The Issue Whether or not the business Respondent was associated with exceeded the scope of his contractor's license concerning the type of work undertaken, as described in the Amended Administrative Complaint, thereby violating Sections 489.129(1)(j), 489.115(1) and 489.117(2), F.S.? Whether or not Respondent failed to properly supervise the job site activities on that job, thereby violating Sections 489.129(1)(m), (j); 489.119, and 489.105(4), F.S.? Whether or not Respondent committed gross negligence, incompetence, or misconduct in connection with said job in violation of Section 489.129 (1)(m), by failure to supervise the contracting activities of the contracting business he was responsible for, so that Jorge Otero, President of Deluxe Construction Co., could obtain a building permit, exceed the scope of Respondent's license, and perform work that exhibited numerous defects? BACKGROUND AND PROCEDURE At the commencement of formal hearing, the parties stipulated ore tenus that Paragraph 6 of the Amended Administrative Complaint would be further amended to read: The business Respondent was associated with exceeded the scope of his license concerning type of work, violating Section 489.129(1)(j); 489.115(1)(b); 489.117(2). Thereafter, they entered into certain stipulated facts which are reflected among additional facts as found in this recommended order. Petitioner presented the oral testimony of Lolv Jaramillo, Herbert Gopman, Jorge Otero, and Frank Abbott, and had admitted four exhibits. Respondent presented neither oral testimony nor offered any exhibit. No transcript was provided. Respondent late-filed its post-hearing proposals, but each party's proposed findings of fact have been considered and are ruled upon in the appendix to this recommended order, pursuant to Section 120.59(2), F.S.
Findings Of Fact At all times material, Respondent was a licensed certified building contractor in the State of Florida, holding license number CB C002799 and was listed as the sole qualifying agent for Deluxe Construction Company. Deluxe could have had more than one qualifying agent but it did not. Jorge Otero was the sole owner, officer, and director of Deluxe Construction Company (Deluxe). He is not now, and never has been, a licensed contractor. Deluxe was formed in 1986, and Otero operated the company out of his home. In August 1986, Deluxe contracted with Lolv Jaramillo to remodel the Jaramillo residence in Miami for $23,800. Prior to the Jaramillo job, Deluxe had remodeled or added to several other residences. On those jobs, Respondent signed the building permit applications brought to him by Otero and made periodic inspections of the work, but Respondent never accepted any compensation from Deluxe for his services as qualifying agent of the company. Respondent was employed full-time otherwise. Before the Jaramillo job, Otero had had similar relationships with other contractors. Prior to beginning construction, Respondent met the Jaramillos at their residence at the request of Otero to discuss the possibility of the Jaramillos arranging a second mortgage through the brokerage firm which was Respondent's regular full-time employer. The Jaramillos were not told, and were not aware, that Respondent was affiliated with Deluxe. They relied on no representations of Respondent in eventually selecting Deluxe to do their construction job. The eventual contract between the Jaramillos and Deluxe was not conditioned on borrowing from Respondent's regular employer, and, in fact, the Jaramillos did not borrow from Respondent or his employer and obtained their financing elsewhere. The Jaramillos eventually instructed Otero to begin work, which he did. Otero first obtained the necessary building permit by going to the building department, filling in Respondent's contractor's license number on the application there, and signing his own name as qualifier. When Otero signed for the building permit, Respondent was out of town. Otero did not inform Respondent in advance of what he was going to do nor did Respondent discover Otero had done this until much later. On all previous contracts, Respondent had signed the permit applications and made the inspections in the manner described in finding of fact 5, supra. Respondent had done nothing to encourage Otero to think he could obtain a building permit as he did for the Jaramillo job. After Deluxe began construction at the Jaramillos' home, Otero was the sole supervisor on the job. After the Jaramillos paid Deluxe $14,000 of the contract price, they became dissatisfied with the pace and quality of the work done by Deluxe and they terminated the contract. According to Harry Gopman, structural engineer, the work done by Deluxe contained violations of local construction codes, but there is no evidence that Otero, Respondent, or anyone associated with Deluxe was convicted or found guilty of any crime. The work undertaken by Deluxe included plumbing work which Respondent was not licensed to perform. The work done by Deluxe and subcontractors under its supervision contained deviations from acceptable industry practice, including rendering a major load-carrying girder useless by penetrating it for the insertion of an air duct for the central air-conditioning system; cutting a concrete doorway lintel for insertion of another air duct, thus destroying the structural integrity of that lintel; and creating a structural hazard by placing a flat roof on the rear addition which severely "ponded" in rainstorms. From the evidence as a whole, it may be inferred that Respondent originally knew he was the sole qualifying agent for Otero/Deluxe. Otero did not affirmatively tell Respondent he had another qualifying agent for the job. However, since Otero kept telling Respondent that the Jarmillos were still having trouble getting financing, it was reasonable for Respondent to believe a building permit was not needed and construction would not begin until financing was found. It was after the commencement of construction, but prior to the termination of the contract by the Jaramillos, that Otero finally informed Respondent that he had begun work on the Jaramillo residence. It is not clear whether Respondent knew that the building permit bore his license number until after the termination of the contract. Respondent never visited the Jaramillo job site during construction. Respondent did not monitor the company finances, did not review subcontractual agreements, did not review invoices from subcontractors and materialmen, and did not call for inspections on the Jaramillo job. There is unrefuted expert testimony by Frank Abbott, architect and licensed general contractor, that a qualifying agent should do the things, but there is insufficient evidence to show that Respondent had a clear understanding that such was his position for the Jaramillo job.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Construction Industry Licensing Board enter a final order dismissing all charges against Respondent. DONE and RECOMMENDED this 31st day of August, 1988, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 31st day of August, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0654 The following constitute rulings pursuant to S. 120.59(2), Florida Statutes, upon the parties' respective Proposed Findings of fact (FOF). Petitioner PFOF: 1-7, and 9-15. Accepted as modified to more exactly reflect the unrefuted testimony. 8. Accepted except for hearsay and subordinate and unnecessary material. Respondent's PFOF: 1-5, 7, 9. Accepted as modified to more exactly reflect the unrefuted testimony. 6. Rejected as stated. FOF 7 and 12 more correctly reflects the state of the record as a whole. 8. Rejected as stated because as stated it is a legal conclusion. A finding of fraud requires a finding of an affirmative intent which cannot be made upon the evidence presented. COPIES FURNISHED: David L. Swanson, Esquire Department of Professional Regulation 103 North Monroe Street Tallahassee, Florida 32399-0750 Lance Armstrong, Esquire 1035 Northwest 11th Avenue Miami, Florida 33136 Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Bruce D. Lamb, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
Findings Of Fact Findings of Fact 1-13 are made based upon the Stipulation of the parties filed on July 10, 1987. Respondent is, and was at all times material to the pending amended administrative complaint, a certified building contractor having been issued license number CB CAO9793 by the Florida Construction Industry Licensing Board. At all times material the pending amended administrative complaint Respondent's certified building contractor license (CB CAO9793) qualified "George E. Longino and Associates, Inc." with the Florida Construction Industry Licensing Board. Respondent is, and was at all times material to the pending amended administrative complaint, a certified air conditioning contractor having been issued license number CA CO24348 by the Florida Construction Industry Licensing Board. At all times material to the pending amended administrative complaint, Respondent's certified air conditioning contractor license (CA CO24348) qualified "George E. Longino and Associates, Inc." with the Florida Construction Industry Licensing Board. Respondent is, and was at all times material to the pending administrative complaint, a registered mechanical contractor having been issued license number PM 0031246 by the Florida Construction Industry Licensing Board. At all times material to the pending administrative complaint, Respondent's mechanical contractor license qualified "J. C. and Sons, Inc." with the Florida Construction Industry Licensing Board. At no time material to the pending amended administrative complaint was Respondent the qualifying agent for "First City Contractors, Inc." as defined by Sections 489.105(4) and 489.119, Florida Statutes. At no time material to the pending amended administrative complaint was Charles L. Crowe registered, certified or otherwise licensed by the Florida Construction Industry Licensing Board. At no time material to the pending amended administrative complaint was "First City Contractor's, Inc." registered, certified or otherwise licensed by the Florida Construction Industry Licensing Board. On or about January 23, 1986, Charles L. Crowe d/b/a First City Contractors, Inc., contracted with Steve Bell to construct a room addition at 3110 Carrevero Drive West, Jacksonville, Florida. The contract price was approximately $25,000. On or about March 10, 1986, the City of Jacksonville, Building and Zoning Inspection Division, issued building permit number 6196 to George E. Longino and Associates, Inc. The above referenced building permit was for the construction of a room addition at the residence of Steve Bell, 3110 Carrevero Drive West, Jacksonville, Florida. The following Findings of Fact are based upon the evidence introduced at formal hearing. In December, 1985, or January, 1986, Charles L. Crowe, sole owner of First City Contractors, Inc., approached Longino and asked him to become a partner in the business and to pull permits and be the qualifying agent for First City Contractors, Inc. Longino advised Crowe that he would not be interested in doing that until he had resolved certain pending problems with his licenses. Specifically, the Construction Industry Licensing Board had filed a disciplinary action against Respondent's licenses and that case had been heard and a Recommended Order entered on October 30, 1985. The Recommended Order was scheduled to be considered by the Construction Industry Licensing Board on January 9, 1986. Longino did agree to pull permits for any job on which he would be paid to supervise the construction. Longino did pull the permit and supervise the construction of a garage addition in Arlington, Jacksonville, Florida, for First City Contractors in January or February, 1986. On January 23, 1986, Charles L. Crowe, doing business as First City Contractors, Inc., entered into a contract with Steve Bell to construct a room addition to a residence located at 3110 Carrevero Drive, Jacksonville, Florida. The contract price was $25,000. Based upon the contract, Crowe asked Longino to use his license number to sign a permit application for the Bell job. Longino used a building permit application form which he had in his truck and filled in the pertinent information on the building permit application. Specifically, Longino filled in the name of the licensed contractor as "First City Contractors, Inc." and signed his name as the licensee with license number CB CA09793. Longino signed the building permit application on or about the last week of January, 1986. Financing was not secured for the Bell job until March, 1986. On March 10, 1986, Crowe used the permit application which had been previously signed by Longino and sent an employee of First City Contractors, Inc., Robert Cumpston, to secure a building permit from the City of Jacksonville for the Bell job. Specifically, permit number 6196 was issued based upon the permit application which had been previously signed by Longino. On February 19, 1986, the Construction Industry Licensing Board entered a Final Order suspending Longino's licenses. Longino received notice of the suspension on February 24, 1986, by certified mail. Longino advised Crowe that his licenses had been suspended within a few days following receipt of the Final Order. Despite the knowledge that Longino's licenses had been suspended, Crowe used the presigned building permit application to secure a building permit for the Bell job on March 10, 1986. Building permit number 6196 was issued to Longino's license number doing business as George E. Longino and Associates, Inc. The name of the business was changed from that which was stated on the building permit application because Longino was not a qualifying agent for First City Contractors, Inc. He was only a qualifying agent for George E. Longino and Associates, Inc. A permit could not be issued to First City Contractors, Inc. using Longino's license number. The Bell job was completed using permit number 6196. Longino did supervise that construction and was present at the site on a daily basis. Permit number 6196 was posted at the site. Despite Longino's statements that he did not know that the permit was issued to his license number, it is found that Longino knew or should have known that permit number 6196 was issued to his license number, doing business as George E. Longino and Associates, Inc. Longino did nothing to remedy the problem even though his licenses had been suspended.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Construction Industry Licensing Board, enter a Final Order suspending the licenses of George E. Longino for a period of one (1) year in addition to the previous suspension. DONE and ENTERED this 11th day of August, 1987, in Leon County, 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 11th day of August, 1987. COPIES FURNISHED: Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely Executive Director Construction Industry Licensing Board Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 W. Douglas Beason, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William Bruce Muench, Esquire 438 East Monroe Street Jacksonville, Florida 32201 =================================================================
Findings Of Fact On September 29, 1975 Respondent, R. J. Hunt Construction Company, through its President and qualifying general contractor, Richard J. Hunt, entered into a contract with Richard McCarty to construct two Second Story Additions to Palm Ocean Villas, Pompano Beach, Florida for a price of $53,700. The contract provided that the contractor would complete the building within 8 weeks of the issuance of a building permit and, if not completed, a 5 percent penalty would be deducted until December 10, 1975 and thereafter, if not complete, an additional 5 percent of the contract price would be deducted each week until complete. Building permits were issued on October 3 and 6, 1975 and work proceeded satisfactorily until the end of the 8 weeks contract period on December 1, 1975 when the project was 90 percent to 95 percent complete. At this time the contractor stopped work on the project and transferred his employees to another job. One of the contract provisions not completed was the application of waterproofing on a deck. Despite Hunt's assurances that he would get a subcontractor to complete this waterproofing, it still had not been completed by Christmas and McCarty employed a contractor to apply the waterproofing material in early January for which he paid $1,000 allowed by the contract. Subsequent thereto McCarty received notice of liens filed against his property from 4 subcontractors. These were American Metal Products Company, J. P. Electric Company, Ole Eds Construction, and Margate Plumbing. In order to get a certificate of occupancy it was necessary for McCarty to pay some of these subcontractors. American Metal Products installed an aluminum railing around the balcony for which they filed a notice of lien for $1,200 and subsequently filed a petition in bankruptcy. The present status of this lien was not ascertained. J. P. Electric Company had split their draw into three parts and they were paid by Hunt $700 for the initial work. When they refused to allow final inspection Hunt asked McCarty to pay them and take it off his last draw. McCarty paid $2,000 to J. P. Electric, leaving a balance owed of $781.92. Hunt also asked McCarty to pay Margate Plumbing and take this payment off the draw. Margate had been paid $1,000 upon completion of the rough work. In order to get occupancy McCarty paid Margate $1,800 which satisfied the lien of Margate. Ole Ed installed the septic tank and drain field for which they have filed a lien for $2,500 which is unpaid to date. Numerous miscellaneous items included in the contract for which McCarty advanced funds to keep work progressing amounted to $671.54. Hunt also requested McCarty to order the appliances which were included in the contract price since he (McCarty) could get them at contractor's price. For these appliances (stoves, air conditioners and refrigerators) McCarty expended $2,373.28. Total expenditures made by McCarty are as follows: McCarty paid to Hunt in draws $48,400.00 McCarty paid to J. P. Electric 2,000.00 McCarty paid to Margate Plumbing 1,800.00 McCarty paid for waterproofing deck 1,000.00 Misc. items paid for by McCarty 671.54 Appliances for which McCarty paid 2,373.28 Total paid by McCarty under contract $56,244.82 Balance owed to subcontractors. American Metals Corporation $ 1,200.00 J. P. Electric 781.92 Ole Ed's Construction 2,500.00 Total cost of project $61,736.74 At the time licensee stopped work on the project the railing around the balcony had not been installed, top decking had not been approved by building inspectors and waterproofing of deck had not been done. Extra costs not included in the contract price which were agreed to by McCarty included $300 to $500 extra for larger electric wire and $400 to $500 for larger septic tank than contract called for. These costs totaled approximately $800 which would bring the total contract price to $54,500. The working foreman on the job for the first three or four weeks of the contract, who testified on behalf of Respondent, was unfamiliar with all terms of the contract or with the finances of Hunt. When the existing roof was removed for the second floor addition to be added, conduits had to be replaced and some 2 x 12 joists had to be replaced. This work unexpectedly increased the cost of the contract to the contractor. The septic tank could not be placed where originally intended, and as a result, about 100 fee of sidewalk had to be torn up and replaced. Further, a larger septic tank than originally planned had to be installed. This latter increase was agreed to and paid for by McCarty. One character witness testified that Richard J. Hunt enjoys a good reputation in the construction industry.
The Issue Whether Respondent violated Pinellas Count Water and Navigation Control Authority Regulations (PCWNCAR) as more specifically alleged in the Administrative Complaint dated September 12, 1990.
Findings Of Fact John C. Lombardi, Respondent, is a certified marine specialty contractor and was so licensed at all times here relevant. He holds license C- 4097. Respondent at all times relevant hereto was the qualifying contractor for Myron Gibson Marine Construction Corporation. He also is the owner of Myron Gibson Marine Construction Corporation. Respondent entered into an oral contract with Larry Mickelson to install two tie poles off the dock at 809 Bay Point Drive and into a written contract with the property owner of this property to install two tie poles. Under the terms of the written contract, Respondent contracted to install these tie poles 25 feet off the dock with a minimum penetration of 10 feet. Due to an error on the part of the contractor, the initial tie poles were installed too close to the dock and had to be relocated. Respondent contracted with Mickelson to jet the poles to the required penetration. However, at the location 25 feet off the dock, the construction crew encountered a hard clay and shell mixture some four feet below the water bottom sand and silt and could get less than 8 feet penetration. When Mickelson attempted to tie up his boat to these tie poles, he noted they moved and called Gibbon Marine to correct the situation. In resetting the piles, Gibson Marine cut one of the piles in a point to facilitate driving the pile to a greater penetration. A drop hammer was used to drive the piles further into the clay and shell mixture. Respondent's crews made four visits to the site to correct the problem, and final payment was made on March 13, 1990 (Exhibit 8). Mickelson still was not satisfied, and Respondent advised him of the difficulty encountered in attempting to get 10 feet penetration and offered Mickelson three options, all at extra costs. These were (1) install sister piles, (2) relocate piles in hopes of finding less dense material in which to drive the piles, and (3) call in another contractor with equipment to drill the holes for the piles. Mickelson had another marine contractor come out to reset the piles to a greater depth, but this contractor was also unsuccessful. Mickelson then employed Ress Marine Construction who had drilling equipment with which to drill holes in which to set the tie poles. Ress Marine removed the piles installed by Respondent and drilled holes into which two tie poles were installed to a minimum depth of 10 feet. The removed piles which had been installed by Gibson Marine showed discoloration on the bottom three feet of these piles. One of Petitioner's witnesses (Ress) testified that he told Mickelson the piles appeared to have obtained only 3 to 3 1/2 feet penetration. Two of Respondent's witnesses who were on the scene doing the work when the piles were initially installed both testified the piles were driven to a penetration depth of not less than 7 to 8 feet. Respondent has owned Gibson Marine for the past 5 years, and this is the first customer complaint he had received, and these are the only charges ever filed against his certificate by Petitioner or any other regulatory authority.
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact Respondent Paul L. Crowder first registered with petitioner as a general contractor on April 4, 1980. He held license No. RG 0035515 at least until July 1, 1987, when it "was placed on a delinquent status for non-renewal." Petitioner's Exhibit No. 12. Respondent's license "is considered invalid for the 1991-93 licensing period." Id. On February 20, 1990, the late Dorothy Regoski accepted respondent's written proposal to construct a seawall 276 feet long to a height of four feet above mean high water on Santa Rosa Sound around the edge of her yard. She lived at 232 Brooks Street in Fort Walton Beach with her mother (to whom the house belonged). By signing the proposal, Petitioner's Exhibit No. 6, Miss Regoski obligated herself to pay $10,227.00 for the seawall, which everybody agreed was needed to replace an existing seawall that had begun to fail. She gave respondent a check for $6,600 on February 20, 1990, Petitioner's Exhibit No. 7, and agreed to pay the rest when the project was completed. Respondent Crowder testified he was too busy to begin work in February or March but he found time on April 17, 1990, to apply to the City of Fort Walton Beach for a building permit. Sometime thereafter he spent part of a day removing sand just landward of the existing seawall and severing the "tie backs" with which the top of the existing seawall had been anchored to "dead men" further landward. It was necessary to break the "tie backs" in order to install the replacement seawall against the landward side of the existing seawall. Fortunately, removal of the sand diminished or eliminated the pressure or moment tending to tip the top of the existing seawall seaward. But, perhaps mainly because of salt water "cut worms" at work on the existing wall, only some sixty percent of the existing wall remained vertical by the time Mr. Lancaster inspected it in June of 1990. On two or three occasions after the initial excavation, although never for more than a day at a time, respondent or his employees returned to the Regoski home, put in piles, and joined many of them with horizontal 3" x 6" stringers or "whalers." In mid-June, after they had failed to appear for over a month, Ms. Regoski engaged Wayne Lancaster to finish the job. Mother and daughter were understandably alarmed at the rate of erosion boat wakes, the southeast wind and the jetting action of tides created. Mr. Lancaster supplied additional whalers and repositioned others, then installed two courses of 1" x 8" planks separated by filter cloth, and tied back the new seawall to its own deadman. He charged $6200, Petitioner's Exhibit No. 11, and he and his men finished the job in a week and a half. The evidence put respondent's work at approximately two-fifths of the whole. Mr. Pelham, a professional engineer who has designed and supervised the erection of at least 100 seawalls (and who remembers the day respondent was born), put the fraction at 41%. Respondent claimed about 40%. The successor contractor testified it might have been as little as 30%. Once respondent excavated, exposing the old seawall and tie backs, acceptable construction practice required staying with the job until it was finished. Respondent's handling of this project was closely analogous to a roofer's taking a roof off and leaving the roof uncovered. Respondent conceded that the delay was not standard practice and that normally such a project should not be interrupted. He also testified that he knew the existing seawall was damaged and "fixing to go." The project should have been completed in a continuous operation, both to protect the upland against erosion and to avoid siltation of waters of the state.
Recommendation It is, accordingly, and in keeping with Rule 21E-17.002, Florida Administrative Code, RECOMMENDED: That the CILB suspend respondent's license for thirty (30) days, and thereafter until he has paid Ms. Regoski's estate two thousand five hundred seventy-three dollars ($2,573). DONE and ENTERED this 7th day of May, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1992. Copies furnished to: William S. Cummins, Esquire Department of Professional Regulation 1940 N. Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Paul L. Crowder 521 Shrewbury Road Mary Esther, FL 32569 Daniel O'Brien, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue The issues in this case are: (1) whether Respondent contracted to perform certain marine specialty construction services and, if so, whether Respondent failed to obtain a building permit before starting such work; and (2) whether Respondent abandoned the job, thereby committing mismanagement or misconduct and causing financial harm to the owner.
Findings Of Fact Respondent, Clayton Kettles, is a certified marine specialty contractor who holds license number C-4046 (RX0062838). Respondent is and, at all times relevant hereto, was the qualifying contractor for and has done business as Kettles Construction Company, Inc. (Kettles Construction). In addition to being the qualifying contractor for Kettles Construction, Respondent is also the sole shareholder, officer, and director of the company. The principal place of business of Kettles Construction is 2401 17th Street South, St. Petersburg, Florida. Respondent has been employed in the marine construction business for a total of 46 years. For the last 16 years, Respondent has been self-employed by Kettles Construction. At all times relevant hereto, David Lee (Lee) was an estimator for Kettles Construction, having been hired by Respondent in December 1998. Before Lee was hired, Respondent spoke with Lee's father, Harry Lee, owner of Gulfcoast Marine Construction, Eugene Birney, and a long-time superintendent of Kettles Construction, to discuss the hiring of Lee. On the basis of these discussions, Respondent was convinced that Lee would be a good employee for Kettles Construction. At all times relevant hereto, Leo Calzadilla (Calzadilla) owned and resided in a single-family waterfront dwelling located at 16116 4th Street East, Redington Beach, Florida. Calzadilla was somewhat familiar with Kettles Construction, having first heard of the company from one of his neighbors. The neighbor told Calzadilla that he had used Kettles Construction to do some work on his seawall. Calzadilla also had seen trucks in the neighborhood with "Kettles Construction Company" painted on the sides of them. In January 1999, Lee went to Calzadilla's house, apparently to solicit business. Lee informed Calzadilla that he was doing other work in the neighborhood and had extra materials. Lee gave Calzadilla a business card from Kettles Construction that indicated Lee was an "estimator" for the company. Although the business card clearly identified Lee only as an estimator, Lee told Calzadilla that he was a "partner" with Kettles Construction. During or soon after his initial discussions with Lee, Calzadilla decided to have Lee perform certain work. Pursuant to these discussions, Calzadilla negotiated with Lee and eventually they agreed upon terms that were memorialized in a written contract (Contract I). The contract was dated and signed by Calzadilla and Lee on January 25, 1999. Contract I was on a Kettles Construction contract form and provided spaces for the following: a description of the services that would be provided; the date the work was to commence and to be completed; the total cost of providing the specified services, including labor and materials; and the signature of the owner of the property and the representative of Kettles Construction. Contract I provided for the removal of Calzadilla's existing tie pole and the replacement of the tie pole at a cost of $198.00, and for the rebuilding of Calzadilla's dock at a cost of $900.00. Contract I did not include the dates on which the work was to commence and be completed. Although the contract form contained spaces on which to provide the dates for commencement and completion of the work, these spaces were left blank. On January 25, 1999, the day Contract I was executed, Calzadilla paid Lee a deposit of $100.00 for the removal and replacement of the tie pole. That same day Calzadilla gave Lee a deposit of $800.00 for the rebuilding of the dock. Calzadilla paid both the $100.00 deposit and the $800.00 deposit to Lee in cash. The reason that Calzadilla paid the aforementioned deposits in cash was that Lee told him that Respondent wanted all payments made in cash. At or near the time Contract I was executed, but prior to January 26, 1999, Lee began working at Calzadilla's property. At this time, Lee's work appeared to be limited to tearing down Calzadilla's old dock. After Lee tore down the dock, he asked Respondent if he could use a Kettles Construction truck. According to Lee, he had a personal job repairing Calzadilla's dock and needed the truck to remove the debris. Respondent acquiesced and allowed Lee to use the truck to remove the debris from Calzadilla's property. Respondent even went to Calzadilla's property and assisted Lee in removing the debris and loading it onto the truck. Respondent did not find Lee's request to use a company truck unusual. Even though Lee worked as an estimator with Kettles Construction, he was not precluded from taking on independent projects not associated with his duties as an estimator for Kettles Construction. Furthermore, based on his statements to Respondent, the work that Lee was performing, repairing Calzadilla's dock, could be properly performed by Lee because such a project did not require a permit. While Respondent was on Calzadilla's property to assist Lee in loading the debris onto the Kettles Construction truck, Calzadilla asked Respondent about constructing a 50-foot seawall cap replacement at Calzadilla's residence. After Calzadilla expressed an interest in Respondent's constructing a seawall, Respondent did several things in contemplation of constructing the seawall replacement project for Calzadilla. First, Respondent prepared a proposed contract for the Calzadilla seawall project and gave the contract to Lee for delivery to Calzadilla. Next, Respondent sent a notarized letter to Pinellas County officials in which he authorized Lee to pick up the permit for the proposed Calzadilla seawall project. Finally, on January 31, 1999, Respondent obtained an engineer's sealed drawing for the Calzadilla seawall project from a professional engineer. The notarized letter referred to in paragraph 16 was dated January 27, 1999, and signed by Respondent. In the letter, Respondent, acting on behalf of Kettles Construction authorized Lee to pick up the permits for two projects: the proposed Calzadilla seawall project; and a project for Calzadilla's next door neighbor. The letter notified appropriate Pinellas County officials that Lee was authorized to pick up permits for projects at two sites in Redington Beach, Florida: 16116 4th Street East, Calzadilla's address, and 16114 4th Street East, the address of Calzadilla's neighbor. Respondent's letter expressly stated that the authorization was limited to "these job addresses only" and requested that all inquiries regarding the authorization be directed to Respondent at his pager number. The authorization for Lee to pick up the permits was contingent on the homeowners' accepting Respondent's proposals for the specified projects and then on Respondent's successfully applying for the required permits. Apparently, Calzadilla's neighbor referred to in the authorization letter entered into an agreement with Respondent. Thereafter, Respondent applied for the required permit and after officials at the Pinellas County Authority verified that Lee was authorized to pick up the permit, he was given the permit for the 16114 4th Street East project. However, Respondent never applied for a permit for the proposed Calzadilla project because Calzadilla never accepted Respondent's written offer regarding the project. Respondent prepared the January 27, 1999, authorization letter because Pinellas County Water and Navigation Control Authority (Pinellas County Authority) required specific authorization from Respondent, as qualifying contractor for Kettles Construction, in order to allow Lee or anyone else to pick up permits for Kettles Construction projects. Lee never delivered to Calzadilla the proposal prepared by Respondent that offered to have Kettles Construction build a seawall on Calzadilla's property. Moreover, Lee never informed Respondent that he had failed to do so. Calzadilla never saw Respondent's proposed agreement, was unaware that it existed, and thus, never signed the agreement. Rather than his delivering Respondent's proposal to Calzadilla, Lee met with Calzadilla on January 26, 1999, and discussed performing certain work for Calzadilla, including construction of a seawall. Following this discussion, Lee and Calzadilla entered into a second contact (Contract II). The contract was signed by Lee and Calzadilla on January 26, 1999. Contract II was on a Kettles Construction contract form identical to the form described in paragraph 8 above. Pursuant to Contract II, Lee agreed to perform the following work at Calzadilla's property: (1) remove and replace the existing seawall cap; (2) install tie backs; and (3) install a personal water craft lift system manufactured by Dolphin Marine Equipment. This work required permits and Contract II provided that the "contractor" would obtain these permits. Contract II provided that the work required under the agreement would commence approximately 10 days from the contract date and be completed approximately 14 days thereafter. A hand- written note next to this provision indicated that "there will be $100.00 deducted per day if the job is not completed 2-12-99." The total amount to be paid by Calzadilla under Contract II was $4,213.00. According to the terms of the contract, $1,615.00 of the total contract amount, the price of the water craft lift, was to be paid "with check payable directly from homeowner [Calzadilla] to Dolphin Marine Equipment, Inc." With regard to Contract I, Lee had instructed Calzadilla to make all payments in cash. However, on January 26, 1999, when Calzadilla told Lee that he did not have enough cash to make the payments required under the Contract II, Lee agreed to accept checks, but told Calzadilla to make the checks payable to Lee. Calzadilla complied and, except for the check to Dolphin Marine, made all payments under Contract II payable to Lee, rather than to Respondent or Kettles Construction. It is unclear when work under Contract II commenced and what, if any, work was performed by Lee. However, under the terms of the Contract II, 50 percent of the contract amount was to be paid when the contract was executed, with the remaining balance due upon completion of the project. On January 26, 1999, the day Contract II was executed, Calzadilla gave Lee two checks: one for $1,615, made payable to Dolphin Marine; and a check in the amount of $1,500.00, made payable to David Lee. Three days later, on January 29, 1999, Calzadilla gave Lee a check payable to Lee in the amount of $1,000.00. After the January 29, 1999, payment, the remaining balance owed by Calzadilla under the terms of Contract II was $98.00. The last time that Calzadilla had personal contact with Lee was January 29, 1999, the date Calzadilla made the last payment to Lee. The only work performed by Lee was demolition of Calzadilla's existing dock. Based on misrepresentations made to him by Lee and because the name Kettles Construction was printed on the contract form presented to him by Lee, Calzadilla mistakenly believed that he had entered into contract with Kettles Construction. Despite this belief, at no time during the negotiations and execution of Contracts I and II did Calzadilla have any contact with Respondent. The telephone number of Kettles Construction was printed on both the business card and Contracts I and II that Lee gave Calzadilla. Nevertheless, Calzadilla made no effort to contact Respondent at the business number to verify that it was proper to make payments to Lee in cash or by check made payable to Lee rather than to Kettles Construction. Calzadilla first contacted Respondent in late February 1999 to complain that Lee was no longer working at Calzadilla's home. This was several weeks after Lee had obtained the funds from Calzadilla and abandoned the work at Calzadilla's home. Prior to Calzadilla's telephoning him, Respondent was unaware that Lee had prepared and signed Contracts I and II and had no knowledge that the contracts existed. When Calzadilla notified Respondent that Lee had abandoned the work at the Calzadilla property, Lee was no longer an employee of Kettles Construction. Before Respondent was initially contacted by Calzadilla, Respondent had learned of another unrelated incident where Lee had acted outside the scope of his authority as an estimator for Kettles Construction. Upon learning of Lee's actions, Respondent had fired Lee. Subsequently, Respondent cooperated with the Pinellas County law enforcement authorities to incarcerate Lee. Contrary to Calzadilla's mistaken belief, Respondent never entered into a contract with Calzadilla to perform any work. Accordingly, Respondent was not required to apply for or pull required permits for work to be done on Calzadilla's property. Because there was never a contract between Respondent and/or Kettles Construction, Respondent was neither required to nor did he perform work on Calzadilla's property. Notwithstanding Lee's misrepresentation, Respondent never delegated to Lee nor has he ever delegated to anyone the authority to negotiate or sign contracts on behalf of Kettles Construction or Respondent. In the 16 years that Respondent has been in business, he has always signed every contract on behalf of Kettles Construction. Respondent never authorized Lee to speak for him except to prepare proposed work estimates. These estimates were to be used by Respondent to prepare proposed contracts which would be executed by Respondent and the owner if the parties agreed to the terms of the agreement. Respondent never gave Lee authority to accept funds from anyone on behalf of Respondent or Kettles Construction. Moreover, Respondent never instructed Lee to advise customers that all payments to Kettles Construction should be paid in cash or by check made payable to Lee. Respondent has always requested that customers make checks for work performed by Kettles Construction payable to Kettles Construction. Respondent was unaware that Calzadilla had given money to Lee and never received funds from Calzadilla, either directly or indirectly. Respondent never approved or ratified any of the statements made to Calzadilla by Lee or the written agreements executed by Lee and Calzadilla.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMEND that Petitioner, Pinellas County Construction Licensing Board enter a final order that: Dismisses Counts One and Two of the Administrative Complaint and finds that Respondent did not violate the provisions of Chapter 89-504, Section 24(d)(h)(j)(m) and (n), Laws of Florida. Dismisses Counts Three and Four of the Administrative Complaint with prejudice. DONE AND ENTERED this 30th day of December, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 30th day of December, 1999. COPIES FURNISHED: William J. Owens, Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road, Suite 102 Largo, Florida 34647-5116 G. Barry Wilkinson, Esquire Lefter, Cushman & Wilkinson, P.A. 696 First Avenue North, Suite 201 St. Petersburg, Florida 33701
Findings Of Fact In the fall of 1986, the Respondent, James A. Campbell, and his associate, David Ritchie, were operating a construction business known as Town & Country Construction Corp. of Tampa. Campbell was the company's qualifying contractor. At the same time, Campbell and Ritchie were in the process of starting a new company to be known as Bay City Builders, Inc. In the application for state registration of the new business, Campbell also was listed as the qualifying contractor. Campbell and Ritchie had business forms, including contract forms, printed in the name of Bay City Builders, Inc., so as to be ready to do business upon approval of the pending application. On December 5, 1986, an employee of Campbell's company, a Mr. Earl Mills, responded to a telephone inquiry from a Mrs. Josefina Rodriguez, who was interested in having a room added and some other renovations done to her home at 551 South Lois Avenue in Tampa. Mills erroneously committed Bay City Builders to a bid on the job before its application was approved. In addition, the bid was seriously low and committed to completion of the job in just 60 days, an overly optimistic time frame even on a reasonable bid. Rodriguez accepted the bid, and Mills obligated Bay City Builders to a contract with her on December 5, 1986, with an addendum dated December 18, 1986. When Campbell, who was out of town at the time, and particularly Ritchie found out what Mills had done, they fired Mills. But they decided to honor the contract. Work began timely during the last week of December, 1986. At the outset of the work, the plumbing subcontractor discovered seriously deteriorated pipes all the way to the street. It was agreed that the pipes would be excavated and replaced outside the contract, to be paid directly by Rodriguez. This delayed the performance of the contract for a limited period of time. Nonetheless, work progressed in a timely fashion through January, 1987. By January 12, 1987, Rodriguez had paid $7859 of the $12,300 due under the contract. By some point in January, 1987, the foundation footers for the 15' by 24' addition had been dug and put in, the rough plumbing had been done, the concrete slab for the addition had been poured, the concrete block walls had been laid, and the framing for the roof had been built. But then work stopped for several weeks. Mrs. Rodriguez became very concerned for several reasons. First, she was planning a trip to Puerto Rico from June to August, 1987, and, as she had explained to Mills and Ritchie, she wanted the work done before she left. Second, without a roof over the addition, water began to pool in the addition during rains and leak into the main part of the house. Third, she had had difficulty contacting the entity that had taken her money. Mills was gone, and Bay City Builders seemed to her not to exist. Campbell and Ritchie had withdrawn the application to qualify it after the Rodriguez fiasco, and it never did any business before or since. There never was a telephone listing for it. As early as February, 1987, Rodriguez sought help from the Better Business Bureau, which could not even find Bay City Builders, and filed a complaint with the Petitioner, the Department of Professional Regulation, that the contractor had abandoned the job. In mid-February, 1987, a crew returned to the job site and put plywood and tar paper roofing material on the roof. This stopped the water leakage into the main house. But then work came to a virtual standstill. All of the $7859 had been spent, and work had not progressed far enough for the next draw, $2000, under the contract. Ritchie tried to explain the situation to Rodriguez, starting from Mills' unrealistic bid. As it was, Ritchie explained, the work would be done but it was going to be long and slow. Ritchie wound up having to borrow money personally and prevailed upon sympathetic subcontractors to forebear in collecting their due in order for Ritchie to finish the project. Practically no work was done during the rest of February, any of March or the first part of April, 1987. In late April, 1987, without any prompting from the DPR or the Better Business Bureau, Ritchie managed to get workers to the job site to finish the dry wall in the addition, which would trigger the next $2000 draw under the contract, and to shingle the roof of the house (addition and pre-existing roof.) When this work was finished in May, 1987, Ritchie contacted Rodriguez to ask for the $2000 draw. Mrs. Rodriguez asked to be assured that the work would be finished before she left for Puerto Rico in June. Ritchie apologized but said it would be impossible under the circumstances. He asked her to allow the work to continue in her absence. Rodriguez refused and also refused to pay the $2000. She said if Ritchie couldn't finish the work before she went to Puerto Rico, she would get someone else to do it. That was the last Ritchie or Campbell heard about the Rodriguez job until DPR initiated this proceeding. Rodriguez did not contact another builder about finishing the work until the end of October, 1987.
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 dismissing the Administrative Complaint against the Respondent, James A. Campbell. RECOMMENDED this 7th day of July, 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 7th day of July, 1988. COPIES FURNISHED: Belinda H. Miller, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 James A. Campbell 719 South 50th Street Tampa, Florida 33619 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street 6 Tallahassee, Florida 32399-0750
