The Issue Whether the Respondent's license as a registered general contractor should be disciplined?
Findings Of Fact The Respondent is a registered general contractor in the State of Florida. His license is number RG 0001015. At all times material to this case, the Respondent has held license number RG 0001015. The Respondent has been in the construction business for 51 to 52 years. During the Fall of 1985, Mr. Edward J. Ashley discussed a construction project at Mr. and Mrs. Ashley's residence with the Respondent. The Ashley's residence is located at 2353 Hampshire Way, Tallahassee, Florida. The Ashleys and the Respondent, on behalf of Big Bend Builders Corp., Inc., agreed on the construction work to be performed and the price to be paid for the work. The agreement was memorialized on October 7, 1985, (hereinafter referred to as the "Proposal"), by the Respondent and presented to the Ashleys. Pursuant to the agreement between the Ashleys and the Respondent, Big Bend Builders Corp., Inc., was to construct a room addition to be used as a porch in the back of the existing residence, extend a master bedroom and bathroom, replace the tile in the bathroom, remove a partition between the kitchen and the living room and replace the existing roof with fiberglass shingles with a 20-year warranty. The Ashleys agreed to pay the Respondent's corporation $28,300.00 in consideration of the work to be performed. The Proposal presented to the Ashleys by the Respondent was never signed by the Ashleys but they did agree verbally to the work to be performed. The Ashleys and the Respondent agreed verbally that the construction price would be paid in two installments. One installment was to be made when half the construction was completed and the other half was to be paid when the construction was completed. The Ashleys made the first payment on December 5, 1985. The payment was for $14,000.00. Although the project was not completed, the Ashley's made a partial payment of $6,000.00 on January 10, 1986. The second payment was made earlier than agreed upon at the request of the Respondent. The Respondent told the Ashleys that the payment was needed so that the project, which was already late, could be completed. The Ashleys and the Respondent agreed verbally that the construction would be completed by December 15, 1985. Construction began at the Ashleys on November 14, 1985. On November 22, 1985, the concrete slab for the addition to the Ashley's home was poured in the morning. That afternoon a hurricane struck and rain associated with the hurricane washed away the top layer of concrete. The loss of the top layer of concrete caused the slab to be rough and uneven. It was especially unsightly in the area where the new room was being added as a porch. The Ashleys planned to leave this area uncovered. When they complained to the Respondent he told them not to worry, that he would take care of it. It was not repaired, however. The slab was also uneven in the bathroom and approximately 1 and 1/2 inches higher than the existing slab in the master bedroom. These problems were also not corrected. The area where the new slab joined the existing slab in the master bedroom was ground down but a bump still remains. The trusses of the addition to the residence were higher than the existing trusses. Although some of the problems associated with this problem were corrected, there remains a bump on the roof of the addition. The wall between the bathroom and the master bedroom did not match the existing wall. This problem was not corrected and is still visible. The Respondent filed an application for a building permit with the City of Tallahassee on November 12, 1985. The permit was issued on November 13, 1985. The Respondent was required to arrange slab, framing, and insulation inspections and a final inspection of the construction at the Ashley's residence. The Respondent had the slab inspection completed on November 19, 1985. The framing inspection was conducted on December 11, 1985, by Mr. Rackley. The construction did not pass this inspection because there was no "header" over one door and the ceiling joists were not adequately attached. It was the Respondent's responsibility to correct the problems found as a result of the framing inspection before proceeding with construction. The fact that the construction failed the framing inspection was noted on the copy of the building permit which is displayed at the construction site. Ms. Ashley was the only person present during the inspection other than the inspector. On December 17, 1985, Mr. Rackley saw the Respondent at a party and mentioned the door header and the failure of the residence to pass the framing inspection. The ceiling joists were not mentioned. At the time the framing inspection was completed, the construction was 40 to 50 percent complete. By letter dated February 12, 1986, Mr. Rackley asked the Respondent why the Respondent had not requested a re-inspection. The Respondent proceeded with construction without passing a framing inspection. Therefore, in the February 12, 1986 letter from Mr. Rackley the Respondent was directed to uncover the areas which had failed the inspection so that they could be re-inspected. The Respondent did not respond to Mr. Rackley's letter of February 12, 1986. Therefore, on February 24, 1986, the Respondent was contacted by Mr. Rackley by telephone. The Respondent agreed to open the areas necessary to complete the framing inspection. On February 26, 1986, the framing inspection was completed. An opening had to be cut in the existing roof for the inspection to be completed. The Respondent did not fail to arrange a re-inspection of the property in order to hide anything or cover-up improper work. The construction passed the insulation inspection. No final inspection of the construction has ever been requested or completed. As a part of the Respondent's agreement with the Ashleys, the Respondent was to remove the roof on the existing structure and cover it and the new roof with fiberglass shingles with a 20-year life. The shingles used by the Respondent were Temko shingles. Manufacturers of roofing materials generally recommend how to apply their products in writing. Therefore, Temko included instructions for the application of the shingles used by the Respondent. The instructions were written on the paper used to wrap the bundles of shingles. In order for the manufacturer's guarantee of the Temko shingles to be effective, the shingles must be installed according to the manufacturer's instructions. The Southern Building Code, which applies in Leon County, also requires that manufacturer's instructions be complied with. The following pertinent instruction, among others, was included with the shingles used on the Ashley's residence: LOW SLOPE APPLICATION: On pitches of 2" per foot to 4" per foot, provide a double underlayment of asphalt saturated felt by applying a 19" wide felt strip along the eaves and over this apply a full 36" wide sheet. Continue with full 36" wide sheets, lapping each 19" over the preceding course. If winter temperatures average 25 F or less, thoroughly cement the felt to each other with Temko plastic cement from eaves and rakes to a point a [sic] least 24" inside the inside wall line of the building. This instruction is consistent with roofing industry standards. The roof of the Ashley's residence pitches at 2" to 2 1/2" per foot. Therefore, the Respondent should have applied two layers of felt to the roof as specified in the "Low Slope Application" instruction. The Respondent's crew, however, only applied one layer of felt to the Ashley's roof. The instructions for the shingles also specified that each shingle be attached with four nails placed in a particular pattern. The Respondent's crew did not follow these instructions. Along the edges of the roof, the felt should have been cemented to the roof. It was not, however. Shingles placed in the valleys on the roof were not attached in any manner to the roof. The manner in which the roof was installed was incompetent. After the roof was placed on the Ashley's residence, water leaked in at several locations. The Respondent did not return the Ashley's telephone call. One of the Respondent's work crew when informed about the leaks told Mr. Ashley that the roof was not leaking; that it was blowing in from outside. Some of the problems with the roof were corrected by the Respondent. They were corrected, however, only after a building inspector was called in by the Ashleys. Even then, the leaks did not stop. The Ashleys subsequently paid another contractor $560.00 to correct problems with the roof. Throughout the period of time that the Respondent's crew worked at the Ashley's residence, whenever a problem arose, the Ashleys would be told not to worry about the problem; that it would be taken care of. Many of the problems, however, were not taken care of by the Respondent. Throughout the period of time that work was being performed at the Ashley's residence, there were numerous times when no one would perform any work at the Ashley's. Weeks would often go by without the Ashley's seeing the Respondent and without the Respondent's presence at the Ashley's. During the period that work was being performed at the Ashley's residence, there was a great deal of rain and the temperature dropped below 40 degrees. These weather conditions slowed progress on completing the job. These weather condition were not unique, however, and the Respondent admitted that he knew it rains and gets cold often during the period of time involved in this proceeding. One weather problem that the Respondent could not have reasonably foreseen was the hurricane which struck Tallahassee on November 22, 1985. As a result of damage to property caused by the hurricane, roofing and other materials were more difficult to obtain. Rain associated with the hurricane washed away the top layer of the concrete from the slab that was poured the day the hurricane struck. The Respondent checked with the weather service that morning. Based upon the projected weather, the hurricane was headed away from Tallahassee and rain was not expected until that afternoon. The concrete was poured in the morning and would have been dry before the afternoon. The weather forecast was incorrect, however, and the rain struck earlier than expected. After work had commenced on the Ashley's residence, the agreement was modified. The Respondent indicated that he could not do the tile work in the bathroom. Therefore, the agreed upon price for the project was reduced by $2,000.00. The Ashleys also had the Respondent perform other work not originally agreed upon; 2 skylights and a door were added and additional brick work was performed. These changes caused some delay in completion of the project. The evidence did not prove, however, that all of the delay was attributable to the changes in the work to be performed. Much of the delay was caused by the fact that the Respondent's crew simply did not show up to work at the Ashley's residence. The delays in completing construction at the Ashley's residence were on the whole not reasonable. Although days were lost because of weather conditions, including the hurricane, and changes in the work to be performed, the days that no work was performed were not reasonable or caused by these factors. The Respondent failed to properly supervise the work performed at the Ashley's residence. Although the Respondent indicated that he relied upon the men who worked for him, he was ultimately responsible for the proper completion of the project. The project was not completed and some of the work performed was not performed in a satisfactory manner. The Respondent was not allowed to complete the project. The Ashleys eventually got so fed up with the Respondent's failure to correct problems and to complete the project that they would not allow the Respondents onto the property. Sometime after 1981, the Respondent received forms from the Petitioner which could be used to register his contracting license in the name of Big Bend Builders Corp., Inc. He asked his former attorney to complete the forms for him. The forms were completed and placed in the Petitioner's mail. The Respondent's license has not been registered in the name of Big Bend Builders Corp., Inc. The Respondent believed that his license was being switched to the corporate name. He knew or should have known that the change had not been completed because he did not receive a copy of a license with the corporate name. The Respondent's license had previously been held in a corporate name. The heading of the Proposal indicates that it is a proposal of "Big Bend Builders Corp., Inc." The Proposal was signed by the Respondent and was also signed "Big Bend Builders Corp., Inc. by Welton Smith." Mr. Ashley understood that the agreement he was entering into was with Big Bend Builders Corp., Inc. The two payments made by the Ashleys were made by checks. The checks were made out to Big Bend Builders Corp., Inc. The building permit on the Ashley's residence was applied for and issued in the name of Big Bend Builders Corp., Inc. Big Bend Builders Corp., Inc., was not qualified with the Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent be found guilty of violating Sections 489.129(1)(d), (g), (j) and (m) and 489.119, Florida Statutes (1985). It is further RECOMMENDED: That the Respondent be required to pay an administrative fine of $2,000.00. DONE and ENTERED this 2nd day of September, 1987, in Tallahassee, Florida. LARRY J. SARTIN 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 2nd day of September, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2641 The parties have submitted proposed findings of fact. It has been generally noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1 and 2. 2 56. 3 4. 4 5. 5-6 6. 7 7. 8 18. 9-10 18 and 61. 11-12 10. 13 39 and 41. 13 The first sentence is hereby accepted. The second sentence is not supported by the weight of the evidence. This state- ment was made to the Ashleys but in regard to the problems they had with their roof. 14 43. 15-16 44. 17 21. 18 21, 23 and 25. The building inspector informed the Respondent of the failed framing inspection on December 17, 1985, and not December 7, 1985. 19 28. 20 26. 21 33 and 34. 22 Hereby accepted. 23 37 and 38. 24-25 Hereby accepted. 26 38. 27 37. 28-29 39. 30 38-39 and 42. 31-35 Cummulative. 36-37 57. Respondent's Proposed Findings of Fact 1 Hereby accepted. 2 2. 3 28 and 29. There was no "final inspection" performed on the project. There was a final framing inspection, however, that indicated that the work that originally failed the inspection had been performed correctly. 4-7 These proposed findings of fact are not supported by the weight of the evidence. 47-48 and 50. The last sentence is not supported by the weight of the evidence. Not supported by the weight of the evidence. 10-11 Hereby accepted. 12 62. The last sentence is not supported by the weight of the evidence. COPIES FURNISHED: Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph Sole, Esquire General Counsel Department of Professional Regulation Tallahassee, Florida 32399-0750 W. Douglas Beason, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Elwin Thrasher, Jr., Esquire 908 North Gadsden Street Tallahassee, Florida 32303
The Issue The issue for consideration in this hearing is whether Respondent's license as a certified building contractor should be disciplined because of the matters set out in the Administrative Complaint.
Findings Of Fact At all times pertinent to the allegations herein, Petitioner was the state agency responsible for the regulation of the construction industry in Florida. Respondent, David P. Miller, was licensed as a certified building contractor under license number CB C039127 and was doing business as Great Southern Construction and Development, Inc. On March 14, 1988, Robert Crowley, a semi-retired real estate broker and promoter, and Treasurer of Enterprise Industrial Park, Inc., (EIP), entered into contracts with the Respondent to construct three buildings, A, B, and H, for it within the park boundaries. Building A was to house offices and retail space; building B was to house warehouse and offices; and building C was to house garage space. The construction was to be financed by an infusion of shareholders' money and by a construction loan from the Southland bank in the amount of $375,000.00. The loan was ultimately increased to $614,000.00 so that EIP could begin development of phase II of the park. The contracts provided for Respondent to be paid $110,000.00 for Building A, $67,000.00 for Building B, and $52,807.00 for Building H. The loan was obtained in phases. The developers had outlined the project to bank officials who approved it, initially, for development of the park and construction of four buildings. Phase one was to include the roadway and one building. When that was completed, the other buildings were to be erected. Site preparation was accomplished by John T. Day. Most of the site preparation was completed before Respondent started construction. Thereafter, as work progressed, Respondent periodically certified to the bank what work had been done and that suppliers had been paid. Upon receipt of that certification, the bank would issue a check for the appropriate amount to EIP which would, thereafter, issue its own check to Respondent. There was an exception, however, in the case of payments to Ludwig Steel. Whereas that supplier would bill Respondent for small items delivered, it demanded payment by cashiers' check upon delivery for major structural steel fabrications. These checks, for steel for Buildings A and B, were for $18,511.84 and $17,716.84, were issued by Southland Bank, at the request of EIP. During the course of his performance of the contracts for the construction of Buildings A, B, & H, Respondent executed several of the above mentioned certification forms. For Building H: These included: a. August 30, 1988 $ 9,505.00 b. October 4, 1988 9,505.00 c. October 17, 1988 9,505.00 d. December 28, 1988 11,881.50 e. January 31, 1989 9,437.50 TOTAL $49,834.00 Prior to these certificates, the bank also released $90,000 in advances for start up costs and the loan in March, April and May, 1988. In addition to the certificates listed above, Respondent also signed certificates for Building A totalling $91,446.00 as follows: a. August 30, 1988 $ 19,800.00 b. October 4, 1988 19,800.00 c. October 17, 1988 19,800.00 d. December 28, 1988 24,750.00 e. January 31, 1989 7,296.00 TOTAL $ 91,446.00 Respondent also signed additional certificates for Buildings B as follows: a. December 28, 1988 $ 46,642.00 b. January 31, 1989 28,031.00 c. March 1, 1989 28,031.00 TOTAL $102,704.00 These certificates were also signed by the architect, Mr. Wilcockson. In fact, they were not correct in that not all the work had been done and not all suppliers had been paid. Respondent admits to falsely signing the certificates but claims he was urged to do so by representatives of EIP who indicated to him it was just a routine procedure. Consequently, even knowing the certificates were not accurate, he signed them because he wanted to get paid. It is found, however, that Respondent has been a licensed contractor for a number of years and knew the implications of his actions. His attempts at justification for his actions are neither credible nor impressive. Construction progressed satisfactorily and without major problems up to the time for the last draw. At that point, the bank declined to issue a check to EIP for the construction of Building C, also to be erected on the site, when it became aware that numerous liens had been filed by subcontractors and materialmen indicating Respondent's failure to make satisfactory payment for buildings A, B, and H. These liens included claims by: American Roll-Up Door Co. $ 3,630.00 B & B Painting Contractors 3,020.00 Blackton, Inc., 5,820.73 Brownie Septic Tank Contractors #1 1,025.00 Brownie Septic Tank Contractors #2 1,025.00 Brownie Septic Tank Contractors #3 1,635.00 Don Alan Dinora 930.00 Energy Savings Systems, Inc. 10,750.00 Florida Mining & Materials 2,388.31 Mid Florida Air Conditioning, Inc. 3,982.00 Neeley-Built Structures, Inc., 4,995.78 Residential Building Supply 7,857.11 Total $47,058.93 Mr. Crowley claims the above liens were satisfied by EIP, and it is so found. He claims EIP also paid some subcontractors who did not file liens because of a desire to help small contractors who otherwise would not have been paid. No figures were available to support that latter claim, however, and it is not considered to be probative of any issue. It is found, however, that Respondent paid Neeley-Built the amount of $4,995.78 and the claim of lien form included within Petitioner's exhibit of filed liens refers to property other than that in issue here. In addition, the $10,750.00 lien of Energy Savings Systems is not totally attributable to services or materials for the instant project. It is estimated that 60 percent of that amount relates to work done outside the three contracts in issue here. Further, only $1,700.00 of the lien of Residential Building Supply relates to material provided for the work done by Respondent under these contracts. The balance relates to work done outside the original contract limits. Over the course of the contracts, EIP paid Respondent, in addition to a deposit of $25,786,99 for Bldgs. A & H, the sums below, for a total of $259,006.72 for Bldgs. A, B, & H: a. Aug. 31, 1988 $19,800.00 for Bldg. A b. Aug. 31, 1988 9,505.00 for Bldg. H c. Oct. 05, 1988 10,793.16 for Bldg. H & A d. Oct. 17, 1988 29,305.99 for Bldg. A & H e. Dec. 14, 1988 19,000.00 f. Dec. 29, 1988 49,417.06 g. Feb. 06, 1989 7,296.00 for Bldg. A h. Feb. 06, 1989 28,310.00 for Bldg. B i. Feb. 06, 1989 9,473.50 for Bldg. H j. Feb. 10, 1989 2,350.00 for misc. k. Feb. 15, 1989 20,000.00 l. Mar. 03, 1989 28,031.00 for Bldg. B In addition to those payments, EIP also paid $16,000.00 to Benson Drywall on December 12, 1988 at the request of Respondent. The total paid by EIP, either to or on behalf of the Respondent, was: $ 25,786.00 deposit 233,280.72 to Great Southern 16,000.00 Benson Drywall 36,228.68 Ludwig Steel $311,295.40 TOTAL Mr. Crowley was not the main source of corporate funds. The President of the company is a Mr. Nelson who was the "money man." Contractor selection was by agreement between Nelson and Crowley, but Crowley was the supervisor of the contracts and did most of the negotiating with Respondent. The work stipulated in the contracts between EIP and Respondent was not the only work called for in their relationship. The contracts provided for the basic construction but Mr. Crowley requested Respondent to perform additional work in or around buildings A, B, and H, which included: Tenant improvements in buildings A and B valued at $23,000 excluding labor; Additional site work including electrical, telephone, grading and filling, berm modification, concrete sidewalks and parking buffers, and repair of damaged concrete (all but the repair of concrete was the result of the failure of the original site preparation contractor to properly complete his work); Negotiations and discussions with Volusia County regarding the sewer/septic system necessary for the project. In addition to the $23,000.00 for tenant improvements mentioned in the paragraph next above, Respondent also paid out of pocket to the following contractors and suppliers for work outside the scope of the original contracts: a. Ludwig Metal Buildings $ 3,000.00 b. Concrete 3,840.00 c. John Bates & family 6,497.73 d. Four Seasons 1,190.00 e. Will Cox 975.00 f. Riley 3,100.00 All Star Electric 4,705.32 Jerry's Concrete Service 1,350.00 TOTAL $24,658.05 Though the contracts referenced in this proceeding pertain to construction of Buildings A, B, & H, Respondent was also retained to erect a metal building to be designated C. Respondent received a total of $253,000.00 from EIP to construct those buildings for which he had the initial contracts and also to put up the metal building, C. The cost to complete Building C was $45,500.00 but EIP had remaining only slightly over $6,000.00 to pay for that work. Respondent did substantial work for EIP which was over and above the services called for under the contracts for Buildings A, B, & H as amended by the change orders for which he was not paid because Mr. Crowley advised him no additional monies were available. For example, he and his brother, Thomas, did additional site work valued by him at $24,260.00; and additional labor and services on the septic and sewer system problems valued by him at $5,600.00 and for tenant improvement, valued by him at $5,000.00. Here, however, it must be noted that the figures cited are not documented by any supporting material and contain significant amounts for his labor which he priced at $90.00 per hour. Mr. Miller, during his relationship with EIP, purchased a 10 percent interest in the firm. He originally filed his own lien on the property for $80,364.00 based on the contracts he had in hand and the site work which he valued at $18,000.00. He claims he subsequently withdrew his lien without being paid so that the limited funds available could be used to pay the subcontractors. No corroborating evidence on this point was introduced, however. Mr. Miller's contracting license was, subsequent to the incidents herein, placed in inactive status and currently remains so. He is not now engaged in contracting and claims he does not intend to do so in the future. His motivation in contesting the allegations against him is, he claims, solely to clear his good name and reputation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED THAT the Respondent, David P. Miller, d/b/a Great Southern Construction and Development, Inc. pay an administrative fine of $3,750.00 and be reprimanded. RECOMMENDED this 9th day of November, 1993, in 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 9th day of November, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-7413 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. & 2. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. & 6. Accepted and incorporated herein. 7. - 14. Accepted and incorporated herein. 15. - 17. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. & 21. Accepted and incorporated herein. 22. - 24. Accepted and incorporated herein. 25. & 26. Accepted. FOR THE RESPONDENT: Accepted and incorporated herein. & 3. Accepted and incorporated herein. Rejected as the total amount paid by EIP for the buildings constructed by Respondent. The figure is somewhat higher due to deposit and amounts paid to suppliers by EIP. Accepted and incorporated herein. * At this point, Respondent's proposed Findings of Fact become misnumbered. There are two numbers 5. The subsequent numbers are as reflected in Respondent's submittal. 5. - 9. Accepted and incorporated herein. 10. - 12. Accepted and incorporated herein. 13. - 15. Accepted and incorporated herein. 16. Accepted. 17 & 18. Accepted. Alleged but not proven. Accepted. Rejected as contra to the weight of the evidence. Accepted and incorporated herein. COPIES FURNISHED: Tracy Sumner, Esquire William S. Cummins, Esquire Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kurt R. Borglum, Esquire 366 East Graves Avenue, Suite B Orange City, Florida 32763 Jack McRay General Counsel Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Daniel O'Brien Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of alleged violations of Chapter 489, Florida Statutes, set forth in an Administrative Complaint signed May 19, 1987. At the hearing the Respondent stipulated to several of the allegations in the Administrative Complaint. Thereafter, the Petitioner presented the testimony of four witnesses and offered five exhibits, all of which were received in evidence. The Respondent did not testify on her own behalf, but did present the testimony of one witness. The Respondent did not offer any exhibits in evidence. At the conclusion of the hearing the parties were given 20 days from the date of the filing of the transcript within which to file their proposed recommended orders. The transcript was filed on October 15, 1987, and the Petitioner thereafter filed a timely proposed recommended order containing proposed findings of fact and conclusions of law. As of the date of this recommended order, the Respondent has not filed a proposed recommended order nor any other document containing proposed findings of fact. Specific rulings on all proposed findings of fact submitted by the Petitioner are contained in the Appendix which is attached to and incorporated into this recommended order.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the sworn testimony of the witnesses at the hearing I make the following findings of fact. Stipulated findings At all times relevant hereto, the Respondent was licensed by the Construction Industry Licensing Board as a registered roofing contractor. At all times relevant hereto, the Respondent held license number RC 0060128 issued by said Board. The Respondent's address of record is in Jacksonville, Florida. The Respondent did, through the contracting business Respondent was then associated with and responsible for in her capacity as a licensed contractor, contract with Darryl Debow, hereinafter referred to as the "Customer," to perform certain contracting work for the Customer. The details of the contracted work were generally as follows. The contract was entered into on or about April of 1986. The contract price was $5,900.00. The job was located in St. Augustine, Florida. The job generally consisted of repairing the roof of the Customer's commercial buildings. After entering into the contract, the Respondent's contracting business began work on the job. The rest of the facts The Respondent's business began work on the job described above without obtaining a permit for said work from the local building department and without assuring that someone else had obtained a permit for the work. There was no permit posted on the job site when Respondent's business began the job. The Respondent did not ask the local building department to inspect the work done on the subject contract. The Respondent was not licensed as a roofing contractor in St. Johns County, Florida, at any time from the beginning of 1985 until the day of the hearing. At all times material to this case, the applicable building code required permits for roofing work.
Recommendation On the basis of all of the foregoing, it is recommended that the Construction Industry Licensing Board issue a final order in this case to the following effect: Dismissing the violations charged in subparagraphs (b) and (c), of paragraph 13 of the Administrative Complaint; Finding the Respondent guilty of the violations charged in subparagraphs (a) and (d) of paragraph 13 of the Administrative Complaint; and Imposing an administrative fine in the amount of five hundred dollars ($500.00) and placing the Respondent on probation for a period of one year. DONE AND ENTERED this 1st day of December, 1987, at Tallahassee, Florida. MICHAEL M. PARRISH, 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 1st day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2672 The following are my specific rulings on all proposed findings of fact submitted by the parties. Findings proposed by Petitioner: Paragraph 1: This paragraph is a proposed conclusion of law rather than a proposed finding. Paragraphs 2 through 7: Accepted. Paragraph 8: Accepted in part and rejected in part. Accepted that no inspection by the local building department was requested. Portion which states such inspections were required is rejected as not supported by clear and convincing evidence. Paragraph 9: Rejected as addressing matters which are not clearly placed in issue by the Administrative Complaint and which, in any event, are not supported by clear and convincing evidence. Paragraph 10: Rejected as not supported by clear and convincing evidence. Findings proposed by Respondent: The Respondent did not submit any proposed findings of fact. COPIES FURNISHED: Ms. Dorothy Homesley 35 Norde Drive, West Number 18 Jacksonville, Florida 32224 G. Vincent Soto, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mr. Tom Gallagher Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mr. Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
Findings Of Fact At all times pertinent to the allegations contained herein, Respondent was licensed by the State of Florida as a registered real estate broker under license #0001869, which was issued to him as a broker in care of American Heritage Realty, Inc., 102 East Leeland Heights Boulevard, Lehigh, Florida 33936. At all times pertinent to the allegations contained herein, Respondent owned American Heritage Builders, Inc. (AHB). Rudolph L. Ferster, a certified contractor, served as vice-president in charge of construction for American Heritage Builders, Inc., from August 1978 until October 13, 1984. As a licensed contractor, he qualified American Heritage Builders as a residential contractor in the State of Florida. During the time he was with AHB, he supervised the construction of nearly 100 houses for the company. Most of these houses were one of four basic models. When Mr. Ferster left his association with AHB, another contractor, Warren Fuller, had been hired by Respondent to work with the company. He does not know whether Mr. Fuller ever qualified AHB or not. On January 23, 1983, employees of the Respondent entered into a contract with William D. Thomas for the construction and purchase of a lot and house to be constructed thereon by AHB. Contract price was $30,737 for the entire package and Mr. Thomas put down a $4,000 deposit. The balance of $26,737 was to be paid at the start of construction which, in the contract, was stated to be April 15, 1983. The Administrative Complaint alleges that Respondent delayed construction of the Thomas property for over two years and then abandoned it, causing a $6,000 plus loss to Mr. Thomas. The Thomas property was contracted initially to be a shell home. Mr. Thomas was going to do much of the work himself. When Respondent could no longer do the work due to the lack of licensure status, Mr. Thomas contracted with Fred D. Elliott, a certified residential contractor to complete the property which at the time was 50 percent done. Respondent took Mr. Elliott to Mr. Thomas with whom Elliott made an agreement directly. At that time, Mr. Thomas still owed approximately $8,000 on the work agreed upon in the original contract. The additional $6,000 alleged in the Administrative Complaint was for work agreed upon by Mr. Thomas over and above that called for in the initial contract and was in no way connected to the work left undone by Respondent. On January 30, 1984, employees of the Respondent entered into a similar contract with Clarence and Lillian Tap for the construction and purchase of a house and lot in Lehigh Acres to be built by AHB. Mr. Tap intended to pay cash for his purchase and agreed to the construction of a residence on a particular lot which had been shown to him by Respondent's employees. Several days after signing the contract, however, Respondent's employees telephoned him telling him that though the lot he had selected was not available, he could have the lot next door. Since the lot he had selected was a corner lot and the lot subsequently offered was an interior lot, he rejected this offer and Respondent's employees offered to show him other lots with the caveat that if the new lot he selected was more expensive than the original, he would have to pay the difference. Mr. Tap agreed and selected a new lot for an additional cost of $2,500. The original contract was for a total purchase price of $34,995 with $18,250 to be paid down at start of construction on March 1, 1984, and three additional payments to be made periodically at various stages of construction. When the new lot was decided upon, however, a new contract was drawn up and signed by the parties which reflected the new purchase price. It also called for Mr. Tap to apply for a mortgage in the amount of $8,500 with appropriate adjustments to other cash payments. At the time, Mr. Tap was not sure he would be able to make the total cash payment called for since his prior owned mobile home had not yet sold. Because of this development regarding the application for mortgage, Respondent included this parcel in the security given for his half million dollar line of credit with Florida Federal Savings and Loan. As Mr. Tap was not going to make the total cash payment, Respondent would need to secure a fund draw from Florida Federal in order to complete construction. This created a substantial problem not only for Respondent, but for Tap as well. The Taps did not have to take out a mortgage after all, but were able to pay cash for the entire property when it was completed. However, because of financial difficulties that had come up between Respondent and Financial Federal by that time, the lending institution was unwilling to release the Tap property from its security agreement even though Respondent was willing to pay the entire amount due on that property. When the Taps could get no satisfaction from Respondent, they hired an attorney who got him to sign a warranty deed in favor of the Taps, transferring title to the property in question. At the time, Respondent and the Taps' attorney both knew that there was still a security interest in the property in the hands of Florida Federal but Respondent was of the opinion, based on conversations and correspondence he had with the institution, that they were going to release the Tap property. As a result, he signed the warranty deed and advised the Taps at the time that they should receive their copy of the deed within four to six weeks. This time was supposedly sufficient to allow payment of the outstanding obligation to Florida Federal and Florida Federal's recordation of the deed from AHB to the Taps. However, Florida Federal refused to release the Taps' property and has subsequently initiated foreclosure action against it to recover the $30,400 they claim to be due and owing on that section of the line of credit. Mr. Tap has offered to pay the entire $30,400 to Florida Federal in addition to the full amount of the contract price he has already paid to Respondent, but Florida Federal refuses to accept any partial payment. Instead, it insists upon satisfaction of the entire line of credit which now is approximately $200,000. On April 17, 1984, employees of the Respondent entered into a contract with Davis and Reba Williamson as purchasers of a new house to be constructed by AHB on a lot already owned by the Williamsons which they had purchased separately from the Lehigh Corporation for $8,000. Mr. Williamson paid AHB approximately $12,000 down payment on a home to cost $34,245. The house was not completed until October 1985, at which time the Williamsons took possession. They noticed that mechanics' liens had been placed on the property but these were satisfied by the Respondent with funds coming from Financial Federal prior to the Williamsons taking possession. It would appear that the liens were the result of the failure of the actual building contractor, Mr. Price, of New Homes of Lee County, to pay suppliers and subcontractors. When Mr. Williamson looked at the permit posted outside the construction, he first learned AHB was not actually doing the construction. Prior to that time, though Respondent, Mr. Anglickis had not so represented, Williamson had assumed AHB was the actual constructor. When Mr. Williamson spoke with Mr. Price about the liens, he was advised that the construction had stopped because Respondent owed Price money. Respondent denies this and there is no evidence presented by either side to establish the truth of that allegation. The house was subsequently completed by Mr. Williamson acting as his own contractor and hiring subcontractors to do the actual work through the assistance of Mr. Ohlhausen, the DPR investigator, to whom he had complained previously. The materialmen and subcontractors were paid by Mr. Anglickis who issued funds from the construction loan. No additional funds were required of Mr. Williamson. Respondent did not do the final construction to complete the property because, not being a licensed contractor, he could not lawfully do so. On July 26, 1984, the employees of the Respondent entered into a contract with Samuel J. and Dorothy Sapp to construct a house on a lot already owned by the Sapps for a total price of $56,347. The contract called for the Sapps to apply for a mortgage in the amount of $36,000. To facilitate the transaction, the Sapps conveyed the lot they owned to AHB. Respondent admits the home was not built even though the lot was conveyed and Mr. Sapp paid in a deposit of $21,324. When the property was not constructed, Respondent reimbursed Mr. Sapp in the amount of $20,000 which constituted his deposit minus certain expenses incurred for such things as survey fee, attorney fee, mortgage fees and the like. Respondent claims that prior to 1978 when Mr. Ferster came on board, there had always been a licensed contractor to qualify AHB. Initially, upon first purchasing the business, Respondent used all licensed contractors who had worked for the corporation when it was owned by Lehigh Corporation. Respondent assumed that the contractors he utilized were doing the same thing for him as the owner of the corporation in order to keep matters legal as they had done when the corporation was owned by Lehigh Corporation, and for many years this was the case. Mr. Ferster maintained AHB as a qualified contractor until he left in 1984. It was at point that the new contractors utilized by Respondent, Mr. Price in particular, failed to qualify the corporation with their licenses. However, Respondent contends, and the evidence seems to establish, that at no time did Respondent ever represent himself as a licensed contractor to the buyer of the homes in question here. In fact, he did not even speak with them until well after the contracts were signed by the purchasers and his signature appearing thereon in each case is an ex post facto action on his part. The problems which confront Respondent herein deal with his relationship with Florida Federal with whom he had established a half million dollar line of credit. Just about the time these current houses were coming up for construction, Respondent's relationship with Florida Federal deteriorated. It well may be that his financial arrangements with the institution were less than satisfactory. Evidence of this was not forthcoming from either party. However, it has been shown that each of the properties in question was made a part of the security for Respondent's line of credit which had fallen delinquent. Florida Federal indicated its intention to foreclose and, with few exceptions, took the position that the mortgage which it held on Respondent's properties did not provide for releases of individual parcels. Though this may have been the case, and the mortgage was not introduced, Respondent testified, and there is no reason to disbelieve him, that prior to the time in question, as a practice, Florida Federal did release individual parcels upon payment of the amount represented as the construction loan in each case. Respondent assumed that this practice would continue but in the case of the Sapps' property, it did not. Respondent has, from the very beginning, made a good faith effort to secure the release of the Taps' property which should not have been made a portion of the security in the first place. The Williamson property was released and they acquired a clear title to it. When the Tap property was completed and ready for closing, Mr. Tap brought the $8,500 still outstanding with him to the closing. Florida Federal, however, would not accept this money because it was not the full payoff on Respondent's construction loan. While Respondent brought with him the amount he thought was due, the figure was wrong and Florida Federal would not accept the amount offered since both his amount and the $8,500 Tap payment still did not constitute the full amount due under the construction loan. Thereafter, Florida Federal would not accept the correct amount due on this particular property even though Respondent offered and had available to him sufficient funds to make the full payment. The $500,000 line of credit was not renewed by the Respondent at his own choice when it became time for the rollover. However, because there were still four homes still in work, Respondent offered to roll over a lesser amount, $161,000, which was agreed upon by Florida Federal by letter dated March 14, 1985. At the time of this letter, Mr. Tap's property had been completed three months previously and Respondent had given Tap a warranty deed. Respondent asked Florida Federal on an almost daily basis for the payoff on the Tap loan so that he could have that portion of the mortgagee released. However, he was never given it. At the time, Respondent was working with Florida Federal to get as many properties released as he could and though Florida Federal verbally agreed to work with Respondent, it appears he never got any cooperation. In fact, by letter dated April 3, 1985, Financial indicated that if the unpaid principal balance was not paid in full by April 13, 1985, foreclosure action would be initiated. When Respondent received this letter he immediately called Florida Federal. He was advised orally that he could have a second chance and that papers would be forwarded for him to sign, but he never received them. Instead, on April 18, 1985, he received a letter stating that he had failed to meet the terms and conditions of the previous offer and that it was rescinded. Respondent wrote back on April 24 protesting the decision and alleging a mistake. Nothing was done until July 17, almost three months later, when he was again advised in writing that the bank would consider a proposal from him. Respondent responded quickly and on August 27, received a reply from the bank apologizing for the failure to respond to his proposal and indicating that the matter was still open for negotiation. Nonetheless, Mr. Tap has still not been given the opportunity to pay off his property. Florida Federal refuses to accept any pay off for individual homes unless the entire line of credit is paid in full. During the period of these negotiations, Florida Federal accepted two other loans for Respondent's line of credit but has refused to advance any funds under these loans. One of these is the Sapp house. Florida Federal took the Sapp lot previously deeded to AHB as security for the line of credit and refuses to release it though no funds have been advanced for any construction on that lot. Respondent, in addition to reimbursing Mr. Sapp $20,000 of his deposit, has offered payment for the lot or an exchange of lots, but Mr. Sapp has declined. With regard to the Tap house, covered by a $30,400 construction loan, Respondent has offered Florida Federal $50,000 in cash to release this property but the institution refuses insisting that the full line of credit be paid off. Respondent contends that he has never received a complaint from Mr. Williamson or any of the other individuals listed in the Administrative Complaint. This is so found. Charles Matheny, assistant to the President of Lehigh Corporation, the developer of Lehigh Acres, has known the Respondent for nearly 19 years, having first met him when Respondent worked for the corporation in advertising and promotion. Respondent left Lehigh Corporation at some point in the interim. When he did so, he purchased certain assets of the corporation which included the name American Heritage Builders, Inc., and the model site owned by the corporation. At that point, Respondent went in business for himself and started American Heritage Realty in order to market the property and homes he built. According to Mr. Matheny, Respondent was active in little league in years past though he had, at the time, no children of his own, and when doing so, was instrumental in molding the character of the children who played for him for the better. Respondent has also been active in the junior Chamber of Commerce and reportedly was President of the statewide organization. He has also been active in other community activities such as the local Chamber of Commerce and the Community Day Care Center. He is known to be quite charitable and devotes a considerable amount of time and money to charitable activities. As Mr. Matheny knows it, Respondent's reputation for truth and honesty in the community is good. He has never heard any reports to the contrary. Respondent was interviewed by Mr. Ohlhausen in 1984 in regard to a complaint filed by the Construction Industry Licensing Board relating to Respondent serving as a contractor without a license. When Ohlhausen advised Respondent he was operating in violation of the law, Respondent appeared not be to aware of this. When so advised, he immediately agreed to sign a cease and desist agreement and stopped all further construction activity. He cooperated fully with efforts of the Department to get the properties completed and in the hands of the owners.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is, therefore: RECOMMENDED that the Administrative Complaint against Respondent herein be dismissed. RECOMMENDED in Tallahassee, Leon County, Florida, this 20th day of April, 1988. ARNOLD H. POLL0CK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9765 Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 1988. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 87-2619 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. By the Petitioner 1 - 4. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as contra to the weight of the evidence. Accepted and incorporated herein. Rejected as contra to the weight of the evidence. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Irrelevant. By the Respondent Not a Finding of Fact. Not a Finding of Fact - more a comment on the pleadings. 3 - 4. Accepted and incorporated herein. 5a. Accepted and incorporated herein. 5b. Accepted and incorporated herein. 5c. Accepted and incorporated herein. 5d. Accepted and incorporated herein. 5e. Accepted and incorporated herein. 5f. Accepted and incorporated herein. 5g. Accepted and incorporated herein. 6. Accepted and incorporated herein. COPIES FURNISHED: James H. Gillis, Esquire DPR, Division of Real Estate Post Office Box 1900 Orlando, Florida 32801 Howard Anderson, Esquire Post Office Box 767384 Roswell, Georgia 30076-7384 Darlene F. Keller Acting Executive Director DPR, Division of Real Estate Post Office Box 1900 Orlando, Florida 32801 William Bilenky, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
