The Issue Did Respondent violate Section 489.129(1)(h), Florida Statutes, and, if so, what discipline should be imposed?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida vested with statutory authority to regulate the practice of contracting under Chapters 455 and 489, Florida Statutes. Respondent is a licensed certified residential contractor in the State of Florida. Respondent's license number, as certified by Julie Odom, Department's Alternate Records Custodian, is CRC 20166. However, the Administrative Complaint alleges the license number to be CR C020166. Respondent's licensure status is "Delinquent, Active." On May 18, 1989, the Department entered a Final Order in DOAH Case No. 88-3308 wherein Respondent was found guilty of violating Section 489.129(1)(h),(j),(k), and (m), Florida Statutes. On September 27, 2000, the City of Cape Coral, Florida, Contractor's Regulatory Board (Board) entered into a Settlement Agreement (Agreement) with Respondent, in regard to a complaint, Case No. 00-01, wherein Respondent was charged with violating the following Sections of the City of Cape Coral Code of Ordinances: 6-10.1:, To make misleading, deceptive, untrue, or fraudulent representations in the practice of his contracting profession; 6-10.8: Diversion of funds or property received for prosecution or completion of a specified construction project or operation when as a result of the diversion, the contractor is or will be unable to fulfill the terms of his obligation or contract; 6-10.10: Failing in any material respect to comply with the provisions of the Code; 6-10.11: Abandoning of a construction project in which the contractor is engaged or under contract as a contractor. A project is to be considered abandoned after 90 days if the contractor terminates the project without notification to the prospective owner and the City and without just cause; and 6-10.13: Being found guilty of fraud or deceit or of gross negligence, incompetence, or misconduct in the practice of contracting. The Agreement provided that Respondent was pleading No Contest to the charges that he violated the aforementioned sections of the City of Cape Coral's Code of Ordinances and that Respondent's plea did not act as an admission of guilt as to the above mentioned charges. The Agreement provided for Respondent's permit pulling privileges to be revoked for a period of 90 days starting August 23, 2000. By an Order dated December 29, 2000, the Board, after hearing and discussing the charges made against Respondent, voted to accept and approve the Agreement. By this Agreement, Respondent's contracting license was disciplined by the City of Cape Coral. The total investigative and prosecution costs to the Department, excluding costs associated with any attorney's time, is $967.09.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and a review of Chapter 61G4-17, Disciplinary Guidelines, Florida Administrative Code, with consideration for the repeat violation of Section 489.129(1)(h), Florida Statutes, it is RECOMMENDED that the Department enter a final order finding Respondent, Robert Mensching guilty of violating Subsection 489.129(1)(h), Florida Statutes, and for such violation: (a) impose an administrative fine in the amount of $5,000.00; (b) assess costs in the amount of $967.09; and (c) revoke Respondent's Certified Residential Contractor's License. DONE AND ENTERED this 21st day of March, 2003, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 21st day of March, 2003. COPIES FURNISHED: Kimberly V. Clark, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Robert Mensching 1719 Northeast 23rd Terrace Cape Coral, Florida 33909 Robert Crabill, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulations Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Did respondent fail to properly supervise, direct and manage the contracting activities of the business of which he is the qualifier, and if so, what disciplinary action should be taken against respondent's contracting license?
Findings Of Fact At all times material to this proceeding the respondent was a certified building contractor licensed by the State of Florida and the qualifying agent for Custom Concrete of Naples, Inc. (Custom Concrete). Rodney Velez was the president of Custom Concrete and licensed only in concrete--concrete forming, placing and finishing. Susan Velez, Rodney Velez's wife, was an officer of Custom Concrete. On April 23, 1983, Custom Concrete, by and through Rodney Velez, entered into a contract with Mark and Penny Paterson to construct a home for $38,550.00. Mrs. Paterson had previously met Rodney Velez in the course of her work, and Velez had told her that he was a builder. Mrs. Paterson had suggested that Velez look at a floor plan that she and her husband had, and after certain negotiations, including a change of floor plan, the contract was entered into. During the course of the negotiations Mrs. Paterson never talked to the respondent and was unaware that the respondent was involved or would be involved in the construction of the home. Mrs. Paterson believed that Rodney Velez was the "builder"; however, the construction of the Paterson home was beyond the scope of Velez's concrete license. The respondent signed the application to secure the building permit for the Paterson residence, although he did not personally appear to procure the building permit. The clerk of the contractor's licensing section of the building code compliance department relied on the signature on the application because it was notarized. The notary was Susan Velez. Respondent did not supervise or direct the construction of the Paterson home. Neal Jackson, president of the company who did the electric work on the home, was unaware that respondent was involved in the project until well after the house was finished. Although it is usual for a supervisor or superintendent to be at the job site some of the time, Jackson never saw the respondent or Velez at the job site. Jeff Allain, the carpenter who did the framing and certain other work, was on the job site five or six days and saw the respondent once during the framing of the structure "just generally looking around." The respondent didn't say anything to Allain. David Isom did drywall work on the house. He had no contact with the respondent and did not see him at the construction site. Mrs. Paterson went by the construction site quite often and realized that the job was not being properly supervised. Velez was rarely there, and Mrs. Paterson never saw the respondent. The workmen on the site would ask the Patersons when Velez would be there because they had questions concerning the work. Neither of the building inspectors saw anyone supervising at the job site, although usually no one is at the job site when an inspection is made. Two days after the Patersons moved into their house, they compiled a "punch list" of the items that needed to be completed or corrected. The list was given to Velez, but the work was not corrected to the Paterson's satisfaction. Although Velez did not give the "punch list" to respondent, Velez discussed the problems with the respondent. Respondent did not take any steps to remedy the problems and said he thought "a lot of it was nonsense." Velez told respondent that he, Velez, would take care of it. Because of the unresolved problems with the house, Mrs. Paterson finally called the licensing board to file a complaint against Rodney Velez. At that time, she was informed that Rodney Velez was not the contractor; the contractor was the respondent. This was the first time that Mrs. Paterson was aware that the respondent was involved with the construction of the house. All of the Patersons dealings had been with Velez, and all checks for construction payments were made out to Velez personally. 2/ Even though the Patersons had not received satisfaction from Custom Concrete for the problems with the house, they signed the closing papers because Velez threatened to evict them. At closing the Patersons received a lien release from Custom Concrete which released all work prior to March 9, 1984. Subsequently, Velez filed a claim of lien against the Paterson property for work completed on February 9, 1984.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is recommended that respondent be found guilty of violating Section 489.129(j), Florida Statutes, that he be fined $1,000.00, and that his license be suspended for 60 days from the date the Construction Industry Licensing Board enters its final order in this case. DONE and ORDERED this 30th day of January, 1985, in Tallahassee, Florida. DIANE A. GRUBBS 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 30th day of January, 1985.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent, Ramiro Palma, be found guilty as charged in the Administrative Complaint dated August 31, 1981. It is further RECOMMENDED that Respondent's registered building contractor's license be suspended for one year after the date of the final order entered in this proceeding and that Respondent pay a $1000 administrative fine. DONE and ENTERED this 3rd day of February, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER 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 3rd day of February, 1982.
The Issue The issue presented for decision herein is whether or not the Respondent, David H. Tinius, unlawfully abandoned a construction project; diverted funds received for completion of a construction project and thereby failed to fulfill his contractual obligations.
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. By its administrative complaint filed herein signed October 6, 1982, the Petitioner, Construction Industry Licensing Board, seeks to suspend, revoke or take other disciplinary action against the Respondent's registered building contractor's license. During times material herein, Respondent was a registered building contractor and has been issued license No. RB0024083. On approximately April 20, 1978, Respondent entered into a contract with Jess Marks to build a residence in Tamarac, Florida, for the sum of $46,551. Respondent commenced construction of the Mark's residence but left the site when it was approximately forty percent complete. At that time, Respondent had received approximately $44,000 of the contract sum. Jess Marks completed the construction of his residence by hiring another contractor to complete the project and expended approximately $50,000 over and above the contract price as agreed upon by the Respondent to complete his residence. Respondent never returned any of the monies received from the Marks for completion of the residence. On approximately April 24, 1978, Respondent entered into a contract with Abe Abrahams to construct a residence in Tamarac, Florida, for the sum of $30,473. Respondent left the Abrahams' project after he had received $6,000 and had completed approximately ten percent of the work on the Abrahams' residence. Respondent did not return to the site nor did he return any of the monies received from the Abrahams for the construction of their residence (See Petitioner's Composite Exhibit No. 5). The Abrahams had to pay for supplies and material bought for the project by the Respondent and which reportedly had been paid, according to Respondent. THE RESPONDENT'S POSITION As noted hereinabove, the Respondent did not appear to contest or otherwise refute the allegations contained in the administrative complaint filed herein. However, Respondent, through counsel, filed an answer which admitted the complaint allegations filed herein.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, hereby RECOMMENDED that the Respondent's registered building contractor's license No. RB0024083 be REVOKED. DONE and RECOMMENDED this 29th day of August, 1983 in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1983 COPIES FURNISHED: Michael J. Cohen, Esquire 2715 East Oakland Park Boulevard Suite 101 Fort Lauderdale, Florida 33306 David H. Tinius 4420 Northwest 36th Court Lauderdale Lakes, Florida 33309 David H. Tinius Post Office Box 6338 Charlotte Amalil St. Thomas, U.S.V.I. 00801 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
