The Issue The Florida Construction Industry Licensing Board, Petitioner, seeks to revoke the registered contractor's license of Stephen J. Borovina, Respondent, based on allegations, which will be set forth in detail hereafter, that he engaged in conduct violative of Chapter 468, Florida Statutes. The issue presented is whether or not the Respondent aided or abetted and/or knowingly combined or conspired with Mr. Howard North, an uncertified or unregistered contractor, to evade the provisions of Chapter 468.112(2)(b), and (c), Florida Statutes, by allowing North to use his certificate of registration without having any active participation in the operations, management, or control of North's operations. Based on the testimony adduced during the hearing and the exhibits received into evidence, I make the following:
Findings Of Fact The Respondent is a certified general contractor who holds license no. CGC007016, which is current and active. On or about July 25, 1976, Mr. and Mrs. Julius Csobor entered into a contract with Mr. and Mrs. Howard North for the construction of a home in Martin County, Florida, for a total price of $35,990. Neither Mr. or Mrs. North are certified or registered contractors in the State of Florida. (Petitioner's Composite Exhibit #2). Respondent applied for and was issued a permit by the Martin County Building Department to construct a residence for the Csobors at the same address stipulated in the contract between the Csobors and the Norths, i.e., Northwest 16th Street, Palm Lake Park, Florida. (Petitioner's Composite Exhibit #1). Howard North, a licensed masonry contractor for approximately nine (9) years was contacted by the Csobors through a sales representative from a local real estate firm. It appears from the evidence that North had previously constructed a "spec" house which the local realtor had sold and thus put the Csobors in contact with Mr. North when they were shown the "spec" house built by North. Evidence reveals that North contacted Borovina who agreed to pull the permit "if he could get some work from the job and could supervise the project". Having reached an agreement on this point, North purchased the lot to build the home for the Csobors and he orally contracted with the Respondent to, among other things, pull the permit, supervise construction, layout the home and do trim and carpentry work. North paid Respondent approximately $200 to layout the home for the Csobors. By the time that North had poured the slab and erected the subfloor, the Csobors became dissatisfied with his (North's) work and demanded that he leave the project. According to North, Respondent checked the progress of construction periodically. Prior to this hearing, the Csobors had never dealt with Respondent in any manner whatsoever. According to Csobor, North held himself out as a reputable building contractor. A contractor is defined in relevant part as any person who, for compensation, undertakes to, or submits a bid to, or does himself or by others, construct, repair, etc. . . . real estate for others. . . Chapter 468.102(1), Florida Statutes. Applying this definition to the facts herein, it appears that the Respondent, at least in a literal sense, satisfied the requirements and obligations of a contractor, as defined in Chapter 468.102, Florida Statutes. Thus, he contracted with North to oversee and/or supervise the project for the Csobors which he fulfilled, according to the testimony of North. Said testimony was not refuted and thus I find that no effort was made by Respondent to evade any provision of Chapter 468, Florida Statutes. Accordingly, I shall recommend that the complaint filed herein be dismissed in its entirety.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the complaint filed herein be dismissed in its entirety. RECOMMENDED this 4th day of November, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry S. Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 Stephen J. Borovina 2347 Southeast Monroe Street Stuart, Florida 33494 J. Hoskinson, Jr. Chief Investigator Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. DIVISION OF ADMINISTRATIVE HEARINGS, DOCKET NO. 77-1442 STEPHEN J. BOROVINA, CG C007016, 2347 S. E. Monroe Street, Stuart, Florida 33494, Respondent. / This cause came before the FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD at its regular meeting on February 10, 1978. Respondent was sent the Hearing Officer's findings and recommendations and was given at least 10 days to submit written exceptions to the recommended order. Respondent was notified of the meeting so that respondent or counsel might appear before the Board. Respondent did not appear The FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD on February 10, 1978, after reviewing a complete transcript of the Administrative Hearing, by motion duly made and seconded voted to revoke the certified general contractor's license of STEPHEN J. BOROVINA. It is therefore, ORDERED that the certification of respondent STEPHEN J. BOROVINA, Number CG C007016, be and is hereby revoked. Respondent is hereby notified that he has 30 days after the date of this final order to appeal pursuant to Chapter 120, Florida Statutes, and the Florida Appellate Rules. DATED this 13th day of February, 1978. FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD BY: JOHN HENRY JONES, President ================================================================= SECOND AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD STEPHEN J. BOROVINA, CG C007016, Respondent/Appellant, vs. DIVISION OF ADMINISTRATIVE HEARINGS, DOCKET NO. 77-1442 FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner/Appellee. / This cause came before the Florida Construction Industry Licensing Board at its regular meeting on August 3, 1979. The respondent was sent the Hearing Officer's findings and recommendations and was given at least 10 days to submit written exceptions to the recommended order. Respondent was notified of the meeting so that respondent or counsel might appear before the Board. Respondent did appear. The Florida Construction Industry Licensing Board, on August 3, 1979, after reviewing a complete transcript of the Administrative Hearing, by motion duly made and seconded, voted to revoke the certified general contractor's license of Stephen J. Borovina, No. CG C007016. On February 13, 1978, the certification of respondent, Stephen J. Borovina, No. CG C007016, was revoked by order of the Florida Construction Industry Licensing Board. On April 25, 1979, the District Court of Appeal of the State of Florida, Fourth District, in Case Number: 78-527, reversed the final order of the Florida Construction Industry Licensing Board. That Court remanded the above captioned case to the Board to further consider the matter and enter such order as it may be advised in conformity with Section 120.57(1)(b)(9), Florida Statutes (1977). In accordance with the decision of the Florida District Court of Appeal, Fourth District, the Board has reconsidered the above captioned matter and finds as follows: The Board rejects the recommended order as the agency's final order. The Board adopts the first paragraph of the hearing officer's finding of fact. The Board, however, rejects the findings of fact found in the second paragraph of the hearing officer's findings. The second paragraph states as follows: A contractor is defined in relevent(sic) part as any person who, for compensation, undertakes to, or submits a bid to, or does himself or by others, construct, repair, etc. real estate for others...Chapter 468.102(1), Florida Statutes. Applying this definition to the facts herein, it appears that the Respondent, at least in a literal sense, satisfied the requirements and obligations of a contractor, as defined in Chapter 468.102, Florida Statutes. Thus, he contracted with North to oversee and/or supervise the project for the Csobors which he fulfilled, according to the testimony of North. Said testimony was not refuted and thus I find that no effort was made by Respondent to evade any provision of Chapter 468, Florida Statutes. Accordingly, I shall recommend that the complaint filed herein be dismissed in its entirety. The findings of fact found in the above-quoted paragraph were not based upon competent substantial evidence. The competent substantial evidence supports a finding that the respondent, Stephen J. Borovina, did not supervise the project and that Borovina evaded the provisions of Chapter 468, Florida Statutes. The following evidence supports the Board's position: There was no written agreement entered into between Howard North and the respondent which indicated that the respondent was to supervise the construction of the Csobors' house (T- 14); It was conceded at the hearing that the only subcontractors or draftmen who worked on the Csobors' house were contracted solely by Howard North and they had no contract whatsoever with the respondent (T-19, 25); The respondent never advised or informed Mr. and Mrs. Csobor that he was the contractor on the job. (T-51); At all times during the act of construction of the house, Mr. and Mrs. Csobor were under the impression that Howard North was the contractor (T-44-51). It is, therefore, ORDERED: That the certification of respondent, Stephen J. Borovina, Number CG 0007016, be and is hereby revoked. Respondent is hereby notified that he has thirty (30) days after the date of the Final Order to appeal pursuant to Chapter 120, Florida Statutes, and the Florida Appellate Rules. Dated this 3rd day of August, 1979. FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD BY: JOHN HENRY JONES, President
The Issue Whether the certified general contractor's license of W. Bert Jones should be revoked.
Findings Of Fact By an Administrative Complaint filed October 27, 1976, the Florida Construction Industry Licensing Board sought to revoke the general contractor's license of W. Bert Jones alleging that the Respondent contractor entered into a contract with Mrs. Barbara Loewe to renovate her home and to add a room onto the back of the house; that the Respondent contractor was paid in full the contract price but the job was not completed and there were numerous building code violations. Respondent requested an administrative hearing. Pursuant to written agreements entered into between the Respondent and Mrs. Barbara Loewe of Tampa, Florida, Respondent agreed to renovate Mrs. Loewe's home and to add a room onto the back of the house. Mrs. Loewe, either by paying the Respondent directly or paying material suppliers, paid the full contract price. In June or July of 1975 the Respondent left the job contracted for partially or wholly incompleted as follows: the ceiling of the kitchen and drywall were in complete and the kitchen was not painted; the guest bathroom was not trimmed; two back rooms were incomplete. Inasmuch as the ceiling was left undone, it was not trimmed, the drywall was incomplete, the doorways were left uninstalled, and the paneling was incomplete; the bathroom had no toilet, no sink and no trim on the tub; in the master bedroom the ceiling was left sagging, there was no insulation in ceiling or walls, the door was untrimmed, siding was left partially undone and the windows weren't trimmed; holes were left unrepaired around the pipes in the home. The sum of Five Thousand Dollars ($5,000) was paid by St. Paul Fire and Marine Insurance Company in full settlement of the claims arising under the general contractor's bond. Additional money, approximately Thirty-Five Hundred Dollars ($3,500), was spent by Mrs. Loewe in addition to the Five Thousand Dollars ($5,000.00) received from the bonding company in order to complete the jobs contracted for. Although there were minimum changes In the job as originally contracted for, work is still going on to complete the original work contracted for by the Respondent. The building inspector for the City of Tampa Building Bureau, Tom Burgoyme, inspected the job site on several occasions during the progress on the work contracted for between Mrs. Loewe and the Respondent. He found building code violations and submitted a list of corrections to the Respondent, Mr. Jones, which were not remedied. A number of problems arose during the construction work, some of which was not the fault of the Respondent. Another contractor was involved in the work on the project. Funds in excess of the purchase price were paid to the Respondent and funds in excess of Eighty-Five Hundred Dollars ($8,500) were needed or will be needed to complete the project.
Recommendation Revoke the general contractor's license of Respondent, Number C GC007323. DONE and ORDERED this 7th day of April, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211 Barry Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 W. Bert Jones 2300 Greenlawn Street Brandon, Florida 33511
Findings Of Fact At all times pertinent to these proceedings, Hamilton held registered residential contractors license number RR0015037. Hamilton agreed to construct a house in Clearmont, Florida, with a completion date no later than May 1, 1977, for Robert J. and Margaret M. Phlepsen. The construction price was $75,000.00. After construction of the house it was discovered that there existed two violations of the Southern Building Code. First, the "step-down" from the kitchen to the garage was an eleven inch riser contrary to the code requirement that the height of a riser shall not exceed seven and three quarters inches. The second violation occurred through the use of 2 X 8 joists where the code would require 2 X 10 joists. The extra high riser between the kitchen and the garage was apparently caused by an oversight. Hamilton merely failed to install an intermediate step at that location. The second violation occurred because the owner and Hamilton agreed to use the smaller joists in order to save money on the contract price. In neither case is there sufficient evidence to establish that Hamilton's violations were willful or deliberate as alleged in the Administrative Complaint. On June 6, 1978, the Lake County Board of Examiners suspended Hamilton's Lake County Certificate of Competency because of violations of building code requirements in the construction of Phlepsen's house.
The Issue The issue presented is whether Petitioner's application for licensure as a retail installment seller should be granted.
Findings Of Fact John K. Moyant is the president and secretary of Petitioner Lifestyle Builders, Inc. He has also been a licensed general contractor in the state of Florida since 1973. He was formerly licensed by the state of Florida as a real estate broker. In July of 1986, the Florida Department of Professional Regulation, Division of Real Estate, filed an Administrative Complaint against Moyant and others. Moyant subsequently decided that he would voluntarily surrender his real estate broker license rather than defend the administrative action filed against him. On November 12, 1987, he executed an Affidavit for the Voluntary Surrender of License for Revocation. That Affidavit read, in part, as follows: That in lieu of further investigation and prosecution of the pending complaint(s) and case(s) received and filed with the Department of Professional Regulation, I do hereby consent to and authorize the Florida Real Estate Commis- sion of the Department of Professional Regulation to issue a Final Order revoking any and all licenses and permits issued to or held by the undersigned. That effective date of the revocation shall be 11-12-87. That I will not apply for nor otherwise seek any real estate license or permit in the State of Florida for a period of not less than ten (10) years from the effective date of the revocation. * * * 8. That I waive any right to appeal or other- wise seek judicial review of the Final Order of revocation to be rendered. The Florida Real Estate Commission entered a Final Order on December 10, 1987, ordering that Moyant's license "be revoked, effective November 12, 1987." On May 16, 1994, Moyant completed, on behalf of Petitioner, an Application for Retail Installment Seller License. That application identified Moyant as one of the principals in the business in that he is the president and secretary and further listed Moyant as the corporation's resident agent. Question numbered three on that application reads as follows: 3. Has the applicant, any of the persons listed herein, or any person with power to direct the management or policies of the applicant had a license, registration, or the equivalent, to practice any profession or occupation revoked, suspended, or otherwise acted against? Moyant answered that question in the negative. Respondent received the application of Lifestyle Builders, Inc., on May 19, 1994. In reviewing that application, Respondent checked Moyant's name in the Department's computer system known as CREAMS. The computer check revealed that Moyant had been the subject of a Final Order of Revocation by the Florida Real Estate Commission. Respondent verified the accuracy of that information by obtaining from the Commission a copy of the Administrative Complaint, the Affidavit for the Voluntary Surrender of License for Revocation, and the Final Order. Based upon that information, Respondent advised Petitioner that its application was denied. Moyant's answer to question numbered three was a material misstatement of fact.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application for licensure as a retail installment seller. DONE and ENTERED this 27th day of April, 1995, at Tallahassee, Florida. 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 27th day of April, 1995. APPENDIX TO RECOMMENDED ORDER Petitioner's Proposed Recommended Order did not contain any clearly- identified proposed findings of fact. It is assumed that the un-numbered paragraphs contained in the section entitled "Preliminary Statement" are intended to be Petitioner's proposed findings of fact. Rulings on those un- numbered paragraphs are as follows: Petitioner's first through third un-numbered paragraphs in the Preliminary Statement portion of Petitioner's Proposed Recommended Order have been adopted in substance. Petitioner's fourth un-numbered paragraph in the Preliminary Statement portion of Petitioner's Proposed Recommended Order has been rejected as not being supported by the credible evidence in this cause. COPIES FURNISHED: Robert D. Lettman, Esquire 8010 North University Drive, Second Floor Tamarac, Florida 33321-2118 Tobi C. Pam, Esquire Department of Banking and Finance 201 West Broward Boulevard, Suite 302 Ft. Lauderdale, Florida 33301-1885 Honorable Robert F. Milligan Comptroller, State of Florida Department of Banking and Finance The Capitol, Plaza Level Tallahassee, FL 32399-0350 Harry Hooper, General Counsel Department of Banking and Finance The Capitol, Room 1302 Tallahassee, Florida 32399-0350
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint issued against him and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is now, and has been at all times material to the instant case, a licensed real estate broker in the State of Florida, holding license number BK-392077. He has held a Florida real estate license for approximately the past 20 years. At no time during this period has any disciplinary action been taken against him. Since July 13, 2000, Respondent has been the qualifying broker for Doctor's Choice Companies, Inc. (DCC), which he owns. DCC specializes in dental practice sales and purchases and related services. As the owner of DCC, Respondent is responsible for its advertising. The DCC advertisements he has "published or caused to be published" include those listing dental practices for sale. Respondent's Exhibit B is a copy of a one-page DCC advertisement that Respondent had published in the November 2006 edition of Today's FDA, a journal of the Florida Dental Association.2 At the top of advertisement appeared the following: Doctors Choice Companies, Inc. Dental Practice Sales and Purchase "Over 100 Statewide Opportunities" "LOCAL AGENTS - EXPERT SERVICE" MAIN OFFICE (EAST COAST) - (561)746-2102 SOUTHEAST, FL - (954)257-3059 NORTH, FL - (407)310-4829 NAPLES/SARASOTA, FL - (954)830-3147 CENTRAL, FL - (407)291-9311 WESTCOAST, FL - (727)323-3589 DADE/KEYS, FL - (305)904-1682 This was followed by twelve photographs of twelve different individuals: Respondent, Dr. Tony Cruz, Morcie Smith, Dr. Pyser, Mary Ann Serkin, Dr. Marshall Berger, Mary Lou Johnson, Curtis Johnson, Dr. Jack Saxonhouse, Dr. James Vandenberghe, John Lytle, and Sandy Harris. The photographs were arranged in three rows of four across. Directly under each photograph was the name of the person depicted; his or her title or function (in Respondent's case, "Lic. Real Estate Broker" and "President"; in Dr. Pyser's case, "Licensed Consultant"; in Ms. Harris' case, "Associate Placement"; and in the case of the others, "Licensed Agent"); and, except in Respondent's case, the geographic area he or she covered (in Dr. Cruz's, as well as Mr. Lytle's, case, "Dade County/Keys, FL" ; in Mr. Smith's, as well as Dr. Vandenberghe's, case, "West Coast, FL"; in Dr. Pyser's case, "Naples/Sarasota, FL"; in Ms. Serkin's case, "North, FL"; in Dr. Berger's case, "Southeast, FL"; in Ms. Johnson's, as well as Mr. Johnson's, case, "Central, FL"; in Dr. Saxonhouse's case, "Palm Beach County"; and, in Ms. Harris' case, "Statewide"). The following text was at the bottom of this one-page advertisement: FOR INFORMATION ON OPPORTUNITIES - CALL OR VISIT OUR WEBSITE www.doctorschoice1.net -Practice Sales and Purchases -Pre-Retirement Strategy -Practice Appraisals -Associate Placement (Buy-In's) -Commercial Property Sales/Leasing -Investment Real Estate To the immediate right of this text were five telephone numbers ((727)254-9707, (561)746-2102, (407)257-9841, (305)904-1682, and (954)257-3059). To the right of these telephone numbers was the DCC logo. Dr. Jerry Pyser is a licensed dentist with whom Respondent has had a 15 to 20-year business relationship. Dr. Pyser does not now, nor did he at any time material to the instant case, hold a Florida real estate license of any kind. At no time material to the instant case did Respondent believe that Dr. Pyser held such a license. Gregory Auerbach is a Florida-licensed real estate sales associate. He and his father, Stuart Auerbach, are associated with Professional Transitions, Inc. (PTI), which is a competitor of DCC's. There is "bad blood" between Respondent and Stuart Auerbach and their respective companies. In November 2006, Gregory Auerbach represented PTI at a meeting of dental professionals held in Gainesville, Florida. DCC was also represented at the meeting. On a table at the meeting site, Mr. Auerbach observed Respondent's Exhibit B, along with the second page of another DCC promotional document (Petitioner's Exhibit A2), which contained various dental practice listings. At the top of Petitioner's Exhibit A2 was a Gainesville listing, followed by a St. Augustine listing. The remaining listings were grouped under the following headings: "DADE COUNTY- Call Dr. Tony Cruz- (305)904-1682/Kenny Jones- (561)746-2102"; "WEST COAST- Morcie Smith- (727)254- 9707/Dr. Jerry Pyser- Naples to Sarasota (954)830-3147"; and "SPECIALTY- Call Kenny Jones (561)746-2102." Beneath these three categories of listings was the following: ASSOCIATE PLACEMENT OPPORTUNITIES - POSITIONS AVAILABLE NOW!! Need a Job or Need an Associate. Call Sandy Harris (561)746-2102 or Go to our website at www.doctorschoice1.net and click on the Dental Associate Placement Link. PLUMBED (BUILTOUT) SETUP SPACE'S [SIC] - Call for Statewide Locations! Email: Info@doctorschoice1.net Website: www.doctorschoice1.net We Buy - Sell - Lease Medical - Dental - Veterinary Properties Last Revised: 11/6/2006 Page 2[3] Respondent's Exhibit B and Petitioner's Exhibit A2, particularly when read together, were misleading in that they conveyed the impression that Dr. Pyser was licensed to engage in activities relating to the sale and purchase of dental practices in Florida (as a point of contact), when, in fact, as Respondent was aware, Dr. Pyser had no such license. Prospective purchasers reading these "flyers" would have been reasonable, but in error, in believing that, if they were to contact Dr. Pyser, they would be dealing with a person possessing a Florida real estate license. Mr. Auerbach picked up these two DCC "flyers" (Respondent's Exhibit B and Petitioner's Exhibit A2) from the table on which they were laying and took them with him when he left the meeting.4 He subsequently sent them, along with four pages from DCC's public website that he had printed (Petitioner's Exhibit A3-6),5 to Petitioner. The matter was investigated by Dawn Luchik, one of Petitioner's investigators. Ms. Luchik spent 11 hours (at a Petitioner-assigned hourly rate of $33.00) conducting her investigation.6 Following the completion of Ms. Luchik's investigation, Petitioner issued the Administrative Complaint against Respondent described above.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Commission issue a Final Order dismissing Count I of the Administrative Complaint; finding Respondent guilty of the violations alleged in Count II of the Administrative Complaint; fining him $1,000.00 for committing these violations; and ordering him to pay Petitioner's reasonable costs incurred in investigating these violations. DONE AND ENTERED this 14th day of February, 2008, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 14th day of February, 2008.
Findings Of Fact At all times material hereto, Respondent, William Losciale, was a licensed registered pool contractor in the State of Florida, having been issued license number RP-0032951, by the State of Florida, and was the qualifier of Lynn Pools. On June 9, 1987, Respondent entered into a contract with Kevin D. Foy for the construction of a pool with a screen enclosure on Mr. Foy's property for the sum of $12,000.00. On August 12, 1987, Mr. Foy made his final payment to the Respondent for the pool and enclosure and all related work. On June 9, 1987, Respondent entered into a contract with Harold Orcutt for the construction of a pool with a screen enclosure on Mr. Orcutt's property for the sum of $18,015.00. On August 1, 1987, Mr. Orcutt made his final payment to the Respondent for the pool and enclosure and all related work. On May 12, 1987, Respondent entered into a contract with Ann McAuley for the construction of a pool with a screen enclosure on Ms. McAuley's property for the sum of $14,204.08. On September 18, 1987, Ms. McAuley made her final payment to the Respondent for the pool and enclosure and all related work. At the end of September, 1987, the Respondent entered into an oral contract with Paragon Aluminum Products, Inc. to have Paragon Aluminum Products, Inc., install the pool enclosure at the Foy residence, pursuance to the Respondent's contract with the Foys. The total Paragon contract price was $3,975.00 which was to be paid by the Respondent to Paragon within two weeks of October 6, 1987, which was the completion date. The Respondent failed to pay that amount in a timely manner. On or about July 16, 1987, the Respondent entered into an oral contract with Paragon Aluminum Products, Inc. to have Paragon Aluminum Products, Inc., install the pool enclosure at the Orcutt residence pursuant to the Respondent's contract with the Orcutts. The total Paragon contract price was $4,910.00, which was to be paid by the Respondent to Paragon within two weeks of the first part of August, 1987, which was the completion date. The Respondent made a partial payment on August 17, 1987, of $3,015.00 and the balance of $895.00 was not paid in a timely manner. On or about July 20, 1987, the Respondent entered into an oral contract with Paragon Aluminum Products, Inc. to have Paragon Aluminum Products, Inc., install a pool enclosure at the McAuley residence pursuant to the Respondent's contract with Ms. McAuley. The total Paragon contract price was $4,321.00 which was to be paid by the Respondent to Paragon within two weeks of August 5, 1987, which was the completion date. The Respondent made a partial payment on September 12, 1987, of $2,704.08 which left a balance of $1,616.92 which was not paid in a timely manner. When the Respondent failed to timely pay Paragon Aluminum Products, Inc., at the end of the foregoing jobs, an officer of Paragon contacted the Citrus County Building Department in an effort to have that department aid her in collection of the monies owed. The Respondent admitted to an investigator of the Department of Professional Regulation on June 7, 1988, that he was having cash problems in relation to the three jobs, that all work had been completed, but due to those cash flow problems, Paragon had not been paid in full. The Respondent signed a personal promissory note for the full amount due to Paragon. No liens were ever filed by Paragon. The Respondent's county license was suspended the Citrus County Licensing Board on May 11, 1988, until he was able to show financial responsibility to that board. That suspension was lifted by the Citrus County Licensing Board on October 12, 1988. Respondent has previously been disciplined by the Florida Construction Industry Licensing Board.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Construction Industry Licensing Board, enter a Final Order and therein penalize the Respondent, William Losciale, as follows: Assess a fine of $1500 for the violation of Section 489.129(1)(i) Dismiss the remaining charges made in the Administrative Complaint. DONE and ENTERED this 19th day of October, 1989, in Tallahassee, Florida. DIANE K. KIESLING 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 19th day of October, 1989.
Findings Of Fact Respondent, Brian H. Morgenstern, holds and at all times material hereto held, Florida Real Estate Salesman's License No. 0320190. From February 4, 1983 to December 2, 1983, Respondent was licensed as a real estate salesman in the employ of E & I Realty, Inc. Mr. Ira Messinger was the qualifying broker for E & I Realty, Inc. On July 12, 1983, Respondent, purporting to act on behalf of E & I Realty, Inc., solicited and obtained a two-year lease agreement between Craig Brass, lessor, and James Joss, lessee, for condominium unit No. 705, Towers of Oceanview, 400 Leslie Drive, Hallandale, Florida. Pursuant to the express terms of the lease agreement, the lessee agreed to pay a monthly rental of $450.00 for the first year, and a monthly rental of $475.00 for the second year. In consideration for securing the lease agreement, Dr. Brass agreed to pay a broker's fee of $925.00, representing one month's rent for the first and second year of the term. Respondent delivered an E & I Realty receipt to Dr. Brass evidencing the receipt of the first month's rent, the last month's rent, and a security deposit, for a total sum of $1,375.00. From this $1,375.00 the receipt evidenced a deduction of $925.00 as a broker's fee, and delivery of the balance of $450.00 to Dr. Brass. There is disagreement between the parties whether the Respondent actually received $1,375.00 from Mr. Joss. Respondent insists that Mr. Joss, an acquaintance, could only raise $450.00 so be and Mr. Messinger "agreed" to forego receipt of the broker's fee of $925.00 and, in effect, loan such sum to Mr. Joss. There is, however, no promissory note or other memoranda to commemorate such an agreement. Mr. Messinger insists that his office made no such agreement, that he had no knowledge of the transaction, and that no monies were ever received by his office. Dr. Brass testified to a conversation on a speaker phone between Mr. Joss and the Respondent wherein the Respondent admitted receiving the funds. Further, Kenneth Rehm, an investigator for the Department of Professional Regulation, personally interviewed Respondent and the Respondent admitted he had collected the full $1,375.00 and that be had retained $925.00 as a broker's fee. Respondent further insists that his version of the incident is given credence by the commission structure he had with Mr. Messinger. Under their agreement, Respondent was to receive 90 percent of any commission earned on business he produced. Therefore, Respondent argues, it would be "foolish" for him to risk his license for $92.50 (10 percent of the $925.00 commission). While Respondent's argument appears at first blush to have merit, the value of money is relative. On February 23, 1984, Respondent entered into a written agreement with Dr. Brass to pay him $350.00 within 17 days in consideration of which Dr. Brass would not file any complaints with anyone, including the Department of Professional Regulation. Respondent did not have the funds necessary to pay Dr. Brass, and in point of fact has never paid Dr. Brass. If Respondent did not have $350.00 to circumvent these proceedings, then $92.00 may well have been of import to him. The clear and consistent testimony of Dr. Brass, Ira Messinger, and Kenneth Rehm, Respondent's conflicting statements and testimony together with his demeanor, render Respondent's testimony inherently improbable and unworthy of belief. Accordingly, the Hearing Officer finds that the Respondent did in fact receive $1,375.00 from Mr. Joss, that he delivered $450.00 to Dr. Brass, and retained $925.00 for his own use and benefit without the knowledge or consent of his registered broker.
The Issue Whether Respondent, a certified general contractor, is guilty of pulling permits for construction projects not supervised by Respondent, and, if so, the appropriate disciplinary action which should be taken by the Board.
Findings Of Fact At all times material hereto, Respondent was the holder of Certified General Contractor's License No. CG C005204 issued by the Board. Although this license was active at the time the Administrative Complaint was filed, Respondent has placed it on an inactive status until June 30, 1981. (Stipulation, Testimony of Respondent) As to Amiguet Construction Project During 1976, Jose Amiguet entered into a contract with San Pedro Construction Inc. for the construction of an addition to his existing residence located at 1409 Granada Boulevard, Coral Gables, Florida. (Stipulation, Petitioner's Exhibit 1) Since San Pedro Construction Inc. was not properly licensed as a building contractor, it was not qualified to apply for and obtain a Coral Gables building permit to undertake this residential addition. Therefore, on January 12, 1977, pursuant to an agreement with Jose San Pedro, representative of San Pedro Construction Inc., the Respondent applied and obtained the required Coral Gables building permit under his on name. (Stipulation, Testimony of Respondent, Charles Kozak, Petitioner's Exhibit 1) The Respondent did not participate in, manage, or supervise, in any manner, the construction of the Amiguet residential addition by San Pedro Construction Inc. Jose Amiguet neither knew the Respondent, nor had any dealings with him during the construction work. (Stipulation, Testimony of Respondent) Final inspection of the Amiguet construction project has not been conducted by the Coral Gables building inspection department since the required documentation concerning sidewalk improvements and subcontractors used has not yet been submitted. The actual construction work has, however, been completed, to the satisfaction of Jose Amiguet. (Testimony of Charles Kozak, Respondent) Respondent made an effort to assist Jose Amiguet in obtaining the final inspection and clearance by the city building inspection department. However, since Respondent did not supervise the subcontractors' work, he cannot truthfully complete the required documents. He has, therefore, offered to (1) pay for the additional costs associated with obtaining the necessary final inspection, and (2) transfer to Jose Amiguet the right to receive, after final inspection, the refund of the contractor's performance bond in the amount of approximately $400-$500. (Testimony of Respondent) As to the Shaw Construction Project During July, 1977, and on February 8, 1978, James L. Shaw entered into separate contracts with San Pedro Construction Inc. for the construction of residential improvements at 836 Obispo Avenue, Coral Gables, Florida. The final contract was in the amount of $16,700.00. (Stipulation, Testimony of Respondent, James L. Shaw, Petitioner's Exhibit 4) Since San Pedro Construction Inc. was an unlicensed contractor, Respondent, on November 15, 1977, pursuant to an agreement with that company, applied for and obtained the required Coral Gables building permit. (Stipulation, Testimony of Respondent, James L. Shaw, Petitioner's Exhibit 4) The Respondent did not participate in, manage, or supervise in any manner the construction of the Shaw residential improvements by San Pedro Construction Inc. James Shaw neither knew Respondent, nor had any dealings with him during the construction work. (Stipulation, Testimony of Respondent) On or about April, 1978, the lending institution for the Shaw project, and James Shaw stopped making construction payments to San Pedro Construction Inc., due to its failure to proceed on and abandonment of the project. (Testimony of James Shaw, Charles Kozak) On June 20, 1978, James Shaw obtained an "owner-builder" permit from the City of Coral Gables and incurred the following costs in order to complete the construction project as originally planned: $12,000 for labor and materials, and $625.00 for architectural services. Inasmuch as approximately, $10,128.00 had earlier been paid to San Pedro Construction Inc. for the construction project, the total cost of the project to James Shaw was approximately $22,753.00-$6,053.00 in excess of the original contract price. (Testimony of James Shaw and Respondent) San Pedro Construction Inc. is no longer in business, and the whereabouts of its owner, Jose San Pedro, is unknown. (Testimony of Respondent) As with the Amiguet construction project, final inspection of the Shaw project cannot be conducted until missing documentation relative to sidewalk improvements and subcontractors involved is supplied. In an effort to assist James Shaw, the Respondent has offered to transfer to Shaw the right to receive, after final inspection, the refund of the contractor's performance bond in the amount of approximately $400-$500. (Testimony of Charles Kozak and Respondent) At all times material hereto, the Respondent was aware that it was unlawful, under both state law and the Code of Metropolitan Dade County, to aide an unlicensed contractor in evading the contractor licensing law, and to use one's license to pull permits for projects not supervised by the licensee. (Stipulation, Testimony of Respondent, Petitioner's Exhibit 1) The Metro Dade Construction Trades Board heard the complaint against the Respondent and found prima facie evidence and probable cause to refer the matter to the Florida Construction Industry Licensing Board (Stipulation) Notwithstanding the evidence presented, the Administrative Complaint and the Board's counsel at hearing limited the amount sought for restitution purposes to $5,300.00, provided both the performance bonds are refunded to the benefit of Jose Amiguet and James Shaw. (Administrative Complaint, statement of Board's Counsel) Respondent regrets having taken the actions complained of in the Board's Administrative Complaint, and now more fully understands the resulting burdens which have been placed on Jose Amiguet and James Shaw. (Testimony of Respondent)
Recommendation Guilty, as charged. Respondent's certified general contractor's license should be suspended until such time as full restitution is made to the persons damaged by his actions.
The Issue Whether or not Respondent's registration as a real estate salesman should be revoked for violation of Section 475.25(2), F.S. The Hearing Officer explained to the Respondent the nature of the hearing and his rights under the Administrative Procedure Act, including the right to be represented by counsel at his own expense if he so desired. It was also explained to the Respondent that he could testify in his own behalf, that he is not required to do so, and that if he did so testify, he could be cross-examined by counsel for Petitioner. Respondent acknowledged understanding of these rights and elected not to testify in his own behalf.
Findings Of Fact 1. Counsel for Petitioner introduced into evidence Respondent's application for registration as a real estate salesman (Petitioner's Exhibit 1) and rested his case. No evidence was introduced in support of the allegation against the Respondent.
The Issue The issue is whether Respondent, a Florida-licensed yacht salesman, should be disciplined for violation of Rule 61B- 60.006(2), Florida Administrative Code, as alleged in the Administrative Complaint dated May 10, 2000.
Findings Of Fact At all times pertinent to the issues herein, DBPR, through its Division of Florida Land Sales, Condominiums and Mobile Homes (the Division) was the state agency in Florida responsible for the licensing and discipline of yacht salespersons and brokers in this state and the regulation of the yacht-brokering profession. Respondent, Justo Lamar (Lamar), has been licensed as a yacht salesperson since November 1976. Prior to this action, Lamar has never been the subject of disciplinary action arising out of the practice of his profession. This action was precipitated by a yacht owner, Juan A. Galan (Galan), who unsuccessfully attempted to sell his yacht to a client of Lamar's. In July 1998, Galan listed his yacht, the Caliente, for sale through Ardell Yacht and Ship Brokers (Ardell). The listing resulted in negotiations for the purchase of the Caliente by one Larry Griggs (Griggs), a prospective customer represented by Lamar. At all times relevant to this case, Lamar was acting as a sales agent for Allied Marine and its broker, Dwight Tracy (Tracy). As set forth in more detail below, the negotiations between Galan and Griggs took place over a three-month period from October 1998 through December 1998 with no meeting of the minds. On July 12, 1999, some seven months after negotiations between Griggs and Galan terminated, Galan lodged a complaint with DBPR. Although the complaint was ostensibly directed against salesman Lamar and broker Tracy, each and every allegation in the complaint was directed to the broker's conduct, not Lamar's. Galan, who did not testify at final hearing, alleged in his complaint that "Broker presented a contract representing that deposit had been received/deposited (upon acceptance). In fact, broker never deposited check and we wasted our time and money on survey/sea trial as buyer was not (at that time or any time later) financially capable of buying boat @ $1.75 million." Galan provided some, but by no means all, of the documents which revealed the details of the prolonged and ultimately unsuccessful negotiations between Galan and Griggs. In the narrative portion of his complaint, Galan asserted that he lost money on sea trials and implied, without actually stating, that the Caliente had been taken off the market during the pendency of negotiations with Griggs. For reasons which remain unclear, the Division did not focus its investigation on Tracy, who was the obvious target of Galan's complaint. Instead, it targeted Lamar, who was an obvious add-on target of Galan's ire. The exhibits reveal a complex series of offers and counteroffers and jockeying for negotiating advantage, not just between Galan and Griggs as prospective Seller and Buyer of the Caliente, but also between Lamar and the two brokers, all three of whom stood to profit if the transaction were consummated. Negotiations for the Caliente began in late October 1998. On October 30, 1998, Lamar's client Griggs, through a corporation he controlled, issued a $150,000 check for "Deposit, 72' (sic) Caliente Sportfisherman." This check accompanied a Brokerage Purchase and Sale Agreement dated October 29, 1998, offering to purchase the Caliente for $1,500,000. That same day, Galan's representatives faxed Lamar to advise that Griggs' offer was insufficient. Lamar forthwith provided the check to his broker, Tracy. Negotiations between Galan and Griggs continued in November. Galan chose to by-pass his own Broker and negotiate directly with Lamar over lunch on November 18, 1998. Lamar wrote Galan's demands on the back of a restaurant placemat. The primary sticking point was Galan's insistence on a "bottom line" of $1,665,000 to him, after all commissions and other expenses, if any, were paid. Griggs nevertheless persevered in his effort to buy the Caliente for $1,500,000. On November 24, 2000, Griggs executed another Brokerage Purchase and Sale Agreement in which he offered an entity called Majua, Inc., of which Galan was President, the opportunity to sell the Caliente to Griggs for $1,500,000. Galan signed the November 24 agreement, but added an addendum which materially changed the terms. The addendum unilaterally purported to raise the sales prices to Galan's previously stated "bottom line" of $1,665,000. Thanksgiving passed, and negotiations wore on. On December 4, 1998, Griggs executed a third Brokerage Purchase and Sale Agreement, raising his offer to $1,755,000. The new offer expressly stipulated that Griggs' $150,000 earnest money check could be deposited when and if all parties executed this new proposed agreement. Like the October 29 and November 24 brokerage purchase and sale agreements, the December 4 document never ripened into a contract. The December 4 document was a clear and unembarrassed reminder from Griggs that an earnest money check had been written by Griggs, but was not on deposit, and was not going to be on deposit until such time as Galan had signed off on the contract as written by Griggs. Galan nevertheless permitted a sea trial of the Caliente in furtherance of negotiations, now in their fifth week. Also as part of the negotiating process, Galan permitted some, but not all, of the inspections requested by Griggs. Expenses for the sea trial and inspections were borne entirely by Griggs. By Christmas Eve, relations between the parties had deteriorated to the point where Lamar retrieved the check from the Allied Marine corporate files and returned it to Griggs. At no time did negotiations with Lamar's client Griggs preclude or interfere with efforts by Galan to negotiate with and sell the Caliente to any other prospective purchaser.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DBPR enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 1st day of March, 2001, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS 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 1st day of March, 2001.
