The Issue Whether the Respondent committed the violations alleged in the Administrative Complaints and, if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency charged with regulating the construction industry within the State of Florida. At all times material to the allegations of these cases, the Respondent was licensed by the Department as a certified general contractor, license number CG C007009. Additionally, due to the time period from which the Respondent held his license he was "grand- fathered" to perform roofing construction. The Respondent was the qualifying agent of O. Benitez & Associates, Inc., a Florida corporation. On November 13, 1997, the Respondent executed a contract with Maricel Alayon to construct a terrace for a home located at 1215 West 82nd Street, Hialeah, Florida. While Ms. Alayon referred to the structure as a "terrace," it was to be a covered (roofed) open porch attached to her home at the rear of the property. The price for the addition was $14,125.00. The contract that was prepared by the Respondent for Ms. Alayon's signature did not contain the Respondent's license number or a written notice of the consumer's rights under the Construction Industry's Recoveries Fund. Ms. Alayon paid the Respondent the full $14,125.00 on or about November 17, 1997. Despite having been paid the full amount, the Respondent did not complete the Alayon project. The work was begun on or about November 27, 1997, but was never finished. Ms. Alayon did not fire the Respondent, did not refuse access to her property, and never refused to pay the Respondent monies owed for the work. Curiously, the Respondent obtained the building permit for the Alayon project on January 27, 1998. The Respondent never called for a final inspection on the job and, as of March 29, 2001, a final passing inspection for the project had not been performed by building officials. In addition to the contract amount, Ms. Alayon paid $3,575.00 for materials that were used in the construction of the porch. The Respondent did not reimburse Ms. Alayon for that amount. In May of 1998, the Respondent began negotiations with Mr. and Mrs. Piloto for the construction of an addition to their home to include an in-ground swimming pool. From the beginning of the talks, Mr. Piloto advised the Respondent that the couple could only invest $38,000 for the remodeling work as that was the amount the bank had approved for the project. The Pilotos wanted to build a bedroom, an expanded bathroom, and a swimming pool at the rear of their home located at 750 West 73rd Place, Hialeah, Florida. Eventually the Respondent telephoned the Pilotos to advise them that they could get what they wanted within the budget set by the bank. The contract executed by the Pilotos called for the remodeling for a price of $37,890.00. The contract, prepared by the Respondent, did not contain the Respondent's license number or a notice of consumer's rights pursuant to the Construction Industries Recovery Fund. At all times material to the Piloto project, the Respondent did not hold a valid architect's license. In fact, in December of 1997, the Board of Architecture and Interior Design had fined the Respondent for having practiced architecture with a delinquent license. Nevertheless, the Respondent represented himself as an architect to the Pilotos and charged them for blueprints for the remodeling project. Moreover, the Respondent submitted the signed and sealed plans for the Piloto project to the Building Department in order to obtain a building permit for this project. Such plans were filed on or about August 12, 1998. Pursuant to their agreement with the Respondent, the Pilotos paid the Respondent a total of $26,664.00 for the project. In comparison, the value of the work performed by the Respondent did not exceed $10,000. The Respondent asked the Pilotos to increase the amount for the contract to $50,395.75, but they refused. Despite the fact that he had caused their home to be reduced to a dangerous condition (by virtue of exposed wiring and open walls), the Respondent refused to complete the work on the Piloto project for the contracted amount. Instead, he abandoned the project. The Pilotos did not fire the Respondent. They refused to increase the amount of the contract. The Pilotos did not stop the work or refuse workers access to the property. A lien was placed on the Piloto property by a subcontractor to whom the Respondent owed monies. The Pilotos were required to pay the subcontractor in order to satisfy the lien amount. The Respondent has failed or refused to repay the lien amount. The Respondent grossly under estimated the cost of remodeling the Piloto home. He did so either negligently or intentionally. The Piloto home was compromised by the demolition work done by the Respondent's crew. The Pilotos were faced with paying the additional monies to comply with the Respondent's demand or living with their home in an uninhabitable condition. They chose the latter. On or about May 11, 1999, the Respondent applied for and obtained a building permit to re-roof the home of Sam and Daisy Carpenter. The contract for the work was with Banos Remodeling Services, an unlicensed entity, not the Respondent or his company. The Respondent has been the subject of prior disciplinary actions filed by the Department. He settled such actions without admitting or denying the allegations against him. As to his architectural license, it is undisputed that at all times material to these cases, the Respondent did not hold a valid architect's license. The Petitioner has incurred expenses and costs in the investigation of and the prosecution of the instant cases against this Respondent. The Respondent provided no credible explanation for the failure to complete the work contracted for regarding the Alayon and Piloto homes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Construction Industry Licensing Board, enter a final order sustaining the violations outlined by the Conclusions of Law, imposing an administrative fine in the amount of $5000.00, requiring the Respondent to make restitution to the Pilotos and Ms. Alayon, requiring the Respondent to remit the costs of investigation and prosecution of these cases, and revoking the Respondent's license until all amounts are fully paid. DONE AND ENTERED this 23rd day of October, 2001, in Tallahassee, Leon County, Florida. ______________________________ J. D. PARRISH 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 23rd day of October, 2001. COPIES FURNISHED: Kathleen O'Dowd, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Hardy L. Roberts, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2201 Oscar S. Benitez 3894 Southwest 107th Avenue Miami, Florida 33165 Theodore R. Gay, Esquire Department of Business and Professional Regulation 401 Northwest Second Avenue Suite N-607 Miami, Florida 33128-1765
The Issue The issues are whether Respondent, as the qualifier of Thomson Homes, Inc., is guilty of financial mismanagement or misconduct in the practice of contracting, in violation of Section 489.129(1)(g)1, Florida Statutes; abandoning a construction project in which the contractor was engaged or under contract as a contractor, in violation of Section 489.129(1)(j), Florida Statutes; failing to satisfy within a reasonable time a civil judgment obtained against the licensee or business organization qualified by the licensee and relating to the practice of construction, in violation of Section 489.129(1)(q), Florida Statutes; and failing to comply with a provision of Chapter 489, Part I, Florida Statutes, by failing to include the contractor's certificate number on each contract used by him or his business organization, in violation of Sections 489.119(6)(b) and 489.129(1)(i), Florida Statutes. If Respondent is guilty of any of these violations, an additional issue is the penalty that should be imposed.
Findings Of Fact At all material times, Respondent has been a certified residential contractor, holding certificate number CR C013599. From April 26, 1999, through August 30, 1999, Respondent was the qualifying agent of Thomson Homes, Inc. All contracts described below involved contracting work to be performed in Palm Beach County, Florida. Previously, Steven Thomson, who is a general contractor, had been the qualifying agent of Thomson Homes, Inc. Mr. Thomson and his then-wife, Lori Thomson operated Thomson Homes, Inc., as a homebuilding business in the Palm Beach County area. At no time material to this case has Ms. Thomson been certified or registered as a residential, building, or general contractor, except from March 22, 1999, through April 30, 1999, when she held a temporary nonrenewal certificate as a general contractor. This certificate authorized Thomson Homes, Inc., to continue or complete contracting work already in progress. In 1998, Mr. Thomson filed for divorce from Ms. Thomson. During the divorce proceedings, Mr. Thomson learned that Ms. Thomson was the sole shareholder of Thomson Homes, Inc., which Mr. Thomson had previously believed was equally owned by him and his wife. In early March 1999, Ms. Thomson fired Mr. Thomson, who then resigned a couple of weeks later as qualifying agent of Thomson Homes, Inc. Respondent learned from an independent mortgage broker that Thomson Homes, Inc., was seeking a qualifying agent. The mortgage broker, who made all of the retail loans for Thomson Homes, Inc., never told Respondent anything negative about the company, probably because he was unaware of any problems. Respondent had heard of Thomson Homes, Inc., through its television and newspaper advertisements. When Respondent visited the office of Thomson Homes, Inc., to discuss the position with Ms. Thomson, he found a salesman and a secretary/receptionist working in the office. Nothing in the appearance or operation of the office suggested that Thomson Homes, Inc., was anything other than a typical homebuilding business. Ms. Thomson explained that her business needed a qualifying agent because her husband had previously been the qualifying agent, but they were in the process of obtaining a divorce. Respondent initially obtained a certificate as a residential contractor in 1978. Neither Petitioner nor any local jurisdiction has ever disciplined Respondent or any contracting business that he has qualified. For 20 years, Respondent was in the business of affordable residential construction. He managed subcontractors, paid subcontractors and suppliers, and performed other duties of a residential contractor. For the most part, Respondent worked as an individual, not as an employee of a homebuilding business. At one point, Respondent formed a corporation with another individual, but, unsatisfied with his partner's high-volume approach to homebuilding, Respondent terminated that relationship and resumed building homes individually. In April 1999, Respondent signed the paperwork to enable him to qualify Thomson Homes, Inc. After doing so, on April 27, 1999, Respondent signed and delivered to the Town of Jupiter Building Department a form authorizing Thomson Homes, Inc., to obtain building permits. Based on the representations of Ms. Thomson during their negotiations, Respondent believed that Thomson Homes, Inc., did not have any active contracting jobs. He was unaware that Ms. Thomson had ever held a temporary certificate. Until early August 1999, Respondent never knew that, using Ms. Thomson's temporary certificate and later Respondent's certificate, Thomson Homes, Inc., was engaged in the contracting business at all times between the withdrawal of Mr. Thomson's certificate and the withdrawal of Respondent's certificate. Although most of the company's jobs and office were in the same subdivision, the size of the subdivision made it unlikely that Respondent would discover a Thomson Homes, Inc., job site by chance. Respondent and Ms. Thomson agreed that Respondent would receive four percent of the contract price for pulling each permit, $1000 per week, and 35 percent of the profit on each job. In return, Respondent would supervise construction, manage subcontractors, perform estimates of construction costs, and preapprove all contracts. Ms. Thomson would manage the office and sales staff, handle the banking, and pay the bills. Ignorant of the legal obligations imposed upon a qualifying agent, especially where, as here, the contracting business had no financially responsible officer, Respondent intended to allow Ms. Thomson to handle, without supervision, all of the financial responsibilities of Thomson Homes, Inc. Respondent admitted that he intended to limit his responsibilities to field work and not involve himself with the company's financial matters or office operations. Respondent also admitted that he deemed himself unqualified to handle the financial responsibilities of the company. During their negotiations, Ms. Thomson told Respondent that his job with Thomson Homes, Inc., would not start until the company resumed construction. She explained to him that there would be a delay as she reestablished the necessary financing. Unconcerned by this fact and wanting to finish up some other work, Respondent agreed to wait until he heard from Ms. Thomson before starting work for Thomson Homes, Inc. Respondent understood that the company might reasonably need several months to reestablish financing. Ms. Thomson never summoned Respondent to work. Thomson Homes, Inc., never paid Respondent any compensation whatsoever. After some time had passed without hearing from Ms. Thomson, Respondent began to call her to determine when he would begin work for Thomson Homes, Inc. At first, he had Ms. Thomson's cell number, so he would talk to her, and she would repeatedly tell him that the financing was not yet in place. Eventually, Ms. Thomson changed her cell number and did not give it to him. However, Respondent called the office and spoke with the secretary/receptionist and salesman, both of whom assured Respondent that everything was "okay." On August 27, 1999, Respondent visited the office of Thomson Homes, Inc., trying to find Ms. Thomson in the office. However, he found no one present, and the office was locked. On August 30, 1999, Respondent mailed his letter to Petitioner resigning as the qualifying agent of Thomson Homes, Inc. On June 24, 1998, Thomson Homes, Inc., entered into a contract with Reginald and Katherine Shepherd to construct a home for $146,350 and sell a lot for $25,500. The contract requires the work to commence within ten days after the issuance of the building permit and funding of the construction loan and substantial completion within 150 days from the date of the slab pour. The loan closed on the Shepherds' home on November 17, 1998. The closing statement identifies the lot as Lot 1, Block 23, North Palm Beach Gardens. At the loan closing, Thomson Homes, Inc., received from the closing agent $13,457.20 plus $225 for a survey. Eight days after the loan closing, Thomson Homes, Inc., applied to the Palm Beach County Building Department for a building permit. The Building Department issued the permit on February 4, 1999, but Mr. Thomson, who had been the qualifying agent under whose certificate the permit had been issued, canceled the permit on February 23, 1999. Pursuant to the contract, Thomson Homes, Inc., was obligated to commence construction by February 14, 1999, but failed to do so. Instead, Thomson Homes, Inc., commenced construction sometime in early April 1999, after Ms. Thomson used her temporary certificate to reinstate the building permit. The initial work was poor, as the building sewer and underground plumbing failed inspections on April 23, 1999. However, three days later, they passed inspections. On April 30, 1999, the slab failed two inspections before passing on May 10. On May 10, 1999, the beam failed an inspection. This was the last work that Thomson Homes, Inc., ever performed on the Shepherds' residence. On May 14, 1999, the construction lender issued a check in the amount of $24,880 jointly to Mr. Shepherd and Thomson Homes, Inc. Mr. Shepherd endorsed the check, and Thomson Homes, Inc., deposited it to its credit. By this point, Thomson Homes, Inc., had received $38,562.20 and had completed the work described in the preceding paragraph, as well as additional carpentry work. On August 2, 1999, the Shepherds spoke with Ms. Thomson on the telephone. The parties disagreed over whether Thomson Homes, Inc., had done sufficient work to earn another draw. Two days later, the Shepherds tried to send a fax to Thomson Homes, Inc., during regular business hours, but the company's fax machine was not working. The next day, August 5, during normal business hours, Mr. Shepherd visited the office of Thomson Homes, Inc., but found the office closed with a sign on the door indicating the company had ceased doing business. By letter dated August 4, 1999, the Shepherds advised Thomson Homes, Inc., that it was in breach of contract and terminated their relationship with the company. The Shepherds sent a copy of this letter to Respondent's local address. A few days later, Respondent's wife called the Shepherds and asked them why they had sent a copy of this letter to her husband. Respondent testified that his wife never told him about the letter, but this testimony is not credited. However, the August 4 letter and ensuing, brief telephone call a few days later are the only contacts that the Shepherds had with Respondent, and these contacts were with Respondent's wife. On August 11, 1999, Wallace Surveying Corporation filed a Claim of Lien against Lot 1, Block 23, North Palm Beach Heights, for $150 for surveying that took place from April 30, 1999, through May 11, 1999. Thomson Homes, Inc., never paid this claim. The Shepherds paid this claim, and Wallace Surveying Corporation signed and delivered a Satisfaction of Lien on November 22, 1999. Thomson Homes, Inc., had received more than enough money to pay for the liened services. On October 6, 1999, the Shepherds filed a complaint in circuit court against Thomson Homes, Inc. On November 14, 2000, the court entered a Final Summary Judgment Against Defendant, Thomson Homes, Inc., in the total amount of $45,914.48. Among the findings in the judgment are that Thomson Homes, Inc., breached its contract by accepting money and abandoning the project and failing to pay subcontractors and suppliers, such that construction liens attached to the property. The judgment was never satisfied. In February or March 1999, Thomson Homes, Inc., entered into an undated contract with Dale and Joanne Dively to construct a home for $199,725. For an unknown reason, at the request of Ms. Thomson, the Divelys initialed each page of the contract on June 16, 1999. The contract does not bear Respondent's certificate number. The contract requires the work to commence within ten days after the issuance of the building permit and funding of the construction loan and substantial completion within 150 days from the date of the slab pour. The loan closed on the Divelys' home on June 16, 1999. The closing statement identifies the lot as Lot 583, Egret Landing at Jupiter. At the loan closing, Thomson Homes, Inc., received from the closing agent $16,767.20. The Divelys had previously paid Thomson Homes, Inc., $2000 on January 28, 1999, to prepare construction plans. Thomson Homes, Inc., never applied for a building permit. Except for ordering a survey, Thomson Homes, Inc., never commenced any construction. On August 6, 1999, the construction lender informed the Divelys that Thomson Homes, Inc., had ceased doing business. The Divelys immediately telephoned Thomson Homes, Inc., but learned that the telephone had been disconnected. By this point, Thomson Homes, Inc., had received $18,767.20 and performed no work whatsoever, except to order a survey. When Thomson Homes, Inc., abandoned the job, it had received money far in excess of the value of the work that had been done. On August 17, 1999, Wallace Surveying Corporation filed a Claim of Lien against Lot 583, Egret Landing at Jupiter, for $107.50 for surveying that took place from June 30, 1999, through July 2, 1999. Thomson Homes, Inc., never paid this claim. The Divelys paid this claim, and Wallace Surveying Corporation signed and delivered a Waiver of Lien on February 9, 2000. Thomson Homes, Inc., had received more than enough money to pay for the liened services. On October 6, 1999, the Divelys filed a complaint in circuit court against Thomson Homes, Inc. On August 2, 2000, the court entered a Final Summary Judgment Against Defendant, Thomson Homes, Inc., in the total amount of $28,893.75. Among the findings in the judgment are that Thomson Homes, Inc., breached its contract by accepting money and abandoning the project and failing to pay subcontractors and suppliers, such that construction liens attached to the property. The judgment was never satisfied. On October 31, 1998, Thomson Homes, Inc., entered into a contract with Keith and Karen Deyo to construct a home for $123,400 and sell a lot for $25,500. The contract requires the work to commence within ten days after the issuance of a building permit and funding of the construction loan and substantial completion within 120 days from the date of the slab pour. The loan closed on the Deyos' home on December 23, 1998. The closing statement identifies the lot as Lot 13, Block 33, North Palm Beach Heights. At the loan closing, Thomson Homes, Inc., received from the closing agent $5500.70 plus $225 for a survey. The Deyos had previously paid Thomson Homes, Inc., $6445 by check dated November 10, 1998. Petitioner Exhibit 39 purports to represent the building permit for the Deyos' home. However, the only document in the package identifying the Deyos' lot is the Notice of Commencement, which the Deyos signed on December 23, 1998. The original application appears to have been signed by Mr. Thomson on November 25, 1998, which would be after the contract, but before the loan closing; this is inconsistent with the typical practice of Thomson Homes, Inc., to apply for the building permit after--usually long after--the loan closing. Another page of Petitioner Exhibit 39 states that Respondent is the "builder," but is signed by Ms. Thomson as "contractor/owner builder." The only clear documentary evidence of permit activity is Petitioner Exhibit 7, which is Mr. Thomson's letter of February 22, 1999, to the Deyos advising them that he "will be withdrawing his general contractor's license" from their job. However, the permit package does not contain a copy of this letter, so it is impossible to determine if Mr. Thomson followed through on his warning. Notwithstanding, the confused state of the purported building permit, Mr. Deyo testified convincingly that Thomson Homes, Inc., started construction in January 1999 and ended construction in July 1999, even though the job was not complete. Mr. Deyo always cooperated with Thomson Homes, Inc., regarding all draw requests. The construction lender issued checks, jointly to Mr. Deyo and Thomson Homes, Inc., on April 13, 1999, May 10, 1999, and July 15, 1999, respectively, for $33,873, $12,772, and $15,549. Mr. Deyo endorsed the checks, and Thomson Homes, Inc., deposited them to its credit. In early August 1999, the Deyos found that the office of Thomson Homes, Inc., was closed, and the business had ceased operations. Unlike the other customers of Thomson Homes, Inc., Mr. Deyo met Respondent one time at the office while Mr. Deyo was loudly complaining about the lack of progress in constructing his residence. Ms. Thomson introduced the two men, who spoke briefly. The record is unclear whether Respondent heard Mr. Deyo's loud complaints, which he had voiced prior to the two men's conversation, or whether Mr. Deyo restated his complaints directly to Respondent. Numerous subcontractors and suppliers filed liens against the Deyos' property. On July 21, 1999, Maschmeyer Concrete Company filed a Claim of Lien against Lot 13, a/k/a 6359 Dania Street, for $2827.31 for services and materials supplied from April 7, 1999, through April 30, 1999. On August 11, 1999, Coastal Plumbing, Inc., filed a Claim of Lien against Lot 33, Block 13, North Palm Beach Heights, for $2765 for services and materials supplied from March 25, 1999, through May 24, 1999. On August 19, 1999, Griffin & Wilson Stucco, Inc., filed a Claim of Lien against Lot 13, Block 33, North Palm Beach Heights, for $3500 for services and materials supplied from July 12, 1999, through July 23, 1999. On September 10, 1999, L&W Supply Corp. filed a Claim of Lien against Lot 13, Block 33, North Palm Beach Heights, for $810.53 for services and materials supplied on July 11 and 12, 1999. On September 29, 1999, Gale Industries, Inc., filed a Claim of Lien against Lot 13, Block 33, North Palm Beach Heights, for $300 for services and materials supplied on July 6, 1999. On October 18, 1999, Mystic Electric, Inc., filed a Claim of Lien against Lot 13, Block 33, North Palm Beach Heights, for $4580 for services and materials supplied from July 2, 1999, through July 20, 1999. Thomson Homes, Inc., never paid any of the claims in the preceding paragraph. The Deyos paid over $27,000 to satisfy these and other liens filed against their property as a result of Thomson Homes, Inc., not paying suppliers of services or materials. In their releases or satisfactions of lien, five of the six lienholders recited the money received from the Deyos, and these sums totaled $8777.31. Thomson Homes, Inc., had received more than enough money to pay for the liened services and materials. On October 6, 1999, the Deyos filed a complaint in circuit court against Thomson Homes, Inc. On March 15, 2000, the court entered a Final Summary Judgment Against Defendant, Thomson Homes, Inc., in the total amount of $55,458.64. Among the findings of the judgment are that Thomson Homes, Inc., breached its contract by accepting money and abandoning the project and failing to pay subcontractors and suppliers, such that construction liens attached to the property. The judgment was never satisfied. On November 28, 1998, Thomson Homes, Inc., entered into a contract with Tina Centofanti to construct a home for $114,400 and sell a lot for $27,500. The contract identifies the lot as Lot 8, Block 26, North Palm Beach Heights. The contract requires the work to commence within ten days after the issuance of the building permit and funding of the construction loan and substantial completion within 150 days from the date of the slab pour. The loan closed on Ms. Centofanti's home on February 12, 1999. At the loan closing, Thomson Homes, Inc., received $225 for a survey. Ms. Centofanti had previously paid Thomson Homes, Inc., $1000 and $4000, respectively, by checks dated November 28, 1998, and January 11, 1999. On April 27, 1999, Thomson Homes, Inc., using Ms. Thomson's temporary certificate, applied to the Town of Jupiter Building Department for a building permit. On the same date, Thomson Homes, Inc., submitted to the Building Department an Agent Authorization signed by Respondent and authorizing the Building Department to issue building permits in the name of Thomson Homes, Inc. The Building Department issued the building permit on May 11, 1999, but canceled the permit on August 16, 1999, after Thomson Homes, Inc., ceased doing business. On March 3, March 8, April 21, May 26, and June 8, 1999, Ms. Centofanti sent letters to Ms. Thomson at Thomson Homes, Inc., inquiring and later complaining about the lack of activity on her home. The June 8 letter asks why Ms. Thomson had not picked up the building permit, which had been issued a month earlier. On June 14, 1999, Ms. Centofanti addressed a letter to Respondent at Thomson Homes, Inc. The letter, which was sent return receipt requested, asks Respondent to explain the inactivity, but Respondent never picked up the letter at the post office, presumably because he was unaware of its existence. By letter dated August 11, 1999, to Ms. Thomson, with a copy to Respondent, both addressed to Thomson Homes, Inc., Ms. Centofanti fired Thomson Homes, Inc. Again, Respondent was presumably unaware of this letter. Except for obtaining a survey, Thomson Homes, Inc., performed no work on the job. On August 11, 1999, Wallace Surveying Corporation filed a Claim of Lien against Lot 8, Block 26, North Palm Beach Heights, for $150 for surveying that took place from May 19, 1999, through May 25, 1999. Thomson Homes, Inc., never paid this claim. Ms. Centofanti paid this claim, and Wallace Surveying Corporation signed and delivered a Waiver of Lien on September 27, 1999. Thomson Homes, Inc., had received more than enough money to pay for these liened services. On August 27, 1999, Ms. Centofanti filed a statement of claim in county court against Thomson Homes, Inc., and Ms. Thomson. On October 4, 1999, the court entered a Default and Final Judgment against both defendants in the total amount of $5220. The judgment lacks any findings, but the statement of claim alleges that Thomson Homes, Inc., breached its contract by accepting money and not performing the contract and failing to pay a subcontractor, such that a construction lien attached to the property. Because Ms. Centofanti obtained a judgment lien against other property of Ms. Thomson, Ms. Centofanti was able to sell her judgment on June 18, 2002, for $4000. On September 12, 1998, Thomson Homes, Inc., entered into a contract with James and Donna Barr to construct a home for $140,900 and sell a lot for $30,000. The contract requires the work to commence within ten days after the issuance of the building permit and funding of the construction loan and substantial completion within 120 days from the date of the slab pour. The loan closed on the Barrs' home on December 31, 1998. The closing statement identifies the lot as Lot 6, Block 47, North Palm Beach Heights. At the loan closing, Thomson Homes, Inc., received from the closing agent $8159.50 plus $225 for the survey. The Barrs had previously paid Thomson Homes, Inc., $500 and $2000, respectively, by checks dated September 30, 1998, and November 19, 1998. After the closing, the construction lender issued checks dated May 17, 1999, and July 31, 1999, respectively, in the amounts of $34,239 and $8876 to the Barrs and Thomson Homes, Inc. The Barrs endorsed the checks, and Thomson Homes, Inc., deposited them to its credit. On April 27, 1999, Thomson Homes, Inc., using Ms. Thomson's temporary certificate, applied to the Town of Jupiter Building Department for a building permit. On the same date, Thomson Homes, Inc., submitted to the Building Department an Agent Authorization signed by Respondent and authorizing the Building Department to issue building permits in the name of Thomson Homes, Inc. The Building Department issued the building permit on May 25, 1999. Thomson Homes, Inc., commenced work on the home in May 1999. However, after performing little other work, Thomson Homes, Inc., ceased work on the home on June 14, 1999, after the slab pour. On August 11, 1999, Wallace Surveying Corporation filed a Claim of Lien against Lot 6, Block 47, North Palm Beach Heights, for $300 for surveying that took place from May 10, 1999, through June 3, 1999. On August 31, 1999, Albrecht Masonry filed a Claim of Lien against Lot 6, Block 47, North Palm Beach Heights, for $5600 for masonry services and materials. Thomson Homes, Inc., never paid these claims. Unlike the other customers of Thomson Homes, Inc., the Barrs negotiated an agreement with Albrecht Masonry in which it obtained releases of the liens in return for which the Barrs conveyed to it the real property. Due to this arrangement, the Barrs' out-of-pocket losses were limited to $8500. Thomson Homes, Inc., had received more than enough money to pay for the liened services and materials. On October 6, 1999, the Barrs filed a complaint in circuit court against Thomson Homes, Inc. On May 8, 2000, the court entered a Final Summary Judgment Against Defendant, Thomson Homes, Inc., in the total amount of $45,435.62. Among the findings in the judgment are that Thomson Homes, Inc., breached its contract by accepting money and abandoning the project and failing to pay subcontractors and suppliers, such that construction liens attached to the property. The judgment was never satisfied. On September 9, 1998, Thomson Homes, Inc., entered into a contract with Sandra Harvey to construct a home for $115,260 and sell a lot for $25,500. The contract identifies the lot as Lot 5A, Block 42, North Palm Beach Heights. The contract requires the work to commence within ten days after the issuance of the building permit and funding of the construction loan and substantial completion within 120 days of the slab pour. The loan closed on Ms. Harvey's home on December 8, 1998. At the loan closing, Thomson Homes, Inc., received from the closing agent $2506.80 plus $225 for the survey. Prior to the closing, Ms. Harvey paid Thomson Homes, Inc., $7060 by check dated November 25, 1998. After the closing, the construction lender issued checks dated April 21, 1999, and May 26, 1999, respectively, in the amounts of $28,010 and $11,411 to Ms. Harvey and Thomson Homes, Inc. Ms. Harvey endorsed the checks, and Thomson Homes, Inc., deposited them to its credit. On November 25, 1998, Thomson Homes, Inc., using Mr. Thomson's certificate, applied to the Palm Beach County Building Department for a building permit. The Building Department issued the building permit on January 15, 1999. Thomson Homes, Inc., commenced construction on the home in February 1999 and ceased work in June 1999 without finishing the job. At the time that Thomson Homes, Inc., abandoned the job, the Building Department inspector had passed the slab, beam/column, roof framing and sheathing, wall sheathing, framing anchors, and roof metal. Ms. Harvey spoke with Ms. Thomson repeatedly about the work on a regular basis, but, like the other customers, was unable to obtain a satisfactory explanation for why Thomson Homes, Inc., had ceased working on her home. Then, on August 11, 1999, Ms. Harvey found that Thomson Homes, Inc., had ceased doing business. On August 13, 1999, Orr Woodworks, Inc., filed a Claim of Lien against Lot 5A, Block 42, North Palm Beach Heights, for $3079.94 for services and materials supplied from May 14, 1999, through June 22, 1999. On September 1, 1999, J.W. Hodges Drywall filed a Claim of Lien against Lot 11, Block 33, North Palm Beach Heights, for $3000 for services and material supplied from May 28, 1999, through June 3, 1999. On October 18, 1999, Mystic Electric, Inc., filed a Claim of Lien against Lot 5A, Block 42, North Palm Beach Heights, for $3000 for services and materials supplied from July 2, 1999, through July 20, 1999. Thomson Homes, Inc., never paid these claims, but, for various reasons, Ms. Harvey was never required to pay them either, although the record is unclear whether all of them were released, waived, or satisfied. Thomson Homes, Inc., had received more than enough money to pay for the liened services and materials. On October 6, 1999, Ms. Harvey filed a complaint in circuit court against Thomson Homes, Inc. On March 30, 2001, the court entered a Default Final Summary Judgment Against Defendant, Thomson Homes, Inc., in the total amount of $46,267.32. Among the findings in the judgment are that Thomson Homes, Inc., breached its contract by accepting money and abandoning the project and failing to pay subcontractors and suppliers. The judgment was never satisfied. On July 13, 1999, Thomson Homes, Inc., entered into a contract with Kathleen and Richard Beltz to construct a home for $140,500 and sell a lot for $35,500. The contract identifies the lot as Lot 8, Block 47, North Palm Beach Heights. The contract does not bear Respondent's certificate number. The contract requires work to be commenced within ten days after the issuance of the building permit and funding of the construction loan and substantial completion within 120 days from the date of the slab pour. The parties agreed upon a loan closing date of August 10, 1999, but the closing did not take place as scheduled because no one from Thomson Homes, Inc., appeared at the closing. Prior to the date scheduled for the loan closing, the Beltzes paid Thomson Homes, Inc., $12,283.70 by check dated April 22, 1999. Thomson Homes, Inc., never commenced construction or provided any services in return for the money that it had received from the Beltzes. On February 4, 2002, the Beltzes filed a complaint in circuit court against Thomson Homes, Inc. On May 22, 2002, the court entered a Default Final Summary Judgment Against Defendant, Thomson Homes, Inc., in the total amount of $23,280.28. Among the findings in the judgment are that Thomson Homes, Inc., breached its contract by accepting money and abandoning the project and failing to pay subcontractors and suppliers, such that construction liens attached to the property. In fact, no party supplied any services or materials to the home under the direction of Thomson Homes, Inc., and no construction liens attached to the property. The judgment was never satisfied.
Recommendation It is RECOMMENDED that the Construction Industry Licensing Board enter a final order dismissing the Amended Administrative Complaint against Respondent. DONE AND ENTERED this 12th day of July, 2004, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 12th day of July, 2004. COPIES FURNISHED: Tim Vaccaro, Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Theodore R. Gay Assistant General Counsel Department of Business and Professional Regulation 8685 Northwest 53rd Terrace, Suite 100 Miami, Florida 33166 Bruce G. Kaleita Law Office of Bruce G. Kaleita, P.A. The Barristers Building 1615 Forum Place, Suite 500 West Palm Beach, Florida 33401
