Recommendation It is recommended that the Florida Construction Industry Licensing Board dismiss the Respondent from further responsibility to answer to the Administrative Complaint. DONE and ENTERED this 25th day of August, 1976, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry S. Sinoff, Esquire 1010 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 John W. Tanner, Esquire Suite One. 434 N. Halifax Avenue Daytona Beach, Florida 32018
The Issue The issues are whether Respondent committed the several violations of Sections 489.129(1)(h)2.,(h)3.,(j),(k), and (n), Florida Statutes (1997), for the reasons stated in the respective Administrative Complaints and, if so, what, if any, penalties should be imposed. (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of contracting. Respondent is licensed as a certified general contractor pursuant to license number CG C059414. At all relevant times, Respondent was the qualifying agent for Fred T. Garrett Construction, Inc. ("FTG"). As the qualifying agent, Respondent was responsible for all of FTG's contracting activities in accordance with Section 489.1195, Florida Statutes. Respondent failed to obtain a certificate of authority for Fred T. Garrett Construction, Inc., as required by Section 489.119(2), Florida Statutes. The St. Cyr Case On or about August 21, 1998, Respondent entered into a contract with Louis L. St. Cyr to construct an addition to the residence located at 201 South Bel Air Drive, Plantation, Florida. The contract price was $50,000. Although Mr. St. Cyr paid $2,500 to Respondent, Respondent failed to commence work and canceled the project, thereby abandoning it without just cause and without proper notification to Mr. St. Cyr. The contract did not permit Respondent to keep the $2,500 paid by Mr. St. Cyr, and Respondent failed to refund the payment within 30 days after abandonment. Out of the $2,500 he received from Mr. St. Cyr, however, Respondent paid $1,600.00 to the architect before abandoning the project. Thus, the net amount that Respondent owes to Mr. St. Cyr is $900. Petitioner incurred a total of $1,092.28 in investigative costs relating to the St. Cyr case. The Forney Case On May 22, 1998, Respondent, who was doing business as FTG, entered into a contract with Mr. Warren Forney for the construction of a two-bedroom, one-bath addition to the residence located at 1698 Northeast 33rd Street, Oakland Park, Florida. The contract price was $32,500. The contract with Mr. Forney did not contain a written statement explaining the customer’s rights under the Construction Industries Recovery Fund, as required by Section 489.1425(1), Florida Statutes. On July 7, 1998, Respondent obtained permit number 98-050297 from the Oakland Park Building Department. Construction commenced on or about July 7, 1998, and continued sporadically until October 29, 1998, when Mr. Forney dismissed Respondent for failure to timely complete the project. The Oakland Park Building Department issued notices of violation against the project on August 3, September 11, and October 14, 1998, for various building code violations. Mr. Forney was forced to obtain a homeowner’s permit and subsequently hired a subcontractor to complete the work. Mr. Forney paid Respondent approximately $29,250 before relieving Respondent of his duties. To complete the project, Mr. Forney paid a total of $48,746.52, which was $15,396.52 over and above the original contract price. Petitioner incurred a total of $2,190.78 in investigative costs relating to the Forney case. The Kong Case In or around January 1998, a contractor named Lakeview Concepts hired Respondent to perform demolition work for the Kong dry cleaning store project on the property located at 5171 South University Drive, Davie, Florida. On or about June 17, 1998, permit 98-00002349 was issued to Respondent to perform alterations on commercial property located at 5171 South University Drive, Davie, Florida. Respondent, however, did not yet have a contract with the owner for this work. The next month, on or about July 30, 1998, Respondent, who was doing business as FTG, entered into a contract with Shek Kong to complete the dry cleaning store project at 5171 South University Drive, Davie, Florida, for the contract price of $22,300. Shek Kong made payments to Respondent totaling $16,000. Respondent’s work was of poor quality, however, and on or about November 6, 1998, he ceased work, though the project had not been completed. On or about November 14, 1998, Douglas Frankow, license number CB C052960, gave Mr. Kong an estimate of $20,562 to complete the project. Thereafter, on or about June 30, 1999, Mr. Kong contracted with George Settergren, another licensed contractor, to complete the project for a contract price of $27,956. On December 9, 1999, in Case No. 98-020065 08, the Circuit Court, Seventeenth Judicial Circuit, Broward County, Florida, rendered a Final Judgment against Respondent and in favor of Mr. Kong. This judgment awarded Mr. Kong the total amount of $28,693.30, plus 10 percent interest per annum. Petitioner incurred a total of $2,502.78 in investigative costs relating to the Kong case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Construction Industry Licensing Board enter a Final Order finding Respondent guilty of violating Sections 489.129(1)(h)2., (h)3., (j), (k), and (n), Florida Statutes, imposing administrative fines in the aggregate amount of $3,700, assessing investigative costs in the aggregate amount of $5,785.84, placing Respondent's license on probation for a period of four years from the date the Final Order is entered by the Board, and awarding payment of restitution to each customer as follows: (1) to Warren Forney, the amount of $15,396.52; (2) to Shek Kong, satisfaction of the unpaid civil judgment in the amount $28,693.30, plus 10 percent interest accrued thereon; and (3) to Louis L. St. Cyr, the amount of $900. DONE AND ENTERED this 15th day of February, 2002, in Tallahassee, Leon County, Florida. _________________________________ JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 2002.
Findings Of Fact At all times material to these proceedings, the Respondent, David R. Knight, held a registered general contractor's license numbered RG 007907 issued by the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board initially in July, 1968. Respondent's license is presently in an inactive status for failure to renew but renewal can be accomplished by Respondent paying the required renewal fee only. On May 13, 1983, Respondent contracted with Joseph Cobb to remodel a house in Milton, Florida. The contract price was $23,800.00. The Respondent began the remodeling and when the project was approximately 50 percent completed, left the site. Joseph Cobb, on numerous occasions, offered to work with the Respondent in any way to finish the project, but the Respondent failed to return. Joseph Cobb paid Respondent $19,100.00 from May 14, 1983 through June 23, 1983. In addition, although the contract required Respondent to pay for all supplies and materials, Cobb paid $2,300.98 for supplies and material used in the remodeling. Respondent failed to pay Gary Rich Plumbing for the plumbing work done on the Cobb residence. Joseph Cobb was forced to pay Gary Rich $1,200.00 in order to avoid a lien being filed on his home. Respondent was not licensed to contract in Milton, Santa Rosa County, Florida, when he contracted with Joseph Cobb to perform remodeling. In June, 1982, Respondent contracted with Pearlie Rutledge to remodel a house at 608 North D Street, Pensacola, Florida, Escambia County. The contract price was $17,000.00. The Respondent began the construction without obtaining a building permit which is in violation of Section 106 Standard Building Code as adopted by the City of Pensacola Ordinance 81-83. Respondent deliberately and in a hurry left the site of construction when the building inspector appeared on the job. The Respondent was not licensed in Escambia County or the City of Pensacola to practice contracting. Pearlie Rutledge paid Respondent $5,000.00 which the Respondent failed to return when the remodeling was stopped by Charles Humphreys, Housing Inspector for the City of Pensacola. Pearlie Rutledge obtained a Final Judgement against the Respondent for $4,557.00 which has not been paid by the Respondent. Respondent's "81-82' and "82-83", Okaloosa County Occupational License was issued to David Knight doing business as "Your Way Construction." However, there was no evidence presented at the hearing that Respondent ever contracted in the name of "Your Way Construction." In fact there is evidence that during the year 1983 he contracted with Cobb as David Knight, General Contractor and not as David Knight, General Contractor, d/b/a Your Way Construction. (See Petitioner's Exhibit No. 1.)
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Board enter a final order Dismissing Counts II, V and VI of the Administrative Complaint filed against the Respondent. It is further RECOMMENDED that the Board enter a final order finding Respondents guilty of the violation charged in Counts I, III and IV of the Administrative Complaint filed against the Respondent and for such violation it is RECOMMENDED that the Board revoke the Respondent's registered general contractor's license numbered RG 0007907, to practice contracting in the State of Florida Respectfully submitted and entered this 9th day of January, 1986, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 9th day of January, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 84-3836 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 Petitioner to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Exhibit 1). 3. Adopted in Finding of Fact 3. 4. Adopted in Finding of Fact 4. 5. Adopted in Finding of Fact 5. 6. Adopted in Finding of Fact 6. 7. Adopted in Finding of Fact 7. 8. Adopted in Finding of Fact 8. 9. Adopted in Finding of Fact 9. 10. Adopted in Finding of Fact 10. 11. Adopted in Finding of Fact 11. 12. Adopted in Finding of Fact 12. Adopted in Finding of Fact 2 except for contract amount which should have been $23,800. (See Petitioner's Respondent Did Not Submit Any Proposed Findings of Fact COPIES FURNISHED: James Linnan, Executive Director Department of Professional Regulation Construction Industry Licensing Post Office Box 2 Jacksonville, Florida 32202 Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. David R. Knight 1215 East Hayes Street Pensacola, Florida 32503
The Issue Whether or not the Respondent, Charles E. Sullivan, abandoned the construction project of his customer, Otto Kipar at a time when he had received 98 percent of the contract price and completed approximately 75 percent of the job, and whether or not such abandonment constituted a violation of Section 468.112(2)(h), Florida Statutes.
Findings Of Fact This cause comes on for consideration based upon the administrative complaint filed by the Petitioner, State of Florida, Department of Occupational Regulation, Florida Construction Industry Licensing Board, against the Respondent, Charles E. Sullivan, d/b/a Suwannee Roofing Company. The Petitioner is an agency of the State of Florida empowered to administer and regulate those individuals who hold various licenses with the Florida Construction Industry Licensing Board. Charles E. Sullivan, d/b/a Suwannee Roofing Company holds a registered roofing contractor's license and the number is RC 18162. In May 16, 1977, Otto Kipar, a resident of Suwannee County, Florida, entered into a contract for the Respondent to perform certain roofing work and associated to the roofing. The terms and conditions of this contract may be founded in the Petitioner's Exhibit 2, admitted into evidence. The price of the contract was in the amount of $2,500, to be paid by Mr. Kipar in an installment of $2,450 when the roofing was finished and a $50 balance when the chimney was flashed. Among other things, the contract called for the setting of the trusses on the roof, sheeting the roof with plywood, running facia boards, putting up the jack molding and putting on roofing shingles. The work was to be done by Suwannee Roofing, which is owned by the Respondent, Charles E. Sullivan, and all of the materials were to be furnished by Mr. Kipar, with the exception of the shingles and the staples necessary to nail the shingles into the plywood sheeting. The Respondent's employees went to the job site and started to install the roof. On June 24, 1977, Berl Wilson, a building inspector for Suwannee County, Florida, went to the job site and inspected the roof. He determined that the work on the roof was 50 percent completed. He found the trusses up and the sheeting and shingles installed. However, he felt that the roof construction was unsatisfactory and that the roof would eventually fall in. He immediately tried to contact Mr. Sullivan, the Respondent, and was able to speak to him on June 27, 1978. At that point, Mr. Sullivan indicated that he would work the matter out with the owner, Mr. Kipar. In August, 1977, the Respondent hired some individuals to go to the job site and make adjustments to the roof, so that it would structurally meet the necessary building standards of Suwannee County, Florida, and comply with his contract with Mr. Kipar, as to that element. At the behest of Mr. Kipar, the building inspector Wilson returned to the job site in August or September 1977, and discovered that the roof was not shingled over 25 percent to 35 percent of the roof area. In that particular part of the roof, only the felt paper was installed on the sheeting. This caused the roof to fail to meet the Southern Building Code, in terms of requirements of that code. It was also in violation of the contract conditions which called for the Respondent to install the shingles over the entire roof, not just part of it. When confronted with the fact of the incompleted roof, the Respondent told Wilson that he had spent over $600 in trying to make the necessary adjustment to the trusses and that he felt no obligation to spend any other money on the Kipar job. Therefore, the job was left unfinished and when Mr. Wilson saw the job site on March 22, 1978, he found it in the same state as had been indicated in August/September 1977, in that the roof was still 25 percent to 35 percent without shingles. The Respondent and his employees did not return to the job site to complete the roofing and Mr. Kipar had to make those arrangements himself. This abandonment on the part of the Respondent came, notwithstanding the fact that Mr. Kipar, in accordance with the contract had paid the Respondent $2,450 on May 30, 1977, as shown by Petitioner's Exhibit number 3, admitted into evidence. In summary, the Respondent was paid 98 percent of the amount of the contract, which constituted the full amount of payment with exception of $50 for flashing the chimney, and the Respondent abandoned the job when 25 percent to 35 percent of the shingles remained to be installed. This abandonment constitutes cause for disciplinary action in accordance with Section 468.112(2)(h), Florida Statutes, which states: ... (h) Abandonment of a construction project in which the contractor is engaged or under contract as a contractor. A project is to be considered abandoned after 90 days if the contractor terminates said project without notification to the prospective owner and without just cause. Abandonment has been demonstrated here because the Respondent did not work on the roof after the period of August/ September, 1977, and as stated before the roof was missing 25 percent to 35 percent of the necessary shingles at that time. In addition, the Respondent failed to notify the owner of this abandonment and the abandonment was without just cause.
Recommendation It is recommended that the Petitioner, State of Florida, Department of Professional Occupation Regulations, Florida Construction Licensing Board, suspend the Respondent's, Charles E. Sullivan's roofing contractor's license, RC18I62, for a period of one year. DONE AND ENTERED this 29th day of September, 1978, in Tallahassee, Florida. COPIES FURNISHED: Michael Egan, Esquire 217 South Adams Street Tallahassee, Florida 32301 Charles E. Sullivan Suwannee Roofing Company Post Office Box 999 Live Oak, Florida 32060 CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building MAILING ADDRESS: 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are made: At all times material to this proceeding, Respondent Wilmon Ray Stevenson was licensed as a registered building contractor in the state of Florida, holding license numbers RB 0035005 and RB A035005. License number RB 0035005 was issued on an active status qualifying an Individual in March 1987 and is still in effect. License number RB 0035005 replaced license number RR 0035005 issued in December, 1980. License number RB A035005 was issued on an active status qualifying Yankee Construction, Inc. d/b/a Olympic Homes of Citrus County (Olympic) in June 1987 and replacing license number RR A035005 issued in August 1981. In October, 1988 Respondent submitted a change of status application which was not acted upon by Petitioner until February, 1989 when it was deleted. However, Petitioner's file (Petitioner's Exhibit 1, page 2) indicates the license was in effect only until October, 1988. The Marion County Building Department was advised of this status change in September, 1988. Findings As To Case No. 90-1637 On April 16, 1988, Frank and Margaret Orkwis entered into a contract with Olympic to construct a home for $37,900 which was later modified, increasing the contract price to $39,363.00. On July 26, 1988 a permit for the Orkwis job was obtained from the Marion County Building Department in accordance with the Respondent's letter dated January 25, 1985 authorizing certain individuals to "pull" permits on his license. There was a total of $27,583.20 paid to Olympic on the Orkwis contract which included $27,483.20 paid by draw schedules and $100.00 as a down payment. Olympic stopped work on the Orkwis home sometime around November 27, 1988 and failed to complete the work under the contract. Olympic gave no notice to Orkwis that it intended to terminate the work on the Orkwis job. In fact, Olympic kept putting Mrs. Orkwis off about completing the job until sometime in late January, 1989 or early February, 1989 when she decided to get a permit and complete construction. Olympic terminated the Orkwis job without just cause. The following liens were recorded against the Orkwis property for the failure of Olympic to timely pay for materials and labor furnished to Olympic for the Orkwis's job in accordance with Orkwis contract: (a) Florida A/C Sales and Services, Inc., filed December 13, 1988 and; (b) Florida Forest Products, Inc. filed December 15, 1988. The labor and materials had been furnished between October 24, 1988 and November 22, 1988. Olympic was contacted by Mrs. Orkwis concerning the liens, with no response. However there was insufficient evidence to establish that the liens had not been removed from the property, by payment or bond, within 30 days after the date of such liens. Sometime in early 1989, Mrs. Orkwis obtained a permit and she and her husband completed the home. Although Mr. Orkwis had obtained an estimate of $27,050.00 from a contractor to complete the home, she and her husband invested 466.5 hours of their time and $10,340.00 for materials to complete the home. In addition to the material, a reasonable amount for labor to complete the home would be $10,000.00. Findings As To Case No. 90-1889 John J. and Josephine Grillo and Madeline Chapman entered into a contract with Olympic for construction of a home on June 11, 1987. A permit was obtained for the Grillo/Chapman home under Respondent's license. The Grillo/Chapman home was completed and a certificate of occupancy issued January 13, 1989. Olympic was paid in full under the contract. Before the expiration of the one-year warranty under the contract, Olympic was advised of certain problems with the construction which Olympic attempted to correct. It is unclear whether the problems were satisfactorily corrected by Olympic but it appears that the only complaint not resolved was a water stain on the carpet that was the result of water seeping in under a door. Respondent was not aware of these problems until after the expiration of the one-year warranty and upon learning of the problems, commented that he was not obligated since the warranty had expired. There was insufficient evidence to establish that the problems were not corrected in accordance with contract. Findings As To Case No. 90-1890 Veronica McPherson entered into a contract with Olympic on March 1, 1989 to construct a home for the contract price of $36,450.00 which was later modified increasing the contract price to $37,775.00. All permits were obtained under the Respondent's license pursuant to a letter dated January 15, 1985 authorizing certain individuals to "pull" permits under Respondent's license. McPherson paid $26,442.50 to Olympic pursuant to a draw schedule in the contract as the home was being constructed. Additionally, McPherson paid a $100.00 down payment. All work performed by Olympic pursuant to the McPherson contract was prior to November 22, 1988. The exact date of termination of work is uncertain. Olympic notified McPherson that it had terminated work and would not complete construction of the home. The exact date of this notification is uncertain. There is no evidence that notice was not given within 90 after termination of work. Olympic terminated work without just cause. McPherson paid a roofing contractor $998.00 to complete the roof on her unfinished home in order to protect the interior. McPherson was financially unable to complete construction of the home. A reasonable estimate to complete construction of the McPherson home at the time work ceased would be $20,000.00. On December 15, 1988 Florida Forest Products, Inc. recorded a lien on December 15, 1988 against the McPherson property for building materials furnished to the McPherson job on order of Olympic on October 24, 1988 for construction of the home pursuant to the McPherson contract in the amount of $1,450.08. There was insufficient evidence to establish that this lien had not been removed from the McPherson property, by payment or bond, within 30 days after the date of such lien. There were three other claims of liens for labor and materials furnished to the McPherson job on order of Olympic between October 19, 1988 and December 2, 1988 for construction for the home pursuant to the McPherson contract as follows: (a) Florida A/C Sales and Services, Inc. dated December 8, 1988 for $1,059.00; (b) Masons Concrete of Crystal River dated December 14, 1988 for $354.97 and (c) Panning Lumber Company, a Division of Wheeler Consolidated, Inc. for $2,284.13. There is no evidence that any of the above liens were ever recorded against the McPherson property. Likewise, there is no evidence to establish that these liens had not been removed from the McPherson property, by payment or bond, within 30 days after the date of such lien, if in fact they were recorded. General Findings Respondent was advised by Larry Vitt in February, 1988 that Olympic was having financial problems. Respondent never supervised the financial aspects of Olympic. Respondent did not participate in the contract process or supervision of the construction of homes contracted to be built by Olympic. More specifically, he did not participate in the contract process or the supervision of the construction of the Orkwis, McPherson or Grillo/Chapman homes. Respondent's main purpose in being involved with Olympic was to use his license to qualify Olympic and to contract all of Olympic's concrete block work. In March, 1989 Respondent advised the Marion County Building Department that no one was authorized to "pull" permits under his license. However, at no time did Respondent withdraw the permits for the Orkwis and McPherson jobs that had been issued under his license. The record is clear that Respondent did not understand his relationship with Olympic nor did he understand the responsibility he incurred when he used his license to qualify Olympic. However, his inexperience or ignorance in this regard does not relieve him of his responsibility to those whose homes were built or not completely built pursuant to a permit issued under his license.
Recommendation Having considered the foregoing Findings of Facts and Conclusions of Law, the evidence of record, the demeanor of the witnesses and the disciplinary guidelines set out in Chapter 21E-17, Florida Administrative Code, it is RECOMMENDED: That the Board enter a final order finding Respondent guilty of violating Section 489.129(1)(k) and (m), Florida Statutes, and for such violations it is Recommended that the Board assess the Respondent with an administrative fine of $2,500.00. It is further Recommended that Counts I and II for the Administrative Complaint in Case Nos. 90-1637, 90-1889, and 90-1890 be Dismissed. DONE and ORDERED this 24th day of October, 1990, 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 24th day of October, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-1637 The following constitute my specific rulings pursuant to Section 120.59(20, Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Rulings of Proposed Findings of Fact Submitted by the Petitioner 1. Covered in Conclusions of Law. 2.-8. Adopted in Findings of Fact 1, 2, and 3. 4.-6. Adopted in Findings of Fact 15, 16, and 17, respectively. 7. Adopted in Findings of Fact 19 and 20, but modified. 8.-12. Adopted in Findings of Fact 18, 4, 5, 6, and 8, respectively. 13.-14. Adopted in Findings of Fact 9 and 10, respectively, but modified. Adopted in Findings of Fact 21 through 25. Restatement of testimony; not stated as a Finding of Fact but see Findings of Fact 10 and 14. Adopted in Findings of Fact 13 through 15. Adopted in Findings of Fact 16, but modified. Rulings of Proposed Findings of Fact Submitted by Respondent 1. Covered in Preliminary Statement. 2.-8. Adopted in Findings of Fact 1, 2, 3, 3, 15, 15, and 16, respectively. 9. Adopted in Findings of Fact 19 and 20. 10.-11. Adopted in Findings of Fact 18 but modified. Adopted in Finding of Fact 4. Adopted in Findings of Fact 4 and 6. Adopted in Finding of Fact 5. Adopted in Findings of Fact 8 and 9. 16.-20. Adopted in Findings of Fact 7, 7, 11, 13 and 14, respectively, but modified. Not material. Adopted in Finding of Fact 3, but modified. Not material. Copies furnished to: Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 G. W. Harrell, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Fred A. Ohlinger, Esquire P.O. Box 1007 Beverly Hills, FL 32665
Findings Of Fact At all times material to this proceeding Respondent was a registered building contractor in the State of Florida having been issued license number RB 0009164. At no time material to this proceeding was Domingo Alonzo (a/k/a Domingo Alonzo) registered, certified or otherwise licensed by the Florida Construction Industry Licensing Board. Respondent and Alonzo signed and submitted a proposal to Myron M. Gold and Roberta Fox for remodeling and additions to their residence located at 1550 Zuleta Avenue, Coral Gables, Florida in accordance with plans prepared by Frese - Camner Associates on file with the City of Coral Gables, Florida, File No. 2897 for a contract price of $65,940.00 with draw schedules attached. On December 6, 1982, Myron M. Gold and Roberta Fox (Homeowners) accepted the Proposal (Contract). On December 6, 1982, the Homeowners paid Respondent and Alonzo jointly $3,297.00 in accordance with the contract whereby they were to receive 5 percent of the contract amount as a down payment upon signing. The draw schedule provided for a 10 percent retainage from each draw which was to be paid to Respondent and Alonzo upon completion and the issuance of a certificate of occupancy. On December 21, 1982 the Homeowners paid Respondent and Alonzo jointly $2,025.00 which represented a draw on Schedule I - Item 3 for $1,350.00, Schedule II - Item 2 for $360.00 and Item 5 for $315.00. On December 17, 1982 the Homeowners and Respondent filed the affidavit required by ordinance with the City of Coral Gables for the purpose of having a building permit issued covering the work under the contract. 9. On January 19, 1983 Respondent using his building contractors license applied for building permit to cover the work anticipated under the contract and on the same day was issued building permit, No. 28214. Under the contract the Homeowners were to pay for the building permit and the bond required by the city. On January 26, 1983 the Homeowners paid Respondent and Alonzo jointly $3,000.00 which along with a payment on January 27, 1983 of $500.00 and January 31, 1983 of $544.60 represented a draw on Schedule I - Item 2 for $405.00, Item 5 for $1,260.00, Item 6 for $1,547.10 and Item 13 for $832.50. All payments from December 6, 1982 through January 31, 1983 under the contract by the Homeowners totaled $9,366.50 and were paid jointly to Respondent and Alonzo. On February 4, 1983 Respondent and Alonzo entered into an agreement, prepared by Myron Gold in the law office of Gold and Fox, whereby the Homeowners were to pay the balance of the funds remaining under the contract to Alonzo individually. After this date all payments were made to Alonzo. It was the Homeowners understanding after the February 3, 1983 agreement that Respondent would still be responsible for the supervision of the construction although they never saw Respondent again until October 1983. Edward Borysiewicz testified that he dealt with Respondent during March 1983 when he made the floor slab inspection on March 3, 1983 and the columns inspection on March 14, 1983. The record is clear that shortly after the agreement on February 3, 1983 Respondent no longer came to the construction site and supervised the work of Alonzo. On February 8, 1983 the Homeowners paid Alonzo $3,060.00 which represented a draw on Schedule I - Item 1 for $810.00, Item 5 for $1,417.50 and Item 13 for $832.50. On February 28, 1983 the Homeowners paid Alonzo $3,155.40 which represented a draw on Schedule I - Item 4 for $1,705.50 and $729.90 for extras apparently not covered by the contract but whether the balance of check No. 1161 (Pet. Ex. 13) of $720.00 was for payment under the contract or for extras is not shown in Petitioner's Exhibit No. 15. On March 18, 1983 the Homeowners paid Alonzo $1,000 which represented a draw on Schedule I - Item 9 for $819.00. Again whether the balance of check No. 1206 (Petitioner's Exhibit No. 13) of $181.00 is for payment under the contract or for extras is not shown in Petitioner's Exhibit No. 15. On March 21, 1983, the Homeowners paid Alonzo $6,400.00 which represented a draw on Schedule I - Items 10, 11, 12, 14 and 15. On March 21, 1983 the Homeowners paid Alonzo $2,166.90 but Petitioner's Exhibit No. 15 does not list check No. 1210 as being a payment under the contract or for extras. On March 31, 1983 the Homeowners paid Alonzo $4,230.00 which represents a draw under Schedule I - Item 7 for $2,520.00 and a payment for extras not covered under the contract in the amount of $1,710.00. On April 21, 1983 the Homeowners paid Alonzo $5,207.40 which represented a draw Schedule I - Items 1, 5, 6, 9 and 14. On June 24, 1983 the Homeowners paid Alonzo $5,788.00 which represented a draw on Schedule I - Item 12 for $667.00, Item 14 for $3,024.00 and payment for extras not under contract for $2,097.00. After March 14, 1983 Respondent was not seen on the job site and there was no longer any apparent supervision of Alonzo by Respondent. After Respondent left the job site there was no licensed building contractor involved in the construction. After Respondent left the construction site the Homeowners soon realized that Alonzo did not know how to proceed with the work and experienced problems with the pace and manner in which the work was being accomplished. On July, 1983, Alonzo stopped working altogether. Although the Homeowners were aware of the problems that Alonzo was having with the construction and that Respondent was not on the job, the record does not reflect that they ever attempted to contact Respondent after the meeting on February 3, 1983. On August 1, 1983 the Homeowners notified Respondent and Alonzo that the contract had been terminated. The Homeowners paid Respondent and Alonzo $42,174.20 total under the contract (pages 1-5, Petitioner's Exhibit No. 15) and paid Alonzo $10,766.37 for extras (Pages 6- 10, Petitioner's Exhibit No. 15). On August 31, 1983 the Homeowners paid Edward Bryant, plastering contractor the sum of $3,100.00 for plastering performed by Edward Bryant. This was for work under the contract that had not been completed or work necessary to correct problems that were already completed. Roberta Fox testified that there were no extras on plaster, however, page 7, line 11 and page 9, line 21 of Petitioner's Exhibit 15 indicates that there was extra plastering. On August 29, 1983 and September 29, 1983 the Homeowners paid Southwest Plumbing Services, Inc. the total amount of $4,875.00 for work contemplated under the contract that had not been completed or needed correction. Homeowners had paid Alonzo $3,591.00 for plumbing under the contract. Both Alonzo and Southwest Plumbing, Inc. were paid for extra plumbing not covered by the contract in the amount of $567.00 and $391.50, respectively by the Homeowners. From September 13, 1983 through June 13, 1984 the Homeowners paid Charles Brueg, Jim Brueg, Charles Buffington and Dan, Inc. the total amount of $4,192.91 for electrical work contemplated under the contract that was not completed or required correction after Alonzo left the construction site. Page 6 lines 6 and 11 of Petitioner's Exhibit No. 15 indicate that there were extras not covered by the contract. The total amount for electricity contemplated by the contract was $3,649.00. Alonzo was paid $2,627.10 under the contract and $1,710.00 for extras. The Homeowners were required to obtain the services of an air conditioning contractor to complete the work contemplated under the contract after Alonzo left the job site and as a result were required to pay Cameron, Inc., the air conditioning contract the amount of $5,181.60 between August 16, 1983 and January 24, 1984. The total amount contemplated under the contract was $3,600.00 of which $1,134.00 had been paid to Alonzo. Debris was dumped in the swimming pool requiring the Homeowners to pay $7,000 to refurbish the swimming pool. This amount included the repair contemplated under the contract and the extra work caused by Alonzo. The contract contemplated $2,300.00 for repairs of which none had been paid to Respondent or Alonzo. The Homeowners paid $1,150.00 to a painting contractor to finish the painting contemplated under the contract. Alonzo had been paid $1,125.00 for painting. (Petitioner's Exhibit No. 15) The contract provided $2,500.00 for all painting required under the contract. Respondent failed to notify the building department that he was no longer responsible for the construction. After the Homeowners terminated the contract due to Respondent's and Alonzo's nonperformance, the Homeowners had to expend a substantial amount of extra money to complete the construction. The evidence is insufficient to determine an exact or approximate amount. Roberta Fox's testimony was conflicting with regard to her understanding as to whether or not the Respondent would continue to supervise the construction after the meeting in the Homeowners' law office on February 3, 1983 when Respondent and Alonzo entered into this agreement. Myron Gold testified that it was his understanding that Respondent would continue to supervise Alonzo after the agreement. However, the Homeowners action in this regard subsequent to February 3, 1983, in making no effort to bring the matter to a "head" and requiring Respondent to supervise the work or terminate the contract and in continuing to deal with Alonzo although Homeowners were aware shortly after February 3, 1983 that Alonzo could not perform without Respondent's supervision and that they knew Respondent was not on the job, tends to show that they were aware or should have been aware that Respondent was no longer involved in the day to day supervision of the construction. Alonzo installed a fireplace pursuant to the contract that the building department determined to be a fire hazard and recommended against its use. The Homeowners applied for and were granted a "owner/builder" permit on September 1, 1983 and requested cancellation of the building permit issued to Respondent which was cancelled on September 6, 1983. They have not received a certificate of occupancy because the building department has not performed the following inspection: electrical final; plumbing final; air conditioning final; roofing final and public works final. The building department would have issued a "stop-work order" had it been aware that Respondent was not supervising the construction and would have required the Homeowners to obtain another licensed building contractor or proceed as a owner/builder. The plans prepared by Frese-Camner Associates that were made a part of the contract by reference were not introduced into evidence with the contract and thus the record is insufficient to determine what was required to meet the specifications of the plans and thereby determine if the specifications had been met. There was a permit issued for the septic tank and drain field which work was started in December, 1982. The construction of the house itself was started in January 1983. The first inspection (foundation) on the house was made by the building department of January 21, 1983.
Recommendation Based on the findings of fact and conclusions of law recited herein, it is Recommended that the Board enter a final order finding Respondent guilty of violating Section 489.129(1)(h)(k)(m), Florida Statutes (1981) and for such violations it is Recommended that the Board assess the Respondent with an administrative fine of $500.00 and suspend the Respondent's contracting license for a period of three (3) years, provided, however, that if Respondent submits to the Board competent and substantial evidence of restitution to Myron Gold and Roberta Fox within one (1) year from the date of the final order herein, then the suspension shall be stayed and Respondent placed on probation for the balance of the suspension. Respectfully submitted and entered this 6th day of February, 1986, in Tallahassee, Florida. WILLIAM R. CAVE 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 6th day of February, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 84-2529 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 to this case. RULINGS ON PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3 but clarified. Adopted in Findings of Fact 4 and 5. Adopted in Finding of Fact 4. Adopted in Finding of Fact 6. Adopted in Finding of Fact 5. Adopted in Finding of Fact 9. Adopted in Finding of Fact 9. Adopted in Finding of Fact 9. Adopted in Finding of Fact 9. Adopted in Finding of Fact 10. Adopted in Finding of Fact 11. Adopted in Finding of Fact 12 except clarified as to the last date on construction site. Adopted in Finding of Fact 13. Adopted in Finding of Fact 14 but clarified. Adopted in Finding of Fact 15 but clarified. Adopted in Finding of Fact 16. Adopted in Finding of Fact 17 but clarified. Adopted in Finding of Fact 15 but clarified. Adopted in Finding of Fact 19. Adopted in Finding of Fact 20 but clarified. Adopted in Finding of Fact 21. Adopted in Finding of Fact 11. Adopted in Finding of Fact 21. Adopted in Finding of Fact 22. Adopted in Findings of Fact 22 and 23. Adopted in Finding of Fact24 but clarified to show correct amount paid under contract as indicated by Petitioner's Exhibit 15. Adopted in Finding of Fact 25 but clarified to show that extra plastering not under contract was required. Adopted in Finding of Fact 26. Adopted in Finding of Fact 26. Adopted in Finding of Fact 26. Adopted in Finding of Fact 27. Adopted in Finding of Fact 27. Adopted in Finding of Fact 27. Adopted in Finding of Fact 27. Adopted in Finding of Fact 27. Adopted in Finding of Fact 27. Adopted in Finding of Fact 28. Adopted in Finding of Fact 28. Adopted in Finding of Fact 28. Adopted in Finding of Fact 28. Adopted in Finding of Fact 29 but clarified. Adopted in Finding of Fact 30 but clarified. Rejected as immaterial. Rejected as not supported by competent substantial evidence. Rejected as not supported by substantial competent evidence. Adopted in Finding of Fact 31. Rejected as immaterial. Adopted in Finding of Fact 32 but clarified to show that the record does not support a figure that approximate $32,000.00. Rejected as not supported by substantial competent evidence even though the Homeowners' testimony supported this fact because the Homeowners' actions with regard to Respondent after February 3, 1983, was to the contrary. Adopted in Finding of Fact 33. Adopted in Finding of Fact 34. Adopted in Finding of Fact 34. Adopted in Finding of Fact 34. Adopted in Finding of Fact 35. Adopted in Finding of Fact 36. Adopted in Finding of Fact 36. RULINGS ON PROPOSED FINDINGS OF FACT SUBMITTED BY RESPONDENT: No Findings of Fact was submitted by the Respondent. COPIES FURNISHED: James Linnan, Executive Director Department of Professional Regulation 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, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 W. Douglas Beason Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. George J. Soler, Pro Se 3315 S.W. 96th Avenue Miami, Florida 33165
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 Petitioner is the state agency charged with the responsibility to prosecute administrative complaints pursuant to Chapters 489, 455, and 120, Florida Statutes, and the rules promulgated pursuant thereto. At all times material to the Administrative Complaint, Respondent James J. Hastings was licensed as a certified general contractor in the State of Florida, holding license number CG C009847. At all times material hereto, Respondent was a qualifying agent for Hastings Construction Company, Inc. Respondent and Candace Reinertz are married. At all times material to the violations charged, she was operating under her maiden name for all purposes. At all times material hereto, Candace Reinertz was not licensed by the Florida Construction Industry Licensing Board, and the Respondent had knowledge thereof. Over several years, Ms. Reinertz regularly assisted Mr. Hastings in the operation of Hastings Construction Company, Inc., including day to day supervision of pool, small building, and house construction and pulling building permits for that corporation. She had been authorized in writing by Hastings to pull building permits for him on specific projects (not necessarily in a corporate name) at least since April 27, 1987. At all times material hereto, Castles `n' Pools, Inc., 205 Third Avenue, Melbourne Beach, Florida, was a firm that was not qualified with the Construction Industry Licensing Board, and Respondent had knowledge thereof. This corporation was intended to become a venture to be run jointly by husband and wife. Castles `n' Pools, Inc. had been qualified as a corporation with the Florida Secretary of State and had received an occupational license. The corporate officers/directors were Reinertz and Hastings. However, a Florida Construction Industry Licensing Board License was never applied for by Ms. Reinertz in her own name nor was one applied for by Mr. Hastings as a qualifier for Castles `n' Pools, Inc. On June 27, 1987, Castles `n' Pools, Inc., through Candace Reinertz, contracted with Zimmer Dominque for construction of a pool at Mr. Dominque's residence located at 866 Van Circle, N.E., Palm Bay, Florida, for $7,750. The contract promised completion of the pool by September 23, 1987, barring adverse weather and mishaps. It is Ms. Reinertz's testimony that she inadvertently filled in a Castles `n' Pools, Inc. blank contract when she intended to use a Hastings Construction Company blank contract. The blank forms are, indeed, very similar. Mr. Dominque's testimony is that he thought at all times that he was contracting with Castles `n' Pools, Inc., through Ms. Reinertz. Although he admits that at least by September 22, 1988, he considered Respondent in charge of the project and that he thereafter dealt directly with Respondent, Mr. Dominque's payment by checks made out to Castles `n' Pools and/or Candace Reinertz dated June 27, July 7, September 22, and September 24, 1987 (P-10) support a finding that all work to that point was progressing in the name of Castles `n' Pools. Also supportive of such a finding is that on July 6, 1987, Pyramid Equipment Service billed Castles `n' Pools for digging the hole for the pool (R-8) and on August 11, 1987, R & J Crane Service billed Castles `n' Pools for setting the pool in place (R-9). However, the issuance of the building permit to Hastings Construction Company, Inc. and the chronology of how the permit came to be issued (see infra.) suggest that Mr. Hastings did not know about the Castles `n' Pools connection until at least late September. Respondent's and Ms. Reinertz' testimony that Respondent did not find out that the wrong contract had been used until after construction was underway on the Dominque property is unrefuted and the exact date of his discovery was not demonstrated, but he admits he did not attempt to qualify Castles `n' Pools once he found out. On June 29, 1987, the Respondent authorized Candace Reinertz to pull a permit for the construction of a pool at Mr. Dominque's residence. The authorization, (P-12), does not specify either Castles `n' Pools nor Hastings Construction Company, Inc. as the construction corporation applicant. Ms. Reinertz's subsequent permit application was denied on July 2, 1987, by the Palm Bay Building Department, for failure to include a survey certified by a civil engineer or architect. The record does not reflect in what corporate name Ms. Reinertz made this initial application. She may not even have gotten as far as filling out a permit application before she was refused at the permit desk, but the line drawing prepared for that application (R-1) specifies that the line drawing was that of Hastings Construction Company, Inc. Mr. Hastings regularly did line drawings for Hastings Construction Company, Inc. projects on a particular machine in that corporation's offices. The certified survey requirement was a recent innovation of the Palm Bay Building Code. On July 6, 1987, Castles `n' Pools, Inc. delivered the prefabricated fiberglass pool, excavated the site and dropped the pool in the hole. No further efforts of permanent installation occurred at that time, due to failure to obtain a permit. A dispute then ensued between Hastings and Reinertz on one side and Mr. Dominque on the other over who must provide the survey and how. This dispute occasioned some delay in the project, but on July 26, 1987, Ms. Reinertz again applied, with a certified survey, to the Palm Bay Building Department for a permit for the construction of Mr. Dominque's pool, listing the builder as Hastings Construction Company, Inc. (P-5). On July 30, 1987, permit number 8702101 was issued by the Palm Bay Building Department for the construction of Mr. Dominque's pool by Hastings Construction Company, Inc. (P-6). Thereafter, work on the pool progressed sporadically until September 22, 1987, when the pool floated up out of the ground. The pool floated up out of the ground during a rainstorm and after Respondent had left Mr. Dominque with instructions to fill the pool to a certain level with water. There is sufficient evidence to demonstrate that Mr. Dominque failed to follow Respondent's directions with precision. Subsequent to September 22, 1987, the pool was reinserted in the excavation by crane and by October 2, 1987, the deck was installed. Two or three months later a crack appeared in the pool which has since been repaired, however, the drain and light still do not work properly, and Mr. Dominque had to pay an additional $50 for cleanup of the resulting debris. Some of the delay in completion of work on the pool can be attributed to the dispute about the survey, some to injury of a key employee, and some to heavy rains, but the testimony of Mr. Nasrallah, architect and expert contractor, is accepted that 30 to 45 days would be sufficient to install the entire pool except for the pool deck even in rainy weather. Also, Mr. Dominque's and Respondent's testimony is in agreement that Respondent (not Ms. Reinertz) was fired for a period of time and then rehired. The length of time and the dates that Respondent was off the job is unclear, but it was minimally from September 9 to September 22, 1987. Oversight of the work at all times was by the Respondent. Mr. Dominque has paid the total contract price of $7,750 and expressed himself that any amount he questioned has either "evened out" or been paid back by Respondent. Stan Alexander is a certified general contractor and former chairman of the Florida Construction Industry Licensing Board. In his expert opinion as a contractor, construction began when the hole was first dug on July 6, 1987 and the pool was placed in it even temporarily. Also in his expert opinion as a contractor, Mr. Alexander determined that the contractor responsible for the installation of this pool was guilty of gross negligence or incompetence due in part to the insufficiency of dewatering devices (including a hydrostatic device) and placement of the responsibility to fill the pool on the home owner. Mark Nasrallah is a registered Florida architect and a licensed general contractor. Also in his expert opinion as a contractor, construction began on the job when the pool was placed in the excavation. It is also Mr. Nasrallah's expert opinion that the contractor responsible for this job is guilty of gross negligence or incompetence. Although Mr. Alexander was unfamiliar with any local Palm Bay zoning or permitting provision which would allow "site clearing" prior to excavation/construction, and although Mr. Nasrallah considered it "questionable" whether the digging for the pool constituted "construction without a permit," Mr. Nasrallah's assessment that digging the hole and putting the pool in the hole even temporarily was in excess of mere site clearing and was work which clearly began construction is accepted. Section 103 of the Standard Building Code has been adopted by the City of Palm Bay. It provides as follows: A person, firm or corporation shall not erect, construct, enlarge, alter, repair, move, improve, remove, convert, or demolish any building or structure in the applicable jurisdiction, or cause the same to be done, without first obtaining a building permit for such building or structure from the Building Official. Respondent was disciplined by the Construction Industry Licensing Board in October, 1984, for violation of Sections 489.129(1)(c), (g), (j); 489.119(2), (3); and 455.227(1)(a) Florida Statutes.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Construction Industry Licensing Board enter a final order finding Respondent guilty of violations of Sections 489.129 (1)(d) and (m) Florida Statutes, issuing a letter of guidance with regard to the permitting violation, fining the Respondent $750.00 for gross negligence or incompetence, and dismissing the remaining two charges. DONE and RECOMMENDED this 23rd day of November, 1988, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 1988. APPENDIX TO RECOMMENDED ORDER DOAH Case No. 87-5172 The following constitute rulings pursuant to s. 120.59(2), Florida Statutes, upon the parties' respective Proposed Findings of fact (FOF). Petitioner PFOF: Accepted in FOF 1. Accepted in FOF 2. Accepted in FOF 3. Accepted in FOF 5. Accepted in FOF 7. Accepted in FOF 8. 7-8. Accepted and expanded to more accurately reflect the record in FOF 10 9. Accepted in FOF 11. 10-11. Accepted and expanded to more accurately reflect the record in FOF 12. Accepted and expanded to more accurately reflect the record in FOF 13. Accepted in FOF 14. 14-15. Accepted in part and rejected in part in FOF 15-17. The modifications are made to more accurately reflect the record as a whole, the specific expert opinion as given by Messrs. Alexander and Nasrallah (discussed in the Conclusions of Law) and to reflect that some hydrostatic devices were used, some removed, and at least one left in for a period of time. 16. Accepted in FOF 19. COPIES FURNISHED: Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 G. W. Harrell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 James J. Hastings 205 Third Avenue Melbourne Beach, Florida 32951 Lawrence A. Gonzalez, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce D. Lamb, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
The Issue The issue to be resolved in this proceeding involves whether the Respondent's certification to practice contracting should be subjected to disciplinary action for alleged violations of Section 489.129(1), Florida Statutes, and, if the violations are proven, what, if any, penalty is warranted.
Findings Of Fact The Petitioner is an agency of the State of Florida charged, as pertinent hereto, with enforcing, administering, and regulating the practice standards and licensure standards for the construction industry in Florida. This authority is embodied in the various provisions of Chapters 489, 455, and 120, Florida Statutes, and rules promulgated pursuant thereto. The Respondent is a licensed general contractor in the State of Florida having been issued license number RG0060516 and is registered to conduct contracting business in his individual capacity. On July 2, 1990, a contractor, Lonnie J. Walker, notified the Building Department of the City of Tallahassee that he had withdrawn as contractor for a job located at 722 Dunn Street, in Tallahassee, Florida. He thereupon withdrew the building permit he had obtained for the work being performed at those premises. On August 8, 1990, the Respondent contracted with Mary N. Spencer, the owner, to make certain repairs at the two-unit apartment building located at 722 Dunn Street, Tallahassee, Leon County, Florida. The contract price agreed upon between the Respondent and Ms. Spencer was $867.00. The Respondent thereupon performed some of the aforementioned contracting work, consisting of repairs of various types. He was not registered to contract in Leon County, Florida, however. The Department of Growth and Environmental Management of Leon County, Florida, is responsible for issuing construction contractor licenses for the County, including for the City of Tallahassee. There was no proper building permit issued for the job and job site when the Respondent entered into the contracting work at those premises. The Respondent failed to obtain a permit for the repairs and this ultimately came to the attention of the City of Tallahassee Building Department. That agency issued a stop work order on September 5, 1990. The Respondent was not performing work pursuant to Mr. Walker's previous permit, which had been withdrawn. The Respondent was not an employee of Lonnie J. Walker, the previous general contractor for the job. The Petitioner agency submitted an affidavit after the hearing and close of the evidence, with its Proposed Recommended Order. That affidavit asserts that the Petitioner accumulated $458.10 in investigative costs and $2,491.30 in legal costs associated with the prosecution of this case, for a total alleged cost of prosecution of $2,949.40. It moves, in its Proposed Recommended Order, that payment of the costs should be made in accordance with Section 61G4-12.008, Florida Administrative Code. The request for costs was first raised as an issue in the Proposed Recommended Order submitted by the Petitioner and is advanced only in the form of a hearsay affidavit. No prior motion for costs served upon the Respondent is of record in this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Construction Industry Licensing Board finding the Respondent guilty of the violations charged in the Administrative Complaint and assessing a penalty in the form of a letter of guidance and an aggregate fine of $600.00, as described with more particularity hereinabove. DONE AND ENTERED this 9th day of March, 1994, in Tallahassee, Florida. P. MICHAEL RUFF 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 10th day of March, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-591 Petitioner's Proposed Findings of Fact 1-8. Accepted. Respondent's Proposed Findings of Fact Respondent submitted no post-hearing pleading. COPIES FURNISHED: G.W. Harrell, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Julius S. Baker, Sr. Box 253 Morrow, GA 30260 Mr. Richard Hickok Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway Suite 300 Jacksonville, FL 32211-7467 Jack McRay, Esq. General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
