Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Clyde S. Botner, was a registered specialty contractor having been issued license number RX 0043602 by petitioner, Department of Professional Regulation, Construction Industry Licensing Board (Board). Respondent is now the owner of Days Aluminum Products (DAP), a construction firm located at 4404 Devonshire Road, Tampa, Florida, but was in the process of purchasing the business when the events herein occurred. He has been licensed by the State since June 29, 1983. Botner was and still is the only state licensed contractor with the firm. Debra Tackett resides at 7302 Sequoia Drive, Temple Terrace, Florida. Tackett desired to have an aluminum carport added to her house and contacted DAP for the purpose of obtaining an estimate. Respondent visited Tackett's residence in July 1987 and gave an estimate of $7,088 to complete the job. Within a few days, another DAP representative, Scott Tarbox, met with Tackett and agreed to reduce the price to $6,000. After the contract changes were initialed by Tarbox, Tackett gave Tarbox a check for $1200 as a down payment on the work. The check was deposited to the account of DAP. The contract carries the signature of Botner as the authorized agent of DAP. On or shortly after July 18, Botner made application for a building permit with local officials butt was unsuccessful since the proposed construction was three feet beyond the setback line. This meant the structure had to be moved back three feet or a variance obtained from local zoning officials. Because Tackett preferred not to modify her structure, she requested that respondent obtain a variance. By then, Botner had put up string lines, laid boards for pouring concrete and dug some trenches. The value of this work was less than $1200. Although respondent now contends he had no authority or responsibility to do so, he agreed to make application for a variance by August 26 so that the matter could be taken before the local zoning board for final decision on September 17. However, he missed the August 26 filing deadline. Around September 15 Tackett learned that the application for a variance had not been timely filed and, in any event, it would probably be denied. Therefore, she decided "it was best to terminate" the contract. She also requested that Botner return her deposit. Although respondent promised to return the money on two occasions (September 18 and 22), he did not do so. When he did not meet the second deadline of September 22, she filed an action against Botner in small claims court the same date seeking to recover her $1200. On September 29, 1987, or a week after the small claims court action had been filed, respondent purchased a cashier's check in the amount of $1264 and had an employee, Larry Blevins, carry the check to Tackett. However, before returning the deposit, Blevins asked that Tackett sign a "release" which forbade her from making any complaints against DAP. Tackett declined to sign the release and was accordingly not given her money. By letter dated October 5, 1987 Tackett received an offer of $1263 from DAP's attorney but such payment was again conditioned upon her agreeing to "not register any complaint with any governmental or non-governmental agencies regarding (DAP)." She again declined the offer. On January 5, 1988 Tackett obtained a judgment in the amount of $1263 plus interest against Clyde S. Botner d/b/a Days Aluminum Products. To date, Botner has paid only $100 of that judgment. Botner conceded the judgment is still unpaid, except for one payment of $100, but contends Tackett has damaged his firm's reputation by filing complaints with the Better Business Bureau and the Board and obtaining a judgment in small claims court. He also contends that Tackett gave conflicting and untrue versions of what occurred to the Board investigator and the Better Business Bureau. He does not believe the judgment has anything to do with DAP or his license but instead is a purely civil matter. This is because he says the work in question could have been performed in Hillsborough County in 1987 without using his state license. Finally, he contends this proceeding is unjustified because he twice attempted to repay the money in 1987 but the customer refused his offers. There was no evidence of any prior disciplinary action having been taken against respondent.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsection 489.129(1)(m), Florida Statutes (1987) and that a fine in the amount of $750 be imposed. The other charge should be dismissed. DONE AND ENTERED this 11th day of August, 1989 in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2693 Petitioner: 1-3. Covered in finding of fact 1. Covered in finding of fact 2. Covered in finding of fact 1. Covered in finding of fact 2. 7-8. Covered in finding of fact 3. 9-11. Covered in finding of fact 4. 12-13. Covered in finding of fact 7. Rejected as being irrelevant to the issues. Covered in finding of fact 8. COPIES FURNISHED: Jack L. McRay, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Mr. Clyde S. Botner 1989. 4404 Devonshire Road Tampa, Florida 33634 Kenneth E. Easley, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Fred Seely, Executive Director Construction Industry licensing Board Post Office Box 2 Jacksonville, Florida 32202
The Issue The issue is whether the Department of Transportation (Department) properly issued a Notice of Intent to Declare Non-Responsible (Notice) to Straight and Narrow Striping, Inc. (S&NS).
Findings Of Fact The Department is the state agency responsible for coordinating the planning of a safe, viable, and balanced state transportation system. The Department relies on qualified contractors to provide services in order to meet Florida’s transportation needs. Broderick Smith owns S&NS, a company that provides maintenance services for the Department and has been a contractor for the Department since 1999. Mr. Smith entered into Contract E4M99 with the Department for sign replacement on interstate and primary roads. The date of the contract was May 4, 2012, with an award amount maximum of $250,000. Contract E4M99 incorporates the 2010 edition of the Department’s standard specifications for road and bridge construction, as amended, in accordance with a specification package. Pursuant to Contract E4M99, the Department issues work orders. The Department issued Work Order 358 to S&NS on February 24, 2014, with a completion due date of April 10, 2014, to remove and replace post signs. The signs to be removed and replaced were identified as Southbound Flamingo at Red Road split WO-13-21-AM (Flamingo Signs). S&NS was not making progress on the Flamingo Signs work order, and the Department reached out to S&NS on multiple occasions regarding the lack of progress. In March 2014, Mr. Smith discussed Work Order 358 with Courtney Drummond, the Department’s District Director of Operations, and, as a result, the work order was modified with a new start date of March 11, 2014, and a completion due date of April 25, 2014. On April 3, 2014, Chi-Yu Sheu, a contract manager for the Department’s Broward County operations, reaffirmed the terms of the contract by sending Mr. Smith an email. The email reminded Mr. Smith of the modified start and completion dates and that all other terms and conditions of the contract remained in full force and effect. The contract provided 45 days for completion of the work and further clarified that an extension of time to complete the work beyond the 45 days was denied. Mr. Sheu sent additional correspondence to Mr. Smith on April 23, 2014, two days before the completion deadline, inquiring about the status of the work and reminding him the work was due on April 25. As of that date, the existing overhead sign panels had not been removed. James Wolf, the Department’s District Four Secretary at that time, sent Mr. Smith a letter on May 1, 2014, regarding a previous letter received from him on April 21. Mr. Wolf’s letter again reaffirmed the terms of the contract and specificity of the work order. On May 20, 2014, the overhead signs had still not been removed, and Mr. Sheu sent correspondence to Mr. Smith telling him the Work Order 358 had been due to be completed on April 25 and inquiring about his intentions to finish the work. On June 11, 2014, Francis Lewis, the Department’s Broward Operations Engineer, sent a pre-notice of default to Mr. Smith informing him that the Department was considering default due to a lack of progress on Work Order 358. The pre-notice stated that as of the date of the letter, no work had been performed, even though the modified due date had been April 25. S&NS was advised that the Department would proceed with defaulting S&NS under the contract if the work was not completed by June 21, 2014. The Department issued a Notice of Intent to Default to S&NS on July 7, 2014, for failure to commence and complete Work Order 358 within the required time period, as amended, therefore violating Standard Specification 8-9.1. S&NS was given an additional ten days to demonstrate completion of the signs. After proof of completion was still not received by the Department, it issued a Declaration of Default on July 31, 2014, for failure to commence and complete Work Order 358. S&NS was informed it had committed acts or omissions that constitute default under Standard Specification 8-9.1. The specific acts or omissions specified were that Petitioner had failed to begin the work under the contract within the time specified, had failed to ensure prompt completion of the contract, and for any cause whatsoever had failed to carry on the work in an acceptable manner. Pursuant to the Takeover Agreement, the surety company, Travelers Insurance Company of America (Travelers Insurance), assumed financial responsibility for the contract. Travelers Insurance procured another contractor, Florida Safety Corporation, to complete Work Order 358. The work was completed on December 24, 2014. The Department issued a Notice to S&NS on September 30, 2014. When a contractor is found to be non-responsible, it is prohibited from bidding, subcontracting, or supplying material on any Department project for a specified period of time. S&NS filed a petition in response to the Notice. During the pendency of this proceeding, Petitioner has had the ability to bid on Department projects, and Mr. Smith testified at hearing that it had bid on projects in April 2015. S&NS took the position at hearing that the Department failed to provide the proper sign specifications to complete the work order, yet provided no evidence about how the specifications differed from what is required either by industry or the Department’s standards. Despite the Department continuously informing S&NS that it was moving towards a default on the contract and despite the numerous extensions given, Petitioner still failed to commence the sign project prior to the completion date as extended by the series of communications from Department personnel to S&NS. Petitioner made repeated reference to “proof given to the department from numerous sign manufacturers stating they would not be able to manufacturer [sic] the sign due to their back log.” Petitioner, however, failed to offer any of this proof into evidence at the hearing other than through Mr. Smith’s testimony, and, therefore, this line of proof is discredited. Mr. Smith testified that sign manufacturers informed him that the subject signs could not be available for installation in less than 65 days from the date of the order. Had the signs been ordered on February 24, 2014, the commencement date of the contract, they would have been ready for installation by May 1, 2014. This would have been within the numerous grace periods created by the Department’s notices prior to the actual Declaration of Contract Default on July 31, 2014, which was not issued until two weeks after the Notice of Intent to Default (giving S&NS one final ten-day period to perform) was issued on July 7, 2014. Petitioner had ample time to complete the project within the contract period as extended by the various steps taken by the Department prior to determining S&NS to be non- responsible. In order to avoid the possibility of a suspension due to a finding of non-responsibility, Petitioner could have requested a self-imposed or voluntary suspension from the Department. Had this been done, the Department has, in some instances, considered this like “time served” when determining whether a suspension is to be imposed and how long that suspension should last. Petitioner did not affirmatively request or offer to undergo a suspension during the pendency of these proceedings. Mr. Smith’s testimony lends supports that for a non-specified period of time from Petitioner’s challenge on October 22, 2014, to the Notice until sometime in April 2015, when he bid on one or two Department contracts, he believed he was not permitted to bid on contracts due to the Notice being issued. The evidence is not clear on this point, but Mr. Smith testified he became aware in April 2015, he was still permitted to bid on contracts and that he did at that time. He was not awarded any Department contracts at that time or at any time subsequent to that date. Despite the petition to challenge the Notice being filed with the Department on October 22, 2014, the matter was not referred to the Division until March 2, 2015, more than four months later. No explanation was given for this delay.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order upholding its determination of non- responsibility for a period not to exceed one year for Straight & Narrow Striping, Inc. DONE AND ENTERED this 4th day of September, 2015, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 2015. COPIES FURNISHED: Kimberly Clark Menchion, Esquire Department of Transportation Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 (eServed) Broderick Smith Straight and Narrow Striping, Inc. Suite 225 1830 North University Drive Plantation, Florida 33322 Trish Parsons, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 (eServed) Tom Thomas, General Counsel Department of Transportation Haydon Burns Building Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 (eServed) James C. Boxold, Secretary Department of Transportation Haydon Burns Building Mail Station 57 605 Suwannee Street Tallahassee, Florida 32399-0450 (eServed)
Findings Of Fact At all times relevant hereto, respondent, Pedro P. Landera, was a certified general contractor having been issued license number CG C005371 by petitioner, Department of Professional Regulation, Construction Industry Licensing Board (Board), in March 1973. In January 1986 the license was suspended by the Board for three years and, except for the charges pending in this proceeding, Landera would be eligible to have it reactivated in early 1989. Thus, Landera has been without authority to use his license for the last three years. Landera did not contest the Board's suspension action and, in a settlement stipulation, admitted he violated Subsections 489.129(1)(c), (d), (e), (f) and (m), Florida Statutes (1981), by certain conduct taken in December 1983. On August 11, 1986, an individual using the name of James Burke entered into a construction contract with Charlie E. Mincey, the owner of Charlie Tires Service, 1700 N. W. 79th Street, Miami, Florida. The contract, which has been received in evidence as petitioner's exhibit 4, called for Burke, "in a timely manner," to make the following additions to Mincey's tire shop: construct a 34' X 40' room onto the existing building, erect an aluminum shed across the front of the building, including a four foot concrete slab floor, and add a five foot wall across the back side of the building. Burke represented on the contract that he held license number 254514-4. However, a search of the Board's records revealed Burke held no state license. The total price for the work was $15,650. On August 13, Mincey paid Burke $3,000 as a down payment on the job. According to Mincey, Burke began work on the additions several weeks after the contract was executed and continued to do so on and off for a few months. Eventually, a concrete block wall for the 34' x 40' room was built, but it had no roof, windows, doors, electric wiring, plumbing or paint. The aluminum shed was never built nor did Burke construct a five foot wall at the rear of the building as required by the contract. During October and early November 1986 Mincey made additional payments to Burke in the amount of $3,175, 1,000, $500, $400, $300, $300, and $40. This made a total of $8,715 paid by Mincey to Burke. Despite these payments, several subcontractors came to the job site during the same time period to unload materials but requested payment from Mincey before they would release them. Mincey paid the subcontractors $2,593.64, as evidenced by receipts received in evidence as petitioner's exhibit 7. When Burke did not return to the job site, and the project was still far from completed, Mincey attempted to contact Burke but could not find him. When he left the job site for the final time, Burke gave Mincey no notice of his intention to leave the job unfinished or any reason for doing so. Burke's whereabouts are still unknown, and there is now pending an outstanding warrant for his arrest. On September 30, 1986, a building permit application was filed with the Metropolitan Dade County building and zoning department seeking a permit for work to be done on Mincey's business. The application was filled out with three different colors of ink and in more than one person's handwriting. A carbon copy of the application has been received in evidence as petitioner's exhibit 9. The document was authenticated by a permit clerk of the Metropolitan Dade building and zoning department who identified the cashier's validation stamp, issuance date and permit number affixed to the document, all being indicia that the application was received and processed by that department. Further, the clerk attested to the fact that the carbon copy was a document normally kept in the regular course of business by her department. The application carries the signature, license number and social security number of respondent. The authenticity of respondent's signature was confirmed by a questioned document examiner whose testimony has been accepted as being credible and persuasive and was corroborated by respondent's own admission that the signature was his own. The author of the remaining writings on the document is unknown. Pursuant to the above application, a building permit was issued on October 1, 1986, for the work performed by Burke. The inspection record, which has been received as petitioner's exhibit 8, reflected that the job site was inspected by a Dade County inspector on October 1 and November 12, 1986. Also, the inspection record reflected that Gila Construction Company (GCC) was the contractor on the job. GCC is a Miami firm that Landera qualified in March 1984. Its owner is Gilbert Castillo. Mincey's building remains unfinished as of this date, and he contends the value of the work is less than the $11,308 that he paid to Burke and the subcontractors. In attempting to resolve the matter, Mincey learned that Landera's license number was on the permit application, and a complaint was eventually filed with the Board. However, prior to hearing, Mincey had never seen or talked to Landera, knew nothing of GCC, and considered the business transaction to be between he and Burke. Landera denied knowing Burke or authorizing him to use his license. Also, he maintained that he has not used his suspended license since the Board's action in early 1986. He denied signing the application in question and had no explanation as to how his signature got on the application except to suggest that someone may have obtained one with his signature and then fraudulently used the same to obtain a permit. Even so, there was no reason for Landera to sign an application during this period of time since his license was under suspension. Castillo, who owns GCC, denied knowing Burke or Mincey or having any knowledge of or participation in the Mincey job.
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, that he pay a $3,500 fine, and that his license be suspended until January, 1991. DONE AND ORDERED this 10th day of February, 1989, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1989. APPENDIX Petitioner: 1-2. Covered in finding of fact 1. 3-4. Covered in finding of fact 2. Covered in findings of fact 3. and 5. Covered in finding of fact 4. Covered in finding of fact 6. Covered in finding of fact 1. Respondent: Covered in findings of fact 1 and 2. Covered in findings of fact 3 and 5. Covered in findings of fact 4 and 5. 4-5. Covered in finding of fact 8. Covered in findings of fact 2, 5 and 6. Covered in findings of fact 6 and 9. Covered in finding of fact 6. 9 Covered in findings of fact 9 and 10 COPIES FURNISHED: George W. Harrell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Luis F. DeLaCruz, Jr., Esquire 300 Sevilla Avenue Suite 313 Coral Gables, Florida 33134 Kenneth E. Easley, Esquire General Counsel 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
Findings Of Fact At all times material to this proceeding, the Respondent has been licensed as a residential contractor in the State of Florida, holding license number CR C022406, and was the licensed contractor qualifying Rothberg Homes, Inc. On or about May 21, 1986, the Respondent entered into a contract to build Mr. and Mrs. Frank Sargent a new home in Palm Harbor, Florida, for $95,670. The home was to be completed before November 15, 1986, so that the Sargents could qualify for a lower interest rate. The Respondent relied heavily on his construction superintendent, Frank Jackson, to accomplish the work in a timely and workmanlike manner. The Respondent was responsible primarily for selling contracts and for taking care of the company finances. To comply with the technical requirements of the contract, the Respondent had construction begin in July, 1986, with the clearing of the lot. But foundation footers were not dug and poured until about a month later, and construction proceeded at a slow pace (then it went on at all.) The Sargents registered numerous complaints to Jackson about the slow pace and some complaints to the Respondent about Jackson, but nothing was done to speed construction along. In October, 1986, the Sargents, who were on the job site daily, began hearing complaints from suppliers and subcontractors that the Respondent was slow paying them but was told that he eventually was coming through with the payments due. By November, the Respondent was not making payments at all in some cases. Also in October and November, Jackson was in the process of opening his own business (not construction-related) and was devoting less and less time to the Sargent job. November 15, 1986, approached, and it became obvious that the deadline would not be met. The Sargents and the Respondent met and agreed to extend the deadline one month to December 16. On December 11th, the Sargents again reminded the Respondent of the deadline and its importance to them, but the December 16 deadline also came and went with the house only about 70 percent complete. In December, Jackson quit altogether. The Sargents complained to the Respondent, who promised to replace Jackson but never did. Because the Respondent had stopped paying subs and suppliers, they refused to do any more work, and the Sargents wound up having to pay some of them out of their own pockets in order for work to continue. In March 1987, some of the subs and suppliers also filed claims of liens for unpaid work which the Sargents had to clear out of their own pockets in order to close the purchase of the house. Mr. Sargent himself did some of the work, some of which would have been warranty work if the Respondent had paid his bills on time, to save some additional expense caused by the Respondent's failure to keep current on his accounts with the subs and suppliers and to avoid some of the additional hassle of trying to persuade an unpaid sub or supplier to do warranty work. On March 16, 1987, the Sargents met with the Respondent to arrive at an accounting for purposes of the upcoming closing. They agreed that the Sargents should receive the last construction loan draw of about $9,500 to compensate them for payments they made that should have been made by the Respondent and that the Respondent still owed them $6,000, which the parties agreed would be the subject of a promissory note from the Respondent to the Sargents. (This does not even account for the Sargents being shortchanged when a three-foot roof overhang for which they had contracted turned out to be only a two-foot overhang.) The Respondent has paid the promissory note.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Construction Industry Licensing Board enter a final order finding the Respondent, Daniel S. Rothberg, guilty of violating Section 489.129(1)(h) and (m), Florida Statutes (1987), and imposing an administrative fine in the amount of $1,500. RECOMMENDED this 19th day of December, 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 19th day of December, 1988. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Daniel S. Rothberg 624 Charisma Drive Tarpon Springs, Florida 34689 Daniel S. Rothberg 196 Mayfair Circle Palm Harbor, Florida 34684 Warren A. Wilson, III, Esquire 2101 U.S. Highway 19 North Suite 201 Palm Harbor, Florida 33563 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
