction on the house even after receipt of the Warning Notice and Notice of Apparent Violation. The construction on the south and west sides of the house were never completed, there was a new corridor wall between the elevator shaft and the interior wall of the house, a new column and some new slabs on the ground outside the preexisting foundation of the house. On January 2, 1991, in response to the after-the-fact permit application, plan and survey filed by the Respondent, the Department staff advised the Respondent by letter that the application was incomplete and told the Respondent to stop any further construction activities on the site that had been identified as requiring a Department permit. On January 10, 1991, the Department received from Respondent another plan of the existing structure entitled "Existing First Floor Drawing" drawn on October 25, 1990. The drawing indicates that there was open lattice on the south side of the house; and, the drawing refers to the concrete on the north and south sides of the home as "concrete walk". On January 17, 1991, the area inspector visited the site again, took additional photographs (Ex. 12A -12C) and filed a site inspection report. Again, it was evident that Respondent continued construction on the house despite receipt of the Department's notice of January 2, 1991 advising Respondent to cease any further construction activities. The Respondent received a Notice of Violation, Cease and Desist Order issued by the Department on January 17, 1991 for unauthorized construction seaward of the CCCL. On July 22, 1991, the Department issued Permit No. ST-807 ATF CF to the Respondent as agent for Scantland, authorizing the after-the-fact activities and the proposed minor structures with the condition that the violation would be addressed by the Department through a separate agency action. The generally-accepted definition of "foundation" states that a foundation is the support part of a structure and is restricted to the structural member that transmits the superstructure load to the earth. The strip footing, or wall footing, directly beneath Scantland's home transmits the load of the superstructure to the ground and thus constitutes the foundation of the preexisting structure. The footings on the north and south sides of the home underneath the concrete deck did not support the preexisting structure but rather only supported the preexisting second story wooden deck. As such, the footings below the concrete deck did not constitute part of the foundation of the preexisting structure. The construction at Scantland's home constitutes construction outside the foundation of the Scantland's home and additions to the Scantland's home above the preexisting concrete deck. Respondent knew, or should have known, that a construction permit was required for the construction activities at the Scantland home based on the Department's response to the consultation request. Respondent's continued construction activities at the Scantland home constitutes a violation of the statutes and rules and was intentional in that the Respondent continued the construction activities at the Scantland home despite the repeated notices and warnings by the Department to cease construction until the matter was resolved. The Respondent was agent for Scantland and responsible for obtaining all necessary permits. The construction activities conducted at the Scantland home by the Respondent does not come within the exemption provided for in Section 161.053(12), Florida Statutes, and Rule 16B-33.004(4), Florida Administrative Code, adopted in accordance with the Department's statutory authority. Therefore, the construction was a violation of the statute and Department rule in that Respondent failed to obtain a permit before beginning construction. And, such violation could subject the Respondent, as the owner's agent responsible for obtaining the permit, to a possible assessment of an administrative fine pursuant to Section 161.054, Florida Statutes.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, it is, accordingly, RECOMMENDED: That the Department enter a final order assessing an administrative fine in the amount of One Thousand Five Hundred and No/100 Dollars ($1,500.00) against Respondent. In making this recommendation, I am mindful of Respondent's repeated failure to comply with the repeated notices and warnings without any attempts to resolve the matter. Another basis for the fine is to ensure immediate and continuous compliance in the future as set forth in Section 161.054(4), Florida Statutes. DONE AND ENTERED this 28th day of October, 1992 in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 28th day of October, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-2292 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the Petitioner in this case. Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner The following proposed findings of fact are adopted as modified in substance in the Recommended Order. The number(s) in parenthesis is the Finding of Fact which so adopts the preceding proposed finding(s) of fact: 1-9(1-9 respectively): 10(10-11); 11(12); 12(13); 13(13, 14); 14(15); 15(16); 16(17); 17(18-20); 18(21); 19(22); 20(23-24); 21(25); 22(26); 23(27); 24(28-29); 25 (30); 26-28(31); 29(32); 30(33); 31-33(34); 34(35); 35(36); 37(37); 38(38-39); 39(40); and 40-42(41-44). The Department's proposed finding of fact 36 is covered in the Preliminary Statement. The Respondent did not file any proposed findings of fact. COPIES FURNISHED: Lanette M. Price, Esquire Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399 Garry Battaglia, Qualified Representative G & R builders of Distinction, Inc. 107 Corporation Way, Suite B Venice, Florida 34292 Virginia B. Wetherell Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Mail Station #10 Tallahassee, Florida 32399-3000 Kenneth Plante General Counsel 3900 Commonwealth Boulevard Mail Station #10 Tallahassee, Florida 32399-3000
Findings Of Fact Respondent Bruce G. Alles, is a certified general contractor, license number CGC C014472, and has been so licensed since the summer of 1979. At that time, he became the qualifying agent for Univel, Inc., Melbourne Beach, Florida, a general contracting firm. Prior to Respondent becoming the qualifier for Univel, Inc., one David Boland had been the qualifying agent for the company, and no apparent action was taken by Univel to remove Boland as a qualifier for an undisclosed period of time after Respondent assumed that function. (Pleadings, testimony of Respondent, K. Alles) The only project of Univel that Respondent supervised from 1979 until subsequent to April, 1981 was the renovation of several buildings called Ocean Landings. During the period of March or April, 1980 until April, 1981, he had no involvement in any of Univel's projects. Since April, 1981 he has pulled permits and supervised some small renovation or alteration projects. (Testimony of Respondent, K. Alles, Stipulation) For the past three and one-half years, Lawrence M. Stoner, a certified general contractor and qualifying agent for Dynamic Construction Company, Inc. has engaged in joint construction projects with Univel, Inc. In such instances, Stoner obtains the building permits and supervised construction of the projects. At some undisclosed point in time, Kenneth Alles, Vice President of Univel, Inc. consulted with and obtained assurances from legal counsel that, based upon Univel's relationship with Stoner and Dynamic Construction Company, it was unnecessary for Stoner to file a formal application as qualifying agent for Univel. In fact, Alles was of the opinion that at one point Univel had three qualifying agents simultaneously who were Respondent, Stoner, and Boland. (Testimony of K. Alles) At some undisclosed time subsequent to Respondent becoming the qualifying agent for Univel, that firm entered into a construction contract with Palm Harbor West, Inc. to construct a condominium building called Harbour Cay. Stoner supervised the construction of the building. There was an on-site superintendent of construction who was employed by Univel. Stoner and Univel co-signed a bank loan agreement for the project. (Testimony of K. Alles) Respondent was not involved in the Harbour Cay project in any respect. He did not affix his license number to the contract nor did he supervise of have any connection with the project. (Testimony of K. Alles, Stipulation) On March 27, 1981, the Harbour Cay building collapsed causing multiple deaths and injuries. (Testimony of K. Alles, pleadings)
Recommendation That the Construction Industry Licensing Board administer a written public reprimand to Respondent Bruce Alles for violation of Subsection 489.119(5), F.S., pursuant to Subsection 489.129(j), F.S. DONE and ENTERED this 23rd day of December, 1981, in Tallahassee, Florida. THOMAS C. OLDHAM 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 23rd day of December, 1981. COPIES FURNISHED: Michael Egan, Esquire 217 South Adams Street Post Office Box 1386 Tallahassee, Florida 32302 Joe Teague Caruso, Esquire Post Office Box 757 Cocoa Beach, Florida 32931 James K. Kinnan Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
The Issue Whether Respondent committed the violations alleged in the administrative complaint; and, if so, what penalty should be imposed.
Findings Of Fact At all times material to the allegations of this complaint, the Respondent, Joseph Marcelin, was a certified residential contractor, license number CR C028352. Respondent’s place of business and residence are in Dade County, Florida. The Petitioner is the state agency charged with the responsibility of regulating and disciplining licensed contractors. On May 14, 1988, the Construction Industry Licensing Board entered a final order approving a settlement stipulation regarding Case no. 74860 against this Respondent. This final order directed Respondent to adhere to and abide by all of the terms and conditions of the stipulation. The stipulation required the Respondent to not violate the provisions in Chapters 455 and 489, Florida Statutes, in the future; required Respondent to honor a settlement in a civil matter; required Respondent to pay a fine in the amount of $500.00; suspended Respondent’s license for thirty days; and required Respondent to affirmatively demonstrate compliance with the stipulation in order to have his license reinstated. A second final order entered by the Board on May 14, 1988, approved a settlement stipulation regarding Case no. 77499. This final order also directed Respondent to comply with the stipulation applicable to that case. In Case no. 77499, the stipulation required Respondent to abide by a civil settlement; imposed a fine in the amount of $500.00; suspended Respondent’s license for thirty days; and placed the burden on Respondent to demonstrate he had met the terms of the stipulation. As to both cases referenced above, Respondent admitted the allegations of the administrative complaints which, in pertinent part, claimed Respondent had assisted an unlicensed person or entity to perform contracting services thereby aiding and abetting an unlicensed person to evade the provisions of Chapter 489, Florida Statutes. On April 2, 1993, Respondent executed a certification change of status form which was submitted to the Department. Such form was completed for the purpose of qualifying as an individual for licensure and sought to reinstate a delinquent license or change from inactive to active. In the course of completing the change of status form Respondent was required to answer a series of questions by checking either the “yes” or “no” column. In response to the question as to whether Respondent had “been charged with or convicted of acting as a contractor without a license, or if licensed as a contractor in this state or any other state, had a disciplinary action (including probation, fine or reprimand) against such license by a state, county or municipality?,” he answered “no.” Such answer was false. Further such answer was made under with the following affirmation: I affirm that these statements are true and correct and I recognize that providing false information may result in a FINE, SUSPENSION, OR REVOCATION of my contractor’s license. [Emphasis in original.] Thereafter, the Department notified the Respondent that his license would not be issued as he had failed to demonstrate satisfaction of a civil judgment and had not submitted an explanation of the disciplinary action from 1988. Respondent eventually resolved issues of licensure with the Department and, on September 15, 1993, was authorized to practice contracting. Prior to his license being reinstated, Respondent performed the following: on April 7, 1993, Respondent obtained a building permit for construction work at the home of Eduardo Bovea. This permit, no. 93181501, indicated Respondent as the contractor of record for the project. On the permit application Respondent represented himself as the licensed building contractor for the Bovea project to the Metropolitan Dade County building and zoning department. Respondent did not have a contract with Bovea for the construction work to be performed on the Bovea home. In fact, the contract was between Bovea and Lou Greene Construction. The Boveas paid monies to Rodney Salnave, who claimed to be a representative for Lou Greene Construction. Rodney Salnave was not Respondent’s employee, and was not licensed as a contractor. The Respondent did not talk to the Boveas regarding the contract, the scope of the work to be done, or the contract price for the work. All discussions regarding the work at their home (and payments for same) were between Rodney Salnave and the Boveas. The permit for the Bovea project represented the amount of the work to be $2,000.00. In fact, the contract price for the work was $4,500.00. Respondent misrepresented the value of the work for the Bovea project. As of September 26, 1993, Respondent admitted he was involved with seventeen contracting jobs. Just eleven days after having his license reinstated, and while being employed in a full-time (8:00 a.m. to 5:00 p.m.) job with Dade County, Respondent had contracting responsibility for seventeen jobs. In reality, Respondent had made a deal with an unlicensed person, Denis Joseph, to pull permits for him. The jobs were for persons who, in some instances, Respondent had never met. For example, Mr. Joseph pulled a permit for work to be performed on a home owned by Ed Davis. The contract for the work was between Mr. Davis and a Mr. Sutton, an unlicensed contractor, but with the approval of Respondent, Mr. Joseph obtained a permit for the Davis job. A second job was for Bertha Joseph. In this instance, Mr. Joseph completed the permit application which Respondent signed thereby allowing Mr. Joseph to obtain the permit for the project. By signing the permit, Respondent represented himself to be the contractor for the job. In truth, the homeowner had contracted with Denis Joseph for the work to be done, but the project was completed by Emanuel Gideon, an unlicensed contractor. Respondent admitted receiving payments from Denis Joseph. Respondent admitted he was not actively involved with the Bertha Joseph project. In September, 1993, Eric Wardle, an investigator with the Dade County building and zoning department, interviewed Respondent regarding claims that he was obtaining permits for unlicensed contractors. According to Mr. Wardle, Respondent admitted he pulled permits for unlicensed contractors after Hurricane Andrew because they were trying to make a living. At hearing Respondent disputed the accuracy of Mr. Wardle’s investigation but admitted he would have told him “anything just for him to get away from me.” Respondent’s explanation at hearing was not persuasive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Construction Industry Licensing Board, enter a final order revoking Respondent’s contractor license and imposing an administrative fine in the amount of $8,500.00. DONE AND ENTERED this 16th day of May, 1997, in Tallahassee, Florida. J. D. 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 COPIES FURNISHED: Bruce M. Pasternack, Esquire Raymond L. Robinson, P.A. 1501 Venera Avenue, Suite 300 Coral Gables, Florida 33146 Joseph Marcelin 16561 Southwest 144th Court Miami, Florida 33177 Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1997. Rodney Hurst, Executive Director Department of Business and Professional Regulation/CILB 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Northwood Centre Tallahassee, Florida 32399-0792
The Issue The issues in this matter are as promoted by an administrative complaint brought by the State of Florida, Department of Professional Regulation against William B. Garrison. In particular, the respondent is charged with having diverted funds or property received for the completion of a specific project in violation of Section 489.129(1)(h), Florida Statutes (1979). In addition, the respondent is charged with signing a statement falsely indicating that payment had been made for all subcontracting work, in violation of Section 489.129(1)(1), Florida Statutes (1979), and of making misleading, deceptive, untrue or fraudulent representations in the practice of his profession in violation of Section 455.227(1)(a), Florida Statutes (1979). It is the respondent's denial of these accusations and request for formal hearing which eventuated in this recommended order.
Findings Of Fact Respondent is a holder of a registered building contractor's license issued by the Florida Construction Industry Licensing Board. That license number is RB0029142, first issued in 1975. Respondent has been associated with the construction business on a full time basis since 1970. From 1975 through 1981 respondent operated as Garrison Builders of Tallahassee, Inc. At all times relevant to the administrative complaint, respondent was the qualifier of Garrison Builders of Tallahassee, Inc., pursuant to Section 489.119, Florida Statutes. On August 6, 1980, Garrison Builders of Tallahassee, Inc., contracted with TBW, Inc., to build eight townhouses at Larette Drive, in Tallahassee, Florida, for a contract price of $269,424.00. That base contract price was subject to change orders, the first of which decreased the contract price by $8,000 and the second which increased the contract price by $864.00. As a consequence, the final contract price was $262,388.00. Garrison Builders of Tallahassee, Inc., was paid a total of $257,598.38 under the terms of the contract. Garrison Builders paid out, related to the account for this project, $257,890.01. As of March 31, 1981, respondent had failed to pay the following subcontractors and materialmen in the amounts designated: Butterfield's Floor Covering, Inc. $ 277.10* Barineau & Sons Heating and Air Conditioning 2,420.00 Big Bend Rental Center, Store #1 596.96 Sam Crowder Co. 61.39 Discount Lumber, Inc. 445.33* Ken Driggers, Inc. 32.14 Deep South Insulation Co. 600.00 John T. Daniel Cabinet Co. 3,400.00 Miller Sheet Metal 1,292.00 Melco Wood fixtures 1,502.59 Maples Concrete Products Co., Inc. 1,571.31 Quality Plumbing, Inc. 5,864.00* Tallahassee Glass & Screen 690.56 Tallahassee Rug Co. 1,486.51 Yarbrough Paint & Decorating Center 1,589.15 City Building Department-Systems Charges 1,790.10 Wallpaper Installation-50 rolls @ $7.00/roll 350.00* Total $23,969.14 *Billing not complete The contract between Garrison Builders and TBW was to be performed in 150 days after August 6, 1980, subject to allowances for rain days, etc. Garrison Builders was responsible for satisfying the claims of the materialmen and subcontractors as reflected above, in keeping with the terms of the contract. Respondent, as president of Garrison Builders, was responsible for the overall project. In keeping with the contract terms, respondent and the job foreman for the subject project made application and certification for payment. These applications and certifications may be found as part of the petitioner's composite Exhibit Number 2, admitted into evidence. The last of those applications was made by the respondent on February 17, 1984. Prior to that payment, Garrison Builders had been paid $247,136.70. On that occasion, as on other occasions, respondent certified, "that all amounts have been paid by him for work for which previous certificates for payment were issued and payments received from the owner. . . ." in signing the certification for an additional $10,461.68 draw. At that point in time approximately 98 percent of the job had been completed. Nonetheless, contrary to the certification statement, materialmen and suppliers had not been paid as demonstrated in the accounting set forth above showing that as of March 31, 1981, $23,969.14 was still owed, which amount far exceeds the difference between the contract price of $262,388.00, and the amount Garrison Builders had been paid prior to the last draw, i.e., $247,136.70. That differential is $15,251.30. In a meeting in March 1981 at which respondent attended and was represented by counsel, respondent admitted to a representative of TBW that materialmen and suppliers had not been satisfied in terms of payment. By affidavit of April 3, 1981, a copy of which is petitioner's Exhibit Number 5 admitted into evidence, he acknowledged the $23,969.14 of outstanding claims effective March 31, 1981. Moreover, in a court appearance involving TBW and some of the materialmen and suppliers in which the question of possible liens by those latter entities was litigated, respondent admitted that he had lied in his statement of certification in the contractor's application and certificate for payment, wherein he stated that all materialmen and suppliers had been satisfied before obtaining payments under the contract. This admission, taken in the context of the other facts found, indicates that the respondent appreciated that materialmen and suppliers had not been paid when he made application for the February 17, 1981, draw and swore that they had. This oath as to that circumstance was not one of mistake or inadvertence. It was a comment made with the knowledge of the implications of the oath. Thus, the effect was to be false, misleading, deceptive, untrue and fraudulent, contributing to a loss of $277.10 which the owner paid Butterfield Floor Covering without reimbursement. Respondent was not paid the balance of the contract price, the owner having claimed that the contract was 90 days beyond the contract date for completion, and upon the assertion by the owner that additional funds had to be expended to complete the contract over and above the contract amount. Respondent claims that the reason for late completion concerned a problem with a subcontractor who was providing cabinets, one John Daniel. In addition, respondent alludes to the fact that he was in the hospital from November 10, 1980, through November 20, 1980, and again from December 2 through 19, 1980, and as a consequence was unable to supervise the job in a manner which he preferred. Daniel was a subcontractor chosen by the owner and accepted by the respondent. From a review of the evidence, it is unclear whether Daniel was the responsible agency for the project being approximately 90 days over the contract period. It is also uncertain whether the essentially 90 day delay was in view of respondent's failures as responsible agent for Garrison Builders. Had Garrison Builders been responsible the owner would have been entitled to deduct essentially $20 a day for late penalties. Finally, the owner's claim of expenditures in excess of $10,000 to complete the job was not satisfactorily proven. In summary, the job was late for reasons unestablished. Certificates of occupancy were issued for the eight units in March 1983 signaling the completion of the job. On the subject of whether respondent diverted funds and property from this project into other projects thereby affecting the outcome of the project, the proof on balance demonstrates that Garrison Builders, under the aegis of the respondent, made a bad bargain by underbidding this project as opposed to diverting funds and property to other pursuits.
Recommendation Upon consideration of the findings of facts and conclusions of law, it is RECOMMENDED that a final order be entered which finds the respondent guilty of a violation of Section 489.129(1)(1), Florida Statutes, and Section 455.227(1)(a), Florida Statutes, and dismisses the allegation of a violation of Section 489.129(1)(h), Florida Statutes. For the violations established, a penalty of a 60 day suspension should be imposed against the respondent. DONE AND ENTERED this 11th day of September 1984 in Tallahassee, Florida. CHARLES C. ADAMS 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 11th day of September 1984. COPIES FURNISHED: Michael Egan, Esquire ROBERTS, EGAN & ROUTA, P.A. 217 South Adams Street Tallahassee, Florida 32302 Jeffrey H. Savlov, Esquire Post Office Box 10082 Tallahassee, Florida 32302 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Board of Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202
The Issue The issues to be resolved in this proceeding concern whether the Respondent committed the offenses set forth in the Administrative Complaint and if so, what if any sanction is warranted.
Findings Of Fact The Petitioner is an agency of the State of Florida charged, as pertinent hereto with enforcing the provisions of Chapter 455 and Chapter 489, Florida Statutes (2007), regulating the licensure, registration or certification of contractors in the State of Florida and regulating the standards of contracting practice, as well as regulating unlicensed construction and contracting pursuant to those statutory chapters. The Respondent has not been licensed to engage in contracting in Florida. On June 13, 2005, the Respondent was previously issued two notices and orders to cease and desist from practicing or performing contracting work in violation of Section 489.127(1), Florida Statutes, for performing or offering to perform contracting work without licensure. On May 10, 2006, the Respondent submitted a "Contract" to Nelson Goodreau calling for the Respondent to build a deck at Goodreau's residence located at 45 South Shell Road in DeBary, Florida. Mr. Goodreau had contacted the Respondent by calling a phone number he saw listed on an advertisement placed by the Respondent in a local newspaper. The advertisement was placed by the Respondent, holding himself out as the licensed contractor, with license number CBC 058448, and advertising to build custom decks. The Respondent had the permission of Zent Construction, Inc., through Michael Zent (hereinafter Zent), the holder of that license number CBC 058448 to reference that license number in advertising. The permission of Zent, however, was approval to advertise for contracting work, but only in the name of and on behalf of Zent Construction, Inc. In any event, the Respondent did not have any permission from Zent Construction, Inc. to use that license or license number to advertise for contracting projects on behalf of the Respondent's own business. The Respondent met with Mr. Goodreau at Goodreau's home and showed him a portfolio of pictures of his previous deck projects. The Respondent and Goodreau entered into an agreement or contract which contained the following paragraph: This project is being proposed with you, the owner acting as 'owner contractors' and as such are responsible for all municipal compliance issues relevant. The Hartwell Group, Inc. is a construction subcontracting entity and not a Florida state certified general contractor as specified in Florida law. Under this agreement, it would appear that Goodreau was to obtain any necessary permits from the municipality or county as the case may be. No permits were ever obtained for the deck project. The Respondent drew a sketch of the deck contemplated, following discussions between the Respondent, Goodreau, and Goodreau's wife, Donna. Goodreau's input in designing the deck was limited to choosing the location of benches and stairs and the shape and form of the deck railing as well as choosing composite timber as the decking material. Mr. Goodreau paid the Respondent approximately $10,600 to build the deck. Goodreau and the Respondent contemplated that he would be retained pretty much as a contractor to build the deck although the agreement stated that Goodreau was to be the "owner-contractor." Goodreau did not hire the Respondent as merely a laborer to work under Goodreau's supervision. Goodreau hired the Respondent to build a turn-key deck project. Goodreau did not contemplate nor did he closely supervise the Respondent during the construction. He occasionally did point out to the Respondent certain problems with the quality of the work of the deck which he observed and requested the Respondent to correct the problems. The Respondent did not look to Goodreau for any instructions on how to build the deck during the deck's construction. Although the contract between them indicated that Goodreau would be responsible for securing any regulatory compliance from the municipality, no permit was ever obtained for the project. Ultimately, the City of DeBary, Florida, cited Goodreau for the unpermitted deck work. On May 23, 2006, Goodreau sent an email to the Respondent asking him to correct a number of quality problems with the deck. In the email, Goodreau identified those problems and indicated to the Respondent the solutions Goodreau preferred for the correction of the problems. In responding to Goodreau's request to use a new full length board or timber for the ledger board of the deck where it attached to the house instead of wood scraps, as the Respondent had used, the Respondent answered Goodreau saying that "although this is a micromanagement request over the line," he informed Goodreau he would still accommodate the request with "no change order." The Respondent also requested Goodreau to be patient because Goodreau has "seen the up close final products of [Respondent's] recent work on decks and docks in portfolio, and know [sic] that the final products are not sloppy." When Goodreau asked the Respondent to straighten the deck joist, the Respondent replied that he would do that as part of his "already existing quality control standard and practices." Finally, when Goodreau asked to see the receipts for the materials bought by the Respondent, the Respondent angrily threatened to stop the project explaining that he does not like "controlling spirits crossing that far across the line into our inner system." This kind of language, terminology and dialogue indicates a person independently charged with completing their project and not a person employed as an employee, laborer or sub-contractor subject to the hourly and daily supervision by the owner. The Respondent's behavior during construction of the deck shows that he was not acting as a laborer but as a contractor. He did not ask Goodreau for any instructions on how to build the deck. He demanded payment like a contractor, for materials and a lump sum for the job, payable in draws for each construction phase. He resisted Goodreau's attempts to "micromanage him" and bluntly refused to account for the money paid by Goodreau for materials, justifying that such an accounting was a severe violation of his work autonomy. The entire time the Respondent acted as if, in exchange for the money paid by Goodreau, that he would deliver a satisfactory "final product" and clearly resisted Goodreau's attempts to discuss decking issues before the "final product" was delivered. His conduct shows clearly that he did not consider himself to be an employee, but rather an independent contractor.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation finding that the Respondent violated Section 489.127(1)(f), Florida Statutes, and Section 455.227(1)(q), Florida Statutes (2007), and that an administrative penalty of $2,000.00 be imposed. DONE AND ENTERED this 1st day of February, 2008, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 2008. COPIES FURNISHED: Michael C. Huddleston, Esquire Clayton, Teal & Huddleston, P.A. 817 West New York Avenue Deland, Florida 32720 Charles Tunnicliff, Esquire Department of Business & Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Sorin Ardelean, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Nancy S. Terrel, Hearing Officer Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The Respondent, Neil Wayne Smith, is a certified general contractor holding license number CG C003076. This license was suspended on March 4, 1977, for three years, and was reinstated in March of 1980. On March 21, 1980, the Respondent became the qualifier for WWRS Enterprises, Inc. This corporation had been formed in 1978 by the Respondent and his partner, William Rymers, for the purpose of engaging in the general contracting business. Mr. Rymers became president of WWRS Enterprises, Inc., and the Respondent acted as secretary, supervisor of construction, and manager of financial matters. Although the Respondent did not hold any direct stock ownership, his share of the corporate stock was registered in his wife's name. The Respondent knew that under the law WWRS Enterprises, Inc., needed to have a qualifying agent registered with the Construction Industry Licensing Board, and the Respondent and his partner discussed this subject. Since the Respondent's license was under suspension during 1978 and 1979, it was proposed that a Max Dunaway would become the qualifying agent for WWRS Enterprises, Inc., but the necessary paperwork to register him as qualifying agent for the company was never filed. Thus, until March of 1980, the company was not qualified to engage in general contracting. In November, 1979, the Respondent negotiated a contract on behalf of WWRS Enterprises, Inc., with Wilhelm Hackenberg and his wife, for the construction of an addition to their home in Ormond Beach, Florida. Since the Respondent's license was suspended, Max Dunaway pulled the building permit for the company, but the job was supervised by the Respondent, not Max Dunaway. WWRS Enterprises, Inc., was the contracting company to which at least one subcontractor submitted invoices, Mr. Dunaway's company, Southwide Builders, Inc., was not involved in this transaction. At least four construction jobs were performed by WWRS Enterprises, Inc., but only the Hackenberg job was identified by a precise time-frame during which the company had no qualifying agent. The Respondent does not challenge many of these facts. Instead, he contends that he never held any stock in WWRS Enterprises, Inc., and was only a managing employee of the company, not responsible for its policies. These contentions, however, are not consistent with the weight of the credible evidence, and have been discounted.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that license number CG C003076 held by the Respondent, Neil Wayne Smith, be revoked. THIS RECOMMENDED ORDER entered on this 21 day of May, 1981. WILLIAM B. THOMAS 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 21st day of May, 1981. COPIES FURNISHED: Michael Egan, Esquire May, 1981. Post Office Box 1386 Tallahassee, Florida 32302 Neil Wayne Smith 14 Rain Tree Drive Port Orange, Florida 32019
