The Issue Whether the Petitions for Formal Administrative Proceeding should be dismissed.
Findings Of Fact In July of 1997 a notice of an application for an environmental resource permit (ERP) was issued in conjunction with a project identified as 4-061-0164A-ERP. This project proposed to develop six single-family homesites and required the filling of 5.79 acres of wetlands. The project was reviewed by the permitting authority, the District, and was recommended for approval. On February 20, 1998, the District sent a written notice of Intended District Decision on permit application 4-061-0164A- ERP to interested persons. Such persons include those who have requested notice of all District ERP projects or those who have requested notice of District ERP projects by county which, in this instance, is Indian River County. Additionally, on February 25, 1998, a notice of the District's intended agency action appeared in a newspaper published at Vero Beach, Indian River County, Florida. Such notice provided, in pertinent part: The District gives notice of its intent to issue a permit to the following applicant(s) on March 10, 1998: HORSE'S HEAD, LTD. ATTN: CHARLES M. BAYER, JR., 1 JOHN ISLAND DRIVE, VERO BEACH, FL 32963, application #4-0610164A-ERP. The project is located in Indian River County, Section 13, Township 32 South, Range 39 East. The ERP application is for CONSTRUCTION OF FIVE RESIDENTIAL LOTS, WHICH WILL RESULT IN THE FILLING OF 5.79 ACRES OF MANGROVE SWAMP WITHIN THE EXISTING JOHN'S ISLAND DEVELOPMENT (LTVC PROPERTY). The receiving waterbody is the INDIAN RIVER LAGOON * * * The District will take action on each permit application listed above unless a petition for administrative proceeding (hearing) is filed pursuant to the provisions of sections 120.569 and 120.57, F.S., and section 40C- 1.511, F.A.C. A person whose substantial interests are affected by any of the Districts [sic] proposed permitting decisions identified above may petition for an administrative hearing in accordance with sections 120.569 and 120.57, F.S. or all parties may reach a written agreement on mediation as an alternative remedy under section 120.573. Choosing mediation will not adversely affect the right to a hearing if mediation does not result in a settlement. The procedures for pursuing mediation are set forth in section 120.573, Florida Statutes, and rule 28-106.111 and 28-106.401-.405 Florida Administrative Code. Petitions must comply with the requirements of Florida Administrative Code Rule 40C-1.521 and be filed with (received by) the District Clerk, located at District Headquarters, Highway 100 West, Palatka, Florida 32177. Petitions for administrative hearing on the above application(s) must be filed within fourteen (14) days of publication of this notice or within nineteen (19) days of the District depositing notice of its intent in the mail for those persons to whom the District mails actual notice. Failure to file a petition within this time period shall constitute a waiver of any right such person may have to request an administrative determination (hearing) under sections 120.569 and 120.57, F.S., concerning the subject permit application. Petitions which are not filed in accordance with the above provisions are subject to dismissal. Because the administrative hearing process is designed to formulate final agency action, the filing of a petition means that the Districts [sic] final action may be different from the position taken by it in this notice of intent. Persons whose substantial interests will be affected by any such final decision of the District to become a party to the proceeding, in accordance with the requirements set forth above. (Emphasis added) On February 27, 1998, the District sent Horse's Head, Ltd., the permit applicant, a notice of intended agency action to issue the ERP to fill approximately 5.79 acres of wetlands on John's Island in the Town of Indian River Shores, Indian River County, Florida, to create five residential lots in an existing residential development commonly known as "John's Island." Subsequent to the foregoing, a group of homeowners whose properties are adjacent to the applicant's site timely challenged the intended agency action. This group, designated in this record as the Prosser petition, sought an administrative hearing and the matter was forwarded to the Division of Administrative Hearings for formal proceedings. The Prosser petition was assigned to Administrative Law Judge Linda Rigot as DOAH Case No. 98-1784. The Prosser challengers and Horse's Head eventually reached an amicable resolution. Horse's Head agreed to modify the subject application by reducing the filling of wetlands on the project site; by reducing the number of proposed residential lots; by undertaking additional mitigation activities on Hole-in- the-Wall Island, which is owned by Horse's Head; and by placing additional acreage under a conservation easement previously created for the subject permit application. Pursuant to the stipulated settlement agreement referred to in the previous paragraph, Horse's Head agreed to request, and did request, the District to modify its ERP application as follows: Reduce the wetland impacts for Parcel A (see composite Exhibit "A" to Exhibit "4") from ? 2.45 acres to ? 1.03 acres. Reduce the wetland impacts to Parcel B (see Exhibit "B" to Exhibit "4") from ? 3.34 acres to ? 1.63 acres. Eliminate the northernmost of the proposed lots in Parcel B, thus reducing the total number of lots proposed for development in Parcel B from 4 to 3 lots. Create an additional 1.77 acres of wetlands by removing the Florida Power & Light ("FP&L") roadbed/power line easement on Hole-in-the-Wall Island and scraping down 0.6 acres of spoil banks within the conservation easement. Perform the rotational impoundment management "RIM" mitigation plan previously proposed for Hole-in-the-Wall Island, with the exception that clearing of nuisance exotic species on the perimeter dike has been deleted. Incorporate the majority of the northernmost of the four lots originally proposed in Parcel B into the revised and expanded area subject to a conservation easement for that parcel. Place approximately 78 acres under a conservation easement consistent with the terms and provisions of the conservation easement previously created for this application. Pursuant to the stipulated settlement agreement, the Prosser petition was voluntarily dismissed on or about February 25, 1999, and Case No. 98-1784 was closed by Judge Rigot on or about March 1, 1999. Prior to the dismissal of DOAH Case No. 98-1784, Petitioner, Edna Wieler, sent a letter to the District to contest the instant application. The Wieler letter, dated October 1, 1998, included a collection of signatures of those who reportedly opposed the applicant's proposed development. Petitioner Wieler had not timely filed a petition to challenge the applicant's project in March of 1998. Moreover, Petitioner Wieler had not sought to intervene in the proceeding which had been timely filed (DOAH Case No. 98-1784). Petitioner Wieler sent a second letter to protest the instant ERP on October 20, 1998. Because of the Wieler letters in opposition to the project, the District added Petitioner Wieler's name to the data base of those persons claiming an interest in the subject permit application. Mark Gronceski is an environmental specialist employed by the District responsible for reviewing ERP applications for projects located in Indian River County. As such he was instrumental in the agency's review of the instant project. On December 15, 1998, Kenneth Oertel wrote to Mr. Gronceski with regard to the subject project. Mr. Oertel's letter provided: On behalf of the Town of Indian River Shores I would request that you send me a copy of the final staff report prepared for the above-referenced application and any notice that this matter will be placed on the Governing Board agenda. I would like to be furnished with these documents in sufficient time to evaluate whether a petition, pursuant to Chapter 120, F.S., will be filed. On February 12, 1999, the District sent a written notice of Intended District Decision on Permit Application 4-061- 0164A-ERP to Interested Parties including Petitioners Wieler and Kenneth Oertel. On February 18, 1999, a second notice of the District's intended action in this case was published in the Vero Beach Press-Journal. This notice mirrored the first notice published. It did not reference the modifications to the permit application which had been reached through the settlement of DOAH Case No. 98-1784. On March 2, 1999, the District staff sent the applicant a notice of intended agency action to approve the Horse's Head ERP permit as modified pursuant to the above-referenced stipulated settlement agreement. On March 5, 1999, the Town of Indian River Shores and Wieler filed Petitions for Formal Administrative Proceeding challenging the District's intent to approve the Horse's Head ERP permit as modified by the stipulated settlement agreement. The District uses three forms of notice regarding ERP applications. When an ERP application is submitted, notice of receipt of such application is posted in each District service center. Further, a copy of the posted notice is provided by mail to persons or organizations who have requested notice of ERP applications. These "interested persons" receive notice based upon District-wide interests or for a requested county interest. The District is aware that some persons simply want notice of all ERP applications. Organizations in this category include the Florida Audubon Society and the Pelican Island Audubon Society as well as others. The District considered Petitioner Wieler and Mr. Oertel "interested persons" to whom notice of the application should be sent. When the District is prepared to agenda an ERP application for Board intended action, the District publishes a notice for the public of the proposed action and sends a second notice to the interested persons in its data base. This second type of notice provides a point of entry for interested persons to contest the proposed action. A third type of notice used by the District is termed a "sunshine notice." This notice makes interested persons aware of items on a Board agenda. It is sent to all persons in the data base but does not offer a point of entry for agenda items. It merely lets interested persons know what topics will be on the Board agenda. In this case, the District erroneously issued the second type of notice to the interested persons in its data base. Consequently, instead of the sunshine notice which should have been issued to Petitioners, they received the second type of notice. Petitioners claim a point of entry based upon the language of the second notice. The District Board did not formally determine Petitioners are entitled to be "parties" to an administrative review of the subject project. The issuance of the notice to Petitioners was no more than a clerical oversight. None of the Prosser group who timely challenged the applicant's project have supported Petitioners' efforts in this matter. The modified permit application as currently endorsed by the District and requested by Horse's Head does not constitute a substantial deviation from the original permit application noticed in February 1998. Petitioners have stipulated that the modified permit application is less impacting than the original design.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District issue a enter a final order dismissing the instant Petitions. DONE AND ENTERED this 7th day of June, 1999, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 7th day of June, 1999. COPIES FURNISHED: Mary Jane Angelo, Esquire Charles A. Lobdell, III, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Timothy P. Atkinson, Esquire Kenneth G. Oertel, Esquire Oertel, Hoffman, Fernandez & Cole, P.A. 301 South Bronough Street Fifth Floor Post Office Box 1110 Tallahassee, Florida 32302-1110 William L. Hyde, Esquire Gunster, Yoakley, Valdes-Vauli & Stewart, P.A. 215 South Monroe Street, Suite 830 Tallahassee, Florida 32301 Henry Dean, Executive Director St. John's River Water Management District Post Office Box 1429 Palatka, Florida 32178-1492
The Issue Whether Respondent committed the offenses set forth in the Administrative Complaints and Amended Administrative Complaints and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Respondent was licensed by Petitioner as a certified residential contractor, having been issued license number CR C040917. He has been licensed since March 16, 1987. Respondent was the qualifying agent of KM Homes, Inc. (KMH) from June 10, 1995 through March 13, 1997, more than one year but less than two years. On or about February 3, 1997, KMH filed a voluntary bankruptcy petition under Chapter 7 in the U.S. Bankruptcy Court, Southern District of Florida, Case No. 97-30498, with an estimate of assets of less than $50,000.00 and an estimate of liabilities of between $1 million and $10 million. The petition was signed by Kenneth H. Maltz, as president of KMH. On or about February 4, 1997, the next day, Kenneth H. Maltz and his wife, Susan Maltz, filed a joint voluntary bankruptcy petition under Chapter 7. Case No. 01-3827PL On or about April 28, 1996, KMH contracted with Daniel L. Simons and Carol L. Stefanski for the sale of a lot to Simons and Stefanski and for construction of a house on the lot. The contract price for the lot was $45,000.00 and for the construction of the home was $141,000.00, totaling $186,000.00. Respondent's license number did not appear in the contract. In accordance with the contract, Simons and Stefanski made the following payments to KMH: on or about April 28, 1996, $5,000.00; on or about August 21, 1996, $40,000.00; and on or about August 30, 1996, $42,229.60 and $747.00, through their lender, First Federal Savings of the Palm Beaches, pursuant to an August 21, 1996, mortgage loan of $128,000.00. The payments totaled $100,976.60. KMH applied for a building permit from Martin County to build the home for Simons and Stefanski. Respondent's license number appeared on the application. The building permit was never obtained. Beginning on or about August 27, 1996, and at various times thereafter, until approximately January 9, 1997, the lot was cleared and fill was delivered to the lot by KMH's subcontractor, Tideway Construction Company, Inc. (Tideway). The work by Tideway was the only work performed by KMH pursuant to the contract with Simons and Stefanski. KHM did not pay Tideway and Tideway recorded a lien on the lot for $4,084.00. KMH failed to remove Tideway's lien. On or about November 23, 1997, Tideway filed suit to foreclose its lien. Sometime in May 1998, Tideway released the lien in exchange for payment from Simons and Stefanski in the amount of 65 percent of the lien amount. Simons and Stefanski's lender paid the 65 percent from additional funds the lender loaned to Simons and Stefanski to enable them to complete their home. Tideway wrote off the remaining 35 percent. KMH never explained to Simons and Stefanski why it did not complete their home. KMH's trustee in the bankruptcy never offered to complete the work. Simons and Stefanski never fired KMH, never denied KMH access to the property to perform work, and never refused to pay KMH monies due under the contract. Simons considered KMH to have abandoned the job. Simons and Stefanski filed a proof of claim in KMH's bankruptcy for an unsecured non-priority claim in the amount of $58,000.00. They received nothing from the bankruptcy action. In the latter part of 1998, Simons and Stefanski had their home completed by another contractor, Murex, for $143,270.00. The house that Murex completed for Simons and Stefanski was essentially the same house that KMH was to construct, except that the roof structure was different and the garage and back porch were a little larger. KMH never provided Simons and Stefanski with notification of the Construction Industries Recovery Fund. Simons and Stefanski never had any direct dealings with Respondent personally. They attempted to sue Respondent but were unsuccessful. As of November 15, 2001, Petitioner's costs of investigation and prosecution for Case No. 01-3827PL, excluding costs associated with an attorney's time, totaled $457.88. Case No. 01-3828PL On or about June 6, 1996, KMH contracted with Carol Morris for construction of a house on a lot owned by Morris. The contract price for the construction of the house was $287,940.00. Respondent's license number did not appear in the contract. In accordance with the contract, Morris made the following payments to KMH: on or about February 28, 1996, $1,000.00; on or about June 10, 1996, $27,000.00; and on or about August 2, 1996, $109,240.00. The payments totaled $137,240.00. Morris obtained a mortgage loan in the amount of $150,000.00 from First Bank of Florida to finance part of the contract price. On or about September 17, 1996, KMH applied for a building permit from Palm Beach Gardens to construct the home for Morris. Respondent's license number appeared on the application. On or about September 26, 1996, the building permit was approved and issued, bearing building permit number 28644. From approximately September to December 1996, KMH performed work pursuant to the contract and thereafter, did not perform any more work on the home. KMH failed to complete the construction of Morris' home. KMH never explained to Morris why it did not complete her home. KMH's trustee in the bankruptcy never offered to complete the work. Morris never fired KMH, never denied KMH access to the property to perform work, and never refused to pay KMH monies due under the contract. Morris considered KMH to have abandoned the job. KMH's subcontractors/material suppliers recorded liens on Morris' property. The subcontractors/material suppliers recorded liens were as follows: on December 12, 1996, Tideway for $8,438.00; on January 16, 1997, Buckeye Plumbing, Inc. (Buckeye Plumbing) for $3,676.00; on January 22, 1997, Tarmac Florida, Inc. (Tarmac) for $6,296.40; on January 23, 1997, Electrical Express, Inc. (Electrical Express) for $450.00; on February 13, 1997, E. M. Brandon, Inc. (Brandon) for $2,164.00; on February 18, 1997, Tom Rawn Masonry, Inc. (TR Masonry) for $16,454.00; and on April 3, 1997, Spacerace Enterprises, Inc. (Spacerace) for $7,850.00. Morris paid KMH for all the work or materials pertaining to the liens. KMH failed to remove any of the liens. Morris never paid any monies directly to the lien holders to remove any of the liens. However, Morris' lender, First Bank of Florida, assisted her with the resolution of the liens, including allowing its attorney to act as Morris' representative in resolving the liens. In May 1998, Tideway released its lien in exchange for payment by Morris' lender in the amount of 65 percent of the lien amount. Tideway wrote off the remaining 35 percent. The evidence is unclear as to whether Morris was obligated to repay the lender. Buckeye Plumbing, Electrical Express, TR Masonry, Inc., and Spacerace never received any money on their liens and the entire amount of their liens was a complete loss. Tarmac sued to foreclose on its lien, but ultimately dismissed its lawsuit and wrote off the amount of its lien as a bad debt. No testimony was presented regarding the final result of the lien held by Brandon. Morris obtained the services of another contractor, Home Work Group, Inc. (Home Work), to complete the construction of her home. Morris used the original mortgage loan of $150,000.00, a shortfall loan from the same lender in the amount of $45,000.00, and her savings of approximately $43,000.00, to pay Home Work. On or about September 1998, Home Work completed the construction of Morris' house, which was essentially the same as the house which was to be constructed by KMH. Morris received notification of KMH's bankruptcy by mail. She filed a complaint with the bankruptcy court objecting to KMH's discharge. The bankruptcy court eventually dismissed Morris' complaint. Sometime during the year 2000, Morris received $900.00 from KMH's bankruptcy. KMH never provided Morris with notification of the Construction Industries Recovery Fund. During the transaction between KMH and Morris, she knew Respondent as the construction manager for KMH. As of November 15, 2001, Petitioner's costs of investigation and prosecution for Case No. 01-3828PL, excluding costs associated with an attorney's time, totaled $478.70. Case No. 01-3829PL On or about February 23, 1996, KMH contracted with Fred W. Connell, Jr., and his wife, Celia M. Connell, for construction of a house on a lot that the Connells would purchase separately, not as a part of the contract. The contract price for the construction of the house was $258,870.00, which included $18,000.00 for a swimming pool. Respondent's license number did not appear in the contract. In accordance with the contract, the Connells made the following payments to KMH: on or about February 23, 1996, $5,000.00; on or about February 29, 1996, $30,000.00; on or about November 7, 1996, $8,687.00; on or about November 25, 1996, through their lender, First Bank of Florida, pursuant to a mortgage loan, $33,541.00; and on or about December 16, 1996, $24,393.00. The payments totaled $101,621.00. KMH applied for a building permit from the City of North Palm Beach to construct the home for the Connells. Respondent's name and license number appeared on the application. On or about November 5, 1996, the building permit was approved and issued, bearing building permit number 96-01386. From approximately November to December 1996, KMH performed work pursuant to the contract and thereafter, did not perform any more work on the home. KMH failed to complete the construction of the Connells' home. In December 1996, the City of North Palm Beach issued a stop work order due to voids in the concrete walls that made, according to the City of North Palm Beach, the structure of the house unsafe. After the issuance of the stop work order, KMH failed to resume work on the house. KMH never explained to the Connells why it did not complete their home. The Connells fired KMH only after they received notification of KMH's filing for bankruptcy. KMH's trustee in the bankruptcy never offered to complete the work. The Connells considered KMH to have abandoned the job. KMH's subcontractors/material suppliers recorded liens on the Connells' property. The subcontractors/material suppliers and recorded liens were as follows: on January 16, 1997, Palm Beach Masonry (PB Masonry) for $12,125.00; on January 17, 1997, Sasso Air Conditioning, Inc. (Sasso Air) for $550.00; on January 22, 1997, Tarmac for $4,239.21; on January 28, 1997, CPS Construction, Inc. (CPS Construction) for $2,580.00; on January 31, 1997, Gulf Stream Lumber Company (Gulf Stream Lumber) for $19,461.00; and on March 24, 1997, Waste Management of Florida, Inc. (Waste Management) for $276.50. The Connells paid KMH for all the work or materials pertaining to the liens. KMH failed to remove any of the liens. The Connells paid its lender, First Bank of Florida, $25,000.00 in exchange for the lender's assistance in resolving the liens. PB Masonry and Waste Management never received any money on their liens and the entire amount of their liens was a complete loss. On or about August 4, 1997, Sasso Air gave a partial release of its lien in return for payment in the amount of $275.00. Tarmac's notice to owner was untimely, so it chose to not pursue foreclosure proceedings and instead wrote the amount of its lien off as a bad debt. On or about November 11, 1997, Gulf Stream Lumber released its lien in return for payment of $5,000.00 from First Bank of Florida. On May 13, 1997, CPS Construction released its lien in exchange for payment from the Connells in the amount of $2,500.00. On or about April 22, 1997, the Connells obtained the services of another contractor, Villafranca Design and Development, L.C. (Villafranca Design), to complete the construction of their home for $221,000.00. The Connells, through their lender, paid Villafranca Design. Their home was completed shortly before Christmas 1997. The house completed by Villafranca Design was essentially the same as the house which was to be constructed by KMH. Because KMH failed to complete the Connells' home, the Connells, their two children and their two dogs were forced to live on the Connells' boat and to store their furniture for almost a year. During that year, the Connells had to pay dockage fees to live on their boat and storage fees for their furniture. The Connells estimate that the difference in the contract price of their home with KMH and what they eventually paid for their home was conservatively $100,000.00. The Connells did not receive any money from KMH's bankruptcy. KMH never provided the Connells with notification of the Construction Industries Recovery Fund. During the transaction between KMH and the Connells, the Connells knew Respondent as someone who worked in the KMH office. As of November 15, 2001, Petitioner's costs of investigation and prosecution for Case No. 01-3829PL, excluding costs associated with an attorney's time, totaled $519.43. Case No. 01-3830PL On or about September 19, 1996, KMH contracted with William and Iceline Chang for the construction of a house on the lot owned by the Changs. The contract price for the construction of the home was $205,620.00. Respondent's license number did not appear in the contract. In accordance with the contract, the Changs made the following payments to KMH: on or about September 16, 1996, $10,000.00; and on or about October 10, 1996, $10,620.00. Pursuant to a change order for additional site preparation and fill, on or about October 7, 1996, the Changs paid KMH $9,400.00. On or about December 16, 1996, KMH applied for a building permit from Palm Beach County to build the Changs' home. Respondent's license number and Respondent's name as the qualifying agent for KMH appeared on the application. The building permit was never obtained due to KMH's failing to submit the construction plans to Palm Beach County's building department. On December 13, 16, and 19, 1996, the Changs' lot was cleared and fill was delivered to the lot by KMH's subcontractor, Tideway. The work by Tideway was the only work performed by KMH pursuant to the contract with the Changs. KHM did not pay Tideway and Tideway recorded a lien on the lot for $10,900.00. KMH failed to remove Tideway's lien. On or about June 6, 1997, Tideway agreed with the Changs to release the lien in exchange for payment from them in the amount of $9,810.00. The Changs paid Tideway in six monthly installments, June through November 1997, of $1,635.00. On or about November 26, 1997, Tideway gave the Changs a release of its lien. KMH never explained to the Changs why it did not complete their home. KMH's trustee in the bankruptcy never offered to complete the work. The Changs never fired KMH, never denied KMH access to the property to perform work, and never refused to pay KMH monies due under the contract. The Changs considered KMH to have abandoned the job. The Changs had their home completed by another contractor, Villafranca Design, for $203,500.00. Villafranca Design submitted the same construction plans to Palm Beach County's building department that KMH was to use to construct the Changs' home. On or about May 7, 1997, a building permit was issued, bearing permit number B97012080. The house that Villafranca Design completed for the Changs was essentially the same house that KMH was to construct. On or about February 26, 2000, the Changs received $643.29 from KMH's bankruptcy. KMH never provided the Changs with notification of the Construction Industries Recovery Fund. The Changs never had any direct dealings with Respondent personally. As of November 15, 2001, Petitioner's costs of investigation and prosecution for Case No. 01-3830PL, excluding costs associated with an attorney's time, totaled $714.11. Case No. 01-3831PL On or about July 30, 1996, KMH contracted with Harold and Jean Bell to sell them a lot and construct a house on the lot. The contract price for the lot was $53,000.00 and the construction of the home was $186,000.00, totaling $239,000.00. Respondent's license number did not appear in the contract. In accordance with the contract, on or about August 1, 1996, the Bells paid a deposit of $5,000.00 to KMH. On September 19, 1996, the Bells paid, as closing costs, $67,147.63 to Universal Land Title, Inc., which included the cost for the lot and an additional deposit toward construction in the amount of $13,600.00. Subsequently, the Bells received a deed to the lot. KMH never obtained a building permit to construct the house. On or about December 11, 1996, the Bells' lot was cleared and fill was delivered to the lot by KMH's subcontractor, Tideway. The work by Tideway was the only work performed by KMH pursuant to the contract with the Bells. KHM did not pay Tideway, and Tideway recorded a lien on the lot for $3,688.00. KMH failed to remove Tideway's lien. Tideway never received any money on its lien and the entire amount of its lien was a complete loss. KMH never explained to the Bells why it did not complete their home. KMH's trustee in the bankruptcy never offered to complete the work. The Bells never fired KMH, never denied KMH access to the property to perform work, and never refused to pay KMH monies due under the contract. The Bells considered KMH to have abandoned the job. The Bells had their home, with extras, completed by another contractor, Villafranca Design, for approximately $208,000.00. On or about August 2, 2000, the Bells received $996.95 from KMH's bankruptcy. KMH never provided the Bells with notification of the Construction Industries Recovery Fund. On October 1, 2002, Mr. Bell obtained a civil judgment against KMH in the amount of $24,199.64, plus costs of $264.75; prejudgment interest of $21,664.88; and attorney's fees of $2,395.00, totaling $48,524.27. The Bells never had any direct dealings with Respondent personally. As of November 15, 2001, Petitioner's costs of investigation and prosecution for Case No. 01-3831PL, excluding costs associated with an attorney's time, totaled $305.84. Case No. 01-3832PL On or about May 26, 1996, KMH contracted, in a revised contract, with Erol and Yildiz Aksoy for the sale of a lot and construction of a house on a lot. The contract price for the lot was $58,000.00 and construction of the house was $242,000.00, totaling $300,000.00. The revised contract entered into evidence at hearing was incomplete. No determination could be made as to whether Respondent's license appeared in the revised contract. In accordance with the contract, the Aksoys made the following payments to KMH: on or about October 28, 1994, $1,000.003; on or about June 5, 1996, $23,000.00; on or about August 14, 1996, $12,545.00; on or about October 4, 1996, $21,800.00; on or about October 17, 1996, $1,323.00; on or about November 2, 1996, $21,800.00; on or about November 20, 1996, $7,123.00 and $21,800.00; on or about November 22, 1996, $21,800.00; on or about December 13, 1996, $21,800.00; and on or about January 2, 1997, $21,800.00 and $5,000.00. The payments totaled $180,791.00. On or about July 26, 1996, KMH executed and delivered a deed to the Aksoys for the lot. KMH performed work pursuant to the contract, but only performed 55 percent to 60 percent of the construction contracted for. After January 1997, KMH failed to perform any further work on the Aksoys' home. KMH failed to complete the construction of Aksoys' home. KMH never explained to the Aksoys why it did not complete their home. KMH's trustee in the bankruptcy never offered to complete the work. The Aksoys never fired KMH, never denied KMH access to the property to perform work, and never refused to pay KMH monies due under the contract. The Aksoys considered KMH to have abandoned the job. The Aksoys filed a proof of claim in KMH's bankruptcy for an unsecured non-priority claim in the amount of $85,000.00. Sometime in the years 2000 or 2001, they received $918.00 from the bankruptcy action. KMH's subcontractors/material suppliers recorded liens on the Aksoys' property. The subcontractors/material suppliers and recorded liens were as follows: on January 8, 1997, Buckeye Plumbing for $2,570.00; on January 14, 1997, J. W. Hodges Drywall Textures, Inc. (Hodges Drywall) for $3,500.00; on January 15, 1997, Griffin & Wilson Stucco, Inc. (GW Stucco) for $6,040.00; on January 16, 1997, Gallina Electric, Inc. (Gallina Electric) for $3,732.00; on January 17, 1997, Sasso Air for $2,925.00; on January 21, 1997, K. D. Installation, Inc. (KD Installation) for $2,789.00; and on February 5, 1997, Macshmeyer Concrete Company of Florida, Inc. (Macshmeyer Concrete) for $5,814.00. The Aksoys paid KMH for all the work or materials pertaining to the liens. KMH failed to remove any of the liens. The Aksoys paid the lien holders to remove the liens, as follows: on or about February 18, 1997, $2,570.00 to Buckeye Plumbing; on or about April 7, 1997, $1,400.00 to Hodges Drywall, with the remaining unpaid amount ($2,100.00) being a loss for the company; on or about August 6, 1997, $7,760.10 to GW Stucco, which included additional monies for attorney's fees; on or about March 12, 1997, $1,866.00 to Gallina Electric; on or about April 7, 1997, $2,975.00 to Sasso Air; $1,500.00 to KD Installation (date of payment unknown); on or about March 12, 1997, $2,616.00 to Macshmeyer Concrete. The Aksoys also paid for work for which another KMH subcontractor, Spacerace Enterprises, Inc., claimed that KMH had failed to pay. On or about February 18, 1997, the Aksoys obtained the services of another contractor, Villafranca Design, to complete the construction of their home. The Aksoys paid Villafranca Design $145,250.00. In or around May 1997, Villafranca Design completed the construction of the Aksoys' house, which was essentially the same as the house which was to be constructed by KMH. KMH never provided the Aksoys with notification of the Construction Industries Recovery Fund. The Aksoys never had any direct dealings with Respondent personally. As of November 15, 2001, Petitioner's costs of investigation and prosecution for Case No. 01-3828PL, excluding costs associated with an attorney's time, totaled $606.48. Case No. 01-3833PL On or about December 11, 1995, KMH contracted with Milo and Jerolene Glass for construction of a house on a lot owned by the Glasses. The contract price for the construction of the house was $395,795.00. Respondent's license number did not appear in the contract. In accordance with the contract, the Glasses made the following payments to KMH: on or about November 13, 1995, $1,000.00; and on or about December 11, 1995, $39,079.00. The payments totaled $40,079.00. On or about May 21, 1996, KMH applied for a building permit from Palm Beach County to construct the home for the Glasses. Respondent's name as the qualifying agent for KMH and license number appeared on the application. Sometime thereafter in 1996, the building permit was approved and issued, bearing building permit number B96019588. From approximately November 1996 to January 1997, KMH performed work pursuant to the contract, but thereafter, did not perform any further work on the home. KMH failed to complete the construction of the Glasses' home. At the time KMH stopped working on the Glasses' home, a substantial amount of work remained to be completed. Furthermore, much of KMH's work had to be repaired or corrected. KMH never explained to the Glasses why it did not complete her home. KMH's trustee in the bankruptcy never offered to complete the work. The Glasses never fired KMH, never denied KMH access to the property to perform work, and never refused to pay KMH monies due under the contract. The Glasses considered KMH to have abandoned the job. KMH's subcontractors/material suppliers recorded liens on the Glasses' property. The subcontractors/material suppliers and recorded liens were as follows: on January 17, 1997, Sasso Air for $925.00; on January 23, 1997, Electrical Express for $750.00; and on January 28, 1997, R J G Masonry, Inc. (RJG Masonry) for $8,353.99. KMH failed to remove any of the liens. The evidence is unclear as to whether the Glasses paid KMH for all the work or materials pertaining to the liens. The Glasses paid to remove the liens. The Glasses paid the following: $925.00 to Sasso Air for which they received a final waiver of lien dated July 8, 1999; on or about February 14, 1997, $750.00 to Electrical Express for which they received a release of lien dated June 2, 1997; and on or about January 24, 1997, $8,353.99 to RJG Masonary. The Glasses did not obtain the services of another contractor to complete the construction of their home. Contractors whom they approached were very reluctant or unwilling to take over the project. Finally, the Glasses, who had prior experience as owners of other construction projects, became their own contractors and completed their home. They also received the assistance of a contracting firm, but the Glasses handled all the disbursements of funds to the suppliers for labor and materials. By September 2000, the Glasses had substantially completed their home and were living in it. At the time of the hearing, they had sold the house and moved to another location in Florida. The Glasses estimate that they expended $1,239,487.78 in the construction of their home. They maintain that this cost does not include approximately $80,000.00 that the Glasses claim that their original lender paid to KMH without their authorization. The amount paid by the Glasses exceeds the contract price because (1) KMH underbid the job; (2) the Glasses spent substantial sums to repair or correct KMH's work, which the Glasses estimate conservatively to be more than $200,000.00; and (3) the Glasses spent substantial sums on upgrades of contract allowance items. The Glasses received approximately $1,000.00 from KMH's bankruptcy. KMH never provided the Glasses with notification of the Construction Industries Recovery Fund. After the bankruptcy, Mrs. Glass contacted Respondent and requested the construction plans for the home. Respondent indicated that he did not have the plans. Mrs. Glass contacted Respondent again and he indicated that he may be able to locate the plans. Subsequently, Respondent contacted the Glasses and indicated that he had located the plans. The Glasses went to Respondent's place of business to retrieve the plans. After providing the plans, Respondent requested the Glasses to hire him to complete their home. The Glasses declined Respondent's offer because they considered Respondent's cost estimate to be too high and because of Respondent's association with KMH. As of November 15, 2001, Petitioner's costs of investigation and prosecution for Case No. 01-3833PL, excluding costs associated with an attorney's time, totaled $628.33. Case No. 01-3834PL On or about December 8, 1995, KMH contracted with Suzanne Beck for construction of a house on a lot that Beck would acquire at a later date (in 1996), not as a part of the contract. The contract price for the construction of the house was $133,500.00. Respondent's license number did not appear in the contract. In accordance with the contract, Beck made the following payments to KMH: on or about December 8, 1995, $5,000.00; on or about July 31, 1996, $8,350.00 and 5,643.09; on or about August 7, 1996, $5,030.88; on or about September 4, 1996, $12,051.05; on or about September 18, 1996, $12,051.05; on or about October 1, 1996, $12,051.05; on or about October 11, 1996, $12,051.05; on or about November 7, 1996, $12,051.05; and on or about November 26, 1996, $12,051.05 and $12,051.05. The payments totaled $108,381.32. KMH applied for a building permit from the Town of Jupiter to construct the home for Beck. Respondent's name and license number appeared on the application as the contractor. On February 12, 1996, the building permit was approved and issued, bearing building permit number 96-29588. From approximately August to December 1996, KMH performed work pursuant to the contract and thereafter, did not perform any more work on the home. KMH failed to complete the construction of the Beck's home. KMH never explained to Beck why it did not complete her home. Around the end of December 1996 or in January 1997, Beck notified KMH that she was taking over the project. Progress by KMH had been slow and Beck discovered that KMH had closed the doors of its business for a second time and was not paying its subcontractors. Beck considered KMH to have abandoned the job. She obtained an owner's building permit and completed the project, making payments directly to the suppliers of labor and materials. On February 7, 1997, Beck obtained a certificate of occupancy from the Town of Jupiter. KMH's subcontractors/material suppliers recorded liens on the Beck's property. The subcontractors/material suppliers and recorded liens were as follows: on January 6, 1997, American Aluminum and Insulation FireProofing Company, Inc. (American Alum.) for $385.00; on January 6, 1997, Buckeye Plumbing for $2,625.00; on January 14, 1997, Hodges Drywall for $8,280.00; on January 14, 1997, Rizzo Tile & Marble, Inc. (R Tile & Marble) for $1,870.70; on January 15, 1997, James M. Webster d/b/a Rain Flow of South Florida (Rain Flow) for $75.00; on January 17, 1997, K. D. Installation, Inc. (KD Installation) for $520.40; on January 17, 1997, Q. C. Cabinet Systems, Inc. (QC Cabinets) for $3,207.00; on January 17, 1997, Paul Temple Painting (PT Painting) for $2,534.75; on January 17, 1997, Sasso Air for $3,360.00; on January 28, 1997, James Velix Bobcat Service (Bobcat Service) for $1,450.00; on February 4, 1997, Tideway for $279.00; on February 7, 1997, Florida Builder Appliances, Inc. (Builder Appliances) for $2,936.20; on February 7, 1997, Mc D Sprinklers, Inc. (McD Sprinklers)for $1,275.00; on February 11, 1997, Builder Direct Carpet Sales (Direct Carpet) for $1,959.26; and on February 12, 1997, Pollard Electric, Inc. (Pollard Electric) for $3,640.00. Beck paid KMH for all the work or materials pertaining to the liens. KMH failed to remove any of the liens. Beck paid to remove the liens as follows: on or about June 18, 1997, $2,625.00 to Buckeye Plumbing; on or about March 9, 1999, $10,125.00 to PT Painting, Hodges Drywall, R Tile & Marble, and Direct Carpet; and on or about October 19, 1999, $3,360.00 to Sasso Air. Hodges Drywall released its lien for $4,000.00 and the remaining amount of its lien was not paid, which represents a loss to the company. Builder Appliances, Rain Flow, McD Sprinklers, QC Cabinets, and Tideway did not receive payment from any source and the entire amounts of their liens were complete losses. After Beck took over construction of her home from KMH, she spent $19,203.00 to complete the home. Beck did not receive any money from KMH's bankruptcy. KMH never provided Beck with notification of the Construction Industries Recovery Fund. During the transaction between KMH and Beck, she met with Respondent at the job-site on one occasion to discuss some aspects of the project with which she was dissatisfied. Beck had expressed her dissatisfaction in a letter to KMH's owner. As of November 15, 2001, Petitioner's costs of investigation and prosecution for Case No. 01-3834PL, excluding costs associated with an attorney's time, totaled $534.57.
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: Dismissing the following counts: Count I of Case Nos. 01-3828PL, 01-3831PL, and 01-3833PL. Count IV of Case No. 01-3832PL. Finding that Glenn L. Mustapick committed all other violations in the counts of Case Nos. 01-3827PL, 01-3828PL, 01-3829PL, 01-3830PL, 01-3831PL, 01-3832PL, 01-3233PL, and 01-3834PL. Imposing a $25,000.00 administrative fine. Requiring Respondent to pay restitution not exceeding $25,000.00. Assessing $4,245.34 in costs for investigation and prosecution, excluding costs associated with an attorney's time, by the Department of Business and Professional Regulation, Construction Industry Licensing Board. Revoking the certified residential license, CR C040917, of Glenn L. Mustapick. DONE AND ENTERED this 3rd day of May, 2002, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 3rd day of May, 2002.
Findings Of Fact 2. On April 16, 2008, the Department conducted an investigation and found Respondent conducting business at 1301 Seminole Blvd., Building C, Ste. 126, Largo, FL 33770. 3. At the time of the investigation Sal Cannatella was the general manager of the Respondent responsible for the operations at the foregoing business location. 4. Sixteen of Respondent’s employees at the above location made commercial telephone solicitations on behalf of Respondent. 5. At the time of the investigation Respondent was not registered with the Department. Respondent also was not licensed by the Office of Financial Regulation under Chapters 516 or 520, Part II, Florida Statutes, nor was Respondent a consumer finance lender supervised by any other governmental entity. 1 Filed May 29, 2009 1:42 PM Division of Administrative Hearings. 6. During the investigation Respondent produced a consumer finance license (#510102) and a retail installment seller license (#510522), both in the name of Interface Management, Inc. (“Interface”), and claimed to be an affiliate of Interface. Both licenses were issued by the Office of Financial Regulation. Respondent also produced a purported contract with an entity known as “Beginning Again, Inc.” 7. Respondent was a not a subsidiary of nor controlled Interface or Beginning Again. Conclusions of Law 8. The Department has authority to enforce Chapter 501, Part IV, Florida Statutes, the Florida Telemarketing Act (“Act”) and to enter this Settlement Agreement. §§120.57(4) and 501.612, Fla. Stat. (2007). 9. Respondent claimed it was exempt from the Act under §501.604(7), Florida Statutes, which states: 501.604 Exemptions.--The provisions of this part, except ss. 501.608 and 501.616(6) and (7), do not apply to: (7) Any supervised financial institution or parent, subsidiary, or affiliate thereof. As used in this section, "supervised financial institution” means any commercial bank, trust company, savings and loan association, mutual savings bank, credit union, industrial loan company, consumer finance lender, commercial finance lender, or insurer, provided that the institution is subject to supervision by an official or agency of this state, of any state, or of the United States. For the purposes of this exemption, "affiliate’ means a person who directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, a supervised financial institution. 10. Chapter 516, Florida Statutes, states in pertinent part: 516.02 Loans; lines of credit; rate of interest; license.-- (1) A person must not engage in the business of making consumer finance loans unless she or he is authorized to do so under this chapter or other statutes and unless the person first obtains a license from the office. $16.05 License.— (3) Only one place of business for the purpose of making loans under this chapter may be maintained under one license, but the office may issue additional licenses to a licensee upon compliance with all the provisions of this chapter governing issuance of a single license. 11. Chapter 520, Part II, Florida Statutes, states in pertinent part: §20.32 Licenses,-- (1) A person may not engage in or transact the business of a retail seller engaging in retail installment transactions as defined in this part or operate a branch of such business without a license, except that a license is not required for a retail seller whose retail installment transactions are limited to the honoring of credit cards issued by dealers in oil and petroleum products licensed to do business in this state. 12. | Whether Respondent claimed to be a “supervised financial institution” or an affiliate of Interface or Beginning Again, Respondent was required to have a separate license for its business location under Chapters 516 or 520, Part II, Florida Statutes. By failing to do so, Respondent was not exempt from the Act and was required to be licensed. §§501.604(7), 501.605(1), Fla. Stat. (2007). Settlement Terms 13. To resolve these matters without further legal proceedings, the Department and Respondent expressly agree as follows: a. Respondent shall pay a total of Two Thousand Five Hundred and No/100 Dollars ($2,500.00). Payment is due upon Respondent’s execution and return of this Settlement Agreement. b. Respondent shall not engage in commercial telephone solicitation without first being properly exempt or licensed under the Act. c. If Respondent is found engaging in commercial telephone solicitation without being properly licensed or exempt under the Act, Respondent admits such conduct constitutes an immediate threat to the safety and welfare of Florida consumers and consents to the immediate entry and service of an order by the Department requiring Respondent to cease and desist all activities in violation of the Act. Respondent waives all contested issues of material fact under §120.57(1), Florida Statutes, and consents to proceedings only under §120.57(2), Florida Statutes. In such proceedings, if Respondent is found in violation of the Act, Respondent consents to the entry of a final order imposing administrative fines of $10,000.00 per violation. 14. This Settlement Agreement shall be construed in accordance with Florida law. 15. Each party shall bear their own costs and fees. 16. Venue for any action arising from this Settlement Agreement shall be in Leon County, Florida. 17. This Settlement Agreement constitutes the entire agreement between the Department and Respondent, including anyone acting for, associated with, or employed by either of them, concerning only the matters specified above and supersedes any prior discussions, agreements, or understandings; there are no promises, representatioris, or agreements between the parties other than as set forth herein. No modification or waiver of any provision shall be valid unless a written amendment to the Settlement Agreement is completed and properly executed by the parties. 18. This is an agreement of settlement and compromise, recognizing the parties may have different or incorrect, information, understandings, or contentions as to facts and law, with each party compromising and settling all such information, understandings, and contentions as to fact and law, so that no misunderstanding or misinformation shall be grounds for rescission of this Settlement Agreement. 19. Respondent expressly waives in this matter its rights to any hearing under Chapter 120, Florida Statutes, the making of findings of fact and conclusions of law by the Department, and all other proceedings, including appeals, to which Respondent may be entitled regarding any and all issues raised in this case. 20. This Settlement Agreement is and shall be deemed jointly drafted and written by all parties to it and shall not be construed or interpreted against any party. 21. To the extent any provision of this Settlement Agreement is prohibited by law for any reason such prohibition shall not affect any other provision of this Settlement Agreement. 22. — This Settlement Agreement shall inure to the benefit of and be binding on each party’s successors, assigns, heirs, administrators, representatives, and trustees. 23. All times stated herein are of the essence of this Settlement Agreement. 24. Approval Authority: This Settlement Agreement shall be valid and binding on the Department only upon acceptance and approval of its terms as shown through the execution below by the Department’s authorized representative. Florida Department of Agriculture and Consumer Services LW Il Eric H. Miller, Senior Attorney 2005 Apalachee Parkway Tallahassee, FL 32301 (850) 410-3775 (850) 410-3797 (facsimile) Date: [iw reeg National Consumer Services, Inc. SS _ La Print Name: SAL Te ANNATELLA Off Date: Yor © a
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A.
Other Judicial Opinions OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT'S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER NO. DCA09-GM-383 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and corre copies have been furnished to the persons listed below in the manner described, on this Ve Paula Ford Agency Clerk Florida Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 day of December, 2009. U.S. Mail: The Honorable D. R. Alexander Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-3060 Timothy J. McFarland, Esquire Gulf County Attorney 326 Reid Avenue Port St. Joe, Florida 32456-1826 Hand Delivery: Matthew Davis, Esquire Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Blvd. Tallahassee, Florida 32399
