The Issue Whether Respondent committed the violations alleged in the administrative complaint; and, if so, what penalty should be imposed.
Findings Of Fact At all times material to the allegations of this complaint, the Respondent, Joseph Marcelin, was a certified residential contractor, license number CR C028352. Respondent’s place of business and residence are in Dade County, Florida. The Petitioner is the state agency charged with the responsibility of regulating and disciplining licensed contractors. On May 14, 1988, the Construction Industry Licensing Board entered a final order approving a settlement stipulation regarding Case no. 74860 against this Respondent. This final order directed Respondent to adhere to and abide by all of the terms and conditions of the stipulation. The stipulation required the Respondent to not violate the provisions in Chapters 455 and 489, Florida Statutes, in the future; required Respondent to honor a settlement in a civil matter; required Respondent to pay a fine in the amount of $500.00; suspended Respondent’s license for thirty days; and required Respondent to affirmatively demonstrate compliance with the stipulation in order to have his license reinstated. A second final order entered by the Board on May 14, 1988, approved a settlement stipulation regarding Case no. 77499. This final order also directed Respondent to comply with the stipulation applicable to that case. In Case no. 77499, the stipulation required Respondent to abide by a civil settlement; imposed a fine in the amount of $500.00; suspended Respondent’s license for thirty days; and placed the burden on Respondent to demonstrate he had met the terms of the stipulation. As to both cases referenced above, Respondent admitted the allegations of the administrative complaints which, in pertinent part, claimed Respondent had assisted an unlicensed person or entity to perform contracting services thereby aiding and abetting an unlicensed person to evade the provisions of Chapter 489, Florida Statutes. On April 2, 1993, Respondent executed a certification change of status form which was submitted to the Department. Such form was completed for the purpose of qualifying as an individual for licensure and sought to reinstate a delinquent license or change from inactive to active. In the course of completing the change of status form Respondent was required to answer a series of questions by checking either the “yes” or “no” column. In response to the question as to whether Respondent had “been charged with or convicted of acting as a contractor without a license, or if licensed as a contractor in this state or any other state, had a disciplinary action (including probation, fine or reprimand) against such license by a state, county or municipality?,” he answered “no.” Such answer was false. Further such answer was made under with the following affirmation: I affirm that these statements are true and correct and I recognize that providing false information may result in a FINE, SUSPENSION, OR REVOCATION of my contractor’s license. [Emphasis in original.] Thereafter, the Department notified the Respondent that his license would not be issued as he had failed to demonstrate satisfaction of a civil judgment and had not submitted an explanation of the disciplinary action from 1988. Respondent eventually resolved issues of licensure with the Department and, on September 15, 1993, was authorized to practice contracting. Prior to his license being reinstated, Respondent performed the following: on April 7, 1993, Respondent obtained a building permit for construction work at the home of Eduardo Bovea. This permit, no. 93181501, indicated Respondent as the contractor of record for the project. On the permit application Respondent represented himself as the licensed building contractor for the Bovea project to the Metropolitan Dade County building and zoning department. Respondent did not have a contract with Bovea for the construction work to be performed on the Bovea home. In fact, the contract was between Bovea and Lou Greene Construction. The Boveas paid monies to Rodney Salnave, who claimed to be a representative for Lou Greene Construction. Rodney Salnave was not Respondent’s employee, and was not licensed as a contractor. The Respondent did not talk to the Boveas regarding the contract, the scope of the work to be done, or the contract price for the work. All discussions regarding the work at their home (and payments for same) were between Rodney Salnave and the Boveas. The permit for the Bovea project represented the amount of the work to be $2,000.00. In fact, the contract price for the work was $4,500.00. Respondent misrepresented the value of the work for the Bovea project. As of September 26, 1993, Respondent admitted he was involved with seventeen contracting jobs. Just eleven days after having his license reinstated, and while being employed in a full-time (8:00 a.m. to 5:00 p.m.) job with Dade County, Respondent had contracting responsibility for seventeen jobs. In reality, Respondent had made a deal with an unlicensed person, Denis Joseph, to pull permits for him. The jobs were for persons who, in some instances, Respondent had never met. For example, Mr. Joseph pulled a permit for work to be performed on a home owned by Ed Davis. The contract for the work was between Mr. Davis and a Mr. Sutton, an unlicensed contractor, but with the approval of Respondent, Mr. Joseph obtained a permit for the Davis job. A second job was for Bertha Joseph. In this instance, Mr. Joseph completed the permit application which Respondent signed thereby allowing Mr. Joseph to obtain the permit for the project. By signing the permit, Respondent represented himself to be the contractor for the job. In truth, the homeowner had contracted with Denis Joseph for the work to be done, but the project was completed by Emanuel Gideon, an unlicensed contractor. Respondent admitted receiving payments from Denis Joseph. Respondent admitted he was not actively involved with the Bertha Joseph project. In September, 1993, Eric Wardle, an investigator with the Dade County building and zoning department, interviewed Respondent regarding claims that he was obtaining permits for unlicensed contractors. According to Mr. Wardle, Respondent admitted he pulled permits for unlicensed contractors after Hurricane Andrew because they were trying to make a living. At hearing Respondent disputed the accuracy of Mr. Wardle’s investigation but admitted he would have told him “anything just for him to get away from me.” Respondent’s explanation at hearing was not persuasive.
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 revoking Respondent’s contractor license and imposing an administrative fine in the amount of $8,500.00. DONE AND ENTERED this 16th day of May, 1997, in Tallahassee, Florida. J. D. PARRISH 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 COPIES FURNISHED: Bruce M. Pasternack, Esquire Raymond L. Robinson, P.A. 1501 Venera Avenue, Suite 300 Coral Gables, Florida 33146 Joseph Marcelin 16561 Southwest 144th Court Miami, Florida 33177 Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1997. Rodney Hurst, Executive Director Department of Business and Professional Regulation/CILB 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Northwood Centre Tallahassee, Florida 32399-0792
The Issue The issues presented are as follow: Did the Respondent allow his registration to be used by an unlicensed and unregistered person to evade the provisions of Chapter 489, Florida Statutes? Did the Respondent combine and conspire to allow his registration to be used by an unlicensed or unregistered person to evade the provisions of Chapter 489, Florida Statutes? Did the Respondent engage in contracting in a name other than set forth on his certificate? Did the Respondent engage in contracting in a name of a business entity without first qualifying that business entity with the Construction Industry Licensing Board? The parties submitted post hearing findings of fact in the form of a proposed recommended order and correspondence. To the extent that the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.
Findings Of Fact The Respondent, Damian C. Davis, is a certified general contractor holding license number CG C007059 issued by the Construction Industry Licensing Board through the Department of Professional Regulation. On or about August 29, 1980, the Respondent obtained building permit number B 45383 from the City of Tampa Building Department for construction to be performed by George Lacey at 910 East Osborne Street, Tampa, Florida, the residence of Martha Smith George Lacey was at that time uncertified and unregistered and was the contractor in fact on the work to be done for Martha Smith at 910 East Osborne Street in Tampa. The Respondent arranged for all building inspections by inspectors of the City of Tampa and was on the building site when said inspections were conducted. All work was approved by building inspectors of the City of Tampa, and there were no code problems. Subsequent to the completion of the work by Lacey, the owner had a problem with a leak over a sliding glass door which Lacey had contracted to repair. When this matter was brought to the Respondent's attention by officials of the Tampa Building Department, the Respondent fixed the leak to the owner's complete satisfaction. The building permit obtained by the Respondent was issued in the Respondent's name. All work the Respondent performed was done in the Respondent's name. The Respondent and Lacey frequently worked together in joint ventures; however, this was not such a project.
Recommendation Having found the Respondent, Damian C. Davis, guilty of one count (one offense) of violating Sections 489.129(1)(e) and (f), Florida Statutes, and considering the Respondent's prompt action to satisfy the owner, it is recommended that the Respondent be given a letter of reprimand and assessed a civil penalty of $500. DONE and RECOMMENDED this 28th day of July, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 28th day of July, 1983. COPIES FURNISHED: Stephanie A. Daniel, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Damian C Davis 1310 West Charter Street Tampa, Florida 33602 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 ================================================================= AMENDMENT TO AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, vs. CASE NO. 19791 DOAH CASE NO. 83-1230 DAMIAN C. DAVIS DAVIS & SEXTON, INC. 1302 West Sligh Avenue Tampa, Florida 33604, Respondent. / AMENDMENT TO FINAL ORDER The Final Order entered on September 22, 1983 in this cause incorrectly stated the fine imposed upon the Respondent. The correct amount is $250.00, to be paid within 30 days of this Order. DONE AND ORDERED in Jacksonville, Florida, this 30th day of November , 1983. FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD Henry Bachara, Chairman
Findings Of Fact At all material times, the Respondent Morris Marder was a registered building contractor, having been issued license number RB 0004509. On March 4, 1980, the Respondent Marder contracted with Erwin and Joan Ravich to convert the garage of the Ravich home into a family room. The March 4, 1980 contract between the Raviches and Marder, who was also doing business as "Home Remodeler Morris Marder", 1/ was signed by the Raviches and accepted by M. Marder. An undated addendum to the contract, which was prepared by the Raviches' attorney, was signed by the Raviches and Dan Rossman, a salesman and contract estimator for the Respondent Marder. However, no evidence was presented that the Respondent Marder had knowledge of or signed the addendum, which required completion of the project by an unspecified date. The execution of the addendum delayed beginning construction on the project until May of 1980. The Respondent Marder subcontracted the performance of work on the Ravich job to Ken Nieset, who with his brother, Steve, a licensed general contractor, was doing business as Brothers Two Construction. During the course of the project, Nieset received three of the four payments made under the contract directly from the Raviches. Although Nieset worked for the Respondent previously, he was neither Marder's foreman nor employee. When additional subcontractors were required, they were hired for the Ravich job by Nieset. The Raviches paid a total of $9,190 under the contract. The first payment of $1,190 was made directly to Home Remodeler on May 3, 1980, the approximate date that work on the project actually began. A partial release of lien was furnished by Morris Marder to Erwin Ravich on May 6, 1980 based on the first payment. The second payment was made by Erwin Ravich on June 20, 1980 for $2,500. This check was made payable to Ken Nieset per authorization of lien furnished on June 20, 1980, in connection with the second payment. 2/ On June 27, 1980 and July 11, 1980, checks were issued to Ken Nieset by the Raviches for $3,500 and $2,000, respectively. The Raviches' received a release of lien for $2,000 from Nieset, but did not obtain a release of lien for the $3,500 payment. The release of lien for the $2,000 payment executed by Nieset did not involve Home Remodeler or the Respondent Marder. After receiving payments totaling $5,500 directly from the Raviches, Nieset abandoned the project. During the course of the Ravich job, the Respondent Marder employed Jorge Gamez, a draftsman/supervisor, who he believed was supervising the Ravich job. However, Gamez' involvement with the job was limited to drawing the plans and did not include supervising construction, since he was not a licensed general contractor. King Cole Plumbing, a state licensed contractor, subcontracted with Nieset to install the plumbing and septic tank at the job site. When King Cole left the job, the rough plumbing was installed and all that remained on the job was interior finishing. The septic tank with an appropriate cover was in place and all work performed by King Cole had passed inspection. The septic tank cover originally agreed to by the parties was required to be changed to a heavier type when the Raviches altered their plans and decided to continue using their driveway. This change resulted in a $512 charge from Sun Gold Industries, who supplied the new cover. Additionally, the original contract was modified to add higher grade plumbing fixtures, lighting fixtures, and tile. In August, 1980, the Respondent Marder entered Saint Frances Hospital for treatment of phlebitis. At the same time, Rossman, Marder's employee, left for vacation in California for seven to eight weeks. As a consequence, the Ravich job was delayed and an unauthorized payment of $2,500 to Nieset was made without securing the approval of the Respondent Marder or Rossman. The Respondent Marder calculated that approximately $2,000 was due as the balance of the job and an added $1,500 was due for extras to the contract. Faced with a substantial loss, the Respondent Marder contacted the Raviches and their attorney in August, 1980, and offered to finish the job and pay for the specified extras in return for Ravich placing $4,500 in escrow with his attorney. Ravich's attorney declined the Respondent's offer and ordered him off the job site. Subsequently, Dade County cancelled the Respondent's building permits, which effectively prohibited him from completing the work at the site. Subsequently, a lien was filed against the Ravich job by King Cole Plumbing for nonpayment of monies due from Ken Nieset. The lien was determined to have been filed in violation of Florida's Mechanics Lien Law and was voluntarily removed. The work performed by the Respondent and his subcontractors prior to being ordered off the job was satisfactory and passed periodic inspection by the Dade County Building Department. The charges in this administrative proceeding formed the basis of action taken against the Respondent by the Dade County Division of Construction Trades Qualifying Board on September 11, 1981, which resulted in revocation of the Respondent's certificate as a subgeneral building contractor in Dade County. The Respondent Marder has been in the construction business since 1954 and licensed as a general contractor in Florida since 1968. Other than the instant case, the Respondent has never been forced off a job. He has been in business in South Florida for many years and has been involved in thousands of construction jobs.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Petitioner Construction Industry Licensing Board enter a Final Order suspending the Respondent's license for a period of six (6) months. DONE and ENTERED this 27th day of September, 1983, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1983.
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.
