Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. The parties stipulated that Respondent, Donald Euske, is a registered general contractor and is the holder of license No. RG0012553, which license is current and active. On January 24, 1979, Respondent entered into a contract with Messr. Ekstrom for the construction of a "strip" shopping center (Center) for a price of $99,800.00. In this regard, evidence reveals that the parties entered no less than three (3) construction agreements for the subject Center. According to the terms of the Administrative Complaint filed herein, Respondent abandoned the above referred project on May 15, 1979, when it was approximately 70 percent complete after having received $81,000.00 or approximately 81 percent of the contracted price. Construction on the Ekstrom Center progressed at a normal rate and Respondent timely obtained all the necessary permits from the Broward County Building and Zoning Enforcement Section to commence construction. (Petitioner's Composite Exhibit No. 1 and testimony of witnesses Reffrett and Marchitello) Respondent and Messr. Ekstrom had had one other prior contractual relationship for the construction of a commercial building. That building was completed without incident. As stated, Respondent and Messr. Ekstrom entered at least three (3) agreements for the construction of the subject Center which is situated at 3671- 3687 Davie Boulevard, Fort Lauderdale, Florida. One agreement was entered into primarily for the purpose of obtaining construction and permanent financing; another agreement was entered for what was considered a "turn-key building" and another was entered into for construction of a "shell" without walls and air conditioning. Based on Messr. Ekstrom's prior relationship with Respondent, an acceptable draw schedule was entered and Messr. Ekstrom executed pre-signed draw releases for the construction monies. Additionally, the agreement was modified by the owner in several particulars including a substitution for tempered glass as opposed to plate glass since it would not comply with Code requirements. The substitution resulted in an upward price adjustment of approximately $900.00 and the parties disagreed as to who should bear the responsibility of that adjustment. Another item that surfaced as a dispute between the parties was a cost item of approximately $3,000.00 to $3,500.00 for fill dirt. The cost for fill was not specifically mentioned in either of the parties' construction agreements. Messr. Ekstrom refused to authorize payment for the fill, contending that it was an item which was necessarily included in the contracted price whereas Respondent contends that the cost of fill was purposely omitted from the agreement due to the varying soil conditions and varying costs dependent upon the degree of compaction required to bring the building site into Code compliance. Respondent left the construction site during May of 1979, after the Center was, according to the owner's estimate, approximately 70 percent complete. At that stage, Respondent had erected all exterior walls; completed the roof; roughed the electrical and plumbing systems; erected partition studs and all entrance and exit doors, including windows, were hung. After learning of his financial difficulties, Respondent approached his accountant who was commissioned to complete a cost analysis such that Respondent could review his expenses, compute his costs and attempt to complete the project and receive a reasonable margin of profit based on what was required to complete the Center. When the cost analysis was completed, Respondent, in fact, approached owner Ekstrom who refused to go along with the payment of any additional monies over and above that set forth in the contract which called for an agreed price of $99,800.00. When Respondent left the project, the owner was able to subcontract the work remaining for completion of the building using most of the mechanics previously retained by Respondent. Using the figures tendered by the owner, approximately $18,000.00 was needed to complete the Center when Respondent left. At that time, there remained in the construction draw account, approximately $19,800 for completion of the building. Thus, there existed in the construction draw account, more than sufficient funds to complete the project. The McGinnis Project On July 14, 1978, the Respondent entered into a contract with John McGinnis to construct a residence for a price of approximately $140,000.00. Messr. McGinnis was familiar with Respondent's reputation and workmanship and thus secured his services as a general contractor to build his residence. Numerous changes were made in the design of Messr. McGinnis' residence which delayed construction and increased Respondent's costs. Some of the changes included modifications to room dimensions, substitution of the exterior walls with cedar siding etc. When the McGinnis project was approximately 94 percent complete, Respondent again found himself in financial trouble and commissioned his accountant to prepare a cost analysis for the McGinnis residence. Based on that analysis, Respondent requested a profit of approximately $25,000 from Messr. McGinnis to complete the project. Messr. McGinnis refused and Respondent advised him that he felt he was entitled to a reasonable profit and could not complete the residence with the remaining funds available in the draw account. Messr. McGinnis utilized the services of the materialmen and subcontractors that were retained by Respondent to complete his residence. Owner McGinnis requested and obtained without difficulty a certificate of occupancy for his residence. The Respondent's Defense Respondent has been licensed by Petitioner since approximately 1972. Respondent, as a licensed contractor, has not been the subject of any prior charges or complaints by Petitioner. During October of 1978, through July of 1979, the subject projects were the only undertakings Respondent had contracted to complete. In bidding on both projects, Respondent projected that the time needed to complete both would be approximately 90 days. In excess of 150 days was needed to complete the projects, part of which was occasioned by changes and unforeseen construction developments which brought about delays in completing the projects. During this period, in addition to himself, Respondent's only other employee was a secretary. In preparing the bid for the two projects, Respondent factored into his bid a weekly salary of $500.00 per week. Respondent encountered a delay in the Ekstrom project at the outset when he was unable to persuade the owner to prepare the site for construction. When Respondent was unable to persuade the owner to defray the cost for preparing the site for construction, Respondent advanced the approximately $3,000.00 in costs associated therewith. Another problem Respondent encountered on the Ekstrom project centered around the placement of interior walls. This problem arose as a result of the owner's uncertainty as to whether or not he wanted to build what is referred to as "double' or "single" spaces which, of course, impacted on the number of interior walls that had to be built in the structure. This resulted in a cost increase of approximately $3,000.00 over and above the amount envisioned by Respondent when the contract was bid upon. Another problem Respondent encountered at the Ekstrom Center involved the removal of a sign by an adjacent land owner before the roof could be installed at the Center. The owner refused to have the sign removed and Respondent relented resulting in another unforeseen cost of approximately $500.00 over and above that envisioned when the contract was bid. Respondent approached both owners Ekstrom and McGinnis who refused to compromise when he presented the cost analyses prepared by his accountant. Respondent admitted that he bid on both projects without allowing for sufficient flexibility to offset cost overruns occasioned by unforeseen developments and/or inflationary trends. However, Respondent credibly testified that he used all of the draw proceeds from those projects exclusively on such projects and diverted no monies therefrom. As a matter of fact, evidence reveals that Respondent placed a second mortgage on his residence and used the mortgage money which was obtained from former Mayor and City Councilman of Hollandale, Edgar H. Galvin, who appeared and testified at this hearing. Messr. Galvin has known Respondent since approximately 1975, and has utilized his services as a contractor to build a "Taco Beaver" Restaurant in the Broward County area. Messr. Galvin has also retained Respondent to do sundry repairs for a country club and at several other small projects that he owned. Messr. Galvin is familiar with the construction business and has built numerous homes, restaurants, hotels, etc., in the Broward County area. Messr. Galvin credibly opined that fill dirt may well be an extra based on soil conditions, if not expressly mentioned in the construction bid and resulting agreements. Construction costs during the period in question in 1978, were approximately $35.00 per square foot. Using the $35.00 per square foot construction cost for these projects, both projects were under-bid by Respondent. Reverend Luther Anderson, the pastor of the First Lutheran Church in Fort Lauderdale, has known the Respondent for approximately ten (10) years. Respondent enjoys a good reputation for truth and veracity in the community and has completed several construction projects for the church and Rev. Anderson, without any problems respecting the quality of the work or the amount charged for his services.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Administrative Complaint filed herein be dismissed in its entirety. RECOMMENDED this 2nd day of February, 1981, in Tallahassee, Florida. JAMES E. BRADWELL, 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 day of February, 1981.
Findings Of Fact On December 3, 1979, the petitioner forwarded to the Division of Administrative Hearings a request for a formal hearing in the instant case. On January 7, 1980, the hearing was scheduled for February 28, 1980 in Bradenton, Florida. The Notice of Hearing which was mailed to the Respondent at the address furnished the Petitioner was returned undelivered with no forwarding address. Attempts to locate the Respondent proved unsuccessful until June 5, 1981, at which time an investigator from the Board located the Respondent working as a foreman on a construction site in Clearwater, Florida, and served him with a copy of the Notice of Hearing. On April 15, 1978, the Respondent entered into a contract with Mollie Cooper to construct a 12' x 31' room addition including a family room, bedroom and bath, onto an existing residence. The contract price was $11,340.00. An initial payment of $5,670.00 was made on April 17, 1978 by Ms. Cooper to the Respondent's construction company, Southern Cross. In the contract, the Respondent agreed to complete the working drawings for the addition and to obtain building permits. The Respondent obtained a building permit for the project from the City of Bradenton, Department of Planning and Development on May 17, 1978. The Respondent began working on the addition in May of 1978. On May 30, 1978 workmen poured the slab for the addition. When Ms. Cooper awoke on June 4, 1978, she discovered approximately four inches of water in her house which was caused by the slab being poured at the wrong angle. Later that day, a workman arrived at Ms. Cooper's home and removed the ends of the roof including fascia and guttering. Nothing further occurred until June 29, 1978 when the Respondent delivered concrete blocks to Ms. Cooper's home. Ms. Cooper never spoke to the Respondent after June 29, 1978, but her lawyer did contact the Respondent's attorney regarding problems which she was having with the Respondent's work. The job was never finished by the Respondent and Ms. Cooper was required to spend approximately $1,500.00 to repair her home. The Respondent holds active registered contractors license No. RR 0012951. The City of Bradenton has no local licensing board.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent's license as a registered residential contractor be revoked and an administrative fine of $500.00 be imposed. DONE and ORDERED this 21st day of September, 1981, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings 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 September, 1981. COPIES FURNISHED: Barry Sinoff, Esquire 2400 Independent Square One Independent Drive Jacksonville, Florida 32202
The Issue The issue is whether respondent's license as a certified building contractor should be disciplined for the reasons stated in the administrative complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Leroy A. Decker, Jr., held certified building contractor license number CB CO40724 issued by petitioner, Department of Professional Regulation, Construction Industry Licensing Board (Board). When the events herein occurred, respondent was doing business as Aladdin Homes, Inc. (Aladdin) located at 921 S.EA. 15th Avenue, Cape Coral, Florida, and was its registered qualifying agent. In 1987 respondent, acting as qualifying agent for Aladdin, began a business relationship with Designers Showcase of Cape Coral, Inc. (DSCC), a firm specializing in the sale and installation of furniture, carpeting and draperies. Under that relationship, DSCC acted as a subcontractor and installed various floor coverings in new homes constructed by respondent. Under a typical contract for the construction of a new home, the builder agrees to include within the sales price an allowance for floor coverings such as carpet. If a home buyer decides to purchase floor coverings that exceed the allowance, the buyer is responsible for any overage. Under this arrangement, the contractor normally pays the supplier for the amount of allowance prescribed in the contract while the buyer pays the supplier for any overage. From the outset of respondent's relationship with DSCC until it ended, the specifications in respondent's contracts, with certain exceptions, generally called for a floor covering allowance in the range of $1,500. Beginning in March 1988 several of respondent's new home customers became dissatisfied with the quality of floor furnishings provided by DSCC. Because of this, some buyers refused to pay respondent for the value of the floor furnishings provided by that subcontractor. This In turn engendered a dispute between respondent and DSCC and culminated in respondent, with a few exceptions, refusing to pay any moneys owed to DSCC after March 1988. In early 1988 respondent entered into a contract with one Joseph Cernlglia to construct a new home for Cerniglia in Cape Coral, Florida. Pursuant to the contract specifications, respondent gave Cerniglia a $1,500 allowance for floor coverings. Cerniglia opted to use DSCC as the carpet vendor and was well satisfied with the quality of DSCC's workmanship and materials. After the carpet was installed, respondent requested that Cerniglia sign an affidavit (letter of acceptance) so that respondent could receive his final draw from the bank. However, respondent did not advise Cerniglia that DSCC had not yet been paid for its services. Shortly thereafter, respondent signed an affidavit swearing that all suppliers on the Cerniglia project had been paid. Cerniglia later discovered that a $1,500 lien had been filed against his property by DSCC on June 30, 1988. The lien still remains outstanding. In early 1988 respondent entered into a contract to construct a new home for Buddy H. Dennis in Cape Coral, Florida. The contract specifications called for a $2,500 allowance for floor coverings. Before DSCC would install the floor coverings, it demanded payment from respondent for what it believed was the normal $1,500 builder's allowance. After this amount was paid, DSCC furnished, pursuant to the owner's request, $2,500 worth of labor and materials. DSCC attempted to collect the other $1,000 from Dennis but learned that the contract allowance was $2,500 rather than $1,500. Although DSCC invoiced respondent for the additional $1,000, and made numerous oral and written requests for payment to respondent, the remaining $1,000 was never paid. On September 12, 1988, a lien was placed on the property by DSCC. Prior to the lien being recorded, respondent executed a final affidavit and release of lien on August 22, 1988 in which he swore that all subcontractors had been paid. Dennis eventually paid the $1,000 himself in order to obtain clear title to his property. In addition to the Dennis and Cerniglia properties, respondent still owes DSCC $11,654.14 (without interest) for goods and services rendered on other projects. These bills were incurred for goods and services provided after March 1988, when the dispute between respondent and DSCC arose. Whether respondent executed affidavits in connection with those debts is not of record. Because of those and the two above debts, DSCC filed with the Board a complaint against respondent. Respondent justified his actions on the ground he was advised to do so by his attorney and not pay DSCC any money while his complaints regarding poor quality and workmanship were unresolved. As to the Cerniglia property, respondent contends that, just prior to completing the home, he determined that it was necessary to add (a) a stem wall and (b) extra fill dirt to raise the septic tank drainfield. According to respondent, these two items cost around $1,500. Because the dispute with DSCC was then ongoing, respondent did not pay DSCC the $1,500 owed as an allowance and instead, based upon his attorney's advice, decided to use that amount as leverage in his dispute with DSCC. However, respondent did not advise Cerniglia that $1,500 was added to the contract price and that it was Cerniglia's responsibility to pay DSCC for the builder's allowance still owed. Moreover, Cerniglia denied that the additions were ever satisfactorily completed or that their value equated to $1,500. As to the Dennis property, respondent contended, without corroboration, that the real estate office which sold the home increased the builder's allowance on the specifications from $1,500 to $2,500 without advising him. Even if this was true, respondent refused to pay the additional $1,000 after he learned of his increased allowance responsibility under the specifications.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsections 489.129(1)(1) and (m), Florida Statutes (1987) and that he be fined $3,000, to be paid within thirty days after the Board enters its final order. DONE and ENTERED this 20th day of August, 1990, in Tallahassee, Florida. DONALD R. ALEXANDER 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 20th day of August, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-1710 Petitioner: 1-3. Partially adopted in finding of fact 1. Partially adopted in findings of fact 2 and 3. Partially adopted in finding of fact 6. Partially adopted in finding of fact 5. Note - Where a proposed finding has been partially used, the remainder has been rejected as being irrelevant, unnecessary, subordinate, not supported by the evidence, or a conclusion of law. COPIES FURNISHED: Robert B. Jurand, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Mr. Leroy A. Decker, Jr. 618 S.W. 57th Street Cape Coral, FL 33914 Kenneth E. Easley, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Fred Seely Executive Director Post Office Box 2 Jacksonville, FL 32202
Findings Of Fact The Respondent, Sergio J. Alcorta (Alcorta), is licensed by the Department of Business and Professional Regulation (Department) as a professional engineer, license number PE 0014464. Alcorta is not licensed by the Department as a contractor. Alcorta has a company called mrf building systems, inc. Alcorta d/b/a mrf building systems, inc. is not listed in the records of the Contractors Section, Dade County Building and Zoning Department as a certified contractor doing or contracting for work in the building trades in Dade County. Hurricane Andrew, which hit the Miami area in August, 1992, damaged the home of Kenneth and Elizabeth Quinn. A friend of the Quinns referred them to Alcorta for assistance. By letter dated September 15, 1992, Alcorta outlined a discussion he had with the Quinns. The letter stated: Per our discussion, I will assist you in dealing with your insurance carrier and other construction workers to ensure that all hurricane damages are accounted for and the work is properly performed. I will prepare an initial damage evaluation report of all damages for the insurance adjuster and facilitate on your behalf the transfer of funds from your mortgage holder to you and to any pertinent party. My fees will be $150 for the initial evaluation and $500 at the end of construction work where you require my assistance. By letter dated September 16, 1992, Alcorta advised the Quinns of his findings concerning the damage to their residence. The engineer's report was prepared on the letterhead of Nu-Tech Engineering Services. Alcorta contacted a general contractor to see if the contractor could perform the work required to repair the Quinn's house. The contractor advised Alcorta that only a roofing permit would be required for the job and that because of the work he was already committed to do, he did not know when he could complete the repairs. Alcorta and Mr. Quinn signed a proposal on mrf building systems, inc. letterhead dated September 29, 1992. The proposal provided: We propose to furnish all materials, labor, tools, and equipment to repair the storm damaged dwelling at the above referenced location as follows: Roof recovering with shingles and ply- wood sheathing repairs $7,500. Structural repairs to concrete columns, stucco repairs as necessary $2,500 Enclosing terrace with new exterior walls and french doors $7,500 Retiling terrace room and pool area $2,000 Securing cabinets and other interior damage $1,000 Removal, installation of solar collector $500 New terrace central air conditioner $2,000 Exterior fencing $3,000 Total repair estimate $26,000 TERMS: One third down payment upon execution of the contract. Partial payments upon completion of work segments. Estimated time for completion of job: 21 days. On mrf building systems, inc.'s letterhead dated September 30, 1992, Alcorta provided Ms. Quinn with an estimate for interior painting, taking off the roof mounted solar collector and reinstalling it on the new roof, replacing roof insulation, structural epoxy repair, and replacing torn vent screens. Alcorta was paid approximately $14,650 by the Quinns on this project. Alcorta in turn paid for some of the materials and labor used on the project. The checks from the Quinns were made payable to Alcorta, not to mrf building systems, inc. By letter dated October 2, 1992, on mfr building systems, inc., letterhead, Alcorta forwarded a copy of the contract with the Quinns to the Quinn's mortgage company advising them that the Quinns had given him a down payment of $4,000 and listing the anticipated completion dates for the various tasks to be performed. Alcorta bought supplies and had laborers come to the site to perform work. There was no licensed contractor on the job. The only building permit pulled on the project was obtained by Elizabeth Quinn, the homeowner. The building permit did not carry the disclosure statement required by Section 489.103(7), Florida Statutes. Alcorta witnessed Ms. Quinn's signature on the application for building permit. Alcorta did not advise the Quinns that they were to act as contractors per Section 489.103(7), Florida Statutes. The Quinns did not supervise the construction on the project but relied on Alcorta to supervise the work. Alcorta was not an employee of the Quinns. The Quinns experienced problems with the roofing work performed pursuant to the contract with mrf building systems, inc. The roof leaked, requiring the Quinns to have the roof replaced at a cost of $10,000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Sergio J. Alcorta violated Section 489.127(1)(f), Florida Statutes (1992 Supp.), and assessing an administrative penalty of $3,000. DONE AND ENTERED this 20th day of November, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 1996. COPIES FURNISHED: Donna Bass, Senior Attorney Department of Business and Professional Regulation Division of Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 Mr. Sergio J. Alcorta Nisky Center, Mail Box 401 Charlotte Amalie St. Thomas, Virgin Islands 00802 Lynda Goodgame, Genral Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether respondent violated various provisions of Section 24(2) Chapter 75- 489, Laws of Florida, as more specifically alleged in the Administrative Complaint dated September 20, 1990.
Findings Of Fact At all times relevant hereto, James Rosati Jr., Respondent, was a certified residential building contractor and held license No. C-1135 from the PCCLB. He was the qualifying contractor for Pinnacle Home Improvements, Inc. Pinnacle Home Improvements, Inc. entered into a contract with Victoria Lawson to replace the aluminum roof on the back porch with a new roof, put an 8 foot divider wall in the back room, put soffit and facia around the overhang of the house, replace any bad wood found, replace a burglar bar with screen at front door, and replace a cracked beam and paint; all for a price of $4900. A building permit was obtained to install 150 linear feet of facia and soffit aluminum PLC coated on August 3, 1989 (Ex. 6) showing estimated cost of work of $1000. This permit did not cover replacing the roof or doing other roofing work for which Respondent was not licensed. When the work was completed Ms. Lawson paid the full contract price of $4900 to Pinnacle Builders. Shortly thereafter the roof began to leak and Lawson complained to Pinnacle who sent someone out to stop the leak by putting a coating of fiberglass over the plywood originally placed over the existing aluminum roof. When the roof continued to leak and satisfaction was not forthcoming from Pinnacle, Lawson requested a qualified roofer give her an estimate of the cost to replace the roof. Charles Dallier, a licensed roofer, inspected the roof and found that Pinnacle had nailed a sheet of painted plywood over the aluminum roof piercing the aluminum in the process. When Dallier returned a second time he found 90 pound roll roofing had been added to the roof. Dallier gave Lawson an estimated price of $850 to remove the aluminum roof and replace. The cost for a permit pulled for the work to be done is based upon the value of the work. Accordingly, the permit pulled that failed to include all of the work which Pinnacle had contracted to do cost Pinnacle considerably less than would have a permit showing the contract price of $4900. Respondent contends that he was always willing to replace the roof but the price quoted by Dallier was too high. Nevertheless, Pinnacle finally presented a check for $850 to do the roof properly but before the work started the check was dishonored by the bank for insufficient funds. Shortly thereafter, Pinnacle filed for bankruptcy.
