The Issue Whether disciplinary action should be taken against Respondent's license to practice contracting number RC 0054458, based on the violations of Section 489.129(1)(j), (k), (h), (p) and (m), F.S., alleged in the five count Administrative Complaint.
Findings Of Fact Since July 1968 and at all times material, Respondent Ronnie Boles, was licensed as a registered roofing contractor in the State of Florida, having been issued license number RC 0054458, and was registered to do business as "Ronnie Boles Roofing Company." On January 8, 1990 Ronnie Boles, doing business as Ronnie Boles Roofing and Construction, contracted with William C. Martin to construct two pole barns at 10550 N.W. 36th Lane, Gainesville, Alachua County, Florida. The contract price was $21,000.00. There is no evidence that "Ronnie Boles Roofing and Construction" was authorized through a valid contractor to construct pole barns. Respondent's roofing contractor license also did not permit the construction of pole barns. On January 12, 1990, Ms. Jean H. Martin, wife of William C. Martin, issued a personal check to the Respondent for $10,000 as partial payment on the January 8, 1990 contract. The Respondent delivered some materials to the site for use in the construction of the aforementioned pole barns, but never began construction. Mr. Martin attempted to have the Respondent construct the pole barns for over three months without success. The value of the materials provided by the Respondent was approximately $2,000.00, Mr. Martin attempted to have the Respondent refund the $8,000.00 balance of the money Ms. Martin previously paid Respondent on the uncompleted contract. Eventually, Mr. Martin retained attorney Ron Holmes who filed a civil suit against the Respondent based on the aforementioned contract. A judgment for Mr. Martin was obtained in the amount of $9,374.36 on October 1, 1991. Mr. Holmes has attempted to collect the judgment for Mr. Martin on several occasions without success. The Respondent has been actively uncooperative. As of the date of the formal administrative hearing, Respondent had paid no portion of the aforementioned judgment. Mr. Martin filed a complaint against the Respondent with the Department of Business and Professional Regulation. Tom Bishop, Department of Business and Professional Regulation Investigator, investigated the case and mailed the Respondent a notification letter on April 20, 1992. In addition, Mr. Bishop left two messages on the Respondent's answering machine. The Respondent did not respond to the notification letter or the phone messages left by Mr. Bishop. The Department of Business and Professional Regulation has accumulated $22.40 in initial investigative costs, $267.50 in investigative costs, and $605.90 in legal costs associated with prosecution of this cause as of the date of Petitioner's Proposed Recommended Order, totalling $895.80.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Construction Industry Licensing Board enter a final order which provides as follows: Finds Respondent guilty of all violations as set out above. Requires Respondent to pay a collective fine of $5,000.00; Requires Respondent to pay restitution to Mr. Martin of $9,374.36; Requires Respondent to pay costs of investigation and legal fees in the amount of $895.80; and Suspends Respondent's license for three years, thereafter renewal of his license to be subject to proof of Respondent's compliance with requirements (2) - (4) inclusive. RECOMMENDED this 1st day of February, 1994, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1497 The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: 1 Rejected as unnecessary. 2-9 Accepted as modified to remove rhetoric and cumulative material. Respondent's PFOF: None Filed. COPIES FURNISHED: G. W. Harrell, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ron Boles Route 2 Box 417 Alachua, Florida 32615 Richard Hickok, Executive Director Construction Industry Licensing 7960 Arlington Expressway Jacksonville, Florida 32211-7467 Jack McRay, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether Respondent violated Section 489.129(1), Florida Statutes (1997) (hereinafter, "Florida Statutes"), by committing mismanagement or misconduct in the practice of contracting, causing financial harm to a customer, abandoning a construction project, and failing to satisfy a judgment against him.
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of contracting. Respondent is licensed as a contractor pursuant to license number CB C019811. At all relevant times, Respondent was the qualifying agent for Gulf and Bay Sunrooms, Inc. ("Gulf"). As the qualifying agent, Respondent was responsible for all of Gulf's contracting activities in accordance with Section 489.1195, Florida Statutes. On August 23, 1995, Respondent and Gulf entered into a contract with Mr. H. Edward Dowling ("Dowling") to install a Four Seasons System 330 Sunroom in Dowling's residence at 3016 West 38th Street, Orlando, Florida. The contract price was $31,340. Dowling paid the first draw of $9,402 to Respondent and Gulf by check number 45016644. On October 27, 1995, Gulf deposited the check to its account. Respondent and Gulf never commenced work on the sunroom. Respondent and Gulf did not return the first draw to Dowling. Respondent and Gulf abandoned the project without just cause and without notice to Dowling. On June 19, 1997, the County Court of the Ninth Judicial Circuit entered a Default Final Judgment in Case No. CO97-3800. The default judgment was entered in the amount of $9,402 plus costs of $145. Neither Respondent nor Gulf have satisfied the judgment. Respondent has a discipline history in two other cases. In Petitioner's Case No. 96-7123, Respondent failed to pay a supplier for windows. In DOAH Case No. 96-5914, Respondent contracted to build a sunroom in a residence, accepted payment of $1,540.44 toward the contract price of $4,668.00, never commenced construction, and abandoned the project. In the first case, Respondent was found guilty of failing to satisfy a civil judgment, was fined, and was ordered to pay restitution. In the second case, Respondent was found guilty of abandonment, incompetency or misconduct, was fined, and was ordered to pay restitution, and his license was suspended until Respondent complied with the penalty imposed.
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 Section 489.129(1), Florida Statutes, imposing administrative fines in the aggregate amount of $15,000.00, and revoking Respondent's license. DONE AND ENTERED this 10th day of August, 1998, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 1998. COPIES FURNISHED: Rodney Hurst, Executive Director Department of Business and Professional Regulation Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Paul F. Kirsch, Senior Attorney Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 William Leete Stone, IV, pro se 3386 Poinsettia Avenue Naples, Florida 34104
The Issue Whether Respondent committed the violations alleged in the Amended Administrative Complaint issued against him and, if so, what disciplinary action should be taken.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement and clarify the facts to which the parties stipulated at the outset of the final hearing (Parties' Stipulations)2: The contract referenced in the Parties' Stipulations (Building Contract) was signed by Mr. Stasinos (on behalf of ICC) and Mr. Skiera (on behalf of himself and his wife) on June 29, 2000. The home that ICC agreed to build for the Skieras (Skiera Residence) was described in the Building Contract as a "[c]ustom two-story residence with detached garage and riding cor[r]al for a total of 5,370 square feet." It was to be constructed on a tract of land owned by the Skieras in Boynton, Beach, Florida. The Building Contract provided for the following allowances: $20,000.00 for "electrical"; $17,000.00 for "plumbing"; $15,000 for "HVAC"; a "door hardware allowance" of "$50.00 per [interior] door"; $6,000.00 for a "stacked stone veneer" exterior; an "entry door hardware allowance" of "$100.00 per door"; $15,000.00 for "kitchen cabinetry and vanity"; $8,000.00 for "counter tops and vanity tops"; $9,000.00 for "landscaping," including "trees, shrubs, sod, automatic time clock, [and an] operated irrigation system with rain sensor"; and $7,000 for "driveways, walkways, [and] flatwork." There was no written statement in the Building Contract explaining a consumer's rights under the Construction Industries Recovery Fund, as then required by Section 489.1425, Florida Statutes. The Building Contract contained a "[p]ayment [d]raw [s]chedule," which provided as follows: Upon execution of contract: 10%- $36,608.00 Thereafter, progress payments based on schedule of values. This "schedule of values" (referred to in the "[p]ayment [d]raw [s]chedule") contained the following "scheduled values" (excluding change orders): 1. Permits $21,600.00 2. Clearing/Grading/Fill $10,800.00 3. Foot'gs. Undgr Plumb, Soil Treatmt $23,000.00 4. Foundation/Slab poured $32,760.00 5. Exterior Walls/Tie Beam $26,600.00 6. Roof Trusses $26,600.00 7. Roof Sheathing/Felt $19,400.00 8. Interior Framing Complete $14,000.00 9. Windows/Exterior Door Frames Set $14,400.00 10. 2nd Plumbing/Tub Set $7,200.00 11. Wiring Rough-In $14,400.00 12. HVAC Ducts Installed $7,200.00 13. Roof Shingles/Tiles Installed $14,400.00 14. Insulation (wall & ceiling) $4,200.00 15. Exterior Trim/Soffits $11,800.00 16. Drywall Hung $14,400.00 17. Drywall Finish $10,800.00 18. Interior Trim/Interior Doors Installed $13,400.00 19. Interior Paint $8,800.00 20. Siding/Stucco $14,400.00 21. Exterior Paint Complete $8,800.00 22. Exterior Doors & Garage Door Install $6,200.00 23. Cabinets/Countertops Installed $10,000.00 24. Plumbing Finish $3,600.00 25. Electrical Finish $5,600.00 26. HVAC-Compressor/A.H. Installed $10,920.00 27. Driveway/Walks Installed $3,600.00 28. Landscaping/Irrigation $7,200.00 There were six separate change orders. They were dated August 20, 2000 (Change Order No. 001), August 29, 2000 (Change Order No. 002), September 26, 2000 (Change Order No. 003), October 15, 2000 (Change Order No. 004), October 15, 2000 (Change Order No. 005), and November 10, 2000 (Change Order No. 006). As of December 21, 2000, ICC had been paid in full for all six change orders, as well as for items 1 through 8 on the "schedule of values." As of February 27, 2001, ICC had received additional monies from the Skieras: payment in full for items 9 through 12 and 15 on the "schedule of values" and partial (50 percent) payment for items 13 and 20 on the "schedule of values." As of April 10, 2001, ICC had been paid a total of $287,966.20 (all from the proceeds of a mortgage loan the Skieras had obtained from Admiralty Bank) for work done on the Skiera Residence. On May 1, 2001, the Skieras paid ICC an additional $16,800.00 for drywall work, bringing the total amount of payments that ICC had received from (or on behalf of) the Skieras, as of that date, to $304,766.20. The Skieras made no further payments to ICC. The "eight valid claims of lien" referenced in the Parties' Stipulations were filed by eight different subcontractors, all of whom had been hired by ICC to work on the Skiera Residence: Boca Concrete Pumping, Inc.; Gulf Stream Lumber Company; L & W Supply Corp., d/b/a Seacoast Supply; Waste Management of Palm Beach; B.T. Glass & Mirror, Inc.; Boca Raton Decorating Center Company; American Stairs; and Broten Garage Door Sales Inc.3 Boca Concrete Pumping was the "very first" subcontractor to work on the construction of the Skiera Residence. It did the "slab work, the foundation" (referenced in item 4 of "schedule of values"). Its lien was recorded on December 6, 2000. The lien was in the amount of $1,001.25, and it indicated, on its face, that it was for unpaid "concrete pumping" that had been furnished between September 8, 2000, and September 22, 2000. A satisfaction of this lien, dated March 8, 2001, was filed March 24, 2001. Gulf Stream Lumber's original lien was recorded February 15, 2001. It was in the amount of $67,872.59, and it indicated, on its face, that it was for unpaid "building material" that had been furnished between August 15, 2000, and January 24, 2001. An amended claim of lien was recorded May 3, 2001, in the amount of $36,530.59 for unpaid "building material" that, according to the lien, had been furnished between August 25, 2000, and March 27, 2001. A satisfaction of the original lien and amended claim of lien, dated November 30, 2001, was filed December 5, 2001. The liens were satisfied, pursuant to the terms of a Settlement Stipulation, upon the Skieras' payment of $39,579.28 to Gulf Stream Lumber. L & W Supply's lien was recorded April 30, 2001. It was in the amount of $4,536.98, and it indicated, on its face, that it was for unpaid "building materials [and] related items" that had been furnished between December 16, 2000, and January 30, 2001. A satisfaction of this lien, dated October 11, 2001, was filed November 7, 2001. The lien was satisfied by the payment of $10.00 "and other good and valuable consideration" (which was the payment of an additional $2,850.00 by check dated October 11, 2001). Waste Management of Palm Beach's lien was recorded May 31, 2001. It was in the amount of $1,665.89, and it indicated, on its face, that it was for unpaid "[w]aste [r]emoval [s]ervices" that had been furnished between August 30, 2000, and April 5, 2001. A satisfaction of this lien, dated October 19, 2001, was filed November 13, 2001. B.T. Glass & Mirror's lien was recorded June 29, 2001. It was in the amount of $3,560.00, and it indicated, on its face, that it was for an unpaid "glass/mirror package" that had been furnished between May 3, 2001, and May 31, 2001. A satisfaction of this lien, dated October 19, 2001, was filed November 13, 2001. The lien was satisfied by the payment of $1,600.00 (by check dated November 10, 2001), plus an agreement to provide "$2,000.00 in gazebo or arbor products from the Hitching Post," the Skieras' family business. Boca Raton Decorating Center's lien was recorded May 19, 2001. It was in the amount of $1,218.79, and it indicated, on its face, that it was for unpaid "paint, sealers [and] sundries" that had been furnished between May 1, 2001, to May 2, 2001. A satisfaction of this lien, dated October 11, 2001, was filed November 7, 2001. American Stairs' lien was recorded August 16, 2001. It was in the amount of $4,188.00, and it indicated, on its face, that it was for unpaid "[s]tairs and [r]ailings" that had been furnished between June 8, 2001, and June 15, 2001. A satisfaction of this lien was executed on October 15, 2001. Broten Garage Door Sales' lien was recorded September 5, 2001. It was in the amount of $3,214.00, and it indicated, on its face, that it was for the unpaid "sale and installation of garage doors and openers," which took place between June 25, 2001, and July 17, 2001. A satisfaction of this lien, dated January 31, 2002, was filed on February 5, 2002. At a meeting "in the early part of August [2001]" attended by Respondent, Mr. Stasinos, the Skieras, and the president of the bank from which the Skieras had borrowed the money to pay for the construction of their residence, Respondent announced that, on behalf of ICC, "he was filing [for] bankruptcy."4 ICC stopped working on the Skiera Residence after this meeting. At the time, the Skiera Residence was approximately 70 to 80 percent completed (and the Skieras had paid ICC a total of $304,766.20, or approximately 80 percent of the total contract price (including change orders) of $378,286.205). In addition to paying $57,316.62 to satisfy the "eight valid claims of lien" referenced in the Parties' Stipulations, the Skieras paid approximately an additional $57,000.00 to other subcontractors who provided goods and/or services "needed to complete the house." The $10,000.00 check referred to in the Parties' Stipulation 14 (that the Skieras received from Andover Construction, Inc.) did not "represent any kind of final settlement" between the Skieras and ICC. The October 4, 2001, Certificate of Occupancy for the Skiera Residence referred to in the Parties' Stipulations indicated, on its face, that ICC was the contractor, notwithstanding that ICC had abandoned the project "in the early part of August [2001]." Respondent has been a Florida-licensed general contractor since July 29, 1987. In his capacity as ICC's licensed qualifier, he has previously (by Final Order filed in DBPR Case Nos. 2001-03283 and 2001-03284 on December 23, 2003) been found guilty of, and disciplined for, violating (in connection with two residential construction projects undertaken by ICC for A. Richard Nernberg) the same subsections of Section 489.129(1), Florida Statutes (Subsections (1)(g), (i), and (m)) that he is accused of violating in the instant case. In these prior disciplinary proceedings, Respondent's license was suspended for two years, and he was fined $6,000.00 and required to pay $958.30 in investigative costs. Administrative complaints were also filed against Respondent in DBPR Case Nos. 94-15958 and 97-17352. Both of these cases were resolved by settlement stipulations in which Respondent "neither admit[ted] [nor] denie[d] the allegations of fact contained in the [a]dministrative [c]omplaint[s]."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board issue a Final Order: finding Respondent guilty of violating Section 489.1425(1), Florida Statutes, as alleged in Count I of the Amended Administrative Complaint, and fining him $1,000.00 for this violation; (2) finding Respondent guilty of the violation of Section 489.129(1)(g)1., Florida Statutes, relating to Boca Concrete Pumping's December 6, 2000, $1,001.25 lien, alleged in Count II of the Amended Administrative Complaint, and taking the following disciplinary action against him for this violation: suspending his license for four years (with such suspension to run consecutively with his current suspension); (b) fining him $5,000.00; (c) requiring him to pay restitution in the amount of $1,001.25 to the Skieras; and (c) ordering him to reimburse the Department for all reasonable investigative and prosecutorial costs (excluding costs related to attorney time) incurred by the Department; and (3) dismissing all other charges in the Amended Administrative Complaint. DONE AND ENTERED this 8th day of May, 2007, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 2007.
The Issue The issues are whether Respondent committed the several violations of Sections 489.129(1)(h)2.,(h)3.,(j),(k), and (n), Florida Statutes (1997), for the reasons stated in the respective Administrative Complaints and, if so, what, if any, penalties should be imposed. (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of contracting. Respondent is licensed as a certified general contractor pursuant to license number CG C059414. At all relevant times, Respondent was the qualifying agent for Fred T. Garrett Construction, Inc. ("FTG"). As the qualifying agent, Respondent was responsible for all of FTG's contracting activities in accordance with Section 489.1195, Florida Statutes. Respondent failed to obtain a certificate of authority for Fred T. Garrett Construction, Inc., as required by Section 489.119(2), Florida Statutes. The St. Cyr Case On or about August 21, 1998, Respondent entered into a contract with Louis L. St. Cyr to construct an addition to the residence located at 201 South Bel Air Drive, Plantation, Florida. The contract price was $50,000. Although Mr. St. Cyr paid $2,500 to Respondent, Respondent failed to commence work and canceled the project, thereby abandoning it without just cause and without proper notification to Mr. St. Cyr. The contract did not permit Respondent to keep the $2,500 paid by Mr. St. Cyr, and Respondent failed to refund the payment within 30 days after abandonment. Out of the $2,500 he received from Mr. St. Cyr, however, Respondent paid $1,600.00 to the architect before abandoning the project. Thus, the net amount that Respondent owes to Mr. St. Cyr is $900. Petitioner incurred a total of $1,092.28 in investigative costs relating to the St. Cyr case. The Forney Case On May 22, 1998, Respondent, who was doing business as FTG, entered into a contract with Mr. Warren Forney for the construction of a two-bedroom, one-bath addition to the residence located at 1698 Northeast 33rd Street, Oakland Park, Florida. The contract price was $32,500. The contract with Mr. Forney did not contain a written statement explaining the customer’s rights under the Construction Industries Recovery Fund, as required by Section 489.1425(1), Florida Statutes. On July 7, 1998, Respondent obtained permit number 98-050297 from the Oakland Park Building Department. Construction commenced on or about July 7, 1998, and continued sporadically until October 29, 1998, when Mr. Forney dismissed Respondent for failure to timely complete the project. The Oakland Park Building Department issued notices of violation against the project on August 3, September 11, and October 14, 1998, for various building code violations. Mr. Forney was forced to obtain a homeowner’s permit and subsequently hired a subcontractor to complete the work. Mr. Forney paid Respondent approximately $29,250 before relieving Respondent of his duties. To complete the project, Mr. Forney paid a total of $48,746.52, which was $15,396.52 over and above the original contract price. Petitioner incurred a total of $2,190.78 in investigative costs relating to the Forney case. The Kong Case In or around January 1998, a contractor named Lakeview Concepts hired Respondent to perform demolition work for the Kong dry cleaning store project on the property located at 5171 South University Drive, Davie, Florida. On or about June 17, 1998, permit 98-00002349 was issued to Respondent to perform alterations on commercial property located at 5171 South University Drive, Davie, Florida. Respondent, however, did not yet have a contract with the owner for this work. The next month, on or about July 30, 1998, Respondent, who was doing business as FTG, entered into a contract with Shek Kong to complete the dry cleaning store project at 5171 South University Drive, Davie, Florida, for the contract price of $22,300. Shek Kong made payments to Respondent totaling $16,000. Respondent’s work was of poor quality, however, and on or about November 6, 1998, he ceased work, though the project had not been completed. On or about November 14, 1998, Douglas Frankow, license number CB C052960, gave Mr. Kong an estimate of $20,562 to complete the project. Thereafter, on or about June 30, 1999, Mr. Kong contracted with George Settergren, another licensed contractor, to complete the project for a contract price of $27,956. On December 9, 1999, in Case No. 98-020065 08, the Circuit Court, Seventeenth Judicial Circuit, Broward County, Florida, rendered a Final Judgment against Respondent and in favor of Mr. Kong. This judgment awarded Mr. Kong the total amount of $28,693.30, plus 10 percent interest per annum. Petitioner incurred a total of $2,502.78 in investigative costs relating to the Kong case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Construction Industry Licensing Board enter a Final Order finding Respondent guilty of violating Sections 489.129(1)(h)2., (h)3., (j), (k), and (n), Florida Statutes, imposing administrative fines in the aggregate amount of $3,700, assessing investigative costs in the aggregate amount of $5,785.84, placing Respondent's license on probation for a period of four years from the date the Final Order is entered by the Board, and awarding payment of restitution to each customer as follows: (1) to Warren Forney, the amount of $15,396.52; (2) to Shek Kong, satisfaction of the unpaid civil judgment in the amount $28,693.30, plus 10 percent interest accrued thereon; and (3) to Louis L. St. Cyr, the amount of $900. DONE AND ENTERED this 15th day of February, 2002, in Tallahassee, Leon County, Florida. _________________________________ JOHN G. VAN LANINGHAM 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 15th day of February, 2002.
The Issue Whether disciplinary action should be taken against Respondent's license to practice contracting, license number CC C057275, based on the violations of Section 489.129(1), Florida Statutes, as charged in the Administrative Complaint filed against Respondent in this proceeding.
Findings Of Fact At all times material, Respondent was a certified contractor, having been issued license number CC C057275 by the Florida Construction Industry Licensing Board. At all times material, Respondent was registered or certified with the Construction Licensing Industry Board doing business as Comtec Coatings Company (Comtec). At no time material hereto did Respondent apply for or obtain a certificate of authority for Comtec. Respondent has previously been disciplined for violations of Chapter 489, Florida Statutes, in Department of Business and Professional Regulation Case Number 2001-03759, including the failure to honor a warranty. On or about March 29, 1996, Respondent, doing business as Comtec Coatings Company, contracted with Kopp to re-roof her home located at 1010 Terry Drive, Melbourne, Florida, for the contract price of $8,600. Respondent's contract contained a five year warranty. Respondent was paid-in-full on or about April 6, 1996. Shortly after Respondent performed the roofing work, the roof experienced significant problems including excessive leakage and material deterioration. Eventually, the roof lost its ability to repel water and large portions rotted. Immediately, Respondent was advised of the problems yet failed to repair them. Kopp, along with her concerned friends and neighbors, expended hundreds of labor hours and at least $896.61 above the original contract price to mitigate the damage to her roof and home as a result of Respondent's workmanship. An independent roofing contractor estimated that it would cost $3,000 to temporarily repair the leaks and approximately $33,000 to replace it and completely correct the problem. As of the date of the administrative hearing, the roof has not been repaired, remains in poor condition and continues to leak. Kopp is legitimately concerned that her home may be condemned. The total investigative costs of this case to the Department of Business and Professional Regulation, excluding costs associated with counsel's time, are $399.30.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a Final Order as follows: Finding Respondent guilty of having violated Section 489.129(1)(i), Florida Statutes, for failing to file for a certificate of authority as required by Section 489.119(2), Florida Statutes, as alleged in Count I of the Administrative Complaint, and imposing an administrative fine in the amount of $1,000. Finding Respondent guilty of having violated Section 489.129(1)(m), Florida Statutes, for incompetency and misconduct as alleged in Count II of the Administrative Complaint, and imposing an administrative fine in the amount of $2,000, revoking all licensure under the auspices of the Florida Construction Industry Licensing Board. Finding Respondent guilty of having violated Section 489.129(1)(g)(3), Florida Statutes, for having Kopp pay significantly more than the roofing repair contract price, and imposing an administrative fine in the amount of $5,000, revoking all licensure under the auspices of the Florida Construction Industry Licensing Board, and ordering Respondent to pay financial restitution to consumer Judith Kopp in the amount of $33,896.61 for consumer harm suffered. Assessing costs of investigation and prosecution in the amount of $399.30, which excludes costs associated with any attorney's time. DONE AND ENTERED this 31st day of December, 2002, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER 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 31st day of December, 2002. COPIES FURNISHED: Brian A. Higgins, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Larry S. Olson 3451 Riva Ridge Place Fort Collins, Colorado 80526 Robert Crabill, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact At all times material to these proceedings, the Respondent, ROBERT MENSCHING, was a certified residential building contractor in Florida, and held license number CR C020166. Mr. Mensching was the owner and qualifying agent for Robert Mensching Homes. On or about July 10, 1986, a written proposal was submitted by the Respondent to Mr. and Mrs. Mangiardi for the construction of a single family dwelling in Cape Coral, Florida. The construction price was $60,000.00, with an additional $500.00 for the purchase of the house plans. Mr. and Mrs. Mangiardi paid for the plans on the date of the proposal. Revisions to the proposal were submitted to the Mangiardis in September, 1986. The purchase price and the payment schedule remained the same. The proposal was accepted by the Mangiardis, and the down payment of $5,000.00 required by the contract to start construction, was given to the Respondent. Construction commenced in November 1986. By March 26, 1987, the Respondent had been paid $53,750.00 of the total construction contract price. This included the fourth draw on a five draw payment schedule. Only $6,250.00 remained to be paid by the purchasers for the last phase of construction. In April 1987, the Respondent informed Mr. Mangiardi that he would not complete the final phase of construction. The Respondent informed Mr. Mangiardi that he would pay him $5,000.00. An accounting was not given to the purchasers of the monies disbursed by the Respondent pursuant to the construction schedule. After the Respondent left the project, the Mangiardis were given notice of an outstanding lien in the amount of $963.80, which was owed to Kirkland Electric, Inc. Another Notice to Owner was filed by Wallcrafters, another subcontractor, for $5,272.50. The work completed by both subcontractors was performed during the Respondent's term as the prime contractor on the project. These two subcontractors were never paid by the Respondent out of the draws received by him for that purpose. The Respondent did not pay the $5,000.00 he told Mr. Mangiardi he would pay in April of 1987. The evidence is unclear as to whether this amount of money was a payment of liquidated damages for the breach, the balance of funds entrusted to the contractor which had not been disbursed in the preceding construction phases, or the amount of unpaid liens known to the contractor at the time of breach. The Respondent filed for bankruptcy after a judgment was entered against him in a civil action by the Mangiardis for breach of contract. A Notice of Aggravation was not submitted during the formal hearing regarding the actual damage to the licensee's customers as a circumstance to be considered in aggravation of the penalty to be assessed. A copy of the Florida Construction Industry Licensing Board's previous letter of reprimand was not presented at hearing so that the hearing officer and the Board could use the prior violation for aggravation purposes.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are made: At all times material to this proceeding, Respondent Joseph W. Miklavic was licensed as a certified building contractor in the state of Florida, holding license number CB C006615, qualifying Security Home d/b/a Security Homes of Clearwater (Security). Since March, 1989 the Respondent's license has been on active status qualifying, Individual. At all times material to this proceeding, Respondent was a salaried employee of Security. Ronald MacLaren was president of Security and also sole owner and president of Yankee Construction Inc. d/b/a Olympic Homes of Citrus County (Olympic). In accordance with a management agreement between Security and Olympic, the Respondent was assigned by Ronald MacLaren to oversee the operation of Olympic. Olympic was licensed to engage in construction having been qualified by Wilmon Ray Stevenson through license number RB A035005 which was in effect from June, 1987 until October, 1988 when Stevenson filed a change of status application with the Construction Industry Licensing Board (Board) requesting license number RB A035005 be changed to inactive status qualifying, Individual. While this application was not acted upon until February, 1989, the Board considered license number RB A035005 in effect as qualifying Olympic only until October, 1988. Effective September 26, 1988, the name of Yankee Construction, Inc. was changed to Rivercoast Homes, Inc. (Rivercoast) which apparently ceased doing business under the fictitious name of Olympic Homes of Citrus County. On September 19, 1988 Wilmon Ray Stevenson advised the Citrus County Building Department that he was no longer the "qualifier for Olympic Homes". Around this same time, the Respondent, Ronald MacLaren and the management of Olympic became aware that Stevenson would no longer be the qualifying agent for Olympic. There was no evidence that Rivercoast Homes, Inc. a/k/a Yankee Construction Inc. ever advised the Board of the name change or the termination of Stevenson as its only qualifying agent affiliation in accordance with Section 489.119(2)(3), Florida Statutes. Nor was there any evidence that Rivercoast was ever qualified by another qualifying agent pursuant to Section 489.119, Florida Statutes. In accordance with the agreement between Security and Olympic, referred to in Finding of Fact 4, the Respondent continued to oversee the Rivercoast operations until sometime around December 1988 when all of MacLaren's operations in Florida, including Security, closed down. Under Security's agreement with both Olympic and Rivercoast, Respondent's duties included working with management and subcontractors to develop construction schedules and to advise Ron MacLaren of the financial aspect of the company so that MacLaren could make funds available to pay subcontractors, etc. Respondent did not have any control over the finances of either Olympic or Rivercoast such as receiving, depositing or disbursing funds. Either in late September or early October of 1988, Respondent approached Larry Vitt, Citrus County Building Department, as to whether the Respondent could pull permits under his license for Olympic or Rivercoast. Vitt advised Respondent that unless he qualified the company he could not pull permits for that company under his license. Respondent advised MacLaren that Rivercoast would have to have a qualifying contractor in order to engage in contracting. MacLaren did not get Rivercoast qualified to engage in contracting at anytime. Respondent did not qualify Rivercoast under his contractor's license at anytime. Sometime around the last of September or the first part of October of 1988, Respondent became aware that Rivercoast a/k/a Yankee Construction, Inc. was no longer qualified under Section 489.119, Florida Statutes, and therefore, not authorized under law to engage in contracting. On August 16, 1988 Ernest and Marjorie Ellison met with Ken Smith and Gloria Stevenson of Olympic to discuss Olympic building the Ellisons a home. The Ellisons picked out a floor plan at this time and gave Olympic a $100.00 deposit to hold the price until a contract could be executed. On October 1, 1988 the Ellisons met again with Ken Smith and was introduced to the Respondent who gave them a brief run down on the status of the company and advised them that the company was in "good shape". At this meeting, Ken Smith advised the Ellisons of certain things that were required of them before construction began, including a survey. On October 31, 1988 the Ellisons signed a contract with Rivercoast to construct their home. In his capacity as a representative of Security, under the agreement between Security and Rivercoast, the Respondent signed this contract on the line designated Contractor/Representative. There is insufficient evidence to show that Respondent intended to sign the contract as contractor of record as the term contractor is defined in Section 489.105(3), Florida Statutes (Supp. 1988), and thereby impose upon himself the responsibility for the entire project. The contract price was $44,634.00. On November 1, 1977 the Ellisons delivered to Rivercoast a check for $4,363.40 which along with the $100.00 deposit paid in August represented a total down payment of $4,463.40. Respondent did not personally receive any funds from the Ellisons for Rivercoast or receive any funds for himself from the Ellisons under this contract. No permit was ever pulled or any work performed by Rivercoast under the aforementioned contract. Ernest Ellison met with Respondent on November 21, 1988 and requested that the contract be cancelled. Under the authority granted Respondent through the agreement between Security and Rivercoast, the Respondent and Ernest Ellison signed the contract as being cancelled on November 21, 1988. Although the Ellisons were offered an opportunity by the Respondent to transfer their deposit of $4,463.40 to Security and enter into a contract with Security to build their house, they declined and contracted with another contractor. On the date the contract was cancelled, Respondent advised Ernest Ellison that the down payment of $4,463.40 would be reimbursed. Although Respondent attempted to obtain a refund for the Ellisons from MacLaren and was advised by MacLaren that a refund was forthcoming, no refund of the Ellison's down payment was ever made by Rivercoast, Ronald MacLaren, the Respondent or anyone else. Respondent was aware during the negotiation and at the time the Ellison's contract was executed, that Rivercoast was not authorized by law to engage in contracting. However, there is insufficient evidence to show that Respondent ever advised the Ellisons that he would be the contractor responsible for building their home under the contract with Rivercoast or that he would be the contractor to pull the necessary permits for construction of their home. There is no evidence that Respondent had any financial interest or owned any stock or held any office in Rivercoast a/k/a Yankee Construction, Inc. Around October 1, 1988, after Stevenson had withdrawn as qualifying agent for Olympic, Rivercoast was no longer authorized to engage in the practice of contracting since it had not been qualified by another qualifying agent in accordance with Section 489.119, Florida Statutes.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the demeanor of the witnesses and the disciplinary guidelines set out in Chapter 21E- 17, Florida Administrative Code, it is RECOMMENDED: That the Board enter a final order finding Respondent guilty of violating Section 489.129(1)(e), Florida Statutes, and for such violation it is recommended that the Board assess the Respondent with an administrative fine of $1,000.00. It is further recommended that Counts I, II, IV and V be dismissed DONE and ORDERED this 27th day of November, 1990, in Tallahassee, Florida. WILLIAM R. CAVE 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 27th day of November, 1990. APPENDIX CASE NO. 90-2046 The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Rulings of Proposed Findings of Fact Submitted by the Petitioner Not necessary. Adopted in Finding of Fact 1. Adopted in Finding of Fact 7 but modified. Adopted in Findings of Fact 4, 8, and 10. Adopted in Findings of Fact 9 and 14 but modified. Adopted in Finding of Fact 15. Adopted in Findings of Fact 16 and 17 but modified. Adopted in Findings of Fact 17 and 18. Rulings of Proposed Findings of Fact Submitted by Respondent 1. - 2. Not material or relevant. Adopted in Findings of Fact 1, 7 and 20. Adopted in Finding of Fact 4. Adopted in Findings of Fact 4 and 8. Not material or relevant. Adopted in Finding of Fact 19. - 10. Adopted in Finding of Fact 15. Restatement of testimony not a Finding of Fact but see Finding of Fact 13. Adopted in Finding of Fact 15. Not material or relevant. Adopted in Finding of Fact 15. - 16. Not material or relevant. Restatement of testimony not a Finding of Fact but see Findings of Fact 13, 14 and 15. Adopted in Finding of Fact 19 but modified. Not material or relevant. Adopted in Finding of Fact 4. Restatement of testimony not a Finding of Fact but see Finding of Fact 4. Adopted in Finding of Fact 9. Adopted in Finding of Fact 4 but modified to show license effective until October, 1988 rather than February, 1989. Restatement of testimony not a Finding of Fact but see Findings of Fact 1, 7 and 20. - 26. Not material or relevant. Adopted in Finding of Fact 4 but modified to show from June, 1987 until October, 1988. - 29. Adopted in Findings of Fact 5 and 13. Restatement of testimony not a Finding of Fact but see Finding of Fact 4. - 32. Adopted in Findings of Fact 4, 8 and 9 but modified. Not material or relevant. - 36. Adopted in Findings of Fact 4, 8, and 9 but modified. Adopted in Finding of Fact 10. Not material or relevant. - 40. Adopted in Findings of Fact 8, and 17, respectively. Rejected as there is no substantial competent evidence in the record to show any other contract than the one Respondent signed on October 31, 1988. Not material or relevant. Not supported by substantial competent evidence in the record. Not material or relevant. Adopted in Finding of Fact 18. Restatement of testimony not a Finding of Fact but see Finding of Fact 9. - 50. Not necessary to the conclusion reached since this matter was covered in the Preliminary Statement wherein the motion was denied. COPIES FURNISHED: G. W. Harrell, Senior Attorney Department of Professional Regulation 1940 N. Monroe Street, Suite 60 Tallahassee, FL 32399-0750 Geoffrey Vining, P.A. 2212 South Florida Avenue Suite 300 Lakeland, FL 33803 Daniel O'Brien, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 Kenneth D. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue Whether Respondent aided and abetted an unlicensed contractor to engage in contracting by pulling permits for the unlicensed contractor; whether Respondent failed to qualify a firm for whom he was acting as licensed contractor; whether Respondent acted in the capacity of a contractor other than in his own name; and, whether Respondent violated local building codes as alleged in Second Amended Administrative Complaint filed 6-30-89, and Administrative Complaint filed 7-26-89.
Findings Of Fact At all times relevant hereto, Fred S. Petersen was licensed as a general contractor by the Florida Construction Industry Licensing Board (FCILB) and issued License Nos. CG C023928 and CB CA23929 (Exhibit 1). Neither American Weatherall Industries Inc. (AWI), Mel C. Wyatt, nor Steven C. Wyatt were licensed as contractors by the FCILB (Exhibit 2). Prior to mid-August 1987, Kirk Evenstad was the qualifying general contractor for AWI. By letter dated August 20, 1987, AWI proclaimed Kirk Evenstad to be no longer working for AWI because of mismanagement (Exhibit 3). Mel Wyatt, President of AWI, testified that Everstad had stolen between $30,000 and $50,000 of materials from AWI, leaving AWI in a precarious financial situation. In order to continue in business to work out of the financial hole created by Everstad, AWI, through one of its employees, Danny O'Brien, introduced Mel Wyatt to Respondent. Respondent had known O'Brien for some 20 years and, for the proposed reason of helping O'Brien, Respondent agreed to act as qualifying contractor for AWI. To carry out this project, Respondent entered into a contract (Exhibit 4) or Employment Agreement dated July 31, 1987, in which Respondent agreed to supervise construction of projects contracted for by AWI, but the latter was to provide all material and handle all financial aspects of the contracts. Respondent received $1000 for signing this agreement and was to receive a percentage of the gross proceeds of future contracts entered into by AWI. Respondent authorized O'Brien to pull permits for AWI pursuant to Respondent's contractor's license. Although Respondent testified he gave O'Brien authorization for each specific permit pulled and did not believe he signed Exhibit 11, dated August 11, 1987, a copy of General Authorization for O'Brien to pull permits for AWI under Respondent's license, it is found as a fact that Respondent signed the original of Exhibit 11 which is a copy. Within a short period of time after executing Exhibit 4, Respondent became aware of the financial difficulties facing AWI and ceased his efforts to qualify AWI. In the latter part of 1987 (believed to be November-December), AWI reached the point that it could no longer remain solvent and filed for bankruptcy leaving several contracts unfinished for which AWI had received partial payment. Of the four contracts entered into between AWI and homeowners for additions to their houses (Exhibits 7-9 and 14), all were entered into under a printed document showing Everstad's license number; however, the building permits for Exhibits 7-9 were pulled under Respondent's license. By agreement dated August 10, 1987 (Exhibit 7), Alfred and Marjory Hauk contracted with AWI to convert a garage at their home into an office. Hauk made payments of $1000 and $2300 to AWI, the permit for the work was pulled by O'Brien under Respondent's license, but no work was ever done under this contract. AMI subsequently went out of business, and Hauk received no refund of the monies he had paid to AMI. Hauk never met Respondent. On June 12, 1987, John Davis contracted with AWI to convert an existing garage to bedroom and bath and add a garage to his home. The initial permit for this work was pulled by Kenn Covicc as contractor on June 21, 1987, and a subsequent permit was pulled by O'Brien using Respondent's license. Although Davis paid over $6000 to AWI for this work, the work stopped after the footing for the garage addition was poured. On June 2, 1987, Albert Charette entered into a contract with AWI to add a room to his house. Charette paid some $9300 of the $34,400 contract amount during the progress of the work. Differences arose between Charette and AWI involving whether the construction was being done in accordance with the plans and specifications. In September, 1987, Respondent met with Charette and submitted a proposal (Exhibit 15) to Charette to complete the project in accordance with the plans and specifications. About one week after Exhibit 15 was signed, all work stopped on the project, and Respondent never received compensation or commenced work on this contract, which he had entered into in his own name and not as a representative of AWI.
Recommendation It is recommended that Fred S. Petersen be found guilty of violating Sections 489.129(1)(e), (f) and (g), Florida Statutes, and assessed a monetary fine of $3000. ENTERED this 11th day of June, 1990, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 1990. APPENDIX Proposed findings submitted by Petitioner are accepted, except: Finding #7, penultimate sentence which is rejected as uncorroborated hearsay. Finding #11, that portion stating the purpose of Petersen's visit to Charette was to change the licensure on the permit to Petersen is rejected. See HO #13. Proposed findings submitted by Respondent are accepted, except: Finding #4, Accepted, except with regard to Respondent's notification of termination of his association with AWI. No documentation of this act was submitted and, even though Respondent may have ultimately revoked O'Brien's authority to pull permits, this was done well after the permits were pulled. COPIES FURNISHED: Robert B. Jurand, Esquire G. W. Harrell, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Brian A. Burden, Esquire Post Office Box 2893 Tampa, FL 33601 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 Kenneth E. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
