Findings Of Fact Arthur A. Noriega, Respondent, was issued a residential contractor's license, No. RR0026713, which reflects his address as c/o Noriega Construction, Inc., 5600 South Winter Beach Road, Box 111, Winter Beach, Florida 32971. Respondent's license required renewal, but as of June 30, 1981, he had failed to renew his registration with the Petitioner. Respondent was also required by law to notify Petitioner of any change of address from that listed on his license. He failed to do so. Arthur A. Noriega was issued a certificate as a Class III Contractor by the City of Vero Beach, Florida, by Certificate of Registration No. 270, on January 9, 1976, based on his passing the H. H. Block Examination, as certified by the Director of Building and Construction of Brevard County, Florida, per Certificate No. 2096, issued on December 5, 1975. A Class III Contractor is authorized by law to construct one and two- family residential buildings, and is not authorized to perform commercial construction. On August 21, 1981, Respondent entered into an agreement in writing with the Vero Mall to install two Class B fire doors with jambs, thresholds, and panic handles at the mall facility at 1255 U.S. Highway 1, Vero Beach, Florida, for a total sum of $1,160, to be paid in two segments: one half down at signing of the agreement, and the remaining half upon completion of the project. This work is classified as commercial, and is not within the scope of Respondent's license. The work was completed in December, 1981, except for the closers (panic bars); however, the Respondent was paid in full by check by Jim Wilson & Associates, owners of the Vero Mall. Indian River County Ordinance No. 80-17, effective on April 28, 1980, et seq., requires, at Section I, Paragraph 3, by amending Section 105.1(e) of Indian River County Ordinance No. 74-11, that all construction except ordinary, minor, nonstructural repairs not exceeding in cost of $100 be commenced only upon the approval of the building official and with a permit. The permit from Indian River County, upon the application of the Respondent, to cover the work called for as the Vero Mall, which had been at least partially accomplished in December, 1981, was not issued until February 26, 1982, approximately two months after the work was accomplished. The permit was applied for and granted by mistake after a citation had been issued to the Respondent for working without a permit because county officials failed to check what the status of the Respondent was at the time of the application. Had they checked, the permit would not have been issued because Respondent was not certified for commercial construction. When the permit was issued, however, a double fee was charged because of the fact that it was applied for after work was begun. On October 25, 1982, an Administrative Complaint was filed in this case by the Secretary, Department of Professional Regulation, on behalf of the Construction Industry Licensing Board, containing allegations consistent with the above Findings of Fact. This complaint was served on the Respondent by hand delivery by Mr. Thomas G. McAndrews, an investigator for the Department of Professional Regulation, at 956 13th Avenue, Vero Beach, Florida. This address, at which the Respondent was doing business, is different from that listed on his application for a Certificate of Registration and from that last appearing on the records of the Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent's contractor's license be suspended for a period of six months. RECOMMENDED this 8th day of February, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 1983. COPIES FURNISHED: Jane Heerema, Esquire Roberts, Egan &. Routa, P.A. 217 South Adams Street Post Office Box 1386 Tallahassee, Florida 32302 Mr. Arthur A. Noriega Post Office Box 2303 Vero Beach, Florida 32960 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. James Linnan Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202
The Issue The issue in this case is whether the challenged portions of Rule 14-22.012, Florida Administrative Code, constitute an invalid exercise of delegated legislative authority as defined by Section 120.52(8), Florida Statutes.
Findings Of Fact The Parties The Respondent The Department is the state agency charged with the responsibility of building and maintaining the state’s transportation system. Each year the Department lets out hundreds of road and bridge construction projects totaling over one billion dollars. The projects range from sidewalk improvements to major bridge construction. Accordingly, there is a wide range of expertise and qualifications necessary for the different kinds of projects let by the Department in Florida. Section 337.14(1), Florida Statutes, requires any person desiring to bid on any Department construction contract in excess of $250,000 to first be certified by the Department as qualified to perform the work to be let. Pursuant to Section 337.164, Florida Statutes, the Department qualifies contractors to preserve the integrity of the public contracting process, to ensure an open and competitive environment for the benefit of the taxpayers, and to ensure a quality project in terms of public works. Pursuant to Section 337.14, Florida Statutes, persons seeking to bid on contracts in excess of $250,000 must first file an application for a Certificate of Qualification with the Department. The statute specifically authorizes the Department to enact rules addressing the qualification of persons to bid on contracts in excess of $250,000, including requirements with respect to competency, responsibility, equipment, past record, experience, financial resources, and organizational personnel of the applicant. Gregory Xanders is the State Construction Engineer. His duties include setting policy and reviewing contractor responsibility and qualifications under Chapter 337, Florida Statutes, and Chapter 14-22, Florida Administrative Code. In conjunction with reviewing a contractor’s qualifications, the State Construction Engineer’s Office receives input from other personnel, including contract managers in the field, the Department General Counsel’s Office, the Department Inspector General’s Office, and other cities and counties who may work with the contractor. The State Construction Engineer’s Office also reviews any intended decision to deny, suspend, or revoke a contractor’s Certificate of Qualification with the Assistant Secretary of the Department. When the State Construction Engineer’s Office makes a preliminary determination that a contractor’s Certificate of Qualification should be suspended, revoked, or denied, the contractor is notified and informed of its rights to an administrative hearing to contest the intended decision under Section 120.569, Florida Statutes. The Petitioner MBI is a company which engages in road building and asphalt paving. Since the early 1980s MBI has been qualified to bid on and awarded several Department projects. Approximately 80 percent of MBI's workload involves Department projects. Pursuant to Department rules, MBI annually submits an application to renew or obtain an updated Certificate of Qualification in order to continue bidding and performing Department projects. In 1997, MBI was denied qualification to bid on Department projects for approximately ten months. However, MBI was subsequently qualified by the Department during calendar year 1999. On or about March 31, 2000, MBI filed an Application for Qualification with the Department. By letter dated May 18, 2000, the Department gave MBI notice of its intent to deny MBI’s Application for Qualification, and stated that any subsequent application would not be considered for a period of two years. The Department’s letter advised MBI that the denial of the application constituted "a determination of non-responsibility to bid on any other construction or maintenance contract" for the same period. Specifically, the letter provided: Please be advised that pursuant to Chapter 337, Florida Statutes, and Rule Chapter 14- 22, Florida Administrative Code, it is the intent of the Department of Transportation (hereinafter Department) to deny Mitchell Brothers, Inc.’s (hereinafter Mitchell Brothers) Application for Qualification dated March 31, 2000. This denial shall preclude consideration of any subsequently submitted Application for Qualification for a period of two (2) years. Additionally, this denial shall constitute a determination of non- responsibility to bid on any other construction or maintenance contract and shall prohibit Mitchell Brothers from acting as a material supplier, contractor, or consultant on any Department contract during the period Mitchell Brothers is not qualified by the Department. The Department’s Notice of Intent denied MBI’s Application based upon a determination that MBI had demonstrated "a pattern of exorbitant and false, deceptive or fraudulent statements, certifications, or materials in claims for payment," and "a lack of management expertise and continuity." By Petition for Formal Hearing dated May 30, 2000, MBI challenged the Department’s Notice of Intent to Deny MBI’s Application for Qualification. MBI’s Petition for Formal Hearing was referred to the Division of Administrative Hearings and assigned DOAH Case No. 00-2431. On September 18, 2000, the Department served on MBI a Modified Notice of Intent to Deny MBI’s application. The Modified Notice gave additional grounds for the Department’s decision to deny MBI’s Application for Qualification. Among the additional grounds for denying MBI’s Application were the following: MBI submitted false, deceptive, fraudulent, erroneous or unreasonable statements, certifications, or materials in its claims for payment to the Department, the City of Tallahassee, the Leon County School Board, and other owners; MBI submitted claims or statements for services not performed or expenses not incurred; MBI failed to avoid, diminish or otherwise mitigate the effects of construction delays; and MBI failed to reasonably cooperate with the Department’s efforts to investigate the accuracy of MBI’s delay claims and statements. On October 13, 2000, MBI filed it’s Petition Seeking Administrative Determination that Rule 14-22.012, Florida Administrative Code, is an invalid exercise of delegated legislative authority (DOAH Case No. 00-4234RX). Specifically, in paragraph 11 of its Petition, MBI alleges that the Rule enlarges, modifies, or contravenes specific provisions of the law implemented, and that the Rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency. MBI later alleged that the Department had also exceeded its grant of rulemaking authority. A three-week final hearing was scheduled to commence in DOAH Case No. 00-2431 on October 26, 2000. Shortly prior to hearing, Petitioner filed a Motion to consolidate DOAH Case Nos. 99-2431 and 00-4234RX. The Department opposed the motion based on their counsel's inability to be adequately prepared for the 00-4234RX rule challenge proceeding. In lieu, the parties agreed to temporarily break from the 00-2431 hearing during the second week and commence the rule challenge. However, on the morning of October 26, 2000, MBI filed a Notice of its Withdrawal of its Petition for Formal Hearing in DOAH Case No. 00-2431. Consequently, DOAH Case No. 00-4234RX was scheduled for hearing on November 14, 2000. Based on MBI’s Notice of Withdrawal of its Petition, an Order Closing File was entered in DOAH Case No. 00-2431 on November 1, 2000. On November 2, 2000, the Department entered a Clerk’s Order of Dismissal of MBI’s Petition challenging the denial of its Application for Qualification. "Good Cause" Defined in Section 337.16(2), Florida Statutes Section 337.16(2), Florida Statutes, provides: For reasons other than delinquency in progress, the department, for good cause, may determine any contractor not having a certificate of qualification nonresponsible for a specified period of time or may deny, suspend, or revoke any certificate of qualification. Good cause includes, but is not limited to, circumstances in which a contractor or the contractor’s official representative: Makes or submits to the department false, deceptive, or fraudulent statements or materials in any bid proposal to the department, any application for a certificate of qualification, any certification of payment pursuant to s. 337.11(10), or any administrative or judicial proceeding; Becomes insolvent or is the subject of a bankruptcy petition; Fails to comply with contract requirements, in terms of payment or performance record, or to timely furnish contract documents as required by the contract or by any state or federal statute or regulation; Wrongfully employs or otherwise provides compensation to any employee or officer of the department, or willfully offers an employee or officer of the department any pecuniary or other benefit with the intent to influence the employee or officer’s official action or judgment; Is an affiliate of a contractor who has been determined nonresponsible or whose certificate of qualification has been suspended or revoked and the affiliate is dependent upon such contractor for personnel, equipment, bonding capacity, or finances; Fails to register, pursuant to chapter 320, motor vehicles that he or she operates in this state. Section 337.16(2), Florida Statutes, authorizes the Department to deny, suspend, or revoke an Application for Qualification based upon a determination of "good cause." "Good cause" is defined by six examples specified in Section 337.16(2), Florida Statutes, but the statute further provides that "good cause includes, but is not limited to" the six circumstances specified in the statute. "Good Cause" Defined in the Rule 14-22.012, Florida Administrative Code Rule 14-22.012, Florida Administrative Code, is entitled: "Suspension, Revocation, or Denial of Qualification." Subsection (1) of this Rule provides in pertinent part: (1) The Department will, for good cause, as that term is defined in Section 337.16(2), Florida Statutes, suspend, revoke, or deny any contractor’s qualification to bid. A suspension, revocation, or denial for good cause pursuant to this rule shall prohibit the contractor from bidding on any Department construction contract for which prequalification is required by Section 337.14, Florida Statutes, and shall constitute a determination of non- responsibility to bid on any other construction or maintenance contract and from acting as a material supplier, subcontractor, or consultant on any Department contract or project during the period of suspension, revocation, or denial. As provided in Section 337.16(2), Florida Statutes, such good cause shall include, but shall not be limited to, the provisions of paragraphs (a) through (e) below. When a specific period of revocation, denial, or suspension is not specified by this rule, the period shall be based on the criteria of Rule 14-22.0141(4), F.A.C., as well as Department contractor certification activities. (a) The contractor’s Certificate of Qualification shall be denied or revoked for at least one year when it is determined by the Department that any of the following has occurred: One of the circumstances specified under Section 337.16(2)(a), (b) or (d), Florida Statutes, has occurred. Affiliated contractors submitted more than one proposal for the same work. In this event the Certificate of Qualification of all of the affiliated bidders will be revoked or denied. All bids of affiliated bidders will be rejected. The contractor made or submitted to the Department false, deceptive, or fraudulent statements, certifications, or materials in any claim for payment or any information required by any Department contract. The contractor defaulted on any Department contract or the contract surety took over any Department contract from the contractor. Rule 14-22.012(1), Florida Administrative Code, authorizes the Department to deny, suspend, or revoke a contractor’s qualification to bid based on a determination of "good cause" as that term is defined in Section 337.16(2), Florida Statutes. The term is defined by examples contained in Section 337.16(2), Florida Statutes, and in the Rule, but it is not exhaustive. In addition to the list of examples of "good cause" specified in Section 337.16(2), Florida Statutes, and Rule 14- 22.012(1), Florida Administrative Code, the Department consistently considers other criteria contained in Chapter 337, Florida Statutes, which relate to the qualifications of a contractor. Section 337.14, Florida Statutes, requires the Department to consider a contractor’s equipment, past record, experience, financial resources and organizational personnel. Other factors considered are contained in Rule 14-22.003, Florida Administrative Code, which addresses the rating of the applicant, work performance record, quality of work performed, history of payment, timeliness of completing projects, cooperative attitude, contract litigation, claims, defaults, integrity, and responsibility. Both Chapter 337, Florida Statutes, and Chapter 14-22, Florida Administrative Code, provide the industry with sufficient guidance as to the criteria for "good cause." Responsibility A contractor bidding on projects of less than $250,000 is presumed to be responsible unless one of the circumstances specified in Rule 14-22.0141, Florida Administrative Code, occurs, in which case the contractor may be deemed "non- responsible." In addition to being "qualified," a contractor seeking to bid on projects over $250,000 must also be deemed to be "responsible." By statute, a contractor must be "responsible" as a prerequisite to being "qualified." Section 337.14(3), Florida Statutes, provides: (3) Upon the receipt of an application for certification, the department shall examine it, verify its statements when necessary, and determine whether the applicant is competent, is responsible, and possesses the necessary financial resources to perform the desired work. The Department must consider the responsibility of the contractor during the review of its Application for Qualification. If a contractor’s qualification has been denied, suspended, or revoked for "good cause," then the contractor is deemed to be non-responsible and not allowed to bid on any project. Under Section 337.16(2), Florida Statutes, the Department may determine the time period in which a contractor is deemed to be non-responsible. Period of Disqualification As to the period of disqualification, Section 337.16(2), Florida Statutes, and Rule 14-22.012, Florida Administrative Code, provide a framework of guidelines and, in some instances, detailed timeframes relating to specific circumstances. For example, Section 337.165(2)(b)1, Florida Statutes, specifically requires the Department to deny or revoke a contractor's certification for a period of 36 months when the Department determines that the contractor has been convicted of a contract crime. This statute provides a frame of reference for the Department in establishing the period of disqualification. Within the framework provided by Chapter 337, Florida Statutes, and Chapter 14-22, Florida Administrative Code, the Department considers a period of disqualification ranging from 0 to 36 months. Rule 14-22.012, Florida Administrative Code, states that when a Certificate of Qualification is denied or revoked for any of the specified reasons in Rule 14-22.012(1)(a), Florida Administrative Code, the denial or revocation is "for at least one year." This revocation period only provides a lower limit. Rule 14-22.012(1), Florida Administrative Code, further provides: "When a specific period of revocation, denial, or suspension is not specified by this rule, the period shall be based on the criteria of Rule 14-22.0141(4), Florida Administrative Code, as well as Department contractor certification activities." Rule 14-22.0141(4), Florida Administrative Code, provides that a contractor will be "ineligible to bid on Department contracts for a period of time based on the seriousness of the deficiency." Rule 14022.0141(4), Florida Administrative Code, provides examples of factors affecting the seriousness of the deficiency. Under the Rule, the examples of factors affecting the seriousness of the deficiency include impacts on project schedule, cost, quality of work, unsafe conditions allowed to exist, complaints from the public, delay or interference with the bidding process, and the potential for repetition. It is not possible to codify in a rule the precise time period of disqualification for every single instance. Because the facts and circumstances supporting a determination of "good cause" vary, it is impracticable to compile an exhaustive list for each instance.
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact Respondent Paul L. Crowder first registered with petitioner as a general contractor on April 4, 1980. He held license No. RG 0035515 at least until July 1, 1987, when it "was placed on a delinquent status for non-renewal." Petitioner's Exhibit No. 12. Respondent's license "is considered invalid for the 1991-93 licensing period." Id. On February 20, 1990, the late Dorothy Regoski accepted respondent's written proposal to construct a seawall 276 feet long to a height of four feet above mean high water on Santa Rosa Sound around the edge of her yard. She lived at 232 Brooks Street in Fort Walton Beach with her mother (to whom the house belonged). By signing the proposal, Petitioner's Exhibit No. 6, Miss Regoski obligated herself to pay $10,227.00 for the seawall, which everybody agreed was needed to replace an existing seawall that had begun to fail. She gave respondent a check for $6,600 on February 20, 1990, Petitioner's Exhibit No. 7, and agreed to pay the rest when the project was completed. Respondent Crowder testified he was too busy to begin work in February or March but he found time on April 17, 1990, to apply to the City of Fort Walton Beach for a building permit. Sometime thereafter he spent part of a day removing sand just landward of the existing seawall and severing the "tie backs" with which the top of the existing seawall had been anchored to "dead men" further landward. It was necessary to break the "tie backs" in order to install the replacement seawall against the landward side of the existing seawall. Fortunately, removal of the sand diminished or eliminated the pressure or moment tending to tip the top of the existing seawall seaward. But, perhaps mainly because of salt water "cut worms" at work on the existing wall, only some sixty percent of the existing wall remained vertical by the time Mr. Lancaster inspected it in June of 1990. On two or three occasions after the initial excavation, although never for more than a day at a time, respondent or his employees returned to the Regoski home, put in piles, and joined many of them with horizontal 3" x 6" stringers or "whalers." In mid-June, after they had failed to appear for over a month, Ms. Regoski engaged Wayne Lancaster to finish the job. Mother and daughter were understandably alarmed at the rate of erosion boat wakes, the southeast wind and the jetting action of tides created. Mr. Lancaster supplied additional whalers and repositioned others, then installed two courses of 1" x 8" planks separated by filter cloth, and tied back the new seawall to its own deadman. He charged $6200, Petitioner's Exhibit No. 11, and he and his men finished the job in a week and a half. The evidence put respondent's work at approximately two-fifths of the whole. Mr. Pelham, a professional engineer who has designed and supervised the erection of at least 100 seawalls (and who remembers the day respondent was born), put the fraction at 41%. Respondent claimed about 40%. The successor contractor testified it might have been as little as 30%. Once respondent excavated, exposing the old seawall and tie backs, acceptable construction practice required staying with the job until it was finished. Respondent's handling of this project was closely analogous to a roofer's taking a roof off and leaving the roof uncovered. Respondent conceded that the delay was not standard practice and that normally such a project should not be interrupted. He also testified that he knew the existing seawall was damaged and "fixing to go." The project should have been completed in a continuous operation, both to protect the upland against erosion and to avoid siltation of waters of the state.
Recommendation It is, accordingly, and in keeping with Rule 21E-17.002, Florida Administrative Code, RECOMMENDED: That the CILB suspend respondent's license for thirty (30) days, and thereafter until he has paid Ms. Regoski's estate two thousand five hundred seventy-three dollars ($2,573). DONE and ENTERED this 7th day of May, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II 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 7th day of May, 1992. Copies furnished to: William S. Cummins, Esquire Department of Professional Regulation 1940 N. Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Paul L. Crowder 521 Shrewbury Road Mary Esther, FL 32569 Daniel O'Brien, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact At all times material, Respondent, Stephen M. Oliver, was both a registered roofing contractor, holding license RC 0042579, and a certified building contractor, holding license CB 025099. Both licenses were issued by the Florida Construction Industry Licensing Board. On or about July 3, 1985, Respondent entered into a contract with Betty Davis to remodel her house in Bradenton. The total contract price was $3,600. Work on the Davis job commenced on Wednesday, July 3, 1985, and proceeded on July 4 and 5 and July 9 through 12, 1985, before Respondent applied for and obtained a Manatee County building permit for the job. This is a violation of local law. Respondent was not attempting to avoid obtaining a permit for the work. He was just busy and did not timely get one. The building permit obtained does not reflect that the permit covered installation of an oven range hood. Although part of the contract, that work was not included on Respondent's application for a building permit. No separate mechanical permit was obtained for this work. Respondent willfully and deliberately installed the oven range hood on the Davis job without obtaining the required Manatee County mechanical permit. At all times material, the Board of County Commissioners of Manatee County had adopted the Standard Building Code and Standard Mechanical Code, with accumulated supplements, to govern construction in Manatee County. Under the applicable code provisions, installation of an oven range hood is mechanical work for which a mechanical license and mechanical permit are required. Respondent is not licensed or qualified by the State or by Manatee County to do mechanical work. Respondent willfully and deliberately did the mechanical work on the Davis job, i.e., installation of the oven range hood, without being licensed or qualified to do it and without a mechanical permit. Respondent's work on the Davis job was incompetent and grossly negligent in that some electrical wires were covered over by vinyl siding that Respondent installed without first being covered with protective coating to prevent safety hazards, in violation of the applicable building code. Otherwise, Respondent's workmanship was not the best, but it was not incompetent or grossly negligent. On or about March 22, 1985, Respondent entered into a settlement stipulation in which Respondent admitted to charges of not getting the required building permit for an August 25, 1983, contract until eleven months after work began. Respondent was fined $500 for that offense. Shortly before the final hearing in this case, Respondent entered into a settlement stipulation in which he admitted to charges of: (1) performing a February 18, 1985, contract without obtaining the required permit and inspections; (2) performing a March 6, 1985, contract by October 1, 1985, without having all necessary inspections done; (3) performing a January 22, 1985, contract without having all necessary building inspections performed, without correcting all violations cited during inspections, and falsely swearing by affidavit that the masonry contractor had been paid; and (4) not having the necessary final inspection done after performance of a March 16, 1985, contract. For these offenses, Respondent was fined an additional $1000 and placed on probation through February, 1988.
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 fining Respondent, Stephen M. Oliver, $1500.00. RECOMMENDED this 26th day of March, 1987 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 26th day of March, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-5035 Respondent filed no proposed findings of fact. Petitioner's proposed findings of fact are accepted and incorporated to the extent necessary. This ruling complies with Section 120.59(2), Florida Statutes (1985). COPIES FURNISHED: G. Vincent Soto, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Fl 32399-0750 Stephen M. Oliver 2423 Manatee Avenue West Bradenton, Fl 33505 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Fl 32201 Van Poole Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Fl 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Fl 32399-0750
The Issue Whether Respondent committed the offense described in the Administrative Complaint? If so, what disciplinary action should be taken against him?
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Respondent is a general contractor licensed to practice in the State of Florida. He holds license number GC C023836. Since 1983, he has been the licensed "qualifying agent" for Gold Coast. On or about November 25, 1987, Gold Coast entered into a written contract with Lillian Hutcheson in which it agreed, for $20,184.00, to remodel and reroof Ms. Hutcheson's residence, located at 1791 Northwest 45th Street in Miami, Florida. On March 20, 1986, following the completion of the project, Respondent, on behalf of Gold Coast, issued Ms. Hutcheson a "warranty," which provided as follows: The undersigned hereby guarantees the work performed for a period of one year and all roofing work guaranteed for a period of 5 years from the date of final acceptance of all the work required by the contract, shown on attachments herewith, all manufacturers' and suppliers' written guarantees and warranties covering materials and equipment furnished under the contract. The undersigned will replace faulty workmanship and materials within the period of the guarantee free of charge. During the second year of the warranty period, leaks developed in Ms. Hutcheson's roof. Ms. Hutcheson contacted Respondent and advised him of the problem. Respondent responded by dispatching a worker to Ms. Hutcheson's home. The worker repaired the leaks. Additional leaks in the roof developed later in the warranty period. Ms. Hutcheson again contacted Respondent. Respondent was of the view that these leaks were not the result of any faulty workmanship or material and that therefore they were not covered by the warranty. Notwithstanding Ms. Hutcheson's persistent requests during the warranty period that Respondent repair these leaks, Respondent refused to do so. The interior of Ms. Hutcheson's home has suffered damage as a result of these unrepaired leaks.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Construction Industry Licensing Board enter a final order dismissing the instant Administrative Complaint in its entirety. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of October, 1991. STUART M. LERNER 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 15th day of October, 1991.
The Issue Whether respondent's license as a certified general contractor should he disciplined on charges of abandonment, diversion, violation of applicable building codes, improper qualification of companies under whose name he was conducting business, and continued misconduct in the practice of contracting, in violation of Chapter 489, Part I, Florida Statutes.
Findings Of Fact At all times relevant to the charges, respondent was a certified general contractor holding license no. CG C015937. He now resides at 1210 Old Boynton Road, Apartment 113, Boynton Beach, Florida. (Testimony of respondent; P-1) I. Count I: Abandonment of a Construction Project On or about October 30, 1980, respondent, d/b/a P & R Construction, a subsidiary of New Visions, Inc., entered into a contract with Mr. and Mrs. A. J. Ervin to construct a bathroom addition to their residence located at 1119 Lake Terrace, No. 101, Boynton Beach, Florida, for the sum of $4,500. (Testimony of respondent) Respondent was the contractor of record for this project. He pulled the required building permit, hired the subcontractors, and supervised the project. Robert Popiel, owner of New Vision, Inc., kept the company's books, paid bills, and handled sales. (Testimony of respondent; P-9) In June of 1981, respondent abandoned the construction project, leaving it uncompleted. Neither the bathroom door nor the shower door had been installed; exterior stucco beneath the bathroom window (which had been removed to repair a leak) had not been replaced; and the bathroom floor was unfinished. Final inspections had not been made and a certificate of occupancy had not been obtained. During the next four or five months, Mr. Ervin tried, unsuccessfully, to locate respondent and persuade him to return and complete the project. Eventually, Mr. Ervin hired another contractor and paid him $500 to complete the unfinished work. (Testimony of Ervin, respondent) When respondent abandoned the project, the plumbing (Archie's Plumbing), roofing (Modern Roofing), and electrical (Jerry's Electric) subcontractors, who had performed work and furnished materials for the project, were left unpaid. The improvements were thus subject to the placement of contractors' liens. The subcontractors were owed a total of $2,107.21, although they eventually settled with the owner for a total payment of $1,100. (Testimony of Ervin, Yedvarb, Grummer) Moreover, when respondent abandoned the project, there were leaks in the roof, where the bathroom joined the existing structure, and leaks below the bathroom window. (Testimony of Ervin) During this time, respondent was undergoing a divorce and moving from one motel to another. Mr. Ervin tried repeatedly to contact him, but respondent neither returned his phone calls nor answered his messages. Despite the best efforts of Mr. Ervin, respondent was nowhere to be found. II. Count II: Diversion of Monies Respondent did not receive a fixed salary from New Visions, Inc. Periodically, he would be paid by simply withdrawing funds from the company. During the time in question, New Vision, Inc., had four construction projects underway and respondent withdrew approximately $500. (Testimony of respondent, Popiel) The various New Vision, Inc., projects, including the Ervin project, were apparently underbid. Subcontractors were paid by Mr. Popiel out of incoming funds. But both he and respondent realized that the incoming money under the various contracts would be insufficient to pay all subcontractors for work performed. (Testimony of respondent, Popiel) Respondent was aware that the Ervin project was "running close" and that it "was probably running over" the contract price. (TR-53) It has not been shown that respondent diverted funds received for the completion of the Ervin project and that, as a result of such diversion, he was unable to complete the work. The subcontractors were not paid because the Ervin project incurred costs which exceeded the contract price. And, since New Vision, Inc., was experiencing similar difficulties elsewhere, it had insufficient funds to cover the excess costs of the Ervin project. (Testimony of respondent, Popiel; P-9, p. 32) III. Count III: Deliberate Violation of Building Code The Department alleges that respondent violated the applicable building code (Section 105.1, City of Boynton Beach Code of Ordinances) by covering the roof before the proper city inspection had been made. Pursuant to this code, it was respondent's duty to order the flat roof sheathing inspection; but it was the roofing contractor's responsibility to obtain the "tin tag" inspection before covering the roof. This is an inspection which is required to ensure that the base sheet or black felt is properly installed. Even though it was the roofing contractor's duty to call for such an inspection, the general contractor remained responsible for the entire project. (Testimony of Howell, respondent) In this case, respondent called for the sheathing inspection but the roofing contractor laid the felt and covered the roof without first calling for the requisite tin tag inspection. The building code violation was thus primarily the fault of the roofing contractor and only secondarily, or derivatively, the fault of the respondent. No evidence was presented to show that respondent approved, or knew, in advance, of the roofing contractor's failure to call for the tin tag inspection. Respondent's failure to ensure that the roofing contractor called for the required inspection cannot, without more, support a conclusion that respondent knowingly and deliberately violated an applicable building code. (Testimony of Howell, respondent) IV. Count IV: Acting in a Capacity of a Contractor Under a Name Other Than as Certified Respondent, d/b/a P & R Construction, a subsidiary of New Vision, Inc., contracted for and constructed a bathroom addition to the Ervin residence. However, neither company was qualified with the Construction Industry Licensing Board. V. Count V: Misconduct in the Practice of Contracting In this count, the Department alleges that, by virtue of the misconduct alleged in Counts I through IV, respondent is guilty of "misconduct in the practice of contracting." No additional acts of respondent were complained of or alleged. It follows that respondent can be found guilty of this charge only to the extent he is found guilty of the charges contained in Counts I through IV. VI. Mitigation There is no evidence that respondent has ever before been the subject of a disciplinary proceeding brought by the Construction Industry Licensing Board. He has worked in construction most of his life and this is the only business he knows. It is his livelihood, and, in his words, the only way "I can make a decent living." (TR-134) He is 59 years old. His goals are modest and tempered by experience: I'm just a small, small operator, and I work to make a living. I'm not going to get rich. I'm too old to get rich. Those things, thirty years ago I had that in mind. TR-134. He now realizes, better than before, the value of his contractor's license. His misconduct in connection with the Ervin project occurred when he was in the midst of a divorce and a personal ordeal. In his own words: And I bounced from place to place. I bounced off the bottom. I was living down at a flea bitten motel here. The roaches were so thick that I never thought I'd survive it. So now I guess--now I got married last September and I guess I'm getting to appreciate things which I took for granted before. I'm just getting so I appreciate them now and what-- you know, what I got and what I can do. TR-136 He admits that he did not fulfill his responsibilities from the Ervin project and understands better the hardships which his conduct imposed on Mr. Ervin.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Construction Industry Licensing Board impose a $1,000 fine against respondent for violating Section 489.129(1)(g), (k) , and (m), Florida Statutes. DONE and ENTERED this 7th day of November, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 1983.
Findings Of Fact The Respondent is a certified general contractor holding license number CG C016888. The Petitioner is an agency of the State of Florida charged with enforcing the provisions of Chapter 489, Florida Statutes, regulating the licensure and practice status and standards of building contractors in the State of Florida and enforcing the disciplinary provisions of that chapter. On December 14, 1981, Respondent contracted with Mr. and Mrs. Frank J. Sullivan to build the Sullivans a home in Sarasota County, Florida. Those parties entered into a contract whereby the Respondent was to be paid the actual cost of construction including all labor and materials plus a commission in the amount of 8 percent of the actual cost of construction, provided however, that the total contract price would not exceed $49,000, including actual costs and commission. In January, 1982, Respondent commenced work constructing the home. The Respondent worked on the home for several months and then abruptly ceased and abandoned construction without explanation on May 14, 1982. At this time the house was approximately 70 percent complete. At the time the Respondent ceased work on the project he had already been paid $47,362.29 or approximately 97 percent of the total contract price agreed to by the parties. The Sullivans thereafter had to pay $10,633.53 to subcontractors and materialmen who had been hired by the Respondent to supply labor and/or materials to the house, at the Respondent's direction, prior to his ceasing construction and leaving the job. Additionally, the Nokomis Septic Tank Company, Inc., the subcontractor who installed the septic tank, was owed $1,180.07 by the Respondent for the installation of the septic tank, which amount was to have been paid out of the total $49,000 contract price. The Respondent failed to pay Nokomis Septic Tank Company, which then filed a mechanic's lien on the property. In order to remove this cloud on their title to the property and avoid foreclosure of the lien, the Sullivans were forced to pay the $1,180.07 amount of the lien. In addition to more than $10,000 paid to subcontractors who had already performed labor or supplied materials to the job before the Respondent left it, the Sullivans had to obtain a loan from their bank in order to finish the project. The contracted for items which the Respondent had left undone (approximately 30 percent of the construction) required them to expend $18,662.04 to complete the dwelling in a manner consistent with the contractual specifications. The items which remained to be constructed or installed are listed on Petitioner's Exhibit 7 in evidence. The remaining amount of contract price which the Respondent was due upon completion of the job would have been $1,737.71. With this in mind, as well as the fact that the Sullivans had to pay in excess of $10,000 to defray already outstanding bills to subcontractors for labor and materials already furnished and then had to obtain a loan in order to pay $18,662.04 in order to complete the house, and it being established without contradiction that the Respondent was unable to make his payroll at the point of leaving the job, the Respondent obviously used substantial amounts of the funds he received from the Sullivans for purposes other than furthering the construction project for which he contracted with the Sullivans. Concerning Count II, on December 22, 1981, Frederick Berbert doing business as Venice Enclosures of Venice, Florida, contracted with Mr. Emory K. Allstaedt of Grove City, Florida, Charlotte County, to build an addition to Mr. Allstaedt's mobile home. The contract specified a price of $4,952 for which Berbert was required to construct a 12-foot by 20-foot enclosure or porch. Mr. Allstaedt never did and never intended to contract with the Respondent, Mr. Martin, rather, his contract was only with Frederick Berbert. Mr. Berbert was a registered aluminum specialty contractor in Sarasota County. He was not registered or licensed to practice contracting in Charlotte County where Mr. Allstaedt lived and where the porch was to be constructed. On December 28, 1981, the Respondent obtained building permit number 72030 from the Charlotte County Building and Zoning Department to construct a "Florida room" for Mr. Allstaedt's mobile home, the same room to be constructed by Mr. Berbert. Under Charlotte County Ordinances in evidence as Petitioner's Exhibits 13 and 13A, only a properly licensed "A", "B" or "C" contractor or a registered aluminum contractor can perform this type of job. The Respondent was appropriately licensed for this type of work in Charlotte County, but Mr. Berbert was not and thus could not obtain the permit in his own right. The Respondent's only connection with this job was obtaining the permit in his own name as contractor of record and in performing some minor work in replacing some damaged sheets of paneling shortly after the construction of the room addition and after the performance of the contract by Berbert. Though the Respondent listed himself as contractor in order to be able to obtain a building permit for the job, he never qualified as the contractor of record nor "qualified" Mr. Berbert's firm with the Construction Industry Licensing Board. Both Mr. Berbert and the Respondent were aware that Mr. Berbert could not legally perform contracting in Charlotte County at the time the Respondent obtained the building permit on Berbert's behalf.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED: That the contractor's license of Jack A. Martin be suspended for a period of ten (10) years, provided however, that if he makes full restitution to the Sullivans of all monies they expended for labor, materials and permits to enable them to complete the work he had contracted to perform, within one year from a final order herein, that that suspension be reduced to three (3) years after which his license should be reinstated. DONE and ENTERED this 27th day of April, 1984, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1984. COPIES FURNISHED: Charles P. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Jack A. Martin 305 Park Lane Drive Venice, Florida James Linnan, Executive Director Florida Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact In the fall of 1986, the Respondent, James A. Campbell, and his associate, David Ritchie, were operating a construction business known as Town & Country Construction Corp. of Tampa. Campbell was the company's qualifying contractor. At the same time, Campbell and Ritchie were in the process of starting a new company to be known as Bay City Builders, Inc. In the application for state registration of the new business, Campbell also was listed as the qualifying contractor. Campbell and Ritchie had business forms, including contract forms, printed in the name of Bay City Builders, Inc., so as to be ready to do business upon approval of the pending application. On December 5, 1986, an employee of Campbell's company, a Mr. Earl Mills, responded to a telephone inquiry from a Mrs. Josefina Rodriguez, who was interested in having a room added and some other renovations done to her home at 551 South Lois Avenue in Tampa. Mills erroneously committed Bay City Builders to a bid on the job before its application was approved. In addition, the bid was seriously low and committed to completion of the job in just 60 days, an overly optimistic time frame even on a reasonable bid. Rodriguez accepted the bid, and Mills obligated Bay City Builders to a contract with her on December 5, 1986, with an addendum dated December 18, 1986. When Campbell, who was out of town at the time, and particularly Ritchie found out what Mills had done, they fired Mills. But they decided to honor the contract. Work began timely during the last week of December, 1986. At the outset of the work, the plumbing subcontractor discovered seriously deteriorated pipes all the way to the street. It was agreed that the pipes would be excavated and replaced outside the contract, to be paid directly by Rodriguez. This delayed the performance of the contract for a limited period of time. Nonetheless, work progressed in a timely fashion through January, 1987. By January 12, 1987, Rodriguez had paid $7859 of the $12,300 due under the contract. By some point in January, 1987, the foundation footers for the 15' by 24' addition had been dug and put in, the rough plumbing had been done, the concrete slab for the addition had been poured, the concrete block walls had been laid, and the framing for the roof had been built. But then work stopped for several weeks. Mrs. Rodriguez became very concerned for several reasons. First, she was planning a trip to Puerto Rico from June to August, 1987, and, as she had explained to Mills and Ritchie, she wanted the work done before she left. Second, without a roof over the addition, water began to pool in the addition during rains and leak into the main part of the house. Third, she had had difficulty contacting the entity that had taken her money. Mills was gone, and Bay City Builders seemed to her not to exist. Campbell and Ritchie had withdrawn the application to qualify it after the Rodriguez fiasco, and it never did any business before or since. There never was a telephone listing for it. As early as February, 1987, Rodriguez sought help from the Better Business Bureau, which could not even find Bay City Builders, and filed a complaint with the Petitioner, the Department of Professional Regulation, that the contractor had abandoned the job. In mid-February, 1987, a crew returned to the job site and put plywood and tar paper roofing material on the roof. This stopped the water leakage into the main house. But then work came to a virtual standstill. All of the $7859 had been spent, and work had not progressed far enough for the next draw, $2000, under the contract. Ritchie tried to explain the situation to Rodriguez, starting from Mills' unrealistic bid. As it was, Ritchie explained, the work would be done but it was going to be long and slow. Ritchie wound up having to borrow money personally and prevailed upon sympathetic subcontractors to forebear in collecting their due in order for Ritchie to finish the project. Practically no work was done during the rest of February, any of March or the first part of April, 1987. In late April, 1987, without any prompting from the DPR or the Better Business Bureau, Ritchie managed to get workers to the job site to finish the dry wall in the addition, which would trigger the next $2000 draw under the contract, and to shingle the roof of the house (addition and pre-existing roof.) When this work was finished in May, 1987, Ritchie contacted Rodriguez to ask for the $2000 draw. Mrs. Rodriguez asked to be assured that the work would be finished before she left for Puerto Rico in June. Ritchie apologized but said it would be impossible under the circumstances. He asked her to allow the work to continue in her absence. Rodriguez refused and also refused to pay the $2000. She said if Ritchie couldn't finish the work before she went to Puerto Rico, she would get someone else to do it. That was the last Ritchie or Campbell heard about the Rodriguez job until DPR initiated this proceeding. Rodriguez did not contact another builder about finishing the work until the end of October, 1987.
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 dismissing the Administrative Complaint against the Respondent, James A. Campbell. RECOMMENDED this 7th day of July, 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 7th day of July, 1988. COPIES FURNISHED: Belinda H. Miller, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 James A. Campbell 719 South 50th Street Tampa, Florida 33619 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street 6 Tallahassee, Florida 32399-0750
