The Issue The issue presented for decision herein is whether or not the Respondent, David H. Tinius, unlawfully abandoned a construction project; diverted funds received for completion of a construction project and thereby failed to fulfill his contractual obligations.
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. By its administrative complaint filed herein signed October 6, 1982, the Petitioner, Construction Industry Licensing Board, seeks to suspend, revoke or take other disciplinary action against the Respondent's registered building contractor's license. During times material herein, Respondent was a registered building contractor and has been issued license No. RB0024083. On approximately April 20, 1978, Respondent entered into a contract with Jess Marks to build a residence in Tamarac, Florida, for the sum of $46,551. Respondent commenced construction of the Mark's residence but left the site when it was approximately forty percent complete. At that time, Respondent had received approximately $44,000 of the contract sum. Jess Marks completed the construction of his residence by hiring another contractor to complete the project and expended approximately $50,000 over and above the contract price as agreed upon by the Respondent to complete his residence. Respondent never returned any of the monies received from the Marks for completion of the residence. On approximately April 24, 1978, Respondent entered into a contract with Abe Abrahams to construct a residence in Tamarac, Florida, for the sum of $30,473. Respondent left the Abrahams' project after he had received $6,000 and had completed approximately ten percent of the work on the Abrahams' residence. Respondent did not return to the site nor did he return any of the monies received from the Abrahams for the construction of their residence (See Petitioner's Composite Exhibit No. 5). The Abrahams had to pay for supplies and material bought for the project by the Respondent and which reportedly had been paid, according to Respondent. THE RESPONDENT'S POSITION As noted hereinabove, the Respondent did not appear to contest or otherwise refute the allegations contained in the administrative complaint filed herein. However, Respondent, through counsel, filed an answer which admitted the complaint allegations filed herein.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, hereby RECOMMENDED that the Respondent's registered building contractor's license No. RB0024083 be REVOKED. DONE and RECOMMENDED this 29th day of August, 1983 in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1983 COPIES FURNISHED: Michael J. Cohen, Esquire 2715 East Oakland Park Boulevard Suite 101 Fort Lauderdale, Florida 33306 David H. Tinius 4420 Northwest 36th Court Lauderdale Lakes, Florida 33309 David H. Tinius Post Office Box 6338 Charlotte Amalil St. Thomas, U.S.V.I. 00801 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
Findings Of Fact At all times material to this proceeding, the Respondent has been licensed as a residential contractor in the State of Florida, holding license number CR C022406, and was the licensed contractor qualifying Rothberg Homes, Inc. On or about May 21, 1986, the Respondent entered into a contract to build Mr. and Mrs. Frank Sargent a new home in Palm Harbor, Florida, for $95,670. The home was to be completed before November 15, 1986, so that the Sargents could qualify for a lower interest rate. The Respondent relied heavily on his construction superintendent, Frank Jackson, to accomplish the work in a timely and workmanlike manner. The Respondent was responsible primarily for selling contracts and for taking care of the company finances. To comply with the technical requirements of the contract, the Respondent had construction begin in July, 1986, with the clearing of the lot. But foundation footers were not dug and poured until about a month later, and construction proceeded at a slow pace (then it went on at all.) The Sargents registered numerous complaints to Jackson about the slow pace and some complaints to the Respondent about Jackson, but nothing was done to speed construction along. In October, 1986, the Sargents, who were on the job site daily, began hearing complaints from suppliers and subcontractors that the Respondent was slow paying them but was told that he eventually was coming through with the payments due. By November, the Respondent was not making payments at all in some cases. Also in October and November, Jackson was in the process of opening his own business (not construction-related) and was devoting less and less time to the Sargent job. November 15, 1986, approached, and it became obvious that the deadline would not be met. The Sargents and the Respondent met and agreed to extend the deadline one month to December 16. On December 11th, the Sargents again reminded the Respondent of the deadline and its importance to them, but the December 16 deadline also came and went with the house only about 70 percent complete. In December, Jackson quit altogether. The Sargents complained to the Respondent, who promised to replace Jackson but never did. Because the Respondent had stopped paying subs and suppliers, they refused to do any more work, and the Sargents wound up having to pay some of them out of their own pockets in order for work to continue. In March 1987, some of the subs and suppliers also filed claims of liens for unpaid work which the Sargents had to clear out of their own pockets in order to close the purchase of the house. Mr. Sargent himself did some of the work, some of which would have been warranty work if the Respondent had paid his bills on time, to save some additional expense caused by the Respondent's failure to keep current on his accounts with the subs and suppliers and to avoid some of the additional hassle of trying to persuade an unpaid sub or supplier to do warranty work. On March 16, 1987, the Sargents met with the Respondent to arrive at an accounting for purposes of the upcoming closing. They agreed that the Sargents should receive the last construction loan draw of about $9,500 to compensate them for payments they made that should have been made by the Respondent and that the Respondent still owed them $6,000, which the parties agreed would be the subject of a promissory note from the Respondent to the Sargents. (This does not even account for the Sargents being shortchanged when a three-foot roof overhang for which they had contracted turned out to be only a two-foot overhang.) The Respondent has paid the promissory note.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Construction Industry Licensing Board enter a final order finding the Respondent, Daniel S. Rothberg, guilty of violating Section 489.129(1)(h) and (m), Florida Statutes (1987), and imposing an administrative fine in the amount of $1,500. RECOMMENDED this 19th day of December, 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1988. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Daniel S. Rothberg 624 Charisma Drive Tarpon Springs, Florida 34689 Daniel S. Rothberg 196 Mayfair Circle Palm Harbor, Florida 34684 Warren A. Wilson, III, Esquire 2101 U.S. Highway 19 North Suite 201 Palm Harbor, Florida 33563 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issues for determination are whether Respondent committed the acts alleged in the Administrative Complaint and, if so, what, if any, penalty should be imposed.
Findings Of Fact Petitioner is the governmental agency responsible for issuing licenses to practice as building contractors. Petitioner is also responsible for regulating such licensees on behalf of the state. At all times pertinent to this proceeding, Respondent has been licensed individually as a Certified General Contractor pursuant to license number CG C 0055328 issued by the Construction Industry Licensing Board (the "Board"). Respondent has never been licensed by the Board as the qualifying agent for Mr. Gary Butler ("Butler"), an unlicensed contractor. In 1993, Respondent entered into an agreement with Butler who has never been licensed by the Board. The terms of the agreement require Respondent to pull permits for construction projects entered into by Butler. Butler pays Respondent for each permit or weekly. Respondent supervises some, but not all, of the projects undertaken by Butler. In August, 1993, Mr. Lynn Kyler ("Kyler"), the owner of a residence constructed by Ms. Denise Pyke ("Pyke"), a Certified Residential Contractor, asked Pyke to find a contractor to build a new dock and boat house at Kyler's residence. The Kyler residence is a lake front home located at 10250 State Road 561 A, Clermont, Lake County, Florida. Kyler authorized Pyke to act as Kyler's agent for construction of the dock and boat house. Kyler resided in Indiana from August through late fall of 1993. Pyke obtained recommendations of various candidates including Butler. Butler represented himself as a licensed and insured builder of docks and boat houses. Butler provided Pyke with a business card representing that Butler is licensed and insured. Pyke obtained cost and design proposals from Butler and Norquist Construction Company and communicated the proposals to Kyler. Kyler chose Butler. Butler agreed to demolish the existing dock and construct a new dock and boat house (the "project"). Kyler paid Butler the full contract price of $6,897.60. Prior to the completion of the project, neither Respondent nor Butler disclosed to Pyke or Kyler that Butler was unlicensed. Nor did they disclose that Butler would use Respondent's license to pull the permit for the project. Respondent knew that Butler is not licensed as a contractor, in any capacity. On August 25, 1993, Respondent and Butler went to the Lake County Building Department. Respondent used his license to pull Permit Number T93- 04793 for the project. The permit was issued to Respondent, listed Respondent's license as the certified general contractor, and was maintained in the official records of the Lake County Building Department. Respondent listed himself on the permit as the contractor for the entire project without limitation and without reference to Butler. Respondent was not authorized by Pyke or Kyler to pull the permit or to participate in the project. At the time, neither Pyke nor Kyler were aware of Respondent's existence or his role in the project. Respondent did not participate and had no involvement in the project except pulling the permit. The project was commenced by Butler in August, 1993, and completed shortly thereafter. Respondent did not supervise or participate in the construction of the project. Butler began the project without first filing a Notice of Commencement. Butler constructed the project with only a 10 foot setback in violation of the 25 foot setback required in Lake County Code Ordinance 10.0401(3)(d). Butler also failed to obtain an electrical permit in violation of Standard Building Code, Section 103.1.1. (1991). The project, as built by Butler, has no value to Kyler. The project failed final inspection for violation of the 25 foot setback and failure to obtain an electrical permit. The roof tiles on the boat house had to be removed because they were falling off the roof. The project itself is coming apart. It will cost between $10,000 and $12,000 to bring the project into compliance with local code requirements and to make it usable. Respondent was aware of the 25 foot setback when he pulled the permit for the project. The project plans submitted for the permit reflect the 25 foot setback. Lake County allows contractors to withdraw permits that have already been pulled. Respondent never withdrew the permit for the project. Butler was unable to obtain a final inspection because he failed to file a Notice Of Commencement at the outset of the project. Pyke and Kyler filed the Notice Of Commencement in order to obtain the final inspection. As the contractor of record, it was Respondent's responsibility to ensure that a Notice of Commencement was filed and that the project passed final inspection. While obtaining the information necessary to file the Notice Of Commencement, Pyke and Kyler learned that Butler was unlicensed and uninsured and that Respondent had used his license to pull the permit. When confronted by Pyke, Respondent did not deny knowledge of the project and assured Pyke that the problems with the project would be corrected. Despite Respondent's assurances, the code violations have not been corrected. Nor have the defects in construction been corrected.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a Final Order finding Respondent guilty of violating: Sections 489.129(1)(c) and 455.227(1)(a); and Sections 489.129(1) (e), (f), (n), and (p). It is further recommended that the Board place Respondent on probation for three years, subject to reasonable conditions, impose an administrative fine of $5,000, and assess costs of $717.50 plus reasonable costs incurred by Petitioner subsequent to the date of this Recommended Order to investigate and prosecute this proceeding to its conclusion. RECOMMENDED this 28th day of March, 1996, in Tallahassee, Florida. DANIEL S. MANRY, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of March 1996.
The Issue Did Respondent abandon a construction project in violation of Section 489.129(1)(k), Florida Statutes (1992)? Did Respondent violate Section 489.129(1)(h), Florida Statutes (1992), by committing mismanagement or misconduct in the practice of contracting which caused financial harm to a customer? Did Respondent violate Section 489.129(1)(j), Florida Statutes (1992), and Section 489.119(5)(b), Florida Statutes (1992), by failing to include a license number on a proposal? Did Respondent violate Section 489.129(1)(n), Florida Statutes (1992), by committing incompetency or misconduct in the practice of contracting?
Findings Of Fact Petitioner is the state agency charged with regulating the practice of contracting pursuant to Section 20.165, Florida Statutes, and Chapters 455 and 489, Florida Statutes. At all times material, Respondent has been licensed as a Registered Building Contractor and a Registered Roofing Contractor in the State of Florida, having been issued license numbers RB 24424 and RC 26644. In April 1993, Dorie Crawford and Respondent discussed constructing her residence. Ms. Crawford prepared a sketch of the proposed residence and gave the sketch to Respondent. Based on Ms. Crawford's sketch, Respondent had a set of Plans prepared for the construction of the proposed residence. Based on Ms. Crawford's limited funds, the parties orally agreed that Respondent would construct a 768 square-foot residence for $21,504. This agreed price did not include some of the features shown in the Plans: specifically, a garage, a garage apron, and a utility room. Also, a smaller front porch than the one shown on the Plans was agreed upon. Respondent prepared a Proposal dated April 14, 1993, for a stated price of $21,504, but it did not adequately reveal the agreed deviations from the Plans. Item 18 on the April 14, 1993 Proposal/Contract states, "Anything changed on Plans will be extra." Ms. Crawford and Respondent entered into an agreement that Respondent would construct a residence pursuant to the April 14, 1993 Proposal, as written. However, Respondent filed the Plans with the local Building Department without their reflecting the orally agreed omissions/deviations. Respondent admitted, and it is found, that, contrary to law, Respondent did not include his contracting license number on the April 14, 1993 Proposal. Ms. Crawford orally requested several changes in construction before June 17, 1993. Respondent completed these changes without requiring any written change orders. "Textbook" construction contracting requires that written change orders be executed before any changes of construction actually occur. I accept Respondent's expert's testimony to the effect that the custom of the trade does not always meet the textbook ideal, but common sense dictates that no major construction change from the plans or contract should occur unless written change orders authorize them. At the very least, written change orders which precede construction changes would establish that the parties had had a "meeting of minds" on what additional work was agreed to be done and for what approximate price. Ms. Crawford never executed any written change orders. However, it is undisputed that on June 17, 1993, the parties did agree to some changes in the scope of the work. Upon all credible evidence, it is found that Ms. Crawford and Respondent agreed that any minor changes requested by Ms. Crawford up to that date, plus a carport, increased porch size, and patio would be added by Respondent for an increased total contract price of $32,533. Respondent provided Ms. Crawford with written calculations, but no new written Proposal was prepared or signed reflecting this revised contract amount. Thereafter, Ms. Crawford continued to request changes in construction, Respondent continued to work on the project without written change orders, and Ms. Crawford paid him over time. Both Respondent and Ms. Crawford testified that she had purchased a whirlpool tub herself and Respondent had credited her for the difference. Respondent's testimony that additional re-plumbing costs were incurred in satisfying this oral change order after the June 17, 1993 agreement is accepted, based on Ms. Crawford's dated check for the tub and Respondent's Exhibit 3, which agree on this issue within three days of each other. At formal hearing, Ms. Crawford also acknowledged an oral order during this period to change the fireplace from wood to stone. She denied authorizing a small increase in its size. She also admitted requesting a reinforcement for the porch swing and some changes involving a utility closet. In July, Ms. Crawford requested that Respondent prepare a Proposal which would cover the price to the construct the entire residence as shown on the original Plans. Respondent presented a July 23, 1993 Proposal for $45,216. The only clearly identifiable difference between Respondent's July 23, 1993, Proposal at $45,216 and his original April 14, 1993, Proposal at $21,504 is substitution of cathedral ceilings and the addition of a carport and patio. It might be possible to infer from this Proposal that the porch had increased in size. This Proposal also did not bear Respondent's contractor's number. Ms. Crawford refused to pay $45,216 and did not sign the July 23, 1993 Proposal. She and Respondent did not enter into a written contract on the basis of the July 23, 1993 Proposal. At formal hearing, Respondent represented that his July 23, 1993 Proposal only covered the oral change orders Ms. Crawford had requested and that he had installed up to that date. Nonetheless, Respondent continued on the job until mid-September. By September 13, 1993, Ms. Crawford had paid Respondent $27,500. On or about September 13, 1993, Respondent requested payment from Ms. Crawford in the amount of $5,316.14, which she refused to pay. He demanded approximately $16,900 to finish her house. Respondent then removed all of his equipment from the work site, including equipment which he normally left there between his visits. At that time, the drywall stage was not yet complete, the carport apron had not been poured, and several subcontractors remained unpaid. Based on the evidence as a whole, particularly the photographs of the condition in which Respondent left the premises, the intrinsic confusion within Respondent's own Exhibit 3 and the extrinsic confusion between Respondent's Exhibit 3 and his testimony as to when various parts of the work were completed,1 Respondent's explanation that he was just removing his equipment to make way for a specific subcontractor is not credible. On September 24, 1993, Ms. Crawford's attorney wrote Respondent, demanding that he complete the work as agreed on June 17, 1993, for a total of $32,533. By this letter, Ms. Crawford acknowledged the parties' June 17, 1993 oral modification to the original contract price and that she had additionally agreed to an oral change order on switching out an ordinary tub for a larger whirlpool tub and taking a $500 credit from Respondent on the smaller ordinary tub previously purchased by Respondent. At formal hearing, Respondent claimed that Ms. Crawford still owed him $3,468.33 for the work he had done before September 13, 1993, including a total of 20 oral change orders over the course of construction. Even by his somewhat vague calculations, some of these changes pre-date the June 17, 1993 Proposal which was supposed to encompass all Respondent's work up to that date. There does not appear to be any dispute that Respondent actually performed most of the work claimed, but Ms. Crawford denied she authorized some of it. When Respondent received Ms. Crawford's attorney's letter on September 26, 1993, Respondent contacted Ms. Crawford's attorney in an effort to resolve the dispute, but advised him he would not continue to work on Ms. Crawford's residence unless he was paid more money. At the direction of Ms. Crawford, on September 28, 1993, her attorney wrote Respondent a letter, terminating him from the project. As of the date of termination, Ms. Crawford had paid Respondent $27,500. On or about October 4, 1993, Respondent notified the Building Department that he was no longer responsible for the project due to his termination. Ms. Crawford hired a replacement contractor to complete the project. It is not clear from the record whether she also had to pay the unpaid subcontractors; however, if she did not, her residence would be subject to any liens they might file. Two expert construction contracting witnesses, Larry Strickland and Jose Mitrani, considered many factors, including historical job cost data within Respondent's Exhibit 3, which had been assembled by Respondent's construction contracting expert. They each testified credibly, using standard accepted methodology and nationally recognized databases, that neither the house described in the original Plans nor the house described in the original Proposal/Contract could have been built for Respondent's originally estimated $21,504 without significant loss to the builder. Mr. Strickland also visited the site. He was able to trace through the changes actually constructed on the site and relate them back to, or compare them with, the original Plans and April 14, 1993 Proposal/Contract. He noted actual on-site changes in a bigger shower and tub, kitchen soffits, an increased porch size per the June 17, 1993 oral agreement, some changes to the deck, two vanities instead of one, a relocated utility closet, and cathedral ceilings. In his credible opinion, none of the "extras," including the addition of scissors trusses and cathedral or vaulted ceilings, should have significantly added to the cost of construction. The cathedral ceilings were, in his opinion, a "deviation" but not a significant change from the original Plans. Messrs. Strickland and Mitrani each considered Respondent's original estimate of $21,504, either with or without the deck and/or garage and/or front porch to be either grossly incompetent or a deliberate underbid. Their respective estimates were between $55,000 to $60,414 for the same work. Because Respondent's expert never visited the site, based his opinion on no standard methodology, and based his opinion solely upon Respondent's 1993 explanation of original, but now missing, documentation that gave rise to Respondent's Exhibit 3, Respondent's expert's opinion that all of the increased costs were the result of Ms. Crawford's oral change orders is not persuasive.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Construction Industry Licensing Board enter a Final Order that Finds Respondent guilty of violating Section 489.129(1)(k), Florida Statutes, and fines him $500 therefor; Finds Respondent guilty of violating Section 489.129(1)(h), Florida Statutes, and fines him $750 therefor; Finds Respondent guilty of violating Section 489.129(1)(j), Florida Statutes, and fines him $100 therefor; and Florida Respondent guilty of violating Section 489.129(1)(n), Florida Statutes, and fines him $1,000 therefor. RECOMMENDED this 2nd day of October, 1997, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 2nd day of October, 1997.
The Issue The issue for determination at the final hearing was whether the contracting license of the Respondent Konrad v. Ising should be suspended, revoked, or otherwise disciplined by the Petitioner Department of Professional Regulation, for alleged violations of Chapter 489, Florida Statutes. At the final hearing Petitioner's Exhibits 1 and 2(a)-(g) were offered and admitted into evidence. The Respondent testified on his own behalf.
Findings Of Fact The Respondent Konrad V. Ising is licensed to practice contracting in Florida, and is a licensed certified general contractor holding license number CG C009669, a license current and active from 1982 through the present. The Respondent qualified Master Craft Constructors using license number CG C009669. During 1982, the Respondent entered into an association with Carlton Mosher whereby the Respondent would use his contractor's license to obtain building permits for construction projects which Mosher had contracted. The Respondent hoped his association with Mosher would lead to a partnership and assist him in obtaining practical experience in the construction field. During his association with the Respondent, Mosher was not a licensed contractor. In December 1982, Mosher, doing business as Re-Builders, contracted with Russell Hirstins to construct a room addition on his home at 4034 27th Avenue, St. Petersburg, Florida. On December 3, 1982, an application for a building permit for the job was submitted to the City of St. Petersburg and permit number 88638 was issued. The permit was obtained using the Respondent's license number and Respondent is listed as the job contractor. However, the Respondent performed no work on the Hirstins job, maintained no control over Mosher's work, failed to adequately supervise the project, and failed to qualify Re-Builders with the Construction Industry Licensing Board. Since becoming licensed in 1975, the Respondent has not been involved in any other disciplinary proceedings. At the final hearing, the Respondent candidly acknowledged that his association with Mosher was a regrettable mistake. The project was completed by Mosher to the apparent satisfaction to the Hirstins.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered by the Construction Industry Licensing Board finding the Respondent Konrad V. Ising guilty of violating Section 489.129(1)(g) and (j), Florida Statutes, and imposing a $250 administrative fine. DONE AND ORDERED this 30th day of January 1984, in Tallahassee. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of January 1984. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Konrad V. Ising Post Office Box 1023 Maitland, Florida 323751 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32302
Findings Of Fact At all times material to this proceeding, the Respondent, Donald F. Royal, was licensed as a registered roofing contractor in the State of Florida, holding license number RC 0031831. During the times of the alleged violations, the Respondent was the sole qualifying agent for J & J Construction Company (the company.) The principals of the company were the Respondent and a man named James Jimenez. Both men sold jobs for the company and were responsible for overseeing some of the work of the company. The Respondent pulled permits for, and was primarily responsible for, the roofing work contracted by the company. But sometimes, when the company had more than one job going at the same time, the Respondent would be primarily responsible for overseeing one, and Jimenez would be primarily responsible for overseeing the other. The Respondent thought that Jimenez held a license of some kind that enabled him to do some kinds of minor renovation construction. The Respondent restricted his work to roofing and did not mind Jimenez doing some renovation work on the side, separate from the business of the company. But the Respondent understood that Jimenez' "side deals" would be done separately under Jimenez' own license and would not be part of the business of the company. On or about August 14, 1986, Jimenez entered into a contract on behalf of the company to build an addition, remodel and reroof the existing structure and roof the addition of the residence of Ernest and Mercedes Riccio located at 3117 West Henry Avenue, Tampa, Florida. The contract price was $18,999. Jimenez telephoned the Respondent about the job but only told him about the part of the contract that called for the existing roof to be torn off and reroofed. He told the Respondent that the contract price for the job was $3,800. The Respondent pulled a permit for what he thought was the job and started and finished what he thought was the work to be done. The Respondent personally was compensated approximately $700-$800 for his part in the reroofing job. When the Respondent was finished, Jimenez continued with the rest of the contract, which was to include roofing the addition, without telling the Respondent about it. Jimenez did not get very far before a Tampa building inspector happened past and, seeing unfamiliar work in process, inspected the job site. He discovered that the building permit displayed at the site had been altered to expand the work purportedly permitted to include building, in addition to the roofing work for which the Respondent had obtained a permit. Someone other than the Respondent (probably Jimenez although he denied it) altered the permit. The Respondent knew nothing about the contract (other than the reroofing that he did), the alteration of the permit, or the work Jimenez was doing after he left the site. When he discovered the permit violations, the building inspector "red- tagged" the entire job, and work stopped. That was only the beginning of the Riccios' problems. Further investigation revealed that the job would require not only a valid permit but also zoning variances and utility easements. Although the contract had called for the company to obtain all necessary permits, Jimenez and the Riccios agreed that the Riccios would apply for whatever else was necessary in their own names and that Jimenez would assist them. By the time work stopped, the Riccios already had paid the company $12,666 of the total contract price. Nonetheless, when Jimenez' minimal assistance did not resolve the Riccios' problems quickly, Jimenez decided that he already had put too much into the job, and he began to lose interest and make himself scarce. The Riccios finally got their necessary permits on January 26, 1987. They then approached Jimenez about the work to be done under the contract (and the matter of the remaining $6,333 draw). The Riccios and Jimenez agreed that the Riccios would provide the materials and supplies necessary to complete the work and the company would provide the labor. Despite these alternate arrangements, the company did not promptly finish the job. Eventually, the Riccios gave up on Jimenez and in April or May, 1987, began to deal directly with the company's former job superintendent, a man named Ray. To improve their chances of getting the job done (and reduce some of their extra expenses), the Riccios agreed to allow Ray to live in the house free of charge while they were doing the work. The job still did not get finished. Eventually, Mrs. Riccio and some of her relatives finished the job themselves. Even so, the Riccios wound up spending about $20,000, in addition to the $12,666 they had paid the company, to complete the job which the company had contracted to do for $18,999, total. The Respondent was not aware of any of Jimenez' dealings with the Riccios after the Respondent completed his reroofing work. The Respondent assumed that Jimenez had called for a final inspection and that the job had been completed satisfactorily. But in approximately February or March, 1987, the Respondent was contacted by a DPR investigator in connection with the Riccios' complaint against the company. He learned at about that time about Jimenez' other dealings with the Riccios. He also learned that the roof over the addition that had been built had failed inspection. The Respondent eventually corrected the deficiencies, and the roof passed final inspection on August 19, 1987. The Respondent attempts to excuse himself of any wrongdoing, saying that he had a right to delegate the supervision of jobs such as the Riccio job to Jimenez and that he himself was victimized by Jimenez, along with the Riccios. Respondent nonetheless negotiated with Jimenez through the end of the year 1987 in an attempt to come to an agreement to continue to do business together, but the negotiations finally failed. The Respondent was disciplined by the Construction Industry Licensing Board on January 7, 1988, for offenses which occurred during the same time frame in which the Riccio job took place.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Construction Industry Licensing Board enter a final order finding the Respondent, Donald F. Royal, guilty of violating Section 489.129(1)(j) and (m), Florida Statutes (1987), and imposing on him an administrative fine in the amount of $1,000. RECOMMENDED this 20th day of December, 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1988. COPIES FURNISHED: Mr. Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Donald F. Royal, pro se 8509 North 16 Street Tampa, Florida 33604 Bruce D. Lamb General Counsel Dept. of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact At all times material hereto, Respondent has been a certified general contractor in the state of Florida, having been issued license number CG C027718. At all times material hereto, Respondent has been the qualifying agent for Classic Design Builders. William R. DeFreitas describes himself as a broker of building materials for third world countries. His wife is also employed in that same business. They had their office building constructed for them. When they subsequently determined to add an addition to their residence, they solicited bids from that contractor and from two other persons. Aaron Ware, who held himself out to be an architect and the president of a company known as L. A. Designs, Inc., was one of the persons from whom the DeFreitases solicited a bid. He submitted a bid dated April 26, 1990, and a draw schedule on May 3, 1990. The extent of the work to be performed was finalized on June 6, 1990, when Mr. DeFreitas initialed the changes to the initial bid. The construction project contemplated under that contract was the addition of a family room, a laundry room, a shower off the master bath, and a small bath at the front of the house. The June 6, 1990, contract also called for replacement of the garage door and "painting of some interior doors." The total contract price was $50,000. While Ware was negotiating with the DeFreitases, he was also discussing with Respondent entering into a joint venture agreement between Classic Design Builders and L.A. Designs for the DeFreitas construction project. Their verbal agreement was memorialized in a written agreement dated June 18, 1990. Thereafter, Respondent did not advise Petitioner that he had entered into a joint venture agreement and, similarly, did not qualify the joint venture as a separate business entity for licensure purposes. Pursuant to instructions from Ware, Mr. DeFreitas directed a letter to the City of Boca Raton advising the building department that he had entered into a contract to construct an addition to his residence with "L.A. Designs/ Classic Designs." On July 2, 1990, Respondent on behalf of Classic Design Builders obtained a building permit from the City of Boca Raton for the DeFreitas addition. On July 6, Ware began work on the addition. Ware worked on the project from July of 1990 through the end of that year. During the course of that construction, the DeFreitases made many changes in the scope of the work contemplated by the original contract, which increased the contract price to above $56,000. Additional work was performed, which was not covered by the contract and which the DeFreitases agreed to pay for directly to the supplier or subcontractor. On February 4, 1991, the DeFreitases directed a letter to Ware advising him that the construction was close to completion and that it was time for them to "settle our account" as to the extras for which the DeFreitases had not paid. In that letter, the DeFreitases also offered to produce the invoices for materials and labor that they had agreed to pay to finish the job. In July of 1991 the DeFreitases complained to the City of Boca Raton. Respondent, as the holder of the building permit, was contacted and advised that the DeFreitases were alleging that their contractor had failed to complete the project. Respondent immediately went to the DeFreitases' business, met with Mr. DeFreitas, inspected the home, and prepared a punch list of items to be completed, many of which were not covered by the construction contract but were done by Respondent in an attempt to achieve customer satisfaction. Respondent completed the project, obtained the final inspections, and presented the DeFreitases with a warranty and release of lien. The DeFreitases refused to accept the warranty or release of lien. As a result of the DeFreitases' complaints, Respondent and Ware were charged with violating local ordinances. In those prosecutions, as well as in this case, the DeFreitases have attempted to obtain $11,000 from Respondent as "restitution" for moneys they have had to spend or will have to spend to complete the work envisioned by their contract with L.A. Designs, Inc. Most of the items listed as components of the claim for restitution are not even part of the construction contract. Of those few items covered by the contract, the money claimed is not. For example, the contract allocated $500 to be expended on the bathroom cabinets. The DeFreitases spent $1,670 on the cabinets and, surprisingly, are claiming that Respondent should pay them the difference because they spent more than their contractual allowance. Finally, they have claimed the cost of replacing inferior building materials provided by them, such as wood French doors. The DeFreitases paid to Ware approximately $4,000 less than they had promised to pay him as a result of the work completed by L.A. Designs. Rather than suffering a loss, the DeFreitases have actually received a windfall. At no time material hereto was either Ware or L.A. Designs licensed in the state of Florida as a contractor, architect, professional engineer, or landscape architect. Respondent knew that Ware and L.A. Designs were not licensed. At the time that Classic Design Builders and L.A. Designs entered into their written joint venture agreement and at all other times material hereto, Respondent was not an officer, director, stockholder, or employee of L.A. Designs, and Ware was not an officer, director, stockholder, or employee of Classic Design Builders. When Ware approached Respondent about entering into a joint venture for the DeFreitas project, Respondent had already suffered a minor heart attack and two mini-strokes. The joint venture agreement itself recites Respondent's need to limit his activities due to health reasons. In July of 1990 Respondent additionally tore an Achilles tendon in his left leg and was in a cast until Christmas of 1990. Due to his immobility during that time period, Respondent delegated all of his construction jobs to others, understanding that he was ultimately responsible for those projects since he was the contractor of record on them. In the same way, he delegated to Ware the day-to-day responsibility for the DeFreitas project. Other than "pulling the permit" for the DeFreitas project, Respondent's only other involvement in the job until the time that he was contacted as a result of the DeFreitases' complaints to the City of Boca Raton in July of 1991, was right after the job was commenced regarding some problem concerning the lot line. He was able to resolve that problem with the City of Boca Raton by telephone. The DeFreitases did not know that Respondent was the contractor for their construction project and ultimately responsible for that work. Although Ware had advised them that a "buddy" would somehow be involved in the construction, and although Mr. DeFreitas referred to both L.A. Design and Classic Design Builders in his letter to the City of Boca Raton authorizing a building permit to be issued, the evidence is clear that had the DeFreitases known of Respondent's responsibility, they would have been insisting that he perform services months earlier. In 1987 Respondent was charged with abandoning a construction project and/or failing to timely complete it. Respondent entered into a settlement stipulation admitting that fact and agreeing to pay a fine to the Construction Industry Licensing Board in the amount of $1,000. A Final Order Approving Settlement Stipulation was entered on June 8, 1988. Respondent received no money from the DeFreitases or from Ware for the work Respondent performed on the DeFreitas addition. Respondent's out-of-pocket expenses for labor and materials on the DeFreitas residence between July of 1991 and June of 1992 total $1,747.50.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered: Finding Respondent guilty of Counts I, II and VII of the Administrative Complaint filed against him; Finding Respondent not guilty of Counts III, IV, and V of the Administrative Complaint filed against him; Requiring Respondent to pay an administrative fine in the amount of $1,000; and Placing Respondent's license number CG C027718 on probation for a period of two years. DONE and ENTERED this 16th day of November, 1994, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 1994. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 2-10, 16-20, and 22 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 11-15, 21, and 24 have been rejected as not being supported by the weight of the evidence in this cause. Petitioner's proposed finding of fact numbered 1 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law. Petitioner's proposed finding of fact numbered 23 has been rejected as being subordinate. COPIES FURNISHED: John David Ashburn, Esquire Department of Business and Professional Regulation 3932 RCA Boulevard, Suite 3210 Palm Beach Gardens, Florida 33410 Diane Perera, Esquire Department of Business and Professional Regulation 401 N.W. 2nd Avenue, Suite N-607 Miami, Florida 33128 Peter Mineo, Jr., Esquire 8220 State Road 84 Fort Lauderdale, Florida 33324 Copies furnished, continued Richard Hickok, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Jack McRay, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Respondent is a certified general contractor holding license number CG C005645. His last known address was Raemel Construction & Engineering, Inc., 950 County Club Boulevard, Cape Coral, Florida 33904 (Prehearing Stipulation). I. Although respondent has engaged in contracting under the name of Raemel Construction & Engineering, Inc., since May 27, 1980, he did not qualify this company with the Construction Industry Licensing Board until December 4, 1980. (Prehearing Stipulation; Testimony of respondent.) This was not, however, an intentional violation of the Construction Industry Licensing Law. It wasn't until December, 1980--after consulting with his new attorney--that respondent discovered that his former attorney had not filed the necessary papers to qualify his newly renamed company with the Construction Industry Licensing Board. Upon discovering this omission, he promptly qualified the company with the Board. (Testimony of respondent.) II. In May, 1980, respondent entered an agreement with Bozidar and Rene Devic to build a commercial building to be known as Atrium Plaza on Lots 1-8, Block 359, Cape Coral, Florida. The construction price was $145,000. (R-1.) Thereafter, respondent, together with his on-site building superintendent, carried out the duties of a general contractor. He supervised the construction of the building, helped obtain the construction loan, received the construction loan proceeds, and, in turn, paid the subcontractors. He, together with Mr. Devic, selected the masonry, plumbing, roofing and electrical subcontractors. He pulled the building permit, checked with his on-site building superintendent daily, and inspected the project at least twice a week. He arranged for all building inspections. Indeed, there is no evidence that the respondent acted other than as a competent and responsible general contractor. (Testimony of respondent, Wunder, Cosser.) Herbert J. Werner, Director of the Building and Zoning Department of the City of Cape Coral, submitted a sworn statement on respondent's behalf, a statement which is singular in its praise of respondent's performance as a contractor: It has been my extreme pleasure to have known and dealt with Charles A. Wunder, Sr., during most of the above mentioned [6] years. He has always conducted himself in a most professional manner and I cannot recall a single complaint against him in all that time. Were I to have my choice of people to conduct business with, out of the 2200 contractors within our city, my first choice would be Mr. Charles A. Wunder, Sr. (R-4.)
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent receive a reprimand for violating Sections 489.129(1)(j) and 489.119(2), Florida Statutes (1981). DONE and RECOMMENDED this 21st day of March, 1983, in Tallahassee, Leon County, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 1983.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint? If so, what punitive action should be taken against him?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Respondent is a building contractor. He obtained his license (License Number CB C028158) to engage in the contracting business in the State of Florida in 1984. Respondent's license expired on August 31, 1996, without Respondent having made any effort to renew it. On September 1, 1996, the Department placed Respondent's license on "a delinquent status for non-renewal." 5/ It considers the license to be invalid for the 1996-98 licensing period. At all times material to the instant case, Respondent was the primary qualifying agent for Loma Linda Homes Corporation (Loma Linda). In late 1993 or early 1994, Loma Linda entered into a written contract (Contract) with Carmen Bennett and her daughter-in-law, Virginia Bennett, in which it agreed to construct a residence for the Bennetts at 5403 Loma Vista Loop in the Loma Vista subdivision in Davenport, Florida. The Contract had a "[t]ime is of the essence" provision. 6/ The Contract further provided that is was "conditioned upon Purchaser[s, the Bennetts] obtaining a mortgage loan commitment within sixty days from the date of this contract for a term not to exceed thirty (30) years at the prevailing market interest rate at time of closing." The Bennetts timely obtained such a commitment. Prior to the execution of the Contract, Loma Linda had received a $1,000.00 deposit from the Bennetts. At or around the time the Contract was executed, the Bennetts provided Loma Linda with an additional deposit in the amount of $9,813.00. The Contract provided that "[i]f Seller [Loma Linda] fails, neglects, or refuses to perform this Contract, the Purchasers [the Bennetts] shall receive the return of all sums paid to the Seller." Loma Linda failed to meet its obligations under the Contract. Construction of the residence that Loma Linda agreed to build for the Bennetts never commenced. All that Loma Linda did in furtherance of its contractual obligations was to clear the lot on which the home was to be built. The Bennetts have not received back any of the $10,813.00 in deposit monies that they paid Loma Linda.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board enter a final order: (1) finding Respondent guilty of the violations alleged in Counts I, III and V of the Administrative Complaint; (2) penalizing Respondent for having committed these violations by imposing on him a fine in the amount of $1,000.00 and requiring him to pay $10,813.00 in restitution to the Bennetts and to reimburse the Department for all reasonable costs, excluding attorney's fees, associated with the Department's investigation and prosecution of the charges set forth in Counts I, III and V of the Administrative Complaint; 10/ and (3) dismissing Counts II and IV of the Administrative Complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 9th day of January, 1997. STUART M. LERNER 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 9th day of January, 1997.
Findings Of Fact At all times material hereto, Respondent has been a registered general contractor and registered roofing contractor in Florida, having been issued licenses numbered RG-0025491 and RC-0046293. Respondent has been a registered general contractor in the State of Florida since 1976, and there is no evidence in the record of any prior license disciplinary action involving Respondent. The Department is the state agency with responsibility to file and prosecute administrative complaints alleging violations of Chapters 455 and 489, Florida Statutes, in accordance with Chapter 120, Florida Statutes. On or about March 15, 1988, the Respondent executed a contract and agreement with Fred and Patricia Rogerson for the construction of a residence to be located at 9800 Indian River Drive (Lot 10, Block 6), Hobe Sound, Florida. The contract amount for this job was stated to be $70,000, and the time of completion was specified to be 15 weeks from commencement on April 11, 1988. While Respondent did redraw and improve the structural adequacy of the construction plans which the Rogersons provided, the contract amount and time of completion stated in his contract with the Rogersons were never modified by change order. Based upon the expert testimony offered by John Fix, called on behalf of the Department, and Donald Corbett, called on behalf of the Respondent, the true price to construct the Rogerson's residence in 1988 would have been between $105,000 and $114,700. There is no possibility that Respondent, or any other general contractor, could have completed this residence for the $70,000 contract price. The evidence clearly establishes that he substantially underbid this job, and that underbidding a job to the extent that Respondent did in this case constitutes incompetence in contracting. It is the responsibility of the general contractor to complete a job for the contracted amount, or to obtain written change order approval from the owner, prior to performing any work which will result in an increase to that contract price. This finding is based upon the expert testimony of Fix and Corbett presented at hearing. Respondent began work on the Rogerson residence in July, 1988, and proceeded until January, 1989, when the Rogersons terminated their contract with him. At the time of that termination, Respondent had not completed work on their residence, but he testified at hearing that if the Rogersons had continued to work with him, he could have completed the job at less cost to them than they subsequently had to pay in order to obtain a certificate of occupancy in March, 1989. During the course of construction, the Respondent complained to the Rogersons that the job was costing him more than he had estimated. When they brought apparent deficiencies and problems in construction to his attention, Respondent complained of not having enough money to complete the job, and that if he had known what he was getting into with this job, he would have submitted a higher bid. Despite the fact that Respondent contracted with the Rogersons to complete their residence for $70,000 within 15 weeks from a stated commencement date of April 11, 1988, he fulfilled none of these commitments under his contract with the Rogersons. Therefore, his assertion that he could have completed this job for less than the Rogersons subsequently had to pay is not credited. The Rogersons had paid a total of $45,732.20 to Respondent at the time of his termination in January, 1989. In addition, their bank had disbursed $10,710.80 to subcontractors and suppliers for work and supplies provided for this job. Subsequent to terminating Respondent, the Rogersons have spent an additional $18,981.31 for materials and supplies to complete additional work on their residence in order to obtain a certificate of occupancy. Specifically, they have repoured the driveway, replaced insulation batting, installed drywall, finished the siding sub-barrier, applied siding, restapled roofing, finished plumbing, and installed appliances. The Rogersons have also paid $4,894 for legal fees and to satisfy liens placed against their property by suppliers who were not paid by the Respondent. Thus, the Rogersons have had to pay a total of $80,318.31, for which receipts were introduced in evidence, for work on their residence. In addition, they credibly testified that they have also spent $5,000 for supplies for which they have no receipts, and that there are an additional $8,000 to $9,000 in outstanding liens which have been placed against their property.
Recommendation Based upon the foregoing, it is recommended that the Construction Industry Licensing Board enter a Final Order imposing an administrative fine on the Respondent in the amount of $3,000 and suspending his licenses for a period of six months, or until such time sooner as the Respondent makes full and complete restitution to the Rogersons for all funds which they have expended in excess of $70,000 in order to complete this residence and to remove liens placed against this property. DONE AND ENTERED this 29th day of January, 1991 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1991. APPENDIX Rulings on the Department's Proposed Findings of Fact: 1-2. Adopted in Finding of Fact 1. 3. Adopted in Finding of Fact 2. 4. Adopted in part in Finding of Fact 2, but otherwise Rejected as irrelevant and immaterial. 5. Adopted, substantially, in Findings of Fact 2 and 5. 6-7. Adopted in Finding of Fact 5. 8-10. Adopted, substantially, in Finding of Fact 7. 11. Adopted in Finding of Fact 4. Rulings on the Respondents' Proposed Findings of Fact: (Note that the Respondent included two paragraphs numbered 5 and the rulings shown below follow in the sequence of the Respondents' Proposed Findings of Fact.) This is an introduction and not a proposed finding. Adopted in Findings of Fact 2 and 3. Adopted, in part, in Finding of Fact 7. Adopted, substantially, in Findings of Fact 2 and 5. Adopted, in part, in Findings of Fact 5 and 7. Rejected in Finding of Fact 7, and as irrelevant and immaterial. Adopted in Finding of Fact 2, but otherwise Rejected as not based upon competent substantial evidence. Adopted in Finding of Fact 3. COPIES FURNISHED: Robert B. Jurand, Esquire 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 David J. Chesnut, Esquire 215 South Federal Highway Suite 200 Stuart, FL 34994 Jack McRay, Esquire General Counsel 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Daniel O'Brien, Executive Director Construction Industry Licensing Board O. Box 2 Jacksonville, FL 32202
