The Issue The issues for determination are whether Respondent committed the acts alleged in the Administrative Complaint and, if so, what, if any, penalty should be imposed.
Findings Of Fact Petitioner is the governmental agency responsible for issuing licenses to practice as building contractors. Petitioner is also responsible for regulating such licensees on behalf of the state. At all times pertinent to this proceeding, Respondent has been licensed individually as a Certified General Contractor pursuant to license number CG C 0055328 issued by the Construction Industry Licensing Board (the "Board"). Respondent has never been licensed by the Board as the qualifying agent for Mr. Gary Butler ("Butler"), an unlicensed contractor. In 1993, Respondent entered into an agreement with Butler who has never been licensed by the Board. The terms of the agreement require Respondent to pull permits for construction projects entered into by Butler. Butler pays Respondent for each permit or weekly. Respondent supervises some, but not all, of the projects undertaken by Butler. In August, 1993, Mr. Lynn Kyler ("Kyler"), the owner of a residence constructed by Ms. Denise Pyke ("Pyke"), a Certified Residential Contractor, asked Pyke to find a contractor to build a new dock and boat house at Kyler's residence. The Kyler residence is a lake front home located at 10250 State Road 561 A, Clermont, Lake County, Florida. Kyler authorized Pyke to act as Kyler's agent for construction of the dock and boat house. Kyler resided in Indiana from August through late fall of 1993. Pyke obtained recommendations of various candidates including Butler. Butler represented himself as a licensed and insured builder of docks and boat houses. Butler provided Pyke with a business card representing that Butler is licensed and insured. Pyke obtained cost and design proposals from Butler and Norquist Construction Company and communicated the proposals to Kyler. Kyler chose Butler. Butler agreed to demolish the existing dock and construct a new dock and boat house (the "project"). Kyler paid Butler the full contract price of $6,897.60. Prior to the completion of the project, neither Respondent nor Butler disclosed to Pyke or Kyler that Butler was unlicensed. Nor did they disclose that Butler would use Respondent's license to pull the permit for the project. Respondent knew that Butler is not licensed as a contractor, in any capacity. On August 25, 1993, Respondent and Butler went to the Lake County Building Department. Respondent used his license to pull Permit Number T93- 04793 for the project. The permit was issued to Respondent, listed Respondent's license as the certified general contractor, and was maintained in the official records of the Lake County Building Department. Respondent listed himself on the permit as the contractor for the entire project without limitation and without reference to Butler. Respondent was not authorized by Pyke or Kyler to pull the permit or to participate in the project. At the time, neither Pyke nor Kyler were aware of Respondent's existence or his role in the project. Respondent did not participate and had no involvement in the project except pulling the permit. The project was commenced by Butler in August, 1993, and completed shortly thereafter. Respondent did not supervise or participate in the construction of the project. Butler began the project without first filing a Notice of Commencement. Butler constructed the project with only a 10 foot setback in violation of the 25 foot setback required in Lake County Code Ordinance 10.0401(3)(d). Butler also failed to obtain an electrical permit in violation of Standard Building Code, Section 103.1.1. (1991). The project, as built by Butler, has no value to Kyler. The project failed final inspection for violation of the 25 foot setback and failure to obtain an electrical permit. The roof tiles on the boat house had to be removed because they were falling off the roof. The project itself is coming apart. It will cost between $10,000 and $12,000 to bring the project into compliance with local code requirements and to make it usable. Respondent was aware of the 25 foot setback when he pulled the permit for the project. The project plans submitted for the permit reflect the 25 foot setback. Lake County allows contractors to withdraw permits that have already been pulled. Respondent never withdrew the permit for the project. Butler was unable to obtain a final inspection because he failed to file a Notice Of Commencement at the outset of the project. Pyke and Kyler filed the Notice Of Commencement in order to obtain the final inspection. As the contractor of record, it was Respondent's responsibility to ensure that a Notice of Commencement was filed and that the project passed final inspection. While obtaining the information necessary to file the Notice Of Commencement, Pyke and Kyler learned that Butler was unlicensed and uninsured and that Respondent had used his license to pull the permit. When confronted by Pyke, Respondent did not deny knowledge of the project and assured Pyke that the problems with the project would be corrected. Despite Respondent's assurances, the code violations have not been corrected. Nor have the defects in construction been corrected.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a Final Order finding Respondent guilty of violating: Sections 489.129(1)(c) and 455.227(1)(a); and Sections 489.129(1) (e), (f), (n), and (p). It is further recommended that the Board place Respondent on probation for three years, subject to reasonable conditions, impose an administrative fine of $5,000, and assess costs of $717.50 plus reasonable costs incurred by Petitioner subsequent to the date of this Recommended Order to investigate and prosecute this proceeding to its conclusion. RECOMMENDED this 28th day of March, 1996, in Tallahassee, Florida. DANIEL S. MANRY, 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 March 1996.
The Issue The issue presented is whether the Respondent committed the offenses alleged in the Administrative Complaint, and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, Respondent, Manuel Cabanas was licensed as an electrical contractor and held license number ER 0006946 issued by Petitioner, the Electrical Contractors' Licensing Board. On or around December 13, 1988, the Construction Trades Qualifying Board of Dade County, Florida (Board) charged Respondent with the misrepresentation of material facts concerning his employment or work status on documents submitted with his application to obtain a business certificate of competency. A hearing on the charge was held before the Board on January 3, 1989. At the hearing, Respondent initially pled not guilty, but changed his plea to no contest sometime after a Board member advised Respondent that his testimony indicated that he was actually guilty of the charge. On January 6, 1989, Respondent was notified by the Board that after hearing all the testimony, a determination had been made that Respondent was guilty of the charge. As discipline for his act, the Board revoked Respondent's certificate of competency.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered suspending Respondent's license number ER 0006946, conditioned upon reinstatement of the local license as long as Respondent intends to practice in the jurisdiction of the Construction Trades Qualifying Board of Dade County, Florida. As to any other jurisdiction, the appropriate penalty is suspension of Respondent's license number ER 0006946 for a period of six months. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of December 1989. JANE C. HAYMAN 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 Administrative Hearings this 21st day of December 1989.
The Issue The issues in the case are whether the Respondent violated Subsections 455.227(1)(h) and 489.129(1)(a), Florida Statutes (2003), as alleged in the Petitioner's Administrative Complaint, and, if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency charged with the licensing and regulation of building contractors pursuant to Chapters 455 and 489, Florida Statutes (2004). Joshua Woodruff is a Florida Specialty Structure Contractor who holds license number SC C131149603. He owns a business called Simply Aluminum. His last known residence is in Winter Springs, Florida. On June 19, 2003, Mr. Woodruff submitted an application for the Specialty Structure Contractor license he now holds. On page 6 of the application form, question 1 under "BACKGROUND INFORMATION" asked the applicant whether he or she has ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere to a criminal charge. At the end of the question, in larger print, is the following statement: THIS QUESTION WILL BE CHECKED AGAINST LOCAL, STATE AND FEDERAL RECORDS. FAILURE TO ANSWER THIS QUESTION ACCURATELY MAY RESULT IN THE DENIAL OR REVOCATION OF YOUR LICENSE. IF YOU DO NOT FULLY UNDERSTAND THIS QUESTION, CONSULT WITH AN ATTORNEY OR CONTACT THE DEPARTMENT. Mr. Woodruff checked the "Yes" box for this question. The application form directed any person answering, "Yes," to complete form 0050-1. Form 0050-1 is included as page 14 of the license application. In the space on the form with the heading, "Offense," Mr. Woodruff wrote "Sale and Delivery." In the space with the heading, "Penalty/Disposition," Mr. Woodruff wrote, "2 months county jail, 6 months @ Bridge Program." On page 13 of the license application, question number 3 under "FINANCIAL RESPONSIBILITY/BACKGROUND QUESTIONS," asks the applicant whether he or she has ever: Undertaken construction contracts or work which resulted in liens, suits or judgments being filed? (If yes, you must attach a copy of the Notice of Lien and any payment agreement, satisfaction, Release of Lien or other proof of payment.) Mr. Woodruff answered this question, "No." The Department contends that Mr. Woodruff's responses on the license application form constituted misrepresentations because Mr. Woodruff failed to disclose that he had been adjudicated guilty in Orange County for possession of drug paraphernalia, and failed to disclose that he had filed a claim of lien on a construction project. Criminal History There is no dispute with regard to Mr. Woodruff's disclosure of the felony of "sale and delivery" (of a controlled substance) that he noted in his license application. Mr. Woodruff entered a plea of guilty to this offense on January 13, 2000, but adjudication of guilt was withheld. The official records of the Ninth Judicial Circuit Court for Orange County indicate that Mr. Woodruff was adjudicated guilty on July 25, 2002, of possession of paraphernalia, a first degree misdemeanor under Subsection 893.147(1), Florida Statutes (2002). The Respondent argues that his sentence on the conviction for possession of paraphernalia (two days in jail, fines and court costs of $371, 180 days probation) was not rendered until July 23, 2004, more than a year after he submitted his license application to the Department. However, the application form clearly requested Mr. Woodruff to describe whether he had ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere to a criminal charge. With regard to Mr. Woodruff's misdemeanor, all of these events occurred approximately one year before he submitted the license application. Claim of Lien On or about June 11, 2003, Mr. Woodruff filed a Claim of Lien against Itzhak and Ayala Stark for $5,600 for work commenced in March 2003.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board enter a final order: finding that Joshua Woodruff violated Subsection 455.227(1)(h), Florida Statutes (2003), by failing to disclose a misdemeanor conviction and a claim of lien on his license application, and imposing a fine against Mr. Woodruff of $4000, and suspending his license for 60 days. DONE AND ENTERED this 8th day of September, 2005, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 September, 2005. COPIES FURNISHED: Charles J. Pellegrini, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Jeffery T. Kipi, Esquire 100 West Citrus Street Altamonte Springs, Florida 32714 Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Tim Vaccaro, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Petitioner is the state agency charged, in conjunction with the Construction Industry Licensing Board, with the responsibility for prosecuting Administrative Complaints pursuant to chapters 455 and 489, and the rules promulgated thereunder. In September, 1983, license number CR C012950 was issued to Respondent, David A. Taylor, as the qualifying agent for Energywise Homes, Inc., 3305 S.W. 1st Court, Deerfield Beach, FL 33441. License number CR C01295p remained in effect until June 30, 1987. License number CR C012950 was delinquent and invalid from July, 1987, through May 10, 1988. In July, 1987, license number CR C012950 was placed on a delinquent status for non-renewal and considered invalid. On April 19, 1988, Respondent applied for renewal and reinstatement of license number CR C012950. Respondent's application for renewal and reinstatement was approved May 11, 1989. At that time, license number CR C012950 was changed from a qualifying business to an individual license. In April, 1988, Respondent applied to the City of Sebastian, Florida Construction Board (the "City") for an occupational license in order to obtain building permits for jobs he had contracted in that jurisdiction. License number CR C012950 was delinquent and invalid at the time Respondent applied to the City for an occupational license and permits. Respondent presented an altered license to Ms. Kathryn Nappi, the person responsible for issuing occupational licenses for the City in April, 1988, for the purpose of obtaining building permits from the City. The typeface on the license presented by Respondent to Ms. Nappi does not match either that used on the bottom portion of the same license or the copy of the licenses admitted as Respondent's Exhibit 1. Further, the date used on the altered license is not a date normally used by the Construction Industry Licensing Board. Finally, the license presented by Respondent to Ms. Nappi indicated the license was held by Respondent individually rather than as qualifying agent for Energywise Homes, Inc. The testimony of the witnesses for Petitioner was consistent and credible. The procedures followed by Ms. Nappi and her supervisor, Mr. Bruce Cooper, Director of Community Development and Building Official for the City of Sebastian, were customary procedures followed in the ordinary course of their business. Neither witness had any discernible motive for fabricating the events to which they testified. Respondent presented the altered license to Ms. Nappi sometime in April, 1988, for the purpose of obtaining building permits for the five homes to be constructed in the City. Ms. Nappi noticed that the type on the top of the license submitted by Respondent did not match the bottom portion. She brought the discrepancy to the attention of Mr. Cooper. Mr. Cooper confirmed with the Department of Professional Regulation that the license submitted to Ms. Nappi by Respondent had been altered. Mr. Cooper set up a meeting between himself, Respondent, and two detectives to ascertain Respondent's position concerning the altered license. Mr. Cooper did not believe Respondent's position and placed the matter on the agenda for the May 3, 1988, meeting of the Sebastian Construction Board (the "Board") 3/ Respondent and the owner of the five homes for which permits were being sought appeared at the May 3, 1988, meeting of the Board. The Board voted to approve the building permits subject to the issuance of a valid license by the Department of Professional Regulation. The owner requested issuance of the permits because delay was causing his investment to dwindle. The Board also considered the fact that the properties were becoming an eyesore in the City. The Board voted to approve the permits, subject to Respondent obtaining a valid license, and leave the issue of the altered license to the Department of Professional Regulation. Respondent's testimony that he did not present an altered license for the purpose of obtaining building permits from the City, and that he had never previously seen the altered license, is rejected as not credible. Such testimony is inconsistent with statements by Respondent to Mr. Cooper and at the May 3, 1988, meeting of the Board, which were admitted in evidence as exceptions to hearsay under Section 90.8C3(18). Respondent's testimony is also inconsistent with the greater weight of evidence. Financial pressures caused by previous delays in obtaining permits provided a motive for Respondent to present an altered license to obtain building permits for the five homes to be constructed in the City. Previous attempts by others to obtain building permits for five homes to be constructed in the City had been unsuccessful. Respondent made several further attempts to obtain building permits for the five homes to be constructed in the City. The delays in obtaining the permits had caused the investment of the owner of the homes to dwindle. Furthermore, the homes were becoming an eyesore for the City. Respondent committed an act of fraud, deceit, and misconduct in April, 1988, when Respondent intentionally presented an altered license to Ms. Nappi to obtain building permits for the five homes to be constructed in the City. No evidence has been presented to support a finding that Respondent altered the license presented to Ms. Nappi. However, Respondent knew or should have known that the license submitted by him had been altered, and Respondent submitted the altered license for the purpose of obtaining the needed building permits. Even without the requisite intent for fraud, deceit, and misconduct, Respondent is not exonerated. Inadvertently presenting an altered license to Ms. Nappi in April, 1988, at a time when Respondent knew his license was delinquent and invalid constitutes gross negligence and incompetence in the practice of contracting.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of fraud, deceit, gross negligence, incompetency, or misconduct in the practice of contracting in violation of Section 489.129(1)(m). Florida Administrative Code Rule 21E-17.001 provides in relevant part: "The following guidelines Shall be used in disciplinary cases, absent aggravating or mitigating circumstances and subject to the other provisions of this Chapter. (emphasis added) * * * (19) 489.129(1)(m): Gross negligence, incompetence, and/or misconduct, fraud or deceit. (a) Causing no monetary harm to licensee's customer, and no physical harm to any person. First violation, $250 to $750 fine; repeat violation, $1,000 to $1,500 fine and 3 to 9 month suspension. Florida Administrative Code Rule 21E-17.002, describes aggravating and mitigating circumstances which may be considered in determining the penalty to be imposed in a particular proceeding. Petitioner produced no evidence of any aggravating circumstances other than the alleged violations of Sections 489.113 and 489.115. There was no evidence of monetary or other damage to the licensee's customer, actual job site violations, repetitive offenses, the number of complaints filed against Respondent, or actual damage to the licensee's customer. See Fla. Admin. Code Rule 21E-17.002(1),(2),(s),(6), and (8). Considering the absence of any aggravating factors, the length of time Respondent has practiced contracting without any complaint, the de minimis danger to the public, and the fact that the Board approved the permits sought by Respondent because of the beneficial effect the permits would have on the owner and the City, it is recommended that Respondent be fined $250. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 26th day of February, 1990. DANIEL MANRY 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 26th day of February, 1990.
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
The Issue The issues in this case are whether Respondent, Richard Lindley, committed the offenses alleged in a four-count Administrative Complaint filed with Petitioner, the Department of Business and Professional Regulation, on March 20, 2008, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for, among other things, the licensure of individuals who wish to engage in contracting in the State of Florida; and the investigation and prosecution of complaints against individuals who have been so licensed. See Chs. 455 and 489, Fla. Stat. Respondent, Richard Lindley, is and has been at all times material hereto a certified building contractor in Florida, having been issued license number CB C060555. Mr. Lindley is also a Certified Roofing Contractor, having been issued license number CC C1326286. Both licenses were issued by the Construction Industry Licensing Board (hereinafter referred to as the “Board). At all times material, Mr. Lindley was the primary qualifying agent for HCL, Inc. (hereinafter referred to as “HCL”). HCL has a certificate of authority, QB number 20599. On or about June 8, 2005, Mr. Lindley, doing business as HCL, entered into a written contract (hereinafter referred to as the “Contract”) with Myra Love to re-roof her residence located at 765 Windermere Way, Palm Beach Gardens, Florida 33418 (hereinafter referred to as the “Subject Property”). Pursuant to the Contract, Ms. Love agreed to pay HCL a total of $8,125.00, as follows: $1,625.00 upon signing the Contract; $2,843.75 upon “roof dri in”; $2,843.75 upon “roof load”; and $812.50 upon “final inspection.” Consistent with the Contract, Ms. Love paid HCL $1,625.00 by check dated June 8, 2005, upon entering into the Contract. On June 9, 2005, Mr. Lindley applied for a building permit for the work to be performed pursuant to the Contract. The permit was issued, but expired for lack of final inspection. Ms. Love next paid HCL $2,843.75 by check dated October 20, 2005, upon being informed that the roof had been dried in. Despite having paid for the dry in of the roof, it continued to leak. After making the second payment to HCL in October 2005, no work was performed pursuant to the Contract and all efforts by Ms. Love to contact Mr. Lindley failed. On April 24, 2006, Ms. Love wrote to Mr. Lindley complaining about the condition of her roof and his lack of response to her telephone calls to him. This letter was delivered by certified mail, return receipt. Mr. Lindley did not respond to Ms. Love’s April 24, 2006, letter. No work was performed by Mr. Lindley through October 2006 on the Subject Property, at least a year after work on the Subject Property stopped. Therefore, Ms. Love sent a letter dated October 31, 2006, by certified mail, return receipt, to Mr. Lindley. Ms. Love stated in the letter that “since you abandoned the contract on 6/8/05, and failed to show up on the job, I consider the contract null and void because of your nonperformance. You and your employees are hereby notified to stay off my property.” On November 4, 2006, after informing Mr. Lindley that she considered the Contract null and void, Ms. Love contracted with Gold Coast Roofing to complete the re-roofing of the Subject Property. Ms. Love paid Gold Coast Roofing $14,900.00 for the completion of the re-roofing. Essentially, Gold Coast Roofing, due to the time that had expired since work was abandoned, had to essentially start over on the re-roofing of the Subject Property. The total investigative costs for this matter incurred by the Department, excluding costs associated with any attorney’s time, was $258.56.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered: Finding that Richard Lindley violated the provisions of Section 489.129(1)(j) and (m), Florida Statutes, as alleged in Counts II and IV of the Administrative Complaint; imposing a fine of $2,500.00 and placing Mr. Lindley’s licenses on probation for a period of four years conditioned upon his payment of the fines, restitution and the costs incurred by the Department, and any other conditions determined to be necessary by the Board, for the Count II violation; requiring that Mr. Lindley make restitution in the amount of $4,468.75 to Ms. Love; and requiring that Mr. Lindley pay the costs incurred by the Department in investigating and prosecuting this matter; and Dismissing Counts I and III of the Administrative Complaint. DONE AND ENTERED this 12th day of March, 2009, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 12th day of March, 2009. COPIES FURNISHED: Lisa A. Comingore, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Richard H. Lindley Richard H. Lindley, d/b/a HCL, Inc. 9146 Arrowhead Drive Greenacres, Florida 33467-1060 Kyle Christopher, Esquire Department of Business & Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether the Construction Industry Licensing Board should discipline the Respondent, Ysidro Cid Fernandez, on the basis of the charges alleged in the Administrative Complaint which the Petitioner, the Department of Professional Regulation, filed against him on November 30, 1987.
Findings Of Fact The Respondent, Ysidro Cid Fernandez, is licensed as a certified roofing contractor in the State of Florida, holding license number CC-C029602. The Respondent's license was in effect at all times referred to in these Findings of Fact. On or about March 15, 1986, an employee of Sunshine Solar and Roofing, a roofing company for which the Respondent acted as qualifying agent, entered into a contract with Fred Chambers to re-roof a house Chambers owned at 5871 64th Terrace North, Pinellas Park, Florida. The house was a small house, with not more than 1000 square feet of living area, and the contract was to re-roof the entire house for $600 plus tax ($31.50). The shingles to be used were to be 20-year shingles. The contract also provided: "Install on front F/S [far side] 8' long 5" wide T/G [tongue in groove] board." The Respondent's company did the work in April, 1986. Chambers paid the full amount of the contract, $200 down and the balance on or about May 1, 1986. Despite the re-roof, the roof still leaked where it did before the work was done. When Chambers called for warranty repair work, the Respondent refused until Chambers paid what the Respondent said was the cost of extra work the Respondent claimed Chambers had had the Respondent's workers do. The Respondent first came to the opinion that extra work had been done after he received invoices from his supplier indicating that his employees had ordered 1600 square feet of shingles for the job. The Respondent asserted that the contract called for only the front far side of the roof to be replaced. He bases this interpretation of the contract on the language quoted in the last sentence of Finding 2, above. The Respondent claimed that 1600 square feet was twice as much shingle as would be needed to re-roof half of the existing roof. Regardless whether the Respondent's employees ordered too much shingle for the Chambers job, or where the extra shingle might have gone, if not on the Chambers roof, the contract provided for the entire Chambers roof to be replaced for the contract price. The Respondent was not justified in demanding additional money before doing warranty work. The City of Pinellas Park, Florida, the governmental entity with jurisdiction over the Chambers job, required that a building permit be obtained before commencing the Chambers re-roofing construction. The City of Pinellas Park also required inspections of the Chambers re-roofing job. The Respondent claimed to have timely obtained a building permit for the Chambers job and, in testimony at final hearing, detailed an elaborate story about how he went about getting one. But the Respondent's own evidence, in the form of late-filed Respondent's Exhibit 2, establishes that he did not apply for the building permit until December 17, 1987, after receiving notice through the November 30, 1987, Administrative Complaint in this case, that the Department was charging him with failure to obtain a building permit for the job. Not having obtained a building permit, the Respondent did not call for the required inspections for the job. The evidence did not prove that the Respondent was grossly negligent or incompetent in estimating the cost of the Chambers job. First, the evidence did not prove that the job was seriously underestimated; to the contrary, the evidence tended to show that the Respondent's employees ordered more material than needed for the job. (When this came to the Respondent's attention, he unfairly blamed Chambers for having his employees do extra work not called for by the contract.) Second, the Respondent had nothing to do with the cost estimate on the job. The Respondent's price per square foot of roof area was fixed; he depended on his employees to accurately measure the size of the roof being priced. There is no evidence how the Respondent went about training his employees to measure a roof for purposes of a cost estimate. The Respondent has been disciplined by the Construction Industry Licensing Board once before. He received a reprimand in August, 1987, for failure to obtain a building permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Construction Industry Licensing Board enter a final order suspending the Respondent's license for one year and fining the Respondent $2,500. RECOMMENDED this 25th day of July, 1989, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 25th day of July, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0570 To comply with the requirements of Section 120.59(2), Florida Statutes (1987), the following rulings are made on the Petitioner's proposed findings of fact (the Respondent not having filed any): Rejected in part (the Respondent's name is not Thomas L. Jackson); otherwise, accepted and incorporated. Accepted and incorporated. Rejected in part; the evidence did not prove that the roof was unfinished or that the roof was done correctly or that the work was done incorrectly, only that it leaked after the work was done. 4.-6. Accepted and incorporated. Rejected as not proven by the evidence. (See 3., above.) Accepted and incorporated. COPIES FURNISHED: David Bryant, Esquire 13014 North Dale Mabry Suite 315 Tampa, Florida 33618 Ysidro Cid Fernandez 2700 North McDill Avenue Suite 204 Post Office Box 4726 Tampa, Florida 33607 Ysidro Cid Fernandez 8109 Rivershore Drive Tampa, Florida 33604 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Kenneth Easley, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729
