Findings Of Fact By Stipulation of the parties, it is found that Respondent is, and has been at all times material hereto, a certified roofing contractor in the State of Florida, having been issued license number CC-C015772. He is also known as Tony Gory, and was the qualifying agent for Roofing Technology, Inc., at all times material hereto. On or about August 16, 1982, Respondent submitted a proposal, on behalf of Roofing Technology, Incorporated, to Lillian Perper for roofing work to be done on her residence at 3616 Flamingo Drive, Miami Beach, Florida. Mrs. Perper accepted the proposal on August 17, 1982, and testified that the written proposal contained all terms and conditions of her agreement with Respondent. Respondent obtained the permit for this job on August 23, 1982. Mrs. Perper made timely payments to Respondent, under the terms of their agreement, totaling $11,057.00. Respondent completed the work in late September, 1982 and Mrs. Perper made her final payment on October 8, 1982. Respondent's agreement with Mrs. Perper included a warranty stated as follows: All workmanship and material to be guaranteed against defects for a period of ten (10) years; except for fire, termites, windstorm, or damages caused by acts of God. Within two months after completion of the reroofing, Mrs. Perper noted leaks in her livingroom and bedroom ceilings. She called Respondent, and-he came right out and 3 inspected her roof. He then sent a crew to Mrs. Perper's house and they attempted to locate and fix the leaks. However, they were not successful and the leaks continued. Mrs. Perper made several additional attempts to reach Respondent, but was not able to personally talk with him again about her roof. She did leave messages at his office that she was continuing to have leaks in her roof. In June, 1983, Respondent sent a crew of two men to Mrs. Perper's house to work on her roof. However, she denied them access to her roof because Respondent was not present, although they did identify themselves as roofers who Respondent had sent to repair her roof. Mrs. Perper was concerned that this crew would tear her roof off without Respondent being present to supervise the job. No additional attempts were made by Mrs. Perper to reach Respondent, or by Respondent to repair her roof, after she refused access to the roofing crew in June, 1983. The South Florida Building Code has been adopted as the building code of the City of Miami Beach. Regarding roof coverings, the South Florida Building Code provides that the building official shall be notified by the permit holder upon completion of the roof covering (Section 3401.1(b)(4)), nails should not be driven through the sheathing between supports (Section 3401.1(c)), mortar used to secure roof tile shall be sandwiched between all laps at all butts and along the sides of barrel tile (Section 3403.2(e)), roof tiles shall be secured to resist uplift forces (Section 3403.2(f)) and such tile shall extend beyond roof sheathing at the eaves (Section 3403.2(h)). An inspection of Mrs. Perper's roof conducted on February 25, 1985, by Robert B. Hilson, who was accepted as an expert in roofing and the installation of Spanish-S tile, indicates there were violations of several of the above provisions of the South Florida Building Code when he made his inspection, but there is no evidence that these violations were willful or deliberate, or that they were the result of work completed by Respondent in September, 1982. Between June, 1983, when Mrs. Perper denied access to Respondent's crew and February, 1985, when Hilson made his inspection, Mrs. Perper allowed a painter to go on her roof to see about her leak problem and to repair some flashing around her chimney. There is conflicting evidence concerning whether Respondent called for a final inspection after completing the roofing of Mrs. Perper's residence. Respondent testified that he did call for the inspection, but could offer nothing to substantiate his testimony. Petitioner called Oswald Ferro, building inspector, who testified that in the limited time he had available to him he could only find a record in the City of Miami Beach building department of one inspection on this job, but this was not a final inspection on this job. He had no personal knowledge about inspections on this job or whether Respondent had failed to call for a final inspection. Based upon the conflicting evidence presented and considering the demeanor of the witnesses, it is found that Petitioner has not established that Respondent failed to call for a final inspection.
Recommendation Based on the foregoing, it is recommended that a Final Order be issued dismissing the Administrative Complaint filed against Respondent Frank A. Gory. DONE and ENTERED this 28th day of August, 1986 at Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1986. COPIES FURNISHED: Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Errol H. Powell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Martin G. Brooks, Esquire 300 Hollywood Federal Building 4600 Sheridan Street Hollywood, Florida 33021 APPENDIX Rulings on Petitioner's Proposed Findings of Fact: 1,2 Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 2. Rejected as irrelevant. 7,8 Adopted in Finding of Fact 3. Adopted in Finding of Fact 5, 6. Adopted in part and rejected in part in Finding of Fact 5, 6. Adopted in Finding of Fact 5. Adopted in Finding of Fact 7. 13,14 Rejected as not based on competent substantial evidence. Adopted in Finding of Fact 5,7. Rejected in Finding of Fact 12. 17,18 Rejected as cumulative and unnecessary. Adopted in Finding of Fact 9. Rejected in Finding of Fact 13. 21-28 Rejected as not based on competent substantial evidence. Respondent did not timely file proposed findings of fact by August 26, 1986 as required by Order entered August 6, 1986, and therefore no rulings can be made relative to any proposed findings which may be submitted by Respondent.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: At all times material to these proceedings Respondent was licensed by the State of Florida as a registered residential contractor, having been issued license number RR 0033727. Respondent's license was first issued in February, 1974. In April, 1983, Respondent submitted a change of status application and requested to qualify Regency Builders, a proprietorship. License number RR 0033727 was then issued to William B. Pitts, qualifying Regency Builders. Regency Builders, Inc., has never been qualified by a license of the Florida Construction Industry Licensing Board pursuant to Chapter 489, Florida Statutes or any predecessor of Chapter 489, Florida Statutes. There is nothing in the record to show that Regency Builders was ever properly incorporated in the State of Florida. However, the record reflects that Respondent did register Regency Builders under the fictitious name statutes Section 685.09, Florida Statutes and complied with the requirements of Section 489.117, Florida Statutes after being contacted by Petitioner's employee sometime in February, 1983. Respondent has been a contractor in Bay County, Florida for 10-12 years and has constructed 150-200 homes during this period of time without any disciplinary action against him, excluding the present proceeding. Respondent prepared a proposal for the construction of a home for Mr. and Mrs. Lee Munroe under the name of Regency Builders, Inc., and submitted the proposal to them. Although the Agreement which was prepared by Lee R. Munroe and signed by Respondent on April 11, 1982 and signed by Lee R. Munroe and Sara W. Munroe (Munroes) but undated, incorporates certain portions of the Proposal, the record reflects that the proposal, per se, was never accepted by the Munroes. The Agreement referenced in paragraph 5 was an agreement entered into by the Respondent and the Munroes for the construction of the Munroes' residence in Gulf Air Subdivision, Gulf County, Florida. The agreed upon contract price was $74,129.33 but, due to changes requested by the Munroes, the Respondent was paid approximately $95,000.00. The Munroes' residence was constructed by Respondent pursuant to the Agreement and was essentially completed in December, 1982. The Munroes moved into this "completed" residence in December, 1982. DeWayne Manuel, building inspector for Gulf County, Florida, during the construction of the Munroe's residence by Respondent, performed the framing inspection, the rough electrical inspection, the rough plumbing inspection, the mechanical inspection (the heating and air conditioning systems) and all other inspections required by the 1982 Southern Standard Building Code, as adopted by the Board of County Commissioners, Gulf County Florida (Code) with the exception of the final inspection. At the beginning of construction, but before the framing inspection, Lee Munroe contacted Manuel with a general concern about the construction. As a result of this meeting with Lee Munroe, Manuel requested Charles Gaskins (Gaskins) an architect with Gaskins Architect of Wewahitchka, Florida, to inspect the pilings, girders and floor joist. After this inspection, Gaskins made some recommendations in regard to the attachment of girders to the pilings which Respondent followed in making the corrections to the attachments. Gaskins Architect provided the Piling Layout 1st and 2nd Floor Framing (Petitioner's Exhibit No. 8) at the request of the Munroes. Generally, Gaskins found no major problems with the pilings and girders other than the work was "sloppy". Both Manuel's and Gaskins' inspection revealed that Respondent had complied with the requirements of the Piling Lay Out and Manuel found no Code violations. After Gaskins inspected the pilings and girders, Respondent was allowed to continue construction by both Manuel and Munroe. The House Plans (Plans) for the construction of the Munroes' home were prepared by the Munroes' daughter who is an unlicensed architect. Although in several instances the Plans requirements were less stringent than Code requirement, the Plans were approved by the Gulf County Building Department. While the Plans were lacking in detail a competent licensed contractor should have known how to fill in the details. Once the Plans were approved, Manuel would allow a change in the Plans provided the change was as stringent as the Code and would allow the structure to be built in compliance with the Code. The change could be a downgrade or an upgrade provided the Plans, as changed, complied with the Code requirements. Respondent did not request any additional or more comprehensive plans from the Munroes or inform the Munroes in any manner that the plans were inadequate. The Plans called for 2 x 12 solid floor joists to be placed on 16 inch centers. The house as constructed by Respondent had engineered floor truss (I- Beams) placed on 24 inch centers. Those I-Beams carrying a significant load were not blocked and in some instance the I-Beams were not "end-blocked." The Code allows the use of wood I-Beams in place of solid wood floor joists provided the wood I-Beams are constructed in accordance with Code requirements. The record does not reflect that the I-Beams as used in this construction were built in accordance with the Code, and the testimony of both consulting engineering experts, that the placement of I-Beams in this structure required blocking along both sides and the end went unrebutted. There were holes and notches in the plywood web of the I-Beams. However, in reviewing the photographs in Petitioners Exhibits Nos. 11 and 14, and, in particular, photograph 1 of Exhibits 11 and photographs 4, 5, 6, and 7 of Exhibit 14, and the testimony surrounding those photographs, there is insufficient evidence to determine: (1) the size of the holes or notches (2 inch hole, 4 inch notch, etc.); (2) placement of hole or notch in relation to depth of I-Beam (upper 1/3, lower 1/4, etc.); or, (3) the depth of the I-Beams. Although there was no testimony concerning the size of the hole for the duct work and the depth of the I-Beam in photograph 7 of Exhibit No. 14, it is clear that the hole for the duct work is greater than 1/3 the depth of the I-Beam. The evidence is insufficient to show that Respondent did not use 5 - 2 x 12's in the main girder as required by Piling Layout. The evidence is clear that the 2 x 12's used in girders were not always butted at a support. The evidence is insufficient to show where the 2 x 12's were butted in the span or if the butting was staggered. No set-in braces or plywood sheathing was used in the bracing of exterior stud walls. However, diagonal metal strapping and thermoply was used and two layers of weatherboard were put on horizontally. The evidence was insufficient to show that water penetrated into the wood framework after the second siding was put on. A 32/16, 1/2 inch plywood was used for subflooring. There was no top plate on dining room wall which was a weight bearing wall. Ventilation in the attic was in accordance with plans but no cross ventilation was provided in the attic. The evidence is insufficient to show that hurricane clips were not applied to the center exterior wall in that neither engineer inspected the outside of the wall to determine if hurricane clips were on the outside. Manuel did not find a violation of Code in regard to the hurricane clips. In February, 1983, James Van Orman (Orman), a licensed engineer, was employed by the Munroes to do a structural analysis of the home constructed by Respondent. Orman's report (Petitioner's Exhibit No. 10) contained certain calculations in regard to the structural integrity of the home. The calculations and Orman's testimony surrounding the calculations went unrebutted. Orman and Lee Munroe were associated through their work and Orman, also a general contractor, was hired to make the necessary corrections in the construction to make it structurally sound. On December 5, 1984, after reviewing the case file and exhibits, Harold Benjamin, Jr. (Benjamin), a licensed consulting engineer, conducted an inspection on the structure. While Benjamin's inspection was cursory and he made no calculations Benjamin noted the same Code violations as did Orman and concurred in Orman's conclusion that the structural integrity of the home had been compromised. Respondent was notified in March, 1983, of the problems with the structure but due to problems with the Munroes and with his subcontractor he was only able to replace the siding and do some cosmetic work between March, 1983 and October, 1983. In October, 1983, the Munroes contracted with Orman to correct what Orman had determined to be structural deficiencies and notified Respondent that they no longer wanted him on the job. On September 30, 1983, the final inspection was conducted by the Gulf County Building Department. The Respondent was not present at this inspection having failed to pick up a certified letter from Manuel advising him of the date for the final inspection. By letters dated February 7, 1983 (Petitioner's Exhibit No. 4), October 13, 1983 (Petitioner's Exhibit No. 5) and February 13, 1984 (Respondent's Exhibit No. 1), Manuel expressed his thinking about the Code violations and Orman's report. At the hearing Manuel testified that his thinking had not basically changed from what he had expressed in the letters. Neither the Respondent nor the Gulf County Building Department have had the residence structurally analyzed by a licensed engineer. Respondent deviated from the Plans without first obtaining approval of the Gulf County Building Department when he substituted I-Beams on 24 inch centers for 12 x 12 solid floor joists on 16 inch centers. The only evidence that this change was discussed with the Munroes was in regard to running heating and air conditioning duct work through the I-Beams because Mrs. Munroe did not want to drop the ceiling down to 7 feet to accommodate the duct work. While this change may not have affected the structural integrity of the house had the I-Beams been properly constructed and the strength of the subfloor material adjusted to account for the increased span, the evidence shows that the I-Beams were not properly constructed and that the subfloor material used was not of sufficient strength on account of the increased span. Therefore, this change affected the structural integrity of the house. It was apparent from the testimony that certain other changes in the Plans were made without prior approval of the Gulf County Building Department. However, it was also apparent from the evidence that these changes were at least verbally approved by the Munroes and there was no evidence that these changes affected the structural integrity of the house. Due to a grandfathering provision in the law, William Pitts has never taken an examination for licensure and has never been examined as to the provisions of the Code. Respondent in his testimony exhibited: (1) an awareness of the applicable provisions of the Code but not a complete understanding of them; and (2) an acceptable knowledge of he applicable construction practice.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is Recommended that the Board enter a final order finding Respondent guilty of the violations alleged in Count I and Count II of the Administrative Complaint and for such violations it is Recommended that the Board impose an administrative fine of $1 000.00 and suspend Respondent's residential contractor license for a period of one (1) year, staying the suspension and placing Respondent on probation for that period provided the Respondent: (1) pays the $1,000.00 fine within ninety (90) days; (2) obtains a current copy of the Southern Standard Building Code and agrees to keep it current; and (3) proves to the Board that he has read and is familiar with the applicable Sections of the Code that relate to his license. Respectfully submitted and entered this 2nd day of July, 1985, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 1985. COPIES FURNISHED: Edward C. Hill, Jr. Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Charles S. Isler, III, Esquire Post Office Box 430 Panama City, Florida 32402 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee Florida 32301 Salvatore A. Carpino, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. James Linnan Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville Florida 32202 =================================================================
The Issue DOAH Case No. 89-3902, the Barona and Carrow Complaints Whether Respondent violated Florida Statutes Section 489.129(1)(d), by willfully or deliberately disregarding and violating the applicable building codes or laws of the state or of any municipalities or counties thereof. Whether Respondent violated Florida Statutes Section 489.129(1)(m), by being guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. DOAH Case No. 90-1900, the Grantz, Victor, Beckett, Maffetonne, and Wolfe Complaints Whether Respondent violated Sections 489.129(1)(m), (j), and 489.105(4), and 489.119, Florida Statutes, by being guilty of gross negligence, incompetence, and/or misconduct. Whether Respondent violated Sections 489.129(1)(h), (m), (j), and 489.119, and 489.105(4), Florida Statutes, by being guilty of financial mismanagement or misconduct. Whether Respondent violated Section 489.129(1)(d), Florida Statutes, by wilful or deliberate violation or disregard of applicable local building codes and laws. Whether Respondent violated Sections 489.129(1)(m), (j), 489.119, and 489.105(4), Florida Statutes, by failing to properly supervise contracting activities he was responsible for as qualifying agent, which supervisory deficiency also reflected gross negligence, incompetence, or misconduct Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor. Whether Respondent violated Sections 489.129(1)(m), and (j), Florida Statutes, by giving a guarantee on a job to a consumer and thereafter failing to reasonably honor said guarantee in violation of Florida Statutes. DOAH Case No. 90-1901, the Klokow Complaint Whether Respondent violated Section 489.129(1)(d), Florida Statutes, by wilfully or deliberately disregarding and violating the applicable building codes or laws of the state or any municipalities or counties thereof. Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being guilty of fraud or of gross negligence, incompetency, or misconduct in the practice of contracting. DOAH Case No. 90-1902, the Meister Complaint Whether the Respondent violated Section 489.129(1)(n), Florida Statutes, by failure to obtain a permit. DOAH Case No. 91-7493, the Antonelli Complaint Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. DOAH Case No. 91-7951, the Insurance, Palomba, Romanello and Marin Complaints The Insurance Complaint Whether Respondent violated Section 489.129(1)(c), Florida Statutes, by violating Section 455.227(1)(a), Florida Statutes, by making misleading, deceptive, untrue, or fraudulent representations in the practice of his profession. Whether Respondent violated Section 489.129(1)(d), Florida Statutes, by wilfully or deliberately disregarding and violating the applicable building codes or laws of the state or any municipalities or counties thereof. Whether Respondent violated Section 489.129(1)(c), Florida Statutes, by violating Section 455.227(1)(b), Florida Statutes, by intentionally violating a Board rule. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. The Palomba Complaint Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. The Romanello Complaint Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. The Marin Complaint Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. DOAH Case No. 92-0370, the Pappadoulis Complaint Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing financial misconduct. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by committing gross negligence, incompetence and misconduct in the practice of contracting.
Findings Of Fact Pre-Hearing Admissions 3/ Admissions Applicable to All Cases Respondent is currently licensed as a contractor by the Florida Construction Industry Licensing Board. Respondent's current license number from the Florida Construction Industry Licensing Board is CG C040139. Respondent is licensed by the Florida Construction Industry Licensing Board as a certified general contractor. Respondent holds Florida Certified Roofing License No. CC-042792. Respondent is the qualifying agent for Tropical Home Industries, Inc. As qualifying agent for Tropical Home Industries, Inc., Respondent is responsible for all work performed. DOAH Case No. 89-3902 Respondent was licensed as set forth in items 1, 2, 3 and 4 above at the time of the job alleged in the Administrative Complaint. Exhibit "A", attached to the Request for Admissions 4/ is a true and correct copy of the contract between Sarah S. Carrow and the firm Respondent qualified at the time the contract was executed. As a qualifier for Tropical Home Industries, Inc., Respondent was responsible in his capacity as a certified general and roofing contractor for all work performed by Tropical Home Industries, Inc., pursuant to its contract with Sarah S. Carrow. Pursuant to the contract between Sarah S. Carrow and Tropical Home Industries, Inc., all work under said contract was to be completed in three (3) to six (6) weeks. Respondent, acting through Tropical Home Industries, Inc., failed to complete all work under the contract with Sarah S. Carrow within six (6) weeks after work was commenced. Respondent, acting through Tropical Home Industries, Inc., failed to obtain a final inspection of the work under the contract with Sarah S. Carrow prior to the building permit's expiration date. Broward County, Florida, has adopted the South Florida Building Code as its local ordinance governing residential construction. Respondent's failure to obtain a timely final inspection of the work performed pursuant to the contract between Tropical Home Industries, Inc., and Sarah S. Carrow is a violation of Section 305.2 of the South Florida Building Code. Section 1405.1 of the South Florida Building Code requires installation of either a window or vent fan in each bathroom. Section 3407.9(a) of the South Florida Building Code requires that flashing be installed on plumbing vent pipes which are installed through the roof. Any problems or deficiencies in the work performed by Tropical Home Industries, Inc., pursuant to its contract with Sarah S. Carrow were caused by employees and/or subcontractors of Tropical Home Industries, Inc. DOAH Case Nos. 89-3902, 90-1900, 90-1901, and 90-1902 DOAH Case No. 89-3902 The Baronas' house is located at 1251 Westchester Drive East, West Palm Beach, Florida 33417. Respondent contracted with the Baronas as the qualifying agent of Tropical Home Industries, Inc. The Baronas' house is located within Palm Beach County. Palm Beach County is the appropriate Building Department under which all inspections were to have been performed. DOAH Case No. 90-1901 On or about December 5, 1988, Respondent contracted with Mel Klokow, acting for Linda Klokow ("Klokow"), for the renovation of a screen porch with a roof to her home. Respondent contracted with Klokow as a qualifying agent of Tropical Home Industries, Inc. Permit No. 88-8085 was issued by the local building department. The work at the Klokow residence did not pass final inspection. DOAH Case No. 90-1902 In December of 1987, Respondent contracted to close in a screen porch for Janet Meister ("Meister"). Respondent contracted with Meister as the qualifying agent for Tropical Home Industries, Inc. Respondent failed to obtain a permit for the work performed at the Meister's. Respondent's failure to obtain a permit for the Meister job violated local building codes and Section 489.129(1)(n), Florida Statutes. DOAH Case No. 90-1900 The Grantz home is located at 10878 Granite Street, Boca Raton, Florida. The approximate amount of the contract price with the Grantz was $1,890.00. Respondent contracted for the Grantz job as a qualifying agent of Tropical Home Industries, Inc. Respondent began work at the Grantz residence on or about May 10, 1989. The work at the Grantz residence failed final inspection on July 12, 1989. Respondent wilfully violated applicable local building codes and laws on the Grantz project. Respondent wilfully disregarded local building codes and laws in connection with the Grantz project. Respondent deliberately violated applicable local building codes and laws in connection with the Grantz project. Respondent deliberately disregarded applicable local building codes and laws in connection with the Grantz project. On or about April 12, 1989, and April 17, 1989, Respondent contracted with Stephen Victor ("Victor") to install sliding glass doors at his home. The Victor residence is located at 9768 Majorca Place, Boca Raton, Florida. The contract price with Victor was $3,293.00. Respondent contracted with Victor as a qualifying agent of Tropical Home Industries, Inc. Victor paid a total deposit of $670.00 to Respondent. Respondent never began work at the Victor residence. On or about April 17, 1989, Respondent contracted with Vinton Beckett ("Beckett") to install windows at her home. The Beckett residence is located at 2501 N.W. 41st Avenue, Unit 302, Lauderhill, Florida. The contract price with Beckett was $1,684.00. Respondent contracted with Beckett as a qualifying agent of Tropical Home Industries, Inc. On or about October 29, 1988, Respondent contracted with Thomas and Sherry Maffetonne (the "Maffetonnes") to construct a patio enclosure at their home. The Maffetonne's residence is located at 22980 Old Inlet Bridge Drive, Boca Raton, Florida. The contract price for the work to be performed at the Maffetonnes was $4,350.00. Respondent contracted with the Maffetonnes as a qualifying agent for Tropical Home Industries, Inc. A five-year warranty on materials was given by Respondent for the work to be performed at the Maffetonne's. A one-year warranty on labor was given by Respondent for the work performed at the Maffetonne's. On or about June 6, 1989, Respondent contracted with Mr. and Mrs. Morton Wolfe (the "Wolfes") to install windows at their home. The Wolfe's residence is located at 7267 Huntington Lane, #204, Delray Beach, Florida. Respondent contracted with the Wolfes as the qualifying agent of Tropical Home Industries, Inc. Respondent failed to obtain a timely permit or call for required inspections at the Wolfe residence. DOAH Case No. 91-7951 On June 21, 1990, Tropical's general liability insurance coverage (policy number 891006GL327), produced by Steven Adams and Associates, Inc., (hereinafter "Adams and Associates") and afforded by Guardian P & C Insurance Company, expired. On July 17, 1990, Tropical issued a check to Adams and Associates in the amount of $2,475.00 to obtain general liability and workers' compensation insurance. Upon receipt of the check, Adams and Associates issued a Certificate of Insurance to the Davie (Florida) Building Department indicating that Tropical had general liability (policy number GL 235810) and workers' compensation insurance in force through July 17, 1991. After said Certificate of Insurance was issued, Tropical stopped payment on the check issued to Adams and Associates. Tropical failed to issue an additional check or remit payment of any kind, resulting in both the general liability and workers' compensation insurance being canceled, effective July17, 1990. In September of 1990, a Certificate of Insurance was submitted to the Davie Building Department indicating that Tropical had general liability insurance in effect from September21, 1990, until September 21, 1991. Said certificate had been altered in that the issue, effective, and expiration dates had been updated to reflect that the policy coverage was current and in force. The policy listed on the certificate (number 891006GL327, produced by Adams and Associates with coverage being afforded by Guardian P & C Insurance Company) expired on June21,1990, and was never renewed or kept in force after that date. The Davie Building Department had no other certificates or records indicating that Tropical had insurance coverage. Between July 17, 1990, and April 8, 1991, Tropical obtained five (5) building permits from the Davie Building Department. At no time during the aforementioned period did Tropical have general liability insurance, thereby violating Section 302.1(b) of the South Florida Building Code which requires that building permit applicants be qualified in accordance with PartI of Chapter 489, Florida Statutes. Licensees are required to maintain public liability insurance at all times as provided by rules promulgated pursuant to Part I of Chapter 489, Florida Statutes. Construction Industry Licensing Board records indicate that Tropical has general liability insurance coverage through Equity Insurance (hereinafter "Equity") of Hollywood, Florida. Effective June 8, 1988, Tropical's insurance with Equity was canceled. On February 20, 1991, Tropical entered into an agreement with Michael and Margaret Palomba (hereinafter "Palombas") to perform enclosure and remodeling work at the Palombas' residence located at 130 North East 5th Court, Ft. Lauderdale, Florida 33334. The approximate contract price was $11,978.00. On March 13, 1991, Tropical received a $2,994.50 deposit from the Palombas. On March 25, 1991, Tropical obtained a permit for the project from the Broward County Building Department. Subsequent to receiving the permit, Tropical removed an interior closet from the area that was to be remodeled. Subsequent to receiving the permit, Tropical removed interior plaster from the area that was to be remodeled. Subsequent to receiving the permit, Tropical removed exterior doors from the area that was to be remodeled. Tropical then stopped work stating that rotten wood had been discovered, and requested an additional $2,800.00 to continue with and complete the project. Tropical refused to perform any additional work without the Palombas agreeing to the added cost. Tropical failed to continue with the project pursuant to the original agreement. Tropical refused to continue with the project pursuant to the original agreement. Tropical failed to return any monies to the Palombas. In May 1991, the Palombas hired a second contractor, Dan Sturgeon, to complete the project for $13,830.00. On or about July 11, 1990, Tropical entered into an agreement with Don Romanello (hereinafter "Romanello") to construct a screen room on an existing slab at Romanello's residence located in Boca Raton, Florida. The contract price was $9,500.00. Tropical received $4,800.00 in payments from Romanello, but failed to obtain a permit or perform any work pursuant to the agreement. Tropical has failed to return any portion of Romanello's payments. Tropical refused to communicate with Romanello. Based on the preceding, Tropical committed misconduct in the practice of contracting. On or about June 23, 1990, Tropical entered into an agreement with Marcelina Marin (hereinafter "Marin") to construct a screen room at Marin's residence located in Broward County, Florida, for $4,021.00. Tropical received a $2,000.00 deposit from Marin at the time the agreement was entered into. Tropical failed to perform any work under the terms of the agreement. Tropical has failed to return Marin's deposit. Tropical has refused to return Marin's deposit. Based on the preceding, Tropical committed misconduct in the practice of contracting. DOAH Case No. 91-7493 On July 2, 1988, Respondent contracted with Anthony Antonelli ("Antonelli") to construct an aluminum roof over the patio and gutters of his residence at 9303 Laurel Green Drive, Boynton Beach, Florida. The price of the contract was $2,016.00. Antonelli paid a deposit of $500.00 to Tropical Home Industries. Respondent informed Antonelli that he would not be able to perform the work at the contracted price. Respondent never performed any work at the Antonelli's home. Respondent canceled the contract with Antonelli. Respondent failed to return the deposit paid by Antonelli to Tropical Home Industries. Testimony at Final Hearing Facts Applicable to All Cases Respondent is, and has been at all times hereto, a certified general and roofing contractor in the State of Florida, having been issued license number CG C040139 and CC 2042792. For all contracts and jobs referenced in all of the administrative complaints in these consolidated cases, Respondent acted through the contracting business with which he was associated and for which he was responsible in his capacity as a licensed contractor. DOAH Case No. 89-3902, The Barona and Carrow Complaints Respondent contracted with Rhonda Barona to build an addition to her home at 1251 Westchester Dr. East., West Palm Beach, Florida, for approximately $5,124. The work performed at the Barona residence took an unreasonable amount of time to complete. The permit issued to perform the work at the Barona residence was canceled and Respondent failed to obtain a final inspection. Respondent contracted with Sarah Carrow to build an addition at her home located at 1421 N. 70th Avenue, Hollywood, Florida, for approximately $14,460.60. Respondent allowed the permit to expire and failed to obtain required inspections at the Carrow residence. Respondent failed to fully comply with applicable local codes by failing to install a window or vent fan in the bathroom. DOAH Case No. 90-1900, The Grantz, Victor, Beckett, Maffetonne and Wolfe Complaints On or about March 31, 1989, Respondent contracted with John and Lori Grantz to install windows at 10878 Granite Street, Boca Raton, Florida, for the amount of $1,890.00. Work at the Grantz residence began on or about May 10, 1989. At the time work began, no permit had been obtained. A late permit was obtained on June 15, 1989, in violation of local codes. The work performed by Respondent at the Grantz residence failed final inspection on July 12, 1989, because the structure was not constructed as for the intended use. The windows which were installed were designed as a temporary structure, removable in cases of severe weather and not as a permanent enclosure. On or about April 12, 1989, and April 17, 1989, Respondent contracted with Stephen Victor ("Victor") to install sliding glass doors and windows at 9768 Majorca Place, Boca Raton, Florida, for the total amount of $3,293.00. Victor paid Tropical a total deposit of $670.00, but work never began. On or about April 17, 1989, Respondent contracted with Vinton Beckett ("Beckett") to install windows at 2501 N.W. 41st St., Unit 808, Lauderhill, Florida, in the amount of $1,684. A five-year warranty on materials and a one-year warranty on labor were provided to Beckett by Tropical. Respondent failed to obtain a timely permit or call for required inspections in violation of local law. Respondent failed to correct defects and deficiencies in the work performed at the Beckett residence in a reasonable amount of time. On or about October 29, 1988, Respondent contracted with Thomas and Sharee Maffetonne to construct a patio enclosure at 22980 Old Inlet Bridge Drive, Boca Raton, Florida, for the amount of $4,350.00. A five-year warranty on materials and a one-year warranty on labor were given. Respondent failed to correct defects and deficiencies in the work on the Maffetonne residence in a reasonable amount of time. On or about June 6, 1989, Respondent contracted with Morton Wolfe to install windows at 7267 Huntington Lane, #204, Delray Beach, Florida, for the amount of $1,668.13. Respondent failed to obtain a timely permit or call for required inspections at the Wolfe residence in violation of local codes. DOAH Case No. 90-1901 The Klokow Complaint On or about December 5, 1989, Respondent contracted with Mel Klokow, acting for Linda Klokow, for the construction of a screen porch with a roof to her home at 5292 N.E. 10th Terr., Ft. Lauderdale, Florida, for the sum of $4,473.00. Permit number 88-8085 was issued by the local building department. The work performed at the Klokow residence initially failed to pass the final inspection, and the Respondent failed to return to correct the code violations in a reasonable amount of time. DOAH Case Number 90-1902 The Meister Complaint In December of 1987, Respondent contracted to close in a screen porch for Janet Meister. Respondent failed to obtain a permit for the work performed, which is a violation of local building codes. DOAH Case Number 91-7493 The Antonelli Complaint On July 2, 1988, Respondent contracted with Anthony Antonelli ("Antonelli") to construct an aluminum roof over the patio and gutters at his residence at 9303 Laurel Green Drive, Boynton Beach, Florida. The price of the contract for the work to be performed at the Antonelli residence was $2,016.00. Antonelli remitted a deposit of $500 to the Respondent. Respondent informed Antonelli that he would not be able to perform said job for the contracted price and no work ever began. Respondent canceled the contract with Antonelli and failed to return the deposit to Antonelli. DOAH Case Number 91-7951 The Insurance, Palomba, Romanello and Marin Complaints On June 21, 1990, Tropical's general liability insurance coverage, policy number (891006GL327), produced by Stephen Adams & Associates, Inc., ("Adams & Associates") and afforded by Guardian Property & Casualty Company, expired. On July 17, 1990, Tropical issued a check to Adams & Associates in the amount of $2,475.00 to obtain and/or renew general liability and workers' compensation insurance. Upon receipt of the check, Adams & Associates issued a certificate of insurance to the Davie Building Department in Davie, Florida, indicating that Tropical had general liability (policy number 235810) and workers compensation insurance in force through July 17, 1991. After said certificate of insurance was issued, Tropical stopped payment on the check issued to Adams & Associates. Tropical failed to issue an additional check or remit payment of any kind resulting in the general liability and workers compensation insurance being canceled, effective July 17, 1990. In about September 1990, a certificate of insurance was submitted to the Davie Building Department indicating that Tropical had general liability insurance in effect from September 21, 1990, until September 21, 1991. Said certificate had been altered in that the issue, effective and expiration dates had been updated to reflect that the policy coverage was current and in force. The policy listed on the certificate (number 891006GL327), produced by Adams & Associates and afforded by Guardian Property & Casualty Company, expired on June 21, 1990, and was never renewed or kept in force after that date. The Davie Building Department has no other certificates or records indicating that Tropical has insurance coverage. Between July 17, 1990, and April 8, 1991, Tropical obtained five (5) building permits from the Davie Building Department. At no time during the aforementioned period did Tropical have general liability insurance thereby violating Section 302.1(b) of the South Florida Building Code which requires that building permit applicants be qualified in accordance with Part I of Chapter 489, Florida Statutes. Licensees are required to maintain public liability insurance at all times as provided by rules promulgated pursuant to Part I of Chapter 489, Florida Statutes. Construction Industry Licensing Board ("CILB") records indicate that Tropical has general liability insurance coverage through Equity Insurance Company ("Equity") of Hollywood, Florida. Effective June 8, 1988, Tropical's insurance with Equity was canceled. On February 20, 1991, Tropical entered into an agreement with Michael and Margaret Palomba (the "Palombas") to perform enclosure and remodeling work at the Palomba's residence located at 130 N.E. 5th Ct., Ft. Lauderdale, Florida 33334. The approximate contract price was $11,978.00. On March 13, 1991, Tropical received a $2,994.50 deposit from the Palombas. On March 25, 1991, Tropical obtained a permit for the project from the Broward County Building Department. Subsequent to receiving the permit, Tropical removed an interior closet and exterior doors from the area that was to be remodeled. Tropical then stopped work stating that rotten wood had been discovered, and requested an additional $2,800.00 to continue with and complete the project. Tropical refused to perform any additional work without the Palombas agreeing to the added cost. Tropical failed or refused to continue with the project pursuant to the original agreement and failed to return any monies to the Palombas. In May, 1991, the Palombas hired a second contractor, Dan Sturgeon, to complete the project for $13,000.00. 156. Based on the foregoing, Tropical committed misconduct in the practice of contracting. On or about July 11, 1990, Tropical entered into an agreement with Don and Norma Romanello (the "Romanellos") to construct a screened room on an existing slab at the Romanello's residence located in Boca Raton, Florida. The contract price was $9,500. Tropical received a $4,800.00 payment from the Romanellos but failed to perform any work pursuant to the agreement. Tropical has failed or refused to return any portion of the Romanellos payments and has refused to communicate with the Romanellos. Based on the preceding, Tropical committed misconduct in the practice of contracting. On or about June 23, 1990, Tropical entered into an agreement with Marcelina Marin to construct a screened room at Marin's residence located in Broward County, Florida for $4,021.00 Tropical received a $2,000.00 deposit at the time the agreement was entered into. Tropical failed to perform any work under the terms of the agreement, and has failed or refused to return Marin's deposit. Based on the preceding, Tropical committed misconduct in the practice of contracting. DOAH Case Number 92-0370 The Pappadoulis Complaint On or about February 11, 1990, the Respondent contracted with John Pappadoulis ("Pappadoulis") to remodel a Florida room for the agreed upon amount of $11,448.00 at his residence located at 983 Southwest 31st Street, Fort Lauderdale, Florida. Respondent received a deposit of $648.00, but never obtained a permit nor began work. The Respondent failed or refused to return Pappadoulis' deposit. John Pappadoulis has since passed away. Aggravating and Mitigating Circumstances Monetary Damages Several of the customers in these cases suffered monetary damages. The Baronas had to hire an attorney to deal with the Respondent. The Baronas also incurred additional costs in the work they performed to complete the contract. John and Lori Grantz also suffered monetary damages due to their dealings with the Respondent. The work at the Grantz residence was never completed by the Respondent. The Respondent filed a lien on the Grantz property and also filed a lawsuit to receive the full amount of the contract price. The Grantz had to hire an attorney to obtain legal advice and to defend the lawsuit. The Grantz prevailed in that lawsuit and a judgment was entered requiring the Respondent to refund the $500.00 cash deposit. The Grantz also spent at least $150.00 on attorney fees. The deposit money was never returned and none of their costs were ever reimbursed by the Respondent. Steven Victor also sustained monetary damages in his dealings with the Respondent. Victor paid the Respondent $670.00 as a deposit. No work was ever performed. After requesting the return of his deposit money and failing to receive it, Victor filed a civil action against the Respondent. Judgment was entered in favor of Victor, but the judgment was never paid. The Maffetonnes also sustained monetary damages in their dealings with the Respondent. The Respondent agreed to refund a portion of the contract money to the Maffetonnes due to a problem with the carpet he installed incorrectly, but failed to ever refund any money. The Maffetonnes therefore paid for goods which were defective, and never received a compensatory credit. Klokow also sustained monetary damages in his dealings with the Respondent Because of continuing roof problems, Klokow had to hire an independent roofing expert to inspect the roof and prepare a report. Mr. and Mrs. Palomba also sustained monetary damage due to their dealings with the Respondent. When the Respondent abandoned the Palomba job, the Palombas were forced to hire a second contractor at a higher contract price. The Respondent's actions also caused monetary damages to Antonelli, Pappadoulis, Marin, and Romanello. In each case, the homeowner paid a deposit to the Respondent, and the Respondent failed to ever perform work or return any of the deposit money. The Antonellis paid $500.00, Pappadoulis paid $648.00, Marin paid $2,000.00, and Romanello paid $4,800.00. Actual Job-Site Violations of Building Codes or Conditions Exhibiting Gross Negligence, Incompetence, or Misconduct by the Licensee Several of the jobs involved in these cases had actual job site violations of building codes or conditions which exhibited gross negligence, incompetence, or misconduct by the Respondent which had not been resolved as of the date of the formal hearing. At the Barona residence, the framing inspection failed twice before finally being passed a third time; the lath inspection failed three times before finally passing on the fourth time; and the final inspection failed and was never satisfactorily completed by the Respondent. At the Carrow residence, the Respondent failed to install a window or vent fan in the bathroom of the room addition which he installed. In addition to the building code violation, the work performed was incompetent as the structure installed leaked for many months. Further, the original permit expired prior to a final inspection ever being obtained. At the Grantz residence, the Respondent exhibited incompetence and misconduct by installing windows that he knew or should have known were unsuitable for the purposes specified by the customer. Severity of the Offense The large number of violations established in these cases indicates that the Respondent is a serious threat to the public. These violations establish that the Respondent had a pattern of failing to conduct any meaningful supervision of work in progress. And perhaps most serious of all is his frequent act of soliciting deposits for projects he apparently had no intention of even beginning, much less finishing. This latter practice borders on constituting some form of larceny. Danger to the Public The Respondent is a danger to the public in two ways. First, he is a financial threat to the public, most significantly by his practice of taking deposits for jobs he apparently did not intend to perform. Second, he is a threat to public safety, because the work he performs is often done in a haphazard, careless manner. The Number of Repetitions of Offenses As is obvious from the findings of fact and conclusions of law in this Recommended Order, the Respondent is guilty of numerous repeated offenses which occurred over a period of approximately three years. The Respondent's numerous offenses are indicative of an attitude of contempt or disregard for the requirements of the applicable rules and statutes. Number of Complaints Against Respondent The charges in these cases are based on fifteen separate customer complaints to the Department of Professional Regulation regarding the Respondent. Further, the Palm Beach County Construction Industry Licensing Board received four complaints from homeowners regarding the Respondent 5/ and the Broward County Consumer Affairs Department received twenty-nine complaints regarding the Respondent. 6/ Such a large number of complaints indicates that the Respondent's shortcomings were not isolated events, but represent a recurring problem. The Length of Time the Licensee Has Practiced The Respondent was first licensed as a state general contractor in 1987. He obtained his roofing contractor license shortly thereafter. The Respondent's licenses were placed under emergency suspension in August of 1991. Damage to the Customers The damages, monetary and otherwise, suffered by the Respondent's customers has already been addressed. In addition, all of the Respondent's customers mentioned in the findings of fact suffered a great deal of aggravation, stress, and frustration in dealing with the Respondent. Penalty and Deterrent Effect In these cases, the proof submitted demonstrates that no penalties short of revocation of the Respondent's licenses and imposition of the maximum amount of fines will act as a deterrent to the Respondent and others and as appropriate punishment for the many violations established by the record in these cases. Efforts at Rehabilitation There is no persuasive evidence in the record of these cases that the Respondent has become, or is likely to become, rehabilitated. To the contrary, the greater weight of the evidence is to the effect that the Respondent is unwilling or unable to conform his conduct to the requirements of the statutes and rules governing the practice of contracting.
Recommendation Based upon the foregoing findings of fact and conclusions of law, IT IS RECOMMENDED: That the Respondent be found guilty of all of the violations charged in each Administrative Complaint and Amended Administrative Complaint as noted in the conclusions of law, and that the Respondent be disciplined as follows: The Respondent be required to pay an administrative fine in the amount of $5,000.00 for each of the twenty-nine counts of violations charged and proved, for a grand total of $145,000.00 in administrative fines; The Respondent's license numbers CG C040139 and CC C042792 be revoked; and The Respondent be required to pay restitution to the following Complainants in the following amounts: Steven Victor - $670.00; John Grantz - $650.00; Don Romanello - $4,800.00; Marcelina Marin - $2,000.00; Anthony Antonelli - $500.00; John Pappadoulis' next of kin - $648.00. All restitution shall earn 12% interest per annum from the date the Complainants paid their deposit to Respondent. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 21st day of October, 1992. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 1992.
Findings Of Fact The foregoing findings of fact 1, 2, and 3 are incorporated herein by reference as if fully set forth anew. On January 8, 1987, the Respondent was found guilty of violating Sections 489.129(2), 489.129(3), and 489.129(1)(g) Florida Statutes, by the Construction Industry Licensing Board in DPR Case No. 60987, DOAH Case No. 88- 0002. The Respondent was not present at that Board meeting. He asserted this was due to lack of timely notice of the Board's meeting. Respondent was fined $1,000 by the Final Order of the aforementioned Board filed/served on February 20, 1987. The Respondent has failed to pay the fine. Respondent has not appealed the final order or fine. Respondent expressed himself at formal hearing as intending never to pay the lawfully imposed fine.
Conclusions The foregoing Conclusion of Law 14 is adopted and incorporated herein as if fully set forth anew. Respondent is charged with gross negligence, incompetence or misconduct in the practice of contracting pursuant to Section 489.129(1)(m), Florida Statutes, for failure to pay his $1,000 fine pursuant to the Board's February 20, 1987 final order. However, Petitioner has cited no statutory or rule authority which labels a licensee's refusal to pay a fine or obey a final order of the Construction Industry Licensing Board as gross negligence, incompetence, or misconduct in the practice of contracting. (Emphasis supplied, see definition of "contracting" at Section 489.105, Florida Statutes). Without such authority, the factual allegations of the administrative complaint, although proved, support no conclusion that a statute or rule has been violated. Petitioner's recourse lies not in this forum but in enforcement, execution, and collection actions in Circuit court.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The Construction Industry Licensing Board enter its final order dismissing the charge of a violation of Section 489.129(1)(m). DONE and RECOMMENDED this 30th day of September, 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 30th day of September, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 88-0275, 88-0732 The following constitute rulings pursuant to Section 120.59(2), Florida Statutes, upon the parties' respective Proposed Findings of Fact (PFOF). DOAH CASE NO. 88-0275 Petitioner's PFOF have been accepted with certain modifications for greater clarity and to conform to the record as a whole. Respondent's Closing Statement is accepted in part in FOF 9. The remainder is rejected as mere argument or as based upon hearsay not properly in the record. DOAH CASE NO. 88-0732 Petitioner's PFOF have been accepted with certain modifications for greater clarity and to conform to the record as a whole. Respondent's Closing Statement is mere legal argument addressing the underlying facts of the previous final order finding Respondent guilty of certain violations and assessing a $1,000 fine. Absent a timely appeal, these matters are immaterial and rejected. These proposals are also rejected as mere argument. COPIES FURNISHED: Fred Seely, Executive Director Construction industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 G. W. Harrell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 David L. Norris 3144 Northwest 39th Court Lauderdale Lakes, Florida 33309 Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issues presented for decision herein are whether or not the Respondent diverted funds from a construction project involved herein; violated local building codes and thereby engaged in misconduct in the practice of electrical contracting all in violation of Sections 489.533(1)(m), (f), and (i), Florida Statutes (1983).
Findings Of Fact Based upon my observation of witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. During times material herein, Respondent is and continues to be a registered electrical contractor having been issued license number ER004865. On November 28, 1983, Clell Villella, manager of Coral Castle, Inc., a tourist attraction, and Respondent entered into a subcontractual agreement for the installation of parking lot and outdoor lighting electrical connections to existing electrical services at the Coral Castle. The contract price was $26,600 and the parties agreed that the work would be-completed by January 1, 1984, the beginning of Coral Castle's peak tourist season. (Petitioner's Composite Exhibit 2 and testimony of Clell Villella). On December 8, 1983, Respondent was given an initial deposit of $6,600 to commence work. (Petitioner's Composite Exhibit 3). After Respondent was given the initial deposit he failed to appear at the Coral Castle to commence work on the project for approximately 30 days despite Manager Villella's constant prodding through phone calls. Respondent commenced work on the project during early January, 1984 and worked evenings for a period of approximately ten to twelve days on the project. After Respondent had worked on the project for approximately twenty hours, he abandoned it by failing to appear at the site for more than 30 days. Respondent failed to return Manager Villella's phone calls. When it became apparent that Respondent would not be returning to the project, Manager Villella hired Tierney Electrical Contractors, Inc., (Tierney) to complete the electrical work on March 7, 1984. Tierney submitted a proposal to complete the work in question for the sum of $36,500. (Petitioner's Exhibit 4). Tierney was requested to make some modifications to the work which Respondent had contracted to perform. Tierney estimates the added cost resulting from the modifications increased the value of his proposal by approximately $4,000. (Testimony of William Tierney). When Tierney commenced construction on the project, Manager Villella requested that he estimate the amount of the work that Respondent had completed. Tierney estimated that amount to be 13% of the project or approximately $2,226. Tierney's calculations were based on the fact that Respondent had installed approximately 643 feet of 3/4-inch rigid conduit. Based on the estimate of the work completed by Respondent, Coral Castle, by letter, requested Respondent to refund the $4,374 difference between the amount of the deposit initially tendered to him and the amount of work completed as estimated by Tierney Electrical Contractors. As of the date of the hearing, Respondent failed to respond to this demand or return any telephone calls from Manager Villella. At no time while Respondent performed the work in question for Coral Castle, Inc., had he (Respondent) applied for or obtained an electrical permit to perform the work in question. Respondent acknowledges that no permit was obtained for the work he performed at Coral Castle. However, he maintains that the common practice in the area is that permits are "pulled" after the work is completed or, in any event, prior to the first inspection; that it is permissible to commence construction except that a permit has to be obtained prior to the time when the job is either completed or the first inspection is due. However, a review of the pertinent sections of the South Florida Building Code, 1 1984 edition, reveals that it is necessary to first file an application for and obtain a permit prior to. commencement of construction. Chapter 3, Section 301, South Florida Building Code (1984 Edition).m
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that Respondent's license as a Registered Electrical Contractor be suspended for a period of one (1) year. Further, it is recommended that the suspension be stayed for a period of 30 days during which time the Respondent will be allowed an opportunity to enter into a settlement agreement with Coral Castle, Inc., and provided that such an agreement is made, that the suspension revert into a term of probation for a like period i.e., (1 year). Finally, it is recommended that the Respondent pay the Petitioner an administrative fine in the amount of $1,000. Recommended this 4th day of February, 1986, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1986.
Findings Of Fact The Respondent, Hodges J. Jefferson, is a registered general contractor having been issued License No. CGC004463. The Petitioner is an agency of the State of Florida charged with regulating the licensure status of contractors in the State of Florida, and with enforcing the requirements of Chapter 489, Florida Statutes, pertaining to licensing and regulation of the practices of general contractors in Florida. On or about March 3, 1979, Respondent, doing business as H. J. Jefferson Brothers Construction, Inc., entered into a contract with Gladston Kemp to construct a room addition on his residence for a total sum of $14,900. The construction loan by which Mr. Kemp was to finance the addition was ultimately approved sometime in April 1979. The Respondent commenced work on the property after the first check was paid him by Mr. Kemp on May 3, 1979. The Respondent worked for two to three days digging the foundation, constructing the foundation and the brick wall involved and then stopped work for a period of four to five weeks. He then came back and worked on the addition, finishing construction of the foundation, the block walls, the tie beam and the bedroom portion of the roof up to the first layer of tar paper on one side of the addition. The other side of the addition to Mr. Kemp's house was left at that point with the roof not being constructed at all. Up to July 20, 1979, Mr. Kemp had paid the Respondent a total of $7,500, inasmuch as the contract called for payments in one-third increments of the total contract price at various stages of construction. At that point the Respondent left the job after being paid $7,500 of the total price. By letter of July 24, 1979, the Respondent demanded an additional $2,900 which would complete approximately the second one-third of the total contract price and on the following day, July 25, Mr. Kemp paid the Respondent the $2,900. Thus, at that point, July 25, 1979, Mr. Kemp had paid the Respondent a total of $10,400. The Respondent did not come back and continue construction of the project. Mr. Kemp tried repeatedly to contact the Respondent, to no avail. After numerous efforts, he contacted him by telephone and the Respondent assured him that he would come by and send "his man" out to commence work, but no one ever appeared to continue the construction. Finally, in October, 1979, Mr. Kemp contacted the Respondent and he once again assured Mr. Kemp that he would come back to finish the job. Additionally, sometime after July 25, 1979, the Respondent demanded $375 from Mr. Kemp to pay for the architectural plans drafted by Edna Mingo, the architect who drafted the plans for the job in January, 1979. Mr. Kemp had already paid the $375 to Edna Mingo in January of 1979. In any event, he relented and gave the Respondent the additional $375 in order to induce him to come back and finish the job. Finally, in the latter part of October 1979, the Respondent returned to the job and began putting rafters on the bedroom portion of the addition. He then asked Mr. Kemp to advance him some more money, over and above the $10,775 Mr. Kemp had already paid him. The roof on one-half of the addition was still not finished, but Mr. Kemp gave the Respondent another $1,700 by check dated November 16, 1979. Approximately two weeks thereafter Mr. Kemp gave the Respondent another $500 in cash. Shortly before Thanksgiving 1979, the Respondent came to the project and asked Mr. Kemp to advance him some more money which Mr. Kemp refused to do. Several days later Mr. Kemp received a "demand letter" from the Respondent asking for more money and reminding him of his obligation to honor the contract. At that point Mr. Kemp contacted the Respondent and met with him at the job site, whereupon Mr. Kemp displayed to him all the checks he had already paid him, informing him of the total amount of money paid and that he did not feel that he owed him any more money. He demanded that the Respondent complete his job. The Respondent, in turn, sent Mr. Kemp a letter on November 21,1979, informing him that he would complete the job if Mr. Kemp gave him the last one- third of the contract price. At that point Mr. Kemp had already given the Respondent $12,975, so, less than one-third of the contract price was still outstanding. The Respondent assured Mr. Kemp in that letter (Petitioner's Exhibit 17, in evidence) that he would complete the job by December 15, 1979. Mr. Kemp gave the Respondent another $2,100 making a total of $15,075 paid to the Respondent (the contract price being $14,900). Respondent did not complete the job in December 1979 and indeed never completed it. He went to Mr. Kemp's house "one night in December" and discussed the job with Mrs. Kemp's wife and assured her that he was going to try and get the job "out of the way" by January. The Respondent never came back to continue working on the job and never communicated with the Kemps after December 1979, except for a fist fight between Mr. Kemp and the Respondent engendered by the bitterness resulting form this dispute which occurred in July 1980. Mr. Kemp and his wife, however, went to the Respondent's home in January 1980 to ask him when he would complete the job. He became abusive and would not give them a copy of the plans so that the Kemps had to get a duplicate copy from the architect so Mr. Kemp could then obtain the appropriate inspections from the building department. There were no extra additions to the contract and the only work ever required of the Respondent was that described on the building plans. The fees fro the electrical, plumbing, and building permits were paid by Mr. Kemp. At the time the Respondent left the job it was approximately 55 percent complete. The roof was incomplete. Mr. Kemp had to do the "rough plumbing," the "finish plumbing," install a half bath, a utility room and a full bath in the bedroom. Mr. Kemp also had to "rough in" the electrical wiring, that is, run the electrical service wiring inside the house for the finish electrical work. Mr. Kemp also had to install drywall and plaster inside and outside the house and completely "finish out" the addition to his home. He supplied some of the labor for this himself and hired various subcontractors to do other portions of the work such that he ultimately spent approximately $9,000 in excess of the amount paid Respondent in order to finish the job in accordance with the building plans. Completion of the work thus cost the Kemps an additional $9.000 above the $15,075 already paid the Respondent, with the use of the monies paid Respondent for the last 45 percent of the work required of him by the contract being unexplained, except for the Respondent's general statement that some of that money was attributable to unaccounted for "overhead" costs. The Respondent left the job in terms of performing any work in October 1979, promised to finish it in December and later in January 1980, and never returned to finish the job or perform any more work such that sometime in the summer of 1980 the Kemps ultimately finished the job through their own labors and that of various subcontractors and materialmen they were forced to hire and pay.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED that the contractor's license of Hodges J. Jefferson be suspended for a period of 5 years, provided however, that if he makes full restitution to the Kemps of all monies they expended for labor, materials and permits to complete the work he was contractually obligated to complete within one year from a Final Order herein that that suspension should be terminated and his license reinstated. DONE AND ENTERED this 14th day of March 1984 in Tallahassee, Florida. P. MICHAEL RUFF 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 14th day of March 1984. COPIES FURNISHED: Harold M. Braxton, Esquire 45 Southwest 36th Court Miami, Florida 33135 Hodges J. Jefferson 2250 Northwest 194th Terrace Miami, Florida 33156 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Summary Final Order should be granted and, if so, whether Florida Administrative Code Rule 9B-3.475 is an invalid exercise of delegated legislative authority.
Findings Of Fact Petitioner is the owner of a construction company that constructs roof-overs in the Leon County area. A roof-over is a construction method where an existing roof is covered over with an additional layer of roofing material without removing the old roof. The construction method is specifically authorized by section 1510, Florida Building Code, Building Volume (2004 as amended 07/2007), and Section 511, Florida Building Code, Residential Volume (2004 as amended 07/2007). Roof-overs are not considered roof replacements; roof-overs are considered a form of reroofing. As indicated, amended Florida Administrative Code Rule 9B-3.0475 was effective on April 6, 2008. The rule adopted, by reference, the Manual of Hurricane Mitigation Retrofits for Existing Site-Built Single Family Residential Structures (the Manual). In general, Section 101 of the Manual provides the requirements for mitigation as prescribed by law. Section 201.2 provides permissible techniques for accomplishing the requirements defined by Section 101. The Manual is not part of the Florida Building Code. Section 101 of the Manual provides: Retrofits Required. Pursuant to Section 553.844, Florida Statutes, strengthening of existing site-built, single family residential structures to resist hurricanes shall be provided. Site built single-family residential structures shall mean site built family detached residential structures. 101.1 When a roof on an existing site-built, single family residential structure is replaced, the following procedures shall be permitted to be performed by the roofing contractor: (emphasis supplied) Roof-decking attachment and fasteners shall be strengthened and corrected as required by section 201.1. A secondary water barrier shall be provided as required by section 201.2. Section 201.2 of the Manual provides the methods for installation of a secondary water barrier when an existing residence is subject to work that includes a “reroof.” The term “reroof” is not defined within the Manual. The authority for Florida Administrative Code Rule 9B- 3.0475 is Section 553.844, Florida Statutes. Section 553.844(3)(a) states: A roof replacement must incorporate the techniques specified in subparagraphs (2)(b) 2 and 4. (emphasis supplied) Subparagraph (2)(b)2 states: Secondary water barriers for roofs and standards relating to secondary water barrier. The criteria may include, but not limited to. . . . Chapter 2 of the Florida Building Code, defines reroofing, for purposes of the Florida Building Code, to include roof replacement and roof-overs. However, the Florida Building Code definition of reroofing is not determinative of the meaning of the term reroof in the Manual since the Manual is not part of the Florida Building Code. Testimony demonstrated that Leon County’s Building Inspector recognized the fact that the mitigation manual was not meant to apply to roof-overs because application of the requirement for a secondary water barrier requires removal of an existing roof covering and is inconsistent with the practice of roof-overs. Additionally, the Respondents do not intend the requirement for secondary water barriers to apply to roof-overs and have stipulated to that interpretation in this hearing. While the Manual could have been more precise in the use of the terms roof replacement and reroofing, it is clear that, when read as a whole, the Manual only addresses roof replacement and does not apply to roof-overs. Such a requirement is within the Respondents’ statutory authority.
