Findings Of Fact The Respondent, Marlene E. Lutman, is a vice president of American Custom Builders, Inc. and was a vice president in 1977. Respondent holds licenses Number CR C012570 end Number CR CA12570 issued by the Petitioner Board. On September 11, 1978, Respondent submitted a certification change of status application to the Florida Construction Industry Licensing Board. This application, completed by Respondent under oath on September 7, 1978, was filed for the purpose of changing the contractor's licenses held by Respondent to add the name of American Custom Builders, Inc. to said licenses. On July 6, 1979, an Administrative Complaint was filed against Respondent, doing business as American Custom Builders, Inc., seeking to permanently revoke her licenses and her right to practice under said licenses and to impose an administrative fine in the amount of $500.00. Respondent Lutman requested an administrative hearing, which was scheduled for September 6, 1979, continued on Motion of Respondent, and held November 29, 1979. On the application completed by Respondent, Question 12(b) asked: Are there now any unpaid past-due bills or claims for labor, materials, or services, as a result of the construction operations of any person named in (i) below or any organization in which such person was a member of the personnel? Question 12(c) of the application asked: Are there now any liens, suits, or judgments of record or pending as a result of the construction operations of any person named in "(i) below" or any organization in which any such person was a member of the personnel? Respondent, as a vice president of American Custom Builders, Inc., was designated in "(i) below." She answered "no" on the application to both of the above stated questions. Respondent completed the application while she was in Florida. Prior to completing the application, Respondent spoke by telephone with John D. Cannell, an attorney in Ohio, in reference to Questions 12(b) and 12(c), supra. Cannell told Respondent that there were no unpaid bills outstanding. He said that there had been liens filed involving American Custom Builders, Inc., but that these liens had been cancelled. Cannell based his statements to Respondent upon oral assurances from personnel at the bank involved in financing the construction project associated with the liens that all liens had been paid. It was later learned that on September 7, 1978, the date Cannell told Respondent the liens had been cancelled, the liens had not been cancelled and were of record in the Recorder's Office of Geauga County, Ohio. Liens had been filed on January 6, 1978, January 23, 1978, and January 3l, 1978, by various subcontractors involved in the construction of a house owned by Winford and Sally Ferrentina. The liens were based on claims against American Custom Builders, Inc. as general contractor and the Ferrentinas as owners for unpaid labor and materials and were not satisfied of record until September 20, 1978, on which date the January 6, 1978 lien was satisfied, and March 22, 1979, on which date the other two (2) liens were satisfied. The Hearing Officer finds that Respondent Lutman did not intend to make a material false statement but negligently relied on oral representations that there were no past-due bills and no liens of record pending as a result of her construction operations. Both parties submitted proposed findings of fact, memoranda of law and proposed recommended orders, and the Petitioner Board submitted a reply memorandum. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this order they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based upon the foregoing Findings and Conclusions of Law, the Hearing Officer recommends that the Respondent, Marlene Lutman, be reprimanded. DONE and ORDERED this 1st day of February, 1980, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Jeffery B. Morris, Esquire 2400 Independent Square One Independent Drive Jacksonville, Florida 32202 Jeffrey R. Garvin, Esquire 2532 East First Street Post Office Box 2040 Fort Myers, Florida 33902 DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. DOAH CASE NO. 79-1546 Marlene Lutman, CR C012570, CR CA 12570 Respondent, /
The Issue Whether Respondent's license as a certified roofing contractor in the state of Florida should be revoked, suspended or otherwise disciplined under the facts and circumstances of this case.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, Respondent, Christopher G. Coxon, held a license as a certified roofing contractor, number CGC029604. On or about November 15, 1988, Respondent entered into a written contract with John DeCarlucci to repair a leak in the roof of DeCarlucci's residence at 1717 North Oregon Circle, Tampa, Florida. The contract amount was $400.00, of which Respondent was paid $200.00 by DeCarlucci on November 16, 1988. The Respondent gave DeCarlucci a one-year warranty on his work. The balance owed on the contract was to be paid upon satisfactory completion of the job. Respondent commenced work on the DeCarlucci residence on November 16, 1988. On November 16, 1988 Respondent removed two rows of roofing tile from DeCarlucci's roof while attempting to repair the leak in the roof. The Respondent carried these roofing tiles away from DeCarlucci's residence on November 16, 1988 and has never returned these roofing tiles or provided DeCarlucci with any replacement roofing tiles. On November 23, 1988 the area of the roof that Respondent had attempted to repair leaked. As a result of several telephone calls to Respondent from DeCarlucci, the Respondent returned to the job site on November 26, 1988 and December 7, 1988, and whatever repairs the Respondent attempted on those dates failed in that the roof continues to leak. After December 7, 1988 the Respondent did not return to the job site. DeCarlucci attempted to reach Respondent through the remainder of December 1988 and January and February 1989 by telephone and a certified letter but to no avail. As a result of DeCarlucci filing a complaint with the City of Tampa Building Department on January 5, 1989, the job site was inspected by the construction inspector for the building department and the project cited for violation of the building code. Respondent was notified of the complaint and building code violation. The Respondent was given until February 14, 1989 to correct the leakage and to replace the missing roofing tiles. As a result of Respondent's failure to take any corrective action toward repairing the roof or replacing the missing roofing tiles, the DeCarlucci complaint was filed with the City of Tampa Unified Construction Trades Board for disciplinary action. The Respondent subsequently returned the $200.00 to DeCarlucci that he had received from DeCarlucci on the contract price on November 16, 1988. In its complaint against the Respondent the City of Tampa Unified Construction Trades Board alleged that Respondent's failure to properly repair the roof was a violation of Section 101.1-Covering, Standard for the Installation to Roof Coverings, 1985, edition, Southern Building Code Congress International, Inc., and Section 25-101(5)(10) and (22) Grounds for Disciplinary Action, Penalties, City of Tampa, Building and Construction Regulations. Respondent was duly notified of the hearing to be held on April 4, 1989 on the allegations. At the hearing on April 4, 1989 the Respondent was found to have violated those sections set forth in Finding of Fact 13 and by unanimous decision the Board ordered Respondent to cease all construction activity and revoked the Respondent's permitting privilege. At no time material to this proceeding, has the Respondent made restitution to DeCarlucci for the missing roofing tiles or the cost of labor and materials for installing such tiles. While Section 489.129(1), Florida Statutes, provides for the assessment of costs associated with the investigation and prosecution of a case, there was no evidence presented by the Department as to the amount of those costs.
Recommendation Upon consideration of the foregoing findings of fact and conclusions of law and disciplinary guidelines set forth in Rule 21E-17.001, Florida Administrative Code, it is accordingly, RECOMMENDED: That the Board enter a Final Order finding Respondent, Christopher G. Coxon guilty of violation of Section 489.129(1)(d)(i) and (m), Florida Statutes, and for such violation revoke his license as a certified roofing contractor. DONE and ENTERED this 2nd day of January, 1992, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of January, 1992. APPENDIX The following constitutes my specific rulings pursuant to Section 120-59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in the case. Rulings on Proposed Finding of Fact Submitted by the Petitioner Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed findings of fact: 4-6(1); 7-8(2); 9-10(3); 11(4); 13-16(5); 17-18(3); 19(6); 20-21(7); 22-23(8); 24-26(9); 27 28(10); 29-30(11); 31(12); 32(16); 33(13); 34(14); and 35- 36(15). Proposed findings of fact 1-3 are covered in the Preliminary Statement. Proposed finding of fact 12 is rejected as not being supported by competent substantial evidence in the record. See proposed findings of fact 20 and 21 and finding of fact 7. Rulings on Proposed Findings of Fact Submitted by the Respondent The Respondent did not submit any proposed findings of fact. COPIES FURNISHED: Craig M. Dickinson, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Christopher Coxon 554 Carson Drive Tampa, FL 33615 Daniel O'Brien, Executive Director Construction Industry Licensing Board P.O. Box 2 Jacksonville, FL 32202 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue The issues in this matter are as established through an Administrative Complaint brought by the State of Florida, Department of Professional Regulation, against Johnny C. Fossett alleging various violations of Chapter 489, Florida Statutes, related to a job conducted for Joshua and Jacquelyn Williams. More specifically, Respondent is accused of violation of Section 489.129(1)(j) , Florida Statutes (1981), by failing to properly qualify a company under which he was doing business. In a related vein, he is accused of violation of Section 489.129(1)(g) Florida Statutes (1981), by acting in a name other than that on his license. Respondent is accused of violating Section 489.129(1)(d), Florida Statutes (1981), for willful and deliberate disregard and violation of a local building code. Respondent is accused of violating Section 489.129(1)(j), Florida Statutes, for contracting beyond the scope of his registration. Finally, Respondent is accused of a violation of Section 489.129(2), Florida Statutes,(1981), in violating Rule 21E-15.07, Florida Administrative Code, by failure to notify the Construction Industry Licensing Board of a change of address within 30 days of such change.
Findings Of Fact Respondent, Johnny C. Fossett, is the holder of a license issued by the Florida Construction Industry Licensing Board in the field of registered roofing contractor. That license number is RC 0040728. Respondent is also the qualifying agent of J. C. Fossett Roofing & Maintenance Repair of 4978 Soutel Drive, Jacksonville, Florida. In addition to the Soutel address associated with J. C. Fossett Roofing & Maintenance Repair, Respondent has given the Florida Construction Industry Licensing Board the address 8937 Castle Boulevard, Jacksonville, Florida, as his address. On April 15, 1983, Respondent contracted with Joshua and Jacqelyn Williams of 4634 Fairleigh Avenue, Jacksonville, Florida, for the construction of a utility building with roof; to repour a carport slab; and to construct a screened-in patio with roof. The agreement was also for the removal of a tree hanging over the den and carport area of the existing home. The total price of this contract was $3,550. Eighteen hundred dollars was paid as a deposit, and the remainder of the contract price was paid on May 11, 1983. In the proposal or contract agreement Respondent noted that the work was guaranteed by an entity known as J. C. Roofing. A copy of this proposal may be found as Petitioner'S Exhibit No. 2 admitted into evidence. Neither the Respondent nor any other duly licensed contractor had qualified the entity/organization known as J. C.. Roofing with the Florida Construction Industry Licensing Board. Respondent performed the work called for in the contract, without obtaining the necessary building permit from the City of Jacksonville, Florida. Respondent was registered with the City of Jacksonville as a roofing contractor. He was not registered in the fields of general contracting, building contracting, or residential contracting, which would have been necessary before Respondent could conduct that work for the Williamses, other than roofing. Respondent could not have been registered with the City of Jacksonville in those fields of general contracting, building contracting, and residential contracting because he was not qualified. The Williamses experienced problems with the quality of Respondent's work, most notable, leaks in the roof that Respondent had worked on. When it rained water would run down the walls and promote mildew. This was in the area of the joining of the roof over the patio and the roof over the carport. In response to complaints, Fossett made such remarks as "A little water on the roof is good" and offered to drill holes in the roof and install rain gutters to alleviate the problem. The owners found this unacceptable. Respondent having failed to satisfy their claims, the Williamses sought other assistance in effecting repairs. The roof still leaks. On the occasion of attempting to have these problems corrected, the Williamses sought to contact the Respondent at his Soutel address by calling the number found on the business card provided by the Respondent. When phoning that number it was discovered that someone other than the Respondent was doing business from the Soutel address. The phone number was the Respondent's residential number. The card, as given to the Williamses, indicates that the business is J & C Roofing Company, Johnny C. Fossett, Owner. Again, this business name is one for which the Florida Construction Industry Licensing Board has no indication of a duly licensed contractor properly qualifying that entity, either the Respondent or some other person. Petitioner's Exhibits Nos. 5 through 7, admitted into evidence, are photographs of the work done by the Respondent, to include roofing, and the mildew on the concrete blocks found on the outside of the patio wall which was promoted by the leak in the roof.
The Issue Whether the certified general contractor's license of W. Bert Jones should be revoked.
Findings Of Fact By an Administrative Complaint filed October 27, 1976, the Florida Construction Industry Licensing Board sought to revoke the general contractor's license of W. Bert Jones alleging that the Respondent contractor entered into a contract with Mrs. Barbara Loewe to renovate her home and to add a room onto the back of the house; that the Respondent contractor was paid in full the contract price but the job was not completed and there were numerous building code violations. Respondent requested an administrative hearing. Pursuant to written agreements entered into between the Respondent and Mrs. Barbara Loewe of Tampa, Florida, Respondent agreed to renovate Mrs. Loewe's home and to add a room onto the back of the house. Mrs. Loewe, either by paying the Respondent directly or paying material suppliers, paid the full contract price. In June or July of 1975 the Respondent left the job contracted for partially or wholly incompleted as follows: the ceiling of the kitchen and drywall were in complete and the kitchen was not painted; the guest bathroom was not trimmed; two back rooms were incomplete. Inasmuch as the ceiling was left undone, it was not trimmed, the drywall was incomplete, the doorways were left uninstalled, and the paneling was incomplete; the bathroom had no toilet, no sink and no trim on the tub; in the master bedroom the ceiling was left sagging, there was no insulation in ceiling or walls, the door was untrimmed, siding was left partially undone and the windows weren't trimmed; holes were left unrepaired around the pipes in the home. The sum of Five Thousand Dollars ($5,000) was paid by St. Paul Fire and Marine Insurance Company in full settlement of the claims arising under the general contractor's bond. Additional money, approximately Thirty-Five Hundred Dollars ($3,500), was spent by Mrs. Loewe in addition to the Five Thousand Dollars ($5,000.00) received from the bonding company in order to complete the jobs contracted for. Although there were minimum changes In the job as originally contracted for, work is still going on to complete the original work contracted for by the Respondent. The building inspector for the City of Tampa Building Bureau, Tom Burgoyme, inspected the job site on several occasions during the progress on the work contracted for between Mrs. Loewe and the Respondent. He found building code violations and submitted a list of corrections to the Respondent, Mr. Jones, which were not remedied. A number of problems arose during the construction work, some of which was not the fault of the Respondent. Another contractor was involved in the work on the project. Funds in excess of the purchase price were paid to the Respondent and funds in excess of Eighty-Five Hundred Dollars ($8,500) were needed or will be needed to complete the project.
Recommendation Revoke the general contractor's license of Respondent, Number C GC007323. DONE and ORDERED this 7th day of April, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211 Barry Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 W. Bert Jones 2300 Greenlawn Street Brandon, Florida 33511
Findings Of Fact At all times pertinent to these proceedings, Hamilton held registered residential contractors license number RR0015037. Hamilton agreed to construct a house in Clearmont, Florida, with a completion date no later than May 1, 1977, for Robert J. and Margaret M. Phlepsen. The construction price was $75,000.00. After construction of the house it was discovered that there existed two violations of the Southern Building Code. First, the "step-down" from the kitchen to the garage was an eleven inch riser contrary to the code requirement that the height of a riser shall not exceed seven and three quarters inches. The second violation occurred through the use of 2 X 8 joists where the code would require 2 X 10 joists. The extra high riser between the kitchen and the garage was apparently caused by an oversight. Hamilton merely failed to install an intermediate step at that location. The second violation occurred because the owner and Hamilton agreed to use the smaller joists in order to save money on the contract price. In neither case is there sufficient evidence to establish that Hamilton's violations were willful or deliberate as alleged in the Administrative Complaint. On June 6, 1978, the Lake County Board of Examiners suspended Hamilton's Lake County Certificate of Competency because of violations of building code requirements in the construction of Phlepsen's house.
Findings Of Fact Gary Smith d/b/a Sirmons Roofing Company is a roofing contractor registered with the Florida Construction Industry Licensing Board. Smith does not hold any license issued by local construction licensing boards which does not license roofing contractors. Smith admitted that he had commenced construction projects without acquiring the appropriate building permits from the local building officials. Calvin Smith identified a contract, Exhibit 2, which he had entered into with Gary Smith d/b/a Sirmons Roofing regarding the repair of the roof of his house. This contract called for the replacement of bad wood, which was understood by the parties to refer to rotten wood planking and rafters. Calvin Smith stated that after construction commenced and the old roof had been removed, his house had suffered rain damage although Gary Smith had advised him that the roof had been dried in. Gary Smith explained that he had in fact laid the requisite felt paper on the roof but that a severe wind and rain storm and occurred immediately following which had destroyed the felt paper. Smith stated that a crew was on the job during the storm at all times trying to keep the felt nailed down and maintain the water-tight integrity of the roof. There were no delays following the removal of the roof in replacing the felt and diligently proceeding with the re-roofing. Several days after the storm the roof had been finished, the plywood ceiling of the family room of Calvin Smith's house was partially removed to permit the insulation to be replaced. At this time Calvin Smith discovered rotten wood which Smith felt should have been removed and replaced by Gary Smith pursuant to their contract. Gary Smith stated that he had found one rotten rafter, but that he had advised Calvin Smith of the fact that it was there and that Calvin Smith realized that he was not replacing it. Gary Smith stated that he had removed and replaced all the rotten wood in the roof and that the rotten wood discovered by Calvin Smith was on that portion of the family room roof which was under the eaves of the pre-existing roof of the house where it could only be seen upon removal of the family room ceiling. Gary Smith further testified that subsequent to finding the rotten wood, Calvin Smith had not permitted him to correct the job and that he had not personally seen the rotten wood, pictures of which Calvin Smith had identified. Calvin Smith identified photographs of the interior and exterior of the roof as repaired by Gary Smith. These photographs were received as Exhibits 3 and 8. Exhibits 7 and 8 were photographs of the exterior of the roof. Exhibit 8 is a photograph of a shingle which was not properly installed. Gary Smith admitted that the shingle was not properly installed but stated that it would have been corrected prior to finishing the job. Exhibit 7 is a photograph showing a course of shingles which does not have the proper overlap. Gary Smith explained that this short run of shingles was necessary to even up or balance the runs on both sides of a hip in the roof because the distance from the eave to the top or peak of the hip was not the same on both sides. Gary Smith also pointed out that in both photographs the shingles are laid so that the bottom of the upper course of shingles comes to or overlaps the lower course of shingles to the top of the tab, causing good contact between the shingles and the adhesive strips. Contrary to the assertion of Calvin Smith that the shingles had been laid in such a manner that the adhesive strips did not touch. Calvin Smith had identified Exhibit 6 as photograph of roof flashing on the family room roof which he asserted was improperly installed. Gary Smith stated that the flashing in Exhibit 6 was installed in accordance with the manufacturer's recommendation and that the roof on the family room had the requisite number of layers of felt and tar as required by the building code. Gary Smith stated that he could not identify the purported location of the underside of the roof depicted in Exhibit 5 and identified by Calvin Smith as being in the middle of the family room. Gary Smith stated that he could not identify the purported location of the underside of roof depicted in Exhibit 5 and identified by Calvin Smith as being in the middle of the family room. Gary Smith stated that he had shown the rotten beam indicated in Exhibit 4 to Calvin Smith and that Calvin Smith had known that he was not replacing the bean because replacement would have required the removal of the family room ceiling as well as the sheeting on the roof over the beam. Gary Smith stated that the wood shown in Exhibit 3 was not rotten but water stained and that the beam was sufficiently solid to hold the weight of the roofing materials on top of it and to nail the new sheeting into. Tommy Thompson, construction inspection supervisor of the City of Jacksonville, inspected the roof of Calvin Smith's home. Thompson found that the shingles had not been lapped properly, that some shingles had been laid so that the ceiling strips would not adhere properly, that rotten rafters and wood had been left, that the correct number of nails had not been placed in the shingles, that metal flashing around the chimney had not been installed in accordance with the manufacturer's specifications, and that one, twelve inch hold had been left in the roof sheeting. Thompson identified the Building Code of the City of Jacksonville and those portions of the code relating to installation of roofing materials. Thompson stated that the items mentioned in the paragraph above constituted violations of the code. Thompson also pointed out that it was a violation of the code to commence construction or repair of a roof without obtaining the requisite building permit. J. R. Bond, Executive Director of the Construction Trades Qualifying Board of the City of Jacksonville, stated that the board did not certify roofers. The ordinances of the City of Jacksonville empower the Construction Trades Qualifying Board to hear complaints against state registered but unlicensed contractors. However, the board lacks authority to take direct action against persons who are state registered but unlicensed. The board may only request that the city building official not issue the individual any further building permits. The building official must exercise his own independent authority and judgment in determining whether to suspend an individual's right to obtain building permits. The building official suspended Smith's privilege to obtain permits without a hearing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that Smith's registration as a roofing contractor be suspended for a period of one year. DONE and ORDERED this 3rd day of January, 1979, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 Telephone: 904/488-9675 COPIES FURNISHED: Michael Egan, Esquire 217 South Adams Street Tallahassee, Florida 32304 Gary A. Smith Sirmons Roofing Company 3845 Edidin Drive Jacksonville, Florida 32211 J. K. Linnan, Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. CASE NO.: 78-1780 GARY A. SMITH d/b/a SIMMONS ROOFING CO., RC 0030047, 3845 Edidin Drive, Jacksonville, Florida 32211, Respondent. /
Findings Of Fact At all times relevant, Willie James Collier was licensed as a registered roof contractor in the State of Florida, having been issued license number RC0040382. At all times relevant, Willie James Collier qualified the roofing business he owns and manages, A-1 Collier Roofing, at 2230 Blossom Terrace, Orlando, Florida 32809. On May 5, 1982, Willie Collier contracted with Robert P. Guarante to reroof Mr. Guarante's residence at 2525 Venetian Way, Winter Park, Florida. The terms of the written contract included a five-year guarantee on the work. The work was completed on May 6, 1982, and Guarante paid the negotiated amount of $4800.00. A few weeks after the installation, there was some problem with the flashing around the chimney. Guarante had no difficulty contacting Collier and the necessary repairs were made. Sometime around November 1985, Guarante detected discoloration, like rust stains, under the eaves. He first had the gutter replaced, but afterward figured the problem was seepage from the roof. He attempted to call Willie Collier. There were no answers until he called one night and was told that Willie Collier was not at that number. Mr. Guarante then drove to the street address he had for the roofing company. It was a residential area and he did not get out of the car and knock on doors. He sent a letter by regular mail to 2230 Blossom Terrace, Orlando, asking that Willie Collier call him immediately. The letter was not returned, nor was it answered. He contacted the Better Business Bureau, but this did not result in a contact with Mr. Collier. Another roofer, Robin Hood, told Mr. Guarante that there was a depression collecting water on the outer extremity of the roof, due to improper installation. Robin Hood built up the depression and charged Guarante $70.00. There were no more problems, and six months later the house was sold. Mr. Collier denies receiving any letters from Mr. Guarante or the Better Business Bureau. He was in financial difficulty in 1985, and the phone was disconnected three times. At one point the phone was in his wife's name. His licensing record reveals that his license was under suspension during 1985. He did not maintain an advertisement in the Yellow Pages during 1985. His address has not changed. It remains the same as it was from the first license application in 1976: 2230 Blossom Terrace, Orlando, Florida 32809.
Findings Of Fact At all times relevant hereto, Respondent, Daniel A. Arguelles, held certified general contractor license number CG C004252 issued by Petitioner, Department of Professional Regulation, Florida Construction Industry Licensing Board. When the events herein occurred, he was qualified as an individual. He presently resides at 9455 Southwest 78th Street, Miami, Florida. Respondent's brother is J. Alejandro Arguelles. Alejandro holds an inactive contractor's license which has been delinquent since July, 1979. In June, 1984, Alejandro was contacted by an individual named Louis Taylor. Taylor told Alejandro that David Reynolds, who resided at 753 Northwest 116th Street, Miami, Florida, wished to add a room to his house. After meeting with Reynolds, Alejandro had plans for the addition prepared, provided an estimate for the job, and gave Reynolds a business card reflecting that he was a licensed general contractor. Reynolds and Alejandro then jointly executed a contract on July 26, 1985, wherein it was provided that A. Arguelles & Associates would construct the room addition for $19,000. The letterhead on which the contract was executed indicated that Alejandro was a general contractor. However, the entity "A. Arguelles & Associates" has never been qualified by any licensee to do construction work in the state. During all negotiations with Reynolds, Alejandro never mentioned that Daniel would be the contractor on the project although Alejandro did advise him that a general contractor would be required. All checks were made out to Alejandro, and Alejandro ordered all supplies and materials used on the project. In addition, Alejandro was at the job site on a regular basis. Prior to signing the contract on July 26, Daniel was approached by Alejandro and asked if he would be willing to act as contractor on the project. Daniel agreed, and thereafter pulled a job permit and used his license number on all pertinent documentation. Other than visiting the job site on a "couple" of occasions, he had no other contact with the project. He never met or had any contact with Reynolds. The actual amount of work done on the project by Alejandro and Daniel amounted to only $5,000.00 and consisted of constructing the foundation up to the tie beam. There is no evidence that this phase of the work was performed in a negligent or incompetent manner.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty as set forth in the Conclusions of Law portion of this order, and that he be fined $500.00. DONE and ORDERED this 1st day of October, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1985. COPIES FURNISHED: Salvatore A. Carpino, Esquire 130 N. Monroe St. Tallahassee, FL 32301 Fred Roche, Secretary Dept. of Professional Regulation 130 N. Monroe St. Tallahassee, FL 32301 Nancy M. Snurkowski, Esquire 130 N. Monroe St. Tallahassee, FL 32301 J. K. Linnan, Executive Director Florida Construction Industry Licensing Board P. O. Box 2 Jacksonville, FL 32201 Mr. Daniel A. Arguelles 9455 S.W. 78th Street Miami, FL 33173
Findings Of Fact At all times material hereto Respondent was a registered roofing contractor with license number RC-0021643 and was acting as the qualifying agent for Poe Roof Company, Inc. The City of Coral Gables has adopted the South Florida Building Code which requires that a contractor obtain a building permit prior to commencing roof construction or repair. However, no permits is required when such work does not exceed $300 in value. If a roofing contractor fails to apply for a building permit the City is unable to conduct required inspections and is unaware of ongoing construction unless it is discovered by the City's code enforcement section. A Notice of Violation is issued when unpermitted construction activity is discovered, and the contractor is asked to "dry the roof in" to avoid the possibility of damage due to bad weather. All work is then stopped and the contractor must apply for a permit. On July 28, 1983 Poe Roof Company, Inc., submitted a proposal to reroof St. Mark's Lutheran Church which was accepted in March 1984 and work was begun. Construction was completed in June, 1984. Respondent did not apply for a permit for this job prior to the work commencing, and therefore required inspections were not made by the City. Respondent subsequently did apply for a permit on June 4, 1984. When a complaint from the church was received by the City about the work being performed, the City required Respondent to cut a "roof plug" so that it could be determined if the roof was being properly installed. No defects in the roof installation were discovered. The Church's representative had complained that Respondent did not properly supervise the installation and that the wrong roof tiles were used. The evidence presented does not establish that the wrong tiles were used, but it is evident that Respondent visited the job site infrequently, if at all. An investigator for the Department of Professional Regulation interviewed Respondent on July 5, 1984 and testified that Respondent admitted that he had never visited the job but simply supervised the reroofing from his office. The City of Coral Gables issued Notices of Violation against Poe Roof Company, Inc. on May 2, May 21 and July 11, 1984 for performing other roof work and repairs without the required permit. In these instances the value of each job exceeded $300, Respondent had not applied for a permit prior to the issuance of the Notice of Violation, and he was therefore assessed a double fee when he did submit applications on June 4, 1984 for the jobs associated with the Notices issued on May 2 and 21. He was also assessed a $100 fine by the City as a result of the Notice of Violation issued on July 11, 1984 for which he subsequently applied for a permit on September 26, 1984. In November, 1983 Respondent submitted a change of status application to the Construction Industry Licensing Board to change his license from inactive to active. Although he was designated as the applicants the license number for Roger Miller, owner of Poe Roof Company was shown on the application as well as on the check that accompanied the application. As a result of this error, Respondent's license was not changed to active status until July 9, 1984 when he was issued a 60 day temporary license to serve as qualifier for Poe Roof Company. Thus, when the work at St. Mark's Lutheran Church was taking place and two Notices of Violation were being issued on May 2 and 21, Respondent did not have an active license. His license was inactive when he subsequently applied for permits for these three jobs on June 4, 1984. Respondent knew his license was inactive since in defense he contends the City would not have issued permits to him if he had timely applied for them because he did not have an active license. The parties were given an opportunity to submit posthearing proposed findings of fact pursuant to Section 120.57(1)(b)4., F.S. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative immaterial or unnecessary.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is recommended that a Final Order issue imposing an administrative fine of $750 against Respondent. DONE and ENTERED this 10th day of June, 1985 at Tallahassee, Florida. DONALD D. CONN 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 10th day of June, 1985. COPIES FURNISHED: W. Douglas Beason, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Bruce M. Cease, Esquire 2720 West Flagler Street Miami, Florida 33135 James Linnan, Executive Director Construction Industry Licensing Board 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 Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issues presented in this case concern certain allegations made by the Petitioner against the Respondent through an Administrative Complaint. In particular, it is alleged that on or about April 23, 1980, the Respondent's contractor's license issued by the Petitioner was suspended and subsequent to that time, the Respondent continued to perform contracting services through a company, David H. Hamilton, Inc., a corporation which was not properly qualified by the Petitioner to provide contracting services. It is further alleged by the Petitioner that the Respondent obtained building permits Nos. S2740-80B 1/ and 3214-80B from the Osceola County Building Department with the use of another contractor's license, namely: Louie S. Winchester, license #RR003839. For the reason of these facts, the Petitioner alleges that the Respondent has violated Subsection 489.127(1)(e), Florida Statutes, in that he attempted to use a suspended registration. It is further alleged, based upon the facts as reported in this Issues statement, that the Respondent has violated Subsection 489.129(1)(g), Florida Statutes, by acting in a capacity as a contractor under a certificate of registration not in his name. Finally, it is alleged, based upon the facts as reported hereinabove, that the Respondent has violated Subsection 489.129(1)(j), Florida Statutes, by failing to comply with Subsection 489.119(2), Florida Statutes, by not properly qualifying a corporation under which he performed contracting services.
Findings Of Fact The case presented concerns license disciplinary action by the Petitioner, State of Florida, Department of Professional Regulation, Florida Construction Industry Licensing Board, against the Respondent, David H. Hamilton, who holds a residential contractor's license issued by the Petitioner, #RR0014037. The prosecution of this action is through the offices of the Department of Professional Regulation and the outcome of the matter could lead to the revocation, suspension or other disciplinary action against the Respondent, in keeping with the provisions of Chapter 489, Florida Statutes. This case was presented before the Division of Administrative Hearings following a decision on the part of the Respondent to request a formal hearing pursuant to Subsection 120.57(1), Florida Statutes. The facts reveal that a Final Order of the Florida Construction Industry Licensing Board was issued on April 23, 1980, and this order established disciplinary action against the current license of David H. Hamilton. (A copy of this Final Order may be found as a part of the record in this proceeding and official recognition of that Final Order is made by the Recommended Order process.) This Final Order was entered after review of a Recommended Order of a Division of Administrative Hearings' Hearing Officer. By the terms of the Final Order, Hamilton's license was suspended "until such time as his Lake County Certificate of Competency is reinstated by the Lake County Board of Examiners." This contingency referred to the fact that the Respondent had his Lake County Certificate of Competency Card removed prior to the entry of the April 23, 1980, order of the Construction Industry Licensing Board. On September 2, 1980, at a time when the Respondent's residential contractor's license was under suspension by the State of Florida, the Respondent through a corporation applied to the Osceola County Building Department for a building permit to construct a residence in Osceola County, Florida. This permit number was #2740-80B. The permit was issued on September 4, 1980, and was granted in the name of David Hamilton, Inc., a corporation in which the Respondent was a principal. To obtain the permit in the sense of an effort to meet the requirements that the permit be applied for by a licensed Florida contractor, the Respondent used the registered residential contractor's license of one Louie Stevens Winchester who held license #RR003839 issued by the Florida Construction Industry Licensing Board. On the occasion of the issuance of the permit by Osceola County, Winchester was an officer of David Hamilton, Inc. Through the action of "pulling" this permit and the utilization of the permit in his construction of the residence, the Respondent was acting in the capacity of contractor under Winchester's license and the offices of the corporation, as opposed to the Respondent's suspended license. Prior to the request for permit, neither Hamilton nor Winchester had attempted to properly qualify David Hamilton, Inc., as a contracting corporation with the Florida Construction Industry Licensing Board. In this case, to properly qualify the corporation, it would have entailed the use of Winchester as the qualifying agent, in view of the fact that Winchester still held a valid contractor's license from the Florida Construction Industry Licensing Board. No effort was made to qualify David Hamilton, Inc., in its own right, through the agency of Winchester, until some time shortly beyond December 1, 1980. On October 28, 1980, the Respondent in his individual capacity, that is to say unconnected with his business pursuits as David Hamilton, Inc., went to the Osceola Building Department and applied for the issuance of a building permit for a home remodeling project for a customer of his. The permit in question on this occasion was #3214-80B. That permit was issued on October 29, 1930, and was used by the Respondent in his building project. An official in the Osceola County Building Department had checked with an employee in the Lake County Building Department on the status of Hamilton's rights to be employed as a building contractor in Lake County, Florida, and was informed that Hamilton's status in Lake County was acceptable. Based upon these representations, the Osceola County employee issued the permit discussed in this paragraph to Hamilton. The Osceola County employee also asked that the Lake County employee formally confirm Hamilton's status. The correspondence in response to Osceola County employee, John Pate, Assistant Building Director, as issued by an official in Lake County, one Herb Dudgeon, may be found as Petitioner's Exhibit No. 3. This letter was received by Pate after the permit was issued. That correspondence indicates that Hamilton had been given the privilege of reinstating his Lake County Competence Card, contingent upon "providing bond, insurances, occupational license, etc.," which had not been received by Lake County as of the date of the correspondence. The correspondence goes on to mention that the State, meaning the Florida Construction Industry Licensing Board, was waiting for confirmation of the completion of the contingencies referred to. Subsequent to this correspondence, the Respondent having completed all the necessary steps for reinstatement of the Lake County Competency Card, had his license suspension removed and was reinstated by the Florida Construction Industry Licensing Board, as verified by that body.
Recommendation Based upon a full consideration of the findings of fact and conclusions of law reached herein, it is RECOMMENDED: That the Florida Construction Industry Licensing Board issue a Final Order which absolves the Respondent of any responsibility for a violation of Subsection 489.127(1)(e), Florida Statutes (1980); that finds the Respondent in violation of Subsection 489.129(1)(g), Florida Statutes (1979), and imposes a penalty of a 60-day suspension; and that finds the Respondent in violation of Subsection 489.129(1)(j), Florida Statutes (1979), and imposes a suspension of 60 days to run concurrently with the other suspension in this paragraph of recommendation. 2/ DONE and ENTERED this 13th day of November, 1981, in Tallahassee, Florida. CHARLES C. ADAMS, 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 November, 1981.
