The Issue At issue is whether Respondent committed the offenses set forth in the Administrative Complaints and, if so, what penalty should be imposed.
Findings Of Fact The parties Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Department), is a state agency charged with the duty and responsibility for regulating the practice of contracting pursuant to Section 20.165, Florida Statues, and Chapters 455 and 489, Florida Statutes. Respondent, Richard M. Golfman, was, at all times material hereto, licensed by the Department as a certified general contractor, having been issued license number CG C032860, and authorized to engage in the practice of general contracting as an individual.1 The Feinstein project (DOAH Case No. 00-0599) On or about October 30, 1998, Respondent entered into a written contract with Norman and Sheila Feinstein to furnish the materials and perform the labor necessary to enclose and remodel the screened patio, and to build a rock garden, at their home located at 5468 Northwest 20th Avenue, Boca Raton, Florida, for the sum of $5,000. At the time, the Feinsteins paid Respondent $1,500 as the initial payment (deposit) under the terms of the contract. The contract Respondent presented and the Feinsteins executed on October 30, 1998, did not include Respondent's license number, nor did it contain a statement concerning consumers' rights under the Construction Industries Recovery Fund. Following execution of the contract, Respondent made repeated promises to construct the rock garden; however, it was not until November 10, 1998, that Respondent appeared on-site and constructed the rock garden, albeit not to the Feinsteins' satisfaction. Subsequently, Respondent had some high-hat electrical fixture cans and a bundle of furring strips delivered to the home for the patio project but, thereafter, despite repeated requests, refused to perform any work on the project or refund any money to the Feinsteins. The value of the labor and materials Respondent invested in the rock garden, as well as the cost of the building materials (the high-hat fixtures and furring strips) delivered to the job-site, was $250, a sum considerably less than the $1,500 the Feinsteins had entrusted to Respondent under the terms of their agreement. The Burres/Berger project (DOAH Case No. 00-0600) On or about November 23, 1998, Respondent submitted a written proposal to Tanya Burres to furnish the materials and perform the labor necessary to replace the existing roof on her home located at 7270 Montrico Drive, Boca Raton, Florida, for the sum of $22,125. The proposal was a one-page preprinted form. In the upper left there appeared, printed immediately following Respondent's handwritten name, the following: THE GOLFMAN GROUP, INC. P.O. Box 811926 Boca Raton, Florida 33431 The proposal did not include Respondent's license number, nor did it contain a statement concerning consumers' rights under the Construction Industries Recovery Fund. At the time the proposal was submitted, Tanya Burres was under contract to sell the home to Drs. Glenn Berger and Michelle Fiorillo, husband and wife (the Bergers), and Ms. Burres had agreed to split with the Bergers the cost of a new roof for the home. At the time, Ms. Burres had suggested the Respondent as a contractor to perform the work (because he had previously done satisfactory work for Ms. Burres); however, it was understood that the employment of any contractor was subject to the Bergers' approval. That the Bergers' agreement was required before any such employment would be accepted was clearly conveyed to Respondent. On November 23, 1998, Tanya Burres signed the proposal and gave Respondent a check payable to his order in the sum of $1,106.25, representing her half of the ten percent deposit called for by the proposal. The Bergers, however, declined to accept the proposal, and refused Respondent's request for the balance of the deposit. Rather, the Bergers, having received adverse information from the Department regarding Respondent's record, preferred to employ a different contractor, and Ms. Burres accorded the Bergers a monetary credit at closing (on the purchase of the home) for one-half the cost to re-roof the home. When the Bergers informed Ms. Burres (shortly after she signed the proposal on November 23, 1998) that they would not agree to use Respondent, Ms. Burres attempted to stop payment on her check; however, the check had already been cashed. Thereafter, Ms. Burres attempted on numerous occasions to contact Respondent by telephone and by his pager, but Respondent failed to return any of her calls or messages. To date, Respondent has failed to account for or return Ms. Burres' deposit of $1,106.25. The costs of investigation and prosecution As of February 25, 2000, the Department's costs of investigation and prosecution, excluding costs associated with any attorney's time, totaled $234.85 for DOAH Case No. 00-0599 (the Feinstein project) and $195.65 for DOAH Case No. 00-0600 (the Burres/Berger project.) 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). (Petitioner's Exhibit 2.) The first occasion is reflected in the terms of a Final Order of the Board, dated August 4, 1987, which found Respondent guilty of the violations alleged in the Administrative Complaint (which were not revealed at hearing beyond what may be inferred from the terms of the Final Order), and resolved that Respondent suffer the following penalty: Respondent's licensure is hereby suspended for ten (10) years. Provided, Respondent may obtain termination of said suspension at anytime, without further action by the Board, upon providing the Board's Executive Director with a certified bank check in an amount sufficient to cover and pay a fine of five hundred dollars ($500), and the bad check alleged in the Administrative Complaint, and all service charges in connection therewith, and all other fees accruing as of the date Respondent seeks said termination of supervision. The second occasion Respondent was subjected to disciplinary action is reflected in the terms of a Final Order of the Board, dated July 18, 1997, which approved a stipulated settlement of certain complaints then pending before the Board. That Final Order approved the dismissal of a number of counts contained in five Administrative Complaints then pending before the Board and, as to the remaining counts, agreed (without Respondent admitting or denying the allegations of fact contained in the Administrative Complaints) to the following penalty: 3. FINE AND COSTS: Respondent shall pay a fine of Nine Hundred dollars ($900.00) and costs of Eight Hundred fifty One dollars ($851) to the Board within thirty (30) days of the filing of the Final Order. Said payment shall be in the form of a cashier's or certified check and shall be made payable to the "Construction Industry Licensing Board." To assure payment of the fine and costs, it is further ordered that all of Respondent's licensure to practice contracting shall be suspended with the imposition of the suspension being stayed for thirty (30) days. If the ordered fine and costs are paid in compliance with the terms set forth above, the suspension imposed shall not take effect. However, should payment not be timely made, the stay shall be lifted and Respondent's license shall be immediately suspended. Upon payment of the fine and costs in full, the suspension imposed shall be lifted. Respondent apparently satisfied the fines and costs imposed by the foregoing orders. (Petitioner's Exhibit 2.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered adopting the foregoing findings of fact and conclusions of law, and which, as a penalty for the violations found, imposes an administrative fine in the total sum of $13,500.00, revokes Respondent's licensure, orders that Respondent pay restitution to Norman and Sheila Feinstein in the sum of $1,250.00 and to Tanya Burres in the sum of $1,106.25, and assesses costs of investigation and prosecution (through February 25, 2000) in the total sum of $430.50 against Respondent. DONE AND ENTERED this 22nd day of June, 2000, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 22nd day of June, 2000.
The Issue The issues are whether Respondent committed the several violations of Sections 489.129(1)(h)2.,(h)3.,(j),(k), and (n), Florida Statutes (1997), for the reasons stated in the respective Administrative Complaints and, if so, what, if any, penalties should be imposed. (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of contracting. Respondent is licensed as a certified general contractor pursuant to license number CG C059414. At all relevant times, Respondent was the qualifying agent for Fred T. Garrett Construction, Inc. ("FTG"). As the qualifying agent, Respondent was responsible for all of FTG's contracting activities in accordance with Section 489.1195, Florida Statutes. Respondent failed to obtain a certificate of authority for Fred T. Garrett Construction, Inc., as required by Section 489.119(2), Florida Statutes. The St. Cyr Case On or about August 21, 1998, Respondent entered into a contract with Louis L. St. Cyr to construct an addition to the residence located at 201 South Bel Air Drive, Plantation, Florida. The contract price was $50,000. Although Mr. St. Cyr paid $2,500 to Respondent, Respondent failed to commence work and canceled the project, thereby abandoning it without just cause and without proper notification to Mr. St. Cyr. The contract did not permit Respondent to keep the $2,500 paid by Mr. St. Cyr, and Respondent failed to refund the payment within 30 days after abandonment. Out of the $2,500 he received from Mr. St. Cyr, however, Respondent paid $1,600.00 to the architect before abandoning the project. Thus, the net amount that Respondent owes to Mr. St. Cyr is $900. Petitioner incurred a total of $1,092.28 in investigative costs relating to the St. Cyr case. The Forney Case On May 22, 1998, Respondent, who was doing business as FTG, entered into a contract with Mr. Warren Forney for the construction of a two-bedroom, one-bath addition to the residence located at 1698 Northeast 33rd Street, Oakland Park, Florida. The contract price was $32,500. The contract with Mr. Forney did not contain a written statement explaining the customer’s rights under the Construction Industries Recovery Fund, as required by Section 489.1425(1), Florida Statutes. On July 7, 1998, Respondent obtained permit number 98-050297 from the Oakland Park Building Department. Construction commenced on or about July 7, 1998, and continued sporadically until October 29, 1998, when Mr. Forney dismissed Respondent for failure to timely complete the project. The Oakland Park Building Department issued notices of violation against the project on August 3, September 11, and October 14, 1998, for various building code violations. Mr. Forney was forced to obtain a homeowner’s permit and subsequently hired a subcontractor to complete the work. Mr. Forney paid Respondent approximately $29,250 before relieving Respondent of his duties. To complete the project, Mr. Forney paid a total of $48,746.52, which was $15,396.52 over and above the original contract price. Petitioner incurred a total of $2,190.78 in investigative costs relating to the Forney case. The Kong Case In or around January 1998, a contractor named Lakeview Concepts hired Respondent to perform demolition work for the Kong dry cleaning store project on the property located at 5171 South University Drive, Davie, Florida. On or about June 17, 1998, permit 98-00002349 was issued to Respondent to perform alterations on commercial property located at 5171 South University Drive, Davie, Florida. Respondent, however, did not yet have a contract with the owner for this work. The next month, on or about July 30, 1998, Respondent, who was doing business as FTG, entered into a contract with Shek Kong to complete the dry cleaning store project at 5171 South University Drive, Davie, Florida, for the contract price of $22,300. Shek Kong made payments to Respondent totaling $16,000. Respondent’s work was of poor quality, however, and on or about November 6, 1998, he ceased work, though the project had not been completed. On or about November 14, 1998, Douglas Frankow, license number CB C052960, gave Mr. Kong an estimate of $20,562 to complete the project. Thereafter, on or about June 30, 1999, Mr. Kong contracted with George Settergren, another licensed contractor, to complete the project for a contract price of $27,956. On December 9, 1999, in Case No. 98-020065 08, the Circuit Court, Seventeenth Judicial Circuit, Broward County, Florida, rendered a Final Judgment against Respondent and in favor of Mr. Kong. This judgment awarded Mr. Kong the total amount of $28,693.30, plus 10 percent interest per annum. Petitioner incurred a total of $2,502.78 in investigative costs relating to the Kong case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Construction Industry Licensing Board enter a Final Order finding Respondent guilty of violating Sections 489.129(1)(h)2., (h)3., (j), (k), and (n), Florida Statutes, imposing administrative fines in the aggregate amount of $3,700, assessing investigative costs in the aggregate amount of $5,785.84, placing Respondent's license on probation for a period of four years from the date the Final Order is entered by the Board, and awarding payment of restitution to each customer as follows: (1) to Warren Forney, the amount of $15,396.52; (2) to Shek Kong, satisfaction of the unpaid civil judgment in the amount $28,693.30, plus 10 percent interest accrued thereon; and (3) to Louis L. St. Cyr, the amount of $900. DONE AND ENTERED this 15th day of February, 2002, in Tallahassee, Leon County, Florida. _________________________________ JOHN G. VAN LANINGHAM 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 15th day of February, 2002.
The Issue In this disciplinary proceeding, the issues are whether Respondent, a licensed contractor, failed timely to renew the certificate of authority issued to his qualified business entity; failed to include, in a construction contract, the required notice regarding consumer rights under the recovery fund; abandoned a construction project; or committed any of these offenses, as alleged by Petitioner in its Administrative Complaint. If Petitioner proves one or more of the alleged violations, then an additional question will arise, namely whether penalties should be imposed on Respondent.
Findings Of Fact The Parties Respondent Vic George ("George") is a certified general contractor and a certified roofing contractor. As a licensee in these fields, George is subject to the regulatory jurisdiction of the Construction Industry Licensing Board ("Board"). Petitioner Department of Business and Professional Regulation ("Department") has jurisdiction over disciplinary proceedings for the Board. At the Board's direction, the Department is authorized to prosecute administrative complaints against licensees within the Board's jurisdiction. George's Businesses At times material to this action, George carried out the business of a contractor through, and was the qualifying agent of, a company known as South Florida Remodeling and Building Corporation ("S.F. Remodeling"). At other times material to this action, George carried out the business of a contractor through, and was the qualifying agent of, a company known as One Stop Remodeling and Building Corporation ("One Stop"). One Stop was a successor to S. F. Remodeling. The Department issued an initial certificate of authority to One Stop that, effective August 31, 2001, permitted the company lawfully to engage in the business of contracting for two years. One Stop failed timely to renew its certificate before the expiration date of August 31, 2003. In a Final Order Approving Settlement Stipulation entered on February 18, 2004, the Board disciplined George for, among other things, the failure of One Stop timely to renew its certificate of authority.iii The Board suspended George's contracting licenses indefinitely but stayed the suspension for 90 days to allow George to furnish evidence that corrective actions had been taken, which actions were to include the renewal of One Stop's certificate. Had George failed to provide such evidence, the stay would have been lifted and his licenses immediately suspended. George's licenses were not suspended in consequence of the Final Order just described. It is thus reasonable to infer, and is hereby found, that George satisfied the all of the conditions (including the renewal of One Stop's certificate) for preventing the suspension from taking effect. That being the case, One Stop's certificate was renewed before mid-May 2004.iv In light of the foregoing findings, the Department failed to prove by clear and convincing evidence its allegation that One Stop's certificate was delinquent until October 2004. The Hazard Project Anthony Hazard ("Hazard") is an insurance agent who sells property and casualty insurance in Miami-Dade County. Some time before September 2000, a man named Rick Nelson bought insurance through Hazard's insurance agency, and he and Hazard developed a friendly relationship. Mr. Nelson was an employee and officer of S.F. Remodeling, for whom he was a construction supervisor. As Mr. Nelson and Hazard got to know one another, they realized that each could be a source of business referrals for the other. In fact, Mr. Nelson did direct some persons in need of insurance to Hazard, and Hazard recommended Mr. Nelson to some persons in need of a contractor. It was natural, therefore, that when Hazard and his wife decided in the year 2000 to add an enclosed patio to their house, Hazard turned to Mr. Nelson for assistance. Mr. Nelson told Hazard that S.F. Remodeling could do the job. In a written price quote dated September 29, 2000, and delivered to Hazard on or about that date, Mr. Nelson, on behalf of his employer, represented that S.F. Remodeling could build an enclosed patio for the Hazards at a total cost of $9,938. The Hazards agreed to this proposal, and work preliminary to construction, such as the preparation of the architectural plans, commenced forthwith. The plans were drawn by Curtis Williams, a draftsman who worked for an architect named Charles Mitchell.v In the course of obtaining the local building official's approval of the plans, it was learned that the project as originally contemplated would need to be modified to comply with the zoning laws. The necessary design changes would increase the cost of construction slightly. Thus, effective November 21, 2000, the Hazards and S.F. Remodeling entered into a one-page agreement pursuant to which the contractor promised to build the Hazards an enclosed patio for $10,100. The contract did not contain an explanation of the owners' rights under the Florida Homeowners' Construction Recovery Fund, which was known at the time as the Construction Industries Recovery Fund. (Hereafter the referenced fund will be called the "Recovery Fund.") The agreement was a sweetheart deal for the Hazards. In an arms-length transaction, the project likely would have cost between $16,000 and $18,000. S.F. Remodeling agreed to do the work for little or no profit in the hope (and with the expectation) that Hazard would continue referring potential customers to Mr. Nelson. The building permit was issued on November 30, 2000, and S.F. Remodeling promptly began work at the jobsite. From then until at least February 14, 2001, work progressed at a reasonable pace. The contractor demolished and removed the existing slab, installed a new footing, poured a new slab, and framed the tie beam. Along the way, in the ordinary course of construction, local building officials inspected and approved the foundation and the new slab. One unforeseen development, however, had caused friction between the Hazards and the contractor. Beneath the existing concrete slab had been found another slab whose removal had entailed unanticipated expenses for excavation work and fill material. Mr. Nelson had asked Hazard to cover some or all of these costs, but Hazard had refused. Because the contract price left no room for error, it had become apparent within a short time after breaking ground that S.F. Remodeling would lose money on the project. Yet another unforeseen occurrence brought the work to a halt. At a routine inspection of the project on March 16, 2001, the local building official refused to approve the tie beam. He determined that the architect's plans, which had been approved prior to issuance of the building permit, were deficient for failure to depict how the tie beam would connect to the existing structure; hence, the plans would need to be revised and approved before construction could continue. Without delay, Mr. Nelson called Mr. Williams and explained the situation to the draftsman, who agreed to revise the plans. Not long thereafter, Mr. Nelson brought the job copy of the plans to Mr. Williams. Mr. Williams did, in fact, make the necessary changes to the plans. It is not clear, however, when exactly this work was completed. All that can be found with certainty on the existing record is that Hazard picked up a copy of the revised plans from Mr. Williams in December 2002, nearly two years after work on the project had stopped as of March 16, 2001. The Department urges the undersigned to infer that the reason for the delay was the contractor's failure——in breach of the contract——to pay the draftsman for revising the plans. The undersigned declines to draw this inference, however, because the evidence on the point is conflicting and ambiguous; the undersigned, ultimately, is just not convinced that this was the reason.vi At bottom, the cause or causes of the delay were not proved clearly and convincingly. (The person most likely to have personal knowledge regarding what happened——Mr. Williams—— was not called to testify, nor was anyone else from the architect's office, leaving a gaping hole in the record.) The undersigned therefore cannot make any inculpatory findings pinning the blame for the delay on S.F. Remodeling or its agents. In aid of its proof of the serious allegation that S.F. Remodeling or its successor One Stopvii abandoned the Hazard project, the Department relies upon a statutory provision under which the fact-finder is permitted to presume abandonment if it is shown that the contractor failed to perform work without just cause for 90 consecutive days. The Department's reliance on this statutory presumption is misplaced, however, because the Department did not prove, by the required quantum of evidence, that S.F. Remodeling failed to work without just cause for 90 days, a basic fact upon which the presumption must rest. The fact is, on March 16, 2001, S.F. Remodeling had just cause to cease working, for the simple reason that, as of that date, the contractor could not legally work on the project until such time as the architect had amended the plans and obtained approval thereof from the local building official. The Department's theory is that it took too long to attend to this situation, which might be true, and that S.F. Remodeling was at fault for the delay, which is possible, too; yet neither proposition was proved clearly and convincingly.viii To explain, there is no convincing evidence in the record as to the reasonable period of time for the preparation and approval of amended plans in the ordinary course of business, nor is there any proof regarding the steps that a reasonable contractor should take under such circumstances to expedite the process.ix In other words, there is no convincing evidence of applicable standards of conduct against which to measure this contractor's performance. In the absence of such evidence, the undersigned cannot, consistent with the rule of law, simply apply standards of his own devising, based on his personal preferences concerning how contractors should perform, no matter how sensible or wise those personal standards might be. In the absence of legal standards, the undersigned must withhold judgment, rather than render a personal one. It is therefore impossible, based on the evidence in the record, for the undersigned to fix the point in time, if there were one, when just cause no longer existed for S.F. Remodeling not to be working on the Hazard project. Without that reference point, it cannot be determined whether the contractor failed to perform work without just cause for 90 consecutive days. Thus, the undersigned cannot presume abandonment. Moreover, even if the Department had proved that S.F. Remodeling breached a legal or contractual duty to cause the revised plans to be prepared and approved sooner than these events actually occurred, the question at hand is not whether the contractor breached the contract or was negligent; the question is whether the contractor abandoned the project——i.e. quit the job with the intention never to resume working toward its completion. Simply put, the contractor's failure to prevent unreasonable delay in the work, if there were such a failure, would not, without more than was proved here, manifest the requisite intention never to complete the project. On November 4, 2002, Hazard signed a consumer complaint against S.F. Remodeling, which he then filed with the Miami-Dade County Building Code Compliance Office. In his complaint, Hazard accused the contractor of failing to complete the job and refusing to contact him about it. After investigating the matter, local officials referred Hazard's complaint to the Department, giving rise to the instant proceeding. Some time after bringing his consumer complaint, Hazard hired another contractor, Edwards Construction, Inc. ("Edwards"), to complete the project.x Edwards obtained a permit for the project in April 2003 and began working several months later, taking about four months to finish the job. A final inspection approving the project was had on November 7, 2003. All told, the Hazards invested $23,216.69 in their new patio. This grand total, however, included some extras (a concrete pad for parking a boat, a sidewalk, and some steps) that S.F. Remodeling had not been under contract to build. Breaking down the total amount paid, the Hazards incurred $9,419.73 in expenses while S.F. Remodeling was on the job, and $13,796.96 when Edwards was doing the work. On September 29, 2004, the Department issued a three- count Administrative Complaint against George. As of May 19, 2005, the Department had expended a total of $596.20 in investigative and prosecutorial costs, excluding attorney's fees. The Charges In Count I of its Administrative Complaint, the Department alleged that S.F. Remodeling had failed to include in its contract with the Hazards a statement explaining the consumers' rights under the Recovery Fund, as required by Section 489.1425, Florida Statutes. It is the Department's position that George, as the company's qualifying agent, is subject to discipline for this oversight pursuant to Section 489.129(1)(i), which makes it an offense materially to disobey any statutory provision or order of the Board. In Count II, the Department charged George separately under Section 489.129(1)(i), asserting that he, as qualifying agent, had failed to obey a statutory provision, namely Section 489.119(2)(d), which requires that a corporate contractor's certificate of authority must be renewed every two years. As the basis for this charge, the Department alleged that One Stop's certificate had expired on August 31, 2003, and not been renewed until October 2004. In Count III, the Department accused George of having abandoned a construction project, which is a disciplinable offense under Section 489.129(1)(j), Florida Statutes. In support of this Count, the Department, as mentioned, has relied upon an evidentiary device that permits the fact-finder to presume abandonment upon proof that the contractor failed to perform work without just cause for 90 consecutive days. Ultimate Factual Determinations Because the contract between S.F. Remodeling and the Hazards did not, in fact, include the statutorily required notice regarding the Recovery Fund, George, in his capacity as qualifying agent, is guilty of failing to obey a statutory provision, as charged in Count I. There is no dispute that One Stop's certificate of authority lapsed as of August 31, 2003. Indeed, the Board disciplined George for the oversight, entering a final order on February 18, 2004, with which he timely complied. As a result of this previous discipline, One Stop's certificate was renewed and the matter concluded. The Board cannot lawfully punish George twice for the same offense. Thus, George is not guilty of the offense charged in Count II of the Administrative Complaint. The undersigned is not convinced that S.F. Remodeling abandoned the Hazard project. At most it might be inferred that, after the local building inspector stopped the job due to faulty architectural plans——a problem not of the contractor's making——S.F. Remodeling, being in no hurry to resume working on a money-losing project, took a laissez-faire approach to the ensuing delay. But the Department did not prove "strategic sloth" by clear and convincing evidence, and such would not constitute abandonment even if it had. The evidence leaves open the reasonable possibility that S.F. Remodeling intended and expected to finish the job someday, even if it hoped that day would not come soon.xi Consequently, George is not guilty of the charge set forth in Count III of the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order (a) finding George not guilty of the offenses charged in Counts II and III of the Administrative Complaint; (b) finding George guilty of the offense charge in Count I thereof; (c) imposing a fine of $1,000 for the notice violation, which is a repeat offense; and (d) assessing investigative and prosecutorial costs in the amount of $596.20. DONE AND ENTERED this 31st day of October, 2005, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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.stae.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 2005.
The Issue Whether the Respondent was validly disciplined by a local government, which causes the Respondent to be in violation of Section 489.129(1)(i), Florida Statutes (1985). Whether the Respondent failed to perform the contracting job alleged in the Administrative Complaint in a reasonably timely manner, or abandoned the job, in violation of Section 489.129(1)(m), (k), Florida Statutes (1985). Whether the Respondent exhibited financial mismanagement, misconduct or diversion, in violation of Section 489.129(1)(h), (m), Florida Statutes (1985). Whether the Respondent committed gross negligence, incompetence or misconduct in connection with the job alleged in the Administrative Complaint, in violation of Section 489.129(1)(m), Florida Statutes (1985).
Findings Of Fact At all times material to these proceedings, the Respondent, Charles R. Schelah was licensed as a certified general contractor in Florida, and held license number CG C016841. Mr. Schelah was the qualifying agent for Schelah Construction, Inc. On March 11, 1986, Schelah Construction, Inc., entered into a contract with Moner F. Green and Karen L. Green to construct a residence in Prairie Creek Park, Charlotte County, Florida A copy of the contract is Petitioner's Exhibit Pursuant to the written agreement, construction would occur as per the signed construction drawings. The total contract price was to be $102,775.00. This quote was contingent upon a construction start on or before March 15, 1986. After that date, increases in supply and labor costs would be borne by the owners, Mr. and Mrs. Green. The contract further stated that there is no specific completion date, that an expected completion date was August 30, 1986. Construction began on the residence on April 4, 1986. Three revisions of the drawings were completed by the owner before a building permit was requested by the Respondent Schelah. Throughout the progress of construction, major and minor revisions were made by the owners. Many of these revisions delayed construction as the Respondent was required to obtain new special order materials and retrofit many of the changes into the existing construction phase. The Respondent recollected that thirty-five revisions were made to the construction plans by the owners during various phases of construction. In September 1986, the owners began to frequently telephone the Respondent in order to urge him to quickly complete the project as the owners were now required to pay the savings and loan association mortgage installments. The Respondent did not return the telephone calls. A letter was sent to the Respondent by the owners' attorney on November 3, 1986, notifying him that he needed to resume his responsibilities at the construction site. The Respondent did not reply to this letter. On November 7, 1986, the Respondent was removed as contractor of record by the owners. All but the final draw from the savings and loan had been given to the Respondent before his removal. After the Respondent was removed from the project, the owners were given notice of the following liens: $2,750.55 to Pre-Hung Doors of Florida for supplies delivered in August 1986; $700.00 to Paul Hartt Plastering and Stucco, Inc. for work completed in September 1986. The work completed by both subcontractors was performed during the Respondent's term as the prime contractor on the project. These two contractors were never paid by the Respondent out of draws received by him for that purpose through October 1986. These subcontractors, as well as others, testified that they were unable to communicate with Respondent after September 1986. The final draw from the savings and loan in the amount of $19,618.97, was used by the owners to complete the project themselves. The proof of payment submitted by the owner, Mr. Green, at hearing for completion under the direct contract was $6,149.14, in Respondent's Exhibit 14. The residence was completed by the owners in December 1986. Mr. Green, the owner, filed a complaint with the Charlotte County Building Board on October 29, 1986, alleging that the Respondent refused to call him, and was dragging completion of the job for unknown reasons hearing was held on February 19, 1987. At the conclusion of the hearing, the Charlotte County Building board suspended the permitting privileges of Schelah Construction, Inc., until such time as all jobs in progress were finished. During the administrative hearing, the Respondent admitted that a twenty-one day delay on the Green project occurred when he was unable to acquire a sheetrock hanger who would go to the hinterlands (Prairie Creek Park) where the residence was being built. He contends however, that the additional time delays were a result of changes in supply orders due to the changes made by the owners, and the requirement that subcontractors be rescheduled to accommodate these changes. Petitioner's experts in construction practices within Florida, Mr. Bernard Verse and Mr. Stanley Ink, were unable to render an opinion that the Green Construction project had been abandoned by Respondent Schelah, or that there had been a diversion of funds. However, Mr. Ink did render an opinion that the project was not completed in a reasonably timely manner, that the Respondent is guilty of financial mismanagement, and that the Respondent committed gross negligence, incompetence or misconduct on the job in that the Respondent did not use due diligence in completing the job, staying on the job, and paying the subcontractors as the contractor should. Mr. Verse opined that the Respondent committed financial mismanagement and gross negligence in the practice of contracting. It was gross negligence not to maintain contact with clients. The Respondent's own expert in construction practices in the Punta Gorda area, Mr. Larry Deirmeyer, noted that it is difficult to acquire unscheduled building supplies in the Punta Gorda area if a contractor runs a small construction company because the supply houses are in Fort Myers, where rapid growth is occurring. In addition, it is difficult to get subcontractors to work on construction in areas like Prairie Creek Park, which is remote from the developed areas of Charlotte County. After Mr. Deirmeyer was admitted as an expert in construction practices, the Hearing Officer learned that he had built a custom home for the owner Moner Frank Green in 1980. Mr. Green's removal of Mr. Deirmeyer's company from the construction project during the last draw of that project, and his continuous changes in those plans were not considered by the Hearing Officer in this case except for the purpose of weighing Mr. Deirmeyer's independence as an expert witness. Another expert witness in construction practices presented by the Respondent was James Anderson, a state certified contractor from the Port Charlotte area. Mr. Anderson acknowledged the local builder supply problem and rendered the opinion that nine months was a reasonable period of time in which to complete the Green project, based upon the construction plans, the change orders, and the travel required to the project, which is not in the immediate Port Charlotte area. The Respondent Schelah did not maintain communication with the owners regarding the progress of the project, even though he was telephoned repeatedly and received written communication from the Green's attorney. This failure to maintain communication resulted in the Respondent's dismissal from the project. The County's Building Director's requests for communication were also refused by the Respondent.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Respondent be found not guilty of having violated Section 489.129(1)(i), Florida Statutes, as alleged in paragraph five of the administrative complaint. That the Respondent be found not guilty of having violated Sections 489.129(1)(m) and (k), Florida Statutes, as alleged in paragraph six of the administrative complaint. That the Respondent be found not guilty of having violated Sections 489.129(1)(h) and (m), Florida Statutes, as alleged in paragraph seven of the administrative complaint. That the Respondent be found guilty of having violated Section 489.129(1)(m), Florida Statutes, as alleged in paragraph ten of the administrative complaint in regard to misconduct by the Respondent on the Green project. That the penalties assessed against the Respondent not include an aggravation of penalties under Rule 21E-17.002, Florida Administrative Code, and that the Respondent pay a fine of $750.00, as set forth in Rule 21E-17.001(5), Florida Administrative Code. DONE and ENTERED this 9th day of June, 1989, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 9th day of June, 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 88-3442 Petitioner's proposed findings of fact are addressed as follows: Accepted. Accepted. See HO #1. Accepted. See HO #1. Rejected as to location of project. The rest is accepted. See HO #2. Accepted. Accepted. See HO #2. Accepted. See HO #4. Accepted. See HO #4. Accepted. See HO #4. Accepted. See HO #5. Accepted. See HO #4. Accepted. See HO #5. Accepted. See HO #6. Accepted. Accepted. See HO #9. Accepted. See HO #9 and #10. Accepted. See HO #10. Accepted. Accepted. See HO #13. Accepted. Accepted. Rejected. See HO #13 and #11. Rejected. See HO #11. Accepted. See HO #11. Accepted. Accepted. Accepted. See HO #14. Accepted. See HO #3 and #8. Accepted. See HO #7. Respondent's proposed findings of fact are addressed as follows: Accepted. See HO #1. Accepted. See HO #2. Accepted. See HO #3 and #4. Accepted. See HO #13. Accepted. See HO #5. Accepted. See HO #6. Accepted. See HO #6. Accepted. See HO #7. 9. Accepted. See HO #9, #10, #11, #12 and #13. 10. Rejected. Irrelevant to this proceeding. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0729 John Charles Heekin, Esquire 21202 Olean Boulevard, Suite C-2 Port Charlotte, Florida 33952 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0729 Fred Seely, Executive Director Florida Construction Industry Licensing Board 111 East Coastline Drive Post Office Box 2 Jacksonville, Florida 32202
Findings Of Fact At all times material to these proceedings, the Respondent, ROBERT MENSCHING, was a certified residential building contractor in Florida, and held license number CR C020166. Mr. Mensching was the owner and qualifying agent for Robert Mensching Homes. On or about July 10, 1986, a written proposal was submitted by the Respondent to Mr. and Mrs. Mangiardi for the construction of a single family dwelling in Cape Coral, Florida. The construction price was $60,000.00, with an additional $500.00 for the purchase of the house plans. Mr. and Mrs. Mangiardi paid for the plans on the date of the proposal. Revisions to the proposal were submitted to the Mangiardis in September, 1986. The purchase price and the payment schedule remained the same. The proposal was accepted by the Mangiardis, and the down payment of $5,000.00 required by the contract to start construction, was given to the Respondent. Construction commenced in November 1986. By March 26, 1987, the Respondent had been paid $53,750.00 of the total construction contract price. This included the fourth draw on a five draw payment schedule. Only $6,250.00 remained to be paid by the purchasers for the last phase of construction. In April 1987, the Respondent informed Mr. Mangiardi that he would not complete the final phase of construction. The Respondent informed Mr. Mangiardi that he would pay him $5,000.00. An accounting was not given to the purchasers of the monies disbursed by the Respondent pursuant to the construction schedule. After the Respondent left the project, the Mangiardis were given notice of an outstanding lien in the amount of $963.80, which was owed to Kirkland Electric, Inc. Another Notice to Owner was filed by Wallcrafters, another subcontractor, for $5,272.50. The work completed by both subcontractors was performed during the Respondent's term as the prime contractor on the project. These two subcontractors were never paid by the Respondent out of the draws received by him for that purpose. The Respondent did not pay the $5,000.00 he told Mr. Mangiardi he would pay in April of 1987. The evidence is unclear as to whether this amount of money was a payment of liquidated damages for the breach, the balance of funds entrusted to the contractor which had not been disbursed in the preceding construction phases, or the amount of unpaid liens known to the contractor at the time of breach. The Respondent filed for bankruptcy after a judgment was entered against him in a civil action by the Mangiardis for breach of contract. A Notice of Aggravation was not submitted during the formal hearing regarding the actual damage to the licensee's customers as a circumstance to be considered in aggravation of the penalty to be assessed. A copy of the Florida Construction Industry Licensing Board's previous letter of reprimand was not presented at hearing so that the hearing officer and the Board could use the prior violation for aggravation purposes.
The Issue Whether disciplinary action should be taken against Respondent's license to practice contracting, as charged in the three-count Administrative Complaint filed against Respondent in this proceeding, which alleged that Respondent violated Subsection 489.129(1)(g)2., Florida Statutes (2009),1 by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer; Subsection 489.129(1)(j), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor; and Subsection 489.129(1)(m), Florida Statutes, by committing incompetency or misconduct in the practice of contracting; and, if so, what penalty should be assessed.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of contracting, including roofing contractors, in the State of Florida. At all times material, Respondent was a certified roofing contractor, having been issued License No. CCC 1328032 by the Florida Construction Industry Licensing Board ("CILB"). Respondent was the qualifier of Partnership Remodeling and Roofing Services, Inc. On February 10, 2009, Respondent entered into a contract with William Heston to re-roof Heston's home located at 6002 Cocos Drive, Fort Myers, Florida 33908. The agreed price of the contract was $13,970.00. On or about February 10, 2009, Heston gave Respondent a check in the amount of $7,000.00 as a deposit, payable to Partnership Roofing Services. After being paid the deposit, Respondent did obtain a permit and filed a Notice of Commencement, but Respondent failed to commence work according to the contract. Heston attempted to contact Respondent numerous times to prompt him to start performing the work, to no avail. On March 6, 2009, Heston sent a letter to Respondent asking for the return of his deposit. Although Respondent claims that he had other financial obligations which prevented him from making restitution to the homeowner, Respondent verbally agreed numerous times to return the deposit to Heston, but he failed to do so. The percentage of contracted work completed was zero, while the percentage of the contract price paid to Respondent was 50 percent. The total investigative costs of this case to Petitioner, excluding costs associated with any attorney's time, was $427.00. Respondent has not had a prior disciplinary action filed against his license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board, issue a final order, as follows: Finding Respondent guilty of having violated Subsection 489.129(1)(g)2., Florida Statutes, as alleged in Count I of the Administrative Complaint, and imposing as a penalty an administrative fine in the amount of $1,500.00. Finding Respondent guilty of having violated Subsection 489.129(1)(j), Florida Statutes, as alleged in Count II of the Administrative Complaint, and imposing as a penalty an administrative fine in the amount of $2,500.00. Finding Respondent guilty of having violated Subsection 489.129(1)(m), Florida Statutes, as alleged in Count III of the Administrative Complaint, and imposing as a penalty an administrative fine in the amount of $1,500.00. Ordering Respondent to pay financial restitution to the consumer, William Heston, in the amount of $7,000.00, representing the deposit paid to Respondent. Requiring Respondent to pay Petitioner's costs of investigation and prosecution, excluding costs associated with an attorney's time, in the amount of $427.12. Suspending Respondent's license to practice contracting (No. CCC 1328032) for a period of one year, followed by probation for two years. DONE AND ENTERED this 19th day of July, 2010, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 2010.
Findings Of Fact The Respondent, Robert Maccelli, is a certified general contractor in inactive status for the period 1981 through 1983, holding License #CG C011040. He was in inactive status as of June 1, 1981. (See Petitioner's Exhibit 1.) Respondent was employed as a building inspector for Broward County, Florida. He was required to be a certified contractor to fill this position. (See Petitioner's Exhibit 3.) On June 1, 1982, Respondent pleaded guilty to a charge of violating Section 838.015, Florida Statutes, by taking a bribe in relation to the performance of his duties as a building inspector for Broward County. (See Petitioner's Exhibit 2.)
Recommendation Having found the Respondent, Robert Maccelli, in violation of Section 489.129(1)(b), Florida Statutes, the Hearing Officer recommends that the Construction Industry Licensing Board revoke the certificate of Respondent as a general contractor. DONE and ORDERED this 13th day of July, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 13th day of July, 1982. COPIES FURNISHED: Michael J. Cohen, Esquire 2715 East Oakland Park Boulevard Suite 101 Fort Lauderdale, Florida 33306 Mr. Robert Maccelli Post Office Box 8243 Fort Lauderdale, Florida 33310 J. K. Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether disciplinary action should be taken against Respondent's license to practice contracting number RC 0054458, based on the violations of Section 489.129(1)(j), (k), (h), (p) and (m), F.S., alleged in the five count Administrative Complaint.
Findings Of Fact Since July 1968 and at all times material, Respondent Ronnie Boles, was licensed as a registered roofing contractor in the State of Florida, having been issued license number RC 0054458, and was registered to do business as "Ronnie Boles Roofing Company." On January 8, 1990 Ronnie Boles, doing business as Ronnie Boles Roofing and Construction, contracted with William C. Martin to construct two pole barns at 10550 N.W. 36th Lane, Gainesville, Alachua County, Florida. The contract price was $21,000.00. There is no evidence that "Ronnie Boles Roofing and Construction" was authorized through a valid contractor to construct pole barns. Respondent's roofing contractor license also did not permit the construction of pole barns. On January 12, 1990, Ms. Jean H. Martin, wife of William C. Martin, issued a personal check to the Respondent for $10,000 as partial payment on the January 8, 1990 contract. The Respondent delivered some materials to the site for use in the construction of the aforementioned pole barns, but never began construction. Mr. Martin attempted to have the Respondent construct the pole barns for over three months without success. The value of the materials provided by the Respondent was approximately $2,000.00, Mr. Martin attempted to have the Respondent refund the $8,000.00 balance of the money Ms. Martin previously paid Respondent on the uncompleted contract. Eventually, Mr. Martin retained attorney Ron Holmes who filed a civil suit against the Respondent based on the aforementioned contract. A judgment for Mr. Martin was obtained in the amount of $9,374.36 on October 1, 1991. Mr. Holmes has attempted to collect the judgment for Mr. Martin on several occasions without success. The Respondent has been actively uncooperative. As of the date of the formal administrative hearing, Respondent had paid no portion of the aforementioned judgment. Mr. Martin filed a complaint against the Respondent with the Department of Business and Professional Regulation. Tom Bishop, Department of Business and Professional Regulation Investigator, investigated the case and mailed the Respondent a notification letter on April 20, 1992. In addition, Mr. Bishop left two messages on the Respondent's answering machine. The Respondent did not respond to the notification letter or the phone messages left by Mr. Bishop. The Department of Business and Professional Regulation has accumulated $22.40 in initial investigative costs, $267.50 in investigative costs, and $605.90 in legal costs associated with prosecution of this cause as of the date of Petitioner's Proposed Recommended Order, totalling $895.80.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Construction Industry Licensing Board enter a final order which provides as follows: Finds Respondent guilty of all violations as set out above. Requires Respondent to pay a collective fine of $5,000.00; Requires Respondent to pay restitution to Mr. Martin of $9,374.36; Requires Respondent to pay costs of investigation and legal fees in the amount of $895.80; and Suspends Respondent's license for three years, thereafter renewal of his license to be subject to proof of Respondent's compliance with requirements (2) - (4) inclusive. RECOMMENDED this 1st day of February, 1994, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1497 The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: 1 Rejected as unnecessary. 2-9 Accepted as modified to remove rhetoric and cumulative material. Respondent's PFOF: None Filed. COPIES FURNISHED: G. W. Harrell, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ron Boles Route 2 Box 417 Alachua, Florida 32615 Richard Hickok, Executive Director Construction Industry Licensing 7960 Arlington Expressway Jacksonville, Florida 32211-7467 Jack McRay, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues are whether Respondent is guilty of making misleading, deceptive, or fraudulent representations in or related to the practice of contracting, in violation of Section 289.129(1)(c), Florida Statutes; mismanagement or misconduct in the practice of contracting that causes financial harm to a customer, in violation of Section 489.129(1)(h)2, Florida Statutes; failing to comply with any of the provisions of Chapter 489, Part I, or a rule or lawful order of the Construction Industry Licensing Board, in violation of Section 489.129(1)(j), Florida Statutes; abandoning a construction project, in violation of Section 489.129(1)(k), Florida Statutes; committing fraud or deceit in the practice of contracting, in violation of Section 489.129(1)(m), Florida Statutes; two counts of committing incompetency or misconduct in the practice of contracting, in violation of Section 489.129(1)(n), Florida Statutes; and failing to satisfy, within a reasonable time, a civil judgment obtained against him, or a business entity that he has qualified, and related to the practice of contracting, in violation of Section 489.129(1)(r), Florida Statutes. If Respondent is guilty of any of these violations, an additional issue is what penalty should be imposed.
Findings Of Fact Respondent is a certified general contractor, holding certificate number CR C016649. He has been continuously certified since 1980 and has been licensed since 1988 as the qualifier of Dunbar Development, Inc. On August 19, 1994, Carla and Vernon Prevatt entered into a contract with Dunbar Development, Inc., for the construction of a residence. The contract calls for Dunbar Development, Inc. (Dunbar), to construct the "Horizon" model home on two platted lots for the sum of $73,395 plus an additional $7400 for Addendum 2. The contract permits Dunbar to cancel the contract if the Prevatts timely apply for a mortgage, but are denied. However, in such event, the contract requires Dunbar to return to the Prevatts all of their money. The contract acknowledges that the Prevatts paid Dunbar the sum of $1500 at the time of entering into the contract. A handwritten note states: "June 06, 1995—Rec'd $17,000.00 ck no. 16655 to initiate construction application for permits & building." Although the contract was originally signed by John Danzy, as "authorized representative" for Dunbar, this handwritten note bears the initials, "WB." The contract does not contain Respondent's certificate number. The contract does not contain a completion date. The contract provides that Dunbar will "commence construction . . . after full down payment and mortgage financing is received" and "will complete the same as soon as practicable, subject to the availability of labor and supplies [and] delays not within the control of [Dunbar]." Another clause in the contract states that Dunbar shall complete construction within two years of the date of the contract. On August 30, 1994, the Prevatts applied for a construction mortgage loan with the First Bank of Clewiston. The bank processed the loan application without any delays or problems. However, there was a substantial delay not attributable to the Prevatts or Respondent in obtaining an appraisal. The appraiser completed the appraisal before March 5, 1995, but probably not much prior to that date. By letter dated March 5, 1995, from Dunbar's financial officer to the Prevatts, Dunbar acknowledged the receipt of the appraisal and proposed a draw schedule totaling $80,795. The first payment under the draw schedule was $18,500 for "applicable fees and permits, plus, the plylon engineered foundation and engineered septic field construction initiation." The policy of First Bank of Clewiston is to match the value of the work to the payments to the contractor. The first payment due under Dunbar's draw schedule called for a payment substantially in excess of the value of the goods and services rendered. However, the bank acceded to the schedule and delivered a check dated June 6, 1995, in the amount of $17,000 payable jointly to the Prevatts and Dunbar. As Dunbar had done with the $1500 down payment received at the time of the execution of the contract, Dunbar deposited the $17,000 check and received payment of these funds. On behalf of Dunbar, Respondent hired Johnson-Prewitt & Associates, Inc., in early November 1995, to prepare the engineering drawings for the septic tank and foundation. These materials are specific to the Prevatts' homesite. By invoice dated November 13, 1995, Johnson-Prewitt & Associates, Inc., invoiced Respondent at Dunbar a total of $1700 for the completed work. After a credit of $700, the outstanding balance was $1000, which remains unpaid. From 1994 through 1995, Respondent, on behalf of Dunbar, provided information to Alpha Engineering, which was retained to prepare the plans for the Horizon model that the Prevatts were building. Most of this work was for the prototype Horizon home, but the work reflected by an invoice dated March 16, 1996, was exclusively for the home to be built for the Prevatts. Respondent and Dunbar never paid this invoice and never picked up the plan revisions that were the subject of this invoice. In fact, Respondent and Dunbar never commenced construction of the Prevatts' home and refused to return any portion of the $18,500 that the Prevatts paid to Dunbar. Although the bank never made any additional disbursements, the Prevatts nevertheless owed the bank the $17,000 disbursed as the first draw and, at the time of the hearing, had paid the sum of $6522.96 in interest and closing costs on this loan. With two checks totaling $2800 that, in June 1995, Yvonne Bushnell delivered to Respondent, on behalf of Dunbar, Ms. Bushnell entered into a contract with Dunbar for the construction of a residence. After Dunbar declined to construct a house or return the money, Ms. Bushnell filed an action against Respondent and Dunbar in Lee County Court on January 31, 1997. On March 12, 1997, the court entered a default judgment against Dunbar Developing, Inc., for the sum of $2800 and costs of $79.50. Following entry of the judgment, on September 14, 1998, Ms. Bushnell and Respondent agreed to settle the matter with the payment of $1600. However, upon payment of only $800, Respondent obtained Ms. Bushnell's signature on a letter dated September 14, 1998, to Petitioner acknowledging the full settlement of the case. Respondent then proceeded to obtain court issuance of a satisfaction when Ms. Bushnell refused to sign a satisfaction, absent payment of the remaining $800. By Order to Set Aside Settlement Agreement entered November 24, 1998, the court reinstated the original judgment. The judgment remains unsatisfied.
Recommendation It is RECOMMENDED that the Construction Industry Licensing Board enter a final order revoking Respondent's certificate as a general contractor and imposing an administrative fine against him of $4000. DONE AND ENTERED this 6th day of May, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 6th day of May, 1999. COPIES FURNISHED: Paul F. Kirsch, Senior Attorney Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 P. Michael Villalobos Sussman Law Group, P.A. 1375 Jackson Street, Suite 201 Fort Myers, Florida 33901 William Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Rodney Hurst, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467
