The Issue Whether Petitioners' claim for monies from the Florida Homeowners' Construction Recovery Fund is subject to adjudication pursuant to Section 120.57(1), Florida Statutes, and, if so, how much should Petitioners be awarded.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: On or about October 1, 1997, Petitioners entered into a contract in which they agreed to pay Respondent Norman Levinsky's company, Broward Roofing, Inc., $3,700.00 to place a "new shingle roof" on Petitioners' residence and perform other related roofing work. The contract provided Petitioners with a ten-year "labor warranty" and a 30-year shingle warranty. After the contracted work was completed and Petitioners paid Broward Roofing, Inc., the $3,700.00 called for by the contract, the newly-installed roof started leaking. Broward Roofing, Inc., refused to make the necessary repairs. Petitioners paid other contractors to perform the repair work. On November 17, 1998, Petitioner filed an application seeking to recover from the Florida Construction Industries Recovery Fund (which has since been renamed the Florida Homeowners' Construction Recovery Fund) $1,025.00 that they had paid for repairs to the "new shingle roof" Broward Roofing, Inc., had recently installed, contending that they were deserving of such an award inasmuch as "[t]he roofer [Broward Roofing, Inc.] [had] refused to fix [their] new roof that was leaking and [had] totally ignored [their] 10 year warranty." Their application was filed on a Board-produced Construction Industries Recovery Fund Claim Form (Form), at the end of which was printed the following: In addition to your complete written statement, we are requesting documentation of your contractual relationship with the contractor and evidence supporting your claim. Certified copies of the following list of documents are required to assist us in determining your eligibility for recovery. I have attached the following: (these documents are required for proper processing of your claim. Failure to provide required documentation will delay processing and could result in your claim being denied due to incompleteness.) Court certified copy of the Civil Judgment, and/or Final Order of the Construction Industry Licensing Board directing restitution be paid. Copy of contract between you and the contractor. Copies of applicable bonds, sureties, guarantees, warranties, letters of credit and/or policies of insurance. Court certified copies of levy and execution documents. Proof of all efforts/inability to collect restitution judgment. No claims will be processed until 45 days after the date of entry of the Civil Judgment and/or Final Restitution Order. On the completed Form that Petitioners filed, only the spaces next to "Copy of contract between you and the contractor" and "Copies of applicable bonds, sureties, guarantees, warranties, letters of credit and/or policies of insurance" were checked. On May 4, 1999, the Broward County Central Examining Board of Construction Trades filed an Administrative Complaint against "Norman Levinsky d/b/a Broward Roofing, Inc.," which read as follows: Count I At all times material hereto RESPONDENT was a roofing contractor holding Broward County Certificate of Competency #95-7726-R- R. On or about September 16, 1997, RESPONDENT entered into a contract to re- roof Complainant's home located at 10551 N.W. 21st Court, Sunrise, Florida. RESPONDENT obtained a building permit. The work was completed on March 10, 1998 and the roof began to leak on June 1, 1998. RESPONDENT failed to properly supervise to ensure that the tie in with flat roof was properly completed. His failure to ensure such a proper tie in resulted in leaks. Wherefore, it is charged that the RESPONDENT violated Subsection 9-14(b)(11) of the Broward County Code of Ordinances by failing to properly supervise a project commenced pursuant to a building permit. Count II Paragraphs 1 and 2 are included as if restated herein. Complainant paid RESPONDENT the total contract price of $3,700.00. RESPONDENT completed the work. RESPONDENT gave Complainant a 10 year labor warranty. RESPONDENT failed and refused to honor his warranty. Complainant had to pay additional amount of $1,025.00 for a new contractor to repair the work of RESPONDENT. Wherefore, it is charged that the RESPONDENT violated Subsection 9-14(b)(5)c of the Broward County Code of Ordinances by committing mismanagement which causes financial harm to a customer because the customer had to pay more for the contracted job than the original contract price. Count III Above paragraphs are included as if restated herein. RESPONDENT failed to honor the warranty and complete the project in a workmanlike manner for a period in excess of 90 consecutive days. Wherefore, it is charged that the RESPONDENT violated Subsection 9-14(b)(8) of the Broward County Code of Ordinances by abandoning a construction project in which RESPONDENT was under contract as a contractor. It is determined that the above stated charges are grounds for disciplinary action pursuant to Chapter 9, Sections 9-14, 9-28 and 9-46, Broward County Code of Ordinances and Section 6.11, Broward County Charter. Broward County has the authority to certify and discipline local contractors pursuant to Section 489.131, Florida Statutes. Following a hearing on the Administrative Complaint held May 25, 1999, the Broward County Central Examining Board of Building Construction Trades, on June 16, 1999, issued an Order, which read as follows: A Disciplinary Proceeding was held on May 25, 1999, before the Broward County Central Examining Board of Building Construction Trades (the "Board"), in accordance with Section 9-14, Broward County Code of Ordinances (the "Code"). Service of the Administrative Complaint filed against the Respondent was made by certified mail. The Respondent being duly advised was not present at the hearing. The Board heard the sworn testimony of William Grubb and Marlene Grubb. Upon consideration, it is ORDERED: The allegations of fact as set forth in the Administrative Complaint are found to be true and adopted and incorporated herein by reference as findings of fact. The conclusions of law alleged and set forth in the Administrative Complaint are approved and adopted and incorporated herein. Upon these findings, it is therefore ORDERED: That Respondent's Certificate of Competency is hereby revoked. That the Respondent make restitution to the Complainants in the amount of $3,700.00. Prior to the RESPONDENT being allowed to reinstate his certificate of competency or being allowed to sit for any exam administered by a Broward County Central Examining Board, or receiving any license from a Broward County Central Examining Board, RESPONDENT must appear before the Board and prove that the restitution amount has been paid in full. The board's order may be appealed by Petition for Writ of Certiorari to the Seventeenth Judicial Circuit within thirty (30) days of the date of rendition of the order of the board as provided by the Florida Rules of Appellate Procedure. FURTHER, the Broward County Central Examining Board of Construction Trades makes RECOMMENDATION to the Florida Construction Industry Licensing Board to impose on the state registration, the following penalty: 1. Revoke state registration and require the RESPONDENT to make restitution to the Complainants in the amount of $3,700.00. In accordance with Florida Statutes, Chapter 489.131(7)(c) and (d), the disciplined contractor, the complainant, or the Department of Business and Professional Regulation may challenge the local jurisdiction enforcement body's recommended penalty for Board action to the State Construction Industry Licensing Board. A challenge shall be filed within sixty (60) days of the issuance of the recommended penalty to the State Construction Industry Licensing Board in Jacksonville, Florida. If challenged, there is a presumptive finding of probable cause and the case may proceed before the State Board without the need for a probable cause hearing. Failure of the disciplined contractor, the complainant, or the Department of Business and Professional Regulation to challenge the local jurisdiction's recommended penalty within the time period set forth in this subsection shall constitute a waiver of the right to a hearing before the State Construction Industry Licensing Board. A waiver of the right to a hearing before the State Board shall be deemed an admission of the violation, and the penalty recommended shall become a final order according to procedures developed by State Board rule without further State Board action. Pursuant to Section 120.569, Florida Statutes, the Parties are hereby notified that they may appeal the Final Order of the State Board by filing one copy of a Notice of Appeal with the Clerk of the Department of Business and Professional Regulation, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 32399-0792, and by filing the filing fee and one copy of the Notice of Appeal with the District Court of Appeal within thirty (30) days of the effective date of said Order. On or sometime after September 1, 1999, Petitioners filed an affidavit prepared by Petitioner Marlene Grubb, which read as follows: I, Marlene A. Grubb, hereby certify that I have completed a reasonable search and inquiry in accordance with the instructions provided by the Construction Industry Licensing Board and have not found property or assets to satisfy my Board Order[1] in whole or part. Legal Names The Department of State revealed that the company Broward Roofing Inc. was administratively dissolved on 9/10/98. The C[IL]B verified the contractor[']s name and license number as: Norman Levinsky d/b/a Broward Roofing Inc. RC0047656. Real Property My search included property in the names: Norman Levinsky and Broward Roofing Inc. in Broward County, Florida. Norman Levinsky had no real property and Broward Roofing Inc. is delinquent on property taxes for over two years. Boats and Motor Vehicles There were no vehicles or boats in the motor vehicle data bank registered to Norman Levinsky or Broward Roofing Inc. Aircraft The FAA in Oklahoma City, Ms. Jeannie Vannest stated that there is no registration listed for Norman Levinsky or Broward Roofing Inc. On March 25, 2004, the Board rendered a Final Order Approving Recommended Order of Disciplinary Action by Local Enforcement Body, which approved the Broward County Central Examining Board of Building Construction Trades' June 16, 1999, Order and read as follows: THIS MATTER came before the Construction Industry Licensing Board (hereinafter referred to as the "Board") pursuant to Section 489.131(7), Florida Statutes, for a determination of whether to accept the proposed recommended penalty by the Broward County Central Examining Board of Building Construction Trades (a copy of which is attached and incorporated herein by reference). Neither the Petitioner, the Respondent nor the Complainant filed a challenge to the local enforcement body's recommended penalty to the Board. Upon consideration of the local enforcement body's Administrative Complaint, the minutes from the meetings on January 21, 1999, and May 25, 1999, and the Final Order of Disciplinary Action and its proposed recommended penalty to the Board in this matter and being otherwise fully advised in the premises it is hereby ORDERED AND ADJUDGED: The proposed recommended penalty is hereby approved and adopted in its entirety and incorporated herein by reference. In accordance with the recommended penalty, Respondent's state registration (RC 0047656) is hereby REVOKED. Respondent shall pay restitution in the amount of $3,700 to William and Marlene Grubb. Respondent will adhere to and abide by all of the terms and conditions of the recommended penalty. Failure to abide by the terms of this Order may result in further action by the Board. This Order shall be placed in and become a part of Respondent's official records. A change in the Respondent's licensure status, including the suspension, revocation, voluntary relinquishment, or delinquency of license, does not relieve the Respondent of his obligation to pay any fines, costs, interest or restitution imposed in this and previous orders. Pursuant to Section 120.68, Florida Statutes, the Parties are hereby notified that they may appeal this Final Order by filing a Notice of Appeal with the Clerk of the Department of Business and Professional Regulation, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 32399- 0792, and by filing the filing fee and one copy of the Notice of Appeal with the District Court of Appeal within thirty (30) days of the effective date of this Order. This Order shall become effective upon filing with the Clerk of Department of Business and Professional Regulation. This was the "Final Order of the Construction Industry Licensing Board directing restitution be paid," that, according to the Form Petitioners used to submit their claim for monies from the Florida Construction Industries Recovery Fund, was "required for proper processing of [their] claim." On June 10, 2004, more than five and a half years after Petitioners had filed their claim application, the Board met to determine the merits of their claim pursuant to Section 120.57(2), Florida Statutes. Although given due notice of the Board meeting, neither Petitioners, nor Mr. Levinsky, made an appearance, either in person or through a representative, at the meeting. "[U]pon consideration of the documentation and testimony submitted," the Board determined that Petitioners' claim for $1,025.00 should be "approved." On July 29, 2004, the Board rendered (that is, filed with the agency clerk) a written order to this effect, which read as follows: THIS MATTER came before the Construction Industries Recovery Fund Committee and Construction Industry Licensing Board (the "Board") pursuant to sections 120.57(2) and 489.143, Florida Statutes (2003) as well as rule 61G4-21.004, Florida Administrative Code, on June 10, 2004, in Coral Gables, Florida, for consideration of a claim for restitution from the Construction Industries Recovery Fund (the "Recovery Fund"). William [a]nd Marlene Grubb ("Claimants") and Norman Levinsky ("Licensee") were duly notified of the proceedings. At the proceedings before the committee and the Board, Claimants were not present, and were not represented by counsel. Licensee was not present, and was not represented by counsel. Upon consideration of the documentation and testimony submitted, it is ORDERED: Claimants satisfied all requirements for payment from the Recovery Fund. The Recovery Fund Claim was filed on November 17, 1998. The application was timely filed. The contractor was paid $3,700.00. Claimants were awarded restitution from the Construction Industry Licensing Board on March 24, 2004, in the amount of $3,700.00, pursuant to a Final Order Approving Recommended Order of Disciplinary Action by Local Enforcement Body. The Board adopted and approved the Broward County Central Examining Board of Building Construction Trades recommendation, which found: Contractor held a current and active license at all times material to the transaction; The construction contract is dated September 18, 1997; The work was completed on March 10, 1998, and the roof began leaking June 1, 1998; Contractor failed to honor the warranty on the roof; As a result, Claimants paid an additional $1,025.00 for repair work; Contractor violated subsection 9- 14(b)(5)c of the Broward County Ordinances by committing mismanagement, which caused financial harm to a consumer because the consumer had to pay more for the contractual job than the original contract price. The contractor engaged in activity that appears [to] violate section 489.129(1)(g)2, Florida Statutes (2003). There is an asset search in the file that shows no assets are available from which claimant can satisfy the judgment. Pursuant to section 489.143, Florida Statutes (2003), the maximum amount that the Recovery Fund can pay on a single claim is $25,000.00. Thus, the claim for restitution from the Recovery Fund is APPROVED in the amount of $1,025.00. In accordance with rule 61G4-21.005, Florida Administrative Code, the Secretary of the Florida Department of Business and Professional Regulation is directed to pay the claim from the Recovery Fund after forty-five days from the date upon which the Final Order is filed with the Agency Clerk. Pursuant to section 489.143(6), Florida Statutes (2003), upon payment of the claim from the Recovery Fund, Licensee's licensure to practice contracting is AUTOMATICALLY SUSPENDED without any further administrative action. Pursuant to section 489.143(2), Florida Statutes (2003), upon receipt by Claimant under section 489.143(1), Florida Statutes (2003) of payment from the Recovery Fund, Claimant shall assign his or her additional right, title, and interest in the judgment or restitution order, to the extent of such payment, to the Board, and thereupon the Board shall be subrogated to the right, title, and interest of the Claimant; and any amount subsequently recovered on the award, judgment or restitution order by the Board, to the extent of the right, title, and interest of the Board therein, shall be for the purpose of reimbursing the Recovery Fund. This Order shall become effective upon filing with the Clerk of the Department of Business and Professional Regulation. DONE AND ORDERED this 21st day of June, 2004. Appended to the order was the following Notice of Right of Appeal: You are hereby notified that mediation is not available in this matter. Pursuant to Section 120.569, Florida Statutes, you may seek review of the above by filing a request for hearing with the Executive Director of the Board at 1940 North Monroe Street, Tallahassee, Florida 32399-2202 within twenty-one (21) days of the filing of this Order. Upon request, you will receive an informal hearing pursuant to section 120.57(2), Florida Statutes. In the alternative, you may request a formal hearing pursuant to Section 120.57(1), Florida Statutes, if there are material facts in dispute; if you request a formal hearing, the petition must contain the information required by Rule 28-106.201, Florida Administrative Code, including specification of the facts which are in dispute. If you request a hearing, you have the right to be represented by an attorney or other qualified representative to take testimony. On August 12, 2004, Petitioners filed a Request for Hearing, complaining that they "should be awarded at least $3,475.00" to be adequately compensated for all of the repairs they had to make to their roof as a result of Broward Roofing, Inc.'s failure to meet its responsibilities. On August 30, 2004, the Board referred the matter to DOAH "for the assignment of an Administrative Law Judge to conduct a formal hearing" pursuant to Section 120.57(1), Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board issue an order dismissing Petitioners' Request for Hearing challenging the Board's order, rendered July 29, 2004, disposing of their claim for monies from the Fund, but allowing them, if they so desire, to request that that order be vacated and re-rendered so that they will have the opportunity to file a timely appeal in accordance with Section 120.68, Florida Statutes. DONE AND ENTERED this 28th day of December, 2004, in Tallahassee, Leon County, Florida. S __ STUART M. LERNER 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 28th day of December, 2004.
The Issue The issues in each case are whether, pursuant to Sections 489.141 and 489.143, Florida Statutes (2003), a claimant is entitled to payment from the Construction Industries Recovery Fund, and, if so, whether, pursuant to Section 489.143(7), Florida Statutes (2003), Respondent may automatically suspend the residential contractor's license of Petitioner until Petitioner reimburses Respondent for the paid claim.
Findings Of Fact Petitioner is licensed as a certified residential contractor, holding license number CRC 013599. Respondent first issued a residential contractor's license to Petitioner in 1978, and Petitioner has been continually licensed since that time. Petitioner has never been disciplined by Respondent or any local governmental agency. On January 29, 2004, Respondent transmitted to the Division of Administrative Hearings seven files containing administrative complaints alleging disciplinary breaches against Petitioner for many of the transactions covered in the nine subject cases. These seven new cases have not yet been heard, and Respondent has not yet entered any restitution orders against Petitioner. In the past, Petitioner has placed his residential contractor's license with various corporations to qualify them to perform residential construction. In February 1999, Petitioner met with Lori Thomson, president of Thomson Homes, Inc., to discuss placing his license with her residential construction company. Now inactive, Thomson Homes, Inc., had been in the residential construction business since at least 1994, operating out of an office in Palm Beach County, which is also the location of all but one of the residential construction jobs that are the subject of these cases. Since 1994, Thomson Homes, Inc., had used the general contractor's license of Ms. Thomson's husband, Steven Thomson, to qualify to perform residential construction. During the time that his license qualified Thomson Homes, Inc., Mr. Thomson believed that he and his wife owned the corporation equally and that she served as the president and he served as the vice-president. In the summer of 1998, Mr. Thomson filed for divorce from Ms. Thomson. In February 1999, Ms. Thomson fired Mr. Thomson from Thomson Homes, Inc. Shortly thereafter, Mr. Thomson learned that Ms. Thomson had caused all of the stock to be issued to her when the corporation was formed, and that she had assumed all of the officer and director positions. In early March 1999, Mr. Thomson cancelled all of the building permits that he had obtained on behalf of Thomson Homes, Inc., and withdrew his general contractor's license from Ms. Thomson's corporation, effective March 20, 1999. When Mr. Thomson withdrew his license from Thomson Homes, Inc., it was in the process of building or preparing to build about ten homes. At no time during Petitioner's discussions with Ms. Thomson was he aware that Thomson Homes, Inc., was actively involved in construction. Eventually, Ms. Thomson and Petitioner agreed that Petitioner would place his residential contractor's license with Thomson Homes, Inc., and would supervise the corporation's construction activities. In return, Thomson Homes, Inc., would pay Petitioner $500 weekly and 35 percent of the profits. After filing the necessary documentation in April 1999, Petitioner qualified Thomson Homes, Inc. effective April 22 or 26, 1999. Petitioner advised Ms. Thomson that he had other work to do for another month, so he could not start with Thomson Homes, Inc. immediately. Ms. Thomson told him that she had to get financing arranged for several signed contracts and did not have any construction taking place at the time. The record is unclear whether this delay took place after the initial agreement between Petitioner and Ms. Thomson or after Petitioner formally placed his license with Thomson Homes, Inc. However, in either event, from the date that Petitioner formally placed his license with Thomson Homes, Inc., he never had a substantive conversation with Ms. Thomson about any construction activities of Thomson Homes, Inc. Not hearing from Ms. Thomson, Petitioner eventually called her to learn when he would start work. At first, Ms. Thomson took Petitioner's calls and kept explaining that the financing paperwork had been delayed. She promised to call Petitioner when construction was ready to proceed. However, Ms. Thomson never contacted Petitioner, and she later stopped taking or returning Petitioner's calls. In early August 1999, Petitioner called Thomson Homes, Inc., and learned that its telephone had been disconnected. He visited the office of Thomson Homes, Inc., but found it closed and the premises vacated. In fact, Thomson Homes, Inc., discontinued business on or about August 1, 1999. Between the date that Petitioner had qualified Thomson Homes and the point at which Thomson Homes ceased doing business, Thomson Homes, Inc., had entered into construction contracts, taken deposits and draws on construction loans, and performed residential construction--all unknown to Petitioner. Also unknown to Petitioner was the fact that Thomson Homes, Inc., had failed to perform its obligations under many, if not all, of its construction contracts during that period. The record is unclear when Petitioner withdrew his license from Thomson Homes, Inc. Petitioner sent Respondent a letter on August 30, 1999, advising of the withdrawal of his license from Thomson Homes, Inc. Later advised that he needed to file another form to effect the withdrawal, Petitioner did so in March 2000. The difference is not important in these cases. At no time did Petitioner receive any money from Thomson Homes, Inc., or any of the claimants who contracted with Thomson Homes, Inc. At no time did Petitioner enter into any contracts with any of the claimants. Only after Thomson Homes, Inc., had taken the claimants' money and abandoned work or failed to commence work did Petitioner learn that Thomson Homes, Inc., had done construction business under his license. DOAH Case No. 03-3540 involves the claim of Sandra Harvey. Ms. Harvey entered into a construction agreement with Thomson Homes, Inc., on September 9, 1998. Pursuant to the agreement, Ms. Harvey agreed to pay Thomson Homes, Inc., $25,500 for a lot and $115,260 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 120 days from the date of slab pour. After pouring the slab, constructing the shell, and completing the rough plumbing, air conditioning, and electrical, Thomson Homes, Inc., stopped work on Ms. Harvey's home in early 1999. Ms. Harvey learned of the problem when Mr. Thomson called her in early 1999 and said that he could not finish the home because Ms. Thomson had taken over the business. This call probably took place no later than late March 1999, when Mr. Thomas withdrew as the qualifier for Thomson Homes, Inc. The record does not reveal the extent of payments from Ms. Harvey or her lender or the extent of completed work at the time that Thomson Homes, Inc., abandoned the job. Although the complaint is not part of this record, Ms. Harvey commenced a legal action against Thomson Homes, Inc., but not Petitioner. She obtained a default final summary judgment against Thomson Homes, Inc., on March 30, 2001, for a total sum of $46,267.32, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part: Subsequent to entering into the above referenced contract, Defendant breached its contract by accepting Plaintiff's deposits and construction loan disbursements and thereafter abandoning the project and failing to pay subcontractors and/or materialmen for their labor, services and material provided. As a result of Defendant abandoning the project, Plaintiff was compelled to retain a new contractor to complete her home at an additional cost over and above the original contract amount. As a direct result of Defendant abandoning the project, the misapplication of construction funds and financial mismanagement Plaintiff has been forced to borrow additional funds from the construction lender. On May 3, 2001, Ms. Harvey filed a claim with the Construction Industries Recovery Fund (Recovery Fund). In response to a question asking if she had made a diligent effort to collect payment from the contractor, Ms. Harvey answered "yes," explaining she had "filed lawsuit." Ms. Harvey probably filed her claim within two years of when Thomson Homes, Inc., abandoned her job. By the end of March 1999, Mr. Thomson informed Ms. Harvey that his wife had fired him, so he could not work on her home anymore. A change in qualifier does not mean that Thomson Homes, Inc., would necessarily abandon the job, but, as noted in the Conclusions of Law, abandonment presumptively arises upon the expiration of 90 days without work. No work took place on Ms. Harvey's home after Mr. Thomson withdrew as qualifier, so presumptive abandonment took place by the end of June 1999--after May 3, 1999, which is two years prior to the date on which Ms. Harvey filed her claim. By letter dated June 5, 2001, from James Brogan of WEI Consulting Group to Ms. Harvey, Mr. Brogan states that he had investigated the assets of Thomson Homes, Inc. Mr. Brogan found no bankruptcy filing by Thomson Homes, Inc., in Bankruptcy Court in the Southern District of Florida. Thomson Homes, Inc., was a party to 282 legal actions and owed tangible personal property taxes on furniture in a model home, but the furniture was no longer available. On February 28, 2003, Respondent issued an Order approving Ms. Harvey's claim of $25,000 against the Recovery Fund and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that Ms. Harvey is the Petitioner, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. On March 17, 2003, Petitioner filed a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on Ms. Harvey and Respondent, contests the payment to Ms. Harvey and the automatic suspension of Petitioner's license. The petition contests the payment of Ms. Harvey's claim because she had made insufficient efforts to satisfy the judgment; she had failed to submit all required exhibits with her claim; her judgment is against Thomson Homes, Inc., and not Petitioner; her judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes; and Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes. Additionally, the petition contests the automatic suspension because the payment to Ms. Harvey is not authorized, her claim is incomplete, and her judgment is not against Petitioner. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. DOAH Case No. 03-3541 involves the claim of John and Kathleen Whitesides. The Whitesides, who lived at the time in Juno Beach, Florida, entered into a construction contract with Thomson Homes, Inc., on February 7, 1999. Pursuant to the agreement, the Whitesides agreed to pay Thomson Homes, Inc., $154,094 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 120 days from the date of slab pour. After the Whitesides paid Thomson Homes, Inc., $5000 and secured a construction loan, Thomson Homes, Inc., never commenced construction. In a complaint filed April 3, 2000, the Whitesides commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment]" of the job "prior to any construction," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction. The Whitesides obtained a default final judgment against Thomson Homes, Inc., on December 21, 2000, for a total sum of $20,146.67, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part: "Defendant is in breach of the Contract dated February 7, 1999, and has received unjust enrichment from Defendant's failure to fulfill the terms of the Contract to build a home for Plaintiffs." On August 9, 2001, David Tassell, the Whitesides' attorney in the circuit court action against Thomson Homes, Inc., stated, in an acknowledged statement, that he had performed "numerous" real property searches in Palm Beach and Martin counties' public records and determined that Thomas Homes, Inc., "owns no real property in Martin County." The omission of Palm Beach County in the statement is unexplained. Mr. Tassell's statement adds that he has retained a private investigator, who confirmed that Thomson Homes, Inc., owns no boats, planes, or automobiles. On August 10, 2001, the Whitesides filed a claim with the Recovery Fund. In response to a question asking if they had made a diligent effort to collect payment from the contractor, the Whitesides answered "yes," but did not supply an explanation in the following blank. The completed questionnaire accompanying the claim states that the Whitesides discovered the violation in September 1999 and that it occurred in July to August 1999. On September 17, 2002, Respondent issued an Order approving the Whitesides' claim of $18,526.67 against the Recovery Fund and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that the Whitesides are the Petitioners, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. The Whitesides probably filed their claim within two years of when they reasonably should have discovered that Thomson Homes, Inc., had wrongfully failed to commence construction, as is required for reasons set forth in the Conclusions of Law. As noted in the Conclusions of Law, presumptive abandonment arose when Thomson Homes, Inc., after entering the contract, performed no work for 90 days. Six months elapsed from the signing of the contract to the date that is two years prior to the filing of the claim. Although the record is not well-developed on the point, it is more likely than not that due diligence did not require that the Whitesides discover the abandonment within the first 90 days after it had presumptively arisen. The Whitesides' judgment is probably based on a violation of Section 489.129(1)(g), (j), or (k), Florida Statutes, as is required for reasons set forth in the Conclusions of Law. Although the record is not well-developed on this point either, it is more likely than not that the judgment is based on Thomson Homes' abandonment after entering into the contract. The judgment does not state this basis explicitly, but the complaint, on which the judgment is based, alleges abandonment. On December 23, 2002, Petitioner filed a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on Respondent and the Whitesides' attorney in the circuit court action against Thomson Homes, Inc., contests the payment to the Whitesides and the automatic suspension of Petitioner's license. The petition contests the payment of the Whitesides' claim because they did not file certified copies of the final judgment and levy and execution documents and their judgment did not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes. Additionally, the petition contests the automatic suspension because Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes; Petitioner received no notice of the hearing that resulted in the Order to pay the Whitesides and suspend Petitioner's license; the Whitesides' claim is incomplete; and the Whitesides' judgment is not against Petitioner. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. DOAH Case No. 03-3542 involves the claim of Richard and Kathleen Beltz. The Beltzes entered into a construction contract with Thomson Homes, Inc., on July 13, 1999. Pursuant to the agreement, the Beltzes agreed to pay Thomson Homes, Inc., $35,500 for a lot and $140,500 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 120 days from the date of slab pour. After the Beltzes paid Thomson Homes, Inc., $17,283.70, Thomson Homes, Inc., never appeared at the closing, which had been scheduled for August 10, 1999. Nor did Thomson Homes, Inc., ever commence construction. The record does not disclose the extent, if any, to which Thomson Homes, Inc., completed construction. The Beltzes' discovery of Thomson Homes' failure to commence construction was hampered by the fact that they resided in California at the time. However, the Beltzes had obviously discovered the wrongful acts and omissions of Thomson Homes, Inc., by September 29, 1999, when they sent a letter to Petitioner demanding that he return the money that they had paid Thomson Homes, Inc. On October 19, 1999, the Beltzes signed a claim under the Recovery Fund, but the record contains no indication when the claim was filed. The completed questionnaire attached to the claim does not ask if the claimants had made a diligent effort to collect payment from the contractor. For reasons set forth in the Conclusions of Law, a claim must follow a judgment, so, the Beltzes could not file a valid claim until they had obtained a judgment. Two years from September 29, 1999, at which point the Beltzes obviously knew of a violation, requires that they file the claim, on an already- secured judgment, prior to September 29, 2001. In a complaint filed February 4, 2002, the Beltzes commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment]" of the job "prior to any construction" and "fail[ure] and refus[al] to pay subcontractors and/or materialmen which resulted in Claims of Liens against Plaintiffs [sic] residence, which Defendant has failed and refused to satisfy," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction and pay for goods and services provided by subcontractors and materialmen. The Beltzes obtained a default final summary judgment against Thomson Homes, Inc., on May 22, 2002, for a total sum of $23,280.20, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part: Subsequent to entering into the above referenced contract, Defendant performed some work on the project. However, Defendant breached its contract by accepting deposits and construction loan disbursements and thereafter abandoning the project and failing to pay subcontractors and materialmen for their labor, services and material provided. As a result of Defendant failing to pay Lienors who provided labor, service and materials to Plaintiffs [sic] real property, Construction Liens were recorded against same, which Plaintiffs had to satisfy. As a result of Defendant abandoning the project, Plaintiffs were compelled to retain a new contractor to complete their home at an additional cost over and above the original contract amount. As a direct result of Defendant abandoning the project, failing to pay Lienors, the misapplication of construction funds and financial mismanagement, Plaintiffs were forced to borrow additional funds from their construction lender. By unacknowledged statement dated August 23, 2002, Ms. Beltz declared that someone at the Florida Department of State advised her that Thomson Homes, Inc., was administratively dissolved on September 24, 1999. She also declared that she had found on the internet two pieces of real property owned by Thomson Homes, Inc., but they had been transferred within the past year. Ms. Beltz stated that she searched the database of the "Department of Motor Vehicles in Palm Beach County" in May 2000 and found no vehicles or boats registered to Thomson Homes, Inc. Lastly, she reported that she contacted the "Federal Aviation Association" at an unspecified time and found no "airplanes" registered to Thomson Homes, Inc. On November 26, 2002, Respondent issued an Order approving the Beltzes' claim of $17,222.78 against the Recovery Fund and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that the Beltzes are the Petitioners, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. On December 27, 2002, Petitioner filed a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on the Beltzes and Respondent, contests the payment to the Beltzes and the automatic suspension of Petitioner's license. The petition contests the payment of the Beltzes' claim because they did not submit all of the necessary exhibits with their claim; their judgment is against Thomson Homes, Inc., and not Petitioner; and their judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes. Additionally, the petition contests the automatic suspension because Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes; the Beltzes' claim is incomplete; and the Beltzes' judgment is not against Petitioner. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. DOAH Case No. 03-3543 involves the claim of Keith and Karen Deyo. The Deyos entered into a construction contract with Thomson Homes, Inc., on October 31, 1998. Pursuant to the agreement, the Deyos agreed to pay Thomson Homes, Inc., $25,500 for a lot and $123,400 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 120 days from the date of slab pour. Although the Deyos clearly suffered damages from the acts and omissions of Thomson Homes, Inc., the record does not disclose how much they paid the company, how much they had to pay unpaid suppliers and laborers, and how much construction the company completed before abandoning the job. Thomson Homes, Inc., began construction on the Deyos' home about 30-45 days after the parties signed the contract, but all work stopped in July 1999. In an undated complaint, the Deyos commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment] of the project prior to completion" and "fail[ure] and refus[al] to pay subcontractors and/or materialmen which resulted in Claims of Liens against Plaintiffs [sic] residence, which Defendant has failed and refused to satisfy," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction and pay for goods and services provided by subcontractors and materialmen. The Deyos obtained a final summary judgment against Thomson Homes, Inc., on March 15, 2000, for a total sum of $55,458.64, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part: Subsequent to entering into the above referenced contract, Defendant partially performed work under the Contract. However, it breached its contract by accepting deposits and construction loan disbursements and thereafter abandoning the project and failing to pay subcontractors and materialmen for their labor, services and material provided. As a result of Defendant failing to pay lienors who provided labor, services and materials to Plaintiffs [sic] residence, construction liens were recorded against same, which Plaintiffs had to satisfy. As a result of Defendant abandoning the project, Plaintiffs were compelled to retain a new contractor to complete their home at an additional cost over and above the original contract amount. As a direct result of Defendant abandoning the project, failing to pay lienor's [sic], the misapplication of construction funds and financial mismanagement Plaintiffs have been forced to borrow additional funds from their construction lender. On April 27, 2000, the Deyos signed a claim under the Recovery Fund, but the record contains no indication when the claim was filed. A cover letter dated May 8, 2000, suggests that the Deyos mailed their claim a couple of weeks after signing it, so it was probably filed in mid-May 2000, although their questionnaire bears a revision date of November 2001, which would be beyond two years after the violation. In the questionnaire, the Deyos did not respond to the question asking if they had made a diligent effort to collect payment from the contractor. By an undated and unacknowledged statement, Mr. Deyo declared that someone at the Florida Department of State advised him that Thomson Homes, Inc., was administratively dissolved on September 24, 1999. He also declared that he had found on the internet two pieces of real property owned by Thomson Homes, Inc., but they had been transferred within the past year. Mr. Deyo stated that he searched the database of the "department of motor vehicles in Palm Beach County" in on April 14, 2000, and found no motor vehicles or boats registered to Thomson Homes, Inc. Lastly, he reported that he contacted the "Federal Aviation Association" on April 21, 2000, and found no "airplanes" registered to Thomson Homes, Inc. On January 22, 2003, Respondent issued an Order acknowledging the Deyos' claim of $55,458.64, approving the payment of the statutory limit of $25,000 against the Recovery Fund, and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that Mr. Deyo is the Petitioner, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. On February 3, 2003, Petitioner filed a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on Respondent and the Deyos' attorney who represented them in the action against Thomson Homes, Inc., contests the payment to the Deyos and the automatic suspension of Petitioner's license. The petition contests the payment of the Deyos' claim and suspension of Petitioner's license because Petitioner did not receive notice of the hearing at which Respondent entered the Order; the Deyos did not satisfy all requirements for payment from the Recovery Fund; their claim was not accompanied by certified copies of the levy and execution documents; their judgment is against Thomson Homes, Inc., and not Petitioner; their judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes; and Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. DOAH Case No. 03-3544 involves the claim of Sylvia Reinhardt. Ms. Reinhardt entered into a construction contract with Thomson Homes, Inc., on October 14, 1998. Pursuant to the agreement, Ms. Reinhardt agreed to pay Thomson Homes, Inc., $45,000 for a lot and $147,150 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 120 days from the date of slab pour. After Ms. Reinhardt paid Thomson Homes, Inc., $144,769, directly and indirectly, by way of her construction lender, the house was little more than half complete when Thomson Homes, Inc., abandoned the job. Thomson Homes also failed to pay various suppliers that filed liens, so Ms. Reinhardt had to pay $8550.41 to RTS Roofing, $882 to Palm Beach Garage Door, and $3421.32 to Woodworks, Inc. In an undated complaint filed in 1999 (actual date illegible), Ms. Reinhardt commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment]" of the job "prior to completion" and "fail[ure] and refus[al] to pay subcontractors and/or materialmen which resulted in Claims of Liens against Plaintiff's residence, which Defendant has failed and refused to satisfy," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction and pay for goods and services provided by subcontractors and materialmen. Ms. Reinhardt obtained a final summary judgment against Thomson Homes, Inc., on March 28, 2000, for a total sum of $61,471.15, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part: Subsequent to entering into the above referenced contract, Defendant performed work under the Contract. However, it breached its contract by accepting deposits and construction loan disbursements and thereafter abandoning the project and failing to pay subcontractors and materialmen for their labor, services and materials provided. As a result of Defendant failing to pay lienors who provided labor, services and materials for the construction of Plaintiff's residence, construction liens were recorded against same, which Plaintiff had to satisfy. As a result of Defendant abandoning the project, Plaintiff was compelled to retain a new contractor to complete their [sic] home at an additional cost over and above the original contract amount. As a direct result of Defendant abandoning the project, failing to pay lienor's [sic], the misapplication of construction funds and financial mismanagement Plaintiff has been forced to borrow additional funds from her construction lender. On April 17, 2000, Ms. Reinhardt filed a claim with the Recovery Fund. In response to a question asking if she had made a diligent effort to collect payment from the contractor, Ms. Reinhardt answered "yes" and explained: "Telephone calls were unanswered. Certified mail requesting response were [sic] never answered. Our attorney made written and personal contact with the owner and there was no intention to pay." The claim states that the violation took place in July 1999. By acknowledged statement dated July 21, 2000, Ms. Reinhardt declared that she had completed a "reasonable search and inquiry" and had not found any property or assets against which to satisfy her judgment. Ms. Reinhardt stated that someone at the Florida Department of State advised her that Thomson Homes, Inc., was administratively dissolved on September 24, 1999. She also declared that she had found one parcel of property owned by Thomson Homes, Inc., and valued at $115,387, but this had been sold to "Joan Thomson" on February 1, 2000. Ms. Reinhardt stated that she had found tangible personal property worth $5000. She added that she had not found any motor vehicles registered with the Department of Highway Safety and Motor Vehicles, nor had she found anything registered with the "FAA." On November 26, 2002, Respondent issued an Order acknowledging Ms. Reinhardt's claim of $58,661.44, approving the payment of the statutory limit of $25,000 against the Recovery Fund, and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that Ms. Reinhardt is the Petitioner, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. On December 24, 2002, Petitioner served a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on Ms. Reinhardt and Respondent, contests the payment to Ms. Reinhardt and the automatic suspension of Petitioner's license. The petition contests the payment of Ms. Reinhardt's claim and suspension of Petitioner's license because Ms. Reinhardt did not submit certified copies of the levy and execution documents; her judgment is against Thomson Homes, Inc., and not Petitioner; her judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes; and Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. DOAH Case No. 03-3545 involves the claim of Louis and Ann Mahoney. The Mahoneys entered into a construction contract with Thomson Homes, Inc., on June 28, 1999, for the construction of a home in Martin County. Pursuant to the agreement, the Mahoneys agreed to pay Thomson Homes, Inc., $32,000 for a lot and $149,000 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 150 days from the date of slab pour. After the Mahoneys paid Thomson Homes, Inc., $14,500, directly and indirectly, by way of their construction lender, they suffered damages due to the acts and omissions of Thomson Homes, Inc., although, again, the record does not describe specifically how Thomson Homes caused them damage. In an undated complaint that bears no filing date, the Mahoneys commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment]" of the job "prior to completion" and "fail[ure] and refus[al] to pay subcontractors and/or materialmen which resulted in Claims of Liens against Plaintiffs [sic] residence, which Defendant has failed and refused to satisfy," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction and pay for goods and services provided by subcontractors and materialmen. The Mahoneys obtained a final summary judgment against Thomson Homes, Inc., on April 13, 2000, for a total sum of $43,084.49, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part: Subsequent to entering into the above referenced contract, Defendant breached its contract by accepting Plaintiffs' deposits and construction loan disbursements and thereafter abandoning the project and failing to pay subcontractors and/or materialmen for their labor, and/or services provided. As a result of Defendant failing to pay lienor's [sic] who provided labor, services and materials for the construction of Plaintiffs [sic] residence, a construction lien was recorded against Plaintiffs' property, which Plaintiffs will have to satisfy. As a result of Defendant abandoning the project, Plaintiffs were compelled to retain a new contractor to complete their home at an additional cost over and above the original contract amount. As a direct result of Defendant abandoning the project, failing to pay lienor's [sic], the misapplication of construction funds and financial mismanagement Plaintiffs have been forced to borrow additional funds from their construction lender. On April 30, 2000, the Mahoneys signed a claim under the Recovery Fund. Although the claim form bears no filing date, the completed questionnaire attached to the claim was filed on May 3, 2000, so that is the likely filing date of the claim. In response to a question asking if they had made a diligent effort to collect payment from the contractor, the Mahoneys answered "yes" and explained: "This is explained in General Allegations, enclosed with this paperwork." Evidently, the reference is to a copy of the circuit court complaint. By acknowledged statement dated April 8, 2002, Mr. Mahoney declared that he had completed a "reasonable search and inquiry" and had not found any property or assets against which to satisfy his judgment. Mr. Mahoney stated that someone at the Florida Department of State advised him that Thomson Homes, Inc., was administratively dissolved on September 24, 1999. He also declared that an internet search had disclosed no property owned by Thomson Homes, Inc. Mr. Mahoney stated that the "department of motor vehicles in Palm Beach County" found no motor vehicles or boats registered to Thomson Homes, Inc., and that the "FAA" had found nothing registered to Thomson Homes, Inc. On February 28, 2003, Respondent issued an Order acknowledging the Mahoneys' claim of $38,185, approving the payment of the statutory limit of $25,000 against the Recovery Fund, and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that the Mr. Mahoney is the Petitioner, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. On March 17, 2003, Petitioner served a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on the Mahoneys and Respondent, contests the payment to the Mahoneys and the automatic suspension of Petitioner's license. The petition contests the payment of the Mahoneys' claim and suspension of Petitioner's license because they did not submit all of the required exhibits; their judgment is against Thomson Homes, Inc., and not Petitioner; their judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes; and Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. DOAH Case No. 03-3546 involves the claim of Dennis and Carolyn DeStefanis. The DeStefanises entered into a construction contract with Thomson Homes, Inc., on April 7, 1999. Pursuant to the agreement, the DeStefanises agreed to pay Thomson Homes, Inc., $137,455 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 150 days from the date of slab pour. After the DeStefanises paid Thomson Homes, Inc., $15,765, directly and indirectly, by way of their construction lender, Thomson Homes, Inc. never did any work, except to contract with a surveyor, who, unpaid, filed a claim of lien against the DeStefanises's lot. In an undated complaint bearing no filing date, the DeStefanises commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment]" of the job "prior to completion" and "fail[ure] and refus[al] to pay subcontractors and/or materialmen which resulted in Claims of Liens against Plaintiffs [sic] residence, which Defendant has failed and refused to satisfy," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction and pay for goods and services provided by subcontractors and materialmen. The DeStefanises obtained a final summary judgment against Thomson Homes, Inc., on March 15, 2000, for a total sum of $36,701.87, including attorneys' fees and costs. The judgment states, in part: Subsequent to entering . . . into the above referenced contract, Defendant, [sic] breached its contract by accepting Plaintiffs [sic] deposits and construction loan disbursements and thereafter abandoning the project. [sic] As a result of Defendant abandoning the project, Plaintiffs were compelled to retain a new contractor to complete their home at an additional cost over and above the original contract amount. As a direct result of Defendant abandoning the project, the misapplication of construction funds and financial mismanagement Plaintiffs have been forced to borrow additional funds from their construction lender. On April 19, 2000, the DeStefanises filed a claim with the Recovery Fund. In response to a question asking if they had made a diligent effort to collect payment from the contractor, the DeStefanises answered "yes" and explained: "Went to DBPR Investigative Services, hired Attorney Barry W. Taylor [attorney in circuit court action], got Final Summary Judgment against Thomson Homes, Inc." On March 20, 2003, Respondent issued an Order acknowledging the DeStefanises' claim of $34,965.52, approving the payment of $15,765 against the Recovery Fund, and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that the DeStefanises are the Petitioners, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. On April 7, 2003, Petitioner filed a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on the DeStefanises and Respondent, contests the payment to the DeStefanises and the automatic suspension of Petitioner's license. The petition contests the payment of the DeStefanises' claim and suspension of Petitioner's license because they did not submit all of the required exhibits; their judgment is against Thomson Homes, Inc., and not Petitioner; their judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes; and Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes. The petition contests the suspension of Petitioner's license on the additional ground that he was not the qualifier for Thomson Homes, Inc., when it and the DeStefanises entered into the construction contract. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. DOAH Case No. 03-3547 involves the claim of James and Donna Barr. The Barrs entered into a construction contract with Thomson Homes, Inc., on September 12, 1998. Pursuant to the agreement, the Barrs agreed to pay Thomson Homes, Inc., $30,000 for a lot and $140,900 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 120 days from the date of slab pour. The Barrs paid Thomson Homes, Inc., $8500 in the form of a down payment. They or their construction lender paid Thomson Homes, Inc., considerably more money and suffered the imposition of claims of lien by unpaid subcontractors and suppliers, but, after negotiating with the bank, emerged from the transaction having lost only the $8500 down payment. Thomson Homes, Inc., obtained permits in April 1999 and started construction in May 1999. Before abandoning the job, Thomson Homes, Inc., worked on the home in May, June, and July of 1999. The Barrs and their lender did not make additional payments after the Barrs found the Thomson Homes, Inc., office empty on August 1, 1999. In a complaint filed October 6, 1999, the Barrs commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment]" of the job "prior to completion" and "fail[ure] and refus[al] to pay subcontractors and/or materialmen which resulted in Claims of Liens against Plaintiffs [sic] residence, which Defendant has failed and refused to satisfy," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction and pay for goods and services provided by subcontractors and materialmen. The Barrs obtained a final summary judgment against Thomson Homes, Inc., on May 8, 2000, for a total sum of $45,435.62, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part: Subsequent to entering into the above referenced contract, partially performed work under the Contract. However, Defendant breached the contract by accepting Plaintiffs [sic] deposits and construction loan disbursements and thereafter abandoning the project and failing to pay subcontractors and/or materialmen for their labor services and materials provided. As a result of Defendant failing to pay lienors who provided labor, services and materials for the construction of Plaintiffs [sic] residence, construction liens were recorded against same, which Plaintiffs will have to satisfy. As a result of Defendant abandoning the project, Plaintiffs will be compelled to retain a new contractor to complete their home at an additional cost over and above the original contract amount. As a direct result of Defendant abandoning the project, failing to pay lienors, the misapplication of construction funds and financial mismanagement Plaintiffs will be forced to borrow additional funds from their construction lender. On June 2, 2000, the Barrs filed a claim under the Recovery Fund. In response to a question asking if they had made a diligent effort to collect payment from the contractor, the Barrs answered "yes" and explained: "I have looked into the assets of Thomson Homes Inc. and they do not have any. My affidavit is attached." The completed questionnaire states that the Barrs discovered the violation on August 11, 1999. They therefore failed to file their claim within two years of the discovery of the violation. By acknowledged statement dated May 23, 2000, Ms. Barr declared that she had completed a "reasonable search and inquiry" and had not found any property or assets against which to satisfy her judgment. Ms. Barr stated that someone at the Florida Department of State advised her that Thomson Homes, Inc., was administratively dissolved on September 24, 1999. She also declared she had found no property owned by Thomson Homes, Inc., in Palm Beach County. Ms. Barr stated that the Department of Highway Safety and Motor Vehicles found no motor vehicles or boats registered to Thomson Homes, Inc., and that the internet site of the "FAA" had revealed nothing registered to Thomson Homes, Inc. On November 26, 2002, Respondent issued an Order approving the payment of the Barrs' claim of $8500 against the Recovery Fund and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that the Barrs are the Petitioners, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. On December 27, 2002, Petitioner served a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on the Barrs and Respondent, contests the payment to the Barrs and the automatic suspension of Petitioner's license. The petition contests the payment of the Barrs' claim and suspension of Petitioner's license because they did not submit a certified copy of the levy and execution documents; their judgment is against Thomson Homes, Inc., and not Petitioner; their judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes; and Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. DOAH Case No. 03-3633 involves the Joanne Myers. Ms. Myers entered into a construction contract with Thomson Homes, Inc., on February 7, 1999. Pursuant to the agreement, Ms. Myers agreed to pay Thomson Homes, Inc., $29,500 for a lot and $125,400 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 120 days from the date of slab pour. Ms. Myers directly or indirectly paid Thomson Homes, Inc., $12,840. According to Ms. Myers' claim, Thomson Homes, Inc., never commenced construction before going out of business in August 1999. In an undated complaint bearing no filing date, Ms. Myers commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment]" of the job "prior to completion" and "fail[ure] and refus[al] to pay subcontractors and/or materialmen which resulted in Claims of Liens against Plaintiff's residence, which Defendant has failed and refused to satisfy," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction and pay for goods and services provided by subcontractors and materialmen. Ms. Myers obtained a final summary judgment against Thomson Homes, Inc., on May 31, 2000, for a total sum of $28,307.77, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part: Subsequent to entering . . . into the above referenced contract, Defendant breached the contract by accepting Plaintiff's deposits and construction loan disbursements and thereafter abandoning the project and failing to pay subcontractors and/or materialmen for their labor services and materials provided. As a result of Defendant failing to pay lienor's [sic] who provided labor, services and/or materials for the construction of Plaintiff's residence, construction liens were recorded against same, which Plaintiff will have to satisfy. As a result of Defendant abandoning the project, Plaintiff will be compelled to retain a new contractor to complete her home at an additional cost over and above the original contract amount. As a direct result of Defendant abandoning the project, failing to pay lienor's [sic], the misapplication of construction funds and financial mismanagement Plaintiff will be forced to borrow additional funds from her construction lender. On September 18, 2000, Ms. Myers filed a claim with the Recovery Fund. In response to a question asking if she had made a diligent effort to collect payment from the contractor, Ms. Myers answered "yes" and explained: "Contractor closed corporate office--would not answer telephone calls." By letter dated November 30, 2000, from James Brogan of WEI Consulting Group to Ms. Myers, Mr. Brogan states that he had investigated the assets of Thomson Homes, Inc. Mr. Brogan found no bankruptcy filing by Thomson Homes, Inc., in the Southern District of Florida. Thomson Homes, Inc., was a party to 282 legal actions and owed tangible personal property taxes on furniture in a model home. On February 28, 2003, Respondent issued an Order approving the payment of Ms. Myers' claim of $14,080.66 against the Recovery Fund and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that Ms. Myers is the Petitioner, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. On March 17, 2003, Petitioner filed a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on Ms. Myers and Respondent, contests the payment to Ms. Myers and the automatic suspension of Petitioner's license. The petition contests the payment of Ms. Myers' claim and suspension of Petitioner's license because she did not submit evidence of a diligent search for assets; she did not submit all of the required exhibits; her judgment is against Thomson Homes, Inc., and not Petitioner; her judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes; and Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. On January 4, 2004, Ms. Myers died. However, the probate court of Lancaster County, Pennsylvania, issued letters testamentary on her estate to James W. Myers III, in whose name Ms. Myers' claim is now being prosecuted. At the hearing, Petitioner contended that most, if not all, of the claims failed because the claimants had not exercised reasonable diligence in searching for assets, although Petitioner has dropped this contention in its proposed recommended order. In his petitions for hearing, Petitioner raised this contention only as to Ms. Myers. Ms. Myers, as well as the remainder of the claimants, made or caused to be made a reasonable search and inquiry for the assets of Thomson Homes, Inc. It is obvious that Thomson Homes, Inc., had no assets by the first letter from Mr. Brogan, dated November 30, 2000, nor did it have assets when Mr. Brogan issued his later letter on June 5, 2001, or when the attorney issued his affidavit on August 9, 2001. What is reasonable, in terms of a search, is dictated here by the fact that Thomson Homes, Inc., had no discoverable assets against which it could be made to answer for the considerable fraud that it perpetrated against these nine claimants. Respondent provided all of the parties, including Petitioner, with notice of its hearings at which it entered Recovery Fund orders. The petitions contend that Petitioner received no such notice in the Whitesides and Deyos cases. Although not litigated at the hearing, the presumption of notice, pursuant to the recitations set forth in each of Respondent's orders, results in a finding that Petitioner received timely notice in all cases.
Recommendation It is RECOMMENDED that Respondent enter a final order dismissing the claims against the Recovery Fund of the Beltzes and Barrs; paying the claims against the Recovery Fund of the remaining claimants, pursuant to the provisions of the orders of Respondent already issued in these cases and pursuant to the provisions of Section 489.143(1)-(6), Florida Statutes; and dismissing Respondent's request for the automatic suspension of Petitioner's license, pursuant to Section 489.143(7), Florida Statutes, without prejudice to any separate disciplinary proceedings that Respondent has commenced or may commence against Petitioner or others for the acts and omissions involved in these nine cases. DONE AND ENTERED this 17th day of February, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 17th day of February, 2004. COPIES FURNISHED: Bruce G. Kaleita Law Office of Bruce G. Kaleita, P.A. 1615 Forum Place, Suite 500 West Palm Beach, Florida 33401 Adrienne C. Rodgers Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-1023 Tim Vaccaro, Director Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Nancy Campiglia, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue At issue is whether Respondent committed the offenses set forth in the Administrative Complaints and, if so, what penalty should be imposed.
Findings Of Fact The parties Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Department), is a state agency charged with the duty and responsibility for regulating the practice of contracting pursuant to Section 20.165, Florida Statues, and Chapters 455 and 489, Florida Statutes. Respondent, Richard M. Golfman, was, at all times material hereto, licensed by the Department as a certified general contractor, having been issued license number CG C032860, and authorized to engage in the practice of general contracting as an individual.1 The Feinstein project (DOAH Case No. 00-0599) On or about October 30, 1998, Respondent entered into a written contract with Norman and Sheila Feinstein to furnish the materials and perform the labor necessary to enclose and remodel the screened patio, and to build a rock garden, at their home located at 5468 Northwest 20th Avenue, Boca Raton, Florida, for the sum of $5,000. At the time, the Feinsteins paid Respondent $1,500 as the initial payment (deposit) under the terms of the contract. The contract Respondent presented and the Feinsteins executed on October 30, 1998, did not include Respondent's license number, nor did it contain a statement concerning consumers' rights under the Construction Industries Recovery Fund. Following execution of the contract, Respondent made repeated promises to construct the rock garden; however, it was not until November 10, 1998, that Respondent appeared on-site and constructed the rock garden, albeit not to the Feinsteins' satisfaction. Subsequently, Respondent had some high-hat electrical fixture cans and a bundle of furring strips delivered to the home for the patio project but, thereafter, despite repeated requests, refused to perform any work on the project or refund any money to the Feinsteins. The value of the labor and materials Respondent invested in the rock garden, as well as the cost of the building materials (the high-hat fixtures and furring strips) delivered to the job-site, was $250, a sum considerably less than the $1,500 the Feinsteins had entrusted to Respondent under the terms of their agreement. The Burres/Berger project (DOAH Case No. 00-0600) On or about November 23, 1998, Respondent submitted a written proposal to Tanya Burres to furnish the materials and perform the labor necessary to replace the existing roof on her home located at 7270 Montrico Drive, Boca Raton, Florida, for the sum of $22,125. The proposal was a one-page preprinted form. In the upper left there appeared, printed immediately following Respondent's handwritten name, the following: THE GOLFMAN GROUP, INC. P.O. Box 811926 Boca Raton, Florida 33431 The proposal did not include Respondent's license number, nor did it contain a statement concerning consumers' rights under the Construction Industries Recovery Fund. At the time the proposal was submitted, Tanya Burres was under contract to sell the home to Drs. Glenn Berger and Michelle Fiorillo, husband and wife (the Bergers), and Ms. Burres had agreed to split with the Bergers the cost of a new roof for the home. At the time, Ms. Burres had suggested the Respondent as a contractor to perform the work (because he had previously done satisfactory work for Ms. Burres); however, it was understood that the employment of any contractor was subject to the Bergers' approval. That the Bergers' agreement was required before any such employment would be accepted was clearly conveyed to Respondent. On November 23, 1998, Tanya Burres signed the proposal and gave Respondent a check payable to his order in the sum of $1,106.25, representing her half of the ten percent deposit called for by the proposal. The Bergers, however, declined to accept the proposal, and refused Respondent's request for the balance of the deposit. Rather, the Bergers, having received adverse information from the Department regarding Respondent's record, preferred to employ a different contractor, and Ms. Burres accorded the Bergers a monetary credit at closing (on the purchase of the home) for one-half the cost to re-roof the home. When the Bergers informed Ms. Burres (shortly after she signed the proposal on November 23, 1998) that they would not agree to use Respondent, Ms. Burres attempted to stop payment on her check; however, the check had already been cashed. Thereafter, Ms. Burres attempted on numerous occasions to contact Respondent by telephone and by his pager, but Respondent failed to return any of her calls or messages. To date, Respondent has failed to account for or return Ms. Burres' deposit of $1,106.25. The costs of investigation and prosecution As of February 25, 2000, the Department's costs of investigation and prosecution, excluding costs associated with any attorney's time, totaled $234.85 for DOAH Case No. 00-0599 (the Feinstein project) and $195.65 for DOAH Case No. 00-0600 (the Burres/Berger project.) Previous disciplinary action At hearing, the Department offered proof that, on two prior occasions, Respondent had been subjected to disciplinary action by the Construction Industry Licensing Board (the Board). (Petitioner's Exhibit 2.) The first occasion is reflected in the terms of a Final Order of the Board, dated August 4, 1987, which found Respondent guilty of the violations alleged in the Administrative Complaint (which were not revealed at hearing beyond what may be inferred from the terms of the Final Order), and resolved that Respondent suffer the following penalty: Respondent's licensure is hereby suspended for ten (10) years. Provided, Respondent may obtain termination of said suspension at anytime, without further action by the Board, upon providing the Board's Executive Director with a certified bank check in an amount sufficient to cover and pay a fine of five hundred dollars ($500), and the bad check alleged in the Administrative Complaint, and all service charges in connection therewith, and all other fees accruing as of the date Respondent seeks said termination of supervision. The second occasion Respondent was subjected to disciplinary action is reflected in the terms of a Final Order of the Board, dated July 18, 1997, which approved a stipulated settlement of certain complaints then pending before the Board. That Final Order approved the dismissal of a number of counts contained in five Administrative Complaints then pending before the Board and, as to the remaining counts, agreed (without Respondent admitting or denying the allegations of fact contained in the Administrative Complaints) to the following penalty: 3. FINE AND COSTS: Respondent shall pay a fine of Nine Hundred dollars ($900.00) and costs of Eight Hundred fifty One dollars ($851) to the Board within thirty (30) days of the filing of the Final Order. Said payment shall be in the form of a cashier's or certified check and shall be made payable to the "Construction Industry Licensing Board." To assure payment of the fine and costs, it is further ordered that all of Respondent's licensure to practice contracting shall be suspended with the imposition of the suspension being stayed for thirty (30) days. If the ordered fine and costs are paid in compliance with the terms set forth above, the suspension imposed shall not take effect. However, should payment not be timely made, the stay shall be lifted and Respondent's license shall be immediately suspended. Upon payment of the fine and costs in full, the suspension imposed shall be lifted. Respondent apparently satisfied the fines and costs imposed by the foregoing orders. (Petitioner's Exhibit 2.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered adopting the foregoing findings of fact and conclusions of law, and which, as a penalty for the violations found, imposes an administrative fine in the total sum of $13,500.00, revokes Respondent's licensure, orders that Respondent pay restitution to Norman and Sheila Feinstein in the sum of $1,250.00 and to Tanya Burres in the sum of $1,106.25, and assesses costs of investigation and prosecution (through February 25, 2000) in the total sum of $430.50 against Respondent. DONE AND ENTERED this 22nd day of June, 2000, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 22nd day of June, 2000.
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.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint and, if so, what disciplinary action should be taken against him.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent has been a Florida-licensed general contractor (holding license number CGC 062108) since February 5, 2001. At all times material to the instant case, JQC held a certificate of authority authorizing it to engage in contracting in Florida through a qualifying agent. At all times material to the instant case, Respondent was the primary qualifying agent for JQC. On or about May 10, 2007, JQC, through Respondent, entered into a written contract (Building Contract) with Marienne Cavalier, agreeing, for $95,000.00, to construct an addition to the Miami, Florida residence (Residence) of Ms. Cavalier and her husband, Wilfrid Pierre-Louis (Project). The Building Contract provided as follows: For Architectural, Engineering, Permit Expediting and Construction Services in the sum of Ninety Five Thousand Dollars ($95,000.00) based on the following criteria: Architectural services to be provided consist of the following: Bringing into compliance the existing residence with the Zoning & Building Department[']s Requirements for the City of North Miami Beach, in the State of Florida. Complete set of working drawings to include, Design Development, Site Plan/Floor Plan in compliance with the "Florida Building Code" & the Florida Accessibility Code (Handicapped). Exterior Elevations (Facades). Wall Sections & details as required to assure design intent and constructability. Engineering services to be provided consist of the following: Foundation plan and specifications. Plumbing plan and specifications. Electrical plan and specifications. Mechanical plan and specifications. Roof framing plan and specifications. Air conditioning system calculations as per the State of Florida. Home Energy calculations as per the requirements of the State of Florida. Hurricane Wind Load calculations as per the requirements of the Florida Building Code. Permit Expediting services to be provided consist of the following: Submitting of Plans and Application to the Building Department for processing. Going to the Building Department to pick up Plans each time there are revisions to be made, delivering the Plans to the Architect/Engineer for review and re-submitting the Plans to the Building Department. Coordinating plan review between Architect/Engineer and Building Department so as to obtain the Building Permit in a reasonable amount of time. Construction services to be provided consist of the following: Labor and materials included Relocating existing front door Entrance and construction of new Terrace. Demolition of existing Bathroom. Extension of kitchen wall. Relocation of existing Air Conditioning Unit and Duct Work. Demolition of Existing Partitions and Installation of new Partition work to include Dining Room, Living Room and Florida Room. Raising of concrete floor Slab at existing addition. Installation of tiles at new concrete floor. Construction of new Master Bedroom, Master Bathroom and Walk-In Closet. Construction of new Laundry Room. Construction of new Office Room. Demotion of existing flat roof addition. Raising existing tie-beam of flat roof to match the height of the house. Construction of new roof. Installation of new Doors and Windows. New concrete sidewalk at rear of house. Stucco and Painting of new Addition. Painting of Interior walls. Insulation of new Addition Walls and Ceiling. Mechanical work to existing addition as per plans. Plumbing work to existing addition as per plans. Electrical work to existing addition as per plans. Trash Container and Disposal of construction debris. Portable Toilet. Items not included: New Air Conditioner if required by Building Department. Any work related to the existing Septic Tank system. Driveway. Landscaping. Terms of Agreement First Payment (Initial Down Payment) $3,000.00 Second Payment $4,000.00 (Due at Submittal of Plans Building Department) to the Third Payment $24,000.00 (Due at Approval of Construction Permit) Fourth Payment $20,000.00 (Due after First Inspection) Fifth Payment (Due at 50% of $20,000.00 Work Completion) Sixth Payment (Due at 75% of $20,000.00 Work Completion) Seventh Payment $4,000.00 (Due upon Final Inspection) Total cost of Work $95,000.00 Items not specified in this agreement are not part of this contract. Fees for Permits and other Inspections (if required) are not included in the indicated cost above. There was no written statement in the Building Contract explaining a consumer's rights under the Construction Industries Recovery Fund, as then required by Section 489.1425, Florida Statutes (2006). JQC commenced work on the Project after the Building Contract was signed by Respondent and Ms. Cavalier. There were expenses that JQC incurred in connection with the Project that were "unexpected" and "not anticipated," including those related to the demolition work required by the Building Contract. In addition to doing work required by Building Contract (Project Work), JQC did extra work on the Residence (Extra Work), at Mr. Pierre-Louis's request, resulting in further "additional expenses being incurred that were not [contemplated] in the original contract." Respondent (acting on behalf of JQC) and Mr. Pierre-Louis verbally agreed that this Extra Work would be undertaken by JQC, but nothing was ever reduced to writing.2 There came a time, after he and his wife had made several payments to JQC, that Mr. Pierre-Louis became dissatisfied with the pace of the JQC's efforts. Mr. Pierre- Louis confronted Respondent and erroneously "accused [Respondent] of stealing the money" he and his wife had paid (instead of using it to do the work JQC had agreed to do on the Residence). In fact, "the money was being spent on the [improvements to the Residence]." Mr. Pierre-Louis "even called the police on [Respondent]." Respondent was interviewed by a police detective, who, following the interview, told Respondent that "this seem[ed] to be a civil case," not a "criminal" matter. No criminal charges were ever filed against Respondent. To avoid any similar misunderstanding on Mr. Pierre- Louis's part in the future, Respondent told Mr. Pierre-Louis that he and his wife should not give Respondent "a single dollar," but they, instead, should themselves directly pay the workers JQC had working on the job site and also "buy the necessary materials." In or around June 2009, JQC temporarily stopped working on the Residence because "there wasn't any money available" to pay for labor and materials. As of the date of the stoppage of work, approximately 50% of the Project Work and Extra Work had been completed, and Ms. Cavalier and Mr. Pierre-Louis had made the following payments for the Project Work and Extra Work: payments by check to JQC and Respondent, totaling $86,478.85; cash payments to Respondent, totaling $1,553.62; payments by check to JQC workers, totaling $7,835.00; cash payments to JQC workers, totaling $3,600.00; $1,000.00 for concrete; $600.00 for tar paper; and $500.00 for plywood. Respondent explained to Mr. Pierre-Louis that JQC was stopping work on the Residence because the money had "run out," and he assured Mr. Pierre-Louis that JQC would resume the work "whenever [Mr. Pierre-Louis] ha[d] some money available," an assurance that was sincerely made. Mr. Pierre-Louis, in turn, told Respondent that it was his intention to secure the funds necessary to finish the work. Three months later, when Mr. Pierre-Louis "did get some money," he let Respondent know. JQC thereupon began working on the Residence again (as Respondent had promised it would),3 and it has continued to work on the Residence (doing the Project Work and Extra Work) on an ongoing basis (with Ms. Cavalier and Mr. Pierre-Louis paying for labor and materials,4 as they had done immediately before the work had stopped). While Ms. Cavalier and Mr. Pierre-Louis have paid the workers doing the Project Work and Extra Work, these workers have at all times been under Respondent's supervision. As of the date of the final hearing in this case, at least 90% of the Project Work and Extra Work had been completed. Undertaking the Project Work and Extra Work has been a money-losing venture for JQC and Respondent. Petitioner has incurred a total of $297.10 in investigative and prosecutorial costs in connection with the instant case (excluding costs associated with any attorney's time).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board issue a Final Order: (1) dismissing Counts One and Two of the Administrative Complaint; (2) finding Respondent guilty of violating Section 489.129(1)(i), Florida Statutes, by failing to comply with Section 489.1425, Florida Statutes, as alleged in Count III of the Administrative Complaint; (3) fining him $375.00 for having committed this violation; and (4) ordering him to reimburse the Department for investigative and prosecutorial costs related to this violation. DONE AND ENTERED this 6th day of December, 2010, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 6th day of December, 2010.
Findings Of Fact Petitioners in this proceeding challenge the validity of proposed Rule 21E-15.05(2) , Florida Administrative Code. The rule, as noted in the October 2, 1981, issue of the "Florida Administrative Weekly," provides as follows: An applicant shall also be required to submit proof that he can be bonded in the amount of $5000 by a surety corporation authorized to do business in the State of Florida and that said bond shall be currently in force and effect and executed subject to the following conditions: The terms of the bend shall be In a form acceptable to the Florida Construction Industry Licensing Board and shall remain in full force and effect if the applicant obtains a license as a certified contractor under the Chapter 489, Florida Statutes, and shall be furnished to the Florida Construction Industry Licensing Board before issuance of a license. The bend shall be subject to claim by any consumer sustaining monetary damages caused by or arising out of acts of the contractor found by the Florida Construction Industry Licensing Board to be violations of subsections (d), (h) or (k) of Section 489.129(1), Florida Statutes, provided that: The consumer is the owner or lessee of real property who has contracted with the certified contractor for the construction, improvement or alteration of a structure or structures on such real property, and the consumer has incurred monetary damages as a result of this contractual relationship. Suit for such claim must be commenced within one year from the date of the finding of the Florida Construction Industry Licensing Board of a violation of subsections (d), or (k) of Section 489.129(1), Florida Statutes, on which such suit is based. Suit for such claim must be based on acts of the contractor performed in his capacity as a certified contractor and not for any acts which he may have performed in the capacity of a registered contractor. The amount of the claim paid by the bending company shall be based on a final judgment in a court of competent jurisdiction or an out of court settlement. Subsequently, the proposed rule was amended to limit the period during which the required bond is to be in effect to two years from the date of issuance of a license. The proposed rule, as amended, was noticed in the November 25, 1981, issue of the "Florida Administrative Weekly." The Board is the state agency charged by statute with determining the qualifications for licensure of persons seeking statewide certification to engage in the construction and home improvement industries in the State of Florida. Section 489.115(1), Florida Statutes. In making this determination, the Board is also authorized by statute to adopt rules defining "financial responsibility" in order to determine whether an applicant should be issued a certificate or registration. Section 489.115(4) , Florida Statutes. Petitioner, Florida Home Builders Association, is a nonprofit trade association consisting of over twelve thousand members, including builders, developers, manufacturers, subcontractors and suppliers. Petitioner, Bruce Johnson, has been licensed in Leon County as a residential contractor for aPPRDximately fourteen months. In order to obtain his residential contractor's license, he was required to pass a licensing examination. While so licensed, Mr. Johnson has completed one speculative residential home, which was subsequently sold. Mr. Johnson currently has no projects under construction. At final hearing, Mr. Johnson indicated that he would "potentially" like to take the state licensing examination, perhaps within the next two years. Petitioner Johnson has never applied to the Board for state certification in any category, but has been advised by a Tallahassee insurance agency representing several national bonding companies, that he would be ineligible for the type of bond required under the Board's proposed rule because his financial assets are currently insufficient to induce a bonding company to issue the required bond. Prior to the final hearing in this cause, the Board filed a Motion to Dismiss for Lack of Jurisdiction, asserting that Petitioners each lacked "standing" to challenge the proposed rule. Because the issues raised in that motion involve a mixed question of law and fact, ruling was reserved until after the taking of testimony. In light of the fact that the Hearing Officer has determined that on the basis of the facts of record the Board's Motion to Dismiss is well taken, no findings are made concerning Petitioners' allegations that the Board lacks authority to adopt the rule, that the economic impact statement is invalid and that the rule is not based upon competent substantial evidence.
