Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent James W. Geary presently holds certified general contractor's license number CG C005775. Respondent Geary apparently entered into a contract with Phillip Smith to add a screened porch to the Smith residence. Neither the contract nor the testimony of Mr. Smith were made available to the undersigned Hearing Officer. Respondent had difficulty obtaining a roofer and completion of the project was therefore delayed. During the interim, the interior of the Smith's living room suffered water damage. After receiving a complaint from the Smiths, Mr. Robert Jahn, Chief Building Official for the City of Tamarac, personally inspected the Smith project. He found that the water damage was caused by the uncompleted work of respondent and certain violations of the Southern Florida Building Code. Jahn did not know how long the project had not been worked on, but Smith told him he had tried for about one month to get respondent to return to correct the situation. Respondent testified that when he sent a man to the Smith residence to install the roof columns, Smith chased the man off the job. Upon the delivery of certain supplies for his projects, respondent Geary, d/b/a First Triangle Corporation, wrote two checks in the total amount of $391.41 payable to Rinker Materials. (Exhibit 1) These checks were offered for payment by Rinker, and were returned due to insufficient funds. The former credit manager of Rinker Materials did not know whether anyone from Rinker had contacted respondent about the checks. Respondent testified that no one from Rinker had informed him that the checks were dishonored. However, respondent did receive notice from his bank that the checks had been returned. He was changing banks about the same time and felt that the bank had made mistakes in the past. He felt that the checks were good when issued and he therefore did not put much reliance upon the notices received from the bank. Respondent testified that he is ready, willing and able to honor the checks written to Rinker Materials. Respondent Geary apparently entered into a contract with Richard Decker for the addition of a five by eleven foot bathroom to the Decker's residence. Neither the contract, the plans or specifications nor the testimony of Mr. Decker were offered into evidence at the Hearing. Respondent felt there were no deviations between the finished product and the job specifications, and that, even if there had been, there was no way he could put a five foot vanity into the project without violating the applicable building code. The field investigator for petitioner's District No. 10 found deviations from the plans with regard to the size of the vanity, the bathroom door and the illumination. He found that the Deckers had not indicated their approval of such deviations by placing their initials on the plans or specification. The South Florida Building Code (302.2(b)) provides that when the cost of a job is over $5,000.00, the permit applicant must present plans signed and sealed by a registered architect or engineer. A larger permit fee is also required for jobs costing over $5,000.00. On or about April 9, 1976, respondent Geary applied to the City of Tamarac for two building permits. (Exhibit 2). While blueprints were submitted, no plans signed and sealed by a registered architect Or engineer were submitted. From the square footages contained on the right hand column of the application, Chief Building Official Jahn determined that the value of the two projects were $7,300.00 and $6,620.00. The contract prices for these projects were approximately $8,000.00 and $10,000.00. There was no conclusive testimony as to who supplied the footage information on these applications, It was respondent's opinion that the actual costs of these projects did not exceed $5,000.00. Respondent apparently entered into a contract with Daniel Salzman for some project, and then entered into a second contract for the construction and installation of a fence and a trellis. For this second project, respondent received a deposit of $825.00. The first job was never completed by respondent and respondent never began work on the fence and trellis project. Respondent admitted that some $500.00 was due Mr. Salzman as a refund for the second project. He testified that he instructed Mr. Salzman to have the work on the first project completed by someone else and then to send respondent the bill for the same. Respondent has not heard from Salzman regarding this matter. By letter dated November 20, 1976, Chief Building Official Jahn notified respondent that "No further building permits [would] be issued to First Triangle Builders with you as their qualifier because of numerous complaints and unfinished projects." As indicated in the Introduction, petitioner filed an administrative complaint against respondent seeking to revoke his license for violations of certain ordinances and Florida Statutes S468.112(2). The cause was referred to the Division of Administrative Hearings for the appointment of a Hearing Officer, and the undersigned was designated to conduct the hearing.
Recommendation Based upon the findings of fact and conclusions of law recited above, as well as the seriousness of the offenses of which respondent has been found guilty, It Is recommended that respondent's certified general contractor's license number CG C005775 be revoked. Respectfully submitted and entered this 18th day of July, 1977, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (488-9675) Area Code 904 COPIES FURNISHED: Barry Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 Mr. James W. Geary 4370 Northwest 32nd Court Lauderdale Lakes, Florida Wallace Norman Construction Industry Licensing Board 305 South Andrews Avenue Ft. Lauderdale, Florida 33301 J. K. Linnan, Executive Director Construction Industry Licensing Board Post Office Box 8621 JacksonvIlle, Florida 32211
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that no action be taken against the Respondent, John R. Meyer. DONE and ORDERED this 19th day of December, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1979. COPIES FURNISHED: Michael E. Egan, Esquire 217 South Adams Street Post Office Box 1386 Tallahassee, Florida 32302 Ronald A. Cyril, Esquire 2070 Ringling Boulevard Sarasota, Florida 33577 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. CASE NO.: 79-1355 JOHN J. MEYER, CB C012853 Respondent. /
Findings Of Fact At all times material to these proceedings, the Respondent, ROBERT MENSCHING, was a certified residential building contractor in Florida, and held license number CR C020166. Mr. Mensching was the owner and qualifying agent for Robert Mensching Homes. On or about July 10, 1986, a written proposal was submitted by the Respondent to Mr. and Mrs. Mangiardi for the construction of a single family dwelling in Cape Coral, Florida. The construction price was $60,000.00, with an additional $500.00 for the purchase of the house plans. Mr. and Mrs. Mangiardi paid for the plans on the date of the proposal. Revisions to the proposal were submitted to the Mangiardis in September, 1986. The purchase price and the payment schedule remained the same. The proposal was accepted by the Mangiardis, and the down payment of $5,000.00 required by the contract to start construction, was given to the Respondent. Construction commenced in November 1986. By March 26, 1987, the Respondent had been paid $53,750.00 of the total construction contract price. This included the fourth draw on a five draw payment schedule. Only $6,250.00 remained to be paid by the purchasers for the last phase of construction. In April 1987, the Respondent informed Mr. Mangiardi that he would not complete the final phase of construction. The Respondent informed Mr. Mangiardi that he would pay him $5,000.00. An accounting was not given to the purchasers of the monies disbursed by the Respondent pursuant to the construction schedule. After the Respondent left the project, the Mangiardis were given notice of an outstanding lien in the amount of $963.80, which was owed to Kirkland Electric, Inc. Another Notice to Owner was filed by Wallcrafters, another subcontractor, for $5,272.50. The work completed by both subcontractors was performed during the Respondent's term as the prime contractor on the project. These two subcontractors were never paid by the Respondent out of the draws received by him for that purpose. The Respondent did not pay the $5,000.00 he told Mr. Mangiardi he would pay in April of 1987. The evidence is unclear as to whether this amount of money was a payment of liquidated damages for the breach, the balance of funds entrusted to the contractor which had not been disbursed in the preceding construction phases, or the amount of unpaid liens known to the contractor at the time of breach. The Respondent filed for bankruptcy after a judgment was entered against him in a civil action by the Mangiardis for breach of contract. A Notice of Aggravation was not submitted during the formal hearing regarding the actual damage to the licensee's customers as a circumstance to be considered in aggravation of the penalty to be assessed. A copy of the Florida Construction Industry Licensing Board's previous letter of reprimand was not presented at hearing so that the hearing officer and the Board could use the prior violation for aggravation purposes.
The Issue The issue in this case is whether Respondent committed the acts alleged in the Administrative Complaint and if so, what penalty is appropriate.
Findings Of Fact Based upon the testimony of the witnesses and the evidence presented and the entire record in this proceeding, the following material and relevant facts are found. At no time material hereto was Respondent, Donald Clark, licensed by the State of Florida Construction Industry Licensing Board to engage in construction contracting. At no time material hereto was Cancun Development Company ever qualified or certified by any State of Florida agency as a certified contractor. With knowledge of that he was not licensed by the State of Florida to solicit, engage in, nor contract for construction work, Respondent entered into an oral agreement with homeowner Ms. Eichar to build a second-story addition to her home, located in Indian Rocks Beach, Florida, for a contract price of $30,000.00. Respondent, who was paid by Ms. Eichar a total of $25,000.00, subcontracted with Mr. Erwin, a licensed electrical contractor, to do the electrical work at the Eichar's residence for $2,364.00. Respondent, after notice, failed to attend the formal final hearing regarding this matter. The investigative and prosecution costs to the Department of Business and Professional Regulation, excluding cost associated with attorney time, were $550.00.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered by the Department as follows: Finding Respondent, Donald Clark, guilty of having violated Subsection 489.127(1)(f), Florida Statutes, as alleged in the Administrative Complaint herein filed and imposing as a penalty an administrative fine in the amount of $5,000.00. Assess costs of investigation and prosecution, excluding costs associated with an attorney's time, in the amount of $550.70. DONE AND ENTERED this 23rd day of July, 2002, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 23rd day of July, 2002. COPIES FURNISHED: Donald Clark 813 East Bloomingdale Avenue Suite 252 Brandon, Florida 32720 Brian A. Higgins, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact Based on the evidence presented at hearing, the following facts are determined: The BOARD is the state agency charged with the duty to license, regulate, and discipline construction industry contractors pursuant to Chapter 489, Part I, Florida Statutes (1979). VARNUM is a licensed, certified general contractor holding two currently active licenses, CG C000832 and CG CA00832 (Prehearing Stipulation). Here, the BOARD seeks to discipline VARNUM'S licenses on the ground that he submitted to the BOARD a false, erroneous, and misleading Change of Status Application ("Application") which failed to disclose outstanding judgments and liens; VARNUM claims that he either did not know of the outstanding judgments and liens, or that he reasonably believed that they had been satisfied prior to the filing of this Application. (Prehearing Stipulation, Testimony of Varnum). On September 28, 1978, VARNUM filed his Application with the BOARD. The purpose of the Application was to qualify, under his licenses, a corporation known as General Contractors of Florida, Inc.; Richard Gale was identified as its president, VARNUM, its executive vice president. Within the Application, VARNUM answered the following questions in the negative: "12(b) Are there now any unpaid past due bills or claims for labor, materials, or services as a result of the construction operations of any person named in (i) below or any organization in which any such person was a member of the personnel? Yes ( ) No (x) * * * "(c) Are there now any liens, suits, or judgments of record or pending as a result of the construction operations of any person named in (i) below or any organization in which any such person was a member of the personnel? Yes ( ) No (x)" * * * "(d) Are there now any liens of record by the U.S. Internal Revenue Service or the State of Florida Corporate Tax Division against any person named in (i) below or any organization in which any such person was a member of the personnel? Yes ( ) No (x)" Paragraph 12(i), referenced in Questions 12(b) through (d) contained the name "Ira L. Varnum", Respondent. (Testimony of Norman: P.E. 4.) By executing, under oath, the Application, VARNUM expressly vouched for the truth and accuracy of his statements and answers contained therein. The Application expressly warns that "[a]ny wilful falsification of any information contained herein is grounds for disqualification." (P.E. 1.) From 1969 through 1976, VARNUM engaged in contracting under the following business entities: All Florida Builders Diversified, Inc. Varnum Enterprises, Inc. Varnum & Associates, Inc. Structural Concrete Forming, Inc. Ira L. Varnum & Co. (a partnership) Oakridge Construction Co., Inc. General Contractors of Florida, Inc. Since 1976, VARNUM engaged in contracting under the name of "Structural Concrete Forming of Florida, Inc.,"; this has been an active corporation with a gross income of 1.5 to 2 million dollars during the last two years. (Testimony of Varnum, Norman, Gale.) The following tax liens or civil judgments, arising out of VARNUM's prior construction operations, were extant and of record at the time the Application was filed, but were not disclosed by VARNUM in his answers to Questions 12(b) through (d): JUDGMENT OR DEBTOR LIEN CREDITOR DATE RECORDED AMOUNT Judgments: Structural Concrete Forming of Florida, Inc. Jiffy Johns, Inc. 6/1/77 $ 79.92 plus costs, $14.00 All Florida Builders Diversified Morgan Driveway 7/15/74 $ 147.95 Tax Liens: Structural Concrete Forming, Inc. U.S. Internal Revenue Service 2/11/76 $ 5,002.37 Ira Ira L. L. Varnum Varnum and and Co. U.S. Internal Revenue Service 8/3/73 $18,100.25 Ira Ira L. L. Varnum Varnum and and Co. U.S. Internal Revenue Service 3/19/74 $ 5,061.86 Ira Ira L. L. Varnum Varnum and and Co. U.S. Internal Revenue Service 3/22/73 $13,041.17 All Florida Builders U.S. Internal 8/29/73 $30,721.59 Diversified, Inc. Revenue Service All Florida Builders Diversified U.S. Internal Revenue Service 7/27/73 $ 2,404.94 All Florida Builders Diversified U.S. Internal Revenue Service 8/30/73 $21,747.76 All Florida Builders Diversified U.S. Internal Revenue Service 3/20/73 $10,161.41 Varnum Enterprises, Inc. Florida Division of Labor and Employment Opportu- nities 3/11/71 $ 2,700.00 plus int. & penalties Varnum and Associates, Inc. Florida Division of Labor and Employment Opportunities 8/4/70 $ 4,380.88 plus int. & penalties Structural Concrete Forming, Inc. Florida Division of Labor and Employment Opportunities 2/12/75 $ 649.57 plus int. The Jiffy Johns, Inc., judgment was paid by VARNUM prior to filing his Application on September 28, 1978, although the Satisfaction of Judgment was not executed until June 22, 1979, and recorded on June 25, 1979. The Burroughs Corporation may also have held a judgment against Varnum Enterprises, dated May 25, 1973; however, the copy introduced into evidence is illegible and, therefore, cannot support an affirmative finding. (Testimony of Norman, Varnum; P.E. 2, 3, 4, 7, 8, 9, 10, 11, 12, 13, 14; R.E. 2.) VARNUM did not willfully or knowingly falsify or fail to disclose the existence of the outstanding judgments and tax liens when he completed his Application. He believed that those judgments and liens had been satisfied years earlier, and had no reason to believe otherwise. When the tax liens were initially filed, he had turned them over to his attorney, Paul Mueller, for handling. Mueller had been resident agent for many of VARNUM's construction companies and VARNUM retained him to perform business-related legal services. VARNUM had reason to believe that the judgments and liens filed several years earlier had been handled and satisfied by Mueller, in accordance with VARNUM's instructions. The holders of those judgments and liens have not made an effort to collect or enforce them against VARNUM. VARNUM's assertion that he believed there were no outstanding judgments or liens against him at the time of his Application is buttressed by his experience in refinancing and subsequently selling his residence in 1978. Although one Federal tax lien and several other judgments and claims were satisfied and paid-off at the time of these two separate mortgage transactions, the judgments and liens here in question did not surface, were apparently unknown to the parties, and were not noted or included in the closing statement and title insurance policy accompanying the mortgages and sale. (Testimony of Varnum; R.E. 1, 3, 4.) Furthermore, since 1976 VARNUM has conducted in the same community a construction business under the name of "Structural Concrete Forming of Florida, Inc." That company has enjoyed a good credit rating with its suppliers, and has had no judgments or tax liens filed against it. The holders of the judgments and liens here in question never contracted the company to discuss, or seek collection of these outstanding claims. (Testimony of Gale, Varnum). VARNUM has filed proposed findings of fact and conclusions of law. Findings of Fact Nos. 9, 10, 11, 12, 16, 17, 18, 21, 22, 23, 24, 25 and 28 are hereby adopted. To the extent that his proposed findings of fact are not adopted herein, they are specifically rejected as being either irrelevant to the issues in this cause or as not having been supported by the evidence.
Conclusions Although Respondent made a false background on his Application--that there were no outstanding liens or judgments against him--the Petitioner Licensing Board, failed to establish that Respondent knew, or should have known that the statement was false. To the contrary, the evidence shows that Respondent made the false statement innocently, and upon a reasonable belief that it was true. Respondent is, therefore, not guilty of the charges, and the Board's Second Amended Administrative Complaint should be DISMISSED.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Second Amended Administrative Complaint filed against VARNUM be DISMISSED. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 15th day of October, 1980. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1980.
Findings Of Fact At all times relevant hereto, Respondent, Daniel A. Arguelles, held certified general contractor license number CG C004252 issued by Petitioner, Department of Professional Regulation, Florida Construction Industry Licensing Board. When the events herein occurred, he was qualified as an individual. He presently resides at 9455 Southwest 78th Street, Miami, Florida. Respondent's brother is J. Alejandro Arguelles. Alejandro holds an inactive contractor's license which has been delinquent since July, 1979. In June, 1984, Alejandro was contacted by an individual named Louis Taylor. Taylor told Alejandro that David Reynolds, who resided at 753 Northwest 116th Street, Miami, Florida, wished to add a room to his house. After meeting with Reynolds, Alejandro had plans for the addition prepared, provided an estimate for the job, and gave Reynolds a business card reflecting that he was a licensed general contractor. Reynolds and Alejandro then jointly executed a contract on July 26, 1985, wherein it was provided that A. Arguelles & Associates would construct the room addition for $19,000. The letterhead on which the contract was executed indicated that Alejandro was a general contractor. However, the entity "A. Arguelles & Associates" has never been qualified by any licensee to do construction work in the state. During all negotiations with Reynolds, Alejandro never mentioned that Daniel would be the contractor on the project although Alejandro did advise him that a general contractor would be required. All checks were made out to Alejandro, and Alejandro ordered all supplies and materials used on the project. In addition, Alejandro was at the job site on a regular basis. Prior to signing the contract on July 26, Daniel was approached by Alejandro and asked if he would be willing to act as contractor on the project. Daniel agreed, and thereafter pulled a job permit and used his license number on all pertinent documentation. Other than visiting the job site on a "couple" of occasions, he had no other contact with the project. He never met or had any contact with Reynolds. The actual amount of work done on the project by Alejandro and Daniel amounted to only $5,000.00 and consisted of constructing the foundation up to the tie beam. There is no evidence that this phase of the work was performed in a negligent or incompetent manner.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty as set forth in the Conclusions of Law portion of this order, and that he be fined $500.00. DONE and ORDERED this 1st day of October, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1985. COPIES FURNISHED: Salvatore A. Carpino, Esquire 130 N. Monroe St. Tallahassee, FL 32301 Fred Roche, Secretary Dept. of Professional Regulation 130 N. Monroe St. Tallahassee, FL 32301 Nancy M. Snurkowski, Esquire 130 N. Monroe St. Tallahassee, FL 32301 J. K. Linnan, Executive Director Florida Construction Industry Licensing Board P. O. Box 2 Jacksonville, FL 32201 Mr. Daniel A. Arguelles 9455 S.W. 78th Street Miami, FL 33173
The Issue Whether the Respondent was validly disciplined by a local government, which causes the Respondent to be in violation of Section 489.129(1)(i), Florida Statutes (1985). Whether the Respondent failed to perform the contracting job alleged in the Administrative Complaint in a reasonably timely manner, or abandoned the job, in violation of Section 489.129(1)(m), (k), Florida Statutes (1985). Whether the Respondent exhibited financial mismanagement, misconduct or diversion, in violation of Section 489.129(1)(h), (m), Florida Statutes (1985). Whether the Respondent committed gross negligence, incompetence or misconduct in connection with the job alleged in the Administrative Complaint, in violation of Section 489.129(1)(m), Florida Statutes (1985).
Findings Of Fact At all times material to these proceedings, the Respondent, Charles R. Schelah was licensed as a certified general contractor in Florida, and held license number CG C016841. Mr. Schelah was the qualifying agent for Schelah Construction, Inc. On March 11, 1986, Schelah Construction, Inc., entered into a contract with Moner F. Green and Karen L. Green to construct a residence in Prairie Creek Park, Charlotte County, Florida A copy of the contract is Petitioner's Exhibit Pursuant to the written agreement, construction would occur as per the signed construction drawings. The total contract price was to be $102,775.00. This quote was contingent upon a construction start on or before March 15, 1986. After that date, increases in supply and labor costs would be borne by the owners, Mr. and Mrs. Green. The contract further stated that there is no specific completion date, that an expected completion date was August 30, 1986. Construction began on the residence on April 4, 1986. Three revisions of the drawings were completed by the owner before a building permit was requested by the Respondent Schelah. Throughout the progress of construction, major and minor revisions were made by the owners. Many of these revisions delayed construction as the Respondent was required to obtain new special order materials and retrofit many of the changes into the existing construction phase. The Respondent recollected that thirty-five revisions were made to the construction plans by the owners during various phases of construction. In September 1986, the owners began to frequently telephone the Respondent in order to urge him to quickly complete the project as the owners were now required to pay the savings and loan association mortgage installments. The Respondent did not return the telephone calls. A letter was sent to the Respondent by the owners' attorney on November 3, 1986, notifying him that he needed to resume his responsibilities at the construction site. The Respondent did not reply to this letter. On November 7, 1986, the Respondent was removed as contractor of record by the owners. All but the final draw from the savings and loan had been given to the Respondent before his removal. After the Respondent was removed from the project, the owners were given notice of the following liens: $2,750.55 to Pre-Hung Doors of Florida for supplies delivered in August 1986; $700.00 to Paul Hartt Plastering and Stucco, Inc. for work completed in September 1986. The work completed by both subcontractors was performed during the Respondent's term as the prime contractor on the project. These two contractors were never paid by the Respondent out of draws received by him for that purpose through October 1986. These subcontractors, as well as others, testified that they were unable to communicate with Respondent after September 1986. The final draw from the savings and loan in the amount of $19,618.97, was used by the owners to complete the project themselves. The proof of payment submitted by the owner, Mr. Green, at hearing for completion under the direct contract was $6,149.14, in Respondent's Exhibit 14. The residence was completed by the owners in December 1986. Mr. Green, the owner, filed a complaint with the Charlotte County Building Board on October 29, 1986, alleging that the Respondent refused to call him, and was dragging completion of the job for unknown reasons hearing was held on February 19, 1987. At the conclusion of the hearing, the Charlotte County Building board suspended the permitting privileges of Schelah Construction, Inc., until such time as all jobs in progress were finished. During the administrative hearing, the Respondent admitted that a twenty-one day delay on the Green project occurred when he was unable to acquire a sheetrock hanger who would go to the hinterlands (Prairie Creek Park) where the residence was being built. He contends however, that the additional time delays were a result of changes in supply orders due to the changes made by the owners, and the requirement that subcontractors be rescheduled to accommodate these changes. Petitioner's experts in construction practices within Florida, Mr. Bernard Verse and Mr. Stanley Ink, were unable to render an opinion that the Green Construction project had been abandoned by Respondent Schelah, or that there had been a diversion of funds. However, Mr. Ink did render an opinion that the project was not completed in a reasonably timely manner, that the Respondent is guilty of financial mismanagement, and that the Respondent committed gross negligence, incompetence or misconduct on the job in that the Respondent did not use due diligence in completing the job, staying on the job, and paying the subcontractors as the contractor should. Mr. Verse opined that the Respondent committed financial mismanagement and gross negligence in the practice of contracting. It was gross negligence not to maintain contact with clients. The Respondent's own expert in construction practices in the Punta Gorda area, Mr. Larry Deirmeyer, noted that it is difficult to acquire unscheduled building supplies in the Punta Gorda area if a contractor runs a small construction company because the supply houses are in Fort Myers, where rapid growth is occurring. In addition, it is difficult to get subcontractors to work on construction in areas like Prairie Creek Park, which is remote from the developed areas of Charlotte County. After Mr. Deirmeyer was admitted as an expert in construction practices, the Hearing Officer learned that he had built a custom home for the owner Moner Frank Green in 1980. Mr. Green's removal of Mr. Deirmeyer's company from the construction project during the last draw of that project, and his continuous changes in those plans were not considered by the Hearing Officer in this case except for the purpose of weighing Mr. Deirmeyer's independence as an expert witness. Another expert witness in construction practices presented by the Respondent was James Anderson, a state certified contractor from the Port Charlotte area. Mr. Anderson acknowledged the local builder supply problem and rendered the opinion that nine months was a reasonable period of time in which to complete the Green project, based upon the construction plans, the change orders, and the travel required to the project, which is not in the immediate Port Charlotte area. The Respondent Schelah did not maintain communication with the owners regarding the progress of the project, even though he was telephoned repeatedly and received written communication from the Green's attorney. This failure to maintain communication resulted in the Respondent's dismissal from the project. The County's Building Director's requests for communication were also refused by the Respondent.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Respondent be found not guilty of having violated Section 489.129(1)(i), Florida Statutes, as alleged in paragraph five of the administrative complaint. That the Respondent be found not guilty of having violated Sections 489.129(1)(m) and (k), Florida Statutes, as alleged in paragraph six of the administrative complaint. That the Respondent be found not guilty of having violated Sections 489.129(1)(h) and (m), Florida Statutes, as alleged in paragraph seven of the administrative complaint. That the Respondent be found guilty of having violated Section 489.129(1)(m), Florida Statutes, as alleged in paragraph ten of the administrative complaint in regard to misconduct by the Respondent on the Green project. That the penalties assessed against the Respondent not include an aggravation of penalties under Rule 21E-17.002, Florida Administrative Code, and that the Respondent pay a fine of $750.00, as set forth in Rule 21E-17.001(5), Florida Administrative Code. DONE and ENTERED this 9th day of June, 1989, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 9th day of June, 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 88-3442 Petitioner's proposed findings of fact are addressed as follows: Accepted. Accepted. See HO #1. Accepted. See HO #1. Rejected as to location of project. The rest is accepted. See HO #2. Accepted. Accepted. See HO #2. Accepted. See HO #4. Accepted. See HO #4. Accepted. See HO #4. Accepted. See HO #5. Accepted. See HO #4. Accepted. See HO #5. Accepted. See HO #6. Accepted. Accepted. See HO #9. Accepted. See HO #9 and #10. Accepted. See HO #10. Accepted. Accepted. See HO #13. Accepted. Accepted. Rejected. See HO #13 and #11. Rejected. See HO #11. Accepted. See HO #11. Accepted. Accepted. Accepted. See HO #14. Accepted. See HO #3 and #8. Accepted. See HO #7. Respondent's proposed findings of fact are addressed as follows: Accepted. See HO #1. Accepted. See HO #2. Accepted. See HO #3 and #4. Accepted. See HO #13. Accepted. See HO #5. Accepted. See HO #6. Accepted. See HO #6. Accepted. See HO #7. 9. Accepted. See HO #9, #10, #11, #12 and #13. 10. Rejected. Irrelevant to this proceeding. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0729 John Charles Heekin, Esquire 21202 Olean Boulevard, Suite C-2 Port Charlotte, Florida 33952 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0729 Fred Seely, Executive Director Florida Construction Industry Licensing Board 111 East Coastline Drive Post Office Box 2 Jacksonville, Florida 32202
Findings Of Fact At all times material hereto, Respondent, William Losciale, was a licensed registered pool contractor in the State of Florida, having been issued license number RP-0032951, by the State of Florida, and was the qualifier of Lynn Pools. On June 9, 1987, Respondent entered into a contract with Kevin D. Foy for the construction of a pool with a screen enclosure on Mr. Foy's property for the sum of $12,000.00. On August 12, 1987, Mr. Foy made his final payment to the Respondent for the pool and enclosure and all related work. On June 9, 1987, Respondent entered into a contract with Harold Orcutt for the construction of a pool with a screen enclosure on Mr. Orcutt's property for the sum of $18,015.00. On August 1, 1987, Mr. Orcutt made his final payment to the Respondent for the pool and enclosure and all related work. On May 12, 1987, Respondent entered into a contract with Ann McAuley for the construction of a pool with a screen enclosure on Ms. McAuley's property for the sum of $14,204.08. On September 18, 1987, Ms. McAuley made her final payment to the Respondent for the pool and enclosure and all related work. At the end of September, 1987, the Respondent entered into an oral contract with Paragon Aluminum Products, Inc. to have Paragon Aluminum Products, Inc., install the pool enclosure at the Foy residence, pursuance to the Respondent's contract with the Foys. The total Paragon contract price was $3,975.00 which was to be paid by the Respondent to Paragon within two weeks of October 6, 1987, which was the completion date. The Respondent failed to pay that amount in a timely manner. On or about July 16, 1987, the Respondent entered into an oral contract with Paragon Aluminum Products, Inc. to have Paragon Aluminum Products, Inc., install the pool enclosure at the Orcutt residence pursuant to the Respondent's contract with the Orcutts. The total Paragon contract price was $4,910.00, which was to be paid by the Respondent to Paragon within two weeks of the first part of August, 1987, which was the completion date. The Respondent made a partial payment on August 17, 1987, of $3,015.00 and the balance of $895.00 was not paid in a timely manner. On or about July 20, 1987, the Respondent entered into an oral contract with Paragon Aluminum Products, Inc. to have Paragon Aluminum Products, Inc., install a pool enclosure at the McAuley residence pursuant to the Respondent's contract with Ms. McAuley. The total Paragon contract price was $4,321.00 which was to be paid by the Respondent to Paragon within two weeks of August 5, 1987, which was the completion date. The Respondent made a partial payment on September 12, 1987, of $2,704.08 which left a balance of $1,616.92 which was not paid in a timely manner. When the Respondent failed to timely pay Paragon Aluminum Products, Inc., at the end of the foregoing jobs, an officer of Paragon contacted the Citrus County Building Department in an effort to have that department aid her in collection of the monies owed. The Respondent admitted to an investigator of the Department of Professional Regulation on June 7, 1988, that he was having cash problems in relation to the three jobs, that all work had been completed, but due to those cash flow problems, Paragon had not been paid in full. The Respondent signed a personal promissory note for the full amount due to Paragon. No liens were ever filed by Paragon. The Respondent's county license was suspended the Citrus County Licensing Board on May 11, 1988, until he was able to show financial responsibility to that board. That suspension was lifted by the Citrus County Licensing Board on October 12, 1988. Respondent has previously been disciplined by the Florida Construction Industry Licensing Board.
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 and therein penalize the Respondent, William Losciale, as follows: Assess a fine of $1500 for the violation of Section 489.129(1)(i) Dismiss the remaining charges made in the Administrative Complaint. DONE and ENTERED this 19th day of October, 1989, in Tallahassee, Florida. DIANE K. KIESLING 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 19th day of October, 1989.
