Findings Of Fact Until December of 1974, respondent William W. Lambert did business as a general contractor under the corporate name of Lambert Enterprises, Inc. As qualifying agent for the corporation, he built homes, poured concrete, laid sod, and did other general contracting. During 1974, respondent was in the process of acquiring a sod farm, as well as being engaged in the general contracting business. Lambert Enterprises, Inc. dealt largely with other contractors. When The Commonwealth Corporation went bankrupt, other contractors, notably the Collins brothers, also ended up in bankruptcy, and unable to make good on outstanding obligations to Lambert Enterprises, Inc. Respondent caused a voluntary petition in bankruptcy to be filed on behalf of Lambert Enterprises, Inc., on November 22, 1974. At that time he held all the stock in Lambert Enterprises, Inc., and served both as president and as a member of the board of directors of the corporation. Respondent Lambert has never been interested in any other corporation that has been declared bankrupt, and has never gone into bankruptcy personally. Mr. William E. Wingate, an investigator for the Florida Construction Industry Licensing Board, checks bankruptcy records twice monthly. By looking through bankruptcy records, he has learned of ten to twelve bankruptcies, in the Northern District of Florida, involving contractors in the last two years. He may have missed some, but every time he finds out about a contractor's bankruptcy, he reports it to the Board's Jacksonville office. On July 31, 1975, he first learned of respondent's corporation's bankruptcy. He obtained certified copies of pertinent papers which he then forwarded to other Board staff in Jacksonville. After Lambert Enterprises, Inc. failed, respondent obtained a general contractor's license as an individual, which is currently in force. Since December of 1975, respondent has been employed by Century Construction, first in Tallahassee, then in Jacksonville, where he is now a project manager for the company. Permits for work performed by Century Corporation are not pulled on respondent's license. Respondent's financial condition is now stable, and he is financially sound.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent be reprimanded. DONE and ENTERED this 25th day of April, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida COPIES FURNISHED: Barry S. Sinoff, Esquire Blackstone Building, Suite 1010 Jacksonville, Florida 32202 Daniel J. Wiser, Esquire Post Office Box 10137 Tallahassee, Florida 32302 Mr. J. K. Linnan Executive Director Florida Construction Industry Licensing Board 1010 Blackstone Building Jacksonville, Florida 32202
The Issue Whether Respondent acted as a broker or sales associate without being the holder of a valid and current broker or sales associate license, in violation of Subsection 475.42(1)(a), Florida Statutes (2004),1 and, therefore, in violation of Subsection 475.25(1)(e), Florida Statutes; and Whether Respondent published or caused to be published an advertisement for the sale of real properties, advertising himself to be a broker, at the time Respondent's license was in inactive status for failure to renew, in violation of Subsection 475.25(1)(c), Florida Statutes, and Florida Administrative Code Rule 61J2-10.025.
Findings Of Fact Petitioner is the state agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Section 20.165 and Chapters 120, 455, and 475, Florida Statutes. Petitioner has jurisdiction over disciplinary proceedings for the Commission. Petitioner is authorized to prosecute administrative complaints against licensees within the Commission's jurisdiction. From April 18, 2002, through September 30, 2003, Respondent was an active sales associate in association with Caldwell Banker Residential Real Estate, Inc., a brokerage corporation located at 5981 Catheridge Avenue, Sarasota, Florida 34232. Respondent's Florida real estate sales associate license, number 95480, was involuntarily placed on inactive status due to non-renewal during the period October 1, 2003, through August 15, 2004. On or about February 22, 2004, Respondent published or caused to be published an advertisement for the sale of real properties with the South Florida Sun Sentinel, and in that advertisement, Respondent held himself out to be a realtor in the State of Florida, associated with Caldwell Banker. From August 16, 2004, through the present, upon the late renewal of his license, Respondent is listed as an inactive sales associate.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order finding Respondent guilty of violating Subsections 475.42(1)(a), 475.25(1)(a), and 475.25(1)(c), Florida Statutes, and Florida Administrative Code Rule 61J2-10.025 and, therefore, Subsection 475.25(1)(c), Florida Statutes, as charged in the Administrative Complaint; suspending Respondent's license for a period of one year; fining Respondent the sum of $1,000; and requiring that Respondent pay fees pursuant to Subsection 455.227(3), Florida Statutes, for investigative costs, in the amount of $841.50. DONE AND ENTERED this 4th day of December, 2006, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 4th of December, 2006.
Findings Of Fact Golden Dolphin was the holder of the State of Florida Alcoholic Beverage license number 15-229 for the period October 1, 1976, through September 30, 1977. DABT seeks to assess a civil penalty against the Golden Dolphin or to suspend or revoke its beverage license on the grounds that seven violations of Section 847.011(4), Florida Statutes, occurred on the premises of Golden Dolphin on June 9, 10 and 11, 1977. During that period of time, various dance routines depicting sexual acts, representing sexual acts or suggesting or encouraging sexual arousal occurred on the premises. No evidence was introduced purporting to establish that any of the performers were agents, servants or employees of Golden Dolphin. Accordingly, it is found, as a matter of fact, that the performers were not agents, servants or employees of Golden Dolphin. No evidence was introduced purporting to demonstrate whether, to the average person applying contemporary community standards, the dominant theme of the material, taken as a whole, appealed to prurient interests. Accordingly, it is found, as a matter of fact, that to the average person, applying contemporary community standards, the dominant theme of the material presented at the Golden Dolphin, taken as a whole, did not appeal to prurient interests.
Findings Of Fact On or about September 21, 1981, Respondent, Ft. Myers Banana Boat, Inc., d/b/a Banana Boat, applied to enter the drawing for eight new quota liquor licenses for Lee County to be held on December 16, 1982. The application disclosed that Dykes J. Riggs and James G. Kincaid each owned fifty percent of the stock of the Respondent and served as president and secretary, respectively. On or about January 5, 1983, Respondent was notified that it had been selected in the drawing as one of the preliminary applicants. In late February or early March 1983, Respondent filed its application for licensure. The application again disclosed Dykes Riggs as president and James Kincaid as secretary. It added that Kincaid also served as treasurer. It omitted any reference to stock ownership. On or about July 22, 1983, Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division), issued Respondent license number 46-1146, Series 4-COP, for the address 9100 South Cleveland Avenue, Ft. Myers. Because the location was unsuitable, Respondent, by letter dated August 5, 1983, requested the Division to place its license in escrow, and the escrow was "finalized" on or about January 31, 1984. The license remained in escrow until on or about November 30, 1984. While the license was in escrow, Riggs began to have serious doubts about the trustworthiness of Kincaid. In addition to their interests in Respondent, Riggs and Kincaid also had interests in two other licensed businesses--Boca Banana Boat, Inc., and The Banana Boat of Pompano, Inc. (A third individual, Don Litzenberger, also had an interest in the Boca Banana Boat, Inc.) Kincaid was suffering from acute alcoholism and was in heavy debt. Riggs was concerned that Kincaid would transfer his interest in Respondent or one of their other licensed businesses in order to satisfy a portion of his debts. Riggs was concerned about having a substitute business associate with whom he would have to work. Although not his primary concern, Riggs also was concerned that, by transferring his interest in Respondent, Kincaid would be violating Section 561.32(4), Florida Statutes (1983), and that Respondent would lose its license. Riggs also was concerned because Kincaid had told him of the pendency of administrative proceedings against Kincaid in connection with two other licenses in which Kincaid had an interest. Subsequently, Riggs learned that Kincaid had given a creditor named Wagner a power of attorney over all Kincaid's interests. Riggs did not like Wagner and suspected that Wagner was of bad moral character and may not be qualified for licensure by the Division. If disqualified for licensure, Wagner's interests in Respondent and the other licensed businesses in which Riggs and Kincaid had interests would jeopardize the licenses. In addition, a transfer of interest in Respondent from Kincaid to Wagner would violate Section 561.32(4), Florida Statutes (1983). During this period, Riggs also suspected that Kincaid was stealing money from the operation of The Banana Boat of Pompano, Inc. To deal with all of these business problems with Kincaid, Riggs had Kincaid's name taken off all bank accounts of the three licensed businesses in which they shared interests and refused to allow Kincaid any further say in the operation or the businesses or to review the books and records of any of the corporations through which the businesses were operated. Kincaid sued Riggs, Respondent and Boca Banana Boat, Inc., for damages. Riggs consulted with his attorney, Ernest Alexas, and decided to enter into a Settlement Agreement with Kincaid on or about June 29, 1984. Under the Settlement Agreement, Riggs would pay Kincaid $10,000, and Kincaid would "execute all necessary stock transfers, releases and other documents necessary" to "assign [to Riggs] all of his right, title and interest" in the three corporations through which Riggs and Kincaid operated licensed businesses, including Respondent. The documents were to be held in escrow by Alexas pending payment of $106,000 to Kincaid. The agreement then provided that the documents in escrow would be "delivered" to Riggs or the three corporations. The agreement also provided that Kincaid would dismiss his damage suits against Riggs, Respondent and Boca Banana Boat, Inc., and that Kincaid would resign "from all offices and positions as director held by him" in the three corporations, including Respondent. By September 18, 1984, the parties had performed all of the obligations under the June 29, 1984, Settlement Agreement. Kincaid had dismissed the damage suits. Boca Banana Boat, Inc., had pledged assets to secure a loan of $106,000, which was paid to Kincaid and Wagner. However, acting upon the advice of his attorney, Alexas, Riggs decided to instruct Alexas to continue to hold the documents in escrow for the time being. No decision was made whether Kincaid's stock should be placed in Riggs' name individually, placed in Respondent's name as treasury stock, placed partially in the name of Boca Banana Boat, Inc., or retired. In any case, Alexas advised Riggs that no violation of Section 561.32(4), Florida Statutes (1983), would occur unless the stock were transferred within the statutory three-year time period which was due to expire in approximately August 1986, to someone other than Riggs or to a corporation or partnership in which someone other than Riggs held an interest. Riggs himself was unclear exactly what Kincaid's relationship to Respondent was after September 18, 1984. Riggs' purpose in settling with Kincaid was to eliminate any and all control Kincaid might have over Respondent and the other corporations involved in the settlement. At the same time, Riggs thought Kincaid still should be obligated personally for his share of the debts of the corporations. Riggs hoped that, by leaving the documents in escrow and by not changing officers and directors on the corporate books, this would be accomplished. In November 1984, Riggs began the process of applying to have Respondent's license taken out of escrow and issued to a location at 865 San Carlos Boulevard, Ft. Myers Beach. On the application which Riggs signed, Riggs was listed as fifty percent stock owner and president. James G. Kincaid still was listed as fifty percent stock owner and secretary/treasurer. The Division took the license out of escrow, placed it at the new address and changed it to a Series 3-PS license. However, the Division did not prove that Riggs intended to mislead personnel of the Division in the performance of their official duty by referencing Kincaid on the application. First, the evidence was that Riggs was following the advice of his lawyer, Alexas, which he trusted and believed, that the elimination of Kincaid did not violate Section 561.32(4), and Riggs did not think there was any reason to mislead the Division by not disclosing the Settlement Agreement. Second, the evidence was that Division personnel helped Riggs' wife complete the application using information on prior applications, including Kincaid's interest. Finally, the evidence was that Riggs himself did not really know or understand Kincaid's precise legal status in relation to Respondent as of November 30, 1984.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a Final Order dismissing the Notice to Show Cause against Respondent, Ft. Myers Banana Boat, Inc., d/b/a Banana Boat, in this case. RECOMMENDED this 20th day of January 1987 in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 20th day of January 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2307 To comply with Section 120.59(2), Florida Statutes (1985), rulings are made on the parties proposed findings of fact. Petitioner's Proposed Findings Of Fact. 1-10. Accepted and incorporated to the extent not subordinate or unnecessary. But as to the second paragraph of proposed finding 4, only the date the application was filled out was in error in all likelihood; the substance and rest of Mrs. Riggs' testimony is accepted as true. Respondent's Proposed Findings Of Fact. 1-7. Accepted and incorporated to the extent not subordinate or unnecessary, except that the first two-and-one-half lines of proposed finding 4, including the date "October of 1984," are rejected as contrary to the greater weight of the evidence and facts found. Subordinate. Rejected as contrary to the greater weight of the evidence and facts found. Accepted and incorporated to the extent not subordinate or unnecessary except the date probably was November 29, 1984. First two sentences rejected as contrary to the greater weight of the evidence and facts found. Sarnonski filled out part of the application and advised Mrs. Riggs how to fill out the rest, including the references to Kincaid, by reference to information in the prior application. Third sentence accepted but subordinate and unnecessary. 12.-14. Subordinate and unnecessary. 15. Accepted and incorporated. COPIES FURNISHED: Louisa E. Hargrett, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 Leslie T. Ahrenholz, Esquire Post Office Box 2656 Ft. Myers Beach, Florida 33931 James Kearney, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 Thomas A. Bell, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 =================================================================
The Issue Did Respondent commit the violations alleged in the Administrative Complaint dated April 11, 2000, and if so, what discipline is appropriate?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida charged with the responsibility of regulating the practice of contracting pursuant to Section 20.165, Florida Statutes, and Chapters 455 and 489, Florida Statutes. Respondent is, and has been at all times material hereto, a certified residential contractor in the State of Florida, having been issued license number CR CO13253 by the Florida Construction Industry Licensing Board. At all times material hereto, Respondent was licensed with the Construction Industry Licensing Board as an individual. On or about November 20, 1993, Respondent entered into a written contractual agreement (contract) with Kevin Watkins (Watkins) to construct a single family residence at 126 Meadow Lark Boulevard, Lot 65, Indian Lake Estates, Florida. The contract price was $333,944.00. Between December 7, 1993, and February 1, 1996, Watkins and Respondent executed 102 addenda to the contract which increased the contract price by approximately $241,874.43, for a total amount of approximately $575.818.43. On or about December 9, 1993, Respondent obtained permit number 93-120l850 from the Polk County Building Department and commenced work on the project. The contract provided that the "project shall be substantially completed on or about 195 days from the date all building permits are issued." However, due to the 100-plus addenda to the contract, it was estimated that an additional 190 days would be needed to complete the project. Additionally, construction ceased on the home for approximately 60 days so that Watkins could explore the possibility of a construction loan. However, due to the extent of completion, the lending institutions decided not to make any construction loans. On or about May 27, 1996, Watkins moved to Florida with the expectations that his home would be completed within a short period of time. (Watkins' recollection was that the home was to be completed in a couple of weeks. Respondent's recollection was that the home was to be completed in a couple of months.) In any event, Respondent did not complete the Watkins home within a couple of weeks or a couple of months. After Watkins moved to Florida, Respondent paid for Watkins to live in a Best Western motel for a few weeks. Subsequently, Respondent moved Watkins into a rental home for which Respondent paid the rent through September 1996. Beginning October 1996 through July 1999, Watkins paid $600.00 per month for a total of $20,400.00 as rent on the rental home. In early 1998, Respondent and Watkins went through the home, identified those items which had not been completed and Respondent made a handwritten list of those items. Respondent failed to complete the items identified on the list. In fact, shortly thereafter, Respondent ceased working on the project and was unresponsive to attempts to contact him. At the time Respondent ceased working on Watkins' home, the home was approximately 75 percent complete. While this estimation of completion may not be totally accurate, it is the best that could be derived based on the evidence presented, including Respondent's testimony to which I gave some credence. Watkins paid Respondent $561,617.91, which represents approximately 97.534 percent of the total contract price plus addenda to the contract. Seventy-five percent of the contract price plus addenda to the contract equals $431,863.82 for an overpayment of $129,754.09. To date, Respondent has not returned any of the money he received from Watkins above the amount completed under the contract. From early 1998, until August 1998, when Watkins had Respondent removed as general contractor on the building permit, Respondent failed to perform any work on the home for a period in excess of 90 days. Respondent contracted with Jack Eggleston to install cabinets in Watkins home. Eggleston performed under the contract but Respondent failed to pay Eggleston in full, requiring Watkins to pay Eggleston $1,200.00. After Watkins' home was partially complete, Respondent advised Watkins that he had the home insured when in fact he did not have the home covered with insurance. While Respondent was building Watkins' home, Respondent and Watkins entered into a joint venture called Contractors of Central Florida to build modular homes sometime after January 1, 1995. Respondent contends that some of the checks Watkins claims as payment under the contract for his home, were in fact reimbursement to Respondent for funds he had advanced for the joint venture. There is insufficient evidence to establish facts to show that any of the checks Watkins claims as payment under the contract for his home were in fact reimbursement for funds advanced by Respondent for the joint venture. Up until the time of the final hearing, the Department had incurred costs for the investigation and prosecution of this matter, excluding costs associated with an attorney's time, in the amount of $1,451.28.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and after careful review of the guidelines set forth in Rule 61G4-17.001(8) and (11), Florida Administrative Code, and the circumstances for purpose of mitigation or aggravation of penalty set forth in Rule 61G4-17.002, Florida Administrative Code, it is recommended that the Department: Enter a final order finding Respondent guilty of violating Section 489.129(1)(h)2., Florida Statutes, and imposing a penalty therefor an administrative fine in the amount of $1,000.00; Enter a final order finding Respondent guilty of violating Section 489.129(1)(k), Florida Statutes, and imposing a penalty therefor an administrative fine in the amount of $1000.00; Assessing costs of investigation and prosecution, excluding costs associated with an attorney's time, in the amount of $1,451.28, plus any such further costs which have or may accrue through the taking of final agency action and; Requiring Respondent to pay restitution to Kevin Watkins in the amount of $129,754.09 which represents the amounts accepted by Respondent for work not performed. DONE AND ENTERED this 23rd of October, 2000, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 2000. COPIES FURNISHED: Robert A. Crabill, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32388-2202 Ronald J. Powell Post Office Box 7043 Indian Lake Estates, Florida 33855 Rodney Hurst, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
