The Issue The issues in this case are: (1) Whether Respondent violated Subsection 489.127(1)(f), Florida Statutes, by engaging in the business or acting in the capacity of a contractor without being registered or certified; and, if so, (2) what penalty should be imposed against Respondent.
Findings Of Fact Based on the evidence and testimony of the witnesses presented, the following facts are found: Crestwood Construction Corporation (Crestwood Construction) was established about six years ago and is located in Port Charlotte, Florida. At all times material to the proceeding, Respondent, Edward Kolba, was president of Crestwood Construction. When Crestwood Construction was established and at all times relevant hereto, Marc Lusardi was the vice-president and the qualifying contractor for the company. Respondent is not currently nor has he ever been a licensed contractor in the State of Florida. On or about August 28, 1998, Respondent as president of Crestwood Construction, entered into a contract with Robert and Doris LaBar to construct a house at 27421 Neaptide Drive, Charlotte County, Florida. The contract price for the construction was $79,994.00. At or near the time Mr. and Mrs. LaBar and Respondent were negotiating the construction contract, Respondent gave the impression that he was the contractor responsible for supervising the construction of the LaBars' house. Consistent with the impressions or representations of Respondent regarding his responsibilities for the LaBar project, Respondent did, in fact, oversee most of the project. At the time Crestwood Construction and the LaBars entered into the contract, Mr. Lusardi, the company's qualifying contractor, did not reside in Florida but in Colorado. Moreover, during most of the time the LaBar home was under construction, Mr. Lusardi was not in Florida. Furthermore, the only part of the LaBar project that Mr. Lusardi oversaw was the construction of the foundation. Respondent acknowledged that at all other times, Mr. Lusardi was out of state. In Lusardi's absence, Respondent became responsible and/or assumed responsibility for overseeing the construction of the LaBars' house. Respondent has had extensive work experience in the construction industry. However, Respondent admitted and did not dispute that he is not a registered or certified contractor in the State of Florida. The investigative costs for the Department of Business and Professional Regulation in this case, excluding costs associated with any attorney's time, were $213.08.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended a final order be entered (1) finding that Respondent violated Section 489.127(1)(f), Florida Statutes, as alleged in the Administrative Complaint, and (2) imposing an administrative penalty of $5,000. DONE AND ENTERED this 27th day of December, 2001, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 2001. COPIES FURNISHED: Brian A. Higgins, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-3060 Edward Kolba Post Office Box 8014 Port Charlotte, Florida 33949-8014 Marc S. Lusardi 2101 South Ocean Drive Hollywood, Florida 33019 Marc S. Lusardi 182 East Byrd Drive Pueblo, Colorado 81007 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-3060
Findings Of Fact The Respondent is a registered general contractor, having been issued license number RG 0012013. On October 3, 1980, the Respondent, d/b/a Five Ray Enterprises, Inc., entered into a contract with David and Laytha Danley to construct a residence near Brooksville, Florida, for the sum of $61,621.00. This contract was a construction management type of agreement in which the Respondent was to be paid a fee for his services. The Respondent commenced construction, and completed between 85 percent and 95 percent of the project before discontinuing an active role in the work during June of 1981. The Respondent's base of operations was in Winter Park, nearly 100 miles from the construction site, and he was having some personal problems. Therefore, the Respondent agreed with Al Nickola to have Nickola supervise the completion of construction, which involved some painting, grading, finish electrical work and the installation of appliances. The Respondent knew that Al Nickola was unlicensed as a contractor when he entered into the agreement with Nickola to complete the construction. Before he discontinued his work on the project, the Respondent received all the inspections except for the Certificate of Occupancy. His agreement with Nickola was to complete the work which was left and to obtain the Certificate of Occupancy. The Respondent did not properly qualify Five Ray Enterprises, Inc., under which name he contracted to build the residence for the Danleys. On September 9, 1981, the Citrus County Hoard of Examiners revoked the Respondent's license for abandonment of the Danley construction project. However, the minutes of the Board meeting at which this action took place, do not reflect whether or not a full examination was made of all the facts. They simply indicate that the Respondent did not appear at the meeting as requested.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Roland C. Ray, be found guilty of one violation of Section 489.129(1)(g), Florida Statutes, and one violation of Section 489.119(2) and (3), Florida Statutes, and that he be assessed an administrative fine of $250 on each charge for a total fine of $500. It is further RECOMMENDED that the Respondent be found guilty of violating Section 489.129(1)(i), Florida Statutes, and that his license be suspended until such time as the Respondent has obtained reinstatement of his Citrus County license. And it is further RECOMMENDED that the Respondent be found not guilty of violating Section 489.129(1)(k), Florida Statutes. THIS RECOMMENDED ORDER entered on this 11th day of February, 1983, in Tallahassee, Florida. WILLIAM B. THOMAS, 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 11th day of February, 1983. COPIES FURNISHED: John O. Williams, Esquire 547 North Monroe Street Suite 204 Tallahassee, Florida 32301 Roland C. Ray 305 North Pennsylvania Avenue Winter Park, Florida 32789 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, DPR Case No. 0018288 DOAH Case No. 82-2395 ROLAND C. RAY RG 0012013 Post Office Box 5877 Orlando, Florida 32855 Respondent. /
The Issue Whether respondent on several occasions aided an unlicensed contractor to engage in contracting by obtaining permits on respondent's license for contracting jobs performed by the unlicensed contractor; Whether respondent committed the statutory violations alleged; and If so, whether respondent's license should be suspended or revoked, or whether some other penalty should be imposed.
Findings Of Fact At all times material to the Administrative Complaint, respondent was a certified general contractor in Florida holding License No. CG C000572. Johnnie T. Thomas is the president of J. T. Thomas Construction Company. Mr. Thomas is not a licensed contractor in the State of Florida. Although respondent has used his license to qualify several corporations, the last being Julius Isaac & Association, Inc., respondent never qualified J. T. Thomas Construction Company. Indeed, J. T. Thomas Construction has never been qualified by any licensee. During the time period relevant to this action, J. T. Thomas Construction Company was the name used by Mr. Thomas to engage in the contracting business. On July 25, 1983, J. T. Thomas Construction Company contracted with Hazel N. Jones for the construction of a residence at 11729 Rock Hill Road, Thonotosassa, Florida, in Hillsborough County. Johnnie Thomas signed the contract on behalf of J. T. Thomas Construction Company as "President and Builder." Ms. Jones did not know that Mr. Thomas was unlicensed. James Montjoy drew the plans for the house and recommended Thomas as the builder. The total price for the house was $75,500. The house was started in September of 1983, and on January 30, 1984 final payment was made. After moving into the house, Ms. Jones discovered several problems. In June of 1984 an energy check found that the home was not properly insulated; however, this was apparently corrected in May of 1985. Ms. Jones had several other problems with the home and sent a "punch-list" to Mr. Thomas setting forth the items that needed to be corrected. Although Mr. Thomas admitted at the hearing that there were items that should have been corrected on the punch-list, he also admitted that he did not correct them because he disputed other claims of Ms. Jones. The building permit application for Ms. Jones' home was signed by the respondent. On the building permit application, the contractor was listed as Julius Isaac and Association, Inc. The building permit was issued on August 15, 1983. It listed Julius H. Isaac and Julius Isaac and Association, Inc. as the contractor. The building permit was signed by Julius H. Isaac as agent. Ms. Jones never met Mr. Isaac, never saw him and never knew that he was involved in any way in the construction of her home. In late 1984, Ms. Catherine Farragut, the owner of a building located at 1704 North Nebraska Avenue, Tampa, Florida, contracted with J. T. Thomas to have her building remodeled. Ms. Jones recommended Mr. Thomas to Ms. Farragut before Ms. Jones began to experience problems with Mr. Thomas. Ms. Farragut was not aware that Mr. Thomas was not a licensed contractor. The remodeling of the building was completed in early 1985. The permit for the interior remodeling of the offices at 1704 North Nebraska Avenue was issued on July 23, 1984 to Julius Isaac & Association. Ms. Farragut did see Isaac at the job site in the central parking area; however, Mr. Thomas never advised Ms. Farragut that respondent was involved with the project. On August 20, 1985 J. T. Thomas Construction Company contracted with Evelyn S. Williams to construct a residence at 3620 East North Bay Street, Tampa, Florida. The contract price for the home was 66,000 and payments by check were made to Johnnie Thomas in intervals. Construction on the home began in November 1985. Ms. Williams moved into the home in August of 1986. She discovered some problems with the house, and gave Mr. Thomas a list of the items that needed to be corrected. Mr. Thomas corrected all the items but one. Ms. Williams still has a problem with the roof getting moldy due to water retention. A permit was issued by the City of Tampa Building Department on November 20, 1985, for construction at 3620 East North Bay Street. The permit was issued to Julius Isaac and the contractor of record is stated as Julius Isaac d/b/a Julius Isaac & Associates. Ms. Williams never met Mr. Isaac or saw him; however, Ms. Williams did not go to the job site during construction since the mortgage company was supposed to periodically inspect the house during construction. Ms. Williams was not aware that Mr. Thomas was unlicensed. On August 28, 1986, J. T. Thomas Construction Company entered into a written contract with Ms. Verlie Nelson to construct a residence at 8105 Jad Drive for a price of $102,560. Ms. Nelson thought that Mr. Thomas was a licensed contractor. She never saw Mr. Isaac at the job site, however, she was rarely there because Sun Coast Federal Credit Union was paid to do the inspections. On October 16, 1986, respondent applied for a building permit for 8105 Jad Drive. John and Augusta Thomas were listed as the owners and Julius Isaac & Association, Inc., was listed as the general contractor for the project. On November 7, 1986, the permit was issued by the Hillsborough County Building Department. Julius H. Isaac was listed as the applicant and contractor. John and Augusta Thomas were listed as the owners of the property at 8105 Jad Drive. Mr. Thomas admitted that J. T. Thomas Construction Company built the homes for Ms. Jones, Ms. Nelson and Ms. Williams, and did the renovation on the building owned by Ms. Farragut. Mr. Thomas received the payments for the projects, hired and paid the subcontractors and supervised construction. He also managed the daily affairs of J. T. Thomas Construction Company. J. T. Thomas Construction Company was formed in 1971 under the name Thomas (J. T.) Construction Company. However, the company, as a corporate entity, was dissolved by proclamation in 1973. J. T. Thomas' brother Leslie was the secretary of the corporation and a licensed contractor. He obtained the building permits for the company until be became ill. Thereafter, respondent obtained the building permits for J. T. Thomas Construction Company. Respondent knew that Mr. Thomas was not licensed and could not get the permits himself. Respondent is not a salaried employee of J. T. Thomas Construction Company, and he received no compensation for his services although he was reimbursed for the actual cost of obtaining the permits. Other than obtaining the permits, respondent's only connection with Mr. Thomas' construction projects was to visit job sites before inspections or go to a site if Mr. Thomas asked for his help with a construction problem. However, there was no competent evidence establishing that respondent ever went to the particular job sites involved in this case. Respondent had no responsibilities in connection with the projects and had no authority to take any actions. In essence, respondent was simply "helping" a long time friend. Respondent has been licensed since 1968, and there was no evidence presented of any prior violations or any prior complaints.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Construction Industry Licensing Board enter a final order finding respondent guilty of the act set forth in Section 489.129(e), Florida Statutes, and imposing an administrative fine of $1,500. DONE AND ENTERED this 27th day of May, 1988, in Tallahassee, Florida. DIANE A. GRUBBS 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 27th day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5586 Rulings on petitioner's proposed findings of fact by paragraph: 1-8 Accepted generally. COPIES FURNISHED: David L. Swanson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Julius H. Isaac 421 Ella Mae Avenue Tampa, Florida 33602 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 William O'Neil Stephen F. Hanlon, Esquire General Counsel BARNETT, BOLT & KIRKWOOD Department of Professional Post Office Box 3287 Regulation 100 Twiggs Street 130 North Monroe Street Sixth Floor Tallahassee, Florida 32399-0750 Tampa, Florida 33602
The Issue The issue in this case is whether the Construction Industry Licensing Board should discipline the Respondent for alleged violation of Section 489.129(1)(n) and (r), Fla. Stat. (1995).
Findings Of Fact The Respondent, Robert Gary Kinney, holds General Contractor License No. CG C040517, issued by the Construction Industry Licensing Board on August 18, 1987. For almost the entire period of his licensure, the Respondent also qualified his company, Florida Construction and Development Inc. of Melbourne, to do business in Florida as a general contractor. (The Respondent was the sole owner, president and vice-president of the company.) Effective September 1, 1996, the Respondent’s license was placed on a delinquent status for non-renewal and is considered invalid. On or about May 20, 1992, the Respondent executed a personal guaranty in order for his company to obtain credit from Cox Lumber Co. Subsequently, his company purchased building materials from Cox Lumber, using credit, and incorporated the building materials into one of his company’s residential construction projects. The Respondent and his company paid only a portion of the purchase price, and January 23, 1994, Cox Lumber obtained a Second Amended Final Judgment against the Respondent under the personal guaranty in the amount of $8,829.56, together with pre-judgment interest in the amount of $1,176 and post judgment-interest until satisfied. The Respondent has made no payments on the Second Amended Final Judgment since its entry. In his request for formal administrative proceedings, the Respondent defended on the alleged grounds: (1) he had no prior knowledge of the purchase from Cox Lumber; (2) he did not request or submit a written credit application; and (3) he had no prior knowledge of the complaint or judgment. Based on the evidence, those alleged grounds are false. Based on the evidence, there is no basis to mitigate penalties recommended in the Construction Industry Licensing Board’s penalty guidelines. To the contrary, the Respondent’s cavalier attitude and false defenses are grounds to aggravate the recommended penalties.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board enter a final order: (1) finding the Respondent guilty of violating Section 489.129(1)(r), Fla. Stat. (1995); (2) requiring that he satisfy the Second Amended Final Judgment against him; (3) imposing a $1,000 fine; and (4) revoking his license. RECOMMENDED this 28th day of March, 1997, at Tallahassee, Florida. COPIES FURNISHED: John L. Chaves Senior Attorney Department of Business and Professional Regulation 1940 North Monroe Street J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax FILING (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 1997. Tallahassee, Florida 32399-0792 Robert Gary Kinney 920 Mesa Grande Road Aptos, California 95003 Rodney Hurst, Executive Director Construction Industry Licensing Board 7060 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times pertinent to the issues presented, Respondent was a registered residential contractor under license number RR 0024559, issued to Kenneth Rowland qualifying Phoenix Construction Services, Inc., issued in April 1975. On May 12, 1977, Angela Close entered into a contract with C & C Roofing Company of Longwood, Florida, to enclose and make a room of the carport on her home located at 215 Ulysses Drive, Apopka, Florida. The contract, which detailed the work to be done, called for a contract price of $2,500 and stipulated the work was to be completed in approximately three weeks from start date. The amount of $1,150 was to be paid when the job was started, and the balance was to be paid upon completion and acceptance. This agreement was signed by Angela Close and J. D. Carver. Ms. Close had given the contract to Carver because she worked with his wife at Seminole Community College and had been advised by her that Carver was in financial difficulty and needed the work. The contract was signed at Close's house, where Carver came with his wife, bringing the contract to be signed. Carver did the preliminary measuring work, but when actual construction began, Respondent was present and accomplished the majority of the work. On May 26, 1977, 14 days after the contract was signed, Respondent pulled a building permit #99146 to accomplish the work called for in the contract, from the Orange County Building Department. Several weeks after the work was started, Respondent asked Ms. Close for some additional progress payments on the job. Since she had already paid Carver in full according to the terms of the contract with him, she refused to pay Respondent, telling him she had paid all that was called for under the terms of her contract with Carver. When she said this, Respondent appeared quite surprised to learn of the contract and angry as well. On June 30, 1977, Respondent wrote a letter to the Orange County Building Department notifying that office that he had stopped work on that project because of nonpayment and requesting his name and license number be removed from the permit. As a result, the permit was cancelled on July 7, 1977. In an interview with Bobby J. Hunter, Sr., an investigator for the Department of Professional Regulation (DPR) several years later, Respondent indicated he agreed to do the job in question for Ms. Close, a friend of Carver, for $3,500. He pulled the permit and commenced work without ever talking to Ms. Close or without having a contract from her to do it, relying on the word of Carver that it was proper to do so. He received several payments from Ms. Close, transmitted through Carver. Two were in cash, and one was a check. When Respondent found out that Ms. Close had a contract with Carver for $2,500 and had paid him in full, he realized he would not receive funds to satisfy the work he had put in on the job, and he ceased work. The investigative report prepared by Mr. Hunter includes summaries of the interviews with both Carver and Respondent which state that Carver and Respondent were partners. Rowland, in his testimony at the hearing, denied any partnership relation. In light of the fact that these summaries are second-hand hearsay, contradicted by sworn testimony of the Respondent that he was not a partner of Carver, I resolve that dispute in favor of the Respondent and find that he was not a partner of Carver. Respondent contends under oath, and I so find, that he pulled the permit to do the work without knowledge of the prior contract between Close and Carver, as a favor to Carver who was reportedly a friend of Close. It was his understanding that, though Carver made the arrangements, it was his, Respondent's contract with Close for the figure he had quoted to Carver after his first survey of the job site, $3,500. He had been told by Carver not to talk with Close, as she did not speak English well, and he admitted to having made a grand mistake in proceeding without a contract from the owner Close. Carver's reliability is not the best. Mr. Hunter, investigator for DPR, indicated that Carver made some false statements to him in other cases. As a result, though Carver alleges he and Respondent were partners, and even Respondent's statement to Hunter seems to so indicate, there was, in reality, no partnership requiring Respondent to qualify C & C Roofing on his license, though there was plans to do so in the future.
Recommendation Based on the foregoing, it is RECOMMENDED That Petitioner enter a final order dismissing the Administrative Complaint. RECOMMENDED this 19th day of August, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1983 COPIES FURNISHED: Douglas A. Shropshire, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Kenneth Rowland 4403 North Powers Drive Orlando, Florida 32808 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. James Linnan, Executive Director Construction Industry Licensing Board Department of professional Regulation Post Office Box 2 Jacksonville, Florida 32202
The Issue Whether the Respondent, Earl Gene Burks, committed the violations alleged in the Amended Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating construction industry licensees. Such authority includes, but is not limited to, the discipline of certified general contractors. At all times material to the allegations of this matter, Respondent was a certified general contractor in the State of Florida, license number CG C047384. According to the Department's records, and at all times material to the allegations of this matter, Respondent was the qualifying agent for ANAC Services, Inc. On or about September 16, 1996, Respondent prepared and executed a proposal for work to be performed by ANAC Services, Inc., for a residential property owned by Alberto Fernandez. The proposal described the project and specified a payment plan for the owner. Although not written on the proposal, Respondent represented to Mr. Fernandez that the work would take two or three weeks (Mr. Fernandez hoped the work would be completed by his son's birthday, October 31). Additional time was needed to complete plans and obtain the proper permit. Based upon Respondent's representations, Mr. Fernandez presumed work would begin in October 1996. Based upon the representations, the terms of the proposal, and in full accordance with the payment plan, Mr. Fernandez paid Respondent an initial deposit in the amount of $2500. Respondent did not timely begin work on the Fernandez project. After complaints from Mr. Fernandez, Respondent finally went to the home in early November 1996 and represented he was prepared to begin the project. The work was never performed. Instead, Respondent decided he would not perform the work as he did not believe he and Mr. Fernandez would be able to get along. Mr. Fernandez sought to hold Respondent to the contract terms. Respondent never went back to perform the work. Eventually Mr. Fernandez sued the Respondent for the return of the $2500. In his defense Respondent claimed he had incurred expenses for plans and for the building permit. When the matter finally went to trial Mr. Fernandez received a final judgment for damages in the amount of $1,054 plus interest. This final judgment was entered on November 18, 1997. Respondent did not satisfy or otherwise discharge the Fernandez final judgment against him prior to the final hearing in this cause. When Respondent appeared for the final hearing he was granted leave to attempt settlement but was able to remit only a portion of the debt owed to Mr. Fernandez. In August 1998 Respondent's license to practice was suspended. Respondent had failed or otherwise refused to comply with the terms of a lawful order of the Construction Industry Licensing Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board enter a Final Order revoking Respondent's license. DONE AND ENTERED this 29th day of March, 1999, 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 29th day of March, 1999. COPIES FURNISHED: 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 Diane Snell Perera, Esquire Department of Business and Professional Regulation 401 Northwest Second Avenue Suite N-607 Miami, Florida 33128 Seymour Stern, Esquire Department of Business and Professional Regulation 401 Northwest Second Avenue Suite N-607 Miami, Florida 33128 Earl Gene Burks 15550 Southwest 152nd Avenue Miami, Florida 33187
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the amended administrative complaint?
Findings Of Fact At all pertinent times, respondent Ronnie L. Barfield was registered as a roofing contractor and held a state contractor's license, No. RC 0039607. At some point, records reflected the license was inactive, but this was in error. In 1987, Jack Williams lived in the house at 3101 Kings Drive in Panama City, Florida. At all pertinent times the house belonged to Evelyn Rhoads, whose daughter Anna was once married to Mr. Williams. "[B]ack in 1987," (T.10) Mr. Williams contracted with respondent Barfield, on behalf of Ms. Rhoads, to re-roof the house. Doing business as Gulf Coast Roofing Co., Mr. Barfield estimated the work would cost $5,000, before seeing the house, but ultimately presented a bill for (and was paid) $13,922.56. Petitioner's Exhibit No. 2. Respondent removed the existing shingles, replaced rotted portions of the decking near the chimney, installed four new skylights, installed a new drip edge or eave drip and put on new felt and fiberglass shingles. Any flashing there may have been around the chimney did not survive removal of the existing shingles. The eave drip, a strip of aluminum, "puckered" over the carport because the trusses were not uniform. At Mr. Williams' request, Mr. Barfield drove three nails through the eave drip into the fascia to flatten the metal out. Exposed to the elements, the heads of these galvanized nails rusted. On August 10, 1987, after Jack had moved out, Anna moved back in. She noticed "a lot of ridges, indentations and waves in the roof." T.16. (But this may have been nothing new. When a concrete slab foundation varies in height, so that the trusses are at different heights, it makes the roof uneven.) Waviness arising even after respondent's work would more likely have been because of poor attic ventilation than any dereliction by respondent. Anna Bartness, as she has been known since July of 1988, also noticed that the shingles capping the peak or ridge of the roof were loose and uneven. When inspected in January, ridge cap shingles were found attached with only a single nail, instead of two -- one on either side -- which is the industry standard. Eventually "the ridge cap came off it was in the yard." T.16. One of the skylights leaked, when it rained. Ms. Bartness sought Mr. Williams' assistance in locating respondent to tell him of the problems. Mr. Williams remembered getting "the telephone number where [respondent] could be reached." T.14. Whether Mr. Williams himself actually telephoned is not clear, but Ms. Bartness tried repeatedly to reach Mr. Barfield by telephone. Although she never succeeded, she left messages on a telephone answering machine and also left word with a secretary in Mr. Barfield's lawyer's office. A certified letter she mailed respondent was returned unclaimed. These efforts to reach Mr. Barfield may have coincided with time he spent in south Florida. Respondent had agreed "LABOR CARRIES A 5 YEAR WARRANTY." Petitioner's Exhibit No. 2. He did not learn of complaints about the work at 3101 Kings Drive until after Ms. Rhoads complained to the Department of Professional Regulation and the present proceedings began. But he had not offered to reimburse Ms. Rhoads or otherwise honor the warranty in any way, as of the time of the hearing. Giving up on Mr. Barfield, Ms. Bartness got estimates from two other roofers, David C. Stallnecker and Mayo= Rudd. Among other things, flanges around plumbing vents that had sustained damage from external sources required replacement, flashing needed to be installed around the chimney, wood there had again rotted, and ridge cap shingles needed removal and proper installation. Mr. Rudd charged her $710 for repairs he told her consisted of putting flashing around the chimney because there was none, reapplying tar or "bull," replacing a defective vent that was leaking into a skylight and, which she could see herself, replacing shingles on the roof ridge. Petitioner's Exhibit No. 5. On or about January 15, 1988, before these repairs, Mr. Stallnecker, like Mr. Rudd, found "no flashing on the chimney." Petitioner's Exhibit No. 5; T. 44. When water began coming down the chimney in 1990, Ms. Bartness contracted with James Rutledge, doing business as Rutledge Roofing, to do additional work. He removed shingles around the chimney, replaced bad wood, installed a "membrane with plastic [r]oof cement for flashing against chimney," Petitioner's Exhibit No. 7, and replaced felt and shingles. Unless an owner instructs him not to, a reasonably prudent roofer would install flashing around a chimney that did not already have it before laying shingles there. T. 45. Testifying at hearing, Mr. Barfield never claimed that he installed flashing around the chimney. Nor did he ever say he saw flashing around the chimney. He said flashing was built in behind the brick. You couldn't see it . . . until you pulled the brick out. T. 70. On balance, however, his testimony suggested that he assumed there was flashing around the chimney, without ever seeing it. [T]he brick masons put the flashing on unless you go where they're building these 235 houses around here they would have nailed it on the side. You hardly wouldn't do that on a $200,000 house sitting on the water, I wouldn't think. I would think it would be built in. T. 71. However reasonable this assumption, and the unstated assumption that his crew had not (inadvertently) removed the flashing in taking off the existing roof, the evidence as a whole showed there was no flashing around the chimney by the time respondent's crew put down the new shingles.
Recommendation It is, accordingly, RECOMMENDED: That the Construction Industry Licensing Board fine respondent five hundred dollars ($500). DONE and ENTERED this 1st day of January, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of January, 1991. Copies furnished to: Daniel O'Brien, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 Jack McRay, General Counsel Department of Professional Regulation 1940 N. Monroe Street Tallahassee, FL 32399-0792 G. W. Harrell, Esquire Department of Professional Regulation 1940 N. Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Rowlett W. Bryant, Esquire 833 Harrison Avenue Panama City, FL 32402
The Issue The issues for determination are whether Respondent committed the acts alleged in the Administrative Complaint and, if so, what, if any, penalty should be imposed.
Findings Of Fact Petitioner is the governmental agency responsible for issuing licenses to practice as building contractors. Petitioner is also responsible for regulating such licensees on behalf of the state. At all times pertinent to this proceeding, Respondent has been licensed individually as a Certified General Contractor pursuant to license number CG C 0055328 issued by the Construction Industry Licensing Board (the "Board"). Respondent has never been licensed by the Board as the qualifying agent for Mr. Gary Butler ("Butler"), an unlicensed contractor. In 1993, Respondent entered into an agreement with Butler who has never been licensed by the Board. The terms of the agreement require Respondent to pull permits for construction projects entered into by Butler. Butler pays Respondent for each permit or weekly. Respondent supervises some, but not all, of the projects undertaken by Butler. In August, 1993, Mr. Lynn Kyler ("Kyler"), the owner of a residence constructed by Ms. Denise Pyke ("Pyke"), a Certified Residential Contractor, asked Pyke to find a contractor to build a new dock and boat house at Kyler's residence. The Kyler residence is a lake front home located at 10250 State Road 561 A, Clermont, Lake County, Florida. Kyler authorized Pyke to act as Kyler's agent for construction of the dock and boat house. Kyler resided in Indiana from August through late fall of 1993. Pyke obtained recommendations of various candidates including Butler. Butler represented himself as a licensed and insured builder of docks and boat houses. Butler provided Pyke with a business card representing that Butler is licensed and insured. Pyke obtained cost and design proposals from Butler and Norquist Construction Company and communicated the proposals to Kyler. Kyler chose Butler. Butler agreed to demolish the existing dock and construct a new dock and boat house (the "project"). Kyler paid Butler the full contract price of $6,897.60. Prior to the completion of the project, neither Respondent nor Butler disclosed to Pyke or Kyler that Butler was unlicensed. Nor did they disclose that Butler would use Respondent's license to pull the permit for the project. Respondent knew that Butler is not licensed as a contractor, in any capacity. On August 25, 1993, Respondent and Butler went to the Lake County Building Department. Respondent used his license to pull Permit Number T93- 04793 for the project. The permit was issued to Respondent, listed Respondent's license as the certified general contractor, and was maintained in the official records of the Lake County Building Department. Respondent listed himself on the permit as the contractor for the entire project without limitation and without reference to Butler. Respondent was not authorized by Pyke or Kyler to pull the permit or to participate in the project. At the time, neither Pyke nor Kyler were aware of Respondent's existence or his role in the project. Respondent did not participate and had no involvement in the project except pulling the permit. The project was commenced by Butler in August, 1993, and completed shortly thereafter. Respondent did not supervise or participate in the construction of the project. Butler began the project without first filing a Notice of Commencement. Butler constructed the project with only a 10 foot setback in violation of the 25 foot setback required in Lake County Code Ordinance 10.0401(3)(d). Butler also failed to obtain an electrical permit in violation of Standard Building Code, Section 103.1.1. (1991). The project, as built by Butler, has no value to Kyler. The project failed final inspection for violation of the 25 foot setback and failure to obtain an electrical permit. The roof tiles on the boat house had to be removed because they were falling off the roof. The project itself is coming apart. It will cost between $10,000 and $12,000 to bring the project into compliance with local code requirements and to make it usable. Respondent was aware of the 25 foot setback when he pulled the permit for the project. The project plans submitted for the permit reflect the 25 foot setback. Lake County allows contractors to withdraw permits that have already been pulled. Respondent never withdrew the permit for the project. Butler was unable to obtain a final inspection because he failed to file a Notice Of Commencement at the outset of the project. Pyke and Kyler filed the Notice Of Commencement in order to obtain the final inspection. As the contractor of record, it was Respondent's responsibility to ensure that a Notice of Commencement was filed and that the project passed final inspection. While obtaining the information necessary to file the Notice Of Commencement, Pyke and Kyler learned that Butler was unlicensed and uninsured and that Respondent had used his license to pull the permit. When confronted by Pyke, Respondent did not deny knowledge of the project and assured Pyke that the problems with the project would be corrected. Despite Respondent's assurances, the code violations have not been corrected. Nor have the defects in construction been corrected.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a Final Order finding Respondent guilty of violating: Sections 489.129(1)(c) and 455.227(1)(a); and Sections 489.129(1) (e), (f), (n), and (p). It is further recommended that the Board place Respondent on probation for three years, subject to reasonable conditions, impose an administrative fine of $5,000, and assess costs of $717.50 plus reasonable costs incurred by Petitioner subsequent to the date of this Recommended Order to investigate and prosecute this proceeding to its conclusion. RECOMMENDED this 28th day of March, 1996, in Tallahassee, Florida. DANIEL S. MANRY, 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 28th day of March 1996.
The Issue The issue for determination at the formal hearing was whether Respondent allowed an uncertified and unregistered person to engage in prohibited contracting in violation of Subsections 489.129(1)(e), (f), and (m), Florida Statutes. 1/
Findings Of Fact Petitioner is the state agency charged, in conjunction with the Construction Industry Licensing Board, with the responsibility for prosecuting the Administrative Complaint in this proceeding pursuant to chapters 455 and 489, and the rules promulgated thereunder. In September, 1980, license number CG C015802 was issued to Respondent, Thomas J. Freese, as the qualifying agent for Tracy Industries, 728 St. Lucie Crest, Stuart, Florida 33494 ("Tracy"). Respondent was the licensed qualifying agent for Tracy Industries at all times material to this proceeding. At no time material to this proceeding was Robert Sherno licensed by Petitioner as a contractor. On or about May 30, 1988, Mr. Sherno contracted with William F. Meinking to construct a home for Mr. Meinking. The contract price was not to exceed $64,000.00. A building permit was issued for the construction of Mr. Meinking's home on June 8, 1988. The permit was obtained by Mr. Sherno as agent for Respondent. A notice of commencement was filed by Mr. Meinking on June 20, 1988, listing Respondent as the contractor, and listing Mr. Sherno as the person designated by the owner for service of notice and other documents. Respondent authorized Mr. Sherno to obtain the building permit by letter to the local building department dated June 21, 1988 ("authorization letter"). The authorization letter was requested by Robert Nelson who was Tracy's president. Mr. Nelson was personally acquainted with Mr. Sherno and dealt directly but separately with Mr. Sherno and Respondent. Mr. Sherno paid $200.00 to Mr. Nelson at the time of the authorization letter. Mr. Nelson told Respondent that the permit was for the construction of Mr. Meinking's home. Respondent initially questioned the need for a contractor to pull the permit when the owner could build his own house under an owner's permit. Respondent was told that Mr. Meinking and Mr. Sherno were going to develop a number of homes in the area Not only would the number of homes not qualify for an owner's permit, but it was anticipated by Mr. Nelson that the development plan proposed by Mr. Sherno and Mr. Meinking had excellent profit potential for all concerned. Based on that information from Mr. Nelson, Respondent signed the authorization letter. Respondent knew Mr. Sherno and knew that Mr. Sherno was not a licensed contractor. Neither Respondent nor any qualified person supervised the construction of Mr. Meinking's home. One person employed by Tracy in an administrative or clerical capacity visited the construction site occasionally. Respondent inquired of Mr. Nelson from time to time at the offices of Tracy as to the status of construction. Respondent drove by the construction site from time to time, but did not personally supervise construction in any capacity. Respondent did not inspect the progress of construction, provide insurance, discuss the progress of construction with Mr. Meinking, Mr. Sherno, or anyone at Tracy. Respondent assumed that construction was proceeding according to schedule and in a satisfactory manner as long as there were no complaints. Mr. Meinking paid Mr. Sherno the entire $64,000.00 pursuant to the terms of the contract. During the latter stages of construction in the first or second week of November, Mr. Meinking began receiving calls from subcontractors stating that they had not been paid. Mr. Meinking terminated his contractual relationship with Mr. Sherno on or about November 17, 1988. Mr. Meinking paid approximately $16,500.00 to eight subcontractors and an additional $10,000.00 to $12,000.00 to finish construction of his home.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of violating Subsections 489.129(1)(e), (f), and (m), Florida Statutes. It is further recommended that Respondent be fined $2,000.00 which represents the aggregate amount of the minimum fine for each violation. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 27th day of August, 1990. DANIEL MANRY 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 27th day of August, 1990.
