The Issue The issue for determination is whether Respondent, Roland F. Patterson, engaged in the unlicensed practice of contracting in the State of Florida without being duly certified or registered in violation of Chapter 489, Florida Statutes; and secondarily, if Respondent committed that violation, what penalty should be imposed?
Findings Of Fact At all times material to these proceedings, Respondent was not duly registered or certified to engage in the practice of construction contracting in the State of Florida. He was, however, doing business as George E. Patterson & Associates. Respondent proposed to build an addition to Jennie Headen’s residence, located at 1424 Bellshore Circle, Jacksonville, Florida, for a contract price of $22,000. Respondent signed the written proposal, telling Headen that she need not sign as her name was already on the document. Headen issued checks to Respondent; one in the amount of $3,000 and one in the amount of $9,000. Respondent accepted the checks, made out to him, as payments for work in accordance with the draw schedule mentioned in the proposal. Respondent cashed both checks. Respondent proceeded to tear the back porch of Headen’s house down. He ordered trusses for the cathedral roof and some lumber for further construction, all of which was delivered. Respondent started to frame in the addition, but a City of Jacksonville inspector issued a “Stop Work” order due to the flimsy construction and violation by Respondent of building code requirements. Respondent was also issued a Notice and Order to Cease and Desist from Petitioner, the Department of Business and Professional Regulation, for the practice of unlicensed contracting for the work he performed at 1424 Bellshore Circle, Jacksonville, Florida. Total investigative costs in this matter incurred by Petitioner were $534.59, excluding costs associated with any attorney’s time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered: Finding Respondent guilty of having violated Section 489.127(1)(f), Florida Statutes, and imposing as a penalty an administrative fine in the amount of $5,000.00. Requiring Respondent to pay Petitioner’s costs of investigation and prosecution, excluding costs associated with an attorney’s time, in the amount of $534.59. DONE AND ENTERED this 28th day of August, 2007, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 28th day of August, 2007. COPIES FURNISHED: Roland F. Patterson 1610 West 31 Street Jacksonville, Florida 32209 Joshua B. Moye, Esquire Assistant General Counsel Craig Mangum, Qualified Representative Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Nancy S. Terrel, Hearing Officer Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact In late 1988, information was received by Department of Professional Regulation (DPR) investigators that a Georgia licensed contractor was building Shoney's restaurants in Florida with a permit pulled in the name of a deceased Florida licensed contractor, Donald Loftin. The contractor, Quality Construction Builders, Inc., owned by Fred Pringle, was not licensed in Florida. Prior to 1986, Pringle had worked for a restaurant management services who had built several Shoney's restaurants in Florida and Georgia. Pringle, in 1980, obtained a power of attorney from Donald Loftin, a licensed Florida contractor, to pull permits under Loftin's license. Loftin died in December 1981, but Pringle renewed Loftin's license once or twice after Loftin's death and pulled construction permits under this license. An extensive investigation was commenced with particular emphasis on construction projects commenced under permits pulled with Loftin's license. Some 25 witnesses were interrogated, including contractors who had pulled permits for Shoney's restaurants on which construction had been stopped, or threatened with stoppage by local officials, because of the initial permit being pulled on Loftin's license. One of these contractors contacted in this investigation was Samuel Whitener who had pulled a permit for a Shoney's restaurant under construction in Ellenton, Florida, on which a stop order had been issued because of the invalid permit. Other contractors who had pulled similar permits for a fee were questioned as were numerous subcontractors, the superintendent for Quality Construction Builders, Inc., and officials of Restaurant Management Services. When the restaurant at Ellenton was approximately 80 percent completed, the local construction authorities stopped work on the project because of the invalid permit which had been pulled using Loftin's license. After the stop order was issued, Restaurant Management Services (RMS), an arm of Shoney's restaurants, entered into a contract with Petitioner herein to complete the project for which Petitioner was paid $4000. When questioned by DPR investigators regarding this function, Petitioner acknowledged that he was paid $4000, that the subcontractors working on the restaurant continued on the job, that these subcontractors were paid by RMS, that he could not hire or fire the subcontractors, and the construction was supervised by Shoney's general contractor, Quality Construction Builders, who had built several other Shoney's restaurants in Florida. Petitioner further told, or led the investigators to conclude, that he had no responsibility for the ongoing construction and that he visited the site once or twice per week; and that the superintendent was primarily in charge of the construction. Other Florida contractors who had also pulled permits for Shoney's restaurants admitted that, although they had pulled the permits, they did not hire, fire, or pay subcontractors and that they performed little, if any, supervision of the construction. Based on this information, the investigator concluded that Petitioner and other contractors were aiding and abetting an unlicensed contractor to do contracting in this State, and submitted this investigative report recommending that Petitioner be charged with violation of Section 489.129(1)(e) and (f), Florida Statutes. The investigative file, which also included a copy of the Construction Management Services contract between Whitener and RMS, was forwarded to the Probable Cause Panel with recommendation that probable cause for a violation of the Construction Industry License Law be found. This contract contains six specific management services which Whitener would supply on the Ellenton project. The contract did not provide that Whitener would obtain the building permit, gave Whitener no control over the financial aspects of the construction, provided for RMS to pay all subcontractors, and did not provide for Whitener to be the qualifying contractor for RMS or Quality Construction. After reviewing the investigation file, including the management services contract, the Probable Cause Panel found probable cause that Whitener violated Section 489.129(1)(e) and (f), Florida Statutes.
Findings Of Fact At all times relevant hereto, respondent, Pedro P. Landera, was a certified general contractor having been issued license number CG C005371 by petitioner, Department of Professional Regulation, Construction Industry Licensing Board (Board), in March 1973. In January 1986 the license was suspended by the Board for three years and, except for the charges pending in this proceeding, Landera would be eligible to have it reactivated in early 1989. Thus, Landera has been without authority to use his license for the last three years. Landera did not contest the Board's suspension action and, in a settlement stipulation, admitted he violated Subsections 489.129(1)(c), (d), (e), (f) and (m), Florida Statutes (1981), by certain conduct taken in December 1983. On August 11, 1986, an individual using the name of James Burke entered into a construction contract with Charlie E. Mincey, the owner of Charlie Tires Service, 1700 N. W. 79th Street, Miami, Florida. The contract, which has been received in evidence as petitioner's exhibit 4, called for Burke, "in a timely manner," to make the following additions to Mincey's tire shop: construct a 34' X 40' room onto the existing building, erect an aluminum shed across the front of the building, including a four foot concrete slab floor, and add a five foot wall across the back side of the building. Burke represented on the contract that he held license number 254514-4. However, a search of the Board's records revealed Burke held no state license. The total price for the work was $15,650. On August 13, Mincey paid Burke $3,000 as a down payment on the job. According to Mincey, Burke began work on the additions several weeks after the contract was executed and continued to do so on and off for a few months. Eventually, a concrete block wall for the 34' x 40' room was built, but it had no roof, windows, doors, electric wiring, plumbing or paint. The aluminum shed was never built nor did Burke construct a five foot wall at the rear of the building as required by the contract. During October and early November 1986 Mincey made additional payments to Burke in the amount of $3,175, 1,000, $500, $400, $300, $300, and $40. This made a total of $8,715 paid by Mincey to Burke. Despite these payments, several subcontractors came to the job site during the same time period to unload materials but requested payment from Mincey before they would release them. Mincey paid the subcontractors $2,593.64, as evidenced by receipts received in evidence as petitioner's exhibit 7. When Burke did not return to the job site, and the project was still far from completed, Mincey attempted to contact Burke but could not find him. When he left the job site for the final time, Burke gave Mincey no notice of his intention to leave the job unfinished or any reason for doing so. Burke's whereabouts are still unknown, and there is now pending an outstanding warrant for his arrest. On September 30, 1986, a building permit application was filed with the Metropolitan Dade County building and zoning department seeking a permit for work to be done on Mincey's business. The application was filled out with three different colors of ink and in more than one person's handwriting. A carbon copy of the application has been received in evidence as petitioner's exhibit 9. The document was authenticated by a permit clerk of the Metropolitan Dade building and zoning department who identified the cashier's validation stamp, issuance date and permit number affixed to the document, all being indicia that the application was received and processed by that department. Further, the clerk attested to the fact that the carbon copy was a document normally kept in the regular course of business by her department. The application carries the signature, license number and social security number of respondent. The authenticity of respondent's signature was confirmed by a questioned document examiner whose testimony has been accepted as being credible and persuasive and was corroborated by respondent's own admission that the signature was his own. The author of the remaining writings on the document is unknown. Pursuant to the above application, a building permit was issued on October 1, 1986, for the work performed by Burke. The inspection record, which has been received as petitioner's exhibit 8, reflected that the job site was inspected by a Dade County inspector on October 1 and November 12, 1986. Also, the inspection record reflected that Gila Construction Company (GCC) was the contractor on the job. GCC is a Miami firm that Landera qualified in March 1984. Its owner is Gilbert Castillo. Mincey's building remains unfinished as of this date, and he contends the value of the work is less than the $11,308 that he paid to Burke and the subcontractors. In attempting to resolve the matter, Mincey learned that Landera's license number was on the permit application, and a complaint was eventually filed with the Board. However, prior to hearing, Mincey had never seen or talked to Landera, knew nothing of GCC, and considered the business transaction to be between he and Burke. Landera denied knowing Burke or authorizing him to use his license. Also, he maintained that he has not used his suspended license since the Board's action in early 1986. He denied signing the application in question and had no explanation as to how his signature got on the application except to suggest that someone may have obtained one with his signature and then fraudulently used the same to obtain a permit. Even so, there was no reason for Landera to sign an application during this period of time since his license was under suspension. Castillo, who owns GCC, denied knowing Burke or Mincey or having any knowledge of or participation in the Mincey job.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as set forth in the conclusions of law, that he pay a $3,500 fine, and that his license be suspended until January, 1991. DONE AND ORDERED this 10th day of February, 1989, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 10th day of February, 1989. APPENDIX Petitioner: 1-2. Covered in finding of fact 1. 3-4. Covered in finding of fact 2. Covered in findings of fact 3. and 5. Covered in finding of fact 4. Covered in finding of fact 6. Covered in finding of fact 1. Respondent: Covered in findings of fact 1 and 2. Covered in findings of fact 3 and 5. Covered in findings of fact 4 and 5. 4-5. Covered in finding of fact 8. Covered in findings of fact 2, 5 and 6. Covered in findings of fact 6 and 9. Covered in finding of fact 6. 9 Covered in findings of fact 9 and 10 COPIES FURNISHED: George W. Harrell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Luis F. DeLaCruz, Jr., Esquire 300 Sevilla Avenue Suite 313 Coral Gables, Florida 33134 Kenneth E. Easley, Esquire General Counsel 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
Findings Of Fact William W. Carlton, Respondent, is licensed in Florida as a building contractor, holds license No. CB CO 10455, and was so licensed at all times here relevant (Exhibit 1) In February, 1980, Hays and Sons Construction Company (Hays) entered into a contract with Ken and Ethel Moore to construct a metal building to serve as a filling station and car repair facility in Spring Hill. Hays is not licensed as a building contractor in Florida and Respondent held no office in Hays, had no authority to make management decisions on behalf of Hays, contract on behalf of Hays, or hire subcontractors for Hays. The building permit for the construction of the Spring Hill filling station was pulled by Respondent and listed Respondent as builder (Exhibit 9). Respondent did interior woodwork in the building, room layouts, etc., while Hays hired all of his subcontractors and did the overall supervision of the work. Respondent testified that he visited the site frequently, usually after working hours, to see that the project was progressing properly. Dan Hays, principal in Hays and Sons Construction Company, is a capable builder of metal buildings and, although not licensed in Florida, has erected such buildings at numerous places in the United States. Hays hired and paid the subcontractors on this project. By letter dated November 11, 1980, Moore filed a complaint with the Hernando County Building Department alleging that his building had not `been completed according to plans and specifications, some subcontractors had not been paid, that Hays was not licensed and the permit was pulled by Carlson, and that Carlson denies responsibility for the completion of the work. A hearing was scheduled by the Construction Board of Examiners on this complaint and Respondent was notified of the time and place of hearing and advised to be present. Before the scheduled date of the hearing, the issues raised in the complaint had been settled and the complaint withdrawn by the complainant. Respondent called the Building Department respecting the necessity of him attending the scheduled hearing and was advised the complaint had been withdrawn and that he need not attend. At the scheduled hearing, the Board expected Respondent to give an explanation and, when Respondent did not show, the Board suspended his privilege of pulling permits until he appeared before the Board at its next scheduled meeting. Respondent appeared at the next scheduled meeting of the Board and his permit pulling authority was reinstated. On April 29, 1981, Hays entered into a contract to construct a steel building for Harold and Evelyn Walkowz in New Port Richey, Florida, at a price of $119,000. The building permit for this job was pulled July 28, 1981, by William Carlson as contractor (Exhibit 10). After construction commenced, the contract was assigned to Respondent (Exhibit 12) Walkowz initially made payments in accordance with the draw schedule but as the contract progressed disputes between the owner and the builder developed and payments were not made on schedule. Walkowz' brother-in-law, John Smith, put up most of the money for the building and arrived on the scene when the project was about half finished. His arrival coincided with the disputes regarding the work being done, with the subcontractors and with the Respondent. Several of the subcontractors' due payment were not paid by Respondent because the payment due from the owners was not received by Respondent. Some of these subcontractors left the job, other threatened to leave and were assured by the owners that they would be paid, while another group of subcontractors were paid by the owners to keep them from leaving. Prior to paying these three subcontractors (Exhibit 15) , Walkowz' attorney prepared Exhibit 13, which Respondent signed in order to get these subcontractors paid. After Walkowz had paid some $93,000 to Respondent (and Hays), further payments were stopped. At this time, sub- contractors were owed approximately $16,000 and the building was not completed. Respondent offered to complete the building if the balance of the contract price owed was placed in escrow (Exhibit 20). Walkowz refused to place the money in escrow, did not pay the subcontractors he had promised would be paid, used the funds still owed on the contract to complete the building, charged Respondent with wrongfully appropriating his money, and complained to the building department. Criminal charges of grand theft were brought against Respondent. At a hearing on these charges, Respondent pleaded nolo contendere, adjudication was withheld, and Respondent was placed on probation for five years. After a hearing on restitution, the court directed no restitution be paid by Respondent to Walkowz. Respondent maintained only one operating account into which he intermingled funds received on building contracts concurrently in progress. No evidence was submitted that Respondent diverted funds received from Walkowz to any other specific project. Testimony of one witness that Respondent said he diverted funds received from Walkowz to other projects was denied by Respondent. Further, no evidence was presented that because of the diversion of funds Respondent was unable to complete the Walkowz project. In installing the main air conditioner, the unit was located at a place slightly different than shown on the approved plan. Similarly, a wall was moved a few inches to cover an error made in the installation of plumbing lines. These changes were made with the knowledge and consent of the owner and while inspections of the work were being conducted by officials of the Pasco County Building Department. The contract provided for laying 1,350 cubic yards of black top one inch thick over a four-inch limerock base. Building codes and zoning requirements would not authorize the paving of an area this size on the property and, to comply with the code prescribed allowable impervious area requirements, less black top was used. Similarly, the contract provided for the slab on which the building was erected to be 3,000 psi. concrete. The concrete was routinely tested, with the results received after the building was erected. The test showed the concrete to be 2,500 psi. strength. This information was made known to the owner and, in lieu of tearing down the building and repouring the slab, allowances were made for other changes in the contract requested by the owner For a short period of time a company called Carobu appeared on a sign in front of the Walkowz construction site. This was the trio comprised of Carlton, Roth and Burns, who intended to contract under that name, with Carlson as qualifying officer. The company was never incorporated nor did it ever contract to do any construction work.
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Business and Professional Regulation is the state agency responsible for investigating and prosecuting complaints involving violations of the requirements of Chapter 489, Part I, Florida Statutes. Sections 489.131(7)(e) and 455.225, Florida Statutes. Pursuant to Section 489.129(1), the Construction Industry Licensing Board ("Board") is the entity responsible for imposing discipline for any of the violations set out in that section. At all times material to this case, Mr. Vega was a certified general contractor operating under a license issued by the Construction Industry Licensing Board, numbered CG C046448. Mr. Vega has been a licensed general contractor in Florida since 1989, and since 1994, he has been the licensed qualifying agent for Group Construction South Florida, Inc. The residence of David M. Hudson, located at 19801 Southwest 84th Avenue, Miami, Dade County, Florida, was severely damaged in August, 1992, by Hurricane Andrew. In a letter dated October 13, 1992, Mr. Hudson, who holds a doctorate in biology and is the laboratory manager for the University of Miami Chemistry Department, proposed to Mr. Vega that he prepare plans for reconstructing the Hudson residence. On December 23, 1992, Mr. Hudson and Mr. Vega executed a contract for construction work to be performed on the Hudson residence. The parties contemplated that Mr. Vega would complete the work in accordance with the drawings and original blueprints prepared by Jose A. Sanchez, a structural engineer, at Mr. Vega's direction and based on preliminary plans approved by Mr. Hudson. Specifically, Mr. Hudson understood that the major elements of construction included in the December 23 contract were elevation of the house from one story to two stories, construction of a new living area on the second floor, and construction of a basement on the first floor to serve as a "bare bones storage area." The contract price specified in the December 23 contract was $146,338.33, with ten percent due upon acceptance of the proposal, ten percent due at completion of each of eight items of construction specified in the contract, and ten percent due upon completion of the project. The eight items of construction specified in the contract were "demolition work, rising work, tie beams, roof, doors & windows, plaster & tile, pool & fence, finish work and paint." On February 1, 1993, Metropolitan Dade County Building and Zoning Information Department issued Permit Number 93119957 to Mr. Vega for the Hudson project. The building permit was based on the original plans for the project submitted by Mr. Vega on January 19, 1993, together with some items that were added to the plans at the county's request. Mr. Vega began work on the project on February 1, 1993, the day the permit was issued. Mr. Vega hired Ruben Armas to act as foreman for the project, and his duties included hiring and supervising day laborers and procuring materials needed for construction. At the time, Mr. Armas was not licensed, registered, or certified by either Dade County or the State of Florida. Mr. Vega had an arrangement with Mr. Armas whereby he paid Mr. Armas periodic advances on a lump sum payment that Mr. Armas was to receive when the Hudson project was complete. Mr. Vega did not deduct FICA or withholding tax from the payments made to Mr. Armas under this arrangement. Mr. Vega dealt directly with Mr. and/or Mrs. Hudson regarding the project, although they would occasionally leave messages for him with Mr. Armas. Mr. Vega directly supervised Mr. Armas and gave him instructions on the work that was to be performed and the way it was to be done. Mr. Vega was routinely at the job site at least two or three times a day to inspect the work that had been done. Mr. Vega was present at the site during the entire time that cement was poured for footings or other structural elements. Mr. Vega arranged for various subcontractors to work on the project, including electricians, plumbers, air conditioning workers, roofers, carpenters, and drywall hangers. On April 14, 1993, a Department investigator conducted an inspection of the Hudson project during a "hurricane task force sweep." When she and the other members of the task force arrived on the job site, she observed Mr. Armas and two other men "inside working," but she did not observe them working or see the type of work they were doing. Mr. Armas walked out to meet the inspector and gave her a card that contained his name and phone numbers and the words "General construction & roof repair." Mr. Armas told the Department investigator that, when she arrived, he was "working on the footing for the elevation of the house." On April 21, 1993, Mr. Vega signed a Cease and Desist Agreement in which he acknowledged that the Department was investigating allegations that he had "engaged in the practice of aiding and abetting unlicensed contractor Ruben Armas." By signing the agreement, Mr. Vega agreed to cease "engaging in this activity," but he did not admit that the Department's allegations were true. The Department investigator was at the Hudson job site on April 14, 1993, for thirty minutes to an hour, during which time Mr. Vega did not appear at the site. This was the only time she was at the job site while work was being done. As the work progressed on the project, everything appeared to be going well, and Mr. Vega felt that he enjoyed a very good working relationship with Mr. and Mrs. Hudson. Mr. Hudson paid Mr. Vega a total of $116,400.00, or eighty percent, of the original contract price of $146,338.33, in ten percent increments as provided in the contract. By check dated December 23, 1992, Mr. Hudson paid the down payment of $14,633.38. By check dated February 5, 1993, Mr. Hudson paid $14,600.00 upon completion of the demolition work. By check dated March 5, 1993, Mr. Hudson paid $14,633.00 upon completion of raising the structure to two stories. By check dated March 24, 1993, Mr. Hudson paid $14,633.00 upon completion of the tie beams. By check dated April 19, 1997, Mr. Hudson paid $14,633.00 upon completion of the roof. By check dated May 13, 1993, Mr. Hudson paid $14,633.00 which should have been paid upon completion of the doors and windows but which he paid even though the installation of the doors and windows was not complete. By check dated June 23,1993, Mr. Hudson paid $12,000.00 of the $14,633.00 draw because, in his opinion, the project was not being completed on schedule. Finally, by check dated July 2, 1993, Mr. Hudson paid $17,000.00 to bring the payments up to the amount consistent with the contract schedule for completion of the pool and fence. In a letter to Mr. Vega dated June 7, 1993, Mr. Hudson stated that he wanted to make "a major change" in the plans. Specifically, Mr. Hudson wanted to eliminate the swimming pool, which he estimated would save $20,000.00 of the $146,633.00 contract price, and use the money saved "to completely finish the downstairs to be a nice guest area," to "install the better quality carpet we want, complete wooden fence, air conditioning in 1st floor, plumbing ~ electric in 1st floor, [and] indoor wooden shutters for all windows." Mr. Hudson went on to state that he wanted certain enumerated appliances, which would cost $4,108.00, and new furniture, which he estimated would cost $6,000.00, for a total of $10,108.00. According to Mr. Hudson's proposal, Mr. Vega should be able to "finish off the 1st floor the way we want it, install the nice carpet and tile, and do all the other jobs previously listed (fence, plumbing, etc., for 1st floor) for about $10,000.00." The basement area which Mr. Hudson wanted to finish as a "nice" living area consisted of approximately 2,000 square feet and had originally been designed as a storage area, with concrete floor and walls. Mr. Vega and Mr. Hudson discussed the proposal and the costs of the changes, but they did not reach an agreement on the cost of the additional work. 3/ Mr. Hudson asked Mr. Vega to leave the job site and cease work on the project on or about July 3, 1993, and Mr. Vega did not perform any work on the Hudson residence after this time. Mr. Hudson terminated Mr. Vega from the project solely because of the dispute with Mr. Vega over the cost of the changes he had requested in his June 7 letter. Mr. Hudson did not complain to Mr. Vega about the quality of the work that had been completed, and, although he thought that the project was getting behind schedule, Mr. Hudson issued a check dated July 2, 1993, which brought the total payments to eighty percent of the original contract price. When Mr. Vega stopped work on the project, the structure contained deviations from the original plans. 4/ Some of the deviations were items shown in the original blueprints which had not been incorporated into the structure; some were items that were not shown in the original blueprints but were incorporated into the structure at the request of, or with the approval of, Mr. and/or Mrs. Hudson; some were deviations in the size of openings to accommodate doors and in the location and size of windows; most were minor deviations in the placement of electrical switches and receptacles or other similar deviations. The construction was, however, generally consistent with the original plans. 5/ There were three items that were significant deviations from the original plans. The most serious deviation concerned the changes made in the dimensions of the structural slab that formed the floor of the second floor balcony off the family room, kitchen, and dining room and the roof of the first floor terrace. The original plans included a second floor balcony with a width of six feet. The Hudsons asked Mr. Vega to increase the width of the balcony, and Mr. Vega called Mr. Sanchez, the structural engineer who had prepared the original plans, and asked if the width of the slab could be increased. Mr. Sanchez approved an extension from the original six feet to eight feet, eight inches, and he advised Mr. Vega of the additional reinforcement that would be needed to accommodate the increased width. On the basis of Mr. Sanchez's approval, Mr. Vega incorporated the additional reinforcement specified by Mr. Sanchez and poured the slab to the requested width of eight feet, eight inches. Even though Mr. Vega consulted a structural engineer, he did not submit revised blueprints to the building department and obtain approval for the structural change before doing the alteration. He was aware that the building code required approval before such a change could be incorporated into a structure and that his actions violated the code. 6/ The second significant deviation from the original plans was Mr. Vega's failure to construct the fireplace shown in the original plans. According to the plans, a fireplace was to be constructed in the living room, on the second floor. Although the roof was completed and the drywall installed, no accommodation had been made for the fireplace in either the wall or the roof. Mr. Vega intended to construct the fireplace and would have done so had he not been told to cease work on the project. The third significant deviation from the original plans concerns the windows installed in the structure. No window permits or product approvals were contained in the permit file for the Hudson project. In addition, some of the windows were not the size specified in the original plans, some were too deep, and some were placed lower than the thirty inch sill height specified in the original plans. Many of the items identified as "deviations" were actually items not shown on the original plans but incorporated into the structure at the request of, or with the approval of, Mr. and/or Mrs. Hudson. Neither the requests for the additional items nor the costs of the items were reduced to writing by Mr. Hudson or Mr. Vega. At the time Mr. Hudson directed him to cease work on the project, Mr. Vega had contracts with subcontractors to provide the labor and materials specified in the original contract. He was prepared to complete the project in accordance with the original plans and for the original contract amount, with adjustments for the extras that had already been incorporated into the project at the request of, or with the approval of, Mr. and/or Mrs. Hudson. He was also prepared to correct all deficiencies and code violations in the structure. After he was terminated from the project, Mr. Vega continued to negotiate with Mr. Hudson's attorney to arrive at an agreement for completion of the project that would be satisfactory to Mr. Hudson. In a proposal submitted to Mr. Hudson's attorney in the fall of 1993, Mr. Vega offered to complete the project in seven weeks in accordance with the original plans, as modified to incorporate the changes and upgrades Mr. Hudson had requested in the June 7 letter and the changes and upgrades that had already been incorporated into the project at the request of, or with the approval of, Mr. and/or Mrs. Hudson. The total price for completion proposed by Mr. Vega was $56,750.00, which included the cost of the upgrades and extras and the $29,572.00 balance owing under the original contract. Mr. Hudson did not accept this proposal. Instead, he eventually hired a contractor named Robert Krieff, who did some work on the project. In February, 1994, Mr. Hudson took over the building permit himself and hired various subcontractors to work on the project. According to Mr. Hudson, in addition to the $116,400.00 he paid Mr. Vega, he has paid approximately $50,000.00 for work done after he terminated Mr. Vega, and he anticipates spending another $35,000.00 before a Certificate of Occupancy is issued. Mr. Hudson paid off a lien on his property for work done pursuant to his contract with Mr. Vega. A Claim of Lien in the amount of $4,712.00 was filed by Luis A. Roman on October 5, 1993, for drywall hung and finished at the Hudson residence under an arrangement with Mr. Vega. Summary of the evidence. The evidence presented by the Department is sufficient to establish that Mr. Vega willfully violated the building code with respect to the alteration of the width of the second floor balcony. Mr. Vega admitted that he knew he was violating the building code when he extended the width of the second floor balcony beyond the width specified in the original blueprints before submitting revised engineering plans to the county and receiving approval to make the alteration. This violation is one of procedure only, however, and there was no competent evidence presented to establish that Mr. Vega failed to include adequate reinforcement to compensate for the additional width prior to pouring the slab or that there were structural problems with the slab. 7/ The evidence presented by the Department is sufficient to establish that Mr. Vega violated the building code because the work completed by Mr. Vega on the Hudson project contained deviations from the original approved plans. 8/ On the other hand, the evidence presented by the Department is sufficient to establish that this violation is a minor one. The Department's experts testified that the construction done on the Hudson residence by Mr. Vega was generally consistent with the approved plans and that it was commonplace for contractors in Dade County to deviate from the approved plans and later submit revised plans for approval. The evidence presented by the Department is sufficient to establish that Mr. Vega did not file product approvals or obtain window permits prior to windows being installed in the Hudson project. The evidence presented by the Department is not sufficient, however, to establish that these omissions on Mr. Vega's part constituted a violation of section 204.2 of the South Florida Building Code, as alleged in the Administrative Complaint. Although there was some testimony that the building code requires that product approvals be filed and window permits obtained before windows are installed, the applicable code and section were not identified by the Department's witnesses or otherwise made a part of the record. Thus, there is no evidence of the precise obligations imposed on Mr. Vega by the code that was applicable at the time of the Hudson project. As a result, it is not possible to determine whether Mr. Vega fulfilled his obligations under the code. The evidence presented by the Department is not sufficient to establish that Mr. Vega assisted Mr. Armas in engaging in the unregistered or uncertified practice of contracting. There is no evidence in the record that Mr. Armas performed any work on the Hudson project that could be performed only by a licensed contractor. 9/ Notwithstanding the opinions stated by the Department's experts, the evidence presented by the Department is not sufficient to establish that Mr. Vega is guilty of incompetence or misconduct in the practice of contracting as a result of the work done on the Hudson project. The evidence presented by the Department is sufficient to establish that Mr. Hudson suffered financial loss in the amount of $4,712.00, which is the amount Mr. Hudson paid to clear the lien placed on his property by Luis A. Roman. Although this loss is attributable to Mr. Vega's failure to pay Mr. Roman for hanging and finishing drywall in the Hudson residence, the evidence presented by the Department is not sufficient to establish that Mr. Hudson suffered financial loss as a result of the violation with which Mr. Vega was charged and of which he was proven guilty.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board issue a Final Order dismissing Counts I and III of its Administrative Complaint, finding that Gonzalo Vega is guilty of violating section 489.129(1)(d), Florida Statutes (1993), and imposing an administrative fine in the amount of $1,000.00. DONE AND ENTERED this 3rd day of July, 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 1997.
Findings Of Fact Respondent has been a certified building contractor in the State of Florida. He held license number CB C033166. The license was first issued on March 7, 1985. As of March 31, 1988, Respondent had not renewed the license, which expired on June 30, 1987. Respondent is not and has never been certified as a contractor with the Orange County Building Department. On June 18, 1987, Respondent and Richard G. Rapagnani entered into a contract for Respondent to add a screen porch onto an existing slab at 8763 Belter Drive, Orlando, Orange County, Florida, which was Mr. Rapagnani's residence. The total contract price was $4013. The contract price was payable $1500 down, $1500 due upon completion of framing, and the balance due in two payments with the final payment due upon completion. Prior to obtaining the contract, Respondent assured Mr. Rapagnani that Respondent would take care of obtaining the necessary building permits for the job and that the job would be of high quality. Respondent began the work without obtaining the necessary building permits. He never obtained any permit or any inspection for the job. In performing the work, Respondent removed part of the existing roof. He placed a plastic sheet over the open area, but failed to affix the plastic so as to prevent rain from penetrating the roof, ceiling, and walls. After installing some posts and rafters, Respondent left the job. When asked numerous times by Mr. Rapagnani to return, Respondent offered various excuses. Respondent claimed that he needed more money and suggested that Mr. Rapagnani purchase some of the necessary materials directly from the suppliers. On July 10, 1987, Mr. Rapagnani paid Respondent $1000. Respondent in turn promised to work on July 17 and 18 with materials that he had recently purchased. However, when Respondent failed to show on July 17, Mr. Rapagnani called him and learned that he had no money left and no materials. Mr. Rapagnani then purchased shingles and skylights, and Respondent returned on July 18 to install them. He never completed the installation of these items, and the shingles and skylights that he did install leaked badly. Over a period of two months, Mr. Rapagnani called Respondent at least 50 to 60 times to request him to finish the job. Mr. Rapagnani paid Respondent a total of $2700 and paid an additional $789 for shingles, skylights, and other materials called for in the contract. In mid-August, Mr. Rapagnani fired Respondent. After hiring another contractor about six months later, Mr. Rapagnani was forced to spend approximately $3000 more to complete the work that Respondent had contracted to do. When the new contractor viewed Respondent's roofing job, the contractor determined that the roof was about to fall down due to faulty workmanship. Respondent had failed to secure the roof to the house. It took two to two and one-half days to correct the problem. While on the job, Respondent caused damage to the house and other property of Mr. Rapagnani. He damaged a window screen adjacent to the work area. He punched a hole through the drywall into the living room. His work on the roof led to water leakage into the bedroom. He dropped shingles onto Mr. Rapagnani's boat, thereby damaging it. He never fixed any of this damage. On October 27, 1987, the Orange County Building Department issued a Notice of Code Violation to Mr. Rapagnani listing 21 violations of the applicable code provisions. All of these violations, including the failure to obtain the necessary permits, were attributable to Respondent. Several of the violations pertained to work affecting the structural integrity of the roof and screen porch.
Recommendation In view of the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of deliberately proceeding without a timely permit, deliberately failing to obtain a required inspection, and engaging in the contracting business with an expired license. It is recommended that the Final Order impose an administrative fine of $2500. ENTERED this 20th day of May, 1988, in Tallahassee, Florida. ROBERT E. MEALE 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 20th day of May, 1988. COPIES FURNISHED: David E. Bryant, Esquire Bryant, Reeves & Deer 220 East Madison Street Suite 530 Tampa, Florida 33602 Peter Dethlefsen 2190 Glenwood Drive Winter Park, Florida 32792 Peter Dethlefsen 628 Lander Road Winter Park, Florida 32792 Fred Seely Executive Director Construction Industry Licensing Post Office Box 2 Jacksonville, Florida 32201 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue for determination is whether Arthur Signore committed the offenses set forth in the administrative complaints and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Arthur Signore (Respondent) was licensed by the Department of Business and Professional Regulation, Construction Industry Licensing Board (Petitioner) as a certified general contractor. He received his license in 1969, qualifying Deluccia Construction. Respondent was issued license number CG CA01004. Subsequently, in 1976, Respondent qualified Construction By Scott (CBS). He was issued license number CG CB01004. At all times material hereto, Respondent has been the qualifier of CBS, and the sole owner and president of CBS. At all times material hereto, Respondent's belief was that Petitioner permitted a general contractor to use his/her license to obtain building permits for construction projects for which the general contractor had no contracts through the business that he/she qualified. Respondent practiced his belief frequently by applying for and obtaining building permits for construction projects for which companies or individuals other than CBS had contracts. Collins Job (Case No. 97-1436) Sometime after Hurricane Andrew in 1992, Respondent made an oral agreement with Harold Bader to go into partnership with Bader and form a construction company, with Respondent qualifying the company. Respondent provided his name, his company's name (CBS), and his license number to Bader in order for the qualifying documents to be completed and submitted to the Petitioner. However, the company was not formed and the qualifying documents were never submitted. At no time material hereto was Bader licensed by the Petitioner to engage in the practice of contracting. Respondent knew or should have known that Bader was not licensed by the Petitioner. In March 1994, Thomas Sherry of American Building Industries, Inc. (ABI), began negotiating with Maria and Wayne Collins, husband and wife, for the remodeling of their home, located at 7417 SW 140th Court, Miami, Florida. On March 24, 1994, the Collins entered into a contract with ABI for the remodeling of their home at a cost of $12,500. Bader was the owner of ABI. Sherry was a salesperson for Bader. Sherry provided the Collins with a business card which showed, among other things, ABI's name, address and telephone number, and license number. The license number on the business card was Respondent's license number. All business cards were provided to Sherry by Bader. At no time material hereto, did Sherry talk with or meet Respondent. The records of the Metropolitan Dade County, Building and Zoning Department reflect, among other things, Respondent's name, his company's name (CBS) and license number on the building permit application for the construction to the Collins' home. However, the address listed for Respondent and his company was the address for ABI. Further, the said records reflect, among other things, that aforementioned information provided, as to Respondent, was used to obtain the building permit. Respondent did not complete the permit application for the building permit to remodel the Collins' home. The Collins paid $6,875 to ABI. Any and all checks were made payable to ABI. No money for the construction on the Collins' home was paid to or received by Respondent. In May 1994, problems developed on the job site between the Collins and ABI. The work performed by ABI failed numerous inspections. Mr. Collins wanted to talk with Respondent who was listed as the contractor on the permit and requested Bader to contact Respondent. Bader refused, indicating to Mr. Collins that all communication should be with him (Bader). Finally, in August 1994 the Collins fired ABI after more problems had developed. At that time ABI had completed some of the work. On August 29, 1994, Mr. Collins met with Respondent at Respondent's place of business. Prior to the meeting, Mr. Collins had called Respondent numerous times regarding his problems with ABI and Bader and requesting assistance from Respondent. Each time Respondent denied having any knowledge of the work being performed. When Mr. Collins met with Respondent, Mr. Collins discussed the problems that he had experienced with ABI and Bader. Respondent continued to deny knowing anything about the construction project but agreed to send his employees to examine the job and determine what could be done, if anything. The following day two of Respondent's workers came to the Collins' home and examined the work completed and the work remaining. Subsequently, Respondent contacted Mr. Collins. Respondent indicated to Mr. Collins that he could complete the job for $5,000. Mr. Collins refused to pay the additional monies since it would extend the remodeling cost beyond the contracted cost and since he was now directly paying the subcontractors. At no time did Respondent or his business (CBS) have a contract with the Collins. Until being contacted by the Collins, Respondent had no knowledge that Bader used his name, business name and license number to contract with the Collins and to obtain the building permit for the remodeling of their home. However, prior to being contacted by the Collins, Respondent had been contacted by other persons who had contracts with ABI, who had been informed by Bader that Respondent was the contractor for their jobs, who had problems with ABI, and who wanted assistance from Respondent. Furthermore, the building permits for the construction jobs of those persons reflected Respondent and Respondent's company as the contractor. At no time material hereto was Bader or ABI licensed by the Petitioner to engage in the practice of contracting. Respondent knew or should have known that neither Bader nor ABI was licensed by the Petitioner to engage in the practice of contracting. Respondent was placed on notice of their unlicensed activity after the contacts by the homeowners prior to the contact by the Collins. Even with the knowledge of the homeowners' complaints prior to the Collins' complaints, at no time did Respondent notify Bader to stop using his (Respondent's) name, company's name and license number. Further, at no time did Respondent notify the Metropolitan Dade County, Building and Zoning Department of Bader's misuse of his (Respondent's) name, company's name, and license number or to no longer issue permits to ABI under his (Respondent's) name, company and license. Walsh Job (Case No. 97-1435) In the Fall of 1995, Patrick and Susan Walsh entered into an oral agreement with John Petracelli for an addition to and the remodeling of their home, located at 761 Glen Ridge Road, Key Biscayne, Florida. On October 16, 1995, the Walshes entered into a verbal agreement with Petracelli for an engineer to produce a set of plans at a cost of $2,250 for the construction to their home. The Walshes paid Petracelli the $2,250 on October 16, 1995. On December 7, 1995, the Walshes entered into a written agreement with Petracelli for the construction work on their home at a cost of $84,000. Pursuant to this written agreement, the Walshes paid Petracelli $16,800 on December 7, 1995. Petracelli contacted Respondent and requested Respondent to be the contractor for the construction work on the Walshes' home. Respondent and Petracelli had met one another previously when Petracelli was a salesperson for Bader. Petracelli informed Respondent that he (Petracelli) had already told the Walshes that Respondent was the contractor. To the contrary, Petracelli had not informed the Walshes that Respondent was involved in the construction to their home. Respondent agreed to be the contractor but informed Petracelli that, until a set of plans was approved by the Village of Key Biscayne Building Division (Building Division), he could not provide Petracelli with a cost figure for the construction work. Petracelli informed Respondent that the plans were being prepared, but did not inform Respondent that the Walshes had paid for the preparation of the plans. Respondent agreed further to submit the completed plans to the Building Division for a "dry run" only. After the dry run, Respondent would provide a cost figure for the construction work. A dry run is a process in which a contractor, who has a complicated job which requires an engineer, submits a set of plans, together with an application for a building permit, to the Building Division for approval. The plans may be subject to several modifications requested by the Building Division before they are approved. As a result, the contractor does not know the estimated cost of a job until the plans have gone through the requested modifications, if any, and approved by the Building Division. After the plans are approved by the Building Division, the contractor is notified to come to the Building Division and sign for and obtain the building permit. Pursuant to the agreement between Respondent and Petracelli, on or about December 11, 1995, Respondent completed an application for a building permit for the addition to and the remodeling of the Walshes' home and gave it to Petracelli. The application reflected, among other things, CBS (Respondent's company) as the contractor, and Respondent as the qualifier. Respondent provided the application to Petracelli for the dry run process only. Further, Respondent reiterated to Petracelli that, once the plans were approved by the Building Division, he (Respondent) would meet with the Walshes and agree on a cost for the construction work on their home and that, after agreeing on the cost he (Respondent) would sign for and obtain the building permit for the construction to begin. Respondent was not aware that Petracelli and the Walshes had a signed agreement for the construction work. Petracelli submitted the plans, along with the permit application, to the Building Division for approval. The plans were modified several times to meet the approval of the Building Division, but were never approved. The Building Division considered the plans submitted to be substandard. Since no plans were approved, no building permit was issued. On or about January 3, 1996, the Walshes met at the Building Division with some of the Building Division's officials, Petracelli, and the engineer who prepared the plans. As a result of the meeting, among other things, the Walshes were able to review the permit application and discovered that Respondent, not Petracelli, was licensed and the contractor for the construction work; concluded that the engineer's work was considered so substandard by the Building Division that any modification produced by the engineer would not be approved by the Building Division; and determined that they no longer wanted Petracelli to perform the construction work on their home. Within 24 hours of the meeting, the Walshes telephoned Petracelli and terminated his services. Also, the Walshes requested the return of all of the monies paid to Petracelli by them; however, Petracelli did not return any of their money. At no time material hereto was Petracelli licensed by the Petitioner to engage in the practice of contracting. Respondent knew or should have known that Petracelli was not licensed by the Petitioner. At no time material hereto did Respondent or his company (CBS) have a contract with the Walshes. At no time material hereto did Respondent have any communication or contact with the Walshes. Biscayne Kennel Club Job (Case No. 97-2998) The Biscayne Kennel Club (BKC), located at 320 NW 115th Street, Miami Shores, Florida, was a track for greyhound racing. On October 30, 1995, the last race was run at BKC. In February 1996, the BKC sold its Pari-Mutuel license. On or about December 11, 1996, the BKC, by and through its representative, Carl Spitzer, entered into a written contract with Cuyahoga Wrecking Corporation (CWC), by and through its representative, Thomas Schwab, for, among other things, the removal of asbestos and the demolition and removal of BKC's grandstand structure and viewing area. The contract was prepared by Schwab, who had 25 years of experience in the demolition business, with 20 years of that experience in the State of Florida. All contract negotiations were between Schwab and Spitzer. At no time was the President and CEO of BKC, Kay Spitzer, involved in the contract negotiations. As to cost, the contract provided at Article 4 that the cost was $37,500 and that the $37,500 was "dedicated to the removal of the described ACM." Further, Article 4 provided that the "balance of the work to be paid for by the sale of the ferrous and non-ferrous metals by the contractor." In addition, the contract provided in Article 7 that, among other things, all permits were included in the contract price and that BKC and the "contractor" would share "equally all the proceeds of the non-ferrous metals minus whatever costs are incurred bringing it to market." The contract did not restrict or prohibit CWC from engaging the services of any individual or subcontractor to perform the work required in the contract. The grandstand structure and viewing area were one structure. Attached to the roof of the structure was a small building which was used by BKC personnel for viewing the races. The roof was the highest part of the structure, except for the small building. The distance from ground level to the top of the roof was 69 feet and 10 inches; and the top of the small building was approximately 15 feet higher than the top of the roof. CWC contracted with Sal's Abatement to perform the asbestos removal. Schwab was licensed by Dade County, Florida, as a specialty contractor. He was notified that the work for the BKC job was outside the scope of his license and that a contractor, licensed by the Petitioner, was required for the BKC job. Schwab contacted Respondent to be the general contractor. Schwab had worked with Respondent before on other, but smaller, jobs. Respondent agreed to be the general contractor in return for a percentage of the contract. Per the agreement, Respondent would obtain the necessary permits, provide the equipment necessary for the demolition, and supervise the workers on the job. On March 6, 1997, Respondent completed an application for a building permit with Miami Shores Village, Florida, for the demolition of the BKC grandstand. The application reflected Respondent's company (CBS) as the contracting company and Respondent as the qualifier. Carl Spitzer signed the permit application on behalf of BKC. On March 17, 1997, a building permit (permit number 41084) was issued by the Village of Miami Shores for the demolition of BKC's grandstand. On April 29, 1997, the cost of the permit, $566.50, was paid. At no time material hereto was Schwab or CWC licensed by Petitioner to engage in the practice of contracting. Respondent knew or should have known that neither Schwab nor CWC were licensed by Petitioner. At no time did a contract exist between Respondent or his company with BKC for the demolition job. Respondent supervised CWC's preparation of the grandstand for demolition. In preparing the grandstand for demolition, Respondent and Schwab met at the site at least 3 times to discuss the demolition and its progress. On May 16, 1997, the grandstand was scheduled to be demolished. On the morning of May 16th, as Schwab was leaving BKC, Respondent arrived. Shortly thereafter, the grandstand accidentally collapsed--the beams supporting the roof of the grandstand failed, and the roof collapsed. Two of CWC's workers were killed and three were seriously injured. After the collapse, BKC contracted with another company, Omega Contracting, to complete the demolition job. The Petitioner submitted documents reflecting that its costs of investigation and prosecution of the complaints against Respondent, excluding costs associated with attorney's time, to be $1,017.25. On May 22, 1997, pursuant to an Emergency Suspension Order, on May 22, 1997, the Petitioner suspended Respondent's license. Respondent has no prior disciplinary action taken against him by the Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board enter a final order: Dismissing all counts in Case Nos. 97-1435 and 97-1436. Finding that Arthur Signore violated Subsections 489.129(1)(c), (e), and (j), 489.1265(3), and 455.227(1)(a), Florida Statutes (1995). Revoking Arthur Signore's certified general contractor's license. Requiring Arthur Signore to pay all reasonable costs of investigation and prosecution associated with the Department of Business and Professional Regulation's investigation and prosecution of the charges set forth in the Administrative Complaint of Case No. 97-2998.3 DONE AND ENTERED this 13th day of January, 1998, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1998.
The Issue This is a rule challenge proceeding in which the following specific issues are presented: Whether Florida Administrative Code Rule 61G4-12.006 is an invalid delegation of legislative authority, and Whether application of the provisions of Section 112.011(1)(b), Florida Statutes, by the Construction Industry Licensing Board in its quasi-judicial capacity constitutes an agency statement of general applicability that requires rulemaking by the agency.
Findings Of Fact Petitioner, Goode “Buddy” Yeoman, is 64 years of age, and is an individual who has applied to the CILB for an individual certified general contracting license. Petitioner Yeoman has a prior felony conviction and his civil rights have not been restored. Petitioner Yeoman's felony conviction was imposed approximately 20 years ago in 1985 and was unrelated to the contracting practice or trade. Petitioner Yeoman was required to, and did, submit a completed form DBPR CILB 4359. Petitioner’s application was denied by the Construction Industry Licensing Board (“CILB” or “Board”), and on June 14, 2004, the CILB entered its “Notice of Intent to Deny” Petitioner Yeoman’s application for initial certified general contractor. Petitioner Yeoman has separately filed a petition for administrative proceedings regarding the CILB's denial of his initial certified general contractor license. As such, by operation of law no final agency action has to date been taken on Petitioner Yeoman's application. The license denial proceeding has been continued. This will allow the parties in that case to have the benefit of the final order in this rule challenge case. The sole basis for the denial of Petitioner Yeoman’s application was that his civil rights had not been restored. The CILB’s “Notice of Intent to Deny” stated: “You have not provided proof to the Board that your civil rights have been fully restored subsequent to a previous felony conviction as required by Section 112.011(1)(b), Florida Statutes.” The requirement that a restoration of civil rights be obtained which is expressed in the challenged existing rule and the challenged agency statement defined as a rule negatively affect Petitioner Yeoman’s substantial interests by denying him a certified general contracting license. As such, Petitioner Yeoman has standing to bring his challenge to Florida Administrative Code Rule 61G4-12.006(2) and the agency statement defined as a rule (Form “DBPR CILB 4359"). Intervenor Smith's felony conviction was for a drug offense in 1989 and was unrelated to the contracting business or trade. Intervenor Smith filed an application with the CILB, including form “DBPR CILB 4359.” On May 4, 2004, the CILB refused to consider his application because his civil rights have not been restored. As such, Intervenor Smith has standing to bring his challenge to Florida Administrative Code Rule 61G4-12.006(2), and the agency statement defined as a rule (Form "DBPR CILB 4359"). Florida Administrative Code Rule 61G4-12.006 was adopted pursuant to Chapter 120, Florida Statutes, on January 6, 1980, and lists and incorporates by reference DBPR/CILB/025 (Rev. 01/01) entitled “Certifications: Certification Change of Status.” This agency form is applicable to applications for certified licenses and change of status applications, and requires individuals applying for initial contracting licenses to provide proof that their civil rights have been restored if they have been convicted of a felony. The form states in the “Financial Responsibility/Background Questions” section: “NOTE: IF YOU, THE APPLICANT/LICENSEE, HAVE HAD A FELONY CONVICTION, PROOF THAT YOUR CIVIL RIGHTS HAVE BEEN RESTORED WILL BE REQUIRED PRIOR TO LICENSURE.” Form “DBPR CILB 4359" has an effective date of March 24, 2004, but has not been adopted as a rule under Chapter 120, Florida Statutes. The form is available for download on the agency’s web-page as “Initial Issuance of Licensure for Certified Contractor Application Package.” Applicants for licensure as a contractor must submit form “DBPR CILB 4359" to the DBPR. Within the “DBPR CILB 4359" package is the form “DBPR CILB 4357 - Qualified Business (QB) License Application and Qualified Business Change of Status Application,” which requires an applicant previously convicted of a felony to provide proof that his/her civil rights have been restored. This form states: “IF YOU HAVE BEEN CONVICTED OF A FELONY, YOU MUST SUBMIT PROOF OF REINSTATEMENT OF CIVIL RIGHTS,” and also: “Note: If you, the applicant/licensee, have had a felony conviction, proof that your civil rights have been restored will be required prior to Licensure.” Both the challenged Florida Administrative Code Rule 61G4-12.006(2) and the form “DBPR CILB 4359" are generally applicable to every individual applying for a contracting license from the CILB. The CILB has previously approved applications for initial licenses, and change of status licenses, to applicants who did not have their civil rights fully restored, subject to probation until the applicant's civil rights have been restored. Neither the type of crime for which a felony conviction has been imposed, the recency of the conviction, nor the completion of any punishment, have been a factor in the CILB’s denial of applications to individuals previously convicted of a felony crime but whose civil rights have not been fully restored. The sole reason for denial is the lack of civil rights. The lack of civil rights is the standard, expressed in Florida Administrative Code Rule 61G4-12.006(2) and in “DBPR CILB 4359," by which the CILB has denied contractor license applications, including Petitioner Yeoman’s application, and Intervenor Smith's application, under the CILB’s interpretation of Section 112.011(1)(b), Florida Statutes. The CILB has not revoked any previously granted licenses due solely to a subsequent felony conviction and lack of civil rights of any licensee. The CILB is a collegial body composed of 18 members, 16 of whom are professionals and two of whom are consumer members. Each member is limited to two 4-year terms, and no member may serve more than two consecutive 4-year terms. If a member is appointed to fill an unexpired vacancy, the new appointee may not serve for more than 11 years. The current members of the Board, and their terms, are as follows: Elizabeth Karcher; term 01/10/02-10/31/04 Barry Kalmanson; term 11/01/02-10/31/07 c. Lee-En Chung; term 09/01/99-10/31/06 Paul Del Vecchio; term 01-10-02-10-31-05 Michelle Kane; term 01-10-02-10/31/05 f. Joan Brown; term 03/14/00-10/31/07 Michael Blankenship; term 11/01/02-10/31/06 Carl Engelmeler; term 11/01/02-10/31/06 Jacqueline Watts; term 01/10/02-10/31/04 John Smith; term 11/01/02-10/31/06 (resigned effective 11/01/04) Raymond Holloway; term 01/10/02-10/31/05 Edward Weller; term 11/21/02-10/31/06 Thomas Thornton; term 08/16/04-10/31/07 Robert Stewart; term 08/16/04-10/31/07 o. Doris Bailey; term 08/16/04-10/31/05 A quorum (51 percent) of the appointed members of the Board is necessary for the Board to conduct official business. The CILB meets 11 times each year. On November 8, 1999, the CILB denied the application of Michael A. Helish for the certification examination on the grounds that his civil rights had not been restored. This decision was per curiam affirmed in Helish v. Department of Business and Professional Regulation, 766 So. 2d 1047 (Fla. 1st DCA 2000). The CILB has previously approved applications for initial licenses, and change of status licenses, to applicants whose civil rights had not been fully restored, at times subject to probation until the applicant’s civil rights have been restored, as follows: On June 14, 2004, the Respondent granted an initial contractor license to Robert F. Jones, subject to probation until his civil rights are fully restored. On May 28, 2004, the Respondent granted an initial contractor license to William P. Campbell, subject to probation until his civil rights are fully restored. On May 28, 2004, the Respondent granted an initial contractor license to Glenn Kasper, subject to probation until his civil rights are fully restored. On May 28, 2004, the Respondent granted an initial contractor license to Danny Mitchell, subject to probation until his civil rights are fully restored. On March 3, 2004, the Respondent granted an initial contractor license to Timothy Burke, subject to probation until his civil rights are fully restored. On February 9, 2004, the Respondent granted an initial contractor license to Anthony Nicholas, Jr., subject to probation and the condition that his civil rights be fully restored within two years. On June 25, 2003, the Respondent granted an initial contractor license to Andrew Dittenber, stating: “The Board permitted licensure with conditions in this case where applicant did not have his civil rights restored, because of the number of years that have passed since the conviction and evidence that application for restoration has been made.” On June 25, 2003, the Respondent granted an initial contractor license to Robert W. Fleming, stating: “The Board permitted licensure with conditions in this case where applicant did not have his civil rights restored, because of the number of years that have passed since the conviction and evidence that application for restoration has been made.” On December 1, 2003, the Respondent granted an initial contractor license to James D. Munroe, Jr., subject to probation until his civil rights are fully restored. On October 21, 2002, the Respondent granted an initial contractor license to Daryl F. Strickland subject to probation and the condition that his civil rights be fully restored within three years. On September 4, 2001, the Respondent granted an initial contractor license to John Richard Brown, subject to probation and the condition that his civil rights be fully restored within three years. On June 24, 2004, the Respondent amended its initial order and again placed John Richard Brown’s license on probation until such time as his civil rights are restored.
