The Issue This is a license discipline proceeding in which the Petitioner seeks to have disciplinary action taken against the Respondent on the basis of alleged violations of various specified provisions of Section 489.129(1), Florida Statutes. The allegations are set forth in a seven count Administrative Complaint.
Findings Of Fact At all times pertinent to this proceeding, Respondent was a Certified General Contractor, having been issued license number CG C046419, by the Florida Construction Industry Licensing Board. At all times pertinent to this proceeding, Respondent was licensed in an individual capacity and thereby responsible for all his contracting activities. On June 6, 1993, Respondent, doing business as Universal General Contractors, entered into a construction contract with the Fagnanis for the remodeling of a bathroom in their residence located at 3440 Northeast 170th Street, North Miami Beach, Florida 33160. The contracted price was three thousand eight hundred dollars ($3,800,00). The Fagnanis paid at least two thousand seven hundred dollars ($2,700.00) to the Respondent as payment toward the contracted work. The written contract between the Respondent and the Fagnanis did not include the Respondent's contractor's license number. That written contract had printed on it the business name "Universal General Contractors." When they entered into the contract, the Fagnanis thought they were doing business with a company named "Universal General Contractors." At no time material hereto was Respondent registered with the Construction Industry Licensing Board as the licensed qualifier for Universal General Contractors. Construction commenced on or about August 20, 1993. Respondent failed to obtain a building permit or inspections for the Fagnani project. Shortly after commencing the project, Respondent informed the Fagnanis he had to go to Boca Raton for an estimate, but would return to finish the project. Respondent failed to return to finish the Fagnani project. Respondent abandoned the Fagnani's project without just cause or notification to the Fagnanis. Respondent did not respond to any attempts by the Fagnanis to contact him concerning the completion of their project. At the time Respondent abandoned the project the work was not complete. At the time of abandonment, the percentage of work completed was substantially less than the percentage of the contract price paid by the Fagnanis. On December 28, 1993, as a result of Respondent's failure to complete the project, the Fagnanis filed a civil suit against Respondent in Case Number 93-16225 SP23(03), County Court in and for Dade County, Civil Division. On January 11, 1994, Respondent was properly served with notice of the civil suit. On January 27, 1994, a Default Final Judgment was entered against Respondent in favor of the Fagnanis. The Default Final Judgment entered against Respondent in the case was in the principal amount of two thousand five hundred dollars ($2,500.00) and costs of one hundred nine dollars ($109.00) for a total amount of two thousand six hundred nine dollars ($2,609.00), and bore interest at the rate of 12 percent per year. The Default Final Judgment is related to Respondent's practice of contracting. To date, Respondent has failed to satisfy the terms of the Default Final Judgment. Respondent failed to satisfy the terms of the Default Final Judgment within a reasonable time. Respondent's incompetence and misconduct in overseeing the contracting and financial activities of his construction practice has resulted in a two thousand six hundred nine dollar ($2,609.,00) loss to the Fagnanis. The Respondent has been the subject of prior disciplinary action by the Construction Industry Licensing Board. In two prior cases (DBPR Case Nos. 93-12155 and 94-04871) the Board has issued final orders finding the Respondent guilty of several provisions of the statutes regulating contractors. Several of the prior violations are of the same type as the violations at issue in this case.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case to the following effect: Adopting the foregoing findings of fact and conclusions of law and concluding that the Respondent is guilty of the violations alleged in all seven counts of the Administrative Complaint; Revoking the Respondent's license; Ordering the Respondent to pay administrative fines in the total amount of twenty-five thousand dollars ($25,000.00); Ordering the Respondent to pay restitution to Mr. and Mrs. Fagnani in the amount of two thousand six hundred nine dollars ($2,609.00); and Ordering the Respondent to pay the costs incurred in the investigation and prosecution of this proceeding in an amount to be determined by the Construction Industry Licensing Board. DONE AND ENTERED this 22nd day of April, 1997, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1997.
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
The Issue At issue is whether Respondent committed the offenses set forth in the Administrative Complaints and, if so, what penalty should be imposed.
Findings Of Fact The parties Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Department), is a state agency charged with the duty and responsibility for regulating the practice of contracting pursuant to Section 20.165, Florida Statues, and Chapters 455 and 489, Florida Statutes. Respondent, Richard M. Golfman, was, at all times material hereto, licensed by the Department as a certified general contractor, having been issued license number CG C032860, and authorized to engage in the practice of general contracting as an individual.1 The Feinstein project (DOAH Case No. 00-0599) On or about October 30, 1998, Respondent entered into a written contract with Norman and Sheila Feinstein to furnish the materials and perform the labor necessary to enclose and remodel the screened patio, and to build a rock garden, at their home located at 5468 Northwest 20th Avenue, Boca Raton, Florida, for the sum of $5,000. At the time, the Feinsteins paid Respondent $1,500 as the initial payment (deposit) under the terms of the contract. The contract Respondent presented and the Feinsteins executed on October 30, 1998, did not include Respondent's license number, nor did it contain a statement concerning consumers' rights under the Construction Industries Recovery Fund. Following execution of the contract, Respondent made repeated promises to construct the rock garden; however, it was not until November 10, 1998, that Respondent appeared on-site and constructed the rock garden, albeit not to the Feinsteins' satisfaction. Subsequently, Respondent had some high-hat electrical fixture cans and a bundle of furring strips delivered to the home for the patio project but, thereafter, despite repeated requests, refused to perform any work on the project or refund any money to the Feinsteins. The value of the labor and materials Respondent invested in the rock garden, as well as the cost of the building materials (the high-hat fixtures and furring strips) delivered to the job-site, was $250, a sum considerably less than the $1,500 the Feinsteins had entrusted to Respondent under the terms of their agreement. The Burres/Berger project (DOAH Case No. 00-0600) On or about November 23, 1998, Respondent submitted a written proposal to Tanya Burres to furnish the materials and perform the labor necessary to replace the existing roof on her home located at 7270 Montrico Drive, Boca Raton, Florida, for the sum of $22,125. The proposal was a one-page preprinted form. In the upper left there appeared, printed immediately following Respondent's handwritten name, the following: THE GOLFMAN GROUP, INC. P.O. Box 811926 Boca Raton, Florida 33431 The proposal did not include Respondent's license number, nor did it contain a statement concerning consumers' rights under the Construction Industries Recovery Fund. At the time the proposal was submitted, Tanya Burres was under contract to sell the home to Drs. Glenn Berger and Michelle Fiorillo, husband and wife (the Bergers), and Ms. Burres had agreed to split with the Bergers the cost of a new roof for the home. At the time, Ms. Burres had suggested the Respondent as a contractor to perform the work (because he had previously done satisfactory work for Ms. Burres); however, it was understood that the employment of any contractor was subject to the Bergers' approval. That the Bergers' agreement was required before any such employment would be accepted was clearly conveyed to Respondent. On November 23, 1998, Tanya Burres signed the proposal and gave Respondent a check payable to his order in the sum of $1,106.25, representing her half of the ten percent deposit called for by the proposal. The Bergers, however, declined to accept the proposal, and refused Respondent's request for the balance of the deposit. Rather, the Bergers, having received adverse information from the Department regarding Respondent's record, preferred to employ a different contractor, and Ms. Burres accorded the Bergers a monetary credit at closing (on the purchase of the home) for one-half the cost to re-roof the home. When the Bergers informed Ms. Burres (shortly after she signed the proposal on November 23, 1998) that they would not agree to use Respondent, Ms. Burres attempted to stop payment on her check; however, the check had already been cashed. Thereafter, Ms. Burres attempted on numerous occasions to contact Respondent by telephone and by his pager, but Respondent failed to return any of her calls or messages. To date, Respondent has failed to account for or return Ms. Burres' deposit of $1,106.25. The costs of investigation and prosecution As of February 25, 2000, the Department's costs of investigation and prosecution, excluding costs associated with any attorney's time, totaled $234.85 for DOAH Case No. 00-0599 (the Feinstein project) and $195.65 for DOAH Case No. 00-0600 (the Burres/Berger project.) Previous disciplinary action At hearing, the Department offered proof that, on two prior occasions, Respondent had been subjected to disciplinary action by the Construction Industry Licensing Board (the Board). (Petitioner's Exhibit 2.) The first occasion is reflected in the terms of a Final Order of the Board, dated August 4, 1987, which found Respondent guilty of the violations alleged in the Administrative Complaint (which were not revealed at hearing beyond what may be inferred from the terms of the Final Order), and resolved that Respondent suffer the following penalty: Respondent's licensure is hereby suspended for ten (10) years. Provided, Respondent may obtain termination of said suspension at anytime, without further action by the Board, upon providing the Board's Executive Director with a certified bank check in an amount sufficient to cover and pay a fine of five hundred dollars ($500), and the bad check alleged in the Administrative Complaint, and all service charges in connection therewith, and all other fees accruing as of the date Respondent seeks said termination of supervision. The second occasion Respondent was subjected to disciplinary action is reflected in the terms of a Final Order of the Board, dated July 18, 1997, which approved a stipulated settlement of certain complaints then pending before the Board. That Final Order approved the dismissal of a number of counts contained in five Administrative Complaints then pending before the Board and, as to the remaining counts, agreed (without Respondent admitting or denying the allegations of fact contained in the Administrative Complaints) to the following penalty: 3. FINE AND COSTS: Respondent shall pay a fine of Nine Hundred dollars ($900.00) and costs of Eight Hundred fifty One dollars ($851) to the Board within thirty (30) days of the filing of the Final Order. Said payment shall be in the form of a cashier's or certified check and shall be made payable to the "Construction Industry Licensing Board." To assure payment of the fine and costs, it is further ordered that all of Respondent's licensure to practice contracting shall be suspended with the imposition of the suspension being stayed for thirty (30) days. If the ordered fine and costs are paid in compliance with the terms set forth above, the suspension imposed shall not take effect. However, should payment not be timely made, the stay shall be lifted and Respondent's license shall be immediately suspended. Upon payment of the fine and costs in full, the suspension imposed shall be lifted. Respondent apparently satisfied the fines and costs imposed by the foregoing orders. (Petitioner's Exhibit 2.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered adopting the foregoing findings of fact and conclusions of law, and which, as a penalty for the violations found, imposes an administrative fine in the total sum of $13,500.00, revokes Respondent's licensure, orders that Respondent pay restitution to Norman and Sheila Feinstein in the sum of $1,250.00 and to Tanya Burres in the sum of $1,106.25, and assesses costs of investigation and prosecution (through February 25, 2000) in the total sum of $430.50 against Respondent. DONE AND ENTERED this 22nd day of June, 2000, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 22nd day of June, 2000.
Recommendation Based on the above findings and conclusions of law, I recommend that the Respondent Licensee's certification be suspended for one year. DONE and ORDERED this 22nd day of December, 1976, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 Robert L. Saylor, Esquire Suite 222, Squires Building 721 U.S. Highway One North Palm Beach, Florida 33408 ================================================================= AGENCY FINAL ORDER ================================================================= July 15, 1977 Mr. Karl A. Kandell Suite 160, 380 Interstate North Atlanta, Georgia 30339 Dear Mr. Kandell: At a formal hearing held in West Palm Beach, Florida on November 3, 1976, by the Division of Administrative Hearings, it was found that you had been adjudged bankrupt, which under F.S. 468.112(7) the Florida Construction Industry Licensing Board may consider as just cause for suspension of a certification, the filing of a petition of Bankruptcy. The Hearing Officer recommended suspension for one year. On July 8, 1977, the Florida Construction Industry Licensing Board's monthly meeting, after reviewing evidence of your financial responsibility, it was voted to dismiss you case; therefore your license remains in full force and effect. Sincerely, THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD JKL:ed cc: Barry Sinoff, Esquire 1010 Blackstone Building J. K. Linnan Executive Director Jacksonville, Florida 32202 Robert L. Saylor, Esquire Suite 222, Squires Building 721 U.S. Highway One North Palm Beach, Florida 33408
The Issue Whether Respondent, Ronald Mustari, violated Section 489.129(1)(r), Florida Statutes, as alleged in the Administrative Complaint and, if so, what disciplinary action should be taken against Respondent's license to practice contracting.
Findings Of Fact At all times pertinent to this proceeding, Respondent, Ronald Mustari, was a certified residential contractor, having been issued license number CR C036684 by the Florida Construction Industry Licensing Board in 1986. On or about April 29, 1991, Respondent was licensed as the qualifying agent for Whitehall Development Corporation (Whitehall Development), and served in this capacity at all times material to this proceeding. As the qualifying agent, Respondent was responsible for all of the contracting activities of Whitehall Development. Furthermore, at all times pertinent hereto, Respondent was president of Whitehall Development. On or about October 9, 1989, Whitehall Development entered into a subcontract agreement with Anchor Air Conditioning, Inc. (Anchor Air Conditioning), whereby Anchor Air Conditioning would provide services for Whitehall Development. Subsequently, a dispute arose between Anchor Air Conditioning and Whitehall Development regarding the subcontract agreement. As a result thereof, in 1993, Anchor Air Conditioning filed a civil complaint against Whitehall Development in the Manatee County Circuit Court, Case No. CA-93-4210. The complaint alleged that Whitehall Development owed money to Anchor Air Conditioning pursuant to the terms of the subcontract agreement. Whitehall Development contested liability and responded by filing counterclaims against Anchor Air Conditioning. After contesting the issue of liability for more than two years and incurring more than $20,000 in attorney fees, Respondent concluded that continuing to litigate this matter was not a viable option given Whitehall Development's insolvency at that time. Furthermore, Respondent determined that it would be futile for Whitehall Development to pursue its counterclaims in the civil matter because Anchor Air Conditioning was insolvent. On May 9, 1996, the Circuit Court for the Twelfth Judicial Circuit in and for Manatee County, Florida, entered a Final Judgment in Case Number CA-93-4210, in favor of Anchor Air Conditioning against Whitehall Development in the amount of $18,118. The Final Judgment was the result of a negotiated, stipulated Settlement Agreement entered into between Whitehall Development and Anchor Air Conditioning. Currently, Whitehall Development has no funds or assets and is no longer doing business. In 1992, and prior to Anchor Air Conditioning's filing the complaint against Whitehall Development, the Internal Revenue Service placed a lien on all property and rights to property owed to Anchor Air Conditioning. The lien was to cover outstanding assessments owed by Anchor Air Conditioning to the Department of Treasury-Internal Revenue Service for the tax periods ending December 31, 1988; December 31, 1989; and June 30, 1990. In September or October 1992, Whitehall Development received a copy of Notice of Levy dated September 25, 1992. According to the Notice of Levy, Whitehall Development was required to pay any money it owed to Anchor Air Conditioning to the Internal Revenue Service. As of June 13, 1997, this Notice of Levy remained in effect. As of the date of the final hearing in this matter, Whitehall Development has not satisfied the Final Judgment in Case No. CA-93-4210. Whitehall Development has failed to pay the funds due and owing to Anchor Air Conditioning pursuant to the Final Judgment to the Internal Revenue Service.
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 Respondent violated Section 489.129(1)(r), Florida Statutes; imposing a fine of $1,000; placing his license to practice contracting on probation, under such terms and conditions as prescribed by the Construction Industry Licensing Board; and assessing the costs associated with the investigation and prosecution of this case. DONE AND ENTERED this 13th day of August, 1997, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1997. COPIES FURNISHED: Paul F. Kirsch, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Robert E. Messick, Esquire Icard, Merrill, Cullis, Timm, Furen and Ginsburg, P.A. 2033 Main Street, Suite 600 Sarasota, Florida 34237 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Rodney Hurst, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467
The Issue Whether Respondent violated section 489.129(1)(j), Florida Statutes (2005),1 by abandoning a construction project, and, if so, the appropriate discipline; and Whether Respondent violated section 489.129(1)(i) by virtue of her violation of section 489.127(1)(f), which prohibits engaging in the business or acting in the capacity of a contractor without being licensed, and, if so, the appropriate discipline.
Findings Of Fact Based on the evidence, the following facts were made: Ms. Curbelo is a certified building contractor, doing business as A+ Construction & Management, Inc. The Florida Construction Industry Licensing Board issued Ms. Curbelo License No. CBC 1255321 on March 12, 2007. She is currently licensed as the qualifying agent of A+ Construction & Management, Inc., and she was issued qualified business organization certificate of authority License No. QB53665. Before March 12, 2007, Ms. Curbelo was not licensed pursuant to chapter 489, Part I, to practice construction contracting. In December 2005, Ms. Curbelo purchased A+ Construction & Remodeling, Inc., and became its sole corporate officer. She renamed the entity A+ Construction & Management, Inc. (A+ Construction). Before March 12, 2007, A+ Construction was not duly licensed pursuant to chapter 489, Part I. Further, its predecessor, A+ Construction & Remodeling, Inc., was never duly licensed pursuant to chapter 489, Part I. On January 25, 2006, Mr. Torres was provided a proposal from Ms. Curbelo, doing business as A+ Construction & Remodeling, Inc. The proposal was to remodel, renovate, and repair Mr. Torres' home located at 1031 Hunting Lodge Drive, Miami Springs, Florida 33166. On January 27, 2006, Mr. Torres accepted the proposal, and it formed the agreement between Ms. Curbelo and Mr. Torres. Mr. Torres made an initial payment of $24,900.00 to A+ Construction on February 6, 2006, which was due under the contract upon acceptance. The agreed contract price for the work was $166,000.00. The contract contained a description of the work to be completed and a draw schedule that provided for payment as the work progressed. Mr. Torres made payments to A+ Construction for the time period of February 8, 2006, through April 10, 2007. The payments totaled $157,700.00 and corresponded with a majority of the work contracted to be completed under the contract. The only draw that Mr. Torres did not pay was in the amount of $8,300.00 that was due "upon completion" of the work. Mr. Torres credibly testified that he paid A+ Construction for work that had not been completed in order to move the job along to completion. Furthermore, Mr. Torres credibly testified that when he would question Mr. Luis Curbelo, the job-site foreman, about the status of the work, Mr. Curbelo would threaten to walk off the job. Mr. Torres identified a check, Petitioner's Exhibit 6, that he made payable to First Call Roofing dated August 23, 2007, in the amount of $5,000.00. Mr. Torres explained that he paid First Call Roofing because he was desperate to get his leaking roof repaired. Mr. Torres paid this amount even though he had previously paid A+ Construction for repairs to the roof as part of the contract. The evidence also showed that during the work, Mr. Torres requested change orders which were not part of the original contract. Although these change orders increased the costs above the original contract, it was not disputed that Mr. Torres fully paid A+ Construction for all of the work outside of the contract. Sometime in late August 2007, A+ Construction stopped work on the job and failed to return. Mr. Torres credibly testified that he had an estimate from another contractor that the construction job was left approximately 40 percent completed and that it would cost an estimated amount of $108,000.00 to complete the job. The Department, however, did not introduce any non-hearsay evidence to support the estimate to complete the work or the costs to complete the construction. After A+ Construction stopped work on the job, Mr. Torres testified that he called in a series of inspections and that his home had passed the inspections. He stated that a majority of the inspections had been called in by him. Ms. Curbelo and Mr. Luis Curbelo offered the following three explanations for why A+ Construction stopped work on Mr. Torres' house: first, Mr. Torres failed to approve a payment draw concerning installation of windows; second, Mr. Torres' construction job included work for which Mr. Torres had not paid; and finally, Mr. Torres attempted to undercut A+ Construction by directly dealing with its subcontractors. None of these offered reasons is supported by the evidence. The record clearly showed that Mr. Torres made all of the payments required under the contract, except the final draw of $8,300.00, which was due on completion of the job. Consequently, under the contract, Mr. Torres had fully paid, including amounts for windows, all amounts that were owed under the contract when A+ Construction abandoned the job. The final draw was not due until completion, and A+ Construction had not completed the job. Next, the record clearly shows that Mr. Torres paid for all change orders. Therefore, the record does not support Ms. Curbelo's claim that A+ Construction stopped work because of non-payment. Finally, the record clearly showed that Mr. Torres contracted with the roofing subcontractor to do work that A+ Construction had been paid to do, but had not done. Thus, the evidence did not support the contention that A+ Construction had stopped work because Mr. Torres attempted to undercut them by dealing with the subcontractors. The record clearly shows that Ms. Curbelo, doing business as A+ Construction, abandoned the construction job. Next, the record does not support the claim that the building inspections showed that 85 percent of the remodeling had been completed on the job and that work stopped because of Mr. Torres' non-payment. Considering that Ms. Curbelo stopped work in August 2007, a review of the building inspections shows that many of the inspections occurred after she abandoned the job. None of the inspections shows the percentage of work completed by A+ Construction. Finally, the record does not support Ms. Curbelo's testimony that Mr. Torres was aware that at the time of entering into the contract that she did not have a contractor's license and that the job was under the supervision of Joe Anon (Mr. Anon). Ms. Curbelo testified that Mr. Torres was aware the Mr. Anon would be the general contractor, as his name was on the January 25, 2006, contract. Interestingly, the document that Ms. Curbelo relies upon for her testimony is a proposal dated January 25, 2006, from A+ Construction & Management, Inc. This document is nearly identical to the 11-page proposal from the A+ Construction & Remodeling, Inc., to Mr. Torres on the same date for the repairs to the home. However, two important differences are found on the faces of the two exhibits. On Respondent's Exhibit 2, under the logo of "A+ Construction" are the terms "& Management, Inc. For Joe Anon, GC." In contrast, Petitioner's Exhibit 3 shows the logo of "A+ Construction & Remodeling" with no reference to the later company or Mr. Anon's name. Both of these exhibits purport to be from the same proposal given to Mr. Torres on the same day. Yet, out of the composite exhibit of 12 pages, only Ms. Curbelo's offered document contains Ms. Curbelo's subsequent company's name or reference to Mr. Anon. Moreover, unlike the Department's exhibit, the exhibit offered by Ms. Curbelo is unsigned by Mr. Torres. Consequently, the document offered by Ms. Curbelo is untrustworthy. Thus, the undersigned rejects as unbelievable Ms. Curbelo's claims that Mr. Torres knew that she was not a licensed general contractor and that the construction project was being overseen by a licensed contractor. Mr. Torres credibly testified in rebuttal that he did not meet Mr. Anon until after Ms. Curbelo abandoned the job. Further, Mr. Torres credibly testified that his "biggest mistake was paying ahead" to get work completed. The Department's total investigative costs of this case, excluding attorney's fees, is $414.57. The evidence showed that Ms. Curbelo does not have any prior disciplinary actions against her license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued by Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board: Finding Respondent, Chandra Beth Curbelo, guilty of having violated section 489.129(1)(j), Count I of the Administrative Complaint, imposing as a penalty a fine of $7,500.00, and placing Ms. Curbelo's license on probation for a period of four years; Finding Ms. Curbelo guilty of having violated sections 489.127(1)(f) and 489.129(1)(i), as set out in Count II of the Administrative Complaint, imposing a fine of $7,500.00, and placing her license on probation for a period of four years; and Requiring Ms. Curbelo to pay the Department's costs of investigation and prosecution in the amount of $414.57. DONE AND ENTERED this 5th day of January, 2011, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 2011.
