The Issue The issues are whether Mr. Ranne is guilty of gross negligence, incompetence or misconduct in the practice of contracting in connection with roofing repairs done on a residence in Sunrise, Florida, and whether he willfully violated the local building code by failing to obtain a building permit or calling for inspections of his work.
Findings Of Fact Mr. Ranne is a certified roofing contractor who holds license number CC C018984. On or about June 13, 1985, Mr. Ranne contracted with Town and Country Title Company to inspect the roof of a home located at 9310 best 43rd Manor in Sunrise, Broward County, Florida. The inspection was requested by the title company in connection with the sale of the home from a Mr. Wilhelmi to Mr. and Mrs. Schroeder. Mr. Ranne performed the inspection and on June 13, 1985, submitted to the title company an invoice, containing the findings of his inspection. Mr. Ranne indicated that: five (5) portions of the upper flat deck of the roof needed repair, three (3) areas needed wood replacement, and the outer edges of the upper flat deck showed cracking, wood needed to be replaced and a leak needed to be repaired on the outer edge of the lower flat deck of the roof, and approximately eight (8) tiles on the peaked roof had been crushed and needed to be replaced. The seller, through the title company, hired Mr. Ranne to repair the roof before the sale closed. Mr. Ranne worked on the roof, and submitted a bill to Town and Country Title Company on June 19, 1985, stating that all of the work set out on his June 13, 1985, report had been completed. Mr. Ranne was paid for his inspection service and for the repairs through a check drawn on the account of Town and Country Title Company. Fifty dollars was paid for the inspection and $775.00 for repairs. The funds for roof repair work came from the seller of the house. Shortly after the home was purchased by the Schroeders, they experienced leaks in the roof. These leaks not only occurred in the upper and lower flat deck portions of the roof which had been repaired, but also in another part of the roof. A leak occurred in the entrance hallway. Water flowed down inside a wall and wet the entrance hallway carpet. The Department's evidence was not clear and convincing that a leak existed in a valley formed where two portions of the peaked, shingled roof joined when Mr. Ranne inspected the roof. When Mr. Ranne was asked to come back to the home, Mr. Schroeder not only complained about the leak in the entrance way caused by the roof leak in the valley; other leaks on the upper and lower flat roofs, which Mr. Ranne had repaired, were discussed. I accept the expert testimony of Mr. Sipes that his October 1985, inspection of the roof disclosed that the repair work on the lower flat roof had been incomplete and was causing leaking at that time. Neither the Schroeders nor anyone else had worked on the roof in the interim between Mr. Ranne's work and the Sipes inspection. The work Mr. Ranne did was incomplete in that the gravel had been scraped back from this built up tar and gravel roof in the area where repair was done but the gravel had not been put back in place, which is necessary to properly complete the repair. There was also a 4 foot length of damaged wood on the north overhang of that roof which had not been replaced and had been rotting for over a year, and therefore should have been repaired. On the inspection report, Mr. Ranne had recorded a leak on the outer edge of the lower flat roof and noted that wood there needed replacement. No repair had been done on the upper flat deck roof, which by the time of Mr. Sipes inspection had deteriorated to the point where the felts of the roof were exposed and therefore could no longer be repaired. The upper roof could not have deteriorated from an acceptable condition to what Mr. Sipes found in the interim between the work Mr. Ranne did or should have done in June and the time of Mr. Sipes inspection on October 23, 1985. I also accept the expert opinion of another roofer, Mr. Loden, who inspected the roof in June of 1986, approximately a year after Mr. Ranne's work. (Mr. Sipes had not been hired to make the repairs which he had thought appropriate when he inspected the roof in October of 1985.) Loden agreed that the upper flat deck roof was completely worn out and, by its condition, must have been worn out for approximately three (3) years. Loden also found that on the lower deck where there had been a partial replacement of the roof decking, 3/8 inch sheet plywood had been used while the rest of the roof was 1/2 inch roofing. Because the replacement wood was not thick enough this had caused water to pond in the area where the wood had been replaced which in turn caused that roof to leak. Mr. Ranne had not gotten a permit for the roofing work that he did in June, 1905. According to Section 301.1(k) of the Broward County edition of the South Florida Building Code, a permit was required because the repair exceeded $300.00 in the value of labor and materials. Mr. Ranne thought that the owner of the home (who was not then Mr. Schroeder, but a Mr. Wilhelmi, who sold the home to Schroeder) had obtained the permit. Mr. Wilhelmi had not done so and Mr. Ranne never saw a permit posted when he did his work, although posting was required. Neither did Mr. Ranne have his work inspected by a building official; he did not believe that an inspection was required for the repair he was doing. An inspection was required, however, by Section 3401.1(b) of the 1984 Broward County edition of the South Florida Building Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Mr. Ranne be fined $1,000.00 as a penalty for fraud in charging for repairs on the upper flat roof which were not done, $500.00 for the incompetent inspection of the upper flat roof which failed to advise the parties to the sale transaction that the upper roof needed to be replaced and $500.00 for the incompetent work done on the lower flat deck roof. He should also be placed on probation for one year. DONE AND ORDERED this 24th day of March, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 24th day of March, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1773 The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985), on the proposed findings of fact submitted by the parties. Rulings on Proposed Findings of Fact Submitted by Petitioner Covered in Finding of Fact 1. Covered in Finding of Fact Although the real estate salesman, Ruth Ozkell, initially contacted Mr. Ranne, the proposals and bills show that the other party to the transaction was Town and Country Title Company. Covered in Finding of Fact 3. Rejected because there is no showing that the Schroeders were directly involved in the hiring of Mr. Ranne to perform his inspection. Rejected as unnecessary. Rejected as unnecessary. Covered in Finding of Fact 3. Covered in Finding of Fact 6. Rejected as unnecessary. Rejected as unnecessary. Covered in Finding of Fact 4. Covered in Finding of Fact 4. Covered in Finding of Fact 4. Rejected as unnecessary. Covered in Finding of Fact 4. Covered in Finding of Fact 9. Covered in Finding of Fact 6. Covered in Finding of Fact 4. Covered in Finding of Fact 4. To the extent relevant, covered in Finding of Fact 5. Rejected as unproven. Rejected as unproven. Rejected as unnecessary. Rejected as unnecessary. Covered in Finding of Fact 7. Rejected as unnecessary. Rejected as unnecessary, but implicit in the findings made. Rejected as unnecessary. To the extent appropriate, covered in Finding of Fact. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Covered in Finding of Fact 8. Covered in Finding of Fact 8. Covered in Finding of Fact 8. Rejected as unnecessary. Rejected as cumulative. Covered in Finding of Fact 8. Covered in Finding of Fact 8. Covered in Finding of Fact 8. Covered in Finding of Fact 8. Covered in Finding of Fact 8. Covered in Finding of Fact 8. Covered in Finding of Fact 8. Covered in Finding of Fact 8. Covered in Finding of Fact 8. Covered in Finding of Fact 3 Rejected as unnecessary. Covered in Finding of Fact 9. Covered in Finding of Fact 9. Covered in Finding of Fact 9. Covered in Finding of Fact 9. Covered in Finding of Fact 9. Covered in Finding of Fact 9. Covered in Finding of Fact 9. Covered in Finding of Fact 9. Covered in Finding of Fact 9. Covered in Finding of Fact 9. Covered in Finding of Fact 8. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Adopted in Finding of Fact 10. Adopted in Finding of Fact 10. Adopted in Finding of Fact 10. Adopted in Finding of Fact 10. Rejected as unnecessary. Adopted in Finding of Fact 10. Rulings on Proposed Findings of Fact Submitted by Respondent 1-3. Not applicable Covered in Finding of Fact 1. Covered in Finding of Fact 2, but the documents indicate the contract was with Town and Country Title Company, not with the realty firm. Covered in Finding of Fact 3. Covered in Finding of Fact 4. Covered in Finding of Fact 4. Covered in Finding of Fact 4. Covered in Finding of Fact 4. Covered in Finding of Fact 4. Rejected as irrelevant. Covered in Finding of Fact 6. Rejected as irrelevant. To the extent relevant, covered in Finding of Fact 6. Rejected as irrelevant. 17-31. Rejected as recounting of testimony rather than findings of fact. COPIES FURNISHED: David R. Terry, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Peter N. Hanna, Esquire 500 S.E. 12th Street Fort Lauderdale, Florida 33316 Fred Seely, Executive Director Construction industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joe Sole, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Respondent violated provisions of Chapter 75-489, Laws of Florida, as amended, as more specifically alleged in Administrative Complaint dated February 10, 1992.
Findings Of Fact At all times relevant hereto Respondent was licensed by Petitioner as a certified building contractor having been issued license C-608, and was qualifying agent for Bay City Builders, Inc. Bay City Builders, Inc., entered into a contract to add four bedrooms and two baths to a residence in Dunedin, Florida, being used as an Adult Congregate Living Facility (ACLF) (Exhibits 1 and 2), at a price of $32,000. The contract provided, inter alia, that the contractor would provide all permits and fees directly associated with the project. Upon signing the original contract on September 26, 1991, the owner paid Bay City Builders $3200 (Exhibit 3). On October 8, 1991, the owner paid Bay City Builders an additional $7200 (Exhibit 3) when the plans were presented to the owner. Prior to the issuance of the permit for this project, Bay City Builders poured the footing for the building addition. The permit application was signed by Respondent. After entering into the contract, Bay City Builders found there was an impact fee involved, the project was never completed and was subsequently abandoned. Bay City Builders prepared a second contract for this project which increased the price to $41,789 (Exhibit 5) and presented this to the owner who did not accept the new contract. Respondent admits that he was the qualifying contractor for Bay City Builders, and the permit was pulled under his license, but contends he had nothing to do with the financial arrangements between Bay City Builders and the owner. Respondent was paid a flat fee by Bay City Builders for obtaining permits under his license for work Bay City Builders contracted to perform. He occasionally visited the sites where work was being performed by Bay City Builders. Bay City Builders is not licensed. The permit for the ACLF addition was applied for on November 1, 1991, but was not issued by the City of Dunedin until February 13, 1992 (Exhibit 6). It could have been picked up any time after November 30, 1991. On September 5, 1991, Bay City Builders entered into a contract with an owner living in Seminole, Florida, to replace the roof over a rear porch of this residence for a total price of $900. (Exhibit 8) This was a flat roof, and the initial intent was to replace the tar and gravel roof with tar and gravel. At the time construction started on September 11, 1991, the person doing the installation used a rubberized roof, which was satisfactory to the owner and gave the owner a 5 year unconditional warranty. Respondent's license does not authorize him to reroof an existing building, and no permit was applied for to perform this job. No certified roofer was engaged to do this reroofing, the rubberized compound applied to the roof was improperly applied and the roof started leaking when the first rain came. Workers from Bay City Builders came to the residence several times to attempt to patch the leaks, but the leaks persisted. Ultimately, the owner had to employ a qualified roofing contractor to redo the roof. While Bay City Builders was attempting to stop the leaks, the ceiling over the porch was also ruined and had to be replaced. In his testimony, Respondent admitted that he was the sole qualifying contractor for Bay City Builders, that his function was to give Bay City Builders a price estimate for the work intended, including the ACLF addition, but the owner of Bay City Builders entered into a contract for $5000 less than Respondent's estimate for the ACLF. Respondent also acknowledged that Bay City Builders, acting under Respondent's license, entered into contracts for some 150 jobs, but that Respondent was told or learned of only 60 of these projects. Respondent was paid a fixed fee by Bay City Builders for each permit obtained, and he prepared estimates of cost.
Findings Of Fact The following findings of fact, stipulated to by the parties, are hereby accepted: On January 7, 1993, Beacon pled guilty to the commission of a public entity crime as defined in subsection 287.133(1)(g), Florida Statutes. The plea was entered in the United States District Court for the Middle District of Florida, Jacksonville Division (Case No. 92-279-CR-J-20). On the basis of such plea, Beacon was convicted by judgment dated April 28, 1993 of making and causing to be made a false statement to a Department of the United States, in violation of 18 U.S.C. Sections 1001 and 1002, and was placed on two years probation. The facts surrounding the conviction are as follows: Beacon pled guilty to knowingly making a false statement on a certified payroll report form to the Federal Aviation Administration on August 20, 1987. The plea related to a renovation project at the Daytona Beach Airport funded in part by the U.S. Department of Transportation through the Federal Aviation Administration. Federal regulations required that a portion of the renovation work have minority business participation. On April 3, 1987, R&R construction and Suppliers of Jacksonville, Inc. ("R&R") won an $81,800 contract to do a portion of the lightweight concrete roofing work. R&R, which had been active since February 19874, was qualified as a disadvantaged business enterprise and a minority business enterprise. On the same day that R&R won the contract, it subcontracted the work to the Orlando division of beacon, known as "Commercial Roof Decks of Orlando." On August 20, 1987, R&R submitted a false certified payroll report form stating that it was responsible for supervising and paying the employees performing the roof construction work on the Daytona Beach Airport. In fact, employees of Commercial Roof Decks of Orlando aided and abetted R&R in submitting the false payroll form. Neither the home office of Beacon in Jacksonville nor the executive officers, directors or principal shareholders of Beacon knew about the falsification. Attached as Exhibits 1-1, 1-2, 1-3, and 1-4 are copies of the Plea Agreement, Judgement (including Sentence), Information and Pre-sentence Investigation Report relating to the conviction. Pursuant to paragraphs 287.133(3)(a) and (b), Florida Statutes, Beacon made timely notification to the Department and provided details of the conviction. On December 9, 1992, prior to the filing of the Plea Agreement with the United States District court for the Middle District of Florida on December 18, 1992, Beacon, through its undersigned attorneys, Foley & Lardner, advised the Department by telephone and by confirming letter of the Plea Agreement and of Beacon's intent to cooperate with the Department in the investigation of Beacon's guilty plea to a public entity crime as defined in Subsection 287.133(1)(g), Florida Statutes. A copy of that letter is attached as Exhibit 2-1, along with copies of subsequent correspondence dated January 13, 1993 (Exhibit 2-2), February 18, 1993 (Exhibit 2-3), March 15, 1993 (Exhibit 2-4), May 7, 1993 (Exhibit 2-5), and June 9, 1993 (Exhibit 2-6) apprising the Department of the course of the proceeding, including pre-sentence investigation, sentencing and judgment, and responding to the Department's requests for additional information. On January 4, 1994 the Department issued a notice of intent pursuant to Subparagraph 287.133(3)(e)1., Florida Statutes, a copy of which is attached as Exhibit 3. On January 18, 1994 pursuant to Subparagraph 287.133(e)2., Florida Statutes, Beacon timely filed a petition for formal administrative hearings pursuant to subsection 120.57(1), Florida Statutes, to determine whether it is in the public interest for beacon to be placed on the State of Florida Convicted Vendor List. A copy of Beacon's petition is attached as Exhibit 4. Subparagraph 287.133(e)3., Florida Statutes, establishes factors which, if applicable to a convicted vendor, will mitigate against placement of that. vendor upon the Convicted Vendor List. Subparagraph 287.133(e)3.d., Florida Statutes, established [p]rompt or voluntary payment of any damages or penalty as a result of the conviction" as a factor mitigating against placement on the Convicted Vendor List. As part of its Plea Agreement (see paragraph 3 of Exhibit 1-1), Beacon agreed to pay $17,480, half of the amount received by R&R on a total of eight projects, including the Daytona Beach Airport project, for which Commercial roof Decks of Orlando actually performed the work although the contracts were in the name of R&R. Such amount was paid on December 9, 1992. A copy of Beach's restitution check is attached as Exhibit 5. The U.S. government did not impose any further financial penalties or fines. Subparagraph 287.133(3)(e)3.e., Florida Statutes, establishes "[c]ooperation with state or federal investigation or prosecution of any public entity crime" as a mitigating factor. When Beacon learned of the U.S. government's investigation of the wrongdoing described above, it cooperated fully with the investigation. Paragraph 9 of the Pre-sentence Investigation Report attached as Exhibit 1-4 states that Beacon "has voluntarily produced documents and made its personnel available for interviews concerning the instant offense." Production of documents and employee interviews all were conducted without subpoenas. Beacon fully cooperated with the Department of Management Services in connection with its investigation initiated pursuant to Section 287.133, Florida Statutes. See Exhibits 2-1 through 2-6 regarding information Beacon supplied to the Department. Subparagraph 287.133(3)(e)3.f., Florida Statutes, establishes "[d]isassociation from any other persons or affiliates convicted of the public entity crime" as a mitigating factor. The officer in charge of Beacons Commercial Roof Decks of Orlando division at the time of the Daytona Beach Airport project is no longer employed by Beacon, and the Orlando division has been closed. See Paragraph 6 of the Pre-sentence Investigation Report in Exhibit 1-4. Subparagraph 287.133(3)(e)3.g., Florida Statutes, establishes "[p]rior or future self-policing by the person or affiliate to prevent public entity crimes" as a mitigating factor. At the time of the illegal conduct that was the subject of Beacon's conviction, each of Beacon's divisions operated relatively autonomously under the direction of its own division manager. Beacon's home office in Jacksonville subsequently realized that too much autonomy had been given to the various divisions of Beacon located outside of Jacksonville. All operations, including those of the former Tampa as well as Orlando divisions, are now centralized in Beacon's home office in Jacksonville, under a revised organizational structure in which senior management can exercise more close supervision over daily business functions. Subparagraph 287.133(3)(e)3.h., Florida Statutes, establishes "[r]einstatement or clemency in any jurisdiction in relation to the public entity crime at issue in the proceeding" as a mitigating factor. Beacon received a suspended sentence, plus two years probation (see the Judgement in Exhibit 1-2). As part of its Plea Agreement, Beacon agreed to a one year voluntary exclusion under Title 49, Code of Federal Regulations (part 29), from all primary and lower tiered federal contracts and subcontracts beginning January 1, 1993. See Paragraph 6 of the Plea Agreement in Exhibit 1-1. Upon compliance with such one year voluntary exclusion, Beacon will be eligible to enter into federal contracts without any requirement of seeking reinstatement or clemency. Subparagraph 287.133(3)(e)3.i., Florida Statutes, establishes "[c]ompliance by the person or affiliate with the notification provisions of paragraph (a) or paragraph (b) as a mitigating factor. See paragraph 8 above for information concerning prompt notice given by Beacon to the Department of its plea agreement and the numerous occasions it subsequently contacted the Department and provided it with additional information. Subparagraph 287.1133(3)(e)3.j., Florida Statutes, establishes "[t]he needs of public entities for additional competition in the procurement of goods and services in their respective markets" as a mitigating factor. Beacon is the sole provider in Florida of certain products that allow it to offer very competitive prices. It is the exclusive provider in Florida of Merchant and Evans metal products and Decrabond roofing tiles. Beacon also is the exclusive agent in the North Florida region offer Loadmaster Roof Deck Systems and American Building Components. As one of the larger competitors in its market, Beacon also is able to achieve efficiencies that it is able to pass on to its customers. Public entities in the State of Florida would be deprived of a competitive source of commercial roof and wall systems if Beacon were to be placed on the Florida Convicted Vendors List. Subparagraph 287.133(3)(e)3.k., Florida Statutes, establishes "any demonstration of good citizenship" as a mitigating factor. Beacon notes the following mitigating factors in this regard: Beacon has contributed approximately $28,000 in metal roofing work for the Disney World facility of Give Kids The World, a charitable organization devoted to granting the wishes of terminally ill children. Attached as Exhibit 6 is a letter dated February 9, 1993 from Welbro Constructors, Inc. regarding Beacon's work on behalf of Given Kids The World. To the extent that its finances permit, Beacon plans to continue its work on behalf of this charitable organization. Beacon is a member of the Jacksonville Chamber of Commerce and is a member and supporter of the local public broadcasting station. Beacon also feels a responsibility to its employees, consisting of 30 salaried individuals and 72 to 100 hourly employees. Beacon has been attempting since 1988 to create an employee stock ownership plan ("ESOP") which would buy the shares of Donald C. Works, Jr., a 50 percent shareholder of Beacon, consummation of the ESOP is subject to receipt of necessary financing and approval of Beacon's bonding companies. The ESOP would provide a mechanism for Mr. Works, one of the original founders of Beacon's business, to obtain liquidity for his investment in the corporation in connection with his retirement while simultaneously furnishing an incentive to Beacon employees by giving them an equity stake in the business. The ESOP would be a tax-qualified plan under the Employee Retirement Income Security Act of 1974. All full time employees of Beacon who meet minimum service requirements (e.g., one year of continuous full time employment) would receive stock under the plan, based on their relative annual compensation. Increases in the value of the business would be reflected in the buy-out price of their stock upon their retirement from the company. This Joint Stipulation provides a full and complete factual basis for determining whether Beacon should be placed on the convicted vendor list. In light of the facts and the criteria set forth in Subparagraph 187.133(3)(e)3.a. through k., Florida Statutes, there are no disputed issues of material fact between the Department of Management Services and Beacon which would require a formal hearing.
Findings Of Fact Respondent, Peagler, applied for a permit from the Department of Environmental Regulation to install 21 pilings and repair approximately 120 feet of deteriorated seawall at its present location and to remove 7 existing mooring pilings. The 21 mooring piles would be placed in three rows at 40 foot centers, parallel to the existing shoreline and extending no more than 120 feet waterward. On May 24, 1977, the Department gave notice of its intent to issue a permit/certification pursuant to Chapters 403 and 253, Florida Statutes, and Section 401, Public Law 92-500. Petitioner, an adjacent property owner, then filed a petition for a Section 120.57, Florida Statutes, hearing. Petitioner's primary objections were that the project would substantially affect vessel ingress and egress on his property and interfere with navigation in the waters of Garrison Bight. Before the hearing commenced, Petitioner and Respondent, Peagler, reached a compromise. The Department had no objection to the terms, which have been incorporated into the Joint Settlement signed by all the parties and incorporated herein as Exhibit "A".
Findings Of Fact At all times pertinent to this proceeding, Respondent, August Nocella, was a certified aluminum contractor having been issued license number C-3197. Respondent was the certified contractor for Allied Aluminum Company (Allied Aluminum), 1017 Robinson Drive, St. Petersburg, Florida. On March 28, 1994, Mr. Tim Connolly contracted with Allied Aluminum to build a screen enclosure on an existing second floor deck. The screen enclosure was to be constructed at Mr. Connolly's residence located at 2200 Park Street, St. Petersburg, Florida, at a cost of $2,897.00. The proposal submitted to Mr. Connolly by Allied Aluminum on March 28, 1994, contained an option under which a third floor wood deck would be constructed for $2,000.00. Pursuant to the proposal, Mr. Connolly had ninety days in which to exercise this option. The proposal stated in part the following: <90 days from March 28, 1994, build wood deck approximately 400 square feet at $2,000> The proposal was not prepared or signed by Respondent, but by an employee of Allied Aluminum. The inclusion in the proposal of the option and estimate for construction of a deck was done without Respondent's knowledge or direction. Pursuant to the contract between Allied Aluminum and Mr. Connolly, the screen enclosure was constructed. The construction project began on April 28, 1994, and was completed on May 3, 1994. There is no proof that Respondent did not comply with the terms of the agreement, that the construction of the screen enclosure was not performed in a workman like manner, or that the work did not conform to existing building codes. The Standard Building Code, the code adopted by Pinellas County and applicable to construction projects in St. Petersburg, required that a contractor submit building plans and obtain a building permit prior to initiation of a construction project. Respondent applied for and secured a building permit for construction of the screen enclosure on May 31, 1994, four weeks after the project was completed. Plans for the screen enclosure were submitted with Respondent's application for the building permit. Respondent was assessed and paid $44.00 for the building permit. The Standard Building Code also required that the certified contractor call for an inspection of the construction project within six months of the completion date. Respondent completed the screen enclosure on or about May 4, 1994, but never called for an inspection of the work. At some point in April or May 1994, Mr. Connolly informed Respondent that he wanted the wood deck built under the terms and conditions set forth in the March 28, 1994 proposal. Respondent immediately told Mr. Connolly that he could not construct the third floor deck. Upon being informed by Respondent that he could not build the wood deck, Mr. Connolly insisted that Respondent find someone to construct the third floor deck pursuant to the terms in the proposal. Mr. Connolly threatened to withhold payment from Respondent for construction of the screen enclosure if Respondent failed to locate someone who could construct the deck at or below the price quoted in the proposal. Mr. Connolly followed through on his threats regarding payment to Respondent. On or about May 23, 1994, Mr. Connolly wrote a check to Respondent to pay for construction of the screen enclosure, but subsequently stopped payment on the check. In an effort to receive payment for construction of the screen enclosure and to appease Mr. Connolly, Respondent attempted to locate a builder who would construct the third floor deck. After looking in the St. Petersburg Telephone Directory, Respondent called several companies listed as builders of decks. Decked Out Construction, Inc. (Decked Out) was one of the companies contacted by Respondent on behalf of Mr. Connolly. The telephone directory entry for Decked Out contained a license number for the company as well as the address and telephone number of the business. Respondent interpreted the published license number as evidence that Decked Out was qualified to perform the type of work under which it was listed. No evidence was presented indicating that Decked Out was not so licensed. On or about May 23, 1994, Decked Out sent Randy Miller to Mr. Connolly's residence to determine if it could construct the deck and, if so, to give an estimate. Mr. Miller determined that Decked Out would be able to construct the third floor deck for a cost within the price range quoted in the March 28, 1994 proposal. After Respondent was informed by Randy Miller that Decked Out could construct the deck for the amount stated in the March 28, 1994 proposal, there was no further contact between Respondent and Mr. Miller. All communication regarding construction of the wood deck at 2200 Park Street North was between Mr. Connolly and Mr. Miller. The deck was constructed by Decked Out on or about May 26, 1994, at a cost of $1010.00. The construction project took about one day. The $1010.00 payment for construction of the third floor deck was given directly to Mr. Miller by Mr. Connolly. There is no evidence that Respondent's certificate as an aluminum contractor has been subjected to disciplinary action on any prior occasion by Petitioner. The normal penalty imposed for a contractor's failure to obtain a building permit prior to beginning a project is payment of twice the amount of the permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is therefore: RECOMMENDED that the Pinellas County Construction Board enter a Final Order finding Respondent, August Nocella, guilty of violating Chapter 89-504, Section 24(2)(d) and (n), Laws of Fla., and imposing a total fine of $144.00, $44.00 for failure to timely obtain a building permit, and $100.00 for failure to call for an inspection of the project. RECOMMENDED that Count III and COUNT IV of the Administrative Complaint be DISMISSED. DONE and ENTERED this 26th day of February, 1996, in Tallahassee, Florida. CAROLYN S. HOLIFIELD, 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 26th day of February, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3515 To comply with the requirements of Section 120.59(2), Fla. Stat. (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Accepted and incorporated. Accepted and incorporated except to extent unnecessary, irrelevant, or immaterial. Second sentence rejected as to the request that was made on April 20, 1995. The evidence shows that an inspection, not a permit, was requested on that date. Rejected as not supported by the greater weight of the evidence. Accepted as to statement that Respondent provided name of firm that would construct project in accordance with proposal amount. Statement that the firm or person was unlicensed is rejected as not supported by competent and substantial evidence. Second sentence is rejected as not supported by competent and substantial evidence, and by the greater weight of the evidence. COPIES FURNISHED: William J. Owens, Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road, Suite 102 Largo, Florida 34643-5116 John E. Swisher, Esquire 669 First Avenue North St. Petersburg, Florida 33701 Howard Bernstein Senior Assistant County Attorney Pinellas County 315 Court Street Clearwater, Florida 34616
Findings Of Fact At all times relevant hereto, Respondent, Roger S. Williams, held registered building contractor license number RB0026339 issued by Petitioner, Department of Professional Regulation, Construction Industry Licensing board, authorizing him to perform contracting under his individual name. Respondent, Frederick S. Schreiner, held certified general contractor's license numbers CG C004811 and CG CA04811 also issued by Petitioner authorizing him to perform contracting under his individual name and under Cape Development Corporation. Williams served as president of Architectural Builders, Inc. (ABI), a development firm located in Palm Bay, Florida. Schreiner was engaged in the contracting business generally in the Brevard County, Florida area. He has done construction work for ABI and Williams for the past eight or nine years. ABI held no licenses from either the state or local governments. On October 31, 1979, ABI entered into a construction contract with Jack and Stella Oleksy to construct a home at 842 South Becker Street, Palm Bay, Florida. The contract was approved by R. S. Williams as president of ABI. At a later undisclosed date, Williams attempted to pull a City of Palm Bay building permit on behalf of ABI. Whether the City gave formal or informal approval at that point is not clear; in any event the construction of the home began shortly thereafter. Several weeks later the City's chief building official told Williams that because he did not have local competency with the City, he could not pull a permit for a job. Williams was also advised that a recent change in state law required ABI to qualify to do business if ABI intended to construct homes within the City. When told that Frederick Schreiner would be constructing the home for ABI and that Schreiner held an appropriate license, the City official told Williams to have a construction contract executed between ABI and Schreiner to build the home. Thereafter, Schreiner pulled a permit for the job and posted it on the building site. He also gave the City a contract executed by he and ABI and which was dated November 29, 1979. During the course of the construction, Schreiner visited the building site approximately six to eight times. The work was done entirely by subcontractors who had been used on other construction jobs by Williams and Schreiner. The subcontractors were paid by ABI but worked under the supervision of Schreiner. When the job was completed Williams signed the final payment affidavit on which it was indicated that Williams was the contractor on the job. Oleksy was on the site daily to inspect the work. He complained periodically about various aspects of the job to Roger Williams. His main complaint concerned the trusses on the roof which he contended were out of alignment causing a wavy and uneven roof line. After the house was essentially completed, Oleksy lodged a complaint with Williams concerning the workmanship on the roof. Williams sent a carpenter to visit the premises who found some "variations" and worked for approximately three hours to correct the problem. He was then told by Oleksy it looked okay. Within the next few days, Oleksy again complained to Williams that the roof was wavy. Williams then sent out a roofing crew to attempt to correct the problem. After they completed their work, Williams received no further indication that the owner was unhappy. Williams later had a local relator familiar with the subdivision and an experienced carpenter who had framed more than 150 homes to view the roof. Both concluded the roof was of good workmanship and of similar quality to other homes in the neighborhood. Oleksy later filed a complaint with the City of Palm Bay concerning his roof. The City sent its chief building official to inspect the home. He described the roof as being of "poor workmanship". The same conclusion was reached by the city building inspector who also inspected the property. Because of this, the City made the notation "Hold problem roof" in its file and did not issue a certificate of occupancy to Oleksy. However, the City did not construe the roof to constitute a violation of the building code. Respondents asserted that a 1979 change in the law as to the qualification of agents caused doubt and confusion as to what was required by ABI and Williams. They also point out that if indeed a violation occurred, it was not intentional. Rather, Respondents simply desired to comply with all applicable statutes and regulations so that their construction businesses could continue to operate in a lawful manner. Other than the alleged violations herein, Respondents were not shown to have been subject to any prior disciplinary proceedings.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent, Roger S. Williams, be found guilty as charged in Count I, and be given a public reprimand. the remainder of the charges should be dismissed. It is further RECOMMENDED that Respondent, Frederick L. Schreiner, be found guilty as charged of all allegations except willfully and deliberately violating a state law, and be given a public reprimand. DONE and ENTERED this 29th day of June, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1982.
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaints and, if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency charged with regulating the construction industry within the State of Florida. At all times material to the allegations of these cases, the Respondent was licensed by the Department as a certified general contractor, license number CG C007009. Additionally, due to the time period from which the Respondent held his license he was "grand- fathered" to perform roofing construction. The Respondent was the qualifying agent of O. Benitez & Associates, Inc., a Florida corporation. On November 13, 1997, the Respondent executed a contract with Maricel Alayon to construct a terrace for a home located at 1215 West 82nd Street, Hialeah, Florida. While Ms. Alayon referred to the structure as a "terrace," it was to be a covered (roofed) open porch attached to her home at the rear of the property. The price for the addition was $14,125.00. The contract that was prepared by the Respondent for Ms. Alayon's signature did not contain the Respondent's license number or a written notice of the consumer's rights under the Construction Industry's Recoveries Fund. Ms. Alayon paid the Respondent the full $14,125.00 on or about November 17, 1997. Despite having been paid the full amount, the Respondent did not complete the Alayon project. The work was begun on or about November 27, 1997, but was never finished. Ms. Alayon did not fire the Respondent, did not refuse access to her property, and never refused to pay the Respondent monies owed for the work. Curiously, the Respondent obtained the building permit for the Alayon project on January 27, 1998. The Respondent never called for a final inspection on the job and, as of March 29, 2001, a final passing inspection for the project had not been performed by building officials. In addition to the contract amount, Ms. Alayon paid $3,575.00 for materials that were used in the construction of the porch. The Respondent did not reimburse Ms. Alayon for that amount. In May of 1998, the Respondent began negotiations with Mr. and Mrs. Piloto for the construction of an addition to their home to include an in-ground swimming pool. From the beginning of the talks, Mr. Piloto advised the Respondent that the couple could only invest $38,000 for the remodeling work as that was the amount the bank had approved for the project. The Pilotos wanted to build a bedroom, an expanded bathroom, and a swimming pool at the rear of their home located at 750 West 73rd Place, Hialeah, Florida. Eventually the Respondent telephoned the Pilotos to advise them that they could get what they wanted within the budget set by the bank. The contract executed by the Pilotos called for the remodeling for a price of $37,890.00. The contract, prepared by the Respondent, did not contain the Respondent's license number or a notice of consumer's rights pursuant to the Construction Industries Recovery Fund. At all times material to the Piloto project, the Respondent did not hold a valid architect's license. In fact, in December of 1997, the Board of Architecture and Interior Design had fined the Respondent for having practiced architecture with a delinquent license. Nevertheless, the Respondent represented himself as an architect to the Pilotos and charged them for blueprints for the remodeling project. Moreover, the Respondent submitted the signed and sealed plans for the Piloto project to the Building Department in order to obtain a building permit for this project. Such plans were filed on or about August 12, 1998. Pursuant to their agreement with the Respondent, the Pilotos paid the Respondent a total of $26,664.00 for the project. In comparison, the value of the work performed by the Respondent did not exceed $10,000. The Respondent asked the Pilotos to increase the amount for the contract to $50,395.75, but they refused. Despite the fact that he had caused their home to be reduced to a dangerous condition (by virtue of exposed wiring and open walls), the Respondent refused to complete the work on the Piloto project for the contracted amount. Instead, he abandoned the project. The Pilotos did not fire the Respondent. They refused to increase the amount of the contract. The Pilotos did not stop the work or refuse workers access to the property. A lien was placed on the Piloto property by a subcontractor to whom the Respondent owed monies. The Pilotos were required to pay the subcontractor in order to satisfy the lien amount. The Respondent has failed or refused to repay the lien amount. The Respondent grossly under estimated the cost of remodeling the Piloto home. He did so either negligently or intentionally. The Piloto home was compromised by the demolition work done by the Respondent's crew. The Pilotos were faced with paying the additional monies to comply with the Respondent's demand or living with their home in an uninhabitable condition. They chose the latter. On or about May 11, 1999, the Respondent applied for and obtained a building permit to re-roof the home of Sam and Daisy Carpenter. The contract for the work was with Banos Remodeling Services, an unlicensed entity, not the Respondent or his company. The Respondent has been the subject of prior disciplinary actions filed by the Department. He settled such actions without admitting or denying the allegations against him. As to his architectural license, it is undisputed that at all times material to these cases, the Respondent did not hold a valid architect's license. The Petitioner has incurred expenses and costs in the investigation of and the prosecution of the instant cases against this Respondent. The Respondent provided no credible explanation for the failure to complete the work contracted for regarding the Alayon and Piloto homes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Construction Industry Licensing Board, enter a final order sustaining the violations outlined by the Conclusions of Law, imposing an administrative fine in the amount of $5000.00, requiring the Respondent to make restitution to the Pilotos and Ms. Alayon, requiring the Respondent to remit the costs of investigation and prosecution of these cases, and revoking the Respondent's license until all amounts are fully paid. DONE AND ENTERED this 23rd day of October, 2001, in Tallahassee, Leon County, Florida. ______________________________ J. D. PARRISH 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 23rd day of October, 2001. COPIES FURNISHED: Kathleen O'Dowd, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Hardy L. Roberts, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2201 Oscar S. Benitez 3894 Southwest 107th Avenue Miami, Florida 33165 Theodore R. Gay, Esquire Department of Business and Professional Regulation 401 Northwest Second Avenue Suite N-607 Miami, Florida 33128-1765
The Issue The issues are whether Respondent violated Section 489.227(1)(f), Florida Statutes, for the reasons stated in the Administrative Complaint, and, if so, what, if any, penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of contracting in the State of Florida. The Department of Business and Professional Regulation has jurisdiction over the unlicensed practice of contracting pursuant to Section 455.228, Florida Statutes. At no time material hereto was Respondent duly registered or certified to engage in the practice of contracting pursuant to Part I, Chapter 489, Florida Statutes. Augustine Weekley and Marilyn Weekley, the homeowners of a residence located at 2619 Bayshore Boulevard, Tampa, Florida, sought to remodel specific areas of their home. Initially, Mr. Weekley hired Wedgewood Contractors ("Wedgewood"), a licensed contractor, to perform the construction work. In the fall of 1999, Wedgewood obtained a building permit and commenced work on the Weekley project, but was eventually terminated by Mr. Weekley for unsatisfactory work. Mr. Weekley, a licensed contractor, then hired Respondent to take over the construction work. Mr. Weekley and Respondent entered into an oral contract whereby Respondent would complete work on the Weekley home and he would be paid as the work progressed. Between November 6, 1999 and June 16, 2000, Respondent sent invoices to the Weekleys totaling nearly $30,000 for labor and materials related to the construction work he performed, which amounts were paid in full by the Weekleys. The scope of the work performed by the Respondent as evidenced by the invoices, when considered as a whole, required either licensure or permitting. Admittedly, a building permit cannot be obtained by Respondent because he is not licensed. The building department records of the City of Tampa show that Respondent was never identified as the contractor of record for the Weekley project. The Weekleys became concerned when Respondent failed to deliver certain building materials that they had paid him to provide. On June 16, 2000, Respondent abandoned the Weekley project. Thereafter, Mr. Weekley hired another contractor to complete the work required for the project. Although Mr. Weekley is licensed as a general contractor, he did not determine whether Respondent was licensed. At no time did Respondent represent that he was a licensed contractor. The Department's investigative costs for this case total $350.62.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Section 489.227(1)(f), Florida Statutes, imposing an administrative fine in the amount of $1,000, and requiring Respondent to pay costs of the Department's investigation in the amount of $350.62. DONE AND ENTERED this 30th day of July, 2002, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER 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 30th day of July, 2002. COPIES FURNISHED: John R. Bishop 2212 Spyglass Hill Circle Valrico, Florida 33594 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Patrick L. Butler, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
