Findings Of Fact Respondent, Vincent A. Conrad, held a registered building contract's license, issued in August 1973 by the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board. (Petitioner's Exhibit 1) Respondent qualified CNC Enterprises, Inc. under his registered building contractor's license, number RB 0014098. (Petitioner's Exhibit 1) He admitted that he did not qualify Gulfport Homes, Inc., although he did business under that name. On July 9, 1981, Vincent A. Conrad, d/b/a Gulfport Homes, Inc., contracted with Joseph and Josephine Scovazzo to build a single story house on Lot 2, Unit 6 of the Westport Subdivision; 611 Seabreeze Drive, Port Richey, Florida. The contract price of $87,100.00 included the price of the lot and the construction of the single story "Windjammer" house. Construction was to begin on or about August 15, 1981. The contract required a $10,000 earnest money down payment and a subsequent $22,000 payment to start construction. (Petitioner's Exhibit 7) A total of $32,000 was given to Vincent A. Conrad by the Scovazzos pursuant to the July 9, 1981, contract. The Scovazzos paid Respondent $100.00 when they signed the contract on July 9, 1981, and gave Respondent three checks totaling $31,900.00. A building permit, number 13422, was granted to CNC Enterprises, Inc., on or about September 3, 1981, from the Pasco County Building Department for construction at Lot 2, Unit 6 of Westport Subdivision. The application, dated August 25, 1981, for permit number 13422, indicates that the type of residence to be built was the "Beachcomber," not the "Windjammer" (as listed in the contract). (Petitioner's Exhibit 13) Improvements were made to the lot to include construction of a seawall. A 2-page addendum titled "A" was duly executed by the buyers, Joseph and Josephine Scovazzo, and the seller, Vincent A. Conrad, and made part of the contract. The addendum provided the home was to be elevated to a level of ten feet. (Petitioner's Exhibit 7) Conflicting testimony was received concerning what occurred next. However the house could not be built at the ten foot elevation and the Scovazzos would not accept the house at a lower elevation. The parties mutually decided to terminate the contract on approximately October 19, 1981. On October 19, 1981, Vincent A. Conrad told the Scovazzos on the telephone that he would return their money in a week. On October 19, 1981, Respondent drafted and sent a letter to the Scovazzos referencing their recent conversation. The Respondent specifically represented to the Scovazzos that he would return the $32,000 in approximately three (3) weeks from the day he received their cancellation letter. (Petitioner's Exhibit 10, Transcript page 65) The Scovazzos did not send a letter of cancellation. Respondent received a letter dated October 22, 1981, from the Scovazzo's attorney. Attached thereto was the document executed by the Scovazzos which delineated conditions for cancellation of the July 9, 1981, contract. Under the Scovazzo's terms, the contract would not be canceled unless the $32,000 was received by the Scovazzos before October 29, 1981. (Respondent's Exhibit 1, Transcript page 65) Both parties established conflicting conditions for terminating the contract. The Scovazzos did not send a letter canceling the contract and Vincent A. Conrad did not send the Scovazzos $32,000. When Mr. Scovazzo pressed for the money, Respondent advised that Respondent could not pay him because Respondent's money was tied up in land and improvements. Scovazzos wanted some security and Respondent deeded to the Scovazzos, on or about November 10, 1981, the lot designated in the July 9, 1981, contract. Respondent was building a house on this lot. The Scovazzos admitted the lot was worth at least $32,000. The registered the deed and attempted to obtain title insurance. On or about March 11, 1982, the Scovazzos received a letter (Petitioner's Exhibit 11b) from Title Insurance Company of Minnesota, stating that a title insurance policy could not be issued due to "possible problems which may result from the Lis Pendens (see paragraph 15 below) as recorded in Official Record Book 1155, pages 1933 through 1952 of the Public Records of Pasco County." The Scovazzos did not know about the Lis Pendens. Ultimately, title insurance was obtained through the services of the Respondent's attorney in March of 1982. (Petitioner's Exhibit 11c, Transcript page 77) Vincent A. Conrad obtained several building permits for lots near the Scovazzos lot prior to the effective date of Ordinance 81-16 which set minimum elevations for homes built after October 31, 1981. The Respondent avoided the extra cost of complying with the new standards established by Ordinance 81- The additional permits were obtained between October 1, 1981, and October 21, 1981. (Petitioner's Exhibit 13, Transcript pages 124-125, and 132) On December 11, 1981,. Respondent was found guilty in the United States District Court in Tampa, Florida, in case number 80-00083-CR-T-K for negligently discharging pollutants into the navigable waters of the United States. Respondent's actions were in violation of Title 33, United States Code, Section 1311. The conviction arose as a result of Respondent's dredging activities in the construction of the Westport Subdivision. Respondent was fined $2,500.00 and placed on six (6) months probation. (Petitioner's Exhibit 4, Transcript pages 14-15, and 35-37) At the time the Respondent contracted with the Scovazzos to build their house, his company was being sued by the United States Government which filed a Lis Pendens in Lot 2, Unit 6, Westport Subdivision in October 1981. (Petitioner's Exhibit 6) Respondent asserted the position that the lot in question was not properly involved in the suit. The court found the lot was not involved. Vincent A. Conrad is an officer/director of both Gulfport Homes, Inc. and CNC Enterprises, Inc. (Petitioner's Exhibit 2) On or about November 15, 1982, the Scovazzos were finally able to sell the lot deeded to them by Vincent A. Conrad for more than $32,000.
Recommendation Pursuant to a notice, a formal hearing was held in the above-styled case before the Division of Administrative Hearings by its duly designated Hearing Officer, Stephen F. Dean, on October 15, 1985 in New Port Richey, Florida. This case was presented upon a three count administrative complaint which alleges that the Respondent failed to qualify a company before engaging in contracting; that Respondent has acted in a name other than that set forth on his license; that the Respondent was convicted and found guilty of a crime, in any jurisdiction, which directly relates to the practice of contracting; that the Respondent made misleading, fraudulent, untrue, or deceptive representations in the practice of contracting; and that the Respondent diverted funds received for the completion of a specified construction project. The following allegations were proven: that the Respondent has acted in a name other than that set forth on his license; that Respondent failed to properly qualify a company under which he was doing business; and that Respondent was found guilty of a criminal offense related to the practice of contracting. The other allegations were not proven or, if the facts were proven, it was determined that the acts did not violate the statute.
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
