Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Clyde S. Botner, was a registered specialty contractor having been issued license number RX 0043602 by petitioner, Department of Professional Regulation, Construction Industry Licensing Board (Board). Respondent is now the owner of Days Aluminum Products (DAP), a construction firm located at 4404 Devonshire Road, Tampa, Florida, but was in the process of purchasing the business when the events herein occurred. He has been licensed by the State since June 29, 1983. Botner was and still is the only state licensed contractor with the firm. Debra Tackett resides at 7302 Sequoia Drive, Temple Terrace, Florida. Tackett desired to have an aluminum carport added to her house and contacted DAP for the purpose of obtaining an estimate. Respondent visited Tackett's residence in July 1987 and gave an estimate of $7,088 to complete the job. Within a few days, another DAP representative, Scott Tarbox, met with Tackett and agreed to reduce the price to $6,000. After the contract changes were initialed by Tarbox, Tackett gave Tarbox a check for $1200 as a down payment on the work. The check was deposited to the account of DAP. The contract carries the signature of Botner as the authorized agent of DAP. On or shortly after July 18, Botner made application for a building permit with local officials butt was unsuccessful since the proposed construction was three feet beyond the setback line. This meant the structure had to be moved back three feet or a variance obtained from local zoning officials. Because Tackett preferred not to modify her structure, she requested that respondent obtain a variance. By then, Botner had put up string lines, laid boards for pouring concrete and dug some trenches. The value of this work was less than $1200. Although respondent now contends he had no authority or responsibility to do so, he agreed to make application for a variance by August 26 so that the matter could be taken before the local zoning board for final decision on September 17. However, he missed the August 26 filing deadline. Around September 15 Tackett learned that the application for a variance had not been timely filed and, in any event, it would probably be denied. Therefore, she decided "it was best to terminate" the contract. She also requested that Botner return her deposit. Although respondent promised to return the money on two occasions (September 18 and 22), he did not do so. When he did not meet the second deadline of September 22, she filed an action against Botner in small claims court the same date seeking to recover her $1200. On September 29, 1987, or a week after the small claims court action had been filed, respondent purchased a cashier's check in the amount of $1264 and had an employee, Larry Blevins, carry the check to Tackett. However, before returning the deposit, Blevins asked that Tackett sign a "release" which forbade her from making any complaints against DAP. Tackett declined to sign the release and was accordingly not given her money. By letter dated October 5, 1987 Tackett received an offer of $1263 from DAP's attorney but such payment was again conditioned upon her agreeing to "not register any complaint with any governmental or non-governmental agencies regarding (DAP)." She again declined the offer. On January 5, 1988 Tackett obtained a judgment in the amount of $1263 plus interest against Clyde S. Botner d/b/a Days Aluminum Products. To date, Botner has paid only $100 of that judgment. Botner conceded the judgment is still unpaid, except for one payment of $100, but contends Tackett has damaged his firm's reputation by filing complaints with the Better Business Bureau and the Board and obtaining a judgment in small claims court. He also contends that Tackett gave conflicting and untrue versions of what occurred to the Board investigator and the Better Business Bureau. He does not believe the judgment has anything to do with DAP or his license but instead is a purely civil matter. This is because he says the work in question could have been performed in Hillsborough County in 1987 without using his state license. Finally, he contends this proceeding is unjustified because he twice attempted to repay the money in 1987 but the customer refused his offers. There was no evidence of any prior disciplinary action having been taken against respondent.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsection 489.129(1)(m), Florida Statutes (1987) and that a fine in the amount of $750 be imposed. The other charge should be dismissed. DONE AND ENTERED this 11th day of August, 1989 in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 11th day of August, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2693 Petitioner: 1-3. Covered in finding of fact 1. Covered in finding of fact 2. Covered in finding of fact 1. Covered in finding of fact 2. 7-8. Covered in finding of fact 3. 9-11. Covered in finding of fact 4. 12-13. Covered in finding of fact 7. Rejected as being irrelevant to the issues. Covered in finding of fact 8. COPIES FURNISHED: Jack L. McRay, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Mr. Clyde S. Botner 1989. 4404 Devonshire Road Tampa, Florida 33634 Kenneth E. Easley, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Fred Seely, Executive Director Construction Industry licensing Board Post Office Box 2 Jacksonville, Florida 32202
Findings Of Fact The Respondent is a registered building contractor, having been issued license number RB 0010555. On December 12, 1980, Benjamin Kyler entered into a contract with Sweet E. Glover to construct a house for her at 2020 Southwest First Street, Ocala, Florida. At no time material hereto was Benjamin Kyler properly licensed to perform contracting in the State of Florida. The Respondent obtained the building permit to enable Benjamin Kyler to perform the construction contract with Sweet Glover. Benjamin Kyler received approximately $1,650, but he performed only a minimal amount of construction on the Glover residence. The Respondent knew that Benjamin Kyler was engaged in the construction of a residence for Sweet Glover, and the Respondent also knew that Benjamin Kyler was not licensed to contract in the State of Florida. The Respondent was paid a fee for pulling the building permit for Benjamin Kyler.
Recommendation From the foregoing Findings of fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Isaac Butler, be found guilty of violating Section 489.129(1)(e) and 489.129 (1)(f), Florida Statutes, and that his license be revoked. THIS RECOMMENDED ORDER entered on this 1st day of February, 1983. WILLIAM B. THOMAS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1983. COPIES FURNISHED: John O. Williams, Esquire 547 North Monroe Street Suite 204 Tallahassee, Florida 32301 Mr. Isaac Butler RFD 1, Box 752 Anthony, Florida 32617 Fred 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
Findings Of Fact On or about October 29, 1987, the Petitioner, Frederic T. Forrer, filed an application for a home improvement salesman's license. On February 1, 1988, the Respondent, the Department of Banking and Finance, Division of Finance (Department), entered an Amended Order Denying Home Improvement Salesman's License. The denial is based on: (1) nolo contendere pleas to two charges of criminal misapplication of funds in violation of Section 713.34(3), Florida Statutes; (2) revocation of Forrer's general contractor's license by the Construction Industry Licensing Board; (3) Forrer's insolvency; and (4) probation violations. Forrer's difficulties started with two construction jobs Forrer performed as a general contractor-the Mazzocco job and the Elliot job. On the Mazzocco job, Forrer entered into an arrangement under which John Mazzocco, husband of the owner of the home being renovated, would do some of the work and sub out some of the work. A dispute arose as to who was responsible for paying for over $1,000 of materials and labor and subcontracts Mazzocco ordered. Forrer claimed they were beyond the terms of the contract. On the Elliot job, which called for putting a second floor on Elliot's duplex, Forrer claimed that faulty engineering plans were responsible for a $6000 cost overrun within his first week on the project. Later, with the project about 90 percent complete, a dispute arose about responsibility for that and other cost overruns which Forrer and Elliot could not resolve. Forrer did not finish the job, and Elliot had another contractor finish it. Elliot claimed Forrer owed him about $8,000. In early 1987, John Mazzocco and Elliot both filed criminal charges against Forrer for violating Section 713.34(3), Florida Statutes (1985), for misapplication of monies paid to him for purposes of the Mazzocco and Elliot jobs. Forrer retained legal counsel and was advised to plead nolo contendere. On March 27, 1987, Forrer pled nolo contendere to the charges and was sentenced to five years probation conditioned on, among other things, payment of $237.50 court costs, $100 costs of prosecution, $250 to the court improvement fund, and restitution in an unspecified amount. Forrer's attorney did not advise him of any consequences of a nolo contendere plea on his contractor's license (or any other state license for which he might later apply) and estimated that the restitution probably would approximate $6000, the approximate attorney's fees for going to trial. Forrer agreed with his probation officer to pay $500 per month on his debts until they were paid and went to give the probation officer a money order for $500 on April 27, 1987. By this meeting, Forrer's local contractor's registration had been revoked, and he was expecting his state license to be revoked, too. At the meeting, Forrer was told the restitution would be approximately $31,000 to Mazzocco and $8,000 to Elliot. Forrer did not pay the $500 and called his attorney to withdraw his plea and go to trial. On May 8, 1987, Forrer's probation officer filed charges that Forrer had violated probation by not paying the $500. At the end of May, 1987, the judge denied Forrer's request to withdraw his plea and scheduled a hearing to set the amount of restitution. The probation violation charge remained pending. By this time, Forrer had become dissatisfied with his attorney and applied to the court for appointment of a public defender. In connection with his application, Forrer filed an affidavit on June 16, 1987, swearing that he was insolvent. The court granted the application and set the restitution hearing for mid-July, 1987. Meanwhile, Forrer began working for a roofing contractor, earning enough money to meet his living expenses and make reasonable payments on his probation obligations. After the July hearing, the judge set the restitution at approximately $39,000--$31,000 on the Mazzocco charge and $8,000 on the Elliot charge. A few days later, on July 17, 1987, Forrer went to his probation officer, who demanded an initial payment of $2711, apparently including payments due retroactively from April. Forrer denied ability to make the payment, and the probation officer told Forrer that he would file something to get the matter resolved-- namely, another probation violation charge. The probation violation charge was not heard until November, 1987. During this time, Forrer only made one $20 payment towards the cost of prosecution obligation and one $20 payment towards the court improvement fund obligation. At the hearing, the judge set monthly payments at $160 on the restitution to Mazzocco, $40 on the restitution to Elliot and $73 a month on the other items, for a total of $273 per month, which Forrer has been paying. In December, 1987, the Construction Industry Licensing Board revoked Forrer's license as a general contractor based on the convictions in the Mazzocco and Elliot matters and for diversion of funds received for a construction job, causing inability to fulfill contractual obligations, for failing to pay all subcontractors and suppliers, and for failing to properly supervise the projects. Forrer did not contest the charges, believing that it would be futile for him to do so. When Forrer lost his license, he also lost his job with the roofing company. He began to work in December, 1987, selling encyclopedias but quit because he was not making enough money to pay his living expenses and probation obligations. (He also supports a 16 year old son who Forrer says is hoping to go to college in a few years.) Forrer has lost his condominium (by foreclosure), the car he previously owned, his business and his wife. He remains insolvent and believes he is being denied the ability to earn a living. He says the roofing company for which he worked from June to December, 1987, would hire him back if he is granted the pending license application. Forrer still is on probation.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Department of Banking and Finance, Division of Finance, enter a final order denying the application of the Petitioner, Frederic T. Forrer, for a home improvement salesman's license. RECOMMENDED this 20th day of June, 1988 , in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 20th day of June, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1150 To comply with Section 120.59(2), Florida Statutes (1987), the following explicit rulings are made on the Respondent's proposed findings of fact: 1.-2. Accepted and incorporated. 3. Subordinate and unnecessary. 4.-6. Accepted and incorporated. COPIES FURNISHED: Frederic T. Forrer Post Office Box 24663 Tampa, Florida 33623 Stephen M. Christian, Esquire Office of the Comptroller 1313 North Tampa Street Suite 713 Tampa, Florida 33602-3394 Honorable Gerald Lewis Comptroller Department of Banking and Finance The Capitol Tallahassee, Florida 32399-0350 Charles L. Stutts, Esquire General Counsel Plaza Level, The Capitol Tallahassee, Florida 32399-0350
The Issue The issues in this case are whether Respondent violated Subsections 489.129(1)(g)1., (j) and (m), Florida Statutes (2004),1/ and, if so, what penalty should be imposed.
Findings Of Fact The Parties At all times relevant to this proceeding, Respondent was a certified general contractor in the State of Florida, having been issued License No. CG C1507065. Respondent's license as a general contractor was first issued on April 12, 2004, and is current and active. At all times relevant to this proceeding, Respondent was part-owner and the qualifying agent of a Florida corporation named Golden Rule Construction Group, Inc. (hereinafter referred to "GRCG"). The Board is the state agency charged with regulating the practice of contracting in the State of Florida pursuant to Chapters 455 and 489, Florida Statutes. Facts Related to Freedman Property On or about June 1, 2005, Barry Freedman (hereinafter referred to as "Freedman") entered into a contract to construct a room addition and remodel a bathroom at Freedman's residence at 2349 East Manor Avenue in Port St. Lucie, Florida. The pre-printed contract indicated that the contractor was GRCG. Also, the letterhead on the contract included the name "Golden Rule Construction Group, Inc." and the company's address, telephone number, fax number, and Respondent's general contractor's license number. The contract was executed by Freedman, as the homeowner, and Steve DiBenedetto (hereinafter referred to as "DiBenedetto"), as the contractor. All negotiations and presentations relative to the contract were between Freedman and DiBenedetto. The contract price was $52,652.00. Of this amount, Freedman paid $14,657.00, all of which was accepted by DiBenedetto as contractor for GRCG. Initially, on or about May 31, 2005, Freedman gave DiBenedetta a $10,000.00 check as a deposit for the construction project. On or about July 13, 2005, Freedman gave DiBenedetto a $4,657.00 check as a second payment under the contract. The payee on both checks was GRCG. DiBenedetta and a man identified as John Smith3/ commenced the bathroom remodeling project in June 2005 and satisfactorily completed that project by September 2005. The bathroom remodeling project was started and completed, even though no building permit had been pulled. Based on representations of DiBenedetta and/or John Smith, Freedman believed no permit was necessary for the bathroom remodel.4/ The Contract does not delineate or specify the cost of the room addition and the cost of the bathroom remodeling project. However, the value of the bathroom remodel was estimated by a qualified independent third party to be $7,804.00. The room addition was to begin in September or October 2005, after the plans for the addition were completed. The plans were never provided by GRCG, and it never commenced work on the room addition as provided for in the Contract. Eventually, Freedman went to the architect and purchased the plans for the room addition in order to move forward on the project. After completing the bathroom remodel, GRCG abandoned the project and never began the room addition that was provided for in the contract. The amount paid by Freedman to GRCG, $14,657.00, exceeds the value of the work performed by $6,853.00. Facts Related to Ekstrom Property On or about October 28, 2004, Larry Ekstrom (hereinafter referred to as "Ekstrom") entered into a contract (hereinafter referred to as "Ekstrom Contract") with GRCG to construct a new home a 117 Creek Drive in Port Charlotte, Florida (hereinafter referred to as "Eckstrom property"). The Ekstrom Contract was executed by Ekstrom, as the owner, and Keith Powell, as the contractor. The Ekstrom Contract price was $808,306.31. The Ekstrom Contract provided that work on the construction project was to commence upon issuance of the permit by Charlotte County. In accordance with that contract, after the permit was issued, GRCG began work on the construction project at the Eckstrom property. Eckstrom's understanding was that, pursuant to the Eckstrom Contract, GRCG would request periodic payments from Eckstrom that would be used to pay for materials, suppliers, and sub-contractors. Ekstrom made two payments to GRCG as payment for the project under the Ekstrom Contract. The first payment in the amount of $40,420.00 was made on October 29, 2004, when the Ekstrom Contract was fully executed. The second payment in the amount of $82,900.59 was paid to GRCG on or about March 3, 2005, as a "progress payment" under the terms of the Ekstrom Contract. On or about July 1, 2005, a Claim of Lien was recorded against Eckstrom's property by Tom Brunton Masonry, Inc. (hereinafter referred to as "Brunton Masonry"), for $18,029.91. The Claim of Lien was for the unpaid costs of labor, services, and materials furnished by Brunton Masonry for improvements to the Ekstrom property at 117 Creek Drive from April 2005 until May 2005. According to the Claim of Lien, Brunton Masonry provided the subject labor, services, and materials pursuant to a contract it had with GRCG. The Claim of Lien indicated that the total value of the labor, services, and materials furnished by Brunton Masonry was $39,243.91, "of which there remains an unpaid balance of $18,029.91." Eckstrom successfully negotiated with Brunton Masonry and the $18,029.91 lien was reduced to $14,000.00. On or about October 25, 2005, Eckstrom paid Brunton Masonry the negotiated amount of $14,000 to satisfy the Claim of Lien. On or about August 2, 2005, a Claim of Lien was recorded against the Eckstrom property by Murphy Concrete Works, Inc. (hereinafter referred to as "Murphy Concrete"), for $35,400.00. The Claim of Lien was for labor and material furnished by Murphy Concrete to perform concrete work on the Eckstrom property in accordance with a contract with GRCG. According to the Claim of Lien, the subject labor and materials were furnished between March 4 and 11, 2005. In order to remove the lien from his property, in or about September 2005, Eckstrom paid Murphy Concrete $35,400.00 to satisfy the Claim of Lien. Eckstrom paid a total amount of $49,400.00 to satisfy the above-referenced liens against his property. In April, May or June 2005, Eckstrom had a conversation with Keith Powell, in which Powell told Eckstrom that there was a company takeover by one of GRCG partners. In or about early summer 2005, GRCG stopped work on the Eckstrom property. Prior to that time, GRCG scraped and filled the lot and put in the foundation footers and stem wall. Prior to the liens being recorded against the Eckstrom property and after GRCG had ceased working on the property, Mr. Powell talked to Eckstrom and offered to complete the construction project. However, because previous discussions and representations with Powell had not yielded any positive results, Eckstrom had no confidence in Powell and, thus, did not accept Powell's offer. After GRCG ceased work on the Eckstrom property for more than 90 days, Eckstrom contracted with Towles Corporation to complete the construction project. Towles completed the construction of the house at a cost of $934,000.00.5/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, the Department of Business and Professional Regulation, Construction Industry Licensing Board, enter a final order: (1) finding that Respondent, Keith C. Powell, violated Subsections 489.129(1)(g)1., (j), and (m),6/ Florida Statutes, and imposing a $1,000.00 fine for each violation, for a total of $3,000.00; (2) requiring Respondent to make restitution to Barry Freedman in the amount of $6,853.00; (3) requiring restitution to Larry Eckstrom in the amount of $49,400.00; and (4) requiring Respondent to attend a minimum of seven additional hours of continuing education. DONE AND ENTERED this 31st day of January, 2008, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2008.
The Issue The issue to be determined is whether Respondent violated section 489.129(1)(i), Florida Statutes (2009), by violating section 489.126(2)(a), as alleged in the Amended Administrative Complaint, and if so, what penalty should be imposed?
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of the construction industry pursuant to section 20.165 and chapters 455 and 489, Florida Statutes. At all times material to these proceedings, Respondent has been licensed as a certified residential contractor in the State of Florida, having been issued license number CRC 057893 in May 2000. During all times material to these proceedings, Respondent has been the primary qualifying agent of Jacksonville Home Improvements, Inc. (JHI). Respondent has been the subject of prior discipline. On or about April 6, 2012, the Construction Industry Licensing Board issued a Final Order against Respondent in Case No. 2011015263, for violating section 489.129(1)(q), Florida Statutes (2009) (failing to pay a civil judgment related to the practice of contracting within a reasonable time). The Final Order imposed an administrative fine in the amount of $500.00, costs in the amount of $246.21, and payment of restitution in the amount of $39,500, or satisfaction of the outstanding civil judgment. On or about July 12, 2012, Respondent’s Motion for a payment plan was denied, and the decision was memorialized by order dated October 11, 2012. As a result of the prior discipline, the records for the Department indicate that his license is currently suspended for failure to comply with the Final Order described in paragraph four. Respondent is also the subject of several other Administrative Complaints, submitted as Petitioner’s Exhibit 3. The resolution of these complaints is not at issue in this proceeding, and no evidence was submitted to demonstrate the validity of these complaints. Petitioner’s Exhibit 3 was admitted solely for the purpose of determining penalty in accordance with the Board’s disciplinary guidelines, which will be discussed below. On or about January 12, 2010, Respondent, d/b/a JHI, entered into a contract with Theresa Smith for renovations of her home at 2266 Mangrove Lane, Green Cove Springs, Florida. Ms. Smith’s home had been damaged in a fire, and she and her son were living in an RV on the property until the home could be repaired. The job involved a structure which is attached to an existing mobile home. The contract price for the job described in the initial contract is $46,700. The contract specified that Respondent would obtain a permit to complete the listed work; further specified that Respondent would provide all necessary architectural drawings and engineering; and that all specifications and engineering would meet existing state and local building codes. The contract required that Ms. Smith pay a retainer of $14,010, representing 30 percent of the contract price. Further payments under the contract consisted of an additional 30 percent upon framing and new roof; 30 percent upon plumbing, electric, A/C, and windows; and 10 percent upon completion. On or about January 19, 2010, Respondent accepted a check from Ms. Smith for $14,010.00, representing the retainer specified in the contract. A standard permit application form must be submitted as part of any permit application to the Clay County Building Department. The application must be complete before the Building Department will accept it for processing. Respondent did not submit a permit application for the job at 2266 Mangrove Lane until March 24, 2010. The application submitted was signed by Ms. Smith on March 15, 2010, and signed by Respondent on March 24, 2010. No earlier permit application was ever submitted by Respondent to the Building Department for this project. Respondent claims that he did not know that he would be required to have engineered drawings for the project until he inquired at the building department on or about January 19, 2010, and received a call telling him of the requirement the next day. In his view, these discussions with the building department were sufficient to meet the filing requirement even though he admits he submitted nothing on the day he spoke to staff at the building department. His claim is belied by the language of the contract itself. As noted in paragraph eight, the contract specifically indicates that the contractor will provide all necessary architectural drawings and engineering, and that all specifications and engineering will meet existing state and local building codes. These provisions do not appear to be part of the form used for the contract, but instead are part of the specifications for this job. The representation made to the homeowner receiving the proposed contract is that these issues were already contemplated. He also claimed that after the contract for this project was executed, “the governor” changed the law related to the type of structure involved, leaving the project to the mercy of the local official.1/ No evidence of this supposed change was introduced. On or about May 25, 2010, the parties executed an Addendum to the contract, providing for additional work to be performed and requiring an additional payment of $14,711.00. The total cost of the job, with the work described in the Addendum included, was $61,411.00. Ms. Smith has paid a total of $56,731 to complete the repairs on her home. To date, over three years after signing both the initial contract and the Addendum, the construction on the home is far from complete. The air conditioning, duct work, drywall, carpet, flooring, and fixtures still must be installed, and the siding needs to be replaced. Although Respondent has promised he will complete the project, Ms. Smith does not believe he will ever complete the work. She cannot live in the home, and she and her son continue to live in an RV parked on the property. Ms. Smith sought and received an estimate in February 2003 to complete the work on her home and bring the structure up to code. The proposed contract price is $63,900.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board enter a Final Order finding that Respondent violated section 489.216(2)(a) and therefore violated section 489.219(1)(i). It is further recommended that the Department impose an administrative fine of $5,000; assess costs to be determined by the Board; suspend his license for a period of two years; and that he be directed to pay restitution to Theresa Smith in the amount of $56,731.00 (the amount she paid him on the contract). DONE AND ENTERED this 29th day of May, 2013, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 2013.
The Issue The following issues were raised in the facts presented at hearing: Was Combs' affidavit executed in accordance with provisions of Section 215.19, Florida Statutes? Were the construction projects upon which Combs worked exempt from the provisions of Section 215.19, Florida Statutes? Did Combs settle the claims presented?
Findings Of Fact Keith Dwaine Combs was an employee of Acco Mechanical Contractors, Inc., on three related projects at Broward County Community College, the trustees of which were the contracting authority. Combs' duties were those of a sheet metal worker. He was paid $5.50 per hour. The prevailing wage for these projects for sheet metal workers was $10.55 per hour as established by the Department of Commerce. Combs worked 240 hours on these projects and prepared an affidavit claiming he was under paid $1,212. Combs then worked an additional 80 hours on a related prevailing wage job and amended his original affidavit by adding the additional 80 hours and $404 to the amount of his claim. Combs initiated these additions to his original affidavit and resigned the affidavit, claiming a total of $1,616. Combs did not have the affidavit renotarized after he had made the amendments. Combs filed his claim with District Board of Trustees for Broward County Community College. Combs then entered into negotiations with Acco Mechanical Contractors, Inc., and eventually accepted payment of $597 less FICA and withholding taxes in settlement of his claims, and executed a release of all pending claims against Acco.
Recommendation The Hearing Officer recommends that the claim of Keith Dwaine Combs be denied. DONE and ORDERED this 13th day of April, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: L. Byrd Booth, Jr., Esquire 2900 East Oakland Park Boulevard Post Office Drawer 11088 Fort Lauderdale, Florida 33339 Jeff M. Brown, Esquire 3705 North Federal Highway Post Office Box 1138 Boca Raton, Florida 33432 Mr. Luther J. Moore Administrator of Prevailing Wage Division of Labor 1321 Executive Center Drive, East Tallahassee, Florida 32301
