Findings Of Fact Kaehn is not currently licensed and was not licensed in 1994 as a contractor by the Florida Construction Industry Licensing Board. Kaehn is not currently licensed and was not licensed in 1994 as an architect in the State of Florida. On May 16, 1994, Robert and Kathleen Baum (Baums) entered into a letter of agreement with Kaehn "for the design and construction of a custom 3-bedroom, 2 bath residence to be constructed on owner's lot." The agreement further provided: Cost of design, working drawings, supervision, permits and fees are included in the contract price shown below. A one year limited warranty shall be presented to the owners at closing. Construction shall be executed by Gregory Kurpita Certified Building Contractor [number] cbco26976 under the supervision of Frank E. Kaehn, B.A.A. Gregory Kurpita was not a party to the contract between the Baums and Kaehn. On May 17, 1994, the Baums and Kaehn signed an addendum to the letter of agreement, deleting the contract price of $80,000 and adding the following language: Contract price shall be the sum total of all cost of construction as presented to Mr. Baum, as bills and invoices from all suppliers and sub- contractors for all materials, labor and permits required to complete construction. A $5,000.00 fee (less design fee of $308.00) shall be paid to Frank E. Kaehn at time of completion. Robert Baum pulled the building permit for the construction of the dwelling, acting as owner/builder. Kaehn was not an employee of the Baums. Pursuant to the contract, Kaehn supervised the construction of the house. He also purchased the majority of the supplies used in the construction. A dispute arose between the Baums and Kaehn concerning the entrance to the residence. The front entry was out of plumb. Kaehn had advised the carpenter during the construction to move some interior half walls to make the area appear to be sufficiently plumb so that tile could be applied to the foyer. However, by moving the half walls, the remaining portion of the floor in the house would not appear to be plumb. If carpet had been installed in the remaining portion of the house there would have been no problem, but the Baum's decided to install tile throughout the house. The tiler started from the rear of the house and moved toward the foyer so that when he came to the foyer to place the tile, it was obvious that the foyer was not plumb. Mr. Baum advised Kaehn that he was not going to pay Kaehn the agreed fee. In turn, Kaehn filed a claim of lien on the Baum's property for the following services which he provided: Architectural design [and] working drawings, architectural supervision, estimating cost, expediting, construction (sic) counseltation. By order dated November 3, 1995, Judge Scott M. Kenney of the Circuit Court of the Nineteenth Judicial Circuit in and for St. Lucie County, Florida, denied Kaehn's Claim of Lien on the grounds that Kaehn did not have the appropriate licenses to perform the work required for the Claim of Lien. The Baums were unable to file an action under the Construction Industry Recovery Fund because Kaehn was unlicensed. Since at least 1994, Kaehn has placed an advertisement in the yellow pages of the local telephone directory which stated: KAEHN FRANK E BAA ARCHITECTURAL DESIGN CUSTOM BUILDER - DRAFTING 571 Ann Marie Ln PSL. 871-6941 During the hearing, Kaehn referred to himself as an architect and a custom builder.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Frank E. Kaehn violated Sections 481.223(1)(c) and 489.127(1)(f), Florida Statutes, and imposing an administrative fine of $1,000 for each count for a total of $2,000. DONE AND ENTERED this 8th day of July, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 8th day of July, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0945 To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-6: Accepted in substance. Paragraph 7: The first sentence is rejected as constituting a conclusion of law. The remainder is accepted in substance. Paragraphs 8-10: Accepted in substance. Paragraph 11: Rejected to the extent that he did not verbally tell them he was a custom builder and they did not rely on the telephone directory advertisement. Paragraphs 12-14: Accepted in substance. Paragraph 15: Rejected as constituting a conclusion of law. Paragraphs 16-17: Accepted in substance. Paragraph 18: Accepted to the extent that by the agreement and the filing of the lien that he held himself out to the Baums as an architect. Paragraph 19: Rejected as not supported by competent evidence. The only evidence was based on hearsay. Paragraphs 20-26: Accepted in substance. Respondent's Proposed Findings of Fact. Paragraph 1: Rejected as constituting argument. Paragraphs 2-4: Rejected as not being provided at the final hearing. Paragraph 5: Accepted in substance. Paragraph 6: Rejected as constituting argument. Paragraph 7: Rejected as not presented at final hearing. Paragraph 8: The first sentence is accepted to the extent that the contract stated that construction would be executed by Kurpita. The remainder is rejected as constituting argument. Paragraph 9: The first sentence is rejected as subordinate to the facts found. The remainder is rejected as constituting argument. Paragraphs 10-12: Rejected as constituting argument. COPIES FURNISHED: Donna Bass, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Frank E. Kaehn Post Office Box 7639 Port St. Lucie, Florida 34985 Richard Hickok, Executive Director Department of Business and Professional Regulation Board of Construction Industry Licensing 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda Goodgame General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Did Respondent commit the violations alleged in the Administrative Complaint dated April 11, 2000, and if so, what discipline is appropriate?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida charged with the responsibility of regulating the practice of contracting pursuant to Section 20.165, Florida Statutes, and Chapters 455 and 489, Florida Statutes. Respondent is, and has been at all times material hereto, a certified residential contractor in the State of Florida, having been issued license number CR CO13253 by the Florida Construction Industry Licensing Board. At all times material hereto, Respondent was licensed with the Construction Industry Licensing Board as an individual. On or about November 20, 1993, Respondent entered into a written contractual agreement (contract) with Kevin Watkins (Watkins) to construct a single family residence at 126 Meadow Lark Boulevard, Lot 65, Indian Lake Estates, Florida. The contract price was $333,944.00. Between December 7, 1993, and February 1, 1996, Watkins and Respondent executed 102 addenda to the contract which increased the contract price by approximately $241,874.43, for a total amount of approximately $575.818.43. On or about December 9, 1993, Respondent obtained permit number 93-120l850 from the Polk County Building Department and commenced work on the project. The contract provided that the "project shall be substantially completed on or about 195 days from the date all building permits are issued." However, due to the 100-plus addenda to the contract, it was estimated that an additional 190 days would be needed to complete the project. Additionally, construction ceased on the home for approximately 60 days so that Watkins could explore the possibility of a construction loan. However, due to the extent of completion, the lending institutions decided not to make any construction loans. On or about May 27, 1996, Watkins moved to Florida with the expectations that his home would be completed within a short period of time. (Watkins' recollection was that the home was to be completed in a couple of weeks. Respondent's recollection was that the home was to be completed in a couple of months.) In any event, Respondent did not complete the Watkins home within a couple of weeks or a couple of months. After Watkins moved to Florida, Respondent paid for Watkins to live in a Best Western motel for a few weeks. Subsequently, Respondent moved Watkins into a rental home for which Respondent paid the rent through September 1996. Beginning October 1996 through July 1999, Watkins paid $600.00 per month for a total of $20,400.00 as rent on the rental home. In early 1998, Respondent and Watkins went through the home, identified those items which had not been completed and Respondent made a handwritten list of those items. Respondent failed to complete the items identified on the list. In fact, shortly thereafter, Respondent ceased working on the project and was unresponsive to attempts to contact him. At the time Respondent ceased working on Watkins' home, the home was approximately 75 percent complete. While this estimation of completion may not be totally accurate, it is the best that could be derived based on the evidence presented, including Respondent's testimony to which I gave some credence. Watkins paid Respondent $561,617.91, which represents approximately 97.534 percent of the total contract price plus addenda to the contract. Seventy-five percent of the contract price plus addenda to the contract equals $431,863.82 for an overpayment of $129,754.09. To date, Respondent has not returned any of the money he received from Watkins above the amount completed under the contract. From early 1998, until August 1998, when Watkins had Respondent removed as general contractor on the building permit, Respondent failed to perform any work on the home for a period in excess of 90 days. Respondent contracted with Jack Eggleston to install cabinets in Watkins home. Eggleston performed under the contract but Respondent failed to pay Eggleston in full, requiring Watkins to pay Eggleston $1,200.00. After Watkins' home was partially complete, Respondent advised Watkins that he had the home insured when in fact he did not have the home covered with insurance. While Respondent was building Watkins' home, Respondent and Watkins entered into a joint venture called Contractors of Central Florida to build modular homes sometime after January 1, 1995. Respondent contends that some of the checks Watkins claims as payment under the contract for his home, were in fact reimbursement to Respondent for funds he had advanced for the joint venture. There is insufficient evidence to establish facts to show that any of the checks Watkins claims as payment under the contract for his home were in fact reimbursement for funds advanced by Respondent for the joint venture. Up until the time of the final hearing, the Department had incurred costs for the investigation and prosecution of this matter, excluding costs associated with an attorney's time, in the amount of $1,451.28.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and after careful review of the guidelines set forth in Rule 61G4-17.001(8) and (11), Florida Administrative Code, and the circumstances for purpose of mitigation or aggravation of penalty set forth in Rule 61G4-17.002, Florida Administrative Code, it is recommended that the Department: Enter a final order finding Respondent guilty of violating Section 489.129(1)(h)2., Florida Statutes, and imposing a penalty therefor an administrative fine in the amount of $1,000.00; Enter a final order finding Respondent guilty of violating Section 489.129(1)(k), Florida Statutes, and imposing a penalty therefor an administrative fine in the amount of $1000.00; Assessing costs of investigation and prosecution, excluding costs associated with an attorney's time, in the amount of $1,451.28, plus any such further costs which have or may accrue through the taking of final agency action and; Requiring Respondent to pay restitution to Kevin Watkins in the amount of $129,754.09 which represents the amounts accepted by Respondent for work not performed. DONE AND ENTERED this 23rd of October, 2000, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 2000. COPIES FURNISHED: Robert A. Crabill, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32388-2202 Ronald J. Powell Post Office Box 7043 Indian Lake Estates, Florida 33855 Rodney Hurst, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Pursuant to a prehearing stipulation executed by the parties on July 22, 1982, the facts in this case are essentially not in dispute. The prehearing stipulation establishes the following facts concerning the allegations contained in the Administrative Complaint: Respondent Novoa is a certified air conditioning contractor having been issued license number CAC010132 and CAC010132. Respondent's address is 30 S. W. 67th Court, Miami, Florida 33144. At all times material hereto, Respondent was associated with and was the qualifying licensee for Baker Service Company, Inc., d/b/a Dade Air Conditioning and Appliance Service, 11651 N.W. 7th Avenue, Miami, Florida 33168. Respondent's responsibilities in said company were to pull permits and supervise installation of air conditioning systems in return for a salary of $100.00 per week. Petitioner has no evidence that Respondent did not fulfill that particular function for the company he qualified. However, Petitioner asserted and Respondent admitted that the company was also involved in soliciting service contracts for which it maintained a fleet of trucks and personnel to sell and solicit said contracts and to perform the obligations requested under the contracts. Petitioner asserted and Respondent admitted that it was not his function in the company to take any part in the business concerned with the service contracts. The Respondent completed a "Certification Change of Status Application" on or about December 14, 1978, and submitted it to the Department of Professional and Occupational Regulation, Florida Construction Industry Licensing Board. The Respondent signed an affidavit which is part of the application, certifying as true and accurate his answers on the application. Respondent asserted that the Certification Change of Status Application was prepared for his signature by personnel within Baker Service Company, Inc., who represented to him the truth of the contents thereof. Petitioner has no information contrary to Respondent's assertion. The Certification Change of Status Application contained false information in that it listed only Frank Baker as President of the company without listing the company's Secretary, Frank Baker III, and Albert Crooke, Vice President of the company. Respondent alleged and Petitioner has no evidence to the contrary, that he did not know of the involvement of Frank Baker III and Albert Crooke as officers of the corporation and only inadvertently filed false information with the Department. Baker Service Company, Inc. entered into many service contracts with certain named parties who are listed in and made a part of the Administrative Complaint by the attachment of Exhibit A thereto, all of whom had service contracts similar to Petitioner's Exhibit 3. Baker Service Company, Inc. was to provide air conditioning and other major appliance service pursuant to said contracts and did not perform its obligations thereunder, even though the company was paid and received funds to perform such service. The Respondent admitted that he did not take any active part in supervising the operation of Baker Service Company, Inc., with regard to their maintenance and service contract business and therefore used his registration to evade the contracting license law in violation of Section 489.129(1)(f) Florida Statutes. However, Petitioner admitted that this violation is of a technical nature. Respondent admitted that he obtained his registration by the filing of a false application, but asserted that he was not aware of its misrepresentation at the time of filing. Petitioner admitted it had no information with which to prove the Respondent knew the application was false when filed. Respondent admitted that his qualification of Baker Service Company, Inc., the execution of the numerous service contracts, and abandonment of the same by Baker Service Company, Inc., constitutes violations of Section 489.129(1)(k), Florida Statutes, and Chapter 10 , Code of Metropolitan Dade County, Section 10-22G, by failing to fulfill contractual obligations.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered by the Construction Industry Licensing Board finding that the Respondent Novoa committed technical violations of Sections 489.129(1)(f) and (k), Florida Statutes, and imposing a $500.00 administrative fine and a private reprimand. DONE and ORDERED this 29th day of September, 1982, in Tallahassee, Florida. SHARYN L. SMITH 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 29th day of September, 1982. COPIES FURNISHED: Michael J. Cohen, Esquire Suite 101 2715 E. Oakland Park Boulevard Ft. Lauderdale, Florida 33306 Rodolfo Sorondo, Jr., Esquire Suite 1101 Peninsula Federal Building Miami, Florida 33131 James Linnan, Executive Director Florida Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD DEPARTMENT OF PROFESSIONAL REGULATION/CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. DPR Case No. 0012267 DOAH Case No. 81-2477 JOSE E. NOVOA 30 SW 67th Court Miami, Florida 33144 C & S Air, Inc. CA C010132 Post Office Box 43-2094 Miami, Florida 33144 Baker Service Company CA CA10132(deleted) Respondent. /
Findings Of Fact In early September of 1979, John and Ruth E. Lockwood contracted with P & P Custom Pools, Inc. (P & P), for the construction of a swimming pool at their home, 231 El Dorado Drive, Debary, Florida. Respondent, Philip J. Mains, signed the contract on behalf of P & P and later obtained a building permit. He and his men began excavating on site in mid-September. The Lockwoods paid respondent $700.00 on September 6, 1979. As construction progressed, they paid him $1,706.25 on September 27, 1979; $1,000.00 on October 26, 1979; $1,047.50 on October 29, 1979; and $1,706.25 on November 20, 1979. At the appropriate times, a building inspector was summoned, who inspected the project, including the placement of reinforcing steel, ground wiring, and lights. Neither the "steel inspection" nor the "deck inspection" revealed any problem. The workmanship was excellent, as far as it went, but the Volusia County building inspector's office was never asked to perform a final inspection. As respondent promised there would be, there was water in the swimming pool by Christmas of 1979, but respondent did no further work after December, 1979. He never installed the pump, filter, diving board, or hand bars called for in the Lockwoods' contract. Earlier in 1979, Patrick T. Ryan, the other principal in P & P, left town and abandoned the business which was then $37,000 in debt. In November of 1979, respondent turned the company's books over to an accountant. In January of 1980 the business' financial problems became critical and, at the accountant's suggestion, respondent so advised the eight homeowners for whom he was building swimming pools, including, in January or February, Mr. Lockwood, who reacted angrily. Respondent testified that Mr. Lockwood "cussed him out." Thereafter respondent avoided the Lockwoods until April of 1980 when they found him working on another pool. There was enough money owed on the eight contracts as a group to finish all the pools, according to respondent's uncontroverted testimony, at the time the Internal Revenue Service levied on respondent's bank account and seized his tools and equipment. Even then respondent offered to finish the Lockwoods' pool if they would buy the materials. Respondent's wife asked Mrs. Lockwood to write a check to a supplier for a pump and filter so that respondent could install them and get water in the pool circulating. Instead, during the last week of April, 1980, the Lockwoods contracted with somebody else to finish the job and paid him $1,200. Respondent subcontracted with a Jacksonville cement company to pour concrete for the pool. After the concrete had been poured, the Lockwoods got a registered letter from the subcontractor threatening to place a lien on their property if he were not paid. According to Mr. Lockwood, the problem was that some check [supposedly drawn by respondent in favor of the subcontractor] had been delayed in the mail. In any event, there was no indication in the evidence that the Lockwoods heard anything further from the subcontractor.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspend respondent's registration for thirty (30) days. DONE AND ENTERED this 29th day of April, 1981, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1981. COPIES FURNISHED: Charles F. Tunnicliff, Esquire 130 North Monroe Street Tallahassee, Florida 32301 Philip J. Mains c/o Sue Mains Route 2, Box 799A DeLand, Florida 32720 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, vs. CASE NO. 80-2231 PHILIP J. MAINS, RP 0024663, Respondent. /
The Issue The issues in this case are: (1) whether Respondent violated Subsection 489.119(6)(b), Florida Statutes (2000); (2) whether Respondent violated Subsection 489.1425(1), Florida Statutes (2000); (3) whether Respondent violated Subsections 489.129(1)(f), (g), (i), (j), (m), and (q), Florida Statutes (2000); and (4) if so, what penalties should be imposed.
Findings Of Fact Respondent, Douglas V. Reynaert, was originally licensed as a certified general contractor in the State of Florida on June 10, 2000. For reasons not presented at this proceeding, the Board revoked Respondent's license as a general contractor on November 6, 2003. Consequently, Respondent is no longer able to engage in contracting in the State of Florida. Doug Reynaert and Sons, Inc., does not have a certificate of authority as a contractor qualified to do business in the State of Florida. The Dietzman Contract On or about March 27, 2000, three months prior to Petitioner's being issued a contractor's license, Doug Reynaert and Sons, Inc., entered into a construction contract with Homer Dietzman ("Dietzman contract"). The construction contract provided that Doug Reynaert and Sons, Inc., would construct a new house for Mr. Dietzman and his wife at 4515 - 6th Street West, Lehigh Acres, Florida, at a cost of $70,900. According to the contract, the construction of the house was to be completed by October 20, 2000. The Dietzman contract did not contain a contractor number either for Respondent or Doug Reynaert and Sons, Inc. As noted in paragraph 1, Respondent was not licensed as a contractor until June 2000, more than two months after the Dietzman contract was executed. Moreover, Doug Reynaert and Sons, Inc., was never licensed or certified as a contractor qualified to do business in Florida. The Dietzman contract did not contain the written statement explaining the consumers' rights under the Construction Industries Recovery Fund required in Subsection 489.1425(1), Florida Statutes (2000). According to the Dietzman contract, the house was to be completed by the end of October 2000. However, Doug Reynaert and Sons, Inc., did not begin construction on the house until September 2000; and by the end of October 2000, the company had only completed the slab. On or about February 15, 2001, Doug Reynaert and Sons, Inc., stopped all construction work on the Dietzman house, even though the project was not complete. After the construction work on the house stopped, Mr. Dietzman called the foreman for Doug Reynaert and Sons, Inc., who was overseeing the project, and asked why the workman were not doing any work on the house. In response to Mr. Dietzman's inquiry, Mr. Dietzman was told by the foreman for Doug Reynaert and Sons, Inc., that "We're all done." The Dietzman construction contract included a Specification Sheet that provided that the contractor, Douglas Reynaert and Sons, Inc., would provide all permits and county impact fees, drawings, builder's risk insurance, hurricane engineering fees, survey, lot clearing and fill allowance, city water or well package, and city sewer or septic system. The Specification Sheet also detailed the exterior and interior features to be included in the Dietzman house. Many of the features included in the Specification Sheet, which was a part of the construction contract, were not provided by the contractor. Features that the contractor was to provide, but which, in fact, were not put in the Dietzman house were the following: dead bolt locks on exterior doors; stain- resistant carpeting; no-wax vinyl in the kitchen and bathrooms; two ceiling fans; lighting allowance; landscape package; 18-cubic-foot refrigerator with ice maker; self-cleaning range; built-in dishwasher and microwave; 40-gallon quick recovery water heater and laundry tub; washer and dryer; Monet faucets; custom cabinets; full-length vanity mirrors; garbage disposal; window blinds or verticals; water treatment; softener/reverse osmosis/aerator; well; some soffit; Bahai sod; two toilets; some cathedral ceilings; 10.0 seer-rated air conditioner; and prefabricated shower. On or about February 19, 2001, about two weeks after Doug Reyaernt and Sons, Inc., stopped working on the Dietzman house, Mr. Dietzman prepared a list of the contract items that were incomplete and mailed the list to Respondent. Mr. Dietzman also attempted to personally contact Respondent about the company's failing to complete the house, but the office of Doug Reynaert and Sons, Inc., was closed. Eventually, in late February or early March 2001, after learning that Respondent was in the office of Doug Reynaert and Sons, Inc., Mr. Dietzman went there and talked to Respondent about the incomplete construction project. In response, Respondent stated that he would complete the project if Mr. Dietzman paid him $25,000.00 above the contract price. Mr. Dietzman refused to pay any additional money to Doug Reynaert and Sons, Inc., to complete the project and decided to finish the home himself. Based on the contract amount, only $6,450.00 was due upon completion of the project. However, based on the money that Mr. Dietzman had paid to Doug Reynaert and Sons, Inc., as of late February 2001, he was under no obligation to pay any additional money until the project was complete. During the course of the project, Mr. Dietzman paid Douglas Reynaert and Sons, Inc., $64,450.00 of the total contract amount of $70,600.00. Mr. Dietzman expended a total of $14,571.00 to complete and/or include all the items listed in the construction contract that were not performed and/or provided by Douglas Reynaert and Sons, Inc. This amount does not include costs associated with mileage to pick up supplies, recording fees paid to the clerk of the court, nor an unexplained fee paid to the Department. Of the total costs expended by Mr. Dietzman to complete the house, $8,121.00 was in excess of the contract price. Mr. Dietzman completed the house, and after it was completed, he lived there for three years before selling it. During the period between March 2, 2001, and April 30, 2001, five subcontractors filed separate liens of claims on the Dietzman property, which alleged unpaid amounts of $1,785.00; $650.00; $137.00; $5,998.00; and $619.15. According to the liens of claim, the subcontractors had last furnished labor services or materials in January, February, and March 2001. Mr. Dietzman believes that the claims of lien filed against his property expired without satisfaction. Notwithstanding Mr. Dietzman's subjective belief, no evidence was presented upon which to determine whether the claims of lien, in the first instance, were valid; and, if so, whether they were satisfied or whether they expired. However, when Mr. Dietzman sold the house in December 2003, the title to the house was clear. On March 20, 2001, Mr. Dietzman filed a Uniform Complaint Form with the Department arising from the contract with Doug Reynaert and Sons, Inc. The Uniform Complaint Form stated that Doug Reynaert and Sons, Inc., had abandoned the construction project and that Respondent had indicated that he would not finish the house unless the Dietzmans paid him another $25,000.00. The Department's costs related to the investigation and prosecution of the Dietzman contract, excluding costs associated with an attorney's time, are $287.37. The Gammie Contract On or about May 20, 2000, Leila Gammie and her sister, Karen Gammie, entered into a construction agreement with Doug Reynaert and Sons, Inc. ("Gammie contract"). Pursuant to the Gammie contract, Doug Reynaert and Sons, Inc., was to build a house for Karen and Leila Gammie at 1124 Southwest 15th Terrace, Cape Coral, Florida, for $92,420.00, and the buyers were required to pay the builder $3,000.00 when the agreement was signed. The Gammie contract was a one-page document and did not include the beginning and completion date for the project. Also, the contract did not include a general contractor's license number, certification number, or a written statement explaining the consumers' rights under the Construction Industries Recovery Fund. Leila Gammie paid a deposit of $6,000.00, by two checks of $3,000.00 each, to Doug Reynaert and Sons, Inc. The first payment was made on May 20, 2000, the day the Gammie contract was fully executed, and the second payment was made on June 3, 2000. The May 20 and June 3, 2000, checks were deposited in the account of Doug Reynaert and Sons, Inc., on May 26, 2000, and June 8, 2000, respectively. On July 15, 2000, the Gammie contract was amended by the parties to increase the price of building the house to $95,279.00 and to establish Reynaert and Sons, Inc.'s, responsibility for paying closing costs. Crossland Mortgage approved Leila and Karen Gammie for a construction loan to build the house. The construction loan agreement was executed in July 28, 2000, and required that construction be completed by February 1, 2001. Respondent signed the "Assent by Contractor" section of the construction loan agreement in which he certified that he was the general contractor for the borrowers and that in consideration of the lender making the mortgage loan, he agreed to be bound by the terms of the construction loan agreement. On July 28, 2000, Respondent executed a Crossland Mortgage Corporation's Contractor's Acknowledgment, in which he certified that Doug Reynaert and Sons, Inc., had entered into a construction contract with Leila and Karen Gammie "on May 20, 1999 [sic]" for the construction project described in the construction loan agreement. In the Contractor's Acknowledgment, Respondent also confirmed that the contract price was $95,279.00 and that Doug Reynaert and Sons, Inc., had already received $6,000.00, which had been applied toward the construction contract. Respondent's signature on the Contractor's Acknowledgement was notarized. On July 28, 2000, Leila and Karen Gammie executed an addendum to the construction loan in which they authorized the lender to make scheduled payments directly to Doug Reynaert and Sons, Inc. Leila Gammie, Karen Gammie, and Respondent, as representative for Doug Reynaert and Sons, Inc., are signatories on a loan document titled, "Construction Draw Guideline." That form was executed on July 28, 2000, and listed Doug Reynaert and Sons, Inc., as the contractor to whom payments would be made. Leila Gammie recorded a Notice of Commencement on August 3, 2000, in Lee County, Florida. After the Notice of Commencement was filed, Leila Gammie made regular visits to the lot on which her house was to be constructed. On each occasion, she observed that Doug Reynaert and Sons, Inc., had not started the construction project. She then contacted Respondent to inquire about when construction of her house would begin. In response, Respondent told Leila Gammie that he would not go forward with the project unless she gave him $10,000.00 above the contract price. She refused to give Respondent any more money and Doug Reynaert and Sons, Inc., never started the job. By letter dated March 15, 2001, the Harris Trust Bank of Montreal, the apparent successor or assignee of the lender, Crossland Mortgage, advised Leila Gammie and Karen Gammie that the project had not progressed as scheduled and that for "this reason and other findings, Doug Reynaert and Sons, Inc., is no longer an approved builder of Harris Trust/Bank of Montreal." Leila Gammie engaged another contractor who built the house, which is her present residence. On March 20, 2001, Leila and Karen Gammie filed a Uniform Complaint Form with the Department arising from the contract with Doug Reynaert and Sons, Inc. In the Uniform Complaint Form, Leila and Karen Gammie stated that Doug Reynaert and Sons, Inc., kept changing the original start date of the construction project from August 2000 until February 2001 and that Respondent ultimately told Leila Gammie that he would not begin the project unless she paid him an additional $10,000.00. The Department's costs related to the investigation and prosecution of the Gammie contract, excluding costs associated with an attorney's time, are $287.37. Alleged Contracts with James Pledger and Angela Barnes The 2002 Administrative Complaint assigned DOAH Case No. 04-1547PL alleged certain violations related to an alleged construction contract between James Pledger and Doug Reynaert and Sons, Inc. However, no evidence was presented regarding this alleged contract and the violations related thereto. The 2001 Administrative Complaint assigned DOAH Case No. 04-1546PL alleged certain violations related to an alleged construction contract between Doug Reynaert and Sons, Inc., and Angela Barnes. However, no evidence was presented regarding this alleged contract and the violations related thereto.
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 adopting the foregoing Findings of Fact and Conclusions of Law and requiring Respondent, Douglas V. Reynaert, to pay restitution to Leila and Karen Gammie in the amount of $6,000.00 and to Homer Dietzman in the amount of $14,571.00. DONE AND ENTERED this 29th day of October, 2004, 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 29th day of October, 2004. COPIES FURNISHED: Charles J. Pellegrini, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Douglas V. Reynaert 4815 Hidden Harbour Boulevard Fort Myers, Florida 33919 Tim Vaccaro, Director Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issues in this case are: (1) Whether Respondent, Florida Housing Finance Corporation (Florida Housing), erred in its determination that Petitioner, Madison Reserve, Ltd.'s (Madison Reserve), application seeking an allocation of Housing Credits from the 2009 Universal Cycle failed to meet threshold and should not receive an Ability to Proceed Tie-Breaker Point with regard to zoning; and (2) Whether Florida Housing erred in its characterization of Madison Reserve's application as a Priority II application.
Findings Of Fact Madison Reserve is a Florida limited partnership made up of a general partner, Madison Reserve Apartments, LLC, and an "initial limited partner," Todd L. Borck. The members of the general partner are Todd L. Borck and Patrick E. Law. Borck and Law are experienced developers of real estate properties, especially those which qualify for Low Income Housing Tax Credits ("Housing Credits") from Florida Housing. Borck and Law are affiliated with two other entities which filed applications for Housing Credits in the 2009 Universal Cycle. Those two entities, Madison Heights and Madison Terrace, are also Florida limited partnerships in which Borck and Law are members of the general partners. As part of its application, Madison Reserve submitted a "Declaration of Priority I Related Applications" form, which identified the other two entities as part of the Pool of Related Applications for the Madison Reserve application. Florida Housing is a public corporation organized pursuant to Section 420.504, Florida Statutes (2009), to provide and promote the public welfare by administering the governmental function of financing and refinancing affordable housing and related facilities in Florida. The 2009 Universal Cycle was the first time that applicants were required to designate themselves as Priority I or Priority II applicants. Preference for funding was to be given to Priority I applicants. With certain exceptions, all Priority I applications for a given Set-Aside were to be funded before any Priority II applications were funded. In essence, the rules in effect for the 2009 Universal Cycle require that applications submitted by related applicants be considered a "Pool of Related Applications." While there is no limit to the number of related applications within a Pool of Related Applications that may be submitted, there can be no more than three related applications in order to file under Priority I. There is an exception to that rule if applicants have entered into joint ventures with a not-for-profit entity or a public housing authority. In those cases, applicants are permitted to up to three additional Priority I applications. The Priority I/Priority II designations were upheld as valid rules in Atlantic Housing Partners, LLP v Florida Housing Finance Corporation, Case No. 09-2276RP (DOAH July 14, 2009). On August 20, 2009, Madison Reserve submitted an application seeking an allocation of Housing Credits from the 2009 Universal Cycle. Madison Reserve's submission was assigned Application No. 2009-197C. Two-thousand and nine (2009) designates the year the application was filed; 197 indicates that Madison Reserve application was the 197th application processed in that cycle; and C indicates the application was seeking Housing Credits. The application was basically a "shell" application as is the general practice among entities seeking an allocation of Housing Credits. A shell application contains only minimal information about the applicant and the proposed project. The remaining portions of the application are filed during the "cure" period and, thereafter, pursuant to specific requests by Florida Housing. The shell application provides only the essential information needed by Florida Housing to make a preliminary assessment of the applicant's ability to proceed through the process. Application 2009-197C designated ARD MR, LLC, as the developer for the proposed project for which Madison Reserve was seeking Housing Credits. Exhibit 9 to the application designates the developer and sets forth the ownership of the applicant entity. In both cases, Borck and Law are the only natural persons listed with any interest in the project. Borck is experienced with the 2009 Universal Cycle and the application process. He has filed over 100 applications for various entities and acts as a consultant for other entities with which he has no ownership interest. One such entity is Madison Springs, LLC (Madison Springs). Borck assisted that entity with filing an application in the 2009 Universal Cycle. Madison Springs' application was assigned number 2009-195C. Related Application Issue For the 2009 Universal Cycle, Florida Housing, for the first time, limited applicants to only three related entity applications. That is to say, applicants, such as Borck and Law, could not be affiliated with more than three entities who had filed for Housing Credits in the 2009 Universal Cycle. In fact, Borck and Law were affiliated with Madison Reserve, Madison Heights and Madison Terrace. However, in Exhibit 9 of the application filed by Madison Springs, Borck and Law were listed as owners of TLB Madison Springs, LLC, and PEL Madison Springs, LLC, respectively. Those two entities are the members of Madison Springs Apartments, LLC, the managing member of Madison Springs, Borck and Law are also listed as owners of the two limited liability companies that comprise the members of ARD MT, LLC, the developer identified in Exhibit 9 of the Madison Springs application. However, Exhibits 11 and 53 of the Madison Springs application list CAS Orlando Development, Inc. (CAS Orlando), as the developer for the project. There are obvious errors in the Madison Springs application. Borck and Law had previously held ownership of the entities as set forth in the Madison Springs' Exhibit 9 to its application. However, Borck and Law's ownership interests had been rescinded prior to the filing of the Madison Springs application. The Exhibit 9, filed by Madison Springs, was in error as to Borck and Law's involvement with the project. The Exhibit 9 was also in error as to the developer. The correct developer for Madison Springs is CAS Orlando. In order to correct its error, Madison Springs filed a corrected Exhibit 9 during the cure period. That Exhibit 9 clarified that neither Borck, nor Law, had any ownership interest in or affiliation with Madison Springs or its developer. The cure document was filed with Florida Housing on November 3, 2009. Included within the cure documents were Articles of Amendment to Articles of Organization of Madison Springs. The Articles of Amendment were filed with the Secretary of State on April 13, 2009, some four months prior to filing of applications in the 2009 Universal Cycle. The Articles of Amendment clearly indicate the deletion of Borck and Law from the ownership of Madison Springs. Florida Housing did not accept the cure submitted by Madison Springs concerning Borck and Law's non-affiliation with Madison Springs. The reason stated by Florida Housing's executive director was that when Madison Springs initially filed its cure documents, it did so under the wrong application number. The documents came in under Application No. 2009-194C, instead of 2009-195C. That mistake was a typographical or clerical error. In fact, Application No. 2009-194C had already been withdrawn prior to the time Madison Springs submitted its cure documents intended for Application No. 2009-195C. Thus, there would have been no reason for cure documents to have been filed for Application No. 2009-194C. The cure documents submitted by Madison Springs included a revised Exhibit 9, as discussed above. Florida Housing at some point realized that the cure documents, including Exhibit 9, actually belonged to the Madison Springs Application (2009-195C), rather than the withdrawn application. However, the cure was still not accepted because it had been filed under the incorrect application number initially. Florida Housing's executive director opined that there was, in effect, no way to cure the error once it had been made. No credible rationale for that position was espoused. Nevertheless, the evidence is clear that the owners of Madison Reserve are not affiliated with Madison Springs and were not affiliated with Madison Springs at the time the applications were filed in the 2009 Universal Cycle. The fact that Madison Springs submitted an Exhibit 9 in its application that was in error, stating that Borck and Law were owners of Madison Springs, does not independently create a legal ownership interest. Clearly, Madison Springs did not intend to sabotage the application of Madison Reserve. The principals of those entities are friends and have done business together. But the action taken begs the question of whether Florida Housing would allow representations in competing applications to void or undermine another applicant's submission. Florida Housing's executive director spoke frankly at the final hearing and said that sabotage scenarios would have to be looked at, but he did not believe that the instant case was such a scenario. Project Designation Issue The Madison Reserve application designated its intended project as "Garden Apartments" at page 7 of the application. The site plan form (Exhibit 26 to the application) submitted along with the application refers to the project as a "Garden" development type. In the local government verification form (Exhibit 32) accompanying the application, the development type is listed as "Planned Development Project Multi-Family" (PDP MF). The parties stipulate that "[a]lthough undefined in the Rules, 'Garden Apartments' means multi-family developments, and is considered a term of art within the development and real estate community."1 The project type is an essential part of an application because it puts other applicants on notice as to what their competitors are planning. Further, the project type dictates the kind of zoning that must be available in order to pursue the project. Part and parcel of the designation of project type is the verification by local zoning authority that the proposed site of the project is properly zoned. Applicants must show that the proposed development is appropriately zoned and is consistent with local land use regulations regarding density and intended use or that the proposed development is legally non-conforming. Neither "Garden Apartments," nor "Garden," is a term defined by the rules of Florida Housing, nor is the term used in the Hernando County Zoning Code. When the Hernando County zoning authority submitted its verification of zoning-- Exhibit 32--Garden Apartments was not listed as the development type, because there was no zoning designation in the county for that phrase. Rather, the zoning authority used the term, PDP MF, because it encompasses all permitted uses in the R-3 zoning district for which Madison Reserve's project was to be located. Hernando County recognized Madison Reserve's Garden Apartments as an intended PDP MF, but could not verify it under the name Garden Apartments. Madison Reserve's proposed development is appropriately zoned and is consistent with local land-use regulations regarding density and intended use as required.2 Gary Fisher, Hernando County Zoning Authority, provided verification on Madison Reserve's zoning form that the proposed development was properly zoned and that for zoning purposes in Hernando County, the proper development type for Madison Reserve's proposed Garden Apartments would be "Planned Development Project, Multi-Family." In Hernando County, PDP MF would allow for the construction of multi-family developments, such as the Garden Apartments proposed by Madison Reserve. Florida Housing maintains that despite its stipulation to the facts stated above, the Madison Reserve application fails because the application was not properly completed. Specifically, the use of varying terms, such as Garden, Garden Apartments, and PDP-MF, although meant to be the same project by Madison Reserve, were not the exact same wording. There is no dispute as to what the project is meant to be, so the discrepancy is basically form over substance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Florida Housing Finance Corporation, deeming Petitioner, Madison Reserve, Ltd.,'s, application to have met the zoning threshold; that the application be granted Priority I status; and that the application meets or exceeds all statutory and rule criteria. DONE AND ENTERED this 9th day of November, 2010, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 9th day of November, 2010.
The Issue The issues are whether Respondent committed the several violations of Sections 489.129(1)(h)2.,(h)3.,(j),(k), and (n), Florida Statutes (1997), for the reasons stated in the respective Administrative Complaints and, if so, what, if any, penalties should be imposed. (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of contracting. Respondent is licensed as a certified general contractor pursuant to license number CG C059414. At all relevant times, Respondent was the qualifying agent for Fred T. Garrett Construction, Inc. ("FTG"). As the qualifying agent, Respondent was responsible for all of FTG's contracting activities in accordance with Section 489.1195, Florida Statutes. Respondent failed to obtain a certificate of authority for Fred T. Garrett Construction, Inc., as required by Section 489.119(2), Florida Statutes. The St. Cyr Case On or about August 21, 1998, Respondent entered into a contract with Louis L. St. Cyr to construct an addition to the residence located at 201 South Bel Air Drive, Plantation, Florida. The contract price was $50,000. Although Mr. St. Cyr paid $2,500 to Respondent, Respondent failed to commence work and canceled the project, thereby abandoning it without just cause and without proper notification to Mr. St. Cyr. The contract did not permit Respondent to keep the $2,500 paid by Mr. St. Cyr, and Respondent failed to refund the payment within 30 days after abandonment. Out of the $2,500 he received from Mr. St. Cyr, however, Respondent paid $1,600.00 to the architect before abandoning the project. Thus, the net amount that Respondent owes to Mr. St. Cyr is $900. Petitioner incurred a total of $1,092.28 in investigative costs relating to the St. Cyr case. The Forney Case On May 22, 1998, Respondent, who was doing business as FTG, entered into a contract with Mr. Warren Forney for the construction of a two-bedroom, one-bath addition to the residence located at 1698 Northeast 33rd Street, Oakland Park, Florida. The contract price was $32,500. The contract with Mr. Forney did not contain a written statement explaining the customer’s rights under the Construction Industries Recovery Fund, as required by Section 489.1425(1), Florida Statutes. On July 7, 1998, Respondent obtained permit number 98-050297 from the Oakland Park Building Department. Construction commenced on or about July 7, 1998, and continued sporadically until October 29, 1998, when Mr. Forney dismissed Respondent for failure to timely complete the project. The Oakland Park Building Department issued notices of violation against the project on August 3, September 11, and October 14, 1998, for various building code violations. Mr. Forney was forced to obtain a homeowner’s permit and subsequently hired a subcontractor to complete the work. Mr. Forney paid Respondent approximately $29,250 before relieving Respondent of his duties. To complete the project, Mr. Forney paid a total of $48,746.52, which was $15,396.52 over and above the original contract price. Petitioner incurred a total of $2,190.78 in investigative costs relating to the Forney case. The Kong Case In or around January 1998, a contractor named Lakeview Concepts hired Respondent to perform demolition work for the Kong dry cleaning store project on the property located at 5171 South University Drive, Davie, Florida. On or about June 17, 1998, permit 98-00002349 was issued to Respondent to perform alterations on commercial property located at 5171 South University Drive, Davie, Florida. Respondent, however, did not yet have a contract with the owner for this work. The next month, on or about July 30, 1998, Respondent, who was doing business as FTG, entered into a contract with Shek Kong to complete the dry cleaning store project at 5171 South University Drive, Davie, Florida, for the contract price of $22,300. Shek Kong made payments to Respondent totaling $16,000. Respondent’s work was of poor quality, however, and on or about November 6, 1998, he ceased work, though the project had not been completed. On or about November 14, 1998, Douglas Frankow, license number CB C052960, gave Mr. Kong an estimate of $20,562 to complete the project. Thereafter, on or about June 30, 1999, Mr. Kong contracted with George Settergren, another licensed contractor, to complete the project for a contract price of $27,956. On December 9, 1999, in Case No. 98-020065 08, the Circuit Court, Seventeenth Judicial Circuit, Broward County, Florida, rendered a Final Judgment against Respondent and in favor of Mr. Kong. This judgment awarded Mr. Kong the total amount of $28,693.30, plus 10 percent interest per annum. Petitioner incurred a total of $2,502.78 in investigative costs relating to the Kong case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Construction Industry Licensing Board enter a Final Order finding Respondent guilty of violating Sections 489.129(1)(h)2., (h)3., (j), (k), and (n), Florida Statutes, imposing administrative fines in the aggregate amount of $3,700, assessing investigative costs in the aggregate amount of $5,785.84, placing Respondent's license on probation for a period of four years from the date the Final Order is entered by the Board, and awarding payment of restitution to each customer as follows: (1) to Warren Forney, the amount of $15,396.52; (2) to Shek Kong, satisfaction of the unpaid civil judgment in the amount $28,693.30, plus 10 percent interest accrued thereon; and (3) to Louis L. St. Cyr, the amount of $900. DONE AND ENTERED this 15th day of February, 2002, in Tallahassee, Leon County, Florida. _________________________________ JOHN G. VAN LANINGHAM 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 15th day of February, 2002.
Findings Of Fact At all times material hereto, Respondent, William Losciale, was a licensed registered pool contractor in the State of Florida, having been issued license number RP-0032951, by the State of Florida, and was the qualifier of Lynn Pools. On June 9, 1987, Respondent entered into a contract with Kevin D. Foy for the construction of a pool with a screen enclosure on Mr. Foy's property for the sum of $12,000.00. On August 12, 1987, Mr. Foy made his final payment to the Respondent for the pool and enclosure and all related work. On June 9, 1987, Respondent entered into a contract with Harold Orcutt for the construction of a pool with a screen enclosure on Mr. Orcutt's property for the sum of $18,015.00. On August 1, 1987, Mr. Orcutt made his final payment to the Respondent for the pool and enclosure and all related work. On May 12, 1987, Respondent entered into a contract with Ann McAuley for the construction of a pool with a screen enclosure on Ms. McAuley's property for the sum of $14,204.08. On September 18, 1987, Ms. McAuley made her final payment to the Respondent for the pool and enclosure and all related work. At the end of September, 1987, the Respondent entered into an oral contract with Paragon Aluminum Products, Inc. to have Paragon Aluminum Products, Inc., install the pool enclosure at the Foy residence, pursuance to the Respondent's contract with the Foys. The total Paragon contract price was $3,975.00 which was to be paid by the Respondent to Paragon within two weeks of October 6, 1987, which was the completion date. The Respondent failed to pay that amount in a timely manner. On or about July 16, 1987, the Respondent entered into an oral contract with Paragon Aluminum Products, Inc. to have Paragon Aluminum Products, Inc., install the pool enclosure at the Orcutt residence pursuant to the Respondent's contract with the Orcutts. The total Paragon contract price was $4,910.00, which was to be paid by the Respondent to Paragon within two weeks of the first part of August, 1987, which was the completion date. The Respondent made a partial payment on August 17, 1987, of $3,015.00 and the balance of $895.00 was not paid in a timely manner. On or about July 20, 1987, the Respondent entered into an oral contract with Paragon Aluminum Products, Inc. to have Paragon Aluminum Products, Inc., install a pool enclosure at the McAuley residence pursuant to the Respondent's contract with Ms. McAuley. The total Paragon contract price was $4,321.00 which was to be paid by the Respondent to Paragon within two weeks of August 5, 1987, which was the completion date. The Respondent made a partial payment on September 12, 1987, of $2,704.08 which left a balance of $1,616.92 which was not paid in a timely manner. When the Respondent failed to timely pay Paragon Aluminum Products, Inc., at the end of the foregoing jobs, an officer of Paragon contacted the Citrus County Building Department in an effort to have that department aid her in collection of the monies owed. The Respondent admitted to an investigator of the Department of Professional Regulation on June 7, 1988, that he was having cash problems in relation to the three jobs, that all work had been completed, but due to those cash flow problems, Paragon had not been paid in full. The Respondent signed a personal promissory note for the full amount due to Paragon. No liens were ever filed by Paragon. The Respondent's county license was suspended the Citrus County Licensing Board on May 11, 1988, until he was able to show financial responsibility to that board. That suspension was lifted by the Citrus County Licensing Board on October 12, 1988. Respondent has previously been disciplined by the Florida Construction Industry Licensing Board.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Construction Industry Licensing Board, enter a Final Order and therein penalize the Respondent, William Losciale, as follows: Assess a fine of $1500 for the violation of Section 489.129(1)(i) Dismiss the remaining charges made in the Administrative Complaint. DONE and ENTERED this 19th day of October, 1989, in Tallahassee, Florida. DIANE K. KIESLING 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 19th day of October, 1989.
