The Issue The issues in this case are whether Respondent violated Subsections 489.129(1)(g)2., 489.129(1)(j), and 489.129(1)(m), Florida Statutes (2004),1 and, if so, what discipline should be imposed.
Findings Of Fact Mr. Brown holds a current, active Florida State Certified General Contractor License number CG C062829. He is the owner and qualifying agent for Churchill’s Construction Co., Inc. (Churchill’s). Sometime in 2003, Churchill’s entered into two contracts with Walcott Allen to construct two homes in Charlotte County, Florida. Mr. Allen was a friend of Mr. Brown. Mr. Allen had had a contractor’s license, but the license had been revoked by the Department. Mr. Brown decided to make Mr. Allen vice president of operations for Churchill’s. The purpose was two-fold. First, Mr. Brown did not think that he would be able to be present at the construction sites of Mr. Allen's homes very often, but Mr. Allen would be at the construction most of the time. By making Mr. Allen a vice president of the company, Mr. Brown felt that the building inspectors would be satisfied that Churchill’s had a presence at the construction sites. Additionally, Mr. Brown was hopeful that Mr. Allen would be able to generate business through some of his business associates. Sometime in 2003 or 2004, Mr. Brown and Mr. Allen went to the real estate office of Debbye Fitzpatrick concerning the purchase of some lots. In 2004, Hurricane Charlie struck the Port Charlotte area and did considerable damage, including damage to the residence of John and Debbye Fitzpatrick. Debbye Fitzpatrick knew that Mr. Allen had done some construction work in the past and approached him about repairing the damage to her home. Mr. Allen advised Mr. Brown that the Fitzpatricks were interested in Churchill’s repairing the damage to their house. Sometime before December 15, 2004, Mr. Brown and Mr. Allen went to the Fitzpatricks' home to look at the damage. Neither Mr. Brown nor Mr. Allen advised the Fitzpatricks that Mr. Allen could not enter into a contract on behalf of Churchill’s. Mr. Allen gave the Fitzpatricks a business card indicating that he was the vice president of operations for Churchill’s. On December 15, 2004, the Fitzpatricks entered into a contract with Churchill’s to make the repairs to the Fitzpatricks' home. The contract was not written on the form usually used by Churchill’s. Mr. Allen signed the contract on behalf of Churchill’s. The contractor license number listed on the contract was Mr. Brown’s. The total contract amount was $65,728. Based on the contract, Churchill’s was to remove existing drywall ceilings and insulation and replace with new insulation and sheetrock, remove existing drywall and insulation for the walls and replace with new sheetrock and insulation, lay floor tiles, paint the ceiling and walls, replace all the electrical fixtures, and power wash and paint the exterior of the house. Churchill’s applied for a building permit for the repairs to the Fitzpatricks’ home. The permit application was signed “Winston Brown” and was notarized. Mr. Brown contends that he did not sign the application and that the signature is a forgery by Mr. Allen. To a layperson, the signature on the permit application for the Fitzpatrick house does differ significantly from the signature on other documents submitted by Mr. Brown, which documents he testified bore his signature. Mr. Allen commenced work on the Fitzpatrick house. On February 17, 2005, Debbye Fitzpatrick wrote a check for $7,500 made payable to Wally Allen as the initial payment for the construction work. Mr. Allen had asked Debbye Fitzpatrick to make the check payable to him rather than to Churchill’s. Debbye Fitzpatrick did not think it was out of the ordinary for the check to be made out to Mr. Allen, and she complied with his request. On March 29, 2005, Debbye Fitzpatrick wrote another check to Mr. Allen for $10,000 as a draw on the contract amount. On June 23, 2005, she wrote another check to Mr. Allen for $11,601.77. The work on the project did not go well according to the Fitzpatricks. Some of the tiles that were laid were cracked, and some of the tiles gave out a hollow sound when tapped with a wooden implement. Some of the tiles were not grouted. Some of the grout in the tile work was not sealed. Insulation was not replaced in some of the ceiling areas. Patches to the sheetrock on the walls and ceiling were visible. The texturing of the paint was not consistent, with some areas having too much texture and some areas not having enough. The workers were careless with their painting and got paint on the carpet, furniture, floors near baseboards, windows, window frames, soffits, and front porch. The workers also damaged some of the furniture and kitchen appliances during the performance of their work. The front entry door was not installed properly. The garage door was not primed and the paint peeled. The vanity top in the master bedroom was not installed properly and had to be redone by another contractor. In July, Mr. Allen and his workers stopped coming to the job site. No notice was given to the Fitzpatricks that work was going to be stopped. No one from Churchill’s ever came back to work on the project, and the work on the project was not complete and was unsatisfactory. The Fitzpatricks had to pay an electrician $1,500.00 to do work that was supposed to be included in the contract with Churchill’s. Although there was unrebutted testimony that the Fitzpatricks had to pay other contractors to repair the damage done by Churchill’s, there was no evidence presented to quantify the amounts paid and the damage sustained other than a payment to the electrician. Additionally, some of the work not completed by Churhill’s had not been done because the Fitzpatricks lack the funds to complete the work. Again, no effort was made to quantify the amount of money necessary to complete the work. Mr. Brown claims that he did not know anything about the project and that Mr. Allen acted without authority to bind Churchill’s to a contract for the project. Mr. Brown’s testimony is not credible. Mr. Brown made Mr. Allen a vice president of the company and went with Mr. Allen to the Fitzpatricks’ home to look at the work that was needed. According to Mrs. Fitzpatrick, “Mr. Allen did most of the talking as to what was to be done and what the procedure was to be and he [Mr. Brown] didn’t speak very much, but he did nod and go along with what the plan was.” One of the reasons that Mr. Brown made Mr. Allen a vice president of the company was to garner additional business. If Mr. Brown had not wanted Mr. Allen to act on behalf of Churchill’s, Mr. Brown should not have made Mr. Allen a vice president of the company. Mr. Brown knew that any work that Mr. Allen was able to secure would have to be done using Mr. Brown’s license because Mr. Allen’s license had been revoked.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Respondent violated Subsections 489.129(1)(j) and 489.129(1)(m), Florida Statutes, and did not violate Subsection 489.129(1)(g)2., Florida Statutes; placing Respondent on probation for two years; imposing an administrative fine of $1,000.00 for the violation of Subsection 489.129(1)(j), Florida Statutes; imposing an administrative fine of $1,000.00 for the violation of Subsection 489.129(1)(m), Florida Statutes; and requiring Respondent to make restitution to the Fitzpatricks in the amount of $1,500.00. DONE AND ENTERED this 14th day of March, 2008, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 2008.
