The Issue The primary factual issue was whether the company which the Respondent had qualified was in fact the contractor on the job from which the allegations in the Amended Administrative Complaint arose. The Petitioner submitted post hearing findings of fact in the form of a proposed recommended order. To the extent that the proposed findings of fact have not been included in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being findings of fact.
Findings Of Fact The Respondent, Edward Ryan, is a certified building contractor holding license number C3 C006481 and was the qualifying agent for Behr Contracting, Inc. (thereafter "Behr Contracting"), at all times relevant to the allegations of the Amended Administrative Complaint. Behr Contracting was, and is a business engaging in, contracting, selling building materials, and mortgage brokerage. Its operations as a mortgage broker are now carried on under a separate corporation; however, at the time involved in these proceedings, its mortgage brokerage operation was carried out in the name of Behr Contracting, Inc. Willie Mae Williams resides at 1451 Northwest 92nd Street, Miami, Florida. In 1980, Ms. Williams had extensive modifications made to her house at the foregoing address. With regard to the work on her house, Ms Williams' initial contact was with S. J. (Jerome) Farmer. Farmer was an independent contractor who was doing home repairs in early 1980 to several homes close to the Williams home. He was not doing these jobs as an employee of Behr Contracting, and no evidence was introduced that at said time he was an employee of Behr Contracting. After he had already begun working on the Williams home, Farmer approached the Respondent and requested Respondent's assistance in helping him estimate additional repairs and modifications to Ms. Williams' home and assistance in obtaining the financing for this job. Farmer was not affiliated in any manner with Behr Contracting. The Respondent arranged for an estimator to assist Farmer in estimating the cost of the project and in obtaining financing for the project. (Testimony of Ryan, Tr. 58 et seq.) This estimator had two contract forms signed by Ms. Williams, one for financing and one for construction. These documents were identified by Ms. Williams and were received into the record. (See Petitioner's Exhibits 2 and 3.) Petitioner's Exhibit 2 is the contract between Behr Contracting and Ms. Williams for the financing of the modifications to the Williams house. Financing for the project was obtained through the mortgage brokerage operation of Behr Contracting and the money funneled through Behr Contracting to pay for materials purchased through Behr's building materials operation. Ms. Williams has made payments and is making payments as required under said contract to the finance company, Uni Credit of Jacksonville, Florida. Behr Contracting provided cabinets, windows and certain appliances, to include a dishwasher. The Respondent was at Ms. Williams' house approximately three times prior to the delivery of building materials from Behr Contracting. (Testimony of Ryan, Tr. 23.) On none of these occasions was the Respondent there as a building contractor qualifying Behr Contracting. At all times, Farmer was in charge of the project. (See testimony of Williams, Tr. 184.) Farmer was the contractor in fact. Subsequent to installation of the dishwasher, the Respondent was present at the Williams house often because of Ms Williams' complaints about the dishwasher. The Respondent replaced this dishwasher and had Ms. Williams' septic tank pumped in order to solve the drainage problem which was causing the dishwasher to malfunction. This was done to honor the warranty on the dishwasher. (Supra, Tr. 45-51.) A salesman for Behr Contracting gave Ms. Williams an estimate on both the contracting and on the financing for the modifications and remodeling of the Williams house. Under its business practices, Behr Contracting disapproved or rejected the contract for construction, yet approved the financing contract. Approval of a construction contract in the amount of the instant contract, over $11,000, would have required an officer's approval. (See testimony of Stanley Weiss, Tr. 21-28.) Although Ms. Williams identified her signature on the purported construction contract (Petitioner's Exhibit 3), she could not identify the signature appearing on the lefthand side of the page at the bottom of the contract in the area of "Agent" and "Officer." This signature also could not be identified by Stanley Weiss or Margaret Behr, officers of Behr Contracting. It was not the signature of Weiss, Ms Behr or the Respondent, who were the only officers of the corporation authorized to approve a contract of this amount at the time that this contract was prepared. This contract (Petitioner's Exhibit 3) was never accepted by Behr Contracting (See testimony of Weiss, Tr. 35.) Although a copy of Petitioner's Exhibit 3 was discovered by Weiss in the files of Behr Contracting, this was a photo copy given to Weiss by the Respondents who had received it from the Board's investigators when the Respondent first spoke to them about this case. (See page 8, deposition of Ryan taken September 17, 1982; see pages 3, 4 and 8, deposition of Weiss; testimony of Ryan, Tr. 70-75; testimony of Weiss, Tr. 10-12.) The Respondent's involvement in this matter was "limited to providing gratuitous advice to Farmer at Farmer's request on one occasion, concerning a broken major waste drain, and representing Behr Contracting who was a major supplier of materials and appliances for the job. It is specifically found that the Petitioner failed to establish the existence of a construction contract between Ms. Williams and Behr Contracting. Regarding the allegations that the Respondent abandoned the job, the Respondent caused the dishwasher supplied by Behr Contracting to be replaced under warranty service. The septic tank at the Williams house was pumped and cleaned at the request of Uni Credit in an attempt to solve the problem. Finally, over a year after the job had begun, the Respondent had the septic tank and drainfeild rebuilt and solved Ms. Williams' drainage problems. This last action was taken under threat of prosecution by the Board's investigators and was done in spite of the fact, which is uncontroverted, that the construction did not address modifications to the plumbing in the house. After the Respondent had taken these actions, Ms. Williams than wanted the cabinets and other work, which had been done by Farmer, replaced because of water damage caused by the drainage problem.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Amended Administrative Complaint against the Respondent, Edward Ryan, be dismissed. DONE and RECOMMENDED this 20th day of September, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 1983 COPIES FURNISHED: Michael J. Cohen, Esquire Kristin Building, Suite 101 2715 East Oakland Park Boulevard Fort Lauderdale, Florida 32206 Mr. Edward Ryan 19762 Bel Aire Drive Miami, Florida 33138 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
Findings Of Fact The Respondent holds certified general contractor's license no. CG CA03134. On or about February 3, 1973, Respondent, d/b/a John B. Roberts Construction Company, entered into a contract with Dominick A. Conte, 4319 Tranquility Drive, Highland Beach, Florida to construct a home for $58,000. It is this contract which is the subject of the Administrative Complaint. In addition to that contract, the Respondent entered into another contract with Mr. Conte to build a triplex for a total contract price of approximately $152,000. Specifically, the Administrative Complaint filed on or about April 6, 1976, copy of which was duly served on the Respondent and incorporated herein by reference, alleges that the owner paid the contractor $57,000 and he left the home partially built with no work started on the triplex. Additionally, the complaint alleges that the contractor issued a check on a closed account to Mr. Conte for $16,000 and Respondent never made good on that check. The Respondent and Mr. Conte applied for and received a construction loan commitment from Delray Beach National Bank to construct the house for Mr. Conte. The above parties also applied for a construction loan commitment to construct the triplex in the total amount of $151,000. The Respondent and Mr. Conte received a construction loan commitment for that project in the amount of $131,000. Respondent suggested that Mr. Conte deposit $16,000 as equity for the construction loan commitment for the triplex in the form of a check which was given to Respondent, drawn on Delray Beach National Bank. According to the evidence, this check drawn in the amount of $16,000 was never deposited by Roberts as was the understanding that Mr. Conte had received from him to the effect that the $16,000 was to be utilized for equity for the triplex agreement. When Mr. Conte encountered difficulties with Respondent in the construction of his personal home, Mr. Conte demanded the return of the $16,000 check. The Respondent gave him a check drawn on a closed account. Respondent admitted that the account had a nominal amount i.e., less than $100 on deposit when the $16,000 check was given to Mr. Conte. When Mr. Conte could not obtain the $16,000 from the Respondent, he instituted a civil suit and received a judgement in the amount of $18,500 against the Respondent. In December, 1972, Mr. Conte advanced Respondent $1,000 to obtain various permits and on January 5, 1973, he advanced Respondent an additional $3,000. Respondent commenced construction of the home in March, 1973 and according to the contract he was scheduled to complete it in November, 1973. At that time, according to Mr. Conte, Respondent was only about 50 percent complete at that juncture. At that time the mortgage construction loan was approximately $58,800 and Respondent had received draws of approximately $36,904. Mr. Conte advised the contractor during October that construction would have to speed up or he would be unable to meet the scheduled completion date. Sometime in late October or early November, Respondent abandoned the house. Mr. Conte admits that there were some modifications to the house that he agreed to pay and they were approximately $600 for stone work and approximately $1,300 for additional air conditioning and heating capacity. He received a roofing bill in the amount of $6,000 and when it was not paid, he received a notice of intent to file a lien. He received other bills totalling approximately $800 of which approximately $300 was for window glass and $500 represented an additional amount owed for plumbing expenses. He withdrew the balance of the mortgage commitment (approximately $22,000) and he paid an additional amount of between $20,000 to $25,000 to complete the construction. Further in his testimony he recalled adding approximately $600 for stone work and approximately $500 for marble work. He testified that there were no further additions to the house. He completed the house in February, 1974. At the time the Respondent abandoned the house, he had completed the foundation, the concrete block work, framing, stucco work, the roof was partially completed and the walls were erected. For this work, the contractor received approximately $40,000 from Mr. Conte. Respondent testified that there was a problem with the mortgage commitment on the triplex and that he later returned a check for the $16,000. Respondent testified that when he left the Conte project, he had expended approximately $52,000 from the construction loan draws and that his total expenditures for the project amounted to $86,083, including his profit. It is undisputed that the parties have entered an agreement to construct a house for a total price of $58,000. Mr. Conte testified without contradiction that he made some changes in the plans which amounted to approximately ($1,900) nineteen hundred dollars which he paid over and above the contract price. Although Respondent argues that at the time that he abandoned the Conte project, he had expended approximately eighty-six thousand dollars ($86,000), there was no proof of that testimony despite the agreement and stipulation of all parties that the undersigned would consider such proof when submitted within a stated period of time. Respondent submitted a portion of his checking account which he maintains establishes his position, however, it suffices to say that the documents submitted only establish that monies were paid but the critical link of tieing such amounts to the Conte's project was not established. The undersinged has considered the various additions to the project. Additionally it was noted that Respondent is a custom home builder and is experienced in the making of contracts for homes such as the one he undertook to construct for Mr. Conte. Since he takes the position that the contract price did not cover, according to him, the numerous changes in the Conte home, he is obliged to establish via some contract or Quantum Merit theory that Mr. Conte got more than he paid for as per their agreement. For it is easy to project that according to Mr. Conte's figures, the contract price would not have been adequate to complete the house based on the draw schedule and the construction progress. Thus at this rate, the project under Respondent's cost-basis, would have exceeded ($172,000) one hundred seventy-two thousand dollars. Clearly Respondent being well versed in the construction of custom homes, knew or should have known that in order to proceed with this project, he would need to renegotiate the contract based on the cost projections at the stage when he abandoned the project. Instead he did not attempt to renegotiate the contract and abandoned the job. He left the project subject to materialmen liens which Mr. Conte paid. Based on these facts, I find and conclude that Respondent failed to account for the amount of money that he drew from the Conte construction loan. Having done so, in view of the record evidence establishing that the project could not be completed within the contract price and the failure of Respondent to establish that the amounts withdrawn from the construction loan account were utilized on the Conte project or that he would be able to fulfill the terms of his contractual obligations, I find that he has engaged in a diversion of funds as alleged.
Recommendation Having found that the Respondent has engaged in a diversion of funds as alleged, I recommend that his certified general contractor's license be suspended for a period of six (6) months. DONE and ENTERED this 20th day of September, 1976, in Tallahassee, Florida. COPIES FURNISHED: Barry Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 John B. Roberts 5172 Northeast 14th Avenue Pompano Beach, Florida 33060 JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 ================================================================= AGENCY FINAL ORDER ================================================================= Mr. John B. Roberts c/o Glenwood Builders 261 E. Palmetto Park Rd. Boca Raton, Florida 33432 Dear Mr. Roberts: At a formal hearing held in Pompano Beach, Florida on July 21, 1976, by the Division of Administrative Hearings, it was recommended that John B. Roberts' certified general contractor's license be suspended for a period of sixty days. On March 4, 1977, at the Florida Construction Industry Licensing Board's montly meeting, the Board voted to dismiss the case against you, therefore the Administrative Complaint is hereby dismissed. Your Certified General Contractor's License remains in full force and effect. Sincerely, FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD J. K. LINNAN Executive Director cc: Barry S. Sinoff, Esquire 1010 Blackstone Building 229 E. Bay Street Jacksonville, Florida 32202 Mr. James C. Brady, Esquire Zealy & Brady 2691 East Oakland Park Boulevard Suite 400, Mercede West Building Ft. Lauderdale, Florida 33306
Findings Of Fact At all times material hereto, respondent was licensed as a registered building contractor having been issued license number RB 00034797 by the State of Florida (see Petitioner's Exhibit 1). On or about January 11, 1982, respondent entered into a contract with Emil and Agnes Gerlt to construct a residence to be located at Singletary Road in Sarasota, Florida. The contract price was $57,420. The home construction agreement was to be part of a trade agreement between the contractor, the respondent, and the Gerlts. Under the terms of the trade agreement, respondent was to receive the Gerlts' existing home, located at 3376 South Seclusion Drive, Sarasota, Florida, in trade for constructing the Gerlts' home. The home was to be completed within one hundred fifty (150) days (see petitioner's Exhibit 6 and Transcript, page 105). By an addendum to the Home Construction Agreement executed by respondent and the Gerlts, the parties to the agreement further agreed that the contract price, $57,420.00, was to be paid as follows: $ 5,742.00 or 10 percent as a down payment $ 5,742.00 or 10 percent when slab is poured $ 8,613.00 or 15 percent when walls are up $14,355.00 or 25 percent when sub roof is on $14,355.00 or 25 percent when drywall is completed $ 8,613.00 or 15 percent when building is completed (see petitioner's Exhibit 6). Emil and Agnes Gerlt had contacted the respondent about construction of a new home through a newspaper ad placed in the Sarasota Herald Tribune. In the ad, respondent had offered to build residences in exchange for the purchaser's existing home. At the time, the Gerlts had been attempting to sell their existing home for some time without success. Mr. Gerlt's health required the relocation from the Gerlts' existing home, a multilevel home, to a single story home. After the Gerlts discussed their requirements with the respondent, a contract was drawn up by the respondent. The Gerlts submitted the contract to their attorney, Robert Johnson, and upon obtaining Johnson's approval, signed the Home Construction Agreement noted above. (See Transcript, pages 28-29). In or about February, 1982, Emil and Agnes Gerlt entered into a trade agreement with respondent to transfer the Gerlts' Seclusion Drive residence to Green. The agreement was subject to the construction, by respondent, of the Gerlts' new home on Singletary Road, in Sarasota County, Florida. As part of the agreement, respondent was to actively seek to sell the Seclusion Drive property. The first $70,000 received from the sale of that property was to go to the Gerlts. Respondent was to receive a 6 percent commission. Any amounts remaining were to go to the Gerlts. If respondent was unable to sell the Seclusion Drive property prior to June 30, 1982, or the date of occupancy for the Singletary Road residence, whichever occurred first, the Seclusion Drive property was to be the sole property of respondent subject to payment in the amount of $70,000 to the Gerlts. (See respondent's Exhibit 1). After the Gerlts and respondent signed the above described agreement, M. Daniel Poling, Nancy Poling and Ethel E. Weathers (Mrs. Poling's mother), came by the Seclusion Drive property, without an appointment, and asked if they could see the residence. Mrs. Gerlt showed the Polings and Weathers the home and then referred them to respondent as the person handling the sale of the home. (See Transcript, pages 37-38). After the Polings and Weathers contacted respondent, respondent drew up a Contract for Sale of Real Estate, dated February 4, 1982, whereby Ethel Weathers was to sell her residence to the Gerlts for the sum of $54,000. At this point a three-way trade was anticipated between the parties. The Gerlts would obtain Weathers' property as well as an additional cash payment in exchange for their own property which would be transferred to the Polings and Weathers. Then the Polings and Weathers' residence, located at Bouganvillea Street, in Sarasota, Florida, would take the place of the Seclusion Drive property in the transaction for construction of a new home between the Gerlts and respondent. The Contract for Sale of Real Estate, dated February 4, 1982, was never fully executed, because Robert Johnson, the Gerlts' attorney, did not approve the agreement. (See petitioner's Exhibit 10 and Transcript pages 109- 110). Subsequent to the time the February 4, 1982 Contract for Sale of Real Estate was prepared, Robert Johnson, as the Gerlts' attorney, prepared another Contract for Sale of Real Estate which was fully executed by the parties. The contract provided that the Gerlts would sell their Seclusion Drive property to the Polings and Weathers for the sum of $84,000. As a special condition of the contract the Polings and Weathers were to execute a Mortgage and Promissory Note in the sum of $42,000, at 15 percent per annum, on Weathers' residence located on Bougainvillea Street, Sarasota, Florida, in favor of the respondent and the Gerlts. In the event that the Mortgage and Promissory Note was not paid off by April 17, 1982, the Polings and Weathers would deed their Bougainvillea property to Green and the Gerlts as a $42,000 credit on the contract. (See petitioner's Exhibit 8). The contract described immediately above further provided that the closing should-occur on the entire transaction on April 17, 1982. However, the Polings and Weathers would remain in the Bougainvillea residence, and the Gerlts would remain in the Seclusion Drive residence until ten days after the respondent obtained a certificate of occupancy for the construction being performed on the Gerlts' Singletary Road residence. Upon completion of the Singletary Road residence the Gerlts were to either assign their interest in the mortgage or quit claim their interest in the Bougainvillea residence to James A. Green. (See petitioner's Exhibit 8). As compensation for his services in the transfer, Green received a transfer fee in the amount of $5,000. (See petitioner's Exhibit 9). On or about March 22, 1982, respondent applied for and obtained a building permit from the Sarasota County, Florida Building and Construction Department for the construction of the Gerlts' new residence at 16700 Singletary Road, in Sarasota County, Florida. (See petitioner's Exhibit 5). In April, 1982, respondent began to perform work on the Gerlts' new home. (See Transcript, page 47). On May 21, 1982, the Gerlts executed an Adjustable Mortgage Loan Note in the amount of $42,000 plus interest, at the rate of 15.75 percent per annum, in favor of Amerifirst Federal Savings and Loan Association. The mortgage was secured by the property located at 2304 Bougainvillea Street. The proceeds of the loan were to be used to pay for the construction of the Gerlts' new home. Under the terms of the original agreement between respondent and the Gerlts, dated February 1982, respondent was to pay all costs related to the financing of construction and he was to hold the Gerlts harmless from said construction mortgage and payments due thereon until the contract was fully completed. (See petitioner's Exhibits 4 and 8, respondent's Exhibit 1 and Transcript pages 48 and testimony of Robert Johnson). Although respondent made one payment of $1,669.02, on October 22, 1982, that check was dishonored and respondent made no further payments on the mortgage for the Bougainvillea property held by Amerifirst Savings and Loan Association. Under the terms of the Adjustable Mortgage Loan Note executed by the Gerlts, mortgage payments were to be made in monthly payments of $556.34 each. (See petitioner's Exhibit 4). Between approximately June 4, 1982 and December, 1982, respondent received the following payments from the Gerlts totaling $33,912: DATE AMOUNT June 4, 1982 $11,484 June 22, 1982 $ 8,613 June 23, 1982 $14,355 Unknown $14,355 (see petitioner's Exhibit 13 and Exhibit 12 and testimony of Johnson) In addition to the amounts noted above, respondent received payment for the following changes or "extras" in construction of the Gerlts' home: DATE AMOUNT WORK PERFORMED June 4, 1982 $ 250.00 Rough-in shower in workroom June 4, 1982 $2,250.00 Complete Porch Sept.3, 1982 $ 98.75 Change kitchen window from awning to slider Sept.3, 1982 $ 35.00 Change present kitchen window TOTAL $2,633.75 In addition to the changes or "extras" in construction noted above, respondent was to perform the following changes or "extras" in construction of the Gerlts home: The front porch area was removed making the front of the house straight across at no extra cost. The cabinets in the kitchen were changed. One set of cabinets and a countertop was changed to eighteen inches and another set was changed to twenty-four inches. There was also a change in the placement of the refrigerator. The Gerlts were to pay for this change. Completion of the shower in the workroom, at owner's expense. The family room was enlarged by two feet six inches resulting in two additional sheets of paneling, at owner's cost. There was an increased amount of tile in the guest bath area resulting in an additional cost of $18.00. The owners selected a more expensive tile for the master bathroom than specified in the contract specifications. The Gerlts were to pay Green $30-$40 to install the more expensive tile. The contractor was no longer obligated to furnish or install the floor covering or carpet. Therefore, the owner was to receive a $3,450 credit on the contract price. (See petitioner's Exhibit 26 and Transcript, pages 59 and 95-98). In approximately August 1982, a dispute arose between the Gerlts and respondent over the extras on the Gerlts new residence. The disputed items included the cost of renting an electric generator for one month, at a cost of $366.30. The Gerlts did not want to pay the rental fee because they had intended to furnish a generator for the project. At the time, Mr. Gerlt worked for a person who owned a distributorship and could easily have obtained a generator for the project. (See Transcript, page 92 and petitioner's Exhibit 21). Respondent asserted that there was a change in the fireplace which resulted in an increased cost on the Gerlts' project. From the beginning, both the Gerlts and the respondent had agreed that the fireplace was supposed to be placed directly on the slab. On March 18, 1982, the Gerlts sent respondent a letter confirming this fact. The respondent constructed the fireplace on a raised hearth and then attempted to charge the Gerlts for the cost of returning the hearth to its original position. (See Transcript, pages 61 and 98). On or about August 10, 1982, Overhead Door Company of Sarasota furnished two garage doors which were used in construction of the Gerlts' Singletary Road residence. The doors were furnished pursuant to an agreement with the respondent. Under the terms of his agreement with Overhead Door Company of Sarasota, respondent was to pay for the doors within thirty days of the invoice date. Inasmuch as respondent failed to timely pay for the doors, Overhead Door Company of Sarasota filed a Claim of Lien in the amount of $514.50 against the Gerlts' property. (See petitioner's Exhibits 17, 13, and 19, and Transcript, pages 76-82 and 132) The dispute between the Gerlts and Green brought work to almost a completed halt. After the receipt of the $14,355 payment due upon completion of the drywall, respondent did little work on the project. Eventually, Green hired an attorney, Frank Calabrese, to represent him in the dispute. On September 2, 1982, the parties and their attorneys met at the job site in an attempt to resolve the dispute. As a result of that meeting, the parties verbally agreed to the items which were changes or extras. The only items designated as changes resulting in an additional cost, to be borne by the Gerlts, were the shower in the workroom, cabinet changes, the additional paneling in the family room, and the changes in amount and quality of tile used in both the guest and master bathrooms. (See petitioner's Exhibit 26 and testimony of Johnson). Nothing was done on the project, despite the agreements of the Gerlts and respondent made on September 2, 1902. Although respondent had agreed to make certain corrections in the home, he did not do so. Finally, at this time the Gerlts discovered that respondent had made no payments on the Amerifirst Savings and Loan mortgage. Therefore, Robert Johnson wrote a letter to respondent's attorney, Calabrese, in attempt to obtain some satisfaction of the problems aforementioned. (See Transcript pages 116-117, 122 and petitioner's Exhibit Number 23). On September 20, 1982, the respondent wrote a letter to Robert Johnson wherein he stated that it was impossible to complete the Gerlts' home until two problems were resolved. Specifically, respondent wanted some written resolution of the amounts to be paid by the Gerlts for extra tile and the extra kitchen cabinets. Respondent further stated, falsely, that Interior Installation, from whom the original cabinets had been ordered, refused to build the cabinets because Mrs. Gerlt had threatened to sue the owner of Interior Installation. Respondent also asserted that the contract between the Gerlts and respondent was breached when the Gerlts refused to pay for the generator on the job. Finally, respondent said that the owners had requested additional outlets which had been installed, but for which the electrician had not been paid. (See petitioners Exhibit 24). In response to this letter from Green, Johnson drafted a letter to Calabrese, on October 4, 1982, on behalf of the Gerlts. By the letter, Johnson agreed to hold the extra amount owing because of changes in amount and quality of tile used on the Gerlts' home until completion of the job, at which time respondent would receive payment. Johnson denied categorically respondent's statements about Interior Installations. Interior Installations agreed to do the work if payment was made in advance. The Gerlts agreed to pay Interior Installations the cost of the cabinet changes. Finally, Johnson indicated that the generator problem could be dealt with in the final resolution of the contract. (See petitioner's Exhibit 25). At this time, respondent already had one other project where respondent had failed to pay Interior Installations for work performed. At the time, he was sixty days late in payment for that project. Inasmuch as Interior Installations was also aware of the conflict between the owners and contractor, they requested full payment prior to beginning the work. They did not receive payment and, therefore, did not do the work. There was no evidence that the Gerlts had threatened to sue the company. Subsequent to this time, a judgment was obtained against respondent for the full amount owing on the other project. (See Transcript, pages 84). On October 14, 1982, respondent talked with Robert Johnson and told him that respondent would order the cabinet work on October 14, 1982, and that the work would be done within two weeks. Respondent told Johnson that he would deliver the Gerlts' house for occupancy by November 4, 1982. Respondent also agreed to attend to the deficit with the Amerifirst Federal Savings and Loan Association Mortgage by October 15, 1982. (See petitioner's Exhibit 27 and Transcript, page 22). Despite his assurances, respondent did not complete those items which he told Johnson he would complete. Respondent did make one payment, by check dated October 18, 1982, to Amerifirst Savings and Loan Association of $1,669.02. However, the check was returned marked "insufficient funds". (See petitioner's Exhibit 4 and Transcript, pages 122-123). On October 28, 1982, Johnson again talked with the respondent. The respondent told Johnson that the paneling in the family room was supposed to be done that day. Respondent also told Johnson that the tile person was supposed to be at the job site that day. Respondent said that Amerifirst Federal Savings and Loan would be paid $1,660. Respondent further stated that he had hired R & M Cabinets to do the cabinetry work on the Gerlts' home. (See Transcript, page 124). Again respondent's promises were not fulfilled. Furthermore, when Johnson called R & M. Cabinets about the cabinetry work on the Gerlts' home, the company requested payment in advance before the work was performed. (See Transcript, page 124). On November 1, 1982, Johnson again spoke to Green about the construction of the Gerlts' residence. Respondent told Johnson that he would have to hire another bricklayer immediately and that the job would be finished by the following Wednesday. (See Transcript, page 124). Again the respondent did not do what he told Johnson he would do on the Gerlts' home. (See Transcript, page 124). On November 24, 1982, the Pollings and Weathers served an eviction notice on the Gerlts, who still resided in their Seclusion Drive residence. Although the Polings and Weathers had agreed to stay in their Bougainvillea residence until 10 days after a certificate of occupancy was issued on the Gerlts' new home, and to allow the Gerlts to remain in their Seclusion Drive residence until the same date, this was with the understanding that the Gerlts' new home would be finished by July, 1982. (See Transcript, page 125 and testimony of Mrs. Gerlt). After the Gerlts received the eviction notice, they contacted Robert Johnson who, in turn, contacted the respondent. According to respondent, the bathroom and the kitchen cabinets were ordered and would be installed by December 8, 1982. By December 10, 1982, the plumbing, air conditioning and cabinetry would be finished. Finally, respondent told Johnson that a certificate of occupancy would be issued by December 15, 1982 for the Gerlts' home. (See Transcript, page 126). On December 8, 1982, respondent told Johnson that the cabinetry in the Gerlts' home would be done by the following Wednesday. Again, however, the respondent failed to perform as promised. (See Transcript, page 127). Although attempts were made to delay eviction, the Gerlts were evicted from their home on December 16, 1982. (See testimony of Mrs. Gerlt). On December 17, 1982, Johnson wrote respondent a letter telling him to finish the Gerlts' home or to be prepared to deliver a cashiers' check. (See Transcript, page 127). On or about December 17, 1982, Generation Electric, Inc., filed a "Claim of Lien" against the Gerlts' Singletary Road property for electrical wiring performed on that residence between June 16, 1982 and December 14, 1982, pursuant to an agreement with the respondent. The Claim of Lien was for the sum of $852.50. (See petitioner's Exhibit 16). Respondent performed no further work on the Gerlts' home. Respondent furnished no notice to the Gerlts or their attorney of his intent to stop work on the Gerlts' home. (See testimony of the Gerlts and Johnson). The Gerlts assumed the completion of the construction project on or about January 14, 1983. At the time respondent ceased work on the Gerlts' home, the construction was only a little over 50 percent completed. The kitchen was not begun; the bathrooms were not begun, with the exception of one bathtub in one bathroom; there was no septic tank; and there was no heat or air conditioning installed in the Gerlts' home. (See Transcript, pages 23-24, 55 and 102). It cost the Gerlts approximately $10,611.60 in labor and materials to complete their home. Mr. Gerlt performed most of the actual work himself. (See Transcript, pages 63-64). At the time respondent ceased work on the Gerlts' property, the mortgage on the Bougainvillea property was in default. Respondent had made no payments on that mortgage even though payments were past due. The Gerlts had to satisfy the mortgage on the Bougainvillea property. (See petitioner's Exhibit 4 and testimony of Mrs. Gerlt).
Recommendation Based on the foregoing findings of Fact and Conclusions of Law, it is recommended that respondent's registered building contractor's license be suspended for a period of three (3) years. RECOMMENDED this 31st day of August, 1984 in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1984 COPIES FURNISHED: Stephanie A. Daniel, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. James A. Green 624 47th Street West Palmetto, Florida 33561 James Linnan Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue for determination is whether Respondent, Construction Industries Recovery Fund ("Respondent"), should reimburse Petitioners for damages caused by a contractor.
Findings Of Fact 1. Respondent is the governmental agency responsible for processing claims against it pursuant to Sections 489.140 through 489.143. Petitioners are natural persons within the meaning of Section 489.140(1). Except for the matters to be determined in this proceeding, Petitioners are otherwise eligible to seek recovery from Respondent within the meaning of Section 489.141. Initial Agreement On June 10, 1993, Petitioners entered into a written contract of sale with Klingshirn & Associates, Inc. ("Klingshirn") to construct a home at 6617 Southfork, Titusville, Florida (the "initial agreement"). The total purchase price was $134,000. The home was to be completed by November 24, 1993. The initial agreement required Petitioners to pay $24,000 of the total purchase price from their own funds3 and to make a good faith effort to obtain financing for the remaining $110,000. If Petitioners were unable to obtain financing, Klingshirn reserved the option to provide financing. The terms of financing were prescribed in paragraph 3 of the initial agreement. Paragraph 3 stated: . . . MORTGAGE PROVISION . . . within five (5) days [Petitioners] will make a good faith application with . . . a lender approved by [Klingshirn] for a mortgage loan in the amount set forth above at the prevailing interest rate not to exceed 8 1/2% 30 year and terms of the lender as of closing. If [Petitioners are] not approved for the mortgage within 30 days or any extension [Klingshirn gives them], or if [Petitioners] application is rejected, [Klingshirn] can either provide [Petitioners] with the mortgage on the same terms and conditions as the lender [Petitioners] applied with, or (ii) refund [Petitioners] deposits . . . and terminate this contract. . . . Petitioners and Klingshirn changed the printed text in the initial agreement. They struck through the phrase, "at the prevailing interest rate," and inserted the phrase, "not to exceed 8 1/2% 30 year." Condition Precedent A condition precedent is one which calls for the performance of some act, or the happening of some event, after a contract is entered into upon the performance or happening of which an obligation to perform depends.4 The initial agreement was subject to a condition precedent by its express terms and by oral agreement. The express terms of the initial agreement made the agreement subject to a condition precedent. Petitioners' obligation to perform was expressly dependent on the procurement of financing for $110,000, over a 30 year term, at an interest rate not to exceed 8 1/2 percent per annum. Even if the initial agreement were not expressly subject to a condition precedent, it was subject to such a condition by oral agreement. Prior to and at the time that Klingshirn and Petitioners signed the initial agreement, Petitioners and Klingshirn agreed that the initial agreement would become operative only upon the occurrence of financing. Even if the initial agreement were not subject to a condition precedent, the requisite financing was part of a contemporaneous oral agreement that induced Petitioners to enter into the initial agreement. There was no mutual intent for Petitioners to be obligated unless they procured the prescribed financing from either a commercial lender or Klingshirn. Construction Contract The condition precedent to the initial agreement was never satisfied. The initial agreement never became operative. On July 7, 1993, Petitioners obtained a financing commitment from Harbor Federal Savings & Loan Association in Fort Pierce, Florida ("Harbor"). Harbor agreed to provide financing for $105,000 rather than the $110,000 prescribed in the initial agreement. Petitioners agreed to increase their cash investment. On August 4, 1993, Petitioners and Klingshirn executed a Construction Loan Agreement for $105,000 (the "construction loan agreement"). The construction loan agreement stated: [Klingshirn] hereby . . . agrees to the terms and conditions of the [construction loan], and further agrees that where the [construction loan] conflicts with the terms and provisions of any construction contract existing with Borrower, that the [construction loan] shall control. Petitioners executed the construction loan agreement as borrowers. Klingshirn executed the builder's assent to the construction loan agreement. On August 4, 1993, Petitioners and Klingshirn executed a construction contract within the meaning of Section 489.141(1)(a) (the "construction contract"). The construction contract included the construction loan agreement and those terms in the initial agreement which did not conflict with the construction loan agreement and which Petitioners and Klingshirn adopted when they executed the construction contract.5 The construction contract was executed after July 1, 1993. It controlled the construction of Petitioners' home until it was modified on December 9, 1993. On December 9, 1993, Petitioners agreed to extend the completion date to March, 1994. Klingshirn agreed to repair specified defects and to increase the landscaping allowance. Mismanagement And Misconduct Petitioners did not know that Klingshirn was a corporation engaged in contracting without a qualifying agent in violation of Section 489.119. Mr. Michael R. Harvey, a financially responsible officer of Klingshirn and one of its employees, was licensed as a certified building contractor (the "contractor" or "licensee"). However, the contractor neglected to qualify Klingshirn. The contractor illegally used his license to obtain the necessary building permit on behalf of Klingshirn. He procured the building permit in his own name on August 27, 1993. The contractor knowingly violated Section 489.129. He committed mismanagement and misconduct in the practice of contracting that caused financial harm to Petitioners in the amount of $58,534.46. The contractor failed to ensure that the home was constructed according to either the plans and specifications of the project or the Southern Building Code. He also failed to remedy the violations. The contractor failed to satisfy subcontractor liens after Petitioners gave him the funds to do so. He obtained at least three draws of unspecified amounts from Harbor. The contractor abandoned the job. He failed to perform work without just cause for over 90 consecutive days when the percentage of completion was less than the total contract price paid to him at the time of abandonment. The project was not completed on November 24, 1993. On December 9, 1993, Petitioners and Klingshirn entered into an Addendum to the initial agreement. The Addendum extended the completion date to March, 1994. The contractor failed to meet the extended deadline. On April 4, 1994, construction ceased. On April 14, 1994, the contractor removed himself and his license from the project. Final Order On August 11, 1995, the Department of Business and Professional Regulation filed an Administrative Complaint against the contractor alleging violations of Sections 489.129(d), (h), and (k). The Construction Industry Licensing Board (the "Board") entered a Final Order on January 16, 1996. The Final Order found the contractor guilty of the allegations in the Administrative Complaint. The Board directed the licensee to pay restitution to Petitioners in an unspecified amount based on violations of Sections 489.129(d), (h), and (k) that occurred on or after July 1, 1993. Civil Action On October 23, 1995, Petitioners filed a civil action against the contractor. Petitioners filed the civil action in the Circuit Court of the Eighteenth Judicial Circuit in and for Brevard County, Florida. Daniel J. Johnson and Doris S. Johnson v. Michael R. Harvey, Case Number 95-16601-CA-F. On December 1, 1995, the contractor filed a Suggestion of the Pendency of Bankruptcy in the civil case. On November 25, 1994, the contractor had filed for bankruptcy in the United States Bankruptcy Court, Middle District of Florida. In Re: Michael R. Harvey, Debtor, Case Number 94-11514-8B7. On March 8, 1995, the Bankruptcy Court entered a Discharge of Debtor Order. On December 1, 1995, the bankruptcy trustee notified Petitioners that no assets were available for distribution from the bankruptcy estate except exempt assets. Claim Against Respondent On March 29, 1996, Petitioners filed a claim against Respondent. On June 13, 1996, the Construction Industries Recovery Fund Committee (the "Committee") denied the claim. The Committee determined that Petitioners are required by law to execute a construction contract on or after July 1, 1993, to recover from Respondent. The Committee found that Petitioners executed the required contract on June 10, 1993. On June 14, 1996, the Board ratified the Committee's action. The Board entered a Final Order on August 20, 1996. Payment To Respondent Petitioners paid money to Respondent in statutorily prescribed amounts through a surcharge of one-half cent per square foot of the project. The surcharge is imposed pursuant to Sections 489.140(2) and 468.631. Petitioners received no reimbursement from Respondent. Nor did Petitioners receive restitution from the licensee.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order and thereinGRANT Petitioners' claim for recovery against Respondent. RECOMMENDED this 20th day of March, 1997, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 20th day of March, 1997.
The Issue At issue is whether Respondent committed the offenses set forth in the Amended 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 agency charged with the duty and responsibility of regulating the practice of contracting pursuant to Chapters 20, 455 and 489, Florida Statutes. At all times material to the allegations of the Amended Administrative Complaint, Respondent was licensed in Florida as a Certified General Contractor, having been issued license number CG C018621, and authorized to engage in the practice of general contracting as an individual. At the time of the hearing, Respondent's license had been suspended. At no time material was Respondent licensed to practice contracting in Florida through Florida East Coast Properties, Inc. On or about November 13, 1995, Respondent, doing business as Florida East Coast Properties, entered into a contract with Kazimierz and Maria Charchut (the Charchuts) for construction of a single family residence to be located at 8 Farmsworth Drive, Palm Coast, Flagler County, Florida. The original contract price was $124,000. At the time of the signing of the contract, the Charchuts lived in Brooklyn, New York, and continue to reside there. The Respondent's license number does not appear on the contract. The Respondent's notification of the Construction Industries Recovery Fund does not appear on the contract. Between September 13 and November 28, 1995, the Charchuts paid Respondent a total of $44,000 of the contract price towards construction of the residence. This amount constituted more than 10% of the contract amount (10% of the contract amount would have been $12,400). A closing on the construction loan was scheduled for October of 1995. Respondent called Mr. Charchut a couple of days before the first scheduled closing telling him they could stop the closing so that they could get better interest rates. Between October 1995 and June of 1997, Respondent failed to appear at a total of three scheduled closings on the construction loan. The Charchuts wrote several letters and made several phone calls to Respondent expressing concern that the closing had not yet occurred although they had already paid him a substantial amount of money. The closing finally took place in October of 1997. Because of some change orders that were to be made to the house, including wooden floors and a longer driveway, the Charchuts paid an additional $14,813.75 at the closing bringing the total cost of the construction of the home to $138,813.75. Included on the Change Order form was an amount of $2,001.75 for water and sewer assessments, which comprised part of the $14,813.75 total additional moneys paid by the Charchuts. The closing agent testified that this closing was atypical, because the bank was concerned that Respondent held too much money in the construction project. She testified that the bank requires that builders have no more than ten percent deposit. Consequently, Respondent was required to reimburse the bank $16,786.25 of the Charchut's $44,000 deposit at the closing. This was accomplished by Respondent bringing a check to the closing in the amount of $25,000 and receiving a refund overage check from Flagler County Abstract Co., (written to Florida East Coast) in the amount of $8,213.75, resulting in Respondent paying a net amount of $16,786.25 at the closing. At the closing, the bank received a check from Flagler County Abstract Co. for $31,600 to put in the construction loan account. This amount was composed of the Charchut's payment of $14,813.75 plus Respondent's payment of $16,786.25. Mr. Charchut wrote to Respondent in March of 1998 expressing concern that the closing had taken place in October of 1997 but the construction of his home had not yet begun. Respondent replied to Mr. Charchut in a letter dated April 8, 1998, stating that he was sorry for the delay in beginning construction of the home and that he intended to begin construction the week of April 20, 1998. Respondent applied for the building permit on May 7, 1998. Respondent applied for water and sewer service on May 5, 1998. He began construction of the house in June or July of 1998. By the end of July 1998, Respondent finished the slab foundation and rough plumbing of the Charchut's home. Consequently, the mortgage company paid $14,769.40 out of the first draw payment on the construction loan to Respondent's company. Of that amount, $3,485.86 was for reimbursement for payment to subcontractors. In addition to the amounts paid to Respondent, the mortgage company paid Mastercraft Plumbing $1,894 and $5,656.60 to CRS Rinker Materials Corp. The total first draw was $22,320. After payment of the first draw in August of 1998, little if any work was done on the construction of the Charchut's home. After the initial work on the slab, Respondent stopped construction and told the Charchuts that he did not want to continue to build their home and was looking for another contractor to finish the house for them. After being told that Respondent did not want to work on the home, the Charchuts wrote to Respondent on October 5, 1998, notifying Respondent to stop doing further work on the property and asking him to notify the Building Department so a transfer of the construction permit to another builder could take place. The Charchuts subsequently engaged another contractor, Mr. V. M. Zarbo. Mr. Charchut testified that he paid approximately $160,000 for the house to be built, including the money paid to Respondent. Mr. Charchut testified that when Mr. Zarbo began his work, Palm Coast Utility asked him to pay the impact fee for water and sewer. Despite the Charchut's having paid Respondent $2,001.75 toward water and sewer assessments, Respondent's check for that amount made out to Palm Coast Utility Company was returned for insufficient funds. Consequently, the Charchuts had to pay $2,116.75 for this fee again through their subsequent general contractor, notwithstanding Respondent claiming that he had incurred this expense. When added together, the Charchuts paid Respondent a total of $51,650.50 for the work Respondent did on the house. The total is composed of the sum of $27,213.75 (the net Respondent retained on the original down payment), $14,769.40 paid to Respondent from the first draw, and $1,894 and $5,656.60 paid to Respondent's suppliers/subcontractors from the first draw. Additionally, the Charchuts paid $2,116.75 for payment of the utility impact fee that the Charchuts had to pay twice. The Charchuts asked their subsequent contractor to prepare an estimate of the cost of the work that Respondent performed on the home. His written estimate was for a total of $21,536.68. The Charchuts included that written estimate in a letter to Respondent dated November 16, 1998, asking for a refund of amounts they paid in excess of his costs. Roy Brand testified as an expert witness for Petitioner. Mr. Brand has been a certified commercial contractor for about 20 years. He reviewed the estimate of Respondent's expenses that was provided by the Charchut's subsequent contractor. It was Mr. Brand's opinion that the cost estimate was appropriate and, if anything, Respondent's expenses might have been less. Respondent testified that he spent more on some items that were listed in the estimate. Respondent, during the investigation leading up to this case, was given an opportunity to provide receipts to Petitioner's investigator of expenditures made to the house. The receipts supplied to Petitioner's investigator do not total an amount in excess of the estimate made by the Charchut's subsequent builder. Based upon Respondent's failure to provide receipts to prove that the estimate total was too low, Mr. Zarbo's good faith estimate of building expenses made after his inspection of the property, and testimony of Petitioner's expert witness as to the reasonableness of the estimate, the estimate of expenses for Respondent's work in the amount of $21,536.68 is accepted as appropriate. Thus, Respondent has failed to account for or return to the Charchuts $30,113.82, the difference between the amount paid by the Charchuts and the estimate of expenses.1 As of September 20, 2000, the Department's costs of investigation and prosecution, excluding legal costs, totaled $1,498.66. Previous disciplinary action At hearing, the Department offered proof that, on two prior occasions, Respondent had been subjected to disciplinary action by the Construction Industry Licensing Board (the Board). The first occasion is reflected in the terms of a Final Order of the Board, (Final Order No. BPR-2000-01399) dated April 4, 2000, which found Respondent guilty of violating Section 489.129(1)(c), Florida Statutes, by making misleading, deceptive, or fraudulent representations to a client; Section 489.129(1)(g), Florida Statutes,2 by acting in the capacity of a contractor in a name other than as set forth on the issued certificate or registration; Section 489.129(1)(h)1, Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer; Section 489.129(1)(l), Florida Statutes, by signing a statement with respect to a project or contract with false information; Section 489.129(1)(m), Florida Statutes, by committing fraud or deceit in the practice of contracting; and Section 489.129(1)(n), Florida Statutes, by committing incompetency or misconduct in the practice of contracting and imposing the penalties of placing Respondent on probation for two (2) years and payment of an administrative fine, costs and restitution to a customer. The second occasion that Respondent was subjected to disciplinary action is reflected in the terms of a Final Order of the Board, (Final Order No. BPR-2000-01443) also dated April 4, 2000, which found that Respondent violated Section 489.129(1)(g), Florida Statutes, by acting in the capacity of a contractor under a certificate or registration other than in the name of the certificateholder; Section 489.129(1)(h)1 and 3, Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer; Section 489.129(1)(l), Florida Statutes, by signing a statement with respect to a project or contract falsely indicating that payment had been made for all subcontracted work; Section 489.129(1)(m), Florida Statutes, by committing fraud or deceit in the practice of contracting; and Section 489.129(1)(n), Florida Statutes, by committing incompetency or misconduct in the practice of contracting; and imposing the penalties of probation, payment of fines, costs and restitution. Respondent apparently did not satisfy the fines and costs imposed by the foregoing orders as Respondent's license was suspended on May 17, 2000, for non-payment of fines, costs or restitution.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Construction Industry Licensing Board enter a final order adopting the foregoing findings of fact and conclusions of law, and which, as penalty for the violations found, imposes an administrative fine in the total sum of $11,250, revokes Respondent's license, orders that Respondent pay restitution to the Charchuts in the amount of $30,113.82, and assesses costs of investigation and prosecution (through September 20, 2000) in the total sum of $1,498.66 against Respondent. DONE AND ENTERED this 12th day of December, 2000, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 December, 2000.
The Issue Whether Respondent committed the offenses set forth in the Administrative Complaints and Amended Administrative Complaints and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Respondent was licensed by Petitioner as a certified residential contractor, having been issued license number CR C040917. He has been licensed since March 16, 1987. Respondent was the qualifying agent of KM Homes, Inc. (KMH) from June 10, 1995 through March 13, 1997, more than one year but less than two years. On or about February 3, 1997, KMH filed a voluntary bankruptcy petition under Chapter 7 in the U.S. Bankruptcy Court, Southern District of Florida, Case No. 97-30498, with an estimate of assets of less than $50,000.00 and an estimate of liabilities of between $1 million and $10 million. The petition was signed by Kenneth H. Maltz, as president of KMH. On or about February 4, 1997, the next day, Kenneth H. Maltz and his wife, Susan Maltz, filed a joint voluntary bankruptcy petition under Chapter 7. Case No. 01-3827PL On or about April 28, 1996, KMH contracted with Daniel L. Simons and Carol L. Stefanski for the sale of a lot to Simons and Stefanski and for construction of a house on the lot. The contract price for the lot was $45,000.00 and for the construction of the home was $141,000.00, totaling $186,000.00. Respondent's license number did not appear in the contract. In accordance with the contract, Simons and Stefanski made the following payments to KMH: on or about April 28, 1996, $5,000.00; on or about August 21, 1996, $40,000.00; and on or about August 30, 1996, $42,229.60 and $747.00, through their lender, First Federal Savings of the Palm Beaches, pursuant to an August 21, 1996, mortgage loan of $128,000.00. The payments totaled $100,976.60. KMH applied for a building permit from Martin County to build the home for Simons and Stefanski. Respondent's license number appeared on the application. The building permit was never obtained. Beginning on or about August 27, 1996, and at various times thereafter, until approximately January 9, 1997, the lot was cleared and fill was delivered to the lot by KMH's subcontractor, Tideway Construction Company, Inc. (Tideway). The work by Tideway was the only work performed by KMH pursuant to the contract with Simons and Stefanski. KHM did not pay Tideway and Tideway recorded a lien on the lot for $4,084.00. KMH failed to remove Tideway's lien. On or about November 23, 1997, Tideway filed suit to foreclose its lien. Sometime in May 1998, Tideway released the lien in exchange for payment from Simons and Stefanski in the amount of 65 percent of the lien amount. Simons and Stefanski's lender paid the 65 percent from additional funds the lender loaned to Simons and Stefanski to enable them to complete their home. Tideway wrote off the remaining 35 percent. KMH never explained to Simons and Stefanski why it did not complete their home. KMH's trustee in the bankruptcy never offered to complete the work. Simons and Stefanski never fired KMH, never denied KMH access to the property to perform work, and never refused to pay KMH monies due under the contract. Simons considered KMH to have abandoned the job. Simons and Stefanski filed a proof of claim in KMH's bankruptcy for an unsecured non-priority claim in the amount of $58,000.00. They received nothing from the bankruptcy action. In the latter part of 1998, Simons and Stefanski had their home completed by another contractor, Murex, for $143,270.00. The house that Murex completed for Simons and Stefanski was essentially the same house that KMH was to construct, except that the roof structure was different and the garage and back porch were a little larger. KMH never provided Simons and Stefanski with notification of the Construction Industries Recovery Fund. Simons and Stefanski never had any direct dealings with Respondent personally. They attempted to sue Respondent but were unsuccessful. As of November 15, 2001, Petitioner's costs of investigation and prosecution for Case No. 01-3827PL, excluding costs associated with an attorney's time, totaled $457.88. Case No. 01-3828PL On or about June 6, 1996, KMH contracted with Carol Morris for construction of a house on a lot owned by Morris. The contract price for the construction of the house was $287,940.00. Respondent's license number did not appear in the contract. In accordance with the contract, Morris made the following payments to KMH: on or about February 28, 1996, $1,000.00; on or about June 10, 1996, $27,000.00; and on or about August 2, 1996, $109,240.00. The payments totaled $137,240.00. Morris obtained a mortgage loan in the amount of $150,000.00 from First Bank of Florida to finance part of the contract price. On or about September 17, 1996, KMH applied for a building permit from Palm Beach Gardens to construct the home for Morris. Respondent's license number appeared on the application. On or about September 26, 1996, the building permit was approved and issued, bearing building permit number 28644. From approximately September to December 1996, KMH performed work pursuant to the contract and thereafter, did not perform any more work on the home. KMH failed to complete the construction of Morris' home. KMH never explained to Morris why it did not complete her home. KMH's trustee in the bankruptcy never offered to complete the work. Morris never fired KMH, never denied KMH access to the property to perform work, and never refused to pay KMH monies due under the contract. Morris considered KMH to have abandoned the job. KMH's subcontractors/material suppliers recorded liens on Morris' property. The subcontractors/material suppliers recorded liens were as follows: on December 12, 1996, Tideway for $8,438.00; on January 16, 1997, Buckeye Plumbing, Inc. (Buckeye Plumbing) for $3,676.00; on January 22, 1997, Tarmac Florida, Inc. (Tarmac) for $6,296.40; on January 23, 1997, Electrical Express, Inc. (Electrical Express) for $450.00; on February 13, 1997, E. M. Brandon, Inc. (Brandon) for $2,164.00; on February 18, 1997, Tom Rawn Masonry, Inc. (TR Masonry) for $16,454.00; and on April 3, 1997, Spacerace Enterprises, Inc. (Spacerace) for $7,850.00. Morris paid KMH for all the work or materials pertaining to the liens. KMH failed to remove any of the liens. Morris never paid any monies directly to the lien holders to remove any of the liens. However, Morris' lender, First Bank of Florida, assisted her with the resolution of the liens, including allowing its attorney to act as Morris' representative in resolving the liens. In May 1998, Tideway released its lien in exchange for payment by Morris' lender in the amount of 65 percent of the lien amount. Tideway wrote off the remaining 35 percent. The evidence is unclear as to whether Morris was obligated to repay the lender. Buckeye Plumbing, Electrical Express, TR Masonry, Inc., and Spacerace never received any money on their liens and the entire amount of their liens was a complete loss. Tarmac sued to foreclose on its lien, but ultimately dismissed its lawsuit and wrote off the amount of its lien as a bad debt. No testimony was presented regarding the final result of the lien held by Brandon. Morris obtained the services of another contractor, Home Work Group, Inc. (Home Work), to complete the construction of her home. Morris used the original mortgage loan of $150,000.00, a shortfall loan from the same lender in the amount of $45,000.00, and her savings of approximately $43,000.00, to pay Home Work. On or about September 1998, Home Work completed the construction of Morris' house, which was essentially the same as the house which was to be constructed by KMH. Morris received notification of KMH's bankruptcy by mail. She filed a complaint with the bankruptcy court objecting to KMH's discharge. The bankruptcy court eventually dismissed Morris' complaint. Sometime during the year 2000, Morris received $900.00 from KMH's bankruptcy. KMH never provided Morris with notification of the Construction Industries Recovery Fund. During the transaction between KMH and Morris, she knew Respondent as the construction manager for KMH. As of November 15, 2001, Petitioner's costs of investigation and prosecution for Case No. 01-3828PL, excluding costs associated with an attorney's time, totaled $478.70. Case No. 01-3829PL On or about February 23, 1996, KMH contracted with Fred W. Connell, Jr., and his wife, Celia M. Connell, for construction of a house on a lot that the Connells would purchase separately, not as a part of the contract. The contract price for the construction of the house was $258,870.00, which included $18,000.00 for a swimming pool. Respondent's license number did not appear in the contract. In accordance with the contract, the Connells made the following payments to KMH: on or about February 23, 1996, $5,000.00; on or about February 29, 1996, $30,000.00; on or about November 7, 1996, $8,687.00; on or about November 25, 1996, through their lender, First Bank of Florida, pursuant to a mortgage loan, $33,541.00; and on or about December 16, 1996, $24,393.00. The payments totaled $101,621.00. KMH applied for a building permit from the City of North Palm Beach to construct the home for the Connells. Respondent's name and license number appeared on the application. On or about November 5, 1996, the building permit was approved and issued, bearing building permit number 96-01386. From approximately November to December 1996, KMH performed work pursuant to the contract and thereafter, did not perform any more work on the home. KMH failed to complete the construction of the Connells' home. In December 1996, the City of North Palm Beach issued a stop work order due to voids in the concrete walls that made, according to the City of North Palm Beach, the structure of the house unsafe. After the issuance of the stop work order, KMH failed to resume work on the house. KMH never explained to the Connells why it did not complete their home. The Connells fired KMH only after they received notification of KMH's filing for bankruptcy. KMH's trustee in the bankruptcy never offered to complete the work. The Connells considered KMH to have abandoned the job. KMH's subcontractors/material suppliers recorded liens on the Connells' property. The subcontractors/material suppliers and recorded liens were as follows: on January 16, 1997, Palm Beach Masonry (PB Masonry) for $12,125.00; on January 17, 1997, Sasso Air Conditioning, Inc. (Sasso Air) for $550.00; on January 22, 1997, Tarmac for $4,239.21; on January 28, 1997, CPS Construction, Inc. (CPS Construction) for $2,580.00; on January 31, 1997, Gulf Stream Lumber Company (Gulf Stream Lumber) for $19,461.00; and on March 24, 1997, Waste Management of Florida, Inc. (Waste Management) for $276.50. The Connells paid KMH for all the work or materials pertaining to the liens. KMH failed to remove any of the liens. The Connells paid its lender, First Bank of Florida, $25,000.00 in exchange for the lender's assistance in resolving the liens. PB Masonry and Waste Management never received any money on their liens and the entire amount of their liens was a complete loss. On or about August 4, 1997, Sasso Air gave a partial release of its lien in return for payment in the amount of $275.00. Tarmac's notice to owner was untimely, so it chose to not pursue foreclosure proceedings and instead wrote the amount of its lien off as a bad debt. On or about November 11, 1997, Gulf Stream Lumber released its lien in return for payment of $5,000.00 from First Bank of Florida. On May 13, 1997, CPS Construction released its lien in exchange for payment from the Connells in the amount of $2,500.00. On or about April 22, 1997, the Connells obtained the services of another contractor, Villafranca Design and Development, L.C. (Villafranca Design), to complete the construction of their home for $221,000.00. The Connells, through their lender, paid Villafranca Design. Their home was completed shortly before Christmas 1997. The house completed by Villafranca Design was essentially the same as the house which was to be constructed by KMH. Because KMH failed to complete the Connells' home, the Connells, their two children and their two dogs were forced to live on the Connells' boat and to store their furniture for almost a year. During that year, the Connells had to pay dockage fees to live on their boat and storage fees for their furniture. The Connells estimate that the difference in the contract price of their home with KMH and what they eventually paid for their home was conservatively $100,000.00. The Connells did not receive any money from KMH's bankruptcy. KMH never provided the Connells with notification of the Construction Industries Recovery Fund. During the transaction between KMH and the Connells, the Connells knew Respondent as someone who worked in the KMH office. As of November 15, 2001, Petitioner's costs of investigation and prosecution for Case No. 01-3829PL, excluding costs associated with an attorney's time, totaled $519.43. Case No. 01-3830PL On or about September 19, 1996, KMH contracted with William and Iceline Chang for the construction of a house on the lot owned by the Changs. The contract price for the construction of the home was $205,620.00. Respondent's license number did not appear in the contract. In accordance with the contract, the Changs made the following payments to KMH: on or about September 16, 1996, $10,000.00; and on or about October 10, 1996, $10,620.00. Pursuant to a change order for additional site preparation and fill, on or about October 7, 1996, the Changs paid KMH $9,400.00. On or about December 16, 1996, KMH applied for a building permit from Palm Beach County to build the Changs' home. Respondent's license number and Respondent's name as the qualifying agent for KMH appeared on the application. The building permit was never obtained due to KMH's failing to submit the construction plans to Palm Beach County's building department. On December 13, 16, and 19, 1996, the Changs' lot was cleared and fill was delivered to the lot by KMH's subcontractor, Tideway. The work by Tideway was the only work performed by KMH pursuant to the contract with the Changs. KHM did not pay Tideway and Tideway recorded a lien on the lot for $10,900.00. KMH failed to remove Tideway's lien. On or about June 6, 1997, Tideway agreed with the Changs to release the lien in exchange for payment from them in the amount of $9,810.00. The Changs paid Tideway in six monthly installments, June through November 1997, of $1,635.00. On or about November 26, 1997, Tideway gave the Changs a release of its lien. KMH never explained to the Changs why it did not complete their home. KMH's trustee in the bankruptcy never offered to complete the work. The Changs never fired KMH, never denied KMH access to the property to perform work, and never refused to pay KMH monies due under the contract. The Changs considered KMH to have abandoned the job. The Changs had their home completed by another contractor, Villafranca Design, for $203,500.00. Villafranca Design submitted the same construction plans to Palm Beach County's building department that KMH was to use to construct the Changs' home. On or about May 7, 1997, a building permit was issued, bearing permit number B97012080. The house that Villafranca Design completed for the Changs was essentially the same house that KMH was to construct. On or about February 26, 2000, the Changs received $643.29 from KMH's bankruptcy. KMH never provided the Changs with notification of the Construction Industries Recovery Fund. The Changs never had any direct dealings with Respondent personally. As of November 15, 2001, Petitioner's costs of investigation and prosecution for Case No. 01-3830PL, excluding costs associated with an attorney's time, totaled $714.11. Case No. 01-3831PL On or about July 30, 1996, KMH contracted with Harold and Jean Bell to sell them a lot and construct a house on the lot. The contract price for the lot was $53,000.00 and the construction of the home was $186,000.00, totaling $239,000.00. Respondent's license number did not appear in the contract. In accordance with the contract, on or about August 1, 1996, the Bells paid a deposit of $5,000.00 to KMH. On September 19, 1996, the Bells paid, as closing costs, $67,147.63 to Universal Land Title, Inc., which included the cost for the lot and an additional deposit toward construction in the amount of $13,600.00. Subsequently, the Bells received a deed to the lot. KMH never obtained a building permit to construct the house. On or about December 11, 1996, the Bells' lot was cleared and fill was delivered to the lot by KMH's subcontractor, Tideway. The work by Tideway was the only work performed by KMH pursuant to the contract with the Bells. KHM did not pay Tideway, and Tideway recorded a lien on the lot for $3,688.00. KMH failed to remove Tideway's lien. Tideway never received any money on its lien and the entire amount of its lien was a complete loss. KMH never explained to the Bells why it did not complete their home. KMH's trustee in the bankruptcy never offered to complete the work. The Bells never fired KMH, never denied KMH access to the property to perform work, and never refused to pay KMH monies due under the contract. The Bells considered KMH to have abandoned the job. The Bells had their home, with extras, completed by another contractor, Villafranca Design, for approximately $208,000.00. On or about August 2, 2000, the Bells received $996.95 from KMH's bankruptcy. KMH never provided the Bells with notification of the Construction Industries Recovery Fund. On October 1, 2002, Mr. Bell obtained a civil judgment against KMH in the amount of $24,199.64, plus costs of $264.75; prejudgment interest of $21,664.88; and attorney's fees of $2,395.00, totaling $48,524.27. The Bells never had any direct dealings with Respondent personally. As of November 15, 2001, Petitioner's costs of investigation and prosecution for Case No. 01-3831PL, excluding costs associated with an attorney's time, totaled $305.84. Case No. 01-3832PL On or about May 26, 1996, KMH contracted, in a revised contract, with Erol and Yildiz Aksoy for the sale of a lot and construction of a house on a lot. The contract price for the lot was $58,000.00 and construction of the house was $242,000.00, totaling $300,000.00. The revised contract entered into evidence at hearing was incomplete. No determination could be made as to whether Respondent's license appeared in the revised contract. In accordance with the contract, the Aksoys made the following payments to KMH: on or about October 28, 1994, $1,000.003; on or about June 5, 1996, $23,000.00; on or about August 14, 1996, $12,545.00; on or about October 4, 1996, $21,800.00; on or about October 17, 1996, $1,323.00; on or about November 2, 1996, $21,800.00; on or about November 20, 1996, $7,123.00 and $21,800.00; on or about November 22, 1996, $21,800.00; on or about December 13, 1996, $21,800.00; and on or about January 2, 1997, $21,800.00 and $5,000.00. The payments totaled $180,791.00. On or about July 26, 1996, KMH executed and delivered a deed to the Aksoys for the lot. KMH performed work pursuant to the contract, but only performed 55 percent to 60 percent of the construction contracted for. After January 1997, KMH failed to perform any further work on the Aksoys' home. KMH failed to complete the construction of Aksoys' home. KMH never explained to the Aksoys why it did not complete their home. KMH's trustee in the bankruptcy never offered to complete the work. The Aksoys never fired KMH, never denied KMH access to the property to perform work, and never refused to pay KMH monies due under the contract. The Aksoys considered KMH to have abandoned the job. The Aksoys filed a proof of claim in KMH's bankruptcy for an unsecured non-priority claim in the amount of $85,000.00. Sometime in the years 2000 or 2001, they received $918.00 from the bankruptcy action. KMH's subcontractors/material suppliers recorded liens on the Aksoys' property. The subcontractors/material suppliers and recorded liens were as follows: on January 8, 1997, Buckeye Plumbing for $2,570.00; on January 14, 1997, J. W. Hodges Drywall Textures, Inc. (Hodges Drywall) for $3,500.00; on January 15, 1997, Griffin & Wilson Stucco, Inc. (GW Stucco) for $6,040.00; on January 16, 1997, Gallina Electric, Inc. (Gallina Electric) for $3,732.00; on January 17, 1997, Sasso Air for $2,925.00; on January 21, 1997, K. D. Installation, Inc. (KD Installation) for $2,789.00; and on February 5, 1997, Macshmeyer Concrete Company of Florida, Inc. (Macshmeyer Concrete) for $5,814.00. The Aksoys paid KMH for all the work or materials pertaining to the liens. KMH failed to remove any of the liens. The Aksoys paid the lien holders to remove the liens, as follows: on or about February 18, 1997, $2,570.00 to Buckeye Plumbing; on or about April 7, 1997, $1,400.00 to Hodges Drywall, with the remaining unpaid amount ($2,100.00) being a loss for the company; on or about August 6, 1997, $7,760.10 to GW Stucco, which included additional monies for attorney's fees; on or about March 12, 1997, $1,866.00 to Gallina Electric; on or about April 7, 1997, $2,975.00 to Sasso Air; $1,500.00 to KD Installation (date of payment unknown); on or about March 12, 1997, $2,616.00 to Macshmeyer Concrete. The Aksoys also paid for work for which another KMH subcontractor, Spacerace Enterprises, Inc., claimed that KMH had failed to pay. On or about February 18, 1997, the Aksoys obtained the services of another contractor, Villafranca Design, to complete the construction of their home. The Aksoys paid Villafranca Design $145,250.00. In or around May 1997, Villafranca Design completed the construction of the Aksoys' house, which was essentially the same as the house which was to be constructed by KMH. KMH never provided the Aksoys with notification of the Construction Industries Recovery Fund. The Aksoys never had any direct dealings with Respondent personally. As of November 15, 2001, Petitioner's costs of investigation and prosecution for Case No. 01-3828PL, excluding costs associated with an attorney's time, totaled $606.48. Case No. 01-3833PL On or about December 11, 1995, KMH contracted with Milo and Jerolene Glass for construction of a house on a lot owned by the Glasses. The contract price for the construction of the house was $395,795.00. Respondent's license number did not appear in the contract. In accordance with the contract, the Glasses made the following payments to KMH: on or about November 13, 1995, $1,000.00; and on or about December 11, 1995, $39,079.00. The payments totaled $40,079.00. On or about May 21, 1996, KMH applied for a building permit from Palm Beach County to construct the home for the Glasses. Respondent's name as the qualifying agent for KMH and license number appeared on the application. Sometime thereafter in 1996, the building permit was approved and issued, bearing building permit number B96019588. From approximately November 1996 to January 1997, KMH performed work pursuant to the contract, but thereafter, did not perform any further work on the home. KMH failed to complete the construction of the Glasses' home. At the time KMH stopped working on the Glasses' home, a substantial amount of work remained to be completed. Furthermore, much of KMH's work had to be repaired or corrected. KMH never explained to the Glasses why it did not complete her home. KMH's trustee in the bankruptcy never offered to complete the work. The Glasses never fired KMH, never denied KMH access to the property to perform work, and never refused to pay KMH monies due under the contract. The Glasses considered KMH to have abandoned the job. KMH's subcontractors/material suppliers recorded liens on the Glasses' property. The subcontractors/material suppliers and recorded liens were as follows: on January 17, 1997, Sasso Air for $925.00; on January 23, 1997, Electrical Express for $750.00; and on January 28, 1997, R J G Masonry, Inc. (RJG Masonry) for $8,353.99. KMH failed to remove any of the liens. The evidence is unclear as to whether the Glasses paid KMH for all the work or materials pertaining to the liens. The Glasses paid to remove the liens. The Glasses paid the following: $925.00 to Sasso Air for which they received a final waiver of lien dated July 8, 1999; on or about February 14, 1997, $750.00 to Electrical Express for which they received a release of lien dated June 2, 1997; and on or about January 24, 1997, $8,353.99 to RJG Masonary. The Glasses did not obtain the services of another contractor to complete the construction of their home. Contractors whom they approached were very reluctant or unwilling to take over the project. Finally, the Glasses, who had prior experience as owners of other construction projects, became their own contractors and completed their home. They also received the assistance of a contracting firm, but the Glasses handled all the disbursements of funds to the suppliers for labor and materials. By September 2000, the Glasses had substantially completed their home and were living in it. At the time of the hearing, they had sold the house and moved to another location in Florida. The Glasses estimate that they expended $1,239,487.78 in the construction of their home. They maintain that this cost does not include approximately $80,000.00 that the Glasses claim that their original lender paid to KMH without their authorization. The amount paid by the Glasses exceeds the contract price because (1) KMH underbid the job; (2) the Glasses spent substantial sums to repair or correct KMH's work, which the Glasses estimate conservatively to be more than $200,000.00; and (3) the Glasses spent substantial sums on upgrades of contract allowance items. The Glasses received approximately $1,000.00 from KMH's bankruptcy. KMH never provided the Glasses with notification of the Construction Industries Recovery Fund. After the bankruptcy, Mrs. Glass contacted Respondent and requested the construction plans for the home. Respondent indicated that he did not have the plans. Mrs. Glass contacted Respondent again and he indicated that he may be able to locate the plans. Subsequently, Respondent contacted the Glasses and indicated that he had located the plans. The Glasses went to Respondent's place of business to retrieve the plans. After providing the plans, Respondent requested the Glasses to hire him to complete their home. The Glasses declined Respondent's offer because they considered Respondent's cost estimate to be too high and because of Respondent's association with KMH. As of November 15, 2001, Petitioner's costs of investigation and prosecution for Case No. 01-3833PL, excluding costs associated with an attorney's time, totaled $628.33. Case No. 01-3834PL On or about December 8, 1995, KMH contracted with Suzanne Beck for construction of a house on a lot that Beck would acquire at a later date (in 1996), not as a part of the contract. The contract price for the construction of the house was $133,500.00. Respondent's license number did not appear in the contract. In accordance with the contract, Beck made the following payments to KMH: on or about December 8, 1995, $5,000.00; on or about July 31, 1996, $8,350.00 and 5,643.09; on or about August 7, 1996, $5,030.88; on or about September 4, 1996, $12,051.05; on or about September 18, 1996, $12,051.05; on or about October 1, 1996, $12,051.05; on or about October 11, 1996, $12,051.05; on or about November 7, 1996, $12,051.05; and on or about November 26, 1996, $12,051.05 and $12,051.05. The payments totaled $108,381.32. KMH applied for a building permit from the Town of Jupiter to construct the home for Beck. Respondent's name and license number appeared on the application as the contractor. On February 12, 1996, the building permit was approved and issued, bearing building permit number 96-29588. From approximately August to December 1996, KMH performed work pursuant to the contract and thereafter, did not perform any more work on the home. KMH failed to complete the construction of the Beck's home. KMH never explained to Beck why it did not complete her home. Around the end of December 1996 or in January 1997, Beck notified KMH that she was taking over the project. Progress by KMH had been slow and Beck discovered that KMH had closed the doors of its business for a second time and was not paying its subcontractors. Beck considered KMH to have abandoned the job. She obtained an owner's building permit and completed the project, making payments directly to the suppliers of labor and materials. On February 7, 1997, Beck obtained a certificate of occupancy from the Town of Jupiter. KMH's subcontractors/material suppliers recorded liens on the Beck's property. The subcontractors/material suppliers and recorded liens were as follows: on January 6, 1997, American Aluminum and Insulation FireProofing Company, Inc. (American Alum.) for $385.00; on January 6, 1997, Buckeye Plumbing for $2,625.00; on January 14, 1997, Hodges Drywall for $8,280.00; on January 14, 1997, Rizzo Tile & Marble, Inc. (R Tile & Marble) for $1,870.70; on January 15, 1997, James M. Webster d/b/a Rain Flow of South Florida (Rain Flow) for $75.00; on January 17, 1997, K. D. Installation, Inc. (KD Installation) for $520.40; on January 17, 1997, Q. C. Cabinet Systems, Inc. (QC Cabinets) for $3,207.00; on January 17, 1997, Paul Temple Painting (PT Painting) for $2,534.75; on January 17, 1997, Sasso Air for $3,360.00; on January 28, 1997, James Velix Bobcat Service (Bobcat Service) for $1,450.00; on February 4, 1997, Tideway for $279.00; on February 7, 1997, Florida Builder Appliances, Inc. (Builder Appliances) for $2,936.20; on February 7, 1997, Mc D Sprinklers, Inc. (McD Sprinklers)for $1,275.00; on February 11, 1997, Builder Direct Carpet Sales (Direct Carpet) for $1,959.26; and on February 12, 1997, Pollard Electric, Inc. (Pollard Electric) for $3,640.00. Beck paid KMH for all the work or materials pertaining to the liens. KMH failed to remove any of the liens. Beck paid to remove the liens as follows: on or about June 18, 1997, $2,625.00 to Buckeye Plumbing; on or about March 9, 1999, $10,125.00 to PT Painting, Hodges Drywall, R Tile & Marble, and Direct Carpet; and on or about October 19, 1999, $3,360.00 to Sasso Air. Hodges Drywall released its lien for $4,000.00 and the remaining amount of its lien was not paid, which represents a loss to the company. Builder Appliances, Rain Flow, McD Sprinklers, QC Cabinets, and Tideway did not receive payment from any source and the entire amounts of their liens were complete losses. After Beck took over construction of her home from KMH, she spent $19,203.00 to complete the home. Beck did not receive any money from KMH's bankruptcy. KMH never provided Beck with notification of the Construction Industries Recovery Fund. During the transaction between KMH and Beck, she met with Respondent at the job-site on one occasion to discuss some aspects of the project with which she was dissatisfied. Beck had expressed her dissatisfaction in a letter to KMH's owner. As of November 15, 2001, Petitioner's costs of investigation and prosecution for Case No. 01-3834PL, excluding costs associated with an attorney's time, totaled $534.57.
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: Dismissing the following counts: Count I of Case Nos. 01-3828PL, 01-3831PL, and 01-3833PL. Count IV of Case No. 01-3832PL. Finding that Glenn L. Mustapick committed all other violations in the counts of Case Nos. 01-3827PL, 01-3828PL, 01-3829PL, 01-3830PL, 01-3831PL, 01-3832PL, 01-3233PL, and 01-3834PL. Imposing a $25,000.00 administrative fine. Requiring Respondent to pay restitution not exceeding $25,000.00. Assessing $4,245.34 in costs for investigation and prosecution, excluding costs associated with an attorney's time, by the Department of Business and Professional Regulation, Construction Industry Licensing Board. Revoking the certified residential license, CR C040917, of Glenn L. Mustapick. DONE AND ENTERED this 3rd day of May, 2002, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 3rd day of May, 2002.
The Issue The issues in each case are whether, pursuant to Sections 489.141 and 489.143, Florida Statutes (2003), a claimant is entitled to payment from the Construction Industries Recovery Fund, and, if so, whether, pursuant to Section 489.143(7), Florida Statutes (2003), Respondent may automatically suspend the residential contractor's license of Petitioner until Petitioner reimburses Respondent for the paid claim.
Findings Of Fact Petitioner is licensed as a certified residential contractor, holding license number CRC 013599. Respondent first issued a residential contractor's license to Petitioner in 1978, and Petitioner has been continually licensed since that time. Petitioner has never been disciplined by Respondent or any local governmental agency. On January 29, 2004, Respondent transmitted to the Division of Administrative Hearings seven files containing administrative complaints alleging disciplinary breaches against Petitioner for many of the transactions covered in the nine subject cases. These seven new cases have not yet been heard, and Respondent has not yet entered any restitution orders against Petitioner. In the past, Petitioner has placed his residential contractor's license with various corporations to qualify them to perform residential construction. In February 1999, Petitioner met with Lori Thomson, president of Thomson Homes, Inc., to discuss placing his license with her residential construction company. Now inactive, Thomson Homes, Inc., had been in the residential construction business since at least 1994, operating out of an office in Palm Beach County, which is also the location of all but one of the residential construction jobs that are the subject of these cases. Since 1994, Thomson Homes, Inc., had used the general contractor's license of Ms. Thomson's husband, Steven Thomson, to qualify to perform residential construction. During the time that his license qualified Thomson Homes, Inc., Mr. Thomson believed that he and his wife owned the corporation equally and that she served as the president and he served as the vice-president. In the summer of 1998, Mr. Thomson filed for divorce from Ms. Thomson. In February 1999, Ms. Thomson fired Mr. Thomson from Thomson Homes, Inc. Shortly thereafter, Mr. Thomson learned that Ms. Thomson had caused all of the stock to be issued to her when the corporation was formed, and that she had assumed all of the officer and director positions. In early March 1999, Mr. Thomson cancelled all of the building permits that he had obtained on behalf of Thomson Homes, Inc., and withdrew his general contractor's license from Ms. Thomson's corporation, effective March 20, 1999. When Mr. Thomson withdrew his license from Thomson Homes, Inc., it was in the process of building or preparing to build about ten homes. At no time during Petitioner's discussions with Ms. Thomson was he aware that Thomson Homes, Inc., was actively involved in construction. Eventually, Ms. Thomson and Petitioner agreed that Petitioner would place his residential contractor's license with Thomson Homes, Inc., and would supervise the corporation's construction activities. In return, Thomson Homes, Inc., would pay Petitioner $500 weekly and 35 percent of the profits. After filing the necessary documentation in April 1999, Petitioner qualified Thomson Homes, Inc. effective April 22 or 26, 1999. Petitioner advised Ms. Thomson that he had other work to do for another month, so he could not start with Thomson Homes, Inc. immediately. Ms. Thomson told him that she had to get financing arranged for several signed contracts and did not have any construction taking place at the time. The record is unclear whether this delay took place after the initial agreement between Petitioner and Ms. Thomson or after Petitioner formally placed his license with Thomson Homes, Inc. However, in either event, from the date that Petitioner formally placed his license with Thomson Homes, Inc., he never had a substantive conversation with Ms. Thomson about any construction activities of Thomson Homes, Inc. Not hearing from Ms. Thomson, Petitioner eventually called her to learn when he would start work. At first, Ms. Thomson took Petitioner's calls and kept explaining that the financing paperwork had been delayed. She promised to call Petitioner when construction was ready to proceed. However, Ms. Thomson never contacted Petitioner, and she later stopped taking or returning Petitioner's calls. In early August 1999, Petitioner called Thomson Homes, Inc., and learned that its telephone had been disconnected. He visited the office of Thomson Homes, Inc., but found it closed and the premises vacated. In fact, Thomson Homes, Inc., discontinued business on or about August 1, 1999. Between the date that Petitioner had qualified Thomson Homes and the point at which Thomson Homes ceased doing business, Thomson Homes, Inc., had entered into construction contracts, taken deposits and draws on construction loans, and performed residential construction--all unknown to Petitioner. Also unknown to Petitioner was the fact that Thomson Homes, Inc., had failed to perform its obligations under many, if not all, of its construction contracts during that period. The record is unclear when Petitioner withdrew his license from Thomson Homes, Inc. Petitioner sent Respondent a letter on August 30, 1999, advising of the withdrawal of his license from Thomson Homes, Inc. Later advised that he needed to file another form to effect the withdrawal, Petitioner did so in March 2000. The difference is not important in these cases. At no time did Petitioner receive any money from Thomson Homes, Inc., or any of the claimants who contracted with Thomson Homes, Inc. At no time did Petitioner enter into any contracts with any of the claimants. Only after Thomson Homes, Inc., had taken the claimants' money and abandoned work or failed to commence work did Petitioner learn that Thomson Homes, Inc., had done construction business under his license. DOAH Case No. 03-3540 involves the claim of Sandra Harvey. Ms. Harvey entered into a construction agreement with Thomson Homes, Inc., on September 9, 1998. Pursuant to the agreement, Ms. Harvey agreed to pay Thomson Homes, Inc., $25,500 for a lot and $115,260 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 120 days from the date of slab pour. After pouring the slab, constructing the shell, and completing the rough plumbing, air conditioning, and electrical, Thomson Homes, Inc., stopped work on Ms. Harvey's home in early 1999. Ms. Harvey learned of the problem when Mr. Thomson called her in early 1999 and said that he could not finish the home because Ms. Thomson had taken over the business. This call probably took place no later than late March 1999, when Mr. Thomas withdrew as the qualifier for Thomson Homes, Inc. The record does not reveal the extent of payments from Ms. Harvey or her lender or the extent of completed work at the time that Thomson Homes, Inc., abandoned the job. Although the complaint is not part of this record, Ms. Harvey commenced a legal action against Thomson Homes, Inc., but not Petitioner. She obtained a default final summary judgment against Thomson Homes, Inc., on March 30, 2001, for a total sum of $46,267.32, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part: Subsequent to entering into the above referenced contract, Defendant breached its contract by accepting Plaintiff's deposits and construction loan disbursements and thereafter abandoning the project and failing to pay subcontractors and/or materialmen for their labor, services and material provided. As a result of Defendant abandoning the project, Plaintiff was compelled to retain a new contractor to complete her home at an additional cost over and above the original contract amount. As a direct result of Defendant abandoning the project, the misapplication of construction funds and financial mismanagement Plaintiff has been forced to borrow additional funds from the construction lender. On May 3, 2001, Ms. Harvey filed a claim with the Construction Industries Recovery Fund (Recovery Fund). In response to a question asking if she had made a diligent effort to collect payment from the contractor, Ms. Harvey answered "yes," explaining she had "filed lawsuit." Ms. Harvey probably filed her claim within two years of when Thomson Homes, Inc., abandoned her job. By the end of March 1999, Mr. Thomson informed Ms. Harvey that his wife had fired him, so he could not work on her home anymore. A change in qualifier does not mean that Thomson Homes, Inc., would necessarily abandon the job, but, as noted in the Conclusions of Law, abandonment presumptively arises upon the expiration of 90 days without work. No work took place on Ms. Harvey's home after Mr. Thomson withdrew as qualifier, so presumptive abandonment took place by the end of June 1999--after May 3, 1999, which is two years prior to the date on which Ms. Harvey filed her claim. By letter dated June 5, 2001, from James Brogan of WEI Consulting Group to Ms. Harvey, Mr. Brogan states that he had investigated the assets of Thomson Homes, Inc. Mr. Brogan found no bankruptcy filing by Thomson Homes, Inc., in Bankruptcy Court in the Southern District of Florida. Thomson Homes, Inc., was a party to 282 legal actions and owed tangible personal property taxes on furniture in a model home, but the furniture was no longer available. On February 28, 2003, Respondent issued an Order approving Ms. Harvey's claim of $25,000 against the Recovery Fund and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that Ms. Harvey is the Petitioner, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. On March 17, 2003, Petitioner filed a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on Ms. Harvey and Respondent, contests the payment to Ms. Harvey and the automatic suspension of Petitioner's license. The petition contests the payment of Ms. Harvey's claim because she had made insufficient efforts to satisfy the judgment; she had failed to submit all required exhibits with her claim; her judgment is against Thomson Homes, Inc., and not Petitioner; her judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes; and Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes. Additionally, the petition contests the automatic suspension because the payment to Ms. Harvey is not authorized, her claim is incomplete, and her judgment is not against Petitioner. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. DOAH Case No. 03-3541 involves the claim of John and Kathleen Whitesides. The Whitesides, who lived at the time in Juno Beach, Florida, entered into a construction contract with Thomson Homes, Inc., on February 7, 1999. Pursuant to the agreement, the Whitesides agreed to pay Thomson Homes, Inc., $154,094 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 120 days from the date of slab pour. After the Whitesides paid Thomson Homes, Inc., $5000 and secured a construction loan, Thomson Homes, Inc., never commenced construction. In a complaint filed April 3, 2000, the Whitesides commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment]" of the job "prior to any construction," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction. The Whitesides obtained a default final judgment against Thomson Homes, Inc., on December 21, 2000, for a total sum of $20,146.67, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part: "Defendant is in breach of the Contract dated February 7, 1999, and has received unjust enrichment from Defendant's failure to fulfill the terms of the Contract to build a home for Plaintiffs." On August 9, 2001, David Tassell, the Whitesides' attorney in the circuit court action against Thomson Homes, Inc., stated, in an acknowledged statement, that he had performed "numerous" real property searches in Palm Beach and Martin counties' public records and determined that Thomas Homes, Inc., "owns no real property in Martin County." The omission of Palm Beach County in the statement is unexplained. Mr. Tassell's statement adds that he has retained a private investigator, who confirmed that Thomson Homes, Inc., owns no boats, planes, or automobiles. On August 10, 2001, the Whitesides filed a claim with the Recovery Fund. In response to a question asking if they had made a diligent effort to collect payment from the contractor, the Whitesides answered "yes," but did not supply an explanation in the following blank. The completed questionnaire accompanying the claim states that the Whitesides discovered the violation in September 1999 and that it occurred in July to August 1999. On September 17, 2002, Respondent issued an Order approving the Whitesides' claim of $18,526.67 against the Recovery Fund and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that the Whitesides are the Petitioners, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. The Whitesides probably filed their claim within two years of when they reasonably should have discovered that Thomson Homes, Inc., had wrongfully failed to commence construction, as is required for reasons set forth in the Conclusions of Law. As noted in the Conclusions of Law, presumptive abandonment arose when Thomson Homes, Inc., after entering the contract, performed no work for 90 days. Six months elapsed from the signing of the contract to the date that is two years prior to the filing of the claim. Although the record is not well-developed on the point, it is more likely than not that due diligence did not require that the Whitesides discover the abandonment within the first 90 days after it had presumptively arisen. The Whitesides' judgment is probably based on a violation of Section 489.129(1)(g), (j), or (k), Florida Statutes, as is required for reasons set forth in the Conclusions of Law. Although the record is not well-developed on this point either, it is more likely than not that the judgment is based on Thomson Homes' abandonment after entering into the contract. The judgment does not state this basis explicitly, but the complaint, on which the judgment is based, alleges abandonment. On December 23, 2002, Petitioner filed a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on Respondent and the Whitesides' attorney in the circuit court action against Thomson Homes, Inc., contests the payment to the Whitesides and the automatic suspension of Petitioner's license. The petition contests the payment of the Whitesides' claim because they did not file certified copies of the final judgment and levy and execution documents and their judgment did not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes. Additionally, the petition contests the automatic suspension because Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes; Petitioner received no notice of the hearing that resulted in the Order to pay the Whitesides and suspend Petitioner's license; the Whitesides' claim is incomplete; and the Whitesides' judgment is not against Petitioner. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. DOAH Case No. 03-3542 involves the claim of Richard and Kathleen Beltz. The Beltzes entered into a construction contract with Thomson Homes, Inc., on July 13, 1999. Pursuant to the agreement, the Beltzes agreed to pay Thomson Homes, Inc., $35,500 for a lot and $140,500 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 120 days from the date of slab pour. After the Beltzes paid Thomson Homes, Inc., $17,283.70, Thomson Homes, Inc., never appeared at the closing, which had been scheduled for August 10, 1999. Nor did Thomson Homes, Inc., ever commence construction. The record does not disclose the extent, if any, to which Thomson Homes, Inc., completed construction. The Beltzes' discovery of Thomson Homes' failure to commence construction was hampered by the fact that they resided in California at the time. However, the Beltzes had obviously discovered the wrongful acts and omissions of Thomson Homes, Inc., by September 29, 1999, when they sent a letter to Petitioner demanding that he return the money that they had paid Thomson Homes, Inc. On October 19, 1999, the Beltzes signed a claim under the Recovery Fund, but the record contains no indication when the claim was filed. The completed questionnaire attached to the claim does not ask if the claimants had made a diligent effort to collect payment from the contractor. For reasons set forth in the Conclusions of Law, a claim must follow a judgment, so, the Beltzes could not file a valid claim until they had obtained a judgment. Two years from September 29, 1999, at which point the Beltzes obviously knew of a violation, requires that they file the claim, on an already- secured judgment, prior to September 29, 2001. In a complaint filed February 4, 2002, the Beltzes commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment]" of the job "prior to any construction" and "fail[ure] and refus[al] to pay subcontractors and/or materialmen which resulted in Claims of Liens against Plaintiffs [sic] residence, which Defendant has failed and refused to satisfy," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction and pay for goods and services provided by subcontractors and materialmen. The Beltzes obtained a default final summary judgment against Thomson Homes, Inc., on May 22, 2002, for a total sum of $23,280.20, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part: Subsequent to entering into the above referenced contract, Defendant performed some work on the project. However, Defendant breached its contract by accepting deposits and construction loan disbursements and thereafter abandoning the project and failing to pay subcontractors and materialmen for their labor, services and material provided. As a result of Defendant failing to pay Lienors who provided labor, service and materials to Plaintiffs [sic] real property, Construction Liens were recorded against same, which Plaintiffs had to satisfy. As a result of Defendant abandoning the project, Plaintiffs were compelled to retain a new contractor to complete their home at an additional cost over and above the original contract amount. As a direct result of Defendant abandoning the project, failing to pay Lienors, the misapplication of construction funds and financial mismanagement, Plaintiffs were forced to borrow additional funds from their construction lender. By unacknowledged statement dated August 23, 2002, Ms. Beltz declared that someone at the Florida Department of State advised her that Thomson Homes, Inc., was administratively dissolved on September 24, 1999. She also declared that she had found on the internet two pieces of real property owned by Thomson Homes, Inc., but they had been transferred within the past year. Ms. Beltz stated that she searched the database of the "Department of Motor Vehicles in Palm Beach County" in May 2000 and found no vehicles or boats registered to Thomson Homes, Inc. Lastly, she reported that she contacted the "Federal Aviation Association" at an unspecified time and found no "airplanes" registered to Thomson Homes, Inc. On November 26, 2002, Respondent issued an Order approving the Beltzes' claim of $17,222.78 against the Recovery Fund and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that the Beltzes are the Petitioners, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. On December 27, 2002, Petitioner filed a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on the Beltzes and Respondent, contests the payment to the Beltzes and the automatic suspension of Petitioner's license. The petition contests the payment of the Beltzes' claim because they did not submit all of the necessary exhibits with their claim; their judgment is against Thomson Homes, Inc., and not Petitioner; and their judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes. Additionally, the petition contests the automatic suspension because Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes; the Beltzes' claim is incomplete; and the Beltzes' judgment is not against Petitioner. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. DOAH Case No. 03-3543 involves the claim of Keith and Karen Deyo. The Deyos entered into a construction contract with Thomson Homes, Inc., on October 31, 1998. Pursuant to the agreement, the Deyos agreed to pay Thomson Homes, Inc., $25,500 for a lot and $123,400 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 120 days from the date of slab pour. Although the Deyos clearly suffered damages from the acts and omissions of Thomson Homes, Inc., the record does not disclose how much they paid the company, how much they had to pay unpaid suppliers and laborers, and how much construction the company completed before abandoning the job. Thomson Homes, Inc., began construction on the Deyos' home about 30-45 days after the parties signed the contract, but all work stopped in July 1999. In an undated complaint, the Deyos commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment] of the project prior to completion" and "fail[ure] and refus[al] to pay subcontractors and/or materialmen which resulted in Claims of Liens against Plaintiffs [sic] residence, which Defendant has failed and refused to satisfy," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction and pay for goods and services provided by subcontractors and materialmen. The Deyos obtained a final summary judgment against Thomson Homes, Inc., on March 15, 2000, for a total sum of $55,458.64, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part: Subsequent to entering into the above referenced contract, Defendant partially performed work under the Contract. However, it breached its contract by accepting deposits and construction loan disbursements and thereafter abandoning the project and failing to pay subcontractors and materialmen for their labor, services and material provided. As a result of Defendant failing to pay lienors who provided labor, services and materials to Plaintiffs [sic] residence, construction liens were recorded against same, which Plaintiffs had to satisfy. As a result of Defendant abandoning the project, Plaintiffs were compelled to retain a new contractor to complete their home at an additional cost over and above the original contract amount. As a direct result of Defendant abandoning the project, failing to pay lienor's [sic], the misapplication of construction funds and financial mismanagement Plaintiffs have been forced to borrow additional funds from their construction lender. On April 27, 2000, the Deyos signed a claim under the Recovery Fund, but the record contains no indication when the claim was filed. A cover letter dated May 8, 2000, suggests that the Deyos mailed their claim a couple of weeks after signing it, so it was probably filed in mid-May 2000, although their questionnaire bears a revision date of November 2001, which would be beyond two years after the violation. In the questionnaire, the Deyos did not respond to the question asking if they had made a diligent effort to collect payment from the contractor. By an undated and unacknowledged statement, Mr. Deyo declared that someone at the Florida Department of State advised him that Thomson Homes, Inc., was administratively dissolved on September 24, 1999. He also declared that he had found on the internet two pieces of real property owned by Thomson Homes, Inc., but they had been transferred within the past year. Mr. Deyo stated that he searched the database of the "department of motor vehicles in Palm Beach County" in on April 14, 2000, and found no motor vehicles or boats registered to Thomson Homes, Inc. Lastly, he reported that he contacted the "Federal Aviation Association" on April 21, 2000, and found no "airplanes" registered to Thomson Homes, Inc. On January 22, 2003, Respondent issued an Order acknowledging the Deyos' claim of $55,458.64, approving the payment of the statutory limit of $25,000 against the Recovery Fund, and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that Mr. Deyo is the Petitioner, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. On February 3, 2003, Petitioner filed a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on Respondent and the Deyos' attorney who represented them in the action against Thomson Homes, Inc., contests the payment to the Deyos and the automatic suspension of Petitioner's license. The petition contests the payment of the Deyos' claim and suspension of Petitioner's license because Petitioner did not receive notice of the hearing at which Respondent entered the Order; the Deyos did not satisfy all requirements for payment from the Recovery Fund; their claim was not accompanied by certified copies of the levy and execution documents; their judgment is against Thomson Homes, Inc., and not Petitioner; their judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes; and Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. DOAH Case No. 03-3544 involves the claim of Sylvia Reinhardt. Ms. Reinhardt entered into a construction contract with Thomson Homes, Inc., on October 14, 1998. Pursuant to the agreement, Ms. Reinhardt agreed to pay Thomson Homes, Inc., $45,000 for a lot and $147,150 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 120 days from the date of slab pour. After Ms. Reinhardt paid Thomson Homes, Inc., $144,769, directly and indirectly, by way of her construction lender, the house was little more than half complete when Thomson Homes, Inc., abandoned the job. Thomson Homes also failed to pay various suppliers that filed liens, so Ms. Reinhardt had to pay $8550.41 to RTS Roofing, $882 to Palm Beach Garage Door, and $3421.32 to Woodworks, Inc. In an undated complaint filed in 1999 (actual date illegible), Ms. Reinhardt commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment]" of the job "prior to completion" and "fail[ure] and refus[al] to pay subcontractors and/or materialmen which resulted in Claims of Liens against Plaintiff's residence, which Defendant has failed and refused to satisfy," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction and pay for goods and services provided by subcontractors and materialmen. Ms. Reinhardt obtained a final summary judgment against Thomson Homes, Inc., on March 28, 2000, for a total sum of $61,471.15, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part: Subsequent to entering into the above referenced contract, Defendant performed work under the Contract. However, it breached its contract by accepting deposits and construction loan disbursements and thereafter abandoning the project and failing to pay subcontractors and materialmen for their labor, services and materials provided. As a result of Defendant failing to pay lienors who provided labor, services and materials for the construction of Plaintiff's residence, construction liens were recorded against same, which Plaintiff had to satisfy. As a result of Defendant abandoning the project, Plaintiff was compelled to retain a new contractor to complete their [sic] home at an additional cost over and above the original contract amount. As a direct result of Defendant abandoning the project, failing to pay lienor's [sic], the misapplication of construction funds and financial mismanagement Plaintiff has been forced to borrow additional funds from her construction lender. On April 17, 2000, Ms. Reinhardt filed a claim with the Recovery Fund. In response to a question asking if she had made a diligent effort to collect payment from the contractor, Ms. Reinhardt answered "yes" and explained: "Telephone calls were unanswered. Certified mail requesting response were [sic] never answered. Our attorney made written and personal contact with the owner and there was no intention to pay." The claim states that the violation took place in July 1999. By acknowledged statement dated July 21, 2000, Ms. Reinhardt declared that she had completed a "reasonable search and inquiry" and had not found any property or assets against which to satisfy her judgment. Ms. Reinhardt stated that someone at the Florida Department of State advised her that Thomson Homes, Inc., was administratively dissolved on September 24, 1999. She also declared that she had found one parcel of property owned by Thomson Homes, Inc., and valued at $115,387, but this had been sold to "Joan Thomson" on February 1, 2000. Ms. Reinhardt stated that she had found tangible personal property worth $5000. She added that she had not found any motor vehicles registered with the Department of Highway Safety and Motor Vehicles, nor had she found anything registered with the "FAA." On November 26, 2002, Respondent issued an Order acknowledging Ms. Reinhardt's claim of $58,661.44, approving the payment of the statutory limit of $25,000 against the Recovery Fund, and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that Ms. Reinhardt is the Petitioner, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. On December 24, 2002, Petitioner served a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on Ms. Reinhardt and Respondent, contests the payment to Ms. Reinhardt and the automatic suspension of Petitioner's license. The petition contests the payment of Ms. Reinhardt's claim and suspension of Petitioner's license because Ms. Reinhardt did not submit certified copies of the levy and execution documents; her judgment is against Thomson Homes, Inc., and not Petitioner; her judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes; and Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. DOAH Case No. 03-3545 involves the claim of Louis and Ann Mahoney. The Mahoneys entered into a construction contract with Thomson Homes, Inc., on June 28, 1999, for the construction of a home in Martin County. Pursuant to the agreement, the Mahoneys agreed to pay Thomson Homes, Inc., $32,000 for a lot and $149,000 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 150 days from the date of slab pour. After the Mahoneys paid Thomson Homes, Inc., $14,500, directly and indirectly, by way of their construction lender, they suffered damages due to the acts and omissions of Thomson Homes, Inc., although, again, the record does not describe specifically how Thomson Homes caused them damage. In an undated complaint that bears no filing date, the Mahoneys commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment]" of the job "prior to completion" and "fail[ure] and refus[al] to pay subcontractors and/or materialmen which resulted in Claims of Liens against Plaintiffs [sic] residence, which Defendant has failed and refused to satisfy," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction and pay for goods and services provided by subcontractors and materialmen. The Mahoneys obtained a final summary judgment against Thomson Homes, Inc., on April 13, 2000, for a total sum of $43,084.49, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part: Subsequent to entering into the above referenced contract, Defendant breached its contract by accepting Plaintiffs' deposits and construction loan disbursements and thereafter abandoning the project and failing to pay subcontractors and/or materialmen for their labor, and/or services provided. As a result of Defendant failing to pay lienor's [sic] who provided labor, services and materials for the construction of Plaintiffs [sic] residence, a construction lien was recorded against Plaintiffs' property, which Plaintiffs will have to satisfy. As a result of Defendant abandoning the project, Plaintiffs were compelled to retain a new contractor to complete their home at an additional cost over and above the original contract amount. As a direct result of Defendant abandoning the project, failing to pay lienor's [sic], the misapplication of construction funds and financial mismanagement Plaintiffs have been forced to borrow additional funds from their construction lender. On April 30, 2000, the Mahoneys signed a claim under the Recovery Fund. Although the claim form bears no filing date, the completed questionnaire attached to the claim was filed on May 3, 2000, so that is the likely filing date of the claim. In response to a question asking if they had made a diligent effort to collect payment from the contractor, the Mahoneys answered "yes" and explained: "This is explained in General Allegations, enclosed with this paperwork." Evidently, the reference is to a copy of the circuit court complaint. By acknowledged statement dated April 8, 2002, Mr. Mahoney declared that he had completed a "reasonable search and inquiry" and had not found any property or assets against which to satisfy his judgment. Mr. Mahoney stated that someone at the Florida Department of State advised him that Thomson Homes, Inc., was administratively dissolved on September 24, 1999. He also declared that an internet search had disclosed no property owned by Thomson Homes, Inc. Mr. Mahoney stated that the "department of motor vehicles in Palm Beach County" found no motor vehicles or boats registered to Thomson Homes, Inc., and that the "FAA" had found nothing registered to Thomson Homes, Inc. On February 28, 2003, Respondent issued an Order acknowledging the Mahoneys' claim of $38,185, approving the payment of the statutory limit of $25,000 against the Recovery Fund, and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that the Mr. Mahoney is the Petitioner, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. On March 17, 2003, Petitioner served a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on the Mahoneys and Respondent, contests the payment to the Mahoneys and the automatic suspension of Petitioner's license. The petition contests the payment of the Mahoneys' claim and suspension of Petitioner's license because they did not submit all of the required exhibits; their judgment is against Thomson Homes, Inc., and not Petitioner; their judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes; and Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. DOAH Case No. 03-3546 involves the claim of Dennis and Carolyn DeStefanis. The DeStefanises entered into a construction contract with Thomson Homes, Inc., on April 7, 1999. Pursuant to the agreement, the DeStefanises agreed to pay Thomson Homes, Inc., $137,455 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 150 days from the date of slab pour. After the DeStefanises paid Thomson Homes, Inc., $15,765, directly and indirectly, by way of their construction lender, Thomson Homes, Inc. never did any work, except to contract with a surveyor, who, unpaid, filed a claim of lien against the DeStefanises's lot. In an undated complaint bearing no filing date, the DeStefanises commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment]" of the job "prior to completion" and "fail[ure] and refus[al] to pay subcontractors and/or materialmen which resulted in Claims of Liens against Plaintiffs [sic] residence, which Defendant has failed and refused to satisfy," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction and pay for goods and services provided by subcontractors and materialmen. The DeStefanises obtained a final summary judgment against Thomson Homes, Inc., on March 15, 2000, for a total sum of $36,701.87, including attorneys' fees and costs. The judgment states, in part: Subsequent to entering . . . into the above referenced contract, Defendant, [sic] breached its contract by accepting Plaintiffs [sic] deposits and construction loan disbursements and thereafter abandoning the project. [sic] As a result of Defendant abandoning the project, Plaintiffs were compelled to retain a new contractor to complete their home at an additional cost over and above the original contract amount. As a direct result of Defendant abandoning the project, the misapplication of construction funds and financial mismanagement Plaintiffs have been forced to borrow additional funds from their construction lender. On April 19, 2000, the DeStefanises filed a claim with the Recovery Fund. In response to a question asking if they had made a diligent effort to collect payment from the contractor, the DeStefanises answered "yes" and explained: "Went to DBPR Investigative Services, hired Attorney Barry W. Taylor [attorney in circuit court action], got Final Summary Judgment against Thomson Homes, Inc." On March 20, 2003, Respondent issued an Order acknowledging the DeStefanises' claim of $34,965.52, approving the payment of $15,765 against the Recovery Fund, and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that the DeStefanises are the Petitioners, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. On April 7, 2003, Petitioner filed a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on the DeStefanises and Respondent, contests the payment to the DeStefanises and the automatic suspension of Petitioner's license. The petition contests the payment of the DeStefanises' claim and suspension of Petitioner's license because they did not submit all of the required exhibits; their judgment is against Thomson Homes, Inc., and not Petitioner; their judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes; and Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes. The petition contests the suspension of Petitioner's license on the additional ground that he was not the qualifier for Thomson Homes, Inc., when it and the DeStefanises entered into the construction contract. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. DOAH Case No. 03-3547 involves the claim of James and Donna Barr. The Barrs entered into a construction contract with Thomson Homes, Inc., on September 12, 1998. Pursuant to the agreement, the Barrs agreed to pay Thomson Homes, Inc., $30,000 for a lot and $140,900 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 120 days from the date of slab pour. The Barrs paid Thomson Homes, Inc., $8500 in the form of a down payment. They or their construction lender paid Thomson Homes, Inc., considerably more money and suffered the imposition of claims of lien by unpaid subcontractors and suppliers, but, after negotiating with the bank, emerged from the transaction having lost only the $8500 down payment. Thomson Homes, Inc., obtained permits in April 1999 and started construction in May 1999. Before abandoning the job, Thomson Homes, Inc., worked on the home in May, June, and July of 1999. The Barrs and their lender did not make additional payments after the Barrs found the Thomson Homes, Inc., office empty on August 1, 1999. In a complaint filed October 6, 1999, the Barrs commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment]" of the job "prior to completion" and "fail[ure] and refus[al] to pay subcontractors and/or materialmen which resulted in Claims of Liens against Plaintiffs [sic] residence, which Defendant has failed and refused to satisfy," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction and pay for goods and services provided by subcontractors and materialmen. The Barrs obtained a final summary judgment against Thomson Homes, Inc., on May 8, 2000, for a total sum of $45,435.62, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part: Subsequent to entering into the above referenced contract, partially performed work under the Contract. However, Defendant breached the contract by accepting Plaintiffs [sic] deposits and construction loan disbursements and thereafter abandoning the project and failing to pay subcontractors and/or materialmen for their labor services and materials provided. As a result of Defendant failing to pay lienors who provided labor, services and materials for the construction of Plaintiffs [sic] residence, construction liens were recorded against same, which Plaintiffs will have to satisfy. As a result of Defendant abandoning the project, Plaintiffs will be compelled to retain a new contractor to complete their home at an additional cost over and above the original contract amount. As a direct result of Defendant abandoning the project, failing to pay lienors, the misapplication of construction funds and financial mismanagement Plaintiffs will be forced to borrow additional funds from their construction lender. On June 2, 2000, the Barrs filed a claim under the Recovery Fund. In response to a question asking if they had made a diligent effort to collect payment from the contractor, the Barrs answered "yes" and explained: "I have looked into the assets of Thomson Homes Inc. and they do not have any. My affidavit is attached." The completed questionnaire states that the Barrs discovered the violation on August 11, 1999. They therefore failed to file their claim within two years of the discovery of the violation. By acknowledged statement dated May 23, 2000, Ms. Barr declared that she had completed a "reasonable search and inquiry" and had not found any property or assets against which to satisfy her judgment. Ms. Barr stated that someone at the Florida Department of State advised her that Thomson Homes, Inc., was administratively dissolved on September 24, 1999. She also declared she had found no property owned by Thomson Homes, Inc., in Palm Beach County. Ms. Barr stated that the Department of Highway Safety and Motor Vehicles found no motor vehicles or boats registered to Thomson Homes, Inc., and that the internet site of the "FAA" had revealed nothing registered to Thomson Homes, Inc. On November 26, 2002, Respondent issued an Order approving the payment of the Barrs' claim of $8500 against the Recovery Fund and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that the Barrs are the Petitioners, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. On December 27, 2002, Petitioner served a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on the Barrs and Respondent, contests the payment to the Barrs and the automatic suspension of Petitioner's license. The petition contests the payment of the Barrs' claim and suspension of Petitioner's license because they did not submit a certified copy of the levy and execution documents; their judgment is against Thomson Homes, Inc., and not Petitioner; their judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes; and Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. DOAH Case No. 03-3633 involves the Joanne Myers. Ms. Myers entered into a construction contract with Thomson Homes, Inc., on February 7, 1999. Pursuant to the agreement, Ms. Myers agreed to pay Thomson Homes, Inc., $29,500 for a lot and $125,400 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 120 days from the date of slab pour. Ms. Myers directly or indirectly paid Thomson Homes, Inc., $12,840. According to Ms. Myers' claim, Thomson Homes, Inc., never commenced construction before going out of business in August 1999. In an undated complaint bearing no filing date, Ms. Myers commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment]" of the job "prior to completion" and "fail[ure] and refus[al] to pay subcontractors and/or materialmen which resulted in Claims of Liens against Plaintiff's residence, which Defendant has failed and refused to satisfy," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction and pay for goods and services provided by subcontractors and materialmen. Ms. Myers obtained a final summary judgment against Thomson Homes, Inc., on May 31, 2000, for a total sum of $28,307.77, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part: Subsequent to entering . . . into the above referenced contract, Defendant breached the contract by accepting Plaintiff's deposits and construction loan disbursements and thereafter abandoning the project and failing to pay subcontractors and/or materialmen for their labor services and materials provided. As a result of Defendant failing to pay lienor's [sic] who provided labor, services and/or materials for the construction of Plaintiff's residence, construction liens were recorded against same, which Plaintiff will have to satisfy. As a result of Defendant abandoning the project, Plaintiff will be compelled to retain a new contractor to complete her home at an additional cost over and above the original contract amount. As a direct result of Defendant abandoning the project, failing to pay lienor's [sic], the misapplication of construction funds and financial mismanagement Plaintiff will be forced to borrow additional funds from her construction lender. On September 18, 2000, Ms. Myers filed a claim with the Recovery Fund. In response to a question asking if she had made a diligent effort to collect payment from the contractor, Ms. Myers answered "yes" and explained: "Contractor closed corporate office--would not answer telephone calls." By letter dated November 30, 2000, from James Brogan of WEI Consulting Group to Ms. Myers, Mr. Brogan states that he had investigated the assets of Thomson Homes, Inc. Mr. Brogan found no bankruptcy filing by Thomson Homes, Inc., in the Southern District of Florida. Thomson Homes, Inc., was a party to 282 legal actions and owed tangible personal property taxes on furniture in a model home. On February 28, 2003, Respondent issued an Order approving the payment of Ms. Myers' claim of $14,080.66 against the Recovery Fund and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that Ms. Myers is the Petitioner, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. On March 17, 2003, Petitioner filed a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on Ms. Myers and Respondent, contests the payment to Ms. Myers and the automatic suspension of Petitioner's license. The petition contests the payment of Ms. Myers' claim and suspension of Petitioner's license because she did not submit evidence of a diligent search for assets; she did not submit all of the required exhibits; her judgment is against Thomson Homes, Inc., and not Petitioner; her judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes; and Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. On January 4, 2004, Ms. Myers died. However, the probate court of Lancaster County, Pennsylvania, issued letters testamentary on her estate to James W. Myers III, in whose name Ms. Myers' claim is now being prosecuted. At the hearing, Petitioner contended that most, if not all, of the claims failed because the claimants had not exercised reasonable diligence in searching for assets, although Petitioner has dropped this contention in its proposed recommended order. In his petitions for hearing, Petitioner raised this contention only as to Ms. Myers. Ms. Myers, as well as the remainder of the claimants, made or caused to be made a reasonable search and inquiry for the assets of Thomson Homes, Inc. It is obvious that Thomson Homes, Inc., had no assets by the first letter from Mr. Brogan, dated November 30, 2000, nor did it have assets when Mr. Brogan issued his later letter on June 5, 2001, or when the attorney issued his affidavit on August 9, 2001. What is reasonable, in terms of a search, is dictated here by the fact that Thomson Homes, Inc., had no discoverable assets against which it could be made to answer for the considerable fraud that it perpetrated against these nine claimants. Respondent provided all of the parties, including Petitioner, with notice of its hearings at which it entered Recovery Fund orders. The petitions contend that Petitioner received no such notice in the Whitesides and Deyos cases. Although not litigated at the hearing, the presumption of notice, pursuant to the recitations set forth in each of Respondent's orders, results in a finding that Petitioner received timely notice in all cases.
Recommendation It is RECOMMENDED that Respondent enter a final order dismissing the claims against the Recovery Fund of the Beltzes and Barrs; paying the claims against the Recovery Fund of the remaining claimants, pursuant to the provisions of the orders of Respondent already issued in these cases and pursuant to the provisions of Section 489.143(1)-(6), Florida Statutes; and dismissing Respondent's request for the automatic suspension of Petitioner's license, pursuant to Section 489.143(7), Florida Statutes, without prejudice to any separate disciplinary proceedings that Respondent has commenced or may commence against Petitioner or others for the acts and omissions involved in these nine cases. DONE AND ENTERED this 17th day of February, 2004, in Tallahassee, Leon County, Florida. S 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 17th day of February, 2004. COPIES FURNISHED: Bruce G. Kaleita Law Office of Bruce G. Kaleita, P.A. 1615 Forum Place, Suite 500 West Palm Beach, Florida 33401 Adrienne C. Rodgers Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-1023 Tim Vaccaro, Director Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Nancy Campiglia, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
