The Issue The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaints and, if so, what penalty should be imposed.
Findings Of Fact It is undisputed that at all times material hereto, Respondent was licensed by the State of Florida as a Certified General Contractor, having been issued license number CG C58099. Respondent passed the licensing examination in August 1995. Case No. 99-0261 Respondent is not a licensed roofing contractor. Respondent's Certified General Contractor's license did not and does not permit him to obtain roofing permits to perform any type of work on roofs. Respondent's Certified General Contractor's license number was not low enough for him to be grandfathered in by the State to allow him to lawfully perform roofing work with his Certified General Contractor's license. On or about February 23, 1998, Delfina Valdes contracted with Johnny Hatcher, d/b/a Hatcher's Roofing, to repair the roof on her residence located at 18101 Northwest 32 Avenue, Miami, Florida. They contracted for Hatcher to remove Valdes' old roof and install a new roof at a cost of $4,000. Valdes paid Hatcher $2,000 as a down payment toward the cost of the roof's repair. At no time material hereto was Hatcher a licensed roofing contractor. Furthermore, at no time material hereto was Hatcher's Roofing qualified by the State of Florida to perform contracting. Hatcher removed the roof from Valdes' residence. After removing the roof, he did not perform any more work. Respondent met with Valdes and represented to her that Hatcher was working for him. Respondent further represented that he would obtain the permit for the roofing work. Respondent paid Cayetano Alfonso to obtain a roofing permit for the work on Valdes' roof. On or about March 26, 1998, Alfonso made application to Metropolitan Dade County, Department of Planning, Development and Regulation for the roofing permit, which was subsequently issued. Alfonso was a Certified General Contractor who was licensed to perform roofing work. Alfonso's Certified General Contractor's license number was low enough for him to be grandfathered in by the State to allow him to lawfully perform roofing work with his Certified General Contractor's license. Alfonso was not the qualifier for Hatcher's Roofing nor was he Respondent's qualifier. Alfonso did not enter into the contract with Valdes for repairing her roof. Alfonso was not a party to the contract for repairing Valdes' roof. An inference is drawn and a finding of fact is made that Hatcher was not acting on behalf of Alfonso when he entered into the contract with Valdes. An inference is drawn and a finding of fact is made that Respondent was not acting on behalf of Alfonso when he represented to Valdes that he would obtain the permit for the roofing work. When Respondent discovered that Hatcher had received a $2,000 deposit from Valdes, he requested Alfonso to cancel the permit. On or about April 20, 1998, Alfonso cancelled the roofing permit. On or about June 5, 1998, Valdes cancelled the contract between her and Hatcher Roofing. Valdes received a refund of the $2,000 from Hatcher, through a third party, that she had paid him. Case No. 98-4859 On or about April 9, 1995, Respondent entered into a contract with Susan Casper to construct an addition to her residence located at 17350 Northeast 12th Court, North Miami Beach, Florida, at a cost of $38,135. Casper paid Respondent $36,285.00 toward the cost of the addition. Respondent was not licensed at the time that he entered into the contract. On or about March 20, 1996, Respondent obtained a permit from the Metropolitan Dade County, Department of Planning, Development and Regulation for the work on the addition. Several delays were encountered during the performance of the work. Some of the delays resulted from changes by Casper, which changes required approval by Metropolitan Dade County, Department of Planning, Development and Regulation; however, most of the delays were Respondent's own doing. In October 1996, Casper paid $2,588 to Best Truss Company for a claim of lien filed on her residence, associated with the work being performed on her residence. Respondent worked sporadically on Casper's addition through April 1997. He would inform her at times that he was returning but failed to return. At one point, Casper's children constructed a sign in their own handwriting, instructing Respondent to keep out and indicating that there was no trespassing by him. The sign was posted on the door of Casper's residence. Casper informed Respondent that her children constructed the sign. It was obvious that the keep out, no trespassing sign was constructed by children. Respondent's assertion that he was kept away from Casper's residence by the children's sign is not credible. Even after the children's sign was posted on the front door of Casper's residence, Respondent agreed with Casper to resume work, and he did so. However, his work was sporadic. In or around June 1997, Casper sought assistance from the Metropolitan Dade County, Department of Planning, Development and Regulation to get Respondent to complete the work. In July 1997, Respondent obtained a window permit for the work on Casper's residence. After July 1997, Respondent ceased working on Casper's residence. He did not provide Casper with any notice that he was ceasing work. Respondent had no valid reason for ceasing the work. In September 1997, Casper transferred the permit for the work on her residence from Respondent's name to her name. Respondent failed to perform all the work under the contract. Some of the work performed by Respondent or caused to be performed by Respondent contained code violations and needed correcting. Certain work performed by Respondent or caused to be performed by Respondent needed correcting. Wood doors, glass block, electrical work, and a sprinkler were in need of correction. Casper bore the expense of the corrections. The corrective work was completed at a cost of $1,675.00. The value of the work performed by Respondent on Casper's residence was $18,272, minus the cost of the corrective work of $1,675, which equals a total value of the work at $16,597. This cost value includes overhead and profit. Even though the value of the work by Respondent was $16,597, Casper paid Respondent $36,285, a difference of $19,688. Casper hired a new contractor on or about September 17, 1997, to complete the construction on her residence at a cost of $16,350. As to Case No. 98-4859, as of January 26, 1999, Petitioner incurred a cost of $1,108.76 for the investigation and prosecution of Respondent. Petitioner previously disciplined Respondent for violating Chapter 489, Florida Statutes (1995), including violating Subsection 489.127(1)(k), Florida Statutes (1995), abandonment of a construction project.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Construction Industry Licensing Board enter a final order and therein: As to Case No. 99-0261, finding that Respondent violated Subsection 489.129(1)(e), Florida Statutes (1997). As to Case No. 98-4859, finding that Respondent violated Subsection 489.129(1)(k), Florida Statutes (1997), in Count I; and dismissing Count II. Revoking Respondent's license. Ordering Respondent to pay restitution to Susan Casper in the amount of $19,688.00. DONE AND ENTERED this 31st day of October, 2000, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 2000. COPIES FURNISHED: Diane Snell Perera, Esquire Department of Business and Professional Regulation 401 Northwest 2nd Avenue, Suite N607 Miami, Florida 33128 Richard F. Hayes, Esquire 10300 Sunset Drive, No. 499 Miami, Florida 33173 Rodney L. Hurst, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Respondent is, and has been at all times material hereto, a registered roofing contractor in the State of Florida, having been issued license number RC 0039352. Respondent is the qualifying agent for Ken and Rick's Roofing, Inc. of Mami, Florida. On May 16, 1986, Ken and Rick's Roofing, Inc. contracted to repair roof leaks for a Victor Krauthaner of 18441 Northeast 21st Place, North Miami Beach, Florida. The contract, signed by Respondent and Mr. Krauthaner, contained a six (6) month warranty on repairs. The contract price was $215.00. Mr. Krauthaner paid the full amount by a check which was cashed by Respondent. On May 17, 1986, David J. Godfried, an employee of Ken and Rick's Roofing, Inc. was dispatched by Respondent to repair Mr. Krauthaner's roof. Godfried removed tiles from the affected portion of the roof and installed new tar paper. The old tiles could not be re-used and Godfried did not have appropriate tiles in stock, so he left the tar paper exposed and promised Krauthaner that he would return with new tiles within a week. No one from Ken & Rick's Roofing, Inc. returned after May 17, 1986 to replace the tile and Krauthaner began experiencing new leaks. Mr. Krauthaner made repeated attempts by telephone and letter to encourage Ken & Rick's Roofing, Inc. to complete the repairs. Representatives of the company repeatedly assured Krauthaner that someone would respond to repair the leaks, but no one ever did. Mr. Krauthaner repaired the leak himself in June of 1987. Chapter 10 of the Code of Metropolitan Dade County requires that roofing contractors working within the county be either certified by the State of Florida or possess a certificate of competency in roofing issued by the county. Respondent's registered roofing license was suspended by The Construction Industry Licensing Board in March 1985 for failure to pay a fine assessed as the result of a previous disciplinary action. The suspension was in effect at the time Respondent contracted to repair the Krauthaner residence. Respondent does not possess a certificate of competency from Dade County, nor did he possess one at the time the contract was executed. Respondent has been disciplined on three prior occasions by The Construction Industry Licensing Board on January 23, 1984 (DPR Case Number 33028); May 21, 1984 (DPR Case Number 42963); and, June 6, 1985 (DPR Case Number 49942). The complaint in Case Number 42963 alleged that Respondent had exceeded the scope of his license by contracting in Dade County without first meeting local competency requirements.
The Issue Whether Respondent should be disciplined for failure to comply with provisions of Florida law?
Findings Of Fact Respondent, George F. Garrard, is licensed as a registered roofing contractor holding State of Florida license number RC 0045805. On May 14, 1986, Respondent entered into a contract with Ronald Skinner to reroof a house located at 2226 Eudine Drive, in Jacksonville, Florida. The contract provided that Respondent would: "Tear off the entire roof to sheeting. Haul off all debris. Install 5 ply-build-up roof. New metal edging." In exchange for the work, the contract called for Respondent to receive $1100.00, $600.00 to be paid in advance for materials and $500.00 to be paid upon completion of the job. 2. Mr. Skinner paid Respondent the $600.00 advance for materials and work on the roof began the following day. While the work on the roof was in progress, Mr. Skinner conducted periodic inspections and noticed that the felt had buckled up. Mr. Skinner asked Respondent how he was going to fix the felt and Respondent said that he could fix the felt by cutting out the buckled parts and patching the felt. Mr. Skinner responded that he had a patched roof before and did not want another; he wanted a new roof. Respondent promised he would fix the problem. Prior to the work being completed, Respondent made a telephone call to Mr. Skinner and asked for payment of the remaining balance on the contract in order to purchase the materials needed to finish the job. Mr. Skinner agreed to meet John T. Garrard (Respondent's son) at the house and pay the balance. Respondent authorized Mr. Skinner to pay John T. Garrard. When Mr. Skinner arrived at the house, John T. Garrard and another person were unloading rocks from a pick-up truck and placing the rocks in a pile on the carport roof. Mr. Skinner paid John T. Garrard $500.00 and John T. Garrard wrote "Paid in Full" on the face of the contract and signed his name. A few minutes after Mr. Skinner left the house, John T. Garrard and the other person also left the house. Two or three days later, Mr. Skinner returned to the house. He noticed that no further work had been done. The rocks which had been unloaded from the pickup truck were still in a pile on top of the carport. Mr. Skinner was afraid the weight of the rocks would damage the carport so he spread the rocks on the roof. There were not enough rocks to cover the whole roof. Also, the rocks were loose because no tar had been spread on the roof to hold the rocks in place. Mr. Skinner contacted Respondent or someone in his household several times, and Respondent assured him he would finish the job. No further work was done on the roof by Respondent. Mr. Skinner last contacted Respondent by letter dated January 26, 1987, wherein he asked that Respondent finish the job since he had been paid in full. On the date of the hearing, the roofing job had not been completed. The rocks were still insufficient to cover the entire roof, no tar had been spread to hold the rocks in place, and the felt was still buckled in various places. Respondent never obtained a building permit for the reroofing job.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of violating Sections 489.129(1)(d) and (k), Florida Statutes, and imposing a fine of $2,000 on Respondent. DONE and ENTERED this 30th day of March, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES 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 March, 1988. COPIES FURNISHED: David L. Swanson, Esquire Department of Professional Regulation 120 North Monroe Street Tallahassee, Florida 32399-0750 George F. Garrard 4622 Tabernacle Place, East Jacksonville, Florida 32207 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact At all times pertinent to the allegations contained in the Administrative Complaint, Respondent John G. Gordon, Jr. was licensed by the State of Florida as a registered roofing contractor by License No. RC-0032501, first issued to Respondent, qualifying as an individual in 1978 and continually renewed as such since then. On June 4, 1981, Respondent was called by Ms. Allene S. Gilbert to give her an estimate on re-roofing the two flat portions of her house roof. When he went to the house, he went up on the roof by himself to look and, when he came down, he gave her an estimate of $1,400 to re-roof the two flat sections on either side of the gabled center section. He did not then, or any time thereafter, prior to doing the work, indicate there was anything wrong with the siding which connected down from the gabled roof to the flat roof. After making his inspection and giving the estimate which Ms. Gilbert accepted, he entered into an oral contract with her which, when reduced to unsigned memo form, provided that he would tear off the old roof down to the deck and replace it with a 15-year built up roof consisting of a total of five layers. He also agreed to replace the rock and all metal around the edges of the house. He specifically stated that the work he did, both materials and his workmanship, was guaranteed for 15 years against leaks. Respondent indicates he found that the metal flashing along the side of the house where the flat roof joins the siding was rusted out and he replaced it. He contends that this rust was due to the deteriorated (rotten) condition of the lap siding above the flat roof which allowed water to get in behind the flashing. In any case, during the first rain after the completion of the work, the preexisting leaks in the bedroom which prompted the roof replacement were worse and additional leaks developed inside the house. The leakage was so severe, the bathroom ceiling caved in. Ms. Gilbert called Respondent many times to get him to come out and repair the leaks, but never was able to speak with him personally. Each time she called, she would leave a message with whomever answered the phone, requesting that he come out or call, and was assured that these messages were getting relayed to Respondent, but he never returned any call and, to the best of her knowledge, he never came to her house again. However, she works during the day and would not know if he was there or not. No neighbor told her they saw someone there, and she received no note or other indication that the Respondent had come. Respondent admits that having once responded to her earlier call and seeing that the leaking was caused by the condition of the siding for which he was not responsible and about which he had previously done nothing, he was satisfied that his work was done properly and he did not call back or ever respond to any of Ms. Gilbert's other calls. He contends that the problem was not caused by him or a part of the work he had done. Therefore, he was not responsible for it. Ms. Gilbert contends, after trying to get Respondent to honor his guarantee for six months, she gave up and had someone else to do the job. The leaks are now repaired and the siding which Respondent stated was rotten, though painted once since then, has not been replaced or repaired. Respondent having entered into the contract with Ms. Gilbert, began and completed the entire project without either (1) having an occupational license as required by Section 14-39, Ordinance of the City of Fort Walton Beach; or, (2) securing a permit for the repair as required by Section 106.1, Standard Building Code, incorporated into the Ordinance of the City of Fort Walton Beach.
Recommendation Based on the foregoing, therefore, it is RECOMMENDED that Respondent pay an administrative fine of $250 and that he be placed on probation for six (6) months. DONE AND ENTERED this 9th day of May 1984 in Tallahassee, Florida. ARNOLD H. POLLOCK 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 9th day of May 1984. COPIES FURNISHED: Douglas A. Shropshire, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. John G. Gordon Post Office Box 498 Destine, Florida 32541 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 the Respondent committed the violations alleged in the Administrative Complaints and, if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency charged with regulating the construction industry within the State of Florida. At all times material to the allegations of these cases, the Respondent was licensed by the Department as a certified general contractor, license number CG C007009. Additionally, due to the time period from which the Respondent held his license he was "grand- fathered" to perform roofing construction. The Respondent was the qualifying agent of O. Benitez & Associates, Inc., a Florida corporation. On November 13, 1997, the Respondent executed a contract with Maricel Alayon to construct a terrace for a home located at 1215 West 82nd Street, Hialeah, Florida. While Ms. Alayon referred to the structure as a "terrace," it was to be a covered (roofed) open porch attached to her home at the rear of the property. The price for the addition was $14,125.00. The contract that was prepared by the Respondent for Ms. Alayon's signature did not contain the Respondent's license number or a written notice of the consumer's rights under the Construction Industry's Recoveries Fund. Ms. Alayon paid the Respondent the full $14,125.00 on or about November 17, 1997. Despite having been paid the full amount, the Respondent did not complete the Alayon project. The work was begun on or about November 27, 1997, but was never finished. Ms. Alayon did not fire the Respondent, did not refuse access to her property, and never refused to pay the Respondent monies owed for the work. Curiously, the Respondent obtained the building permit for the Alayon project on January 27, 1998. The Respondent never called for a final inspection on the job and, as of March 29, 2001, a final passing inspection for the project had not been performed by building officials. In addition to the contract amount, Ms. Alayon paid $3,575.00 for materials that were used in the construction of the porch. The Respondent did not reimburse Ms. Alayon for that amount. In May of 1998, the Respondent began negotiations with Mr. and Mrs. Piloto for the construction of an addition to their home to include an in-ground swimming pool. From the beginning of the talks, Mr. Piloto advised the Respondent that the couple could only invest $38,000 for the remodeling work as that was the amount the bank had approved for the project. The Pilotos wanted to build a bedroom, an expanded bathroom, and a swimming pool at the rear of their home located at 750 West 73rd Place, Hialeah, Florida. Eventually the Respondent telephoned the Pilotos to advise them that they could get what they wanted within the budget set by the bank. The contract executed by the Pilotos called for the remodeling for a price of $37,890.00. The contract, prepared by the Respondent, did not contain the Respondent's license number or a notice of consumer's rights pursuant to the Construction Industries Recovery Fund. At all times material to the Piloto project, the Respondent did not hold a valid architect's license. In fact, in December of 1997, the Board of Architecture and Interior Design had fined the Respondent for having practiced architecture with a delinquent license. Nevertheless, the Respondent represented himself as an architect to the Pilotos and charged them for blueprints for the remodeling project. Moreover, the Respondent submitted the signed and sealed plans for the Piloto project to the Building Department in order to obtain a building permit for this project. Such plans were filed on or about August 12, 1998. Pursuant to their agreement with the Respondent, the Pilotos paid the Respondent a total of $26,664.00 for the project. In comparison, the value of the work performed by the Respondent did not exceed $10,000. The Respondent asked the Pilotos to increase the amount for the contract to $50,395.75, but they refused. Despite the fact that he had caused their home to be reduced to a dangerous condition (by virtue of exposed wiring and open walls), the Respondent refused to complete the work on the Piloto project for the contracted amount. Instead, he abandoned the project. The Pilotos did not fire the Respondent. They refused to increase the amount of the contract. The Pilotos did not stop the work or refuse workers access to the property. A lien was placed on the Piloto property by a subcontractor to whom the Respondent owed monies. The Pilotos were required to pay the subcontractor in order to satisfy the lien amount. The Respondent has failed or refused to repay the lien amount. The Respondent grossly under estimated the cost of remodeling the Piloto home. He did so either negligently or intentionally. The Piloto home was compromised by the demolition work done by the Respondent's crew. The Pilotos were faced with paying the additional monies to comply with the Respondent's demand or living with their home in an uninhabitable condition. They chose the latter. On or about May 11, 1999, the Respondent applied for and obtained a building permit to re-roof the home of Sam and Daisy Carpenter. The contract for the work was with Banos Remodeling Services, an unlicensed entity, not the Respondent or his company. The Respondent has been the subject of prior disciplinary actions filed by the Department. He settled such actions without admitting or denying the allegations against him. As to his architectural license, it is undisputed that at all times material to these cases, the Respondent did not hold a valid architect's license. The Petitioner has incurred expenses and costs in the investigation of and the prosecution of the instant cases against this Respondent. The Respondent provided no credible explanation for the failure to complete the work contracted for regarding the Alayon and Piloto homes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Construction Industry Licensing Board, enter a final order sustaining the violations outlined by the Conclusions of Law, imposing an administrative fine in the amount of $5000.00, requiring the Respondent to make restitution to the Pilotos and Ms. Alayon, requiring the Respondent to remit the costs of investigation and prosecution of these cases, and revoking the Respondent's license until all amounts are fully paid. DONE AND ENTERED this 23rd day of October, 2001, in Tallahassee, Leon County, Florida. ______________________________ J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 2001. COPIES FURNISHED: Kathleen O'Dowd, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Hardy L. Roberts, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2201 Oscar S. Benitez 3894 Southwest 107th Avenue Miami, Florida 33165 Theodore R. Gay, Esquire Department of Business and Professional Regulation 401 Northwest Second Avenue Suite N-607 Miami, Florida 33128-1765
Findings Of Fact The Respondent's name is Troy Griffin. The Respondent is now and was at all times relevant to the pending Administrative Complaint, a registered residential contractor in the State of Florida having been issued license number RR 0030688. The Respondent is not now and at no time material to the pending Administrative Complaint was the Respondent a certified or registered roofing contractor in the State of Florida. At all times material to the pending Administrative Complaint, the Respondent's license #RR 0030688 qualified Griffin Remodeling & Repairs, Jacksonville, Florida. In June 1978 the Respondent d/b/a Griffin Remodeling and Repairs contracted to repair the residence of June Moody, Jacksonville, Florida. The contracting work included work upon the Moody's built-up roof, which Respondent re-roofed pursuant to contract. Respondent built up the roof with more than one layer of felt in 1978. These layers were discovered by the city's inspector in 1982. Respondent returned in 1978 and patched the roof he installed. These patches were seen by the city's inspector in 1982. The owner, Moody, did not complain of leaks in 1982. There was no evidence of leaks in 1982. A roof poorly installed without sufficient tar and felt will leak within the time that has passed between 1978 and 1982. See inspector's testimony in response to Hearing Officer's question. Moody's home was a single family, one story residence. No evidence was received regarding whether the City of Jacksonville requires examinations of roofing contractors prior to their certification.
Recommendation Having found that the Respondent did not commit the alleged violations, it is recommended that the Administrative Complaint be dismissed and no action be taken. DONE and ORDERED this 23rd day of August, 1985, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Buildina 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 1985. COPIES FURNISHED: W. Douglas Beason, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Troy Griffin 7443 Laura Street Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Direetor Department of Professional -I Regulation. Construction Industry Licensing Board P. O. Box 2 Jacksonville, Florida 32202
The Issue Whether or not Respondent's certified general contractor's license should be disciplined because he aided or abetted an uncertified or unregistered person, knowingly combined or conspired with an uncertified or unregistered person by allowing his certificate or registration to be used by an uncertified or unregistered person with the intent to evade Chapter 489; acted in the capacity of a contractor under an unregistered or uncertified name; engaged in fraud, deceit, or gross negligence, incompetence, or misconduct in the practice of contracting as alleged, in violation of Subsections 489.129(1)(e),(f),(g) and (m), Florida Statutes.
Findings Of Fact Petitioner is the state agency charged with the responsibility to investigate construction activities in Florida and, where indicated, to file Administrative Complaints pursuant to Chapters 489, 455 and 120, Florida Statutes, and other rules and regulations promulgated pursuant thereto. During times material, Respondent, Richard L. Melvin, was licensed as a general contractor, having been issued license number CG C022926. During times material, Respondent did not qualify Jeffrey Gaston or Tropical Exteriors & Services, Inc. (TESI), nor did said entity or contractor's name appear on Respondent's license. During times material, Jeffrey Gaston d/b/a TESI, was never licensed nor qualified to do business as a contractor in Florida. During times material, Respondent was not a licensed roofing contractor. On or about March 31, 1987, Jeffrey Gaston contracted with Deborah and Clinton Weber to repair a roof and renovate a bathroom at their residence for the sum of $5,000.00. Respondent's name, license number, address and telephone number was listed on the Gaston/Weber contract. Jeffrey Gaston d/b/a TESI entered into a contract with Wilfred Butler on January 12, 1987, to replace a back porch at his residence. Respondent's general contractor's license number was listed at the top of the agreement between Gaston-TESI/Butler. Checks drawn by Butler were made payable to Respondent/TESI. Respondent obtained a permit for Jeffrey Gaston d/b/a TESI for the Butler project. (Petitioner's Exhibit 7.) Respondent admitted to authorizing Gaston or TESI to use his name and certificate number on contracts. Respondent was aware of approximately 20 contracts and several other permits wherein Gaston/TESI obtained the contracts or permits by using Respondent's name and license number. Respondent admitted receiving approximately $2,000.00 for supervising TESI. Respondent never disassociated himself from Jeffrey Gaston until May 31, 1987. Petitioner introduced ten contracts for work in Pinellas County from December 1986 to May 1987, with Respondent's name and state certification number with Jeffrey Gaston d/b/a TESI listed as the contractor. (Petitioner's Exhibit 9.) Respondent obtained a permit for Jeffrey Gaston d/b/a TESI for the installation of aluminum soffit and fascia on the Stitches' home situated at 111 Aurora Avenue North, Clearwater, Florida. Respondent did not supervise the installation of aluminum soffit and fascia on the Stitch's residence. Respondent, as a general contractor, is responsible for all phases of work for which he contracted for and/or obtained permits. Respondent was aware that Jeffrey Gaston was not a licensed contractor in Florida. Jimmy Jimenez has never been a licensed contractor in Florida. J & J Construction Company was qualified in February 1988, under Respondent's license number, CG C022926. Thereafter, during February 1989, J & J Construction was qualified under Respondent's license number RC 0058448. Respondent did not attempt to qualify J & J Construction until he was cautioned by Petitioner's investigators Steven Pence and Dennis Force, that his construction activities amounted to "aiding and abetting an unlicensed contractor." On or about December 11, 1987, Wiley Parks, Jr., entered into a contract with J & J Construction to perform construction work and remodel a home for Parks located at 1722 West Arch Street, Tampa, Florida. In conjunction with that contract, a second contract was submitted by J & J Construction for Mr. Parks, although unbeknownst to him, which utilized Respondent's name and contractor's license number at the top of the agreement. Wiley Parks spent a great deal of his time observing the construction and remodeling work by J & J. Respondent was only seen by Wiley Parks when they met at a local bank to cash a check which represented a draw submitted by Respondent for construction work done at the Arch Street construction project. Respondent obtained a permit for the Parks job on January 6, 1988, which was prior to the time he qualified J & J Construction as the entity through which he would conduct construction business. Respondent, although required to do so, never called for a final inspection on the Parks job. The floor joists at the Parks job were disapproved by the Hillsborough County Building Department and were never repaired by Respondent. Employees of J & J were observed working at the Parks job site on January 4 and 8, 1988. Respondent was, on two occasions, the subject of prior disciplinary action by Petitioner during 1987. On one occasion, probable cause was found on August 12, 1987 and the case was closed by issuing a letter of guidance to Respondent. On the second occasion, probable cause was found on October 7, 1987. Final action was taken on February 11, 1988, whereby an administrative fine of $1,000.00 was imposed against Respondent or, alternatively, a 30-day suspension of his license. Respondent paid the administrative fine within the allotted time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent's general contractor's license number CG C022926 be REVOKED. 1/ RECOMMENDED this 26th day of March, 1990, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 26th day of March, 1990.
The Issue Whether Respondent's contractor license should be disciplined for alleged violations of Chapters 489 and 455, Florida Statutes.
Findings Of Fact Respondent, James Cooper, was at all times material to this action licensed by the State of Florida as a registered roofing contractor, having been issued license number RC0066905. Mr. Cooper's license is currently classified "Inactive, Issued (09/05/97)." Around March 1, 1996, Marshall Moran was contacted by Julia Jones regarding repairs to the leaky roof on her home located at 209 Cresent Drive, DeFuniak Springs Walton County, Florida. Ms. Jones' home was over one hundred years old with a steep metal roof. The roof she wished repaired was over the enclosed sleeping porch of her house. Over the last ten years, she had various contractors attempt to fix the leak in the sleeping porch roof. These attempts occurred, on average, more than one time per year. The leak always returned. Marshall Moran is an unlicensed and unregistered roofing contractor. Mr. Moran has been a roofing contractor since before the licensure requirements for contractors became law. He elected not to become licensed under those statutes. However, he did have the experience and skills necessary to repair Ms. Jones' roof. Marshall Moran discussed the job with Ms. Jones. Mr. Moran recommended the entire section of the roof be rebuilt and described the anticipated repairs. Ms. Jones would not allow the entire section of roof to be repaired. She thought only the small section where the leak was apparent needed repair. Unknown to Ms. Jones and prior to beginning the work, Mr. Moran contacted Respondent to tell him of Ms. Jones' job and to see if Respondent wanted to do the job. Respondent couldn't do the job with his crew but offered to allow Mr. Moran to "work under his license." Respondent was pursuing a large commercial roofing contract around the same time as the events at issue here. He wanted to keep Moran's crew together in order to be able to complete the large commercial job. He held the crew together by enabling Moran to do the construction at Julia Jones' residence in consideration for taking legal responsibility for the Jones' job. Respondent did not hire Mr. Moran as his employee. Respondent knew Mr. Moran was not registered or certified to practice contracting. He also knew Mr. Moran was well qualified to perform the work on the Jones' job. Respondent admits that he knew that he should not pull permits for anyone, but that he did it just this one time in order to keep the crew together. On March 15, 1996, Respondent obtained City of DeFuniak Springs, Florida, building permit number 1379 for the roof repairs to Ms. Jones' residence. On the application for said building permit, Respondent represented himself (doing business as Cooper Roofing and Repair) as the contractor of record on the aforesaid project. Respondent intended to and did eventually take legal responsibility for the Jones' job. However, he did not supervise Mr. Moran or his crew. Additionally, Ms. Jones was never informed of Respondent's involvement. More importantly, Ms. Jones never contracted with Respondent for either Respondent or his company to perform roof repairs on her home. On March 21, 1996, Mr. Moran provided an estimate for repair of the portion of Ms. Jones' roof she felt needed repair. The estimate bears the name of "AAA Metal Works" and "Marshall Moran." AAA Metal Works was Mr. Moran's company. The estimate does not reference either Respondent or his company. The estimated cost to repair Ms. Jones roof was $2,785. Based on the estimate, Ms. Jones entered into a contract with Mr. Moran and AAA Metal Works to perform the repairs to her roof discussed above. Moran and his crew substantially completed the repairs to Ms. Jones' roof in a few days. However, the roof continued to leak after Moran and his crew ended their work. The continuing leak was not due to any incompetence on the part of Respondent or Moran. Ms. Jones paid for the repairs with two checks made out to AAA Metal Works. The checks were in the amounts of $3,500 and $4,350. Respondent did not receive any of the money for the Jones' job. His only expense was the fee for the building permit. All other expenses were paid for by Mr. Moran. At no time during the formation or performance of the contract with Marshall Moran did Julia Jones have any contact with or knowledge of involvement by Respondent. In fact, Respondent only drove by the job site one time. As indicated, the roof continued to leak. Ms. Jones contacted Mr. Moran on approximately 5-6 occasions notifying him of the continued leaks. Mr. Moran would return to Ms. Jones' home and inspect the problems, but was unable to stop the leaks to Jones' satisfaction. It is not clear whether Mr. Moran kept Respondent informed of these continued service calls. Approximately one year after completion of the initial repairs on Ms. Jones' roof, Respondent received a call from Ms. Jones' tenant and friend, Sharon Jenks, who called posing as a potential new client. Ms. Jenks had gotten Respondent's name from the building permit. Ms. Jenks called Respondent because the house was still leaking approximately one year after the repair was done and intervening visits by Marshall Moran had not fixed the problem. Ms. Jenks arranged for Respondent to visit Ms. Jones' home. Respondent did not recognize the house when he arrived and drove past it. When Ms. Jenks showed Respondent the building permit bearing his name, Respondent showed surprise. He returned the next day with Mr. Moran. Respondent, Mr. Moran, Ms. Jenks and Ms. Jones all met regarding the continued leaking. Respondent and Mr. Moran told Ms. Jones that the metal on the roof was "bad" and needed to be replaced to stop the leaks on the "sleeping porch." Understandably, Ms. Jones did not want to deal any further with Mr. Moran or Respondent and would not permit them to make the recommended necessary repairs. Ms. Jones sued both Respondent and Mr. Moran in a civil action styled: Julia R. Jones v. James K. Cooper and Marshall Moran, Case Number 97-0040-CC, in the County Court of the First Judicial Circuit in and for Walton County, Florida. Following a judge trial, a Final Judgment was entered in favor of Respondent and Mr. Moran on December 9, 1997. Mr. Moran was charged with contracting without a license in violation of Section 489.127, Florida Statutes (1995), in State of Florida v. Marshall Moran, Case Number 97-0549-CF, in the Circuit Court of the First Judicial Circuit in and for Walton County, Florida. That charge was dismissed by Circuit Judge Lewis Lindsey on February 3, 1998.
Recommendation Based upon the findings of fact and conclusions of law, it is, RECOMMENDED: That the Board should find Respondent guilty of violating Chapters 489 and 455, Florida Statutes, and impose an administrative fine of $500.00 on Respondent DONE AND ENTERED this 3rd day of August, 1998, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1998. COPIES FURNISHED: John O. Williams, Esquire Maureen L. Holz, Esquire Willams and Holz, P.A. 458 West Tennessee Street Tallahassee, Florida 32301 J. LaDon Dewrell, Esquire 207 Florida Place, Southeast Ft. Walton Beach, Florida 32549 Rodney Hurst, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Joseph Barrass is a registered roofing contractor holding State of Florida license number RC0026890. Respondent was so licensed at all times relevant to this proceeding. Respondent began doing business as a registered roofing contractor through his corporation, J. B. Roofing and Repairs, Inc., about six years ago. This corporation was dissolved and he continued as a roofing contractor through a corporation known as Roofing Services, Inc. He next did business through a third corporation, C. B. Roofing, Inc. Most recently he has done business as C. B. Roofing, a sole proprietorship. Respondent failed to register any of these entities with Petitioner, and is still licensed under his original fictitious name, J. B. Roofing and Repairs. Respondent contracted with Green Glades Construction Co. in early 1979, to install roofs on some 28 new houses. A dispute arose between the parties regarding several unfinished and leaking roofs. Respondent contends he refused to complete the roofs at issue due to nonpayment in accordance with the oral contract. He also argues that he was unable to repair the leaks while the roofs were wet, as demanded by Green Glades. The dispute was settled through civil proceedings. Another matter which culminated in civil action concerned the installation and repair of a patio roof pursuant to an oral contract between Respondent and Marvin Berkowitz, at the latter's Coral Springs residence. Berkowitz complained that Respondent failed to correct a leak in this roof as required by their agreement. Respondent claims the leak was the result of an improperly installed ceiling fan and the flat roof design demanded by Berkowitz. Respondent completed the job and received final payment on October 9, 1979. However, the roof leaked and Berkowitz thereafter contacted Respondent on numerous occasions requesting repairs. It was not until Berkowitz retained counsel and threatened legal action that Respondent made any effort to repair the leak. He returned on February 14, 1980, and did limited repair work. The roof continued to leak and Berkowitz sought damages through civil action. The evidence is conflicting as to whether or not the ceiling fan had been removed when Respondent returned in February, 1980. Berkowitz testified that it had been removed, and Respondent testified that it had not. The evidence is also in conflict with respect to the caveats and/or assurances Respondent gave Berkowitz regarding this installation. The recollections of both witnesses were self-serving and their testimony was generally lacking in credibility. The City of Coral Springs' building code requires a contractor to obtain a permit prior to roof installation. Respondent knew he was required to obtain such a permit for the Berkowitz project, but failed to do so.
Recommendation From the foregoing, it is RECOMMENDED: That Respondent be found guilty of violating Sections 489.119, 489.129(1)(g) and 489.129(1)(j), F.S., in failing to register his business entities and contracting without requisite qualification. It is further RECOMMENDED: That Respondent be found guilty of violating Subsection 489.129(1)(d), F.S., for wilful disregard of the Coral Springs building code pertaining to building permits. It is further RECOMMENDED: That all other charges against Respondent be dismissed. It is further RECOMMENDED: That Petitioner suspend Respondent's roofing contractor's license for a period of six months. DONE AND ENTERED this 17th day of February, 1982, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1982.
The Issue The ultimate issues to be resolved in this proceeding are whether the Respondent has committed violations of statutes relating to licensed contractors and, if so, the appropriate penalty that should be imposed. The Administrative Complaint is in six counts. The first five counts basically allege that the Respondent aided and abetted unlicensed persons to practice contracting by allowing these persons to use his license in order to obtain building permits to do roofing work. In Count Six, it is charged that the Respondent has engaged in continuing acts of misconduct. At the hearing, the Department dismissed allegations that the Respondent violated provisions of local building codes. The Respondent denies all of the allegations.
Findings Of Fact The Respondent has been certified by the Construction Industry Licensing Board as a general contractor (License No. CG C011050) and as a roofing contractor (License No. CC C001794). The Respondent also holds a real estate broker's license and a mortgage broker's license. The Respondent has developed apartment complexes, and housing and business developments. The Respondent is not presently active in roofing contracting, but he was during the period from 1979 through 1981. Be has been in business in Florida since 1967. The Respondent had qualified Kirk, Inc., with the Construction Industry Licensing Board to do general and roofing contracting. The Respondent is president of Kirk, Inc. The Respondent did not qualify any other entities to do contracting work under either of his licenses during the times material to this proceeding. For approximately eighteen months during 1979 and 1980, the Respondent had a business relationship with Edward G. Tindall. Tindall had worked for the Respondent'5 father and was having financial difficulties. Tindall had some experience in the roofing business, and the Respondent sought to use Tindall to manage Respondent's roofing contracting business. Tindall was to be paid a supervisory rate plus other fees. Tindall was to solicit roofing jobs; enter into contracts with customers on behalf of Kirk, Inc.; and perform the roofing jobs. Tindall was not licensed in any capacity by the Construction Industry Licensing Board, and he was therefore not authorized to obtain building permits from the City of Titusville, where most of the jobs were located. Tindall did not perform work in accordance with the agreement with Respondent. Instead, Tindall had stationery and business cards printed which were labeled "Tindall Roofing Company, a division of Kirk, Inc." When Tindall got a roofing job, he did not reduce it to contract on a Kirk, Inc., form as he was supposed to do. Rather, he operated on the basis of oral contracts. He advised personnel at Kirk, Inc., who were qualified to obtain building permits, that he had obtained the jobs, and building permits were secured. Thereafter, Tindall would typically tell Kirk, Inc., employees that the job had fallen through. In the meantime, Tindall completed the work, often using Kirk, Inc., equipment, supplies and workers, and kept the proceeds for himself. The Respondent did not become aware of Tindall's activities until sometime late in 1980. When he learned what Tindall was doing, the Respondent fired Tindall and another employee. In August, 1979, Tindall contracted to repair a roof at the Florida Power and Light Building in Titusville, Florida. Be advised Kirk, Inc., of the contract, and the qualified person at Kirk, Inc., obtained a permit from the City of Titusville to complete the work. Tindall then advised that the project had been cancelled and completed the work himself. The roof was not completed in accordance with Tindall's agreement with Florida Power and Light and was constructed in a manner contrary to the City of Titusville building code. The Respondent was unaware that this had occurred until sometime late in 1980. During September, 1979, Tindall contracted with Donald Klongerbo to reroof Klongerbo's home in Titusville, Florida. Tindall obtained a building permit by utilizing Kirk, Inc., employees, then advised that the contract had fallen through. Tindall then completed the work himself. The Respondent did not know that this had occurred until sometime late in 1980. During approximately October, 1979, Tindall contracted to repair a roof on a warehouse in Titusville, Florida, that was owned by B. S. Brown. The Respondent authorized Tindall to obtain a building permit from the City of Titusville for this one project in accordance with the City of Titusville code. Tindall then advised that the contract had fallen through and completed the work himself. The work was completed in a substandard manner, and the roof leaked. The Respondent did not learn that this had occurred until sometime late in 1980. He endeavored to repair the poor work that Tindall had performed. During June, 1980, Tindall contracted to repair the roof on a residence owned by Gwen O. Mills in Titusville, Florida. Tindall obtained a building permit from the City of Titusville by utilizing personnel at Kirk, Inc. After obtaining the permit, Tindall advised that the contract had fallen through and completed the work himself. The work was completed in a substandard manner and eventually needed to be completely redone. Respondent did not learn of this incident until late in 1980. During the investigation of this matter, Tindall gave a written statement which was reduced to writing and which he signed. The statement supports the version of the facts alleged in the Administrative Complaint. At the final hearing, Tindall gave testimony consistent with that version of the facts. On two other occasions, Tindall signed affidavits to a totally different effect. In one of them, he admitted that he obtained the building permits by making untrue statements to the Respondent and other personnel at Kirk, Inc. At the hearing, Tindall gave testimony which supports this version of the facts. In evaluating Tindall's testimony, due regard has been given to the conflicting affidavits that he signed, to the conflicting testimony that he gave at the hearing, and to his demeanor as a witness. It has been concluded that his testimony is utterly incredible and not worthy of being believed. During May, 1981, Vernon Crosby, who did business as Crosby Painting and Decorating, was performing work at an apartment complex owned by Hewitt Properties, Inc. The apartments are located in Titusville, Florida. Roofing repairs were necessary for several of the buildings. Crosby talked with David Lawhorn, an experienced roofing worker, about the project and, based on that discussion, gave an estimate of the expense to Hewitt Properties. Crosby was asked to perform the work. He hired Lawhorn to accomplish it. Neither Crosby nor Lawhorn is a licensed contractor, and neither was authorized to obtain building permits from the City of Titusville. Lawhorn commenced work without obtaining a permit. Upon learning that work was being undertaken without a permit, personnel of the City of Titusville promptly and properly stopped the work from proceeding further. After work was stopped by the City, Crosby contacted the Respondent about the problem. The Respondent agreed to obtain a building permit for the work. The permit was obtained, and Lawhorn completed the work as he had agreed with Crosby to do. The Respondent was never in contact with Lawhorn about this project. Lawhorn's work was not supervised either by the Respondent or by Crosby. The only input that the Respondent gave to the project was obtaining the building permit. Due to ambiguities in the testimony, it is impossible to glean how much the Respondent was paid, but it is apparent that he was compensated and that he did nothing to earn compensation except obtain a building permit. The Respondent testified that he considered Crosby the agent of the apartment owner. Be testified that he viewed himself as the contractor and Crosby as his super visor. He testified that Crosby was to supervise Lawhorn's work on Respondent's behalf. This version of the relationship has not been credited because it is not supported by she testimony of either Crosby or Lawhorn. Crosby and the Respondent had had business dealings in the past, and it appears that the Respondent obtained the permit in part as a helpful gesture to Crosby. It does not appear that the Respondent ever anticipated performing a roofing job at the apartment far complex. His motivation, instead, was to obtain a building permit to allow persons who could not otherwise obtain a permit (Crosby and Lawhorn) to perform the work. There is insufficient evidence to support a finding that the Respondent has been guilty of any continuing course of misconduct in the practice of contracting. The only misconduct that has been established is in connection with the obtaining of a single building permit.
