The Issue The Florida Construction Industry Licensing Board, Petitioner, seeks to revoke the registered contractor's license of Stephen J. Borovina, Respondent, based on allegations, which will be set forth in detail hereafter, that he engaged in conduct violative of Chapter 468, Florida Statutes. The issue presented is whether or not the Respondent aided or abetted and/or knowingly combined or conspired with Mr. Howard North, an uncertified or unregistered contractor, to evade the provisions of Chapter 468.112(2)(b), and (c), Florida Statutes, by allowing North to use his certificate of registration without having any active participation in the operations, management, or control of North's operations. Based on the testimony adduced during the hearing and the exhibits received into evidence, I make the following:
Findings Of Fact The Respondent is a certified general contractor who holds license no. CGC007016, which is current and active. On or about July 25, 1976, Mr. and Mrs. Julius Csobor entered into a contract with Mr. and Mrs. Howard North for the construction of a home in Martin County, Florida, for a total price of $35,990. Neither Mr. or Mrs. North are certified or registered contractors in the State of Florida. (Petitioner's Composite Exhibit #2). Respondent applied for and was issued a permit by the Martin County Building Department to construct a residence for the Csobors at the same address stipulated in the contract between the Csobors and the Norths, i.e., Northwest 16th Street, Palm Lake Park, Florida. (Petitioner's Composite Exhibit #1). Howard North, a licensed masonry contractor for approximately nine (9) years was contacted by the Csobors through a sales representative from a local real estate firm. It appears from the evidence that North had previously constructed a "spec" house which the local realtor had sold and thus put the Csobors in contact with Mr. North when they were shown the "spec" house built by North. Evidence reveals that North contacted Borovina who agreed to pull the permit "if he could get some work from the job and could supervise the project". Having reached an agreement on this point, North purchased the lot to build the home for the Csobors and he orally contracted with the Respondent to, among other things, pull the permit, supervise construction, layout the home and do trim and carpentry work. North paid Respondent approximately $200 to layout the home for the Csobors. By the time that North had poured the slab and erected the subfloor, the Csobors became dissatisfied with his (North's) work and demanded that he leave the project. According to North, Respondent checked the progress of construction periodically. Prior to this hearing, the Csobors had never dealt with Respondent in any manner whatsoever. According to Csobor, North held himself out as a reputable building contractor. A contractor is defined in relevant part as any person who, for compensation, undertakes to, or submits a bid to, or does himself or by others, construct, repair, etc. . . . real estate for others. . . Chapter 468.102(1), Florida Statutes. Applying this definition to the facts herein, it appears that the Respondent, at least in a literal sense, satisfied the requirements and obligations of a contractor, as defined in Chapter 468.102, Florida Statutes. Thus, he contracted with North to oversee and/or supervise the project for the Csobors which he fulfilled, according to the testimony of North. Said testimony was not refuted and thus I find that no effort was made by Respondent to evade any provision of Chapter 468, Florida Statutes. Accordingly, I shall recommend that the complaint filed herein be dismissed in its entirety.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the complaint filed herein be dismissed in its entirety. RECOMMENDED this 4th day of November, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry S. Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 Stephen J. Borovina 2347 Southeast Monroe Street Stuart, Florida 33494 J. Hoskinson, Jr. Chief Investigator Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. DIVISION OF ADMINISTRATIVE HEARINGS, DOCKET NO. 77-1442 STEPHEN J. BOROVINA, CG C007016, 2347 S. E. Monroe Street, Stuart, Florida 33494, Respondent. / This cause came before the FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD at its regular meeting on February 10, 1978. Respondent was sent the Hearing Officer's findings and recommendations and was given at least 10 days to submit written exceptions to the recommended order. Respondent was notified of the meeting so that respondent or counsel might appear before the Board. Respondent did not appear The FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD on February 10, 1978, after reviewing a complete transcript of the Administrative Hearing, by motion duly made and seconded voted to revoke the certified general contractor's license of STEPHEN J. BOROVINA. It is therefore, ORDERED that the certification of respondent STEPHEN J. BOROVINA, Number CG C007016, be and is hereby revoked. Respondent is hereby notified that he has 30 days after the date of this final order to appeal pursuant to Chapter 120, Florida Statutes, and the Florida Appellate Rules. DATED this 13th day of February, 1978. FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD BY: JOHN HENRY JONES, President ================================================================= SECOND AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD STEPHEN J. BOROVINA, CG C007016, Respondent/Appellant, vs. DIVISION OF ADMINISTRATIVE HEARINGS, DOCKET NO. 77-1442 FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner/Appellee. / This cause came before the Florida Construction Industry Licensing Board at its regular meeting on August 3, 1979. The respondent was sent the Hearing Officer's findings and recommendations and was given at least 10 days to submit written exceptions to the recommended order. Respondent was notified of the meeting so that respondent or counsel might appear before the Board. Respondent did appear. The Florida Construction Industry Licensing Board, on August 3, 1979, after reviewing a complete transcript of the Administrative Hearing, by motion duly made and seconded, voted to revoke the certified general contractor's license of Stephen J. Borovina, No. CG C007016. On February 13, 1978, the certification of respondent, Stephen J. Borovina, No. CG C007016, was revoked by order of the Florida Construction Industry Licensing Board. On April 25, 1979, the District Court of Appeal of the State of Florida, Fourth District, in Case Number: 78-527, reversed the final order of the Florida Construction Industry Licensing Board. That Court remanded the above captioned case to the Board to further consider the matter and enter such order as it may be advised in conformity with Section 120.57(1)(b)(9), Florida Statutes (1977). In accordance with the decision of the Florida District Court of Appeal, Fourth District, the Board has reconsidered the above captioned matter and finds as follows: The Board rejects the recommended order as the agency's final order. The Board adopts the first paragraph of the hearing officer's finding of fact. The Board, however, rejects the findings of fact found in the second paragraph of the hearing officer's findings. The second paragraph states as follows: A contractor is defined in relevent(sic) part as any person who, for compensation, undertakes to, or submits a bid to, or does himself or by others, construct, repair, etc. real estate for others...Chapter 468.102(1), Florida Statutes. Applying this definition to the facts herein, it appears that the Respondent, at least in a literal sense, satisfied the requirements and obligations of a contractor, as defined in Chapter 468.102, Florida Statutes. Thus, he contracted with North to oversee and/or supervise the project for the Csobors which he fulfilled, according to the testimony of North. Said testimony was not refuted and thus I find that no effort was made by Respondent to evade any provision of Chapter 468, Florida Statutes. Accordingly, I shall recommend that the complaint filed herein be dismissed in its entirety. The findings of fact found in the above-quoted paragraph were not based upon competent substantial evidence. The competent substantial evidence supports a finding that the respondent, Stephen J. Borovina, did not supervise the project and that Borovina evaded the provisions of Chapter 468, Florida Statutes. The following evidence supports the Board's position: There was no written agreement entered into between Howard North and the respondent which indicated that the respondent was to supervise the construction of the Csobors' house (T- 14); It was conceded at the hearing that the only subcontractors or draftmen who worked on the Csobors' house were contracted solely by Howard North and they had no contract whatsoever with the respondent (T-19, 25); The respondent never advised or informed Mr. and Mrs. Csobor that he was the contractor on the job. (T-51); At all times during the act of construction of the house, Mr. and Mrs. Csobor were under the impression that Howard North was the contractor (T-44-51). It is, therefore, ORDERED: That the certification of respondent, Stephen J. Borovina, Number CG 0007016, be and is hereby revoked. Respondent is hereby notified that he has thirty (30) days after the date of the Final Order to appeal pursuant to Chapter 120, Florida Statutes, and the Florida Appellate Rules. Dated this 3rd day of August, 1979. FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD BY: JOHN HENRY JONES, President
The Issue The issues in this proceeding are whether the Respondent has violated provisions of the Florida Construction Industry Licensing Law, and, if so, what disciplinary action should be taken. The administrative complaint specifically charges Respondent with aiding an unlicensed person to evade provisions of the contracting licensing law, conspiring with an unlicensed person to allow his license to be used to evade provisions of the law, acting as a contractor under a name other than as appears on his registration, and failing to properly qualify a company under which he was doing business. Respondent denies the allegations.
Findings Of Fact At all times material to this proceeding, the Respondent has been duly licensed by the Petitioner as a building contractor. On March 23, 1980, Nettie Wilkes entered into a contract with Rado Construction, Inc. The contract was for Rado to enclose a carport at Wilkes' residence and to do other work incident to that renovation. The contract provided that work would commence on April 10, 1980, and be completed approximately 21 to 30 days from the start. The total contract price was $5,700, and Mrs. Wilkes gave Rado a $1,500 down payment. Donald W. Gray negotiated the contract on behalf of Rado with Wilkes. Gray appears to be the principal party in Rado Construction. Gray contacted James Neilan and Jerry Polk about performing the work on the Wilkes project. Gray did not show Polk a copy of the contract with Wilkes, and he led Polk to believe that considerably less work would need to be performed than was required under the contract. Although Polk had a local occupational license as a carpenter, he was not a licensed contractor, and was not able to obtain a building permit for the work. Neilan and Gray were also unlicensed and unable to obtain a permit. Polk assumed that he would be working for Gray in a subcontracting capacity. Polk had performed considerable carpentry work on a subcontracting basis for the Respondent. Polk felt that the Respondent might help him obtain a permit. Polk approached the Respondent about the Wilkes' project. He told the Respondent the scope of the project as it bad been related to Polk by Gray. He did not advise the Respondent of the involvement of Gray or of Rado Construction. Polk initially asked the Respondent if the Respondent would be able to do the job and the Respondent indicated that he could not. Polk and the Respondent discussed the job on a casual basis and the discussion ended. Several days later, Polk returned to the Respondent's office and asked the Respondent if the Respondent could obtain the building permit and allow Polk to perform the work on a subcontractor basis. Respondent drew up some plans about the project. He agreed to Polk's proposal. The Respondent filed an application with the building inspection department of the City of Orlando for a building permit on April 15, 1980. A permit was issued by the city on that same date. Respondent had estimated the cost of the project, based upon his discussion with Polk, as being approximately $2,000. The Respondent delivered the permit to Polk and advised Polk that he would be inspecting the project periodically. Polk posted the permit at the Wilkes' property and worked together with James Neilan on the project. The work did not commence as scheduled in the contract between Rado Construction and Mrs. Wilkes, but it did commence sometime after April 15, 1980. As the project went on, Gray would from time to time visit the site and advise Polk and Neilan of additional work that would need to be performed that Polk had not known about earlier. Polk did not know that considerable masonry work would be required. He was not qualified to do masonry work, but he attempted to perform it. As the work went on, Polk became more and more dissatisfied, and ultimately concluded that what had been described to him as a one and one-half week job for two people was in reality a two-week job for ten men. Polk ultimately removed the permit from the premises and abandoned his work there. Approximately four days after he obtained the building permit for Polk, the Respondent visited the job site. He observed that no work had commenced and he contacted Polk. Polk erroneously advised the Respondent at that time that the project had been abandoned and that the permit would not be utilized. Respondent heard nothing more about the project for approximately four weeks. Mrs. Wilkes eventually became dissatisfied with the nature of the services that were being performed on her property. When Polk abandoned further work, she contacted the building permit officials and was advised that the Respondent, not Rado Construction, had obtained the permit. She contacted the Respondent and advised him of what had occurred. The Respondent promptly visited Mrs. Wilkes at her home. He was surprised and appalled to find that very poor work had been performed in a very sloppy manner. He discussed the matter at length with Mrs. Wilkes and learned for the first time of Gray's involvement in the project. He advised Mrs. Wilkes that he would not be able to do the job, but he gave her a check for $600 which she told him would be sufficient to complete the project. Respondent also provided laborers to perform cleanup work at the site, and hired a subcontractor to pour a driveway. Respondent expended approximately $1,000 to complete the project for Mrs. Wilkes. The Respondent located Gray, and in an unpleasant confrontation, obtained a promissory note from Gray for $1,000 to compensate the Respondent for his expenditures. The Respondent ultimately accompanied Mrs. Wilkes to a first meeting of creditors at Gray's bankruptcy proceedings. The Respondent has not previously or subsequently engaged in business in the manner that he did in this transaction. He is a reputable contractor and is contrite about the role that he played in the transaction.
Findings Of Fact The Respondent is a certified general contractor holding license number CG C016888. The Petitioner is an agency of the State of Florida charged with enforcing the provisions of Chapter 489, Florida Statutes, regulating the licensure and practice status and standards of building contractors in the State of Florida and enforcing the disciplinary provisions of that chapter. On December 14, 1981, Respondent contracted with Mr. and Mrs. Frank J. Sullivan to build the Sullivans a home in Sarasota County, Florida. Those parties entered into a contract whereby the Respondent was to be paid the actual cost of construction including all labor and materials plus a commission in the amount of 8 percent of the actual cost of construction, provided however, that the total contract price would not exceed $49,000, including actual costs and commission. In January, 1982, Respondent commenced work constructing the home. The Respondent worked on the home for several months and then abruptly ceased and abandoned construction without explanation on May 14, 1982. At this time the house was approximately 70 percent complete. At the time the Respondent ceased work on the project he had already been paid $47,362.29 or approximately 97 percent of the total contract price agreed to by the parties. The Sullivans thereafter had to pay $10,633.53 to subcontractors and materialmen who had been hired by the Respondent to supply labor and/or materials to the house, at the Respondent's direction, prior to his ceasing construction and leaving the job. Additionally, the Nokomis Septic Tank Company, Inc., the subcontractor who installed the septic tank, was owed $1,180.07 by the Respondent for the installation of the septic tank, which amount was to have been paid out of the total $49,000 contract price. The Respondent failed to pay Nokomis Septic Tank Company, which then filed a mechanic's lien on the property. In order to remove this cloud on their title to the property and avoid foreclosure of the lien, the Sullivans were forced to pay the $1,180.07 amount of the lien. In addition to more than $10,000 paid to subcontractors who had already performed labor or supplied materials to the job before the Respondent left it, the Sullivans had to obtain a loan from their bank in order to finish the project. The contracted for items which the Respondent had left undone (approximately 30 percent of the construction) required them to expend $18,662.04 to complete the dwelling in a manner consistent with the contractual specifications. The items which remained to be constructed or installed are listed on Petitioner's Exhibit 7 in evidence. The remaining amount of contract price which the Respondent was due upon completion of the job would have been $1,737.71. With this in mind, as well as the fact that the Sullivans had to pay in excess of $10,000 to defray already outstanding bills to subcontractors for labor and materials already furnished and then had to obtain a loan in order to pay $18,662.04 in order to complete the house, and it being established without contradiction that the Respondent was unable to make his payroll at the point of leaving the job, the Respondent obviously used substantial amounts of the funds he received from the Sullivans for purposes other than furthering the construction project for which he contracted with the Sullivans. Concerning Count II, on December 22, 1981, Frederick Berbert doing business as Venice Enclosures of Venice, Florida, contracted with Mr. Emory K. Allstaedt of Grove City, Florida, Charlotte County, to build an addition to Mr. Allstaedt's mobile home. The contract specified a price of $4,952 for which Berbert was required to construct a 12-foot by 20-foot enclosure or porch. Mr. Allstaedt never did and never intended to contract with the Respondent, Mr. Martin, rather, his contract was only with Frederick Berbert. Mr. Berbert was a registered aluminum specialty contractor in Sarasota County. He was not registered or licensed to practice contracting in Charlotte County where Mr. Allstaedt lived and where the porch was to be constructed. On December 28, 1981, the Respondent obtained building permit number 72030 from the Charlotte County Building and Zoning Department to construct a "Florida room" for Mr. Allstaedt's mobile home, the same room to be constructed by Mr. Berbert. Under Charlotte County Ordinances in evidence as Petitioner's Exhibits 13 and 13A, only a properly licensed "A", "B" or "C" contractor or a registered aluminum contractor can perform this type of job. The Respondent was appropriately licensed for this type of work in Charlotte County, but Mr. Berbert was not and thus could not obtain the permit in his own right. The Respondent's only connection with this job was obtaining the permit in his own name as contractor of record and in performing some minor work in replacing some damaged sheets of paneling shortly after the construction of the room addition and after the performance of the contract by Berbert. Though the Respondent listed himself as contractor in order to be able to obtain a building permit for the job, he never qualified as the contractor of record nor "qualified" Mr. Berbert's firm with the Construction Industry Licensing Board. Both Mr. Berbert and the Respondent were aware that Mr. Berbert could not legally perform contracting in Charlotte County at the time the Respondent obtained the building permit on Berbert's behalf.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED: That the contractor's license of Jack A. Martin be suspended for a period of ten (10) years, provided however, that if he makes full restitution to the Sullivans of all monies they expended for labor, materials and permits to enable them to complete the work he had contracted to perform, within one year from a final order herein, that that suspension be reduced to three (3) years after which his license should be reinstated. DONE and ENTERED this 27th day of April, 1984, in Tallahassee, 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 30th day of April, 1984. COPIES FURNISHED: Charles P. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Jack A. Martin 305 Park Lane Drive Venice, Florida James Linnan, Executive Director Florida Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether petitioner Department of Professional Regulation, Florida Construction Industry Licensing Board, ("Department") should revoke, suspend, or otherwise discipline respondent David L. Mormann's registered residential contractor's license on charges that he (1) was the subject of disciplinary action by a local board; (2) willfully or deliberately disregarded and violated local building codes or laws; (3) failed to comply in a material respect with the provisions of Chapter 489, Florida Statutes; and (4) acted in the capacity of a contractor under a name other than on his license. Whether the Department should revoke, suspend, or otherwise discipline respondent John S. Brengle's registered general contractor's license on charges that he (1) knowingly combined or conspired with an unregistered or uncertified person by allowing such person to use his registration with the intent to evade the provisions of Chapter 489, Florida Statutes; (2) acted under a name other than on his registration, with the intent to evade the provisions of Chapter 489, Florida Statutes; (3) failed to comply in a material respect with the provisions of Chapter 489, Florida Statutes; and (4) aided or abetted an unregistered or uncertified person to evade the provisions of Chapter 489, Florida Statutes.
Findings Of Fact Revocation of Respondent Mormann's Local License At all times material hereto, respondent Mormann was licensed as a registered residential contractor, having been issued license no. RRA031419 and RR0031419 by the State of Florida. At all times pertinent to the charges, neither respondent Mormann nor respondent Brengle qualified a business known as "Dave Mormann and Associates" with the Florida Construction Industry Licensing Board. (P-1) At all times material hereto, respondent Brengle was licensed as a registered general contractor, having been issued license no. RG0002370 by the State of Florida. (P-2) On October 17, 1979, Nelson A. Perez Electric Co. obtained a final judgment for $1,841.96 (including court costs) against Erection and Maintenance Co., Inc., in the County Court of Hillsborough County, Florida. Respondent Mormann was the qualifying agent for Erection and Maintenance Co., Inc. The judgment arose out of respondent Mormann's construction activities and his failure to pay for labor and materials. (Testimony of Perez, P-1, P-7) On October 22, 1979, Nelson A. Perez Electric Co. obtained a second judgment for $1,742 (including court costs) against respondent Mormann in the County Court of Hillsborough County, Florida. This judgment also arose out of respondent's construction activities and his failure to pay for labor and materials. (Testimony of Perez, P-8) These two judgments were not (and have never been) satisfied by respondent. On October 7, 1981, respondent Mormann and his attorney met with Mr. Perez and agreed on a payment schedule for satisfying the judgments. On that date, respondent Mormann paid Mr. Perez $500 and, under the terms of the payment plan, was required to pay him $374.10 monthly, until the judgments were satisfied. Respondent Mormann made one payment on November 7, 1981, and then stopped making payments. (Testimony of Perez) Under the provisions of Section 45-78, City of Tampa Code, default by a contractor in payment for labor or materials resulting in a judgment being obtained or filed against the contractor, with the judgment remaining unsatisfied for a period of 60 days or more, is a basis for revocation or suspension of a contractor's local license, or certificate of competency. (P- 10, P-11) On October 7, 1980, Reggie Fernandez, the Acting Chief Building Inspector for the City of Tampa Department of Housing, Inspection and Community Services, Inspectional Services Division, issued a Citation, by certified mail, charging respondent Mormann with violating Section 45-78(i), City of Tampa Code, for his default in payment for labor and materials which resulted in a judgment remaining unsatisfied for 60 days or more. The Citation further advised that the Discipline Committee for the City of Tampa Unified Construction Trades Board was being notified of the charge, that respondent Mormann had ten days to file an answer with the Discipline Committee of the Construction Trades Board showing cause why his license should not be suspended or revoked, and that, upon failing to timely answer the complaint, the charges could be deemed admitted and his license would be automatically suspended, pending any hearing that the Discipline Committee, in its discretion, might order. Respondent Mormann received the Citation on October 10, 1980. (P-11) Respondent, however, failed to file an answer or any other response to the Citation. (Testimony of Anderson, P-12) On October 21, 1980, the Discipline Committee considered the charges filed against respondent Mormann, who did not appear, and voted to recommend that the Unified Construction Trades Board revoke his local contractor's license for failure to show cause why his license should not be revoked for violation of Section 45-78, City of Tampa Code. (P-12) At its November 5, 1980, meeting, the City of Tampa Unified Construction Trades Board adopted the Discipline Committee's recommendation and revoked respondent Mormann's local license. (P-13) Respondent did not receive advance written notice of the meetings held by the Discipline Committee or the Construction Trades Board relating to the charges against him. (Testimony of Mormann, Anderson) On October 21, 1981, almost a year later, respondent Mormann wrote Mr. Fernandez, the official who issued the Citation, acknowledging that his license had been suspended because of the two Nelson Perez Electric Company judgments. He attached a copy of the payout agreement which he had negotiated with Mr. Perez and explained that, because of health problems during the year, he had been unable to do anything about this matter and asked what procedures to follow to regain his local license. (P-14) At its January 12, 1982, meeting, the Unified Construction Trades Board reviewed the payment agreement attached to respondent Mormann's letter but refused to reinstate his local license until the judgments were fully satisfied. (P-15) Construction of D. J.'s Oyster Bar II On August 3, 1981, respondents Mormann and Brengle executed a document titled "Joint Venture Agreement" for the purpose of contracting to remodel the Jack-in-the-Box restaurant and converting it to D. J.'s Oyster Bar II, at 2920 East Busch Boulevard, Tampa, Florida. Under this agreement, the joint venture was named "Dave Mormann and Associates." Dave Mormann was to provide financing, construction equipment, and tradesmen for carpentry, masonry, and labor; respondent Brengle was to provide expertise and job management, trucks and equipment, insulation and sound-proofing, and subcontract management. Respondent Mormann was to carry out fiscal responsibilities and, where designated, act as job-site superintendent while respondent Brengle was to oversee construction and "inspect at each required building inspection." (Testimony of Mormann, Brengle; R-1) A month later, on September 2, 1981, respondent Mormann, under the name of Dave Mormann and Associates, contracted with Don Hulling and D. J.'s Oyster Bar II, Inc., as owners, to remodel the Jack-in-the-Box restaurant and convert it to D. J.'s Oyster Bar II, a commercial structure. The contract price was $45,700. (Testimony of Hulling; P-3) Respondent Mormann, who negotiated the construction contract, lead owner Hulling to believe that he (respondent Mormann), and another person would be the contractors responsible for the project. He assured the owner, however, that he (respondent Mormann), would be the on-site job foreman. (Testimony of Hulling) Respondent Mormann was licensed by the Florida Construction Industry Licensing Board only as a registered residential contractor. He could thus engage only in residential contracting and could do so only in the local jurisdiction whose licensing requirements he had met. 489.117(2), Fla.Stat. (1979). At the time that respondent Mormann executed and performed the contract to convert the Jack-in-the-Box restaurant to D. J.'s Oyster Bar II, his local contractor's license or certificate of competency, had been revoked. On or about October 15, 1981, respondent Brengle, a registered general contractor holding a valid local license, applied for and obtained building permit no. B-59458 authorizing conversion of the Jack-in-the-Box restaurant to D. J.'s Oyster Bar II. The permit identified Brengle and Sons, Inc., a company qualified by respondent Brengle with the Florida Construction Industry Licensing Board, as the contractor of record. (P-17) Owner Hulling, who seldom visited the construction site during the day, observed respondent Brengle working on the site once while the insulation was being installed, and once or twice before and after the insulation was installed. However, respondent Mormann is the person whom he dealt with concerning the construction project. He paid respondent Mormann $62,940.64 for work performed pursuant to the construction agreement. Itemized invoices were submitted to the owner under the name of "Dave Mormann, General Contractor." Owner Hulling also paid respondent Mormann $3,559.32 for additional work performed at D.J.'s Oyster Bar II after the completion of the project. Neither owner Hulling, nor the financing institution, paid respondent Brengle directly for any work that he performed on the property. (Testimony of Hulling; P-4, P- 5) Respondent Brengle furnished and installed the insulation at D. J.'s Oyster Bar II. (Testimony of Brengle) It was respondent Mormann who paid respondent Brengle for his services. He paid respondent Brengle a total of $950--$250 on November 20, 1981, $200 on December 10, 1981, and $500 on February 8, 1982. (Testimony of Brengle) Respondent Mormann selected and hired Terry Goins Plumbing Company, the plumbing subcontractor for the construction project. He led Terry Goins, the plumbing company owner, to believe that he (respondent Mormann) was the contractor in charge of the project. Respondent Mormann provided project specifications to Goins, supervised his work, and paid him for his services. 2/ Mr. Goins was at the construction site 22 to 25 working days--one-third of the period the project was under construction. He never saw respondent Brengle on the project site. (P-20) Respondent Brengle testified that he was on-site two or three times a week and that he, rather than respondent Mormann, actually supervised the construction project. This testimony is inconsistent with respondent Mormann's initial assurances to owner Hulling (to the effect that he, respondent Mormann, would be responsible for supervising the project); is contrary to the testimony of Mr. Goins; and--considering respondent Brengle's interest in the outcome of this case--is rejected as unworthy of belief. In fact, it was respondent Mormann who directed and supervised the construction project, and it was he who was responsible for its completion. He negotiated the construction contract, selected and hired at least one subcontractor, supervised the work in progress, reported to the owner on the project's status, executed all contractor's affidavits (which incorrectly identified him as a general contractor), applied for and accepted construction draws, and paid subcontractors for labor and materials furnished. (Testimony of Goins, Hulling; P-5a-c) The remodeling and conversion of the Jack-in-the-Box restaurant, begun in late October, 1981, was completed, to the owner's satisfaction, by January 17, 1983. (Testimony of Hulling) Subsequent to the completion of the project, respondent Mormann filed for bankruptcy under the federal bankruptcy laws.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondents' registered contractor's licenses be suspended for a period of two years for multiple violations of Chapter 489,Florida Statutes. DONE and ENTERED this 3rd day of October, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. 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 24th day of October, 1983.
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, /
Findings Of Fact The Respondent is licensed as a general contractor in the State of Florida and registered with the Florida Construction Industry Licensing Board. That agency is the agency charged with regulating the practice of contracting in the State of Florida and with monitoring the compliance of licensees with the various provisions of Chapter 489, Florida Statutes, and pertinent rules relating to licensure standards and practice standards of contractors. On April 23, 1980, one Terry Burch and Jim Goodman were operating a construction business under the fictitious name of "T. J. Associates." Neither Terry Burch or Jim Goodman, nor the entity known as T. J. Associates, was qualified or licensed with the Florida Construction Industry Licensing Board at that time, nor at times subsequent thereto which are pertinent to this proceeding. On April 23, 1980, T. J. Associates entered into a written contract with homeowners Florence Martin and her husband to remodel their home at 120 Broadview Avenue, Winter Park, Florida. The original contract was for $26,615.00 with various addenda to that contract, such that the total net contract price, with modifications, ultimately reached $40,597.00. Both the contract and the modification agreements were signed by the Martins and Terry Burch of T. J. Associates. The Respondent, Steven Shields, was not a party to any of these agreements. Mr. Burch and Mr. Goodman of T. J. Associates, obtained the Martin contract entirely through their own efforts and after obtaining the signed contract, approached the Respondent, Steven Shields, to ask him to draft blueprints for the job, also proposing that the three of them enter into some sort of partnership or other business arrangement. During the meeting at which this business was discussed, it was revealed to the Respondent that T. J. Associates was unlicensed with the Florida Construction Industry Licensing Board and the three men agreed that they would obtain proper application documents from the Board's office in Orlando for filing so as to properly qualify the company. In the meantime, the Respondent agreed to obtain from the City of Winter Park Building Department, the necessary building permits and did so. The Respondent was ultimately paid $600.00 by T. J. Associates for labor he performed on the subject project and for obtaining a building permit in his own name. The Respondent ultimately decided not to enter into a business relationship with T. J. Associates, Burch and Goodman. He did, however, work on the "Martin project" as a sort of job supervisor or foreman, performing some labor on the job and going to the job site on possibly two or three occasions during the course of the construction effort of T. J. Associates. The Respondent initially intended to use his contractor's license to properly qualify T. J. Associates with the Board and obtain the papers to do so, but after he did not enter the formal business relationship with T. J. Associates, neglected to do so, nor did T. J. Associates make any further effort to qualify itself as a contracting entity with the Florida Construction Industry Licensing Board. The Respondent did obtain the building permit for T. J. Associates for the Martin job on May 13, 1980, and obtained it under his individual name and contractor license number. T. J. Associates worked on the Martin job from May 6, 1980, to July 16, 1980. On July 16, 1980, after a dispute regarding the quality of the paint work and other matters, T. J. Associates and the Respondent stopped all work. At the time of the stoppage, the work was 90 percent complete. At the time the work was stopped, no more money was due to T. J. Associates for work already performed. The Martins, at that point, had paid T. J. Associates $35,900.00. The Martins had however, upon advice of their attorney, withheld sufficient funds at the point of cessation of work by T. J. Associates, to enable them to pay for the completion of the job by other labor and materialmen. Three subcontractors had been hired or contracted with by T. J. Associates for work which was performed by them on the Martin job. Those three subcontractors, Mr. Anthony Costa, Mr. Clyde Ray and Mr. Michael Ellis, had performed work for which they were owed, respectively, $531.00, $550.00 and $130.00. None of those three subcontractors have, as yet, been paid for these amounts. They repeatedly attempted to obtain payment from T. J. Associates, but were given no satisfaction in that regard. The Respondent never entered into any agreement or hiring arrangement with the three subcontractors involved, nor did the Respondent ever have possession or control of any funds paid from the Martins to T. J. Associates from which the subcontractors should have been paid. The Respondent only received the above- mentioned $600.00 from T. J. Associates for his services.
Recommendation Having considered the foregoing Findings of Fact and 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, therefore RECOMMENDED that the Respondent be found guilty of a violation of Section 489.129(1)(e) and (k), in that he aided and abetted an uncertified, unregistered person to evade the act and violated Subsection (k) by abandoning the project without just cause. The remaining charges in the Administrative Complaint should, however, be dismissed. In view of the violations proven, an administrative fine of $500.00 and a three (3) month suspension of his license, followed by a one (1) year period of probation is warranted. DONE and ENTERED this 22nd day of August, 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 22nd day of August, 1983. COPIES FURNISHED: Douglas A. Shropshire, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Charles E. Hoequist, Esquire 301 North Ferncreek Orlando, Florida 32803 James Linnan, Executive Director Florida Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts were found: At all times material to these proceedings, the Respondent, Victor S. Davis, held a registered general contractor's license, numbered RG 0013635 issued by the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board in April, 1973. At all times material to these proceedings, Respondent's general contractor's license, number RG 0013635, was in a delinquent status and had been in a delinquent status since July 1, 1977. Respondent failed to renew his license after June 30, 1975 but in May, 1976 made application to reinstate license number RG 0013635 which was approved and reinstated on an active status by Petitioner in May, 1976 and issued to Respondent, Victor S. Davis, qualifying Conch Construction Corp., of Key West, Florida. There was no evidence that the reinstated license was issued for Monroe County, Florida or that Respondent ever held a certificate of competency for Monroe County, Florida. At all times material to these proceedings, Respondent was an officer (Secretary) of Classic Marketing and Development, Inc. (Classic). On July 28, 1983, the Respondent, as Secretary of Classic, entered into a contract with William Dees to construct a shell home on the Dees' property located at Lot 14, Block 7, Breezeswept Estates, Ramrod Key, Florida for a contract price of $27,000.00. On September 13, 1983, William Dees applied for and obtained building permit No. 10902-A as owner/builder for the construction of the Dees's home. Construction of the Dees home began on or about September 13, 1983. Gregory H. O'Berry, President of Classic had knowledge of, and approved of, Respondent entering into contracts for construction of homes in Monroe County, Florida, including the contract with Dees. O'Berry was aware that Respondent did not hold a certificate of competency in Monroe County, Florida and that Respondent's registered general contractor's license did not cover contracting in Monroe County, Florida. O'Berry understood that Phillip A. Braeunig, a properly licensed general contractor in Monroe County, Florida, was acting as the general contractor for Classic- in the construction of homes by Classic, including the construction of the Dees home. Braeunig did not act as general contractor on the construction of the Dees' home. Respondent supervised the contraction of the Dees' home, until Respondent abandoned the construction of the Dees' home, and in performing these supervisory duties fulfilled the responsibilities of a general contractor. No other officer or authorized agent of Classic had any responsibility for the supervision of, or acted in any manner as a general contractor, in the construction of the Dees' home. Braeunig prepared and submitted to Respondent an application to qualify Classic with Petitioner using Braeunig's license but this application was never filed with Petitioner during- anytime material to these proceedings. Classic was never qualified by anyone, including Respondent or Braeunig, at any time material to these proceedings. Braeunig~acted as general contractor for Classic on the Conti home, which was in the beginning stages of Classic and prior to the Dees' job. Braeunig was brought into Classic for the purpose of acting as general contractor because of the Respondent's invalid license.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Board enter a final order Dismissing Count I of the Amended Administrative Complaint filed against the Respondent. It is further RECOMMENDED that the Board enter a final order finding Respondent guilty of the violation charged in Count II of the Amended Administrative Complaint and for such violation it is RECOMMENDED that the Board suspend the Respondent's registered general contractor's license for a period of two (2) years and assess the Respondent with an administrative fine of $500.00, stay the suspension and place Respondent on probation for a period of two (2) years, provided the Respondent pays the $500.00 fine within ninety (90) days. Respondent's failure to pay the $500.00 fine within the time specified will result in his registered general contractor's license being suspended for a period of two (2) years with the requirement that when the fine is paid and the suspension lifted, the Respondent must appear before the Board for reinstatement of his license. Respectfully submitted and entered this 3rd of December, 1985, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 3rd day of December, 1985. APPENDIX Department of Professional Regulation, Construction Industry Licensing Board v. Victor S. Davis, Division of Administrative Hearings Case No. 85-1963 Ruling on Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact No. 1 except for the statement that "Respondent's license was issued for Okaloosa County only" which is rejected as not being based upon competent substantial evidence. Hearsay alone is not sufficient to support a finding of fact. Adopted in Finding of Fact No. 1 except for statement that "said license has been delinquent since July, 1981" which is rejected as being contrary to the evidence in Petitioner's Exhibit No. 1 which shows delinquent status as of July 1, 1977. Adopted in Finding of Fact No. 3. Rejected as a conclusion of law rather than a proposed finding of fact. Considered as background information and not as a finding of faet. Adopted in Finding of Fact No. 4. Adopted in Finding of Fact No. 5. Adopted in Finding of Fact Nos. 4 and 5. Adopted in Finding of Fact Nos. 5 and 7. Adopted in Finding of Fact No. 5. Adopted in Finding of Fact No. 6. Adopted in Finding of Fact No. 6. Adopted in Finding of Fact No. 9. Adopted in Finding of Fact No. 9. Adopted in Finding of Fact No. 9. Adopted in Finding of Fact No. 9. Adopted in Finding of feet No. 10 Adopted in Finding of Fact No. 10 Rejected as a conclusion of law rather than a proposed finding of fact. Respondent did not submit Proposed Findings of Fact. COPIES FURNISHED: James Linnan, Executive Director Department of Professional Regulation Construction Industry Licensing Board P. O. Box 2 Jacksonville, FL 32202 Nancy M. Snurkowski, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Victor S. Davis 2169 North Hercules Avenue Clearwater, FL 33575 and 6290 Sandcrest Circle Orlando, FL 32819
The Issue The issue presented is whether Respondent committed the offenses alleged in the administrative complaint, and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, Respondent, John Arena, was a certified residential contractor, the qualifying agent for Classic Industries, Inc. and held license number CR C021139 from the Florida Construction Industry Licensing Board. The President and sole owner of Classic was Anthony Manganelli. Mr. Manganelli was also the manager of Classic and the principal from whom Mr. Arena received his information about the contracts entered into by Classic. On or about July 30, 1988, someone contacted Ms. Solange Gaston of Hollywood, Florida, by telephone, and asked her if her roof needed repair. The solicitor represented himself as an associate of Classic and offered to come out and inspect her roof. Ms. Gaston, believing her roof was in disrepair, agreed to have the inspection completed and entered into a contract with Mr. Carlo Mangano, representing himself as an agent of Classic, to do the repair. With Ms. Gaston's agreement, the tile on her roof was replaced with shingle roofing and certain other repairs were attempted. A letter to Petitioner from the Chief Permit Processor of the City of Hollywood, Florida indicates that no roofing permit was issued for Ms. Gaston's address. The roof was leaking prior to the repair and continues to leak. Ms. Gaston paid the complete contract price of $3,500 to Classic, but has been unable to locate Mr. Mangano or to have her roof repair completed. In her attempts to achieve satisfaction, Ms. Gaston contacted Classic and asked to speak with someone in charge. She was under the impression that she was speaking with Mr. Arena; however, she never spoke to Mr. Arena. In fact, Mr. Arena was not aware of the contract with Ms. Gaston until the instant complaint was filed against him. Mr. Arena does not know Mr. Mangano. When Mr. Arena became aware of the problem, he attempted to contact Mr. Manganelli, but was told that Mr. Manganelli had moved. Ultimately, Mr. Arena located Mr. Manganelli at a new address. According to Mr. Arena, Mr. Manganelli produced a copy of what appeared to be a contract with Ms. Gaston which has the signature of Carlo Mangano on it, but it is marked indicating that Ms. Gaston's credit was turned down. Mr. Manganelli told Mr. Arena that Classic had not undertaken the job due to the refusal of credit. With that representation, Mr. Arena was under the impression that the work had not been done, as was the custom of dealing for Classic when credit was denied. The two papers purporting to be contracts, one which Ms. Gaston acknowledged as being the one which she signed and the other being the one which Mr. Arena obtained from Mr. Manganelli as the actual contract between Ms. Gaston and Classic through Mr. Mangano, appear to be altered. Although both documents contain the same information, including the date, parties, addresses, work to be completed and price quoted, the portion of the copy indicating the price is written in Arabic numerals on Mr. Arena's copy and by words on Ms. Gaston's copy. Mr. Arena's copy also has the indication that credit was turned down on it, although the cancelled checks paid to Classic by Ms. Gaston were received into evidence. It was Mr. Arena's arrangement with Mr. Manganelli that Mr. Arena was to be informed of every contract into which Classic entered. In this way, Mr. Arena knew which sites he was to supervise. Since he was not advised about the roofing job for Ms. Gaston, he made no attempt to supervise it and after he became aware that the credit for the job had been disallowed, he was under the reasonable impression that the job was not done by Classic. Further, he did not know Mr. Mangano, nor did he believe that Mr. Mangano had the authority to bind Classic. Mr. Arena believes that Mr. Mangano may have obtained a blank contract form of Classic and misrepresented himself to Ms. Gaston as an agent for Classic. Petitioner asserted, however, that Mr. Arena, nevertheless, was responsible for the job and that Classic did perform the job. Neither Mr. Manganelli nor Mr. Mangano were present or testified at the hearing. Given Mr. Arena's demeanor at the hearing and the conflicting and altered state of the alleged contract forms, Mr. Arena's testimony is deemed credible, and the proof failed to demonstrate clearly that Classic actually attempted to repair Ms. Gaston's roof or that Mr. Arena was responsible for the attempted repair.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Florida Construction Industry Licensing Board issue a Final Order dismissing the administrative complaint filed in this case against Respondent, John Arena. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of June, 1990. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1990. COPIES FURNISHED: Robert G. Harris Department of Professional Regulation 1940 North Monroe Street Suite 341 Tallahassee, Florida 32399-0792 John D. Arena 5961 Southwest 13th Street Plantation, Florida 33317 Fred Seely Executive Director Department of Professional Regulation Construction Industry Licensing Post Office Box 2 Jacksonville, Florida 32201 Kenneth D. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 =================================================================
