The Issue Whether Respondent committed the violations alleged in the administrative complaint; and, if so, what penalty should be imposed.
Findings Of Fact At all times material to the allegations of this complaint, the Respondent, Joseph Marcelin, was a certified residential contractor, license number CR C028352. Respondent’s place of business and residence are in Dade County, Florida. The Petitioner is the state agency charged with the responsibility of regulating and disciplining licensed contractors. On May 14, 1988, the Construction Industry Licensing Board entered a final order approving a settlement stipulation regarding Case no. 74860 against this Respondent. This final order directed Respondent to adhere to and abide by all of the terms and conditions of the stipulation. The stipulation required the Respondent to not violate the provisions in Chapters 455 and 489, Florida Statutes, in the future; required Respondent to honor a settlement in a civil matter; required Respondent to pay a fine in the amount of $500.00; suspended Respondent’s license for thirty days; and required Respondent to affirmatively demonstrate compliance with the stipulation in order to have his license reinstated. A second final order entered by the Board on May 14, 1988, approved a settlement stipulation regarding Case no. 77499. This final order also directed Respondent to comply with the stipulation applicable to that case. In Case no. 77499, the stipulation required Respondent to abide by a civil settlement; imposed a fine in the amount of $500.00; suspended Respondent’s license for thirty days; and placed the burden on Respondent to demonstrate he had met the terms of the stipulation. As to both cases referenced above, Respondent admitted the allegations of the administrative complaints which, in pertinent part, claimed Respondent had assisted an unlicensed person or entity to perform contracting services thereby aiding and abetting an unlicensed person to evade the provisions of Chapter 489, Florida Statutes. On April 2, 1993, Respondent executed a certification change of status form which was submitted to the Department. Such form was completed for the purpose of qualifying as an individual for licensure and sought to reinstate a delinquent license or change from inactive to active. In the course of completing the change of status form Respondent was required to answer a series of questions by checking either the “yes” or “no” column. In response to the question as to whether Respondent had “been charged with or convicted of acting as a contractor without a license, or if licensed as a contractor in this state or any other state, had a disciplinary action (including probation, fine or reprimand) against such license by a state, county or municipality?,” he answered “no.” Such answer was false. Further such answer was made under with the following affirmation: I affirm that these statements are true and correct and I recognize that providing false information may result in a FINE, SUSPENSION, OR REVOCATION of my contractor’s license. [Emphasis in original.] Thereafter, the Department notified the Respondent that his license would not be issued as he had failed to demonstrate satisfaction of a civil judgment and had not submitted an explanation of the disciplinary action from 1988. Respondent eventually resolved issues of licensure with the Department and, on September 15, 1993, was authorized to practice contracting. Prior to his license being reinstated, Respondent performed the following: on April 7, 1993, Respondent obtained a building permit for construction work at the home of Eduardo Bovea. This permit, no. 93181501, indicated Respondent as the contractor of record for the project. On the permit application Respondent represented himself as the licensed building contractor for the Bovea project to the Metropolitan Dade County building and zoning department. Respondent did not have a contract with Bovea for the construction work to be performed on the Bovea home. In fact, the contract was between Bovea and Lou Greene Construction. The Boveas paid monies to Rodney Salnave, who claimed to be a representative for Lou Greene Construction. Rodney Salnave was not Respondent’s employee, and was not licensed as a contractor. The Respondent did not talk to the Boveas regarding the contract, the scope of the work to be done, or the contract price for the work. All discussions regarding the work at their home (and payments for same) were between Rodney Salnave and the Boveas. The permit for the Bovea project represented the amount of the work to be $2,000.00. In fact, the contract price for the work was $4,500.00. Respondent misrepresented the value of the work for the Bovea project. As of September 26, 1993, Respondent admitted he was involved with seventeen contracting jobs. Just eleven days after having his license reinstated, and while being employed in a full-time (8:00 a.m. to 5:00 p.m.) job with Dade County, Respondent had contracting responsibility for seventeen jobs. In reality, Respondent had made a deal with an unlicensed person, Denis Joseph, to pull permits for him. The jobs were for persons who, in some instances, Respondent had never met. For example, Mr. Joseph pulled a permit for work to be performed on a home owned by Ed Davis. The contract for the work was between Mr. Davis and a Mr. Sutton, an unlicensed contractor, but with the approval of Respondent, Mr. Joseph obtained a permit for the Davis job. A second job was for Bertha Joseph. In this instance, Mr. Joseph completed the permit application which Respondent signed thereby allowing Mr. Joseph to obtain the permit for the project. By signing the permit, Respondent represented himself to be the contractor for the job. In truth, the homeowner had contracted with Denis Joseph for the work to be done, but the project was completed by Emanuel Gideon, an unlicensed contractor. Respondent admitted receiving payments from Denis Joseph. Respondent admitted he was not actively involved with the Bertha Joseph project. In September, 1993, Eric Wardle, an investigator with the Dade County building and zoning department, interviewed Respondent regarding claims that he was obtaining permits for unlicensed contractors. According to Mr. Wardle, Respondent admitted he pulled permits for unlicensed contractors after Hurricane Andrew because they were trying to make a living. At hearing Respondent disputed the accuracy of Mr. Wardle’s investigation but admitted he would have told him “anything just for him to get away from me.” Respondent’s explanation at hearing was not persuasive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Construction Industry Licensing Board, enter a final order revoking Respondent’s contractor license and imposing an administrative fine in the amount of $8,500.00. DONE AND ENTERED this 16th day of May, 1997, in Tallahassee, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 COPIES FURNISHED: Bruce M. Pasternack, Esquire Raymond L. Robinson, P.A. 1501 Venera Avenue, Suite 300 Coral Gables, Florida 33146 Joseph Marcelin 16561 Southwest 144th Court Miami, Florida 33177 Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1997. Rodney Hurst, Executive Director Department of Business and Professional Regulation/CILB 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Northwood Centre Tallahassee, Florida 32399-0792
The Issue The issue presented for decision herein is whether or not the Respondent, David H. Tinius, unlawfully abandoned a construction project; diverted funds received for completion of a construction project and thereby failed to fulfill his contractual obligations.
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. By its administrative complaint filed herein signed October 6, 1982, the Petitioner, Construction Industry Licensing Board, seeks to suspend, revoke or take other disciplinary action against the Respondent's registered building contractor's license. During times material herein, Respondent was a registered building contractor and has been issued license No. RB0024083. On approximately April 20, 1978, Respondent entered into a contract with Jess Marks to build a residence in Tamarac, Florida, for the sum of $46,551. Respondent commenced construction of the Mark's residence but left the site when it was approximately forty percent complete. At that time, Respondent had received approximately $44,000 of the contract sum. Jess Marks completed the construction of his residence by hiring another contractor to complete the project and expended approximately $50,000 over and above the contract price as agreed upon by the Respondent to complete his residence. Respondent never returned any of the monies received from the Marks for completion of the residence. On approximately April 24, 1978, Respondent entered into a contract with Abe Abrahams to construct a residence in Tamarac, Florida, for the sum of $30,473. Respondent left the Abrahams' project after he had received $6,000 and had completed approximately ten percent of the work on the Abrahams' residence. Respondent did not return to the site nor did he return any of the monies received from the Abrahams for the construction of their residence (See Petitioner's Composite Exhibit No. 5). The Abrahams had to pay for supplies and material bought for the project by the Respondent and which reportedly had been paid, according to Respondent. THE RESPONDENT'S POSITION As noted hereinabove, the Respondent did not appear to contest or otherwise refute the allegations contained in the administrative complaint filed herein. However, Respondent, through counsel, filed an answer which admitted the complaint allegations filed herein.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, hereby RECOMMENDED that the Respondent's registered building contractor's license No. RB0024083 be REVOKED. DONE and RECOMMENDED this 29th day of August, 1983 in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1983 COPIES FURNISHED: Michael J. Cohen, Esquire 2715 East Oakland Park Boulevard Suite 101 Fort Lauderdale, Florida 33306 David H. Tinius 4420 Northwest 36th Court Lauderdale Lakes, Florida 33309 David H. Tinius Post Office Box 6338 Charlotte Amalil St. Thomas, U.S.V.I. 00801 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact At all times pertinent to the allegations contained herein, Respondent was licensed by the State of Florida as a registered real estate broker under license #0001869, which was issued to him as a broker in care of American Heritage Realty, Inc., 102 East Leeland Heights Boulevard, Lehigh, Florida 33936. At all times pertinent to the allegations contained herein, Respondent owned American Heritage Builders, Inc. (AHB). Rudolph L. Ferster, a certified contractor, served as vice-president in charge of construction for American Heritage Builders, Inc., from August 1978 until October 13, 1984. As a licensed contractor, he qualified American Heritage Builders as a residential contractor in the State of Florida. During the time he was with AHB, he supervised the construction of nearly 100 houses for the company. Most of these houses were one of four basic models. When Mr. Ferster left his association with AHB, another contractor, Warren Fuller, had been hired by Respondent to work with the company. He does not know whether Mr. Fuller ever qualified AHB or not. On January 23, 1983, employees of the Respondent entered into a contract with William D. Thomas for the construction and purchase of a lot and house to be constructed thereon by AHB. Contract price was $30,737 for the entire package and Mr. Thomas put down a $4,000 deposit. The balance of $26,737 was to be paid at the start of construction which, in the contract, was stated to be April 15, 1983. The Administrative Complaint alleges that Respondent delayed construction of the Thomas property for over two years and then abandoned it, causing a $6,000 plus loss to Mr. Thomas. The Thomas property was contracted initially to be a shell home. Mr. Thomas was going to do much of the work himself. When Respondent could no longer do the work due to the lack of licensure status, Mr. Thomas contracted with Fred D. Elliott, a certified residential contractor to complete the property which at the time was 50 percent done. Respondent took Mr. Elliott to Mr. Thomas with whom Elliott made an agreement directly. At that time, Mr. Thomas still owed approximately $8,000 on the work agreed upon in the original contract. The additional $6,000 alleged in the Administrative Complaint was for work agreed upon by Mr. Thomas over and above that called for in the initial contract and was in no way connected to the work left undone by Respondent. On January 30, 1984, employees of the Respondent entered into a similar contract with Clarence and Lillian Tap for the construction and purchase of a house and lot in Lehigh Acres to be built by AHB. Mr. Tap intended to pay cash for his purchase and agreed to the construction of a residence on a particular lot which had been shown to him by Respondent's employees. Several days after signing the contract, however, Respondent's employees telephoned him telling him that though the lot he had selected was not available, he could have the lot next door. Since the lot he had selected was a corner lot and the lot subsequently offered was an interior lot, he rejected this offer and Respondent's employees offered to show him other lots with the caveat that if the new lot he selected was more expensive than the original, he would have to pay the difference. Mr. Tap agreed and selected a new lot for an additional cost of $2,500. The original contract was for a total purchase price of $34,995 with $18,250 to be paid down at start of construction on March 1, 1984, and three additional payments to be made periodically at various stages of construction. When the new lot was decided upon, however, a new contract was drawn up and signed by the parties which reflected the new purchase price. It also called for Mr. Tap to apply for a mortgage in the amount of $8,500 with appropriate adjustments to other cash payments. At the time, Mr. Tap was not sure he would be able to make the total cash payment called for since his prior owned mobile home had not yet sold. Because of this development regarding the application for mortgage, Respondent included this parcel in the security given for his half million dollar line of credit with Florida Federal Savings and Loan. As Mr. Tap was not going to make the total cash payment, Respondent would need to secure a fund draw from Florida Federal in order to complete construction. This created a substantial problem not only for Respondent, but for Tap as well. The Taps did not have to take out a mortgage after all, but were able to pay cash for the entire property when it was completed. However, because of financial difficulties that had come up between Respondent and Financial Federal by that time, the lending institution was unwilling to release the Tap property from its security agreement even though Respondent was willing to pay the entire amount due on that property. When the Taps could get no satisfaction from Respondent, they hired an attorney who got him to sign a warranty deed in favor of the Taps, transferring title to the property in question. At the time, Respondent and the Taps' attorney both knew that there was still a security interest in the property in the hands of Florida Federal but Respondent was of the opinion, based on conversations and correspondence he had with the institution, that they were going to release the Tap property. As a result, he signed the warranty deed and advised the Taps at the time that they should receive their copy of the deed within four to six weeks. This time was supposedly sufficient to allow payment of the outstanding obligation to Florida Federal and Florida Federal's recordation of the deed from AHB to the Taps. However, Florida Federal refused to release the Taps' property and has subsequently initiated foreclosure action against it to recover the $30,400 they claim to be due and owing on that section of the line of credit. Mr. Tap has offered to pay the entire $30,400 to Florida Federal in addition to the full amount of the contract price he has already paid to Respondent, but Florida Federal refuses to accept any partial payment. Instead, it insists upon satisfaction of the entire line of credit which now is approximately $200,000. On April 17, 1984, employees of the Respondent entered into a contract with Davis and Reba Williamson as purchasers of a new house to be constructed by AHB on a lot already owned by the Williamsons which they had purchased separately from the Lehigh Corporation for $8,000. Mr. Williamson paid AHB approximately $12,000 down payment on a home to cost $34,245. The house was not completed until October 1985, at which time the Williamsons took possession. They noticed that mechanics' liens had been placed on the property but these were satisfied by the Respondent with funds coming from Financial Federal prior to the Williamsons taking possession. It would appear that the liens were the result of the failure of the actual building contractor, Mr. Price, of New Homes of Lee County, to pay suppliers and subcontractors. When Mr. Williamson looked at the permit posted outside the construction, he first learned AHB was not actually doing the construction. Prior to that time, though Respondent, Mr. Anglickis had not so represented, Williamson had assumed AHB was the actual constructor. When Mr. Williamson spoke with Mr. Price about the liens, he was advised that the construction had stopped because Respondent owed Price money. Respondent denies this and there is no evidence presented by either side to establish the truth of that allegation. The house was subsequently completed by Mr. Williamson acting as his own contractor and hiring subcontractors to do the actual work through the assistance of Mr. Ohlhausen, the DPR investigator, to whom he had complained previously. The materialmen and subcontractors were paid by Mr. Anglickis who issued funds from the construction loan. No additional funds were required of Mr. Williamson. Respondent did not do the final construction to complete the property because, not being a licensed contractor, he could not lawfully do so. On July 26, 1984, the employees of the Respondent entered into a contract with Samuel J. and Dorothy Sapp to construct a house on a lot already owned by the Sapps for a total price of $56,347. The contract called for the Sapps to apply for a mortgage in the amount of $36,000. To facilitate the transaction, the Sapps conveyed the lot they owned to AHB. Respondent admits the home was not built even though the lot was conveyed and Mr. Sapp paid in a deposit of $21,324. When the property was not constructed, Respondent reimbursed Mr. Sapp in the amount of $20,000 which constituted his deposit minus certain expenses incurred for such things as survey fee, attorney fee, mortgage fees and the like. Respondent claims that prior to 1978 when Mr. Ferster came on board, there had always been a licensed contractor to qualify AHB. Initially, upon first purchasing the business, Respondent used all licensed contractors who had worked for the corporation when it was owned by Lehigh Corporation. Respondent assumed that the contractors he utilized were doing the same thing for him as the owner of the corporation in order to keep matters legal as they had done when the corporation was owned by Lehigh Corporation, and for many years this was the case. Mr. Ferster maintained AHB as a qualified contractor until he left in 1984. It was at point that the new contractors utilized by Respondent, Mr. Price in particular, failed to qualify the corporation with their licenses. However, Respondent contends, and the evidence seems to establish, that at no time did Respondent ever represent himself as a licensed contractor to the buyer of the homes in question here. In fact, he did not even speak with them until well after the contracts were signed by the purchasers and his signature appearing thereon in each case is an ex post facto action on his part. The problems which confront Respondent herein deal with his relationship with Florida Federal with whom he had established a half million dollar line of credit. Just about the time these current houses were coming up for construction, Respondent's relationship with Florida Federal deteriorated. It well may be that his financial arrangements with the institution were less than satisfactory. Evidence of this was not forthcoming from either party. However, it has been shown that each of the properties in question was made a part of the security for Respondent's line of credit which had fallen delinquent. Florida Federal indicated its intention to foreclose and, with few exceptions, took the position that the mortgage which it held on Respondent's properties did not provide for releases of individual parcels. Though this may have been the case, and the mortgage was not introduced, Respondent testified, and there is no reason to disbelieve him, that prior to the time in question, as a practice, Florida Federal did release individual parcels upon payment of the amount represented as the construction loan in each case. Respondent assumed that this practice would continue but in the case of the Sapps' property, it did not. Respondent has, from the very beginning, made a good faith effort to secure the release of the Taps' property which should not have been made a portion of the security in the first place. The Williamson property was released and they acquired a clear title to it. When the Tap property was completed and ready for closing, Mr. Tap brought the $8,500 still outstanding with him to the closing. Florida Federal, however, would not accept this money because it was not the full payoff on Respondent's construction loan. While Respondent brought with him the amount he thought was due, the figure was wrong and Florida Federal would not accept the amount offered since both his amount and the $8,500 Tap payment still did not constitute the full amount due under the construction loan. Thereafter, Florida Federal would not accept the correct amount due on this particular property even though Respondent offered and had available to him sufficient funds to make the full payment. The $500,000 line of credit was not renewed by the Respondent at his own choice when it became time for the rollover. However, because there were still four homes still in work, Respondent offered to roll over a lesser amount, $161,000, which was agreed upon by Florida Federal by letter dated March 14, 1985. At the time of this letter, Mr. Tap's property had been completed three months previously and Respondent had given Tap a warranty deed. Respondent asked Florida Federal on an almost daily basis for the payoff on the Tap loan so that he could have that portion of the mortgagee released. However, he was never given it. At the time, Respondent was working with Florida Federal to get as many properties released as he could and though Florida Federal verbally agreed to work with Respondent, it appears he never got any cooperation. In fact, by letter dated April 3, 1985, Financial indicated that if the unpaid principal balance was not paid in full by April 13, 1985, foreclosure action would be initiated. When Respondent received this letter he immediately called Florida Federal. He was advised orally that he could have a second chance and that papers would be forwarded for him to sign, but he never received them. Instead, on April 18, 1985, he received a letter stating that he had failed to meet the terms and conditions of the previous offer and that it was rescinded. Respondent wrote back on April 24 protesting the decision and alleging a mistake. Nothing was done until July 17, almost three months later, when he was again advised in writing that the bank would consider a proposal from him. Respondent responded quickly and on August 27, received a reply from the bank apologizing for the failure to respond to his proposal and indicating that the matter was still open for negotiation. Nonetheless, Mr. Tap has still not been given the opportunity to pay off his property. Florida Federal refuses to accept any pay off for individual homes unless the entire line of credit is paid in full. During the period of these negotiations, Florida Federal accepted two other loans for Respondent's line of credit but has refused to advance any funds under these loans. One of these is the Sapp house. Florida Federal took the Sapp lot previously deeded to AHB as security for the line of credit and refuses to release it though no funds have been advanced for any construction on that lot. Respondent, in addition to reimbursing Mr. Sapp $20,000 of his deposit, has offered payment for the lot or an exchange of lots, but Mr. Sapp has declined. With regard to the Tap house, covered by a $30,400 construction loan, Respondent has offered Florida Federal $50,000 in cash to release this property but the institution refuses insisting that the full line of credit be paid off. Respondent contends that he has never received a complaint from Mr. Williamson or any of the other individuals listed in the Administrative Complaint. This is so found. Charles Matheny, assistant to the President of Lehigh Corporation, the developer of Lehigh Acres, has known the Respondent for nearly 19 years, having first met him when Respondent worked for the corporation in advertising and promotion. Respondent left Lehigh Corporation at some point in the interim. When he did so, he purchased certain assets of the corporation which included the name American Heritage Builders, Inc., and the model site owned by the corporation. At that point, Respondent went in business for himself and started American Heritage Realty in order to market the property and homes he built. According to Mr. Matheny, Respondent was active in little league in years past though he had, at the time, no children of his own, and when doing so, was instrumental in molding the character of the children who played for him for the better. Respondent has also been active in the junior Chamber of Commerce and reportedly was President of the statewide organization. He has also been active in other community activities such as the local Chamber of Commerce and the Community Day Care Center. He is known to be quite charitable and devotes a considerable amount of time and money to charitable activities. As Mr. Matheny knows it, Respondent's reputation for truth and honesty in the community is good. He has never heard any reports to the contrary. Respondent was interviewed by Mr. Ohlhausen in 1984 in regard to a complaint filed by the Construction Industry Licensing Board relating to Respondent serving as a contractor without a license. When Ohlhausen advised Respondent he was operating in violation of the law, Respondent appeared not be to aware of this. When so advised, he immediately agreed to sign a cease and desist agreement and stopped all further construction activity. He cooperated fully with efforts of the Department to get the properties completed and in the hands of the owners.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is, therefore: RECOMMENDED that the Administrative Complaint against Respondent herein be dismissed. RECOMMENDED in Tallahassee, Leon County, Florida, this 20th day of April, 1988. ARNOLD H. POLL0CK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9765 Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 1988. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 87-2619 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. By the Petitioner 1 - 4. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as contra to the weight of the evidence. Accepted and incorporated herein. Rejected as contra to the weight of the evidence. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Irrelevant. By the Respondent Not a Finding of Fact. Not a Finding of Fact - more a comment on the pleadings. 3 - 4. Accepted and incorporated herein. 5a. Accepted and incorporated herein. 5b. Accepted and incorporated herein. 5c. Accepted and incorporated herein. 5d. Accepted and incorporated herein. 5e. Accepted and incorporated herein. 5f. Accepted and incorporated herein. 5g. Accepted and incorporated herein. 6. Accepted and incorporated herein. COPIES FURNISHED: James H. Gillis, Esquire DPR, Division of Real Estate Post Office Box 1900 Orlando, Florida 32801 Howard Anderson, Esquire Post Office Box 767384 Roswell, Georgia 30076-7384 Darlene F. Keller Acting Executive Director DPR, Division of Real Estate Post Office Box 1900 Orlando, Florida 32801 William Bilenky, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint? If so, what punitive action should be taken against Respondent?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is now, and has been since 1981, a Florida- licensed general contractor (holding license number CG C019787). At all times material to the instant case, Respondent has been licensed as an individual in his own name, not as a qualifying agent 3/ or under a fictitious name. At no time has Respondent been licensed in the State of Florida as a roofing contractor or as any other type of contractor other than a general contractor. Larry Thomas is now, and has been at all times material to the instant case, the sole owner and president of Home Improvement Time, Inc. (HIT), a corporation that he formed in or around December of 1995. Mr. Thomas, in naming his company, hoped that the public, when hearing the company's name, would associate it with the popular "Home Improvement" television program. There are not now, nor have there ever been, any other owners, officers, or directors of the company. Until late in 1998, HIT was actively engaged in the business of soliciting home improvement work, including room additions and the installation of roofs, hurricane shutters, and screens. To solicit such work, HIT used telemarketers who contacted homeowners over the telephone from HIT's office (located in a shopping center in Jensen Beach, Florida and having the mailing address of 867 Northeast Jensen Beach Boulevard, Jensen Beach, Florida), and it also employed salespersons who visited homeowners at their homes. Among the salespersons who worked for HIT were Vince Ketchum and Bob Andrews. At no time material to the instant case did HIT have a licensed contractor serve as its certified qualifying agent. 4/ Mr. Thomas has never been licensed as a general contractor. Some time after 1996, he obtained aluminum structure and concrete contracting licenses from the City of Port St. Lucie and from Martin County. In or around January of 1996, shortly after the formation of HIT, Respondent met with Mr. Thomas at HIT's office and observed HIT's operations. As a result of this meeting, Respondent hired HIT, on a commission basis, to solicit home improvement work for him. Respondent was the only general contractor for whom HIT solicited business. When a HIT telemarketer made contact with a prospect, the telemarketer indicated that he or she was with HIT. If asked who would be doing the home improvement work, the telemarketer advised the prospect that the work would be done by Respondent. If a prospect contacted by a HIT telemarketer was interested in having home improvement work done, a HIT salesperson was dispatched to the prospect's home. Respondent provided HIT salespersons with training and instructions as to what to do when calling on prospects. On their visits to prospects' homes, the salespersons brought with them preprinted form contracts for the prospects to sign. These form contracts were jointly developed by Mr. Thomas and Respondent (using, as a model, a form contract that was published in a "Better Homes and Gardens" magazine article). On the top right hand corner of these form contracts were the words "licensed" and "insured." To the left of these words, in large, stylized lettering, were either the words "Home Improvement," "Home Improvement Inc.," "Home Improvement Time, Inc.," or "Home Improvement by Richard Kosalka" (depending on the time frame). These words were included on the form because Respondent wanted homeowners to make the connection between him and HIT and the television program after which HIT was named. Underneath these words appeared the following: 667 N.E. Jensen Beach Boulevard Jensen Beach, FL 34957 Richard Kosalka State License # CGCO19787 Among the provisions in the form contracts was the clause, "This agreement subject to office approval." When they returned from their sales calls, the salespersons brought any signed contract to Mr. Thomas at HIT's office. Depending on the nature of the work involved, Mr. Thomas approved or disapproved the contract himself or he gave the contract to Respondent 5/ to approve or disapprove (pursuant to the "subject to office approval" clause in the contract). Any contract that Respondent approved became Respondent's contract to perform. Although he did perform some contract work himself, most often he used subcontractors who worked under his general supervision. HIT received a commission for every approved contract its salespersons procured for Respondent. Its commission (the amount of which was established by agreement between Mr. Thomas and Respondent) was included in the contract price offered to the homeowner. Typically, payment from the homeowner was not due until the contract work was completed. Payment was made by the homeowner to HIT, which then paid Respondent by check in an amount equal to the contract price minus HIT's previously established commission. In an effort to make the public aware of the services it offered, HIT, in or around August of 1996, placed an advertisement in the Bell South Yellow Pages for Port St. Lucie and Stuart. In the advertisement, which was placed without Respondent's knowledge or authorization, HIT's name and telephone number appeared, along with a listing of home improvement services. Among the services listed was "roofing." Appearing at the bottom of the advertisement was the following: "Licensed & Insured KOSALKA CGC 019787." Among the homeowners who had signed the above-described preprinted form contracts that HIT's salesperson's brought back, for "office approval," to the HIT office in 1996 were the following three Port St. Lucie residents: Larkin Dunbar (whose residence was located at 114 Dorchester); Clara Masters (whose residence was located at 246 Northeast Mainsail); and Rita Maciuba (whose residence was located at 733 Southwest Curry Street). The Dunbar, Masters and Maciuba contracts were dated February 19, 1996, May 28, 1996, and June 14, 1996, respectively. On the top of the Dunbar contract, in large stylized lettering, were the words "Home Improvement Inc." On the top of both the Masters and Maciuba contracts, in the same large stylized lettering, were the words "Home Improvement by Richard Kosalka." The Dunbar contract provided for the "furnish[ing of] the following materials, improvements, labor, and/or services" for the price of $3,600.00: the installation of a "new fascia and soffit system," the "repair [of the] master bedroom walls," the "repair [of] roof leaks," and the "paint[ing of the] gutter and garage door to match [the] fascia and soffit." No work was performed pursuant to this contract (nor is there any evidence that the homeowner made any payments for the performance of such work). The Masters contract was signed by Ms. Masters and Vince Ketchum, the HIT salesperson who had negotiated with her at her home. At the time she signed the contract, Ms. Masters was approximately 85 years of age. The contract provided for the "furnish[ing of] the following materials, improvements, labor, and/or services": installation of a "new roof" with "shingles to be selected by Clara Masters" for $3,255.00; the repair and painting of the "interior ceiling" for $627.00; and the "pressure clean[ing] and paint[ing] of [the] exterior of [the] home" and the driveway for $2,628.00. After his mother had signed the contract (and before any contract work had started), Ms. Masters' son, Joseph Masters, who lived next door to his elderly mother and looked after her business affairs, telephoned Respondent, who was an acquaintance of his. Mr. Masters asked Respondent to come by his mother's home to discuss the contract his mother had signed. Respondent went to Ms. Masters' home as Mr. Masters had requested. Upon Respondent's arrival, Mr. Masters informed Respondent that he (Mr. Masters) and his mother wanted the roof work to be done first. Respondent and Mr. Masters then discussed the matter further. Their discussions lead to the contract being modified to provide that only the roof work would be done (for a price of $3,255.00). The modification was made by lining out the other work listed in the contract, having Ms. Masters put her initials next to the line-outs, and adding contract language to reflect that the total contract price was $3,225.00 for the "roof only." Before leaving Ms. Masters' home, Respondent told Mr. Masters that he would have "some roofers [come] around to get the estimate on the roof." Mr. Masters assumed that these roofers would be subcontractors. Respondent brought the modified contract back to the HIT office. The Sunday after his visit to Ms. Masters' home, Respondent's wife suffered a stroke and was hospitalized. Respondent remained in the hospital with his wife and stayed there for three days. David Harris is a licensed general, residential, and roofing contractor and the owner of David Harris Construction (DHC). He has had his roofing license (for work in Martin and St. Lucie Counties) since 1992. In 1996, and for several years prior thereto, Respondent used Mr. Harris as a subcontractor for concrete and roofing work (mostly on new residential construction). At the time he reviewed the modified Masters contract, Mr. Thomas was familiar with Mr. Harris and DHC. Mr. Harris used HIT to follow up on leads generated by DHC's Yellow Pages' advertising. Moreover, Respondent had spoken favorably to Mr. Thomas about Mr. Harris as a roofer. Accordingly, Mr. Thomas telephoned Mr. Harris and told him about the Masters re-roofing project. On the Monday after Respondent's wife was admitted to the hospital, DHC workers went to Ms. Masters' home and began to remove the old roof. A young child (around nine or ten years of age) was on the roof with the workers. Some time later that day, while the workers were still removing the old roof, Mr. Masters came by his mother's house and noticed the workers and the child on the roof. Mr. Masters was dissatisfied with the manner in which the workers were acting and with the quality of their work. He therefore "chased" them off the roof and told them to leave the property. Mr. Harris was not at the site at the time the workers (and the child) were directed to leave, but he later telephoned Mr. Masters "want[ing] to know what was wrong." Mr. Masters told Mr. Harris why he had removed the workers from the property. He further advised Mr. Harris to "not come back anymore," explaining that he would hire another roofer to complete the job (which he subsequently did). Mr. Masters assured Mr. Harris that payment would be made for the work that had been done by DHC on the roof that day, but there was no agreement reached as to the amount of the payment. A few days later, Mr. Harris telephoned Mr. Masters again, inquiring "if he [Mr. Harris] was going to get paid." In response to this inquiry, Mr. Masters replied that he was "going to get with [Respondent] to figure out the amount of work that was done" and he (Mr. Masters) would pay Mr. Harris accordingly. Subsequently (some time on or after June 4, 1996), Mr. Masters received in his mailbox a copy of an "invoice" (in an unstamped, unsealed envelope) from DHC which read as follows: DAVID HARRIS CONSTRUCTION TO: Home Improvement Date: 6/4/96 RE: 246 NE Mainsail, PSL (Masters) DESCRIPTION: Labor & Materials 1 DAY PRICE: $863.39 Thereafter, Mr. Masters telephoned Respondent and told Respondent about the bill he had received (the amount of which Mr. Masters thought was excessive). In response to Mr. Masters' telephone call, Respondent, on June 18, 1996, visited with Mr. Masters and his mother at the latter's home. There, Mr. Masters showed Respondent the copy of the "invoice" he (Mr. Masters) had received. Based upon his knowledge of the prices that Mr. Harris typically charged, Respondent determined that a fair price for the work that the DHC workers had done on Ms. Masters' roof was only $480.00. Respondent so advised Mr. Masters and then telephoned Mr. Harris (from Ms. Masters' home) in an effort to persuade Mr. Harris to accept that amount. Respondent and Mr. Harris, however, were unable to reach agreement on the matter. After hanging up, Respondent told the Masters that he and Mr. Harris "would work something out and get it straightened out." Thereafter, at Respondent's suggestion, Ms. Masters made out and signed a check to "Home Improvement" in the amount of $480.00, which she gave to Respondent, who told the Masters that he would "take care of" the matter. In addition to giving the Masters this assurance, Respondent also provided Ms. Masters, in exchange for the $480.00 check, a receipt marked "paid in full" and a release of lien signed by him. In the release of lien, Respondent identified himself as "Richard Kosalka of Home Improvement, a Florida corporation doing business in the State of Florida." Respondent delivered Ms. Masters' $480.00 check to Mr. Thomas and asked Mr. Thomas to issue an HIT check in that same amount payable to DHC. Mr. Thomas did as he was requested by Respondent. The $480.00 check signed by Mr. Thomas was received and deposited by DHC. Nonetheless, thereafter, on August 19, 1996, DHC filed a claim of lien for $383.39 (the difference between $480.00 and the amount of DHC's original invoice) on Ms. Masters' home. The $383.39 (which DHC claimed it was owed) was never paid; however, DHC took no action with respect to the lien and the lien expired. The Maciuba contract was signed by Ms. Maciuba and Bob Andrews, the HIT salesperson who had negotiated with her at her home. It provided for the "furnish[ing of] the following materials, improvements, labor, and/or services" for the price of $3,600.00: "Tear off existing shingles- Replace rotten facia and roof sheets. Shingle color: Shasta white (lightest color). 4 lengths of ridge vents." HIT contacted DHC to do the work described in the contract. DHC obtained a re-roofing permit for the work on June 21, 1996. DHC hired Jerry Poston to work as subcontractor on the project. Mr. Poston and his crew worked on the project during the period from June 21 through July 29, 1996. Mr. Harris also made an appearance at the work site. Ms. Maciuba made an initial down payment of $300.00, which she gave to Mr. Thomas. Subsequently, after the work had been completed, she gave Mr. Thomas three checks that were payable to herself and which she endorsed. Two of these checks were for $1,000.00, and the remaining check was for $800.00, for a total payment, including the down payment she had made, of $3,100.00, which was less than the $3,600.00 contract price. Ms. Maciuba refused to pay any more because of the damage she claimed her property had sustained as a result of re-roofing work. On August 23, 1996, Mr. Harris filed a claim of lien on Ms. Maciuba's home, in which he alleged that, "in accordance with a contract with Home Improvement Time, Inc.," he had "furnished labor, services or materials" in the amount of $2,565.00, and had not received any payment therefor. On October 15, 1996, Mr. Harris executed a Sworn Statement of Account acknowledging that he was owed only $1,873.18 inasmuch as the "contractor" had made direct payments to Mr. Harris' suppliers, thereby reducing the amount he (Mr. Harris) was owed. Ms. Maciuba, in small claims court, sought to have the lien removed. On November 19, 1996, a mediation session was held at which Ms. Maciuba, Mr. Harris, Mr. Thomas, and Respondent were present. At the session, Mr. Harris agreed to remove the lien in exchange for $1,450.00, of which amount $800.00 was to be paid by Ms. Maciuba and the remaining $650.00 was to be paid by HIT. That very same day, November 19, 1996, Ms. Maciuba and HIT made these agreed-upon payments, and Mr. Harris executed and recorded a release of lien. Ms. Masters and Ms. Maciuba filed complaints that were investigated by Edward Garcia, an investigator with the Department. As part of his investigation, Mr. Garcia spoke with Respondent by telephone on November 7, 1996. Respondent told Mr. Garcia that HIT was a telemarketing business owned by Mr. Thomas; he (Respondent) hired HIT to solicit business for him; he (Respondent) advertised as "Home Improvement" in order to "play off the name of Home Improvement Time"; the contract with Ms. Maciuba was for a re-roofing project and he (Respondent) subcontracted the work to DHC; and he (Respondent) was not aware, that he was not authorized, as a licensed general contractor, to enter into contracts for re-roofing projects. Mr. Garcia also visited HIT's office and met with Mr. Thomas. During this meeting, Mr. Thomas signed a document agreeing not to violate the provisions of Chapter 489, Part I, Florida Statutes, by engaging contracting activities without an appropriate license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order (1) finding Respondent guilty of the violations alleged in Counts I, II, V, VIII, and IX of the Administrative Complaint; (2) disciplining Respondent for having committed these violations by requiring him to pay a fine in the amount of $1,000.00 and to reimburse the Department for all reasonable costs associated with the Department's investigation and prosecution of these charges; and (3) dismissing the remaining counts of the Administrative Complaint. DONE AND ENTERED this 29th day of September, 1999, in Tallahassee, Leon County, Florida. 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 29th day of September, 1999.
The Issue Whether Petitioner is entitled to licensure as a Certified Building Contractor or Residential Contractor.
Findings Of Fact Petitioner is a 44-year-old male. He was born and raised in Tallahassee, Florida. He is a high school graduate. Petitioner passed the examination for licensure as a certified building contractor. This is a comprehensive examination that is designed to test knowledge in all aspects of the construction industry. Passing it is a mandatory prerequisite before an application can be considered by the Florida Construction Industry Licensing Board (FCILB). However, passing the examination does not eliminate or modify the statutory or rule experience requirements. Petitioner submitted his application for a certified building contractor license on or about March 24, 2008. By letter of May 2, 2008, the Department of Business and Professional Regulation requested additional information. Petitioner then provided a revised affidavit from Chad Banks, a certified building contractor, and a letter from the Maintenance Construction Chief of the City of Tallahassee’s Gas Utility Department, each containing more detailed information about Petitioner’s experience. These items were received by Respondent on May 23, 2008. It is not clear whether Petitioner requested and was granted a continuance of his appearance with regard to the instant license application at an earlier FCILB meeting, but on January 15, 2009, the full Board considered Petitioner’s application at a duly-noticed public meeting in Altamonte Springs, Florida. At that time, Petitioner was present. During his appearance before the full Board on January 15, 2009, Petitioner was very nervous, but he believes that one of the Board members offered him, or at least asked him if he would accept, a residential contractor’s license in place of a certified building contractor’s license, and that he answered that he would accept such a license, only to have that “offer and acceptance” voted down by the full Board. However, Petitioner does not rule out the possibility that the vote taken at the meeting was actually with regard to denying the certified building contractor license for which he had applied. There is no evidence that Petitioner has ever submitted an application for a residential contractor’s license. By a Notice of Intent to Deny, dated March 16, 2009, and mailed March 24, 2009, the FCILB formally denied Petitioner’s application for a certified building contractor License stating: The applicant failed to demonstrate the required experience, pursuant to Section 489.111, Florida Statutes and Rule 61G4- 15.001, Florida Administrative Code. Petitioner seeks licensure as one who has four years of active experience and who has learned the trade by serving an apprenticeship as a skilled worker or as a foreman, at least one year of which experience is as a foreman. Petitioner has never worked as a full-time employee of a commercial or residential contractor. Petitioner got early experience in construction working around eight rental properties owned by his father. He performed light carpentry, deck construction, general handyman repairs, and some plumbing and roofing when he was approximately 16 to 21 years of age. However, Petitioner essentially relies on a work history that includes working as a plumber for Jim Bennett Plumbing from 1987 to 1993; as a foreman for the City of Tallahassee Gas Department from 1995 to 2005; as a “contractor trainee” for Chad Banks from 1999 to 2002; as having volunteered as superintendent for Gulf Coast Painting from 2003 to 2007; and as a maintenance man for the City of Tallahassee Parks Department from 2006 to 2007. Petitioner’s dates of employment overlap, because his volunteer experience was acquired mostly on weekends, holidays, in hours after he had already completed a full work day for the City of Tallahassee, or on “time off” from his regular employments with the City. Petitioner is a hard worker and wanted to learn the construction trade, but his volunteer construction jobs were intermittent, and he provided no clear assessment of the number of hours per week or month that he put in for any of them. From 1987 to 1993, Petitioner worked for Jim Bennett Plumbing. He started as a plumber’s helper and progressed to greater responsibility. In that position, he acquired a wide range of experience in plumbing for some residential, but mostly commercial, buildings. During this period, he also did some light cosmetic carpentry and tile work to restore building parts damaged by the installation of plumbing apparatus. Much of Petitioner’s construction experience relates to his association with Chad Banks, who testified that at all times material, Petitioner had “hands on” experience, working for him and that Petitioner was a competent worker. Petitioner has never been a “W-2 employee” of Mr. Banks, but there is no specific statutory or rule requirement that the experience necessary to qualify for the certified building contractor or the residential contractor license must be as a “W-2 employee.” Cf. Conclusions of Law. Mr. Banks was not licensed as a certified building contractor until 1999. Petitioner did some work for Mr. Banks when Mr. Banks was working as a sub-contractor on commercial projects (specifically one or more Super-Lube buildings) prior to Mr. Banks obtaining his certified building contractor’s license in 1999. Most of this employment involved pouring concrete slabs. Petitioner claims experience in “elevated slabs,” limited to the construction of a single Super-Lube building, which Petitioner described as laying a slab below ground level for mechanics to stand on and an at-ground level slab for cars to drive onto the lift for an oil change. He described no truly “elevated” slabs or floors above ground level on this project, and Petitioner’s and Mr. Banks’ testimony was vague as to Petitioner’s responsibilities on this project and as to the project’s duration. The general contractor on this project for whom Mr. Banks “subbed” did not testify. From this, and other employments, Petitioner has experience pouring foundation slabs, but he has never worked on a foundation slab in excess of 20,000 square feet. Petitioner also assisted in Mr. Banks’ construction of some rental sheds, but it is unclear if this was before or after Mr. Banks was licensed. Petitioner worked for Mr. Banks d/b/a C. B. Construction, Inc., in a volunteer capacity on exclusively residential construction from 1999 to 2002, and again from February 2004 to March 2008. During these periods, Petitioner and Mr. Banks considered Petitioner a “contractor trainee,” but Petitioner’s work for Mr. Banks was neither exclusive nor continuous; both men described it as “volunteer” work; and some of it seems to have amounted to Petitioner's looking over work done personally by Mr. Banks and having Mr. Banks explain to him, via a plan sheet, what Mr. Banks had already done personally. There is no evidence that during this time frame Petitioner worked for Mr. Banks as a foreman. Petitioner has the ability to “read” many types of construction “plans.” Petitioner has experience with slab footers, but he has not constructed red iron structural steel qualified for framing a building. Petitioner has experience in decorative masonry walls, but he has not constructed structural masonry walls of a type that would support framing members of a building or other vertical construction. Petitioner also worked for the City of Tallahassee as a “W-2” employee, mostly as a foreman overseeing a crew of four workers, from 1995 to 2005. In that capacity, he worked on a church, but the church itself had been constructed several years previously, and Petitioner’s crew’s contribution was tying-in several gas lines during a roadway development project and keeping all the utilities up and running during the project, while a private contractor worked on the church. With regard to the foregoing project and many others for the City Utilities Department, Petitioner directed a crew that built sidewalks and gutters or that tied these features into existing roadways and driveways. In that capacity, he often coordinated activities with residential contractors. Over his ten years’ employment with the City Utilities, Petitioner also directed a crew that exclusively created underground vaults for the housing and shelter of utility apparatus. However, none of his endeavors for the City Utilities involved vertical structural construction for floors above ground. Petitioner has also built new gas stations for the City’s natural gas vehicles, and has erected pre-fab utility buildings, including much slab work, but the nature and duration of these endeavors is not sufficiently clear to categorize them as qualifying him for the certified building contractor license. Most of Petitioner’s experience with the City, as substantiated by the letter of the City Utilities Maintenance Construction Chief, Mr. Lavine, has been in the construction of driveways, roads, gutters, storm drains, sidewalks, culverts, underground utility structures, plumbing and gas lines. While it is accepted that Petitioner has worked on such projects, this type of work more properly falls in the categories of “plumbing contractor” or “underground utility contractor” and Mr. Lavine was not demonstrated to have any certification/licensure in a category appropriate to Petitioner’s application. (See Conclusions of Law.) Sometime after 2005, for approximately a year, Petitioner was employed by the City of Tallahassee Parks and Recreation Department and in that capacity participated in at least one construction of a dugout and a concession stand at one of its playgrounds. He also did repairs on several dugouts and concession stands, but this latter work would not be classified as “structural” construction. Petitioner’s experience in precast concrete structures is limited to his work with gas utility structures, but does not include work on precast tilt walls, which are the type of walls that are constructed off-site, delivered to the job site, placed on the slab foundation, and raised in place as part of an on- going commercial building project. Petitioner has no experience in column erection. “Columns” in this context within the construction trade refers to supports for upper level structural members, which would entail vertical construction. Petitioner’s experience in concrete formwork does not include experience in the structurally reinforced concrete formwork that would be used in vertical buildings, such as all floors above ground level. FCILB’s Chairman testified that the Board interprets the type of experience necessary to comply with the statutes and rules, more particularly Florida Administrative Code Rule 61G4- 15.001(2), to be “structural experience.” There is no affirmative evidence that Petitioner has ever notified the Clerk of the Agency that he was relying on a right to a default license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Construction Industry Licensing Board enter a Final Order denying Petitioner’s application for licensure as a Certified Building Contractor. DONE AND ENTERED this 24th day of November, 2009, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 24th day of November, 2009.
Findings Of Fact At all times relevant hereto, Respondent, Victor L. Contessa, (Contessa) was licensed as a real estate broker in the State of Florida, having been issued license Number 0016808. The last license issued to Respondent was as a broker, c/o Cavalier Southern Realty, Inc., 4343 Ridgewood Avenue, Port Orange Florida, 32019. At all times material hereto, Contessa was owner and president of Cavalier Development and Building Corporation. In 1983, Charles Hill purchased a lot in Port Orange, Florida, more particularly described as Lot 29, Phase One, Cypress Grove. In June of 1983, Charles Hill wished to have a house constructed on his lot. Mr. Hill spoke with Contessa regarding the construction of the house. After reviewing plans with Contessa, Hill entered into a written Building Agreement with Contessa whereby Contessa agreed to construct a house for Hill for $50,000.00, plus extras. At the time he signed the Building Agreement, Hill believed that Contessa was a licensed building contractor. He based this belief upon representations made by Contessa to Hill that Contessa was a licensed building contractor. The Building Agreement, dated June 4, 1983, listed Cavalier Development and Building Corporation as the contractor and was signed by Contessa as president of Cavalier Development and Building Corporation. Contessa was not a licensed building contractor when he signed the Building Agreement. In order to have the house constructed as set forth in the Building Agreement, it was necessary for Contessa to hire a licensed building contractor. Contessa contacted Donald E. Welch, a licensed residential contractor. Contessa represented to Welch that Contessa's company, Cavalier Development and Building Corporation, was the owner of Hill's lot. Based on that representation, Contessa entered into a Building Agreement with Welch to have Welch construct the house for $42,500.00. Welch did not become aware that the lot in question was owned by Hill and not by Contessa or Cavalier Development and Building Corporation until October 25, 1983, when Welch attempted to pull a building permit. At that time, Contessa advised Welch that the owner's name was Charles B. Hill. Hill paid Contessa a total of $45,000.00 for construction of the house. In January 1984, Welch slowed construction on the house because Contessa did not pay him his construction draws when they were due. Until this time, Contessa had instructed Hill not to discuss construction with any of the workmen on the site, but to bring any concerns directly to Contessa. Additionally, Contessa had instructed Welch not to deal directly with Mr. Hill, but instead to discuss all construction matters directly with Contessa. Because of the slowdown in construction, Hill and Welch discussed the matter between themselves. It was at this time that Hill learned that Welch was the licensed contractor, and not Contessa. Hill then began dealing directly with Welch. Welch completed the construction upon payment of $8,842.00 paid directly by Hill to Welch. Contessa, in the name of Cavalier Development and Building Corporation filed a mechanics lien as a contractor against the Hill property on May 16, 1984.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Professional Regulation, Division of Real Estate, enter a final order suspending the license of Victor L. Contessa for a period of five (5) years and assessing an administrative fine against Victor L. Contessa in the amount of $1,000.00. DONE AND ENTERED this 13th day of August, 1985, at Tallahassee Florida. DIANE K. KIESLING 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 13th day of August, 1985. COPIES FURNISHED: James H. Gillis, Esquire Staff Attorney Department of professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32801 Victor L. Contessa Box 566 Port Salerno, Florida 33492 Victor L. Contessa 101 Santa Lucia Avenue West Palm Beach, Florida 33492 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harold Huff, Director Division of Real Estate 400 West Robinson Street Orlando, Florida 32801
