Findings Of Fact Respondent is a certified general contractor holding license number CG C005645. His last known address was Raemel Construction & Engineering, Inc., 950 County Club Boulevard, Cape Coral, Florida 33904 (Prehearing Stipulation). I. Although respondent has engaged in contracting under the name of Raemel Construction & Engineering, Inc., since May 27, 1980, he did not qualify this company with the Construction Industry Licensing Board until December 4, 1980. (Prehearing Stipulation; Testimony of respondent.) This was not, however, an intentional violation of the Construction Industry Licensing Law. It wasn't until December, 1980--after consulting with his new attorney--that respondent discovered that his former attorney had not filed the necessary papers to qualify his newly renamed company with the Construction Industry Licensing Board. Upon discovering this omission, he promptly qualified the company with the Board. (Testimony of respondent.) II. In May, 1980, respondent entered an agreement with Bozidar and Rene Devic to build a commercial building to be known as Atrium Plaza on Lots 1-8, Block 359, Cape Coral, Florida. The construction price was $145,000. (R-1.) Thereafter, respondent, together with his on-site building superintendent, carried out the duties of a general contractor. He supervised the construction of the building, helped obtain the construction loan, received the construction loan proceeds, and, in turn, paid the subcontractors. He, together with Mr. Devic, selected the masonry, plumbing, roofing and electrical subcontractors. He pulled the building permit, checked with his on-site building superintendent daily, and inspected the project at least twice a week. He arranged for all building inspections. Indeed, there is no evidence that the respondent acted other than as a competent and responsible general contractor. (Testimony of respondent, Wunder, Cosser.) Herbert J. Werner, Director of the Building and Zoning Department of the City of Cape Coral, submitted a sworn statement on respondent's behalf, a statement which is singular in its praise of respondent's performance as a contractor: It has been my extreme pleasure to have known and dealt with Charles A. Wunder, Sr., during most of the above mentioned [6] years. He has always conducted himself in a most professional manner and I cannot recall a single complaint against him in all that time. Were I to have my choice of people to conduct business with, out of the 2200 contractors within our city, my first choice would be Mr. Charles A. Wunder, Sr. (R-4.)
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent receive a reprimand for violating Sections 489.129(1)(j) and 489.119(2), Florida Statutes (1981). DONE and RECOMMENDED this 21st day of March, 1983, in Tallahassee, Leon County, Florida. R. L. CALEEN, JR. 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 21st day of March, 1983.
Findings Of Fact Respondent is a certified building contractor having been issued license No. CE C014020. Be was so licensed and was the qualifier for ARC Construction, Inc. at all times material to this proceeding. On July 25, 1980, Respondent, on behalf of ARC Construction, Inc., contracted with Mr. and Mrs. Richard Doyle to remodel a residence in St. Petersburg. The contract price was $43,180, plus extras of $1,525. Respondent was paid $1,500 initially and received draw payments of $4,318 on August 11, 1980, $8,636 on August 19, 1980, and $10,795 on September 3, 1980. These payments totaled $25,249, or about 58 percent of the basic contract amount and 56 percent of the contract price with add-ons. Respondent was obligated to pay suppliers and acknowledged this responsibility to the complainant, Mr. Richard Doyle, but advised him that he was having cash flow difficulties. Respondent's checks to Scotty's, dated August 10, 1980, for $2,518.28, and August 22, 1980, for $738.99, were dishonored by the bank. His check for approximately $5,000 to Florida Forest Products was likewise returned. Respondent failed to settle these accounts and the complainant was eventually obliged to do so in order to remove the liens on his property. Respondent ceased work on the project in mid-October, 1980, and was terminated by the complainant in January, 1981. At the time Respondent ceased work the project was 50 percent to 80 percent complete.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order dismissing the Administrative Complaint. DONE and ORDERED this 29th day of April, 1983, in Tallahassee, Florida. R. T. CARPENTER, 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 29th day of April, 1983. COPIES FURNISHED: John O. Williams, Esquire 547 North Monroe Street Suite 204 Tallahassee, Florida 32301 James H. Thompson, Esquire 620 Madison Street Suite 2-C Tampa, Florida 33602 James Linnan, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Did Respondent violate Section 489.129(1)(h), Florida Statutes, and, if so, what discipline should be imposed?
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 vested with statutory authority to regulate the practice of contracting under Chapters 455 and 489, Florida Statutes. Respondent is a licensed certified residential contractor in the State of Florida. Respondent's license number, as certified by Julie Odom, Department's Alternate Records Custodian, is CRC 20166. However, the Administrative Complaint alleges the license number to be CR C020166. Respondent's licensure status is "Delinquent, Active." On May 18, 1989, the Department entered a Final Order in DOAH Case No. 88-3308 wherein Respondent was found guilty of violating Section 489.129(1)(h),(j),(k), and (m), Florida Statutes. On September 27, 2000, the City of Cape Coral, Florida, Contractor's Regulatory Board (Board) entered into a Settlement Agreement (Agreement) with Respondent, in regard to a complaint, Case No. 00-01, wherein Respondent was charged with violating the following Sections of the City of Cape Coral Code of Ordinances: 6-10.1:, To make misleading, deceptive, untrue, or fraudulent representations in the practice of his contracting profession; 6-10.8: Diversion of funds or property received for prosecution or completion of a specified construction project or operation when as a result of the diversion, the contractor is or will be unable to fulfill the terms of his obligation or contract; 6-10.10: Failing in any material respect to comply with the provisions of the Code; 6-10.11: Abandoning of a construction project in which the contractor is engaged or under contract as a contractor. A project is to be considered abandoned after 90 days if the contractor terminates the project without notification to the prospective owner and the City and without just cause; and 6-10.13: Being found guilty of fraud or deceit or of gross negligence, incompetence, or misconduct in the practice of contracting. The Agreement provided that Respondent was pleading No Contest to the charges that he violated the aforementioned sections of the City of Cape Coral's Code of Ordinances and that Respondent's plea did not act as an admission of guilt as to the above mentioned charges. The Agreement provided for Respondent's permit pulling privileges to be revoked for a period of 90 days starting August 23, 2000. By an Order dated December 29, 2000, the Board, after hearing and discussing the charges made against Respondent, voted to accept and approve the Agreement. By this Agreement, Respondent's contracting license was disciplined by the City of Cape Coral. The total investigative and prosecution costs to the Department, excluding costs associated with any attorney's time, is $967.09.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and a review of Chapter 61G4-17, Disciplinary Guidelines, Florida Administrative Code, with consideration for the repeat violation of Section 489.129(1)(h), Florida Statutes, it is RECOMMENDED that the Department enter a final order finding Respondent, Robert Mensching guilty of violating Subsection 489.129(1)(h), Florida Statutes, and for such violation: (a) impose an administrative fine in the amount of $5,000.00; (b) assess costs in the amount of $967.09; and (c) revoke Respondent's Certified Residential Contractor's License. DONE AND ENTERED this 21st day of March, 2003, 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) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 2003. COPIES FURNISHED: Kimberly V. Clark, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Robert Mensching 1719 Northeast 23rd Terrace Cape Coral, Florida 33909 Robert Crabill, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulations Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The basic issue in this case is whether the Respondent's license as a certified general contractor should be revoked or suspended, or some other discipline imposed, for the reasons alleged in a multi-count Administrative Complaint. The essential allegations of the Administrative Complaint may be summarized as follows: Count One--failure to properly qualify a company under which Respondent was doing business and acting in a name other than that on his license; Count Two--abandoning a construction project without just cause and willful or deliberate disregard and violation of applicable local building codes; Count Three-- diverting funds received for the completion of a specified construction project when as a result of the diversion the contractor is unable to fulfill the terms of his contract.
Findings Of Fact Based on the admissions and stipulations of the parties, on the exhibits received in evidence, on the testimony of the witnesses at the hearing, and on matters officially recognized, I make the following findings of fact: Admitted and stipulated facts The Respondent is a certified general contractor, having been issued license number CG C007067. The Respondent's last known address is DeMaria & Sons Construction Company, Inc., 4451 N.E. 16th Avenue Fort Lauderdale, Florida 33334. On July 14, 1982, Respondent, doing business as Big D Construction, contracted with Jolly Libo-on of 312 S.E. 22nd Street, Fort Lauderdale, Florida, to build an addition to Libo- on's house for a contract price of $17,500.00. At all times material herein, Respondent qualified DeMaria & Sons Construction Company, Inc. At no time did Respondent properly qualify, nor did any licensed contractor properly qualify, Big D Construction. The Respondent began work on Libo-on's house on August 23, 1982, and continued construction until at least the last week of September of 1982. Libo-on has paid the Respondent $13,500.00 as called for by their contract. The following subcontractors or suppliers filed claims of lien against Libo-on's property because of Respondent's failure to pay them for services or supplies: Minute Men Associates, Inc. $1,752.47 Apachee Roofing 885.00 Meekins, Inc. 439.53 Greenlee Plumbing Service, Inc. 795.00 Total liens $3,862.00 7. The Respondent has not satisfied the liens filed against Libo-on's property, but the liens were later satisfied by Libo- on. Other relevant facts established by the evidence of record After September 27, 1982, the only work performed by or on behalf of the Respondent at the Libo-on residence was by employee Shawn Brannigan on November 16, 1982, and by employee Bob Walters on November 21, 1982. The work performed by Brannigan and Walters in November was de minimis in nature and did not significantly advance the completion of the contract. From September 27 through November 25, 1982, Libo-on called the Respondent by telephone on a daily basis to inquire about why no work was being done on the project. The Respondent would promise that someone would come the next day, but with the exception of the de minimis efforts on November 16 and 21, no work was done on the project after September 27, 1982, by or on behalf of the Respondent. Libo-on quit trying to make telephone calls to the Respondent after the Respondent told Libo-on on the telephone that he had reached a wrong number. The Respondent's services were terminated on December 7, 1982, via letter from Libo-on's attorney, Linn Brett. At no time prior to the termination of his services did the Respondent inform the Libo-ons that he could not do any more work nor did the Libo-ons dismiss him from the work at any earlier date. At the time Respondent's services were terminated, the addition was approximately 75 per cent completed. In addition to the subcontractors and suppliers listed in paragraph 6 above, the Respondent also failed to pay the sum of $2,393.00 which was due to International Drywall Systems, a subcontractor who provided services and supplies on the Libo-on project. Abandonment of a construction project constitutes a violation of Broward County Ordinance 78-9, Section 9-14(b)(8). Libo-on paid the lienors $3,441.00 in satisfaction of the liens. Libo-on contracted with Robert Hobart to finish the construction, at an additional cost of $4,000.00. Libo-on paid $2,200.00 for lawyers fees, $3,441.00 for liens, and $4,000.00 to Mr. Hobart. These costs minus the $4,000.00 remaining under the Respondent's contract resulted in Libo-on expending $5,641.00 above the original contract price. Of the $13,500.00 which was paid to him by Libo-on, the Respondent can establish that he spent only approximately $9,000.00 on the project. The Respondent was unable to complete the project because he did not have on hand the money to pay the subcontractors and suppliers.
Recommendation On the basis of all of the foregoing, it is recommended that the Construction Industry Licensing Board issue a Final Order suspending the Respondent's license for a period of five years and providing further that the suspension will be reduced to one year upon the Respondent's demonstrating to the Board that he has made restitution to Libo-on in the amount of $5,641.00. DONE AND ORDERED this 30th day of October, 1985, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1985. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-4450 The following are my specific rulings on the proposed findings of fact submitted by both parties to this case. Rulings on proposed findings of fact submitted by the Petitioner: The findings of fact included in this Recommended Order include the substance of all of the proposed findings of fact submitted by the Petitioner with certain minor modifications and additions in the interest of clarity and accuracy. Rulings on proposed findings of fact submitted by the Respondent: The unnumbered paragraphs of the Respondent's letter of October 22, 1985, have comments, arguments, legal conclusions, and factual assertions all interspersed. Nothing in the letter constitutes a proposed finding of fact per se. Were it not for the fact that the Respondent is unrepresented by counsel, I would decline to attempt to address the issues raised in the Respondent's letter of October 22, 1985, due to both its tardiness and its failure to separately state proposed findings and proposed conclusions. Nevertheless, giving the Respondent more process than is perhaps his due, I have specifically ruled on each of the contentions which relates to factual matters and have also attempted to address his legal contentions. In the rulings below I have referred to the unnumbered paragraphs in the order in which they appear on each page of the letter. Page one, first paragraph: No ruling required. Page one, second paragraph: No ruling required. Page one, third paragraph: Respondent's version of the facts on this issue is rejected for several reasons, including the following: (1) competent substantial evidence supports the finding that from September 27 until December 7, 1982, only "token" or "de minimis" work was performed on the Libo-on project, and (2) the Respondent did not offer into evidence the documentation mentioned in this paragraph. Page one, fourth paragraph: There is competent substantial evidence for the Petitioner's version of the finding addressed by this paragraph. The Libo- on testimony on this subject is not hearsay. Page one, fifth paragraph: To the extent that in this paragraph the Respondent attempts to dispute the fact that he abandoned the Libo-on project, such a finding is rejected because the persuasive competent substantial evidence compels an opposite finding. Page one, sixth paragraph: With regard to the issue of the percentage of completion of the project at the time the Respondent abandoned it, there is conflicting evidence. The more persuasive evidence is that the project was approximately 75 percent completed. Page one, seventh paragraph (which also continues at top of page two): This paragraph contains a mixture of legal and factual contentions. With regard to the factual contentions it is sufficient to note that the greater weight of the evidence supports a finding that the amount paid to Hobart to finish the work on the Libo-on project was a reasonable amount because, in fact, it was exactly the same amount that remained to be paid to the Respondent on his unfinished contract. No one is trying to charge the Respondent for additional work that was not in his contract. The amount to which the Libo-ons are entitled in restitution is the sum of their expenses incurred for legal fees and for obtaining satisfaction of liens placed against their property because of the Respondent's failure to pay subcontractors and suppliers. Page two, first full paragraph: The Respondent's contentions in this paragraph are contrary to the persuasive competent substantial evidence. These contentions are also contrary to Respondent's admission at hearing that he could account for only approximately $9,000.00 of the $13,500.00 he was paid by the Libo-ons. Page two, second full paragraph: This paragraph requires no comment other than to note that there is a significant difference between imposing a fine and providing for a reduced suspension in the event of restitution. Page two, third full paragraph: Contrary to the Respondent's assertion, there is persuasive competent substantial evidence to establish the amount of the financial injury suffered by the Libo-ons as a result of the Respondent's misconduct. Page two, last paragraph: No ruling required. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Senior Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Vincent A. DeMaria 4451 N.E. 16th Avenue Fort Lauderdale, Florida 33334 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Salvatore A. Carpino General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Respondent Bruce G. Alles, is a certified general contractor, license number CGC C014472, and has been so licensed since the summer of 1979. At that time, he became the qualifying agent for Univel, Inc., Melbourne Beach, Florida, a general contracting firm. Prior to Respondent becoming the qualifier for Univel, Inc., one David Boland had been the qualifying agent for the company, and no apparent action was taken by Univel to remove Boland as a qualifier for an undisclosed period of time after Respondent assumed that function. (Pleadings, testimony of Respondent, K. Alles) The only project of Univel that Respondent supervised from 1979 until subsequent to April, 1981 was the renovation of several buildings called Ocean Landings. During the period of March or April, 1980 until April, 1981, he had no involvement in any of Univel's projects. Since April, 1981 he has pulled permits and supervised some small renovation or alteration projects. (Testimony of Respondent, K. Alles, Stipulation) For the past three and one-half years, Lawrence M. Stoner, a certified general contractor and qualifying agent for Dynamic Construction Company, Inc. has engaged in joint construction projects with Univel, Inc. In such instances, Stoner obtains the building permits and supervised construction of the projects. At some undisclosed point in time, Kenneth Alles, Vice President of Univel, Inc. consulted with and obtained assurances from legal counsel that, based upon Univel's relationship with Stoner and Dynamic Construction Company, it was unnecessary for Stoner to file a formal application as qualifying agent for Univel. In fact, Alles was of the opinion that at one point Univel had three qualifying agents simultaneously who were Respondent, Stoner, and Boland. (Testimony of K. Alles) At some undisclosed time subsequent to Respondent becoming the qualifying agent for Univel, that firm entered into a construction contract with Palm Harbor West, Inc. to construct a condominium building called Harbour Cay. Stoner supervised the construction of the building. There was an on-site superintendent of construction who was employed by Univel. Stoner and Univel co-signed a bank loan agreement for the project. (Testimony of K. Alles) Respondent was not involved in the Harbour Cay project in any respect. He did not affix his license number to the contract nor did he supervise of have any connection with the project. (Testimony of K. Alles, Stipulation) On March 27, 1981, the Harbour Cay building collapsed causing multiple deaths and injuries. (Testimony of K. Alles, pleadings)
Recommendation That the Construction Industry Licensing Board administer a written public reprimand to Respondent Bruce Alles for violation of Subsection 489.119(5), F.S., pursuant to Subsection 489.129(j), F.S. DONE and ENTERED this 23rd day of December, 1981, in Tallahassee, Florida. THOMAS C. OLDHAM 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 23rd day of December, 1981. COPIES FURNISHED: Michael Egan, Esquire 217 South Adams Street Post Office Box 1386 Tallahassee, Florida 32302 Joe Teague Caruso, Esquire Post Office Box 757 Cocoa Beach, Florida 32931 James K. Kinnan Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
The Issue At issue is whether Respondent committed the offenses set forth in the Amended Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Department), is a state agency charged with the duty and responsibility of regulating the practice of contracting pursuant to Chapters 20, 455 and 489, Florida Statutes. At all times material to the allegations of the Amended Administrative Complaint, Respondent was licensed in Florida as a Certified General Contractor, having been issued license number CG C018621, and authorized to engage in the practice of general contracting as an individual. At the time of the hearing, Respondent's license had been suspended. At no time material was Respondent licensed to practice contracting in Florida through Florida East Coast Properties, Inc. On or about November 13, 1995, Respondent, doing business as Florida East Coast Properties, entered into a contract with Kazimierz and Maria Charchut (the Charchuts) for construction of a single family residence to be located at 8 Farmsworth Drive, Palm Coast, Flagler County, Florida. The original contract price was $124,000. At the time of the signing of the contract, the Charchuts lived in Brooklyn, New York, and continue to reside there. The Respondent's license number does not appear on the contract. The Respondent's notification of the Construction Industries Recovery Fund does not appear on the contract. Between September 13 and November 28, 1995, the Charchuts paid Respondent a total of $44,000 of the contract price towards construction of the residence. This amount constituted more than 10% of the contract amount (10% of the contract amount would have been $12,400). A closing on the construction loan was scheduled for October of 1995. Respondent called Mr. Charchut a couple of days before the first scheduled closing telling him they could stop the closing so that they could get better interest rates. Between October 1995 and June of 1997, Respondent failed to appear at a total of three scheduled closings on the construction loan. The Charchuts wrote several letters and made several phone calls to Respondent expressing concern that the closing had not yet occurred although they had already paid him a substantial amount of money. The closing finally took place in October of 1997. Because of some change orders that were to be made to the house, including wooden floors and a longer driveway, the Charchuts paid an additional $14,813.75 at the closing bringing the total cost of the construction of the home to $138,813.75. Included on the Change Order form was an amount of $2,001.75 for water and sewer assessments, which comprised part of the $14,813.75 total additional moneys paid by the Charchuts. The closing agent testified that this closing was atypical, because the bank was concerned that Respondent held too much money in the construction project. She testified that the bank requires that builders have no more than ten percent deposit. Consequently, Respondent was required to reimburse the bank $16,786.25 of the Charchut's $44,000 deposit at the closing. This was accomplished by Respondent bringing a check to the closing in the amount of $25,000 and receiving a refund overage check from Flagler County Abstract Co., (written to Florida East Coast) in the amount of $8,213.75, resulting in Respondent paying a net amount of $16,786.25 at the closing. At the closing, the bank received a check from Flagler County Abstract Co. for $31,600 to put in the construction loan account. This amount was composed of the Charchut's payment of $14,813.75 plus Respondent's payment of $16,786.25. Mr. Charchut wrote to Respondent in March of 1998 expressing concern that the closing had taken place in October of 1997 but the construction of his home had not yet begun. Respondent replied to Mr. Charchut in a letter dated April 8, 1998, stating that he was sorry for the delay in beginning construction of the home and that he intended to begin construction the week of April 20, 1998. Respondent applied for the building permit on May 7, 1998. Respondent applied for water and sewer service on May 5, 1998. He began construction of the house in June or July of 1998. By the end of July 1998, Respondent finished the slab foundation and rough plumbing of the Charchut's home. Consequently, the mortgage company paid $14,769.40 out of the first draw payment on the construction loan to Respondent's company. Of that amount, $3,485.86 was for reimbursement for payment to subcontractors. In addition to the amounts paid to Respondent, the mortgage company paid Mastercraft Plumbing $1,894 and $5,656.60 to CRS Rinker Materials Corp. The total first draw was $22,320. After payment of the first draw in August of 1998, little if any work was done on the construction of the Charchut's home. After the initial work on the slab, Respondent stopped construction and told the Charchuts that he did not want to continue to build their home and was looking for another contractor to finish the house for them. After being told that Respondent did not want to work on the home, the Charchuts wrote to Respondent on October 5, 1998, notifying Respondent to stop doing further work on the property and asking him to notify the Building Department so a transfer of the construction permit to another builder could take place. The Charchuts subsequently engaged another contractor, Mr. V. M. Zarbo. Mr. Charchut testified that he paid approximately $160,000 for the house to be built, including the money paid to Respondent. Mr. Charchut testified that when Mr. Zarbo began his work, Palm Coast Utility asked him to pay the impact fee for water and sewer. Despite the Charchut's having paid Respondent $2,001.75 toward water and sewer assessments, Respondent's check for that amount made out to Palm Coast Utility Company was returned for insufficient funds. Consequently, the Charchuts had to pay $2,116.75 for this fee again through their subsequent general contractor, notwithstanding Respondent claiming that he had incurred this expense. When added together, the Charchuts paid Respondent a total of $51,650.50 for the work Respondent did on the house. The total is composed of the sum of $27,213.75 (the net Respondent retained on the original down payment), $14,769.40 paid to Respondent from the first draw, and $1,894 and $5,656.60 paid to Respondent's suppliers/subcontractors from the first draw. Additionally, the Charchuts paid $2,116.75 for payment of the utility impact fee that the Charchuts had to pay twice. The Charchuts asked their subsequent contractor to prepare an estimate of the cost of the work that Respondent performed on the home. His written estimate was for a total of $21,536.68. The Charchuts included that written estimate in a letter to Respondent dated November 16, 1998, asking for a refund of amounts they paid in excess of his costs. Roy Brand testified as an expert witness for Petitioner. Mr. Brand has been a certified commercial contractor for about 20 years. He reviewed the estimate of Respondent's expenses that was provided by the Charchut's subsequent contractor. It was Mr. Brand's opinion that the cost estimate was appropriate and, if anything, Respondent's expenses might have been less. Respondent testified that he spent more on some items that were listed in the estimate. Respondent, during the investigation leading up to this case, was given an opportunity to provide receipts to Petitioner's investigator of expenditures made to the house. The receipts supplied to Petitioner's investigator do not total an amount in excess of the estimate made by the Charchut's subsequent builder. Based upon Respondent's failure to provide receipts to prove that the estimate total was too low, Mr. Zarbo's good faith estimate of building expenses made after his inspection of the property, and testimony of Petitioner's expert witness as to the reasonableness of the estimate, the estimate of expenses for Respondent's work in the amount of $21,536.68 is accepted as appropriate. Thus, Respondent has failed to account for or return to the Charchuts $30,113.82, the difference between the amount paid by the Charchuts and the estimate of expenses.1 As of September 20, 2000, the Department's costs of investigation and prosecution, excluding legal costs, totaled $1,498.66. Previous disciplinary action At hearing, the Department offered proof that, on two prior occasions, Respondent had been subjected to disciplinary action by the Construction Industry Licensing Board (the Board). The first occasion is reflected in the terms of a Final Order of the Board, (Final Order No. BPR-2000-01399) dated April 4, 2000, which found Respondent guilty of violating Section 489.129(1)(c), Florida Statutes, by making misleading, deceptive, or fraudulent representations to a client; Section 489.129(1)(g), Florida Statutes,2 by acting in the capacity of a contractor in a name other than as set forth on the issued certificate or registration; Section 489.129(1)(h)1, Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer; Section 489.129(1)(l), Florida Statutes, by signing a statement with respect to a project or contract with false information; Section 489.129(1)(m), Florida Statutes, by committing fraud or deceit in the practice of contracting; and Section 489.129(1)(n), Florida Statutes, by committing incompetency or misconduct in the practice of contracting and imposing the penalties of placing Respondent on probation for two (2) years and payment of an administrative fine, costs and restitution to a customer. The second occasion that Respondent was subjected to disciplinary action is reflected in the terms of a Final Order of the Board, (Final Order No. BPR-2000-01443) also dated April 4, 2000, which found that Respondent violated Section 489.129(1)(g), Florida Statutes, by acting in the capacity of a contractor under a certificate or registration other than in the name of the certificateholder; Section 489.129(1)(h)1 and 3, Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer; Section 489.129(1)(l), Florida Statutes, by signing a statement with respect to a project or contract falsely indicating that payment had been made for all subcontracted work; Section 489.129(1)(m), Florida Statutes, by committing fraud or deceit in the practice of contracting; and Section 489.129(1)(n), Florida Statutes, by committing incompetency or misconduct in the practice of contracting; and imposing the penalties of probation, payment of fines, costs and restitution. Respondent apparently did not satisfy the fines and costs imposed by the foregoing orders as Respondent's license was suspended on May 17, 2000, for non-payment of fines, costs or restitution.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Construction Industry Licensing Board enter a final order adopting the foregoing findings of fact and conclusions of law, and which, as penalty for the violations found, imposes an administrative fine in the total sum of $11,250, revokes Respondent's license, orders that Respondent pay restitution to the Charchuts in the amount of $30,113.82, and assesses costs of investigation and prosecution (through September 20, 2000) in the total sum of $1,498.66 against Respondent. DONE AND ENTERED this 12th day of December, 2000, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 12th day of December, 2000.
The Issue The issue is whether Respondent's license as a certified general contractor and certified roofing contractor should be disciplined for the reasons cited in the Amended Administrative Complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: When the events herein occurred, Respondent, John V. McCrave, was licensed as a certified general contractor and certified roofing contractor having been issued license numbers CG C014083 and CC C056695 by Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Board). Respondent was the licensed qualifying agent for American General Enterprises, Inc. (American General), a contracting firm with offices in Inverness, Florida. He has held a license since 1978. In 1980, Joan D. Branca relocated from New Jersey to Inverness, Florida, where she purchased a mobile home. Around 1982 or 1983, she became acquainted with Respondent through church activities. In 1987, Branca sold her mobile home and decided to build a new home in Inverness with the proceeds from the sale of her home in New Jersey and the mobile home. Because she was acquainted with Respondent, she selected him as the contractor. On July 29, 1987, the parties entered into an Agreement Between Owner and Contractor wherein Respondent agreed to construct a "Home for Joan D. Branca" for a cost of $79,900.00, "not counting land aquisition." Although the contract called for Branca to pay Respondent twenty percent at the time the contract was signed, with four equal draws during the construction process, on or about September 29, 1987, she gave him a check in the amount of $50,000.00, payable to American General Enterprises, Inc. Respondent was to hold that sum of money pending the construction of the new home. The contract also contained a handwritten provision that "[i]f property is not found by April 1, 1988, that is suitable to [illegible] the Deposit of $50,000 shall be returned on demand with all interest at normal bank rate." As to this provision, Respondent's testimony that the contract would "die" on April 1, 1988, unless Branca secured a lot, was not contradicted and is hereby accepted. Therefore, Respondent was obligated to build a new home if Branca purchased a lot by April 1, 1988. Otherwise, he was simply required to return her money "on demand," including interest. Despite this self-executing provision, however, the parties continued to act as if there were a viable construction contract between them until at least the spring of 1990. Branca did not own a lot for her new house when she signed the contract. The parties' understanding, however, was that Respondent would build the house when she secured a lot. Until she did so, Branca was offered a job (with free lodging) by Respondent as manager of an apartment complex in Ocala, which Respondent was then constructing. Branca accepted this offer and moved to Ocala in March 1988. While living in Ocala, Branca did not actively search for a lot since she was busy "managing apartments." Even so, Respondent was not authorized to use her money for any other purpose during this period of time since it was to be held strictly for the purpose of constructing her home. Using $5000.00 borrowed from her daughter, in September 1989, Branca purchased two vacant lots in Inverness, one on Diamond Street, the other on Apopka Street. It was her intention to have Respondent construct the new home on the Diamond Street lot. To this end, she made a rough sketch of the home to be constructed. Thereafter, at Respondent's suggestion, she had an architectural draftsman, David Pillsbury, finalize the plans. They were completed on October 14, 1989. Because Branca had to borrow money from her daughter in September 1989 to purchase the two lots, she asked Respondent to return $5,000.00 of her money. On November 29, 1989, Respondent returned $5000.00 to Branca, leaving $45,000.00 of her money still in his possession. Within a few months, Respondent had the Diamond Street lot cleared as if construction were about to begin. When no construction began within a reasonable period of time, Branca asked Respondent if the building permits had been pulled. He replied that the permitting process took time. Finally, at Respondent's direction, on March 13, 1990, Branca filled out a Notice of Commencement form and filed it in the Citrus County public records. Even so, construction was never begun. On March 14, 1990, Respondent unilaterally drew up another "Agreement Between Owner and Contractor" and presented it to Branca for her signature. It called for him to construct a new home within "within 120 days after permits are obtained" for a price of $53,000.00. The agreement acknowledged that "Joan Branca has already payed [sic] $45,000 towards the construction of this home." It further provided that "[t]he ballance [sic] of $8,000.00 shall be after home is complete." At the same time, Respondent orally asked Branca to borrow another $25,000.00 to complete the construction of the home. Respondent even carried her to a local bank in order for her to borrow the money. Branca became suspicious and declined to sign a new contract or borrow the money. By May 1990, Branca had left Ocala and was living in Homosassa, Florida, with a friend. On the morning of May 4, 1990, Respondent visited Branca and tearfully reported to her that he had spent her $45,000.00 on other construction projects. Because of this, on May 10, 1990, Branca drew up a "Legal Agreement" wherein Respondent acknowledged owing her $45,000.00. He also promised to pay that amount by November 1, 1990. The agreement further provided that if he were late in making the payment, Respondent would be liable for a late charge of $500.00 per day. As of May 10, 1990, Respondent had repaid Branca around $6,500.00. Between October 14, 1992, and September 1, 1993, Respondent made various payments to Branca by check and cash. As of September 1993, Branca had been repaid a total of $15,255.00. On June 15, 1993, Branca engaged the services of an attorney who prepared a promissory note which Respondent signed. It required Respondent to pay Branca the sum of $44,000.00 at a rate of $400.00 per month beginning on July 1, 1993, and various balloon payments so that the total debt would be retired by June 1, 2000. When Respondent failed to repay the money as required by the parties' agreement, Branca filed suit in circuit court and on July 2, 1994, received a final civil judgment against Respondent in the amount of $44,286.20. As of the date of hearing, or more than three years later, Respondent had failed to repay any money towards satisfaction of the civil judgment. Respondent offered into evidence an addendum to the original contract dated September 30, 1987. The addendum reflects the purported signature of Branca. In addition, it carries the signature of Respondent, and the signatures of his wife and sister, Phyllis McCrave and Sharon McCrave, and a subcontractor, James McIntire, as witnesses. According to the addendum, Branca agreed that "[n]o work [would] be done" on the project, all previous agreements regarding the $50,000.00 were "null and void," her deposit would be held by American General "to protect it from any claims or liens against it, that might develop, due to the actions of her son, Jim Branca," and Branca's money would be returned "upon her request." As noted below, however, the authenticity of Branca's signature is in dispute. Both sides presented expert testimony on the issue of whether the signature on the addendum dated September 30, 1987, is actually that of Branca. Although the experts sharply disagreed on the genuineness of Branca's signature, the testimony of Petitioner's witness DeRaker is accepted as being the most credible on this issue. Therefore, it is found that the purported signature of Branca has been simulated to appear as her own, and that Branca did not sign the addendum. At hearing, Respondent contended that Branca had entrusted her to keep the $50,000.00 as a result of Branca's seventeen-year-old son being involved in an automobile accident in 1987. According to Respondent, Branca feared that she might be sued and forced to pay a judgment on behalf of her son and therefore wished to hide her assets. Therefore, he asserted that Branca never intended to have him construct a home, and that the contract was simply a way to hide the money. Branca denied this, saying that the wrecked automobile was in her son's name, and not her name, and he had insurance covering the accident. Her explanation is accepted as being the most credible on this issue. Respondent also contended that he offered to return Branca's money in April 1988 but she declined the offer. In May 1989, Respondent claims that he again offered to return the money but Branca wanted Respondent to use the money as an investment in an apartment project in Daytona Beach, Florida. Respondent then says that he used $40,000.00 of Branca's money, but lost it after the project was later abandoned. While Respondent presumably used Branca's money for other purposes, his testimony that he offered to return the money, but that she encouraged him to invest it in other ventures, is not accepted.
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 finding that Respondent is guilty of the violations described in Counts I through V of the Amended Administrative Complaint. As to those violations, it is recommended that Respondent be fined $4750.00 to be paid by such date as may be determined by the Board, and that he be required to either pay Joan Branca $44,286.20, or that he satisfy the civil judgment entered against him on July 2, 1994, in Citrus County, Florida. DONE AND ENTERED this 30th day of January, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 30th day of January, 1998. COPIES FURNISHED: Gary L. Asbell, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Michael T. Kovich, Esquire 203 Courthouse Square Inverness, Florida 34450 Rodney Hurst, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
