The Issue This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of alleged violations of Chapter 489, Florida Statutes, (1992 Supp.). Specifically, the Respondent has been charged in a four-count Administrative Complaint with violations of paragraphs (k), (m), (n) and (p) of Section 489.129(1), Florida Statutes (1992 Supp.).
Findings Of Fact Respondent is, and has been at all times material hereto, a licensed Certified General Contractor, having been issued license number CG C007303, by the State of Florida. At all times material hereto, the Respondent was licensed to contract as an individual. On September 18, 1992, the Respondent, doing business as an individual, contracted with Charles and Elba Williams (hereinafter referred to as "Customers") to reroof their dwelling and shed at 15205 SW 78 Place, Miami, Florida, for the price of Fifteen Thousand, One Hundred Seventeen dollars ($15,117.00). On October 1, 1992, the aforementioned contract was amended to provide for the payment of half of the second draw before the second stage of the project was completed, and to provide for the payment of an additional Three Hundred and Fifty One dollars ($351.00) in materials. On November 5, 1992, the aforementioned contract was amended to provide the Customers with a credit on the contract of One Thousand, Six Hundred Thirty Six dollars and Sixty Four cents ($1,636.64) for their purchase of roof shingles. The revised contract price was Sixteen Thousand and Fifty Eight dollars ($16,058.00). The Customers paid the Respondent Twelve Thousand, Two Hundred Seventy Seven dollars and Ninety cents ($12,277.90) toward the contract. After receiving a credit on the balance due on the contract, the Customers owed Two Thousand, One Hundred Forty Two dollars and Thirty Two cents ($2,142.32) to the Respondent. On September 23, 1992, the Respondent obtained roofing permit number 92-110050 for the Customers' project from the Dade County Building and Zoning Department. The Respondent worked on the Customers' roof from September 23, 1992, through November 15, 1992, when the installation of the shingles was completed. On November 19, 1992, the Respondent failed a final inspection performed on the Customers' roof by the Dade County Building and Zoning Department because the Respondent failed to supply Dade County with product approval information and manufacturer installation specifications for the ridge vent he had installed. On November 24, 1992, the Respondent again failed a final inspection performed on the Customers' roof by the Dade County Building and Zoning Department for the same reason as on November 19, 1992. The Respondent never obtained a passing final inspection on the Customers' roof from the Dade County Building and Zoning Department. On November 24, 1992, the Customers sent the Respondent a Certified letter, Return Receipt requested, informing the Respondent that the roof could not pass final inspection until Dade County was provided with the product approval information and manufacturer installation specifications for the ridge vent he had installed. On December 4, 1992, the Respondent was issued a Notice of Violation from the Dade County Building and Zoning Department for failure to provide product approval information and manufacturer installation specifications for the ridge vent that had been installed on the Customers' roof. On December 4, 1992, the Respondent was issued a Notice of Violation from the Dade County Building and Zoning Department for failure to remove construction debris from the Customers' property. The Respondent did not comply with either Dade County Notice of Violation and did not supply the Dade County Building and Zoning Department with the product approval information and manufacturer installation specifications for the ridge vent that had been installed on the Customers' roof. The Customers were left with a roof that did not comply with Dade County Code. On March 26, 1993, the Customers paid a Forty Five dollar ($45.00) renewal fee to the Dade County Building and Zoning Department and had the roofing permit renewed and reissued in their own names. On March 4, 1993, the Customers paid another contractor, Mark Mitchell, Two Hundred dollars ($200.00) to remove the ridge vent and close the hole in the roof left by the removal of the ridge vent. On March 27, 1993, after the ridge vent had been removed, the Customers paid a Special Investigator, Ken Nash, Fifty dollars ($50.00) to perform a final inspection of the roof. On March 31, 1993, Ken Nash performed a final inspection of the roof and the roof passed inspection. The Customers paid Steve Wooten Thirty dollars ($30.00) to remove construction debris left on their property by the Respondent and to bring their property in compliance with the Notice of Violation issued on December 4, 1992.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Construction Industry Licensing Board issue a Final Order in this case to the following effect: Dismissing the charges alleged in Counts I, II, and IV of the Administrative Complaint; Concluding that the Respondent is guilty of the violation charged in Count III of the Administrative Complaint; and Imposing a penalty consisting of a fine in the amount of Two Hundred Fifty dollars ($250.00) for the violation charged in Count III of the Administrative Complaint. DONE AND ENTERED this 3rd day of May, 1995 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 3rd day of May, 1995. COPIES FURNISHED: Diane Snell Perera, Esquire Department of Business and Professional Regulation 7300 North Kendall Drive, Suite 780 Miami, Florida 33156 Mr. Al C. Hufeld Post Office Box 681064 Orlando, Florida 32868-1064 Richard Hickok, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Recommendation It is recommended that the Florida Construction Industry Licensing Board dismiss the Respondent from further responsibility to answer to the Administrative Complaint. DONE and ENTERED this 25th day of August, 1976, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry S. Sinoff, Esquire 1010 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 John W. Tanner, Esquire Suite One. 434 N. Halifax Avenue Daytona Beach, Florida 32018
Findings Of Fact At all times pertinent to these proceedings, Hamilton held registered residential contractors license number RR0015037. Hamilton agreed to construct a house in Clearmont, Florida, with a completion date no later than May 1, 1977, for Robert J. and Margaret M. Phlepsen. The construction price was $75,000.00. After construction of the house it was discovered that there existed two violations of the Southern Building Code. First, the "step-down" from the kitchen to the garage was an eleven inch riser contrary to the code requirement that the height of a riser shall not exceed seven and three quarters inches. The second violation occurred through the use of 2 X 8 joists where the code would require 2 X 10 joists. The extra high riser between the kitchen and the garage was apparently caused by an oversight. Hamilton merely failed to install an intermediate step at that location. The second violation occurred because the owner and Hamilton agreed to use the smaller joists in order to save money on the contract price. In neither case is there sufficient evidence to establish that Hamilton's violations were willful or deliberate as alleged in the Administrative Complaint. On June 6, 1978, the Lake County Board of Examiners suspended Hamilton's Lake County Certificate of Competency because of violations of building code requirements in the construction of Phlepsen's house.
The Issue The issue to be resolved in this proceeding involves whether the Respondent's certification to practice contracting should be subjected to disciplinary action for alleged violations of Section 489.129(1), Florida Statutes, and, if the violations are proven, what, if any, penalty is warranted.
Findings Of Fact The Petitioner is an agency of the State of Florida charged, as pertinent hereto, with enforcing, administering, and regulating the practice standards and licensure standards for the construction industry in Florida. This authority is embodied in the various provisions of Chapters 489, 455, and 120, Florida Statutes, and rules promulgated pursuant thereto. The Respondent is a licensed general contractor in the State of Florida having been issued license number RG0060516 and is registered to conduct contracting business in his individual capacity. On July 2, 1990, a contractor, Lonnie J. Walker, notified the Building Department of the City of Tallahassee that he had withdrawn as contractor for a job located at 722 Dunn Street, in Tallahassee, Florida. He thereupon withdrew the building permit he had obtained for the work being performed at those premises. On August 8, 1990, the Respondent contracted with Mary N. Spencer, the owner, to make certain repairs at the two-unit apartment building located at 722 Dunn Street, Tallahassee, Leon County, Florida. The contract price agreed upon between the Respondent and Ms. Spencer was $867.00. The Respondent thereupon performed some of the aforementioned contracting work, consisting of repairs of various types. He was not registered to contract in Leon County, Florida, however. The Department of Growth and Environmental Management of Leon County, Florida, is responsible for issuing construction contractor licenses for the County, including for the City of Tallahassee. There was no proper building permit issued for the job and job site when the Respondent entered into the contracting work at those premises. The Respondent failed to obtain a permit for the repairs and this ultimately came to the attention of the City of Tallahassee Building Department. That agency issued a stop work order on September 5, 1990. The Respondent was not performing work pursuant to Mr. Walker's previous permit, which had been withdrawn. The Respondent was not an employee of Lonnie J. Walker, the previous general contractor for the job. The Petitioner agency submitted an affidavit after the hearing and close of the evidence, with its Proposed Recommended Order. That affidavit asserts that the Petitioner accumulated $458.10 in investigative costs and $2,491.30 in legal costs associated with the prosecution of this case, for a total alleged cost of prosecution of $2,949.40. It moves, in its Proposed Recommended Order, that payment of the costs should be made in accordance with Section 61G4-12.008, Florida Administrative Code. The request for costs was first raised as an issue in the Proposed Recommended Order submitted by the Petitioner and is advanced only in the form of a hearsay affidavit. No prior motion for costs served upon the Respondent is of record in this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Construction Industry Licensing Board finding the Respondent guilty of the violations charged in the Administrative Complaint and assessing a penalty in the form of a letter of guidance and an aggregate fine of $600.00, as described with more particularity hereinabove. DONE AND ENTERED this 9th day of March, 1994, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of March, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-591 Petitioner's Proposed Findings of Fact 1-8. Accepted. Respondent's Proposed Findings of Fact Respondent submitted no post-hearing pleading. COPIES FURNISHED: G.W. Harrell, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Julius S. Baker, Sr. Box 253 Morrow, GA 30260 Mr. Richard Hickok Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway Suite 300 Jacksonville, FL 32211-7467 Jack McRay, Esq. General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
Findings Of Fact The Respondent, Marlene E. Lutman, is a vice president of American Custom Builders, Inc. and was a vice president in 1977. Respondent holds licenses Number CR C012570 end Number CR CA12570 issued by the Petitioner Board. On September 11, 1978, Respondent submitted a certification change of status application to the Florida Construction Industry Licensing Board. This application, completed by Respondent under oath on September 7, 1978, was filed for the purpose of changing the contractor's licenses held by Respondent to add the name of American Custom Builders, Inc. to said licenses. On July 6, 1979, an Administrative Complaint was filed against Respondent, doing business as American Custom Builders, Inc., seeking to permanently revoke her licenses and her right to practice under said licenses and to impose an administrative fine in the amount of $500.00. Respondent Lutman requested an administrative hearing, which was scheduled for September 6, 1979, continued on Motion of Respondent, and held November 29, 1979. On the application completed by Respondent, Question 12(b) asked: Are there now any unpaid past-due bills or claims for labor, materials, or services, as a result of the construction operations of any person named in (i) below or any organization in which such person was a member of the personnel? Question 12(c) of the application asked: Are there now any liens, suits, or judgments of record or pending as a result of the construction operations of any person named in "(i) below" or any organization in which any such person was a member of the personnel? Respondent, as a vice president of American Custom Builders, Inc., was designated in "(i) below." She answered "no" on the application to both of the above stated questions. Respondent completed the application while she was in Florida. Prior to completing the application, Respondent spoke by telephone with John D. Cannell, an attorney in Ohio, in reference to Questions 12(b) and 12(c), supra. Cannell told Respondent that there were no unpaid bills outstanding. He said that there had been liens filed involving American Custom Builders, Inc., but that these liens had been cancelled. Cannell based his statements to Respondent upon oral assurances from personnel at the bank involved in financing the construction project associated with the liens that all liens had been paid. It was later learned that on September 7, 1978, the date Cannell told Respondent the liens had been cancelled, the liens had not been cancelled and were of record in the Recorder's Office of Geauga County, Ohio. Liens had been filed on January 6, 1978, January 23, 1978, and January 3l, 1978, by various subcontractors involved in the construction of a house owned by Winford and Sally Ferrentina. The liens were based on claims against American Custom Builders, Inc. as general contractor and the Ferrentinas as owners for unpaid labor and materials and were not satisfied of record until September 20, 1978, on which date the January 6, 1978 lien was satisfied, and March 22, 1979, on which date the other two (2) liens were satisfied. The Hearing Officer finds that Respondent Lutman did not intend to make a material false statement but negligently relied on oral representations that there were no past-due bills and no liens of record pending as a result of her construction operations. Both parties submitted proposed findings of fact, memoranda of law and proposed recommended orders, and the Petitioner Board submitted a reply memorandum. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this order they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based upon the foregoing Findings and Conclusions of Law, the Hearing Officer recommends that the Respondent, Marlene Lutman, be reprimanded. DONE and ORDERED this 1st day of February, 1980, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Jeffery B. Morris, Esquire 2400 Independent Square One Independent Drive Jacksonville, Florida 32202 Jeffrey R. Garvin, Esquire 2532 East First Street Post Office Box 2040 Fort Myers, Florida 33902 DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. DOAH CASE NO. 79-1546 Marlene Lutman, CR C012570, CR CA 12570 Respondent, /
The Issue Whether Respondent committed the violations alleged in the Amended Administrative Complaint issued against him and, if so, what disciplinary action should be taken.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement and clarify the facts to which the parties stipulated at the outset of the final hearing (Parties' Stipulations)2: The contract referenced in the Parties' Stipulations (Building Contract) was signed by Mr. Stasinos (on behalf of ICC) and Mr. Skiera (on behalf of himself and his wife) on June 29, 2000. The home that ICC agreed to build for the Skieras (Skiera Residence) was described in the Building Contract as a "[c]ustom two-story residence with detached garage and riding cor[r]al for a total of 5,370 square feet." It was to be constructed on a tract of land owned by the Skieras in Boynton, Beach, Florida. The Building Contract provided for the following allowances: $20,000.00 for "electrical"; $17,000.00 for "plumbing"; $15,000 for "HVAC"; a "door hardware allowance" of "$50.00 per [interior] door"; $6,000.00 for a "stacked stone veneer" exterior; an "entry door hardware allowance" of "$100.00 per door"; $15,000.00 for "kitchen cabinetry and vanity"; $8,000.00 for "counter tops and vanity tops"; $9,000.00 for "landscaping," including "trees, shrubs, sod, automatic time clock, [and an] operated irrigation system with rain sensor"; and $7,000 for "driveways, walkways, [and] flatwork." There was no written statement in the Building Contract explaining a consumer's rights under the Construction Industries Recovery Fund, as then required by Section 489.1425, Florida Statutes. The Building Contract contained a "[p]ayment [d]raw [s]chedule," which provided as follows: Upon execution of contract: 10%- $36,608.00 Thereafter, progress payments based on schedule of values. This "schedule of values" (referred to in the "[p]ayment [d]raw [s]chedule") contained the following "scheduled values" (excluding change orders): 1. Permits $21,600.00 2. Clearing/Grading/Fill $10,800.00 3. Foot'gs. Undgr Plumb, Soil Treatmt $23,000.00 4. Foundation/Slab poured $32,760.00 5. Exterior Walls/Tie Beam $26,600.00 6. Roof Trusses $26,600.00 7. Roof Sheathing/Felt $19,400.00 8. Interior Framing Complete $14,000.00 9. Windows/Exterior Door Frames Set $14,400.00 10. 2nd Plumbing/Tub Set $7,200.00 11. Wiring Rough-In $14,400.00 12. HVAC Ducts Installed $7,200.00 13. Roof Shingles/Tiles Installed $14,400.00 14. Insulation (wall & ceiling) $4,200.00 15. Exterior Trim/Soffits $11,800.00 16. Drywall Hung $14,400.00 17. Drywall Finish $10,800.00 18. Interior Trim/Interior Doors Installed $13,400.00 19. Interior Paint $8,800.00 20. Siding/Stucco $14,400.00 21. Exterior Paint Complete $8,800.00 22. Exterior Doors & Garage Door Install $6,200.00 23. Cabinets/Countertops Installed $10,000.00 24. Plumbing Finish $3,600.00 25. Electrical Finish $5,600.00 26. HVAC-Compressor/A.H. Installed $10,920.00 27. Driveway/Walks Installed $3,600.00 28. Landscaping/Irrigation $7,200.00 There were six separate change orders. They were dated August 20, 2000 (Change Order No. 001), August 29, 2000 (Change Order No. 002), September 26, 2000 (Change Order No. 003), October 15, 2000 (Change Order No. 004), October 15, 2000 (Change Order No. 005), and November 10, 2000 (Change Order No. 006). As of December 21, 2000, ICC had been paid in full for all six change orders, as well as for items 1 through 8 on the "schedule of values." As of February 27, 2001, ICC had received additional monies from the Skieras: payment in full for items 9 through 12 and 15 on the "schedule of values" and partial (50 percent) payment for items 13 and 20 on the "schedule of values." As of April 10, 2001, ICC had been paid a total of $287,966.20 (all from the proceeds of a mortgage loan the Skieras had obtained from Admiralty Bank) for work done on the Skiera Residence. On May 1, 2001, the Skieras paid ICC an additional $16,800.00 for drywall work, bringing the total amount of payments that ICC had received from (or on behalf of) the Skieras, as of that date, to $304,766.20. The Skieras made no further payments to ICC. The "eight valid claims of lien" referenced in the Parties' Stipulations were filed by eight different subcontractors, all of whom had been hired by ICC to work on the Skiera Residence: Boca Concrete Pumping, Inc.; Gulf Stream Lumber Company; L & W Supply Corp., d/b/a Seacoast Supply; Waste Management of Palm Beach; B.T. Glass & Mirror, Inc.; Boca Raton Decorating Center Company; American Stairs; and Broten Garage Door Sales Inc.3 Boca Concrete Pumping was the "very first" subcontractor to work on the construction of the Skiera Residence. It did the "slab work, the foundation" (referenced in item 4 of "schedule of values"). Its lien was recorded on December 6, 2000. The lien was in the amount of $1,001.25, and it indicated, on its face, that it was for unpaid "concrete pumping" that had been furnished between September 8, 2000, and September 22, 2000. A satisfaction of this lien, dated March 8, 2001, was filed March 24, 2001. Gulf Stream Lumber's original lien was recorded February 15, 2001. It was in the amount of $67,872.59, and it indicated, on its face, that it was for unpaid "building material" that had been furnished between August 15, 2000, and January 24, 2001. An amended claim of lien was recorded May 3, 2001, in the amount of $36,530.59 for unpaid "building material" that, according to the lien, had been furnished between August 25, 2000, and March 27, 2001. A satisfaction of the original lien and amended claim of lien, dated November 30, 2001, was filed December 5, 2001. The liens were satisfied, pursuant to the terms of a Settlement Stipulation, upon the Skieras' payment of $39,579.28 to Gulf Stream Lumber. L & W Supply's lien was recorded April 30, 2001. It was in the amount of $4,536.98, and it indicated, on its face, that it was for unpaid "building materials [and] related items" that had been furnished between December 16, 2000, and January 30, 2001. A satisfaction of this lien, dated October 11, 2001, was filed November 7, 2001. The lien was satisfied by the payment of $10.00 "and other good and valuable consideration" (which was the payment of an additional $2,850.00 by check dated October 11, 2001). Waste Management of Palm Beach's lien was recorded May 31, 2001. It was in the amount of $1,665.89, and it indicated, on its face, that it was for unpaid "[w]aste [r]emoval [s]ervices" that had been furnished between August 30, 2000, and April 5, 2001. A satisfaction of this lien, dated October 19, 2001, was filed November 13, 2001. B.T. Glass & Mirror's lien was recorded June 29, 2001. It was in the amount of $3,560.00, and it indicated, on its face, that it was for an unpaid "glass/mirror package" that had been furnished between May 3, 2001, and May 31, 2001. A satisfaction of this lien, dated October 19, 2001, was filed November 13, 2001. The lien was satisfied by the payment of $1,600.00 (by check dated November 10, 2001), plus an agreement to provide "$2,000.00 in gazebo or arbor products from the Hitching Post," the Skieras' family business. Boca Raton Decorating Center's lien was recorded May 19, 2001. It was in the amount of $1,218.79, and it indicated, on its face, that it was for unpaid "paint, sealers [and] sundries" that had been furnished between May 1, 2001, to May 2, 2001. A satisfaction of this lien, dated October 11, 2001, was filed November 7, 2001. American Stairs' lien was recorded August 16, 2001. It was in the amount of $4,188.00, and it indicated, on its face, that it was for unpaid "[s]tairs and [r]ailings" that had been furnished between June 8, 2001, and June 15, 2001. A satisfaction of this lien was executed on October 15, 2001. Broten Garage Door Sales' lien was recorded September 5, 2001. It was in the amount of $3,214.00, and it indicated, on its face, that it was for the unpaid "sale and installation of garage doors and openers," which took place between June 25, 2001, and July 17, 2001. A satisfaction of this lien, dated January 31, 2002, was filed on February 5, 2002. At a meeting "in the early part of August [2001]" attended by Respondent, Mr. Stasinos, the Skieras, and the president of the bank from which the Skieras had borrowed the money to pay for the construction of their residence, Respondent announced that, on behalf of ICC, "he was filing [for] bankruptcy."4 ICC stopped working on the Skiera Residence after this meeting. At the time, the Skiera Residence was approximately 70 to 80 percent completed (and the Skieras had paid ICC a total of $304,766.20, or approximately 80 percent of the total contract price (including change orders) of $378,286.205). In addition to paying $57,316.62 to satisfy the "eight valid claims of lien" referenced in the Parties' Stipulations, the Skieras paid approximately an additional $57,000.00 to other subcontractors who provided goods and/or services "needed to complete the house." The $10,000.00 check referred to in the Parties' Stipulation 14 (that the Skieras received from Andover Construction, Inc.) did not "represent any kind of final settlement" between the Skieras and ICC. The October 4, 2001, Certificate of Occupancy for the Skiera Residence referred to in the Parties' Stipulations indicated, on its face, that ICC was the contractor, notwithstanding that ICC had abandoned the project "in the early part of August [2001]." Respondent has been a Florida-licensed general contractor since July 29, 1987. In his capacity as ICC's licensed qualifier, he has previously (by Final Order filed in DBPR Case Nos. 2001-03283 and 2001-03284 on December 23, 2003) been found guilty of, and disciplined for, violating (in connection with two residential construction projects undertaken by ICC for A. Richard Nernberg) the same subsections of Section 489.129(1), Florida Statutes (Subsections (1)(g), (i), and (m)) that he is accused of violating in the instant case. In these prior disciplinary proceedings, Respondent's license was suspended for two years, and he was fined $6,000.00 and required to pay $958.30 in investigative costs. Administrative complaints were also filed against Respondent in DBPR Case Nos. 94-15958 and 97-17352. Both of these cases were resolved by settlement stipulations in which Respondent "neither admit[ted] [nor] denie[d] the allegations of fact contained in the [a]dministrative [c]omplaint[s]."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board issue a Final Order: finding Respondent guilty of violating Section 489.1425(1), Florida Statutes, as alleged in Count I of the Amended Administrative Complaint, and fining him $1,000.00 for this violation; (2) finding Respondent guilty of the violation of Section 489.129(1)(g)1., Florida Statutes, relating to Boca Concrete Pumping's December 6, 2000, $1,001.25 lien, alleged in Count II of the Amended Administrative Complaint, and taking the following disciplinary action against him for this violation: suspending his license for four years (with such suspension to run consecutively with his current suspension); (b) fining him $5,000.00; (c) requiring him to pay restitution in the amount of $1,001.25 to the Skieras; and (c) ordering him to reimburse the Department for all reasonable investigative and prosecutorial costs (excluding costs related to attorney time) incurred by the Department; and (3) dismissing all other charges in the Amended Administrative Complaint. DONE AND ENTERED this 8th day of May, 2007, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 8th day of May, 2007.
The Issue Whether disciplinary action should be taken against Respondent's license to practice contracting number RC 0054458, based on the violations of Section 489.129(1)(j), (k), (h), (p) and (m), F.S., alleged in the five count Administrative Complaint.
Findings Of Fact Since July 1968 and at all times material, Respondent Ronnie Boles, was licensed as a registered roofing contractor in the State of Florida, having been issued license number RC 0054458, and was registered to do business as "Ronnie Boles Roofing Company." On January 8, 1990 Ronnie Boles, doing business as Ronnie Boles Roofing and Construction, contracted with William C. Martin to construct two pole barns at 10550 N.W. 36th Lane, Gainesville, Alachua County, Florida. The contract price was $21,000.00. There is no evidence that "Ronnie Boles Roofing and Construction" was authorized through a valid contractor to construct pole barns. Respondent's roofing contractor license also did not permit the construction of pole barns. On January 12, 1990, Ms. Jean H. Martin, wife of William C. Martin, issued a personal check to the Respondent for $10,000 as partial payment on the January 8, 1990 contract. The Respondent delivered some materials to the site for use in the construction of the aforementioned pole barns, but never began construction. Mr. Martin attempted to have the Respondent construct the pole barns for over three months without success. The value of the materials provided by the Respondent was approximately $2,000.00, Mr. Martin attempted to have the Respondent refund the $8,000.00 balance of the money Ms. Martin previously paid Respondent on the uncompleted contract. Eventually, Mr. Martin retained attorney Ron Holmes who filed a civil suit against the Respondent based on the aforementioned contract. A judgment for Mr. Martin was obtained in the amount of $9,374.36 on October 1, 1991. Mr. Holmes has attempted to collect the judgment for Mr. Martin on several occasions without success. The Respondent has been actively uncooperative. As of the date of the formal administrative hearing, Respondent had paid no portion of the aforementioned judgment. Mr. Martin filed a complaint against the Respondent with the Department of Business and Professional Regulation. Tom Bishop, Department of Business and Professional Regulation Investigator, investigated the case and mailed the Respondent a notification letter on April 20, 1992. In addition, Mr. Bishop left two messages on the Respondent's answering machine. The Respondent did not respond to the notification letter or the phone messages left by Mr. Bishop. The Department of Business and Professional Regulation has accumulated $22.40 in initial investigative costs, $267.50 in investigative costs, and $605.90 in legal costs associated with prosecution of this cause as of the date of Petitioner's Proposed Recommended Order, totalling $895.80.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Construction Industry Licensing Board enter a final order which provides as follows: Finds Respondent guilty of all violations as set out above. Requires Respondent to pay a collective fine of $5,000.00; Requires Respondent to pay restitution to Mr. Martin of $9,374.36; Requires Respondent to pay costs of investigation and legal fees in the amount of $895.80; and Suspends Respondent's license for three years, thereafter renewal of his license to be subject to proof of Respondent's compliance with requirements (2) - (4) inclusive. RECOMMENDED this 1st day of February, 1994, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1497 The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: 1 Rejected as unnecessary. 2-9 Accepted as modified to remove rhetoric and cumulative material. Respondent's PFOF: None Filed. COPIES FURNISHED: G. W. Harrell, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ron Boles Route 2 Box 417 Alachua, Florida 32615 Richard Hickok, Executive Director Construction Industry Licensing 7960 Arlington Expressway Jacksonville, Florida 32211-7467 Jack McRay, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Petitioner is the state agency charged with the responsibility to prosecute administrative complaints pursuant to Chapters 489, 455, and 120, Florida Statutes, and the rules promulgated pursuant thereto. At all times material to the Administrative Complaint, Respondent James J. Hastings was licensed as a certified general contractor in the State of Florida, holding license number CG C009847. At all times material hereto, Respondent was a qualifying agent for Hastings Construction Company, Inc. Respondent and Candace Reinertz are married. At all times material to the violations charged, she was operating under her maiden name for all purposes. At all times material hereto, Candace Reinertz was not licensed by the Florida Construction Industry Licensing Board, and the Respondent had knowledge thereof. Over several years, Ms. Reinertz regularly assisted Mr. Hastings in the operation of Hastings Construction Company, Inc., including day to day supervision of pool, small building, and house construction and pulling building permits for that corporation. She had been authorized in writing by Hastings to pull building permits for him on specific projects (not necessarily in a corporate name) at least since April 27, 1987. At all times material hereto, Castles `n' Pools, Inc., 205 Third Avenue, Melbourne Beach, Florida, was a firm that was not qualified with the Construction Industry Licensing Board, and Respondent had knowledge thereof. This corporation was intended to become a venture to be run jointly by husband and wife. Castles `n' Pools, Inc. had been qualified as a corporation with the Florida Secretary of State and had received an occupational license. The corporate officers/directors were Reinertz and Hastings. However, a Florida Construction Industry Licensing Board License was never applied for by Ms. Reinertz in her own name nor was one applied for by Mr. Hastings as a qualifier for Castles `n' Pools, Inc. On June 27, 1987, Castles `n' Pools, Inc., through Candace Reinertz, contracted with Zimmer Dominque for construction of a pool at Mr. Dominque's residence located at 866 Van Circle, N.E., Palm Bay, Florida, for $7,750. The contract promised completion of the pool by September 23, 1987, barring adverse weather and mishaps. It is Ms. Reinertz's testimony that she inadvertently filled in a Castles `n' Pools, Inc. blank contract when she intended to use a Hastings Construction Company blank contract. The blank forms are, indeed, very similar. Mr. Dominque's testimony is that he thought at all times that he was contracting with Castles `n' Pools, Inc., through Ms. Reinertz. Although he admits that at least by September 22, 1988, he considered Respondent in charge of the project and that he thereafter dealt directly with Respondent, Mr. Dominque's payment by checks made out to Castles `n' Pools and/or Candace Reinertz dated June 27, July 7, September 22, and September 24, 1987 (P-10) support a finding that all work to that point was progressing in the name of Castles `n' Pools. Also supportive of such a finding is that on July 6, 1987, Pyramid Equipment Service billed Castles `n' Pools for digging the hole for the pool (R-8) and on August 11, 1987, R & J Crane Service billed Castles `n' Pools for setting the pool in place (R-9). However, the issuance of the building permit to Hastings Construction Company, Inc. and the chronology of how the permit came to be issued (see infra.) suggest that Mr. Hastings did not know about the Castles `n' Pools connection until at least late September. Respondent's and Ms. Reinertz' testimony that Respondent did not find out that the wrong contract had been used until after construction was underway on the Dominque property is unrefuted and the exact date of his discovery was not demonstrated, but he admits he did not attempt to qualify Castles `n' Pools once he found out. On June 29, 1987, the Respondent authorized Candace Reinertz to pull a permit for the construction of a pool at Mr. Dominque's residence. The authorization, (P-12), does not specify either Castles `n' Pools nor Hastings Construction Company, Inc. as the construction corporation applicant. Ms. Reinertz's subsequent permit application was denied on July 2, 1987, by the Palm Bay Building Department, for failure to include a survey certified by a civil engineer or architect. The record does not reflect in what corporate name Ms. Reinertz made this initial application. She may not even have gotten as far as filling out a permit application before she was refused at the permit desk, but the line drawing prepared for that application (R-1) specifies that the line drawing was that of Hastings Construction Company, Inc. Mr. Hastings regularly did line drawings for Hastings Construction Company, Inc. projects on a particular machine in that corporation's offices. The certified survey requirement was a recent innovation of the Palm Bay Building Code. On July 6, 1987, Castles `n' Pools, Inc. delivered the prefabricated fiberglass pool, excavated the site and dropped the pool in the hole. No further efforts of permanent installation occurred at that time, due to failure to obtain a permit. A dispute then ensued between Hastings and Reinertz on one side and Mr. Dominque on the other over who must provide the survey and how. This dispute occasioned some delay in the project, but on July 26, 1987, Ms. Reinertz again applied, with a certified survey, to the Palm Bay Building Department for a permit for the construction of Mr. Dominque's pool, listing the builder as Hastings Construction Company, Inc. (P-5). On July 30, 1987, permit number 8702101 was issued by the Palm Bay Building Department for the construction of Mr. Dominque's pool by Hastings Construction Company, Inc. (P-6). Thereafter, work on the pool progressed sporadically until September 22, 1987, when the pool floated up out of the ground. The pool floated up out of the ground during a rainstorm and after Respondent had left Mr. Dominque with instructions to fill the pool to a certain level with water. There is sufficient evidence to demonstrate that Mr. Dominque failed to follow Respondent's directions with precision. Subsequent to September 22, 1987, the pool was reinserted in the excavation by crane and by October 2, 1987, the deck was installed. Two or three months later a crack appeared in the pool which has since been repaired, however, the drain and light still do not work properly, and Mr. Dominque had to pay an additional $50 for cleanup of the resulting debris. Some of the delay in completion of work on the pool can be attributed to the dispute about the survey, some to injury of a key employee, and some to heavy rains, but the testimony of Mr. Nasrallah, architect and expert contractor, is accepted that 30 to 45 days would be sufficient to install the entire pool except for the pool deck even in rainy weather. Also, Mr. Dominque's and Respondent's testimony is in agreement that Respondent (not Ms. Reinertz) was fired for a period of time and then rehired. The length of time and the dates that Respondent was off the job is unclear, but it was minimally from September 9 to September 22, 1987. Oversight of the work at all times was by the Respondent. Mr. Dominque has paid the total contract price of $7,750 and expressed himself that any amount he questioned has either "evened out" or been paid back by Respondent. Stan Alexander is a certified general contractor and former chairman of the Florida Construction Industry Licensing Board. In his expert opinion as a contractor, construction began when the hole was first dug on July 6, 1987 and the pool was placed in it even temporarily. Also in his expert opinion as a contractor, Mr. Alexander determined that the contractor responsible for the installation of this pool was guilty of gross negligence or incompetence due in part to the insufficiency of dewatering devices (including a hydrostatic device) and placement of the responsibility to fill the pool on the home owner. Mark Nasrallah is a registered Florida architect and a licensed general contractor. Also in his expert opinion as a contractor, construction began on the job when the pool was placed in the excavation. It is also Mr. Nasrallah's expert opinion that the contractor responsible for this job is guilty of gross negligence or incompetence. Although Mr. Alexander was unfamiliar with any local Palm Bay zoning or permitting provision which would allow "site clearing" prior to excavation/construction, and although Mr. Nasrallah considered it "questionable" whether the digging for the pool constituted "construction without a permit," Mr. Nasrallah's assessment that digging the hole and putting the pool in the hole even temporarily was in excess of mere site clearing and was work which clearly began construction is accepted. Section 103 of the Standard Building Code has been adopted by the City of Palm Bay. It provides as follows: A person, firm or corporation shall not erect, construct, enlarge, alter, repair, move, improve, remove, convert, or demolish any building or structure in the applicable jurisdiction, or cause the same to be done, without first obtaining a building permit for such building or structure from the Building Official. Respondent was disciplined by the Construction Industry Licensing Board in October, 1984, for violation of Sections 489.129(1)(c), (g), (j); 489.119(2), (3); and 455.227(1)(a) Florida Statutes.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Construction Industry Licensing Board enter a final order finding Respondent guilty of violations of Sections 489.129 (1)(d) and (m) Florida Statutes, issuing a letter of guidance with regard to the permitting violation, fining the Respondent $750.00 for gross negligence or incompetence, and dismissing the remaining two charges. DONE and RECOMMENDED this 23rd day of November, 1988, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 23rd day of November, 1988. APPENDIX TO RECOMMENDED ORDER DOAH Case No. 87-5172 The following constitute rulings pursuant to s. 120.59(2), Florida Statutes, upon the parties' respective Proposed Findings of fact (FOF). Petitioner PFOF: Accepted in FOF 1. Accepted in FOF 2. Accepted in FOF 3. Accepted in FOF 5. Accepted in FOF 7. Accepted in FOF 8. 7-8. Accepted and expanded to more accurately reflect the record in FOF 10 9. Accepted in FOF 11. 10-11. Accepted and expanded to more accurately reflect the record in FOF 12. Accepted and expanded to more accurately reflect the record in FOF 13. Accepted in FOF 14. 14-15. Accepted in part and rejected in part in FOF 15-17. The modifications are made to more accurately reflect the record as a whole, the specific expert opinion as given by Messrs. Alexander and Nasrallah (discussed in the Conclusions of Law) and to reflect that some hydrostatic devices were used, some removed, and at least one left in for a period of time. 16. Accepted in FOF 19. COPIES FURNISHED: Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 G. W. Harrell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 James J. Hastings 205 Third Avenue Melbourne Beach, Florida 32951 Lawrence A. Gonzalez, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce D. Lamb, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
Findings Of Fact Harry L. Wilson is the holder of a registered roofing contractor's license from the Florida Construction Industry Licensing Board. The license, Number RC 0041328, was first issued in March of 1982. The license was issued in the name of Harry L. Wilson Roofing, 1943 Hardy Street, Jacksonville, Florida, with the Respondent as qualifier. The Respondent has been the qualifier of Harry L. Wilson Roofing at all times relevant to this proceeding. On December 6, 1984, the Respondent and Robbie L. Hicks, entered into a written contract (Petitioner'S Exhibit 2). Pursuant to this written contract (hereinafter referred to as the "Contract"), the Respondent agreed to perform the repair work specified in the Contract in a "professional manner" and Ms. Hicks agreed to pay the Respondent $2,395.00. The property to be repaired is rental property owned by Ms. Hicks. The property is located at 1508 Eaverson Street, Jacksonville, Florida. The Respondent commenced work sometime during the early part of 1983. Shortly after commencing work, however, the Respondent and Ms. Hicks began having disagreements as to the work to be performed and the quality of the Respondent's work. These disagreements continued after the Respondent completed the work in November of 1983. Ms. Hicks testified that the work that the Respondent completed was done in an unprofessional manner and that the Respondent had not completed all of the work that he had agreed to perform. In particular, Ms. Hicks testified that the Respondent had failed to paint the interior of the house beige as required by the Contract, had failed to remove saw dust and other debris from the house following completion of the work, had failed to finish cabinets installed in the house, had failed to repair screens and generally had not performed in the manner he had agreed to perform. Ms. Hicks paid the Respondent all but $410.00 of the contract price. The Respondent testified that all off the work called for pursuant to the Contract had been performed. According to the Respondent, he had performed some work not required by the Contract and had not performed other work requested by Ms. Hicks because the work was beyond the scope of the Contract. The Respondent also stated that the work which Ms. Hicks expected would have cost considerably more than the price agreed upon in the Contract. The Respondent did not perform all of the work specified in the Contract in a "professional manner" as required by the Contract. Based upon the testimony of Mr. Claude Bagwell, Deputy Chief, Building and Zoning, Inspection Division of the City of Jacksonville, it is clear that no permit was issued by the City of Jacksonville to perform the work required by the Contract. The only permits issued with regard to Ms. Hicks' rental property was a permit issued in 1961 and the original building permit issued in 1949. Additionally, due to the fact that no Florida registered roofing contractor's license in the name of "Harry L. Wilson Roofing" had been filed with the City of Jacksonville, no permit could be issued to Harry L. Wilson Roofing with regard to the Contract. The Respondent admitted that he had not obtained a permit to perform the work required by the Contract. The Respondent indicated that he had not obtained a permit because he was not aware that one was required in order to perform the work. He did indicate that he had obtained permits to perform other jobs. The Respondent could not, however, have obtained permits for other jobs because no license issued in the name of Harry L. Wilson Roofing had been filed with the City of Jacksonville. The Respondent did take the examination required in order to obtain a registered roofing contractor's license. The Petitioner suggested in its Proposed Findings that the "permit requirement was explained" when the Respondent took the exam. No evidence to support such a finding was presented at the hearing. The Respondent in entering into the Contract clearly used the name "Wilson Recycling". Nowhere on the Contract is the name "Harry L. Wilson Roofing" used. The Respondent ultimately admitted that no Florida license authorizing the use of the name "Wilson Recycling" had been obtained by him. The Respondent, however, when initially asked whether a Florida license in the name of "Wilson Recycling" had been obtained indicated that such a license had been issued. On further examination, however, the Respondent testified that an occupational license in the name of "Wilson Recycling' had been obtained by him and not a Florida license. The work to be performed pursuant to the Contract was beyond the scope off the Respondent's license. As pointed out by Mr. Bagwell the work to be performed pursuant to the Contract would require licensure as a registered residential contractor or more.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That count I of the Administrative Complaint filed against the Respondent be dismissed. It is further RECOMMENDED: That Respondent be found guilty of violating Section 489.129 (1)(g), Florida Statutes (1983), by contracting in a name other than the name as set forth on the Respondent's license. It is further RECOMMENDED: That Respondent be found guilty of violating Section 489.129(1)(j), Florida Statutes (1983), by failing in a material respect to comply with the provisions of Section 489.119(2) and(3), Florida Statutes (1983), in that the Respondent failed to qualify the business name "Wilson Recycling" with the Construction Industry Licensing Board. It is further RECOMMENDED: That Respondent be found guilty of violating Section 489.129(1)(j), Florida Statutes (1983), when he failed in a material respect to comply with the provisions of Section 489.117(2), Florida Statutes (1983), by contracting to perform and actually performing work beyond the scope of his Florida contracting license. It is further RECOMMENDED: That Petitioner suspend Respondent's roofing contractor's license for a period of three (3) months. DONE and ENTERED this17th day of December, 1984, in Tallahassee, Florida. LARRY J. SARTIN 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 17th day of December, 1984. COPIES FURNISHED: H. Reynolds Sampson, Esquire Staff Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harry L. Wilson 1943 Hardee Street Jacksonville, Florida 32209 Mr. Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether the certified general contractor's license of W. Bert Jones should be revoked.
Findings Of Fact By an Administrative Complaint filed October 27, 1976, the Florida Construction Industry Licensing Board sought to revoke the general contractor's license of W. Bert Jones alleging that the Respondent contractor entered into a contract with Mrs. Barbara Loewe to renovate her home and to add a room onto the back of the house; that the Respondent contractor was paid in full the contract price but the job was not completed and there were numerous building code violations. Respondent requested an administrative hearing. Pursuant to written agreements entered into between the Respondent and Mrs. Barbara Loewe of Tampa, Florida, Respondent agreed to renovate Mrs. Loewe's home and to add a room onto the back of the house. Mrs. Loewe, either by paying the Respondent directly or paying material suppliers, paid the full contract price. In June or July of 1975 the Respondent left the job contracted for partially or wholly incompleted as follows: the ceiling of the kitchen and drywall were in complete and the kitchen was not painted; the guest bathroom was not trimmed; two back rooms were incomplete. Inasmuch as the ceiling was left undone, it was not trimmed, the drywall was incomplete, the doorways were left uninstalled, and the paneling was incomplete; the bathroom had no toilet, no sink and no trim on the tub; in the master bedroom the ceiling was left sagging, there was no insulation in ceiling or walls, the door was untrimmed, siding was left partially undone and the windows weren't trimmed; holes were left unrepaired around the pipes in the home. The sum of Five Thousand Dollars ($5,000) was paid by St. Paul Fire and Marine Insurance Company in full settlement of the claims arising under the general contractor's bond. Additional money, approximately Thirty-Five Hundred Dollars ($3,500), was spent by Mrs. Loewe in addition to the Five Thousand Dollars ($5,000.00) received from the bonding company in order to complete the jobs contracted for. Although there were minimum changes In the job as originally contracted for, work is still going on to complete the original work contracted for by the Respondent. The building inspector for the City of Tampa Building Bureau, Tom Burgoyme, inspected the job site on several occasions during the progress on the work contracted for between Mrs. Loewe and the Respondent. He found building code violations and submitted a list of corrections to the Respondent, Mr. Jones, which were not remedied. A number of problems arose during the construction work, some of which was not the fault of the Respondent. Another contractor was involved in the work on the project. Funds in excess of the purchase price were paid to the Respondent and funds in excess of Eighty-Five Hundred Dollars ($8,500) were needed or will be needed to complete the project.
Recommendation Revoke the general contractor's license of Respondent, Number C GC007323. DONE and ORDERED this 7th day of April, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211 Barry Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 W. Bert Jones 2300 Greenlawn Street Brandon, Florida 33511
