The Issue Whether disciplinary action should be taken against Respondent’s license to practice contracting, license number CGC 060878, based on violations of Subsection 489.129(1), Florida Statutes (2005)1, as charged in the three-count Administrative Complaint filed against Respondent in this proceeding. Whether Respondent violated Subsection 489.129(1)(g)2., Florida Statutes (Count I) by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer; Subsection 489.129(1)(j), Florida Statutes (Count II) by abandoning a construction project in which the contractor is engaged or under contract as a contractor, and Subsection 489.129(1)(m), Florida Statutes (Count III) by committing incompetency or misconduct in the practice of contracting. And, if so, what discipline should be imposed, pursuant to Section 489.129, Florida Statutes, and Florida Administrative Code Rule 61G4-17.002.
Findings Of Fact Based on the evidence and testimony of the witnesses presented and the entire record in this proceeding, the following facts are determined: At all times material, Respondent was a certified general contractor, having been issued license number CGC 060878 by the Florida Construction Industry Licensing Board (CILB). At all times material, Respondent was the qualifier of Epic Building and Development Corporation, a Florida Corporation, with its principal place of business in the Fort Myers area. On February 22, 2005, Respondent entered into a contract with Edward Dueboay to rebuild a house owned by Dueboay and his wife, located at 22299 Laramorre Avenue, Port Charlotte, Florida, which had been distroyed some months earlier by Hurricane Charlie. The price of the contract was $150,000.00. On or about March 24, 2005, Dueboay gave Respondent a check in the amount of $3,500 payable to Contractors Marketing America, Inc. (CMA, Inc.), for the engineering plans. On May 6, 2005, Dueboay paid Respondent $5,000, as an advance on the contract. Respondent did not obtain the building permit from the Charlotte County Building Department until December 12, 2005, and work on the project did not start until January 2006. Because of the enormous damage caused by the hurricane, contractors in the area were flooded with jobs, and significant shortages in building materials also occurred. On January 13, 2006, Respondent billed Dueboay $11,000.00 for land clearing and filling, $750.00 for permit fees, and $3,200.00 for a temporary electric pole. The bill gave credit for the $5,000.00 Dueboay paid on May 6, 2005, and showed a balance due of $10,000.00. On January 20, 2006, Dueboay paid the above-mentioned invoice, by check to Respondent, in the amount of $10,000.00. Respondent paid $4,600.00 to the sub-contractor who performed the lot clearing and filling, but billed Dueboay $11,000.00. However, the contract provided for a $2,500.00 allowance for clearing and filling, and a $750.00 allowance for permit fees. Section 11.c of the contract also provided that Respondent shall provide and pay for all materials and utilities and all other facilities and services necessary for the proper completion of the work on the project in accordance with the contract documents. To pay for the remainder of the contract, Dueboay negotiated and obtained a loan in the total amount of $153,000.00 from Suncoast Schools Federal Credit Union (Credit Union). On March 21, 2006, Dueboay and the Credit Union signed the construction loan agreement. On March 21, 2006, Respondent was paid $18,235.00 by the Credit Union for the pre-cast walls used in the erection of the structure. On May 11, 2006, Respondent finished Phase I of the project. On May 15, 2006, Respondent received $11,350.00 as the first draw by the Credit Union. On June 20, 2006, Respondent finished Phase II of the project. On June 20, 2006, Respondent was paid $26,335.00 as the second draw by the Credit Union. From June 2006 to November 2006, Respondent performed no work on the house under the Dueboay contract. Because the roof was not completed, mold appeared on and in the house. On August 21, 2006, Dueboay paid $109.95 to America’s Best Cleaning and Restoration, Inc., for mold removal. On or before September 13, 2006, Dueboay hired an attorney to clarify billing charges related to lot filling, permit fees and the temporary electric pole, and to prompt Respondent to resume work abandoned since June 2006. Under the Credit Union Loan Agreement, after several extensions, the completion of the Dueboay home should have taken place on or before October 17, 2006. On October 18, 2006, the Loan Agreement extension expired, and Dueboay was required to pay mortgage and interest on the loan, even though construction of the house was not completed. On November 10, 2006, Dueboay’s attorney sent Respondent a third letter advising him that the project was stagnating; that after eighteen months since the signing of the contract, the roof of the house was not yet completed; and that, under the contract, Respondent was obligated to substantially complete all work in a reasonable time after construction had started. On or about December 1, 2006, the building permit expired and had to be renewed. At some point after November 10, 2006, Respondent resumed work and finished Phase III on March 8, 2007, with the exception that some doors were not installed, including the garage door. Respondent submitted a sworn Contractor’s Affidavit stating that all subcontractors had been paid, and that there are no liens against Dueboay’s property. However, Dueboay had to pay Charlotte County Utilities $224.93 on October 29, 2007, and $240.00 to Pest Bear, Inc., on May 7, 2008, to avoid two liens being recorded against his property. From March 8, 2007, until July 2007, Respondent performed no work under the contract. David Allgood, another general contractor, was hired by Respondent to complete some of Respondent’s projects in the Port Charlotte area, including the Dueboay house. However, Dueboay was not informed of this arrangement. There was no contract directly between Dueboay and Allgood. On September 4, 2007, relying on advice from his attorney, Dueboay changed the locks to the house, with the intent to keep Respondent and his employees off his property. Shortly thereafter, employees of general contractor David Allgood broke the front lock and entered the property in September 2007, without Dueboay’s permission. Dueboay, again, following advice from this attorney, called law enforcement to eject Allgood’s employees from his property. Allgood attempted to invoice Dueboay for installing some doors on the house that Respondent had previously paid for, and which Respondent should have installed. However, following advice from his attorney, Dueboay resisted Allgood’s request to pay him for the doors. Respondent was paid a total of $122,246.03 for the Dueboay project, before the contract was cancelled. Respondent did not complete work from Phases IV and V, with the following exceptions: he did some work on the driveway, painted the interior, did some cabinet work, exterior trim and soffit, siding, stucco, and some interior trim. Therefore, Respondent completed, at best, three out of seven operations from Phase IV (interior and exterior paint, interior trim and doors, and exterior trim and soffits) and worked on, but did not complete, stucco and some cabinets. From Phase V, Respondent only worked on the driveway and sidewalks, which had to subsequently be repaired. Dueboay hired Storybook Homes, Inc. (Storybook), to complete work abandoned by Respondent from Phases IV and V. Storybook was hired to complete work as follows: install cabinets and vanities, install ceramic tiles, repair stucco, install custom tub, all electrical and plumbing per code, complete exterior paint, install hardware, sinks and faucets in the baths and showers, complete floors, install all appliances, complete air conditioning and heat, and obtain the certificate of occupancy. The amount of $122,246.03 paid to Respondent at the time when Respondent abandoned the Dueboay project represents 81 percent of the total contract price of $150,000.00. Respondent completed, at best, 75 percent of the job by completing only three out of seven operations of Phase IV and working on some additional operations that needed to be redone, like the driveway, sidewalks and stucco. Due to Respondent’s failure to perform work on time, Dueboay incurred $5,116.42 in additional expenses, as follows: $109.95 on August 21, 2006 (mold removal), $360.00 on November 23, 2006 (legal fees), $175.00 on June 4, 2007 (legal fees), $375.00 on September 4, 2007 (legal fees), $224.93 on October 29, 2007 (to satisfy lien), $668.34 on November 3, 2007 (legal fees), $200.00 on April 4, 2008 (legal fees), $1,151.05 on May 7, 2008 (to correct work performed deficiently by Respondent), $390.00 on May 7, 2008 (to repair driveway), $240.00 on May 7, 2008 (to avoid lien), and $412.00 on May 12, 2008 (to install safe room door that Respondent failed to install). The total investigative costs of this case to Petitioner, excluding costs associated with any attorney’s time, for Petitioner’s case no. 2005-028129 was $276.18.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board render a Final Order as follows: Finding Respondent guilty of having violated Subsection 489.129(1)(g)2., Florida Statutes, as alleged in Count I of the Administrative Complaint, and imposing as a penalty an administrative fine in the amount of $1,500. Finding Respondent guilty of having violated Subsection 489.129(1)(j), Florida Statutes, as alleged in Count II of the Administrative Complaint, and imposing as a penalty an administrative fine in the amount of $2,500. Finding Respondent guilty of having violated Subsection 489.129(1)(m), Florida Statutes, as alleged in Count III of the Administrative Complaint, and imposing as a penalty an administrative fine in the amount of $1,500. Respondent’s license to practice contracting (CGC 060878) be suspended for a period of three months, followed by a period of probation for two years, upon such conditions as the Board may impose, including the payment of costs and restitution. Requiring Respondent to pay financial restitution to the consumer, Edward Dueboay, in the amount of $5,116.42 for consumer harm suffered due to payment of additional expenses. Requiring Respondent to pay Petitioner’s costs of investigation and prosecution, excluding costs associated with an attorney’s time, in the amount of $276.18. DONE AND ENTERED this 21st day of July, 2009, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 21st day of July, 2009.
The Issue Did Respondent violate Section 489.129(1)(h), Florida Statutes, and, if so, what discipline should be imposed?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida vested with statutory authority to regulate the practice of contracting under Chapters 455 and 489, Florida Statutes. Respondent is a licensed certified residential contractor in the State of Florida. Respondent's license number, as certified by Julie Odom, Department's Alternate Records Custodian, is CRC 20166. However, the Administrative Complaint alleges the license number to be CR C020166. Respondent's licensure status is "Delinquent, Active." On May 18, 1989, the Department entered a Final Order in DOAH Case No. 88-3308 wherein Respondent was found guilty of violating Section 489.129(1)(h),(j),(k), and (m), Florida Statutes. On September 27, 2000, the City of Cape Coral, Florida, Contractor's Regulatory Board (Board) entered into a Settlement Agreement (Agreement) with Respondent, in regard to a complaint, Case No. 00-01, wherein Respondent was charged with violating the following Sections of the City of Cape Coral Code of Ordinances: 6-10.1:, To make misleading, deceptive, untrue, or fraudulent representations in the practice of his contracting profession; 6-10.8: Diversion of funds or property received for prosecution or completion of a specified construction project or operation when as a result of the diversion, the contractor is or will be unable to fulfill the terms of his obligation or contract; 6-10.10: Failing in any material respect to comply with the provisions of the Code; 6-10.11: Abandoning of a construction project in which the contractor is engaged or under contract as a contractor. A project is to be considered abandoned after 90 days if the contractor terminates the project without notification to the prospective owner and the City and without just cause; and 6-10.13: Being found guilty of fraud or deceit or of gross negligence, incompetence, or misconduct in the practice of contracting. The Agreement provided that Respondent was pleading No Contest to the charges that he violated the aforementioned sections of the City of Cape Coral's Code of Ordinances and that Respondent's plea did not act as an admission of guilt as to the above mentioned charges. The Agreement provided for Respondent's permit pulling privileges to be revoked for a period of 90 days starting August 23, 2000. By an Order dated December 29, 2000, the Board, after hearing and discussing the charges made against Respondent, voted to accept and approve the Agreement. By this Agreement, Respondent's contracting license was disciplined by the City of Cape Coral. The total investigative and prosecution costs to the Department, excluding costs associated with any attorney's time, is $967.09.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and a review of Chapter 61G4-17, Disciplinary Guidelines, Florida Administrative Code, with consideration for the repeat violation of Section 489.129(1)(h), Florida Statutes, it is RECOMMENDED that the Department enter a final order finding Respondent, Robert Mensching guilty of violating Subsection 489.129(1)(h), Florida Statutes, and for such violation: (a) impose an administrative fine in the amount of $5,000.00; (b) assess costs in the amount of $967.09; and (c) revoke Respondent's Certified Residential Contractor's License. DONE AND ENTERED this 21st day of March, 2003, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 21st day of March, 2003. COPIES FURNISHED: Kimberly V. Clark, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Robert Mensching 1719 Northeast 23rd Terrace Cape Coral, Florida 33909 Robert Crabill, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulations Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issue is whether Respondent's license as a certified residential contractor should be disciplined for the reasons given in the Administrative Complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: When the events herein occurred, Respondent, Brent Somers Graham, was licensed as a certified residential contractor having been issued license no. CR C056809 by Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Board). Respondent was the licensed qualifying agent for G C Construction, Inc., whose business address is not of record. At the present time, Respondent's license is in a delinquent status. In late 1995, a major hurricane struck the Panhandle section of Florida and damaged the home of Katherine M. Cook, who lived at 741 Miracle Strip, Mary Esther, in Okaloosa County, Florida. Among other things, the hurricane lifted an 78-foot porch off of her home, and a tree fell through its roof. On January 18, 1996, Cook accepted a proposal by Respondent to repair the damage to her home for $9,000.00. A description of the work to be performed by Repondent is found on Petitioner's Exhibit 2, and it includes replacing a 78-foot by 12-foot screen porch and its roof, and other related work. Cook paid Respondent $2,700.00 as a down payment on the job on January 19, 1996. On February 8, 1996, Respondent made application for a building permit with the City of Mary Esther (City). After receiving a permit, he then commenced to work on the repairs, mostly by himself but occasionally with the assistance of a few other helpers. When the job was supposedly completed in March 1996, Cook paid Respondent another $6,200.00, or a total of $8,900.00, pursuant to the parties' agreement. Within a short time, Cook noticed that the porch roof was sagging and falling in. Efforts to reach Respondent were futile since he had disconnected his telephone and apparently left the area. She then asked that an inspector for the City, Neil Sasnett, to make an inspection of her home. Sasnett quickly discovered that Respondent had never called for an inspection by the City, although the City Code required that he do so and Cook had paid for one. This omission constituted a violation of the local building code. It can be inferred from the evidence that, given the poor workmanship on the project, as described below, the violation was intentional, especially since a licensed contractor would be expected to be aware of this requirement. Sasnett found numerous deficiencies in the work just completed by Respondent, including rafters that were notched to less than 4 inches about 3 feet inside the load bearing wall, a header on the outside bearing wall that was jointed in between the upright posts, and roofing metal panels improperly sealed. These deficiencies resulted in an unsafe roof in an uplift condition and one that would be dangerous to walk on. Because Cook lived on the Gulf of Mexico, and her home was subject to windy conditions, these deficiencies were especially egregious. All of the foregoing deficiencies constituted violations of the local building code. Cook was forced to hire a second contractor to repair the porch since Respondent had left the area. For this additional work, Cook paid an additional $15,975.00, including $3,000.00 to tear out the faulty work previously performed by Respondent. At hearing, the second contractor described Respondent's work as "very poor" and "substandard." Given this consideration, and the deficiencies described by the City's inspector, it is found that the faulty work constituted incompetency in the practice of contracting on the part of Respondent. Throughout this process, Respondent refused to contact Cook or return to her home to make the needed repairs. After the complaint was issued by the Board, however, he telephoned Cook. Although he then offered to repair the porch, which had been repaired by another contractor some 18 months earlier, his main concern was that his license might be in jeopardy because of her complaint. There is no record of Respondent having been previously disciplined by the Board. Therefore, it is fair to infer that these offenses were the first committed by Respondent.
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 is guilty of the violations described in Counts I through IV of the Administrative Complaint. For those violations, it is recommended that Respondent's license be revoked, and that he be required to pay Katherine M. Cook $11,900.00 as restitution for her costs incurred in her dealings with Respondent. DONE AND ENTERED this 9th day of February, 1999, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 9th day of February, 1999. COPIES FURNISHED: John O. Williams, Esquire Maureen L. Holz, Esquire 355 North Monroe Street Tallahassee, Florida 32301 Brent Somers Graham 6156 White Oak Drive Flowery Brand, Georgia 30542 Rodney Hurst, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent committed the offenses described in the administrative complaint? If so, what disciplinary action should be taken against him?
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Respondent is now, and has been since 1982, a general contractor licensed to practice in the State of Florida. He holds license number CG C020528. At all times material hereto, Respondent has been licensed as an individual general contractor, rather than as a qualifying agent for any business entity. 1/ Respondent is now, and has been at all times material hereto, the President of Michelle Construction Corp. (MCC). On or about November 29, 1987, MCC, through Respondent, entered into a written contract with Henry Rodriguez and his wife Patricia, in which MCC agreed, for $30,000.00, to remodel the Rodriguez residence located at 9139 S.W. 69th Court in Miami, Florida. The work to be performed by MCC included, among other things, renovating the residence's two bathrooms, replacing most of the existing roof, doubling the size of the kitchen, and adding to the residence a back porch, living room, dining room, and master bedroom with a bathroom and walk-in closet. Respondent was to prepare the plans for the project. The $30,000.00 contract price was exceptionally low for the type of work that was the subject of the contract. On December 12, 1987, Respondent, using his general contractor's license, obtained a building permit from the Metro-Dade County Building and Zoning Department to perform the work specified in the contract. Shortly thereafter, work began on the project. Although he hired Paulino Hernandez to serve as the project foreman, Respondent retained overall supervisory responsibility for the project and visited the worksite on various occasions. Work on the project proceeded slowly. Changes had to be made to the plans originally prepared by Respondent because they were infeasible. Furthermore, the project was underfinanced, notwithstanding that Mr. and Mrs. Rodriguez made payments in accordance with their contractual obligations. MCC last performed work on the Rodriguez residence on August 25, 1988. At the time it stopped working on the project, the project was not complete. To this date, it remains unfinished, despite Mr. Rodriguez's efforts to have MCC fulfill its obligations under the contract. Among those portions of the project that MCC failed to complete was the roofing work described in the contract. Following MCC's abandonment of the project, Mr. Rodriguez contracted with Trans Continental Coating Co., Inc., to install over the entire residence a "Foamed-In-Place Urethane Insulated Roof and an elastomeric coating system" for $10,000.00. The work that MCC and/or its subcontractors did perform in furtherance of its contract with Mr. and Mrs. Rodriguez was, at least in part, shoddily done in a manner reflecting either gross negligence or incompetence on the part of the workers who performed the work and those that supervised them. For example, the floors in the dining room and living room additions to the house were not level. Neither were the ceilings in the new master bedroom. Furthermore, the tiles that MCC installed were irregular and had depressions in them. Moreover, the dining room addition was several inches out of square. The paint that had been applied to the exterior of the Rodriguez home as part of the project was already peeling off at the time MCC abandoned the project. Mr. and Mrs. Rodriguez had it repainted by Transcon Painting Co. at a cost of $1,900.00. Mr. and Mrs. Rodriguez had paid MCC in excess of $30,000.00 at the time of MCC'S abandonment of the project. Initially payments were made to MCC or Respondent. Subsequently, in an effort to expedite the completion of the project, Respondent authorized Mr. and Mrs. Rodriguez to make payments directly to the job foreman, Hernandez, which they did. Hernandez was to use the money he received from Mr. and Mrs. Rodriguez to pay for the labor and supplies necessary for the project. Although Mr. and Mrs. Rodriguez paid the contract price in full, MCC and Respondent lost money on the project. Respondent has not been the subject of any prior disciplinary action by the Construction Industry Licensing Board.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Construction Industry Licensing Board enter a final order finding Respondent guilty of the violations of Section 489.129, Florida Statutes, charged in the instant administrative complaint and suspending Respondent's license for a period two months and imposing upon him a fine in the amount of $3,000.00 for having committed these violations. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of November, 1990. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of November, 1990.
