The Issue Whether Respondent committed the violations alleged in the Administrative Complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is now, and has been at all times material to the instant case, a Florida-licensed roofing contractor and general contractor. He received his roofing contractor's license on August 10, 2004, and his general contractor's license on October 13, 2005. At all times material to the instant case, GGC has held a certificate of authority authorizing it to engage in contracting in Florida through a qualifying agent. At all times material to the instant case, Respondent has been the primary qualifying agent for GGC. On January 5, 2007, GGC, through Respondent, entered into a written contract with Assad and Millicent Thompson, agreeing, for $37,135.00, to construct a rear porch lanai addition to the Thompsons' single family home in Royal Palm Beach, Florida (Project). The Thompsons paid GGC (by check) $11,140.50 at the time they entered into the contract. They made three subsequent payments to GGC (by check) totaling $21,232.50. The last of these payments was made on or about April 17, 2007. On January 9, 2007, GGC, through Respondent, applied for a permit from the Palm Beach County Planning, Zoning, and Building Department to perform the work it had agreed to do on the Thompsons' home. The permit was subsequently issued. In or around March of 2007, GGC began work on the Project. Dissatisfied with the progress GGC was making on the Project, the Thompsons, on June 5, 2007, sent the following letter to Respondent: With reference to the delay in completing the above construction, we are writing to request your immediate attention. We would like to know specifically: The reason for the delay[.] Your intention in writing as to your estimated time of completion of [the] specified project. Please note we have not physically seen you since April 19, 2007. We understand that inspection of the roof on May 10th resulted in certain violations and as per your conversation with Assad [Mr. Thompson] (when he called you on May 20th), you had problems contacting the Engineer. Please note that his name, telephone and fax are clearly indicated on the plan[s]. Per telephone conversation with him, he has not heard from you recently. You have indicated impatience and anxiety on our part, quite frankly the patience of JOB would have run out long ago. The pile of rubbish is a breeding room for all kinds of creatures and has been a disgusting sight not only for us, but for our neighbors. The open roof has created a vulnerable situation for us and can only deteriorate as we are now in hurricane season. We urge you to contact us urgently with your plan of action. Not having received a written response from Respondent, the Thompsons, on June 25, 2007, sent a follow-up letter to Respondent, which read as follows We note that you have ignored our previous letter of June 5th and you have also failed to honor your telephone promises of June 8th and June 19th to proceed with stucco/electric/rubbish removal etc. In fact absolutely nothing has been done on this job since May 18th. This is totally unacceptable. We have arrangements in place for use of the patio July 14th, cancellation of which will result in serious inconvenience for us. Please be advised that if no progress is made by June 30, 2007, we will be forced to seek all measures at our disposal to have the patio satisfactorily completed. We once again request your urgent co-operation in this matter. The next day, June 26, 2007, the Thompsons received a letter from Respondent (sent by facsimile transmission) acknowledging his receipt of the Thompsons' June 25, 2007, letter. In his letter, Respondent explained that he was "in a bad situation financially" due to circumstances "out of [his] control" related to another project, and he asked the Thompsons to "help [him] resolve[] this matter" by paying the "stucco man" $1,000.00 for materials and an additional $1,000.00 "when [the stucco work] was completed," as well as paying $400.00 for a dumpster to be brought to the Project site (which payments would go towards the monies the Thompsons had to pay for the Project under their contract with GGC). The Thompsons wrote back to Respondent that same day (June 26, 2007), advising him that they would pay for the materials for the stucco work "upon presentation of the invoice, then pay $1,000 for the job on completion as [Respondent had] requested," and that they also would "pay the dumpster charges on completion of the clean-up." Ernest Joseph was the "stucco man" that GGC sent to the Thompsons' home to work on the Project. He last worked on the Project in mid-July 2007. The Thompsons paid Mr. Joseph (by check) a total of $2,000.00 for labor and materials. They also paid Onyx Waste Services (by check) $416.91 to have a dumpster brought to the Project site. Neither GGC, nor anyone acting on its behalf, did any work on the Project after Mr. Joseph left the site in mid-July 2007. The Project was incomplete when the work ceased.2 GGC provided the Thompsons no explanation for the stoppage. In fact, the Thompsons did not hear from GGC at all. The Thompsons were anxious for the Project to be completed, and they did nothing to prevent GGC from accomplishing this objective. After more than 90 consecutive days had passed without any work having been done on the Project, the Thompsons hired another contractor to finish the Project. The Project was ultimately completed. The Thompsons paid $17,540.00 for the additional work that was necessary to complete the Project. The total amount that the Thompsons paid for the Project was $52,329.91 ($32,373 to GGC; $2,000 to Mr. Joseph; $416.91 to Onyx Waste Services; and $17,540.00 to finish the work GGC had failed to do). This was $15,194.91 more than the contract price. Petitioner has incurred a total of $182.90 in investigative and prosecutorial costs in connection with the instant case (excluding costs associated with any attorney's time).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board issue a Final Order: (1) finding Respondent guilty of violating Section 489.129(1)(j) and (m), as alleged in Counts II and IV, respectively, of the Administrative Complaint; (2) suspending his license for a period of two years; (3) fining him $7,500.00; (4) requiring him to pay restitution in the amount of $15,194.91 to the Thompsons; (4) ordering him to reimburse the Department $182.90 for investigative and prosecutorial costs; and (5) dismissing Counts I and III of the Administrative Complaint. DONE AND ENTERED this 27th day of August, 2008, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 27th day of August, 2008.
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Department), is a state government licensing and regulatory agency charged with the duty and responsibility to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, and Chapters 120, 455, and 489, Florida Statutes, and the rules promulgated pursuant thereto. At all times material hereto, Respondent, Robert Loeffler, was licensed by Petitioner as a certified general contractor, having been issued license number CG C040314.1 At all times material, Respondent's certified general contractor's license authorized him to engage in the practice of contracting in his individual capacity only, and not as the qualifying agent of any business entity. At all times material, Respondent was the owner, sole director and sole officer of Loeffler Building and Design, Inc. ("LBD"), a Florida corporation. At no time was LBD registered or certified to practice contracting in the State of Florida. In April 1993, Anthony Pirrone and his wife Sheila Pirrone purchased a home at 680 North Island Drive, Golden Beach, Florida. Before moving in, the Pirrones wanted the house renovated, and they negotiated with Respondent and arrived at an agreement whereby LBD, as contractor, would do the work. In February 1994, the Pirrones and Respondent, as president of LBD executed a written contract, dated August 16, 1993, for the improvements. By that time, LBD had already done some work, and the Pirrones had already made some payments to LBD. Indeed, in or about July 1993, Respondent, on behalf of LBD, submitted an application for a demolition permit to the Town of Golden Beach. The application listed "Loeffler Building and Design" as the contractor, and named Respondent, with his license number, as the corporation's qualifier. The permit was issued August 9, 1993. On or about November 3, 1993, Respondent, on behalf of LBD, submitted an application for a permit to commence the renovations and improvements contemplated by the agreement with the Pirrones. The application listed "Loeffler Building," which is understood to mean Loeffler Building and Design, Inc., as the contractor, and again named Respondent, with his license number, as the corporation's qualifier. The permit was issued November 5, 1993. LBD continued work on the Pirrone home until August 1994, when all work ceased. On December 5, 1994, incident to the pending dispute between the parties, the Pirrones terminated their agreement with LBD. The Pirrones and LBD asserted claims against each other, and the claims became the subject of litigation between them. The claims were arbitrated, and on July 24, 1995, the arbitrator issued an award denying LBD's claim against the Pirrones, andgranting the Pirrones' claim against LBD in the amount of $62,315.81, together with interest and administrative fees, for a total award of $65,512.13. On October 26, 1995, a final judgment confirming the arbitrator's award was entered in the Circuit Court, Dade County, Florida, Case No. 95-01131. At the time of hearing, neither Respondent nor LBD had made any payment on the judgment, nor had they entered into an agreement with the Pirrones to satisfy the judgment by making periodic payments.2 Respondent has had no prior complaints filed against him with the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing Count III of the Administrative Complaint, finding Respondent guilty of Counts I and II of the Administrative Complaint, and imposing an administrative fine of $250.00 against Respondent. It is further RECOMMENDED that the final order assess the reasonable costs of investigation and prosecution against Respondent.4 DONE AND ENTERED this 10th day of November, 1997, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1997.
The Issue The issue in this case is whether the Construction Industry Licensing Board should discipline the Respondent, Ysidro Cid Fernandez, on the basis of the charges alleged in the Administrative Complaint which the Petitioner, the Department of Professional Regulation, filed against him on November 30, 1987.
Findings Of Fact The Respondent, Ysidro Cid Fernandez, is licensed as a certified roofing contractor in the State of Florida, holding license number CC-C029602. The Respondent's license was in effect at all times referred to in these Findings of Fact. On or about March 15, 1986, an employee of Sunshine Solar and Roofing, a roofing company for which the Respondent acted as qualifying agent, entered into a contract with Fred Chambers to re-roof a house Chambers owned at 5871 64th Terrace North, Pinellas Park, Florida. The house was a small house, with not more than 1000 square feet of living area, and the contract was to re-roof the entire house for $600 plus tax ($31.50). The shingles to be used were to be 20-year shingles. The contract also provided: "Install on front F/S [far side] 8' long 5" wide T/G [tongue in groove] board." The Respondent's company did the work in April, 1986. Chambers paid the full amount of the contract, $200 down and the balance on or about May 1, 1986. Despite the re-roof, the roof still leaked where it did before the work was done. When Chambers called for warranty repair work, the Respondent refused until Chambers paid what the Respondent said was the cost of extra work the Respondent claimed Chambers had had the Respondent's workers do. The Respondent first came to the opinion that extra work had been done after he received invoices from his supplier indicating that his employees had ordered 1600 square feet of shingles for the job. The Respondent asserted that the contract called for only the front far side of the roof to be replaced. He bases this interpretation of the contract on the language quoted in the last sentence of Finding 2, above. The Respondent claimed that 1600 square feet was twice as much shingle as would be needed to re-roof half of the existing roof. Regardless whether the Respondent's employees ordered too much shingle for the Chambers job, or where the extra shingle might have gone, if not on the Chambers roof, the contract provided for the entire Chambers roof to be replaced for the contract price. The Respondent was not justified in demanding additional money before doing warranty work. The City of Pinellas Park, Florida, the governmental entity with jurisdiction over the Chambers job, required that a building permit be obtained before commencing the Chambers re-roofing construction. The City of Pinellas Park also required inspections of the Chambers re-roofing job. The Respondent claimed to have timely obtained a building permit for the Chambers job and, in testimony at final hearing, detailed an elaborate story about how he went about getting one. But the Respondent's own evidence, in the form of late-filed Respondent's Exhibit 2, establishes that he did not apply for the building permit until December 17, 1987, after receiving notice through the November 30, 1987, Administrative Complaint in this case, that the Department was charging him with failure to obtain a building permit for the job. Not having obtained a building permit, the Respondent did not call for the required inspections for the job. The evidence did not prove that the Respondent was grossly negligent or incompetent in estimating the cost of the Chambers job. First, the evidence did not prove that the job was seriously underestimated; to the contrary, the evidence tended to show that the Respondent's employees ordered more material than needed for the job. (When this came to the Respondent's attention, he unfairly blamed Chambers for having his employees do extra work not called for by the contract.) Second, the Respondent had nothing to do with the cost estimate on the job. The Respondent's price per square foot of roof area was fixed; he depended on his employees to accurately measure the size of the roof being priced. There is no evidence how the Respondent went about training his employees to measure a roof for purposes of a cost estimate. The Respondent has been disciplined by the Construction Industry Licensing Board once before. He received a reprimand in August, 1987, for failure to obtain a building permit.
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 suspending the Respondent's license for one year and fining the Respondent $2,500. RECOMMENDED this 25th day of July, 1989, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0570 To comply with the requirements of Section 120.59(2), Florida Statutes (1987), the following rulings are made on the Petitioner's proposed findings of fact (the Respondent not having filed any): Rejected in part (the Respondent's name is not Thomas L. Jackson); otherwise, accepted and incorporated. Accepted and incorporated. Rejected in part; the evidence did not prove that the roof was unfinished or that the roof was done correctly or that the work was done incorrectly, only that it leaked after the work was done. 4.-6. Accepted and incorporated. Rejected as not proven by the evidence. (See 3., above.) Accepted and incorporated. COPIES FURNISHED: David Bryant, Esquire 13014 North Dale Mabry Suite 315 Tampa, Florida 33618 Ysidro Cid Fernandez 2700 North McDill Avenue Suite 204 Post Office Box 4726 Tampa, Florida 33607 Ysidro Cid Fernandez 8109 Rivershore Drive Tampa, Florida 33604 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Kenneth Easley, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729
The Issue The issue in this case is whether the Petitioner is entitled to an award of attorney's fees and costs pursuant to section 57.111, Florida Statutes (2011).1/
Findings Of Fact By a three-count Administrative Complaint dated June 7, 2011, the Respondent charged the Petitioner with alleged violations of law related to the sale of certain products. The allegations of the Administrative Complaint were prosecuted in the disciplinary case. A final hearing in the disciplinary case was conducted on January 24 and 25, 2012. On April 18, 2012, the ALJ issued a Recommended Order determining that the products referenced in the Administrative Complaint were unregistered securities and that the Petitioner "violated section 626.611(16) [Florida Statutes,] by selling an unregistered security that was required to be registered pursuant to chapter 517." The Administrative Complaint also charged the Petitioner with additional violations of statute including a "[d]emonstrated lack of fitness or trustworthiness to engage in the business of insurance," in violation of section 626.611(7). As set forth in the Recommended Order, the ALJ determined that the evidence failed to establish the additional violations. Based on violation of section 626.611(16), the ALJ recommended that the Petitioner's license be suspended for a total of six months, two months for each product sale alleged in the three separate counts of the Administrative Complaint. On July 6, 2012, the Respondent issued a Final Order determining that in addition to the violation of section 626.611(16) found by the ALJ, the Petitioner had also violated section 626.611(7). Despite finding the additional violation, the Respondent adopted the penalty recommended by the ALJ. The Petitioner took an appeal of the Final Order to the District Court of Appeal for the Fifth District. The Court determined that the products sold by the Petitioner were not securities that required registration at the time they were sold by the Petitioner, and, on June 21, 2013, issued an order reversing the Final Order issued by the Respondent. The parties have stipulated that the Petitioner was the prevailing party in the disciplinary case and is a "small business party" as defined by section 57.111(3)(d).
The Issue The issue for determination is whether the Respondent should declare the Petitioner "non-responsible" for a period of one year; and, accordingly, ineligible to bid on any Respondent contract or perform as a material supplier, subcontractor, or consultant with regard to any Respondent contract for that period of time.
Findings Of Fact On July 30, 2002, the Respondent sent the Petitioner a Notice of Intent to declare the Petitioner non-responsible to bid on or be connected in any way for a period of one year with any contract issued by the Respondent. Reasons for the intended action, as cited in the Notice were: 1) numerous incidents involving unprofessional behavior on the part of the Petitioner's president in his relations with the Respondent's employees in the course of performing contractual work for the Respondent; 2) the attempt by the Petitioner's president to avoid contractual responsibility in a previous agreement with the Respondent by insisting that the Respondent's employees perform functions allocated to the Petitioner by the agreement; 3) attempts by the Petitioner's president to dictate which of the Respondent's employees would oversee contracts involving the Petitioner; 4) attempts by the Petitioner's president to remove the Respondent's employees from supervision of contracts involving the Petitioner when the employees disagreed with him; 5) substandard performance by the Petitioner as evidenced by contractor field performance scores on contracts with the Respondent; and 6) the attempts of the Petitioner's president to receive payment from the Respondent at the rate paid for more lucrative "spot" applications as opposed to less highly paid "strip" applications when the contractual arrangement provided that the Respondent would determine the applicable rate. This activity by the Petitioner resulted in an unnecessary administrative burden to the Respondent's contract manager. The Petitioner's president has threatened, intimidated, and displayed unprofessional behavior toward Respondent's employees. By letter dated October 1, 2001, he called the Respondent's employees "incompetent" and avowed that "this is like letting the thief watch the vault or putting the dog inside the chicken pen, at best, letting the blind lead the blind. Please Lord, help their ignorance." By letter to the Respondent dated May 3, 2002, the Petitioner's president accused the Respondent's employees of going "to the very depths of evil or unfair competition-selective enforcement." By letter to the Respondent dated May 20, 2002, the Petitioner's president accused the Respondent's personnel of "evil and corrupt abuse of power by a handful of revengeful men" and avowed that the Respondent selectively enforced its contracts and inflicted evil. Several letters continued in the same vein from the Petitioner's president to the Respondent over ensuing months in which the Petitioner's president referred to various of the Respondent's employees as stupid, incompetent, slothful, unknowledgeable, inexperienced, ignorant, ungodly, and wicked. On July 3, 2002, the Petitioner's president called the Respondent's maintenance yard and spoke with the Respondent's employees, subjecting them to a tirade of extreme profanity, accusations, and threats. On another occasion, the Petitioner's president told the Respondent's employees that he would resolve a problem with a Respondent's employee with something Petitioner's president had under his truck seat. The involved Respondent's employees assumed that the Petitioner's president was referencing a weapon under the seat of the truck. In the course of a July 11, 2002, meeting, the Petitioner's president became loud and abusive to the extent that he could be heard through the walls of the Respondent's facility where the meeting was conducted. Effected Respondent's employees were intimated by the Petitioner's president and took his various threats and harangues of retaliation seriously. As established by the conduct of the Petitioner's president at the final hearing, where he frequently referenced a recent stroke as the reason for his emotional manner, the Petitioner's president presents as unstable and threatening to others who disagree with him. The Petitioner's president attempted to avoid the Petitioner's responsibilities under contracts with the Respondent, seeking to have the Respondent's employees tell the Petitioner's employees what to do on the job in the performance of contractual duties. Such an action by the Respondent's employees was appropriately considered by them to be beyond the scope of their responsibilities, since the agreements between the Petitioner and the Respondent basically specified that the Respondent determined the scope of work to be done while the Petitioner determined the methods to accomplish the specified tasks. Supervision of a contractor's employees is the duty of the contractor, not the Respondent. The Petitioner's contractor field performance scores on Respondent contracts E2E47 and E2E27 were 48 and 51, respectively, well below the Respondent standards of acceptability that begin with a minimum score of 70 out of a possible 100 points. The scores were merited based on the Petitioner's failure to timely clean up tree trimmings, tree limbs, rubble and debris near roadways where such trash presented potential safety hazards to the motoring public. On Respondent contract E2D95, the Petitioner's president knew that the scope of work involved spraying herbicide on a "spot" basis and a "strip" basis with the Respondent to determine which type would be applicable to each particular work order it issued to the Petitioner under the contract. Despite these requirements of the contract, the Petitioner's president attempted to receive payment for the "spot" or higher-priced application when compliance with contractual provisions required that Petitioner accept payment at the lesser rate for "strip" application. By not complying with the contract in this respect, the Petitioner's president created unnecessary administrative burdens for the Respondent's contract manager.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED: That a final order be entered finding the Petitioner to be non-responsible due to violations of Section 337.16(2), Florida Statutes, and Rule 14-22.0141, Florida Administrative Code. DONE AND ENTERED this 11th day of March, 2003, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 11th day of March, 2003. COPIES FURNISHED: Barbara G. Hines, Esquire Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Stop 58 Tallahassee, Florida 32399-0458 Larry Holley Larry Holley Tree and Lawn Spraying, Inc. Route 11, Box 588 Lake City, Florida 32024 Angela T. Miller, Esquire Department of Transportation 1109 South Marion Avenue Mail Stop 2008 Lake City, Florida 32025-5874 James C. Myers, Clerk of the Agency Proceedings Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Stop 58 Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Stop 58 Tallahassee, Florida 32399-0450
The Issue The issues in this case are whether Respondent, Daniel F. Acevedo, committed the offenses alleged in a four-count Administrative Complaint filed with Petitioner, the Department of Business and Professional Regulation, on July 11, 2008, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for, among other things, the licensure of individuals who wish to engage in contracting in the State of Florida; and the investigation and prosecution of complaints against individuals who have been so licensed. See Chs. 455 and 489, Fla. Stat. Respondent, Daniel F. Acevedo, is and has been at all times material hereto a certified general contractor in Florida, having been issued license number CGC 1506071. Mr. Acevedo is also a Certified Roofing Contractor, having been issued license number CCC 1326888. Both licenses were issued by the Construction Industry Licensing Board (hereinafter referred to as the “Board) and are in “current active” status. At all times material, Mr. Acevedo was the primary qualifying agent for All Design Systems, Inc. (hereinafter referred to as “All Design”). All Design is a Florida corporation. Mr. Acevedo is an officer of the corporation. All Design’s certificate of authority, License Number QB 26737, was issued on September 4, 2003. The license expired on August 31, 2007, and was in delinquent status from September 1, 2007, to May 14, 2008. Mr. Acevedo remained the qualifying agent during the delinquent period. All Design employed three to four sales agents who “sold” construction projects to commercial and residential property owners on behalf of All Design. All Design utilized these individuals because it believed they had experience in the construction industry and that they held licenses or certifications which would allow them to perform estimates on construction projects and make appropriate bids. The sales agents were to find customers for All Design and enter into contracts with them on behalf and in the name of All Design. In August of 2005, Mr. Acevedo was approached by Eduardo Rodriguez. Mr. Rodriguez offered to locate potential home remodeling customers for All Design in exchange for a percentage commission. Mr. Acevedo agreed. At no time relevant to this matter was Mr. Rodriguez licensed in Florida to engage in contracting as a state certified or registered contractor. Nor was Mr. Rodriguez’s business entity, Eduardo’s Construction, Inc. (hereinafter referred to as “Eduardo’s Construction”), licensed with a certificate of authority as a contractor qualified business. Mr. Rodriguez was the president and sole officer of Eduardo’s Construction. Eduardo’s Construction was not incorporated in Florida. Some time during 2005, Grace Esposito obtained a business card for Eduardo’s Construction. She obtained the card after discussing with a neighbor construction work that was being performed by Eduardo’s Construction on the neighbor’s residence. The neighbor informed her that Mr. Rodriguez was the contractor performing the work. The business card incorrectly represented that Mr. Rodriguez was licensed and insured. Ms. Esposito called the number listed for Eduardo’s Construction and spoke with a man who identified himself as Eduardo Rodriguez. In August 2005, Mr. Rodriguez met with Ms. Esposito at her condominium residence, located at 20301 West Country Club Drive, Aventura, Florida (hereinafter referred to as the “Subject Property”). Ms. Esposito discussed with Mr. Rodriguez the work which she desired. Based upon representations from Mr. Rodriguez, Ms. Esposito believed that he was licensed to perform the work being discussed. The evidence failed to prove, as suggested by Mr. Acevedo, that Mr. Rodriguez “bid on the Esposito job, [and] orally agreed to essential terms with Esposito on behalf of All Design Systems, Inc., Respondent’s Firm.” Mr. Acevedo’s testimony in this regard was uncorroborated hearsay and was contradicted by the credible testimony of Ms. Esposito. On September 5, 2005, Ms. Esposito entered into a written contract with Mr. Rodriguez, doing business as Eduardo’s Construction, for the remodeling of the Subject Property (hereinafter referred to as the “Contract”). Ms. Esposito agreed in the Contract to pay $24,000.00 for the remodeling. Upon execution of the Contract, Ms. Esposito paid Eduardo’s Construction with three checks totaling $12,000.00 for the remodeling. Mr. Rodriguez informed Mr. Acevedo of the project in September 2005. At that time, without reviewing the Contract, Mr. Acevedo executed a building permit application which Mr. Rodriguez provided him for the project. The permit application had not been signed by Ms. Esposito. In October 2005, Mr. Rodriguez presented the building permit application to Ms. Esposito for her signature. The permit application was then submitted to the building department. The building permit was subsequently approved and issued under Mr. Acevedo’s license and in the name of All Design. Ms. Esposito had been told that part of the work would be completed in October. When this representation proved untrue, she began contacting Mr. Rodriguez. Mr. Rodriguez told her that it was taking time to get the permit due to delays at the building department. Eventually, when she was no longer able to contact Mr. Rodriguez, Ms. Esposito went directly to the building department where she learned that All Design was the contactor of record and not Eduardo’s Construction. On or about October 31, 2005, Ms. Esposito telephoned All Design and spoke with Mr. Acevedo. She informed Mr. Acevedo about the Contract. Mr. Acevedo agreed to meet with her. On November 1, 2005, Mr. Acevedo visited Ms. Esposito at the Subject Property. She showed him the work that had been performed and explained the details of the Contract and what had transpired with Mr. Rodriguez. Mr. Acevedo told Ms. Esposito that his relationship with Mr. Rodriguez was that he merely allowed Mr. Rodriguez to use his license to pull permits in exchange for $150.00. Mr. Acevedo told Ms. Esposito that he would attempt to get Mr. Rodriguez to complete the job. This meeting was memorialized in a letter to Mr. Acevedo written by Ms. Esposito. At some time in November, work recommenced on the project. Within approximately three days, however, work stopped. Ms. Esposito sent four emails to Mr. Acevedo describing the work performed and the cessation of the project. Ms. Esposito made a final request that the project be completed. Mr. Acevedo did not respond to the emails. On or about November 17, 2005, Ms. Esposito sent a letter to Mr. Acevedo outlining the events, requesting termination of the Contract, and the removal of Mr. Acevedo from the building permit. Mr. Acevedo did not respond to this letter. The building permit was cancelled by Mr. Acevedo in December 2005. The total investigation costs incurred by the Department, excluding those costs associated with any attorney’s time, was $381.83. Mr. Acevedo has not previously been disciplined by the Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Daniel F. Acevedo violated the provisions of Section 489.129(1)(d), (i), and (m), Florida Statutes, as alleged in Counts I, II, III, and IV of the Administrative Complaint; imposing fines of $250.00 for Count I, $1,000.00 for Count II, and $2,000.00 for Count III; requiring that Mr. Acevedo pay the costs incurred by the Department in investigating and prosecuting this matter; placing Mr. Acevedo’s licenses on probation for a period of two years, conditioned upon his payment of the fines, payment of the costs incurred by the Department; and any other conditions determined to be necessary by the Board. DONE AND ENTERED this 11th day of March, 2009, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 11th day of March, 2009. COPIES FURNISHED: Brian P. Coats, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2022 Daniel Acevedo All Designs Systems, Inc. 2813 Executive Drive Weston, Florida 32388 Kenneth Stein, Esquire 8436 West Oakland Park Boulevard Sunrise, Florida 33351 G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent's License as a general contractor should be revoked for alleged violation of Sections 468.112(2)(a) & (c), Florida Statutes. Respondent was not present at the hearing although notice of hearing had been provided him under date of February 17, 1976. Accordingly, the hearing was conducted as an uncontested proceeding.
Findings Of Fact E.J. Lamberth, III, holds general contractor certification number 006734. Addition Builders, Inc., Miami, Florida was registered as a certified general contractor on July 16, 1974 with Respondent as the qualifying individual thereon (Exhibits 6 & 7). On August 16, 1975, Respondent applied for a building permit from Metropolitan Dade County, Florida, for the purpose of adding a den to the home of Mr. and Mrs. S.A. Cohen, 7525 Southwest 77nd Court, Miami, Florida. The contractor for the job was listed as Addition Builders, Inc. Permit Number BS15057 was issued on August 19, 1974 (Exhibit 1.) On August 6, 1974, Respondent applied for a building permit from the City of North Miami, Florida for the addition of a bedroom and bath at premises owned by Mr. & Mrs. Michael J. Retter, 416 N.W. Opa Loka Boulevard, North Miami, Florida which showed Addition Builders, Inc. as the contractor. Permit A2860 was issued on August 20, 1974 (Composite Exhibit 2.) The work to be performed as set forth in the above permits was pursuant to contracts between the owners and Addition Builders, Inc. as contractor (Exhibits 5 & 8.) Acting upon complaints filed by the owners of the property involved in the above two contracts, Mr. William F. McDonald, a field investigator for Petitioner, met with the Respondent on February 21, 1975. In a voluntary statement made to Mr. McDonald and Mr. James Brooks, another investigator, at that time, Respondent admitted that he had not actually supervised either job but had depended upon Addition's superintendent to do so, and that he became the qualifying general contractor for Addition as a result of a newspaper advertisement. As part of his investigation, Mr. McDonald established that Respondent had been employed as a recreation supervisor by Metropolitan Dade County since January 9, 1963. McDonald also visited both of the homes in question and observed that the work under the contract was incomplete in February, 1975 (Testimony of McDonald, Exhibits 4, 5 & 9.) Respondent was never seen by owner Retter during the course of the work. Approximately 60 percent of the work was completed by Addition on this job, but the owner was obliged to complete the remainder himself (Testimony of Michael Retter.) Respondent advised Addition by letter that, effective December 24, 1974, he was resigning as general contractor for the firm. On February 20, 1975, the building official of the City of North Miami wrote to Respondent advising that they had received complaints on the stoppage of work at the Retter residence and requesting expedition of completion. Respondent answered that he had disassociated himself from Addition Builders, Inc. (Testimony of Lindblad, Composite Exhibit 3A & B.)
Recommendation That the certification as a general contractor of E.J. Lamberth, III, Number 0006734, be revoked. DONE and ENTERED this 5th day of April, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida COPIES FURNISHED: Barry Sinoff, Esquire Blackstone Building Suite 1010 Jacksonville, Florida 32202 Mr. E.J. Lamberth, III Addition Builders 7251 N.E. 2nd Avenue Miami, Florida 33138
The Issue Whether Respondent violated various provisions of Section 489.129(1) by failing to pay for all roofing materials used on the North Orient Road job; by filing a false payment statement and by having his permitting privilege revoked by the City of Tampa Unified Construction Trades Board.
Findings Of Fact The Petitioner is the Department of Professional Regulation charged, in conjunction with the Construction Industry Licensing Board, with the responsibility to prosecute administrative complaints pursuant to Chapters 489, 455 and 120, Florida Statutes, and the Rules promulgated pursuant to the statutes. Respondent is and has been at all times material hereto, a certified roofing contractor and a registered roofing contractor in the State of Florida, having been issued license numbers CC CO39803 and RC 049317. At all times material hereto, Respondent was the licensed qualifying agent for Jenkins Economy Roofing, Inc., for which Sharon K. Jenkins was an officer. Ed Nabakowski is, and has been at all times material hereto, the owner of the real property and improvements thereon located at 2501 North Orient Road, Tampa, Hillsborough County, Florida. R. L. Dykes is, and has been at all times material hereto, a certified general contractor duly licensed by the State of Florida. In the months proceeding July 1988, Nabakowski entered into a contract with Dykes wherein Dykes agreed to construct a commercial building upon Nabakowski's property on North Orient Road. Pursuant to that contract, Dykes entered into a subcontract on July 6, 1988, with Respondent Jenkins, doing business as Jenkins Economy Roofing, Inc., wherein Jenkins agreed to construct the roof of the building. Pursuant to the subcontract, Dykes agreed to pay Jenkins the sum of $8,487.00 which payment included costs of all materials, supplies and labor. Pursuant to the subcontract, Jenkins had the sole responsibility for ordering, arranging delivery to the site and paying for such materials and supplies as would be necessary for the construction of the roof. Jenkins construction activities commenced on July 6, 1988 and were concluded within the time contemplated by the subcontract. Greenbriar Building Materials, Inc., was, in July 1988, a supplier of building materials in Tampa, Florida. In connection with his construction of the roof, Jenkins ordered certain materials and supplies from Greenbriar which were delivered to the construction site. The materials and supplies had not been altered in their form or substance in any discernable manner between the Greenbriar warehouse and the construction site. Greenbriar maintained invoice records of the specific materials and supplies delivered to the job site. Greenbriar's records had three invoices for the North Orient Road site. The total sum of the three invoices was in the amount of $5,747.22. The invoiced price of the materials and supplies was usual and reasonable. The materials and supplies listed on the Greenbriar invoices were of such nature and quantity as would normally be used in the construction of the particular roof structure of this project. The materials and supplies listed in the invoices were used for and exhausted in the construction of the roof. By check dated August 8, 1998, Dykes paid Jenkins the sum of $6,790.00 as a draw against the total amount of the subcontract. On August 15, 1988, and as a prerequisite to receiving the draw payment a document titled "Partial Waiver of Lien" was signed by Sharon K. Jenkins as Secretary for Jenkins Economy Roofing, Inc. Under the terms of that document, Respondent warranted that " ... invoices for all materials, supplies and services provided by others ... arising out of work or items furnished to the described property, prior to the date hereto, have been paid." Greenbriar recorded a Claim of Lien in the Official Records of Hillsborough County, Florida, on September 19, 1988, securing the debt for roofing materials delivered to the job site. The lien was in the exact amount of the sum of the three Greenbriar invoices, to wit: $5,747.22. In the text of the Claim of Lien which was executed under oath by Greenbriar, Notice to Owner was certified as having been served on July 26, 1988. There was not and has not been any dispute as to the validity of the lien and all interested parties have acted in accord with the lien's validity. By certified letter dated September 28, 1988, Greenbriar made formal demand of the owner, Nabakowski, for payment of the amount of the Claim of Lien under threat of foreclosure. Nabakowski communicated with Dykes and in accord with professional responsibility, Dykes paid the full amount of the debt due to Greenbriar. Dykes payment to Greenbriar resulted in the satisfaction of the lien against the owners property on December 12, 1988. Dykes was financially harmed by paying the amount necessary to secure the satisfaction of the lien against the owner's property. It caused him to twice pay for the same building materials, since he had already paid Jenkins the amount necessary to pay Greenbriar at the time of his drab on August 8, 1988. Jenkins Economy Roofing had not paid the debt due to Greenbriar for materials supplied to this job at the time of signing the Partial Waiver of Lien. Jenkins Economy Roofing, Inc., did not pay the debt due to Greenbriar for materials supplied to his job site at any time thereafter. Pursuant to a formal complaint filed by Dykes on September 21, 1988, the City of Tampa, Code Compliance Section, conducted an investigation of Jenkins's transactions relative to the construction project on North Orient Road. As a result of the investigation, Jenkins was charged with violations of the City of Tampa Code, Chapter 25, Sections 25-101(6),(7),(19) and (22). A disciplinary action against Respondent was scheduled for hearing before the Unified Construction Trades Board. Respondent was notified of the disciplinary action hearing by certified mail. Respondent failed to respond to or appear at the City of Tampa disciplinary action. Pursuant to evidence produced at the hearing on January 3, 1989, the Unified Construction Trade Board unanimously determined that Respondent was guilty of violating City of Tampa Codes and disciplined Respondent by permanently revoking his permitting privileges. Respondent was notified of this local disciplinary action in writing and was verbally advised of his rights to appeal and the appellate review procedure by Darrow in a subsequent telephone conversation. Respondent did not appeal the local discipline. In Department of Professional Regulation v. Thomas L. Jenkins, DPR Case No. 89-903, which is an unrelated disciplinary action case, the Construction Industry Licensing Board entered a Final Order on November 28, 1990, finding Respondent guilty of violating local building codes, being disciplined by any municipality and misconduct in the practice of contracting, i.e., violations of Section 489.129(1)(d),(e) and (m). The Final Order imposed a fine of $2,500.00 against Respondent and ordered that his license CC CO39803 be suspended until the fine is paid.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding the Respondent guilty of violations of Counts I through V of the Amended Administrative Complaint. It is FURTHER RECOMMENDED that the Board REVOKE the Respondent's license as a certified roofing contractor, number CC C039803, and as a registered roofing contractor, number RC 0049317, in accordance with disciplinary guidelines set forth in Rule 21E-17.001, Florida Administrative Code. DONE AND RECOMMENDED this 25th day of February, 1991, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 25th day of February, 1991. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact. Accepted in substance: paragraphs 1-47. Respondent's Proposed Findings of Fact. Respondent did not submit proposed findings of fact. COPIES FURNISHED: Craig M. Dickinson, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Thomas L. Jenkins HC 73, Box 3035 Vanceburg, KY 41179 Daniel O'Brien Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 Jack McRay General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
The Issue The issue to be determined is whether Respondent violated section 489.129(1)(i), Florida Statutes (2009), by violating section 489.126(2)(a), as alleged in the Amended Administrative Complaint, and if so, what penalty should be imposed?
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of the construction industry pursuant to section 20.165 and chapters 455 and 489, Florida Statutes. At all times material to these proceedings, Respondent has been licensed as a certified residential contractor in the State of Florida, having been issued license number CRC 057893 in May 2000. During all times material to these proceedings, Respondent has been the primary qualifying agent of Jacksonville Home Improvements, Inc. (JHI). Respondent has been the subject of prior discipline. On or about April 6, 2012, the Construction Industry Licensing Board issued a Final Order against Respondent in Case No. 2011015263, for violating section 489.129(1)(q), Florida Statutes (2009) (failing to pay a civil judgment related to the practice of contracting within a reasonable time). The Final Order imposed an administrative fine in the amount of $500.00, costs in the amount of $246.21, and payment of restitution in the amount of $39,500, or satisfaction of the outstanding civil judgment. On or about July 12, 2012, Respondent’s Motion for a payment plan was denied, and the decision was memorialized by order dated October 11, 2012. As a result of the prior discipline, the records for the Department indicate that his license is currently suspended for failure to comply with the Final Order described in paragraph four. Respondent is also the subject of several other Administrative Complaints, submitted as Petitioner’s Exhibit 3. The resolution of these complaints is not at issue in this proceeding, and no evidence was submitted to demonstrate the validity of these complaints. Petitioner’s Exhibit 3 was admitted solely for the purpose of determining penalty in accordance with the Board’s disciplinary guidelines, which will be discussed below. On or about January 12, 2010, Respondent, d/b/a JHI, entered into a contract with Theresa Smith for renovations of her home at 2266 Mangrove Lane, Green Cove Springs, Florida. Ms. Smith’s home had been damaged in a fire, and she and her son were living in an RV on the property until the home could be repaired. The job involved a structure which is attached to an existing mobile home. The contract price for the job described in the initial contract is $46,700. The contract specified that Respondent would obtain a permit to complete the listed work; further specified that Respondent would provide all necessary architectural drawings and engineering; and that all specifications and engineering would meet existing state and local building codes. The contract required that Ms. Smith pay a retainer of $14,010, representing 30 percent of the contract price. Further payments under the contract consisted of an additional 30 percent upon framing and new roof; 30 percent upon plumbing, electric, A/C, and windows; and 10 percent upon completion. On or about January 19, 2010, Respondent accepted a check from Ms. Smith for $14,010.00, representing the retainer specified in the contract. A standard permit application form must be submitted as part of any permit application to the Clay County Building Department. The application must be complete before the Building Department will accept it for processing. Respondent did not submit a permit application for the job at 2266 Mangrove Lane until March 24, 2010. The application submitted was signed by Ms. Smith on March 15, 2010, and signed by Respondent on March 24, 2010. No earlier permit application was ever submitted by Respondent to the Building Department for this project. Respondent claims that he did not know that he would be required to have engineered drawings for the project until he inquired at the building department on or about January 19, 2010, and received a call telling him of the requirement the next day. In his view, these discussions with the building department were sufficient to meet the filing requirement even though he admits he submitted nothing on the day he spoke to staff at the building department. His claim is belied by the language of the contract itself. As noted in paragraph eight, the contract specifically indicates that the contractor will provide all necessary architectural drawings and engineering, and that all specifications and engineering will meet existing state and local building codes. These provisions do not appear to be part of the form used for the contract, but instead are part of the specifications for this job. The representation made to the homeowner receiving the proposed contract is that these issues were already contemplated. He also claimed that after the contract for this project was executed, “the governor” changed the law related to the type of structure involved, leaving the project to the mercy of the local official.1/ No evidence of this supposed change was introduced. On or about May 25, 2010, the parties executed an Addendum to the contract, providing for additional work to be performed and requiring an additional payment of $14,711.00. The total cost of the job, with the work described in the Addendum included, was $61,411.00. Ms. Smith has paid a total of $56,731 to complete the repairs on her home. To date, over three years after signing both the initial contract and the Addendum, the construction on the home is far from complete. The air conditioning, duct work, drywall, carpet, flooring, and fixtures still must be installed, and the siding needs to be replaced. Although Respondent has promised he will complete the project, Ms. Smith does not believe he will ever complete the work. She cannot live in the home, and she and her son continue to live in an RV parked on the property. Ms. Smith sought and received an estimate in February 2003 to complete the work on her home and bring the structure up to code. The proposed contract price is $63,900.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board enter a Final Order finding that Respondent violated section 489.216(2)(a) and therefore violated section 489.219(1)(i). It is further recommended that the Department impose an administrative fine of $5,000; assess costs to be determined by the Board; suspend his license for a period of two years; and that he be directed to pay restitution to Theresa Smith in the amount of $56,731.00 (the amount she paid him on the contract). DONE AND ENTERED this 29th day of May, 2013, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 2013.
