Findings Of Fact During the applicable time period, the Respondent was a certified building contractor in the state of Florida and held license number CB C026049. On or about January 6, 1986, the Respondent was hired by West Coast Remodeling & Construction Company. The Respondent was hired as an employee to supervise a building project based on a contract between West Coast and Clarence Harrod for the building of a quadriplex in Rotunda West, Florida. On January 17, 1986, the Respondent applied for a building permit for the Harrod project. The Respondent represented on the permit that he was the builder on the project instead of West Coast, who had the written contract with Harrod. Neither of the principals in West Coast, Gunnar Jacobsen or Gerald Hanley, held a building contractor's license and a licensed contractor was necessary to obtain the permit for the project. After the application for the permit was completed, but before the building permit was issued, the Respondent received a document from West Coast evidencing that the Harrod contract was assigned to him as an individual. At the time the Charlotte County Building Permit was actually issued, the Respondent was the assignee of the Harrod contract. Although the assignment was in effect on January 22, 1986, West Coast continued to receive the funds from Mr. Clarence Harrod, who was not notified of the assignment of the contract. The Respondent either allowed or acquiesced in the continued management of the project and the building funds by West Coast until April 15, 1986. Sometime between January 17, 1986, and January 31, 1986, the Respondent became a shareholder in West Coast. By April of 1986, the Respondent was a corporate officer and had a one-third interest in the corporation. The corporation had three shareholders: the Respondent, Gunnar Jacobsen, and Gerald Hanley. Although all three men were corporate officers, the Respondent was to supervise new construction projects, Jacobsen was to handle administrative affairs and solicit new work, and Hanley was to supervise the remodeling jobs obtained by Jacobsen. In April of 1986, the Respondent determined that there were insufficient funds in the corporate accounts to complete the Harrod project if overhead costs were not reduced immediately. This insight was acquired by the Respondent around the same time the following events occurred: A. Mr. Harrod complained in early April that the job was taking too long. The project was still in the framing stage, and Mr. Harrod was asked for $15,000 of the $25,184.44 draw which was set aside in the contract for the drywall phase of the project. B. Smaller projects that West Coast had in progress, such as three concrete jobs, were found to be unprofitable by the principals in the company. C. Jacobsen was complaining to the Respondent and Hanley, the other two corporate officers, that framing costs were too high on the Harrod project. D. The Respondent and Hanley had decided, between themselves, that Jacobsen was not earning his salary with the corporation because he was not acquiring the new remodeling jobs for the company that he was supposed to under their business arrangements. On April 15, 1986, Hanley and the Respondent locked Jacobsen out of the corporate offices and removed all the money in the corporate accounts, including the money involved in the Harrod project. On April 22, 1986, an agreement was signed by Jacobsen, Hanley, and Respondent which dissolved their business relationships. Pursuant to the agreement, the Respondent resigned his position as an officer in West Coast and assigned his stock in the corporation to Jacobsen. The Respondent and Hanley were also required to make an accounting of the corporate funds removed from the corporate accounts on April 15, 1986. The agreement does not reveal whether the Harrod project was to remain with West Coast or the Respondent. However, the project did remain with West Coast, and the Respondent contacted the Charlotte County Building Department to remove his name from the building permit effective 8:00 a.m., April 23, 1986. When the business relationship between the corporate principals was dissolving in April, the Respondent had contact with Mr. Clarence Harrod. He did not tell the owner about the assignment of the contract to him on January 22, 1986, nor did he advise the owner of the cost overruns which he now asserts were a reason for his resignation from the corporation. The documents attached to the April 22, 1986, agreement reveal that the Respondent was aware of the need for two releases of lien totalling $40,185 on the Harrod project at the time he left the corporation and allowed the corporation to take back and continue with the Harrod project. The Respondent appears to have commingled corporate funds with the Harrod project funds when the funds were under his and Hanley's joint control. During the seven days the Respondent and Hanley had joint control of the $11,611.88 seized from West Coast, the Respondent was paid $2,026.30 and Hanley was paid $2,633. On April 22, 1986, $5,281.97 was returned to West Coast with a list of acknowledged outstanding bills totalling $1,711.17. During the period of time between the assignment of the Harrod project to the Respondent on January 22, 1986, and the takeover of the project by West Coast on April 22, 1986, the Respondent accepted his legal responsibilities as a licensed contractor only on the occasions where it best served his most immediate personal interests.
The Issue Did Respondent commit the violations alleged in the Administrative Complaint dated April 11, 2000, and if so, what discipline is appropriate?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida charged with the responsibility of regulating the practice of contracting pursuant to Section 20.165, Florida Statutes, and Chapters 455 and 489, Florida Statutes. Respondent is, and has been at all times material hereto, a certified residential contractor in the State of Florida, having been issued license number CR CO13253 by the Florida Construction Industry Licensing Board. At all times material hereto, Respondent was licensed with the Construction Industry Licensing Board as an individual. On or about November 20, 1993, Respondent entered into a written contractual agreement (contract) with Kevin Watkins (Watkins) to construct a single family residence at 126 Meadow Lark Boulevard, Lot 65, Indian Lake Estates, Florida. The contract price was $333,944.00. Between December 7, 1993, and February 1, 1996, Watkins and Respondent executed 102 addenda to the contract which increased the contract price by approximately $241,874.43, for a total amount of approximately $575.818.43. On or about December 9, 1993, Respondent obtained permit number 93-120l850 from the Polk County Building Department and commenced work on the project. The contract provided that the "project shall be substantially completed on or about 195 days from the date all building permits are issued." However, due to the 100-plus addenda to the contract, it was estimated that an additional 190 days would be needed to complete the project. Additionally, construction ceased on the home for approximately 60 days so that Watkins could explore the possibility of a construction loan. However, due to the extent of completion, the lending institutions decided not to make any construction loans. On or about May 27, 1996, Watkins moved to Florida with the expectations that his home would be completed within a short period of time. (Watkins' recollection was that the home was to be completed in a couple of weeks. Respondent's recollection was that the home was to be completed in a couple of months.) In any event, Respondent did not complete the Watkins home within a couple of weeks or a couple of months. After Watkins moved to Florida, Respondent paid for Watkins to live in a Best Western motel for a few weeks. Subsequently, Respondent moved Watkins into a rental home for which Respondent paid the rent through September 1996. Beginning October 1996 through July 1999, Watkins paid $600.00 per month for a total of $20,400.00 as rent on the rental home. In early 1998, Respondent and Watkins went through the home, identified those items which had not been completed and Respondent made a handwritten list of those items. Respondent failed to complete the items identified on the list. In fact, shortly thereafter, Respondent ceased working on the project and was unresponsive to attempts to contact him. At the time Respondent ceased working on Watkins' home, the home was approximately 75 percent complete. While this estimation of completion may not be totally accurate, it is the best that could be derived based on the evidence presented, including Respondent's testimony to which I gave some credence. Watkins paid Respondent $561,617.91, which represents approximately 97.534 percent of the total contract price plus addenda to the contract. Seventy-five percent of the contract price plus addenda to the contract equals $431,863.82 for an overpayment of $129,754.09. To date, Respondent has not returned any of the money he received from Watkins above the amount completed under the contract. From early 1998, until August 1998, when Watkins had Respondent removed as general contractor on the building permit, Respondent failed to perform any work on the home for a period in excess of 90 days. Respondent contracted with Jack Eggleston to install cabinets in Watkins home. Eggleston performed under the contract but Respondent failed to pay Eggleston in full, requiring Watkins to pay Eggleston $1,200.00. After Watkins' home was partially complete, Respondent advised Watkins that he had the home insured when in fact he did not have the home covered with insurance. While Respondent was building Watkins' home, Respondent and Watkins entered into a joint venture called Contractors of Central Florida to build modular homes sometime after January 1, 1995. Respondent contends that some of the checks Watkins claims as payment under the contract for his home, were in fact reimbursement to Respondent for funds he had advanced for the joint venture. There is insufficient evidence to establish facts to show that any of the checks Watkins claims as payment under the contract for his home were in fact reimbursement for funds advanced by Respondent for the joint venture. Up until the time of the final hearing, the Department had incurred costs for the investigation and prosecution of this matter, excluding costs associated with an attorney's time, in the amount of $1,451.28.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and after careful review of the guidelines set forth in Rule 61G4-17.001(8) and (11), Florida Administrative Code, and the circumstances for purpose of mitigation or aggravation of penalty set forth in Rule 61G4-17.002, Florida Administrative Code, it is recommended that the Department: Enter a final order finding Respondent guilty of violating Section 489.129(1)(h)2., Florida Statutes, and imposing a penalty therefor an administrative fine in the amount of $1,000.00; Enter a final order finding Respondent guilty of violating Section 489.129(1)(k), Florida Statutes, and imposing a penalty therefor an administrative fine in the amount of $1000.00; Assessing costs of investigation and prosecution, excluding costs associated with an attorney's time, in the amount of $1,451.28, plus any such further costs which have or may accrue through the taking of final agency action and; Requiring Respondent to pay restitution to Kevin Watkins in the amount of $129,754.09 which represents the amounts accepted by Respondent for work not performed. DONE AND ENTERED this 23rd of October, 2000, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 2000. COPIES FURNISHED: Robert A. Crabill, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32388-2202 Ronald J. Powell Post Office Box 7043 Indian Lake Estates, Florida 33855 Rodney Hurst, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The central issue in this case is Petitioner's challenge to part III of the licensure examination as set forth in his letter dated September 8, 1994.
Findings Of Fact Petitioner, Robert E. Rosser, is a candidate for licensure as a general contractor. Petitioner has taken the examination to become a licensed general contractor consecutively over the last four years. As a result of the twelve attempts at the examination, Petitioner has passed parts I and II on two separate test dates. In his attempts to pass the examination Petitioner has enrolled in and studied for the examination with two approved construction schools. Petitioner scored a 68 on part III of the general contractor's examination for the June 16, 1994 test date. Petitioner timely challenged questions related to part III (Project Management) of the general contractor's examination given on June 16, 1994. Petitioner attended a review session and claimed that as to question 2 his scratch sheet from the examination demonstrates he had used formulas properly and that he had inadvertently marked the incorrect response on the answer grid sheet. The minimum score required to pass part III of the examination was 70. For each of the challenged questions in part III (2, 4, 7, 9, 11, 17, 18, and 20) Respondent presented competent evidence to support the correct answer as scored by the Department. The Petitioner did not present credible evidence to dispute the accuracy of the answers which had been deemed correct by the Department. Based upon those answers, the Petitioner's score sheet was tabulated correctly. The questions challenged were clearly and unambiguously worded and contained sufficient factual information to reach a correct answer. The examination was open book and applicants were allowed to use reference materials. All current techniques were considered before the correct answer was chosen. All knowledge needed to reach a correct answer was within a candidate's expected range of expertise. The Department's scoring of part III was not arbitrary, capricious, or devoid of logic. For each of the challenged questions, the correct answer was scored at a higher percentage than the answers marked by Petitioner. In fact, for question 4, for example, 79 percent of the examinees scored the correct answer while only 3 percent marked the same answer as Petitioner.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That Department of Business and Professional Regulation, Bureau of Testing enter a final order dismissing Petitioner's challenge to the general contractor's examination. DONE AND RECOMMENDED this 23rd day of January, 1995, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 23rd day of January, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5214 Rulings on the Petitioner's proposed findings of fact: Petitioner did not number the paragraphs denoted as "STATEMENT OF FACTS AND FINDINGS". The lettered paragraphs are addressed as listed; but where no letter identified the paragraph, the rulings are as to the paragraphs in the order of presentation. Paragraph [A] is accepted. Paragraph [B] is accepted to the extent it identifies Petitioner as a candidate otherwise rejected as not supported by the weight of the credible evidence. Petitioner's citation to Rule 21E-16.005 is an error. It is accepted that the minimum passing grade for the challenged part is 70 percent out of 100 percent. Paragraph [C] is accepted in substance; however, Petitioner's citation to Rule 21E-16.003 is an error. The next paragraph is rejected as contrary to the weight of the credible evidence. The next paragraph is accepted as a correct statement of procedural review. The next paragraph is rejected regarding question 4 is rejected as not a statement of fact or contrary to the weight of the credible evidence. The next paragraph is rejected regarding question 7 is rejected as not a statement of fact or contrary to the weight of the credible evidence. The next paragraph is rejected regarding question 9 is rejected as not a statement of fact or contrary to the weight of the credible evidence. The next paragraph is rejected regarding question 11 is rejected as not a statement of fact or contrary to the weight of the credible evidence. The next paragraph is rejected as not a statement of fact. Petitioner's scratch sheets have been received as Petitioner's exhibit 1. The next paragraph is rejected regarding question 17 is rejected as not a statement of fact or contrary to the weight of the credible evidence. The next paragraph is rejected as not a statement of fact. Petitioner's scratch sheets have been received as Petitioner's exhibit 1. The next paragraph is rejected regarding question 18 is rejected as not a statement of fact or contrary to the weight of the credible evidence. The next paragraph is rejected regarding question 20 is rejected as not a statement of fact or contrary to the weight of the credible evidence. Paragraph [D] is accepted as statement of procedural information but is not supported by the evidence. Paragraph [E] is accepted as statement of procedural information but is not supported by the evidence. The next paragraph is merely an address for the Department and is not a statement of fact. Paragraph [F] is accepted as statement of procedural information but is irrelevant. Paragraph [G] is accepted as statement of procedural information but is irrelevant. The next paragraph is merely an address for the Division and is not a statement of fact. Paragraph [H] is accepted as statement of procedural information but is irrelevant. Paragraph [I] is accepted as statement of procedural information but is irrelevant. Paragraph [J] is accepted as statement of procedural information but is irrelevant. Paragraph [K] is rejected as contrary to the record in this case since an order of prehearing instruction was not entered in this case and interrogatories were not served. Paragraph [L] is rejected as irrelevant, not a statement of fact, and contrary to the record. Moreover, Petitioner's scratch sheets have been received as Petitioner's exhibit 1. Paragraph [M] is rejected as argument or contrary to the weight of credible evidence. Paragraph [N] is rejected as irrelevant or contrary to the weight of credible evidence. Paragraph [O] is rejected as contrary to the weight of credible evidence. Paragraph [P] is rejected as contrary to the weight of credible evidence. Rulings on the proposed findings of fact submitted by the Respondent: Paragraphs 4 through 11 are accepted. Paragraph 1 is accepted as statement of procedural information. Paragraph 2 is accepted as to the substance but is not a statement of relevant fact. Paragraph 3 is accepted as to the substance but is not a statement of relevant fact. COPIES FURNISHED: Robert E. Rosser P.O. Box 560541 Miami, Florida 33256-0541 William M. Woodyard Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0750 Jack McRay General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Richard Hickok Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-6310
Findings Of Fact At all times relevant hereto, Respondent, James Everett Vose, III, held certified general contractor license number CG CA05417 issued by Respondent, Department of Professional Regulation, Construction Industry Licensing Board. He currently resides at 16308 Gulf Boulevard, No. 408, Redington Beach, Florida. In 1981 Respondent was the qualifying agent for Griffith and Vose, Inc., a construction firm doing business on the east coast of Florida. Respondent was owner and sole stockholder of the corporation. Thomas Griffith was employed by Respondent as field superintendent. On or about February 6, 1981 Griffith signed a contract on behalf of Griffith and Vose, Inc. with Oliver J. Fisher to construct a new home at 9945 Nicole Drive, Sebastion, Florida. The contract called for a total price of $39,500. The parties orally agreed that the house would be completed by September, 1981. Griffith and Fisher were acquainted with each other since Griffith had sold Fisher the lot on which the house was to be built. Fisher requested that the garage on the house be constructed initially because he could not pay all the draws immediately, and because he wished to store some personal be longings in the garage while the house was being built. Construction was begun around May, 1981 and continued until the house was approximately three-quarters completed in July, 1981. At that point the employees could not cash their paychecks drawn on the account of Griffith and Vose, Inc. Griffith called the local bank and was advised the firm's checking account had been closed. Griffith also began receiving telephone calls from local subcontractors and materialmen who complained of not being paid. Griffith attempted to contact Vose but was unsuccessful at first. When he did reach Vose, an apparent disagreement arose between the two, and Griffith was fired from his position with the firm. By this time Fisher had paid approximately $18,500 in draws to Griffith and Vose, Inc. He remitted an additional payment of $10,000 to Griffith on August 5, 1981 made payable to the firm. Griffith refused to turn it over to Vose and instead placed it in an escrow account with his attorney. Griffith then used the $10,000 to complete the house even though he was no longer employed by the firm. During this same period Vose had hired an attorney in an effort to get the $10,000 draw and certain other corporate assets that Griffith had taken from the firm. Be was unsuccessful in his efforts. The house was ultimately completed to Fisher's satisfaction. Fisher paid only what the contract called for, and was not required to expend any additional funds. Three materialmen provided materials and services on the project and were never paid. These included Lonestar Florida, Inc. ($870.48), Bobo Industries, Inc. ($1,622.40) and Ponce South Brevard Sewer and Septic Tank, Inc. ($916.48). To date they have not received their money. A fourth party (White Drywall) accepted a $1,000 settlement on a $1,649 bill for services rendered. Vose visited the job site a number of times while the house was under construction. He was actively involved in the supervision of the project. This was true even though he also worked as a sales representative at the same time. Respondent acknowledged that the Fisher house was never completed. He attributed his inability to finish the house to demands placed upon him by several other projects underway at the same time, a poor economic climate, and his unsuccesful effort to receive the last draw from Griffith. Because he knew Griffith was finishing up the job, he hoped "it would work itself out" without any further effort on his part. Respondent did hire two attorneys in an effort to sort out the mess, and to get the Fisher draw and other corporate assets which Griffith retained. He expressed a willingness to reimburse any parties who were unpaid, and regretted the unfortunate results of his dilemma.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty as charged in Counts I and II of the administrative complaint; Count III should be DISMISSED. It is further RECOMMENDED that Respondent's certified general contractor license be suspended for six months and that reinstatement of said license be conditioned upon repayment of all moneys due and owing the three materialmen still unpaid. DONE and RECOMMENDED this 2nd day of May, 1983 in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of May, 1983. COPIES FURNISHED: John O. Williams, Esquire 547 North Monroe Street Suite 204 Tallahassee, Florida 32301 James E. Vose, III 16308 Gulf Boulevard, No. 408 Redington Beach, Florida 33708 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Frederick M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Notice in this case was given as required on May 2, 1977. Paul Slivyak holds registered residential contractor's license RR 0000896 issued by the Florida Construction Industry Licensing Board. Slivyak is the qualifying licensee for Allcraft Construction Company, Inc., a Florida corporation solely owned by Paul Slivyak. Gussie Hailey identified a contract between Allcraft Construction Company, Inc., to her husband, Willie Hailey, for repairs to the interior of their residence caused by fire. See Exhibit 1. She also identified a cancelled check payable to Allcraft Construction Company signed by her in the amount of $1,700 as the initial payment to Allcraft Construction Company, Inc., under the terms of the contract. The only work performed by Allcraft Construction Company, Inc., on the Hailey residence pursuant to the contract was the removal of a portion of the burned interior of the Hailey hone. Gussie Hailey identified a photograph of the material removed from the hone as it was left in her back yard by the workmen. The total work performed by Allcraft Construction Company, Inc., on the contract was performed by two young men who worked one half day. The photograph and check identified by Mrs. Hailey were received as composite Exhibit 2. After the failure of Allcraft Construction Company, Inc. to complete the work called for under the contract, the Haileys had to additionally pay approximately $4,000 to complete the job in addition to the $1,700 paid to Allcraft Construction Company, Inc. Marjorie Kneski, the wife of Mr. Joseph Kneski, identified a contract between Allcraft Construction Company, Inc., and she and her husband for the construction of an addition to their home. See Exhibit 3. She also identified a cancelled check payable to Allcraft Construction Company in the amount of $700, initial payment to Allcraft Construction Company pursuant to the contract for the construction work to be performed. After waiting two or three weeks for Allcraft Construction Company to begin work, the Kneskis became concerned and contacted the Better Business Bureau. The Better Business Bureau contacted the Florida Construction Industry Licensing Board investigator in the area. The Better Business Bureau also informed Mr. Kneski that the business reputation of Allcraft Construction Company, Inc. , was of such a nature that care should be exercised in dealing with the company. Mr. Kneski contacted Allcraft Construction Company, Inc., and advised them that he wanted his money back in that they had not started work under the contract. The Kneskis never received any of their money back from Allcraft Construction Company. The investigator for the Florida Construction Industry Licensing Board contacted Slivyak regarding the Kneski's complaint. Slivyak told the investigator that he had used the money received from the Kneskis to pay a portion of his income taxes and no longer had the money. Kneski also identified a letter received by him from Jack A. Nants, Attorney at Law, representing Allcraft Construction Company, Inc. This letter (Exhibit 5) recognizes and ratifies the contract entered into in behalf of Allcraft Construction Company, Inc., by Doug Fioto, but indicates the intention of Allcraft Construction Company, Inc. , to retain the initial $700 received from the Kneskis as liquidated damage if Allcraft Construction Company, Inc., was not allowed to perform under the contract. The contract does not contain a liquidated damage provision.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Florida Construction Industry Licensing Board revoke the registered residential contractor's license of Paul Slivyak, No. RR 0000896. DONE and ORDERED this 19th day of July, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Barry Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 Mr. Paul Slivyak 502 South Lake Formosa Drive Orlando, Florida 32803 Mr. J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211
Findings Of Fact The Respondent, Marlene E. Lutman, is a vice president of American Custom Builders, Inc. and was a vice president in 1977. Respondent holds licenses Number CR C012570 end Number CR CA12570 issued by the Petitioner Board. On September 11, 1978, Respondent submitted a certification change of status application to the Florida Construction Industry Licensing Board. This application, completed by Respondent under oath on September 7, 1978, was filed for the purpose of changing the contractor's licenses held by Respondent to add the name of American Custom Builders, Inc. to said licenses. On July 6, 1979, an Administrative Complaint was filed against Respondent, doing business as American Custom Builders, Inc., seeking to permanently revoke her licenses and her right to practice under said licenses and to impose an administrative fine in the amount of $500.00. Respondent Lutman requested an administrative hearing, which was scheduled for September 6, 1979, continued on Motion of Respondent, and held November 29, 1979. On the application completed by Respondent, Question 12(b) asked: Are there now any unpaid past-due bills or claims for labor, materials, or services, as a result of the construction operations of any person named in (i) below or any organization in which such person was a member of the personnel? Question 12(c) of the application asked: Are there now any liens, suits, or judgments of record or pending as a result of the construction operations of any person named in "(i) below" or any organization in which any such person was a member of the personnel? Respondent, as a vice president of American Custom Builders, Inc., was designated in "(i) below." She answered "no" on the application to both of the above stated questions. Respondent completed the application while she was in Florida. Prior to completing the application, Respondent spoke by telephone with John D. Cannell, an attorney in Ohio, in reference to Questions 12(b) and 12(c), supra. Cannell told Respondent that there were no unpaid bills outstanding. He said that there had been liens filed involving American Custom Builders, Inc., but that these liens had been cancelled. Cannell based his statements to Respondent upon oral assurances from personnel at the bank involved in financing the construction project associated with the liens that all liens had been paid. It was later learned that on September 7, 1978, the date Cannell told Respondent the liens had been cancelled, the liens had not been cancelled and were of record in the Recorder's Office of Geauga County, Ohio. Liens had been filed on January 6, 1978, January 23, 1978, and January 3l, 1978, by various subcontractors involved in the construction of a house owned by Winford and Sally Ferrentina. The liens were based on claims against American Custom Builders, Inc. as general contractor and the Ferrentinas as owners for unpaid labor and materials and were not satisfied of record until September 20, 1978, on which date the January 6, 1978 lien was satisfied, and March 22, 1979, on which date the other two (2) liens were satisfied. The Hearing Officer finds that Respondent Lutman did not intend to make a material false statement but negligently relied on oral representations that there were no past-due bills and no liens of record pending as a result of her construction operations. Both parties submitted proposed findings of fact, memoranda of law and proposed recommended orders, and the Petitioner Board submitted a reply memorandum. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this order they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based upon the foregoing Findings and Conclusions of Law, the Hearing Officer recommends that the Respondent, Marlene Lutman, be reprimanded. DONE and ORDERED this 1st day of February, 1980, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Jeffery B. Morris, Esquire 2400 Independent Square One Independent Drive Jacksonville, Florida 32202 Jeffrey R. Garvin, Esquire 2532 East First Street Post Office Box 2040 Fort Myers, Florida 33902 DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. DOAH CASE NO. 79-1546 Marlene Lutman, CR C012570, CR CA 12570 Respondent, /
The Issue The issues in this case are whether Respondent violated Subsections 489.129(1)(j) and (m), Florida Statutes (2004),1/ and, if so, what penalty should be imposed.
Findings Of Fact The Parties At all times relevant to this proceeding, Respondent was a certified general contractor, having been issued License No. CGC 1506043 by the Florida Construction Industry Licensing Board ("Board" or "Construction Industry Licensing Board") and was the primary qualifying agent for Rankor Corporation. The Board is the state agency charged with regulating the practice of contracting in the State of Florida pursuant to Chapters 455 and 489, Florida Statutes. At all times relevant, Rankor Corporation was a contractor-qualified business in the State of Florida, having been issued License No. QB 26667. The officers of the Rankor Corporation were as follows: Tina M. Despin, president; Stephen Despin, Sr., executive vice president; Jerold S. Bakelman, vice president and treasurer; and Eldora Bakelman, secretary. The directors of the Rankor Corporation were Respondent, Mr. Bakelman and Mr. Despin. Jerold Bakelman was licensed as a financially responsible officer by the Board from August 27, 2003, to January 7, 2005. Mr. Bakelman's license number was FRO 711. Transactions Related to Longoria Property In December 2004, Antonia Longoria met with Tina Despin and Stephen Despin, Sr., about replacing the roof and performing other repairs at a house owned by Ms. Longoria located at 4716 Nottingham Drive, Ft. Myers, Florida ("Nottingham Drive house" or "Nottingham Drive property").2/ On or about December 7, 2004, Ms. Longoria entered into a contract with Rankor Corporation to remove and replace the roof and to make the other repairs at the Nottingham Drive house (hereinafter referred to as "Contract No. 1" or "December 7, 2004, Contract"). The cost for the scope of work in Contract No. 1, including the cost of obtaining permits was $32,690.00. Pursuant to the terms of the contract, one-third of the contract amount, $10,896.67, was due when the contract was signed; one-third of the contract amount was due when the trusses were delivered; $8,396.67 was due when the job was completed; and $2,500.00 was due after the final inspection of the job was completed. The December 7, 2004, Contract was signed by Tina Despin on behalf of Rankor Corporation and by Ms. Longoria. On or about December 7, 2004, Ms. Longoria paid Rankor Corporation, by personal check, a payment in the amount of $10,896.67 for the work to be done pursuant to Contract No. 1. Ms. Longoria made the check out to Rankor Corporation and gave it to Ms. Despin. On or about December 17, 2004, about ten days after Contract No. 1 was executed, Ms. Longoria entered into a second contract with Rankor Corporation to do additional work at the Nottingham Drive house (hereinafter referred to as "Contract No. 2" or "December 17, 2004, Contract"). Under the terms of the December 17, 2004, Contract, Rankor Corporation was required to relocate the entrance to the house from the side to the front of the house. The cost for the scope of work under this contract was $10,770.00, with payments to be made in three installments. Pursuant to the terms of Contract No. 2, one-third of the contract amount, $3,590.00, was due when the contract was signed; one-third was due when the trusses were delivered; and the remaining one-third was due upon completion of the project. Contract No. 2 was signed by Tina Despin on behalf of Rankor Corporation and by Ms. Longoria on or about December 17, 2004. Two days later, on or about December 19, 2004, Ms. Longoria paid Mr. Despin, Sr., by personal check, a payment in the amount of $3,590.00 for the project under this contract. The check was made out to "Stephen E. Despin" and not to Rankor Corporation. Ms. Longoria paid the $3,590.00 to Mr. Despin, Sr., as a representative of Rankor Corporation. The scope of work under both Contract No. 1 and Contract No. 2 required permits from the City of Ft. Myers Building Department before work could commence. However, after the two contracts were executed, Rankor Corporation never applied for the permits necessary to commence work under those contracts. At or near the end of January 2005, Ms. Longoria began calling Mr. Despin, Sr., to find out when he would begin the project at the Nottingham Drive house. After several unsuccessful attempts by Ms. Longoria to reach Mr. Despin, Sr., he returned her call in February or March, but Rankor Corporation never performed any of the work required under Contract No. 1 and Contract No. 2. No one from Rankor Corporation ever performed any work on Ms. Longoria's Nottingham Drive house. Notwithstanding its failure to perform any of the work required under the December 7, 2004, Contract and the December 17, 2004, Contract, Rankor Corporation did not return Ms. Longoria's two payments made pursuant to the terms of those contracts. The total of these two payments was $14,486.67. In or about March 2005, the City of Ft. Myers Code Enforcement unit posted a notice on the Nottingham Drive property advising Ms. Longoria that the subject property was in violation of the city code. The notice gave Ms. Longoria, as owner of the property, 30 days to have the repairs done to bring the house into compliance with the code. The violations cited in the notice were related to damages the Nottingham Drive house sustained from Hurricane Charlie. On or about April 19, 2005, Ms. Longoria entered into a contract with Roofmaster of South Florida, Inc. ("Roofmaster") to repair the roof at the Nottingham Drive house in order for the roof to be in compliance with the City of Ft. Myers code. The scope of work under the contract with Roofmaster was smaller than the scope of work under the December 7, 2004, Contract between Ms. Longoria and Rankor Corporation. The contact price for the project with Roofmaster was $9,500.00. In or about May 2005, Roofmaster commenced and completed work under its contract with Ms. Longoria. For this work, Ms. Longoria paid Roofmaster the contract price of $9,500.00. At no point in time until May 2005, the time at which Roofmaster commenced work under the contract with Ms. Longoria, did Ms. Longoria prevent Rankor Corporation from commencing and completing the work projects under the December 7, 2004, Contract and the December 17, 2004, Contract. Respondent's Attempts to be Removed as Qualifying Agent On January 5, 2005, Respondent wrote a letter to Mr. Bakelman memorializing Respondent's and Bakelman's conversation concerning Mr. Bakelman's decision to no longer serve as the financially responsible officer for Rankor Corporation. In the letter, Respondent recounted that during that conversation, he (Respondent) had "executed documents supplied by you [Bakelman] from the State of Florida Construction Industry Licensing Board releasing you [Bakelman] from said position with immediate effect." By letter dated January 5, 2005, Respondent forwarded a copy of his January 5, 2005 letter to Mr. Bakelman to the secretary of the Construction Industry Licensing Board in Tallahassee, Florida. Respondent requested that the letter be recorded and filed with pertinent information maintained by that office for "the business qualified by me [Respondent], known as Rankor Corporation. Apparently concerned about Mr. Bakelman's stepping down as Rankor Corporation's financially responsible officer, Respondent contacted the Department's Customer Service section on January 5, 2005, about the situation. At that time, a person in that section told Respondent that he should inform the company officers that they had an obligation to secure a new financially responsible officer, and if they did not, he was obligated either to act in that position or to terminate his position as qualifying representative. On January 7, 2005, Bakelman was properly removed as the financially responsible officer for Rankor Corporation and, thereby, ceased being the financially responsible officer for Rankor Corporation. Upon Mr. Bakelman's being properly removed as the financially responsible officer, Respondent, as the qualifying agent, became responsible for the duties and obligations related to Rankor Corporation's financial matters. By letter dated February 7, 2005, Respondent advised Stephen and Tina Despin (Stephen and Tina) that he was terminating his position as the primary qualifying agent for Rankor Corporation. In this letter, Respondent recounted a January 5, 2005, letter to the Despins in which he indicated that in light of Mr. Bakelman's resignation, he (Respondent) was requiring them to secure a financially responsible officer within two weeks. According to the letter, the reason Respondent was terminating his position with the company was that the Despins had failed to do so. In addition to advising the Despins that he was terminating his position as qualifying agent for Rankor Corporation, Respondent's letter provided the following: Pursuant to guidelines of CILB [Construction Industry Licensing Board], it is required that no new contracts or construction endeavors requiring the use of my license be undertaken, this includes, but is not limited to, the "pulling" of permits. Furthermore, my license number is to be removed form any signage or advertising immediately, which would serve to give the impression that Rankor is acting as a certified general contractor. The only work you are permitted to perform is to conclude projects already underway, and I was advised by the board [Construction Industry Licensing Board] that you should secure another qualifier as soon as possible. I will advise the local building departments of the change of status as well. Respondent sent the February 7, 2005, letter to the Despins by certified mail. According to the return receipt, Tina Despin signed for and received the letter on February 8, 2005. Respondent also sent a copy of his February 7, 2005, letter to the Despins to the Construction Industry Licensing Board. On February 7, 2005, Respondent sent a letter to the Board informing the Board of Respondent's termination as the primary qualifying agent for Rankor Corporation and requesting the appropriate documents to be removed as the primary qualifying agent for Rankor Corporation. The letter provided, in relevant part, the following: Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Fl [sic] 32399 Re.: Termination of Acting as Qualifier for Rankor Corporation Dear Sirs or Mesdames: As per attached letter I with immediate effect remove myself as qualifier for Rankor Corporation, QB 26667[.] Please provide me with any forms required to effect completion of the same, this should not be considered in any manner a renunciation or modification of my termination as qualifier. This act is irrevocable and immediate. I am a certified General Contractor, [sic] [M]y license number is CGC 1506043. The "attached letter" referred to in Respondent's letter to the Board, quoted in paragraph 30, is Respondent's February 7, 2005, letter to the Despins. Larissa Vaughn has been the administrative assistant for the executive director of the Board since February 2005. As an administrative assistant, Ms. Vaughn is familiar with the licensure process for construction contractors. Ms. Vaughn testified that the Board never received Respondent's February 7, 2005, letter to the Board, which informed the Board of Respondent's termination as the primary qualifying agent for Rankor Corporation and requested that he be sent appropriate documents to be removed as the primary qualifying agent for Rankor Corporation. The reason the Board never received the letter is not clear. However, Ms. Vaughn testified that a letter, such as Respondent's February 7, 2005, letter to the Board, would not have necessarily been received. According to Ms. Vaughn, "[a] lot of letters like this are received and [when] there is a request for forms, it goes to our customer contact center." Ms. Vaughn testified that even if the Board had received Respondent's February 7, 2005, letter, that correspondence would not have been sufficient in itself to remove Respondent as the primary qualifying agent for Rankor Corporation. According to Ms. Vaughn, the Department requires that to be removed as the primary qualifying agent for a contractor-qualified business in the State of Florida, a licensed contractor must submit to the Board a properly completed change of status application. Ms. Vaughn testified that a change of status application can be requested and received from the Department by phone, e-mail, or internet.3/ On September 13, 2005, Respondent submitted a change of status application to the Board. Almost two years later, Respondent's change of status application remains open and has not been approved by the Board. Respondent's efforts to terminate his status as the qualifying agent for Rankor Corporation were unsuccessful for the reasons stated above. In this case, even if Respondent's February 7, 2005, letter had effectively terminated his status as qualifying agent, the fact remains that he was the qualifying agent in December 2004 when Rankor Corporation entered into the two contracts with Mrs. Longoria. Moreover, Respondent became responsible for Rankor Corporation's financial matters after Mr. Bakelman was properly released as the company's financially responsible officer. There is no evidence that Respondent has been previously cited for violations under Chapter 489, Florida Statutes. The total investigative costs of this case to Petitioner, excluding costs associated with any attorney's time, for Department Case No. 2005-028129 was $408.37 (four hundred eight dollars and thirty seven cents).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business and Professional Regulations, Construction Industry Licensing Board, enter a final order: (1) finding that Respondent, Joseph D. Sloboda, violated Subsections 489.129(1)(j) and (m), Florida Statutes; (2) imposing a $1,000 fine for each violation; (3) requiring Respondent to make restitution to Antonia Longoria in the amount of $14,486.67; and (4) requiring Respondent to pay investigative costs associated with this case of $408.37. DONE AND ENTERED this 30th day of November, 2007, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 30th day of November, 2007.
