The Issue The issue is whether Respondent undertook to act as a contractor without a license as charged in the Administrative Complaints, and if so, what disciplinary action should be taken.
Findings Of Fact Pursuant to Section 20.165, the Division of Professions is a subordinate unit of the Department of Business and Professional Regulation (the Department). The Department provides administrative support, including prosecutorial support to the Construction Industry Licensing Board (the Board), which is also located within the Department. Mr. Grandmont is not currently licensed as a State Registered or State Certified Contractor in this state, nor has he ever been licensed by the Board. Mr. Grandmont's last known address is 355 China Berry Circle, Davenport, Florida. He was provided notice of the hearing at that address, and at 7733 Park Road, Charlotte, North Carolina 28210, which is the address he used when demanding a hearing on disputed facts in two of these cases. In DOAH Case No. 06-3279, he provided no address in his demand for a hearing. All attempts by U. S. Mail to notify Mr. Grandmont of the hearing, were returned. Mr. Grandmont is deemed to have known of the time, date, and place of the hearing, and is deemed to have waived his appearance at the hearing. On November 11, 2005, subsequent to Hurricane Wilma, Robert L. Coe, of Lake Worth, Florida, was contacted by Mr. Grandmont, who offered to repair his damaged mobile home. He provided a written estimate of $10,500. The estimate contained a list of 11 items requiring repair, and stated that he would accomplish the repair of them. He demanded a $4,200 down payment, which Mr. Coe provided in a draft drawn on Fidelity Cash Reserves, and dated November 11, 2005. Mr. Coe never saw Mr. Grandmont again. The repairs set forth in the written estimate were not accomplished. The draft, however, was negotiated by Mr. Grandmont. On November 12, 2005, subsequent to Hurricane Wilma, Joseph Webster, of Lake Worth, Florida, was contacted by Mr. Grandmont, who offered to repair his damaged residence. Mr. Grandmont discussed charging $13,500 in return for repairing Mr. Webster's residence. After negotiations, Mr. Grandmont agreed to do it for $11,500. No written estimate or contract was prepared. Mr. Grandmont demanded $5,750 payment in advance. Mr. Webster rounded off the down payment to $6,000 and presented Mr. Grandmont an official check of the Taunton Federal Credit Union, of Taunton, Massachusetts, for that amount. The check was negotiated by Mr. Grandmont, but the promised repairs were not accomplished. On November 4, 2005, subsequent to Hurricane Wilma, Ella Arseneau, of Lake Worth, Florida, was contacted by Mr. Grandmont, who offered to replace her roof. He provided an estimate of $5,500 in return for repairing Ms. Arseneau's residence. He demanded that she pay $3,500 in advance, which Ms. Arseneau provided by presenting Mr. Grandmont a check for $3,500, drawn on an account in Wachovia Bank. The check was negotiated by Mr. Grandmont, but the roof was not repaired as promised. Mr. Coe is 78 years of age, Mr. Webster is 85, and Ms. Arseneau is 77.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation impose a fine upon Clifford Grandmont in the amount of $30,000. DONE AND ENTERED this 28th day of November, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 28th of November, 2006. COPIES FURNISHED: Brian A. Higgins, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Clifford Grandmont 7733 Park Road Charlotte, North Carolina 28210 Nancy S. Terrel, Hearing Officer Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Simone Marstiller, Secretary Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Respondent is a licensed general contractor in Florida, and was the qualifying contractor for Hallmark Builders, Inc. at all times relevant to this proceeding. In November, 1982, Hallmark Builders contracted with Mr. and Mrs. Carl Mayer to, construct a residence in Melbourne Florida. Mr. Mayer, who is not an architect or builder, prepared his own plans. Since there was no third party lender, Mayer determined when Respondent would be paid according to the draw schedule. There were numerous difficulties presented to Respondent in his efforts to construct this residence. Mayer was uncooperative and often difficult to locate since he was a part- time resident of Florida, moved frequently, and had no telephone. The principal disagreement concerned the roof design, which Respondent contends was improper. Mayer initially refused to agree to modifications suggested by Respondent and would not retain an architect to clarify his intended design. Other disagreements led to Mayer's withholding of scheduled draw payments. Mayer refused to pay the first draw on completion of the foundation, even though it had been approved by the Melbourne Building Department. By August, 1983 Respondent's firm had completed work to the approximate point of the third draw, but had still received no draw payments. By this time Mayer had retained an attorney, and several unproductive meetings had been held regarding difficulties in completing the project. Mayer subsequently contacted the Melbourne Building Department to complain that the roof was being constructed according to plans not filed with the Building Department. This complaint was verified and a stop work order was placed on the project on August 10, 1983. The evidence adduced at the hearing established that Respondent had changed Mayer's roof design to one he believed was correct, but had failed to obtain Mayer's approval or file the change with the Building Department. The change made by Respondent was, according to his testimony, necessary to correct Mayer's design deficiency. Mayer's testimony to the contrary is rejected. Mayer refused to retain an architect as suggested by Respondent, and demonstrated no expertise in building design. Respondent's testimony on this point is, therefore, accepted. Further efforts to resolve disputes were unsuccessful. On February 1, 1984, Hallmark Builders, Inc. filed a claim of lien on the Mayer property for $28,559. Mayer counter-claimed, and the suits were ultimately settled through payment of $21,000 by Mayer to Hallmark Builders, Inc. The second matter at issue in these proceedings involved a contract between a Mr. and Mrs. Morgan and Hallmark Builders, Inc. Respondent was not involved in this transaction which was cancelled prior to the start of construction. Mr. and Mrs. Morgan made a $1,000 deposit on their contract but, in the view of Hallmark Builders, Inc., did not make a good faith effort to secure a mortgage loan. Hallmark therefore sued to retain the $1,000 deposit. The dispute was settled through negotiations whereby Hallmark received $500 of the $1,000 deposit. There was no showing of impropriety in this transaction by either Hallmark Builders, Inc. or Respondent.
Recommendation From the foregoing, it is RECOMMENDED that Petitioner enter a Final Order dismissing the Administrative Complaint. DONE and ENTERED this 13th day of June, 1985 in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 13th day of June, 1985. COPIES FURNISHED: H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 David H. Simmons, Esquire and T. Kevin Knight, Esquire DRAGE, DeBEAUBIEN, MILBRATH and SIMMONS Post Office Box 87 Orlando, Florida 32802 James Linnan, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The primary factual issue was whether the company which the Respondent had qualified was in fact the contractor on the job from which the allegations in the Amended Administrative Complaint arose. The Petitioner submitted post hearing findings of fact in the form of a proposed recommended order. To the extent that the proposed findings of fact have not been included in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being findings of fact.
Findings Of Fact The Respondent, Edward Ryan, is a certified building contractor holding license number C3 C006481 and was the qualifying agent for Behr Contracting, Inc. (thereafter "Behr Contracting"), at all times relevant to the allegations of the Amended Administrative Complaint. Behr Contracting was, and is a business engaging in, contracting, selling building materials, and mortgage brokerage. Its operations as a mortgage broker are now carried on under a separate corporation; however, at the time involved in these proceedings, its mortgage brokerage operation was carried out in the name of Behr Contracting, Inc. Willie Mae Williams resides at 1451 Northwest 92nd Street, Miami, Florida. In 1980, Ms. Williams had extensive modifications made to her house at the foregoing address. With regard to the work on her house, Ms Williams' initial contact was with S. J. (Jerome) Farmer. Farmer was an independent contractor who was doing home repairs in early 1980 to several homes close to the Williams home. He was not doing these jobs as an employee of Behr Contracting, and no evidence was introduced that at said time he was an employee of Behr Contracting. After he had already begun working on the Williams home, Farmer approached the Respondent and requested Respondent's assistance in helping him estimate additional repairs and modifications to Ms. Williams' home and assistance in obtaining the financing for this job. Farmer was not affiliated in any manner with Behr Contracting. The Respondent arranged for an estimator to assist Farmer in estimating the cost of the project and in obtaining financing for the project. (Testimony of Ryan, Tr. 58 et seq.) This estimator had two contract forms signed by Ms. Williams, one for financing and one for construction. These documents were identified by Ms. Williams and were received into the record. (See Petitioner's Exhibits 2 and 3.) Petitioner's Exhibit 2 is the contract between Behr Contracting and Ms. Williams for the financing of the modifications to the Williams house. Financing for the project was obtained through the mortgage brokerage operation of Behr Contracting and the money funneled through Behr Contracting to pay for materials purchased through Behr's building materials operation. Ms. Williams has made payments and is making payments as required under said contract to the finance company, Uni Credit of Jacksonville, Florida. Behr Contracting provided cabinets, windows and certain appliances, to include a dishwasher. The Respondent was at Ms. Williams' house approximately three times prior to the delivery of building materials from Behr Contracting. (Testimony of Ryan, Tr. 23.) On none of these occasions was the Respondent there as a building contractor qualifying Behr Contracting. At all times, Farmer was in charge of the project. (See testimony of Williams, Tr. 184.) Farmer was the contractor in fact. Subsequent to installation of the dishwasher, the Respondent was present at the Williams house often because of Ms Williams' complaints about the dishwasher. The Respondent replaced this dishwasher and had Ms. Williams' septic tank pumped in order to solve the drainage problem which was causing the dishwasher to malfunction. This was done to honor the warranty on the dishwasher. (Supra, Tr. 45-51.) A salesman for Behr Contracting gave Ms. Williams an estimate on both the contracting and on the financing for the modifications and remodeling of the Williams house. Under its business practices, Behr Contracting disapproved or rejected the contract for construction, yet approved the financing contract. Approval of a construction contract in the amount of the instant contract, over $11,000, would have required an officer's approval. (See testimony of Stanley Weiss, Tr. 21-28.) Although Ms. Williams identified her signature on the purported construction contract (Petitioner's Exhibit 3), she could not identify the signature appearing on the lefthand side of the page at the bottom of the contract in the area of "Agent" and "Officer." This signature also could not be identified by Stanley Weiss or Margaret Behr, officers of Behr Contracting. It was not the signature of Weiss, Ms Behr or the Respondent, who were the only officers of the corporation authorized to approve a contract of this amount at the time that this contract was prepared. This contract (Petitioner's Exhibit 3) was never accepted by Behr Contracting (See testimony of Weiss, Tr. 35.) Although a copy of Petitioner's Exhibit 3 was discovered by Weiss in the files of Behr Contracting, this was a photo copy given to Weiss by the Respondents who had received it from the Board's investigators when the Respondent first spoke to them about this case. (See page 8, deposition of Ryan taken September 17, 1982; see pages 3, 4 and 8, deposition of Weiss; testimony of Ryan, Tr. 70-75; testimony of Weiss, Tr. 10-12.) The Respondent's involvement in this matter was "limited to providing gratuitous advice to Farmer at Farmer's request on one occasion, concerning a broken major waste drain, and representing Behr Contracting who was a major supplier of materials and appliances for the job. It is specifically found that the Petitioner failed to establish the existence of a construction contract between Ms. Williams and Behr Contracting. Regarding the allegations that the Respondent abandoned the job, the Respondent caused the dishwasher supplied by Behr Contracting to be replaced under warranty service. The septic tank at the Williams house was pumped and cleaned at the request of Uni Credit in an attempt to solve the problem. Finally, over a year after the job had begun, the Respondent had the septic tank and drainfeild rebuilt and solved Ms. Williams' drainage problems. This last action was taken under threat of prosecution by the Board's investigators and was done in spite of the fact, which is uncontroverted, that the construction did not address modifications to the plumbing in the house. After the Respondent had taken these actions, Ms. Williams than wanted the cabinets and other work, which had been done by Farmer, replaced because of water damage caused by the drainage problem.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Amended Administrative Complaint against the Respondent, Edward Ryan, be dismissed. DONE and RECOMMENDED this 20th day of September, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 1983 COPIES FURNISHED: Michael J. Cohen, Esquire Kristin Building, Suite 101 2715 East Oakland Park Boulevard Fort Lauderdale, Florida 32206 Mr. Edward Ryan 19762 Bel Aire Drive Miami, Florida 33138 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
Findings Of Fact At all times material to this proceeding, the Respondent has been licensed as a residential contractor in the State of Florida, holding license number CR C022406, and was the licensed contractor qualifying Rothberg Homes, Inc. On or about May 21, 1986, the Respondent entered into a contract to build Mr. and Mrs. Frank Sargent a new home in Palm Harbor, Florida, for $95,670. The home was to be completed before November 15, 1986, so that the Sargents could qualify for a lower interest rate. The Respondent relied heavily on his construction superintendent, Frank Jackson, to accomplish the work in a timely and workmanlike manner. The Respondent was responsible primarily for selling contracts and for taking care of the company finances. To comply with the technical requirements of the contract, the Respondent had construction begin in July, 1986, with the clearing of the lot. But foundation footers were not dug and poured until about a month later, and construction proceeded at a slow pace (then it went on at all.) The Sargents registered numerous complaints to Jackson about the slow pace and some complaints to the Respondent about Jackson, but nothing was done to speed construction along. In October, 1986, the Sargents, who were on the job site daily, began hearing complaints from suppliers and subcontractors that the Respondent was slow paying them but was told that he eventually was coming through with the payments due. By November, the Respondent was not making payments at all in some cases. Also in October and November, Jackson was in the process of opening his own business (not construction-related) and was devoting less and less time to the Sargent job. November 15, 1986, approached, and it became obvious that the deadline would not be met. The Sargents and the Respondent met and agreed to extend the deadline one month to December 16. On December 11th, the Sargents again reminded the Respondent of the deadline and its importance to them, but the December 16 deadline also came and went with the house only about 70 percent complete. In December, Jackson quit altogether. The Sargents complained to the Respondent, who promised to replace Jackson but never did. Because the Respondent had stopped paying subs and suppliers, they refused to do any more work, and the Sargents wound up having to pay some of them out of their own pockets in order for work to continue. In March 1987, some of the subs and suppliers also filed claims of liens for unpaid work which the Sargents had to clear out of their own pockets in order to close the purchase of the house. Mr. Sargent himself did some of the work, some of which would have been warranty work if the Respondent had paid his bills on time, to save some additional expense caused by the Respondent's failure to keep current on his accounts with the subs and suppliers and to avoid some of the additional hassle of trying to persuade an unpaid sub or supplier to do warranty work. On March 16, 1987, the Sargents met with the Respondent to arrive at an accounting for purposes of the upcoming closing. They agreed that the Sargents should receive the last construction loan draw of about $9,500 to compensate them for payments they made that should have been made by the Respondent and that the Respondent still owed them $6,000, which the parties agreed would be the subject of a promissory note from the Respondent to the Sargents. (This does not even account for the Sargents being shortchanged when a three-foot roof overhang for which they had contracted turned out to be only a two-foot overhang.) The Respondent has paid the promissory note.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Construction Industry Licensing Board enter a final order finding the Respondent, Daniel S. Rothberg, guilty of violating Section 489.129(1)(h) and (m), Florida Statutes (1987), and imposing an administrative fine in the amount of $1,500. RECOMMENDED this 19th day of December, 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1988. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Daniel S. Rothberg 624 Charisma Drive Tarpon Springs, Florida 34689 Daniel S. Rothberg 196 Mayfair Circle Palm Harbor, Florida 34684 Warren A. Wilson, III, Esquire 2101 U.S. Highway 19 North Suite 201 Palm Harbor, Florida 33563 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Respondent is Glenn H. Carpenter, a certified general contractor licensed by Petitioner and holding license CG-C027848 at all times pertinent to these proceedings. His address of record is Lakeland, Florida. On June 3, 1986, G & H Construction, Inc., by and through Respondent submitted a document entitled "proposal" to Nestor Bardales with regard to proposed construction of a new home for Bardales. The document provided for a total construction price of $85,000 commencing with a $2,000 deposit and the balance of payment to be made to the construction company in accordance with bank draw provisions. Respondent received and deposited the $2,000 deposit in the construction company's corporate bank account. Bardales' construction lender, Anchor Mortgage Services, Inc., required the execution of a new contract between the construction company and Bardales. On July 23, 1986, a new contract was executed by Bardales and Respondent, on behalf of the construction company. That contract provided for construction at a price of $85,000 and a refund of the $2,000 deposit "upon receiving the fifth draw minus any additional expenses incurred at the owner's request not covered by plans or specifications." At the time of execution of both agreements, Respondent was a vice- president and the qualifier for the construction company. While there was a co- qualifier, David Hewlett, who provided Bardales the initial construction plans, Hewlett's license was in an inactive status. Hewlett, Respondent, and other company personnel were unaware that Hewlett's license as a co-qualifier had not been withdrawn. Bardales was unaware of contractor regulations and was not aware that the construction company had to comply with any requirements with regard to qualifying agents. Under terms of the agreement required between the parties by Anchor Mortgage Services, Inc., construction was to commence within 25 days of the recordation of a "notice of commencement" and conclude within six months. Recordation of the commencement notice could not occur under the agreement's terms until the construction lender's mortgage was recorded. The loan was closed on August 13, 1986. Respondent applied for the construction permit on August 26, 1986, on behalf of the construction company. The permit was issued on September 15, 1986. Thereafter, the company commenced construction under direction and supervision of Respondent. Disputes arose between the construction company and Respondent. On or about December 16, 1986, Respondent was fired as an employee by the company. The president of the construction company subsequently contacted Bardales and informed Bardales of the firing. The company president assured Bardales that the company would complete construction of Bardales' home in a timely manner. This was agreeable to Bardales. Bardales' construction lender had already paid the company $34,000 in addition to the company's receipt of Bardales' deposit of $2,000. After concluding the discussion with Bardales, the construction company president informed Respondent of the substance of that conversation. On December 17, 1986, an independent accountant, who also has the construction company for a client, typed and mailed letters from Respondent to Bardales' construction lender and the Hillsborough County Building Department. The letter to the construction lender stated that Respondent was no longer associated with the construction company and that any further communication in regard to the Bardales project should be directed to the construction company's president. Respondent stated in the letter to the building department that he was no longer the qualifier for the construction company and requested immediate removal of his name from the permit issued for the Bardales' project. No letter was sent to Bardales. The proof fails to establish any direct personal communication between Bardales and Respondent regarding his firing or termination of his services with regard to the Bardales project. Sometime after the beginning of 1987, Respondent learned that construction on the Bardales' project was continuing under the permit pulled by Respondent. Upon inquiry by Respondent, he determined that no record of his December 17, 1986 letter regarding termination of his employment and removal of his name as the company qualifier existed in the Hillsborough County Building Department records. Respondent went to the building department and executed a note in his own handwriting, dated February 20, 1987, informing appropriate building permitting officials that he was no longer a qualifier for the construction company and requesting cancellation of the permit for the Bardales project. Bardales was not contacted by Respondent, nor did Bardales give Respondent authorization to take this action. Respondent remained as a qualifier for the construction company until February, 1987, according to official records of the Department of Professional Regulation. Thereafter, David Hewlett's license was reactivated and he became the company's qualifier. On April 15, 1987, Hewlett pulled a second permit for the Bardales project. While the construction company continued work on the Bardales project after termination of Respondent's employment, disputes arose between the company and the homeowner, Bardales. There were some periods of time when no work was done. At one point, the construction company president even approached Respondent during April of 1987 about the possibility of Respondent resuming the Bardales project. Respondent refused. As a result of the difficulties between the construction company and Bardales, the construction company did not complete the project.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered dismissing the administrative complaint in this case. DONE AND ENTERED this 15th day of May, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 1989. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings 1.-4. Addressed. 5. The agreement with the construction lender prohibited construction prior to a certain event, then required completion within 6 months. See finding 5 above. Accepted in part, rejected in part as not supported by weight of the evidence. 6.-7. Addressed in part, remainder rejected as unnecessary. Notes of the hearing officer reflect that Billy Hood initiated communication with Bardales. Otherwise, this proposed finding is addressed. Rejected, cumulative. 10.-11. Incorporated by this reference. 12.-20. Rejected on basis of relevancy to charges. 22.-24. Addressed. 25. Rejected, not relevant to charges. 26.-28. Addressed. Respondent's Proposed Findings 1.-11. Addressed. COPIES FURNISHED: Jack Larkin, Esquire 806 Jackson Street Tampa, Florida 33602 W.R. Durrance, Esquire Post Office Drawer 6839 Lakeland, Florida 33807 Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201
