The Issue Whether pursuant to Sections 57.111 or 120.595(1), Florida Statutes, Petitioner Rafael R. Palacios (Palacios) should be awarded reasonable costs and attorney's fees incurred in defense of an administrative proceeding against him that was initiated by the Respondent, Department of Business and Professional Regulation (Department). Whether pursuant to Section 120.595(1), Florida Statutes, Petitioner Steven L. Johns (Johns) should be awarded reasonable costs and attorney's fees incurred in defense of an administrative proceeding against him that was initiated by Respondent.
Findings Of Fact Petitioner, Steven L. Johns, is a Florida Certified General Contractor and the principal qualifier for C. G. Chase Construction Company (Chase Construction). In 1994, Chase Construction entered into a construction contract with Carnival Cruise Lines for an expansion project at the Port of Miami. Chase Construction subcontracted the mechanical work to R. Palacios & Company. Petitioner, Rafael R. Palacios, is the president, primary qualifier, and 100 percent stockholder of R. Palacios & Company. Palacios' principal place of business is located in Miami, Florida. In July and December 1998, Palacios employed less than 25 employees and had a net worth of less than $2,000,000. The contract for the Port of Miami project consisted of two phases. Phase I was to construct an arrival lobby and an enclosed walkway to a terminal. Phase II included the addition of boarding halls, the renovation of an existing elevated area, and the addition of baggage areas. A foundation permit had been pulled for Phase I. The foundation work was quickly completed, and Chase Construction representatives advised both the Port of Miami and Carnival Cruise Lines that they could go no further without a permit. Work stopped for a short period of time. In June 1995, a Representative from the Port of Miami called Chase Construction and told them to go to the Dade County Building and Zoning Department (Building Department) the next day to meet with Port of Miami officials, the architect, and building and zoning officials. Johns sent Dave Whelpley, who was a project manager and officer of Chase Construction. Palacios did not attend the meeting. Dr. Carlos Bonzon (Bonzon) was the director and building official of Dade County's Building Department during the majority of the construction activities at the Port of Miami by Chase Construction. As the building official, Dr. Bonzon gave verbal authorization for the work on the project to proceed above the foundation without a written permit. Inspections were to be done by the chief inspectors for Dade County. After the meeting with the Building Department officials in June 1995, Johns understood that authorization had been given by the building official to proceed with construction without a written permit. Work did proceed and inspections were made on the work completed. The Dade County Building Code Compliance Office (BBCO) had the responsibility to oversee Dade County's Building Department. In early 1996, an officer of the BBCO accompanied a building inspector during an inspection of the Port of Miami project. It came to the attention of the BBCO officer that no written permit had been issued for the project. The BBCO officer notified the chief of code compliance for Dade County. A written permit was issued for Phase II of the Port of Miami Project on February 6, 1996, at which time approximately 80 percent of the work had been completed. On the same date, Chase Construction issued a memorandum to its subcontractors to secure the necessary permits. Shortly after the permits were issued, an article appeared in the Miami Herald concerning the project and the lack of written permits. Respondent, Department of Business and Professional Regulation (Department) became aware of the situation as a result of the newspaper article and began an investigation. Diane Perera (Perera), an attorney employed by the Department since 1993 to prosecute construction-related professional license law violations, played a major role in determining and carrying out the Department's subsequent actions regarding the Port of Miami project and persons licensed by the Department who had been involved in the project. The Department opened investigations against eight Department licensees. Those licensees included two building officials, Bonzon, and Lee Martin; four contractors, Johns, Palacios, Douglas L. Orr, and D. Jack Maxwell; one engineer, Ramon Donnell; and one architect, Willy A. Bermello. By Administrative Complaint prepared by Perera and filed on September 9, 1997, before the Building Code Administrators and Inspectors Board (BCAIB), the Department charged Bonzon with various violations of Part XIII of Chapter 486, Florida Statutes, for having allowed above-grade construction on the project to proceed in the absence of approved plans and building permits. In conjunction with the Bonzon case, Charles Danger (Danger), a licensed professional engineer and Director of BBCO testified in a deposition that above-grade construction of the project had proceeded without a building permit and without approved plans in violation of Chapter 3, Section 301 of the South Florida Building Code. He also testified that Bonzon had exceeded his authority under the South Florida Building Code by authorizing the above-grade construction and that the contractors who performed the work did so in violation of the South Florida Building Code. The Department's charges against Bonzon were resolved through a settlement agreement, whereby Bonzon agreed to relinquish his building code administrator's license. A final order of the BCAIB accepting the settlement agreement was filed on July 2, 1998. In the settlement agreement, Bonzon specifically agreed that his interpretation of the South Florida Building Code provisions, including portions of Section 301, was erroneous. On June 24, 1998, the Department presented the Department's Case Number 97-17322 involving Johns to the Division I Probable Cause Panel (PCP) of the Construction Industry Licensing Board (CILB). The panel members on this date were Gene Simmons and Wayne Beigle. Stuart Wilson-Patton and Leland McCharen, assistant attorneys general, were present to provide legal advise to the PCP. The prosecuting attorney presenting the case to the panel was Perera. The Department was requesting a finding of probable cause against Johns for a violation of Section 489.129(1)(d), Florida Statutes, for knowingly violating the applicable building code by performing above-grade construction work on the Port of Miami project in the absence of approved plans and specifications. Prior to the meeting of the Division I PCP of the CILB, Perera had furnished the two panel members documentary evidence pertaining to the case, copies of which were received in evidence at the final hearing as Respondent's Exhibits 5 and 13, with the exception of a letter dated July 31, 1998, from Petitioners' attorney, Renee Alsobrook. Respondent's Exhibit 5 consisted of materials taken from the Bonzon and Lee Martin cases, including the transcript of the December 22, 1997, deposition of Charles Danger, who was the building officer for the BBCO from 1991 to 1998. Respondent's Exhibit 13 was the investigative file for the Johns' case. The Division I PCP discussed Johns' case and voted to request additional information regarding whether any fast track ordinance existed in Dade County, and if so, how it might have applied to the Port of Miami project. On June 24, 1998, the Division II PCP of the CILB met and discussed the Palacios case, which was designated as the Department's Case No. 97-17313. The members of the panel were James Barge and Richard Cowart. Mr. Wilson-Patton and Mr. McCharen were present to provide legal advise to the PCP. The prosecuting attorney presenting the case to the PCP was Perera. The Department was requesting a finding of probable cause against Palacios for violating Section 489.129(1)(d), Florida Statutes, by knowingly violating the applicable building code by performing above-grade construction work on the Port of Miami project in the absence of approved plans and a building permit. Prior to the Division II PCP meeting, the panel members were provided with materials which were received in evidence at the final hearing as Respondent's Exhibits 5 and 14, with the exception of letters dated July 31 and August 26, 1998, from Renee Alsobrook. Respondent's Exhibit 14 is the Department's investigative file on the Palacios case. Following a discussion of the Palacios case, one of the panel members made a motion not to find probable cause. The motion died for lack of a second, and the panel took no further action on the case that day. Pursuant to Section 455.225(4), Florida Statutes, the case was treated as one in which the PCP failed to make a determination regarding the existence of probable cause and was presented to Hank Osborne, Deputy Secretary of the Department, to make a determination whether probable cause existed. On July 2, 1998, Deputy Secretary Osborne found probable cause, and the Department filed an Administrative Complaint against Palacios, charging a violation of Section 489.129(1)(d), Florida Statutes. The Department never served Palacios with the Administrative Complaint filed on July 2, 1998. The Department did not notify Palacios that the Administrative Complaint had been filed and did not prosecute the Administrative Complaint. At the time the Administrative Complaint was filed, the Department believed that the Legislature was in the process of enacting legislation to repeal Section 489.129(1)(d), Florida Statutes. Chapter 98-419, Laws of Florida, which became law on June 17, 1998, repealed Section 489.129(1)(d), Florida Statutes, effective October 1, 1998. Because of the repeal and the lack of a savings clause for pending cases, the Department determined that as of October 1, 1998, the Department did not have authority to take disciplinary action based on a violation of Section 489.129(1)(d), Florida Statutes. On December 18, 1998, the Department presented the Department's Case Nos. 97-17133 and 97-1732 to the PCPs for a second time with a recommendation to find probable cause that Johns and Palacios had violated Section 489.129(1)(p), Florida Statutes, for proceeding on any job without obtaining applicable local building permits and inspections. Mr. McCharen was present to provide legal advice to the PCPs. Ms. Perera was also present during the meetings of the PCPs. Documentary materials presented to the PCP considering Palacios' case included the materials on the Bonzon and Martin cases which had been previously presented to the PCP panel in June 1998 and the investigative files on Palacios. The investigative file included letters with attachments from Palacios' attorney Rene Alsobrook concerning the materials contained in the Bonzon and Martin cases as they related to Palacios and the investigative file on Palacios. Additionally, the investigative file contained a report from Frank Abbott, a general contractor who had been asked by the Department to review the file on Palacios. Mr. Abbott concluded that Palacios had violated several provisions of Chapters 489 and 455, Florida Statutes, including Section 489.129(p), Florida Statutes. The PCPs found probable cause in the Johns and Palacios cases. On December 23, 1998, the Department filed administrative complaints against Palacios and Johns alleging violations of Section 489.129(1)(p), Florida Statutes. The cases were forwarded to the Division of Administrative Hearings for assignment to an administrative law judge. Palacios and Johns claimed that they were relying on the authorization from Bonzon when they proceeded on the above-grade construction work. No formal administrative hearing was held on the administrative complaints filed on December 23, 1998. On December 18, 1998, a Recommended Order was issued in the related case against Lee Martin, Department Case No. 97-11278, finding that Mr. Martin, the building official who replaced Bonzon and assumed responsibility for the Port of Miami project, had the discretion to allow the remaining construction to proceed while taking action to expedite the plans processsing. A Final Order was entered by the Department dismissing all charges against Mr. Martin. On February 26, 1999, Petitioners Palacios' and Johns' Motions to Dismiss and Respondent's responses were filed. The Motions to Dismiss did not request attorney's fees or costs and did not reference Section 120.595(1), Florida Statutes. The motions did contain the following language: The DBPR has acted in an improper and malicious manner by precluding the Respondent from asserting his response to the second draft Administrative Complaint and requesting the Panel to find probable cause for reasons other than whether there was probable cause to believe the Respondent violated specific disciplinary violations. On March 19, 1999, the cases were consolidated and noticed for hearing on May 12-13, 1999. Section 489.129, Florida Statutes, was amended during the 1999 legislative session to provide: A contractor does not commit a violation of this subsection when the contractor relies on a building code interpretation rendered by a building official or person authorized by s. 553.80 to enforce the building code, absent a finding of fraud or deceit in the practice of contracting, or gross negligence, repeated negligence, or negligence resulting in a significant danger to life or property on the part of the building official, in a proceeding under chapter 120. . . . On April 15, 1999, the Department filed a Motion for Leave to Revisit Probable Cause Panel and to Hold in Abeyance. On April 20, 1999, Petitioners filed a response, stating they did not object to the granting of the motion to hold in abeyance. The final hearing was cancelled, and the cases were placed in abeyance. On May 24, 1999, the Department submitted a Status Report, stating that the cases would be placed on the next regularly scheduled PCP meeting scheduled for June 16, 1999. By order dated May 25, 1999, the cases were continued in abeyance. On July 1, 1999, Palacios and Johns filed a Status Report, indicating that the cases would be presented to the PCPs sometime in July and requesting the cases be continued in abeyance for an additional 30 days in order for the parties to resolve the issues. On July 30, 1999, Palacios and Johns filed a Status Report, stating that the cases were orally dismissed on July 28, 1999, and that a hearing involving issues of disputed facts was no longer required. Based on Johns' and Palacios' status report, the files of the Division of Administrative Hearings were closed by order dated August 3, 1999. No motion for attorney's fees and costs was filed during the pendency of the cases at the Division of Administrative Hearings. On August 3, 1999, orders were entered by Cathleen E. O'Dowd, Lead Attorney, dismissing the cases against Palacios and Johns.
The Issue The issue is whether Petitioner's after-the-fact modification application for construction activities seaward of the coastal construction control line in New Smyrna Beach, Florida, should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In 1984, Petitioner, Thomas R. Sweeney, purchased a home at 5917 South Atlantic Drive, New Smyrna Beach, Florida. At that time, the home was approximately 3,000 square feet in size. The home sits seaward of the coastal construction control line (CCCL) and thus any construction activities on the premises require the issuance of a CCCL permit from Respondent, Department of Environmental Protection (DEP). In 1987, Petitioner constructed a first floor porch, second story addition, and wooden deck at the site without first applying for and obtaining a CCCL permit from the Department of Natural Resources, which was subsequently merged with DEP. After the construction was completed, Petitioner submitted an after-the-fact application for a CCCL permit for those structures. Before being issued Permit Number VO-423, Petitioner was required to pay an administrative fine. Among other things, Permit VO-423 approved an already constructed wooden deck on the eastern side of the home which approximated 840 square feet in size. Petitioner was also given approval for a wooden walkway with stairs that provided access to the beach. On June 1, 1995, Petitioner filed a second CCCL application with DEP to add a 20-foot first and second story addition with a deck to the south side of the home. After reviewing the application, on November 9, 1995, DEP issued CCCL Permit Number VO-627 authorizing the scope of work identified in the permit application documents. Notwithstanding the limited amount of work authorized by the permit, Petitioner constructed a third story addition to his home. He also removed the original wooden deck on the eastern side of the home, and he constructed spread footers and a foundation on top of the rock revetment for a new and much larger deck. The new deck is approximately 2,100 square feet, or more than 1,200 square feet larger than the original permitted deck. In its present state, the home is approximately 5,600 square feet, and the existing eastern deck is larger than any permitted deck on any other single-family home in Volusia County. On September 9, 1996, DEP discovered the third story addition and the much larger wooden deck with appurtenant structures. Presumedly at the behest of DEP, on November 22, 1996, Petitioner submitted an application for an after-the-fact modification of CCCL Permit Number VO-627 to authorize the previously completed, unauthorized work. On April 23, 1997, DEP issued CCCL Permit Number VO-627 After-the-Fact. The permit approved the third-story addition to the home together with a 10-foot wide wooden deck on the seaward side of the entire third story and a 12-foot wide wooden deck on the landward side of the third story. DEP denied, however, authorization for Petitioner's new wooden deck on the first floor with a tiki hut and sundeck on the ground those structures violated Rule 62B-33.005(4)(e), Florida Administrative Code. That rule requires that any new construction seaward of the CCCL "minimize the potential for wind and waterborne missiles during a storm." The issuance of the proposed agency action prompted Petitioner to initiate this proceeding. On November 3, 1997, DEP entered a Final Order directing Petitioner to pay a fine because he illegally constructed structures seaward of the CCCL. The order was never appealed, and thus the time to challenge the order has elapsed. As of the date of hearing, Petitioner had not paid the fine, and a statutory lien has been placed on the property. The Storm Surge Elevation at this site for a 100-year storm event is 10.7 feet N.G.V.D. The Breaking Wave Crest- Elevation for a 100-year storm event at this site is 14.9 feet N.G.V.D. Part of the new eastern deck is located below an elevation of 14.9 feet N.G.V.D. The builder who constructed the additions, Edward Robinson, characterized them as "above average to superior" in quality. To minimize the possibility of the deck washing away during a storm event, he used the "best" nails, bolts, and concrete available. In addition, the new decking was rested upon concrete footers for support. The footers, however, are on top of a rock revetment, and Robinson conceded that such footers are not as stable as a pile foundation. Petitioner used coquina rock (with a low unit weight) for his revetment. It was established that the rocks on which the footers rest are not permanent, and they can shift during a large storm event. In fact, shifting can occur even during a ten-year storm, and there will be a total failure of the revetment during a thirty-year storm event. Once the stones move, an erosion process begins, and the deck will fail. The accompanying high winds will then lift the wooden debris in an airborne fashion. Depending on the strength of the storm, the airborne debris will be a threat not only to Petitioner, but also to his neighbors. Therefore, it is found that the existing construction for the eastern deck does not minimize the potential for wind and waterborne missiles during a storm, and it thus violates Rule 62B-33.005(4)(e), Florida Administrative Code, as alleged in the proposed agency action denying in part the permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a Final Order denying Petitioner's application for an after-the-fact amended CCCL permit to construct an expanded eastern deck with a tiki hut and sun deck on his property at 5917 South Atlantic Avenue, New Smyrna Beach, Florida, and approving the application for the structures previously authorized by the Department in its Final Order issued on April 24, 1997. DONE AND ENTERED this 11th day of May, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 1998. COPIES FURNISHED: Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Thomas H. Dale, Esquire Post Office Box 14 Orlando, Florida 32802 Thomas I. Mayton, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue Whether Respondent committed the offenses described in the administrative complaint? If so, what disciplinary action should be taken against him?
Findings Of Fact Respondent is now, and has been since 1982, a roofing contractor licensed to practice in the State of Florida. He holds license number RC 0041149. At all times material hereto, Respondent has been the licensed qualifying agent for Reinforcement Roofing and Painting Company (Reinforcement). On or about November 29, 1987, Reinforcement, through Respondent, entered into a written contract with Wayne Leidecker in which it agreed, for $4,655.00, excluding permit fees and taxes, to replace the roof on Leidecker's residence, located at 18280 S.W. 202nd Street in Miami, Florida. Shortly thereafter, Reinforcement obtained a permit from the Metropolitan Dade County Building and Zoning Department to perform the work specified in the contract. It then proceeded to begin work on the project. The felt underlayer of the new roof was improperly installed. Reinforcement laid the shingles over this improperly installed felt underlayer without first calling for a tin cap/anchor sheet inspection, in willful violation of the local building code. The result was a roof having a "wavy" appearance. To make matters worse, some of the shingles were not properly fastened to the roof deck. Furthermore, the metal eaves and gable drips were installed too close to the facie in violation of the local building code. The work on the Leidecker project, which was performed under the supervision of Respondent, was completed in January, 1988. The job, however, having been done in an incompetent manner, failed its final inspection. Efforts were subsequently made by Reinforcement, under the direction of Respondent, to correct the foregoing problems. These efforts were inadequate and unsuccessful. Consequently, the project was still unable to pass a final inspection. Leidecker was growing increasingly impatient. In the latter part of 1988, he had Charles H. Walton, the Vice-President of Bob Hilson & Company, Inc., examine the roof. Based upon his examination, Walton concluded, in a written report which he gave Leidecker, that "[d]ue to all of the above deficiencies, South Florida Building Code infractions and the waviness of the shingles, the only way that I can truthfully say that this roof can be properly corrected is to remove this existing shingle roof entirely to a smooth workable surface and reinstall a new 3-tab, 20 year type fungus resistant fiberglass shingle roof system, that meets all of the South Florida Building Code specifications and manufacturers' requirements." This was consistent with what Leidecker had been told by the building inspectors who had previously inspected the roof. Accordingly, after receiving Walton's report, Leidecker refused to allow Reinforcement to do any further patchwork on the roof. He expected Reinforcement to take the removal and reinstallation measures Walton had recommended in his written report. He would accept nothing less. By letter dated July 14, 1989, Respondent was informed that a formal hearing would be held before the Dade County Construction Trades Qualifying Board (CTQB) on the following four charges filed against him relating to the Leidecker project: Between November 28, 1987 and January 31, 1989, Reinforcement Roofing & Painting, Co., and/or Louis Gordon as the Qualifying Agent there for as a Roofing and Painting Contractor did unlawfully violate Section 3401.4(c) of the South Florida Building Code (SFBC) by failing to obtain the final roofing inspection required at a roofing job located at 18280 S.W. 202nd Street Miami, Dade County, Florida; said violation evidencing a failure to maintain the affirmative condition of honesty, integrity and good character as required for the issuance of a certificate of competency under Section 10-16(a) of the Code of Metropolitan Dade County. Between November 28, 1987 and January 31, 1989, Reinforcement Roofing & Painting, Co., and/or Louis Gordon as the Qualifying Agent there for as a Roofing and Painting Contractor did unlawfully violate Section 3403.3(h)(2) of the South Florida Building Code (SFBC) by failing to imbed sheets of roofing felt without wrinkles or buckles as required at a roofing job located at 18280 S.W. 202nd Street, Miami, Dade County, Florida; said violation evidencing a failure to maintain the affirmative condition of honesty, integrity and good character as required for the issuance of a certificate of competency under Section 10-16(a) of the Code of Metropolitan Dade County. Between November 28, 1987 and January 31, 1989, Reinforcement Roofing & Painting, Co., and/or Louis Gordon as the Qualifying Agent there for as a Roofing and Painting Contractor did unlawfully violate Section 3408.3(c) of the South Florida Building Code (SFBC) by failing to install metal eave and/or gable drips so the bottom of said metal drips did not touch facie and did [not] have the minimum of a one-half inch clearance from the structure as required at a roofing job located at 18280 S.W. 202nd Street, Miami, Dade County, Florida; said violation evidencing a failure to maintain the affirmative condition of honesty, integrity and good character as required for the issuance of a certificate of competency under Section 10-16(a) of the Code of Metropolitan Dade County. Between November 28, 1987 and January 31, 1989, Reinforcement Roofing & Painting, Co., and/or Louis Gordon as the Qualifying Agent there for as a Roofing and Painting Contractor did unlawfully violate Section 10-22(a) of the Code of Metropolitan Dade County, Florida, in that they did fail to fulfill their contractual obligation to honor a six (6) year warranty in connection with roofing work done on the residence located at 18280 S.W. 202nd Street, Miami, Dade County, Florida. The hearing on these charges was held as scheduled on August 10, 1989. The CTQB found Respondent guilty of Charges 1, 2 and 3 and not guilty of Charge The following penalties were imposed: Charge 1- six-month suspension of Respondent's personal and business certificates and a fine of $1,000.00; Charge 2- six-month suspension of Respondent's personal and business certificates and a fine of $250.00; and Charge 3- official letter of reprimand and a fine of $250.00. In addition, he was directed to pay $257.00 in administrative costs. On October 12, 1989, Respondent made another appearance before the CTQB. He made a request that the foregoing penalties be reduced. His request was granted. The CTQB "lifted" his suspension, but with the caveat that if he did not timely pay his fines the suspension would be reinstated. Respondent failed to make timely payment. As a result, his suspension was reinstated. Neither Reinforcement, nor Respondent in his individual capacity, has yet to take the measures necessary to correct the problems with the Leidecker roof that were caused by the shoddy work done under Respondent's inadequate supervision. Respondent has been disciplined on two separate, prior occasions by the Construction Industry Licensing Board for conduct unrelated to that which is the subject of the charges filed against him in the instant case. On February 12, 1986, the Board issued a final order in Case No. 0053301 imposing a $250.00 administrative fine upon Respondent. On June 16, 1988, in another case, Case No. 81135, the Board fined Respondent $500.00 for violating the provisions of Section 489.129(1)(i), Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Construction Industry Licensing Board enter a final order finding Respondent guilty of the violations of Section 489.129, Florida Statutes, charged in the instant amended administrative complaint and suspending Respondent's license for a period one year and imposing upon him a fine in the amount of $3,500.00 for having committed these violations. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of September, 1990. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1990.
Findings Of Fact This cause comes on for consideration based on the Administrative Complaint of the Petitioner, State of Florida, Department of Professional and Occupational Regulation, Florida Construction Industry Licensing Board, now referred to as State of Florida, Department of Professional Regulation, Florida Construction Industry Licensing Board. The essential allegations of the Administrative Complaint are as found in the issue statement of this Recommended Order and that discussion in the issue statement is incorporated into the Findings of Fact and made a part hereof. The Petitioner, State of Florida, Department of Professional Regulation, Florida Construction Industry Licensing Board, is an agency of the State of Florida, which has the responsibility to regulate those individuals who serve the public in the capacity of contractors in the State of Florida. This regulatory function carries with it the obligation to prosecute those individual licensees whom the regulatory agency believes to have committed offenses as defined by Chapter 468, Florida Statutes. The possible outcome of such a prosecution carries with it the potential revocation or suspension of the license of those persons regulated by the agency. On this occasion, by Administrative Complaint, the Petitioner has charged E. J. Pollock, d/b/a Miami Advertising, Inc., with violations of Chapter 468, Florida Statutes, as set out herein. The Respondent has replied to the Administrative Complaint by reguesting a Subsection 120.57(1), Florida Statutes, hearing, which de novo hearing was held on the date and at the time and place set out above. E. J. Pollock, d/b/a Miami Advertising, Inc., is the holder of a Certified general Contractor's license, No. CG C004577, held with the Petitioner. That license was current and active in October, 1975, and continued as an active license until the year 1977 when the license became inactive and it remains inactive at this time. The facts reveal that the Respondent in 1975 entered into a discussion with Dr. Thor Brickman about assisting Dr. Brickman in obtaining a building permit from the Metropolitan Dade County Building and Zoning Department, Dade County, Florida. This permit was to allow the construction of certain office alterations of Dr. Brickman's office located at 1136 N.W. 119th Street, Dade County, Florida. The plans and specifications for such alterations may be found as Petitioner's Exhibit No. 8 admitted into evidence. After some discussion, the Respondent and Dr. Brickman concluded an arrangement by which the Respondent would act as a contractor on the job, in the sense of having the overall responsibility for its construction. This included the responsibility to pay the workers, sub contractors and material man. The agreement between Pollock and Brickman was one in which Pollock was acting in his individual capacity as opposed to through affiliation with a contracting firm. However, at the time Pollock entered into this agreement with Dr. Brickman, his Certified general Contractor's license had been transferred to an affiliation with Miami Advertising, Inc. The Respondent had made this transfer in anticipation of a job to be performed for Miami Advertising, Inc., and in fact certain preliminary matters had been concluded with Pollock acting as manager for the project for Miami Advertising, Inc. Miami Advertising, Inc., was without knowledge of the contract between Pollock and Dr. Brickman. Notwithstanding the lack of knowledge on the part of Miami Advertising, Inc., and the representations to Brickman that the Respondent was acting in his individual capacity when he contracted to remodel Brickman's office, the Respondent applied for a building permit to be issued by the Dade County Building and Zoning Department and in doing so he indicated that he was securing that permit as a qualifier for Miami Advertising, Inc. This can be seen in the petitioner's Exhibit No. 5 admitted into evidence which is a copy of the building permit application as issued on October 31, 1975. Pollock commenced the work and Dr. Brickman paid Pollock directly for the work that was being done. The parent checks were endorsed and cashed by Pollock. The amount Pollock received totaled $6,797.22. Sometime in December, 1975, the owner, Dr. Brickman, became disenchanted with some of the workers whom Pollock had on the job in the sense that those workers had been drinking while on the job. Brickman advised Pollock of this and indicated to Pollock that he did not want those persons on the job without supervision. Nonetheless, the owner continued to advance money to Pollock to pay for the job as contracted for. In January, 1976, the Respondent left the job and Brickman was of the impression that the roof on the extension was finished and that there was no problem with the roof, but this impression was wrong because in February, 1976, one of the owner's tenants began to complaint about the roof leaking and those complaints continued until the tenant moved out due to water damage. This caused Brickman to lose moneys in rentals. When Brickman spoke with Pollock about the leaking roof, Pollock sent a roofer to the job to see about the problems but Brickman was not satisfied with that roofer and declined to have him make any corrections to the roof job. (Although the Respondent denies the responsibility for the completion of the roofing work on the Brickman project, the testimony clearly reveals that he had accepted that responsibility as a part of the contract.) The roofer spoken of, whose name is Montgomery, came to the job in March, 1976. Subsequent to Montgomery's visit, problems continued to occur with the roof and the condition of the roof in April, 1976, and the interior of the building may be seen in the Composite Exhibit No. 1 by the Petitioner, which is a series of photos depicting the roof and interior. Pollock would not return and complete the job and Dr. Brickman made a complaint to cause administrative charges against the Respondent. This original complaint was dropped and in November, 1977, Pollock called about completing the job which was still unfinished. Brickman agreed to have Pollock cane and complete the job. Pollock did not return to the job as he stated he would do. In December, 1978, a representative of the Metropolitan Dade County Building and Zoning Department went to the project and found that the job was closed and found that no framing inspection had been requested by Pollock and completed as required by Metropolitan Dade County Building and Zoning Department Code. Other matters within the job site were found to be deficient. The original building permit had expired and the required roofing permit had never been granted. The condition of the project as it existed at the time of the inspection may be found in certain photographs taken by the Building Inspector which may be found as a part of the Petitioner's Composite Exhibit No. 2 admitted into evidence. The problem with permits was subsequently rectified; however, based upon the inspector's evaluation, notices of violations were filed in January, 1979, against the Respondent Pollock. The violations spoken to above were for violations of the building and zoning code, particularly Metropolitan Dade County Building and Zoning Department Code No. 305.2, failure to call for inspections between October 31, 1971, and January 4, 1979, and Metropolitan Dade County Building and Zoning Department Code Section No. 304.4(b), failure to construct office alterations according to plans between October 31, 1975, and January 4, 1979. (These provisions are part of the South Florida Building Code which is used by Metropolitan Dade County.) The charges were made through a two-count information in Case 79-53600 in the County Court in and for Dade County, Florida. For the former violation, the Respondent was adjudged guilty and received a fine of $750.00 with $25.00 court costs, and for the latter count Pollock was sentenced, with the sentence being suspended from day to day and term to term. This Statement of Charges and Disposition may be found as petitioner' s Composite Exhibit No 3 admitted into evidence, a copy of the Charges, Judgment, Sentence and Order of the Court. The Respondent, Pollock, was also charged by Metropolitan Dade County with a violation of the Code of Metro Dade, Chapter 10, Section 10-22 (b), abandonment of the construction project without legal authority. (The disposition of that charge is unknown to the Hearing Officer, in that it was not presented as a matter of proof in the course of the hearing and the facts of the existence of such charge came in by a stipulation of fact between the parties to this action.) The Respondent returned to the job in January, 1979, and on the date of the hearing 95 to 99 percent of the job had been completed. Still remaining to be completed were certain roofing work with metal-to-metal soldering and gravel stops to be concluded and at that time the roof was still leaking. In view of the damage to Brickman' s property, a claim was made against the liability insurance required by Subsection 468.106(6), Florida Statutes. This claim was denied by the insurance carrier because their insurance covered Miami Advertising, Inc., only, and that company had no knowledge of the contract or the job. An indication of this denial may be found as Petitioner's Composite Exhibit No. 4 admitted into evidence, which are copies of letters denying coverage. They are addressed to Dr. Brickman and are from Parliament Insurance Company, insurer of Miami Advertising, Inc.
Recommendation It is recommended that the Respondent, E. J. Pollock, who holds his license as qualifier for Miami Advertising, Inc., License No. CG C004577, be suspended for a period of one (1) year. This recommendation is made with the knowledge of the letters offered in mitigation of the penalty. DONE AND ENTERED this 26th day of November, 1979, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Barry Sinoff, Esquire Sinoff, Edwards & Alford 2400 Independent Square One Independent Drive Jacksonville, Florida 32202 H. Adams Weaver, Esquire 310 Okeechobee Boulevard Post Office Box "M" West Palm Beach, Florida 33402 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD
The Issue DOAH Case No. 89-3902, the Barona and Carrow Complaints Whether Respondent violated Florida Statutes Section 489.129(1)(d), by willfully or deliberately disregarding and violating the applicable building codes or laws of the state or of any municipalities or counties thereof. Whether Respondent violated Florida Statutes Section 489.129(1)(m), by being guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. DOAH Case No. 90-1900, the Grantz, Victor, Beckett, Maffetonne, and Wolfe Complaints Whether Respondent violated Sections 489.129(1)(m), (j), and 489.105(4), and 489.119, Florida Statutes, by being guilty of gross negligence, incompetence, and/or misconduct. Whether Respondent violated Sections 489.129(1)(h), (m), (j), and 489.119, and 489.105(4), Florida Statutes, by being guilty of financial mismanagement or misconduct. Whether Respondent violated Section 489.129(1)(d), Florida Statutes, by wilful or deliberate violation or disregard of applicable local building codes and laws. Whether Respondent violated Sections 489.129(1)(m), (j), 489.119, and 489.105(4), Florida Statutes, by failing to properly supervise contracting activities he was responsible for as qualifying agent, which supervisory deficiency also reflected gross negligence, incompetence, or misconduct Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor. Whether Respondent violated Sections 489.129(1)(m), and (j), Florida Statutes, by giving a guarantee on a job to a consumer and thereafter failing to reasonably honor said guarantee in violation of Florida Statutes. DOAH Case No. 90-1901, the Klokow Complaint Whether Respondent violated Section 489.129(1)(d), Florida Statutes, by wilfully or deliberately disregarding and violating the applicable building codes or laws of the state or any municipalities or counties thereof. Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being guilty of fraud or of gross negligence, incompetency, or misconduct in the practice of contracting. DOAH Case No. 90-1902, the Meister Complaint Whether the Respondent violated Section 489.129(1)(n), Florida Statutes, by failure to obtain a permit. DOAH Case No. 91-7493, the Antonelli Complaint Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. DOAH Case No. 91-7951, the Insurance, Palomba, Romanello and Marin Complaints The Insurance Complaint Whether Respondent violated Section 489.129(1)(c), Florida Statutes, by violating Section 455.227(1)(a), Florida Statutes, by making misleading, deceptive, untrue, or fraudulent representations in the practice of his profession. Whether Respondent violated Section 489.129(1)(d), Florida Statutes, by wilfully or deliberately disregarding and violating the applicable building codes or laws of the state or any municipalities or counties thereof. Whether Respondent violated Section 489.129(1)(c), Florida Statutes, by violating Section 455.227(1)(b), Florida Statutes, by intentionally violating a Board rule. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. The Palomba Complaint Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. The Romanello Complaint Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. The Marin Complaint Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. DOAH Case No. 92-0370, the Pappadoulis Complaint Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing financial misconduct. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by committing gross negligence, incompetence and misconduct in the practice of contracting.
Findings Of Fact Pre-Hearing Admissions 3/ Admissions Applicable to All Cases Respondent is currently licensed as a contractor by the Florida Construction Industry Licensing Board. Respondent's current license number from the Florida Construction Industry Licensing Board is CG C040139. Respondent is licensed by the Florida Construction Industry Licensing Board as a certified general contractor. Respondent holds Florida Certified Roofing License No. CC-042792. Respondent is the qualifying agent for Tropical Home Industries, Inc. As qualifying agent for Tropical Home Industries, Inc., Respondent is responsible for all work performed. DOAH Case No. 89-3902 Respondent was licensed as set forth in items 1, 2, 3 and 4 above at the time of the job alleged in the Administrative Complaint. Exhibit "A", attached to the Request for Admissions 4/ is a true and correct copy of the contract between Sarah S. Carrow and the firm Respondent qualified at the time the contract was executed. As a qualifier for Tropical Home Industries, Inc., Respondent was responsible in his capacity as a certified general and roofing contractor for all work performed by Tropical Home Industries, Inc., pursuant to its contract with Sarah S. Carrow. Pursuant to the contract between Sarah S. Carrow and Tropical Home Industries, Inc., all work under said contract was to be completed in three (3) to six (6) weeks. Respondent, acting through Tropical Home Industries, Inc., failed to complete all work under the contract with Sarah S. Carrow within six (6) weeks after work was commenced. Respondent, acting through Tropical Home Industries, Inc., failed to obtain a final inspection of the work under the contract with Sarah S. Carrow prior to the building permit's expiration date. Broward County, Florida, has adopted the South Florida Building Code as its local ordinance governing residential construction. Respondent's failure to obtain a timely final inspection of the work performed pursuant to the contract between Tropical Home Industries, Inc., and Sarah S. Carrow is a violation of Section 305.2 of the South Florida Building Code. Section 1405.1 of the South Florida Building Code requires installation of either a window or vent fan in each bathroom. Section 3407.9(a) of the South Florida Building Code requires that flashing be installed on plumbing vent pipes which are installed through the roof. Any problems or deficiencies in the work performed by Tropical Home Industries, Inc., pursuant to its contract with Sarah S. Carrow were caused by employees and/or subcontractors of Tropical Home Industries, Inc. DOAH Case Nos. 89-3902, 90-1900, 90-1901, and 90-1902 DOAH Case No. 89-3902 The Baronas' house is located at 1251 Westchester Drive East, West Palm Beach, Florida 33417. Respondent contracted with the Baronas as the qualifying agent of Tropical Home Industries, Inc. The Baronas' house is located within Palm Beach County. Palm Beach County is the appropriate Building Department under which all inspections were to have been performed. DOAH Case No. 90-1901 On or about December 5, 1988, Respondent contracted with Mel Klokow, acting for Linda Klokow ("Klokow"), for the renovation of a screen porch with a roof to her home. Respondent contracted with Klokow as a qualifying agent of Tropical Home Industries, Inc. Permit No. 88-8085 was issued by the local building department. The work at the Klokow residence did not pass final inspection. DOAH Case No. 90-1902 In December of 1987, Respondent contracted to close in a screen porch for Janet Meister ("Meister"). Respondent contracted with Meister as the qualifying agent for Tropical Home Industries, Inc. Respondent failed to obtain a permit for the work performed at the Meister's. Respondent's failure to obtain a permit for the Meister job violated local building codes and Section 489.129(1)(n), Florida Statutes. DOAH Case No. 90-1900 The Grantz home is located at 10878 Granite Street, Boca Raton, Florida. The approximate amount of the contract price with the Grantz was $1,890.00. Respondent contracted for the Grantz job as a qualifying agent of Tropical Home Industries, Inc. Respondent began work at the Grantz residence on or about May 10, 1989. The work at the Grantz residence failed final inspection on July 12, 1989. Respondent wilfully violated applicable local building codes and laws on the Grantz project. Respondent wilfully disregarded local building codes and laws in connection with the Grantz project. Respondent deliberately violated applicable local building codes and laws in connection with the Grantz project. Respondent deliberately disregarded applicable local building codes and laws in connection with the Grantz project. On or about April 12, 1989, and April 17, 1989, Respondent contracted with Stephen Victor ("Victor") to install sliding glass doors at his home. The Victor residence is located at 9768 Majorca Place, Boca Raton, Florida. The contract price with Victor was $3,293.00. Respondent contracted with Victor as a qualifying agent of Tropical Home Industries, Inc. Victor paid a total deposit of $670.00 to Respondent. Respondent never began work at the Victor residence. On or about April 17, 1989, Respondent contracted with Vinton Beckett ("Beckett") to install windows at her home. The Beckett residence is located at 2501 N.W. 41st Avenue, Unit 302, Lauderhill, Florida. The contract price with Beckett was $1,684.00. Respondent contracted with Beckett as a qualifying agent of Tropical Home Industries, Inc. On or about October 29, 1988, Respondent contracted with Thomas and Sherry Maffetonne (the "Maffetonnes") to construct a patio enclosure at their home. The Maffetonne's residence is located at 22980 Old Inlet Bridge Drive, Boca Raton, Florida. The contract price for the work to be performed at the Maffetonnes was $4,350.00. Respondent contracted with the Maffetonnes as a qualifying agent for Tropical Home Industries, Inc. A five-year warranty on materials was given by Respondent for the work to be performed at the Maffetonne's. A one-year warranty on labor was given by Respondent for the work performed at the Maffetonne's. On or about June 6, 1989, Respondent contracted with Mr. and Mrs. Morton Wolfe (the "Wolfes") to install windows at their home. The Wolfe's residence is located at 7267 Huntington Lane, #204, Delray Beach, Florida. Respondent contracted with the Wolfes as the qualifying agent of Tropical Home Industries, Inc. Respondent failed to obtain a timely permit or call for required inspections at the Wolfe residence. DOAH Case No. 91-7951 On June 21, 1990, Tropical's general liability insurance coverage (policy number 891006GL327), produced by Steven Adams and Associates, Inc., (hereinafter "Adams and Associates") and afforded by Guardian P & C Insurance Company, expired. On July 17, 1990, Tropical issued a check to Adams and Associates in the amount of $2,475.00 to obtain general liability and workers' compensation insurance. Upon receipt of the check, Adams and Associates issued a Certificate of Insurance to the Davie (Florida) Building Department indicating that Tropical had general liability (policy number GL 235810) and workers' compensation insurance in force through July 17, 1991. After said Certificate of Insurance was issued, Tropical stopped payment on the check issued to Adams and Associates. Tropical failed to issue an additional check or remit payment of any kind, resulting in both the general liability and workers' compensation insurance being canceled, effective July17, 1990. In September of 1990, a Certificate of Insurance was submitted to the Davie Building Department indicating that Tropical had general liability insurance in effect from September21, 1990, until September 21, 1991. Said certificate had been altered in that the issue, effective, and expiration dates had been updated to reflect that the policy coverage was current and in force. The policy listed on the certificate (number 891006GL327, produced by Adams and Associates with coverage being afforded by Guardian P & C Insurance Company) expired on June21,1990, and was never renewed or kept in force after that date. The Davie Building Department had no other certificates or records indicating that Tropical had insurance coverage. Between July 17, 1990, and April 8, 1991, Tropical obtained five (5) building permits from the Davie Building Department. At no time during the aforementioned period did Tropical have general liability insurance, thereby violating Section 302.1(b) of the South Florida Building Code which requires that building permit applicants be qualified in accordance with PartI of Chapter 489, Florida Statutes. Licensees are required to maintain public liability insurance at all times as provided by rules promulgated pursuant to Part I of Chapter 489, Florida Statutes. Construction Industry Licensing Board records indicate that Tropical has general liability insurance coverage through Equity Insurance (hereinafter "Equity") of Hollywood, Florida. Effective June 8, 1988, Tropical's insurance with Equity was canceled. On February 20, 1991, Tropical entered into an agreement with Michael and Margaret Palomba (hereinafter "Palombas") to perform enclosure and remodeling work at the Palombas' residence located at 130 North East 5th Court, Ft. Lauderdale, Florida 33334. The approximate contract price was $11,978.00. On March 13, 1991, Tropical received a $2,994.50 deposit from the Palombas. On March 25, 1991, Tropical obtained a permit for the project from the Broward County Building Department. Subsequent to receiving the permit, Tropical removed an interior closet from the area that was to be remodeled. Subsequent to receiving the permit, Tropical removed interior plaster from the area that was to be remodeled. Subsequent to receiving the permit, Tropical removed exterior doors from the area that was to be remodeled. Tropical then stopped work stating that rotten wood had been discovered, and requested an additional $2,800.00 to continue with and complete the project. Tropical refused to perform any additional work without the Palombas agreeing to the added cost. Tropical failed to continue with the project pursuant to the original agreement. Tropical refused to continue with the project pursuant to the original agreement. Tropical failed to return any monies to the Palombas. In May 1991, the Palombas hired a second contractor, Dan Sturgeon, to complete the project for $13,830.00. On or about July 11, 1990, Tropical entered into an agreement with Don Romanello (hereinafter "Romanello") to construct a screen room on an existing slab at Romanello's residence located in Boca Raton, Florida. The contract price was $9,500.00. Tropical received $4,800.00 in payments from Romanello, but failed to obtain a permit or perform any work pursuant to the agreement. Tropical has failed to return any portion of Romanello's payments. Tropical refused to communicate with Romanello. Based on the preceding, Tropical committed misconduct in the practice of contracting. On or about June 23, 1990, Tropical entered into an agreement with Marcelina Marin (hereinafter "Marin") to construct a screen room at Marin's residence located in Broward County, Florida, for $4,021.00. Tropical received a $2,000.00 deposit from Marin at the time the agreement was entered into. Tropical failed to perform any work under the terms of the agreement. Tropical has failed to return Marin's deposit. Tropical has refused to return Marin's deposit. Based on the preceding, Tropical committed misconduct in the practice of contracting. DOAH Case No. 91-7493 On July 2, 1988, Respondent contracted with Anthony Antonelli ("Antonelli") to construct an aluminum roof over the patio and gutters of his residence at 9303 Laurel Green Drive, Boynton Beach, Florida. The price of the contract was $2,016.00. Antonelli paid a deposit of $500.00 to Tropical Home Industries. Respondent informed Antonelli that he would not be able to perform the work at the contracted price. Respondent never performed any work at the Antonelli's home. Respondent canceled the contract with Antonelli. Respondent failed to return the deposit paid by Antonelli to Tropical Home Industries. Testimony at Final Hearing Facts Applicable to All Cases Respondent is, and has been at all times hereto, a certified general and roofing contractor in the State of Florida, having been issued license number CG C040139 and CC 2042792. For all contracts and jobs referenced in all of the administrative complaints in these consolidated cases, Respondent acted through the contracting business with which he was associated and for which he was responsible in his capacity as a licensed contractor. DOAH Case No. 89-3902, The Barona and Carrow Complaints Respondent contracted with Rhonda Barona to build an addition to her home at 1251 Westchester Dr. East., West Palm Beach, Florida, for approximately $5,124. The work performed at the Barona residence took an unreasonable amount of time to complete. The permit issued to perform the work at the Barona residence was canceled and Respondent failed to obtain a final inspection. Respondent contracted with Sarah Carrow to build an addition at her home located at 1421 N. 70th Avenue, Hollywood, Florida, for approximately $14,460.60. Respondent allowed the permit to expire and failed to obtain required inspections at the Carrow residence. Respondent failed to fully comply with applicable local codes by failing to install a window or vent fan in the bathroom. DOAH Case No. 90-1900, The Grantz, Victor, Beckett, Maffetonne and Wolfe Complaints On or about March 31, 1989, Respondent contracted with John and Lori Grantz to install windows at 10878 Granite Street, Boca Raton, Florida, for the amount of $1,890.00. Work at the Grantz residence began on or about May 10, 1989. At the time work began, no permit had been obtained. A late permit was obtained on June 15, 1989, in violation of local codes. The work performed by Respondent at the Grantz residence failed final inspection on July 12, 1989, because the structure was not constructed as for the intended use. The windows which were installed were designed as a temporary structure, removable in cases of severe weather and not as a permanent enclosure. On or about April 12, 1989, and April 17, 1989, Respondent contracted with Stephen Victor ("Victor") to install sliding glass doors and windows at 9768 Majorca Place, Boca Raton, Florida, for the total amount of $3,293.00. Victor paid Tropical a total deposit of $670.00, but work never began. On or about April 17, 1989, Respondent contracted with Vinton Beckett ("Beckett") to install windows at 2501 N.W. 41st St., Unit 808, Lauderhill, Florida, in the amount of $1,684. A five-year warranty on materials and a one-year warranty on labor were provided to Beckett by Tropical. Respondent failed to obtain a timely permit or call for required inspections in violation of local law. Respondent failed to correct defects and deficiencies in the work performed at the Beckett residence in a reasonable amount of time. On or about October 29, 1988, Respondent contracted with Thomas and Sharee Maffetonne to construct a patio enclosure at 22980 Old Inlet Bridge Drive, Boca Raton, Florida, for the amount of $4,350.00. A five-year warranty on materials and a one-year warranty on labor were given. Respondent failed to correct defects and deficiencies in the work on the Maffetonne residence in a reasonable amount of time. On or about June 6, 1989, Respondent contracted with Morton Wolfe to install windows at 7267 Huntington Lane, #204, Delray Beach, Florida, for the amount of $1,668.13. Respondent failed to obtain a timely permit or call for required inspections at the Wolfe residence in violation of local codes. DOAH Case No. 90-1901 The Klokow Complaint On or about December 5, 1989, Respondent contracted with Mel Klokow, acting for Linda Klokow, for the construction of a screen porch with a roof to her home at 5292 N.E. 10th Terr., Ft. Lauderdale, Florida, for the sum of $4,473.00. Permit number 88-8085 was issued by the local building department. The work performed at the Klokow residence initially failed to pass the final inspection, and the Respondent failed to return to correct the code violations in a reasonable amount of time. DOAH Case Number 90-1902 The Meister Complaint In December of 1987, Respondent contracted to close in a screen porch for Janet Meister. Respondent failed to obtain a permit for the work performed, which is a violation of local building codes. DOAH Case Number 91-7493 The Antonelli Complaint On July 2, 1988, Respondent contracted with Anthony Antonelli ("Antonelli") to construct an aluminum roof over the patio and gutters at his residence at 9303 Laurel Green Drive, Boynton Beach, Florida. The price of the contract for the work to be performed at the Antonelli residence was $2,016.00. Antonelli remitted a deposit of $500 to the Respondent. Respondent informed Antonelli that he would not be able to perform said job for the contracted price and no work ever began. Respondent canceled the contract with Antonelli and failed to return the deposit to Antonelli. DOAH Case Number 91-7951 The Insurance, Palomba, Romanello and Marin Complaints On June 21, 1990, Tropical's general liability insurance coverage, policy number (891006GL327), produced by Stephen Adams & Associates, Inc., ("Adams & Associates") and afforded by Guardian Property & Casualty Company, expired. On July 17, 1990, Tropical issued a check to Adams & Associates in the amount of $2,475.00 to obtain and/or renew general liability and workers' compensation insurance. Upon receipt of the check, Adams & Associates issued a certificate of insurance to the Davie Building Department in Davie, Florida, indicating that Tropical had general liability (policy number 235810) and workers compensation insurance in force through July 17, 1991. After said certificate of insurance was issued, Tropical stopped payment on the check issued to Adams & Associates. Tropical failed to issue an additional check or remit payment of any kind resulting in the general liability and workers compensation insurance being canceled, effective July 17, 1990. In about September 1990, a certificate of insurance was submitted to the Davie Building Department indicating that Tropical had general liability insurance in effect from September 21, 1990, until September 21, 1991. Said certificate had been altered in that the issue, effective and expiration dates had been updated to reflect that the policy coverage was current and in force. The policy listed on the certificate (number 891006GL327), produced by Adams & Associates and afforded by Guardian Property & Casualty Company, expired on June 21, 1990, and was never renewed or kept in force after that date. The Davie Building Department has no other certificates or records indicating that Tropical has insurance coverage. Between July 17, 1990, and April 8, 1991, Tropical obtained five (5) building permits from the Davie Building Department. At no time during the aforementioned period did Tropical have general liability insurance thereby violating Section 302.1(b) of the South Florida Building Code which requires that building permit applicants be qualified in accordance with Part I of Chapter 489, Florida Statutes. Licensees are required to maintain public liability insurance at all times as provided by rules promulgated pursuant to Part I of Chapter 489, Florida Statutes. Construction Industry Licensing Board ("CILB") records indicate that Tropical has general liability insurance coverage through Equity Insurance Company ("Equity") of Hollywood, Florida. Effective June 8, 1988, Tropical's insurance with Equity was canceled. On February 20, 1991, Tropical entered into an agreement with Michael and Margaret Palomba (the "Palombas") to perform enclosure and remodeling work at the Palomba's residence located at 130 N.E. 5th Ct., Ft. Lauderdale, Florida 33334. The approximate contract price was $11,978.00. On March 13, 1991, Tropical received a $2,994.50 deposit from the Palombas. On March 25, 1991, Tropical obtained a permit for the project from the Broward County Building Department. Subsequent to receiving the permit, Tropical removed an interior closet and exterior doors from the area that was to be remodeled. Tropical then stopped work stating that rotten wood had been discovered, and requested an additional $2,800.00 to continue with and complete the project. Tropical refused to perform any additional work without the Palombas agreeing to the added cost. Tropical failed or refused to continue with the project pursuant to the original agreement and failed to return any monies to the Palombas. In May, 1991, the Palombas hired a second contractor, Dan Sturgeon, to complete the project for $13,000.00. 156. Based on the foregoing, Tropical committed misconduct in the practice of contracting. On or about July 11, 1990, Tropical entered into an agreement with Don and Norma Romanello (the "Romanellos") to construct a screened room on an existing slab at the Romanello's residence located in Boca Raton, Florida. The contract price was $9,500. Tropical received a $4,800.00 payment from the Romanellos but failed to perform any work pursuant to the agreement. Tropical has failed or refused to return any portion of the Romanellos payments and has refused to communicate with the Romanellos. Based on the preceding, Tropical committed misconduct in the practice of contracting. On or about June 23, 1990, Tropical entered into an agreement with Marcelina Marin to construct a screened room at Marin's residence located in Broward County, Florida for $4,021.00 Tropical received a $2,000.00 deposit at the time the agreement was entered into. Tropical failed to perform any work under the terms of the agreement, and has failed or refused to return Marin's deposit. Based on the preceding, Tropical committed misconduct in the practice of contracting. DOAH Case Number 92-0370 The Pappadoulis Complaint On or about February 11, 1990, the Respondent contracted with John Pappadoulis ("Pappadoulis") to remodel a Florida room for the agreed upon amount of $11,448.00 at his residence located at 983 Southwest 31st Street, Fort Lauderdale, Florida. Respondent received a deposit of $648.00, but never obtained a permit nor began work. The Respondent failed or refused to return Pappadoulis' deposit. John Pappadoulis has since passed away. Aggravating and Mitigating Circumstances Monetary Damages Several of the customers in these cases suffered monetary damages. The Baronas had to hire an attorney to deal with the Respondent. The Baronas also incurred additional costs in the work they performed to complete the contract. John and Lori Grantz also suffered monetary damages due to their dealings with the Respondent. The work at the Grantz residence was never completed by the Respondent. The Respondent filed a lien on the Grantz property and also filed a lawsuit to receive the full amount of the contract price. The Grantz had to hire an attorney to obtain legal advice and to defend the lawsuit. The Grantz prevailed in that lawsuit and a judgment was entered requiring the Respondent to refund the $500.00 cash deposit. The Grantz also spent at least $150.00 on attorney fees. The deposit money was never returned and none of their costs were ever reimbursed by the Respondent. Steven Victor also sustained monetary damages in his dealings with the Respondent. Victor paid the Respondent $670.00 as a deposit. No work was ever performed. After requesting the return of his deposit money and failing to receive it, Victor filed a civil action against the Respondent. Judgment was entered in favor of Victor, but the judgment was never paid. The Maffetonnes also sustained monetary damages in their dealings with the Respondent. The Respondent agreed to refund a portion of the contract money to the Maffetonnes due to a problem with the carpet he installed incorrectly, but failed to ever refund any money. The Maffetonnes therefore paid for goods which were defective, and never received a compensatory credit. Klokow also sustained monetary damages in his dealings with the Respondent Because of continuing roof problems, Klokow had to hire an independent roofing expert to inspect the roof and prepare a report. Mr. and Mrs. Palomba also sustained monetary damage due to their dealings with the Respondent. When the Respondent abandoned the Palomba job, the Palombas were forced to hire a second contractor at a higher contract price. The Respondent's actions also caused monetary damages to Antonelli, Pappadoulis, Marin, and Romanello. In each case, the homeowner paid a deposit to the Respondent, and the Respondent failed to ever perform work or return any of the deposit money. The Antonellis paid $500.00, Pappadoulis paid $648.00, Marin paid $2,000.00, and Romanello paid $4,800.00. Actual Job-Site Violations of Building Codes or Conditions Exhibiting Gross Negligence, Incompetence, or Misconduct by the Licensee Several of the jobs involved in these cases had actual job site violations of building codes or conditions which exhibited gross negligence, incompetence, or misconduct by the Respondent which had not been resolved as of the date of the formal hearing. At the Barona residence, the framing inspection failed twice before finally being passed a third time; the lath inspection failed three times before finally passing on the fourth time; and the final inspection failed and was never satisfactorily completed by the Respondent. At the Carrow residence, the Respondent failed to install a window or vent fan in the bathroom of the room addition which he installed. In addition to the building code violation, the work performed was incompetent as the structure installed leaked for many months. Further, the original permit expired prior to a final inspection ever being obtained. At the Grantz residence, the Respondent exhibited incompetence and misconduct by installing windows that he knew or should have known were unsuitable for the purposes specified by the customer. Severity of the Offense The large number of violations established in these cases indicates that the Respondent is a serious threat to the public. These violations establish that the Respondent had a pattern of failing to conduct any meaningful supervision of work in progress. And perhaps most serious of all is his frequent act of soliciting deposits for projects he apparently had no intention of even beginning, much less finishing. This latter practice borders on constituting some form of larceny. Danger to the Public The Respondent is a danger to the public in two ways. First, he is a financial threat to the public, most significantly by his practice of taking deposits for jobs he apparently did not intend to perform. Second, he is a threat to public safety, because the work he performs is often done in a haphazard, careless manner. The Number of Repetitions of Offenses As is obvious from the findings of fact and conclusions of law in this Recommended Order, the Respondent is guilty of numerous repeated offenses which occurred over a period of approximately three years. The Respondent's numerous offenses are indicative of an attitude of contempt or disregard for the requirements of the applicable rules and statutes. Number of Complaints Against Respondent The charges in these cases are based on fifteen separate customer complaints to the Department of Professional Regulation regarding the Respondent. Further, the Palm Beach County Construction Industry Licensing Board received four complaints from homeowners regarding the Respondent 5/ and the Broward County Consumer Affairs Department received twenty-nine complaints regarding the Respondent. 6/ Such a large number of complaints indicates that the Respondent's shortcomings were not isolated events, but represent a recurring problem. The Length of Time the Licensee Has Practiced The Respondent was first licensed as a state general contractor in 1987. He obtained his roofing contractor license shortly thereafter. The Respondent's licenses were placed under emergency suspension in August of 1991. Damage to the Customers The damages, monetary and otherwise, suffered by the Respondent's customers has already been addressed. In addition, all of the Respondent's customers mentioned in the findings of fact suffered a great deal of aggravation, stress, and frustration in dealing with the Respondent. Penalty and Deterrent Effect In these cases, the proof submitted demonstrates that no penalties short of revocation of the Respondent's licenses and imposition of the maximum amount of fines will act as a deterrent to the Respondent and others and as appropriate punishment for the many violations established by the record in these cases. Efforts at Rehabilitation There is no persuasive evidence in the record of these cases that the Respondent has become, or is likely to become, rehabilitated. To the contrary, the greater weight of the evidence is to the effect that the Respondent is unwilling or unable to conform his conduct to the requirements of the statutes and rules governing the practice of contracting.
Recommendation Based upon the foregoing findings of fact and conclusions of law, IT IS RECOMMENDED: That the Respondent be found guilty of all of the violations charged in each Administrative Complaint and Amended Administrative Complaint as noted in the conclusions of law, and that the Respondent be disciplined as follows: The Respondent be required to pay an administrative fine in the amount of $5,000.00 for each of the twenty-nine counts of violations charged and proved, for a grand total of $145,000.00 in administrative fines; The Respondent's license numbers CG C040139 and CC C042792 be revoked; and The Respondent be required to pay restitution to the following Complainants in the following amounts: Steven Victor - $670.00; John Grantz - $650.00; Don Romanello - $4,800.00; Marcelina Marin - $2,000.00; Anthony Antonelli - $500.00; John Pappadoulis' next of kin - $648.00. All restitution shall earn 12% interest per annum from the date the Complainants paid their deposit to Respondent. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 21st day of October, 1992. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 1992.
