The Issue This is a license discipline proceeding in which the Petitioner seeks to have disciplinary action taken against the Respondent on the basis of alleged violations of various specified provisions of Section 489.129(1), Florida Statutes. The allegations are set forth in a seven count Administrative Complaint.
Findings Of Fact At all times pertinent to this proceeding, Respondent was a Certified General Contractor, having been issued license number CG C046419, by the Florida Construction Industry Licensing Board. At all times pertinent to this proceeding, Respondent was licensed in an individual capacity and thereby responsible for all his contracting activities. On June 6, 1993, Respondent, doing business as Universal General Contractors, entered into a construction contract with the Fagnanis for the remodeling of a bathroom in their residence located at 3440 Northeast 170th Street, North Miami Beach, Florida 33160. The contracted price was three thousand eight hundred dollars ($3,800,00). The Fagnanis paid at least two thousand seven hundred dollars ($2,700.00) to the Respondent as payment toward the contracted work. The written contract between the Respondent and the Fagnanis did not include the Respondent's contractor's license number. That written contract had printed on it the business name "Universal General Contractors." When they entered into the contract, the Fagnanis thought they were doing business with a company named "Universal General Contractors." At no time material hereto was Respondent registered with the Construction Industry Licensing Board as the licensed qualifier for Universal General Contractors. Construction commenced on or about August 20, 1993. Respondent failed to obtain a building permit or inspections for the Fagnani project. Shortly after commencing the project, Respondent informed the Fagnanis he had to go to Boca Raton for an estimate, but would return to finish the project. Respondent failed to return to finish the Fagnani project. Respondent abandoned the Fagnani's project without just cause or notification to the Fagnanis. Respondent did not respond to any attempts by the Fagnanis to contact him concerning the completion of their project. At the time Respondent abandoned the project the work was not complete. At the time of abandonment, the percentage of work completed was substantially less than the percentage of the contract price paid by the Fagnanis. On December 28, 1993, as a result of Respondent's failure to complete the project, the Fagnanis filed a civil suit against Respondent in Case Number 93-16225 SP23(03), County Court in and for Dade County, Civil Division. On January 11, 1994, Respondent was properly served with notice of the civil suit. On January 27, 1994, a Default Final Judgment was entered against Respondent in favor of the Fagnanis. The Default Final Judgment entered against Respondent in the case was in the principal amount of two thousand five hundred dollars ($2,500.00) and costs of one hundred nine dollars ($109.00) for a total amount of two thousand six hundred nine dollars ($2,609.00), and bore interest at the rate of 12 percent per year. The Default Final Judgment is related to Respondent's practice of contracting. To date, Respondent has failed to satisfy the terms of the Default Final Judgment. Respondent failed to satisfy the terms of the Default Final Judgment within a reasonable time. Respondent's incompetence and misconduct in overseeing the contracting and financial activities of his construction practice has resulted in a two thousand six hundred nine dollar ($2,609.,00) loss to the Fagnanis. The Respondent has been the subject of prior disciplinary action by the Construction Industry Licensing Board. In two prior cases (DBPR Case Nos. 93-12155 and 94-04871) the Board has issued final orders finding the Respondent guilty of several provisions of the statutes regulating contractors. Several of the prior violations are of the same type as the violations at issue in this case.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case to the following effect: Adopting the foregoing findings of fact and conclusions of law and concluding that the Respondent is guilty of the violations alleged in all seven counts of the Administrative Complaint; Revoking the Respondent's license; Ordering the Respondent to pay administrative fines in the total amount of twenty-five thousand dollars ($25,000.00); Ordering the Respondent to pay restitution to Mr. and Mrs. Fagnani in the amount of two thousand six hundred nine dollars ($2,609.00); and Ordering the Respondent to pay the costs incurred in the investigation and prosecution of this proceeding in an amount to be determined by the Construction Industry Licensing Board. DONE AND ENTERED this 22nd day of April, 1997, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1997.
The Issue The Florida Construction Industry Licensing Board, Petitioner, seeks to revoke the registered contractor's license of Stephen J. Borovina, Respondent, based on allegations, which will be set forth in detail hereafter, that he engaged in conduct violative of Chapter 468, Florida Statutes. The issue presented is whether or not the Respondent aided or abetted and/or knowingly combined or conspired with Mr. Howard North, an uncertified or unregistered contractor, to evade the provisions of Chapter 468.112(2)(b), and (c), Florida Statutes, by allowing North to use his certificate of registration without having any active participation in the operations, management, or control of North's operations. Based on the testimony adduced during the hearing and the exhibits received into evidence, I make the following:
Findings Of Fact The Respondent is a certified general contractor who holds license no. CGC007016, which is current and active. On or about July 25, 1976, Mr. and Mrs. Julius Csobor entered into a contract with Mr. and Mrs. Howard North for the construction of a home in Martin County, Florida, for a total price of $35,990. Neither Mr. or Mrs. North are certified or registered contractors in the State of Florida. (Petitioner's Composite Exhibit #2). Respondent applied for and was issued a permit by the Martin County Building Department to construct a residence for the Csobors at the same address stipulated in the contract between the Csobors and the Norths, i.e., Northwest 16th Street, Palm Lake Park, Florida. (Petitioner's Composite Exhibit #1). Howard North, a licensed masonry contractor for approximately nine (9) years was contacted by the Csobors through a sales representative from a local real estate firm. It appears from the evidence that North had previously constructed a "spec" house which the local realtor had sold and thus put the Csobors in contact with Mr. North when they were shown the "spec" house built by North. Evidence reveals that North contacted Borovina who agreed to pull the permit "if he could get some work from the job and could supervise the project". Having reached an agreement on this point, North purchased the lot to build the home for the Csobors and he orally contracted with the Respondent to, among other things, pull the permit, supervise construction, layout the home and do trim and carpentry work. North paid Respondent approximately $200 to layout the home for the Csobors. By the time that North had poured the slab and erected the subfloor, the Csobors became dissatisfied with his (North's) work and demanded that he leave the project. According to North, Respondent checked the progress of construction periodically. Prior to this hearing, the Csobors had never dealt with Respondent in any manner whatsoever. According to Csobor, North held himself out as a reputable building contractor. A contractor is defined in relevant part as any person who, for compensation, undertakes to, or submits a bid to, or does himself or by others, construct, repair, etc. . . . real estate for others. . . Chapter 468.102(1), Florida Statutes. Applying this definition to the facts herein, it appears that the Respondent, at least in a literal sense, satisfied the requirements and obligations of a contractor, as defined in Chapter 468.102, Florida Statutes. Thus, he contracted with North to oversee and/or supervise the project for the Csobors which he fulfilled, according to the testimony of North. Said testimony was not refuted and thus I find that no effort was made by Respondent to evade any provision of Chapter 468, Florida Statutes. Accordingly, I shall recommend that the complaint filed herein be dismissed in its entirety.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the complaint filed herein be dismissed in its entirety. RECOMMENDED this 4th day of November, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry S. Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 Stephen J. Borovina 2347 Southeast Monroe Street Stuart, Florida 33494 J. Hoskinson, Jr. Chief Investigator Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. DIVISION OF ADMINISTRATIVE HEARINGS, DOCKET NO. 77-1442 STEPHEN J. BOROVINA, CG C007016, 2347 S. E. Monroe Street, Stuart, Florida 33494, Respondent. / This cause came before the FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD at its regular meeting on February 10, 1978. Respondent was sent the Hearing Officer's findings and recommendations and was given at least 10 days to submit written exceptions to the recommended order. Respondent was notified of the meeting so that respondent or counsel might appear before the Board. Respondent did not appear The FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD on February 10, 1978, after reviewing a complete transcript of the Administrative Hearing, by motion duly made and seconded voted to revoke the certified general contractor's license of STEPHEN J. BOROVINA. It is therefore, ORDERED that the certification of respondent STEPHEN J. BOROVINA, Number CG C007016, be and is hereby revoked. Respondent is hereby notified that he has 30 days after the date of this final order to appeal pursuant to Chapter 120, Florida Statutes, and the Florida Appellate Rules. DATED this 13th day of February, 1978. FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD BY: JOHN HENRY JONES, President ================================================================= SECOND AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD STEPHEN J. BOROVINA, CG C007016, Respondent/Appellant, vs. DIVISION OF ADMINISTRATIVE HEARINGS, DOCKET NO. 77-1442 FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner/Appellee. / This cause came before the Florida Construction Industry Licensing Board at its regular meeting on August 3, 1979. The respondent was sent the Hearing Officer's findings and recommendations and was given at least 10 days to submit written exceptions to the recommended order. Respondent was notified of the meeting so that respondent or counsel might appear before the Board. Respondent did appear. The Florida Construction Industry Licensing Board, on August 3, 1979, after reviewing a complete transcript of the Administrative Hearing, by motion duly made and seconded, voted to revoke the certified general contractor's license of Stephen J. Borovina, No. CG C007016. On February 13, 1978, the certification of respondent, Stephen J. Borovina, No. CG C007016, was revoked by order of the Florida Construction Industry Licensing Board. On April 25, 1979, the District Court of Appeal of the State of Florida, Fourth District, in Case Number: 78-527, reversed the final order of the Florida Construction Industry Licensing Board. That Court remanded the above captioned case to the Board to further consider the matter and enter such order as it may be advised in conformity with Section 120.57(1)(b)(9), Florida Statutes (1977). In accordance with the decision of the Florida District Court of Appeal, Fourth District, the Board has reconsidered the above captioned matter and finds as follows: The Board rejects the recommended order as the agency's final order. The Board adopts the first paragraph of the hearing officer's finding of fact. The Board, however, rejects the findings of fact found in the second paragraph of the hearing officer's findings. The second paragraph states as follows: A contractor is defined in relevent(sic) part as any person who, for compensation, undertakes to, or submits a bid to, or does himself or by others, construct, repair, etc. real estate for others...Chapter 468.102(1), Florida Statutes. Applying this definition to the facts herein, it appears that the Respondent, at least in a literal sense, satisfied the requirements and obligations of a contractor, as defined in Chapter 468.102, Florida Statutes. Thus, he contracted with North to oversee and/or supervise the project for the Csobors which he fulfilled, according to the testimony of North. Said testimony was not refuted and thus I find that no effort was made by Respondent to evade any provision of Chapter 468, Florida Statutes. Accordingly, I shall recommend that the complaint filed herein be dismissed in its entirety. The findings of fact found in the above-quoted paragraph were not based upon competent substantial evidence. The competent substantial evidence supports a finding that the respondent, Stephen J. Borovina, did not supervise the project and that Borovina evaded the provisions of Chapter 468, Florida Statutes. The following evidence supports the Board's position: There was no written agreement entered into between Howard North and the respondent which indicated that the respondent was to supervise the construction of the Csobors' house (T- 14); It was conceded at the hearing that the only subcontractors or draftmen who worked on the Csobors' house were contracted solely by Howard North and they had no contract whatsoever with the respondent (T-19, 25); The respondent never advised or informed Mr. and Mrs. Csobor that he was the contractor on the job. (T-51); At all times during the act of construction of the house, Mr. and Mrs. Csobor were under the impression that Howard North was the contractor (T-44-51). It is, therefore, ORDERED: That the certification of respondent, Stephen J. Borovina, Number CG 0007016, be and is hereby revoked. Respondent is hereby notified that he has thirty (30) days after the date of the Final Order to appeal pursuant to Chapter 120, Florida Statutes, and the Florida Appellate Rules. Dated this 3rd day of August, 1979. FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD BY: JOHN HENRY JONES, President
The Issue Whether Respondent, Robert C. Kany, P.E., committed the acts or omissions alleged in the Administrative Complaint; whether those acts or omissions constitute the violations alleged; and, if so, what penalty should be imposed (as submitted in the parties' Joint Pre-hearing Submission).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: At all times material to the allegations in the Administrative Complaint, Respondent was a licensed Professional Engineer with license PE 16739. On or about February 12, 2004, Respondent signed and sealed two pages of plans for a project described as "Renovations to Existing Facilities 8245 Curryford Road, Orlando." Respondent did not have a contract with or any communication with the Curryford Road owner. Between April 26, 2002, and on or about July 8, 2003, Respondent signed and sealed five pages of plans for a project identified a "2008 Corena Drive." Respondent did not have a contract with or any communication with the Corena Drive owner. Petitioner is the State of Florida agent that provides investigative and prosecutorial services for the Florida Board of Professional Engineers. The Florida Board of Professional Engineers regulates the practice of engineering pursuant to Chapters 455 and 471, Florida Statutes (2001). Joint Exhibit 1, "Renovations to Existing Facilities 8245 Curryford Road, Orlando," and Joint Exhibit 2, "2008 Corena Drive," contain deficiencies regarding mechanical, electrical, and plumbing design. Some deficiencies can be cured by the plans examiner's refusing to approve the plans and requesting clarifying information regarding the noted deficiency. In Florida, an electrical contractor can assume responsibility for electrical design requirements for residential properties that require less than 600 amps systems. However, when an engineer seals the plans, the engineer assumes that responsibility. The initial step in plans approval in Orange County, Florida, is submission of the plans to the Orange County Zoning Department. Both sets of plans in question were initially reviewed by the zoning department. The "Curryford" plans were submitted to the Orange County Building Department for review and were not approved. While the "Corena" plans were retained by Orange County, there is no evidence that these plans were submitted for building department review. It is not atypical for plans to be rejected by the Orange County Building Department and returned to the engineer for additions or corrections. While one small deficiency exists to the structural design of Joint Exhibit 1, "Renovations to Existing Facilities 8245 Curryford Road, Orlando," there was no threat to public safety. There are myriad structural engineering deficiencies in Joint Exhibit 2, "2008 Corena Drive," which are the sealed plans for the residence at that address. The deficiencies may be a result of the fact that the plans were incomplete due to the owners' failure to decide on a cathedral or closed ceiling. If the plans were preliminary, Respondent should not have sealed them. The plans depicted in Joint Exhibit 2, "2008 Corena Drive," do not meet minimum engineering standards; the engineer of record, Respondent, was negligent in sealing these plans. It is acceptable practice in the engineering community for an engineer to work with a designer who drafts design documents and is independently employed. It is also acceptable practice in the engineering community for an engineer working with a designing draftsman not to visit a particular project site if sufficient detail of the project is related to the engineer by the draftsman. It is acceptable practice in the engineering community for a draftsman to design complete drawings and then present the drawings to an engineer for engineering review and approval as long as the draftsman is known to the engineer and the engineer is aware of the draftsman's skill and expertise. Respondent has practiced his profession for 65 years, the last 25 in Florida. He has known Robert Thomas, the individual who drafted both sets of plans in question, for seven or eight years. Respondent considers Mr. Thomas to be a "darn good" draftsman with considerable knowledge of the building industry. When Mr. Thomas brings plans to Respondent for review, they discuss the project and the plans; Respondent then makes appropriate changes to assure that the plans comply with or exceed code. This process meets the "responsible charge" standard.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Professional Engineers reprimand Respondent, Robert C. Kany, P.E., for his negligence in sealing incomplete plans. DONE AND ENTERED this 14th day of March, 2006, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 14th day of March, 2006. COPIES FURNISHED: Daniel M. Greene, Esquire Kirwin & Morris 338 West Morse Boulevard, Suite 150 Winter Park, Florida 32789 Bruce Campbell, Esquire Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Paul J. Martin, Executive Director Board of Professional Engineers 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Doug Sunshine, Esquire Vice President for Legal Affairs Florida Engineers Management Corporation 2507 Callaway Road Tallahassee, Florida 32303-5267
Findings Of Fact Robert Queen, Respondent, was during all times material herein a registered general contractor and is the holder of license no. RG0011043. On May 5, 1975, Mr. and Mrs. Paul B. Stuewe, of Delray Beach, Florida, a 100 percent disabled veteran-service connected, entered into a contract with Robert Queen then d/b/a Queen Construction Company for construction of a home. The home was to be completed within 45 days. Construction commenced as scheduled, however within 60 days following commencement of construction, the Stuewes became concerned about the progress of construction and notified the Respondent of their concern. During this period, the Stuewes had received liens and notices of intent to file liens from various suppliers and materialmen. To finance the project, the Stuewes obtained a $55,000.00 construction loan commitment from First Federal Savings and Loan Association. As of August, 1975, approximately $41,000.00 of the available $55,000.00 construction loan commitment had been withdrawn by the Respondent. The remaining balance of approximately $14,175.00 was frozen by the lender based on its receipt of liens or notices of intent to file liens in the amount of $23,243.84 from various suppliers and mechanics. Based on the monies available in the construction loan, it is apparent that when all liens are satisfied, a deficit of approximately $9,000.00 will be created. The Stuewes took possession of their home on December 9, 1975, at which point the construction had not been completed as per the plans. When they took possession, Respondent advised that he had monies due from other projects and that upon receipt thereof, the construction for the Stuewe residence would be completed. Mr. Stuewe testified that when he took possession, the home was not carpeted nor did the Respondent install special railings in hallways and baths that were required by the contract and which the Stuewes requested based on his disability. Maynard Hamlin, the construction loan supervisor for First Federal Savings and Loan Association, testified and was in all respects corroborative of the testimony given by Mr. Stuewe. Edward Flynn, Director of the Construction Industry Licensing Board for Palm Beach County testified that he Investigated various complaints that he had received against Respondent during late 1975 and early 1976. During that board's public meeting of February, 1976, the board considered Mr. Flynn's investigation of various complaints received by Respondent. Respondent was noticed but failed to appear at the hearing. The board did however receive a letter from the Respondent's attorney advising that he felt that his presence was unnecessary at the February meeting inasmuch as he was no longer the qualifying agent for Queen Construction Company, a Florida corporation. Minutes of the board's February meeting revealed that there were outstanding liens on two homes under construction by Respondent in excess of approximately $33,000.00. At that meeting, the board suspended Respondent's certificate of competency for an indefinite period of time. Terry Verner, an investigator for the Florida Construction Industry Licensing Board, investigated the instant complaint filed against the Respondent. Mr. Verner was shown an application for the building permit obtained by Respondent for the Stuewe residence and noted that the permit was obtained by Respondent who qualified Johnson Builders as the qualifying contractor. Investigation of Petitioner's files reveals that Respondent qualified Johnson Builders as the qualifying entity under which he would pull all construction contracts but failed to register the Queen Construction Company, Inc. as required by the Board's rules and regulations. (See Petitioner's Exhibit #4). Based on the foregoing findings of fact, I hereby make the following: CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. The authority of the Petitioner is derived from Chapter 468, Florida Statutes. The action of the Respondent in abandoning a construction project for which he contracted leaving a lien balance in excess of $9,000.00 which monies were received by him for completion of a specified construction project and his failure to fulfill the terms of his obligations pursuant to the contract he entered with the Stuewes amount to conduct violative of Chapter 468.112(2)(e), Florida Statutes. Evidence adduced at the hearing established that the Respondent had been disciplined by the County's construction industry licensing board which action is reviewable pursuant to Chapter 468.112 (2)(f), Florida Statutes. Based on the foregoing findings of fact and conclusions of law, I hereby issue the following:
