The Issue An administrative complaint dated June 7, 1989, alleges that Respondent violated Chapter 489, F.S., governing the construction industry, by completing a contracting job without having obtained a local building permit. The issue in this proceeding is whether the violation occurred, and if so, what discipline is appropriate. An ancillary issue is what effect, if any, Respondent's discharge in bankruptcy dated January 9, 1989, would have on any penalty in this case.
Findings Of Fact At all times material, and between July 1985 and July 1989, Robert Lambert was licensed by the Florida Construction Industry Licensing Board as a Registered Aluminum Specialty Contractor, with license number RX-0048976. Robert Lambert was the sole qualifying agent for The Screenbuilders Aluminum Trim, 1410 Elk Court, Apopka, Florida, a partnership business in which Lambert was a partner. In June 1987, the Screenbuilders entered into a written contract with Cecil Floyd to construct a carport and screened-in porch and new roof over Mr. Floyd's home at 741 Baron Road, Orlando, Orange County, Florida. The entire job was completed without Lambert's having obtained a building permit from the Orange County Building Department. Section 103 of the Standard Building Code of 1985, as adopted in the Orange County Building Code, requires that a building permit be obtained prior to altering, repairing, improving, converting, constructing, or demolishing any building or structure in the jurisdiction. (Petitioner's exhibits #2 and #3) Respondent and his agents knew that they needed a permit from the Orange County Building Department. For other jobs they had routinely obtained permits. After the work commenced, Lambert attempted to obtain a permit for the job. The building department would not accept the paperwork he offered and Cecil Floyd refused to pay for another plat as he had already paid out the entire contracted for monies for the job. To date, no permit for the Floyd job has been obtained. Robert Lambert's licensure file reveals several prior disciplinary actions, including revocation on January 11, 1990. As of the date of hearing, no final order on that action had been issued. On January 9, 1989, George L. Proctor, Bankruptcy Judge for the U.S. Bankruptcy Court, Middle District of Florida, entered a "Discharge of Debtor", providing as follows: DISCHARGE OF DEBTOR It appears that the person named above filed a petition commencing a case under title 11, United States Code on August 29, 1988 , that an order for relief was entered under chapter 7, and that no complaint objecting to the discharge of the debtor was filed within the time fixed by the court [or that a complaint objecting to discharge of the debtor was filed and, after due notice and hearing, was not sustained]. IT IS ORDERED THAT: The above-named debtor is released from all dischargeable debts. Any judgement heretofore or hereafter obtained in any court other than this court is null and void as a determination of the personal liability of the debtor with respect to any of the following: debts dischargeable under 11 U.S.C. Section 523; unless heretofore or hereafter determined by order of this court to be nondischargeable, debts alleged to be excepted from the discharge under clauses (2), (4) and (6) of 11 U.S.C. Section 523 (a); debts determined by this court to be discharged. All creditors whose debts are discharged by this order and all creditors whose are declared null and void by paragraph 2 above are enjoined from instituting or continuing any action or employing any process or engaging in any act to collect such debts as personal liabilities of the above-named debtor. Respondent Exhibit #1
Recommendation Based on the foregoing, it is hereby, RECOMMENDED That Respondent, Robert Lambert, be found guilty of violation of Section 489.129(1)(d), F.S. and fined $1,000.00. DONE AND RECOMMENDED this 22nd day of March, 1990, in Tallahassee, Leon County, Florida. MARY CLARK 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 22nd day of March, 1990. COPIES FURNISHED: Jack L. McRay, Esquire Dept. of Professional Regulation 1940 N. Monroe St., Suite 60 Tallahassee, FL 32399-0792 Robert Lambert 1410 Elk Court Apopka, FL 32712-3026 Kenneth D. Easley, General Counsel Dept. of Professional Regulation 1940 N. Monroe St., Suite 60 Tallahassee, FL 32399-0792 Fred Seely, Executive Director Construction Industry Licensing Board P.O. Box 2 Jacksonville, FL 32202
Findings Of Fact At all times pertinent to these proceedings, Hamilton held registered residential contractors license number RR0015037. Hamilton agreed to construct a house in Clearmont, Florida, with a completion date no later than May 1, 1977, for Robert J. and Margaret M. Phlepsen. The construction price was $75,000.00. After construction of the house it was discovered that there existed two violations of the Southern Building Code. First, the "step-down" from the kitchen to the garage was an eleven inch riser contrary to the code requirement that the height of a riser shall not exceed seven and three quarters inches. The second violation occurred through the use of 2 X 8 joists where the code would require 2 X 10 joists. The extra high riser between the kitchen and the garage was apparently caused by an oversight. Hamilton merely failed to install an intermediate step at that location. The second violation occurred because the owner and Hamilton agreed to use the smaller joists in order to save money on the contract price. In neither case is there sufficient evidence to establish that Hamilton's violations were willful or deliberate as alleged in the Administrative Complaint. On June 6, 1978, the Lake County Board of Examiners suspended Hamilton's Lake County Certificate of Competency because of violations of building code requirements in the construction of Phlepsen's house.
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Mr. Borek was licensed by the Department as a certified general contractor, having been issued license number CG C 58817. He was licensed on November 18, 1996. At all times material hereto, Mr. Borek was the qualifying agent of Atlantic Coast General Contractors, Inc. (ACGC), a Florida corporation, and has been its president. ACGC was issued a certificate of authority as a contractor qualified business on June 2, 1977, having been issued license number QB 07357. ACGC's license expired on September 1, 2001 and became null and void on September 1, 2003. The State of Florida, Department of State, administratively dissolved ACGC, as a corporation, on October 1, 2004, for its failure to file its annual report, as required by law; and, as a result, ACGC's authority to transact business, as a corporation, in the State of Florida was revoked on the same date. At all times material hereto, Tracey Meredith (Ms. T. Meredith) resided in and owned a home located at 7690 Northwest 16th Court, Pembroke Pines, Florida. Ms. T. Meredith wanted her mother, Jane Meredith1 (Ms. J. Meredith), to live with her so Ms. T. Meredith decided to have an addition built to her home, consisting of a bedroom, bathroom, and closet. Ms. T. Meredith obtained a proposal from ACGC and five other contractors for the addition. Each contractor was aware of the purpose of the addition. Ms. T. Meredith decided to contract with ACGC, which was not the lowest or the highest bidder, but was somewhat in the middle. On June 28, 2002, a Proposal/Contract (Contract) was executed with ACGC for the addition at a cost of $32,925.00. Even though the Contract showed Ms. T. Meredith as the contracting party, it was signed by Ms. J. Meredith because she (Ms. J. Meredith) was actually paying for the addition and signing the checks. Both Mses. T. Meredith and J. Meredith were in agreement with the Contract. The Contract provided, among other things, that the addition was 15 x 21; and that the payments would be as follows: 20% at acceptance of the Contract, 20% at permit issuance, 10% at slab, 20% at wall and roof framing, 10% at roof completion, 10% at finished walls and flooring, and 10% at final completion. No dispute exists that the cost of the Contract was reasonable. No dispute exists that the Contract failed to contain a provision explaining the consumer's rights under the Florida Homeowners' Construction Recovery Fund, formerly known as the Construction Industries Recovery Fund. No dispute exists that the Contract did not provide a date for completion of the addition. Regarding a completion date for the addition, Ms. T. Meredith testified that all the other proposals provided that the addition would be completed within six to eight weeks and that, at the beginning, Mr. Borek orally communicated to her that the addition would be completed by ACGC within six to eight weeks. To the contrary, Mr. Borek testified that, at the beginning, no completion date was given to her, either orally or in writing. None of the other proposals were submitted into evidence, only the Contract with Mr. Borek, which did not provide a completion date. It would not be reasonable for Ms. T. Meredith to accept Mr. Borek's proposal without it’s being within the time period of completion of the other proposals. The undersigned finds Ms. T. Meredith's testimony more credible and makes a finding of fact that, at the time of the signing of the Contract, Mr. Borek made an oral representation that the addition would be completed by ACGC within six to eight weeks. An expert in the field of general contracting, John Yanoviak (Mr. Yanoviak), testified on behalf of the Department. The undersigned finds his testimony credible, except as specifically indicated. A reasonable amount of time to complete the addition was a maximum of three months. Mr. Borek, as the contractor, was responsible for keeping the project timely and for quality control. On June 30, 2002, Ms. J. Meredith wrote a check, payable to ACGC, in the amount of $6,585.00. This amount was 20 percent of the contracted cost for the addition. No dispute exists that this check was written and presented to Mr. Borek. Paying this amount was in accordance with the Contract. Mr. Borek filed an application for a building permit with the City of Pembroke Pines (CPP) on or about July 3, 2002. The building permit was issued by CPP on or about October 25, 2002. Work on the addition was commenced before the issuance of the building permit. Ms. T. Meredith was aware of the date that the building permit was issued. Prior to the issuance of the building permit, Ms. T. Meredith complained to Mr. Borek regarding the addition’s not being completed. No evidence was presented to show that Ms. T. Meredith indicated to Mr. Borek that, by his failure to complete the addition within a six-to- eight-week period, he was not abiding by the Contract. No evidence was presented to show that she indicated her dissatisfaction to the degree of possibly terminating the Contract with ACGC. On November 12, 2002, Ms. J. Meredith wrote a check, payable to ACGC, in the amount of $6,585.00. This amount was paid after Mr. Borek obtained the building permit and was 20 percent of the contracted cost for the addition. No dispute exists that this check was written and presented to Mr. Borek. Paying this amount was in accordance with the Contract. On December 11, 2002, Ms. J. Meredith wrote a check, payable to ACGC, in the amount of $6,885.00. This amount was $300.00 more than 20 percent of the contracted cost for the addition. No dispute exists that this check was written and presented to Mr. Borek. An inference is drawn and a finding is made that this check was written in advancing of the addition. According to the records of the CPP's building department2 (Records), a CPP form for a revision to the addition was submitted on January 6, 2003, providing for an electrical change to the addition. Further, the Records indicate that, on March 20, 2003, an application for an electrical permit was submitted and that, on March 24, 2003, the permit was approved. Also, a revision to the plans of the addition was submitted to the CPP by the architect to the addition, Hernando Acosta, according to the Records. The Records indicate that the revision to the plans was dated January 30, 2003 by Mr. Acosta, that the revision was submitted on February 7, 2003, and that the revision was approved on February 11, 2003 by the CPP. In addition, in February 2003, Ms. T. Meredith received written communication from the CPP regarding a problem with the addition. Ms. T. Meredith received a copy of a letter from the CPP to Mr. Borek, dated February 18, 2003. The letter indicated, among other things, that the CPP had issued a "stop work status" on the addition due to Mr. Borek’s having issued a check, payable to the CPP, in the amount of $135.80, which was dishonored. Another revision, according to the Records, was submitted on March 27, 2003, regarding the trusses. The Records indicate that the revision was approved on April 17, 2003. Ms. T. Meredith became more dissatisfied with the progress toward completion on the addition by Mr. Borek to the point that she filed a complaint with the Department on May 21, 2003. In May 2003, Ms. T. Meredith received written communication from the CPP regarding a problem with the addition. By letter dated May 22, 2003, she received notification from the CPP, as information only, that a code violation had not been corrected within the allowable ten-day period, together with a copy of CPP's letter to Mr. Borek, dated May 22, 2003, of his failure to correct the code violation. The letter to Mr. Borek indicated, among other things, that Mr. Borek had until June 11, 2003 to correct the violation, identifying the inspection date and the violation. By a letter dated May 28, 2003, Ms. T. Meredith advised Mr. Borek, among other things, that he had seven days to continue with the work on the addition in accordance with the Contract or else the Contract would be considered by her to be "null and void"; that, if he did not do so, she would be "forced" to hire another contractor, with Mr. Borek being held financially responsible for completion of the addition; and that the Contract was to be completed within six to eight weeks. On June 12, 2003, Mr. Borek contacted the investigator for the Department regarding the complaint filed by Ms. T. Meredith. Among other things, Mr. Borek informed the investigator that he (Mr. Borek) was willing to complete the addition in 30 days. By his representation, Mr. Borek indicated that he would complete the addition on or about July 12, 2003. By a letter dated June 18, 2003, Mr. Borek notified the investigator, among other things, that he was working "diligently" to complete the addition. Mr. Borek failed to complete the addition within the 30-day period, as he had represented to the Department's investigator. The Records indicate that an application for a building permit, involving the roof to the addition, was submitted on June 25, 2003. The permit was issued, according to the Records, on July 30, 2003. Further, the Records indicate that a revision, regarding the size of a window and the elimination of a door, was submitted on July 8, 2003, and approved on July 9, 2003. In July 2003, Ms. T. Meredith received another written communication from the CPP regarding a problem with the addition. By letter dated July 9, 2003, she received notification from the CPP, as information only, that a code violation had not been corrected within the allowable ten-day period, together with a copy of CPP's letter to Mr. Borek, dated July 9, 2003, of his failure to correct the code violation. The letter to Mr. Borek indicated, among other things, that Mr. Borek had until July 28, 2003, to correct the violation, identifying the inspection date and the violation. In addition, in July 2003, Ms. T. Meredith received written communication from the CPP regarding another problem with the addition. She received a copy of a letter from the CPP to Mr. Borek, dated July 18, 2003, which indicated, among other things, that the CPP had issued a "stop work status" on the addition due to Mr. Borek having issued a check, payable to the CPP, in amount of $76.23, which was dishonored. Even though Mr. Borek failed to complete the addition within the 30-day period that he had represented to the Department's investigator and even though Ms. T. Meredith had received notification of the problems at the jobsite from the CPP, on September 10, 2003, Ms. J. Meredith wrote a check, payable to ACGC, in the amount of $4,000.00. No dispute exists that this check was written and presented to Mr. Borek. An inference is drawn and a finding is made that this check was written in furtherance of the addition. ACGC had been paid a total of $24,055.00 of the Contract cost of $32,925.00, which was approximately 73 percent of the Contract cost. The balance of the Contract cost was $8,870.00. Mr. Borek testified that, at the time of the writing of the check for $4,000.00, he and Ms. T. Meredith agreed that he would have until on or about November 15, 2003 to complete the project. Ms. T. Meredith testified that no such agreement was made. At the time of the check for $4,000, ACGC was almost 60 days beyond the completion date represented to the Department's investigator. No testimony was presented as to why the $4,000.00 was paid to ACGC in light of such a considerable delay in completing the job by ACGC and in light of the complaint being filed with the Department. Due to the lack of an explanation for the payment of the $4,000.00 to ACGC in furtherance of the project, Mr. Borek's testimony presents a reasonable explanation. Therefore, Mr. Borek's testimony is found to be credible. Hence, a finding is made that, on or about September 10, 2003, Mr. Borek and Ms. T. Meredith orally agreed that ACGC would have until on or about November 15, 2003, to complete the addition. Ms. T. Meredith continued to be dissatisfied with the progress on the addition by ACGC. Sometime after September 10, 2003, an incident occurred which caused her to reach the conclusion that she could not allow ACGC to continue working on the project. One day when she left for work, one of ACGC's workers was painting the exterior walls. When she returned from work later that same day, the same worker for ACGC was painting the exterior walls. Ms. T. Meredith immediately directed the worker to leave and to take all of his equipment with him; the worker did so. Ms. T. Meredith contacted Mr. Borek and informed him that she would not allow him to continue with the project. Mr. Borek repeatedly requested Ms. T. Meredith to allow him to continue with the project, but she refused. By letter dated October 9, 2003, Ms. T. Meredith terminated the Contract with ACGC. She mailed the letter on the same date and faxed it on October 14, 2003. Her mother was in agreement with terminating the Contract. Ms. T. Meredith indicated, among other things, in her letter to ACGC that its failure to complete the addition as of the date of the letter, when the oral agreement was completion within six to eight weeks, left her no choice but to terminate the Contract. Ms. T. Meredith included in the letter, among other things, what remained to be completed on the project and a cost of $539.55 for damaged items at her home caused by ACGC, with an itemized list. At the time of the termination, the following work remained to be completed: purchase and installation of plumbing fixtures; sewer hookup; molding; tile work in the bathroom; installation of storm panels and flooring; some painting; installation of an air conditioner; some electrical connections; and installation of an electrical panel, electric wall plates, and an electric light fixture. Ms. T. Meredith obtained a homeowner's permit and hired someone, Adam Friedman, to assist her in completing the addition. On December 15, 2003, the CPP issued a certificate of occupancy to her. As to expenditures by Mses. T. and J. Meredith in order to complete the addition, the undersigned finds the testimony of Mr. Yanoviak credible. Mses. T. and J. Meredith expended $19,170.52 to complete the addition. The expenditures for completion were reasonable and necessary. Not included in the expenditures for completion are the following: $3,941.31 for items not included in the Contract--a fence, pavers, wood floor, upgraded bathroom fixtures or accessories, closet woodwork and various Home Depot items (totaling $238.21); $250.00 for mill work associated with chair rails; and $2,400.00 for an exterior concrete slab. Included in the expenditures for completion is the following: $1,360.00 for a split-system air conditioning unit which was not installed by ACGC. Further, included in the cost of expenditures is an adjustment in favor of Ms. T. Meredith in the amount of $1,000.00 for the elimination of a window on the west elevation of the addition, which was orally agreed to by Ms. T. Meredith and Mr. Borek after the signing of the Contract and which would have been subtracted from the cost of the Contract. After Ms. T. Meredith terminated the Contract, she filed a claim under the Construction Industries Recovery Fund. The claim was dated October 10, 2003, one day after she terminated the Contract. Ms. T. Meredith set forth in the claim that she was requesting $12,000.00, which she indicated was the amount to pay another contractor to complete the project. The undersigned places very little weight upon the amount requested because the claim is prior to completing the project and fails to reflect the actual costs involved in completing the project, which were realized only after completion. Damage to items at Ms. T. Meredith's home occurred, during the work being performed by ACGC, for which ACGC was responsible. The following items were affected: damaged a window magnet that was part of the home's security system at $80.00; destroyed, broken, or thrown away one large planter pot, one archway, and two large stepping stones--all at an estimate of $440.34; and broken tiles in the front of the house at $13.57. The damages totaled $533.91. At the time of the hearing, Mr. Borek had not made any payments to Ms. T. Meredith or Ms. J. Meredith for their expenditures to complete the addition or for the damages. At the time of the termination, in accordance with the oral agreement of completion by on or about November 15, 2003, ACGC had a little over 30 days to complete the addition. In light of the finding that an oral agreement had been reached to allow ACGC until on or about November 15, 2003, to complete the addition and in light of the only incident since that agreement, presented by the evidence, was the situation involving ACGC's painter, the undersigned finds that the painting situation was not substantial and that, therefore, the termination on October 9, 2003, prior to the new agreed- upon termination date, was unreasonable. Ms. T. Meredith testified that, sometime during the middle of the year 2003, for a period of "exactly" 60 days, ACGC failed to perform any work at the project. Mr. Borek denies her assertion. Ms. T. Meredith testified that she kept records on everything. When she testified as to an exact 60- day period in the middle of 2003 during which no work was being done at the project, Ms. T. Meredith did not point to any of her records to verify the assertion or provide certain beginning and ending dates. Taking into consideration the standard of proof and the burden of proof, the evidence failed to show clearly and convincingly that no work was done at the jobsite by ACGC for a period of 60 days in the middle of the year 2003. Nothing was done by Ms. T. Meredith, the architect, or CPP to delay the completion of the project. Mr. Borek admits that he had other jobs in progress when he was working on the addition. He further admits that when changes had to be made to the project, whether by the CPP or the architect or Ms. T. Meredith or himself, he had to re- arrange his schedule to accommodate the other jobs, which included re-deploying his workers and subcontractors, which in turn caused delays. Further, Mr. Borek admits that the turnaround time for any changes given to the architect for the plans to the addition was reasonable and that the turnaround time for the CPP to review the changes to the plans submitted by the architect was reasonable. Consequently, no unreasonable or inordinate delays were caused by the architect or the CPP when changes were made to the plans of the addition. Mr. Borek performed some work for Ms. T. Meredith at no cost that was not required by the Contract. The extra work at no cost included the following: the removal of trees; pouring of an exterior concrete slab; and plastering of drywall. The slow progress in completing the Contract was significant and material and resulted in the Contract’s not being performed in a reasonable time. The delays in completion of the addition were significant and were the fault of Mr. Borek. In addition to re-deploying workers for other jobs on which ACGC was working, ACGC failed to properly perform work, which resulted in failed inspections by the CPP, which resulted in numerous delays, and failed to timely obtain an electrical permit. As to the failure to timely obtain an electrical permit, the electrical permit was obtained almost five months subsequent to the issuance of the building permit by the CPP. The electrical permit was applied for on March 20, 2003 and approved on March 24, 2003. CPP's turnaround time in approving the permit was short and inconsequential. As to the failure to properly perform work, the Records indicate construction defects, which were under Mr. Borek's, the contractor's, control and which resulted in failed inspections. Furthermore, the Records indicate prior construction faults, identified in inspections, not being timely corrected, which was under Mr. Borek's control and which resulted in delays until the faults were corrected. Mr. Yanoviak testified that failure to perform the Contract within a reasonable time constituted misconduct. The undersigned finds his testimony credible. A finding of fact is made that the failure to perform the Contract within a reasonable time constituted misconduct. Additionally, Mr. Yanoviak testified that the failure to perform the Contract within a reasonable time constituted a material breach of the Contract. The undersigned finds his testimony credible, and a finding of fact is made that the failure to perform the Contract within a reasonable time constituted a material breach of the Contract. Further, Mr. Yanoviak testified that, such material breach, justified terminating the Contract. The undersigned finds his testimony credible only as to a general application and, therefore, a finding of fact is made that, generally, the failure to perform a construction contract within a reasonable time would justify terminating the construction contract but does not justify terminating the Contract under the circumstances presented in the instant case. Both Mr. Borek and Ms. T. Meredith orally agreed to a new date for completion of the addition, i.e., on or about November 15, 2003. To disregard the new date of completion would be manifestly unjust. Furthermore, at the time of the termination of the Contract by Ms. T. Meredith, i.e., on October 9, 2003, the termination was unreasonable and not for just cause. Hence, a finding of fact is made that termination of the Contract by Ms. T. Meredith, prior to the new completion date, was not justified. Mr. Yanoviak also testified that failure to perform the Contract within a reasonable time constituted abandonment of the project. The undersigned finds his testimony credible only as to general application and, therefore, a finding of fact is made that, generally, the failure to perform a construction contract within a reasonable time would constitute abandonment of a project. However, as found above, a new date for completion of the project was orally agreed upon and the new date had not expired at the time of the termination of the Contract by Ms. T. Meredith. Hence, a finding of fact is made that, under the circumstances of the instant case, abandonment did not exist. The Department presented evidence of costs for the investigation and prosecution of this matter, excluding costs associated with attorney time. As of July 5, 2005, the costs for the investigation and prosecution totaled $880.18. As to prior disciplinary action, on September 9, 2004, the Department filed a Final Order in Department of Business and Professional Regulation vs. Bret Jayson Borek, Case No. 2003-069533, License No. CG Co58817 before the Construction Industry Licensing Board. In that case, an administrative complaint was filed against Mr. Borek for violating Section 489.129(1)(i), Florida Statutes (2001), by failing to comply in a material respect with a provision of Chapter 489, Florida Statutes, through the failure to obtain a certificate of authority for ACGC; and for violating Section 489.129(1)(q), Florida Statutes (2001), by failing to satisfy a civil judgment, related to the practice of construction, within a reasonable time. Mr. Borek waived his rights to an informal hearing, and no material fact was disputed. Among other things, the Final Order imposed an administrative fine of $1,000.00, required restitution of $15,218.94 to a roofing and sheet metal company and required payment of $506.92 for investigative costs.
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: Finding that Bret Jayson Borek committed the violations set forth in Counts I, II, and III; Dismissing Count IV; and Imposing the following penalties: As to Count I, an administrative fine in the amount of $1,000.00 and revocation of the license of Bret Jayson Borek. As to Count II, an administrative fine in the amount of $500.00. As to Count III, an administrative fine in the amount of $5,000.00 and revocation of the license of Bret Jayson Borek. S DONE AND ENTERED this 9th day of January, 2006, 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 9th day of January, 2006.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts were found: At all times material to these proceedings, the Respondent, Victor S. Davis, held a registered general contractor's license, numbered RG 0013635 issued by the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board in April, 1973. At all times material to these proceedings, Respondent's general contractor's license, number RG 0013635, was in a delinquent status and had been in a delinquent status since July 1, 1977. Respondent failed to renew his license after June 30, 1975 but in May, 1976 made application to reinstate license number RG 0013635 which was approved and reinstated on an active status by Petitioner in May, 1976 and issued to Respondent, Victor S. Davis, qualifying Conch Construction Corp., of Key West, Florida. There was no evidence that the reinstated license was issued for Monroe County, Florida or that Respondent ever held a certificate of competency for Monroe County, Florida. At all times material to these proceedings, Respondent was an officer (Secretary) of Classic Marketing and Development, Inc. (Classic). On July 28, 1983, the Respondent, as Secretary of Classic, entered into a contract with William Dees to construct a shell home on the Dees' property located at Lot 14, Block 7, Breezeswept Estates, Ramrod Key, Florida for a contract price of $27,000.00. On September 13, 1983, William Dees applied for and obtained building permit No. 10902-A as owner/builder for the construction of the Dees's home. Construction of the Dees home began on or about September 13, 1983. Gregory H. O'Berry, President of Classic had knowledge of, and approved of, Respondent entering into contracts for construction of homes in Monroe County, Florida, including the contract with Dees. O'Berry was aware that Respondent did not hold a certificate of competency in Monroe County, Florida and that Respondent's registered general contractor's license did not cover contracting in Monroe County, Florida. O'Berry understood that Phillip A. Braeunig, a properly licensed general contractor in Monroe County, Florida, was acting as the general contractor for Classic- in the construction of homes by Classic, including the construction of the Dees home. Braeunig did not act as general contractor on the construction of the Dees' home. Respondent supervised the contraction of the Dees' home, until Respondent abandoned the construction of the Dees' home, and in performing these supervisory duties fulfilled the responsibilities of a general contractor. No other officer or authorized agent of Classic had any responsibility for the supervision of, or acted in any manner as a general contractor, in the construction of the Dees' home. Braeunig prepared and submitted to Respondent an application to qualify Classic with Petitioner using Braeunig's license but this application was never filed with Petitioner during- anytime material to these proceedings. Classic was never qualified by anyone, including Respondent or Braeunig, at any time material to these proceedings. Braeunig~acted as general contractor for Classic on the Conti home, which was in the beginning stages of Classic and prior to the Dees' job. Braeunig was brought into Classic for the purpose of acting as general contractor because of the Respondent's invalid license.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Board enter a final order Dismissing Count I of the Amended Administrative Complaint filed against the Respondent. It is further RECOMMENDED that the Board enter a final order finding Respondent guilty of the violation charged in Count II of the Amended Administrative Complaint and for such violation it is RECOMMENDED that the Board suspend the Respondent's registered general contractor's license for a period of two (2) years and assess the Respondent with an administrative fine of $500.00, stay the suspension and place Respondent on probation for a period of two (2) years, provided the Respondent pays the $500.00 fine within ninety (90) days. Respondent's failure to pay the $500.00 fine within the time specified will result in his registered general contractor's license being suspended for a period of two (2) years with the requirement that when the fine is paid and the suspension lifted, the Respondent must appear before the Board for reinstatement of his license. Respectfully submitted and entered this 3rd of December, 1985, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1985. APPENDIX Department of Professional Regulation, Construction Industry Licensing Board v. Victor S. Davis, Division of Administrative Hearings Case No. 85-1963 Ruling on Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact No. 1 except for the statement that "Respondent's license was issued for Okaloosa County only" which is rejected as not being based upon competent substantial evidence. Hearsay alone is not sufficient to support a finding of fact. Adopted in Finding of Fact No. 1 except for statement that "said license has been delinquent since July, 1981" which is rejected as being contrary to the evidence in Petitioner's Exhibit No. 1 which shows delinquent status as of July 1, 1977. Adopted in Finding of Fact No. 3. Rejected as a conclusion of law rather than a proposed finding of fact. Considered as background information and not as a finding of faet. Adopted in Finding of Fact No. 4. Adopted in Finding of Fact No. 5. Adopted in Finding of Fact Nos. 4 and 5. Adopted in Finding of Fact Nos. 5 and 7. Adopted in Finding of Fact No. 5. Adopted in Finding of Fact No. 6. Adopted in Finding of Fact No. 6. Adopted in Finding of Fact No. 9. Adopted in Finding of Fact No. 9. Adopted in Finding of Fact No. 9. Adopted in Finding of Fact No. 9. Adopted in Finding of feet No. 10 Adopted in Finding of Fact No. 10 Rejected as a conclusion of law rather than a proposed finding of fact. Respondent did not submit Proposed Findings of Fact. COPIES FURNISHED: James Linnan, Executive Director Department of Professional Regulation Construction Industry Licensing Board P. O. Box 2 Jacksonville, FL 32202 Nancy M. Snurkowski, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Victor S. Davis 2169 North Hercules Avenue Clearwater, FL 33575 and 6290 Sandcrest Circle Orlando, FL 32819
Recommendation It is recommended that the Florida Construction Industry Licensing Board dismiss the Respondent from further responsibility to answer to the Administrative Complaint. DONE and ENTERED this 25th day of August, 1976, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry S. Sinoff, Esquire 1010 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 John W. Tanner, Esquire Suite One. 434 N. Halifax Avenue Daytona Beach, Florida 32018
The Issue Whether the certified general contractor's license of W. Bert Jones should be revoked.
Findings Of Fact By an Administrative Complaint filed October 27, 1976, the Florida Construction Industry Licensing Board sought to revoke the general contractor's license of W. Bert Jones alleging that the Respondent contractor entered into a contract with Mrs. Barbara Loewe to renovate her home and to add a room onto the back of the house; that the Respondent contractor was paid in full the contract price but the job was not completed and there were numerous building code violations. Respondent requested an administrative hearing. Pursuant to written agreements entered into between the Respondent and Mrs. Barbara Loewe of Tampa, Florida, Respondent agreed to renovate Mrs. Loewe's home and to add a room onto the back of the house. Mrs. Loewe, either by paying the Respondent directly or paying material suppliers, paid the full contract price. In June or July of 1975 the Respondent left the job contracted for partially or wholly incompleted as follows: the ceiling of the kitchen and drywall were in complete and the kitchen was not painted; the guest bathroom was not trimmed; two back rooms were incomplete. Inasmuch as the ceiling was left undone, it was not trimmed, the drywall was incomplete, the doorways were left uninstalled, and the paneling was incomplete; the bathroom had no toilet, no sink and no trim on the tub; in the master bedroom the ceiling was left sagging, there was no insulation in ceiling or walls, the door was untrimmed, siding was left partially undone and the windows weren't trimmed; holes were left unrepaired around the pipes in the home. The sum of Five Thousand Dollars ($5,000) was paid by St. Paul Fire and Marine Insurance Company in full settlement of the claims arising under the general contractor's bond. Additional money, approximately Thirty-Five Hundred Dollars ($3,500), was spent by Mrs. Loewe in addition to the Five Thousand Dollars ($5,000.00) received from the bonding company in order to complete the jobs contracted for. Although there were minimum changes In the job as originally contracted for, work is still going on to complete the original work contracted for by the Respondent. The building inspector for the City of Tampa Building Bureau, Tom Burgoyme, inspected the job site on several occasions during the progress on the work contracted for between Mrs. Loewe and the Respondent. He found building code violations and submitted a list of corrections to the Respondent, Mr. Jones, which were not remedied. A number of problems arose during the construction work, some of which was not the fault of the Respondent. Another contractor was involved in the work on the project. Funds in excess of the purchase price were paid to the Respondent and funds in excess of Eighty-Five Hundred Dollars ($8,500) were needed or will be needed to complete the project.
Recommendation Revoke the general contractor's license of Respondent, Number C GC007323. DONE and ORDERED this 7th day of April, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211 Barry Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 W. Bert Jones 2300 Greenlawn Street Brandon, Florida 33511
The Issue Whether Respondent aided and abetted an unlicensed contractor to engage in contracting by pulling permits for the unlicensed contractor; whether Respondent failed to qualify a firm for whom he was acting as licensed contractor; whether Respondent acted in the capacity of a contractor other than in his own name; and, whether Respondent violated local building codes as alleged in Second Amended Administrative Complaint filed 6-30-89, and Administrative Complaint filed 7-26-89.
Findings Of Fact At all times relevant hereto, Fred S. Petersen was licensed as a general contractor by the Florida Construction Industry Licensing Board (FCILB) and issued License Nos. CG C023928 and CB CA23929 (Exhibit 1). Neither American Weatherall Industries Inc. (AWI), Mel C. Wyatt, nor Steven C. Wyatt were licensed as contractors by the FCILB (Exhibit 2). Prior to mid-August 1987, Kirk Evenstad was the qualifying general contractor for AWI. By letter dated August 20, 1987, AWI proclaimed Kirk Evenstad to be no longer working for AWI because of mismanagement (Exhibit 3). Mel Wyatt, President of AWI, testified that Everstad had stolen between $30,000 and $50,000 of materials from AWI, leaving AWI in a precarious financial situation. In order to continue in business to work out of the financial hole created by Everstad, AWI, through one of its employees, Danny O'Brien, introduced Mel Wyatt to Respondent. Respondent had known O'Brien for some 20 years and, for the proposed reason of helping O'Brien, Respondent agreed to act as qualifying contractor for AWI. To carry out this project, Respondent entered into a contract (Exhibit 4) or Employment Agreement dated July 31, 1987, in which Respondent agreed to supervise construction of projects contracted for by AWI, but the latter was to provide all material and handle all financial aspects of the contracts. Respondent received $1000 for signing this agreement and was to receive a percentage of the gross proceeds of future contracts entered into by AWI. Respondent authorized O'Brien to pull permits for AWI pursuant to Respondent's contractor's license. Although Respondent testified he gave O'Brien authorization for each specific permit pulled and did not believe he signed Exhibit 11, dated August 11, 1987, a copy of General Authorization for O'Brien to pull permits for AWI under Respondent's license, it is found as a fact that Respondent signed the original of Exhibit 11 which is a copy. Within a short period of time after executing Exhibit 4, Respondent became aware of the financial difficulties facing AWI and ceased his efforts to qualify AWI. In the latter part of 1987 (believed to be November-December), AWI reached the point that it could no longer remain solvent and filed for bankruptcy leaving several contracts unfinished for which AWI had received partial payment. Of the four contracts entered into between AWI and homeowners for additions to their houses (Exhibits 7-9 and 14), all were entered into under a printed document showing Everstad's license number; however, the building permits for Exhibits 7-9 were pulled under Respondent's license. By agreement dated August 10, 1987 (Exhibit 7), Alfred and Marjory Hauk contracted with AWI to convert a garage at their home into an office. Hauk made payments of $1000 and $2300 to AWI, the permit for the work was pulled by O'Brien under Respondent's license, but no work was ever done under this contract. AMI subsequently went out of business, and Hauk received no refund of the monies he had paid to AMI. Hauk never met Respondent. On June 12, 1987, John Davis contracted with AWI to convert an existing garage to bedroom and bath and add a garage to his home. The initial permit for this work was pulled by Kenn Covicc as contractor on June 21, 1987, and a subsequent permit was pulled by O'Brien using Respondent's license. Although Davis paid over $6000 to AWI for this work, the work stopped after the footing for the garage addition was poured. On June 2, 1987, Albert Charette entered into a contract with AWI to add a room to his house. Charette paid some $9300 of the $34,400 contract amount during the progress of the work. Differences arose between Charette and AWI involving whether the construction was being done in accordance with the plans and specifications. In September, 1987, Respondent met with Charette and submitted a proposal (Exhibit 15) to Charette to complete the project in accordance with the plans and specifications. About one week after Exhibit 15 was signed, all work stopped on the project, and Respondent never received compensation or commenced work on this contract, which he had entered into in his own name and not as a representative of AWI.
Recommendation It is recommended that Fred S. Petersen be found guilty of violating Sections 489.129(1)(e), (f) and (g), Florida Statutes, and assessed a monetary fine of $3000. ENTERED this 11th day of June, 1990, in Tallahassee, Florida. K. N. AYERS 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 11th day of June, 1990. APPENDIX Proposed findings submitted by Petitioner are accepted, except: Finding #7, penultimate sentence which is rejected as uncorroborated hearsay. Finding #11, that portion stating the purpose of Petersen's visit to Charette was to change the licensure on the permit to Petersen is rejected. See HO #13. Proposed findings submitted by Respondent are accepted, except: Finding #4, Accepted, except with regard to Respondent's notification of termination of his association with AWI. No documentation of this act was submitted and, even though Respondent may have ultimately revoked O'Brien's authority to pull permits, this was done well after the permits were pulled. COPIES FURNISHED: Robert B. Jurand, Esquire G. W. Harrell, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Brian A. Burden, Esquire Post Office Box 2893 Tampa, FL 33601 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 Kenneth E. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
The Issue At issue is whether Respondent committed the offenses set forth in the Administrative Complaints and, if so, what penalty should be imposed.
Findings Of Fact The parties Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Department), is a state agency charged with the duty and responsibility for regulating the practice of contracting pursuant to Section 20.165, Florida Statues, and Chapters 455 and 489, Florida Statutes. Respondent, Richard M. Golfman, was, at all times material hereto, licensed by the Department as a certified general contractor, having been issued license number CG C032860, and authorized to engage in the practice of general contracting as an individual.1 The Feinstein project (DOAH Case No. 00-0599) On or about October 30, 1998, Respondent entered into a written contract with Norman and Sheila Feinstein to furnish the materials and perform the labor necessary to enclose and remodel the screened patio, and to build a rock garden, at their home located at 5468 Northwest 20th Avenue, Boca Raton, Florida, for the sum of $5,000. At the time, the Feinsteins paid Respondent $1,500 as the initial payment (deposit) under the terms of the contract. The contract Respondent presented and the Feinsteins executed on October 30, 1998, did not include Respondent's license number, nor did it contain a statement concerning consumers' rights under the Construction Industries Recovery Fund. Following execution of the contract, Respondent made repeated promises to construct the rock garden; however, it was not until November 10, 1998, that Respondent appeared on-site and constructed the rock garden, albeit not to the Feinsteins' satisfaction. Subsequently, Respondent had some high-hat electrical fixture cans and a bundle of furring strips delivered to the home for the patio project but, thereafter, despite repeated requests, refused to perform any work on the project or refund any money to the Feinsteins. The value of the labor and materials Respondent invested in the rock garden, as well as the cost of the building materials (the high-hat fixtures and furring strips) delivered to the job-site, was $250, a sum considerably less than the $1,500 the Feinsteins had entrusted to Respondent under the terms of their agreement. The Burres/Berger project (DOAH Case No. 00-0600) On or about November 23, 1998, Respondent submitted a written proposal to Tanya Burres to furnish the materials and perform the labor necessary to replace the existing roof on her home located at 7270 Montrico Drive, Boca Raton, Florida, for the sum of $22,125. The proposal was a one-page preprinted form. In the upper left there appeared, printed immediately following Respondent's handwritten name, the following: THE GOLFMAN GROUP, INC. P.O. Box 811926 Boca Raton, Florida 33431 The proposal did not include Respondent's license number, nor did it contain a statement concerning consumers' rights under the Construction Industries Recovery Fund. At the time the proposal was submitted, Tanya Burres was under contract to sell the home to Drs. Glenn Berger and Michelle Fiorillo, husband and wife (the Bergers), and Ms. Burres had agreed to split with the Bergers the cost of a new roof for the home. At the time, Ms. Burres had suggested the Respondent as a contractor to perform the work (because he had previously done satisfactory work for Ms. Burres); however, it was understood that the employment of any contractor was subject to the Bergers' approval. That the Bergers' agreement was required before any such employment would be accepted was clearly conveyed to Respondent. On November 23, 1998, Tanya Burres signed the proposal and gave Respondent a check payable to his order in the sum of $1,106.25, representing her half of the ten percent deposit called for by the proposal. The Bergers, however, declined to accept the proposal, and refused Respondent's request for the balance of the deposit. Rather, the Bergers, having received adverse information from the Department regarding Respondent's record, preferred to employ a different contractor, and Ms. Burres accorded the Bergers a monetary credit at closing (on the purchase of the home) for one-half the cost to re-roof the home. When the Bergers informed Ms. Burres (shortly after she signed the proposal on November 23, 1998) that they would not agree to use Respondent, Ms. Burres attempted to stop payment on her check; however, the check had already been cashed. Thereafter, Ms. Burres attempted on numerous occasions to contact Respondent by telephone and by his pager, but Respondent failed to return any of her calls or messages. To date, Respondent has failed to account for or return Ms. Burres' deposit of $1,106.25. The costs of investigation and prosecution As of February 25, 2000, the Department's costs of investigation and prosecution, excluding costs associated with any attorney's time, totaled $234.85 for DOAH Case No. 00-0599 (the Feinstein project) and $195.65 for DOAH Case No. 00-0600 (the Burres/Berger project.) Previous disciplinary action At hearing, the Department offered proof that, on two prior occasions, Respondent had been subjected to disciplinary action by the Construction Industry Licensing Board (the Board). (Petitioner's Exhibit 2.) The first occasion is reflected in the terms of a Final Order of the Board, dated August 4, 1987, which found Respondent guilty of the violations alleged in the Administrative Complaint (which were not revealed at hearing beyond what may be inferred from the terms of the Final Order), and resolved that Respondent suffer the following penalty: Respondent's licensure is hereby suspended for ten (10) years. Provided, Respondent may obtain termination of said suspension at anytime, without further action by the Board, upon providing the Board's Executive Director with a certified bank check in an amount sufficient to cover and pay a fine of five hundred dollars ($500), and the bad check alleged in the Administrative Complaint, and all service charges in connection therewith, and all other fees accruing as of the date Respondent seeks said termination of supervision. The second occasion Respondent was subjected to disciplinary action is reflected in the terms of a Final Order of the Board, dated July 18, 1997, which approved a stipulated settlement of certain complaints then pending before the Board. That Final Order approved the dismissal of a number of counts contained in five Administrative Complaints then pending before the Board and, as to the remaining counts, agreed (without Respondent admitting or denying the allegations of fact contained in the Administrative Complaints) to the following penalty: 3. FINE AND COSTS: Respondent shall pay a fine of Nine Hundred dollars ($900.00) and costs of Eight Hundred fifty One dollars ($851) to the Board within thirty (30) days of the filing of the Final Order. Said payment shall be in the form of a cashier's or certified check and shall be made payable to the "Construction Industry Licensing Board." To assure payment of the fine and costs, it is further ordered that all of Respondent's licensure to practice contracting shall be suspended with the imposition of the suspension being stayed for thirty (30) days. If the ordered fine and costs are paid in compliance with the terms set forth above, the suspension imposed shall not take effect. However, should payment not be timely made, the stay shall be lifted and Respondent's license shall be immediately suspended. Upon payment of the fine and costs in full, the suspension imposed shall be lifted. Respondent apparently satisfied the fines and costs imposed by the foregoing orders. (Petitioner's Exhibit 2.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered adopting the foregoing findings of fact and conclusions of law, and which, as a penalty for the violations found, imposes an administrative fine in the total sum of $13,500.00, revokes Respondent's licensure, orders that Respondent pay restitution to Norman and Sheila Feinstein in the sum of $1,250.00 and to Tanya Burres in the sum of $1,106.25, and assesses costs of investigation and prosecution (through February 25, 2000) in the total sum of $430.50 against Respondent. DONE AND ENTERED this 22nd day of June, 2000, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 22nd day of June, 2000.
The Issue Whether disciplinary action should be taken against Respondent, Michael Hill's, contracting license based on the violations as charged in the Administrative Complaint in this proceeding.
Findings Of Fact Based on the evidence and testimony of the witnesses presented and the entire record in this proceeding, the following Findings of Fact are made: Respondent is a certified contractor, having been issued License No. CR C057409 by the Florida Construction Industry Licensing Board. Respondent's license as a certified residential contractor is currently active. Respondent was not certified with the Construction Industry Licensing Board as doing business as "Michael Hill Homes, Inc." On or about April 11, 2005, Kenneth and Aldith Farquharson ("Farquharson") entered into a written contractual agreement with Respondent, d/b/a Michael Hill Homes, Inc., for the construction of a single-family residence at Lot 17, Hattaras Terrace, Palm Bay, Florida. The original contract price of the contract between Respondent and Farquharson was $240,900.00. The original contract price was subsequently increased, via change orders executed by Respondent and Farquharson, by $4,500.00, for a total contract price of $245,400.00, adding the value of the change order for the fill dirt needed for the lot. On June 19, 2005, Farquharson paid a total of $28,590.00 to Respondent. The scope of work under contract required appropriate permits from the City of Palm Bay Building Department before work could commence. Respondent failed to apply for the permits necessary to commence work under the contract. Respondent delivered some sand to the lot on or before October 2005. After delivering the sand, Respondent failed to continue any more of the contracted work. From November 2005 to December 2006, Respondent performed no work on the project under contract. From October 2005 to February 2006, Farquharson made multiple attempts to contact Respondent regarding the lack of work under the contract. Farquharson did not prevent Respondent from commencing and completing the work under contract or agree to delay the project for any reason. Farquharson did not terminate the contract with Respondent. Respondent did not refund any money to Farquharson. The amount of actual damages that Respondent caused Farquharson is calculated as follows: Amount paid: $28,590.00 Amount of work performed by Respondent (dirt fill): _ 4,500.00 $24,090.00 The Petitioner's total investigative cost for the case is $439.79.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered as follows: Finding Respondent guilty of having committed one violation of Subsection 489.129(1)(i), Florida Statutes, as alleged in Count I of the Administrative Complaint, for violating Subsection 489.119(2), Florida Statutes, and imposing as a penalty an administrative fine in the amount of $500.00; Finding Respondent guilty of having committed one violation of Subsection 489.129(1)(i), Florida Statutes, as alleged in Count II of the Administrative Complaint, for violating Subsection 489.126(2)(a), Florida Statutes, and imposing as a penalty an administrative fine in the amount of $1,000.00; Finding Respondent guilty of having committed one violation of Subsection 489.129(1)(g), Florida Statutes, as alleged in Count III of the Administrative Complaint, and imposing as a penalty an administrative fine in the amount of $2,500.00; Finding Respondent guilty of having committed one violation of Subsection 489.129(1)(j), Florida Statutes, as alleged in Count IV of the Administrative Complaint, and imposing as a penalty an administrative fine of $5,000.00; Finding Respondent guilty of having committed one violation of Subsection 489.129(1)(o), Florida Statutes, as alleged in Count V of the Administrative Complaint, and imposing as a penalty an administrative fine in the amount of $1,000.00; Finding Respondent guilty of having committed one violation of Section 489.129(1)(m), Florida Statutes, as alleged in Count VI of the Administrative Complaint, and imposing as a penalty an administrative fine in the amount of $2,500.00; Respondent be ordered to pay financial restitution in the amount of $24,090.00 to Kenneth and Aldith Farquharson; Assessing cumulative cost of investigation and prosecution in the total amount of $439.79, which excludes costs associated with any attorney's fees; and Permanently revoking Respondent's license as a result of the numerous violations and the financial harm sustained by Kenneth and Aldith Farquharson. DONE AND ENTERED this 12th day of October, 2007, 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 12th day of October, 2007.
Findings Of Fact Robert C. Channell is a registered pool contractor holding License No. RP0024653 issued by the Florida Construction Industry Licensing Board. A copy of the Circuit Court of the Thirteenth Judicial Circuit finding that Robert C. Channell had violated Section 501.204, Florida Statutes, and the rules and regulations adopted pursuant to Chapter 501, Florida Statutes, was introduced to prove that he had violated Section 468.112(2)(a), Florida Statutes. An order of contempt was also introduced to show that Robert C. Channell had violated the Court's original injunctive order. Robert Berndt contracted with Robert C. Channell for the construction of a pool at his residence. Subsequently, employees of Robert C. Channell cleared trees from the back of Berndt's residence and construction of a pool was begun by excavation of a hole in Berndt's backyard. Eli Jackson indicated that he had contracted with Robert C. Channell to build a pool at Tyrone Mobile Home Park which Jackson owned. Robert Channell did not apply nor obtain a building permit for the construction of pools at the residence of Robert Berndt or at the Tyrone Mobile Home Park. Robert Thomas indicated that he had inspected the pool constructed at Tyrone Mobile Home Park and determined that no permit had been obtained for construction of said pool, and further that the pool was constructed to residential standards. From the location of the pool it was clearly for the use of residents of Tyrone Mobile Home Park. There were eighty (80) or more families residing in Tyrone Mobile Home Park. On September 30, 1976, Robert C. Channell's license as a pool contractor in Hillsborough County had expired and was not renewed by the county. Subsequently, Channell contracted to build a pool for Randall Harris, who obtained the permit to construct a pool as owner of the property. Although Harris did some work on the pool, Channell was paid $7,200 to remove trees, work on the pool and construct a fence. Electrical work was done by an electrical contractor. Berndt complained that Channell was slow in starting his pool and did not receive many extras for which he had contracted with Channell. The delay in construction was the apparent result of Channell's attempts to finish projects underway in compliance with the requests of Mr. Shaw, the Building and Zone Director of Hillsborough County. Eli Jackson, the owner of Tyrone Mobile Home Park, and Randall Harris were both pleased with the pools Channell constructed for then.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Florida Construction Industry Licensing Board revoke the license of Robert C. Channell until he has reestablished himself as a licensed pool contractor in Hillsborough County, Florida. DONE and ORDERED this 5th day of July, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Bearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: David Linn, Esquire Post Office Box L386 Tallahassee, Florida 32302 Mr. Robert C. Channell 309 Jennal Place Tampa, Florida 33612 Mr. J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211
