Findings Of Fact At all times pertinent to the issues presented, Respondent was a registered residential contractor under license number RR 0024559, issued to Kenneth Rowland qualifying Phoenix Construction Services, Inc., issued in April 1975. On May 12, 1977, Angela Close entered into a contract with C & C Roofing Company of Longwood, Florida, to enclose and make a room of the carport on her home located at 215 Ulysses Drive, Apopka, Florida. The contract, which detailed the work to be done, called for a contract price of $2,500 and stipulated the work was to be completed in approximately three weeks from start date. The amount of $1,150 was to be paid when the job was started, and the balance was to be paid upon completion and acceptance. This agreement was signed by Angela Close and J. D. Carver. Ms. Close had given the contract to Carver because she worked with his wife at Seminole Community College and had been advised by her that Carver was in financial difficulty and needed the work. The contract was signed at Close's house, where Carver came with his wife, bringing the contract to be signed. Carver did the preliminary measuring work, but when actual construction began, Respondent was present and accomplished the majority of the work. On May 26, 1977, 14 days after the contract was signed, Respondent pulled a building permit #99146 to accomplish the work called for in the contract, from the Orange County Building Department. Several weeks after the work was started, Respondent asked Ms. Close for some additional progress payments on the job. Since she had already paid Carver in full according to the terms of the contract with him, she refused to pay Respondent, telling him she had paid all that was called for under the terms of her contract with Carver. When she said this, Respondent appeared quite surprised to learn of the contract and angry as well. On June 30, 1977, Respondent wrote a letter to the Orange County Building Department notifying that office that he had stopped work on that project because of nonpayment and requesting his name and license number be removed from the permit. As a result, the permit was cancelled on July 7, 1977. In an interview with Bobby J. Hunter, Sr., an investigator for the Department of Professional Regulation (DPR) several years later, Respondent indicated he agreed to do the job in question for Ms. Close, a friend of Carver, for $3,500. He pulled the permit and commenced work without ever talking to Ms. Close or without having a contract from her to do it, relying on the word of Carver that it was proper to do so. He received several payments from Ms. Close, transmitted through Carver. Two were in cash, and one was a check. When Respondent found out that Ms. Close had a contract with Carver for $2,500 and had paid him in full, he realized he would not receive funds to satisfy the work he had put in on the job, and he ceased work. The investigative report prepared by Mr. Hunter includes summaries of the interviews with both Carver and Respondent which state that Carver and Respondent were partners. Rowland, in his testimony at the hearing, denied any partnership relation. In light of the fact that these summaries are second-hand hearsay, contradicted by sworn testimony of the Respondent that he was not a partner of Carver, I resolve that dispute in favor of the Respondent and find that he was not a partner of Carver. Respondent contends under oath, and I so find, that he pulled the permit to do the work without knowledge of the prior contract between Close and Carver, as a favor to Carver who was reportedly a friend of Close. It was his understanding that, though Carver made the arrangements, it was his, Respondent's contract with Close for the figure he had quoted to Carver after his first survey of the job site, $3,500. He had been told by Carver not to talk with Close, as she did not speak English well, and he admitted to having made a grand mistake in proceeding without a contract from the owner Close. Carver's reliability is not the best. Mr. Hunter, investigator for DPR, indicated that Carver made some false statements to him in other cases. As a result, though Carver alleges he and Respondent were partners, and even Respondent's statement to Hunter seems to so indicate, there was, in reality, no partnership requiring Respondent to qualify C & C Roofing on his license, though there was plans to do so in the future.
Recommendation Based on the foregoing, it is RECOMMENDED That Petitioner enter a final order dismissing the Administrative Complaint. RECOMMENDED this 19th day of August, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1983 COPIES FURNISHED: Douglas A. Shropshire, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Kenneth Rowland 4403 North Powers Drive Orlando, Florida 32808 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. James Linnan, Executive Director Construction Industry Licensing Board Department of professional Regulation Post Office Box 2 Jacksonville, Florida 32202
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 Based upon the record evidence, the following Findings of Fact are made: Respondent is now, and has been since 1982, a general contractor licensed to practice in the State of Florida. He holds license number CG C020528. At all times material hereto, Respondent has been licensed as an individual general contractor, rather than as a qualifying agent for any business entity. 1/ Respondent is now, and has been at all times material hereto, the President of Michelle Construction Corp. (MCC). On or about November 29, 1987, MCC, through Respondent, entered into a written contract with Henry Rodriguez and his wife Patricia, in which MCC agreed, for $30,000.00, to remodel the Rodriguez residence located at 9139 S.W. 69th Court in Miami, Florida. The work to be performed by MCC included, among other things, renovating the residence's two bathrooms, replacing most of the existing roof, doubling the size of the kitchen, and adding to the residence a back porch, living room, dining room, and master bedroom with a bathroom and walk-in closet. Respondent was to prepare the plans for the project. The $30,000.00 contract price was exceptionally low for the type of work that was the subject of the contract. On December 12, 1987, Respondent, using his general contractor's license, obtained a building permit from the Metro-Dade County Building and Zoning Department to perform the work specified in the contract. Shortly thereafter, work began on the project. Although he hired Paulino Hernandez to serve as the project foreman, Respondent retained overall supervisory responsibility for the project and visited the worksite on various occasions. Work on the project proceeded slowly. Changes had to be made to the plans originally prepared by Respondent because they were infeasible. Furthermore, the project was underfinanced, notwithstanding that Mr. and Mrs. Rodriguez made payments in accordance with their contractual obligations. MCC last performed work on the Rodriguez residence on August 25, 1988. At the time it stopped working on the project, the project was not complete. To this date, it remains unfinished, despite Mr. Rodriguez's efforts to have MCC fulfill its obligations under the contract. Among those portions of the project that MCC failed to complete was the roofing work described in the contract. Following MCC's abandonment of the project, Mr. Rodriguez contracted with Trans Continental Coating Co., Inc., to install over the entire residence a "Foamed-In-Place Urethane Insulated Roof and an elastomeric coating system" for $10,000.00. The work that MCC and/or its subcontractors did perform in furtherance of its contract with Mr. and Mrs. Rodriguez was, at least in part, shoddily done in a manner reflecting either gross negligence or incompetence on the part of the workers who performed the work and those that supervised them. For example, the floors in the dining room and living room additions to the house were not level. Neither were the ceilings in the new master bedroom. Furthermore, the tiles that MCC installed were irregular and had depressions in them. Moreover, the dining room addition was several inches out of square. The paint that had been applied to the exterior of the Rodriguez home as part of the project was already peeling off at the time MCC abandoned the project. Mr. and Mrs. Rodriguez had it repainted by Transcon Painting Co. at a cost of $1,900.00. Mr. and Mrs. Rodriguez had paid MCC in excess of $30,000.00 at the time of MCC'S abandonment of the project. Initially payments were made to MCC or Respondent. Subsequently, in an effort to expedite the completion of the project, Respondent authorized Mr. and Mrs. Rodriguez to make payments directly to the job foreman, Hernandez, which they did. Hernandez was to use the money he received from Mr. and Mrs. Rodriguez to pay for the labor and supplies necessary for the project. Although Mr. and Mrs. Rodriguez paid the contract price in full, MCC and Respondent lost money on the project. Respondent has not been the subject of any prior disciplinary action by the Construction Industry Licensing Board.
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 administrative complaint and suspending Respondent's license for a period two months and imposing upon him a fine in the amount of $3,000.00 for having committed these violations. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of November, 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 day of November, 1990.
The Issue Whether the Respondent committed the following acts on the five contracting jobs set forth in the Amended Administrative Complaint: Gross negligence, incompetence, and/or misconduct. Financial mismanagement or misconduct. Failure to properly supervise contracting activities he was responsible for as qualifying agent. Job abandonment on all five construction projects. Aiding and abetting an unlicensed contractor to engage in the contracting business. Engaging in a contracting business under a name not on his license and not qualified with the state.
Findings Of Fact At all times material to these proceedings, the Respondent, Raymond Robert Suarez, was licensed as a certified general contractor in Florida, and held license number CG C0011988. The Respondent was the qualifying contractor for Suarez Brothers Construction Company. He was not registered with the Florida Construction Industry Licensing Board as the qualifying agent for Suarez Brothers of Pinellas, Inc. There were two shareholders in Suarez Brothers Construction Company: Frank B. Suarez and Raleigh Suarez. Corporate responsibilities were as follows: Frank B. Suarez, President Abdelia Arguelies, Vice President Raleigh Suarez, Secretary/Treasurer Raymond R. Suarez, Responsible Managing Employee and Qualifying Contractor The corporation was based in Hillsborough County, Florida. On or before February 24, 1987, a corporation was created known as Suarez Brothers of Pineilas, Inc. Craig O. Tennant became president and Joseph Scott Suarez became vice president. The corporation engaged in the construction business and built single-family residences in Pinellas County, Florida. The business was in the county adjoining Hillsborough County, where Suarez Brothers Construction had built homes for ten years and had gained a good reputation throughout the Tampa Bay area, including Pinellas County. The name of the new corporation with its base of operations in Pinellas County, was deceptively similar to that of Suarez Brothers Construction Company. The close resemblance of the name was intentionally misleading, as Suarez Brothers of Pinellas, Inc. attempted to benefit from the reputation for quality construction gained by Suarez Brothers Construction in which the father of Joseph Scott Suarez, Frank B. Suarez, was president and his brother, Raymond R. Suarez, was qualifying contractor. This is evidenced by the construction contract used by Suarez Brothers of Pinellas, Inc., written representations to building departments of a legal connection between the two companies, and the use of the name of the same qualifying contractor on applications for building permits. In the construction contract used by Suarez Brothers of Pinellas, Inc., it was represented that the company had been a Florida builder since 1949. The people actually engaged in building since 1949 were the father Frank B. Suarez, and the uncle, Raleigh Suarez. These two people were not members of the new company. On four of the five projects for which Suarez Brothers of Pinellas, Inc. had written contracts, the name Suarez Brothers Construction was given to the building departments as the contractor of record instead of the actual corporate name. Raymond R. Suarez was named as the contractor, and his contractor's license number was used on the applications for building permits for the five Suarez Brothers of Pinellas, Inc. contracts which are the subject of the complaint in this proceeding. There was no evidence presented at hearing to demonstrate that Raymond R. Suarez knowingly permitted his name and contractor's license number to be used by either the president or vice-president of Suarez Brothers of Pinellas, Inc. to obtain the building permits for the construction of the residence for Robert D. and Norma L. Ganoe (Case #0110319) or the construction of the residence for Reinhold and Monty Brooks (Case #0106921). On or about June 25, 1987, Suarez Brothers of Pinellas, Inc. contracted with James B. Hughes, Jr. to build a home for $190,000.00 at the following location: 9985 Lake Seminole Drive West, Largo, Florida. The building permit issued for the construction on September 29, 1987, was signed by Raymond Suarez, and his contractor's license number was given as the qualifying contractor for Suarez Brothers Construction of Pinellas on the Hughes project. On February 4, 1988, the contractor on the project was changed to Robert R. O'Andrea. Between September 29, 1987 and February 4, 1988, various subcontractors and materialmen hired by Suarez Brothers of Pinellas, Inc. to provide services or supplies on this job were not paid. Joseph Scott Suarez had been given the funds to timely pay the subcontractors and materialmen by James B. Hughes, Jr. and Wonzel M. Hughes, his wife. Joseph Scott Suarez misappropriated the funds entrusted to him as an officer of Suarez Brothers of Pinellas, Inc. by Mr. and Mrs. Hughes for his own use. As a result, $24,763.63 worth of subcontractors and materialmen's perfected liens were placed against the real property for services and supplies obtained during the time period Raymond R. Suarez was the qualifying contractor of record. Raymond R. Suarez did not have the liens removed from the property within thirty days after the date of such liens, nor has he attempted to have the liens removed at a later date. The Respondent, as qualifying contractor, knew or should have known that the liens were in existence and had been perfected. On or about August 10, 1987, Suarez Brothers of Pinellas, Inc. contracted with Richard and Linda Vozne to construct a home for $121,041.00 at the following location: 316 Seventh Avenue North, Tierra Verde, Florida. The permit for construction was issued by the Pinellas County Department of Building Inspection on December 12, 1987. Raymond Suarez signed the permit as contractor, and his contractor's license number was given as the qualifying contractor for Suarez Brothers Construction. On July 15, 1988, the contractor for the project was changed to Linda J. Vozne, one of the owners of the property. Between December 12, 1987 and July 14, 1988, claims of lien were filed and perfected against the Vozne project in the amount of $16,047.18 for supplies and services ordered while Raymond Suarez was contractor of record. Suarez Brothers of Pinellas, Inc. had received $10,000.00 front money to begin construction when the construction loan entered into by Richard and Linda Vozne with Barnett Bank of Pinellas County closed on November 13, 1987. One hundred three thousand dollars ($103,000.00) of the loan disbursements were made to the construction company by the bank before the owners removed it from the project. The funds disbursed to Suarez Brothers of Pinellas, Inc. were not used to pay the subcontractors who had performed work and provided supplies on the project, as required by the construction contract. They were misappropriated to another use not related to the Vozne construction project. Raymond R. Suarez did not have the liens removed from the property by payment within thirty days after the date of such liens, nor has he attempted to have them removed at a later date. The Respondent, as qualifying contractor, knew or should have known that the liens were in existence and had been perfected. On or about October 28, 1987, Suarez Brothers of Pinellas, Inc. contracted with Keith A. Phillips to build a home for $134,621.00 at the following location: 5944 Bayview Circle South, Gulfport, Florida. The application for a building permit from the City of Gulfport was dated December 22, 1987, and was signed by Raymond R. Suarez. The contractor was designated as "Suarez Brothers" and the Respondent's license number was given as the qualifying contractor on the Phillips project. In September 1988, Suarez Brothers of Pinellas, Inc. was terminated as the project contractor by Keith Phillips and Cynthia S. Phillips, his wife, although no changes were made in the public records of Gulfport. Between October 28, 1987 and September 1988, the company did not complete construction in a timely manner. Pursuant to contract, the project was to be completed within 182 days. No additional periods of time were granted by the owners to the contractor and none were requested. During the period of time Raymond R. Suarez was the qualifying contractor on the Phillips project, eleven thousand one hundred fifty-three dollars and twelve cents ($11,153.12) worth of subcontractor and materialmen liens were perfected as they were not paid by the construction company. The funds to pay for the materials and labor which resulted in the claims of lien had been paid to Suarez Brothers of Pinellas, Inc. by the bank making regular disbursements under the construction loan procured by Mr. and Mrs. Phillips for that purpose. Suarez Brothers of Pinellas, Inc. did not use these funds for their intended purpose and misappropriated them to another use not related to the Phillips construction project. The supplies or services for which the liens were perfected had been ordered by Suarez Brothers of Pinel1as, Inc. for this customer's job. Raymond R. Suarez did not have the liens removed from the property by payment within thirty days after the date of such liens, nor has he attempted to have the liens removed at a later date. The Respondent, as qualifying contractor, knew or should have known that the liens were in existence and had been perfected. Since the alleged incidents of misconduct by Raymond R. Suarez, he has not renewed his contractor's license which remained valid until June 1989. The Hearing Officer was not made aware of any aggravating or mitigating circumstances relating to the charges in the Amended Administrative Complaint at final hearing.
Recommendation Based upon the foregoing, it is RECOMMENDED: That Raymond R. Suarez be found not guilty of the alleged violations set forth in paragraphs four, six and seven of the Amended Administrative Complaint. That Raymond R. Suarez be found guilty of having violated Section 489.129(1)(h), Florida Statutes, based upon the misconduct alleged in paragraph five of the Amended Administrative Complaint, and be ordered to pay a $1,500 fine as the assessed penalty under Rule 21E-17.001(10), Florida Administrative Code. That Raymond R. Suarez be found guilty of having violated Section 489.129(1)(e), Florida Statutes, based upon the misconduct alleged in paragraph eight of the Amended Administrative Complaint, and be ordered to pay a $1,500 fine as the assessed penalty under Rule 21E-17.001(13), Florida Administrative Code. That Raymond R. Suarez be found guilty of having violated Section 489.129(1)(g), Florida Statutes, based upon the misconduct alleged in paragraph nine of the Amended Administrative Complaint, and that a letter of guidance be issued for his misconduct, pursuant to Rule 21E-17.001(1), Florida Administrative Code. DONE and ENTERED this 14th day of January, 1991, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 14th day of January, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-4260 Petitioner's proposed findings of fact are addressed as follows: Accepted. Accepted. See HO #1. Accepted. See HO #1. Rejected. Irrelevant. See HO #9. Accepted, except for the liens against the property for services and supplies placed upon the project after Suarez Brothers of Pinellas, Inc. was taken off the project. See HO #25 - #33. Accepted, except monetary amount of liens on project for servicesand supplies placed after the company was terminated, if any, were not considered. See HO #17 - #24. Rejected. Irrelevant. See HO #9. Accepted, except for liens against the property for services and supplies p1aced on the property after the contractor was changed, if any. See HO #10 - #16. COPIES FURNISHED: Robert B. Jurand, Esquire Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Raymond R. Suarez 904 Terra Mar Drive Tampa, Florida 33613 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Daniel O'Brien, Executive Director Construction Industry Licensing Board 111 East Coastline Drive, Room 504 Jacksonville, Florida 32202 Mr. and Mrs. Reinhold Brooks 6117 - 94th Avenue North Pinellas Park, Florida Mr. and Mrs. Keith Phillips 5944 Bayview Circle Gulfport, Florida Mr. and Mrs. Richard Vozne 316-7th Avenue North Tierra Verde, Florida Mr. and Mrs. Robert Ganoe 10503 - 100th Street North Largo, Florida Mrs. and Mrs. James B. Hughes, Jr. 9985 Lake Seminole Drive West Largo, Florida
The Issue The central issue in this case is Petitioner's challenge to part III of the licensure examination as set forth in his letter dated September 8, 1994.
Findings Of Fact Petitioner, Robert E. Rosser, is a candidate for licensure as a general contractor. Petitioner has taken the examination to become a licensed general contractor consecutively over the last four years. As a result of the twelve attempts at the examination, Petitioner has passed parts I and II on two separate test dates. In his attempts to pass the examination Petitioner has enrolled in and studied for the examination with two approved construction schools. Petitioner scored a 68 on part III of the general contractor's examination for the June 16, 1994 test date. Petitioner timely challenged questions related to part III (Project Management) of the general contractor's examination given on June 16, 1994. Petitioner attended a review session and claimed that as to question 2 his scratch sheet from the examination demonstrates he had used formulas properly and that he had inadvertently marked the incorrect response on the answer grid sheet. The minimum score required to pass part III of the examination was 70. For each of the challenged questions in part III (2, 4, 7, 9, 11, 17, 18, and 20) Respondent presented competent evidence to support the correct answer as scored by the Department. The Petitioner did not present credible evidence to dispute the accuracy of the answers which had been deemed correct by the Department. Based upon those answers, the Petitioner's score sheet was tabulated correctly. The questions challenged were clearly and unambiguously worded and contained sufficient factual information to reach a correct answer. The examination was open book and applicants were allowed to use reference materials. All current techniques were considered before the correct answer was chosen. All knowledge needed to reach a correct answer was within a candidate's expected range of expertise. The Department's scoring of part III was not arbitrary, capricious, or devoid of logic. For each of the challenged questions, the correct answer was scored at a higher percentage than the answers marked by Petitioner. In fact, for question 4, for example, 79 percent of the examinees scored the correct answer while only 3 percent marked the same answer as Petitioner.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That Department of Business and Professional Regulation, Bureau of Testing enter a final order dismissing Petitioner's challenge to the general contractor's examination. DONE AND RECOMMENDED this 23rd day of January, 1995, in Tallahassee, Leon County, Florida. JOYOUS D. 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 23rd day of January, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5214 Rulings on the Petitioner's proposed findings of fact: Petitioner did not number the paragraphs denoted as "STATEMENT OF FACTS AND FINDINGS". The lettered paragraphs are addressed as listed; but where no letter identified the paragraph, the rulings are as to the paragraphs in the order of presentation. Paragraph [A] is accepted. Paragraph [B] is accepted to the extent it identifies Petitioner as a candidate otherwise rejected as not supported by the weight of the credible evidence. Petitioner's citation to Rule 21E-16.005 is an error. It is accepted that the minimum passing grade for the challenged part is 70 percent out of 100 percent. Paragraph [C] is accepted in substance; however, Petitioner's citation to Rule 21E-16.003 is an error. The next paragraph is rejected as contrary to the weight of the credible evidence. The next paragraph is accepted as a correct statement of procedural review. The next paragraph is rejected regarding question 4 is rejected as not a statement of fact or contrary to the weight of the credible evidence. The next paragraph is rejected regarding question 7 is rejected as not a statement of fact or contrary to the weight of the credible evidence. The next paragraph is rejected regarding question 9 is rejected as not a statement of fact or contrary to the weight of the credible evidence. The next paragraph is rejected regarding question 11 is rejected as not a statement of fact or contrary to the weight of the credible evidence. The next paragraph is rejected as not a statement of fact. Petitioner's scratch sheets have been received as Petitioner's exhibit 1. The next paragraph is rejected regarding question 17 is rejected as not a statement of fact or contrary to the weight of the credible evidence. The next paragraph is rejected as not a statement of fact. Petitioner's scratch sheets have been received as Petitioner's exhibit 1. The next paragraph is rejected regarding question 18 is rejected as not a statement of fact or contrary to the weight of the credible evidence. The next paragraph is rejected regarding question 20 is rejected as not a statement of fact or contrary to the weight of the credible evidence. Paragraph [D] is accepted as statement of procedural information but is not supported by the evidence. Paragraph [E] is accepted as statement of procedural information but is not supported by the evidence. The next paragraph is merely an address for the Department and is not a statement of fact. Paragraph [F] is accepted as statement of procedural information but is irrelevant. Paragraph [G] is accepted as statement of procedural information but is irrelevant. The next paragraph is merely an address for the Division and is not a statement of fact. Paragraph [H] is accepted as statement of procedural information but is irrelevant. Paragraph [I] is accepted as statement of procedural information but is irrelevant. Paragraph [J] is accepted as statement of procedural information but is irrelevant. Paragraph [K] is rejected as contrary to the record in this case since an order of prehearing instruction was not entered in this case and interrogatories were not served. Paragraph [L] is rejected as irrelevant, not a statement of fact, and contrary to the record. Moreover, Petitioner's scratch sheets have been received as Petitioner's exhibit 1. Paragraph [M] is rejected as argument or contrary to the weight of credible evidence. Paragraph [N] is rejected as irrelevant or contrary to the weight of credible evidence. Paragraph [O] is rejected as contrary to the weight of credible evidence. Paragraph [P] is rejected as contrary to the weight of credible evidence. Rulings on the proposed findings of fact submitted by the Respondent: Paragraphs 4 through 11 are accepted. Paragraph 1 is accepted as statement of procedural information. Paragraph 2 is accepted as to the substance but is not a statement of relevant fact. Paragraph 3 is accepted as to the substance but is not a statement of relevant fact. COPIES FURNISHED: Robert E. Rosser P.O. Box 560541 Miami, Florida 33256-0541 William M. Woodyard Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0750 Jack McRay General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Richard Hickok Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-6310
The Issue The issue in this case is whether Respondent, Wayne H. Wagie, committed the offenses alleged in an Administrative Complaint filed with Petitioner, the Department of Business and Professional Regulation, on August 11, 2004, and, if so, what penalty should be imposed.
Findings Of Fact The Parties. Petitioner, the Department of Business and Professional Regulation (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for, among other things, the licensure of individuals who wish to engage in contracting in the State of Florida; and the investigation and prosecution of complaints against individuals who have been so licensed. See Ch. 689, Fla. Stat (2005). Respondent, Wayne H. Wagie, is and has been at all times material hereto a licensed certified general contractor in Florida. Mr. Wagie was originally licensed as a certified general contractor on or about December 28, 1978, license number CGC 13331. At all times material hereto, the status of his license has been "Current, Active." At all times material, Mr. Wagie was the qualifying agent for Unified Construction Technologies, Inc (hereinafter referred to as "Unified Construction"), a Florida corporation. Unified Construction did not have a certificate of authority as a qualified business organization. The Department has jurisdiction over Mr. Wagie's license. The Spiegel Brothers. At the times material to this matter, Mr. Wagie engaged in a business arrangement with two brothers, Abraham and Yosef Spiegel (hereinafter referred to jointly as the "Spiegel Brothers), whereby Mr. Wagie allowed the Spiegel Brothers to use his general contractor's license number and qualifying number to pull permits for a company through which the Spiegel Brothers conducted construction business. The Spiegel Brothers' construction company was Mega Construction Group, Inc., d/b/a Mega Construction Group, Inc. (hereinafter referred to as "Mega Construction"). Pursuant to their agreement, Mega Construction, through the Spiegel Brothers, was to handle all aspects of any construction contracts the Spiegel Brothers were able to enter into, including negotiating the contract, handling funds received from customers, and performing all necessary work. The only function not to be carried out by the Spiegel Brothers or Mega Construction was to actually obtain the necessary building permits; that was Mr. Wagie's responsibility. In exchange for his services, Mr. Wagie was to receive a percentage of the sales price, with half paid upon execution of the contract and half after completion of the work. Neither of the Spiegel Brothers was a licensed general contractor in Florida. Nor was Mega Construction certified as a contractor qualified to do construction business in Florida. Mr. Wagie was aware of these facts. The Sicre Contract. In 2001, Candida Sicre owned and resided at a house located at 650 82nd Street, Miami Beach, Florida. Ms. Sicre was interested in adding a handicap accessible bathroom to her home and, when she received a flyer in the mail advertising Mega Construction, she contacted the Spiegel Brothers. On August 13, 2001, Ms. Sicre entered into a written contract with Mega Construction (hereinafter referred to as the "Sicre Contract"). Pursuant to the Sicre Contract, Mega Construction agreed to construct a new handicap-accessible bathroom for which Ms. Sicre agreed to pay a total of $15,762.00. As part of their contract, it was agreed that an air-conditioning unit would be relocated. While the relocation of the air-conditioning unit is listed as "1" and the construction of the new bathroom is listed as "2" in the Sicre Contract, in fact the relocation of the air-conditioning unit was a necessary component of the construction of the new bathroom, for the new bathroom was to be constructed from where the air-conditioning unit was to be relocated. Ms. Sicre paid a total of $7,762.00 on the agreed Sicre Contract price. On September 17, 2001, Mr. Wagie, pursuant to his agreement with the Spiegel Brothers, signed a building permit application required to complete the Sicre Contract. That application was filed with the City of Miami Beach building department on or about January 4, 2002. On the permit application, Unified Construction was listed as the "Company," Mr. Wagie was listed as "Qualifier," and Mr. Wagie's license number was listed as the "License No." under "Contractor Information". The permit application was approved by the City of Miami Beach on or about May 31, 2002, and permit number KB0201178 was issued. Pursuant to an agreement between the Spiegel Brothers and Ms. Sicre, the starting date for the Sicre Contract was postponed to August 15, 2002, just over a year after it had been entered into. At some time after the Sicre Contract was entered into, the air-conditioning unit was relocated as specified in the contract. Except for the relocation of the air-conditioning unit, no further work specified under the Sicre Contract was performed. The actual construction of the new bathroom was never started. Eventually, Ms. Sicre was told that the work would not be performed because Mega Construction was going to declare bankruptcy. After being told that the new bathroom would not be completed, Ms. Sicre sold her house. She attempted, however, to obtain a refund of some of the $7,762.00 she had paid Mega Construction. Eventually, Ms. Sicre learned of Mr. Wagie's involvement with the Spiegel Brothers and, through a series of negotiations, it was agreed that she would receive a refund of $2,000.00 through Mr. Wagie from the Spiegel Brothers. She was eventually given two $1,000.00 checks in furtherance of this agreement, but the checks ultimately "bounced." The only work performed on the Sicre Contract by Mega Construction was the drawing of a building permit and the relocation of the air-conditioning unit. For this work, Ms. Sicre paid a total of $7,762.00. Ultimately, Mega Construction, although beginning the project by relocating the air-conditioning unit, abandoned the project without its completion. Prior Disciplinary Action. On July 15, 1996, the Department filed a Final Order reflecting that a settlement stipulation had been approved by the Construction Industry Licensing Board (hereinafter referred to as the "Board"), pursuant to which Mr. Wagie agreed to pay an administrative fine in the amount of $250.00, plus investigative and legal costs in the amount of $368.30 to resolve charges against his license, which Mr. Wagie denied. The Department's Costs of Investigation and Prosecution. The Department has incurred $597.69 in the investigation and prosecution of this matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department: Finding that Wayne H. Wagie violated Section 489.129(1)(i), Florida Statutes (2000), as alleged in Counts I and III of the Administrative Complaint; and violated Section 489.129(1)(d), Florida Statutes (2000), as alleged in Count II of the Administrative Complaint; Dismissing Counts IV and V of the Administrative Complaint; and Imposing an administrative fine in the total amount of $3,250.00; requiring that Mr. Wagie pay Ms. Sicre $2,000.00 in restitution; requiring that Mr. Wagie pay $597.69 as the costs of the investigation and prosecution of this matter; and that his license be suspended for a period of two years. DONE AND ENTERED this 31st day of August, 2005, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 31st day of August, 2005. COPIES FURNISHED: Theodore R. Gay Assistant General Counsel Department of Business and Professional Regulation 8685 Northwest 53rd Terrace, Suite 100 Miami, Florida 33166 Wayne H. Wagie 220 Northeast 45th Street Miami, Florida 33137 Tim Vaccaro, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact The Respondent is a registered general contractor, having been issued license number RG 0012013. On October 3, 1980, the Respondent, d/b/a Five Ray Enterprises, Inc., entered into a contract with David and Laytha Danley to construct a residence near Brooksville, Florida, for the sum of $61,621.00. This contract was a construction management type of agreement in which the Respondent was to be paid a fee for his services. The Respondent commenced construction, and completed between 85 percent and 95 percent of the project before discontinuing an active role in the work during June of 1981. The Respondent's base of operations was in Winter Park, nearly 100 miles from the construction site, and he was having some personal problems. Therefore, the Respondent agreed with Al Nickola to have Nickola supervise the completion of construction, which involved some painting, grading, finish electrical work and the installation of appliances. The Respondent knew that Al Nickola was unlicensed as a contractor when he entered into the agreement with Nickola to complete the construction. Before he discontinued his work on the project, the Respondent received all the inspections except for the Certificate of Occupancy. His agreement with Nickola was to complete the work which was left and to obtain the Certificate of Occupancy. The Respondent did not properly qualify Five Ray Enterprises, Inc., under which name he contracted to build the residence for the Danleys. On September 9, 1981, the Citrus County Hoard of Examiners revoked the Respondent's license for abandonment of the Danley construction project. However, the minutes of the Board meeting at which this action took place, do not reflect whether or not a full examination was made of all the facts. They simply indicate that the Respondent did not appear at the meeting as requested.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Roland C. Ray, be found guilty of one violation of Section 489.129(1)(g), Florida Statutes, and one violation of Section 489.119(2) and (3), Florida Statutes, and that he be assessed an administrative fine of $250 on each charge for a total fine of $500. It is further RECOMMENDED that the Respondent be found guilty of violating Section 489.129(1)(i), Florida Statutes, and that his license be suspended until such time as the Respondent has obtained reinstatement of his Citrus County license. And it is further RECOMMENDED that the Respondent be found not guilty of violating Section 489.129(1)(k), Florida Statutes. THIS RECOMMENDED ORDER entered on this 11th day of February, 1983, in Tallahassee, Florida. WILLIAM B. THOMAS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 1983. COPIES FURNISHED: John O. Williams, Esquire 547 North Monroe Street Suite 204 Tallahassee, Florida 32301 Roland C. Ray 305 North Pennsylvania Avenue Winter Park, Florida 32789 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, DPR Case No. 0018288 DOAH Case No. 82-2395 ROLAND C. RAY RG 0012013 Post Office Box 5877 Orlando, Florida 32855 Respondent. /
The Issue The issue in this case is whether the Construction Industry Licensing Board should discipline the Respondent for alleged violation of Section 489.129(1)(n) and (r), Fla. Stat. (1995).
Findings Of Fact The Respondent, Robert Gary Kinney, holds General Contractor License No. CG C040517, issued by the Construction Industry Licensing Board on August 18, 1987. For almost the entire period of his licensure, the Respondent also qualified his company, Florida Construction and Development Inc. of Melbourne, to do business in Florida as a general contractor. (The Respondent was the sole owner, president and vice-president of the company.) Effective September 1, 1996, the Respondent’s license was placed on a delinquent status for non-renewal and is considered invalid. On or about May 20, 1992, the Respondent executed a personal guaranty in order for his company to obtain credit from Cox Lumber Co. Subsequently, his company purchased building materials from Cox Lumber, using credit, and incorporated the building materials into one of his company’s residential construction projects. The Respondent and his company paid only a portion of the purchase price, and January 23, 1994, Cox Lumber obtained a Second Amended Final Judgment against the Respondent under the personal guaranty in the amount of $8,829.56, together with pre-judgment interest in the amount of $1,176 and post judgment-interest until satisfied. The Respondent has made no payments on the Second Amended Final Judgment since its entry. In his request for formal administrative proceedings, the Respondent defended on the alleged grounds: (1) he had no prior knowledge of the purchase from Cox Lumber; (2) he did not request or submit a written credit application; and (3) he had no prior knowledge of the complaint or judgment. Based on the evidence, those alleged grounds are false. Based on the evidence, there is no basis to mitigate penalties recommended in the Construction Industry Licensing Board’s penalty guidelines. To the contrary, the Respondent’s cavalier attitude and false defenses are grounds to aggravate the recommended penalties.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board enter a final order: (1) finding the Respondent guilty of violating Section 489.129(1)(r), Fla. Stat. (1995); (2) requiring that he satisfy the Second Amended Final Judgment against him; (3) imposing a $1,000 fine; and (4) revoking his license. RECOMMENDED this 28th day of March, 1997, at Tallahassee, Florida. COPIES FURNISHED: John L. Chaves Senior Attorney Department of Business and Professional Regulation 1940 North Monroe Street J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax FILING (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 1997. Tallahassee, Florida 32399-0792 Robert Gary Kinney 920 Mesa Grande Road Aptos, California 95003 Rodney Hurst, Executive Director Construction Industry Licensing Board 7060 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of alleged violations of Chapter 489, Florida Statutes, (1992 Supp.). Specifically, the Respondent has been charged in a four-count Administrative Complaint with violations of paragraphs (k), (m), (n) and (p) of Section 489.129(1), Florida Statutes (1992 Supp.).
Findings Of Fact Respondent is, and has been at all times material hereto, a licensed Certified General Contractor, having been issued license number CG C007303, by the State of Florida. At all times material hereto, the Respondent was licensed to contract as an individual. On September 18, 1992, the Respondent, doing business as an individual, contracted with Charles and Elba Williams (hereinafter referred to as "Customers") to reroof their dwelling and shed at 15205 SW 78 Place, Miami, Florida, for the price of Fifteen Thousand, One Hundred Seventeen dollars ($15,117.00). On October 1, 1992, the aforementioned contract was amended to provide for the payment of half of the second draw before the second stage of the project was completed, and to provide for the payment of an additional Three Hundred and Fifty One dollars ($351.00) in materials. On November 5, 1992, the aforementioned contract was amended to provide the Customers with a credit on the contract of One Thousand, Six Hundred Thirty Six dollars and Sixty Four cents ($1,636.64) for their purchase of roof shingles. The revised contract price was Sixteen Thousand and Fifty Eight dollars ($16,058.00). The Customers paid the Respondent Twelve Thousand, Two Hundred Seventy Seven dollars and Ninety cents ($12,277.90) toward the contract. After receiving a credit on the balance due on the contract, the Customers owed Two Thousand, One Hundred Forty Two dollars and Thirty Two cents ($2,142.32) to the Respondent. On September 23, 1992, the Respondent obtained roofing permit number 92-110050 for the Customers' project from the Dade County Building and Zoning Department. The Respondent worked on the Customers' roof from September 23, 1992, through November 15, 1992, when the installation of the shingles was completed. On November 19, 1992, the Respondent failed a final inspection performed on the Customers' roof by the Dade County Building and Zoning Department because the Respondent failed to supply Dade County with product approval information and manufacturer installation specifications for the ridge vent he had installed. On November 24, 1992, the Respondent again failed a final inspection performed on the Customers' roof by the Dade County Building and Zoning Department for the same reason as on November 19, 1992. The Respondent never obtained a passing final inspection on the Customers' roof from the Dade County Building and Zoning Department. On November 24, 1992, the Customers sent the Respondent a Certified letter, Return Receipt requested, informing the Respondent that the roof could not pass final inspection until Dade County was provided with the product approval information and manufacturer installation specifications for the ridge vent he had installed. On December 4, 1992, the Respondent was issued a Notice of Violation from the Dade County Building and Zoning Department for failure to provide product approval information and manufacturer installation specifications for the ridge vent that had been installed on the Customers' roof. On December 4, 1992, the Respondent was issued a Notice of Violation from the Dade County Building and Zoning Department for failure to remove construction debris from the Customers' property. The Respondent did not comply with either Dade County Notice of Violation and did not supply the Dade County Building and Zoning Department with the product approval information and manufacturer installation specifications for the ridge vent that had been installed on the Customers' roof. The Customers were left with a roof that did not comply with Dade County Code. On March 26, 1993, the Customers paid a Forty Five dollar ($45.00) renewal fee to the Dade County Building and Zoning Department and had the roofing permit renewed and reissued in their own names. On March 4, 1993, the Customers paid another contractor, Mark Mitchell, Two Hundred dollars ($200.00) to remove the ridge vent and close the hole in the roof left by the removal of the ridge vent. On March 27, 1993, after the ridge vent had been removed, the Customers paid a Special Investigator, Ken Nash, Fifty dollars ($50.00) to perform a final inspection of the roof. On March 31, 1993, Ken Nash performed a final inspection of the roof and the roof passed inspection. The Customers paid Steve Wooten Thirty dollars ($30.00) to remove construction debris left on their property by the Respondent and to bring their property in compliance with the Notice of Violation issued on December 4, 1992.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Construction Industry Licensing Board issue a Final Order in this case to the following effect: Dismissing the charges alleged in Counts I, II, and IV of the Administrative Complaint; Concluding that the Respondent is guilty of the violation charged in Count III of the Administrative Complaint; and Imposing a penalty consisting of a fine in the amount of Two Hundred Fifty dollars ($250.00) for the violation charged in Count III of the Administrative Complaint. DONE AND ENTERED this 3rd day of May, 1995 in Tallahassee, Leon County, Florida. 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 3rd day of May, 1995. COPIES FURNISHED: Diane Snell Perera, Esquire Department of Business and Professional Regulation 7300 North Kendall Drive, Suite 780 Miami, Florida 33156 Mr. Al C. Hufeld Post Office Box 681064 Orlando, Florida 32868-1064 Richard Hickok, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
