The Issue Whether Respondent engaged in the business of contracting without being registered or certified, in violation of Subsection 489.127(1)(f), Florida Statutes (2004),1 as charged in the Administrative Complaint; and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence in this proceeding, the following facts are found: Petitioner is the state agency charged with the responsibility and duty to prosecute administrative complaints, pursuant to Section 20.165 and Chapters 120, 455, and 489, Florida Statutes. Petitioner is authorized to prosecute administrative complaints against unlicensed persons or business organizations, who engage in the business or act in the capacity of a contractor without being registered or certified. At all times material hereto, Respondent, personally, was not licensed to engage in construction contracting in the State of Florida. At all times material hereto, Rentaman or Rentaman Construction/Remodeling did not possess a certificate of authority to practice as a contractor qualified to do business in Florida. At all times material hereto, Timothy Lee Allen was not licensed to engage in construction contracting in the State of Florida. Beginning sometime in 2003 until September 30, 2005, Petitioner, doing business as Rentaman, operated as a sole proprietor under an occupation license in Seminole County. In October 2004, Timothy L. Allen entered into an agreement with Respondent to purchase her trailer, tools, and the right to use her business name in Polk County. Respondent was to receive a five percent commission on any job in which she assisted Allen, including bookkeeping, preparing invoices, and drafting contracts. Allen set up a business in Polk County, using the name Rentaman Construction and Remodeling in October 2004. In early November 2004, Allen negotiated with James and Diandria Mason to do repair/remodeling work on their home in Mulberry, Polk County, Florida. Respondent was contacted and brought in to negotiate the contract with the Masons. On or about November 11, 2004, Respondent, doing business as Rentaman Construction/Remodeling, contracted with James and Diandria Mason to, inter alia, frame the back door and replace the subflooring in the Mason's Mulberry, Florida, mobile home for $1,650.00. The entire second page of the contract was handwritten by Respondent. The first page included a handwritten workmanship warranty, written and initialed by Respondent. The contract included the sentence: "I[the owners] have reviewed and accept the terms and conditions of Sale as presented to me by Debi Gold, an agent of Rentaman." Mason paid Respondent $1,100 cash, as a deposit for the construction project. Allen was placed in charge of the work, but failed to complete the contract with the Masons. The evidence is clear and convincing that Respondent engaged in the business or acted in the capacity of a contractor in November 2004, in Polk County, without being registered or certified. The total investigative costs to Petitioner, excluding costs associated with any attorney's time, was $762.43.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered as follows: Finding Respondent guilty of having violated Subsection 489.127(1)(f), Florida Statutes, as alleged in the Administrative Complaint, and imposing as a penalty an administrative fine in the amount of $5,000.00. Assessing costs of investigation and prosecution to Respondent, excluding costs associated with an attorney's time, in the amount of $762.43. DONE AND ENTERED this 6th day of February, 2007, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 2007.
The Issue The issues in these cases are whether Respondent, Louise Wold-Parente (Respondent), committed the violations alleged in the Administrative Complaints dated January 30, 2010, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the entity charged by law to regulate and discipline locally-licensed contractors doing business in Pinellas County, Florida. At all times material to the allegations of these cases, Respondent held a license as a general contractor, license number I-CGC1251933, issued by Petitioner. On or about November 30, 2005, Respondent, on behalf of Signature Built Construction, filed a permit application for a single-family home to be constructed for Richard and Constance Wendlek. The contract for the construction of the Wendlek home identified Signature Built by David Helms, Inc., as the “builder” or “seller” of the home. Further, the contract stated that Signature Built Construction, Inc., license numbers CBC1251933/QB32131, was the “contractor/builder” of record for Signature Built by David Helms, Inc. On or about August 14, 2006, Respondent filed a permit application for a single-family home to be built for Alan and Elaine Levitz. The contractor for the permit was identified as Signature Built Construction. The contract for the Levitz home was executed between Signature Built by David Helms, Inc., as “builder” or “seller” with Signature Built Construction, Inc., license numbers CBC1251933/QB32131, as the “contractor/builder” of record for Signature Built by David Helms, Inc. At all times material to the allegations, Respondent was not the qualifying contractor for Signature Built by David Helms, Inc. There is no evidence that Respondent and Signature Built by David Helms, Inc., have entered into an agreement to engage Respondent as the qualifying contractor for Signature Built by David Helms, Inc. Further, there is no evidence that David Helms individually, or through Signature Built by David Helms, Inc., was authorized to act on behalf of Signature Built Construction, Inc., or Respondent. Respondent did not execute the contracts with Levitz and Wendlek. There is no evidence that anyone associated with Signature Built Construction, Inc., executed the contracts with Levitz and Wendlek. Neither Levitz nor Wendlek knew Respondent or had any dealings with her. The Levitz and Wendlek contracts were negotiated and performed (to the extent that they were performed) by David Helms or Signature Built by David Helms, Inc. Respondent is the qualifying agent for Signature Built Construction, Inc., but neither Respondent nor Signature Built Construction, Inc., was bound by the contracts with Levitz and Wendlek. The Administrative Complaints filed against Respondent claim that she improperly obtained the building permits for the Wendlek and Levitz homes. It is determined that Respondent facilitated an unlicensed entity or individual, David Helms or Signature Built by David Helms, Inc., to engage in contracting without first being properly licensed or authorized as provided by law.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order finding Respondent in violation of Count I as to both Administrative Complaints, dismissing the other abandoned counts, and imposing an administrative fine in the amount of $2,000.00 together with legal and investigative costs of the proceedings. DONE AND ENTERED this 20th day of October, 2010, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 2010. COPIES FURNISHED: Jason Ester, Esquire Pinellas County Attorney's Office 315 Court Street, Sixth Floor Clearwater, Florida 33756-5165 Warren J. Knaust, Esquire Knaust & Associates, P.A. 2167 Fifth Avenue, North St. Petersburg, Florida 33713 Rodney S. Fischer, Executive Director Pinellas County Construction Licensing Board 12600 Belcher Road, Suite 102 Largo, Florida 33773
The Issue At issue in this proceeding is whether Respondent failed to abide by the coverage requirements of the Workers' Compensation Law, Chapter 440, Florida Statutes (2002), by not obtaining workers' compensation insurance for her employees; and whether Petitioner properly assessed a penalty against Respondent pursuant to Section 440.107, Florida Statutes (2002).
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying; documentary materials received in evidence; stipulations by the parties; evidentiary rulings made pursuant to Section 120.57, Florida Statutes (2003); and the record evidence submitted, the following relevant and material finding of facts are made: The Department is the state agency responsible for enforcing the requirement of the Workers' Compensation Law that employers secure the payment of workers' compensation for their employees. § 440.107, Fla. Stat. (2002).1 On August 8, 2003, Respondent was a sole proprietor in the construction industry by framing single-family homes. On that day, Respondent was the sub-contractor under contract with Marco Raffaele, general contractor, providing workers on a single-family home(s) located on Navigation Drive in the Panther Trace subdivision, Riverview, Florida. It is the responsibility of the Respondent/employer to secure and maintain workers' compensation coverage for each employee. During the early morning hours of August 8, 2003, Donald Lott, the Department's workers' compensation compliance investigator, was in the Panther Trace subdivision checking on site workers for potential violations of the workers' compensation statute. While driving down Navigation Drive in the Panther Trace subdivision, Mr. Lott approached two houses under construction. There he checked the construction workers on site and found them in compliance with the workers' compensation statute. Mr. Lott recognized several of the six men working on the third house under construction next door and went over to investigate workers' compensation coverage for the workers.2 At the third house Mr. Lott interviewed Darren McCarty, Henry Keithler, and Mike Sabin, all of whom acknowledged that they worked for Respondent, d/b/a Riopelle Construction. Mr. Lott ascertained through Southeast Leasing Company (Southeast Leasing) that three of the six workers, Messrs. Keithler, Sabin, and McCarthy were listed on Southeast Leasing Company's payroll through a valid employee lease agreement with Respondent as of August 8, 2003. The completed employee lease agreement provided for Southeast Leasing Company to provide workers' compensation coverage for only those employees whose names, dates of birth, and social security numbers are contained in the contractual agreement by which Southeast Leasing leased those named employees to the employing entity, Respondent, d/b/a Riopelle Construction. Mr. Lott talked with the other three workers on site, Ramos Artistes, Ryan Willis, and Robert Stinchcomb. Each worker acknowledged working for (as an employee) Respondent on August 8, 2003, in the Panther Trace subdivision. In reply to his faxed inquiry to Southeast Leasing regarding the workers' compensation coverage status for Messrs. Artistes, Willis, and Stinchcomb, Southeast Leasing confirmed to Mr. Lott that on August 8, 2003, Southeast Leasing did not have a completed employee leasing contractual agreement with Respondent for Messrs. Artistes, Willis or Stinchcomb. Southeast Leasing did not provide workers' compensation coverage for Messrs. Artistes, Willis or Stinchcomb on August 8, 2003.3 Southeast Leasing is an "employee" leasing company and is the "employer" of "leased employees." As such, Southeast Leasing is responsible for providing workers' compensation coverage for its "leased employees" only. Southeast Leasing, through its account representative, Dianne Dunphy, input employment applications into their system on the day such application(s) are received from employers seeking to lease employees. Southeast Leasing did not have employment applications in their system nor did they have a completed contractual employment leasing agreement and, therefore, did not have workers' compensation coverage for Messrs. Artistes and Willis at or before 12:08 p.m. on August 8, 2003. After obtaining his supervisor's authorization, Mr. Lott served a Stop Work and Penalty Assessment Order against Respondent on August 8, 2003, at 12:08 p.m., requiring the cessation of all business activities and assessing a penalty of $100, required by Subsection 440.107(5), Florida Statutes, and a penalty of $1,000, as required by Subsection 440.107(7), Florida Statutes, the minimum penalty under the statute. On August 12, 2003, the Department served a Corrected Stop Work and Penalty Assessment Order containing one change, corrected federal identification number for Respondent's business, Riopelle Construction. Mr. Stinchcomb, the third worker on the construction job site when Mr. Lott made his initial inquiry, was cutting wood. On August 8, 2003, at or before 12:00 p.m., Mr. Stinchcomb was not on the Southeast Leasing payroll as a leased employee covered for workers' compensation; he did not have individual workers' compensation coverage; and he did not have a workers' compensation exemption. On that day and at that time, Mr. Stinchcomb worked as an employee of Riopelle Construction and was paid hourly by Riopelle Construction payroll check(s). Respondent's contention that Mr. Stinchcomb, when he was working on the construction job site between the hours of 8:00 a.m. and 1:00 p.m. on August 8, 2003, was an independent contractor fails for the lack of substantial and competent evidence in support thereof. On August 8, 2003, the Department, through Mr. Lott, served an administrative request for business records on Respondent. Respondent failed and refused to respond to the business record request. An Order requiring Respondent to respond to Petitioner's discovery demands was entered on December 1, 2003, and Respondent failed to comply with the order. On December 8, 2003, Respondent responded that "every effort would be made to provide the requested documents by the end of the day" to Petitioner. Respondent provided no reliable evidence and Mr. Stinchcomb was not called to testify in support of Respondent's contention that Mr. Stinchcomb was an independent contractor as he worked on the site on August 8, 2003. Respondent's evidence, both testamentary and documentary, offered to prove that Mr. Stinchcomb was an independent contractor on the date in question failed to satisfy the elements required in Subsection 440.02(15)(d)1, Florida Statutes. Subsection 440.02(15)(c), Florida Statutes, in pertinent part provides that: "[f]or purposes of this chapter, an independent contractor is an employee unless he or she meets all of the conditions set forth in subparagraph(d)(1)." Subsection 440.02(15)(d)(1) provides that an "employee" does not include an independent contractor if: The independent contractor maintains a separate business with his or her own work facility, truck, equipment, materials, or similar accommodations; The independent contractor holds or has applied for a federal employer identification number, unless the independent contractor is a sole proprietor who is not required to obtain a federal employer identification number under state or federal requirements; The independent contractor performs or agrees to perform specific services or work for specific amounts of money and controls the means of performing the services or work; The independent contractor incurs the principal expenses related to the service or work that he or she performs or agrees to perform; The independent contractor is responsible for the satisfactory completion of work or services that he or she performs or agrees to perform and is or could be held liable for a failure to complete the work or services; The independent contractor receives compensation for work or services performed for a commission or on a per-job or competitive-bid basis and not on any other basis; The independent contractor may realize a profit or suffer a loss in connection with performing work or services; The independent contractor has continuing or recurring business liabilities or obligations; and The success or failure of the independent contractor's business depends on the relationship of business receipts to expenditures. The testimony of Respondent and the testimony of her husband, Edward Riopelle, was riddled with inconsistencies, contradictions, and incorrect dates and was so confusing as to render such testimony unreliable. Based upon this finding, Respondent failed to present evidence sufficient to satisfy the requirement of Subsection 440.02(15)(d)1, Florida Statutes, and failed to demonstrate that on August 8, 2003, Mr. Stinchcomb was an independent contractor. Petitioner proved by a preponderance of the evidence that on August 8, 2003, Mr. Stinchcomb, while working on the single-family construction site on Navigation Drive in the Panther Trace subdivision was an employee of Respondent and was not an independent contractor. Petitioner proved by a preponderance of the evidence that Mr. Stinchcomb did not have workers' compensation coverage on August 8, 2003. On August 8, 2003, Mr. Willis was a laborer on the single-family construction site on Navigation Drive in the Panther Trace subdivision as an employee of Respondent, who paid him $7.00 per hour. Mr. Willis was not listed on the employee list maintained by Southeast Leasing, recording those employees leased to Respondent. Mr. Willis did not have independent workers' compensation coverage on August 8, 2003. Mr. Willis had neither workers' compensation coverage nor a workers' compensation exemption on August 8, 2003. Petitioner proved by a preponderance of the evidence that Mr. Willis did not have workers' compensation coverage on August 8, 2003. On August 8, 2003, Mr. Artises was a laborer on the single-family construction site on Navigation Drive in the Panther Trace subdivision and was an employee of Respondent. Mr. Artises had been in the employment of Respondent for approximately one week before the stop work order. Mr. Artises did not have independent workers' compensation coverage on August 8, 2003. Mr. Artises did not have a workers' compensation coverage exemption on August 8, 2003. Petitioner proved by a preponderance of the evidence that Mr. Aristes did not have workers' compensation coverage on August 8, 2003.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleading and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Financial Services, Division of Workers' Compensation, affirming and adopting the Corrected Stop Work and Penalty Assessment Order dated August 12, 2003. DONE AND ENTERED this 29th day of March, 2004, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 29th day of March, 2004.
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of alleged violations of Chapter 489, Florida Statutes, set forth in an Administrative Complaint signed March 3, 1987. Specifically, the Respondent is charged with having violated Section 489.129(1)(k), Florida Statutes, "by abandonment of a construction job Respondent was engaged on" and with having violated Section 489.129(1)(j), Florida Statutes, "by failure to subcontract work in violation of 489.113(3)." At the hearing the parties agreed to an amendment to paragraph 8 of the Administrative Complaint to reflect that there were two contracts, one for $15,500.00 and one for $1,491.00, for a total contractual price of $16,991.00. The Respondent also stipulated to most of the allegations of the Administrative Complaint. Thereafter, the Petitioner presented the testimony of two witnesses and offered six exhibits, all of which were received in evidence. The Respondent then testified on his own behalf and offered two exhibits, both of which were received in evidence. At the conclusion of the hearing the parties were given 30 days from the date of the filing of the transcript within which to file their proposed Recommended Orders. The transcript was filed on October 2, 1987, and the Petitioner thereafter filed a timely proposed Recommended Order containing proposed findings of fact and conclusions of law. As of the date of this Recommended Order, the Respondent has not filed a proposed Recommended Order nor any other document containing proposed findings of fact. Specific rulings on all proposed findings of fact submitted by the Petitioner are contained in the Appendix which is attached to and incorporated into this Recommended Order.
Findings Of Fact Based on the stipulation of the parties, on the exhibits received in evidence, and on the sworn testimony of the witnesses at the hearing, I make the following findings of fact: Stipulated Facts Petitioner is the state agency charged with regulating the practice of contracting, pursuant to Section 20.30 and Chapter 455, Florida Statutes. At all times relevant hereto, Respondent was licensed by the Construction Industry Licensing Board as a certified general contractor. At all times relevant hereto, Respondent had been issued by said Board, and held, license number CG C031803. Respondent's address of record is in Jacksonville, Florida. Respondent did, through the contracting business Respondent was then associated with and responsible for in his capacity as a licensed contractor, contract with Irene McIntosh to perform certain contracting work. The contracting work generally consisted of remodeling a church. The contracts for the remodeling work were entered into on or about March 6, 1986. One contract was for $15,500.00 and one was for $1,491.00. The jobs were located in Jacksonville, Florida. Respondent's contracting business thereafter began the jobs described above. In the course of said jobs, Respondent did, himself or through his unlicensed employees, perform plumbing work. At no time relevant hereto was Respondent licensed to engage in plumbing work. The Rest of the Findings Respondent began work on the two contracts sometime during the latter part of 1985. Respondent continued to perform work on the two contracts until sometime during March of 1986. Respondent finished most of the work under the two contracts, but he did not finish all of the work he had agreed to perform. Respondent has not performed any work on either of the contracts since March of 1986. Apparently some form of dispute, the exact nature of which is not revealed in the record of this case, arose between the parties to the contract. The last time the Respondent attempted to do any work under the contracts, he was unable to do so because the locks on the premises had been changed. At about that same time, a representative of the church told the Respondent that the Respondent would not be paid any more money for work on the contracts. After being locked out of the premises, the Respondent did not attempt to contact Irene McIntosh to arrange to finish the work or to notify her that he was terminating the work. There is no evidence that Irene McIntosh attempted to contact the Respondent after he was locked out of the premises. The Respondent has not been paid the contracted amount of $1,491.00 under the second contract. If the Respondent were to be paid the $1,491.00 that is owed to him, he would be willing to finish all of the work under the two contracts. A general contractor cannot lawfully perform plumbing work in the City of Jacksonville without a plumbing license.
Recommendation Based upon all of the foregoing, it is recommended that the Construction Industry Licensing Board issue a final order in this case to the following effect: Dismissing the charge that the Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project; Finding the Respondent guilty of the charge that he violated Section 489.129(1)(j), Florida Statutes; and Imposing a penalty of a fine in the amount of two hundred fifty dollars ($250.00) and a suspension of the Respondent's license for a period of ninety (90) days. DONE and RECOMMENDED this 4th day of December, 1987, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 4th day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2220 The following are my specific rulings on each of the findings of fact proposed by the parties: Findings proposed by the Petitioner: Paragraph 1: Accepted. Paragraph 2: Accepted with exception of contract amount. There were two contracts for a total price of $16,991.00. Paragraph 3: Accepted in essence, with exception of exact month. Exact month is not established by persuasive competent substantial evidence. Paragraph 4: Accepted. Paragraph 5: The proposed list of work remaining to be finished is rejected because it is not all supported by persuasive competent substantial evidence and also because it constitutes unnecessary subordinate details. It is sufficient to find that the Respondent did not finish all of the work under the contracts. Paragraph 6: The essence of this proposal is accepted with a different emphasis and with additional findings in the interest of clarity. Paragraph 7: Accepted in substance. Paragraph 8: Accepted. Paragraph 9: Accepted. Findings proposed by the Respondent: (none) COPIES FURNISHED: E. Raymond Shope, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mr. Eugene Williams, Jr. 10337 Jolynn Court West Jacksonville, Florida 32211 Honorable Tom Gallagher Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mr. Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
The Issue The issues framed by the Stipulated Issues, Facts and Exhibits are whether the license of David L. Norris as a certified general contractor should be disciplined for violation of: Section 489.129(1)(e), Florida Statutes (1983), by aiding an unlicensed person to evade the requirements of Chapter 489; Section 489.129(1)(f), Florida Statutes (1983), by knowingly conspiring with an unlicensed person to use Norris' certificate with the intent to evade the requirements of Chapter 489; Section 489.129(1)(j), Florida Statutes (1983), through the violation of Section 489.119, Florida Statutes (1983), by failing to qualify a firm through which Respondent was acting; Section 489.129(1)(g), Florida Statutes (1983), by acting in a name not on his license. At the final hearing, the Department amended the Administrative Complaint to dismiss the violations of Sections 489.129(1)(k) (abandoning a contracting job) and (m) (gross negligence or malpractice in contracting). The Department presented the two witnesses and the Respondent presented one witness. Twelve exhibits for the Department were received into evidence, and Mr. Norris offered one exhibit. The parties also stipulated to certain facts. (See Stipulated Issues, Facts and Exhibits filed May 15, 1986, Tr. 4-5)... /1
Findings Of Fact At all times material, Respondent, David L. Norris, was a certified general contractor, having been issued license numbers CG C011081 and CG CA11081, by the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board. (PX 2; Stp. F. #1, Administrative Complaint paragraph 2) At all times material, Mitch Kobylinski (Kobylinski) was unlicensed, and KMK Remodeling and Repair (KMK) had no qualifying agent for the purpose of engaging in contracting under Section 489.119, Florida Statutes (1983). At times Kobylinski has done business as KMK. (PX 1; Stp. F. #2; Tr. 18-21) At no time did the name Kobylinski or KMK appear on the license issued to Norris by the Construction Industry Licensing Board, nor did Norris qualify a business by that name. (Stp. F. #1, Administrative Complaint paragraph 9) Norris knew Kobylinski was not licensed to engage in contracting. (Stp. F. #1, Administrative Complaint paragraph 5) Kobylinski had worked for Norris on prior jobs, including working for Norris in the capacity as overseer on a large room addition. Norris had paid Kobylinski by the hour, by the day or by the type of work Kobylinski did. On one other job, Norris and Kobylinski shared the job in that Kobylinski was paid by the day, however, at the end both Respondent and Kobylinski split the profit. (Tr. 21,22) Kobylinski, not Norris, was initially contacted by a leasing agent to improve a structure for Marianne Tomlinson (Tomlinson) at 21073 Jog Road, Suite 21, Boca Raton, to become Tootsie's, a nail salon. Kobylinski indicated to the leasing agent and Ms. Tomlinson that he would have to perform the work with a general contractor. (Stp. F. #3; Tr. 24) Kobylinski presented a proposal on KMK's letterhead, dated August 17, 1984, to Tomlinson for the work to be done. (PX 3; Tr. 16, 18) Norris also submitted a proposal, dated August 15, 1984, to Tomlinson. The evidence does not show what letterhead was used by Norris, because the exhibit is a carbon copy. (RX 1) The proposed cost of the work from Kobylinski was $23,593.75 and from Norris was $23,600. Both proposals made separate provisions for formica work at additional prices of $10,600 and $10,500 respectively. (Stp. F. #4; PX 3; RX 1) Only Kobylinski's proposal was signed by Ms. Tomlinson. (PX 3; Tr. 39) Norris and Kobylinski agreed that Norris would act as the overseer of the job and that, as compensation, Norris initially was to receive $1,000.00 to begin the job (Tr. 26) and further monies depending upon time Norris expended on the job (Tr. 22-23, 28-29). They also agreed that Kobylinski was to deal exclusively with Tomlinson and be responsible for all monies on the job and paying subcontractors. (Tr. 26, 43) No agreement was signed between Norris and Tomlinson providing that Norris would be the contractor for the job. (Tr. 38-39) Norris applied for and was issued, on September 18, 1984, the building permit for the Tomlinson job. (PX 4,5; Stp. F. #1, Administrative Complaint paragraph 6; Tr. 39) Norris contacted the electrician, at the initial stage of the job, for the electrical work. (Tr. 56) A certificate of occupancy was issued for the job. (Stp. F. #6; Tr. 46) Tomlinson made all payments for the construction work by checks payable to Kobylinski, drawn on Tomlinson's business account for Tootsie's. (PX 7; Tr. 30) Near the end of the job, Tomlinson gave Kobylinski a check, dated December, 1984, for $4,000.00. There were not sufficient funds in the account for Kobylinski to cash the check. Kobylinski returned to Tomlinson with the check, and Tomlinson issued him a replacement check for $2,000.00. She requested the return of the $4,000.00 check to her, but Kobylinski had not brought that check with him. At this point in time, the working relationship between Kobylinski and Tomlinson broke down. (PX 7; Tr. 31,32) Tomlinson submitted her punch list, dated December 17, 1984, to Norris. On it she identified him as the contractor for her job and stated she wanted to make the final payment to him. (PX 6) On January 20, 1985, due to problems with the punch list and remaining payment, Tomlinson and Norris met. As a result of that meeting, they reached an agreement dated January 20, 1985, as to what remained to be paid, viz., $4,113.75, and what work remained to be done. The August 17th agreement between Kobylinski and Tomlinson was referenced in the agreement of January 20, 1985. (PX 8; Tr. 45) By January 20, 1985, Kobylinski would have received all the monies for the cost of the work, according to the August 17th agreement, if the $4,113.75 were paid by Tomlinson. (Stp. F. #5) On January 21, 1985, Norris filed a claim of lien against the Tomlinson job. The lien indicated that the total value of the work was $23,593.75 (which was the cost of construction according to the contract with Kobylinski) and that the amount unpaid was $4,113.75. Norris filed the lien because, after signing the agreement of January 20, 1985, he and Tomlinson had further disagreements. (PX 9; Tr, 46) In a letter to Norris, dated April 23, 1985, in an attempt to get Respondent to release his lien, Tomlinson indicated that she had contracted with Kobylinski, not Norris, to do the work for her. (PX 11) As compared to the compensation received by Norris, Kobylinski has received over one-half the money from the Tomlinson job. (Tr. 28)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent be found guilty as charged in the Administrative Complaint, as amended at the final hearing, and that an administrative fine of $1,000.00 be imposed. DONE AND ORDERED this 9th day of October 1986 in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY, JR. 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 9th day of October, 1986.
The Issue Whether Respondent engaged in the unlicensed practice of contracting in violation of Section 489.127, Florida Statutes, and if so, what penalty should be imposed?
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of contractors in the State of Florida pursuant to Section 20.42 and Chapters 455 and 489, Florida Statutes. On June 7, 2005, Harry Lee Wilson signed a proposal on behalf of Wilson Construction and Roofing to perform repairs on a home owned by Tony Wright at 2126 Evergreen Avenue, Jacksonville, Florida. The proposal consisted of a two-page list of repairs to be performed, including installation of doors, plumbing, kitchen cabinets and sheetrock; repair of several holes, walls, windows and floors; painting and installation of a wall. The proposed cost for the job was $7,595.00, with $3,200.00 to be paid as a down payment, $2,200.00 to be paid halfway through, and the balance to be paid when the job was completed. Mr. Wilson represented to Mr. Wright that he was a licensed contractor and had been for 20 years. He had business cards and t-shirts that advertised "Wilson Construction and Roofing." His license, however, was an occupational license issued by the City of Jacksonville. At no time material to these proceedings was Mr. Wilson registered with or certified by the State of Florida. Likewise, Wilson Construction and Roofing did not possess a certificate of authority to practice as a contractor qualified business. No evidence was presented to establish that Mr. Wilson held any sort of competency license issued by the local jurisdiction. Mr. Wright accepted the proposal and, in all, paid $5,000.00 to Mr. Wilson for his services. On September 21, 2005, Mr. Wilson wrote to Mr. Wright representing that he had completed the "first proposal," i.e., the first page of the work under the contract. In his letter, he claimed that Mr. Wright had defaulted on the job because of work done by another contractor and that additional funds would be needed to complete the work. Mr. Wright was not pleased with the quality of work performed on the job and stopped paying Mr. Wilson. Some of the work had to be redone by another contractor. For example, the plumbing was not installed correctly; the countertop was not level; a weight-bearing wall was braced incorrectly; and drywall was applied over the light switches. Mr. Wright was under the impression that the work by Mr. Wilson was not inspected because the funds were not coming from a bank. Inspection was only performed when the job was finished by the second contractor. Mr. Wilson admitted that he has been doing construction work for 20 years and did not believe a state license was necessary. He believed that his occupational license was all he needed to perform construction work. Mr. Wilson claimed that he did not perform any plumbing work for Mr. Wright or the amount he did was minimal. However, Mr. Wilson's proposal to Mr. Wright clearly includes plumbing work among those items to be performed. Whether or not he actually did plumbing work on the job, Mr. Wilson negotiated a contract to perform such work. There was no evidence presented that Mr. Wilson was offering to perform or performing any contracting services under the supervision of any licensed contractor. The Department incurred investigative costs, excluding any costs associated with an attorney's time, in the amount of $401.83.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered which finds that Respondent violated Section 489.127(1)(f), Florida Statutes; That an administrative fine of $5,000.00 be imposed; and That costs of investigation and prosecution in the amount of $401.83 be assessed. DONE AND ENTERED this 9th day of November, 2006, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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.state Filed with the Clerk of the Division of Administrative Hearings This 9th day of November, 2006. COPIES FURNISHED: Brian A. Higgins, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Harry Wilson Wilson Construction and Roofing 12450 Biscayne Boulevard Apartment 415 Jacksonville, Florida 32218 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Nancy S. Terrel, Hearing Officer Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues in the case are whether the Respondent was required to carry workers' compensation coverage for certain individuals, and, if so, whether the Petitioner correctly assessed a penalty against the Respondent.
Findings Of Fact On September 18, 2003, Tracy Gilbert, an inspector employed by the Petitioner, visited a residential construction worksite located at 3109 West Sunset Drive, Tampa, Florida. At the time of her visit, Ms. Gilbert saw three unidentified men painting the interior of a two-story residence. The men were wearing t-shirts bearing the Respondent's name and a telephone number. She attempted to speak to the men, but none spoke English, and Ms. Gilbert was unable to communicate with them. Ms. Gilbert attempted to obtain information from a fourth unidentified man who arrived at the construction site while she was present, but the evidence fails to establish that any relevant information was obtained. Ms. Gilbert then located the construction site permit board, and as she examined the board, a fifth unidentified man wearing a t-shirt bearing the Respondent's name and a telephone number, walked up to her and gave her a business card with the Respondent's information on it. Ms. Gilbert called the telephone number printed on the t-shirts and business card and left a message. Within a few minutes, Richard T. Killam returned her call. Mr. Killam is the owner and operator of the Respondent. Ms. Gilbert advised Mr. Killam of what she had seen. Mr. Killam advised Ms. Gilbert that the individuals she had seen were not his employees, and stated that they were employed by an individual identified as Mauro Makawachi (Mauro) to whom the job was "subcontracted." Mr. Killam provided a telephone number to Ms. Gilbert, which he identified as that of Mauro. The Respondent contracts with general contractors for painting jobs at various construction sites. In situations where additional labor is required, including the one at issue in this proceeding, the Respondent has on occasion hired Mauro to work on those jobs. The evidence fails to establish the existence of any written contract between Mr. Killam and Mauro related to the worksite at issue in this proceeding. Ms. Gilbert called the telephone number provided by Mr. Killam and had a brief conversation with the individual identified as Mauro, but apparently obtained no information regarding the situation during the conversation and has since been unable to establish further contact with Mauro. Although it is reasonable to presume that the unidentified persons observed at the worksite by Ms. Gilbert were being paid for their work, there is no evidence that the Respondent employed or paid the unidentified persons. Mr. Killam testified that he had arranged for the work at the jobsite to be performed by Mauro. It is reasonable to infer that the unidentified persons observed painting at the worksite by Ms. Gilbert were there at the direction of Mauro and would have been paid by Mauro. The Respondent asserts that Mauro is an independent contractor for whom the Respondent is under no obligation to obtain workers' compensation insurance coverage. Mr. Killam provided to Ms. Gilbert an affidavit of "independent contractor" status and a certificate of insurance both allegedly provided to him by Mauro. The evidence fails to establish that Mauro's affidavit reflected the actual terms of his work on behalf of the Respondent. Mauro's affidavit of independent contractor status indicates that Mauro incurred the "principle [sic] expenses related to the services or work" that Mauro performed for the Respondent. Mr. Killam testified that the primary expenses of a painting business are paint and labor. There is no credible evidence that Mauro maintained a separate business with his own materials. The Respondent paid for the paint used at the worksite. The affidavit indicates that Mauro held or had applied for a federal employer identification number. There is no credible evidence that Mauro held or has applied for a federal employer identification number. The affidavit indicates that Mauro performed specific amounts of work for specific amounts of money. There is no credible evidence that Mauro was paid on a commission or per-job competitive bid basis by the Respondent. The Respondent paid Mauro on a regular basis for labor performed during the pay period. Mauro's certificate of insurance identified the insurer as "Aries Insurance Company." Ms. Gilbert determined that Aries Insurance Company had stopped writing business prior to the date of issuance on the certificate of insurance provided by the Respondent to the Petitioner, and, therefore, the Certificate of Insurance was invalid. The Respondent leased some employees from Progressive Employer Services, which provided workers' compensation insurance for leased employees. Mauro was not a leased employee. There is no evidence that Mauro or the unidentified workers observed by Ms. Gilbert were exempt from workers' compensation requirements. The evidence establishes that the Respondent failed to provide workers' compensation coverage for Mauro. There is no evidence that the unidentified workers observed by Ms. Gilbert were provided with workers' compensation coverage by anyone. Based on the payroll records provided to Ms. Gilbert by the Respondent, Ms. Gilbert calculated the total amount of penalty directly attributable to payments by the Respondent to Mauro as $13,049.45.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers' Compensation, enter a Final Order affirming the Stop Work and Penalty Assessment Order issued on September 22, 2003, as amended by the Amended Stop Work and Penalty Assessment Order issued on September 30, 2003. DONE AND ENTERED this 4th day of February, 2004, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 4th day of February, 2004. COPIES FURNISHED: John M. Iriye, Esquire Department of Financial Services Division of Workers' Compensation 200 East Gaines Street Tallahassee, Florida 32399-4229 Joseph E. Launikitis, Esquire Fuller, Holsonback, Bivins & Malloy 400 North Ashley Drive, Suite 1500 Tampa, Florida 33602 Honorable Tom Gallagher, Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
