Findings Of Fact At all times relevant hereto, Respondent was licensed as a registered building contractor and as a registered general contractor. On or about August 4, 1982, Hoffman, representing B & B Constructors, Inc., contracted with Vernon Swanger to build an addition to the Swanger residence at 4412 West Lelia Avenue, Tampa, Florida. The contract price for the addition to the Swanger residence was $9,150. On August 4, 1982, Swanger made the initial payment to Hoffman of $3,000 by check on this contract. Prior to the signing of this contract, Hoffman had contacted Respondent, who agreed to pull the permit for this project and who signed a blank proposal which was subsequently completed, executed by Swanger and Hoffman on 4 August 1982, and became Exhibit 2 in these proceedings. On or about August 16, 1982, Respondent obtained a permit for the addition to the Swanger residence from the City of Tampa Building Department showing Respondent as the licensed contractor for the job. Although Respondent signed the stipulation of facts that "All or the greater part of the $3,000.00 which was the first or initial payment on the contract for the Swanger addition was diverted from the construction work," Hoffman testified in Exhibit 25 that he used the $3,000 to buy materials for the project and to pay his (Hoffman's) salary for his work on the project. Under the facts here presented, Hoffman was the only one who knew for what this $3,000 had been used. In his deposition Hoffman testified that an excessive number of rainy days resulted in cost overruns resulting in insufficient money to complete the project. At no time relevant hereto was Hoffman of B & B Constructors, Inc., licensed as a contractor by the State of Florida. Respondent visited the Swanger residence once or twice while the work was in process, but all materials were ordered by Hoffman, all subcontractors were hired by Hoffman or Swanger, Hoffman was the one supervising the project, and Respondent's participation and supervision was, at best, pro forma. At no time was Respondent the qualifying agent for B & B Constructors, Inc., although Respondent briefly considered acquiring B & B Constructors, Inc., at or about the time the contract with Swanger was negotiated. The City of Tampa, Florida, is the local government with jurisdiction of the area, which is part of Hillsborough County, where Respondent is qualified as a licensed contractor. On or about January 11, 1983, as the result of a complaint filed by Swanger, Respondent's license to practice contracting in Tampa was revoked by the City of Tampa Unified Construction Trades Board. Respondent testified that he paid for the permit pulled for the Swanger project out of his own pocket and was never reimbursed by Hoffman. However, in Exhibit 25, Hoffman testified that he gave Respondent $100 in cash with which to pull the permit and his agreement with Respondent was to pay Respondent 3 percent of the contract price to pull the permit as licensed contractor.
Recommendation From the foregoing it is concluded that Respondent is guilty of all charges alleged except violation of Section 489.129(1)(h), Florida Statutes, involving diversion of funds. In view of Respondent's voluntary inactivation of his license since June 1983 it is recommended that Respondent's license be suspended for six (6) months from the date the Construction Industry Licensing Board enters its final order in this case. DONE AND ENTERED this 19th day of October 1984 at Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of October 1984. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 George W. Brown 11222 Russell Drive Seffner, Florida 33584 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Board of Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202
Findings Of Fact Respondent, Fred H. White, was licensed as a registered general contractor in Florida under License Number RG 0005082 in February, 1968. Thereafter, in April, 1970, Respondent was issued his license to qualify BUILDINGS BY WINCHESTER, INC. His license went delinquent on July 1, 1973, however, it was reinstated and placed on active status in July, 1977 when Respondent qualified CAPITAL STONE COMPANY under that license. The license was to expire on June 30, 1981. In July 1982, it was again issued to Respondent qualifying as an individual and was, at all times pertinent to the issues alleged herein, active. On December 2, 1982, Respondent entered into a contract with Mr. and Mrs. E.M. Powell, of Lot 10, Shell Harbour, St. George Island, Florida, to build a 1736 square foot home for them for the contract price of $74,120.00. The plans and specifications for this construction were listed by number on the hand written contract signed by Respondent and the Powells and witnessed by Ronald Jones. This contract was signed after Mr. Powell procured the issuance of a building permit to build a 1668 square foot residence, estimated to cost $52,500.00 on his Shell Harbour property. Mr. Powell-indicates that the application for the building permit was made by his architect, Mr. Clayton Anderson, however, the application and permit itself reveals no place thereon where Mr. Anderson's signature appears. In fact, the signature of the applicant, undated, is that of Mr. Powell, but the permit, number 4512, was issued on November 11, 1982. Both Mr. Powell and the Respondent attribute the difference in size of the building and the price to changes made and agreed upon by the parties subsequent to the issuance of the permit and prior to the signing of the contract. The contract in question is what could be best described as a "bare bones" contract. The basic legal requirements of a contract are present in that the parties are identified, consideration is reflected, there is a specific legal purpose, and obviously an offer and acceptance with, at the time of signing, an apparent meeting of the minds. This document is, however, an invitation to dispute, as there is no estimated time of completion or any other detail which might serve to more clearly identify the rights and obligations of the parties. Mr. Powell indicates that the Respondent estimated three months would be necessary to complete the project and that Mr. White indicated he would be on the site just about every day. Mr. White tells a substantially different story, however, in that he contends he had other projects under construction at the time, projects with which Mr. Powell was totally familiar, and that he, Respondent, was present when necessary, to supervise as necessary. Mr. White denies that he was the general contractor for Mr. Powell on this job. He contends that he was the framing contractor and that Mr. Powell served as his own general contractor. He contends, and Mr. Powell admits, that much of the building material purchased was picked out by Mr. Powell. On the other hand, much was also ordered by Respondent. Neither side could give a detailed accounting of who bought what and no evidence was presented to show who did what in any detail. Certain of the subcontractors were arranged for by Respondent. Others were arranged for by Mr. Powell. All bills were paid by Mr. Powell. According to Respondent, he signed the contract as general contractor only so that Powell could get a Veterans' Administration loan and issued the completion certificate as general contractor because "that's the way it was done." Be that as it may, the house was subsequently completed, and at the closing on or about October 31, 1983, Mr. White, as general contractor, presented Mr. Powell with a contractor's affidavit in which he indicated that all subcontractors, laborers and material suppliers had been paid in full; that all building codes had been complied with; that all installed equipment including roofing, ventilators, windows, skylights, fireplaces, insulation, etc., were installed according to building code and manufacturers' instructions and that all manufacturers' guarantees and warranties were thereby validated by the proper installation of the product. Respondent orally warranted he would stand behind his work for one year. Mr. White, as was indicated above, denies he was the general contractor but insists that he was properly supervising those portions of the project which it was his responsibility to supervise. Mr. Powell, on the other hand, insists that Respondent was frequently absent and there were several periods when he did not appear on the site to supervise construction of the property for extended periods of days. There was no detailed evidence, however, as to which days were involved, but it is clear from all the evidence, including the contract and the certificate as well as Mr. White's testimony, that he was the general contractor and had a responsibility to adequately supervise the construction regardless of whether the subs in question were directly hired by him or were hired by Mr. Powell. It is inconceivable that Respondent would have continued to perform under the contract if he did not feel that he had a responsibility to do so and that, for the most part, matters were going as they were envisioned to go under the terms of the agreements between the parties. After installation and from the very beginning, Mr. Powell noticed a problem with the upper outside fixed windows on the land side of the house which had been picked out by Respondent. It appears that water was leaking in the vicinity of these triangular windows and ran down the interior walls under the two outermost windows into the light fixture over the sink and down onto the counter tops. Water also ran down the wall over the entrance door and damaged a closet ceiling near that area. As a result, part of the ceiling fell in the closet the counter top in the kitchen began to swell and pull away from the wall and the drawers in the closets began to bind. When these leaks first occurred, even before the house was completed, Mr. Powell notified the Respondent both orally and in writing. Respondent promised to repair the windows and did, on several occasions, come out and attempt repairs by caulking around the windows. However, these repairs were ineffective and each time it would rain, water would again come in. Respondent never inspected right after a rain, however. Consequently, on December 19, 1983, Mr. Powell wrote a letter of complaint to Respondent which he sent by Registered Mail to that address utilized by Respondent--Route 8, Box 85B, Tallahassee, Florida, 32301. Respondent was left several notices by postal authorities but failed to claim the letter from the post office and it was returned to the sender undelivered. Mr. Powell, on February 15, 1984, hand-delivered a similar letter outlining the discrepancies in the house to Respondent on the steps of the county courthouse in Apalachicola, Florida, but Respondent denies ever having received the letter. Respondent attempted to explain why he did not receive notice of the letter sent to him by Registered Mail. His explanation was so convoluted and involved as to be incomprehensible and not capable of belief. By the same token, Mr. Powell has a faulty memory of many of the things recited by Respondent. This is obviously a situation where both parties see the matter in the light most favorable to them and, unfortunately for the resolution of this dispute, there is little independent evidence of what happened. However, in resolution of the matter, it is found that though the first letter was not received, the second letter was, and Mr. White was given ample notice, aliande the letters, of the defects in the installation of these windows as well as the chimney cap through which, reportedly, water was entering the chimney and rusting the firebox of the fireplace. With regard to this chimney, Respondent agreed to install a new chimney cap, just to keep the peace, even though he did not feel there was anything wrong with the installation of the original one. Mr. Powell was to get it, but did not do so, however, claiming that he was never instructed by Respondent as to what kind to get or when to get it. As to the allegedly deficient cap, Respondent describes it as a tubular piece of metal perforated all around so that the smoke can get out but hot ash is retained. Since there are holes in the device to let the smoke out, water can get in through those holes when it rains. Respondent claims that what is needed, if a total absence of water is desired, is to place a cover over the cap. Respondent contends that all fireplaces built that way with an uncovered cap, admit water to some degree. There was no evidence presented by the Petitioner to contradict Respondent's assertion or to show that Respondent improperly installed the chimney cap. With regard to the windows, however, after Mr. Powell had made the repeated efforts to have Respondent repair the windows so that the leakage would stop, he subsequently contracted with another builder to replace them. When this second builder examined the windows, it was determined that they were too small for the opening in which they were placed and that they were improperly installed. This left a large area around the window which Respondent had attempted to fill with caulking, but the space was so large that caulking itself was insufficient to correct the problem. The second contractor determined it would be necessary to remove the windows and install appropriate sized windows in a proper fashion and this was done at a cost of in excess of $500.00. The windows have not leaked since. Respondent contends that the windows were properly installed and caulked and that the leak did not come from the space around the windows. Instead, he contends, the leak was caused by improper caulking of the batting above the window below the soffit which was the responsibility of the painter who was, in fact, Mr. Powell's son-in-law and hired by him. Even the builder who replaced the windows agrees that caulking of the batting would be the responsibility of the painter, but he contends that this leak was not caused by this deficient caulking but by the improperly sized and installed windows. This was Respondent's responsibility and it is so found. There is no evidence, aliunde that described above which in any way shows that Respondent made any misleading, deceptive, or fraudulent misrepresentations in the practice of contracting. Though no detailed information was presented regarding the actual number of days Respondent was absent from the job site, there was some substantial evidence on the part of Mr. Powell, who had no reason to lie, that Respondent was absent from the job site quite frequently.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED that Respondent be found guilty of imcompetence in the installation of the windows in question in Mr. Powell's house, as alleged in the Administrative Complaint that the remaining allegations be dismissed that Respondent be reprimanded that his license be placed on probation for a period of two years under such terms and conditions as the Construction Industry Licensing Board shall determine appropriate, and that he make restitution to Mr. Powell in the amount of $577.23. RECOMMENDED this 11th day of June, 1986, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 1986. Copies furnished: Fred Seely Executive Director Construction Industry Licensing Board P. O. Box 2 Jacksonville, Florida 32201 Errol H. Powell, Esquire Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301 Fred H. White, pro se Route 8, Box 85-B Tallahassee, Florida 32301 Fred Roche Secretary Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2) Florida Statutes, on all of the Proposed Findings of Fact submitted by the Petitioner herein. 1. Adopted in Finding of Fact 1. 2-4. Adopted in Finding of Fact 2. 5-6. Adopted in Finding of Fact 6. Adopted in Finding of Fact 3. Adopted in Finding of Fact 5. Adopted in Finding of Fact 14. Adopted in Finding of Fact 5. Adopted in Finding of Fact 7. lla. Irrelevant. Subordinate to the finding that Respondent was the general contractor. Adopted in Finding of Fact 8. Irrelevant. 15-16. Adopted in Finding of Fact 8. 17. Adopted in Finding of Fact 12. 18-19. Adopted in Findings of Fact 9 and 10. 20-21. Adopted in Finding of Fact 12. 22-25. Adopted in Finding of Fact 9. 26-27. Adopted in Finding of Fact 13. 28. Irrelevant. 29-31. Adopted in Finding of Fact 13. Adopted in Finding of Fact 14. Subordinate to Finding of Fact 13. Adopted in Finding of Fact 13. Adopted in Finding of Fact 14. Adopted in Finding of Fact 12.
The Issue Whether a certified general contractor's license issued to Francisco Vincente De Moya (Petitioner) that has been classified null and void should be reinstated pursuant to the "hardship" provision of section 455.271(6)(b), Florida Statutes.1
Findings Of Fact Respondent is the state agency that regulates general contractors in the State of Florida. In 1998, Respondent issued Petitioner certified general contractor license CGC 05992. Certified general contractors are required to take a total of 14 hours of continuing education courses in specified categories each biennial period.2 Credit is generally posted for the biennial period during which the course was taken. All continuing education courses discussed in this Recommended Order were taken by Petitioner using the internet and reported electronically. Respondent typically posts and maintains such credits electronically. Credits are typically posted for the biennial period in which the credits are earned. If a licensee had been deficient for a prior biennial period, Respondent's staff can manually post-date credits from a subsequent biennial period to the biennial period that is deficient. 2004-2006 Biennial Period On August 23, 2004, Petitioner submitted to Respondent a personal check in the amount of $209.00 as payment of renewal fees for his general contractor's license for the biennial period 2004-2006. Petitioner's general contractor's license was not renewed for the 2006-2008 biennial period because Petitioner had not completed sufficient continuing education hours during the 2004-2006 biennial period to meet his continuing education requirements. On September 1, 2006, Respondent classified the status of Petitioner's as "expired/delinquent." As of September 1, 2006, and as of the date of the formal hearing, Respondent's records reflected that Petitioner was deficient in his continuing education requirements for the biennial period 2004- 2006 by a total of six hours in three categories.3 One hour of the deficiency was in the category of advanced building code. Four hours of the deficiency were in the category of general. One hour of the deficiency was in the category of workers' compensation. 2006-2008 Biennial Period On September 29, 2006, Petitioner submitted to Respondent a payment in the amount of $309.00 for renewal fees and late fees for his general contractor's license for the biennial period 2006-2008. On October 20, 2006, Petitioner completed a four hour continuing education course in "core training." Petitioner testified that this credit was intended to be for the 2006-2008 biennial period. Prior to the renewal deadline of August 29, 2008, Petitioner requested and obtained from Respondent an extension of 30 days to submit proof of completion of continuing education credits for the 2006-2008 biennial period and payment of renewal fees for the 2008-2010 biennial period. 2008-2010 Biennial Period On September 29, 2008, Petitioner paid Respondent $209.00 as payment for renewal fees for his general contractor's license for the 2008-2010 biennial period. On September 28 and 29, 2008, Petitioner completed 14 hours of continuing education credit and submitted the certificates of completion for each course to Respondent with the notation "Please find Certificates of Completion for my G.C. license # CGC 059992 for 2006-2008." Respondent received the certificates of completion on October 1, 2008. These hours satisfied Petitioner's continuing education requirements for the 2006-2008 biennial period. On October 2, 2008, Petitioner's certified general contractor's license became "null and void."4 With knowledge that his contractor's license was considered null and void,5 Petitioner took 26 hours of continuing education credit between November 24, 2008, and August 7, 2009, and submitted his certificates of completion to Respondent. Respondent did not apply any of the 24 credits Petitioner earned between September 29 and December 11, 2008, to the 2004-2006 biennial period, nor was there any evidence that Petitioner requested Respondent to do so.6 In 2006, Petitioner's mother-in-law (Ms. Careaga) was diagnosed with degenerative dementia and began to deteriorate physically and mentally. From 2007 until her death on December 15, 2008, Ms. Careaga became immobile, more disoriented and confused, and required 24 hour supervision. Petitioner had a close relationship with his mother-in-law. Petitioner and Petitioner's wife became Ms. Careaga's 24-hour primary caregivers so she would not have to go to a nursing home. Petitioner continued to work full-time and serve as a primary caregiver until Ms. Careaga's death. During this period, Petitioner assisted other family members in closing down the restaurant that his mother-in-law had owned and operated. On January 12, 2011, Respondent denied Petitioner's application for the reinstatement of his general contractor's license. The Notice of Denial was not admitted as an exhibit in this proceeding. However, a "Notice of Intent to Deny," purporting to be the Respondent's proposed denial, was attached to the Petition for Formal Hearing. That Notice of Intent to Deny recites that the Petitioner's license expired due to "non payment" [sic] of renewal fees. That statement is incorrect. The license became null and void because of the deficient continuing education requirements for the 2004-2006 biennial period. The Notice of Intent to Deny also found that Petitioner failed to establish hardship within the meaning of section 455.271(6)(b). Petitioner is eligible to obtain a new license by retaking the licensure exam and by establishing that he is of good moral character and financially stable and responsible. His experience has been established by virtue of his prior license. Petitioner also holds licensure as an architect. That license also became null and void during the same time frame as his contractor's license. On February 17, 2011, the Florida Board of Architecture, considering the same facts described above, approved Petitioner's application for reinstatement of his architecture license.
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 denying Petitioner's application for reinstatement of his certified general contractor's license based on the hardship provision set forth in section 455.271(6)(b). DONE AND ENTERED this 22nd day of August, 2011, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 2011.
Findings Of Fact At all times pertinent to the allegations contained in the Administrative Complaint filed herein, Petitioner was licensed as a general contractor in Florida, holding license number CG CO20660, under which license he had qualified Custom Retail Contractors, Inc., and the Petitioner, Construction Industry Licensing Board, (Board), was the state agency charged with regulating the practice of contracting. On February 12, 1986, the Board entered a Final Order in its case number 0058164 in which it suspended Respondent's license to practice contracting for five years. This action was based on a finding that Respondent had violated several sections of the Standard Building Code in a contract to build several commercial buildings in Largo, Florida, and also had exhibited gross negligence or incompetency in several aspects of the job. Respondent was first made aware of the action of the Board in late March or early April, 1986 when his attorney, Mr. Gordon, told him he had received a copy of the Final Order. At that point, Respondent did not know there had been a hearing on his case, though he knew an action had been filed. Correspondence extracted from the files of DPR relating to Respondent, indicates that between March 11, 1986 and June 25, 1986, several phone calls and letters were exchanged between DPR legal personnel and Respondent's counsel regarding whether Respondent had been given notice that the initial Administrative Complaint against him had been filed. The complaint had been served by an investigator with DPR on Mr. Gordon who declined to accept service since he was counsel for Respondent's corporation and not Respondent, individually. The evidence further indicates that subsequent pleadings in that case were misdirected and misaddressed due to faulty addresses used by the Department which included erroneous street addresses and erroneous ZIP codes. The upshot of all this was that Respondent failed to submit an Election of Rights regarding the initial Administrative Complaint, and, after numerous attempts at communication by DPR, which included the posting of a notice of the Board hearing in the Clearwater, Florida newspaper, the Board ultimately held Respondent in default and entered the Final Order suspending his license as described above. In the Spring of 1986, however, while the communication and correspondence between DPR and Mr. Gordon was going on, Respondent was led to believe, he contends, that the Final Order was not dispositive of his status, that the status of his license was still undecided, and that he could continue to practice his profession. His reliance on advice of counsel was misplaced and works to his detriment here as it does not excuse his improprieties. Consistent with that understanding, on May 1, 1986, Respondent entered into a contract with Mr. Clarence P. Foster, owner of Clarence's, a lounge, restaurant and package store located in Clearwater, Florida, to remodel a patio outside the facility. Work was to include pouring a concrete slab in the drive- thru, constructing a block wall around the patio, installing lattice panels on top of the block wall, and placing planter boxes on two of the walls. The total contract price was $4,730.00 and on May 15, 1986, the manager of Clarence's issued a check in the amount of $1,730.00 payable to Tom Morgan, Respondent's associate. At the time of Respondent's negotiations with Mr. Foster, Mr. Foster indicated he was utilizing a contractor for the complete remodeling of his facility who did not want to do the patio work, and Respondent agreed to do it. After their contract was signed, Respondent dealt with Mr. Foster's manager who showed him the plans for the entire remodeling which, according to Respondent, included the patio. They were stamped by the contractor and had a permit number on them. Respondent contends he asked if that indicated permit included the entire project and claims he was told it did. Respondent also claims he advised Foster's manager that there was some problem with his contractor's license but was assured that the master permit already issued would cover any work done by him under the terms of the individual contract. After receiving the down payment from the manager, Respondent purchased the required materials, paying cash therefore, and started work. Respondent relates that at the very beginning, a violation was written by building inspectors for the failure of the electrical contractor to procure a permit for his portion of the work. When this was done, the contractor immediately got the required permit after the fact and continued with his work. This concerned the Respondent, however, and he requested the manager to bring the existing permit for the remodeling around to the area where Respondent was working where he posted it and covered it with cellophane. When the inspector subsequently came by to check Respondent's work, he asked where the permit for that portion of the construction was and Respondent pointed to the master permit. The inspector then indicated that that permit was only for exterior siding and when Respondent protested that decision, called his office and verified that fact. Upon being advised of this development, Respondent then took the plans he had been furnished and a copy of the permit to the building office and asked the clerk on duty what he had to do. According to Respondent, he was advised that he needed to get more plans prepared with a certificate that the work already done had been done to code. Respondent relates that in response to these instructions, he procured an architect to come and look at the job as it then stood. The architect reportedly thereafter drew up plans and certified the quality of the work already accomplished by Respondent and Respondent allegedly took this information to the building department where, on June 25, 1986, he applied for a building permit to do the work. At that time, according to Respondent, he advised the clerk he had a problem with his license and that all he wanted was a supplemental permit to finish the job. Approximately two weeks later, when passing the County building, Respondent stopped in at the building department office to check on the status of his permit. It was at this point that he first discussed the matter with Mr. Palmer, the plans examiner, who told him that his license had been suspended and that he could not receive a permit to do the work requested. Respondent returned to Mr. Foster and explained the situation to him. Mr. Foster turned the matter over to his manager who arranged for someone else to get the permit and complete the job. Respondent contends he was not trying to trick anyone or to contract without a license. He claims that at the time he entered into the agreement with Mr. Foster, he was unsure of the status of his license and he thought he had made that clear to everyone, including Mr. Foster and the people at the building office. Respondent contends that in his dealings with Foster he was attempting to deal as a subcontractor and not as a general contractor. The fact is, however, that the contract he entered into was a separate contract with Mr. Foster and failed to indicate any reference to subcontractor status. The agreement called for Respondent to be paid directly by Foster and not by the general contractor and his claim is, therefore, not believed. Respondent's protestations in this regard are without merit. Further, his story regarding the permit status is equally as unbelievable. As a qualified contractor, Respondent knew, or should have checked on, the limits of the permit issued and whether it would cover the work he was to do. Reliance on the representations of the non-contractor manager of Mr. Foster's facility as to the status of the permit was unreasonable and constituted gross negligence. Consequently, he was thereafter operating in violation of the local law which required a permit for this work. As a result of the ongoing negotiations between Respondent's counsel and counsel for the Board, on July 10, 1986, after the contract between Mr. Foster and Respondent had been entered into, Respondent and the Board entered into a Settlement Stipulation which called for amendment of the Final Order entered in the prior case and which provided for the payment of a fine of $1,000.00 within 30 days with the further stipulation that when the fine was paid, the previously imposed five year suspension would be set aside. In the event the fine was not paid, however, then the Respondent's license was to be relinquished to the Board. The Amended Final Order was sent by certified mail to the Respondent but was unclaimed because the address used by the Department was, again, incorrect. It must also be noted, however, that at the time the Board agreed to the settlement stipulation, it had available to it the report of investigation relating to the current Administrative Complaint. The Board either failed to consider it or chose to ignore it when it agreed upon a settlement to the former Administrative Complaint. It is also noted that the Board was aware of the difficulties involving service of process as early as August, 1986. At that time, Respondent received a certified letter from the Board Attorney indicating that final action on his license would be taken by the Board at its September, 1986 meeting in Ft. Lauderdale. Respondent attended that meeting where, after discussion, counsel for the Board convinced the Board to reopen the case due to the questions involving proper service of its former actions. A year later, in July, 1987, Respondent was advised that the reopened case would again be considered at the Board's meeting in Tampa, and at the 1987 meeting of the Board, it entered its Amended Final Order. Though regrettable, these factors are not controlling and do not affect this current action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that the Respondent's license as a general contractor in Florida be suspended for two years. RECOMMENDED this 11th day of July, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1999 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. For the Petitioner: 1 - 2. Accepted and incorporated herein. 3. Accepted and incorporated herein. 4 - 5. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. 10 - 13. Accepted and incorporated herein. Accepted that Palmer refused to issue the permit because Respondent's license had been suspended. Accepted and incorporated herein. Rejected that Respondent willfully violated local building code. Evidence shows more of gross negligence than willfulness. Accepted. For the Respondent: No submittal. COPIES FURNISHED: Belinda Miller, Esquire, Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0758 Fred H. Moore 12687 - 97th Street, North Largo, Florida 34643 Fred Seely, Executive Director DPR, Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
The Issue Whether Petitioner, William P. Pearson, Jr., is entitled to recover attorney's fees and costs pursuant to the Florida Equal Access to Justice Act, Section 57.111 Florida Statutes and Rule 221-6,35. BACKGROUND AND PROCEDURE At hearing, Petitioner presented the oral testimony of William P. Pearson, Jr. and had admitted five exhibits. Respondent presented the oral testimony of Richard Hartog, Investigator, and Douglas A. Shropshire, the Department of Professional Regulation's senior attorney for the prosecution of all Florida Construction Industry Licensing Board cases, and had admitted five exhibits. At close of formal hearing, Petitioner elected to make oral closing argument and to file no post-hearing proposals. Respondent elected to file a transcript of proceedings and written proposed findings of fact and conclusions of law within 10 days of filing transcript. Respondent's proposals are ruled on within the appendix to this recommended order pursuant to Section 120.59(2) Florida Statutes.
Findings Of Fact Petitioner seeks to recover attorney's fees and costs associated with his defense against charges contained in an administrative complaint filed and prosecuted by the Department of Professional Regulation which was styled, Department of Professional Regulation, Construction Industrv Licensing Board v. William P. Pearson, Jr., DOAH Case No. 85-0672. The administrative complaint in DOAH Case No. 85-0672 contained two counts. Count I alleged a violation of Section 489.129(1)(c) through violation of Section 455.227(1)(a) Florida Statutes (1983), which statutory section addresses making misleading, deceptive, or fraudulent representations in the practice of the profession of construction. Count II alleged a violation of Section 489.129(1)(d) Florida Statutes (1983) by not complying with the specific escrow requirements imposed by the consumer protection Statute, Section 501.1375(2) Florida Statutes and violation of Section 489.129(1)(m) Florida Statutes (1983), which latter statutory section addresses gross negligence, incompetence or misconduct in the practice of contracting. The state agency was therefore not a nominal party only but was an accusing and principal party. Petitioner seeks an award of attorney's fees in the sum of $3,568.75 together with costs of $11.10. Respondent, in its Amended Response to Petitioner's Amended Motion for Attorney's Fees and Costs, did not challenge the reasonableness of the attorney's fees and costs set forth in Petitioner's affidavit attached and incorporated in his Amended Motion and specifically stipulated to reasonableness and necessity at formal hearing. Accordingly, the foregoing amounts are found to be necessary and reasonable. Pearson Construction Co., Inc.'s domicile during the whole of DOAH Case No. 85-0672's initial prosecution was Charlotte County, Florida. It had no employees other than William P. Pearson, Jr. and his wife, who worked without compensation. William P. Pearson, Jr. was the president and qualifying agent of Pearson Construction Co., Inc. which was a Florida corporation at all times material to the initial prosecution. The combined net worth of William P. Pearson, Jr. and of Pearson Construction Co., Inc. never exceeded two million dollars and presently petitioner Pearson's personal net worth does not exceed two million dollars. In early 1986, prior to initiating this instant fee and costs recovery case, Mr. Pearson failed to update payment of his corporate fees and Pearson Construction Co., Inc. was automatically dissolved by the secretary of State. Respondent Department of Professional Regulation (DPR) notified John Vlasek of its intent to investigate his complaint against Petitioner in late July 1984. DPR's investigation was conducted by Investigator Richard Hartog. Mr. Hartog has been employed by the Respondent since November 1982 and has been its investigator since March 1983. He has a degree in criminal justice and 23 years prior experience as a detective with the Police Department of Nassau County, New York. Investigator Hartog was first made aware of vlasek's complaint against Pearson Construction Co., Inc. by way of a memorandum dated July 16, 1984 received directly from the State Attorney's Office for the 20th Judicial Circuit. Attached to the State Attorney's memorandum was a 6 page consumer complaint form signed by John A. Vlasek. Hartog determined that William P. Pearson, Jr. was the qualifying agent for Pearson Construction Co., Inc. and then telephoned DPR's complaint section in Tallahassee, giving the complaint section the basis of the information received from the State Attorney's Office and statutory citations for alleged violations of sections 489.129(1)(m), 455.227(1)(a) and 501.1375 Florida statutes. His purpose was to obtain a complaint number to continue the investigation. Investigator Hartog personally interviewed Petitioner William P. Pearson, Jr. regarding the allegations underlying Vlasek's complaint. Upon completion of the investigation the Department's investigator prepared an investigative report. The investigative report includes a narrative summary of the investigator's interview with Pearson. The investigative report prepared at the conclusion of Hartog's investigation contains the following findings with regard to the investigator's interview of Pearson: Mr. Pearson states he built a good number of homes a year. Last year he built thirty-nine (39) homes. Mr. Pearson was readvised of the allegations made by Mr. Vlasek, a prospective buyer of one of Pearson's spec homes. Mr. Pearson maintains the reason the house was not completed on June 12, 1984, the date originally stipulated in the contract, was the fact Mr. Vlasek was not in a hurry to have the house completed. Mr. Pearson stated he is not aware of the requirements of P.S. 501.1375, therefore, he did not handle the deposit according to the requirement set forth. The money was used to complete the spec house for Vlasek. Mr. Pearson states he received a letter from the First Federal Savings and, Loan of Charlotte County indicating Mr. Vlasek obtained an extension of his loan commitment with the bank. Mr. Malone, who was present, verifies that such a letter was received by Mr. Pearson. Investigator Hartog personally interviewed Barbara Lowe, a loan officer for the First Federal Savings and Loan of Charlotte County. The investigator interviewed Ms. Lowe to determine "whether the bank had, in fact, sent a letter to Mr. Pearson indicating that an extension to Mr. Vlasek's 45-day loan had been extended." The investigative report prepared at the conclusion of Hartog's investigation contains the following findings with regard to the interview of Ms. Lowe: Barbara Lowe, who states she handled the transaction, states no such letter was mailed to Pearson Construction. It would not be appropriate to grant an extension in this type of action. Mr. Vlasek would be required to enter into a separate agreement for an additional forty-five (45) days thereby nullifying the original commitent. This was not done by Mr. Vlasek, therefore, the original commitment expired 5/31/84. Investigator Hartog personally interviewed Tom Hannon, a loan officer with the First Federal Savings and Loan Association in Charlotte County. The investigative report prepared at the conclusion of Hartog's investigation contains the following finding: Mr. Hannon contacted this office to relate that the loan commitment obtained by Vlasek was for a period of forty-five (45) days between 4/19/84 and 5/31/84. There is no record a thirty (30) day extension was asked for or granted according to the records. Investigator Hartog personally interviewed Jack R. Malone who was a salesman for Pearson Construction Co., Inc. The investigative report prepared at the conclusion of Hartog's investigation relates that Malone stated the deposit money was not required to be deposited in an escrow account but when referred to section 501.1375 Malone stated money might have been given to an attorney, presumably for escrow, and further Malone related that: Mr. Vlasek became very impatient because he said very little was being done to complete his house. He was concerned because the terms of his loan agreement was a commitment which expired June 1, 1984. The completed investigative report as forwarded by the investigator to the Department's legal section consisted, in part, of the following: a three page narrative summary of the investigator' s findings; a copy of the memorandum and accompanying executed consumer complaint form; a First Federal savings and Loan Association loan transfer commitment to John and Madelyn Vlasek; a copy of section 501.1375, Florida statutes; a copy of the April 1984 contract between Pearson Construction Company and John and Madelyn Vlasek reflecting a completion date altered from June 12 to June 1, 1984. Douglas A. Shropshire was the DPR attorney responsible for reviewing the investigative report with regard to making a recommendation to the probable Cause Panel of the Construction Industry Licensing Board. The complaint against Petitioner was a "case of first impression" in that DPR had not previously investigated a complaint alleging a violation of the escrow requirement of Chapter 501, Florida Statutes. As a result of the complaint against Petitioner, Mr. Shropshire requested that a law clerk prepare a memorandum of law with regard to the relationship between Section 501.1375, Florida Statutes and the regulation of licensed contractors under Chapter 489 Florida Statutes. On or about September 21, 1984 the law clerk provided Mr. Shropshire with a two page memorandum of law exploring the relationship between Chapter 501, Florida Statutes and the regulation of the construction industry. The memorandum reached the general conclusion that licensed contractors were subject to the provisions of Chapter 501 Florida Statutes. In preparing his recommendation to the Probable Cause Panel, Shropshire reviewed both Hartog's investigative report with all attachments and the law clerk's memorandum of law. On January 10, 1985 DPR, through Mr. Shropshire, made a probable cause recommendation to the Construction Industry Licensing Board Probable Cause Panel. Prior to January 10, 1985 DPR had provided each panel member with a copy of the DPR's probable cause package. The probable-cause package as reviewed by the Probable Cause Panel consisted of the following: a cover sheet setting forth the Subject's name, case number and statutory violations; a proposed administrative complaint; a copy of the narrative portion of the Department's investigative report. The Probable Cause Panel did not review a copy of the Vlasek-Pearson contract which provided it was not contingent on financing, which provided for forfeit to Pearson of Vlasek's deposit upon Vlasek's default, and which provided for escrow of Vlasek's deposit pending closing of the transaction. However, this item was reviewed by the DPR attorney before making the probable cause recommendation and the copy of this item reviewed showed that the completion date had been altered, allegedly by Malone. Petitioner stipulated to the correctness of the procedure employed in impaneling the Probable Cause panel. Each panel member had the opportunity to review the probable cause package before the Probable Cause Panel was convened. Each panel member had the opportunity to familiarize himself with the probable cause materials prior to the meeting. The Chairman of the Probable Cause Panel was Mr. Roy Adams. Mr. Adams is a certified general contractor. The other probable cause member was Mr. Joseph Richards. Mr. Richards is a pharmacist and is a public member of the Construction Industry Licensing Board. Neither Mr. Richards nor Mr. Adams is an attorney. The Construction Industry Licensing Board is not involved in the investigation or prosecution of a complaint. In making the determination of probable cause the panel members discussed the allegations contained in the complaint with both DPR's prosecuting attorney and their independent advisor from the Department of Legal Affairs. On January 10, 1985 the Probable Cause Panel found probable cause to believe Petitioner violated Chapter 489, Florida Statutes. The panel's finding of probable cause included, but was not limited to, the violations alleged by DPR in its recommendation. The Probable Cause Panel directed DPR to file a formal complaint. On January 16, 1985 DPR's Secretary signed a formal administrative complaint charging Petitioner with violating the provisions of Chapters 455 and 489, Florida Statutes reviewed by the panel plus Section 489.129(1)(d) Florida Statutes. Petitioner denied all the allegations in the administrative complaint and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. On August 20, 1985 a formal hearing was conducted before the undersigned hearing officer. Petitioner interposed the defense that Section 501.1375 Florida Statutes did not apply to him because he had constructed less than 10 houses in the year 1984 despite constructing more than 20 homes per year in most years. Section 501.1375 provides in pertinent part as follows: "Building Contractor" means any person who, for compensation, constructs and sells one-family or two-family residential dwelling units, except for a person who sells or constructs less than 10 units per year state wide. "Developer" means either a building contractor who offers new residential dwelling units for sale or any person who offers a new one-family or two-family dwelling unit for sale except a person who sells or constructs less than 10 units per year state wide. The Recommended Order entered December 20, 1985 found as fact that: On April 12, 1984 John and Madelyn Vlasek contracted with Pearson Construction Company for the purchase of a home in Port Charlotte, Florida. . . .The contract specified a $2,000 escrow deposit on the purchase price of $68,500. On April 12, 1984, the Vlaseks provided Pearson Construction Company with $200 in cash toward the escrow deposit. On April 13, 1984, the Vlaseks provided Pearso Construction Company with a check in the amount of $1,800 toward the escrow deposit. The contract specified the deposit was to be held in escrow pending closing of the transaction. . . .The contract referred to above was not contingent on the buyer obtaining financing. However, the deposit was not placed in escrow as specified in the contract and as required under the terms of the contract. Instead, it was used by the Respondent in purchasing lighting fixtures, carpeting, tiling and other accoutrements in colors and styles selected by John R. Vlasek. On April 23, 1984, the Vlaseks executed the loan transfer commitment. . . .After executing the loan transfer commitment, Vlasek realized that the commitment would expire prior to the June 12, 1984 closing date. Vlasek then notified Pearson Construction Company of the discrepancy between the expiration date of the loan commitment and the actual closing date. Upon being informed of the discrepancy, Jack R. Malone agreed to modify the closing date. Malone expressly modified the contract by changing the closing date from June 12 to June 1, 1984. Vlasek subsequently informed the Respondent of the change of the closing date. When informed of the change, Respondent indicated the home would be substantially completed by June 1, 1984. . . .Vlasek was repeatedly assured by Malone and other members of the construction team (not Pearson) that the home would be completed by June 2, 1984. . . .the Vlasek contract was rescinded . . .Pearson Construction Company, Inc. and William P. Pearson constructed a total of 8, possibly 9 houses during the calendar year of 1984. In most previous years he has constructed in excess of 20 houses per year. The findings and conclusions of law of the recommended order are replete with analyses of credibility of witnesses. The conclusions of law discuss such diverse legal concepts as the differences in actual versus apparent authority and ratification of an agent's/employee's misrepresentations by his employer, reasonable reliance thereon, and whether section 501.1375 should be applied annually (10 houses constructed per year) or upon a pattern of annual house construction (8-9 houses in 1984 versus more than 20 houses each previous year). The recommended order determined that DPR had failed to establish Count I (misleading, deceptive or fraudulent representations) by clear and convincing evidence and found only a "minimal" violation of Section 429.129(1)(m) had been established within Count II due to the petitioner's failure to escrow. By Final Order dated March 17, 1986, the Board adopted the findings of fact in toto. The final order rejected the conclusions of law and dismissed the administrative complaint. No evidence was introduced to indicate or otherwise explain why the Board rejected the hearing officer's conclusions of law.
