Findings Of Fact The Respondent is a registered building contractor having been issued license No. RB0032203. At all times material to this proceeding, he was the president and qualifying officer of RBR Construction Corporation. The Petitioner is an agency of the State of Florida charged with the licensing, regulation of licensure status and appropriate practice standards as pertinent hereto of construction contractors in the State of Florida. On April 11, 1979, the Respondent, doing business as RBR Construction Corporation, entered into a contract with Kathleen R. and George K. Beebe, pursuant to which he was to construct a duplex for the Beebes for a net contracted amount of $47,500. The Respondent engaged in the construction of the duplex until it was approximately 86 percent complete and then ceased all work on the project. At the time the Respondent ceased work on it, he had already received $44,290 of the contracted price. During the course of the construction, at various times, the Respondent requested and received payments or draws from the First Federal Savings and Loan Association of Broward County in the following amounts for the following purposes: Approximately $1,500 for electrical work; Approximately $1,744.32 for mill- work (cabinetry, door trim, etc.); Approximately $1,331 for installation of insulation in the duplex. The Respondent was established to have failed to pay these sums to the appropriate subcontractors who did the work. On or about March 7, 1980, the Respondent signed an affidavit required to obtain a draw payment from First Federal of Broward County. The Respondent stated in the affidavit that the millwork and trim for the duplex had been paid or would be paid from the proceeds of that draw request, which was $5,150. At the time he signed that affidavit, however, the millwork and trim had not been (as yet) paid, and they remained unpaid through the date of the hearing in the amount of $1,744.32. On or about February 13, 1980, the Respondent executed a similar affidavit in conjunction with a request for a draw payment from First Federal for the stated purpose of paying for insulation installed in the duplex. That draw amounted to $13,905. At the time he signed that affidavit, the insulation had not been paid for and remained unpaid through the date of the hearing in the amount of $1,331. On January 21, 1980, the Respondent executed a similar affidavit supporting a request for a draw payment from First Federal of Broward. In that affidavit, the Respondent affirmed that the electrical work provided for in the construction plans for the duplex had been paid for or would be paid from the proceeds of that draw request, which was in a total amount of $2,060. At the time the Respondent signed the affidavit, however, the electrical work had not yet been paid for, and it remained unpaid through the date of the hearing to the extent of $1,500.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED: That the Respondent be found guilty of violating the statutory authorities cited hereinabove in that he abandoned the subject construction project, diverted funds received for the construction of the project with the result that he could not fulfill his obligations with regard to the project, that he signed three separate false statements with respect to the construction of the project, and is guilty of misconduct in the practice of contracting. For these violations, his license should be suspended for a period of one (1) year. DONE and ENTERED this 20th day of January, 1983, in Tallahassee, Florida. P. MICHAEL RUFF, 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 20th day of January, 1983. COPIES FURNISHED: John O. Williams, Esquire 547 North Monroe Street Suite 204 Tallahassee, Florida 32301 A. J. Ryan, Jr., Esquire A. J. Ryan, III, Esquire Hollywood Federal Bldg. 700 East Dania Beach Blvd. Dania, Florida 33004 James Linnan, Executive Director Construction Industry Licensing Board Dept. of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202 Samuel R. Shorstein, Secretary Dept. of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, DPR Case No. 0011535 DOAH Case No. 82-446 vs. JAMES J. RUSSO R-B-R Construction Corp. RB 0032203 1412 Washington Street Hollywood, Florida 33020 Respondent. /
Findings Of Fact Respondent is a licensed general contractor in Florida, and was the qualifying contractor for Hallmark Builders, Inc. at all times relevant to this proceeding. In November, 1982, Hallmark Builders contracted with Mr. and Mrs. Carl Mayer to, construct a residence in Melbourne Florida. Mr. Mayer, who is not an architect or builder, prepared his own plans. Since there was no third party lender, Mayer determined when Respondent would be paid according to the draw schedule. There were numerous difficulties presented to Respondent in his efforts to construct this residence. Mayer was uncooperative and often difficult to locate since he was a part- time resident of Florida, moved frequently, and had no telephone. The principal disagreement concerned the roof design, which Respondent contends was improper. Mayer initially refused to agree to modifications suggested by Respondent and would not retain an architect to clarify his intended design. Other disagreements led to Mayer's withholding of scheduled draw payments. Mayer refused to pay the first draw on completion of the foundation, even though it had been approved by the Melbourne Building Department. By August, 1983 Respondent's firm had completed work to the approximate point of the third draw, but had still received no draw payments. By this time Mayer had retained an attorney, and several unproductive meetings had been held regarding difficulties in completing the project. Mayer subsequently contacted the Melbourne Building Department to complain that the roof was being constructed according to plans not filed with the Building Department. This complaint was verified and a stop work order was placed on the project on August 10, 1983. The evidence adduced at the hearing established that Respondent had changed Mayer's roof design to one he believed was correct, but had failed to obtain Mayer's approval or file the change with the Building Department. The change made by Respondent was, according to his testimony, necessary to correct Mayer's design deficiency. Mayer's testimony to the contrary is rejected. Mayer refused to retain an architect as suggested by Respondent, and demonstrated no expertise in building design. Respondent's testimony on this point is, therefore, accepted. Further efforts to resolve disputes were unsuccessful. On February 1, 1984, Hallmark Builders, Inc. filed a claim of lien on the Mayer property for $28,559. Mayer counter-claimed, and the suits were ultimately settled through payment of $21,000 by Mayer to Hallmark Builders, Inc. The second matter at issue in these proceedings involved a contract between a Mr. and Mrs. Morgan and Hallmark Builders, Inc. Respondent was not involved in this transaction which was cancelled prior to the start of construction. Mr. and Mrs. Morgan made a $1,000 deposit on their contract but, in the view of Hallmark Builders, Inc., did not make a good faith effort to secure a mortgage loan. Hallmark therefore sued to retain the $1,000 deposit. The dispute was settled through negotiations whereby Hallmark received $500 of the $1,000 deposit. There was no showing of impropriety in this transaction by either Hallmark Builders, Inc. or Respondent.
Recommendation From the foregoing, it is RECOMMENDED that Petitioner enter a Final Order dismissing the Administrative Complaint. DONE and ENTERED this 13th day of June, 1985 in Tallahassee, Florida. R. T. CARPENTER 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 13th day of June, 1985. COPIES FURNISHED: H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 David H. Simmons, Esquire and T. Kevin Knight, Esquire DRAGE, DeBEAUBIEN, MILBRATH and SIMMONS Post Office Box 87 Orlando, Florida 32802 James Linnan, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact The Respondent, Paul K. Scapecchi, is a registered general contractor in the State of Florida, holding license number RG 0015926, and a registered roofing contractor, holding license number RC 0031048. The Respondent is the qualifier for Paul's Construction Company, which is the Respondent's firm. Edwin Schmid is a resident of West Germany who vacations in North Florida, and who testified by deposition which was received in evidence as Exhibit 1. He owns six parcels of real estate, or lots adjacent to each other, including Lot 19, Bon Bay Estates, in Santa Rosa County, Florida, which he purchased in approximately February, 1980. Edwin Schmid intended to have a home constructed on Lot 19 to be used as rental property. Subsequently, Edwin Schmid was introduced to the Respondent and the Respondent's father, Walter Scapecchi, by Lee and Carolyn Swigger. The Swiggers had become friendly with Edwin Schmid because Carolyn Swigger speaks German. Thereafter, Edwin Schmid contracted with the Respondent and Walter Scapecchi to have his home built on Lot 19 in Bon Bay Estates. This contract was in written form and dated March 21, 1981. Although Walter Scapecchi signed this contract "doing business as Paul's Construction Company," as contractor, the Respondent admitted that the contract was with himself, and that his father was merely an employee of the firm. The initial contract with Edwin Schmid in which the price was set at $36,000 was participated in by both the Respondent and his father. Edwin Schmid dealt with the Respondent directly on several occasions, but the business card he had been given showed Walter Scapecchi's name written in by hand over the Respondent's name. The deposit check written by Edwin Schmid was made payable to Walter Scapecchi in the amount of $8,000. Walter Scapecchi is not licensed to engage in the business of general contracting, but was so engaged, aided and assisted by his son, the Respondent. The deposit check for $8,000 was to be used to cover the digging of the foundation, the necessary fill, the pouring of the concrete foundation, a culvert for the driveway, and electrical service, which was to have been completed by April 10, 1981, pursuant to the contract. A second payment of $10,000 was to have been made on April 10, 1981. On April 10, 1981, however, no work had yet been done, and none was done until March of 1982, nearly one year later. The work done in March 1982 consisted only of placing foundation markers. The Respondent admitted that the work of placing foundation markers did not cost anything near the $8,000 paid, and that he did not request the second payment of $10,000 because the work done did not exhaust the initial payment. Nevertheless, no part of the $8,000 initial payment was refunded to Edwin Schmid. Throughout the period of time after the contract was executed in March of 1981, Edwin Schmid wanted the Respondent to complete the construction pursuant to the contract. At one point after the first year had elapsed without any substantial work being done, Edwin Schmid attempted to effect a new contract with the Respondent that required the initial work for which he had already paid $8,000 to be completed. The Respondent agreed to this, but did not perform any more work at the construction site. The Respondent admits that he has not performed as required by the contract. He contends this was due to personal financial problems. Other excuses for the Respondent's nonperformance included his underestimation of the amount of fill required, heavy rains which caused delays, and State of Florida requirements. Nevertheless, work was not begun for nearly one year after the contract, contrary to the agreement, and only a minimal amount of work was done as of the date of the hearing. The Respondent moved out of the State of Florida in February of 1982, without notifying Edwin Schmid.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent, Paul K. Scapecchi be found guilty of violating Sections 489.129(1)(e), (f), (h), (j) and (k), Florida Statutes, and that licenses numbered RG 0015926 and RC 0031048 held by Paul K. Scapecchi be REVOKED. THIS RECOMMENDED ORDER entered this 27th day of September, 1983. WILLIAM B. THOMAS 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 27th day of September, 1983. COPIES FURNISHED: Douglas A. Shropshire, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Paul K. Scapecchi 133F 25th Court, N.W. Birmingham, Alabama 35215 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
Findings Of Fact The Respondent, at all times material hereto, was a licensed registered "residential contractor." He was not registered or licensed as a general or building contractor, however, as Respondent himself acknowledged. See also, Petitioner's Exhibit 1 in evidence. The Petitioner is an agency of the State of Florida charged pursuant to the provisions of Chapter 489, Florida Statutes, with establishing licensure standards for building contractors of all types in the State of Florida, and with enforcing the various limitations on practice as a contractor embodied in that chapter. On or about January 28, 1986, the Respondent contracted with one Harold Martin, M.D., to build Dr. Martin a commercial office building in Leon County, Florida. The contract specified construction of all phases of the building project except the parking lot and the landscaping. The Respondent submitted a budget for the construction work to Dr. Martin depicting a total proposed cost for the project of $134,882. The Respondent performed substantial work on the office building in January and February of 1986. In March of 1986, due to a dispute which arose between the Respondent and Dr. Martin concerning the cost and progress of the construction project, Dr. Martin terminated the Respondent's service and contract and retained another contractor to finish the job, which was done. The Respondent established that when the contract was terminated, the building was approximately 65 percent complete. It is undisputed that the Respondent did perform a substantial amount of work on the office building pursuant to the contract with Dr. Martin. On March 27, 1986, the Respondent filed a claim of lien against the owner, Harold Martin, in which the Respondent stated that he had managed the construction of the office building in question and had performed $23,300 worth of work thereon. The Respondent also provided Dr. Martin with a Contractor's Affidavit, in which he certified to the owner that all lienors, except one, had been paid. The Respondent had contracted to perform the work after it had been started by another contractor retained by Dr. Martin, whom Dr. Martin had also terminated because he was not pleased with the progress and the quality of work of that first contractor. The Respondent established that one of the members of the Board of Directors of his corporation was a licensed general contractor, but admitted that that general contractor and board member had performed no work with regard to Dr. Martin's office building. The Respondent testified that another general contractor came to the job site from time to time to supposedly oversee the job. However, it was not established that any other general contractor, in the course of his practice, had any nexus with the Martin contract nor the performance of any construction on the building at times when the Respondent was performing construction thereon in January and February of 1986. This is demonstrated especially because of the fact that the Respondent never paid any other general contractor any money for any work or supervision performed with regard to this job, nor had Dr. Martin paid any other general contractor for such duties during the time that the Respondent was performing work on the building in question.
Recommendation Having considered the foregoing findings of fact conclusions of law, the evidence of record, and the candor and demeanor of the witnesses, it is therefore RECOMMENDED that a Final Order be entered by the Construction Industry Licensing Board, in accordance with disciplinary guideline Rule 21E-17.001(3), Florida Administrative Code, according the Respondent the penalty of a Letter of Guidance. DONE and ENTERED this 23rd day of December, 1987, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2958 Petitioner's Proposed Findings of Fact: Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. COPIES FURNISHED: William O'Neil, III, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mr. James L. Washington 320 West Pershing Street Tallahassee, Florida 32301 Mr. Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
Findings Of Fact At all times material, the Respondent was licensed as a general contractor, holding license number CG C003564, qualifying WSCON Corporation. On or about September 27, 1990, the Respondent, acting on behalf of WSCON Corporation, entered into a contract with Emilio and Jennie Delgado to build an addition to the Delgado's residence at 13562 Southwest 286th Terrace, Miami, Florida, for a price of $12,756.00. On or about January 5, 1991, the parties to the contract agreed to a change order which increased the contract price by $1,248.00, to a total of $14,004.00. The Respondent obtained a building permit for the job from Dade County and the Respondent began work on the job about a month after signing the contract. The Delgados made payments to the Respondent pursuant to the contract in the total amount of $10,500.00. The final payment was due upon completion of the job. The Delgados never made the final payment because the Respondent never finished the job. After about September or October of 1991, the Respondent performed no further work under the contract. At that time, the Respondent had completed the majority of the work, but there was still some work that remained to be completed. 1/ The Respondent discontinued performing work called for by the contract because of financial problems he was having due to his not having received certain funds owed to him by Dade County. He offered to continue working on the job if the Delgados would advance him sums under the contract that were not yet due, but the Delgados refused to do so. The Delgados never discharged the Respondent. The Delgados completed the job themselves, paying a total of $6,046.21 to various suppliers of labor and materials other than the Respondent. 2/
Recommendation On the basis of all of the foregoing Findings of Fact and Conclusions of Law, 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 II and III of the Administrative Complaint; Finding the Respondent guilty of a violation of Section 489.129(1)(k), Florida Statutes, as charged in Count I of the Administrative Complaint; and Imposing the following penalty: an administrative fine in the amount of one thousand dollars ($1,000.00) and a one year period of probation. DONE AND ENTERED this 23rd day of June 1994 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 23rd day of June 1994.
The Issue By its Administrative Complaint filed on January 15, 1985, the Department of Professional Regulation charged Respondent with violations of Section 489.129(1)(h)(k) and (m) Florida Statutes, relating to diversion of funds, abandonment of a construction project and gross negligence, incompetency or misconduct. The issue in this proceeding is whether any violation occurred and, if so, what disciplinary action should be taken. The Respondent generally denies the charges. At the hearing, the Petitioner presented two witnesses: Don Riordan, the home-owner; and Stephen Douglas Gates, an employee of Brooks Glass Company who did an estimate of cost of completion for the project. Four Petitioner's exhibits were admitted without objection: a check for payment by Don Riordan to A1 Ruocco, the Brooks Glass estimate, letter from William Bambach to A1 Ruocco and letter from Bob Bambach to Donald Riordan. A fifth exhibit was withdrawn. The Respondent testified on his own behalf and presented no other witnesses. His eight exhibits included the contract and a series of letters between himself and Robert Bambach. At the outset of the hearing, Petitioner moved for leave to file the testimony of Robert Bambach at a later date, due to unsuccessful attempts to serve a subpoena. The Respondent objected and the motion was denied. Petitioner waited until two days before the hearing to attempt to serve the prospective witness even though the hearing had been scheduled since June and the location of the hearing had been established for two weeks. Petitioner filed its Proposed Recommended Order on November 1, 1985; none was filed by Respondent. The proposed findings of fact have been primarily adopted herein but are addressed more specifically in Appendix A, attached to this order.
Findings Of Fact The facts in this case are virtually uncontroverted, with the exception of the months and sequences of some events. At all times material to the Administrative Complaint, Respondent was a registered building contractor holding license number RB0030112, which license qualified River's Edge Construction Company, Inc., Melbourne, Florida. On March 11, 1983 a contract was entered between Albert Ruocco, President, River's Edge Construction Co., Inc. ("Ruocco") and Don Riordan, Jr., ("Riordan") to enclose a balcony with bronze awning windows and bronze tinted glass at Riordan's townhouse residence in Melbourne Beach, Florida. Ruocco and Riordan knew each other socially as Ruocco was a neighbor of Riordan's parents. Ruocco was recommended for the job by Riordan's parents. On March 31, 1983, Riorden paid Ruocco $1300.00 or the $1853.00 contract price. Riordan testified that Ruocco was doing him a favor because it was repair work and the principal amount of money was being paid up front to avoid a cash-flow problem on materials. (T-18). The idea was to get the work done as soon as possible. (T-16). Sometime around May or June 1983, the construction started with removal of existing screening and the installation of an aluminum kick plate and posts to hold the awning window frames. Sometime later the windows were put in for the first time. The actual work on the project was done by a Mr. Bambach, rather than Ruocco. What followed the first installation was a series of misadventures culminating in a lawsuit by Riordan and an $800.00 civil judgment against Ruocco. The work was never completed. The first windows installed were clear glass rather than tinted bronze. Riordan complained to Ruocco and the windows were removed within twenty-four hours. The windows were installed again, this time with film rather than tinted glass and Riordan called Ruocco the next day. Again the windows were removed immediately. Some time passed (by now it was early August) and bronze-tinted windows were installed. However, after a rain storm it became apparent that the installation was faulty, as the structure leaked. The metal strips had been damaged from the several removals. Riordan complained the third time and the windows were removed a third time. They were never replaced. Throughout this period Riordan was dealing with Ruocco, with whom he had the contract and Ruocco was dealing with Bambach, to whom he had given $800.00 as partial payment for the work. Relations between the individuals deteriorated as months passed and the windows were still not finally installed. Riordan called Ruocco about getting the work done and was told that Ruacco was having trouble with his worker. By the end of 1983 Riordan's attorney called Ruocco and said that the money had to be refunded. In the meantime, a stand-off had developed between Ruocco and Bambach, with Ruocco insisting that the work be completed prior to final payment and Bambach insisting that he be paid prior to re- installation of the windows. Bambach had taken the windows to a glass company to be fixed. Bambach alleged in his correspondence that Ruocco did not have the money to pay him, while Ruocco alleged that he tried to meet Bambach to give him the money but Bambach didn't show up. Ruocco testified that he possibly could have installed the windows himself but was trying to get Bambach to complete the job. (T-57). He further testified that he had two other persons look at the job but they wouldn't touch someone else's work. (T-58). Sometime in early 1984 Ruocco was made to understand that Riordan was not interested in waiting any longer for the project to be finished and wanted his money back.
Recommendation On the basis of the foregoing, I recommend that the Respondent be found guilty of misconduct as provided in Subsection 439.129(1)(m) Florida Statutes, and be reprimanded in accordance with Subsection 489.129(1) Florida Statutes. DONE and ORDERED this 12th day of November, 1985, in Tallahassee, Florida. MARY CLARK, 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 12th day of November, 1985. APPENDIX In accordance with Section 120.59(2) Florida Statutes, the following are recommended rulings on proposed findings of facts submitted by Petitioner in this case. The numbered paragraphs below conform to the paragraphs proposed by Petitioner. These findings are incorporated in Recommended Order, paragraph 1. These findings are incorporated in Recommended Order, paragraphs 2 and 6. These finding are incorporated in Recommended Order, paragraph 3. These findings are incorporated in Recommended Order, paragraph 5. These findings are incorporated in Recommended Order, paragraph 5. These findings are incorporated in Recommended Order, paragraph 5. These findings are incorporated in Recommended Order, paragraph 7. The findings related to the estimate of Brooks Glass Company are irrelevant. The estimate was done approximately one and a half years after the contract was entered between Riordan and Ruocco. The witness from Brooks Glass who testified about the estimate could not relate the quality of Brooks' windows to those intended by Ruocco for the project. (T. 41-43). To the extent that these findings are proposed to show the extent to which the project was left uncompleted, the fact that the windows were never re- installed was admitted by Ruocco and is reflected in Recommended Order paragraphs 4 and 5. These findings are incorporated in Recommended Order paragraphs 7 and 8. COPIES FURNISHED: Fred Roche, Seeretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Douglas Beason, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Albert J. Ruocco 604 Citrus Court Melbourne, Florida 32951
