The Issue Whether disciplinary action should be taken against Respondent's license to practice contracting, license number CG C033931, based on the violations of Section 489.129(1), Florida Statutes, as charged in the Administrative Complaint filed against Respondent in this proceeding.
Findings Of Fact Based on the evidence and testimony of the witnesses presented and the entire record in this proceeding, the following facts are found: Reeves is a Florida State certified general contractor, having been issued license number CG C033931 by the Florida Construction Industry Licensing Board (CILB). Licensure status is "Active Issued." Reeves is registered or certified with the CILB as an individual. The Scope of the Project Sometime prior to October 1998, Beach retired, came to Florida, and needed a place to live, so she decided to ultimately reside in a trailer. Beach has health problems, which require special living accommodations and changes to the trailer she purchased, including ramps and a bathroom to facilitate the needs of a handicapped person. Beach was unfamiliar with trailer life and wanted to ensure that her trailer was "fastened securely to the ground." Based on suggestions made by three (3) different contractors, Beach decided to design a "roof over coming out eight feet on either side of the existing trailer and tying it to the ground securely so that the trailer was then encased in the roofing over." Beach developed the plans for the project, which were approved by the local planning and zoning department. After discussing the matter with Reeves, Beach also decided to have porches on both sides of the trailer, "taking advantage of the overhang that the roofing-over afforded." Beach and Reeves discussed other details, such as the need for a walk- in closet off of the bedroom, a whirlpool tub, replacement of the upper kitchen cupboards, improvement of the duct work in the kitchen and living areas, screening of the front porch and windows on the back porch (a sun room), enlargement of the bathroom and made "handicap-accessible," and replacement of the doors and ramps. The Written Proposal and "Extras" On or about November 2, 1998, Reeves entered into a written contractual agreement, i.e., the "Proposal" dated October 26, 1998, with Beach, to construct addition(s) and other items to her trailer-home located at 2170 Maryland Street, Lanark Village, Florida. The written Proposal states in material part: We will supply all labor and materials to complete the following at your residence: Build a new freestanding roof over existing trailer and extend roofline to cover front and back porches. Build a new front porch with approximately an 8' x 24' screen section and ramp on opposite end. Rebuild back porch to 8' x 24' and install windows. Enlarge bathroom and make a walk-in closet. Inspect and improve existing duct work for better air flow. Enclose gable ends of new roof and tie in to existing trailer. Install new upper cabinets in kitchen (allowance $500.00). WE WILL PERFORM THIS WORK FOR THE SUM OF $20,900.00) (TWENTY THOUSAND NINE HUNDRED DOLLARS). Beach agreed to make payments "as work progresses." The original contract price for the additions to the trailer was $20,900.00. The Proposal contained no language of access to the Construction Industry Licensing Fund. At the time of executing the Proposal, Reeves told Beach that a subcontractor was not necessary for the electrical and plumbing work. Reeves and Beach also discussed several "extras" which were added to the Proposal. Beach and Reeves made a verbal agreement for additions or extras to the original Proposal that included siding ($2,700.00), a fireplace, and an extension of one of the ramps, in exchange for not replacing the cabinets. These changes increased the total contract price to $24,200.00, which was paid by Beach. See Finding of Fact 33. Also in November 1998, and before she signed the Proposal, Beach prepared a list, in her handwriting, of plumbing and kitchen items she saw at Home Depot, which she needed for the job and she gave the list to Reeves. According to Beach, Reeves "followed through and got everything [on the list] except for the shower door." Reeves applied with the Franklin County Building and Zoning Department for permits to perform the work on the Beach trailer and the permits were issued. The Franklin County Building Code requires inspections, but does not state when they are to be performed. It is not unusual to perform more than one inspection at a time, especially where, like Franklin County, there is only one inspector for the entire County. Reeves did not ask for an inspection of the work done on the trailer. Work begins on the trailer and problems arise After the Proposal was signed and the verbal additional items agreed to, on November 4, 1998, Reeves commenced work on the project. At this time, Beach was living in a motor home. The roof line built by Reeves covered the back and front porches. Reeves built a new front porch with an approximately an eight foot by twenty-four foot screen porch and a ramp on the opposite end as required by the Proposal. He also added three other ramps, which are not mentioned in the Proposal. By letter dated April 15, 1999, Beach responded to an invoice submitted to her by Reeves. The record does not contain a copy of the invoice, which seems to have been dated March 31, 1999. However, Beach's letter indicates that Reeves submitted a bill for an additional $4,240.00 (which did not include $2,700.00 for siding), above the original Proposal price of $20,900.00. Beach says that only $975.00 are valid charges for "verbally agreed upon additions to the contract." (Beach says that she paid Reeves $600.00 for the extras which was included in her check of December 16, 1998, for $5,000.00.) Reeves' invoice was the first bill for any extras discussed by Beach and Reeves. According to Beach, they discussed the necessity of having additional ramps, and Reeves did not say there would be an additional charge, and it was discussed "as if it was part of the ongoing project." According to Beach, work progressed through November and slowed during Thanksgiving week. Into December, Beach says that Reeves came to the work site "less and less" and the workmen did not have either the necessary materials or equipment and also came "less and less." She tried to contact Reeves. According to Pendleton, who worked for Reeves on the Beach project, for the first three weeks to a month after commencing the project, Reeves was on-site every day. According to Pendleton, the job took longer than expected because of the many changes requested by Beach. For example, after the trailer was "roofed," Beach "wanted her outside ceiling closed into her trailer." They added "a furnace on the back porch," "put marble sills in her window of her trailer," and "furred out her whole wall to put paneling on the trailer." The original plans called for one ramp, but three were added. As work progressed, Beach expressed objections to Reeves regarding the workmanship on the screened-in porch and floorboards and the need to eliminate bugs from entry. They also discussed the build-up of heat in the roof because the roof was "trapping hot air in." Reeves treated the roof area, an extra, which Beach acknowledges. Beach reported other problems to Reeves, including but not limited to, a leak in the shower and an unsealed drain in the shower, which caused a flood in the bathroom, and "a two-foot hole cut in the floor around the plumbing that was left open to the outside." This was on the punch list she gave to Reeves. She pled with Reeves to finish the job, but he said that "[t]his w[ould] be the last day [he would] be coming" and that "he had other things he had to do." According to Beach, "things deteriorated," and she saw very little of Reeves into January and did not see much of him at all by the end of January. Beach was frightened and did not know what to do but "struggled along with [Reeves'] workmen," i.e., Richard Norman (Norman) and Pendleton, the main workmen, who did the plumbing for the shower. When Reeves was no longer on-site daily or all day, Norman and Pendleton were on-site. Another worker, Bob Lanceford quit because of the changes requested by Beach and her "flip- flopping." At some point in time after the trailer roof-over was completed and other work performed, including work on the back porch, Reeves and Beach discussed the punch lists written by both and that he had given the list to his workmen. Beach recalls the conversation and that Reeves said it was going to be his last day there. Beach recalls Norman staying to finish the skirting and Jody Fechera putting the siding on the inside of the sun porch, but that "the guys really didn't work on [the punch list] that much." Beach felt that she had to supervise Pendleton regarding hooking up the shower during this two-week period. Pendleton says that he and the others were working off of the list Reeves gave him during the last couple of weeks he was on the Beach job. Pendleton could not get the work done on the list because Beach "stood over [them] telling [them] to do other things and [they] never could get to that list." The list included adding hurricane clips and exterior work. None of these tasks were completed. Pendleton recalls Reeves telling him that he and "Rich" would have to leave the Beach site in a couple of days and to make Beach happy because they could not return until Edwards returned. Pendleton understood that they were to return to the Beach site and finish the job after Edwards finished the plumbing and electrical work. There is a dispute whether, during a two-week period after the punch lists were written, Beach was supervising Reeves' workmen including Pendleton. In or around the end of February 1999, Reeves advised Beach of problems he was having with the bathtub and needed Edwards "to do it." Reeves also needed Edwards, licensed to do plumbing and electrical work, to move the electrical panel box, which was accomplished. According to Beach, this was the first time Reeves advised Beach that he could not do plumbing or electrical work. Beach says that Reeves told her on the day they signed the Proposal that he would not have to subcontract for any of the plumbing and electrical work. Reeves admitted to doing plumbing and electrical work on this and other projects, although both of these types of work require specific licenses. Reeves recommended to Beach that Edwards perform these tasks. According to Pendleton, Edwards was "to come over and do all of the plumbing and wiring." It took Edwards quite a while to get to the Beach project. Edwards "pulled the permit for the electrical unit." He "made the old panel hot." He installed the breaker box and connected it to Beach's trailer. Edwards fixed the shower head and the drain plug, which was a major leak. He also fixed the plumbing. Edwards fixed some other problems he noticed, but he did not know whether these problems pre-dated Reeves' tenure on the project. In October 1998 and prior to Reeves' commencing work on the Proposal, Beach had a man drilling a well on her property. In February or March of 1999, Beach "got the idea of moving the tank back . . .." Edwards came to the Beach trailer on March 10, 1999, and installed the electrical panel and moved the tank at the same time. It took Edwards a few weeks to accomplish these tasks from the time Reeves and Beach discussed these items. Beach paid Edwards to move the electrical panel to the end of the house and move the water tank and installing it under the carport and some electrical and plumbing repairs. Beach paid Edwards $1,580.00, of which $700.00 of the bill, according to Beach, was for correcting plumbing and electrical errors made by Reeves or his workmen. In early March 1999, Ron Jackson (Jackson) advised Beach that Reeves had "run up a $9,435[.00] bill" at Ace Hardware in her name which remained unpaid and that a lien would be filed on her house. At this time, Beach filed a complaint with the local building department and hired an attorney to assist her with the lien. Apparently the lien was not timely filed and not successfully pursued. Beach also filed a complaint with the Department. Beach was unaware of any amount still owed on her job to others, which Reeves performed and did not pay. By letter dated March 30, 1999, Reeves apologized to Beach for not paying Jackson timely and told Beach he intended to pay Jackson, whether Beach paid him or not. On March 17, and April 21, 1999, a hearing was held before the Franklin County Construction Industry Licensing Board. This Board issued a verbal warning to Reeves "for operating outside his scope of work in the field of electrical and plumbing." Reeves advised the Board that he would not "do any electrical or plumbing until he is licensed to do the work or he will hire license[d] people." On April 7, 1999, Beach, having been living in a motor home during this time, decided to live in the trailer and discovered the flooding problems in the bathroom; everything in the kitchen leaked; and the commode was unsteady and leaked. Reeves returned to "stabilize it," but apparently Beach had to pay Edwards to repair the leaks in the bathroom. At some time after March, Reeves ceased performing on the project altogether. The project was not complete. Beach pays Reeves By check, Beach paid Reeves $4,000.00 on November 11, 1998, to get started; $10,000.00 on November 12, 1998; $2,500.00 on November 20, 1998; $5,000.00 (which included an estimated cost of $600.00 for extras according to Beach) on December 16, 1998; and $2,700.00 (for siding which was an agreed-upon extra) on January 28, 1999, for a total of $24,200.00. Beach had to estimate how much the extra work performed would cost based on the verbal price given by Reeves. The January check was the price for constructing a new one-sided exterior portion, along with the insulation, of the trailer. Beach paid out-of-pocket expenses on repairs and estimates for work which arguably should have been done pursuant to the Proposal and agreed-upon extras. These total approximately $2,560.29. See (Pet. Exh. 5- $990.29; Pet. Exh. 7- $120.00; Pet. Exh. 8- $750.00; and, Pet. Exh. 13- $700.00). Beach also paid for other estimates and repairs as noted herein which were not proven to be directly connected to work performed or not performed by Reeves. See, e.g., Findings of Fact 37-38. Problems identified with the condition of the trailer During the final hearing, Beach identified several photographs, she took over a period of time-April through June, 1999-of her trailer from the inside and outside and identified various problems with the workmanship performed or not performed by Reeves. According to Beach, the photographs show the trailer "after Mr. Reeves finished the project, or Mr. Reeves worked on the house." These problems included an outside electrical switch installed with wires exposed; exposed receptacle outlet; unfinished bathroom trim, which was minor according to Beach; fan cover left hanging on the kitchen ceiling; exposed hole around light fixture in the closet, which Norman could not repair; a fan hanging down in the bathroom, with hole cut too large; water running out from the shower because of an improper drain installation; unsealed shower drain; shower door leak-not caulked; no cutoff valve on the toilet; unsteady commode; no insulation and unprotected plumbing coming up through a hole where the bath tub is located; marble skirt to whirlpool tub destroyed by Edwards' men who had to cut through the marble in order to access the tub; panel to tub which is open and allows air and bugs to enter; tub motor not plugged into a ground fault receptacle; drywall in the bedroom closet, which was new construction, which had to be torn out to repair; wet carpeting which had to be removed; leak in the shower caused by brass plug in plastic line; support posts under the roof not nailed and without hurricane clips (photographs taken in August 1999 after Summerhill and some of the neighbors told her there were no nails on that side of the house holding the roof down); and exposed rafters which allowed squirrels to run down the chimney. Beach asked Greg Mathis, a licensed (City of Tallahassee) plumber, to determine the extent of repairs which were required on her trailer. On or about November 18, 1999, Mathis examined the plumbing in the Beach trailer and gave Beach an estimate for the repairs and charged $135.00 for the estimate, which included his travel time to the Beach trailer in Carrabelle. Mathis charged Beach $670.00 for the repairs including $445.00 for labor and $225.00 for materials. The repairs included applying putty and installing a Delta repair kit on a new faucet in the kitchen; repair of a "fairly new drain" which was leaking in the lavatory; resetting of the toilet which was wobbling and application of caulk; replacement of the whirlpool stopper; repairing the "whole tub waste"; and connection of a drain to a bar sink, which had hot and cold water to it. Mathis also gave Beach an estimate of $185.29 to repair the shower drain and valve. Mathis was unaware who did the plumbing he saw. Brian Will has a State certified building license. Beach asked him to inspect her trailer and give her an estimate of the costs for repair. Will performed a site visit to Beach's trailer on November 22, 1999, and charged Beach $175.00, after a $175.00 Christmas discount, for the inspection and written report dated December 16, 1999. After inspecting the trailer, Will identified problems with the trailer, including a recommendation that Beach secure an engineering report on the foundation, roof framing and uplift connections; installation of a "properly ducted and vented (range termination kit) range hood" in the kitchen; insulate ceiling; improvement to the fireplace clearance; increase vent attic space; and other items. The fireplace issue and "wind loading connection" could be life safety issues. The estimated cost was $9,375.00, although Will stated he is "seldom the low bid guy." Will did not review the Proposal nor the plans and specifications. Will did not know what Reeves and his workmen did or did not do on the Beach trailer. He made no assumptions as to who did any of the work on the trailer. Beach told him that someone added some additional hurricane clips and installed a gable vent or fan. She did not comment to him whether Reeves finished the job. Will identified portions of the trailer that did not appear to him to be finished and that did not meet the building code. Robert J. Pietras, while not a licensed contractor, is a self-employed laborer and has experience in construction, "everything from footers on up to trim carpentry." In or around September 1999, Beach asked him to inspect the trailer and determine what was necessary to make the trailer stronger for hurricane resistance. He found eleven (11) hurricane clips missing and a support post holding up a carrying beam that was not nailed. Some hurricane clips had been placed and set right on the rafters, but the job was incomplete. There were no uplift straps on any of the exterior beams. However, he felt he needed to remove the paneling on the back porch to add the clips from the inside. Pietras could not say whether there were hurricane clips on the outside soffitt. He made the changes. Pietras was also told, by John Summerhill, there was insufficient ventilation in the attic or roof-over, so he added a commercial louver and also framed up to add a fan to draw excess heat. Pietras agreed that if the new enclosed roof-over, constructed by Reeves, had not been enclosed, there would not have been any ventilation problem. He was paid $30.00 for adding the hurricane clips and the tie-down straps. He was not paid approximately $90.00 for work done. Any additional work he recommended was put on hold. Summerhill has air conditioning and electrical licenses and has been in business in Franklin County since 1991. Beach asked him to inspect her trailer and identify electrical problems in or around September 1999. Summerhill did not see the Beach/Reeves Proposal and was unaware of the scope of Reeves' work, including what Reeves did or did not do regarding any electrical problems perceived by Summerhill. However, Beach told him that Reeves did all of the electrical and plumbing. He noticed the absence of hurricane clips on the outside and that a four-by-four post on the south corner did not have nails in the top. He charged Beach $150.00 to install an exhaust in the attic for ventilation which Beach paid. Summerhill also noticed other problems with, for example, waterproof covers needed for the receptacle and switch on the porch, need for ground fault receptacles, and other items. He quoted $600.00 for labor and materials to make these repairs and replace needed items. Summary of work left undone and repairs needed The Department proved by clear and convincing evidence that Beach and Reeves agreed to the terms of the Proposal and several extras; that Beach paid Reeves $24,200.00, which exceeded the amount originally quoted in the Proposal, i.e., $20,900.00, and included payment for extras, including $2,700.00 for siding and $600.00/$5,000.00 for other extras; that the workmanship performed by Reeves, and others on his behalf, was incomplete and in some cases poorly done which required repairs by others; that Beach paid for repairs; that Reeves left the project with work outstanding; that Reeves, and or his workmen, performed electrical and plumbing services while not being licensed; and that Reeves did not refer to the Construction Industry Recovery Fund in the written Proposal. The Department also proved by clear and convincing evidence that the Beach trailer is in need of substantial repairs and further inspections. See, e.g., Findings of Fact 37-38. However, and in particular, Will, who performed a major inspection of the trailer, did not review the Proposal or the plans and specifications and did not know what Reeves and his workmen did nor did not do on the Beach trailer. Therefore, the Department did not prove by clear and convincing evidence that Reeves was responsible for the repairs suggested by Will. Mitigation Reeves has built several State Housing Initiative Partnership (SHIP) homes for the SHIP program in Franklin County to the satisfaction of the County's SHIP administrator, Ms. Shirley Walker. Ms. Walker was not aware of any complaints with Reeves' work over the past four (4) years. Probable Cause is found by the CILB On September 27, 2000, a two-member panel of the CILB found probable cause against Reeves. There was no finding of "no probable cause" by the CILB regarding the Reeves and Beach matter which is the subject of this proceeding. Reeves' prior disciplinary history Reeves has a prior disciplinary history with the CILB and the Department regarding his license. On October 8, 1992, in Case No. 91-11103, the CILB imposed an administrative fine of $1,700.00. On October 24, 1996, the CILB, in Case No. 95-07490, imposed an administrative fine of $2,000.00, restitution of $28,501.39 based on an unsatisfied civil judgment, $119.53 in costs, and two (2) years of probation. Both cases were resolved without a final evidentiary hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be rendered as follows: Suspending Reeves' licenses to practice contracting for six (6) months, requiring Reeves to pay an administrative fine in the amount of $5,000.00, and requiring Reeves to complete continuing education, with the subjects and hours to be determined by the CILB. Assessing costs of investigation and prosecution, excluding costs associated with an attorney’s time, in the amount of $1,302.91. Requiring Reeves to pay restitution to Beach in the amount of $2,560.29, representing the amounts paid by Beach for estimates and for work performed or ill-performed by Reeves which, on this record, are attributable to Reeves. DONE AND ENTERED this 13th day of June, 2001, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS 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 13th day of June, 2001. COPIES FURNISHED: Patrick Creehan, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32308 Danny L. Reeves 267 Carroll Street Eastpoint, Florida 32328 Kathleen O'Dowd, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact Respondent, Department of Community Affairs, is the state land planning agency charged with the responsibility of administering the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. The Department has the authority to appeal to the Florida Land and Water Adjudicatory Commission any development order issued in an area of critical state concern pursuant to Sections 380.031(18), 380.032, and 380.07, Florida Statutes. At all times pertinent to this proceeding and to DOAH Case Number 93- 7165DRI, Petitioner, Fred Snowman, owned the real property known as Lot 75, Matecumbe Ocean Beach subdivision, Lower Matecumbe Key, in Monroe County, Florida (the subject property). A building permit issued by Monroe County, described below, for this property was the subject of DOAH Case Number 93- 7165DRI (the underlying proceeding.) The lot is approximately 100 feet wide and, at different points, between 200 and 225 feet deep. The subject property is bounded on the landward side by U.S. 1 and fronts the Atlantic Ocean in an area known as Matecumbe Beach. Matecumbe Beach is a known resting and nesting habitat for marine turtles. This building permit constituted a development order on property within the Florida Keys Area of Critical State Concern. On September 30, 1993, Monroe County issued to Mr. Snowman, as the owner and general contractor, building permit number 9330008850, which authorized the construction on the subject property of a single-family residence containing 2,472 square feet of heated and cooled area, 1,568 square feet of porches, 1,435 square feet of storage enclosure below base flood elevation, and a swimming pool. The authorized construction was to be consistent with the building site plan, which was also approved by Monroe County. On November 18, 1993, the Department timely appealed the subject building permit to the Florida Land and Water Adjudicatory Commission (FLWAC) pursuant to Section 380.07, Florida Statutes. FLWAC referred the matter to the Division of Administrative Hearings where it was assigned DOAH Case Number 93- 7165DRI. A formal hearing was conducted in DOAH Case Number 93-7165DRI in Key West, Florida, on June 30, 1994. Following the formal hearing, the parties were afforded the opportunity to file post-hearing submittals. Thereafter, a recommended order was entered which recommended that FLWAC enter a final order that dismisses the Department's appeal. After the entry of the recommended order, the Department voluntarily dismissed its appeal. FLWAC subsequently entered a final order of dismissal. Petitioner, Fred Snowman, was the prevailing party in DOAH Case Number 93-7165DRI. SMALL BUSINESS PARTY The issue as to whether Petitioner is a "small business party" as defined by Section 57.111(3)(d), Florida Statutes, was disputed by the Department in this proceeding. The parties stipulated that Mr. Snowman meets the remaining criteria contained in Section 57.111, Florida Statutes, for an award of attorney's fees and costs. The following testimony elicited by Petitioner's counsel of the Petitioner was the sole evidence pertaining to the number of employees of the Petitioner: Could you tell us a little bit about your business? What's the nature of your business? Primarily I'm a speculation - spec builder and general contractor in the Florida Keys, and have been since 1973. Q. How many employees do you maintain on a regular basis? A. I mainly have subcontractors. Occasionally when I have a job, I hire for that particular job. But I'm the sole proprietor and I'm the employee. (Transcript, page 9, lines 12-22.) While the foregoing testimony establishes that as of May 15, 1995, Petitioner was the sole proprietor and sole employee of his business, it does not establish that Petitioner had fewer than 25 employees in 1993 when the Department initiated its actions against him. 1/ The following testimony elicited by Petitioner's counsel of the Petitioner pertains to his net worth: Q. What is your net worth? Let me ask you this. Does your net worth exceed a million dollars? A. No. Q. Less than a million dollars? A. Yes. (Transcript, page 9, line 23 through page 10, line 3) The following testimony elicited by Respondent's counsel of the Petitioner on cross examination also pertains to his net worth: Q. When you're identifying your net worth, what exactly are you considering? A. Well, net worth is all my assets minus my liabilities. Q. All of your personal assets? A. Which are far and few between (sic) today. Q. Do you have business assets? A. No. Q. Do you own any property? A. Lot 75. Q. Any property other than Lot 75? A. I own three lots, small lots in Plantation Key. Q. Are they developed or undeveloped? A. No, they're undeveloped. Q. Do you know how much they're worth? A. They're valued at fifteen thousand per lot. Q. They're not on the water? A. Not on the water. Q. Lot 75, do you know what that property's worth? A. That property is worth about a hundred and seventy-five thousand. Q. Without the house on it? A. Without the improvements, yes. Q. How about in its improved condition? A. I would say, in the improved condition, with this home, it would be about five hundred thousand. Q. Okay. Other than the real estate, do you have any personal or business investments, stocks or -- A. No. Q. No? A. Just my condo. (Transcript, page 10, line 8 through page 11, line 13.) There was no other evidence presented as to Petitioner's net worth. While the foregoing testimony establishes that as of May 15, 1995, Petitioner had a net worth of less than two million dollars, it does not establish that his net worth was below that figure in 1993 when the Department initiated its actions against him. SUBSTANTIAL JUSTIFICATION The Department's appeal initially raised several issues. All issues in the underlying proceeding but one were voluntarily dismissed by the Department either prior to the hearing or at the hearing. The only issue litigated at the formal hearing in DOAH Case Number 93-7165DRI was the appropriate setback from the portion of the beach-berm complex located on the subject property known to serve as an active nesting or resting area of marine turtles. Pertinent to this proceeding, Section 9.5-345(3)(f), Monroe County Code, provides: f. No structure shall be located within fifty (50) feet of any portion of any beach-berm complex which is known to serve as an active nesting or resting area of marine turtles, terns, gulls or other birds; There was no dispute in Case 93-7165DRI that the turtle nesting setback applied to Mr. Snowman's property. The dispute was how to apply the setback. There was a bona fide factual dispute as to the extent of the beach berm complex on the subject property that should be considered to be "beach berm complex which is known to serve as an active nesting or resting area of marine turtles" within the meaning of the setback ordinance. The Department established that it followed its standard procedures in deciding to appeal the subject development order. The Department maintains a field staff in the Florida Keys that routinely reviews development orders issued by Monroe County for consistency with the land development regulations, the Monroe County comprehensive plan, and Chapters 163 and 380, Florida Statutes. The permit package typically reviewed, and reviewed in this case, includes the permit, a permit conditions sheet, surveys, and site plans. The Department staff usually reviews a biological survey or habitat evaluation index, reviews the County's entire file, reviews aerial photographs and conducts a field assessment. In this case, the Department also looked at records of the Department of Natural Resources and of the Save A Turtle volunteer environmental group. In this case, the Department conducted a field assessment of Mr. Snowman's lot and measured the point it considered to be the landward extent of the turtle nesting setback line. Kate Edgerton, an experienced biologist employed by the Department, measured the point the Department asserted was the landward extent of the turtle nesting setback line. Ms. Edgerton made a good faith assessment of the beach berm complex and considered the property to contain one beach berm complex. (Transcript, DOAH Case 93-7165DRI, page 166, line 17.) Ms. Edgerton testified in the underlying proceeding that she considered herself bound by the definitions in the Monroe County land use regulations and that she believed herself to be applying the pertinent definition when she measured the setback line. (Transcript, DOAH Case 93- 7165DRI, page 163, lines 20-23.) Following field staff review, a report is prepared and forwarded to Tallahassee for review by additonal staff, including the Department's administrator of the critical state concern program. Department staff in Tallahassee review the field staff report and participate in formulating a recommendation as to whether to appeal the permit. The appeal decision is then made either by the Department Division Director or by the agency head. Each material step in the Department's customary practice of reviewing permits was followed in reviewing the subject permit. Section 9.5-4(B-3), Monroe County Code, contains the following definition of the term "beach berm" that was found to be pertinent to the underlying proceeding: (B-3) "Beach berm" means a bare, sandy shore- line with a mound or ridge of unconsolidated sand that is immediately landward of, and usually parallel to, the shoreline and beach. The sand is calcareous material that is the remains of marine organisms such as corals, algae and molluscs. The berm may include forested, coastal ridges and may be colonized by hammock vegetation. The term "berm" is identified in the Monroe County comprehensive plan as . . . a mound or ridge of unconsolidated sand that is immediately landward of, and usually parallel to, the shoreline and beach. A berm is higher in elevation than both the beach and the area landward of the berm. At the formal hearing in the underlying appeal, there was conflicting evidence as to the extent of the beach berm complex on the subject property. The Recommended Order found that there were two distinct ridges located on the subject property. The issue of whether both ridges could be considered part of the "beach berm complex" was one of first impression. Succinctly stated, it was the position of the Department in the underlying appeal that both ridges were in an area of potential habitat on a beach that is known habitat and it asserted the position that both ridges should be considered to be one beach berm complex. The Department asserted the position that the setback should be measured from the landward extent of the second ridge (the more landward of the two ridges). Monroe County had measured the setback from the landward extent of the first ridge. Mr. Snowman agreed with the County's determination of the setback. Mr. Snowman presented evidence that the County had, for several years, applied the setback from the landward extent of the first ridge and argued that, based on the foregoing definitions each ridge should be considered to be a separate beach berm, but that only the first should be considered to be a beach berm. The Department presented evidence that the County had applied the setback provision in an inconsistent manner by measuring from the crest of berms in some cases and measuring from the landward extent of berms in other occasions. The Recommended Order rejected the Department's position and concluded that the definition of "beach berm" contained in Section 9.5-4(B-3), Monroe County Code, and the description of "berm" in the comprehensive plan were unambiguous. Although the Department argued that other provisions of the code and comprehensive plan supported their construction of the setback requirement, it was concluded that the issues should be resolved based on the unambiguous definition of "beach berm". It was also concluded that no deference should be afforded the Department's construction of the term "beach berm" because there is a plain and unambiguous definition of the term that is a part of the Monroe County Code. It was observed that "[w]hile a greater setback may better serve the goals of the comprehensive plan, as argued by the Department, the imposition of a greater setback requirement should come from a change in the Monroe County Code." This observation was made because the Department had found support for its interpretation of the setback requirement from other parts of the code and comprehensive plan. This case involved bona fide disputed issues of material fact and legal issues that were of first impression. It is found that those issues, although resolved against the Department following the formal hearing, were of sufficient merit to substantially justified the Department's actions in initiating the underlying appeal.
The Issue The issue is whether disciplinary action should be taken against the contracting licenses held by Respondent, Jeffrey J. Clark, for the reasons stated in the Administrative Complaint.
Findings Of Fact Mr. Clark, doing business as JV Clark General Contractors, Inc., is a Florida State certified general contractor with license number CGC 061010, and his license as of May 2, 2008, was "current, active." He has held this license since November 16, 1999, and there is no evidence of record that any license held by him has been the subject of disciplinary proceedings. In the same capacity Mr. Clark is a Florida State certified roofing contractor, with license number CCC 1327256 and his license as of May 5, 2008, was "current, active." JV Clark General Contractors, Inc., has a Certificate of Authority as a contractor qualified business. Its license number is QB 0018745, and as of May 5, 2008, the license was "current, active." Mr. Clark is the "qualifying agent" for JV Clark General Contractors, Inc. Mr. Clark is the sole owner and is the registered agent of a business named the Affordable Door Company, Inc. (Affordable Door), which has an address of 2811 South Nova Road, Daytona Beach, Florida. The Department is the state agency charged with providing investigation and prosecutorial services to the Board. On or about August 20, 2004, Affordable Door entered into a written contract with the Sand Dollar Condominium (Sand Dollar). The contract provided that Affordable Door would sell 13 fire doors to Sand Dollar and thereafter would install the doors. In entering into this agreement, Affordable Door was engaged in contracting, as that term is used in Subsection 489.105(6), Florida Statutes. The contract did not include Mr. Clark's license number and did not contain a written notification of the Recovery Fund. The contract required Sand Dollar to pay Affordable Door a total of $13,374.40. On August 28, 2004, Sand Dollar paid $2,769 on the contract. On October 12, 2004, Sand Dollar paid $4,430.40 on the contract, and on February 1, 2005, Sand Dollar paid the balance. On December 6, 2004, Mr. Clark applied to the City of Daytona Beach Shores Building Department for a permit to perform the work contracted by Sand Dollar. The building permit application for the Sand Dollar job was made by JV Clark General Contractors, Inc., and listed an address of 2811 South Nova Road, Daytona Beach, Florida. Mr. Clark's license number, CGC 061010, was provided on the permit application. The permit, number BP2005-41, was issued on December 20, 2004. The permit called for replacing stair doors and frames within Sand Dollar. The permit was signed by Mr. Clark and was notarized. The manufacturer of the doors to be installed required that the doors have their jams filled with grout in order to meet standards set forth in the Daytona Beach Shores Building Code. However, the grouting was not accomplished. As a result, when Daytona Beach Shores Building Inspector Steve Edmunds inspected the job, he found the work to be deficient. Marlene Wuester is the association manager for Sand Dollar. She is responsible for the operation of the 57-unit building. When Ms. Wuester learned that the doors had failed the inspection, she attempted to contact Mr. Clark. She sent a letter dated April 20, 2006, to Mr. Clark at the 2811 South Nova Road address informing him that if he did not cause the doors to meet the required standards that Sand Dollar would hire another contractor to do it, and that Sand Dollar would thereafter seek damages. Mr. Clark did not respond to the letter and did not otherwise respond to Ms. Wuester's efforts to contact him. Ultimately, Sand Dollar paid Flores-Hager and Associates, Inc., $950.00 and General Mechanical Corporation $3,900.00 to bring the doors into compliance with the applicable code. Mr. Clark testified that Affordable Door was managed by Dave Randolph and that generally the company sold doors to other contractors. The contract with Sand Dollar was exceptional and even though Mr. Clark was the permittee, the installer was a man named Jim St. Louis. Mr. Clark asserted that he did not receive communications from Sand Dollar, and therefore could not respond to Sand Dollar, because his business moved from the 2811 South Nova Road address. However, as the licensed contractor, it was Mr. Clark's duty to see that the job was completed in accordance with the applicable building code.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Construction Industry Licensing Board enter an order finding that Jeffrey J. Clark, d/b/a JV Clark General Contractors, Inc., is guilty of Counts I through IV and Count VI, and that licenses numbered CGC 061010, CCC 1327256, and QB 0018745 be suspended until such time as Jeffrey J. Clark, d/b/a JV Clark General Contractors, Inc., pays a fine in the amount of $2,000.00 and makes restitution to the Sand Dollar Condominium Association in the amount of $4,850.00. DONE AND ENTERED this 10th day of July, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 10th day of July, 2008. COPIES FURNISHED: Jeffrey J. Clark JV Clark General Contractors, Inc. 2027 South Ridgewood Avenue Edgewater, Florida 32132 Arthur Barksdale, IV, Esquire Wright, Fulford, Moorhead & Brown, P.A. 145 North Magnolia Avenue Orlando, Florida 32801 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether DOT has improperly excluded Western Waste Industries, Inc. from bidding by combining two Volusia County sites in a single invitation to bid?
Findings Of Fact A three-man maintenance crew works out of DOT's Daytona Beach construction office, which is 16 miles distant from DOT's principal Volusia County facility, the Deland maintenance yard. In the summer, when both mowing operations and littering are at their peak, 72 DOT field people and 14 convicts set out from the Deland yard daily to sweep the roadways, police, grade and seed the shoulders, cut the grass and do other bridge, pipe and concrete maintenance. At one time, as the work day ended, crews dropped litter and mown grass at the county dump on their way back to the sites at which they assembled mornings in Deland and Daytona Beach. The Daytona Beach crew still does. But somebody calculated that DOT could save 100 man hours a month by arranging for "dumpsters" at both its Volusia County yards. That way all workers can return to their work stations directly, and no side trip is required in order to dispose of litter and cut grass. On April 1, 1988, petitioner Western Waste Industries, Inc. (WWII) installed two dumpsters, each with a capacity of eight cubic yards, at DOT's Deland yard. Under a month to month agreement, WWII empties both containers twice weekly in exchange for $273 monthly. DOT is satisfied with its decision to use dumpsters, but is obliged to invite bids, because DOT cannot procure the services it needs for less than $3000 a year. Among the specifications set out in DOT's invitation to bid is the form of the contract the successful bidder is to sign, which includes the following: 1.00 The Department does hereby retain the Contractor to furnish certain services in connection with Central Point Refuse Pickup and Disposal Originating at the Department's Maintenance Office Located at 1655 North Kepler Road, Deland, Florida, with an Option to Include Similar Services for the Department's Construction Office Located at 915 South Clyde Morris Boulevard, Daytona Beach, Florida. DOT's Exhibit No. 1 (emphasis in original) In Exhibit A to the form contract, entitled "SCOPE OF SERVICES," the specifications call for "trash containment and removal of litter ... from specific offices located in the Department's District Five." Id. Exhibit A specifies both the Daytona Beach and the Deland offices by name and address. Attachment B indicates that the successful bidder is to remove 40 cubic yards of refuse weekly from DOT's maintenance yard in Deland and, at DOT's option, additional refuse from the Deland yard, from the Daytona Beach office, or from both. If DOT exercised both options, the contractor would haul ten percent of DOT's refuse from the Daytona Beach office, on an annual basis. In its letter of protest, dated June 14, 1988, WWII complains that it "operate[s] on the West Side [of Volusia County] only." But the two companies who submitted bids in response to DOT's invitation to bid are willing to collect refuse at both sites. No exclusive franchise or other legal impediment precluded WWII from bidding on collection at both sites By soliciting bids for service at both sites, DOT avoids the administrative costs of inviting and evaluating two sets of bids.
Findings Of Fact Delbert W. Ogden holds license number CR 0051562 as a registered roofing contractor in the State of Florida. He held this registration at all times material to this action. Mr. Ogden was the qualifying agent for Sealtite Roofing and Waterproofing, Inc. from December 15, 1986 through May 30, 1987. The Watkins Contract On April 1, 1987, Sealtite Roofing and Waterproofing entered into a contract with Pauline Watkins (Ms. Watkins' name is now Pauline Watkins- Biddulph), to replace the roof on her home. The work included both a cement tile roof and a flat gravel roof. In her dealings with Sealtite Ms. Watkins dealt with a salesman, Tom Pagano. She never dealt with Mr. Ogden. Sealtite Roofing agreed to provide a written warranty on the roofing work for a period of 10 years. It delivered the Warranty when the work was completed. Ms. Watkins made a deposit with Sealtite at the time the contract was signed. A further amount was paid to Sealtite when the work has halfway finished, on April 27, 1987, and the final payment was made when the work was completed on May 1, 1987. At the time the house was reroofed, the weather was dry. After rain which occurred in late June, 1987, (almost two months after the work had been completed) Ms. Watkins had a number of leaks, the most serious being a leak in the kitchen. Ms. Watkins notified Mr. Pagano of the problem on June 30; the next day an inspector from Sealtite came to the house. Ms. Watkins then spoke with the office manager of Sealtite who informed her that the roofing would be removed and all water damage would be repaired, that new material to replace the roof had been ordered, and the new roofing material should arrive so that the corrective work could be done during the week of July 6, 1987. No one came in early July to repair the damage, so Ms. Watkins contacted the engineering department of the building division of the Village of North Palm Beach. Nothing came of that contact. Ms. Watkins again called the building inspector for the Village of North Palm Beach on July 22 and was advised to contact the Palm Beach County Construction Industry Licensing Board, because by that time Sealtite's phone had been disconnected. On July 23, 1987, a Mr. Slee, the owner of Sealtite, informed Ms. Watkins that her roof would be inspected again the next day. On July 24, two men appeared at Ms. Watkins' home, inspected the roof and left without speaking with Ms. Watkins. Ultimately, by August 13, 1987, Ms. Watkins complained to investigators with the Florida Department of Professional Regulation about the roofing company's failure to honor its warranty. On August 14, 1987 she was contacted by a Mr. Greg Martin, who claimed to be the qualifier for Sealtite at that time, and Mr. Slee. They were to arrange for repair of the roof by August 31, 1987, but they never did so. Mr. Ogden Delbert Ogden had disagreements with Mr. Slee, the owner of Sealtite Roofing, which caused him to resign as the qualifier for Sealtite with the Palm Beach County Construction Industry Licensing Board. His letter of resignation was mailed to the Palm Beach County Board on April 27, 1987. He followed this action with a latter to the State of Florida, Department of Professional Regulation, resigning as the qualifier for Sealtite with the State on May 14, 1987. As a result of his letter to the State, he received a receipt from the Jacksonville office of the Construction Industry Licensing Board on May 30, 1987, acknowledging that his license was placed on an inactive status. Mr. Ogden's first contact with Ms. Watkins was on November 6, 1987. He suggested that Ms. Watkins retain a lawyer to sue Mr. Slee and Sealtite. Ms. Watkins declined, maintaining that the dispute was between Mr. Ogden as the qualifier and Mr. Slee as the owner of the corporation which Mr. Ogden had qualified. Necessary Repairs Due to the inadequate work that was done on Ms. Watkins' roof by Sealtite, the roof had to be repaired. She paid $2,572.50 to remove and replace the roof Sealtite had installed, and also paid B & N Building Services $950.25 to repair the kitchen and porch ceilings and to replace a beam. She also paid 375 for new drywall, a repair to another damaged ceiling and other work done by another repair firm. Mr. Ogden's Past History with the Board On two occasions complaints had been made about Mr. Ogden's work to the Construction Industry Licensing Board. On September 9, 1987, the Board chairman signed a closing order finding there was probable cause to believe that Mr. Ogden did not obtain a permit in a timely manner, and on January 7, 1988, the chairman signed a closing order finding probable cause that Mr. Ogden had failed to honor a guarantee for work on a residential room addition. In both cases, Ogden was sent a letter of guidance. It appears that as the result of receiving the letter of guidance, Mr. Ogden was never provided an opportunity to formally dispute either of the complaints made against him. The mere fact that the Board found probable cause to believe Mr. Ogden may have violated Chapter 489 on prior occasions in no way proves that Mr. Ogden was actually guilty of misconduct on either occasion. There is no factual basis in the record for concluding that Mr. Ogden has been guilty of misconduct on prior occasions.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED that the Administrative Complaint filed against Delbert W. Ogden be dismissed. DONE and ORDERED this 4th day of May, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY, JR. 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 5th day of May, 1989. APPENDIX The following constitute my rulings on proposed findings pursuant to Section 120.59(2), Florida Statutes. Findings Proposed by Department Covered in paragraph 1. Covered in paragraph 1. Covered in paragraph 2. Covered in paragraph 2. Covered in paragraph 4 Covered in paragraph 4. Covered in paragraph 4. Covered in paragraph 4. Covered in paragraph 4. Covered in paragraph 7. Subsidiary to the first clause in paragraph 7. To the extent relative, covered in finding of fact 5. Covered in finding of fact 5. Rejected as subordinate to finding of fact 1. Rejected as irrelevant. Rejected for the reasons stated In finding of fact 8. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Delbert W. Ogden 360 Selve Terrace West Palm Beach, Florida 33415 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Florida Construction Industry Licensing Board Post Office Drawer 2 Jacksonville, Florida 32201
