The Issue This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of alleged violations of Chapter 489, Florida Statutes, (1992 Supp.). Specifically, the Respondent has been charged in a four-count Administrative Complaint with violations of paragraphs (k), (m), (n) and (p) of Section 489.129(1), Florida Statutes (1992 Supp.).
Findings Of Fact Respondent is, and has been at all times material hereto, a licensed Certified General Contractor, having been issued license number CG C007303, by the State of Florida. At all times material hereto, the Respondent was licensed to contract as an individual. On September 18, 1992, the Respondent, doing business as an individual, contracted with Charles and Elba Williams (hereinafter referred to as "Customers") to reroof their dwelling and shed at 15205 SW 78 Place, Miami, Florida, for the price of Fifteen Thousand, One Hundred Seventeen dollars ($15,117.00). On October 1, 1992, the aforementioned contract was amended to provide for the payment of half of the second draw before the second stage of the project was completed, and to provide for the payment of an additional Three Hundred and Fifty One dollars ($351.00) in materials. On November 5, 1992, the aforementioned contract was amended to provide the Customers with a credit on the contract of One Thousand, Six Hundred Thirty Six dollars and Sixty Four cents ($1,636.64) for their purchase of roof shingles. The revised contract price was Sixteen Thousand and Fifty Eight dollars ($16,058.00). The Customers paid the Respondent Twelve Thousand, Two Hundred Seventy Seven dollars and Ninety cents ($12,277.90) toward the contract. After receiving a credit on the balance due on the contract, the Customers owed Two Thousand, One Hundred Forty Two dollars and Thirty Two cents ($2,142.32) to the Respondent. On September 23, 1992, the Respondent obtained roofing permit number 92-110050 for the Customers' project from the Dade County Building and Zoning Department. The Respondent worked on the Customers' roof from September 23, 1992, through November 15, 1992, when the installation of the shingles was completed. On November 19, 1992, the Respondent failed a final inspection performed on the Customers' roof by the Dade County Building and Zoning Department because the Respondent failed to supply Dade County with product approval information and manufacturer installation specifications for the ridge vent he had installed. On November 24, 1992, the Respondent again failed a final inspection performed on the Customers' roof by the Dade County Building and Zoning Department for the same reason as on November 19, 1992. The Respondent never obtained a passing final inspection on the Customers' roof from the Dade County Building and Zoning Department. On November 24, 1992, the Customers sent the Respondent a Certified letter, Return Receipt requested, informing the Respondent that the roof could not pass final inspection until Dade County was provided with the product approval information and manufacturer installation specifications for the ridge vent he had installed. On December 4, 1992, the Respondent was issued a Notice of Violation from the Dade County Building and Zoning Department for failure to provide product approval information and manufacturer installation specifications for the ridge vent that had been installed on the Customers' roof. On December 4, 1992, the Respondent was issued a Notice of Violation from the Dade County Building and Zoning Department for failure to remove construction debris from the Customers' property. The Respondent did not comply with either Dade County Notice of Violation and did not supply the Dade County Building and Zoning Department with the product approval information and manufacturer installation specifications for the ridge vent that had been installed on the Customers' roof. The Customers were left with a roof that did not comply with Dade County Code. On March 26, 1993, the Customers paid a Forty Five dollar ($45.00) renewal fee to the Dade County Building and Zoning Department and had the roofing permit renewed and reissued in their own names. On March 4, 1993, the Customers paid another contractor, Mark Mitchell, Two Hundred dollars ($200.00) to remove the ridge vent and close the hole in the roof left by the removal of the ridge vent. On March 27, 1993, after the ridge vent had been removed, the Customers paid a Special Investigator, Ken Nash, Fifty dollars ($50.00) to perform a final inspection of the roof. On March 31, 1993, Ken Nash performed a final inspection of the roof and the roof passed inspection. The Customers paid Steve Wooten Thirty dollars ($30.00) to remove construction debris left on their property by the Respondent and to bring their property in compliance with the Notice of Violation issued on December 4, 1992.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Construction Industry Licensing Board issue a Final Order in this case to the following effect: Dismissing the charges alleged in Counts I, II, and IV of the Administrative Complaint; Concluding that the Respondent is guilty of the violation charged in Count III of the Administrative Complaint; and Imposing a penalty consisting of a fine in the amount of Two Hundred Fifty dollars ($250.00) for the violation charged in Count III of the Administrative Complaint. DONE AND ENTERED this 3rd day of May, 1995 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 3rd day of May, 1995. COPIES FURNISHED: Diane Snell Perera, Esquire Department of Business and Professional Regulation 7300 North Kendall Drive, Suite 780 Miami, Florida 33156 Mr. Al C. Hufeld Post Office Box 681064 Orlando, Florida 32868-1064 Richard Hickok, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are made: At all times material to this proceeding, Respondent Joseph W. Miklavic was licensed as a certified building contractor in the state of Florida, holding license number CB C006615, qualifying Security Home d/b/a Security Homes of Clearwater (Security). Since March, 1989 the Respondent's license has been on active status qualifying, Individual. At all times material to this proceeding, Respondent was a salaried employee of Security. Ronald MacLaren was president of Security and also sole owner and president of Yankee Construction Inc. d/b/a Olympic Homes of Citrus County (Olympic). In accordance with a management agreement between Security and Olympic, the Respondent was assigned by Ronald MacLaren to oversee the operation of Olympic. Olympic was licensed to engage in construction having been qualified by Wilmon Ray Stevenson through license number RB A035005 which was in effect from June, 1987 until October, 1988 when Stevenson filed a change of status application with the Construction Industry Licensing Board (Board) requesting license number RB A035005 be changed to inactive status qualifying, Individual. While this application was not acted upon until February, 1989, the Board considered license number RB A035005 in effect as qualifying Olympic only until October, 1988. Effective September 26, 1988, the name of Yankee Construction, Inc. was changed to Rivercoast Homes, Inc. (Rivercoast) which apparently ceased doing business under the fictitious name of Olympic Homes of Citrus County. On September 19, 1988 Wilmon Ray Stevenson advised the Citrus County Building Department that he was no longer the "qualifier for Olympic Homes". Around this same time, the Respondent, Ronald MacLaren and the management of Olympic became aware that Stevenson would no longer be the qualifying agent for Olympic. There was no evidence that Rivercoast Homes, Inc. a/k/a Yankee Construction Inc. ever advised the Board of the name change or the termination of Stevenson as its only qualifying agent affiliation in accordance with Section 489.119(2)(3), Florida Statutes. Nor was there any evidence that Rivercoast was ever qualified by another qualifying agent pursuant to Section 489.119, Florida Statutes. In accordance with the agreement between Security and Olympic, referred to in Finding of Fact 4, the Respondent continued to oversee the Rivercoast operations until sometime around December 1988 when all of MacLaren's operations in Florida, including Security, closed down. Under Security's agreement with both Olympic and Rivercoast, Respondent's duties included working with management and subcontractors to develop construction schedules and to advise Ron MacLaren of the financial aspect of the company so that MacLaren could make funds available to pay subcontractors, etc. Respondent did not have any control over the finances of either Olympic or Rivercoast such as receiving, depositing or disbursing funds. Either in late September or early October of 1988, Respondent approached Larry Vitt, Citrus County Building Department, as to whether the Respondent could pull permits under his license for Olympic or Rivercoast. Vitt advised Respondent that unless he qualified the company he could not pull permits for that company under his license. Respondent advised MacLaren that Rivercoast would have to have a qualifying contractor in order to engage in contracting. MacLaren did not get Rivercoast qualified to engage in contracting at anytime. Respondent did not qualify Rivercoast under his contractor's license at anytime. Sometime around the last of September or the first part of October of 1988, Respondent became aware that Rivercoast a/k/a Yankee Construction, Inc. was no longer qualified under Section 489.119, Florida Statutes, and therefore, not authorized under law to engage in contracting. On August 16, 1988 Ernest and Marjorie Ellison met with Ken Smith and Gloria Stevenson of Olympic to discuss Olympic building the Ellisons a home. The Ellisons picked out a floor plan at this time and gave Olympic a $100.00 deposit to hold the price until a contract could be executed. On October 1, 1988 the Ellisons met again with Ken Smith and was introduced to the Respondent who gave them a brief run down on the status of the company and advised them that the company was in "good shape". At this meeting, Ken Smith advised the Ellisons of certain things that were required of them before construction began, including a survey. On October 31, 1988 the Ellisons signed a contract with Rivercoast to construct their home. In his capacity as a representative of Security, under the agreement between Security and Rivercoast, the Respondent signed this contract on the line designated Contractor/Representative. There is insufficient evidence to show that Respondent intended to sign the contract as contractor of record as the term contractor is defined in Section 489.105(3), Florida Statutes (Supp. 1988), and thereby impose upon himself the responsibility for the entire project. The contract price was $44,634.00. On November 1, 1977 the Ellisons delivered to Rivercoast a check for $4,363.40 which along with the $100.00 deposit paid in August represented a total down payment of $4,463.40. Respondent did not personally receive any funds from the Ellisons for Rivercoast or receive any funds for himself from the Ellisons under this contract. No permit was ever pulled or any work performed by Rivercoast under the aforementioned contract. Ernest Ellison met with Respondent on November 21, 1988 and requested that the contract be cancelled. Under the authority granted Respondent through the agreement between Security and Rivercoast, the Respondent and Ernest Ellison signed the contract as being cancelled on November 21, 1988. Although the Ellisons were offered an opportunity by the Respondent to transfer their deposit of $4,463.40 to Security and enter into a contract with Security to build their house, they declined and contracted with another contractor. On the date the contract was cancelled, Respondent advised Ernest Ellison that the down payment of $4,463.40 would be reimbursed. Although Respondent attempted to obtain a refund for the Ellisons from MacLaren and was advised by MacLaren that a refund was forthcoming, no refund of the Ellison's down payment was ever made by Rivercoast, Ronald MacLaren, the Respondent or anyone else. Respondent was aware during the negotiation and at the time the Ellison's contract was executed, that Rivercoast was not authorized by law to engage in contracting. However, there is insufficient evidence to show that Respondent ever advised the Ellisons that he would be the contractor responsible for building their home under the contract with Rivercoast or that he would be the contractor to pull the necessary permits for construction of their home. There is no evidence that Respondent had any financial interest or owned any stock or held any office in Rivercoast a/k/a Yankee Construction, Inc. Around October 1, 1988, after Stevenson had withdrawn as qualifying agent for Olympic, Rivercoast was no longer authorized to engage in the practice of contracting since it had not been qualified by another qualifying agent in accordance with Section 489.119, Florida Statutes.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the demeanor of the witnesses and the disciplinary guidelines set out in Chapter 21E- 17, Florida Administrative Code, it is RECOMMENDED: That the Board enter a final order finding Respondent guilty of violating Section 489.129(1)(e), Florida Statutes, and for such violation it is recommended that the Board assess the Respondent with an administrative fine of $1,000.00. It is further recommended that Counts I, II, IV and V be dismissed DONE and ORDERED this 27th day of November, 1990, in Tallahassee, Florida. WILLIAM R. CAVE 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 November, 1990. APPENDIX CASE NO. 90-2046 The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Rulings of Proposed Findings of Fact Submitted by the Petitioner Not necessary. Adopted in Finding of Fact 1. Adopted in Finding of Fact 7 but modified. Adopted in Findings of Fact 4, 8, and 10. Adopted in Findings of Fact 9 and 14 but modified. Adopted in Finding of Fact 15. Adopted in Findings of Fact 16 and 17 but modified. Adopted in Findings of Fact 17 and 18. Rulings of Proposed Findings of Fact Submitted by Respondent 1. - 2. Not material or relevant. Adopted in Findings of Fact 1, 7 and 20. Adopted in Finding of Fact 4. Adopted in Findings of Fact 4 and 8. Not material or relevant. Adopted in Finding of Fact 19. - 10. Adopted in Finding of Fact 15. Restatement of testimony not a Finding of Fact but see Finding of Fact 13. Adopted in Finding of Fact 15. Not material or relevant. Adopted in Finding of Fact 15. - 16. Not material or relevant. Restatement of testimony not a Finding of Fact but see Findings of Fact 13, 14 and 15. Adopted in Finding of Fact 19 but modified. Not material or relevant. Adopted in Finding of Fact 4. Restatement of testimony not a Finding of Fact but see Finding of Fact 4. Adopted in Finding of Fact 9. Adopted in Finding of Fact 4 but modified to show license effective until October, 1988 rather than February, 1989. Restatement of testimony not a Finding of Fact but see Findings of Fact 1, 7 and 20. - 26. Not material or relevant. Adopted in Finding of Fact 4 but modified to show from June, 1987 until October, 1988. - 29. Adopted in Findings of Fact 5 and 13. Restatement of testimony not a Finding of Fact but see Finding of Fact 4. - 32. Adopted in Findings of Fact 4, 8 and 9 but modified. Not material or relevant. - 36. Adopted in Findings of Fact 4, 8, and 9 but modified. Adopted in Finding of Fact 10. Not material or relevant. - 40. Adopted in Findings of Fact 8, and 17, respectively. Rejected as there is no substantial competent evidence in the record to show any other contract than the one Respondent signed on October 31, 1988. Not material or relevant. Not supported by substantial competent evidence in the record. Not material or relevant. Adopted in Finding of Fact 18. Restatement of testimony not a Finding of Fact but see Finding of Fact 9. - 50. Not necessary to the conclusion reached since this matter was covered in the Preliminary Statement wherein the motion was denied. COPIES FURNISHED: G. W. Harrell, Senior Attorney Department of Professional Regulation 1940 N. Monroe Street, Suite 60 Tallahassee, FL 32399-0750 Geoffrey Vining, P.A. 2212 South Florida Avenue Suite 300 Lakeland, FL 33803 Daniel O'Brien, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 Kenneth D. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact Leroy Alvin Colts was qualifier for Berkley Home Service, which held License #RC0029635. Colts held such license from 1977 - 81. In December 28, 1978, Leroy Alvin Colts' local certificate of competency was revoked by the Pinellas County authorities. This action was reviewed by the Florida Construction Industry Licensing Board prior to these charges being filed. On January 4, 1979, Leroy Alvin Colts was adjudged guilty of violating Section 812.021 (Grand Theft) and Section 812.014 (Grand Larceny) and sentenced to 45 years in the State Penitentiary. These offenses arose directly from Colts' activities as a licensed contractor. The court's judgment was affirmed by the appellate court. Notice of this proceeding was provided Colts in the manner prescribed by law, and inquiry of Counsel for the Petitioner Board and representatives of the St. Petersburg Police Department showed that Colts was free on bond and available to attend the hearing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommended that the Florida Construction Industry Licensing Board revoke Leroy Alvin Colts' license. DONE and ORDERED this 21st day of September, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Michael E. Egan, Esquire 247 South Adams Street Post Office Box 1386 Tallahassee, Florida 32302 Joseph F. McDermott, Esquire 544 First Avenue, North St. Petersburg, Florida 33701 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner,
Findings Of Fact Petitioner is the state agency charged, in conjunction with the Construction Industry Licensing Board, with the responsibility for prosecuting Administrative Complaints pursuant to chapters 455 and 489, and the rules promulgated thereunder. In September, 1983, license number CR C012950 was issued to Respondent, David A. Taylor, as the qualifying agent for Energywise Homes, Inc., 3305 S.W. 1st Court, Deerfield Beach, FL 33441. License number CR C01295p remained in effect until June 30, 1987. License number CR C012950 was delinquent and invalid from July, 1987, through May 10, 1988. In July, 1987, license number CR C012950 was placed on a delinquent status for non-renewal and considered invalid. On April 19, 1988, Respondent applied for renewal and reinstatement of license number CR C012950. Respondent's application for renewal and reinstatement was approved May 11, 1989. At that time, license number CR C012950 was changed from a qualifying business to an individual license. In April, 1988, Respondent applied to the City of Sebastian, Florida Construction Board (the "City") for an occupational license in order to obtain building permits for jobs he had contracted in that jurisdiction. License number CR C012950 was delinquent and invalid at the time Respondent applied to the City for an occupational license and permits. Respondent presented an altered license to Ms. Kathryn Nappi, the person responsible for issuing occupational licenses for the City in April, 1988, for the purpose of obtaining building permits from the City. The typeface on the license presented by Respondent to Ms. Nappi does not match either that used on the bottom portion of the same license or the copy of the licenses admitted as Respondent's Exhibit 1. Further, the date used on the altered license is not a date normally used by the Construction Industry Licensing Board. Finally, the license presented by Respondent to Ms. Nappi indicated the license was held by Respondent individually rather than as qualifying agent for Energywise Homes, Inc. The testimony of the witnesses for Petitioner was consistent and credible. The procedures followed by Ms. Nappi and her supervisor, Mr. Bruce Cooper, Director of Community Development and Building Official for the City of Sebastian, were customary procedures followed in the ordinary course of their business. Neither witness had any discernible motive for fabricating the events to which they testified. Respondent presented the altered license to Ms. Nappi sometime in April, 1988, for the purpose of obtaining building permits for the five homes to be constructed in the City. Ms. Nappi noticed that the type on the top of the license submitted by Respondent did not match the bottom portion. She brought the discrepancy to the attention of Mr. Cooper. Mr. Cooper confirmed with the Department of Professional Regulation that the license submitted to Ms. Nappi by Respondent had been altered. Mr. Cooper set up a meeting between himself, Respondent, and two detectives to ascertain Respondent's position concerning the altered license. Mr. Cooper did not believe Respondent's position and placed the matter on the agenda for the May 3, 1988, meeting of the Sebastian Construction Board (the "Board") 3/ Respondent and the owner of the five homes for which permits were being sought appeared at the May 3, 1988, meeting of the Board. The Board voted to approve the building permits subject to the issuance of a valid license by the Department of Professional Regulation. The owner requested issuance of the permits because delay was causing his investment to dwindle. The Board also considered the fact that the properties were becoming an eyesore in the City. The Board voted to approve the permits, subject to Respondent obtaining a valid license, and leave the issue of the altered license to the Department of Professional Regulation. Respondent's testimony that he did not present an altered license for the purpose of obtaining building permits from the City, and that he had never previously seen the altered license, is rejected as not credible. Such testimony is inconsistent with statements by Respondent to Mr. Cooper and at the May 3, 1988, meeting of the Board, which were admitted in evidence as exceptions to hearsay under Section 90.8C3(18). Respondent's testimony is also inconsistent with the greater weight of evidence. Financial pressures caused by previous delays in obtaining permits provided a motive for Respondent to present an altered license to obtain building permits for the five homes to be constructed in the City. Previous attempts by others to obtain building permits for five homes to be constructed in the City had been unsuccessful. Respondent made several further attempts to obtain building permits for the five homes to be constructed in the City. The delays in obtaining the permits had caused the investment of the owner of the homes to dwindle. Furthermore, the homes were becoming an eyesore for the City. Respondent committed an act of fraud, deceit, and misconduct in April, 1988, when Respondent intentionally presented an altered license to Ms. Nappi to obtain building permits for the five homes to be constructed in the City. No evidence has been presented to support a finding that Respondent altered the license presented to Ms. Nappi. However, Respondent knew or should have known that the license submitted by him had been altered, and Respondent submitted the altered license for the purpose of obtaining the needed building permits. Even without the requisite intent for fraud, deceit, and misconduct, Respondent is not exonerated. Inadvertently presenting an altered license to Ms. Nappi in April, 1988, at a time when Respondent knew his license was delinquent and invalid constitutes gross negligence and incompetence in the practice of contracting.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of fraud, deceit, gross negligence, incompetency, or misconduct in the practice of contracting in violation of Section 489.129(1)(m). Florida Administrative Code Rule 21E-17.001 provides in relevant part: "The following guidelines Shall be used in disciplinary cases, absent aggravating or mitigating circumstances and subject to the other provisions of this Chapter. (emphasis added) * * * (19) 489.129(1)(m): Gross negligence, incompetence, and/or misconduct, fraud or deceit. (a) Causing no monetary harm to licensee's customer, and no physical harm to any person. First violation, $250 to $750 fine; repeat violation, $1,000 to $1,500 fine and 3 to 9 month suspension. Florida Administrative Code Rule 21E-17.002, describes aggravating and mitigating circumstances which may be considered in determining the penalty to be imposed in a particular proceeding. Petitioner produced no evidence of any aggravating circumstances other than the alleged violations of Sections 489.113 and 489.115. There was no evidence of monetary or other damage to the licensee's customer, actual job site violations, repetitive offenses, the number of complaints filed against Respondent, or actual damage to the licensee's customer. See Fla. Admin. Code Rule 21E-17.002(1),(2),(s),(6), and (8). Considering the absence of any aggravating factors, the length of time Respondent has practiced contracting without any complaint, the de minimis danger to the public, and the fact that the Board approved the permits sought by Respondent because of the beneficial effect the permits would have on the owner and the City, it is recommended that Respondent be fined $250. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 26th day of February, 1990. DANIEL MANRY 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 26th day of February, 1990.
Findings Of Fact The Respondent is a certified general contractor holding license number CG C016888. The Petitioner is an agency of the State of Florida charged with enforcing the provisions of Chapter 489, Florida Statutes, regulating the licensure and practice status and standards of building contractors in the State of Florida and enforcing the disciplinary provisions of that chapter. On December 14, 1981, Respondent contracted with Mr. and Mrs. Frank J. Sullivan to build the Sullivans a home in Sarasota County, Florida. Those parties entered into a contract whereby the Respondent was to be paid the actual cost of construction including all labor and materials plus a commission in the amount of 8 percent of the actual cost of construction, provided however, that the total contract price would not exceed $49,000, including actual costs and commission. In January, 1982, Respondent commenced work constructing the home. The Respondent worked on the home for several months and then abruptly ceased and abandoned construction without explanation on May 14, 1982. At this time the house was approximately 70 percent complete. At the time the Respondent ceased work on the project he had already been paid $47,362.29 or approximately 97 percent of the total contract price agreed to by the parties. The Sullivans thereafter had to pay $10,633.53 to subcontractors and materialmen who had been hired by the Respondent to supply labor and/or materials to the house, at the Respondent's direction, prior to his ceasing construction and leaving the job. Additionally, the Nokomis Septic Tank Company, Inc., the subcontractor who installed the septic tank, was owed $1,180.07 by the Respondent for the installation of the septic tank, which amount was to have been paid out of the total $49,000 contract price. The Respondent failed to pay Nokomis Septic Tank Company, which then filed a mechanic's lien on the property. In order to remove this cloud on their title to the property and avoid foreclosure of the lien, the Sullivans were forced to pay the $1,180.07 amount of the lien. In addition to more than $10,000 paid to subcontractors who had already performed labor or supplied materials to the job before the Respondent left it, the Sullivans had to obtain a loan from their bank in order to finish the project. The contracted for items which the Respondent had left undone (approximately 30 percent of the construction) required them to expend $18,662.04 to complete the dwelling in a manner consistent with the contractual specifications. The items which remained to be constructed or installed are listed on Petitioner's Exhibit 7 in evidence. The remaining amount of contract price which the Respondent was due upon completion of the job would have been $1,737.71. With this in mind, as well as the fact that the Sullivans had to pay in excess of $10,000 to defray already outstanding bills to subcontractors for labor and materials already furnished and then had to obtain a loan in order to pay $18,662.04 in order to complete the house, and it being established without contradiction that the Respondent was unable to make his payroll at the point of leaving the job, the Respondent obviously used substantial amounts of the funds he received from the Sullivans for purposes other than furthering the construction project for which he contracted with the Sullivans. Concerning Count II, on December 22, 1981, Frederick Berbert doing business as Venice Enclosures of Venice, Florida, contracted with Mr. Emory K. Allstaedt of Grove City, Florida, Charlotte County, to build an addition to Mr. Allstaedt's mobile home. The contract specified a price of $4,952 for which Berbert was required to construct a 12-foot by 20-foot enclosure or porch. Mr. Allstaedt never did and never intended to contract with the Respondent, Mr. Martin, rather, his contract was only with Frederick Berbert. Mr. Berbert was a registered aluminum specialty contractor in Sarasota County. He was not registered or licensed to practice contracting in Charlotte County where Mr. Allstaedt lived and where the porch was to be constructed. On December 28, 1981, the Respondent obtained building permit number 72030 from the Charlotte County Building and Zoning Department to construct a "Florida room" for Mr. Allstaedt's mobile home, the same room to be constructed by Mr. Berbert. Under Charlotte County Ordinances in evidence as Petitioner's Exhibits 13 and 13A, only a properly licensed "A", "B" or "C" contractor or a registered aluminum contractor can perform this type of job. The Respondent was appropriately licensed for this type of work in Charlotte County, but Mr. Berbert was not and thus could not obtain the permit in his own right. The Respondent's only connection with this job was obtaining the permit in his own name as contractor of record and in performing some minor work in replacing some damaged sheets of paneling shortly after the construction of the room addition and after the performance of the contract by Berbert. Though the Respondent listed himself as contractor in order to be able to obtain a building permit for the job, he never qualified as the contractor of record nor "qualified" Mr. Berbert's firm with the Construction Industry Licensing Board. Both Mr. Berbert and the Respondent were aware that Mr. Berbert could not legally perform contracting in Charlotte County at the time the Respondent obtained the building permit on Berbert's behalf.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED: That the contractor's license of Jack A. Martin be suspended for a period of ten (10) years, provided however, that if he makes full restitution to the Sullivans of all monies they expended for labor, materials and permits to enable them to complete the work he had contracted to perform, within one year from a final order herein, that that suspension be reduced to three (3) years after which his license should be reinstated. DONE and ENTERED this 27th day of April, 1984, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1984. COPIES FURNISHED: Charles P. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Jack A. Martin 305 Park Lane Drive Venice, Florida James Linnan, Executive Director Florida Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Harry L. Wilson is the holder of a registered roofing contractor's license from the Florida Construction Industry Licensing Board. The license, Number RC 0041328, was first issued in March of 1982. The license was issued in the name of Harry L. Wilson Roofing, 1943 Hardy Street, Jacksonville, Florida, with the Respondent as qualifier. The Respondent has been the qualifier of Harry L. Wilson Roofing at all times relevant to this proceeding. On December 6, 1984, the Respondent and Robbie L. Hicks, entered into a written contract (Petitioner'S Exhibit 2). Pursuant to this written contract (hereinafter referred to as the "Contract"), the Respondent agreed to perform the repair work specified in the Contract in a "professional manner" and Ms. Hicks agreed to pay the Respondent $2,395.00. The property to be repaired is rental property owned by Ms. Hicks. The property is located at 1508 Eaverson Street, Jacksonville, Florida. The Respondent commenced work sometime during the early part of 1983. Shortly after commencing work, however, the Respondent and Ms. Hicks began having disagreements as to the work to be performed and the quality of the Respondent's work. These disagreements continued after the Respondent completed the work in November of 1983. Ms. Hicks testified that the work that the Respondent completed was done in an unprofessional manner and that the Respondent had not completed all of the work that he had agreed to perform. In particular, Ms. Hicks testified that the Respondent had failed to paint the interior of the house beige as required by the Contract, had failed to remove saw dust and other debris from the house following completion of the work, had failed to finish cabinets installed in the house, had failed to repair screens and generally had not performed in the manner he had agreed to perform. Ms. Hicks paid the Respondent all but $410.00 of the contract price. The Respondent testified that all off the work called for pursuant to the Contract had been performed. According to the Respondent, he had performed some work not required by the Contract and had not performed other work requested by Ms. Hicks because the work was beyond the scope of the Contract. The Respondent also stated that the work which Ms. Hicks expected would have cost considerably more than the price agreed upon in the Contract. The Respondent did not perform all of the work specified in the Contract in a "professional manner" as required by the Contract. Based upon the testimony of Mr. Claude Bagwell, Deputy Chief, Building and Zoning, Inspection Division of the City of Jacksonville, it is clear that no permit was issued by the City of Jacksonville to perform the work required by the Contract. The only permits issued with regard to Ms. Hicks' rental property was a permit issued in 1961 and the original building permit issued in 1949. Additionally, due to the fact that no Florida registered roofing contractor's license in the name of "Harry L. Wilson Roofing" had been filed with the City of Jacksonville, no permit could be issued to Harry L. Wilson Roofing with regard to the Contract. The Respondent admitted that he had not obtained a permit to perform the work required by the Contract. The Respondent indicated that he had not obtained a permit because he was not aware that one was required in order to perform the work. He did indicate that he had obtained permits to perform other jobs. The Respondent could not, however, have obtained permits for other jobs because no license issued in the name of Harry L. Wilson Roofing had been filed with the City of Jacksonville. The Respondent did take the examination required in order to obtain a registered roofing contractor's license. The Petitioner suggested in its Proposed Findings that the "permit requirement was explained" when the Respondent took the exam. No evidence to support such a finding was presented at the hearing. The Respondent in entering into the Contract clearly used the name "Wilson Recycling". Nowhere on the Contract is the name "Harry L. Wilson Roofing" used. The Respondent ultimately admitted that no Florida license authorizing the use of the name "Wilson Recycling" had been obtained by him. The Respondent, however, when initially asked whether a Florida license in the name of "Wilson Recycling" had been obtained indicated that such a license had been issued. On further examination, however, the Respondent testified that an occupational license in the name of "Wilson Recycling' had been obtained by him and not a Florida license. The work to be performed pursuant to the Contract was beyond the scope off the Respondent's license. As pointed out by Mr. Bagwell the work to be performed pursuant to the Contract would require licensure as a registered residential contractor or more.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That count I of the Administrative Complaint filed against the Respondent be dismissed. It is further RECOMMENDED: That Respondent be found guilty of violating Section 489.129 (1)(g), Florida Statutes (1983), by contracting in a name other than the name as set forth on the Respondent's license. It is further RECOMMENDED: That Respondent be found guilty of violating Section 489.129(1)(j), Florida Statutes (1983), by failing in a material respect to comply with the provisions of Section 489.119(2) and(3), Florida Statutes (1983), in that the Respondent failed to qualify the business name "Wilson Recycling" with the Construction Industry Licensing Board. It is further RECOMMENDED: That Respondent be found guilty of violating Section 489.129(1)(j), Florida Statutes (1983), when he failed in a material respect to comply with the provisions of Section 489.117(2), Florida Statutes (1983), by contracting to perform and actually performing work beyond the scope of his Florida contracting license. It is further RECOMMENDED: That Petitioner suspend Respondent's roofing contractor's license for a period of three (3) months. DONE and ENTERED this17th day of December, 1984, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1984. COPIES FURNISHED: H. Reynolds Sampson, Esquire Staff Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harry L. Wilson 1943 Hardee Street Jacksonville, Florida 32209 Mr. Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact At all times material to these proceedings, the Respondent, David R. Knight, held a registered general contractor's license numbered RG 007907 issued by the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board initially in July, 1968. Respondent's license is presently in an inactive status for failure to renew but renewal can be accomplished by Respondent paying the required renewal fee only. On May 13, 1983, Respondent contracted with Joseph Cobb to remodel a house in Milton, Florida. The contract price was $23,800.00. The Respondent began the remodeling and when the project was approximately 50 percent completed, left the site. Joseph Cobb, on numerous occasions, offered to work with the Respondent in any way to finish the project, but the Respondent failed to return. Joseph Cobb paid Respondent $19,100.00 from May 14, 1983 through June 23, 1983. In addition, although the contract required Respondent to pay for all supplies and materials, Cobb paid $2,300.98 for supplies and material used in the remodeling. Respondent failed to pay Gary Rich Plumbing for the plumbing work done on the Cobb residence. Joseph Cobb was forced to pay Gary Rich $1,200.00 in order to avoid a lien being filed on his home. Respondent was not licensed to contract in Milton, Santa Rosa County, Florida, when he contracted with Joseph Cobb to perform remodeling. In June, 1982, Respondent contracted with Pearlie Rutledge to remodel a house at 608 North D Street, Pensacola, Florida, Escambia County. The contract price was $17,000.00. The Respondent began the construction without obtaining a building permit which is in violation of Section 106 Standard Building Code as adopted by the City of Pensacola Ordinance 81-83. Respondent deliberately and in a hurry left the site of construction when the building inspector appeared on the job. The Respondent was not licensed in Escambia County or the City of Pensacola to practice contracting. Pearlie Rutledge paid Respondent $5,000.00 which the Respondent failed to return when the remodeling was stopped by Charles Humphreys, Housing Inspector for the City of Pensacola. Pearlie Rutledge obtained a Final Judgement against the Respondent for $4,557.00 which has not been paid by the Respondent. Respondent's "81-82' and "82-83", Okaloosa County Occupational License was issued to David Knight doing business as "Your Way Construction." However, there was no evidence presented at the hearing that Respondent ever contracted in the name of "Your Way Construction." In fact there is evidence that during the year 1983 he contracted with Cobb as David Knight, General Contractor and not as David Knight, General Contractor, d/b/a Your Way Construction. (See Petitioner's Exhibit No. 1.)
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Board enter a final order Dismissing Counts II, V and VI of the Administrative Complaint filed against the Respondent. It is further RECOMMENDED that the Board enter a final order finding Respondents guilty of the violation charged in Counts I, III and IV of the Administrative Complaint filed against the Respondent and for such violation it is RECOMMENDED that the Board revoke the Respondent's registered general contractor's license numbered RG 0007907, to practice contracting in the State of Florida Respectfully submitted and entered this 9th day of January, 1986, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 9th day of January, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 84-3836 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the Petitioner to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Exhibit 1). 3. Adopted in Finding of Fact 3. 4. Adopted in Finding of Fact 4. 5. Adopted in Finding of Fact 5. 6. Adopted in Finding of Fact 6. 7. Adopted in Finding of Fact 7. 8. Adopted in Finding of Fact 8. 9. Adopted in Finding of Fact 9. 10. Adopted in Finding of Fact 10. 11. Adopted in Finding of Fact 11. 12. Adopted in Finding of Fact 12. Adopted in Finding of Fact 2 except for contract amount which should have been $23,800. (See Petitioner's Respondent Did Not Submit Any Proposed Findings of Fact COPIES FURNISHED: James Linnan, Executive Director Department of Professional Regulation Construction Industry Licensing Post Office Box 2 Jacksonville, Florida 32202 Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. David R. Knight 1215 East Hayes Street Pensacola, Florida 32503
The Issue Whether disciplinary action should be taken against Respondent's license to practice contracting under license number CR C056639, based on violations of subsections 489.129(1)(h)(2), (m), (n), and (k), Florida Statutes, as charged in the Administrative Complaint.
Findings Of Fact Based on the evidence and the testimony of the witnesses presented and the entire record in this proceeding, the following facts are found. At all times pertinent to this proceeding, Respondent was a contractor, having been issued license number CR C056639, by the Florida Construction Industry Licensing Board on January 22, 1993. Respondent is the licensed qualifier for Accurate Development Inc., a Florida corporation. On or about December 23, 1994, the Respondent contracted with Joseph and Kathleen Hauser to construct a 2,000 square foot house on lot 15 of the Iroquois South Subdivision, (606) Jillotus Street in Merritt Island, Florida. The contract between Respondent and the Hausers was for the construction of a house only. The real estate upon which a house was to be built was already owned by the Hausers. The construction contract between the Hausers and Accurate Development was executed on December 23, 1994. Respondent presented the contract to the Hausers, who affixed their signatures to the contract first. They then gave the contract back to Respondent for his signature, whereupon he signed it and then he inserted the six percent commission provision in favor of Castle Real Estate. The contracted price for the construction was $147,800.00. The Hausers paid the Respondent $6,940.00 by check as a deposit when they signed the contract on December 23, 1994. The check was payable to Accurate Development. At no time during the transaction between Accurate Development and the Hausers did the Hausers meet a representative of Castle Real Estate in any capacity, nor were the Hausers ever represented by a real estate agent of their own choosing or one furnished by Accurate Development or Castle Real Estate. The Hausers did not discuss a six percent commission for the benefit of Castle Real Estate with the Respondent at any time prior to signing the contract, and they did not initial the six percent provision to approve it. But the Hausers did not object to the insertion of the commission at the time of the signing of the contract or at a later time. The check was endorsed and deposited by Accurate Development on December 23, 1994. On or about February 2, 1995, the construction contract was amended to increase the size of the house. Mr. And Mrs. Hauser applied for a construction loan in the amount of $150,750.00 from the Space Coast Credit Union in Melbourne, Florida. Upon approval of said loan, they paid Accurate Development an additional deposit of $6,940.00 on March 3, 1995. On or about March 3, 1995, the construction contract was revised to separate the construction contract from the spa contract with Aqua-Blue Pools to build a pool. On the date the construction loan was closed, a payment was made by Space Coast Credit Union directly to Castle Real Estate in the amount of $9,045.00 as a six percent commission on the construction contract between Accurate Development and the Hausers. This amount was shown on the closing statement, and no objection was raised by the Hausers. The Respondent was at all material times a director of and closely affiliated with Castle Real Estate. Respondent's spouse was the owner/broker of the real estate company. All of Accurate Development's sales went through Castle Real Estate who provided sales personnel at the Respondent's company's model homes. Respondent did not pull the permit to construct the Hauser's home. During several meetings between the Respondent and the Hausers in May and June 1995, Respondent informed the Hausers that he was having financial difficulties and cash flow problems. At that time, he asked the Hausers if they would pull the permit for the construction of their home or if they would become an owner/builder. Respondent stated that he did not have the money to pull the permit and begin construction. On May 26, 1995, at a meeting between Respondent and the Hausers, Respondent suggested that the Hausers become owner/builder or that they have their home built by Andy Barber, a general contractor and friend of the Respondent or that they take a second or third mortgage on other property that Respondent owned for the amount of the deposit. On or about June 10, 1995, the Hausers contacted Andy Barber about building their home, but he informed them that he was too busy and would not be able to build their house. The Hausers contracted with another builder (Gary Shaul) to build their house, and Mr. Shaul pulled the permit and constructed the house. On June 7, 1995, the Hausers asked the Respondent for an itemized list of what had been done with their up-front money. Respondent informed the Hausers that he had paid general bills. Respondent did not provide an itemized list of his expenses. On August 7, 1995, Mr. Hauser informed the Brevard County Building Department that Respondent was no longer their contractor. Respondent did not object to the Hausers' notice to the Brevard County Building Department that Gary Shaul of Shaul Builders would be constructing the Hausers' home. Respondent has not refunded any portion of the monies paid to him by the Hausers as deposits or the six percent commission paid to Castle Real Estate. Respondent is defending the disciplinary action against him by relying on paragraph 16 of the contract, a liquidated damages clause, to justify retaining the Hausers' deposit money. Paragraph 16 of the contract upon which the Respondent relies, provides in part that "In the event of Purchaser's default hereunder, contractor shall have the option to terminate this contract and retain all monies previously paid by purchaser as its liquidated damages upon five (5) days written notice to purchaser, or contractor may sue for damages or pursue any other legal remedy it may have." Respondent never notified the Hausers in writing that he considered them to be in breach of their contract with him and that he therefore intended to retain the $13,880 deposit they had paid. The Hausers were ready, willing and able to live up to their contract responsibilities. Respondent abandoned the Hausers' job without just cause causing them financial harm.
Recommendation Upon 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 violating subsections 489.129(1)(h)(2), (k), (m) and (n), Florida Statutes; it is FURTHER RECOMMENDED that the Board impose an administrative fine in the amount of $6,500, require Respondent to make restitution to the Hausers in the amount of $13,880, require Respondent to pay the costs incurred in the investigation and prosecution of this case, and that Respondent's license be SUSPENDED for five years. RECOMMENDED this 16th day of October, 1997, at Tallahassee, Leon County, Florida. COPIES FURNISHED: John L. Chaves, Esquire Department of Business and Professional Regulation Northwood Centre 1940 N. Monroe Street Suite 60 DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1997. Tallahassee, Florida 32399-0792 Robert E. Poindexter 2545 Burns Avenue Melbourne, Florida 32935 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Rodney Hurst, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467
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.
