Findings Of Fact At all times pertinent to the issues herein, Alfred T. Rose held a Class "MB" investigator's license issued by the State of Florida, and the Department of State was and is the agency responsible for licensing private investigators and security guards in this State. James T. Hurley, a former law enforcement officer in New York and the United States Marines, was hired by Mr. Rose approximately fifteen months ago, initially as a patrolman in Mr. Rose's company, Secure Plus, located in Pinellas County, Florida. As the business improved, Mr. Hurley was promoted to Lieutenant and then to Captain, and given responsibility for all Secure Plus business in the south end of the northern part of Pinellas County. On June 20, 1988, while working at his automobile body shop located next to Mr. Rose's office, Mr. Hurley overheard an argument erupt between Mr. Rose and his son Cudhay Rose. As he recalls it, the argument centered around the fact that Cudhay has purchased a Cadillac automobile and Mr. Rose was upset about it, feeling that a car more suitable for company business should have been purchased. After about five minutes of alternating argument and silence, Mr. Hurley, at work in the back of his building, heard a window break. He observed Cudhay come out of the Secure Plus building, bloody and cut. Cudhay stated to Mr. Hurley that his father had tried to kill him. He asked Mr. Hurley to see if he could get his car keys out of the office and when Mr. Hurley went into the Secure Plus office, he saw Mr. Rose putting shells in his gun. When Cudhay thereafter came in, Mr. Rose pointed his gun at Cudhay's face and threatened to blow his "fucking" head off. At this point, according to Mr. Hurley, Mr. Rose appeared wild eyed and shaking. Mr. Hurley tried to clam him down and, after Cudhay left, Mr. Rose went to his office with Hurley and commented that the company was finished. At no time during this period did Mr. Rose fire his gun nor did he point it at Mr. Hurley though he advised Mr. Hurley to mind his own business. Mr. Hurley's body shop is located at the rear of Mr. Rose's building, and while the above altercation was going on, he could observe Mr. Rose and his son through the window scuffling and "bouncing off the walls. Mr. Rose admits to an altercation with his son on June 20, 1988. He contends that his son has been in a foul mood all that day and when he asked what was wrong, Cudhay indicated his wife had threatened to divorce him because he was not bring home enough money. According to Mr. Rose, at this point in time, with the business just getting started, funds were short and neither he nor his son was taking much money out of it. Mr. Rose also admits to a physical confrontation between the two of them. He contends, however, that Cudhay had become quite belligerent earlier in the morning. Mr. Rose left the office and went home. When he came back later on, he told Cudhay that his wife had called and wanted to talk with him "now." At this, Cudhay got angry and went into his office. When he came out and Mr. Rose asked what, if anything, he could do, Cudhay got furious and knocked a chair across the room. When Mr. Rose tried to grab him and clam him down, Cudhay tried to kick his father in the groin. With this, Mr. Rose grabbed Cudhay and shoved him across the room as a result of which Cudhay hit his head against the wall. Cudhay then grabbed Mr. Rose's gun from it's holster and threw it across the floor. Mr. Rose got it, and ejected the shells onto the floor. Mr. Rose retrieved his weapon and put it in the car trunk along with all six shells. Mr. Rose denies pointing the gun at Cudhay and denies even having the gun in his hand until he picked it up after Cudhay threw it aside. He denies threatening to kill Cudhay but admits threatening to "whip his butt" in an effort to get him to settle down. According to Mr. Rose, he and his son shook hands to end the disagreement and he heard nothing more about it until approximately two weeks later during which time Cudhay was in the office each day without any further argument erupting. After this two week period of calm, Mr. Chastain, the Department's investigator came to the office and when Mr. Rose asked what it was about, Cudhay indicated someone had reported the fight. It was not Cudhay who reported it, however, but Mr. Hurley. While Cudhay indicated to Hurley, Cook, and Sorenson shortly after the fight that his father had threatened to kill him, when initially interviewed by Chastain, he denied anything serious had happened because, he claims, he didn't want to get his father in trouble. It was only several months later that he went to Chastain and indicated he had lied, asking to make another, correct, statement. There can be no doubt that an altercation took place between Mr. Rose and his son on June 20, 1988, and that physical violence ensued. There is also no doubt that the weapon was displayed and words were spoken in anger. Cudhay Rose was not present to testify and all the adverse direct testimony regarding this incident comes from former employees of Mr. Rose who no longer are in his employ. Mr. Rose, while admitting an altercation, puts a different face on it. Upon consideration of all the available evidence, it is found that the gun was displayed, and while the threat to kill by Mr. Rose may not have been serious, he did assault Cudhay with it. This action is mitigated by the direct physical altercation which preceded it, however. During the months of May and June 1988, Secure Plus had a contract to provide security services for the Manatee Mall construction project located adjacent to a predominantly black area in Pinellas County. According to Mr. Hurley, on several occasions Mr. Rose would take his company car and go down to the area near the site and slowly drive past a bar known to be a place where crack cocaine was available. On these occasions, while in uniform, he would drive slowly past the bar, shining his spotlight on the building and patrons outside, turn around at the end of the street, come back and park on the construction site with his headlights shining on the bar entrance. When he would do this, according to Mr. Hurley, it would create a negative response from the black citizens and as a result, on one occasion, rocks were thrown. Hurley relates that on June 11 or 12, 1988, when he was on patrol at the project, Mr. Rose came by to visit and he saw him do it. Similar actions were recounted by Mr. Cook, also a past employee, who indicated that on one occasion while he was patrolling in the area, Mr. Rose told him that he had driven by the back of the site, a known drug dealer area, and shone his light on the people there because he wanted to "jack" the blacks. At this time, Mr. Rose stayed on the project and did not cross the road to the residential area. Mr. Sorenson, also a former employee of the company, relates that on one occasion, shortly after he was hired in late May 1988, Mr. Rose told him that he had shone his lights on some blacks near the Manatee construction project and they had thrown rocks at him. Mr. Rose had joked about this, stating he had "jacked" with the "niggers." According to Mr. Rose, when he got the job to guard the construction site, he went to the bartender at the bar related here and reached an agreement from him to keep the people from the area off the construction site. Since that time, there has been no problem at all. Mr. Rose denies having bragged about "jacking the niggers." He states he may have used the term "jacked" but denies using any racial epithet. Considering the evidence as a whole, including the repeated independent reports of Mr. Rose's use of the term, "jacking the niggers," it is found that he did harass the patrons of the bar as alleged. Mr. Hurley also related that on one occasion, when he was performing duty at the project, Mr. Rose called him to meet him for breakfast. While they were eating, Mr. Rose allegedly told Mr. Hurley that while at a car dealership he services in Pasco County, he was "spooked" by two individuals at whom he fired his .357 caliber pistol. Thereafter, according to Hurley, Mr. Rose reported the incident to a deputy sheriff but omitted the fact that he fired his weapon, and also failed to report the firing to the Department as it was a requirement to do. Mr. Rose also denies any trouble at a car lot and claims he did not discharge a firearm at the lot. In fact, the only time he has ever fired his weapon was when he took his qualification test. He denies having discussed having reported trouble at a car lot with a deputy in Pasco County because, he claims, he has never had any problem there and such an incident never happened to him. Considering the evidence presented on this issue, consisting only of hearsay admissions by the Respondent and no direct evidence to confirm any element of the allegation, it is found that no such misconduct on the part of Mr. Rose took place. Mr. Rose currently owes Mr. Hurley in excess of $500.00 but Hurley contends this debt does not have any effect on his testimony. He claims he is testifying because, in his opinion, Rose's conduct in all three incidents was dangerous. Though he has asked Mr. Rose for the money several times Mr. Rose has indicated he will not pay. Mr. Hurley claims to like Mr. Rose, describing him as a jovial and good humored individual, but the temper displayed in the altercation with Cudhay surprised him. Mr. Rose cannot understand why Hurley, Sorenson, and Cook, would make the "false" statements they made against him. He admits to owing Hurley money, but thought his relationship with the others was good. Be that as it may, there is direct evidence as to two of the alleged offenses by witnesses who were present at the scene. Mr. Rose has shown no motive for them to lie and their testimony is, therefore, believable. During Mr. Chastain's investigation, he spoke with several witnesses, including Cudhay Rose, from whom he took a sworn statement regarding the assault in which he initially denied his father had pulled a gun on him. His change of heart was prompted by concerns about his father's mental health and the safety of the public. While Mr. Rose admits to carrying a .357 revolver, he claims that when he took his qualification test, his instructor advised him that he must carry only the gun he qualified with, and since it was a .357, that is what he carries.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Mr. Rose's application for a Class MB license be denied, that he be find $1,000.00, and that his Class B, D, G, and ZB licenses be suspended for 90 days. RECOMMENDED this 21st day of April ,1989 at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NOS: 88-6454 AND 89-0001 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 Department: 1. Accepted and incorporated herein. 2-4. Rejected as unproven. 5. Accepted and incorporated herein. For Mr. Rose: The Proposed Recommended Order submitted by Mr. Rose's counsel does not contain proposed Findings of Fact but is more in the nature of argument on the evidence. Consequently, no specific rulings are made. COPIES FURNISHED: R. Timothy Jansen, Esquire Asst. General Counsel Department of State The Capitol, Mail Station 4 Tallahassee, Florida 32399-0250 Howard J. Shifke, Esquire Anthony F. Gonzalez, P.A. 701 N. Franklin Street Tampa, Florida 33602 Hon. Jim Smith Secretary Of State The Capitol Tallahassee, Florida 32399-0250 Ken Rouse, Esquire General Counsel Department of State The Capitol, LL-10 Tallahassee, Florida 32399-0250
The Issue The issues in this case are whether Respondent violated Subsections 489.129(1)(g)1., 489.129(1)(g)2., 489.129(1)(j), 489.129(1)(m), and 489.129(1)(o), Florida Statutes (2005),1 and, if so, what discipline should be imposed.
Findings Of Fact At all times material to this proceeding, Mr. Calleja had a valid and active license as a commercial certified pool/spa contractor. His license number is CP 1456568. At all times material to this proceeding, Mr. Calleja was the owner of or did business as Nautica Pools & Spa (Nautica). The Board is charged with regulating the practice of contracting in the State of Florida pursuant to Chapters 455 and 489, Florida Statutes. On April 2, 2005, Mr. Calleja, as the representative for Nautica, entered into a contract with Jack Coleman to renovate Mr. Coleman’s existing pool. From April 2005 to July 27, 2005, Nautica installed rebar in the pool and set a new skimmer. Nautica subcontracted with Prestige Gunite of Melbourne, Inc. (Prestige), to put the gunite in the pool. Gunite is concrete that is sprayed out of a hose to form the walls of the pool. Personnel from Prestige arrived on the project site on the afternoon of July 27, 2005, to apply the gunite, but did not do so because the application would have taken longer to do than one afternoon. The following day, July 28, 2005, Mr. Calleja and a crew from Prestige returned to the project. A representative from Prestige told Mr. Calleja that the steel rebar had not been laid properly. Mr. Calleja told Prestige to apply the gunite and do what was necessary to cover the steel. Mr. Calleja left the project site, and Prestige began applying the gunite. During the application of the gunite, it became evident that the first spraying of gunite was not going to cover the steel. Attempts were made to reach Mr. Calleja, but Mr. Calleja was not available to solve the problem. Prestige began applying additional coats of gunite in an attempt to cover the steel. After the gunite was applied, two problems were identified. The first problem was in the fountain area. The gunite had not been applied properly, and there were hollow areas. The second problem was in the wet deck area. The steel rebar was too close to the surface of the floor, and the steel was visible. In order to remedy the problems, the concrete in the areas would have to be jack hammered to remove the concrete, and new gunite would have to be applied. By letter dated August 28, 2005, Nautica requested Mr. Coleman to pay Prestige $954.57. Nautica advised Mr. Coleman that when that amount had been paid, Nautica would pay the balance owed to Prestige and forward a release to Mr. Coleman. Mr. Calleja claimed that Mr. Coleman owed the $954.57 because Mr. Coleman had damaged Mr. Calleja’s saw. In the letter, Nautica acknowledged that there was additional work which had not been completed. The letter was signed by Mr. Calleja’s wife. Mr. Calleja had verbally told Mr. Coleman that he wanted Mr. Coleman to pay him $2,000.00, and he would take care of paying Prestige. The general specifications in the contract required that the contractor was responsible for “[s]tandard structural engineering plans and permits required by code.” Prior to commencing work on the pool renovation, Mr. Calleja did not secure the required building permits for the project. Mr. Coleman called Clifford Stokes, who is the building official with the town of Indialantic, and asked whether a permit had been issued. Mr. Stokes went to the project site. At that time, the gunite had been shot, and there was exposed steel rebar. Since no permit had been pulled, no inspection had been done after the steel was put in place. On September 15, 2005, Mr. Calleja applied for a building permit. Because the steel had been placed, and the gunite shot, it was impossible to do a visual inspection to determine whether the steel had been placed properly. In order to get a permit after the construction had been commenced, certain affidavits had to be submitted to the building official of Indiatlantic. Mr. Calleja had to submit an affidavit stating that the steel had been placed properly. An affidavit stating that the work had been performed properly had to be submitted from an engineer, who had made a site visit to the project and had determined that the work performed had been according to code. Additionally, Mr. Coleman was required to submit an affidavit that stated that he understood that no inspection had been done of the work by the building official. Mr. Calleja also had to pay a fine to Indiatlantic for commencing work without a building permit. On October 19, 2005, Mr. Calleja and Robert Lee from Lee Engineering came to the project site for the purpose of preparing the affidavits necessary to secure a building permit. Mr. Calleja did not return to the project site after October 19, 2005. Mr. Coleman sent a letter to Mr. Calleja dated October 13, 2005, noting that no work had been done on the project since July 28, 2005, and requesting that Mr. Calleja remedy a number of deficiencies with the work performed on the project and complete the job in accordance with the contract. The letter was returned to Mr. Coleman by the postal service because the time for forwarding mail from the address listed in the letter had expired. When Mr. Calleja came to the project site on October 19, 2005, Mr. Coleman requested a current address from Mr. Calleja, but Mr. Calleja refused to give him one. Mr. Coleman wrote another letter to Mr. Calleja dated October 25, 2005, again stating that no work had been done since July 28, 2005, and requesting that Mr. Calleja correct the deficiencies in the work and complete the contract. Mr. Coleman filed an action in small claims court attempting to recover the money for the lien filed by Prestige. However, Nautica had filed for bankruptcy, and Mr. Coleman did not proceed with the small claim action. A building permit for the project was issued in January 2006. The issuance of the building permit did not relieve Mr. Calleja from the responsibility of assuring that the work in the shallow end of the pool area where the rebar was sticking up was redone properly. After the building permit was issued, neither Mr. Calleja nor Mr. Coleman called for inspections by the Indiatlantic building official. The permit expired in June 2006. After the issuance of the building permit, Nautica performed no further work on the project. The total contract price was $9,340.00. Mr. Coleman and Mr. Calleja entered into an addendum to the contract on July 27, 2005, which increased the contract price to $13,000.00. The contract called for a down payment of $934.00, which was ten percent of the contract amount. After completion of excavation and the form and steel work, a payment of $3,736.00 was due, representing 40 percent of the total work. After completion of the pool shell, a payment of $2,802.00 was due, representing 30 percent of the total work. Prior to plastering, which represented 20 percent of the total work, a payment of $1,868.00 was to be paid. The contract addendum of $3,660.00 called for 50 percent of the addendum amount to be paid at the completion of the pool shell, and the remaining 50 percent of the addendum amount was to be paid at the completion of the pool. By check dated April 22, 2005, signed by Mr. Coleman’s wife, Mr. Coleman paid Mr. Calleja $1,000.00 as down payment on the project. In June 2005, Mr. Coleman gave Mr. Calleja a check for $573.42 for a pool and spa light. Mr. Coleman was to receive a credit of $380.00 toward the contract for the light. Additionally, Mr. Coleman overpaid Mr. Calleja by $166.90. By check dated July 27, 2005, and signed by Mr. Coleman’s wife, Mr. Coleman paid Mr. Calleja $7,396.00. This payment was to include half of the addendum amount, but Mrs. Coleman inadvertently included the full amount of the addendum. By check dated August 1, 2005, and signed by Mrs. Coleman, Mr. Coleman paid Mr. Calleja $739.10. Thus, by August 1, 2005, Mr. Coleman had paid Mr. Calleja, $9,682.00 on the contract. In December 2005, Mr. Coleman asked a representative of Paradise Pools, Patrick McDonough, to come to the project site and give an estimate to complete the pool. The estimate of $7,800.00 from Paradise Pools was for a cosmetic plaster of the existing pool, and the work was not warranted against leakage. Mr. McDonough would not warrant the work, because he saw a lot of potential liability problems with the work performed by Mr. Calleja. Mr. McDonough did not recommend that a cosmetic plaster be performed because of the potential problems. On October 26, 2005, Prestige filed a Claim of Lien against the property of Mr. Coleman for $4,227.40 plus interest, costs, and attorney’s fees. The lien was for the work which Prestige had performed on the project on July 28, 2005, and for which Mr. Calleja had failed to pay. Mr. Coleman called Mr. Calleja and told him that a lien had been filed. Mr. Calleja assured him that he would pay the lien, but he failed to do so. Mr. Coleman satisfied the lien by check dated April 11, 2006, for the amount of $5,139.58. David Bogenrief, P.E., viewed the project in June 2008 and provided Mr. Coleman with a quote to develop structural plans to repair Mr. Coleman’s pool. There was no testimony on the amount of the quote, and the Department did not request that the written proposal be admitted in evidence. Mr. Bogenrief did not know what it would cost to repair the pool. The Department has incurred $470.49 for costs in the prosecution of this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mr. Calleja did not violate Subsection 489.119(2), Florida Statutes, and that Mr. Calleja violated Subsections 489.129(1)(g)1., 489.129(1)(g)2., 489.129(1)(j), 489.129(1)(m), and 489.129(1)(o), Florida Statutes; for the violation of Subsection 489.129(1)(g)1., Florida Statutes, imposing a fine of $2,000.00, suspending Mr. Calleja's license for six months, and requiring Mr. Calleja to pay Mr. Coleman $5,139.58 as restitution for the payment of the lien filed by Prestige; for the violation of Subsection 489.129(1)(g)2., Florida Statutes, imposing a fine of $2,000.00, suspending Mr. Calleja's license for six months, and requiring Mr. Calleja to pay Mr. Coleman $9,682.00, which represents the amount that Mr. Coleman paid to Mr. Calleja; for the violation of Subsection 489.129(1)(j), Florida Statutes, imposing a $1,000.00 fine and four years of probation; for the violation of Subsection 489.129(1)(m), Florida Statutes, imposing a $1,000.00 fine and four years of probation, which shall run concurrently with the other probation imposed; and, for the violation of Subsection 489.129(1)(o), Florida Statutes, imposing a $1,000.00 fine and two years of probation to run concurrently with the other probation imposed; and requiring payment of $470.49 as costs for the prosecution of this case. DONE AND ENTERED this 29th day of August, 2008, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 29th day of August, 2008.
The Issue The issue to be determined is whether Respondent has violated section 458.331(1)(b), (kk), and (nn), Florida Statutes (2011), as alleged in the Administrative Complaint, and if so, what penalty should be imposed?
Findings Of Fact Respondent is a medical doctor licensed in the State of Florida, having been issued license number ME 89113. Petitioner is the state agency charged with the licensing and regulation of the practice of medicine pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. Respondent is also licensed as a medical doctor in the State of New Jersey. The Department of Law and Public Safety, Division of Consumer Affairs, New Jersey Board of Medical Examiners (New Jersey Board) is the licensing authority regulating the practice of medicine in the State of New Jersey. On or about February 21, 2012, the New Jersey Board entered an Order of Automatic Suspension of Respondent’s New Jersey medical license. The basis for the Order was Respondent’s purported failure to comply with a Private Letter Agreement previously entered between Respondent and the New Jersey Board, in that she allegedly failed to undergo an independent psychiatric evaluation and failed to provide required psychiatric reports to the state’s Physician Assistance Program (PAP).2/ The action by the New Jersey Board constitutes action against Respondent’s medical license by the licensing authority of another jurisdiction. Respondent did not report the action against her New Jersey license to the Florida Board of Medicine on or before March 23, 2012, or within 30 days of the action against her license. When documents are received by the Department, they are imaged into the Department’s system. Mail for the licensing unit is picked up several times a day, and all documents are indexed by the licensee’s license number. A licensee can check to see if documents are received by contacting the Department by telephone or e-mail. As of the week before the hearing, no information regarding Dr. Ackerman had been received by the Department from Dr. Ackerman. Respondent claims that she notified the Board by both United States Mail and by certified mail of the action against her New Jersey license. A copy of the letter she claims to have sent is Respondent’s Exhibit 1. This letter is dated March 2, 2012, is not signed, does not contain her license number in Florida or New Jersey, and is addressed to “Florida License Board.” The document does not include an address beyond Tallahassee, Florida. No zip code is included. Dr. Ackerman could not say whether she had a receipt for the certified mail, only that she probably “had it somewhere.” She could not identify who, if anyone, signed for it. When asked for the address where she mailed the letter, Dr. Ackerman said, after a considerable pause, 452 Bald Cypress Way, and claimed she knew that address “off the top of her head.”3/ The copy admitted into evidence only reflects a faxed date of March 22, 2014, two days before the hearing.4/ By contrast, Board staff testified credibly as to the process for logging mail at the Department, and that no notification had been received from Dr. Ackerman. While staff acknowledged that it is “possible” for mail to come to the Department and not be routed appropriately, the more persuasive evidence in this case is that the Board staff received nothing from Dr. Ackerman. Respondent’s claim that both copies of her letter somehow slipped through the cracks is simply not believable. Moreover, Dr. Ackerman is a physician. As such, she is presumed to be a relatively intelligent person, capable of providing appropriate notification to the Board. The docket and evidentiary record in this case demonstrate that when she wants to get a message across, she is capable of doing so (and equally capable of avoiding answering a direct question if it is not to her advantage). Her claim that she notified the Board of the action against her license in New Jersey is not credible, and is rejected. Dr. Ackerman also did not update her practitioner profile. Practitioner profiles can be updated by faxing the updated information, using the fax number available on-line; by mailing the information to the Department; or by logging into the practitioner profile database using the licensee’s specific log- in ID and password. Dr. Ackerman did none of those.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Medicine enter a Final Order finding that Respondent has violated section 458.331(1)(b), (kk), and (nn). In addition, it is recommended that the Board impose the following penalty: a reprimand of Respondent’s license to practice medicine; an administrative fine of $5,000; suspension of Respondent’s license to practice medicine until such time as Respondent demonstrates that her license in New Jersey has been reinstated and demonstrates the ability to practice medicine with reasonable skill and safety; and reservation of jurisdiction by the Board to impose a period of probation should Respondent successfully petition the Board for reinstatement and demonstrate compliance with the terms described in recommendation three. DONE AND ENTERED this 15th day of May, 2014, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 15th day of May, 2014.
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 material hereto, Respondent has been a certified building contractor in the State of Florida, having been issued License No. CB CO24584. At all times material hereto, Respondent was the qualifying agent for Southern Construction Technologies, Inc. In March, 1988, Alfred and Martha Entrekin entered into a contract with Southern Construction Technologies, Inc., whereby they agreed to pay the sum of $178,000 for construction of a custom-built home. Since the Entrekins were unable to qualify for the financing needed for construction, Southern Construction obtained a construction loan on their behalf. Despite delays, construction commenced in May of 1988 and continued through October, when, the closing on the residence took place, subsequent to the issuance of a certificate of occupancy by the Town of Davie. Just prior to the closing, a "punchlist" was prepared by Respondent and the Entrekins. That punchlist, which became part of the closing, contains 24 numbered items. (Due to misnumbering, the punchlist says 25.) Thirteen 0of those items on the copy of the punchlist offered in evidence by the Petitioner have been crossed off that list. Of the remaining 11 items, the evidence at final hearing reveals that some were corrected and some items were not the subject of any evidence offered by either party at the final hearing. Although additional items appear to have been added to the punchlist by the Entrekins sometime after the closing, those items will not be considered in this cause since no evidence was offered to indicate that those items were agreed to by the Respondent at the time of closing and no evidence was presented as to when those items were added to the original punchlist by the Entrekins. At the time of closing, the sum of $1,500 was placed in escrow to ensure completion of the punchlist by Respondent. Respondent performed some of the punchlist work on the day of the closing and continued working on the punchlist items for the next three weeks. On January 11, 1989, the Entrekins' attorney sent a demand letter seeking the release of the funds placed in escrow at the closing. Attached to that demand letter was a list of 16 items allegedly remaining on the punchlist. Some of the items on the new "punchlist" submitted by the Entrekins did not appear on the punchlist agreed to by the parties at the closing. Others did appear on the closing punchlist but had been struck through and initialed by Mrs. Entrekin, assumedly as having been completed, on the copy of the closing punchlist offered by Petitioner as an exhibit in this cause. In response to the demand letter, Respondent authorized the release of the $1,500 in escrow to the Entrekins. Respondent admits that at the time that the money was released to the Entrekins, there were still some repairs needed to the rake tiles on the roof and he had not seeded the backyard. Respondent testified that four rake tiles on the eaves were missing, some were misaligned, and some had not been "mudded" in with mortar, but no broken tiles remained on the roof. He also testified that he had not seeded the backyard because the Entrekins had not yet placed fill in the backyard, an item which Mr. Entrekin admits was his responsibility as provided in the contract between the Entrekins and Southern Construction Technologies, Inc. The only evidence submitted in corroboration of the complaints of the Entrekins consists of several invoices. In March, 1989, the Entrekins obtained an estimate for roof repairs from Warren Roofing, Inc., in the amount of $1,200. That invoice indicates the need to replace 80 broken tiles on the roof, the need to remove and replace approximately 130 rake tiles to be secured with mortar tinted to match (although Donald Warren testified that the tile used is nail-on tile which does not require mortar), and the need to "repair defects" in two rear valley areas. Warren Roofing was never hired to effectuate the repairs for which it had submitted its $1,200 estimate. The extensive work set forth in the estimate in March of 1989 is inconsistent with the roofing inspection which would have taken place prior to the certificate of occupancy issued prior to the closing in October of 1988. The only roofing repair effectuated to the Entrekin house by anyone other than Respondent was work performed by Warren Roofing in July of 1989 repairing a leak around the skylight. Petitioner also offered in evidence two invoices from pool services dated March of 1989. One invoice in the amount of $275 represents the cost of acid washing the pool, and the other invoice is for $230 to "filter pool water." Due to electrical problems, the water in the pool was not filtered for two days during the period of construction of the Entrekin house. No evidence was offered to show that the absence of filtering a pool for two days would require it to be acid washed, and no evidence was offered in support of the services performed or the need for the services represented by the second invoice. Another invoice represents the cost of 20 loads of muck for the backyard at a cost of $600, and $150 to rent a bulldozer. Since the muck for the backyard was the responsibility of the Entrekins, the bulldozer charge accompanying the 20 loads of muck is, in all probability, also the responsibility of the Entrekins. The last invoice submitted in evidence also bears the date of March of 1989 and represents 50 pounds of grass seed, in the amount of $110.50, a cost item which Respondent admits was his responsibility at the time that the escrowed monies were released to the Entrekins.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty of the allegations contained in the Administrative Complaint filed against him and dismissing the Administrative Complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 25th day of January, 1991. LINDA M. RIGOT 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 25th day of January, 1991. COPIES FURNISHED: Charles N. Tetunic, Esquire Becker, Poliakoff & Streitfeld, P.A. Post Office Box 9057 Fort Lauderdale, Florida 33310-9057 Joseph Stephen Sharrow, Esquire Post Office Box 8995 Fort Lauderdale, Florida 33310 Daniel O'Brien Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
